Republic of the Philippines SUPREME COURT Manila SECOND DIVISION G.R. No.

150185 May 27, 2004

TERESITA TANGHAL OKABE, petitioner, vs. HON. PEDRO DE LEON GUTIERREZ, in his capacity as Presiding Judge of RTC, Pasay City, Branch 119; PEOPLE OF THE PHILIPPINES; and CECILIA MARUYAMA, respondents. DECISION CALLEJO, SR., J.: Before us is a petition for review on certiorari, under Rule 45 of the Rules of Court, as amended, that part of the Decision1 of the Court of Appeals in CA-G.R. SP No. 60732 dismissing her petition for certiorari under Rule 65 of the Rules of Court, as amended, for the nullification of the August 25 and 28, 2000 Orders of the respondent judge in Criminal Case No. 00-0749. The Antecedents Cecilia Maruyama executed a fifteen-page affidavit-complaint2 and filed the same with the Office of the City Prosecutor of Pasay City, on December 29, 1999, charging Lorna Tanghal and petitioner Teresita Tanghal Okabe, a.k.a. Shiela Okabe, with estafa. In her affidavit, Maruyama alleged, inter alia, that on December 11, 1998, she entrusted Y11,410,000 with the peso equivalent of P3,993,500 to the petitioner, who was engaged in the business of "door-to-door delivery" from Japan to the Philippines. It was alleged that the petitioner failed to deliver the money as agreed upon, and, at first, denied receiving the said amount but later returned only US$1,000 through Lorna Tanghal. During the preliminary investigation, the complainant, respondent Maruyama, submitted the affidavit of her witnesses, namely, Hermogena Santiago, Wilma Setsu and Marilette G. Izumiya and other documentary evidence. In her affidavit, Setsu alleged that the money which was entrusted to the petitioner for delivery to the Philippines belonged to her and her sister Annie Hashimoto, and their mother Hermogena Sanchez-Quicho, who joined respondent Maruyama in her complaint against petitioner Okabe and Tanghal. Respondent Maruyama, likewise, submitted a reply3 to the petitioners counter-affidavit. After the requisite preliminary investigation, 2nd Assistant City Prosecutor Joselito J. Vibandor came out with a resolution dated March 30, 2000, finding probable cause forestafa against the petitioner.4 Attached to the resolution, which was submitted to the city prosecutor for approval, was the Information5 against the petitioner and Maruyamas affidavit-complaint. The city prosecutor approved the resolution and the Information dated March 30, 2000 attached thereto.6 On May 15, 2000, an Information against the petitioner was filed in the Regional Trial Court of Pasay City, docketed as Criminal Case No. 00-0749. The case was raffled to Branch 119 of the court presided by Judge Pedro de Leon Gutierrez.7 The accusatory portion of the Information reads:

That on or about December 12, 1998 in Pasay City, Metro Manila, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused defrauded Cecilia Maruyama and Conchita Quicho, complainant herein, in the following manner, to wit: said accused received in trust from Cecilia Maruyama the amount of Japanese Yen 1141 (sic) with peso equivalent to P3,839,465.00 under obligation to deliver the money to Conchita Quicho at the NAIA International Airport, Pasay City, immediately upon accused arrival from Japan, but herein accused once in possession of the same, did, then and there willfully, unlawfully and feloniously misappropriate and convert to her own personal benefit the said amount, and despite demands accused failed and refused to do so, to the damage and prejudice of the complainants in the aforesaid amount. Contrary to law.8 Appended to the Information was the affidavit-complaint of respondent Maruyama and the resolution of Investigating Prosecutor Vibandor. On May 19, 2000, the trial court issued a warrant for the arrest of the petitioner with a recommended bond of P40,000. On June 15, 2000, the petitioner posted a personal bail bond in the said amount, duly approved by Judge Demetrio B. Macapagal, the Presiding Judge of Branch 79 of the RTC of Quezon City, who forthwith recalled the said warrant. The approved personal bail bond of the petitioner was transmitted to the RTC of Pasig City on June 21, 2000. Upon her request, the petitioner was furnished with a certified copy of the Information, the resolution and the criminal complaint which formed part of the records of the said case. The petitioner left the Philippines for Japan on June 17, 2000 without the trial courts permission, and returned to the Philippines on June 28, 2000. She left the Philippines anew on July 1, 2000, and returned on July 12, 2000. On July 14, 2000, the trial court issued an Order setting the petitioners arraignment and pre-trial at 2:00 p.m. of July 16, 2000. On the same day, the private prosecutor filed an urgent ex parte motion for the issuance of the hold departure order, alleging as follows: 3. It has come to the knowledge of private complainant that there is an impending marriage within the Philippines of either the son or daughter of the above-named accused and that the above-named accusedwho has businesses in Japan, and is presently in Japanwill soon exit Japan and enter the Philippines to precisely attend said wedding; 4. Given [a] the bail was fixed at merely P40,000.00 and [b] the considerable financial capability of the accused, it is a foregone conclusion that the above-named accused will, upon arrest, readily and immediately post bond, and leave for Japanthereby frustrating and rendering inutile the administration of criminal justice in our country. The speed with which accused Teresita Sheila Tanghal Okabe can post bond and leave for Japan effectively evading arraignment and pleathus necessitates the immediate issuance of a Hold Departure Order even before her arrival here in the Philippines;9 The trial court issued an order on the same day, granting the motion of the private prosecutor for the issuance of a hold departure order and ordering the Commission on Immigration and Deportation (CID) to hold and prevent any attempt on the part of the petitioner to depart from the Philippines.10 For her part, the petitioner filed on July 17, 2000 a verified motion for judicial determination of probable cause and to defer proceedings/arraignment, alleging that the only documents appended to the Information submitted by the investigating prosecutor were respondent Maruyamas affidavit-complaint for estafa and the resolution of the investigating

prosecutor; the affidavits of the witnesses of the complainant, the respondents counter-affidavit and the other evidence adduced by the parties were not attached thereto. The petitioner further alleged that the documents submitted by the investigating prosecutor were not enough on which the trial court could base a finding of probable cause for estafaagainst her. She further averred that conformably to the rulings of this Court in Lim v. Felix11 and Roberts, Jr. v. Court of Appeals,12 it behooved the investigating prosecutor to submit the following to the trial court to enable it to determine the presence or absence of probable cause: (a) copies of the affidavits of the witnesses of the complainant; (b) the counter-affidavit of Okabe and those of her witnesses; (c) the transcripts of stenographic notes taken during the preliminary investigation; and, (d) other documents presented during the said investigation. On July 19, 2000, the petitioner filed a Very Urgent Motion To Lift/Recall Hold Departure Order dated July 17, 2000 and/or allow her to regularly travel to Japan alleging, thus: 3. Accused is (sic) widow and the legitimate mother of three (3) children, two (2) of whom are still minors, namely: 3.1. Okabe, Jeffrey-18 years old born on 13 August 1981. 3.2. Okabe, Masatoshi-14 years old and born on 16 October 1985, 3rd year High School student at Hoshikuki, Chiba City, Matsugaoka, High School, residing at Chiba City, Chuo-Ku, Yahagi-cho, 205, Telephone No. 043-224-5804. 3.3. Okabe, Tomoki-13 years old and born on 13 March 1986, 2nd year High School student at Hoshikuki, Chiba City, Matsugaoka, High School, residing at Chiba City, Chuo-Ku, Yahagi-cho, 205, Telephone No. 043-224-5804. 3.4. The accused has to attend the Parents Teachers Association (PTA) at the Hoshikuki High School where her two (2) minor sons aforesaid are presently enrolled and studying because Okabe, Masatoshis graduation will take place on 26 July 2000. 3.5. The two (2) minor children of the accused absolutely depend their support (basic necessities) for foods, clothings, medicines, rentals, schooling and all other expenses for their survival to their legitimate mother who is the accused herein. 3.6. The issuance of the hold departure order (HDO) will impair the inherent custodial rights of the accused as the legitimate mother over these two (2) minor children which is repugnant to law. 3.7. The issuance of the hold departure order (HDO) will unduly restrict the accused to her custodial rights and visitation over her aforesaid minor children who are permanently living in Japan. 3.8. The issuance of the hold departure order (HDO) will unduly deprived (sic) these minor children to their right to obtain education and survival. 4. Accuseds only source of income and livelihood is door-to-door delivery from Japan to the Philippines and vice versa which has been taking place for a very long period of time

and in the process she has been constantly departing from the Philippines on a weekly basis and arriving in Japan on the same frequency, as evidenced by xerox copies of the pages of her Philippine Passports which are hereto attached as Annexes "A," "A-1," "A2" up to "A-30," respectively. To deprive her of this only source of her livelihood to which the aforesaid two (2) minor children are deriving their very survival in a foreign land will (sic) tantamount to oppression rather than prosecution and depriving the said minor sons of their right to live even before trial on the merits of this case that will (sic) tantamount to the destruction of the future of these minor children.13 The private prosecutor opposed the petitioners motions during the hearing on July 21, 2000 which was also the date set for her arraignment. The hearing of the motions as well as the arraignment was reset to 2:00 p.m. of July 26, 2000. On the said date, the petitioner filed a manifestation objecting to her arraignment prior to the resolution of her pending motions. She alleged that her arraignment for the crime charged should not be made a condition for the granting of her motion to recall the hold departure order issued against her. The arraignment of the petitioner was again reset to 2:00 p.m. of August 28, 2000, pending the resolution of her two motions. On August 25, 2000, the petitioner filed a motion for the postponement of her arraignment alleging that, in case the trial court ruled adversely thereon, she would refuse to enter a plea and seek relief from the appellate court. The court denied the petitioners motions on the following grounds: (a) Based on its personal examination and consideration of the Information, the affidavitcomplaint of respondent Maruyama and the resolution of the investigating prosecutor duly approved by the city prosecutor, the court found probable cause for the petitioners arrest. Since the petitioners motion for a determination of probable cause was made after the court had already found probable cause and issued a warrant for the petitioners arrest, and after the latter filed a personal bail bond for her provisional liberty, such motion was a mere surplusage; (b) When the petitioner posted a personal bail bond for her provisional liberty, she thereby waived her right to question the courts finding of the existence of probable cause for her arrest and submitted herself to the jurisdiction of the court, more so when she filed the motion for the lifting of the hold departure order the court issued, and the motion to defer the proceedings and her arraignment; and (c) The hold departure order issued by the trial court was in accord with Supreme Court Circular No. 39-97 dated June 19, 1997, as well as the ruling of this Court in Manotoc, Jr. v. Court of Appeals.14 When the case was called for the petitioners arraignment at 2:00 p.m., on August 28, 2000, she refused to plead.15 Her counsel advised her, in open court, not to enter a plea and, with leave of court, left the courtroom. The court then entered a not guilty plea for the petitioner.16 It also issued an order, on the said date, setting the pre-trial and initial presentation of the evidence of the prosecution at 8:30 a.m. of September 20, 2000.17 The petitioner then filed with the Court of Appeals a petition for certiorari under Rule 65 of the Rules of Court with a plea for a writ of preliminary injunction. The case was docketed as CAG.R. SP No. 60732. The petitioner ascribed the following errors to the trial court: I

RESPONDENT COURT GRAVELY ERRED WHEN IT ISSUED WARRANT OF ARREST DESPITE OF (SIC) LACK OF PROBABLE CAUSE II RESPONDENT COURT HAS VIOLATED THE RIGHT OF THE PETITIONER TO DUE PROCESS III RESPONDENT COURT HAS ALREADY PRE-JUDGED THE CONVICTION OF THE PETITIONER FOR ESTAFA IV RESPONDENT COURT HAS EXHIBITED ITS APPARENT PARTIALITY TOWARDS THE PROSECUTION AND AGAINST THE PETITIONER V RESPONDENT COURT GRAVELY ERRED WHEN IT DENIES (SIC) THE MOTION FOR JUDICIAL DETERMINATION OF PROBABLE CAUSE PURSUANT TO THE DOCTRINE OF ROBERTS, JR. VI RESPONDENT COURT GRAVELY ERRED WHEN IT DENIES (SIC) THE LIFTING/RECALL OF THE HDO AND/OR ALLOWING THE PETITIONER TO TRAVEL TO JAPAN REGULARLY FOR HUMANITARIAN CONSIDERATION VII RESPONDENT COURT COMMITTED GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OF JURISDICTION WHEN IT ISSUED THE QUESTIONED ORDERS18 On January 31, 2001, the CA rendered a Decision19 partially granting the petition in that the assailed order of the trial court denying the petitioners motion to lift/recall the hold departure order was set aside. However, the petitioners motion for reconsideration of the trial courts decision was denied and her petition for the nullification of the August 25, 2000 Order of the respondent judge was dismissed. The CA ruled that by posting bail and praying for reliefs from the trial court, the petitioner waived her right to assail the respondent judges finding of the existence of probable cause. The appellate court cited the ruling of this Court in Cojuangco, Jr. v. Sandiganbayan.20 Thus, the appellate court affirmed the assailed order of the RTC, based on the respondent judges personal examination of respondent Maruyamas affidavit-complaint, the resolution of the investigating prosecutor and the Information approved by the city prosecutor, a finding of probable cause was in order. However, the appellate court allowed the petitioner to travel to Japan under the following conditions:

(1) That petitioner post a bond double the amount of her alleged monetary liability under the Information filed against her, as recommended by the Office of the Solicitor General; (2) That petitioner inform respondent Court of each and all of her travel itinerary prior to leaving the country; (3) That petitioner make periodic reports with respondent Court; (4) That petitioner furnish respondent Court with all the addresses of her possible place of residence, both here and in Japan; and (5) Such other reasonable conditions which respondent Court may deem appropriate under the circumstances.21 The appellate court did not resolve the issue of whether the trial court had prejudged the case and was partial to the prosecution. The decretal portion of the decision of the CA reads: WHEREFORE, premises considered, the instant special civil action for certiorari is hereby PARTIALLY GRANTED insofar as the denial of petitioners Motion to Lift/Recall Hold Departure Order dated 14 July, 2000 and/or Allow the accused to Regularly Travel to Japan is concerned. In all other respect, the same is hereby DENIED. SO ORDERED.22 On March 6, 2001, the petitioner filed a motion for a partial reconsideration of the decision of the CA contending that the appellate court erred in applying the ruling of this court in Cojuangco, Jr. v. Court of Appeals23 instead of Section 26, Rule 114 of the Revised Rules on Criminal Procedure. The petitioner posited that the said rule, which took effect on December 1, 2000, before the court rendered its decision, had superseded the ruling of this Court in the Cojuangco case. However, the appellate court held that Section 26, Rule 114 of the Revised Rules on Criminal Procedure cannot be applied retroactively, because the petitioner had posted bail on June 15, 2000 before the Revised Rules on Criminal Procedure took effect. Hence, the instant petition for review on certiorari for the reversal of the decision and resolution of the CA and praying that after due proceedings, judgment be rendered in her favor, thus: WHEREFORE, it is respectfully prayed of this Honorable Supreme Court that after due proceedings judgment be rendered in favor of the petitioner and against the respondents as follows: (a) GIVING DUE COURSE to the instant petition; (b) ORDERING the REVERSAL and PARTIALLY SETTING ASIDE of the Decision promulgated on 31 January 2001 (Annex "A" hereof) of the Honorable Court of Appeals in CA-G.R. SP No. 60732 as well as its Resolution promulgated on 27 September 2001 (Annex "B" hereof); (c) ORDERING the DISMISSAL of Crim. Case No. 00-0749 for lack of probable cause;

(d) DECLARING the entire proceedings in Crim. Case No. 00-0749 as null and void; (e) ORDERING the private respondents to pay the petitioners the following amount: (i) at least P1,000,000.00 as moral damages; (ii) at least P1,000,000.00 as exemplary damages; (iii) at least P500,000.00 as attorneys fees and for other expenses of litigation. (f) ORDERING the private respondent to pay the costs of this suit. (g) Petitioner further prays for such other reliefs just and equitable under the premises.24 The petitioner asserts that the CA committed the following reversible errors: I THE HONORABLE COURT OF APPEALS MADE A REVERSIBLE ERROR WHEN IT COMPLETELY DISREGARDED THE APPLICATION OF SECTION 26, RULE 114 OF THE REVISED RULES ON CRIMINAL PROCEDURE WHICH TOOK EFFECT ON 01 DECEMBER 2000 WHICH IS FAVORABLE TO THE PETITIONER/ACCUSED. II THE HONORABLE COURT OF APPEALS MADE A REVERSIBLE ERROR IN RULING THAT "WHATEVER INFIRMITY THERE WAS IN THE ISSUANCE OF THE WARRANT OF ARREST, THE SAME WAS CURED WHEN PETITIONER VOLUNTARILY SUBMITTED TO THE RESPONDENT COURTS JURISDICTION WHEN SHE POSTED BAIL AND FILED MOTIONS SEEKING AFFIRMATIVE RELIEF SUCH AS MOTION TO LIFT/RECALL HOLD DEPARTURE ORDER AND TO ALLOW PETITIONER TO TRAVEL REGULARLY TO JAPAN (Last paragraph, Page 9 DECISION dated 31 January 2001)." III THE HONORABLE COURT OF APPEALS MADE A REVERSIBLE ERROR WHEN IT RELIED UPON THE RULING IN THE CASE OF COJUANGCO, JR. VS. SANDIGANBAYAN, [300 SCRA 367 (1998)] WHEN IN FACT SAID RULING IS NOW OBSOLETE AND NO LONGER APPLICABLE. IV THE HONORABLE COURT OF APPEALS MADE A REVERSIBLE ERROR IN RULING THAT RESPONDENT COURT COMPLIED WITH THE CONSTITUTIONAL

REQUIREMENTS ON THE ISSUANCE OF WARRANT OF ARREST WITHOUT PROBABLE CAUSE, WHEN THE RESPONDENT COURT MERELY RELIED ON [THE] (i) COMPLAINT-AFFIDAVIT OF CECILIA MARUYAMA; (ii) RESOLUTION OF THE INVESTIGATING PROSECUTOR; AND (iii) CRIMINAL INFORMATION. V THE HONORABLE COURT OF APPEALS MADE A REVERSIBLE ERROR WHEN IT FAILED TO RULE ON THE PARTIALITY OF THE RESPONDENT JUDGE IN HANDLING THE CASE BELOW WHICH IS VIOLATIVE OF THE PETITIONERS RIGHT TO DUE PROCESS. VI THE FILING OF CRIM. CASE NO. 4297 (MTC, ANGAT, BULACAN) FOR ESTAFA ENTITLED "PEOPLE VS. SHEILA OKABE"; CIVIL CASE NO. 331-M-98 (RTC, MALOLOS, BULACAN) FOR SUM OF MONEY WITH PRELIMINARY ATTACHMENT ENTITLED "CONCHITA SANCHEZ-QUICHO VS. SHEILA TERESITA TANGHAL OKABE"; AND CRIM. CASE NO. 00-07-19 (RTC, PASAY CITY, BRANCH 119) ENTITLED "PEOPLE VS. TERESITA TANGHAL OKABE" CONSTITUTE A VIOLATION OF THE RULE ON NON-FORUM SHOPPING.25 By way of comment, the Office of the Solicitor General refuted the petitioners assigned errors, contending as follows: I The Court of Appeals did not commit a reversible error in not applying Section 26, Rule 114 of the Revised Rules on Criminal Procedure. II The Court of Appeals did not commit a reversible error in ruling that the infirmity, if any, in the issuance by the respondent Judge of the warrant of arrest against petitioner was cured when petitioner voluntarily submitted to the trial courts jurisdiction when she posted bail and filed motions seeking for affirmative reliefs from the trial court, such as the motion to lift/recall Hold Departure Order (HDO) and to allow petitioner to travel regularly to Japan. III The Court of Appeals did not commit a reversible error in applying the ruling in the Cojuangco case. IV The Court of Appeals did not commit a reversible error in finding that respondent Judge complied with the constitutional requirements on the issuance of a warrant of arrest.

V The Court of Appeals did not commit a reversible error when it did not rule on the partiality of the respondent Judge in handling Criminal Case No. 00-0749. VI The Honorable Court of Appeals did not commit a reversible error when it did not rule on petitioners claim of forum shopping.26 The Court shall resolve the assigned errors simultaneously as they are interrelated. The petitioner asserts that the respondent judge could not have determined the existence of probable cause for her arrest solely on the resolution of the investigating prosecutor and the undated affidavit-complaint of respondent Maruyama. She posits that the respondent judge should have ordered the investigating prosecutor to submit the affidavits of the witnesses of respondent Maruyama and the latters documentary evidence, as well as the counter-affidavit of the petitioner and the transcripts of the stenographic notes, if any, taken during the preliminary investigation. The petitioner adds that the respondent judge should have personally reviewed the said documents, conformably to the rulings of this Court in Lim v. Felix,27 Roberts, Jr. v. Court of Appeals28 and Ho v. People,29 before determining the presence or absence of probable cause. She posits that the respondent judge acted with grave abuse of discretion amounting to excess or lack of jurisdiction in denying her motion for a determination of probable cause, and the alternative motion for a dismissal of the case against her for lack of probable cause. The petitioner further asserts that the appellate court erred in affirming the ruling of the respondent judge that, by posting a personal bail bond for her provisional liability and by filing several motions for relief, she thereby voluntarily submitted herself to the jurisdiction of the trial court and waived her right to assail the infirmities that infected the trial courts issuance of the warrant for her arrest. She avers that the appellate courts reliance on the ruling of this Court in Cojuangco, Jr. v. Sandiganbayan30 is misplaced, and submits that the appellate court should have applied Section 26, Rule 114 of the Revised Rules of Court retroactively, as it rendered the ruling of this Court in the Cojuangco, Jr. case obsolete. The Office of the Solicitor General, on the other hand, asserts that the respondent judge did not commit any grave abuse of discretion when he found probable cause against the petitioner for estafa, and thereafter issued a warrant for her arrest. It argues that the respondent judge personally determined the existence of probable cause independently of the certification of the investigating prosecutor, and only after examining the Information, the resolution of the investigating prosecutor, as well as the affidavit-complaint of the private complainant. It asserts that such documents are sufficient on which to anchor a finding of probable cause. It insists that the appellate court correctly applied the ruling of this Court in the Cojuangco, Jr. v. Court of Appeals case, and that the respondent judge complied with both the requirements of the constitution and those set forth in the Rules of Court before issuing the said warrant.31 We agree with the contention of the petitioner that the appellate court erred in not applying Section 26, Rule 114 of the Revised Rules on Criminal Procedure, viz: SEC. 26. Bail not a bar to objections on illegal arrest, lack of or irregular preliminary investigation. An application for or admission to bail shall not bar the accused from

challenging the validity of his arrest or the legality of the warrant issued therefor, or from assailing the regularity or questioning the absence of a preliminary investigation of the charge against him, provided that he raises them before entering his plea. The court shall resolve the matter as early as practicable but not later than the start of the trial of the case. It bears stressing that Section 26, Rule 114 of the Revised Rules on Criminal Procedure is a new one, intended to modify previous rulings of this Court that an application for bail or the admission to bail by the accused shall be considered as a waiver of his right to assail the warrant issued for his arrest on the legalities or irregularities thereon.32 The new rule has reverted to the ruling of this Court in People v. Red.33 The new rule is curative in nature because precisely, it was designed to supply defects and curb evils in procedural rules. Hence, the rules governing curative statutes are applicable. Curative statutes are by their essence retroactive in application.34Besides, procedural rules as a general rule operate retroactively, even without express provisions to that effect, to cases pending at the time of their effectivity, in other words to actions yet undetermined at the time of their effectivity.35 Before the appellate court rendered its decision on January 31, 2001, the Revised Rules on Criminal Procedure was already in effect. It behooved the appellate court to have applied the same in resolving the petitioners petition for certiorari and her motion for partial reconsideration. Moreover, considering the conduct of the petitioner after posting her personal bail bond, it cannot be argued that she waived her right to question the finding of probable cause and to assail the warrant of arrest issued against her by the respondent judge. There must be clear and convincing proof that the petitioner had an actual intention to relinquish her right to question the existence of probable cause.36 When the only proof of intention rests on what a party does, his act should be so manifestly consistent with, and indicative of, an intent to voluntarily and unequivocally relinquish the particular right that no other explanation of his conduct is possible.37 In this case, the records show that a warrant was issued by the respondent judge in Pasay City for the arrest of the petitioner, a resident of Guiguinto, Bulacan. When the petitioner learned of the issuance of the said warrant, she posted a personal bail bond to avert her arrest and secure her provisional liberty. Judge Demetrio B. Macapagal of the RTC of Quezon City approved the bond and issued an order recalling the warrant of arrest against the petitioner. Thus, the posting of a personal bail bond was a matter of imperative necessity to avert her incarceration; it should not be deemed as a waiver of her right to assail her arrest. So this Court ruled in People v. Red:38 The present defendants were arrested towards the end of January, 1929, on the Island and Province of Marinduque by order of the judge of the Court of First Instance of Lucena, Tayabas, at a time when there were no court sessions being held in Marinduque. In view of these circumstances and the number of the accused, it may properly be held that the furnishing of the bond was prompted by the sheer necessity of not remaining in detention, and in no way implied their waiver of any right, such as the summary examination of the case before their detention. That they had no intention of waiving this right is clear from their motion of January 23, 1929, the same day on which they furnished a bond, and the fact that they renewed this petition on February 23, 1929, praying for the stay of their arrest for lack of the summary examination; the first motion being denied by the court on January 24, 1929 (G.R. No. 33708, page 8), and the second remaining undecided, but with an order to have it presented in Boac, Marinduque.

Therefore, the defendants herein cannot be said to have waived the right granted to them by section 13, General Order No. 58, as amended by Act No. 3042.39 Moreover, the next day, or on June 16, 2000, the petitioner, through counsel, received certified true copies of the Information, the resolution of the investigating prosecutor, the affidavitcomplaint of the private complainant, respondent Maruyama, and a certification from the branch clerk of court that only the Information, resolution and affidavit-complaint formed part of the entire records of the case. The next day, June 17, 2000, the petitioner, through counsel, filed a verified motion for judicial determination of probable cause and to defer the proceedings and her arraignment. All the foregoing are inconsistent with a waiver of her right to assail the validity of her arrest and to question the respondent judges determination of the existence of probable cause for her arrest. Neither can the petitioners filing of a motion for the lifting of the hold departure order and for leave to go to Japan be considered a waiver of her right to assail the validity of the arrest warrant issued by the respondent judge. It bears stressing that when the petitioner filed the motion to lift the hold departure order issued against her by the respondent judge, her motion for a determination of probable cause was still unresolved. She sought a lifting of the hold departure order on July 14, 2000 and filed a motion for leave to go to Japan, to give the respondent judge an opportunity to reconsider the said order, preparatory to assailing the same in the appellate court in case her motion was denied. The issue that now comes to fore is whether or not the respondent judge committed a grave abuse of his discretion amounting to excess or lack of jurisdiction in issuing his August 25, 2000 Order. By grave abuse of discretion is meant such patent and gross abuse of discretion as to amount to an evasion of positive duty or a virtual refusal to perform a duty enjoined by law, or to act at all in contemplation of law, as where the power is exercised in an arbitrary and despotic manner by reasons of passion or personal hostility.40 Hence, when the court has jurisdiction over the case, its questioned acts, even if its findings are not correct, would at most constitute errors of law and not abuse of discretion correctible by the extraordinary remedy of certiorari. 41 We agree with the petitioner that before the RTC judge issues a warrant of arrest under Section 6, Rule 112 of the Rules of Court42 in relation to Section 2, Article III of the 1987 Constitution, the judge must make a personal determination of the existence or non-existence of probable cause for the arrest of the accused. The duty to make such determination is personal and exclusive to the issuing judge. He cannot abdicate his duty and rely on the certification of the investigating prosecutor that he had conducted a preliminary investigation in accordance with law and the Rules of Court, as amended, and found probable cause for the filing of the Information. Under Section 1, Rule 112 of the Rules on Criminal Procedure, the investigating prosecutor, in conducting a preliminary investigation of a case cognizable by the RTC, is tasked to determine whether there is sufficient ground to engender a well-founded belief that a crime has been committed and the respondent therein is probably guilty thereof and should be held for trial. A preliminary investigation is for the purpose of securing the innocent against hasty, malicious and oppressive prosecution, and to protect him from an open and public accusation of a crime, from the trouble, expense and anxiety of a public trial.43 If the investigating prosecutor finds probable cause for the filing of the Information against the respondent, he executes a certification at the bottom of the Information that from the evidence

presented, there is a reasonable ground to believe that the offense charged has been committed and that the accused is probably guilty thereof. Such certification of the investigating prosecutor is, by itself, ineffective. It is not binding on the trial court. Nor may the RTC rely on the said certification as basis for a finding of the existence of probable cause for the arrest of the accused.44 In contrast, the task of the presiding judge when the Information is filed with the court is first and foremost to determine the existence or non-existence of probable cause for the arrest of the accused. Probable cause is meant such set of facts and circumstances which would lead a reasonably discreet and prudent man to believe that the offense charged in the Information or any offense included therein has been committed by the person sought to be arrested.45 In determining probable cause, the average man weighs facts and circumstances without resorting to the calibrations of the rules of evidence of which he has no technical knowledge. He relies on common sense.46 A finding of probable cause needs only to rest on evidence showing that more likely than not a crime has been committed and that it was committed by the accused. Probable cause demands more than bare suspicion, it requires less than evidence which would justify conviction.47 The purpose of the mandate of the judge to first determine probable cause for the arrest of the accused is to insulate from the very start those falsely charged of crimes from the tribulations, expenses and anxiety of a public trial: It must be stressed, however, that in these exceptional cases, the Court took the extraordinary step of annulling findings of probable cause either to prevent the misuse of the strong arm of the law or to protect the orderly administration of justice. The constitutional duty of this Court in criminal litigations is not only to acquit the innocent after trial but to insulate, from the start, the innocent from unfounded charges. For the Court is aware of the strains of a criminal accusation and the stresses of litigation which should not be suffered by the clearly innocent. The filing of an unfounded criminal information in court exposes the innocent to severe distress especially when the crime is not bailable. Even an acquittal of the innocent will not fully bleach the dark and deep stains left by a baseless accusation for reputation once tarnished remains tarnished for a long length of time. The expense to establish innocence may also be prohibitive and can be more punishing especially to the poor and the powerless. Innocence ought to be enough and the business of this Court is to shield the innocent from senseless suits right from the start.48 In determining the existence or non-existence of probable cause for the arrest of the accused, the RTC judge may rely on the findings and conclusions in the resolution of the investigating prosecutor finding probable cause for the filing of the Information. After all, as the Court held in Webb v. De Leon,49 the judge just personally reviews the initial determination of the investigating prosecutor finding a probable cause to see if it is supported by substantial evidence.50 However, in determining the existence or non-existence of probable cause for the arrest of the accused, the judge should not rely solely on the said report.51 The judge should consider not only the report of the investigating prosecutor but also the affidavit/affidavits and the documentary evidence of the parties, the counter-affidavit of the accused and his witnesses, as well as the transcript of stenographic notes taken during the preliminary investigation, if any, submitted to the court by the investigating prosecutor upon the filing of the Information.52 Indeed, in Ho v. People,53 this Court held that:

Lastly, it is not required that the complete or entire records of the case during the preliminary investigation be submitted to and examined by the judge. We do not intend to unduly burden trial courts by obliging them to examine the complete records of every case all the time simply for the purpose of ordering the arrest of an accused. What is required, rather, is that the judge must have sufficient supporting documents (such as the complaint, affidavits, counter-affidavits, sworn statements of witnesses or transcripts of stenographic notes, if any) upon which to make his independent judgment or, at the very least, upon which to verify the findings of the prosecutor as to the existence of probable cause. The point is: he cannot rely solely and entirely on the prosecutors recommendation, as Respondent Court did in this case. Although the prosecutor enjoys the legal presumption of regularity in the performance of his official duties and functions, which in turn gives his report the presumption of accuracy, the Constitution, we repeat, commands the judge to personally determine probable cause in the issuance of warrants of arrest. This Court has consistently held that a judge fails in his bounden duty if he relies merely on the certification or the report of the investigating officer. 54 The rulings of this Court are now embedded in Section 8(a), Rule 112 of the Revised Rules on Criminal Procedure which provides that an Information or complaint filed in court shall be supported by the affidavits and counter-affidavits of the parties and their witnesses, together with the other supporting evidence of the resolution: SEC. 8. Records. (a) Records supporting the information or complaint. An information or complaint filed in court shall be supported by the affidavits and counter-affidavits of the parties and their witnesses, together with the other supporting evidence and the resolution on the case. If the judge is able to determine the existence or non-existence of probable cause on the basis of the records submitted by the investigating prosecutor, there would no longer be a need to order the elevation of the rest of the records of the case. However, if the judge finds the records and/or evidence submitted by the investigating prosecutor to be insufficient, he may order the dismissal of the case, or direct the investigating prosecutor either to submit more evidence or to submit the entire records of the preliminary investigation, to enable him to discharge his duty.55 The judge may even call the complainant and his witness to themselves answer the courts probing questions to determine the existence of probable cause.56 The rulings of this Court in Soliven v. Makasiar57 andLim v. Felix58 are now embodied in Section 6, Rule 112 of the Revised Rules on Criminal Procedure, with modifications, viz: SEC. 6. When warrant of arrest may issue. (a) By the Regional Trial Court. Within ten (10) days from the filing of the complaint or information, the judge shall personally evaluate the resolution of the prosecutor and its supporting evidence. He may immediately dismiss the case if the evidence on record clearly fails to establish probable cause. If he finds probable cause, he shall issue a warrant of arrest, or a commitment order if the accused has already been arrested pursuant to a warrant issued by the judge who conducted the preliminary investigation or when the complaint or information was filed pursuant to section 7 of this Rule. In case of doubt on the existence of probable cause, the judge may order the prosecutor to present additional evidence within five (5) days from notice and the issue must be resolved by the court within thirty (30) days from the filing of the complaint of information.

In this case, the investigating prosecutor submitted to the respondent judge only his resolution after his preliminary investigation of the case and the affidavit-complaint of the private complainant, and failed to include the affidavits of the witnesses of the private complainant, and the latters reply affidavit, the counter-affidavit of the petitioner, as well as the evidence adduced by the private complainant as required by case law, and now by Section 8(a), Rule 112 of the Revised Rules on Criminal Procedure. The aforecited affidavits, more specifically the fax message of Lorna Tanghal and the document signed by her covering the amount of US$1,000, are of vital importance, as they would enable the respondent judge to properly determine the existence or non-existence of probable cause. First. When respondent Maruyama handed the money to the petitioner, she did not require the latter to sign a document acknowledging receipt of the amount. The petitioner avers that it is incredible that Maruyama would entrust P3,993,500 in Japanese Yen to her without even requiring her to sign a receipt therefor, especially since respondent Maruyama was not even the owner of the money; Second. The affidavit of Hermogena Santiago, a witness of the respondent, is unreliable, because it is based on information relayed to her by Lorna Tanghal that she (Tanghal) saw the petitioner carrying a Louis Vuitton bag while on board a Mitsubishi L300 van with the petitioner. It appears that Tanghal failed to submit any counter-affidavit to the investigating prosecutor; Third. The affidavit of Marilette G. Izumiya, another witness of the respondent, is also unreliable, as it was based on information relayed to her by Thelma Barbiran, who used to work for the petitioner as a housemaid, that she (Barbiran) had in her possession a fax message from Lorna Tanghal, implicating the petitioner in the crime charged. Barbiran did not execute any affidavit; Fourth. There is no indication in the resolution of the investigating prosecutor that the petitioner received the fax message of Lorna Tanghal; Fifth. The private complainant claims that the petitioner tried to reimburse the P3,993,500 by remitting US$1,000 to her. However, the latter admitted in her affidavit-complaint that the document evidencing the remittance was signed by Lorna Tanghal, not by the petitioner. The petitioner claimed that Lorna Tanghal had to remit US$1,000 to respondent Maruyama because the latter made it appear to Tanghal that the police authorities were about to arrest the petitioner, and Tanghal was impelled to give the amount to respondent Maruyama to avert her arrest and incarceration; Sixth. In her counter-affidavit, the petitioner alleged that respondent Maruyama had no case against her because the crime charged in the latters affidavit-complaint was the same as that filed against her in the Metropolitan Trial Court of Bulacan, which was withdrawn by the complainant herself; Seventh. The investigating prosecutor stated in his resolution that the private complainant established the element of deceit. However, the crime charged against the petitioner as alleged in the Information is estafa with abuse of confidence. In sum, then, we find and so declare that the respondent judge committed a grave abuse of his discretion amounting to excess or lack of jurisdiction in finding probable cause for the petitioners arrest in the absence of copies of the affidavits of the witnesses of the private

complainant and her reply affidavit, the counter-affidavit of the petitioner, and the evidence adduced during the preliminary investigation before the investigating prosecutor. In view of the foregoing disquisitions, there is no more need to resolve the other issues raised by the petitioner. IN LIGHT OF ALL THE FOREGOING, the petition is GRANTED. The assailed decision of the Court of Appeals isREVERSED and SET ASIDE. The assailed Orders dated August 25 and 28, 2000 and the Warrant of Arrest issued by the respondent judge in Criminal Case No. 00-0749 are SET ASIDE. The records are REMANDED to the Regional Trial Court of Pasay City, Branch 119. The respondent judge is hereby DIRECTED to determine the existence or non-existence of probable cause for the arrest of the petitioner based on the complete records, as required under Section 8(a), Rule 112 of the Revised Rules on Criminal Procedure. SO ORDERED. Puno*, Quisumbing**, Austria-Martinez, and Tinga, JJ., concur.

Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. L-23599 September 29, 1967

REYNALDO C. VILLASEOR, petitioner, vs. HON. MAXIMO ABANO, Judge of the Court of First Instance of Marinduque and THE PROVINCIAL FISCAL OF MARINDUQUE, respondents. Maximo Abano for respondents. No appearance for petitioner.

SANCHEZ, J.: The questions presented in this an original petition for certiorari, took root in Criminal Case 2299 (Court of First Instance of Marinduque) for the murder of Boac police sergeant Alfonso Madla, lodged by the Provincial Fiscal against petitioner.1 Petitioner, defendant below, was, on motion, admitted to a P60,000.00-bail. The amount of the bond was, on verbal representation of petitioner's wife, reduced to P40,000.00. On May 29, 1964, petitioner posted a property bond, was set at provisional liberty. Before arraignment on the murder charge, however, respondent Provincial Fiscal amended the information. This time he accused petitioner with "Direct Assault Upon an Agent of a Person in Authority with Murder." On August 7, 1964, respondent judge sua sponte cancelled petitioner's bond, ordered his immediate arrest. On petitioner's motion. to reconsider, respondent judge, on September 9, 1964, after hearing, resolved to admit him to bail provided he puts up a cash bond of P60,000.00. On September 15, 1964, on petitioner's motion that the original bond previously given be reinstated, respondent judge resolved to fix "the bond anew in real property in the amount of P60,000.00, but to be posted only by residents of the province of Marinduque actually staying therein" with properties which "must be in the possession and ownership of said residents for five years." On October 1, 1964, petitioner came to this Court on certiorari, with a prayer for preliminary injunction. He seeks to set aside respondent judge's orders of August 7, September 9 and September 15, 1964; to reinstate the bail bond theretofore approved by respondent judge on May 29, 1964, and for other reliefs. He charges respondent judge having acted without any or in excess of his jurisdiction and with grave abuse of discretion, and with violation of the Constitution and the Rules of Court in issuing the disputed orders.

On October 3, 1964, this Court issued a writ of preliminary injunction upon a P1,000.00bond. We restrained respondents from enforcing the orders in question and from further proceeding with the case. On November 5, 1965, we modified the writ of preliminary injunction; we lifted the portion thereof which prohibited continuation of the proceedings in the case below, Criminal Case 2299, to avoid delay in the prosecution thereof. Upon respondents' separate returns, the case was submitted without argument. 1. We need not pass upon respondent judge's orders of August 7, 1964 cancelling petitioner's bail, and September 9, 1964 admitting the accused anew to cash bail. The August 7, 1964 order was superseded by that of September 9, 1964. This, in turn, was replaced by the last order of September 15, 1964, by virtue of which the cash bond required was reverted back to property bond. The two orders of August 7 and September 9, 1964 thus became functus officio.2 A rule of ancient respectability is that it is not the function of a court of justice to furnish answers to purposeless questions that no longer exist.3 Our inquiry accordingly narrows down to the three-pronged attack levelled by petitioner against the September 15, 1964 order of respondent judge. We propose to discuss them in seriatim. 2. Forefront amongst the three problems is this: Does the P60,000.00-bond fixed by respondent judge transgress the constitutional injunction that "(e)xcessive bail shall not be required"?4 Petitioner's submission is that he is a mere government employee, earning but a monthly salary of P210.00, and the sole breadwinner of a family of five. To be read with the constitutional precept just adverted to is Section 12, Rule 114, Rules of Court, which provides that "the court may, upon good cause shown, either increase or reduce the amount" of the bail, and that "defendant may be committed to custody unless he gives bail in the increased amount he is called upon to furnish." Along with the court's power to grant bail in bailable cases is its discretion to fix the amount thereof, 5 and, as stated, to increase or reduce the same.6 The question of whether bail is excessive "lays with the court to determine." 7 In the matter of bail fixing, courts perforce are to be guided at all times by the purpose for which bail is required. The definition of bail in Section 1, Rule 114, Rules of Court, gives this purpose "the security required and given for the release of a person who is in the custody of the law, that he will appear before any court in which his appearance may be required as stipulated in the bail bond or recognizance." 8 And, in amplification thereof, Section 2 of the same rule states that the condition of the bail is that "defendant shall answer the complaint or information in the court in which it is filed or to which it may be transferred for trial, and after conviction, if the case is appealed to the Court of First Instance upon application supported by an undertaking or bail, that he will, surrender himself in execution of such judgment as the appellate court may render, or that, in case cause, is to be tried anew or remanded for a new trial, he will appear in the court to which it may be remanded and submit himself to the orders and processes thereof." Expressions in varying, language spell out in a general way the principles governing bail fixing. One is that the amount should be high enough to assure the presence of defendant when required but no higher than is reasonably calculated to fulfill this purpose.9 Another is that "the good of the public as well as the rights of the accused,"10 and "the need for a tie to the

jurisdiction and the right to freedom from unnecessary restraint before conviction under the circumstances surrounding each particular accused",11 should all be balanced in one equation. We are not to consider solely the inability of a defendant to secure bail in a certain amount. This circumstance by itself does not make the amount excessive. 12 For, where an accused has no means of his own, no one to bail him out, or none to turn to for premium payments, any amount fixed no matter how small would fall into the category of excessive bail; and, he "would be entitled to be discharged on his recognizance." 13 So it is, that experience has brought forth certain guidelines in bail fixing, which may be summarized as follows: (1) ability of the accused to give bail; (2) nature of the offense; (3) Penalty for the offense charged; (4) character and reputation of the accused; (5) health of the accused; (6) character and strength of the evidence; (7) probability of the accused appearing in trial; (8) forfeiture of other bonds; (9) whether the accused was a fugitive from justice when arrested; and (10) if the accused is under bond for appearance at trial in other cases.14 But, at bottom, in bail fixing, "the principal factor considered, to the determination of which most other factors are directed, is the probability of the appearance of the accused, or of his flight to avoid punishment." 15 Of importance then is the possible penalty that may be meted. Of course penalty depends to a great extent upon the gravity of offense. Here petitioner is charged with a capital offense, direct assault upon an agent of a person in authority with murder. A complex crime, it may call for the imposition of the capital punishment. Then, Circular 47 dated July 5, 1946 of the Department of Justice, reiterated in Circular 48 of July 18, 1963, directed prosecuting attorney's to recommend bail at the rate of P2,000.00 per year of imprisonment, corresponding to the medium period of the penalty prescribed for the offense charged, unless circumstances warrant a higher penalty. The reasonableness of this circular has already received this Court's imprimatur in one case.16 We are unprepared to downgrade this method of computation, what with a compound of reduced peso value and the aggravated crime climate. We see no discernible abuse of discretion, given the facts and the law, when respondent judge fixed petitioner's bail at P60,000.00. 3. Exacting serious consideration is that portion of the disputed order of September 15, 1964, where respondent judge requires of the property bond be posted only by "residents of the province of Marinduque actually staying therein." This question is of first impression. The drive of petitioner's argument is that this condition collides with Section 9, Rule 114, Rules of Court, which in part recites: Sec. 9. Qualification of sureties. The necessary qualifications of sureties to a bail bond shall be as follows: (a) Each of them must be a resident householder or freeholder within the Philippines. xxx xxx xxx

We read this statute to mean that the directive that bondsmen be resident householders or freeholders in the Philippines, is but a minimum requirement. Reason for this is that bondsmen in criminal cases, residing outside of the Philippines, are not within the reach of the processes of its courts. The provision under consideration, however, makes no attempt to cover the whole field of what is necessary for a bondsman before he is allowed to make bonds in the various courts;" nor does it "attempt to take away the inherent right of the court to properly administer its affairs."17 Residence within the country is not the only thing that could be required by the courts; it is not intended to tie up the hands of a judge to approve bail so long as it is offered by a resident householder or freeholder within the Philippines. It is to be treated "as cumulative, rather than exclusive, of the inherent power" of the courts to determine whether bail proffered should be accepted. 18 For, in principle, a court has broad powers essential to its judicial function.19 We look in retrospect at the situation confronting respondent judge. What prompted him to require as condition that petitioner's bondsmen be residents of the province of Marinduque actually staying therein? In his return to the petition before this Court, respondent judge reasons out that it has been his experience that "it is hard to send notices to people outside the province." He explains that the usual procedure of his clerk of court is to send notices by registered mail accompanied by return cards; that when trial comes, the return cards in many instances have not yet been received in court; that when the parties fail to appear; there is no way of knowing whether the notices have been duly received; that he cannot order the confiscation of the bond and the arrest of the accused, because he is not sure whether the bondsmen have been duly notified; that sending telegrams to people outside the province is costly, and the court cannot afford to incur much expenses. The posture taken by respondent judge does not offend the good sense of justice. Bail is given to secure appearance of the accused. If bondsmen reside in far away places, even if within the Philippines, the purpose of bail may be frustrated. There is the insufficiency of the mails as an effective means of communication. And then, there is the problem of complying with the constitutional mandate of speedy trial. If notice to sureties is not served, no trial can be had. For sureties, in legal contemplation, are defendant's mancupators. In the circumstances here obtaining, it would not seem unfair if the judge should require, as he did, that sureties be so situated that court processes could reach them on time. Because, by both the Constitution and the law, sureties should be sufficient.20 And, sureties are deemed sufficient not only when they are of sufficient financial ability. They must also be "of sufficient vigilance to secure the appearance and prevent the absconding of the accused."21 They cannot be said to be of sufficient vigilance to secure defendant's appearance whenever required, if the court should experience difficulty in communicating with them. Here respondent judge only wanted to make sure that when the proper time comes for the court to order the sureties to produce the person of defendant, no undue delay will be incurred. Weighing as heavily against petitioner's case is the fact that a reading of his petition fails of an averment that the requisite exacted that bondsmen be residents of and actually staying in Marinduque would cause him prejudice. The burden of his argument solely that still a condition runs counter to the rules of court. He did not even say that he cannot secure such sureties. On the contrary, suggestion there is in record that he is a former agent of the governor of Marinduque. Implicit in all these is that if error there was in the disputed order of September 15, 1964, petitioner has not shown that it was prejudicial error calling for correction. 22

The situation here presented does not warrant substitution of our judgement for that of our judgment for that of respondent judge's. We are not called upon to strike down respondent judge's order on this point as an abuse of discretion. 4. Also assailed as beyond the power of respondent judge is the requirement that properties to be offered as bond must be "in the possession and ownership of the sureties for at least five years." Respondent judge, in his return, relies on Circular 2, dated January 23, 1964, of the Honorable, the Secretary of Justice, addressed, among others, to Judges of First Instance. That circular recites that it had been brought to the attention of the Department of Justice that in certain provinces, unscrupulous persons who are spurious landowners, have been accepted as sureties. The Secretary then suggested that "(i)t may be a good policy not to accept as bail bonds real properties not covered by certificate of title unless they have been declared for taxation purposes in favor of the person offering them as bond for at least five (5) years." Basically, reason is with this requirement. Its purpose, so the circular states, is to "prevent the commission of frauds in connection with the posting of personal bail bonds and to protect the interests of the Government." Really, if the bondsman is not the owner, bail fails of its purpose, prejudice to the government sets in.1awphl.nt We note, however, that the order of September 15, 1964 spoke of properties in general. It did not exclude properties registered under the Torrens system. A Torrens title is indefeasible. Failure of specificness on the part of respondent judge then could have been a case of oversight. To obviate misunderstanding, we take it upon ourselves to clarify that order. We do say now that the order of September 15, 1964 is to be understood as excluding properties covered by Torrens titles from the requirement that properties to be offered as bond must be "in the possession and ownership of the sureties for at least five years." 5. In the end we say that respondent judge's order of September 15, 1964, as thus clarified, is here confirmed considering the overall environmental circumstances. We are not to be understood as laying down here specifics in bail fixing, bail approval or bail denial. Discretion, indeed, is with the court called upon to rule on the question of bail. We must stress, however, that where conditions imposed upon a defendant seeking bail would amount to a refusal thereof and render nugatory the constitutional right to bail, we will not hesitate to exercise our supervisory powers to provide the required remedy. With the observations heretofore adverted to, we vote to dismiss the petition for certiorari, and to dissolve the writ of preliminary injunction issued herein. Costs against petitioner. So ordered. Concepcion, C.J., Reyes, J.B.L., Dizon, Makalintal, Zaldivar, Castro and Angeles, JJ., concur. Bengzon, J.P., J., is on leave.

Separate Opinions FERNANDO, J., concurring: Candor compels the admission that the writer had to overcome serious doubts and hesitancy before concurring in the dismissal of this petition of certiorari. It may be observed parenthetically that such misgivings do not reflect at all on the ably-written opinion of Justice Sanchez, who was most meticulous in his appraisal of the facts and most sympathetic to the claim for constitutional protection. There are unfortunately circumstances, which, to my mind, militate against the actuation of the lower court whose view on the constitutional right to bail hardly merits the fullest approval. I join the Court, however, in the decision arrived at, in view of the categorical assurance in its opinion express thus: "We are not to be understood as laying down here specifics in bail fixing, bail approval or bail denial. Discretion, indeed, is with the court called upon to rule on the question of bail. We must stress, however, that where conditions imposed upon a defendant seeking bail would amount to a refusal thereof and render nugatory the constitutional right to bail, we will not hesitate to exercise our supervisory powers to provide the required remedy." As noted by former Chief Justice Paras in one of the many opinions in Nava v. Gatmaitan,1 where this Court, in view of the lack of necessary votes, was unable to rule that the suspension of the privilege of the writ of habeas corpus did not carry with it the suspension of the right to bail, fitly categorized such right along with the other rights of the accused as tending "to aid the accused to prove his innocence and obtain acquittal." The then Justice, later Chief Justice, Bengzon, who was with the majority in upholding the continued existence of the right to bail notwithstanding the suspension of the privilege was equally emphatic. Thus: "Give them the assurance that the judiciary, ever mindful of its sacred mission will not, thru faulty cogitation or misplaced devotion, uphold any doubtful claims of Governmental power in diminution of individual rights, but will always cling to the principle uttered long ago by Chief Justice Marshall that when in doubt as to the construction of the Constitution, 'the Courts will favor personal liberty' (Ex parte Burford 3 Cranch [7 U.S.] Law Ed. Book 2 at P. 495)."2 So was the late Justice Tuason: "To the plea that the security of the State would be jeopardized by the release of the defendants on bail, the answer is that the existence of danger is never a justification for courts to tamper with the fundamental rights expressly granted by the Constitution. These rights are immutable, inflexible, yielding to no pressure of convenience, expediency, or the so-called 'judicial statesmanship.' The legislature itself can not infringe them, and no court conscious of its responsibilities and limitations would do so. If the Bill of Rights are incompatible with stable government and a menace to the Nation, let the Constitution be amended, or abolished. It is trite to say that, while the Constitution stands, the courts of justice as the repository of civil liberty are bound to protect and maintain undiluted individual rights."3 I am not insensible to the claim strongly pressed by the prosecuting arm of the government that there has been an abuse of the right to bail and that there are quite a few instances where due to such lapses perpetrators managed to go scot-free. It is indisputable that there is, a great public interest in having malefactors apprehended, thereafter tried, and if found guilty, punished according to law. Equally so, it must not be forgotten that the Constitution stands for the proposition that public welfare is best served if the rights of an accused therein guaranteed are accorded due respect. As in so many cases in public law, there is here a need for the reconciliation of ends desirable in themselves, which, at times, may come into conflict and collision. With all due allowance, however, for the undeniable necessity for more effective law enforcement to deter rampant criminality and with full recognition of what Justice Cardozo

correctly stressed, that "justice though due to the accused is due to the accuser also,"4 with the courts then, as he stressed, having to keep the balance true, the imperative mandate of the Bill of Rights must be followed to the letter. There is, to repeat, comfort in the thought categorically set forth in the opinion of the court, "Where conditions imposed upon a defendant seeking bail would amount to a refusal thereof and render nugatory the constitutional right to bail, we will not hesitate to exercise our supervisory powers to provide the required remedy." That expression of sentiment commands my fullest concurrence. One last point. On its face, the requirement of a P60,000 bail raises a serious question as to whether there is a violation of the constitutional prohibition against excessive bail. The view of Justice Perfecto in Lino v. Fugoso,5 comes to mind: "It is a fact that the twelve detainees joined the workers' strike in a desperate endeavor to secure a decent living wage. They went into strike because with what they were being paid for their daily labor they had not enough to make both ends meet. At the time of their arrest, they were not even earning the insufficient salary or wage against which they were protesting by means of strike. If those persons were not earning enough to live as decent human beings, and at the time of their detention they were not receiving even the miserable pittance they were complaining of, is it not an insulting joke to require them to raise each P12,000 for bail, an amount, which even we, the members of the Supreme Court, occupying the highest ranks in our judicial system, and receiving the highest salary allowed by law to a judicial officer, could not raise with the urgency required by the situation of a man who is deprived of his personal freedom?" What removes the taint of constitutional infirmity is that the bail in this case is not in cash, but a property bond. Considering the rapid increase in value of real estate and the undoubted fact that under the prevailing family relationship, embracing as it does not only the immediate household unit, but distant relations, the probability of an accused languishing in detention even if ultimately proven innocent, is not as great as otherwise it might have been. It is for that reason that I do not deem the amount here excessive and thus violative of a constitutional prescription.

Section 13. All persons, except those charged with offenses punishable by reclusion perpetua when evidence of guilt is strong, shall, before conviction, be bailable by sufficient sureties, or be released on recognizance as may be provided by law. The right to bail shall not be impaired even when the privilege of the writ of habeas corpus is suspended. Excessive bail shall not be required.

SECOND DIVISION

[G.R. No. 129670. February 1, 2000] MANOLET O. LAVIDES, petitioner, vs. HONORABLE COURT OF APPEALS; HON. ROSALINA L. LUNA PISON, Judge Presiding over Branch 107, RTC, Quezon City; and PEOPLE OF THE PHILIPPINES, respondents. DECISION MENDOZA, J.: Petitioner Manolet Lavides was arrested on April 3, 1997 for child abuse under R.A. No. 7610 (an act providing for stronger deterrence and special protection against child abuse, exploitation and discrimination, providing penalties for its violation, and other purposes). His arrest was made without a warrant as a result of an entrapment conducted by the police. It appears that on April 3, 1997, the parents of complainant Lorelie San Miguel reported to the police that their daughter, then 16 years old, had been contacted by petitioner for an assignation that night at petitioners room at the Metropolitan Hotel in Diliman, Quezon City. Apparently, this was not the first time the police received reports of petitioners activities. An entrapment operation was therefore set in motion. At around 8:20 in the evening of April 3, 1997, the police knocked at the door of Room 308 of the Metropolitan Hotel where petitioner was staying. When petitioner opened the door, the police saw him with Lorelie, who was wearing only a t-shirt and an underwear, whereupon they arrested him. Based on the sworn statement of complainant and the affidavits of the arresting officers, which were submitted at the inquest, an information for violation of Art. III, 5(b) of R.A. No. 7610 was filed on April 7, 1997 against petitioner in the Regional Trial Court, Quezon City, where it was docketed as Criminal Case No. Q-9770550. Edp On April 10, 1997, petitioner filed an "Omnibus Motion (1) For Judicial Determination of Probable Cause; (2) For the Immediate Release of the Accused Unlawfully Detained on an Unlawful Warrantless Arrest; and (3) In the Event of Adverse Resolution of the A bove Incident, Herein Accused be Allowed to Bail as a Matter of Right under the Law on Which He is Charged."[1] On April 29, 1997, nine more informations for child abuse were filed against petitioner by the same complainant, Lorelie San Miguel, and by three other minor children, Mary Ann Tardesilla, Jennifer Catarman, and Annalyn Talingting. The cases were docketed as Criminal Case Nos. Q97-70866 to Q-97-70874. In all the cases, it was alleged that, on various dates mentioned in the informations, petitioner had sexual intercourse with complainants who had been "exploited in prostitution and . . . given money [by petitioner] as payment for the said [acts of] sexual intercourse." No bail was recommended. Nonetheless, petitioner filed separate applications for bail in the nine cases. On May 16, 1997, the trial court issued an order resolving petitioners Omnibus Motion, as follows: WHEREFORE, IN VIEW OF THE FOREGOING, this Court finds that:

1. In Crim. Case No. Q-97-70550, there is probable cause to hold the accused under detention, his arrest having been made in accordance with the Rules. He must therefore remain under detention until further order of this Court; 2. The accused is entitled to bail in all the above-entitled case. He is hereby granted the right to post bail in the amount of P80,000.00 for each case or a total of P800,000.00 for all the cases under the following conditions: a) The accused shall not be entitled to a waiver of appearance during the trial of these cases. He shall and must always be present at the hearings of these cases; b) In the event that he shall not be able to do so, his bail bonds shall be automatically cancelled and forfeited, warrants for his arrest shall be immediately issued and the cases shall proceed to trial in absentia; c) The hold-departure Order of this Court dated April 10, 1997 stands; and d) Approval of the bail bonds shall be made only after the arraignment to enable this Court to immediately acquire jurisdiction over the accused; 3. Let these cases be set for arraignment on May 23, 1997 at 8:30 oclock in the morning.[2] On May 20, 1997, petitioner filed a motion to quash the informations against him, except those filed in Criminal Case No. Q-97-70550 or Q-97-70866. Pending resolution of his motion, he asked the trial court to suspend the arraignment scheduled on May 23, 1997.[3] Then on May 22, 1997, he filed a motion in which he prayed that the amounts of bail bonds be reduced to P40,000.00 for each case and that the same be done prior to his arraignment.[4] Misedp On May 23, 1997, the trial court, in separate orders, denied petitioners motions to reduce bail bonds, to quash the informations, and to suspend arraignment. Accordingly, petitioner was arraigned during which he pleaded not guilty to the charges against him and then ordered him released upon posting bail bonds in the total amount of P800,000.00, subject to the conditions in the May 16, 1997 order and the "hold-departure" order of April 10, 1997. The pre-trial conference was set on June 7, 1997. On June 2, 1997, petitioner filed a petition for certiorari (CA-G.R. SP No. 44316) in the Court of Appeals, assailing the trial courts order, dated May 16, 1997, and its two orders, dated May 23, 1997, denying his motion to quash and maintaining the conditions set forth in its order of May 16, 1997, respectively. While the case was pending in the Court of Appeals, two more informations were filed against petitioner, bringing the total number of cases against him to 12, which were all consolidated. On June 30, 1997, the Court of Appeals rendered its decision, the dispositive portion of which reads:

WHEREFORE, considering that the conditions imposed under Nos. 2-a) and 2b),[5] of the May 23 (should be May 16), 1997 Order, are separable, and would not affect the cash bond which petitioner posted for his provisional liberty, with the sole modification that those aforesaid conditions are hereby ANNULLED and SET ASIDE, the May 16, May 23 and May 23, 1997 Orders are MAINTAINED in all other respects.[6] Misoedp The appellate court invalidated the first two conditions imposed in the May 16, 1997 order for the grant of bail to petitioner but ruled that the issue concerning the validity of the condition making arraignment a prerequisite for the approval of petitioners bail bonds to be moot and academic. It noted "that petitioner has posted the cash bonds; that when arraigned, represented by lawyers, he pleaded not guilty to each offense; and that he has already been released from detention." The Court of Appeals thought that the aforesaid conditions in the May 16, 1997 order were contrary to Art. III, 14(2) of the Constitution which provides that "[a]fter arraignment, trial may proceed notwithstanding the absence of the accused provided that he has been duly notified and his failure to appear is unjustifiable." With respect to the denial of petitioners motion to quash the informations against him, the appellate court held that petitioner could not question the same in a petition for certiorari before it, but what he must do was to go to trial and to reiterate the grounds of his motion to quash on appeal should the decision be adverse to him. Hence this petition. Petitioner contends that the Court of Appeals erred[7] __ 1.......In ruling that the condition imposed by respondent Judge that the approval of petitioners bail bonds "shall be made only after his arraignment" is of no moment and has been rendered moot and academic by the fact that he had already posted the bail bonds and had pleaded not guilty to all the offenses; 2.......In not resolving the submission that the arraignment was void not only because it was made under compelling circumstance which left petitioner no option to question the respondent Judges arbitrary action but also because it emanated from a void Order; 3.......In ruling that the denial of petitioners motion to quash may not be impugned in a petition for certiorari; and 4.......In not resolving the legal issue of whether or not petitioner may be validly charged for violation of Section 5(b) of RA No. 7610 under several informations corresponding to the number of alleged acts of child abuse allegedly committed against each private complainant by the petitioner. We will deal with each of these contentions although not in the order in which they are stated by petitioner. First. As already stated, the trial courts order, dated May 16, 1997, imposed four conditions for the grant of bail to petitioner:

a) The accused shall not be entitled to a waiver of appearance during the trial of these cases. He shall and must always be present at the hearings of these cases; b) In the event that he shall not be able to do so, his bail bonds shall be automatically cancelled and forfeited, warrants for his arrest shall be immediately issued and the cases shall proceed to trial in absentia; c) The hold-departure Order of this Court dated April 10, 1997 stands; and Edpmis d) Approval of the bail bonds shall be made only after the arraignment to enable this Court to immediately acquire jurisdiction over the accused; The Court of Appeals declared conditions (a) and (b) invalid but declined to pass upon the validity of condition (d) on the ground that the issue had become moot and academic. Petitioner takes issue with the Court of Appeals with respect to its treatment of condition (d) of the May 16, 1997 order of the trial court which makes petitioners arraignment a prerequisite to the approval of his bail bonds. His contention is that this condition is void and that his arraignment was also invalid because it was held pursuant to such invalid condition. We agree with petitioner that the appellate court should have determined the validity of the conditions imposed in the trial courts order of May 16, 1997 for the grant of bail because petitioners contention is that his arraignment was held in pursuance of these conditions for bail. In requiring that petitioner be first arraigned before he could be granted bail, the trial court apprehended that if petitioner were released on bail he could, by being absent, prevent his early arraignment and thereby delay his trial until the complainants got tired and lost interest in their cases. Hence, to ensure his presence at the arraignment, approval of petitioners bail bonds should be deferred until he could be arraigned. After that, even if petitioner does not appear, trial can proceed as long as he is notified of the date of hearing and his failure to appear is unjustified, since under Art. III, 14(2) of the Constitution, trial in absentia is authorized. This seems to be the theory of the trial court in its May 16, 1997 order conditioning the grant of bail to petitioner on his arraignment. This theory is mistaken. In the first place, as the trial court itself acknowledged, in cases where it is authorized, bail should be granted before arraignment, otherwise the accused may be precluded from filing a motion to quash. For if the information is quashed and the case is dismissed, there would then be no need for the arraignment of the accused. In the second place, the trial court could ensure the presence of petitioner at the arraignment precisely by granting bail and ordering his presence at any stage of the proceedings, such as arraignment. Under Rule 114, 2(b) of the Rules on Criminal Procedure, one of the conditions of bail is that "the accused shall appear before the proper court whenever so required by the court or these Rules," while under Rule 116, 1(b) the presence of the accused at the arraignment is required. On the other hand, to condition the grant of bail to an accused on his arraignment would be to place him in a position where he has to choose between (1) filing a motion to quash and thus delay his release on bail because until his motion to quash can be resolved, his arraignment cannot be held, and (2) foregoing the filing of a motion to quash so that he can be arraigned at once and thereafter be released on bail. These scenarios certainly undermine the accuseds

constitutional right not to be put on trial except upon valid complaint or information sufficient to charge him with a crime and his right to bail.[8] It is the condition in the May 16, 1997 order of the trial court that "approval of the bail bonds shall be made only after arraignment," which the Court of Appeals should instead have declared void. The condition imposed in the trial courts order of May 16, 1997 that the accused cannot waive his appearance at the trial but that he must be present at the hearings of the case is valid and is in accordance with Rule 114. For another condition of bail under Rule 114, 2(c) is that "The failure of the accused to appear at the trial without justification despite due notice to him or his bondsman shall be deemed an express waiver of his right to be present on the date specified in the notice. In such case, trial shall proceed in absentia." Jjsc Art. III, 14(2) of the Constitution authorizing trials in absentia allows the accused to be absent at the trial but not at certain stages of the proceedings, to wit: (a) at arraignment and plea, whether of innocence or of guilt,[9] (b) during trial whenever necessary for identification purposes,[10] and (c) at the promulgation of sentence, unless it is for a light offense, in which case the accused may appear by counsel or representative.[11] At such stages of the proceedings, his presence is required and cannot be waived. As pointed out in Borja v. Mendoza,[12] in an opinion by Justice, later Chief Justice, Enrique Fernando, there can be no trial in absentia unless the accused has been arraigned. Undoubtedly, the trial court knew this. Petitioner could delay the proceedings by absenting himself from the arraignment. But once he is arraigned, trial could proceed even in his absence. So it thought that to ensure petitioners presence at the arraignment, petitioner should be denied bail in the meantime. The fly in the ointment, however, is that such court strategy violates petitioners constitutional rights. Second. Although this condition is invalid, it does not follow that the arraignment of petitioner on May 23, 1997 was also invalid. Contrary to petitioners contention, the arraignment did not emanate from the invalid condition that "approval of the bail bonds shall be made only after the arraignment." Even without such a condition, the arraignment of petitioner could not be omitted. In sum, although the condition for the grant of bail to petitioner is invalid, his arraignment and the subsequent proceedings against him are valid. Third. Petitioner concedes that the rule is that the remedy of an accused whose motion to quash is denied is not to file a petition for certiorari but to proceed to trial without prejudice to his right to reiterate the grounds invoked in his motion to quash during trial on the merits or on appeal if an adverse judgment is rendered against him. However, he argues that this case should be treated as an exception. He contends that the Court of Appeals should not have evaded the issue of whether he should be charged under several informations corresponding to the number of acts of child abuse allegedly committed by him against each of the complainants. In Tano v. Salvador,[13] the Court, while holding that certiorari will not lie from a denial of a motion to quash, nevertheless recognized that there may be cases where there are special circumstances clearly demonstrating the inadequacy of an appeal. In such cases, the accused may resort to the appellate court to raise the issue decided against him. This is such a case. Whether petitioner is liable for just one crime regardless of the number of sexual acts allegedly committed by him and the number of children with whom he had sexual intercourse, or whether each act of intercourse constitutes one crime is a question that bears on the presentation of evidence by either party. It is important to petitioner as well as to the prosecution how many

crimes there are. For instance, if there is only one offense of sexual abuse regardless of the number of children involved, it will not matter much to the prosecution whether it is able to present only one of the complainants. On the other hand, if each act of sexual intercourse with a child constitutes a separate offense, it will matter whether the other children are presented during the trial. Scjj The issue then should have been decided by the Court of Appeals. However, instead of remanding this case to the appellate court for a determination of this issue, we will decide the issue now so that the trial in the court below can proceed without further delay. Petitioners contention is that the 12 informations filed against him allege only one offense of child abuse, regardless of the number of alleged victims (four) and the number of acts of sexual intercourse committed with them (twelve). He argues that the act of sexual intercourse is only a means of committing the offense so that the acts of sexual intercourse/lasciviousness with minors attributed to him should not be subject of separate informations. He cites the affidavits of the alleged victims which show that their involvement with him constitutes an "unbroken chain of events," i.e., the first victim was the one who introduced the second to petitioner and so on. Petitioner says that child abuse is similar to the crime of large-scale illegal recruitment where there is only a single offense regardless of the number of workers illegally recruited on different occasions. In the alternative, he contends that, at the most, only four informations, corresponding to the number of alleged child victims, can be filed against him. Art. III, 5 of R.A. No. 7160 under which petitioner is being prosecuted, provides: Sec. 5 Child Prostitution and Other Sexual Abuse. __ Children, whether male or female, who for money, profit, or any other consideration or due to the coercion or influence of any adult, syndicate or group, indulge in sexual intercourse or lascivious conduct, are deemed to be children exploited in prostitution and other sexual abuse. The penalty of reclusion temporal in its medium period to reclusion perpetua shall be imposed upon the following: .... (b) Those who commit the act of sexual intercourse or lascivious conduct with a child exploited in prostitution or subjected to other sexual abuse. The elements of the offense are as follows: (1) the accused commits the act of sexual intercourse or lascivious conduct; (2) that said act is performed with a child exploited in prostitution or subjected to other sexual abuse; and (3) the child,[14] whether male or female, is or is deemed under 18 years of age. Exploitation in prostitution or other sexual abuse occurs when the child indulges in sexual intercourse or lascivious conduct (a) for money, profit, or any other consideration; or (b) under the coercion or influence of any adult, syndicate, or group. Each incident of sexual intercourse and lascivious act with a child under the circumstances mentioned in Art. III, 5 of R.A. No. 7160 is thus a separate and distinct offense. The offense is similar to rape or act of lasciviousness under the Revised Penal Code in which each act of rape or lascivious conduct should be the subject of a separate information. This conclusion is confirmed by Art. III, 5(b) of R.A. No. 7160, which provides:

[t]hat when the victim is under twelve (12) years of age, the perpetrators shall be prosecuted under Article 335, paragraph 3, for rape and Article 336 of Act No. 3815, as amended, the Revised Penal Code, for rape or lascivious conduct, as the case may be: Provided, That the penalty for lascivious conduct when the victim is under twelve (12) years of age shall be reclusion temporal in its medium period; WHEREFORE, the decision of the Court of Appeals is SET ASIDE and another one is RENDERED declaring the orders dated May 16, 1997 and May 23, 1997 of the Regional Trial Court, Branch 107, Quezon City to be valid, with the exception of condition (d) in the second paragraph of the order of May 16, 1997 (making arraignment a prerequisite to the grant of bail to petitioner), which is hereby declared void. SO ORDERED. Sjcj

[G.R. No. 148468. January 28, 2003]

ATTY. EDWARD SERAPIO, petitioner, vs. SANDIGANBAYAN (THIRD DIVISION), PEOPLE OF THE PHILIPPINES, and PHILIPPINE NATIONAL POLICE DIRECTOR-GENERAL LEANDRO MENDOZA, respondents.

[G.R. No. 148769. January 28, 2003]

EDWARD S. SERAPIO, petitioner, vs. HONORABLE SANDIGANBAYAN and PEOPLE OF THE PHILIPPINES, respondents.

[G.R. No. 149116. January 28, 2003]

EDWARD S. SERAPIO, petitioner, vs. HONORABLE SANDIGANBAYAN (THIRD DIVISION) and PEOPLE OF THE PHILIPPINES,respondents. DECISION CALLEJO, SR., J.: Before the Court are two petitions for certiorari filed by petitioner Edward Serapio, assailing the resolutions of the Third Division of the Sandiganbayan denying his petition for bail, motion for a reinvestigation and motion to quash, and a petition for habeas corpus, all in relation to Criminal Case No. 26558 for plunder wherein petitioner is one of the accused together with former President Joseph E. Estrada, Jose Jinggoy P. Estrada and several others. The records show that petitioner was a member of the Board of Trustees and the Legal Counsel of the Erap Muslim Youth Foundation, a non-stock, non-profit foundation established in February 2000 ostensibly for the purpose of providing educational opportunities for the poor and underprivileged but deserving Muslim youth and students, and support to research and advance studies of young Muslim educators and scientists. Sometime in April 2000, petitioner, as trustee of the Foundation, received on its behalf a donation in the amount of Two Hundred Million Pesos (P200 Million) from Ilocos Sur Governor Luis Chavit Singson through the latters assistant Mrs. Yolanda Ricaforte. Petitioner received the donation and turned over the said amount to the Foundations treasurer who later deposited it in the Foundations account with the Equitable PCI Bank. In the latter part of the year 2000, Gov. Singson publicly accused then President Joseph E. Estrada and his cohorts of engaging in several illegal activities, including its operation on the illegal numbers game known as jueteng. This triggered the filing with the Office of the Ombudsman of several criminal complaints against Joseph Estrada, Jinggoy Estrada and petitioner, together with other persons. Among such complaints were: Volunteers Against

Crime and Corruption, versus Joseph Ejercito Estrada, Edward Serapio, et al., docketed as OMB Crim. Case No. 0-00-1754; Graft Free Philippines Foundation, Inc., versus Joseph Ejercito Estrada, Edward Serapio, et al., docketed as OMB Crim. Case No. 0-00-1755; and Leonardo De Vera, Romeo T. Capulong and Dennis B. Funa, versus Joseph Estrada, Yolanda Ricaforte, Edward Serapio, Raul De Guzman, Danilo Reyes and Mila Reforma, docketed as OMB Crim. Case No. 0-00-1757. Subsequently, petitioner filed his Counter-Affidavit dated February 21, 2001. The other respondents likewise filed their respective counter-affidavits. The Office of the Ombudsman conducted a preliminary investigation of the complaints and on April 4, 2001, issued a joint resolution recommending, inter alia, that Joseph Estrada, petitioner and several others be charged with the criminal offense of plunder. On April 4, 2001, the Ombudsman filed with the Sandiganbayan several Informations against former President Estrada, who earlier had resigned from his post as President of the Republic of the Philippines. One of these Informations, docketed as Criminal Case No. 26558, charged Joseph Estrada with plunder. On April 18, 2001, the Ombudsman filed an amended Information in said case charging Estrada and several co-accused, including petitioner, with said crime. No bail was recommended for the provisional release of all the accused, including petitioner. The case was raffled to a special division which was subsequently created by the Supreme Court. The amended Information reads: That during the period from June, 1998 to January, 2001, in the Philippines, and within the jurisdiction of this Honorable Court, accused Joseph Ejercito Estrada, THEN A PUBLIC OFFICER, BEING THEN THE PRESIDENT OF THE REPUBLIC OF THE PHILIPPINES, by himself AND/OR in CONNIVANCE/CONSPIRACY with his co-accused, WHO ARE MEMBERS OF HIS FAMILY, RELATIVES BY AFFINITY OR CONSANGUINITY, BUSINESS ASSOCIATES, SUBORDINATES AND/OR OTHER PERSONS, BY TAKING UNDUE ADVANTAGE OF HIS OFFICIAL POSITION, AUTHORITY, RELATIONSHIP, CONNECTION OR INFLUENCE, did then and there wilfully, unlawfully and criminally amass, accumulate and acquire BY HIMSELF, DIRECTLY OR INDIRECTLY, ill-gotten wealth in the aggregate amount OR TOTAL VALUE of FOUR BILLION NINETY SEVEN MILLION EIGHT HUNDRED FOUR THOUSAND ONE HUNDRED SEVENTY THREE PESOS AND SEVENTEEN CENTAVOS [P4,097,804,173.17], more or less, THEREBY UNJUSTLY ENRICHING HIMSELF OR THEMSELVES AT THE EXPENSE AND TO THE DAMAGE OF THE FILIPINO PEOPLE AND THE REPUBLIC OF THE PHILIPPINES, through ANY OR A combination OR A series of overt OR criminal acts, OR SIMILAR SCHEMES OR MEANS, described as follows: (a) by receiving OR collecting, directly or indirectly, on SEVERAL INSTANCES, MONEY IN THE AGGREGATE AMOUNT OF FIVE HUNDRED FORTY-FIVE MILLION PESOS (P545,000,000.00), MORE OR LESS, FROM ILLEGAL GAMBLING IN THE FORM OF GIFT, SHARE, PERCENTAGE, KICKBACK OR ANY FORM OF PECUNIARY BENEFIT, BY HIMSELF AND/OR in connivance with co-accused CHARLIE ATONG ANG, Jose Jinggoy Estrada, Yolanda T. Ricaforte, Edward Serapio, AND JOHN DOES AND JANE DOES, in consideration OF TOLERATION OR PROTECTION OF ILLEGAL GAMBLING; by DIVERTING, RECEIVING, misappropriating, converting OR misusing DIRECTLY OR INDIRECTLY, for HIS OR THEIR PERSONAL gain and benefit public fund in the amount of ONE HUNDRED THIRTY MILLION PESOS (P130,000,000.00), more or less, representing a portion of the TWO HUNDRED MILLION PESOS [P200,000,000.00]) tobacco excise tax share allocated for the

(b)

Province of Ilocos Sur under R.A. No. 7171, BY HIMSELF AND/OR in CONNIVANCE with co-accused Charlie Atong Ang, Alma Alfaro, JOHN DOE a.k.a. Eleuterio Tan OR Eleuterio Ramos Tan or Mr. Uy, and Jane Doe a.k.a. Delia Rajas, AND OTHER JOHN DOES AND JANE DOES; (c) by directing, ordering and compelling FOR HIS PERSONAL GAIN AND BENEFIT, the Government Service Insurance System (GSIS) TO PURCHASE, 351,878,000 SHARES OF STOCKS, MORE OR LESS, and the Social Security System (SSS), 329,855,000 SHARES OF STOCK, MORE OR LESS, OF THE BELLE CORPORATION IN THE AMOUNT OF MORE OR LESS ONE BILLION ONE HUNDRED TWO MILLION NINE HUNDRED SIXTY FIVE THOUSAND SIX HUNDERED SEVEN PESOS AND FIFTY CENTAVOS [P1,102,965,607.50] AND MORE OR LESS SEVEN HUNDRED FORTY FOUR MILLION SIX HUNDRED TWELVE THOUSAND AND FOUR HUNDRED FIFTY PESOS [P744,612,450.00], RESPECTIVELY, OR A TOTAL OR MORE OR LESS ONE BILLION EIGHT HUNDRED FORTY SEVEN MILLION FIVE HUNDRED SEVENTY EIGHT THOUSAND FIFTY SEVEN PESOS AND FIFTY CENTAVOS [P1,847,578,057.50]; AND BY COLLECTING OR RECEIVING, DIRECTLY OR INDIRECTLY, BY HIMSELF AND/OR IN CONNIVANCE WITH JOHN DOES AND JANE DOES, COMMISSIONS OR PERCENTAGES OF SHARES OF STOCK IN THE AMOUNT OF ONE HUNDRED EIGHTY NINE MILLION SEVEN HUNDRED THOUSAND PESOS [189,700,000.00] MORE OR LESS, FROM THE BELLE CORPORATION WHICH BECAME PART OF THE DEPOSIT IN THE EQUITABLE-PCI BANK UNDER THE ACCOUNT NAME JOSE VELARDE; by unjustly enriching himself FROM COMMISSIONS, GIFTS, SHARES, PERCENTAGES, KICKBACKS, OR ANY FORM OF PECUNIARY BENEFITS, IN CONNIVANCE WITH JOHN DOES AND JANE DOES, the amount of MORE OR LESS THREE BILLION TWO HUNDRED THIRTY THREE MILLION ONE HUNDRED FOUR THOUSAND ONE HUNDRED SEVENTY THREE PESOS AND SEVENTEEN CENTAVOS [P3,233,104,173.17] AND DEPOSITING THE SAME UNDER HIS ACCOUNT NAME JOSE VELARDE AT THE EQUITABLE-PCI BANK.

(d)

CONTRARY TO LAW.[1] On April 5, 2001, petitioner obtained a copy of the Ombudsmans Joint Resolution finding probable cause against him for plunder. The next day, April 6, 2001, he filed with the Office of the Ombudsman a Motion for Reconsideration and/or Reinvestigation.[2] Petitioner likewise filed on said date, this time with the Sandiganbayan, an Urgent Omnibus Motion: (a) To Hold in Abeyance the Issuance of Warrant of Arrest and Further Proceedings; (b) To Conduct a Determination of Probable Cause; (c) For Leave to File Accuseds Motion for Reconsideration and/or Reinvestigation; and (d) To Direct the Ombudsman to Conduct a Reinvestigation of the Charges against accused Edward Serapio.[3] On April 10, 2001, the Ombudsman issued an order denying petitioners motion for reconsideration and/or reinvestigation on the ground of lack of jurisdiction since the amended Information charging petitioner with plunder had already been filed with the Sandiganbayan.[4] In a parallel development, the Sandiganbayan issued a Resolution on April 25, 2001 in Criminal Case No. 26558 finding probable cause to justify the issuance of warrants of arrest for the accused, including petitioner. Accordingly, the Sandiganbayan issued an Order on the

same date for the arrest of petitioner.[5] When apprised of said order, petitioner voluntarily surrendered at 9:45 p.m. on the same day to Philippine National Police Chief Gen. Leandro Mendoza. Petitioner has since been detained at Camp Crame for said charge. The Sandiganbayan set the arraignment of the accused, including petitioner, in Criminal Case No. 26558 on June 27, 2001. In the meantime, on April 27, 2001, petitioner filed with the Sandiganbayan an Urgent Petition for Bail which was set for hearing on May 4, 2001. [6] For his part, petitioners co-accused Jose Jinggoy Estrada filed on April 20, 2001 a Very Urgent Omnibus Motion alleging that he was entitled to bail as a matter of right. During the hearing on May 4, 2001 on petitioners Urgent Petition for Bail, the prosecution moved for the resetting of the arraignment of the accused earlier than the June 27, 2001 schedule. However, the Sandiganbayan denied the motion of the prosecution and issued an order declaring that the petition for bail can and should be heard before petitioners arraignment on June 27, 2001 and even before the other accused in Criminal Case No. 26558 filed their respective petitions for bail. Accordingly, the Sandiganbayan set the hearing for the reception of evidence on petitioners petition for bail on May 21 to 25, 2001. On May 17, 2001, four days before the hearing on petitioners petition for bail, the Ombudsman filed an urgent motion for early arraignment of Joseph Estrada, Jinggoy Estrada and petitioner and a motion for joint bail hearings of Joseph Estrada, Jinggoy Estrada and petitioner. The following day, petitioner filed a manifestation questioning the propriety of including Joseph Estrada and Jinggoy Estrada in the hearing on his (petitioners) petition for bail. The Sandiganbayan issued a Resolution on May 18, 2001 resetting the hearings on petitioners petition for bail to June 18 to 28, 2001 to enable the court to resolve the prosecutions pending motions as well as petitioners motion that his petition for bail be heard as early as possible, which motion the prosecution opposed. On May 31, 2001, the Sandiganbayan issued a Resolution denying petitioners April 6, 2001 Urgent Omnibus Motion. The court ruled that the issues posed by petitioner had already been resolved in its April 25, 2001 Resolution finding probable cause to hold petitioner and his co-accused for trial.[7] Petitioner filed a motion for reconsideration of the said May 31, 2001 Resolution. On June 1, 2001, the Sandiganbayan issued a resolution requiring the attendance of petitioner as well as all the other accused in Criminal Case No. 26558 during the hearings on the petitions for bail under pain of waiver of cross-examination. The Sandiganbayan, citing its inherent powers to proceed with the trial of the case in the manner it determines best conducive to orderly proceedings and speedy termination of the case, directed the other accused to participate in the said bail hearing considering that under Section 8, Rule 114 of the Revised Rules of Court, whatever evidence is adduced during the bail hearing shall be considered automatically reproduced at the trial.[8] However, instead of proceeding with the bail hearing set by it on June 18, 2001, the Sandiganbayan issued an Order on June 15, 2001 canceling the said bail hearing due to pending incidents yet to be resolved and reset anew the hearing to June 26, 2001.[9] On the eve of said hearing, the Sandiganbayan issued a resolution denying petitioners motion for reconsideration of its May 31, 2001 Resolution. The bail hearing on June 26, 2001 did not again proceed because on said date petitioner filed with the Sandiganbayan a motion to quash the amended Information on the grounds that as against him, the amended Information does not allege a combination or series of overt or criminal acts constitutive of plunder; as

against him, the amended Information does not allege a pattern of criminal acts indicative of an overall unlawful scheme or conspiracy; the money alleged in paragraph (a) of the amended Information to have been illegally received or collected does not constitute ill-gotten wealth as defined in Section 1(d) of Republic Act No. 7080; and the amended Information charges him of bribery and illegal gambling.[10] By way of riposte, the prosecution objected to the holding of bail hearing until petitioner agreed to withdraw his motion to quash. The prosecution contended that petitioners motion to quash the amended Information was antithetical to his petition for bail. The Sandiganbayan reset the arraignment of accused and the hearing on the petition for bail of petitioner in Criminal Case No. 26558 for July 10, 2001 to enable it to resolve the pending incidents and the motion to quash of petitioner. However, even before the Sandiganbayan could resolve the pending motions of petitioner and the prosecution, petitioner filed with this Court on June 29, 2001 a Petition for Habeas Corpus and Certiorari, docketed as G.R. No. 148468, praying that the Court declare void the questioned orders, resolutions and actions of the Sandiganbayan on his claim that he was thereby effectively denied of his right to due process. Petitioner likewise prayed for the issuance of a writ ofhabeas corpus; that the People be declared to have waived their right to present evidence in opposition to his petition for bail; and, premised on the failure of the People to adduce strong evidence of petitioners guilt of plunder, that he be granted provisional liberty on bail after due proceedings.[11] Meanwhile, on June 28, 2001, Jose Jinggoy Estrada filed with the Sandiganbayan a motion praying that said court resolve his motion to fix his bail. On July 9, 2001, the Sandiganbayan issued a Resolution denying petitioners motion to quash the amended Information. Petitioner, through counsel, received on said date a copy of said resolution.[12] The motion to fix bail filed by Jose Jinggoy Estrada was also resolved by the Sandiganbayan. On July 10, 2001, just before his arraignment in Criminal Case No. 26558, petitioner manifested to the Sandiganbayan that he was going to file a motion for reconsideration of the July 9, 2001 Resolution denying his motion to quash and for the deferment of his arraignment. The Sandiganbayan, however, declared that there was no provision in the Rules of Court or in the Sandiganbayans rules granting the right to petitioner to file a motion for the reconsideration of an interlocutory order issued by it and ordered petitioner to orally argue his motion for reconsideration. When petitioner refused, the Sandiganbayan proceeded with his arraignment. Petitioner refused to plead, impelling the court to enter a plea of not guilty for him. On July 20, 2001, petitioner filed with the Court a Petition for Certiorari, docketed as G.R. No. 148769, alleging that the Sandiganbayan acted without or in excess of jurisdiction or with grave abuse of discretion amounting to lack or excess of jurisdiction in issuing its July 9, 2001 Resolution denying his motion to quash, notwithstanding the fact that material inculpatory allegations of the amended Information against him do not constitute the crime of plunder; and that he is charged, under the said amended Information, for more than one offense. Jose Jinggoy Estrada likewise filed petition for certiorari with the Court docketed as G.R. No. 148965 for the nullification of a resolution of the Sandiganbayan denying his motion to fix bail. On August 9, 2001, petitioner filed with the Court another Petition for Certiorari, docketed as G.R. No. 149116, assailing the Sandiganbayans Resolution dated 31 May 2001 which denied his April 6, 2001 Urgent Omnibus Motion and its June 25, 2001 Resolution denying his motion for reconsideration of its May 31, 2001 Resolution.

Re: G.R. No. 148769

Petitioner avers that: THE SANDIGANBAYAN ACTED WITHOUT OR IN EXCESS OF JURISDICTION OR WITH GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION, IN DENYING PETITIONER SERAPIOS MOTION TO QUASH NOTWITHSTANDING THAT I THE FACTS ALLEGED IN THE AMENDED INFORMATION AS AGAINST PETITIONER SERAPIO DO NOT CONSTITUTE THE CRIME OF PLUNDER. A. The Amended Information, as against petitioner Serapio, does not allege a combination or series of overt or criminal acts constitutive of plunder. B. The Amended Information, as against petitioner Serapio, does not allege a pattern of criminal acts indicative of an overall unlawful scheme or conspiracy. C. The money described in paragraph (a) of the Amended Information and alleged to have been illegally received or collected does not constitute ill-gotten wealth as defined in Section 1(d), Republic Act No. 7080, as amended. II THE AMENDED INFORMATION CHARGES MORE THAN ONE OFFENSE.[13] Petitioner asserts that, on the face of the amended Information, he is charged with plunder only in paragraph (a) which reads: (a) by receiving OR collecting, directly or indirectly, on SEVERAL INSTANCES, MONEY IN THE AGGREGATE AMOUNT OF FIVE HUNDRED FORTY-FIVE MILLION PESOS (P545,000,000.00), MORE OR LESS, FROM ILLEGAL GAMBLING IN THE FORM OF GIFT, SHARE, PERCENTAGE, KICKBACK OR ANY FORM OF PECUNIARY BENEFIT, BY HIMSELF AND/OR in connivance with co-accused CHARLIE ATONG ANG, Jose Jinggoy Estrada, Yolanda T. Ricaforte, Edward Serapio, AND JOHN DOES AND JANE DOES, in consideration OF TOLERATION OR PROTECTION OF ILLEGAL GAMBLING;[14]

Petitioner asserts that there is no allegation in paragraph (a) of the amended Information of a combination or series of overt or criminal acts constituting plunder as described in Section 1(d) of R.A. 7080 as amended. Neither does the amended Information allege a pattern of criminal acts. He avers that his single act of toleration or protection of illegal gambling impelled by a single criminal resolution does not constitute the requisite combination or series of acts for plunder. He further claims that the consideration consisting of gifts, percentages or kickbacks in furtherance of said resolution turned over to and received by former President Joseph E. Estrada on several occasions does not cure the defect in the amended information. Petitioner insists that on the face of the amended Information he is charged only with bribery or illegal gambling and not of plunder. Petitioner argues that the P540 million which forms part of the P4,097,804,173.17 amassed by former President Joseph E. Estrada in confabulation with his co-accused is not ill-gotten wealth as defined in Section 1(d) of R.A. 7080. We do not agree with petitioner. Section 6, Rule 110 of the Revised Rules of Criminal Procedure provides that:

Sec. 6. Sufficiency of complaint or information. A complaint or information is sufficient if it states the name of the accused, the designation of the offense given by the statute; the acts or omissions complained of as constituting the offense; the name of the offended party; the approximate date of the commission of the offense; and the place where the offense was committed. When the offense was committed by more than one person, all of them shall be included in the complaint or information.[15] The acts or omissions complained or must be alleged in such form as is sufficient to enable a person of common understanding to know what offense is intended to be charged and enable the court to know the proper judgment. The Information must allege clearly and accurately the elements of the crime charged. What facts and circumstances are necessary to be included therein must be determined by reference to the definition and elements of the specific crimes. The purpose of the requirement of alleging all the elements of the crime in the Information is to inform an accused of the nature of the accusation against him so as to enable him to suitably prepare for his defense.[16] Another purpose is to enable accused, if found guilty, to plead his conviction in a subsequent prosecution for the same offense. [17] The use of derivatives or synonyms or allegations of basic facts constituting the offense charged is sufficient.[18] In this case, the amended Information specifically alleges that all the accused, including petitioner, connived and conspired with former President Joseph E. Estrada to commit plunder through any or a combination or a series of overt or criminal acts or similar schemes or means. And in paragraph (a) of the amended Information, petitioner and his co-accused are charged with receiving or collecting, directly or indirectly, on several instances money in the aggregate amount of P545,000,000.00. In Jose Jinggoy Estrada vs. Sandiganbayan (Third Division), et al.,[19] we held that the word series is synonymous with the clause on several instances; it refers to a repetition of the same predicate act in any of the items in Section 1(d) of the law. We further held that the word combination contemplates the commission of at least any two different predicate acts in any of the said items. We ruled that plainly, subparagraph (a) of the amended information charges accused therein, including petitioner, with plunder committed by a series of the same predicate act under Section 1(d)(2) of the law and that: x x x Sub-paragraph (a) alleged the predicate act of receiving, on several instances, money from illegal gambling, in consideration of toleration or protection of illegal gambling, and expressly names petitioner as one of those who conspired with former President Estrada in committing the offense. This predicate act corresponds with the offense described in item [2] of the enumeration in Section 1(d) of R.A. No. 7080. x x x.[20] It is not necessary to allege in the amended Information a pattern of overt or criminal acts indicative of the overall unlawful scheme or conspiracy because as Section 3 of R.A. 7080 specifically provides, the same is evidentiary and the general rule is that matters of evidence need not be alleged in the Information.[21] The Court also ruled in Jose Jinggoy Estrada vs. Sandiganbayan[22] that the aggregate amount of P4,097,804,173.17 inclusive of the P545 million alleged in paragraph (a) of the amended information is ill-gotten wealth as contemplated in Section 1, paragraph 1(d) of Republic Act 7080, as amended, and that all the accused in paragraph (a) to (d) of the amended information conspired and confederated with former President Estrada to enable the latter to amass, accumulate or acquire ill-gotten wealth in the aggregate amount ofP4,097,804,173.17.

Under the amended Information, all the accused, including petitioner, are charged of having conspired and confabulated together in committing plunder. When two or more persons conspire to commit a crime, each is responsible for all the acts of others. In contemplation of law, the act of the conspirator is the act of each of them. [23] Conspirators are one man, they breathe one breath, they speak one voice, they wield one arm and the law says that the acts, words and declarations of each, while in the pursuit of the common design, are the acts, words and declarations of all.[24] Petitioner asserts that he is charged under the amended Information of bribery and illegal gambling and others. The Sandiganbayan, for its part, held that petitioner is not charged with the predicate acts of bribery and illegal gambling but is charged only with one crime that of plunder: THE ISSUE OF WHETHER OR NOT THE INFORMATION CHARGES MORE THAN ONE OFFENSE According to the accused Estradas and Edward Serapio the information charges more than one offense, namely, bribery (Article 210 of the Revised Penal Code), malversation of public funds or property (Article 217, Revised Penal Code) and violations of Sec. 3(e) of Republic Act (RA No. 3019) and Section 7(d) of RA 6713. This contention is patently unmeritorious. The acts alleged in the information are not charged as separate offenses but as predicate acts of the crime of plunder. It should be stressed that the Anti-Plunder law specifically Section 1(d) thereof does not make any express reference to any specific provision of laws, other than R.A. No. 7080, as amended, which coincidentally may penalize as a separate crime any of the overt or criminal acts enumerated therein. The said acts which form part of the combination or series of act are described in their generic sense. Thus, aside from malversation of public funds, the law also uses the generic terms misappropriation, conversion or misuse of said fund. The fact that the acts involved may likewise be penalized under other laws is incidental. The said acts are mentioned only as predicate acts of the crime of plunder and the allegations relative thereto are not to be taken or to be understood as allegations charging separate criminal offenses punished under the Revised Penal Code, the Anti-Graft and Corrupt Practices Act and Code of Conduct and Ethical Standards for Public Officials and Employees.[25] This Court agrees with the Sandiganbayan. It is clear on the face of the amended Information that petitioner and his co-accused are charged only with one crime of plunder and not with the predicate acts or crimes of plunder. It bears stressing that the predicate acts merely constitute acts of plunder and are not crimes separate and independent of the crime of plunder. Resultantly then, the petition is dismissed.

Re: G.R. No. 149116 Petitioner assails the May 31, 2001 Joint Resolution of the Sandiganbayan denying his April 4, 2001 Urgent Omnibus Motion contending that:

GROUNDS FOR THE PETITION THE SANDIGANBAYAN ACTED WITHOUT OR IN EXCESS OF JURISDICTION OR WITH GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION IN SUMMARILY DENYING PETITIONER SERAPIOS URGENT OMNIBUS MOTION AND MOTION FOR RECONSIDERATION (RE: RESOLUTION DATED 31 MAY 2001), NOTWITHSTANDING THAT THE OMBUDSMAN HAD TOTALLY DISREGARDED EXCULPATORY EVIDENCE AND COMMITTED GRAVE AND MANIFEST ERRORS OF LAW SERIOUSLY PREJUDICIAL TO THE RIGHTS AND INTERESTS OF PETITIONER SERAPIO, AND THERE IS NO PROBABLE CAUSE TO SUPPORT AN INDICTMENT FOR PLUNDER AS AGAINST PETITIONER SERAPIO.[26] Petitioner claims that the Sandiganbayan committed grave abuse of discretion in denying his omnibus motion to hold in abeyance the issuance of a warrant for his arrest as well as the proceedings in Criminal Case No. 26558; to conduct a determination of probable cause; and to direct the Ombudsman to conduct a reinvestigation of the charges him. Petitioner asseverates that the Ombudsman had totally disregarded exculpatory evidence and committed grave abuse of discretion in charging him with plunder. He further argues that there exists no probable cause to support an indictment for plunder as against him.[27] Petitioner points out that the joint resolution of the Ombudsman does not even mention him in relation to the collection and receipt of jueteng money which started in 1998[28] and that the Ombudsman inexplicably arrived at the conclusion that the Erap Muslim Youth Foundation was a money laundering front organization put up by Joseph Estrada, assisted by petitioner, even though the latter presented evidence that said Foundation is a bona fide and legitimate private foundation.[29] More importantly, he claims, said joint resolution does not indicate that he knew that the P200 million he received for the Foundation came from jueteng.[30] Petitioner insists that he cannot be charged with plunder since: (1) the P200 million he received does not constitute ill-gotten wealth as defined in Section 1(d) of R.A. No. 7080;[31] (2) there is no evidence linking him to the collection and receipt of jueteng money;[32] (3) there was no showing that petitioner participated in a pattern of criminal acts indicative of an overall unlawful scheme or conspiracy to amass, accumulate or acquire ill-gotten wealth, or that his act of receiving the P200 million constitutes an overt criminal act of plunder.[33] Petitioner argues further that his motion for reinvestigation is premised on the absolute lack of evidence to support a finding of probable cause for plunder as against him, [34] and hence he should be spared from the inconvenience, burden and expense of a public trial.[35] Petitioner also avers that the discretion of government prosecutors is not beyond judicial scrutiny. He asserts that while this Court does not ordinarily look into the existence of probable cause to charge a person for an offense in a given case, it may do so in exceptional circumstances, which are present in this case: (1) to afford adequate protection to the constitutional rights of the accused; (2) for the orderly administration of justice or to avoid oppression; (3) when the acts of the officer are without or in excess of authority; and (4) where the charges are manifestly false and motivated by the lust for vengeance. [36] Petitioner claims that he raised proper grounds for a reinvestigation by asserting that in issuing the questioned joint resolution, the Ombudsman disregarded evidence exculpating petitioner from the charge of plunder and committed errors of law or irregularities which have been prejudicial to his interest.[37] He also states that during the joint preliminary investigations for the various charges against Joseph Estrada and his associates, of which the plunder charge was only one of the

eight charges against Estrada et al., he was not furnished with copies of the other complaints nor given the opportunity to refute the evidence presented in relation to the other seven cases, even though the evidence presented therein were also used against him, although he was only charged in the plunder case.[38] The People maintain that the Sandiganbayan committed no grave abuse of discretion in denying petitioners omnibus motion. They assert that since the Ombudsman found probable cause to charge petitioner with the crime of plunder, the Sandiganbayan is bound to assume jurisdiction over the case and to proceed to try the same. They further argue that a finding of probable cause is merely preliminary and prefatory of the eventual determination of guilt or innocence of the accused, and that petitioner still has the chance to interpose his defenses in a full blown trial where his guilt or innocence may finally be determined.[39] The People also point out that the Sandiganbayan did not commit grave abuse of discretion in denying petitioners omnibus motion asking for, among others, a reinvestigation by the Ombudsman, because his motion for reconsideration of the Ombudsmans joint resolution did not raise the grounds of either newly discovered evidence, or errors of law or irregularities, which under Republic Act No. 6770 are the only grounds upon which a motion for reconsideration may be filed.[40] The People likewise insist that there exists probable cause to charge petitioner with plunder as a co-conspirator of Joseph Estrada.[41] This Court does not agree with petitioner. Case law has it that the Court does not interfere with the Ombudsmans discretion in the conduct of preliminary investigations. Thus, in Raro vs. Sandiganbayan[42], the Court ruled: x x x. In the performance of his task to determine probable cause, the Ombudsmans discretion is paramount. Thus, in Camanag vs. Guerrero, this Court said: x x x. (S)uffice it to state that this Court has adopted a policy of non-interference in the conduct of preliminary investigations, and leaves to the investigating prosecutor sufficient latitude of discretion in the exercise of determination of what constitutes sufficient evidence as will establish probable cause for filing of information against the supposed offender. In Cruz, Jr. vs. People,[43] the Court ruled thus: Furthermore, the Ombudsmans findings are essentially factual in nature. Accordingly, in assailing said findings on the contention that the Ombudsman committed a grave abuse of discretion in holding that petitioner is liable for estafa through falsification of public documents, petitioner is clearly raising questions of fact here. His arguments are anchored on the propriety or error in the Ombudsmans appreciation of facts. Petitioner cannot be unaware that the Supreme Court is not a trier of facts, more so in the consideration of the extraordinary writ of certiorari where neither question of fact nor even of law are entertained, but only questions of lack or excess of jurisdiction or grave abuse of discretion. Insofar as the third issue is concerned, we find that no grave abuse of discretion has been committed by respondents which would warrant the granting of the writ of certiorari. Petitioner is burdened to allege and establish that the Sandiganbayan and the Ombudsman for that matter committed grave abuse of discretion in issuing their resolution and joint resolution, respectively. Petitioner failed to discharge his burden. Indeed, the Court finds no

grave abuse of discretion on the part of the Sandiganbayan and the Ombudsman in finding probable cause against petitioner for plunder. Neither did the Sandiganbayan abuse its discretion in denying petitioners motion for reinvestigation of the charges against him in the amended Information. In its Resolution of April 25, 2001, the Sandiganbayan affirmed the finding of the Ombudsman that probable cause exists against petitioner and his co-accused for the crime of plunder, thus: In the light of the foregoing and considering the allegations of the Amended Information dated 18 April 2001 charging the accused with the offense of PLUNDER and examining carefully the evidence submitted in support thereof consisting of the affidavits and sworn statements and testimonies of prosecution witnesses and several other pieces of documentary evidence, as well as the respective counter-affidavits of accused former President Joseph Estrada dated March 20, 2001, Jose Jinggoy Pimentel Estrada dated February 20, 2001, Yolanda T. Ricaforte dated January 21, 2001 and Edward S. Serapio dated February 21, 2001, the Court finds and so holds that probable cause for the offense of PLUNDER exists to justify issuance of warrants of arrest of accused former President Joseph Ejercito Estrada, Mayor Jose Jinggoy Estrada, Charlie Atong Ang, Edward Serapio, Yolanda T. Ricaforte, Alma Alfaro, John Doe. a.k.a. Eleuterio Tan or Eleuterio Ramos Tan or Mr. Uy, and Jane Doe a.k.a Delia Rajas.[44] Likewise, in its Resolution dated May 31, 2001 of petitioners omnibus motion, the Sandiganbayan noted that a preliminary investigation was fully conducted in accordance with Rule II, Administrative Order No. 7 of the Office of the Ombudsman, pursuant to Sections 18, 23 and 27 of Republic Act No. 6770 (The Ombudsman Act of 1989); and that all the basic complaints and evidence in support thereof were served upon all the accused.[45] It was in light of such findings that the Sandiganbayan held that there was no basis for the allegation that accused therein (including petitioner) were deprived of the right to seek a reconsideration of the Ombudsmans Resolution dated April 4, 2001 finding probable cause to charge them with plunder after the conduct of preliminary investigation in connection therewith. In addition, the Sandiganbayan pointed out that petitioner filed a motion for reconsideration of the Ombudsmans resolution, but failed to show in his motion that there were newly discovered evidence, or that the preliminary investigation was tainted by errors of law or irregularities, which are the only grounds for which a reconsideration of the Ombudsmans resolution may be granted.[46] It bears stressing that the right to a preliminary investigation is not a constitutional right, but is merely a right conferred by statute.[47] The absence of a preliminary investigation does not impair the validity of the Information or otherwise render the same defective and neither does it affect the jurisdiction of the court over the case or constitute a ground for quashing the Information.[48] If the lack of a preliminary investigation does not render the Information invalid nor affect the jurisdiction of the court over the case, with more reason can it be said that the denial of a motion for reinvestigation cannot invalidate the Information or oust the court of its jurisdiction over the case. Neither can it be said that petitioner had been deprived of due process. He was afforded the opportunity to refute the charges against him during the preliminary investigation. The purpose of a preliminary investigation is merely to determine whether a crime has been committed and whether there is probable cause to believe that the person accused of the crime is probably guilty thereof and should be held for trial.[49] As the Court held in Webb vs. De Leon, [a] finding of probable cause needs only to rest on evidence showing that more likely than not a crime has been committed and was committed by the suspect. Probable cause need not be based on clear and convincing evidence of guilt, neither on evidence establishing guilt

beyond reasonable doubt and definitely, not on evidence establishing absolute certainty of guilt.[50] Absent any showing of arbitrariness on the part of the prosecutor or any other officer authorized to conduct preliminary investigation, courts as a rule must defer to said officers finding and determination of probable cause, since the determination of the existence of probable cause is the function of the prosecutor.[51] The Court agrees with the Sandiganbayan that petitioner failed to establish that the preliminary investigation conducted by the Ombudsman was tainted with irregularity or that its findings stated in the joint resolution dated April 4, 2001 are not supported by the facts, and that a reinvestigation was necessary. Certiorari will not lie to invalidate the Sandiganbayans resolution denying petitioners motion for reinvestigation since there is nothing to substantiate petitioners claim that it gravely abused its discretion in ruling that there was no need to conduct a reinvestigation of the case.[52] The ruling in Rolito Go vs. Court of Appeals[53] that an accused shall not be deemed to have waived his right to ask for a preliminary investigation after he had been arraigned over his objection and despite his insistence on the conduct of said investigation prior to trial on the merits does not apply in the instant case because petitioner merely prayed for areinvestigation on the ground of a newly-discovered evidence. Irrefragably, a preliminary investigation had been conducted by the Ombudsman prior to the filing of the amended Information, and that petitioner had participated therein by filing his counteraffidavit. Furthermore, the Sandiganbayan had already denied his motion for reinvestigation as well as his motion for reconsideration thereon prior to his arraignment. [54] In sum then, the petition is dismissed.

Re: G.R. No. 148468 As synthesized by the Court from the petition and the pleadings of the parties, the issues for resolution are: (1) Whether or not petitioner should first be arraigned before hearings of his petition for bail may be conducted; (2) Whether petitioner may file a motion to quash the amended Information during the pendency of his petition for bail; (3) Whether a joint hearing of the petition for bail of petitioner and those of the other accused in Criminal Case No. 26558 is mandatory; (4) Whether the People waived their right to adduce evidence in opposition to the petition for bail of petitioner and failed to adduce strong evidence of guilt of petitioner for the crime charged; and (5) Whether petitioner was deprived of his right to due process in Criminal Case No. 26558 and should thus be released from detention via a writ of habeas corpus. On the first issue, petitioner contends that the Sandiganbayan committed a grave abuse of its discretion amounting to excess or lack of jurisdiction when it deferred the hearing of his petition for bail to July 10, 2001, arraigned him on said date and entered a plea of not guilty for him when he refused to be arraigned. He insists that the Rules on Criminal Procedure, as amended, does not require that he be arraigned first prior to the conduct of bail hearings since the latter can stand alone and must, of necessity, be heard immediately.[55] Petitioner maintains that his arraignment before the bail hearings are set is not necessary since he would not plead guilty to the offense charged, as is evident in his earlier statements insisting on his innocence during the Senate investigation of the jueteng scandal and the preliminary investigation before the Ombudsman.[56] Neither would the prosecution be prejudiced even if it would present all its evidence before his arraignment because, under the Revised Penal Code, a voluntary confession of guilt is mitigating only if made prior to the presentation of evidence for the

prosecution,[57] and petitioner admitted that he cannot repudiate the evidence or proceedings taken during the bail hearings because Rule 114, Section 8 of the Revised Rules of Court expressly provides that evidence present during bail hearings are automatically reproduced during the trial.[58] Petitioner likewise assures the prosecution that he is willing to be arraigned prior to the posting of a bail bond should he be granted bail.[59] The People insist that arraignment is necessary before bail hearings may be commenced, because it is only upon arraignment that the issues are joined. The People stress that it is only when an accused pleads not guilty may he file a petition for bail and if he pleads guilty to the charge, there would be no more need for him to file said petition. Moreover, since it is during arraignment that the accused is first informed of the precise charge against him, he must be arraigned prior to the bail hearings to prevent him from later assailing the validity of the bail hearings on the ground that he was not properly informed of the charge against him, especially considering that, under Section 8, Rule 114 of the Revised Rules of Court, evidence presented during such proceedings are considered automatically reproduced at the trial.[60] Likewise, the arraignment of accused prior to bail hearings diminishes the possibility of an accuseds flight from the jurisdiction of the Sandiganbayan because trial in absentia may be had only if an accused escapes after he has been arraigned.[61] The People also contend that the conduct of bail hearings prior to arraignment would extend to an accused the undeserved privilege of being appraised of the prosecutions evidence before he pleads guilty for purposes of penalty reduction.[62] Although petitioner had already been arraigned on July 10, 2001 and a plea of not guilty had been entered by the Sandiganbayan on his behalf, thereby rendering the issue as to whether an arraignment is necessary before the conduct of bail hearings in petitioners case moot, the Court takes this opportunity to discuss the controlling precepts thereon pursuant to its symbolic function of educating the bench and bar.[63] The contention of petitioner is well-taken. The arraignment of an accused is not a prerequisite to the conduct of hearings on his petition for bail. A person is allowed to petition for bail as soon as he is deprived of his liberty by virtue of his arrest or voluntary surrender. [64] An accused need not wait for his arraignment before filing a petition for bail. In Lavides vs. Court of Appeals, [65] this Court ruled on the issue of whether an accused must first be arraigned before he may be granted bail. Lavides involved an accused charged with violation of Section 5(b) Republic Act No. 7610 (The Special Protection of Children Against Abuse, Exploitation and Discrimination Act), an offense punishable byreclusion temporal in its medium period to reclusion perpetua. The accused therein assailed, inter alia, the trial courts imposition of the condition that he should first be arraigned before he is allowed to post bail. We held therein that in cases where it is authorized, bail should be granted before arraignment, otherwise the accused may be precluded from filing a motion to quash.[66] However, the foregoing pronouncement should not be taken to mean that the hearing on a petition for bail should at all times precede arraignment, because the rule is that a person deprived of his liberty by virtue of his arrest or voluntary surrender may apply for bail as soon as he is deprived of his liberty, even before a complaint or information is filed against him.[67] The Courts pronouncement in Lavides should be understood in light of the fact that the accused in said case filed a petition for bail as well as a motion to quash the informations filed against him. Hence, we explained therein that to condition the grant of bail to an accused on his arraignment would be to place him in a position where he has to choose between (1) filing a motion to quash and thus delay his release on bail because until his motion to quash can be resolved, his arraignment cannot be held, and (2) foregoing the filing of a motion to quash so that he can be arraigned at once and thereafter be released on bail. This would undermine his

constitutional right not to be put on trial except upon a valid complaint or Information sufficient to charge him with a crime and his right to bail.[68] It is therefore not necessary that an accused be first arraigned before the conduct of hearings on his application for bail. For when bail is a matter of right, an accused may apply for and be granted bail even prior to arraignment. The ruling in Lavides also implies that an application for bail in a case involving an offense punishable by reclusion perpetua to death may also be heard even before an accused is arraigned. Further, if the court finds in such case that the accused is entitled to bail because the evidence against him is not strong, he may be granted provisional liberty even prior to arraignment; for in such a situation, bail would be authorized under the circumstances. In fine, the Sandiganbayan committed a grave abuse of its discretion amounting to excess of jurisdiction in ordering the arraignment of petitioner before proceeding with the hearing of his petition for bail. With respect to the second issue of whether petitioner may file a motion to quash during the pendency of his petition for bail, petitioner maintains that a motion to quash and a petition for bail are not inconsistent, and may proceed independently of each other. While he agrees with the prosecution that a motion to quash may in some instances result in the termination of the criminal proceedings and in the release of the accused therein, thus rendering the petition for bail moot and academic, he opines that such is not always the case; hence, an accused in detention cannot be forced to speculate on the outcome of a motion to quash and decide whether or not to file a petition for bail or to withdraw one that has been filed. [69] He also insists that the grant of a motion to quash does not automatically result in the discharge of an accused from detention nor render moot an application for bail under Rule 117, Section 5 of the Revised Rules of Court.[70] The Court finds that no such inconsistency exists between an application of an accused for bail and his filing of a motion to quash. Bail is the security given for the release of a person in the custody of the law, furnished by him or a bondsman, to guarantee his appearance before any court as required under the conditions set forth under the Rules of Court.[71] Its purpose is to obtain the provisional liberty of a person charged with an offense until his conviction while at the same time securing his appearance at the trial.[72] As stated earlier, a person may apply for bail from the moment that he is deprived of his liberty by virtue of his arrest or voluntary surrender.[73] On the other hand, a motion to quash an Information is the mode by which an accused assails the validity of a criminal complaint or Information filed against him for insufficiency on its face in point of law, or for defects which are apparent in the face of the Information.[74] An accused may file a motion to quash the Information, as a general rule, before arraignment. [75] These two reliefs have objectives which are not necessarily antithetical to each other. Certainly, the right of an accused right to seek provisional liberty when charged with an offense not punishable by death, reclusion perpetua or life imprisonment, or when charged with an offense punishable by such penalties but after due hearing, evidence of his guilt is found not to be strong, does not preclude his right to assail the validity of the Information charging him with such offense. It must be conceded, however, that if a motion to quash a criminal complaint or Information on the ground that the same does not charge any offense is granted and the case is dismissed and the accused is ordered released, the petition for bail of an accused may become moot and academic. We now resolve the issue of whether or not it is mandatory that the hearings on the petitions for bail of petitioner and accused Jose Jinggoy Estrada in Criminal Case No. 26558 and the trial of the said case as against former President Joseph E. Estrada be heard jointly.

Petitioner argues that the conduct of joint bail hearings would negate his right to have his petition for bail resolved in a summary proceeding since said hearings might be converted into a full blown trial on the merits by the prosecution.[76] For their part, the People claim that joint bail hearings will save the court from having to hear the same witnesses and the parties from presenting the same evidence where it would allow separate bail hearings for the accused who are charged as co-conspirators in the crime of plunder.[77] In issuing its June 1, 2001 Order directing all accused in Criminal Case No. 26558 to participate in the bail hearings, the Sandiganbayan explained that the directive was made was in the interest of the speedy disposition of the case. It stated: x x x The obvious fact is, if the rest of the accused other than the accused Serapio were to be excused from participating in the hearing on the motion for bail of accused Serapio, under the pretext that the same does not concern them and that they will participate in any hearing where evidence is presented by the prosecution only if and when they will already have filed their petitions for bail, or should they decide not to file any, that they will participate only during the trial proper itself, then everybody will be faced with the daunting prospects of having to go through the process of introducing the same witness and pieces of evidence two times, three times or four times, as many times as there are petitions for bail filed. Obviously, such procedure is not conducive to the speedy termination of a case. Neither can such procedure be characterized as an orderly proceeding.[78] There is no provision in the Revised Rules of Criminal Procedure or the Rules of Procedure of the Sandiganbayan governing the hearings of two or more petitions for bail filed by different accused or that a petition for bail of an accused be heard simultaneously with the trial of the case against the other accused. The matter of whether or not to conduct a joint hearing of two or more petitions for bail filed by two different accused or to conduct a hearing of said petition jointly with the trial against another accused is addressed to the sound discretion of the trial court. Unless grave abuse of discretion amounting to excess or lack of jurisdiction is shown, the Court will not interfere with the exercise by the Sandiganbayan of its discretion. It may be underscored that in the exercise of its discretion, the Sandiganbayan must take into account not only the convenience of the State, including the prosecution, but also that of the accused and the witnesses of both the prosecution and the accused and the right of accused to a speedy trial. The Sandiganbayan must also consider the complexities of the cases and of the factual and legal issues involving petitioner and the other accused. After all, if this Court may echo the observation of the United States Supreme Court, the State has a stake, with every citizen, in his being afforded our historic individual protections, including those surrounding criminal prosecutions. About them, this Court dares not become careless or complacent when that fashion has become rampant over the earth.[79] It must be borne in mind that in Ocampo vs. Bernabe,[80] this Court held that in a petition for bail hearing, the court is to conduct only a summary hearing, meaning such brief and speedy method of receiving and considering the evidence of guilt as is practicable and consistent with the purpose of the hearing which is merely to determine the weight of evidence for purposes of bail. The court does not try the merits or enter into any inquiry as to the weight that ought to be given to the evidence against the accused, nor will it speculate on the outcome of the trial or on what further evidence may be offered therein. It may confine itself to receiving such evidence as has reference to substantial matters, avoiding unnecessary thoroughness in the examination

and cross-examination of witnesses, and reducing to a reasonable minimum the amount of corroboration particularly on details that are not essential to the purpose of the hearing. A joint hearing of two separate petitions for bail by two accused will of course avoid duplication of time and effort of both the prosecution and the courts and minimizes the prejudice to the accused, especially so if both movants for bail are charged of having conspired in the commission of the same crime and the prosecution adduces essentially the same evident against them. However, in the cases at bar, the joinder of the hearings of the petition for bail of petitioner with the trial of the case against former President Joseph E. Estrada is an entirely different matter. For, with the participation of the former president in the hearing of petitioners petition for bail, the proceeding assumes a completely different dimension. The proceedings will no longer be summary. As against former President Joseph E. Estrada, the proceedings will be a full-blown trial which is antithetical to the nature of a bail hearing. Moreover, following our ruling in Jose Estrada vs. Sandiganbayan, supra where we stated that Jose Jinggoy Estrada can only be charged with conspiracy to commit the acts alleged in sub-paragraph (a) of the amended Information since it is not clear from the latter if the accused in sub-paragraphs (a) to (d) thereof conspired with each other to assist Joseph Estrada to amass ill-gotten wealth, we hold that petitioner can only be charged with having conspired with the other co-accused named in sub-paragraph (a) by receiving or collecting, directly or indirectly, on several instances, money x x x from illegal gambling, x x x in consideration of toleration or protection of illegal gambling.[81] Thus, with respect to petitioner, all that the prosecution needs to adduce to prove that the evidence against him for the charge of plunder is strong are those related to the alleged receipt or collection of money from illegal gambling as described in sub-paragraph (a) of the amended Information. With the joinder of the hearing of petitioners petition for bail and the trial of the former President, the latter will have the right to cross-examine intensively and extensively the witnesses for the prosecution in opposition to the petition for bail of petitioner. If petitioner will adduce evidence in support of his petition after the prosecution shall have concluded its evidence, the former President may insist on cross-examining petitioner and his witnesses. The joinder of the hearing of petitioners bail petition with the trial of former President Joseph E. Estrada will be prejudicial to petitioner as it will unduly delay the determination of the issue of the right of petitioner to obtain provisional liberty and seek relief from this Court if his petition is denied by the respondent court. The indispensability of the speedy resolution of an application for bail was succinctly explained by Cooley in his treatise Constitutional Limitations, thus: For, if there were any mode short of confinement which would with reasonable certainty insure the attendance of the accused to answer the accusation, it would not be justifiable to inflict upon him that indignity, when the effect is to subject him in a greater or lesser degree, to the punishment of a guilty person, while as yet it is not determined that he has not committed any crime.[82] While the Sandiganbayan, as the court trying Criminal Case No. 26558, is empowered to proceed with the trial of the case in the manner it determines best conducive to orderly proceedings and speedy termination of the case,[83] the Court finds that it gravely abused its discretion in ordering that the petition for bail of petitioner and the trial of former President Joseph E. Estrada be held jointly. It bears stressing that the Sandiganbayan itself acknowledged in its May 4, 2001 Order the pre-eminent position and superiority of the rights of [petitioner] to have the matter of his provisional liberty resolved without unnecessary delay,[84] only to make a volte face and declare that after all the hearing of petition for bail of petitioner and Jose Jinggoy Estrada and the trial as against former President Joseph E. Estrada should be held simultaneously. In ordering that petitioners petition for bail to be heard

jointly with the trial of the case against his co-accused former President Joseph E. Estrada, the Sandiganbayan in effect allowed further and unnecessary delay in the resolution thereof to the prejudice of petitioner. In fine then, the Sandiganbayan committed a grave abuse of its discretion in ordering a simultaneous hearing of petitioners petition for bail with the trial of the case against former President Joseph E. Estrada on its merits. With respect to petitioners allegations that the prosecution tried to delay the bail hearings by filing dilatory motions, the People aver that it is petitioner and his co-accused who caused the delay in the trial of Criminal Case No. 26558 by their filing of numerous manifestations and pleadings with the Sandiganbayan.[85] They assert that they filed the motion for joint bail hearing and motion for earlier arraignment around the original schedule for the bail hearings which was on May 21-25, 2001.[86] They argue further that bail is not a matter of right in capital offenses. [87] In support thereof, they cite Article III, Sec 13 of the Constitution, which states that All persons, except those charged with offenses punishable by reclusion perpetua when evidence of guilt is strong, shall before conviction be bailable by sufficient sureties, or be released on recognizance as may be provided by law. The right to bail shall not be impaired even when the privilege of the writ of habeas corpus is suspended. Excessive bail shall not be required.[88] The People also cited Rule 114, Secs. 7 and 4 of the Revised Rules of Court which provide: Sec. 7. Capital offense or an offense punishable by reclusion perpetua or life imprisonment, not bailable.No person charged with a capital offense, or an offense punishable by reclusion perpetuaor life imprisonement, shall be admitted to bail when evidence of guilt is strong, regardless of the stage of the criminal prosecution. Sec. 4. Bail, a matter of right, exception.All persons in custody shall be admitted to bail as a matter of right, with sufficient sureties, or released on recognizance as prescribed by law or this Rule x x x (b) and before conviction by the Regional Trial Court of an offense not punishable by death, reclusion perpetua or life imprisonment.[89] Irrefragably, a person charged with a capital offense is not absolutely denied the opportunity to obtain provisional liberty on bail pending the judgment of his case. However, as to such person, bail is not a matter of right but is discretionary upon the court. [90] Had the rule been otherwise, the Rules would not have provided for an application for bail by a person charged with a capital offense under Rule 114, Section 8 which states: Sec. 8. Burden of proof in bail application. At the hearing of an application for bail filed by a person who is in custody for the commission of an offense punishable by death, reclusion perpetua, or life imprisonment, the prosecution has the burden of showing that the evidence of guilt is strong. The evidence presented during the bail hearing shall be considered automatically reproduced at the trial but, upon motion of either party, the court may recall any witness for additional examination unless the latter is dead, outside the Philippines, or otherwise unable to testify.[91] Under the foregoing provision, there must be a showing that the evidence of guilt against a person charged with a capital offense is not strong for the court to grant him bail. Thus, upon an application for bail by the person charged with a capital offense, a hearing thereon must be

conducted, where the prosecution must be accorded an opportunity to discharge its burden of proving that the evidence of guilt against an accused is strong.[92] The prosecution shall be accorded the opportunity to present all the evidence it may deems necessary for this purpose.[93] When it is satisfactorily demonstrated that the evidence of guilt is strong, it is the courts duty to deny the application for bail. However, when the evidence of guilt is not strong, bail becomes a matter of right.[94] In this case, petitioner is not entitled to bail as a matter of right at this stage of the proceedings. Petitioners claim that the prosecution had refused to present evidence to prove his guilt for purposes of his bail application and that the Sandiganbayan has refused to grant a hearing thereon is not borne by the records. The prosecution did not waive, expressly or even impliedly, its right to adduce evidence in opposition to the petition for bail of petitioner. It must be noted that the Sandiganbayan had already scheduled the hearing dates for petitioners application for bail but the same were reset due to pending incidents raised in several motions filed by the parties, which incidents had to be resolved by the court prior to the bail hearings. The bail hearing was eventually scheduled by the Sandiganbayan on July 10, 2001 but the hearing did not push through due to the filing of this petition on June 29, 2001. The delay in the conduct of hearings on petitioners application for bail is therefore not imputable solely to the Sandiganbayan or to the prosecution. Petitioner is also partly to blame therefor, as is evident from the following list of motions filed by him and by the prosecution: Motions filed by petitioner: Urgent Omnibus Motion, dated April 6, 2001, for (1) leave to file motion for reconsideration/reinvestigation and to direct ombudsman to conduct reinvestigation; (2) conduct a determination of probable cause as would suggest the issuance of house arrest; (3) hold in abeyance the issuance of warrant of arrest and other proceedings pending determination of probable cause; Motion for Early Resolution, dated May 24, 2001; Urgent Motion to Hold in Abeyance Implementation or Service of Warrant of Arrest for Immediate Grant of bail or For Release on Recognizance, dated April 25, 2001; Urgent Motion to allow Accused Serapio to Vote at Obando, Bulacan, dated May 11, 2001; Urgent Motion for Reconsideration, dated May 22, 2001, praying for Resolution of May 18, 2001 be set aside and bail hearings be set at the earliest possible time; Urgent Motion for Immediate Release on Bail or Recognizance, dated May 27, 2001; Motion for Reconsideration of denial of Urgent Omnibus Motion, dated June 13, 2001, praying that he be allowed to file a Motion for Reinvestigation; and Motion to Quash, dated June 26, 2001.[95]

Motions filed by the prosecution:

Motion for Earlier Arraignment, dated May 8, 2001;[96] Motion for Joint Bail Hearings of Accused Joseph Estrada, Jose Jinggoy Estrada and Edward Serapio, dated May 8, 2001;[97] Opposition to the Urgent Motion for Reconsideration and Omnibus Motion to Adjust Earlier Arraignment, dated May 25, 2001;[98] and Omnibus Motion for Examination, Testimony and Transcription in Filipino, dated June 19, 2001.[99]

The other accused in Criminal Case No. 26558 also contributed to the aforesaid delay by their filing of the following motions: Motion to Quash or Suspend, dated April 24, 2001, filed by Jinggoy Estrada, assailing the constitutionality of R.A. No. 7080 and praying that the Amended Information be quashed; Very Urgent Omnibus Motion, dated April 30, 2001, filed by Jinggoy Estrada, praying that he be (1) excluded from the Amended Information for lack of probable cause; (2) released from custody; or in the alternative, (3) be allowed to post bail; Urgent Ex-Parte Motion to Place on House Arrest, dated April 25, 2001, filed by Joseph and Jinggoy Estrada, praying that they be placed on house arrest during the pendency of the case; Position Paper [re: House Arrest], dated May 2, 2001, filed by Joseph and Jinggoy Estrada; Supplemental Position Paper [re: House Arrest], dated May 2, 2001, filed by Joseph and Jinggoy Estrada; Omnibus Motion, dated May 7, 2001, filed by Joseph Estrada, praying by reinvestigation of the case by the Ombudsman or the outright dismissal of the case; Urgent Ex-Parte Motion for Extension, dated May 2, 2001, filed by Jinggoy Estrada, requesting for five (5) within which to respond to the Opposition to Motion to Quash in view of the holidays and election-related distractions; Opposition to Urgent Motion for Earlier Arraignment, dated May 10, 2001, filed by Joseph Estrada; Omnibus Manifestation on voting and custodial arrangement, dated May 11, 2001, filed by Joseph and Jinggoy Estrada, praying that they be placed on house arrest; Manifestation regarding house arrest, dated May 6, 2001, filed by Joseph and Jinggoy Estrada;

Summation regarding house arrest, dated May 23, 2001, filed by Joseph and Jinggoy Estrada; Urgent Manifestation & Motion, dated May 6, 2001 filed by Jinggoy Estrada; Manifestation, dated May 28, 2001, filed by Joseph and Jinggoy Estrada, praying that they be allowed to be confined in Tanay; Motion to charge as Accused Luis Chavit Singson, filed by Joseph Estrada; Omnibus Motion, dated June 11, 2001, filed by Joseph and Jinggoy Estrada, seeking reconsideration of denial of requests for house arrest, for detention in Tanay or Camp Crame; motion for inhibition of Justice Badoy; Urgent Motion to Allow Accused to Clear His Desk as Mayor of San Juan, Metro Manila, dated June 28, 2001, filed by Jinggoy Estrada; Motion for Reconsideration, dated June 9, 2001, filed by Joseph and Jinggoy Estrada, praying that the resolution compelling them to be present at petitioner Serapios hearing for bail be reconsidered; Motion to Quash, dated June 7, 2001, filed by Joseph Estrada; Still Another Manifestation, dated June 14, 2001, filed by Joseph and Jinggoy Estrada stating that Bishop Teodoro Bacani favors their house arrest; Manifestation, dated June 15, 2001, filed by Joseph and Jinggoy Estrada, waiving their right to be present at the June 18 and 21, 2001 bail hearings and reserving their right to trial with assessors; Omnibus Motion for Instructions: 30-Day House Arrest; Production, Inspection and Copying of Documents; and Possible Trial with Assessors, dated June 19, 2001, filed by Joseph and Jinggoy Estrada; Urgent Motion for Additional Time to Wind Up Affairs, dated June 20, 2001, filed by Jinggoy Estrada; Manifestation, dated June 22, 2001, filed by Jinggoy Estrada, asking for free dates for parties, claiming that denial of bail is cruel and inhuman, reiterating request for gag order of prosecution witnesses, availing of production, inspection and copying of documents, requesting for status of alias case; and Compliance, dated June 25, 2001, filed by Jinggoy Estrada, requesting for permission to attend some municipal affairs in San Juan, Metro Manila.[100]

Furthermore, the Court has previously ruled that even in cases where the prosecution refuses to adduce evidence in opposition to an application for bail by an accused charged with a capital offense, the trial court is still under duty to conduct a hearing on said application.[101] The

rationale for such requirement was explained in Narciso vs. Sta. Romana-Cruz(supra), citing Basco vs. Rapatalo:[102] When the grant of bail is discretionary, the prosecution has the burden of showing that the evidence of guilt against the accused is strong. However, the determination of whether or not the evidence of guilt is strong, being a matter of judicial discretion, remains with the judge. This discretion by the very nature of things, may rightly be exercised only after the evidence is submitted to the court at the hearing. Since the discretion is directed to the weight of the evidence and since evidence cannot properly be weighed if not duly exhibited or produced before the court, it is obvious that a proper exercise of judicial discretion requires that the evidence of guilt be submitted to the court, the petitioner having the right of cross-examination and to introduce his own evidence in rebuttal.[103] Accordingly, petitioner cannot be released from detention until the Sandiganbayan conducts a hearing of his application for bail and resolve the same in his favor. Even then, there must first be a finding that the evidence against petitioner is not strong before he may be granted bail. Anent the issue of the propriety of the issuance of a writ of habeas corpus for petitioner, he contends that he is entitled to the issuance of said writ because the State, through the prosecutions refusal to present evidence and by the Sandiganbayans refusal to grant a bail hearing, has failed to discharge its burden of proving that as against him, evidence of guilt for the capital offense of plunder is strong. Petitioner contends that the prosecution launched a seemingly endless barrage of obstructive and dilatory moves to prevent the conduct of bail hearings. Specifically, the prosecution moved for petitioners arraignment before the commencement of bail hearings and insisted on joint bail hearings for petitioner, Joseph Estrada and Jinggoy Estrada despite the fact that it was only petitioner who asked for a bail hearing; manifested that it would present its evidence as if it is the presentation of the evidence in chief, meaning that the bail hearings would be concluded only after the prosecution presented its entire case upon the accused; and argued that petitioners motion to quash and his petition for bail are inconsistent, and therefore, petitioner should choose to pursue only one of these two remedies.[104] He further claims that the Sandiganbayan, through its questioned orders and resolutions postponing the bail hearings effectively denied him of his right to bail and to due process of law.[105] Petitioner also maintains that the issuance by the Sandiganbayan of new orders canceling the bail hearings which it had earlier set did not render moot and academic the petition for issuance of a writ of habeas corpus, since said orders have resulted in a continuing deprivation of petitioners right to bail.[106] He argues further that the fact that he was arrested and is detained pursuant to valid process does not by itself negate the efficacy of the remedy of habeas corpus. In support of his contention, petitioner cites Moncupa vs. Enrile,[107]where the Court held that habeas corpus extends to instances where the detention, while valid from its inception, has later become arbitrary.[108] However, the People insist that habeas corpus is not proper because petitioner was arrested pursuant to the amended information which was earlier filed in court, [109] the warrant of arrest issuant pursuant thereto was valid, and petitioner voluntarily surrendered to the authorities.[110] As a general rule, the writ of habeas corpus will not issue where the person alleged to be restrained of his liberty in custody of an officer under a process issued by the court which jurisdiction to do so.[111] In exceptional circumstances, habeas corpus may be granted by the

courts even when the person concerned is detained pursuant to a valid arrest or his voluntary surrender, for this writ of liberty is recognized as the fundamental instrument for safeguarding individual freedom against arbitrary and lawless state action due to its ability to cut through barriers of form and procedural mazes.[112] Thus, in previous cases, we issued the writ where the deprivation of liberty, while initially valid under the law, had later become invalid,[113] and even though the persons praying for its issuance were not completely deprived of their liberty.[114] The Court finds no basis for the issuance of a writ of habeas corpus in favor of petitioner. The general rule that habeas corpus does not lie where the person alleged to be restrained of his liberty is in the custody of an officer under process issued by a court which had jurisdiction to issue the same[115] applies, because petitioner is under detention pursuant to the order of arrest issued by the Sandiganbayan on April 25, 2001 after the filing by the Ombudsman of the amended information for plunder against petitioner and his co-accused. Petitioner had in fact voluntarily surrendered himself to the authorities on April 25, 2001 upon learning that a warrant for his arrest had been issued. The ruling in Moncupa vs. Enrile[116] that habeas corpus will lie where the deprivation of liberty which was initially valid has become arbitrary in view of subsequent developments finds no application in the present case because the hearing on petitioners application for bail has yet to commence. As stated earlier, the delay in the hearing of petitioners petition for bail cannot be pinned solely on the Sandiganbayan or on the prosecution for that matter. Petitioner himself is partly to be blamed. Moreover, a petition for habeas corpus is not the appropriate remedy for asserting ones right to bail.[117] It cannot be availed of where accused is entitled to bail not as a matter of right but on the discretion of the court and the latter has not abused such discretion in refusing to grant bail,[118] or has not even exercised said discretion. The proper recourse is to file an application for bail with the court where the criminal case is pending and to allow hearings thereon to proceed. The issuance of a writ of habeas corpus would not only be unjustified but would also preempt the Sandiganbayans resolution of the pending application for bail of petitioner. The recourse of petitioner is to forthwith proceed with the hearing on his application for bail. IN THE LIGHT OF ALL THE FOREGOING, judgment is hereby rendered as follows: 1. In G.R. No. 148769 and G.R. No. 149116, the petitions are DISMISSED. The resolutions of respondent Sandiganbayan subject of said petitions are AFFIRMED; and 2. In G.R. No. 148468, the petition is PARTIALLY GRANTED. The resolution of respondent Sandiganbayan, Annex L of the petition, ordering a joint hearing of petitioners petition for bail and the trial of Criminal Case No. 26558 as against former President Joseph E. Estrada is SET ASIDE; the arraignment of petitioner on July 10, 2001 is also SET ASIDE. No costs. SO ORDERED. Davide, Jr., C.J., Bellosillo, Puno, Mendoza, Panganiban, Quisumbing, Austria-Martinez, Corona, Carpio-Morales, and Azcuna, JJ., concur. Vitug, J., see separate opinion. Sandoval-Gutierrez, J., see dissenting opinion. Ynares-Santiago, J., joins the dissenting opinion of J. Sandoval-Gutierrez. Carpio, J., no part, prior inhibition in plunder cases.

Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. L-62100 May 30, 1986 RICARDO L. MANOTOC, JR., petitioner, vs. THE COURT OF APPEALS, HONS. SERAFIN E. CAMILON and RICARDO L. PRONOVE, JR., as Judges of the Court of First Instance of Rizal, Pasig branches, THE PEOPLE OF THE PHILIPPINES, the SECURITIES & EXCHANGE COMISSION, HON. EDMUNDO M. REYES, as Commissioner of Immigration, and the Chief of the Aviation Security Command (AVSECOM), respondents.

FERNAN, J.: The issue posed for resolution in this petition for review may be stated thus: Does a person facing a criminal indictment and provisionally released on bail have an unrestricted right to travel? Petitioner Ricardo L. Manotoc, Jr., is one of the two principal stockholders of Trans-Insular Management, Inc. and the Manotoc Securities, Inc., a stock brokerage house. Having transferred the management of the latter into the hands of professional men, he holds no officerposition in said business, but acts as president of the former corporation. Following the "run" on stock brokerages caused by stock broker Santamaria's flight from this jurisdiction, petitioner, who was then in the United States, came home, and together with his costockholders, filed a petition with the Securities and Exchange Commission for the appointment of a management committee, not only for Manotoc Securities, Inc., but likewise for Trans-Insular Management, Inc. The petition relative to the Manotoc Securities, Inc., docketed as SEC Case No. 001826, entitled, "In the Matter of the Appointment of a Management Committee for Manotoc Securities, Inc., Teodoro Kalaw, Jr., Ricardo Manotoc, Jr., Petitioners", was granted and a management committee was organized and appointed. Pending disposition of SEC Case No. 001826, the Securities and Exchange Commission requested the then Commissioner of Immigration, Edmundo Reyes, not to clear petitioner for departure and a memorandum to this effect was issued by the Commissioner on February 4, 1980 to the Chief of the Immigration Regulation Division. When a Torrens title submitted to and accepted by Manotoc Securities, Inc. was suspected to be a fake, six of its clients filed six separate criminal complaints against petitioner and one Raul Leveriza, Jr., as president and vice-president, respectively, of Manotoc Securities, Inc. In due course, corresponding criminal charges for estafa were filed by the investigating fiscal before the then Court of First Instance of Rizal, docketed as Criminal Cases Nos. 45399 and 45400, assigned to respondent Judge Camilon, and Criminal Cases Nos. 45542 to 45545, raffled off to

Judge Pronove. In all cases, petitioner has been admitted to bail in the total amount of P105,000.00, with FGU Instance Corporation as surety. On March 1, 1982, petitioner filed before each of the trial courts a motion entitled, "motion for permission to leave the country," stating as ground therefor his desire to go to the United States, "relative to his business transactions and opportunities." 1 The prosecution opposed said motion and after due hearing, both trial judges denied the same. The order of Judge Camilon dated March 9, 1982, reads: Accused Ricardo Manotoc Jr. desires to leave for the United States on the all embracing ground that his trip is ... relative to his business transactions and opportunities. The Court sees no urgency from this statement. No matter of any magnitude is discerned to warrant judicial imprimatur on the proposed trip. In view thereof, permission to leave the country is denied Ricardo Manotoc, Jr. now or in the future until these two (2) cases are terminated . 2 On the other hand, the order of Judge Pronove dated March 26, 1982, reads in part: 6.-Finally, there is also merit in the prosecution's contention that if the Court would allow the accused to leave the Philippines the surety companies that filed the bail bonds in his behalf might claim that they could no longer be held liable in their undertakings because it was the Court which allowed the accused to go outside the territorial jurisdiction of the Philippine Court, should the accused fail or decide not to return. WHEREFORE, the motion of the accused is DENIED. 3 It appears that petitioner likewise wrote the Immigration Commissioner a letter requesting the recall or withdrawal of the latter's memorandum dated February 4, 1980, but said request was also denied in a letter dated May 27, 1982. Petitioner thus filed a petition for certiorari and mandamus before the then Court of Appeals 4 seeking to annul the orders dated March 9 and 26, 1982, of Judges Camilon and Pronove, respectively, as well as the communication-request of the Securities and Exchange Commission, denying his leave to travel abroad. He likewise prayed for the issuance of the appropriate writ commanding the Immigration Commissioner and the Chief of the Aviation Security Command (AVSECOM) to clear him for departure. On October 5, 1982, the appellate court rendered a decision 5 dismissing the petition for lack of merit. Dissatisfied with the appellate court's ruling, petitioner filed the instant petition for review on certiorari. Pending resolution of the petition to which we gave due course on April 14, 1983 6 petitioner filed on August 15, 1984 a motion for leave to go abroad pendente lite. 7 In his motion, petitioner stated that his presence in Louisiana, U.S.A. is needed in connection "with the obtention of foreign investment in Manotoc Securities, Inc." 8 He attached the letter dated August 9, 1984 of the chief executive officer of the Exploration Company of Louisiana, Inc., Mr.

Marsden W. Miller 9 requesting his presence in the United States to "meet the people and companies who would be involved in its investments." Petitioner, likewise manifested that on August 1, 1984, Criminal Cases Nos. 4933 to 4936 of the Regional Trial Court of Makati (formerly Nos. 45542-45545) had been dismissed as to him "on motion of the prosecution on the ground that after verification of the records of the Securities and Exchange Commission ... (he) was not in any way connected with the Manotoc Securities, Inc. as of the date of the commission of the offenses imputed to him." 10 Criminal Cases Nos. 45399 and 45400 of the Regional Trial Court of Makati, however, remained pending as Judge Camilon, when notified of the dismissal of the other cases against petitioner, instead of dismissing the cases before him, ordered merely the informations amended so as to delete the allegation that petitioner was president and to substitute that he was "controlling/majority stockholder,'' 11 of Manotoc Securities, Inc. On September 20, 1984, the Court in a resolution en banc denied petitioner's motion for leave to go abroad pendente lite. 12 Petitioner contends that having been admitted to bail as a matter of right, neither the courts which granted him bail nor the Securities and Exchange Commission which has no jurisdiction over his liberty, could prevent him from exercising his constitutional right to travel. Petitioner's contention is untenable. A court has the power to prohibit a person admitted to bail from leaving the Philippines. This is a necessary consequence of the nature and function of a bail bond. Rule 114, Section 1 of the Rules of Court defines bail as the security required and given for the release of a person who is in the custody of the law, that he will appear before any court in which his appearance may be required as stipulated in the bail bond or recognizance. Its object is to relieve the accused of imprisonment and the state of the burden of keeping him, pending the trial, and at the same time, to put the accused as much under the power of the court as if he were in custody of the proper officer, and to secure the appearance of the accused so as to answer the call of the court and do what the law may require of him. 13 The condition imposed upon petitioner to make himself available at all times whenever the court requires his presence operates as a valid restriction on his right to travel. As we have held in People vs. Uy Tuising, 61 Phil. 404 (1935). ... the result of the obligation assumed by appellee (surety) to hold the accused amenable at all times to the orders and processes of the lower court, was to prohibit said accused from leaving the jurisdiction of the Philippines, because, otherwise, said orders and processes will be nugatory, and inasmuch as the jurisdiction of the courts from which they issued does not extend beyond that of the Philippines they would have no binding force outside of said jurisdiction. Indeed, if the accused were allowed to leave the Philippines without sufficient reason, he may be placed beyond the reach of the courts. The effect of a recognizance or bail bond, when fully executed or filed of record, and the prisoner released thereunder, is to transfer the custody of the accused from the public officials who have him in their charge to keepers of his own

selection. Such custody has been regarded merely as a continuation of the original imprisonment. The sureties become invested with full authority over the person of the principal and have the right to prevent the principal from leaving the state. 14 If the sureties have the right to prevent the principal from leaving the state, more so then has the court from which the sureties merely derive such right, and whose jurisdiction over the person of the principal remains unaffected despite the grant of bail to the latter. In fact, this inherent right of the court is recognized by petitioner himself, notwithstanding his allegation that he is at total liberty to leave the country, for he would not have filed the motion for permission to leave the country in the first place, if it were otherwise. To support his contention, petitioner places reliance upon the then Court of Appeals' ruling in People vs. Shepherd (C.A.-G.R. No. 23505-R, February 13, 1980) particularly citing the following passage: ... The law obliges the bondsmen to produce the person of the appellants at the pleasure of the Court. ... The law does not limit such undertaking of the bondsmen as demandable only when the appellants are in the territorial confines of the Philippines and not demandable if the appellants are out of the country. Liberty, the most important consequence of bail, albeit provisional, is indivisible. If granted at all, liberty operates as fully within as without the boundaries of the granting state. This principle perhaps accounts for the absence of any law or jurisprudence expressly declaring that liberty under bail does not transcend the territorial boundaries of the country. The faith reposed by petitioner on the above-quoted opinion of the appellate court is misplaced. The rather broad and generalized statement suffers from a serious fallacy; for while there is, indeed, neither law nor jurisprudence expressly declaring that liberty under bail does not transcend the territorial boundaries of the country, it is not for the reason suggested by the appellate court. Also, petitioner's case is not on all fours with the Shepherd case. In the latter case, the accused was able to show the urgent necessity for her travel abroad, the duration thereof and the conforme of her sureties to the proposed travel thereby satisfying the court that she would comply with the conditions of her bail bond. in contrast, petitioner in this case has not satisfactorily shown any of the above. As aptly observed by the Solicitor General in his comment: A perusal of petitioner's 'Motion for Permission to Leave the Country' will show that it is solely predicated on petitioner's wish to travel to the United States where he will, allegedly attend to some business transactions and search for business opportunities. From the tenor and import of petitioner's motion, no urgent or compelling reason can be discerned to justify the grant of judicial imprimatur thereto. Petitioner has not sufficiently shown that there is absolute necessity for him to travel abroad. Petitioner's motion bears no indication that the alleged business transactions could not be undertaken by any other person in his behalf. Neither is there any hint that petitioner's absence from the United States would absolutely preclude him from taking advantage of business opportunities therein,

nor is there any showing that petitioner's non-presence in the United States would cause him irreparable damage or prejudice. 15 Petitioner has not specified the duration of the proposed travel or shown that his surety has agreed to it. Petitioner merely alleges that his surety has agreed to his plans as he had posted cash indemnities. The court cannot allow the accused to leave the country without the assent of the surety because in accepting a bail bond or recognizance, the government impliedly agrees "that it will not take any proceedings with the principal that will increase the risks of the sureties or affect their remedies against him. Under this rule, the surety on a bail bond or recognizance may be discharged by a stipulation inconsistent with the conditions thereof, which is made without his assent. This result has been reached as to a stipulation or agreement to postpone the trial until after the final disposition of other cases, or to permit the principal to leave the state or country." 16 Thus, although the order of March 26, 1982 issued by Judge Pronove has been rendered moot and academic by the dismissal as to petitioner of the criminal cases pending before said judge, We see the rationale behind said order. As petitioner has failed to satisfy the trial courts and the appellate court of the urgency of his travel, the duration thereof, as well as the consent of his surety to the proposed travel, We find no abuse of judicial discretion in their having denied petitioner's motion for permission to leave the country, in much the same way, albeit with contrary results, that We found no reversible error to have been committed by the appellate court in allowing Shepherd to leave the country after it had satisfied itself that she would comply with the conditions of her bail bond. The constitutional right to travel being invoked by petitioner is not an absolute right. Section 5, Article IV of the 1973 Constitution states: The liberty of abode and of travel shall not be impaired except upon lawful order of the court, or when necessary in the interest of national security, public safety or public health. To our mind, the order of the trial court releasing petitioner on bail constitutes such lawful order as contemplated by the above-quoted constitutional provision. Finding the decision of the appellate court to be in accordance with law and jurisprudence, the Court finds that no gainful purpose will be served in discussing the other issues raised by petitioner. WHEREFORE, the petition for review is hereby dismissed, with costs against petitioner. SO ORDERED. Teehankee, C.J., Abad Santos, Yap, Narvasa, Melencio-Herrera, Alampay, Gutierrez, Jr., Cruz and Paras, JJ., concur. Feria, J., took no part.

EN BANC

[A.M. No. 99-8-126-MTC. September 22, 1999]

ISSUANCE OF HOLD DEPARTURE ORDER OF JUDGE LUISITO T. ADAOAG, MTC, Camiling, Tarlac. DECISION MENDOZA, J.: This refers to the endorsement, dated March 31, 1999, of the Secretary of Justice concerning a hold-departure order issued on January 29, 1999 by Judge Luisito T. Adaoag, Municipal Trial Court, Camiling, Tarlac, in Criminal Case Nos. 98-131 and 98-132, entitled People of the Philippines v. Nestor Umagat y Campos. The Secretary of Justice calls attention to the fact that the order in question is contrary to Circular No. 39-97, dated June 19, 1997, of this Court. Indeed, the said circular limits the authority to issue hold departure orders to the Regional Trial Courts in criminal cases within their exclusive jurisdiction. It provides the following guidelines on the issuance of hold departure orders: In order to avoid the indiscriminate issuance of Hold-Departure Orders resulting in inconvenience to the parties affected, the same being tantamount to an infringement on the right and liberty of an individual to travel and to ensure that the Hold-Departure Orders which are issued contain complete and accurate information, the following guidelines are hereby promulgated: 1. Hold-Departure Orders shall be issued only in criminal cases within the exclusive jurisdiction of the Regional Trial Courts; 2. The Regional Trial Courts issuing the Hold-Departure Order shall furnish the Department of Foreign Affairs (DFA) and the Bureau of Immigration (BI) of the Department of Justice with a copy each of the Hold-Departure Order issued within twenty-four (24) hours from the time of issuance and through the fastest available means of transmittal; 3. The Hold-Departure Order shall contain the following information: a. The complete name (including the middle name), the date and place of birth and the place of last residence of the person against whom a Hold-Departure Order has been issued or whose departure from the country has been enjoined; b. The complete title and the docket number of the case in which the HoldDeparture Order was issued; c. The specific nature of the case; and

d.

The date of the Hold-Departure Order.

If available, a recent photograph of the person against whom a Hold-Departure Order has been issued or whose departure from the country has been enjoined should also be included. 4. Whenever (a) the accused has been acquitted; (b) the case has been dismissed, the judgment of acquittal or the order of dismissal shall include therein the cancellation of the Hold-Departure Order issued. The courts concerned shall furnish the Department of Foreign Affairs and the Bureau of Immigration with a copy each of the judgment of acquittal promulgated or the order of dismissal twenty-four (24) hours from the time of promulgation/issuance and through the fastest available means of transmittal. All Regional Trial Courts which have furnished the Department of Foreign Affairs with their respective lists of active Hold-Departure Orders are hereby directed to conduct an inventory of the Hold-Departure Orders included in the said lists and inform the government agencies concerned of the status of the Orders involved. In his comment, Judge Adaoag admits his mistake and pleads ignorance of the circular. He explains: 1. The order of the court dated January 29, 1999 is a mere request from the Commission on Immigration to issue a Hold Departure Order; 2. The questioned order was issued in two criminal cases within the Jurisdiction of the Court and was issued with malice towards none and in the interest of the state upon motion of the Department of Justice thru its Assistant Prosecutor Venancio Ovejera, Office of the Provincial Prosecutor, Tarlac, Tarlac; 3. The court was misled into believing that the court could issue an order requesting the Bureau of Immigration for a Hold Departure Order because the motion for the issuance of a hold departure order was filed and prayed for by the Office of the Provincial Prosecutor at Tarlac, Tarlac; 4. The court has no copy of Circular No. 39-97 and upon research, it found out for the first time that Hold Departure Orders shall be issued only in criminal cases within the exclusive Jurisdiction of the Regional Trial Courts. How about criminal cases within the exclusive Jurisdiction of first level courts? Rest assured that from this moment and thereafter, the court will no longer issue such order. The Code of Judicial Conduct[1] enjoins judges to be faithful to the law and maintain professional competence. They can live up to their duties only by diligent effort to keep themselves abreast of developments in our legal system. The process of learning the law is a never ending and ceaseless one. In two recent cases[2] involving similar violations, this Court imposed the penalty of reprimand on the offending judges. Hence, the same penalty should be imposed on Judge Adaoag. WHEREFORE, Judge Luisito T. Adaoag is hereby REPRIMANDED with the WARNING that a repetition of the same or similar act will be dealt with more severely.

Republic of the Philippines SUPREME COURT Manila EN BANC

G.R. Nos. 101127-31 August 7, 1992 PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. CRESENCIA C. REYES, accused-appellant. The Solicitor General for plaintiff-appellee. Rosendo C. Ramos for accused-appellant.

REGALADO, J.: In its resolution of May 13, 1992, the First Division of this Court referred en consulta to the Court En Banc the question as to whether herein accused-appellant who was convicted, inter alia, of estafa under paragraph 2(d), Article 315 of the Revised Penal Code and sentenced therefor to serve twenty-two years of reclusion perpetua, with its accessory penalties and liability for indemnification, may be allowed to remain on bail during the pendency of her appeal from said conviction. A definitive disposition of this issue, which is of first impression, gains added significance in light of our resolutionen banc in People vs. Ricardo C. Cortez 1 which, for the guidance of the bench and bar, laid down policies concerning the effectivity of the bail of the accused and which are reproduced hereunder for ready reference: xxx xxx xxx 1) When an accused is charged with an offense which under the law existing at the time of its commission and at the time of the application for bail is punishable by a penalty lower than reclusion perpetua and is out on bail, and after trial is convicted by the trial court of the offense charged or of a lesser offense than that charged in the complaint or information, he may be allowed to remain free on his original bail pending the resolution of his appeal, unless the proper court directs otherwise pursuant to Rule 114, Sec. 2(a) of the Rules of Court, as amended; 2) When an accused is charged with a capital offense or an offense which under the law at the time of its commission and at the time of the application for bail is punishable byreclusion

perpetua and is out on bail, and after trial is convicted by the trial court of a lesser offense than that charged in the complaint or information, the same rule set forth in the preceding paragraph shall be applied; 3) When an accused is charged with a capital offense or an offense which under the law at the time of its commission and at the time of the application for bail as punishable byreclusion perpetua and is out on bail, and after trial is convicted by the trial court of the offense charged. his bond shall be cancelled and the accused shall be placed in confinement pending resolution of his appeal. As to criminal cases covered under the third rule above cited, which are now pending appeal before this Court where the accused is still on provisional liberty, the following rules are laid down: 1) This Court shall order the bondsman to surrender the accused, within ten (10) days from notice, to the court of origin. The bondsman, thereupon, shall inform this Court of the fact of surrender, after which the cancellation of the bond shall be ordered by this Court. 2) RTC shall order the transmittal of the accused to the National Bureau of Prisons thru the Philippine National Police as the accused shall remain under confinement pending resolution of his appeal. 3) If the accused-appellant is not surrendered within the aforesaid period of ten (10) days, his bond shall be forfeited and an order of arrest shall be issued by this Court. The appeal taken by the accused shall also be dismissed under Section 8, Rule 124 of the Revised Rules of Court as he shall be to have jumped bail. In the cases at bar, appellant was charged in the Regional Trial Court of Manila, Branch 37, in three cases for violations of Batas Pambansa Blg. 22 2 and two cases of estafa. 3 These cases were jointly tried and a decision thereon was rendered by Judge Angelina S. Gutierrez on March 12, 1991. 4 On the three cases for violations of Batas Pambansa Blg. 22, appellant was convicted and sentenced to a total penalty of two years of imprisonment and to pay a total fine of P96,290.00. On the two indictments for estafa, in Criminal Case No. 86-51209 she was found guilty and sentenced to twenty-two years of reclusion perpetua with its accessory penalties, to indemnify the complaining witness in the sum of P80,540.00 and to pay the costs; and in Criminal Case No. 86-51210, she was likewise convicted and imposed an indeterminate sentence of six years and one day of prision mayor, as minimum, to fourteen years, eight months and one day of reclusion temporal, as maximum, together with the accessory penalties, as well as to indemnify the offended party in the sum of P15,750.00 and to pay the costs.

Elevated to the Court of Appeals for appellate review, said cases were forwarded by said court to this Court in view of the penalty of reclusion perpetua involved therein. In the meantime, it appears that appellant is under provisional liberty on bail in the aforesaid criminal cases, including Criminal Case No. 86-51209, under a corporate surety bond posted by Oriental Assurance Corporation in the amount of P86,000.00. 5 The Court notes that said bond was provided pursuant to the order of the trial court dated May 16, 1991, 6 hence prior to our resolution of October 15, 1991 quoted in limine. As earlier stated, the issue presented now is whether, under the considerations in the foregoing discussion, appellant should be permitted to remain on bail. A chronological flashback into the constitutional and statutory changes relevant to this issue, in juxtaposition with the state of the penal laws during the periods material thereto, would accordingly be desirable and instructive. On October 22, 1975, Presidential Decree No. 818 introduced the following amendment to Article 315 of the Revised Penal Code: Sec. 1. Any person who shall defraud another by means of false pretenses or fraudulent acts as defined in paragraph 2(d) of Article 315 of the Revised Penal Code, as amended by Republic Act No. 4885, shall be punished by: 1st. The penalty of reclusion temporal if the amount of the fraud is over 12,000 pesos but does not exceed 22,000 pesos, and if such amount exceeds the latter sum, the penalty provided in this paragraph shall be imposed in its maximum period, adding one year for each additional 10,000 pesos; but the total penalty which may be imposed shall in no case exceed thirty years. In such cases, and in connection with the accessory penalties which may be imposed under the Revised Penal Code, the penalty shall be termed reclusion perpetua; xxx xxx xxx Preliminarily, it may be asked whether a penalty higher than reclusion temporal but less than thirty (30) years may properly be categorized and considered as embraced within the penalty of reclusion perpetua, as has been provided in said amendatory decree, the common praxis being to attribute to reclusion perpetua and the other perpetual penalties a duration of thirty (30) years. We hold that there is legal basis, both in law and logic, for Presidential Decree No. 818 to declare that any penalty exceeding twenty (20) years, or the maximum duration of reclusion temporal, is within the range of reclusion perpetua. It will be observed that Article 27 of the Code 7 provides for the minimum and maximum ranges of all the penalties in the Code (except bond to keep the peace which shall be for such period of time as the court may determine) from arresto menor to reclusion temporal, the latter being specifically from twelve years and one day to twenty years. For reclusion perpetua, however, there is no specification as to its minimum and maximum range, as the aforesaid article merely provides that "(a)ny person sentenced to any of the perpetual penalties shall be pardoned after undergoing the penalty for thirty years, unless such person by reason of his conduct or some other serious cause shall be considered by the Chief Executive as unworthy of pardon."

The other applicable reference to reclusion perpetua is found in Article 70 of the Code which, in laying down the rule on successive service of sentences where the culprit has to serve more than three penalties, provides, that "the maximum duration of the convict's sentence shall not be more than three-fold the length of time corresponding to the most severe of the penalties imposed upon him," and "(i)n applying the provisions of this rule the duration of perpetual penalties (pena perpetual) shall be computed at thirty years." The imputed duration of thirty (30) years for reclusion perpetua, therefore, is only to serve as the basis for determining the convict's eligibility for pardon or for the application of the three-fold rule in the service of multiple penalties. Since, however, in all the graduated scales of penalties in the Code, as set out in Articles 25, 70 and 71,reclusion perpetua is the penalty immediately next higher to reclusion temporal, it follows by necessary implication that the minimum of reclusion perpetua is twenty (20) years and one (1) day with a maximum duration thereafter to last for the rest of the convict's natural life although, pursuant to Article 70, it appears that the maximum period for the service of penalties shall not exceed forty (40) years. it would be legally absurd and violative of the scales of penalties in the Code to reckon the minimum of reclusion perpetua at thirty (30) years since there would thereby be a resultant lacuna whenever the penalty exceeds the maximum twenty (20) years of reclusion temporal but is less than thirty (30) years. On the main issue now, it will be recalled that before the ratification of the present Constitution on February 2, 1987, the rule on non-bailability of a criminal offense was singularly in the case of a capital offense where the evidence of guilt is strong. 8 Thus, as late as the 1985 Rules on Criminal Procedure effective on January 1, 1985, bail was a matter of right, except in a capital offense when the evidence of guilt thereof is strong 9 and, following the traditional concept, a capital offense, as the term is used in said Rules, is an offense which, under the law existing at the time of its commission and at the time of the application to be admitted to bail, may be punished with death. 10 Offenses punishable with reclusion perpetua, were accordingly bailable. With the prohibition in the 1987 Constitution against the imposition of the death penalty, 11 a correlative provision therein categorically declared the unavailability of bail to persons charged with offenses punishable by reclusion perpetua when the evidence of guilt is strong. 12 Correspondingly, the aforecited Section 3 of Rule 114 was amended to provide that no bail shall be granted to those charged with "an offense which, under the law at the time of its commission and at the time of the application for bail, is punishable by reclusion perpetua, when evidence of guilt is strong." 13 There can be no pretense that such unequivocal and explicit provisions in the Constitution and the Rules of Court would admit of any exception, qualification or distinction. With such developmental antecedents, it may not be said that the framers of the 1987 Constitution, a number of whom were lawyers and who can plausibly be credited even by the censorious with at least a working knowledge of criminal law and procedure, were unaware of the felonies under the Revised Penal Code which were already punishable with the penalty of reclusion perpetua and which, with the amendments introduced by the present Constitution, would become non-bailable offenses as a consequence. Specifically with respect to the offense of estafa involved in the present case, the members of the Constitutional Commission could not have been oblivious of Presidential Decree No, 818, which took effect as early as 1975 and was given extensive media coverage at the instance or with the cooperation of the banking community, providing for the penalty of reclusion perpetua where bouncing checks of the requisite amount are involved.

For that matter, as will hereafter be demonstrated, there are other crimes involving government and private funds or property which theretofore were also already punished with reclusion perpetua. Hence, under the rule ofcontemporanea expositio and since the felony of estafa was not expressly or impliedly excluded from the aforestated provisions on non-bailability, we see no reason why an accused charged with estafa punishable byreclusion perpetua should now be given the exceptional and favored treatment of being admitted to bail. The same may be said of any accused charged with any offense so punished, whether the penalty of reclusion perpetua is by direct statutory prescription or is imposed as a consequence of the interplay of related provisions of the Code. It is suggested that since estafa is a crime against property and supposedly not as "heinous" as crimes against persons or chastity, such as murder or rape, it should not be equated with the latter felonies in justifying the denial of bail to the accused. From the preceding disquisition, the obvious riposte is that this is a matter which should properly be addressed to the legislature. It is not for this Court, by judicial legislation, to amend the pertinent provisions of the Revised Penal Code, much less the Constitution. Nor is it for us to intrude into the policy considerations, absent blatant abuse of legislative power or capricious exercise thereof, which impelled the legislative categorization of an offense as being so abominable or execrable as to call for a denial of the right to bail. On this score, we can take judicial notice that multimillion or large-scale estafa cases and inveterate or professional swindlers have inflicted untold damages and misery not only on one or two but on countless victims in this country. It will further be observed that Presidential Decree No. 818 does not apply to all forms of estafa but only to estafa by means of deceit under paragraph 2(d) of Article 315, that is, estafa through the use of so-called bouncing checks. 14 The preambular clauses of said decree duly express the rationale for the amendment introduced thereby in this wise: WHEREAS, reports received of late indicate an upsurge of estafa (swindling) cases committed by means of bouncing checks; WHEREAS, if not checked at once, these criminal acts would erode the people's confidence in the use of negotiable instruments as a medium of commercial transaction and consequently result in the retardation of trade and commerce and the undermining of the banking system of the country; WHEREAS, it is vitally necessary to arrest and curb the rise in this kind of estafa cases by increasing the existing penalties provided therefor; xxx xxx xxx Now, as earlier stated, on analogous considerations in the formulation of punitive policies, the penalty of reclusion perpetua is imposed in one felony under the title on crimes committed by public officers and in three felonies under the title on crimes against property. These provisions have been in the Revised Penal Code long before Presidential Decree No. 818 was effected and may have been the bases for the amendments introduced by the latter. Thus, in malversation of public funds or property, if the amount involved exceeds P22,000.00, the penalty shall bereclusion temporal in its maximum period to reclusion perpetua. 15

In robbery, when by reason or on the occasion of which any of the physical injuries penalized in subdivision 2 of Article 263 is committed (which includes mere incapacity from the victim's habitual work for more than ninety days), the penalty is reclusion temporal. 16 However, if in said robbery the property taken is mail matter or large cattle, the offender shall suffer the penalty next higher in degree, that is, reclusion perpetua. 17 In the crime of theft, if the value of the thing stolen exceeds P22,000.00, the penalty shall be prision mayor in its maximum period and one year for each additional P10,000.00, but the total penalty shall not exceed twenty years or reclusion temporal. 18 However, if that crime of theft is attended by any of the qualifying circumstances which convert the taking into qualified theft, the penalty next higher by two degrees shall be imposed, 19 that is, at leastreclusion perpetua. The felony of destructive arson, which includes the burning of any building where people usually gather or congregate for a definite purpose is now punished by reclusion temporal in its maximum period to death 20regardless of the resultant effects or amount of damages. The same increased penalty is imposed on other forms of arson formerly defined in paragraph l(c) and (d) of Article 321, which have now been incorporated by Presidential Decree No. 1744 in Article 320 as destructive arson, regardless of the damages caused or whether or not the purpose is attained. From the foregoing discussion, it is evident that the legislative criteria for the imposition of reclusion perpetua in said offenses took into account not only the inherent odious or outrageous nature of the crime, such as the taking of a life or an assault against chastity, but also either the moral depravity or criminal perversity shown by the acts of the accused, or the necessity for protection of property in the governmental, financial or economic interests of the country. The objectives of Presidential Decree No. 818 are indubitably within the ambit of the same legislative intendment and the foregoing justifications for the imposition of higher penalties and the consequent denial of bail to the malefactor. ACCORDINGLY, the Court hereby RESOLVES (1) to ORDER the bondsman, Oriental Assurance Corporation, to surrender accused-appellant Cresencia C. Reyes within ten (10) days from notice to the Regional Trial Court of Manila, Branch 37, and to immediately inform this Court of such fact of surrender; and (2) to REQUIRE said Regional Trial Court, immediately after such surrender, to order the transmittal of the accused-appellant to the Bureau of Corrections through the Philippine National Police and to forthwith report to this Court its compliance therewith. S0 ORDERED. Narvasa, C.J., Gutierrez, Jr., Cruz, Feliciano, Padilla, Bidin, Grio-Aquino, Medialdea, Davide, Jr., Romero, Nocon and Bellosillo, JJ., concur.

G.R. No. L-439

August 20, 1946

EDUARDO OCAMPO, Petitioner, vs. JOSE BERNABE, EMILIO RILLORAZA, and ANGEL GAMBOA, Judges of People's Court (Fourth Division), Respondents. MORAN, C.J.: chanrobles virtual law library This is a petition for certiorari filed by Eduardo Ocampo to set aside an order issued by the Fourth Division of the People's court denying his application for bail.chanroblesvirtualawlibrary chanrobles virtual law library The petitioner was arrested by the Counter Intelligence Coprs of the Armed Forces of the United States and confined in Muntinglupa Prisons since July 30, 1945, and pursuant to Executive Order No. 6555 he was turned over to the Commonwealth of the Philippines and later on filed with the Peoples Court his application for bail under Act No. 682. At the hearing of the application, the special prosecutor stated that petitioner with having pointed out Placido Trinidad as a guerilla to the Japanese and for that reason Placido Trinidad was shot to death. No evidence, however, was presented by the special prosecutor and all that he did at the hearing was to recite the contents of an affidavit which has no referrence to count No. 4, and to state further that he had 27 more affidavits. Petitioner made an objection stating that a mere recital is not a evidence and that evidence cannot be considered strong which has not been subjected to the test of cross-examination. He testified in his own behalf in denying all the charges preferred against him and stated that said charges are mere intrigues of his political enemy Marcelo Trinidad. He presented two affidavits, one of Leoncia Nario and the other of Eugenio Trinidad, mother and uncle, respectively, of Placido Trinidad, wherein it is stated that Placido Trinidad was killed by the Japanese because of his having attempted to wrest a revolver from a foreman in charge of a detail at work under orders of the Japanese and that petitioner had nothing to do with such killing.chanroblesvirtualawlibrary chanrobles virtual law library Under all these circumstances, the Fourth division of the People's Court composed of Judges Jose Bernabe, Emilio Rilloraza and Angel Gamboa, issued an order dated February 23, 1946, denying the application for bail. Hence, this petition for certiorari, predicated upon the theory that no proof having been presented by the special prosecutor to show that the evidence of guilt is strong, the People's Court committed a grave abuse of discretion in denying the application for bail.chanroblesvirtualawlibrary chanrobles virtual law library We have held in Herras Teehankee vs. Director of Prisons (76 Phil., 756), that all persons shall before conviction be bailable except when charge is a capital offense and the evidence of guilt is strong. the general rule, therefore, is that all persons, whether charged or not yet charges, are, before their conviction, entitled to provisional release on bail, the only exception being where the charge is a capital offense and the evidence of guilt is found to be strong. At the hearing of the application for bail, the burden of showing that the case falls within the exception is on the prosecution, according to Rule 110, section 7. The determination of whether or not the evidence of guilt is strong is, as stated in Herras Teehankee case, a matter of judicial discretion. This discretion, by the very nature of things, may rightly be exercise only after the evidence is submitted to the court at the hearing. Since the discretion is directed to the weight of evidence cannot properly be weighed if not duly exhibited or produced before the court (Ramos vs. Ramos, 45 Phil., 362), it is obvious that a proper exercise of judicial discretion requires that the evidence of guilt be submitted to the court, the petitioner having the right of cross-examination and to introduce his own evidence in rebuttal. Mere affidavits or recital of their contents are not

sufficient since they are mere hearsay evidence, unless the petitioner fails to object thereto.chanroblesvirtualawlibrary chanrobles virtual law library And this is the prevailing doctrine in the United States according to authorities to be quoted later. In some states of the American union, the burden of showing that proof is evident or the presumption great, lies on the prosecution while in others on the petitioner, but the rule seems to be uniform to the effect that no matter which side bears the burden of proof, the evidence of guilt should be adduced before the court for a proper determination of its probative force. In American Jurisprudence the following appears: . . . The English rule is, however, by no means uniformly followed in the United States. In some jurisdictions the case is heard de novo, the solicitor and prosecutor are notified to attend, and witnesses are subpoenaed both for the state and for the defendant and are examined before the court. This practice seems generally to be followed, and it may be laid down as abroad principle that where bail is not a matter of right, the burden is upon the petitioner to produce facts sufficient to entitle him to bail at the hearing. He is therefore both required and permitted to introduce evidence doing to the merits of the case against him. Ordinarily, the presumption is with the state, and it is proper to require the prisoner to introduce evidence in the first instance, although it imposes upon him the necessity of producing evidence upon which the state intends to rely for his conviction on the final trial. the accused will not, by this procedure, be denied the opportunity of cross-examining the people's witnesses. However, in some jurisdictions, the courts have gone so far as to hold that the duty is upon the prosecuting attorney, in resisting an application, to begin the proceedings by the introduction of evidence showing that the applicant is not entitled to bail. (6 Am. Jur., section 47, p. 70.). xxx xxx xxx

The general rule followed in the United States is more liberal than that of the common law, and the mere fact that a grand jury has found an indictment for murder will not generally preclude the court from inquiry into the facts of the case. On this inquiry the witnesses for the prosecution may be called, and the accused is not required to produce the testimony of any other witnesses. Furthermore, the accused is entitled to go behind the indictment and introduce evidence going to the merits of the case. The inquiry should not be limited to determining the probable degree of the homicide, but should include the determination of the character of the proof or the strength of the presumption respecting whether or not the defendant did the killing or was connected with it as a guilty agent. A case for the allowance of bail after indictment may also be presented where the public prosecutor admits that under the evidence obtainable no conviction of a capital offense can be had, or where there has been a failure to convict, or where a verdict of guilty has been reversed by reason of the insufficiency of the evidence. (6 Am. Jur., section 50, p. 71.) In corpus Juris Secundum the rule is summarized as follows: Unless the presumption from an indictment for a capital offense is conclusive against accused which has been considered in section 34 b(2) (b)the determination as to whether the proof is evident or the presumption great must, on an original application, be determined from the evidence adduced on the application no matter which side bears the burden of proof. Where accused under a capital indictment bears the burden of proof he should offer the witnesses whose names are endorsed on the indictment, although he is not imited to such witnesses.chanroblesvirtualawlibrary chanrobles virtual law library

The court should hear all material and relevant evidence offered by either party, such as the grand jury minutes, and should consider the evidence as a whole. (8 C.J.S., section 46 [b], p. 94.). See also the following authorities: Under the 17th section of the Alabama Bill of Rights, which declares that "all persons shall, before conviction, be bailable by sufficient securities, except for capital offenses where the proof is evident or the presumption great," and under the Alabama statutes upon the hearing of applications for bail, either before or after indictment, the court is not, as according to the practice in England, confined to the written evidence taken down before the committing magistrate; but the case is heard de novo the solicitor and prosecutor are notified to attend, and witnesses are subpoenaed both for the state and for the defendant, and examined before the court, which is to decide the application upon the evidence produced. Code sections 3721, 3722,3732, 3733, 3745, 3746, 3669, 3673. Ex parte Bryant, 34 Ala., 270. (Re Thomas, 20 Okla., 167; 93 Pac., 980; 39 L. R. A., New Series, pp. 752, 775.).chanroblesvirtualawlibrary chanrobles virtual law library In capital case, application for bail calls for exercise of judicial discretion in determining probability of defendant's guilt which requires submission of evidence. (Shaw vs. State, 47 S.W. [2d], 92; 164 Tenn., 192; 8 C.J.S., p. 94, fn. 80.).chanroblesvirtualawlibrary chanrobles virtual law library Applicant for bail under Burns' St. Annot. (1914), section 2025, seeking to overcome presumption of truth of indictment, must introduce the evidence of witnesses as indicated by indictment, and also such witnesses as state indicates it relies on. (McAdams vs. State, 147 N.E., 764; 196 Ind., 184; 8 C.J.S., p. 94, fn. 80.) chanrobles virtual law library When names of state witnesses are placed upon the indictment the presumption is that all should not be required to produce the testimony of any other witnesses on behalf of the state. Where no witnesses are placed on the indictment, it is incumbent on the state attorneys, on application for bail, to furnish the accused with a list of the witnesses relied on by the state in due time to secure their presence or testimony; otherwise he could not know what was the testimony upon which the state relied. In case no witnesses are placed upon the indictment and a list is duly furnished by the prosecuting officer, the accused should produce the witnesses for the state in connection with his own, if he had any, in order that the judge may determine from all the testimony in the case whether the proof was not evident or the presumption not great. xxx xxx x x x chanrobles virtual law library

Upon the hearing it is proper to require the prisoner to begin the evidence, although it imposes upon him the necessity of producing evidence upon which the state intended to rely for his conviction on the final trial. But the accused will not by this procedure be denied the opportunity of cross-examining the people's witnesses. (Ex parte Heffren, 27 Ind., 87. To the same effect, Rigdon vs. State, 41 Fla., 308; 26 So., 711; ex parte Nathan[Fla.]; 50 so., 38." (39 L. R. A., New Series, pp. 752, 774, 775.).chanroblesvirtualawlibrary chanrobles virtual law library The evidence for the state, as well as that for the accused, should be presented (1) by the petitioner in an application for bail. (Ex parte Tully [Fla.], 66 S., 296; Rigdon vs. State, 41 Fla., 308; 26 S., 711; Ex parte Heffren, 27 Ind., 87. (2) But the petitioner, by proper procedure, may

test the probative force of the testimony for the state in order to fully present his case for the purposes of the hearing. Ex parte Tully, supra; Ex parte Heffren, supra. (6 C.J., p. 984, fn. 50 [a], section 214.).chanroblesvirtualawlibrary chanrobles virtual law library Where on a motion to admit to bail after the indictment, the evidence of the witnesses who testified before the grand jury does not make a prima facie case against the accused, he is entitled to bail, and it is an error to refuse bail upon the statement of the district attorney that he has other evidence which he will not disclose for fear of weakening the state's case. (In ex parteReynald, 37 Texas, 1.) And this is in conformity with the former rulings of this Court. In Marcos vs. Cruz (67 Phil., 82), we said: Se arguye que el Juez recurrido, antes de expedir el mandamiente de arresto de los acusados, examino a los dos testigos de cargo que presento el fiscal y que estas pruebas establecieron asimismo la presuncion de culpabilidad de los acusados y el requerimiento adicional de que las pruebas de culpabilidad deben ser evidentes. No podemos prestar nuestro asentimiento a esta pretension. No debe olvidarse que tales pruebas se recibieron en ausencia de los acusados y estos no tuvieron oportunidad de verles declarar ni de repreguntarles. . . . Otras razones que impiden el que tales pruebas puedan tener en cuenta contra los acusados son; que el fiscal no las produjo ni ofrecio en la vista de las peticiones de libertad bajo fianza. . .. En tales circunstancias era deber del Juez recurrido requerir al fiscal que presente sus pruebas para demostrar que el delito imputado era capital, que las pruebas eran evidentes y que la presuncion de culpabilidad era fuerte. In Herras Teehankee vs. Director of Prisons, supra, we said: When the first proviso of section 19 of Commonwealth Act No. 682 and Article III, section 1, paragraph 16, of the Constitution, refer to the case where the court finds that there is strong 'evidence' of the commission of a capital offense, they necessarily mean evidence properly adduced by the parties or any of them before it, in the manner and from prescribed by the laws and rules of judicial procedure. . . . True that in the same case of Herras Teehankee vs. Director of Prisons, supra, we said that the hearing of an application for bail should be summary or otherwise in the discretion of the court. By "summary hearing" we meant such brief and speedy method of receiving and considering the evidence of guilt as is practicable and consistent with the purpose of the hearing which is merely to determine the weight of the evidence for purposes of bail. On such hearing, the court "does not sit to try the merits or to enter into any nice inquiry as to the weight that ought to be allowed to the evidence for or against accused, nor will it speculate on the outcome of the trial or on what further evidence may be therein offered and admitted." (8 C. J. S., 93,94.) The course of the inquiry may be left to the discretion of the court which may confine itself to receiving such evidence as has reference to substantial matters avoiding unnecessary thoroughness in the examination and cross-examination of witnesses and reducing to a reasonable minimum the amount of corroboration particularly on details that are not essential to the purpose of the hearing.chanroblesvirtualawlibrary chanrobles virtual law library Objection has been made long ago to this method of hearing wherein the regular trial is anticipated though to a limited extent at least. but the objection was dismissed as follows:

The second objection is more serious, and, if the courts possessed entire freedom of action in regard to the matter, would be very persuasive. The regular trial is, to a limited extent at least, anticipated. While the guilt or innocence of the accused is not to be determined, the quantity and character of the proofs on this point are, for the special purpose in hand, necessarily considered. Occasionally much time is thus consumed, and the court's attention is correspondingly diverted from other business. But these objections cannot avail against a positive constitutional command; if the Constitutional requires the court to determine for itself whether or not the proof is evident or presumption great in a given case, all considerations of expediency or convenience, however potent they might be at the common law, must give way. (Re Losasso, 10 L.R.A. [1890], 847, 850.) It appearing in the instant case that on the hearing of the application for bail filed by the petitioner no proof was offered by the prosecution to show that the evidence of guilt is strong, the Fourth Division of the People's Court committed a grave abuse of discretion in denying the bail applied for.chanroblesvirtualawlibrary chanrobles virtual law library In view of the foregoing, the order of the fourth Division of the People's court dated February 23, 1946, denying the application for bail filed by the petitioner, is hereby set aside, and if appearing that said order is but a misconception of the procedure to be followed in this kind of cases, the respondent court is hereby ordered to hold another hearing in the manner herein described and within seven days from notice for the purpose of determining whether petitioner may be released on bail. Without costs.chanroblesvirtualawlibrary chanrobles virtual law library Paras, Hilado, Bengzon, Briones, Padilla, and Tuason, JJ., concur. Pablo M., conforme con la parte dispositiva.

Separate Opinions chanrobles virtual law library PERFECTO, J., dissenting: chanrobles virtual law library There should not be any disagreement that at the hearing of the application for bail in capital offenses "the burden of showing that the case falls within the exception is on the prosecution"; that the determination of whether or not the evidence of guilt is strong is a matter of judicial discretion; that this discretion may rightly be exercised "only if the evidence is submitted to the court at the hearing"; that petitioner had the "right of cross-examination and to introduce his own evidence in rebuttal"; that contrary to the wrong doctrine set up in Duran vs. Abad Santos (74 Phil., 410), "mere affidavits or recital of their contents are not sufficient since they are mere hearsay evidence," which, in our opinion, even if not objected to, are inadmissible, because the omission can not turn a bad evidence into a good one.chanroblesvirtualawlibrary chanrobles virtual law library Upon the facts of this case, we fully concur in the following pronouncement in the majority opinion: It appearing in the instant case that on the hearing of the application for bail filed by the petitioner no proof was offered by the prosecution to show that the evidence of guilt is strong,

the Fourth Division of the People's court committed a grave abuse of discretion in denying the bail applied for. The natural and logical consequence of the above pronouncement, to any one's mind, will be that the "grave abuse" of denial should be corrected by a reverse action, that is, ordering the People's court to grant the bail applied for, by following the short-cut procedure adopted by this Court in Herras Teehankee vs. Director of Prisons (76 Phil., 630), that of directly granting the bail, a prompt procedure wholly justified in view of the fact that petitioner Ocampo has already been deprived of his liberty for more than one year (since July 30, 1945), and the delay in granting him bail, notwithstanding that he is entitled to it, is in great measure, due to the lower court's "grave abuse." chanrobles virtual law library We can not but be painfully surprised by the fact that the majority add more delay in the granting of bail, in giving the prosecution further chance to correct its error and the lower court additional opportunity, in an unnecessary procedure, to commit more errors and grave abuses as those four ones committed by the same People's Court in the two Herras Teehankee cases (75 Phil., 634 and 76 Phil., 630), by disposing of the case as follows: In view of the foregoing, the order of the Fourth Division of the People's Court dated February 23, 1946, denying the application for bail filed by the petitioner, is hereby set aside, and it appearing that said order is but a misconception of the procedure to be followed in this kind of cases, the respondent court is hereby ordered to hold another hearing in the manner hereindescribed and within seven days from notice for the purpose of determining whether the evidence of guilt is strong and, therefore, whether petitioner may be released on bail. Without costs. It was since October 5, 1945, more than ten months ago, when petitioner filed his original application for bail. It was denied on October 18. On October 30, petitioner prayed for its reconsideration and at the same time asked the People's Court to set the case for hearing and to require the prosecution to show that there was strong evidence of petitioner guilt. On November 10 the motion for reconsideration was denied, the People's Court stating that it granted an ex parte hearing to the special prosecutor. On November 26 petitioner filed a pleading alleging that, contrary to what was stated in the lower court's order of November 10, neither the Solicitor General nor any of the special prosecutors appeared at the hearing of the motion for reconsideration in spite of the fact that their office had been notified beforehand of the hearing. On December 28 petitioner moved that a day be set for the hearing of this petition dated October 30, in which both parties should be present and the prosecution should adduce evidence, with the corresponding right of the petitioner to prove that he was entitled to be released on bail, in accordance with the ruling in Herras Teehankee vs. Rovira (75 Phil., 634). The inaction of the People's Court upon the motion of December 28, compelled petitioner to file another motion on January 18, 1946, reiterating his request that hearing be granted. The People's Court set the petition for hearing, which took place on February 18, and which the prosecution, instead of proving the existence of strong evidence of petitioner's guilt, merely informed the court, over petitioner's objection, that it was in possession of a number of affidavits against the petitioner and gave an idea of the contents thereof. None of said affidavits was, however, presented. In order to counteract whatever influence the statements of the prosecution might bring to bear upon the court, petitioner took the witness stand and denied under oath all the charges imputed against him by the prosecution. To rebut the reputation that he caused the death of guerrilla, Placido Trinidad, he presented affidavits of the mother and uncle of the alleged victim showing that petitioner had nothing to do with his death, because the deceased

was killed by the Japanese for his attempt to wrest a revolver from a foreman in charge of a work under orders of the Japanese. On February 23, 1946, more than four months after the original petition for bail was filed, the lower court denied petitioner's prayer to be bailed.chanroblesvirtualawlibrary chanrobles virtual law library In April, 1946, the petition was filed before this Supreme Court. It is regrettable that on so urgent a matter as the present one, affecting as it does the personal freedom of a citizen, the Supreme Court had to need more than four months to render a decision. The situation is aggravated by the fact that, delaying further the granting of petitioner's bail, the People's court is ordered to hold another hearing.chanroblesvirtualawlibrary chanrobles virtual law library If in the Herras Teehankee case (supra), the Supreme Court, losing patience for the errors, grave abuses and dillydallying of the People's Court, ordered directly the granting of bail to Mrs. Teehankee, the petitioner in the present case has a better claim to a similar relief, not only because the prosecution did not present any evidence to show petitioner's guilt, a situation identical to the one in Herras Teehankee, but petitioner volunteered evidence showing, without any contradiction, that he is innocent of the charges against him. In the Herras Teehankee case, there was only an absence of evidence of guilt; whereas in the present case, there is the presence of evidence of innocence.chanroblesvirtualawlibrary chanrobles virtual law library In view of all the foregoing, and because the dispositive part of the majority decision is irreconcilably inconsistent with the premises of fact and law in the same decision, we dissent and vote that petitioner should be released on bail upon the filing of a bond in the amount of P10,000.

Republic of the Philippines SUPREME COURT Manila EN BANC DECISION April 21, 1958 G.R. No. L-10724 THE PEOPLE OF THE PHILIPPINES, plaintiff-appellant, vs. MELQUIADES RABA, ET AL., defendants. CLEMENTE TALANTOR, defendant-appellee. Office of the Solicitor General Ambrosio Padilla and Solicitor Meliton G. Soliman for appellant. M.F. Zamora, Eduardo S. Dayot and Serafin L. Abogado for appellee. , J.: Clemente Talantor and Melquiades Raba were charged with murder before the Court of First Instance of Antique and the bail for each was fixed by the court at P30,000 as recomended by the provincial fiscal. On April 26, 1956, after the arraignment of the acccused at which both pleaded not guilty to the charge, Talantor filed with the court an urgent motion praying that the amount of the bond fixed for his provisional liberty be reduced from P30,000 to P14,000 in order to enable him to go on bail. While the motion setting the hearing thereof in the morning of the same date, contains a notification to the provincial fiscal, however, the latter was actually notified at 9:40 oclock in the morning of the same day. Despite this lack of due notice, the court promptly granted the motion for the reduction of bail one hour later. On April 28, 1956, the provincial fiscal presented a motion for reconsideration of the order granting the reduction of the bail to P14,000 on the ground that it is irregular because no proper notice of the hearing of the motion for such reduction was given to him as required by the rule to enable him to prove that there exist strong evidence which would warrant the denial of the motion. The motion was denied, hence this appeal. There is merit in this appeal. The Rules of Court make it a duty of a movant to serve notice of his motion on all parties concerned at least three days before the hearing thereof (section 4, Rule 26). This requirement is more imperative in a criminal case where a person is accused of a capital offense for in such a case admission to bail is a matter of discretion which can only be exercised after the fiscal has been heard regarding the nature of the evidence he has in his possession. Thus, it is provided that When admission to bail is a matter of discretion the court must require that reasonable notice of the hearing of the application for bail be given to the fiscal (section 8, Rule 110), and such notice is necessary because the burden of showing that

evidence of guilt is strong is on the prosecution (section 7, Rule 110). Here Talantor is charged with a capital offense and while the fiscal fixed a bail of P30,000 for his provisional liberty, its further reduction could not be granted without hearing him because the evidence in his possession may not warrant it. It has been held that The determination of whether or not the evidence of guilt is strong is a matter of judicial discretion. This discretion, by the very nature of things, may rightly be exercised only after the evidence is submitted to the court at the hearing. Since the discretion is directed to the weight of evidence and since evidence cannot properly be weighed if, not duly exhibited or produced before the court (Ramos vs. Ramos, 45 Phil. 362), it is obvious that a proper exercise of judicial discretion requires that the evidence of guilt be submitted to the court, the petitioner having the right of cross-examination and to introduce his own evidence in rebuttal. (Ocampo vs. Bernabe, 77 Phil. 55, 56; Emphasis supplied.) Considering that Talantor did not serve notice of his motion to reduce bail on the provincial fiscal at least three days before the hearing thereof and the court failed to require that a reasonable notice thereof be given to said fiscal, it is evident that the court acted improperly in reducing the bail without giving the fiscal an opportunity to be heard. We wish however to state that the remedy the fiscal should have availed of is certiorari and not appeal considering that the orders herein involved are interlocutory in nature (Rule 41, Section 2). The orders of April 26, 1956 reducing the bond of Talantor to P14,000, as well as that approving the bail bond as thus reduced, are hereby set aside. Bengzon, Montemayor, Reyes, A., Labrador, Concepcion, Reyes, J.B.L., Endencia and Felix, JJ., concur. Paras, C.J., concurs in the result.

Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. L-56158-64 March 17, 1981 PEOPLE OF THE PHILIPPINES, petitioner, vs. MAYOR PABLO SOLA, SANGGUNIANG BAYAN MEMBER FRANCISCO (ECOT) GARCIA, RICARDO (CADOY) GARCIA, JOSE BETHOVEN (ATSONG) CABRAL, CAPTAIN FLORENDO BALISCAO, JOHN, PETER, OSCAR, OMAR, JACK, RICHARD, JAMES, DONALD, WILLIAM, ROBERT, HOMER, JESSIE, ANDY, PAUL, all surnamed DOES respondents.

FERNANDO, C.J.: The power of this Tribunal, constitutionally mandated, 1 to order a change of venue to avoid any miscarriage of justice as well as the procedure ordained in the implementation of the right to bail 2 are involved in this petition which, even if not so denominated, partakes of the nature of a certiorari. It must have been the zeal of private prosecutors Francisco Cruz and Renecio Espiritu, 3 no doubt under the conviction that there was no time to lose, that must have led them to devote less than that full measure of attention to certain fundamentals. They ignored the principle that the responsibility for the conduct of the prosecution is with the public officials concerned. Nonetheless, the importance of the questions raised, the need for a change of venue and the cancellation of the bail bonds, necessitated that further action be taken. Accordingly, in a resolution dated February 12, 1981, one day after the filing of the petition, the Court required the comment of the Solicitor General as well as of the private respondents, 4 the accused in six pending criminal cases before the Court of First Instance of Negros Occidental. On March 4, 1981, the Comment was submitted by Solicitor General Estelito P. Mendoza. 5 It opened with this preliminary statement: "The present petition was filed by the private prosecutors in Criminal Cases Nos. 1700-1706, People v. Pablo Sola, et al., pending trial before the Court of First Instance of Negros Occidental. Rightly, any petition before this Honorable Court on behalf of the People of the Philippines can, under the law, be instituted only by the Solicitor General. The assertion of the petitioner private prosecutors that they are instituting the action 'subject to the control and supervision of the Fiscal' will not, therefore, improve their legal standing." 6Nonetheless, it did not press the legal point but instead adopted "the two-pronged trusts of the petition: 1. the setting aside, by certiorari, of the order of the Municipal Court of Kabankalan, presided over by Judge Rafael Gasataya, granting bail to the accused in the criminal cases mentioned above, and 2. the petition for a change of venue or place of trial of the same criminal cases to avoid a miscarriage of justice. 7 The facts were therein narrated thus: "On September 15, 1980, acting on the evidence presented by the Philippine Constabulary commander at Hinigaran, Negros Occidental, the Court of First Instance of that province issued a search warrant for the search and seizure of tile deceased bodies of seven persons believed in the possession of the accused Pablo Sola in his

hacienda at Sta. Isabel, Kabankalan, Negros Occidental. * * * On September 16, 1980 armed with the above warrant, elements of the of the 332nd PC/INP Company proceeded to the place of Sola. Diggings made in a canefield yielded two common graves containing the bodies of Fernando Fernandez, Mateo Olimpos, Alfredo Perez, Custodio Juanica, Arsolo Juanica, Rollie Callet and Bienvenido Emperado. On September 23 and October 1, 1980, the PC provincial commander of Negros Occidental filed seven (7) separate complaints for murder against the accused Pablo Sola, Francisco Garcia, Ricardo Garcia, Jose Bethoven Cabral, Florendo Baliscao and fourteen (14) other persons of unknown names. The cases were docketed as Criminal Cases No. 4129, 4130, 4131, 4137, 4138, 4139 and 4140 of the Municipal Court of Kabankalan. After due preliminary examination of the complainant's witnesses and his other evidence, the municipal court found probable cause against the accused. It thus issued an order for their a. rest. However, without giving the prosecution the opportunity to prove that the evidence of guilt of the accused is strong, the court granted them the right to post bail for their temporary release. The accused Pablo Sola, Francisco Garcia, and Jose Bethoven Cabral availed themselves of this right and have since been released from detention. In a parallel development. the witnesses in the murder cases informed the prosecution of their fears that if the trial is held at the Court of First Instance branch in Himamaylan which is but 10 kilometers from Kabankalan, their safety could be jeopardized. At least two of the accused are officials with power and influence in Kabankalan and they have been released on bail. In addition, most of the accused remained at large. Indeed, there have been reports made to police authorities of threats made on the families of the witnesses." 8 The facts alleged argue strongly for the remedies sought, namely a change of venue and the cancellation of the bail bonds. On the very next day, March 15, 1981, this Court issued the following resolution: "The Court Resolved to: (a) [Note] the comment of the Solicitor General on the urgent petition for change of venue and cancellation of bail bonds, adopting the plea of the petition, namely, (1) the setting aside, by certiorari, of the order of the Municipal Court of Kabankalan, presided over by Judge Rafael Gasataya, granting bail to the accused in Criminal Cases Nos. 4129, 4130, 4131, 4137, 4138, 4139 and 4140, all entitled "People of the Philippines v. Mayor Pablo Sola. et al."; (2) the petition for a change of venue or place of trial of the same criminal cases to avoid a miscarriage of Justice; (b) [Transfer] the venue of the aforesaid criminal cases to Branch V of the Court of First Instance of Negros Occidental at Bacolod City, presided by Executive Judge Alfonso Baguio, considering that District Judge Ostervaldo Emilia of the Court of First Instance, Negros Occidental, Branch VI at Himamaylan has an approved leave of absence covering the period from January 12 to March 12, 1981 due to a mild attack of cerebral thrombosis and that the said Branch V is the nearest court station to Himamaylan: and (c) [Await] the comment of respondents on the petition to cancel bail, without prejudice to the public officials concerned taking the necessary measures to assure the safety of the witnesses of the prosecution." 9 Thus, the issue of a change of venue has become moot and academic. The comments respectively submitted by respondent Florendo Baliscao on March 5, 1981, respondent Francisco Garcia on March 11, 1981 and respondent Pablo Sola on March 16, 1981, dealt solely with the question of the cancellation of the bail bonds. Such comments were considered as answers, with the case thereafter deemed submitted for decision. The sole remaining issue of the cancellation of the bail bonds of respondents, there being a failure to abide by the basic requirement that the prosecution be heard in a case where the accused is charged with a capital offense, prior to bail being granted, must be decided in favor of petitioner. The bail bonds must be cancelled and the case remanded to the sala of Executive Judge Alfonso Baguio for such hearing. So we rule.

1. It may not be amiss to say a few words on the question of transferring the place of trial, in this case, from Himamaylan to Bacolod City. The Constitution is quite explicit. The Supreme Court could order "a change of venue or place of trial to avoid a miscarriage of justice." 10 The Constitutional Convention of 1971 wisely incorporated the ruling in the landmark decision of People v. Gutierrez, 11 where Justice J. B. L. Reyes as ponente vigorously and categorically affirmed: "In the particular case before Us, to compel the prosecution to proceed to trial in a locality where its witnesses will not be at liberty to reveal what they know is to make a mockery of the judicial process, and to betray the very purpose for which courts have been established." 12 Why a change of venue is imperative was made clear in the Comment of the Solicitor General. Thus: "The exercise by this Honorable Court of its above constitutional power in this case will be appropriate. The witnesses in the case are fearful for their lives. They are afraid they would be killed on their way to or from Himamaylan during any of the days of trial. Because of qqqts fear, they may either refuse to testify or testimony falsely to save their lives. 13 Respondent Florendo Baliscao was not averse to such transfer, but his preference is for a court anywhere in Metro Manila. 14 Respondent Francisco Garcia confined his comment to the question of the cancellation of the bail bonds. Respondent Pablo Sola made clear that he had "no objection to the transfer. 15 It may be added that there may be cases where the fear, objectively viewed, may, to some individuals, be less than terrifying, but the question must always be the effect it has on the witnesses who will testify. The primordial aim and intent of the Constitution must ever be kept in mind. In case of doubt, it should be resolved in favor of a change of venue. As a matter of fact, there need not be a petition of this character filed before this Court. Such a plea could have been done administratively. In this particular case, however, there is justification for the procedure followed in view of the fact that along with the change of venue, the cancellation of the bail bonds was also sought. 2. Equally so the cancellation of the bail bonds is more than justified. Bail was granted to the accused in the Order of the Municipal Court without hearing the prosecution That is to disregard the authoritative doctrine enunciated in People v. San Diego. 16 As pointed out by Justice Capistrano, speaking for the Court: "The question presented before us is, whether the prosecution was deprived of procedural due process. The answer is in the affirmative. We are of the considered opinion that whether the motion for bail of a defendant who is in custody for a capital offense be resolved in a summary proceeding or in the course of a regular trial, the prosecution must be given an opportunity to present, within a reasonable time, all the evidence that it may desire to introduce before the court should resolve the motion for bail. If, as in the criminal case involved in the instant special civil action, the prosecution should be denied such an opportunity, there would be a violation of procedural due process, and the order of the court granting bail should be considered void on that ground." 17 These words of Justice Cardozo come to mind: "The law, as we have seen, is sedulous in maintaining for a defendant charged with crime whatever forms of procedure are of the essence of an opportunity to defend. Privileges so fundamental as to be inherent in every concept of a fair trial that could be acceptable to the thought of reasonable men will be kept inviolate and inviolable, however crushing may be the pressure of incriminating proof. But justice, though due to the accused, is due to the accuser also. The concept of fairness must not be strained till it is narrowed to a filament. We are to keep the balance true." 18 This norm which is of the very essence of due process as the embodiment of justice requires that the prosecution be given the opportunity to prove that there is strong evidence of guilt. It does not suffice, as asserted herein, that the questions asked by the municipal judge before bail was granted could be characterized as searching. That fact did not cure an infirmity of a jurisdictional character. 19 WHEREFORE, the assailed order of Judge Rafael Gasataya granting bail to private respondents is nullified, set aside, and declared to be without force and effect. Executive Judge

Alfonso Baguio of the Court of First Instance of Negros Occidental, to whose sala the cases had been transferred by virtue of the resolution of this Court of March 5, 1981, is directed forthwith to hear the petitions for bail of private respondents, with the prosecution being duly heard on the question of whether or not the evidence of guilt against the respondents is strong. This decision is immediately executory. No costs. Teehankee, Makasiar, Aquino, Concepcion, Jr., Fernandez, Guerrero, De Castro and MelencioHerrera JJ., concur. Barredo and Abad Santos, JJ., are on leave.

Republic of the Philippines SUPREME COURT Manila EN BANC

G.R. No. 78162 April 19, 1991 DIRECTOR J. ANTONIO M. CARPIO of the National Bureau of Investigation and PEOPLE OF THE PHILIPPINES, petitioners, vs. JUDGE ROMEO G. MAGLALANG of Regional Trial Court, Branch 2 at Balanga, Bataan and BENJAMIN S. ESCAO, respondents. Rolando T Cainoy for private respondent.

FERNAN, C.J.:p In the instant special civil action for certiorari, petitioner Director of the National Bureau of Investigation (NBI) charges respondent judge with grave abuse of discretion for having granted bail to Benjamin S. Escao, an accused in the ambush-slaying of Mayor Jose C. Payumo, Jr. of Dinalupihan, Bataan and for having taken petitioner to task for his alleged refusal to release said accused to the custody of the Dinalupihan police. On December 7, 1986, a few months after the ambuscade of Mayor Payumo on August 20, 1986, Escao, assisted by citizens attorney Diosdado S. Savellano, executed before supervising NBI agent Bienvenido G. Gonzales and senior agent Celso P. Abesamis a sworn statement admitting that he was one of the seven persons who gunned down Mayor Payumo in barangay San Jose, Dinalupihan, Bataan; identifying some of his companions as Agerico Cayananda, Ernesto Presto and Alex Serrano, and pointing to Mayor Payumo's political rival, Reynaldo Muli, alias Tikboy, as the person who summoned him to his house to discuss the killing of Mayor Payumo and who gave him P500 before the ambush. 1 On January 8, 1987, an information for murder 2 was filed against Escao and ten other unindentified persons by the provincial fiscal in the Regional Trial Court of Bataan at Balanga (Criminal Case No. 4014). Four days later, the Acting Executive Judge of said court issued an order of arrest against Escao recommending no bail for his provisional liberty. 3 In a certification dated January 14, 1987, NBI agent Gonzales stated that Escao was placed under arrest and detained at the NBI detention cell by virtue of said order of arrest. 4 Two days later, in his return to the warrant of arrest, patrolman Cesar B. Diego of the Balanga police, informed the court that the NBI refused to turn over to the Balanga police the custody of Escao because according to agent Gonzales, Escao was still under investigation. 5 On January 20, 1987, through counsel Rolando T. Cainoy, Escao filed in court an urgent exparte motion for his commitment at the provincial jail of Bataan on the ground that he wanted to be where his family and counsel could have easy access to him He alleged therein that his

detention at the NBI headquarters in Manila was irregular and in defiance of the warrant of arrest issued by the court. 6 In its order of January 27, 1987, the court, claiming that it had acquired jurisdiction over Escao as early as January 12, 1987, ordered the Director of the National Bureau of Investigation to deliver the person of Escao to the provincial warden of Bataan within five days from notice. 7 In his ex-parte motion for the reconsideration of said order, Director Carpio admitted that the court had jurisdiction over Escao but alleged that "effective dispensation of justice to the victim dictates that the accused be placed under the physical custody of the National Bureau of Investigation in view of the continuing further investigation pursued by the Bureau on the case": that the NBI needed physical custody of Escao for the identification of the other accused in the case who were still the objects of a manhunt by NBI agents; that in view of the finding of NBI agents that the other accused and suspects in the case were subversive elements or members of the New People's Army, it was for the best interest of Escao that he be detained at the NBI lock-up cell where security measures were adequate; and that the NBI would produce the person of Escao before the court whenever required and every time that there would be a hearing on the case. 8 Escao's counsel opposed said motion for reconsideration alleging that the same was contrary to Escao's desire to be detained at the Bataan provincial jail; that Escao had time and again maintained that he had nothing to do with the ambush-slaying and that he had been forced to sign the affidavit (before the NBI agents); that the provincial jail at Bataan had adequate security measures being only a few meters away from the Philippine Constabulary headquarters; and that the NBI's undertaking to take Escao to the court during hearings would entail a lot of expenses on his part. 9 On March 11, 1987, Escao, assisted by Atty. Ignacio M. Jungco, executed another sworn statement before NBI agents Doroteo L. Rocha and Celsa P. Abesamis, affirming the contents of his December 7, 1986 statement and stating that he preferred detention at the NBI cell because his life would be endangered at the provincial jail in Balanga. 10 Six days later, Escao wrote the presiding judge of the Regional Trial Court Branch II at Balanga stating that he had not authorized Atty. Rolando Cainoy or anybody to represent him and to request the court to transfer him to the provincial jail in Bataan, and reiterating that he preferred to stay at the NBI detention cell for his personal safety in view of his confession which implicated "big names in local politics" in the murder of Mayor Payumo. 11 Before the court could act on Director Carpio's motion for reconsideration of the order requiring him to transfer custody of Escao to the Balanga police, Escao's counsel Rolando T. Cainoy filed an application for bail stating that Escao was arrested by NBI agents on December 7, 1986 without a warrant having been presented to him and that since then he had been detained in the lock-up cell of the NBI; that said agents, also without a warrant, searched his house when he was arrested; that he was subjected to inhuman torture and forced to admit participation in the killing of Mayor Payumo and to implicate other persons, and that during the custodial investigation, he was not represented by counsel. In opposing said application, the public prosecutor averred that the accused was charged with a capital offense for which no bail may be availed of, that the reasons advanced in said

application would be overcome by strong and sufficient evidence; and that during the custodial investigation, he was represented by counsel. On April 2, 1987, the court granted the application for bail fixing the same at P30,000. The order reads: ORDER Accused Benjamin S. Escao filed on 5 March through counsel an application for admission to bail and, in support thereof, alleges that (a) As early as 7 December 1986, he had been arrested without benefit of any warrant of arrest and has since then been locked up in the lock-up cell of the National Bureau of Investigation in Manila. (b) His house was also searched on the occasion of his arrest without any search warrant by agents of said Bureau. (c) On the very date of his forcible arrest without any warrant therefor, he was subjected to inhuman tortures and thereafter made to admit participation in the killing of Mayor Jose Payumo and to implicate persons as responsible for said killing despite his being unaware of said killing or the culprits therein. (d) During such custodial investigation, Escao was not represented by counsel, a violation of his constitutional right. (e) The evidence of guilt is not strong. "In opposition to such application, the public prosecutor countered on 6 March 1987 that (1) The accused is charged with capital offense, for which no bail may be availed of. (2) The reasons advanced in id application would be overcome by strong and sufficient evidence to be presented by the prosecution. (3) Considering the nature of the offense, bail should not be allowed. At the hearing set last 10 March 1987 on said application, the Court set the next day, 11 March 1987, for the reception of evidence by the state to show the strength of its evidence on the guilt of the applying accused. However, such hearing was reset, upon motion of the prosecution on grounds of lack of time to notify its witnesses, to 23 and 27 March 1987. It actually continued on 30 March 1987, after the said two days. The state presented four witnesses one alleged eyewitness to the killing, two investigators and a lawyer who witnessed the taking of the second written statement appearing to have been given by the applying accused.

It was agreed between the prosecution and the defense that whatever evidence would be presented during the hearing on the application for bail would be considered as part of the evidence in chief to be adduced later during the trial proper by the state. Hence, a fulldress cross-examination of each of the four witnesses presented by the government was afforded the defense counsel. It must be pointed out that, with the approval by the Filipino people of the Constitution of 1986 during the plebiscite held last 2 February 1987, all death penalties already imposed have been reduced, by virtue of Section 19 (1) of Article III thereof, to reclusion perpetua and the death penalty may no longer be imposed, unless, for compelling reasons involving heinous crimes, the Congress shall hereafter provide for it. However, since elections for members of that legislative body have yet to be elected (sic) on 11 May 1987, no such legislation has been and cannot yet be expected to be enacted as of the present. Consequently, Section 4 of Rule 114 of the 1985 Rules of Criminal Procedure has been impliedly repealed, and the phrase "a capital offense" in Section 3 of the same Rule has been amended to "reclusion perpetua." A careful scrutiny of the evidence adduced by the prosecution convinces the Court that the evidence of guilt as against accused Benjamin S. Escao is not sufficiently strong as to override his constitutional right to be bailable by sufficient sureties. The very state evidence already presented shows very clearly proof of the allegations in the application for bail, except the charge of inhuman tortures. WHEREFORE, the Court hereby grants the application for bail filed by accused Benjamin S. Escao and fixes the amount thereof at Thirty Thousand Pesos (P30,000), to be posted either in cash or by a surety company enjoying good standing in this Branch of the Court in respect to its obligations in other criminal cases. SO ORDERED. Done this 2nd day of April 1987 at Balanga, Bataan. S g d . R O M E O C . M A

G L A L A N G J u d g e
1 2

It appears that on April 2, 1987, the court also required Director Carpio to justify in writing why he should not be punished for contempt within three days from notice. The court was apparently acting on a motion dated February 10, 1987 of Escao's counsel to cite Director Carpio for contempt of court for allegedly defying the order of January 27, 1987. 13 The motion was opposed by Director Carpio. 14 However, before the court could rule on the motion for contempt, on April 8, 1987, Judge Alicia L. Santos of the Regional Trial Court, Branch LXXIII at Olongapo City, issued an order approving the bail bond of P30,000 for the provisional release of Escao. 15 Hence, on April 11, 1987, the NBI released Escao from its custody. 16 On April 22, 1987, the court issued the following order: O RD E R Per order dated 2 April 1987, Director J. Antonio M. Carpio of the National Bureau of Investigation was given three days from notice thereof within which to justify in writing why he should not be punished for contempt of court for his continued disregard of the orders of this Court and defiance of its authority. He received copy of such order on 7 April 1987. Although the three-day period granted him expired last 10 April 1987, said Director did not make any explanation of any kind. On 14 April 1987 or four (4) days after the expiration of such period granted a telegram purported to have been sent to him to this Court, which was received last 15 April 1987, reading thus: In re your order dated two "April 87 personally seen by me due to exigencies April ten aye have directed and (sic) investigation as to why incident mentioned therein prejudicial to administration of justice happened hence need at least fifteen days extension within

which to give rational comment justification as required written pleading follows. It is quite clear that when the telegram was sent there was no more period to extend, the same having expired four days before. But just the same, said official is given an additional period (not an extension) up to 25 April 1987 for the submission of his written justification. Whatever investigation said official intends to make on the matter concerns only the internal administration of his bureau, a matter totally apart from his liability to this Court. However, should he intend to shift the liability to one or some of his subordinates, he must identify him or them by full name(s) and position occupied in the bureau so that they may have their respective share of such liability. Failure to make such particular identification would only result in the Director assuming full responsibility for such disregard and defiance something characterizing the principle of command responsibility. The subject Director should also remind himself of his obligation to produce before this Court on 27 April 1987 the person of the accused Benjamin Escao for his arraignment. The Court makes it very emphatic that it will brook no further withholding on said date by said Director of the production of said accused. No self-serving medical certificate of any supposed illness or any equally self-serving spurious letter supposedly signed by the accused which flimsy attempts have been resorted to before will be entertained. Continued defiance to be resorted to by said Director will only exacerbate his liability already incurred. The Court is fully aware that, despite the claim of the subject Director that he fears for the life of the subject accused, if detained in the provincial jail of Bataan at Balanga, his agents have on several occasions brought said accused to Olongapo City, to Dinalupihan, Bataan (where the alleged murder took place) even after 5:00 P.M. to a private residence there. These facts are part of the evidence already adduced by the prosecution. Just last Tuesday of last week, said accused was brought to Balanga. The only place where the subject accused has not beep brought is this Court, despite the fact that the Office of the Provincial Fiscal (where he has been brought) is not more than fifty meters from this Court. WHEREFORE, Director J. Antonio M. Carpio of the National Bureau of Investigation is required to seriously consider the foregoing facts and circumstances before continuing his serious affront to the dignity of this Court. SO ORDERED. Done this 30th day of April 1987 at Balanga, Bataan.

( S g d . ) R O M E O G . M A G L A L A N G J u d g e
1 7

On April 30, 1987, petitioner Carpio, in his capacity as Director of the NBI, filed the instant special civil action forcertiorari. Inasmuch as the People of the Philippines might be prejudiced by the admission to bail of Escao, on June 27, 1987, the Court required that the People be formally impleaded as petitioner and that the Solicitor General, who appears in criminal cases or their incidents before this Court, 18 should represent both petitioners in this case. As earlier stated, the instant petition has a two-pronged aim: to nullify the order granting bail to Escao and to divest the trial court of its jurisdiction over Criminal Case No. 4014 including the contempt incident involving petitioner Carpio. The order granting bail had been rendered moot not only by the fact that he had been released from NBI custody, but also because Escao jumped bail and did not appear on the date set for his arraignment. Hence, on May 20, 1987, the lower court ordered the arrest of Escao and the confiscation of his bail bond, directed the surety company to produce Escao and to justify why the bond should not be forfeited, and reset the arraignment. 19 On June 22, 1987, noting the

non-appearance of the accused "for the reason that according to the INP station commander at Subic Zambales, he (was) in the custody of agents of the National Bureau of Investigation," the court postponed indefinitely the arraignment of Escao. 20 And, after the surety company had failed to comply with the court's order of May 20, 1987, the court ordered the forfeiture of the bail bond in the amount of P30,000. 21These facts notwithstanding, we shall resolve the issue of the legality of the order granting bail to Escao. Although the right to bail is principally for the benefit of the accused, in the judicial determination of the availability of said right, the prosecution should be afforded procedural due process. Thus, in the summary proceeding on a motion praying for admission to bail, the prosecution should be given the opportunity to present evidence and, thereafter, the court should spell out at least a resume of the evidence on which its order granting or denying bail is based. Otherwise, the order is defective and voidable. In the often-cited decision in People vs. San Diego, 22this Court said: The court's discretion to grant bail in capital offenses must be exercised in the light of a summary of the evidence presented by the prosecution; otherwise, it could be uncontrolled and might be capricious or whimsical. Hence, the court's order granting or refusing bail must contain a summary of the evidence for the prosecution followed by its conclusion whether or not the evidence of guilt is strong. The orders of October 7, 9 and 12, 1968, granting bail to the five defendants are defective in form and substance because they do not contain a summary of the evidence presented by the prosecution. They only contain the court's conclusion that the evidence of guilt is not strong. Being thus defective in form and substance, the orders complained of cannot, also on this ground, be allowed to stand. A reading of the April 2, 1987 order convinces us that the court below was remiss in its duty as enunciated inPeople vs. San Diego. Without summarizing the factual basis of its order granting bail, the court merely stated the number of prosecution witnesses but not their respective testimonies, and concluded that the evidence presented by the prosecution was not "sufficiently strong" to deny bail to Escao. On this point alone, the April 2, 1987 order granting bail to Escao should be invalidated. There is, however, another point which has not escaped the Court's scrutiny. Said order appears to be premised on the notion that since the death penalty has been constitutionally abolished and reclusion perpetua has replaced it, bail may be granted to Escao inasmuch as at that particular point, no legislative enactment had as yet been made restoring the death penalty. This premise is invalid and reflects the lower court's reckless application of the provisions of the Constitution and the Rules of Court. Under Rule 114, Section 3 23 of the 1985 Rules on Criminal Procedure, persons charged with a capital offense when the evidence of guilt is strong are not entitled to bail. Section 4 of the same Rule defines a capital offense as "an offense which, under the law existing at the time of its commission and at the time of the application to be admitted to bail, may be punished with death." It should be noted that the crime involved must be punishable by death during two points of time: the time of its commission and the time of the application for bail. 24 The facts, however, that Mayor Payumo was killed on August 20, 1986 when the 1973 Constitution allowing the death penalty was still in force and that the application for bail was

made on March 5, 1987 during the effectivity of the 1987 Constitution which abolished the death penalty, should not have gotten in the way of resolving the application for bail in accordance with the Constitution and procedural rules. Section 13, Article III of the Constitution explicitly provides that "(a)ll persons, except those charged with offenses punishable by reclusion perpetua when evidence of guilt is strong, shall before conviction, be bailable by sufficient sureties, or be released on recognizance as may be provided by law." As the phrase "capital offenses" has been replaced by the phrase "offenses punishable by reclusion perpetua, 25 crimes punishable by reclusion perpetuainstead of those punishable by the death penalty, when evidence of guilt is strong, are the exceptions to the rule that the right to bail should be made available to all accused. 26 As the court itself acknowledged in its order of April 2, 1987 that "capital punishment" in Section 4, Rule 114 has been amended to reclusion perpetua, the court should have proceeded accordingly: i.e., resolved the application for bail pursuant to Section 13, Article III of the Constitution. It did not have to invoke the abolition of the death penalty and the lack of legislative enactment restoring it in justifying the grant of bail. All it had to do was to determine whether evidence of guilt is strong in the light of the provision of Section 13, Article III. Undeniably, the lower court has the discretion in the consideration of the strength of the evidence at hand. However, in the exercise of said discretion, the court is controlled by the following: first, the applicable provisions of the Constitution and the statutes; second, by the rules which this Court may promulgate; and third, by those principles of equity and justice that are deemed to be part of the laws of the land. 27 The lower court not only failed to properly apply the pertinent provisions of the Constitution and the Rules but it also disregarded equity and justice by its failure to take into account the factual milieu surrounding the detention of Escao. The NBI, through Director Carpio, wanted to keep Escao in its custody because he was an asset in their effort to track down the other suspects in the ambush-slaying of Mayor Payumo. Admittedly, Director Carpio had failed to comply immediately with the lower court's order of January 27, 1987 requiring him to deliver custody of Escao to the Bataan provincial warden. However, the court should not have precipitately taken it as a brazen defiance as to warrant a strongly worded order merely warning Director Carpio to obey its directives. It should have taken into account certain factors like the distance between the court and the NBI headquarters which appears to have hampered communication between them and that, as a government agency performing a task towards the same goal as the courts, the NBI would perform its functions within the bounds of law. The court's later insistence in effecting such transfer of custody, notwithstanding the reasons given by Director Carpio in his motion for reconsideration which reasons appear to this Court to be reasonable, constitutes a flagrant attempt to thwart the NBI's efforts to investigate the case and to identify all the suspects in the crime. Considering that both the court and the NBI were working toward the same end, to bring to justice the killers of Mayor Payumo, the court could do no less than give due credit to Director Carpio's allegations if not the respect due a fellow worker for justice. But as it were, the tug and pull between the lower court and the NBI over the custody of Escao became a battle of wills with the People as the eventual loser. While the NBI had its own shortcomings by its failure to give immediate attention to the court's orders and even to inform the court that Escao had been released on bail, which practices this Court cannot condone, the lower court, which is supposed to be beyond reproach, displayed an uncharacteristic propensity

to prejudge even before the actual occurence of facts as demonstrated by its order of April 20, 1987. Indeed, the court might not have in fact cited Director Carpio in contempt of court but the manner by which he took him to task and warned him in said order was totally uncalled for. WHEREFORE, the orders of April 2, 1987 and April 20,1987 are hereby declared void for hanging been issued in grave abuse of discretion. Criminal Case No. 4014 shall be transferred to the Regional Trial Court in Dinalupihan, Bataan pursuant to the resolution dated March 10, 1987 in Administrative Matter No. 87-3- 381-RTC. 28 Said court shall immediately issue a warrant for the rearrest of Benjamin S. Escao and thereafter, proceed with dispatch in the disposition of said case. This decision is immediately executory. SO ORDERED. Narvasa, Melencio-Herrera, Gutierrez, Jr., Cruz, Paras, Feliciano, Gancayco, Padilla, Bidin, Sarmiento, Grio-Aquino, Medialdea, Regalado and Davide, Jr., JJ., concur.

Republic of the Philippines SUPREME COURT Manila EN BANC DECISION October 29, 1971 G.R. No. L-34156 and L-34158 ALEJANDRO C. SIAZON, Senior State Prosecutor, Department of Justice, petitioner, vs. HON. PRESIDING JUDGE OF THE CIRCUIT CRIMINAL COURT, 16th Judicial District Davao City, JOSE ESCRIBANO, RENAN PADILLA, TIMOTEO SUPEN alias TIMOT alias, EMOT and ALFREDO SUPEN alias PEDONG, respondents. Alejandro Siazon for and in his own behalf. Estanislao A. Fernandez for respondents. MAKALINTAL, J.: Challenged as a grave abuse of discretion is an order of respondent Judge Constante E. Evangelista, presiding the Circuit Criminal Court, 16th Judicial District, Davao City, issued on September 23, 1971 in connection with the petition for bail of respondents Jose Escribano and Renan Padilla, accused with two others who are still at large, in three murder cases pending in said Court and numbered CCC-XVI-9-CC, CCC-XVI-10-CC and CCC- XVI-12-CC, respectively. Also originally accused with them was one Angelico Najar, who was subsequently discharged upon motion of the prosecution so that he could be utilized as State witness. At the outset it should be mentioned that the instant petition is formally defective in that the petitioner appears to be the State Prosecutor handling the case below instead of the People of the Philippines, who should properly be represented in this proceeding by the Solicitor General. The defect being merely formal, however, we have chosen to overlook it in the interest of a speedy disposition of this case, involving as it does a question of some urgency. The order sought to be reviewed and set aside, which contains a concise statement of what transpired before the respondent Court, reads as follows: This is an urgent supplementary petition for bail dated September 20, 1971, filed by the accused thru counsel, wherein it is prayed that the prosecution be ordered to close its evidence in support of its opposition to the applications for bail on September 23, 1971, or, in the alternative, that it be ordered to present, the state witness Angelico Najar on said date. The prosecution filed its, opposition to said supplementary petition.

At the outset, let it be stated that after the arraignment of the accused and before the commencement of the trial, the applications for bail, dated February 8 and July 2, 1971, were heard. After hearing both parties and with the announcement made by the Fiscal that he has between 40 and 50 witnesses to present, the Court ruled and ordered a joint hearing of the cases on the merits and of the applications for bail. On this same occasion the Court also considered the motion filed by the prosecution to discharge the defendant Angelico Najar. Without any objection on the part of the defense, said motion to discharge was granted and accused Najar was discharged to become state witness pursuant to Sec. 11, Rule 119 of the Rules of Court. As the trial progressed, with the prosecution presenting several witnesses whose testimonies have not established evidence directly linking the accused Escribano and Padilla to the conspiracy alleged in the informations in these cases, the defense on August 2, 1971 filed an urgent motion for the reconsideration of the order given in open Court ordering a joint hearing of the cases on the merits and of the applications for bail, to which the prosecution also filed its opposition. After hearing the argum n s of both parties and realizing that it should give paramount importance to the constitutional provision regarding the right to bail, specially before conviction, and considering the announcement of the prosecution that it has about 50 witnesses to present, and considering further that this Court has also to travel to other provinces to try other cases, the Court reconsidered its previous order and ordered that the applications for bail be first heard to which the prosecution gave its assent. Going now to the urgent motion under consideration, after hearing the arguments of both parties and going over the authorities cited by them in support of their respective contentions, it is the opinion of the Court that the only principal issue in this matter is whether or not a proceeding in an application for bail is still summary in nature as it was under the old rule, and whether or not we should give meaning to the spirit of the constitutional provision regarding the right to bail. The Court takes the stand that this proceeding is still summary in nature and that the Court has the power to limit, in the exercise of wise discretion, the number of witnesses to be presented if in its judgment it can foresee that said right to bail may be defeated due to an unnecessary delay in the presentation of witnesses showing strong evidence of guilt. While it is true that the Fiscal has control over the presentation of evidence as he deems fit the right of the accused to know whether he is entitled to bail within a reasonable time should not be overlooked. The prosecution has already presented some 27 witnesses but their testimonies, in the opinion of the Court, have not established evidence directly linking the accused to the conspiracy on the basis of which the Court can determine whether strong evidence of guilt exists or not. The defense has manifested that accused Jose Escribano is a candidate for Mayor of Tacurong, Cotabato and should be given some special consideration because of the proximity of the coming local elections. This matter of the accused being a candidate is only incidental and the Court refrains from making any comment of whether to consider it as a special circumstance. The main basis upon which the Court issues this order is simple and not compartmentalized justice.

IN VIEW OF THE FOREGOING, the Court hereby orders the prosecution to present its witness Angelico Najar during the next scheduled dates of hearing on September 30 and October 1, 1971, and if it fails to do so without justifiable cause the Court will be compelled to declare the evidence already presented closed and order the defense to present its evidence only in so far as this bail proceedings is concerned. The petitioner charges the respondent Court with having gravely abused its discretion in interfering with what he submits is the right of the prosecution to present as many witnesses as it considers necessary, and in the order it chooses to do so, in order to show that the evidence of the guilt of the accused is strong, in support of its opposition to their petition for bail. Specifically, the petitioner states that aside from the 27 prosecution witnesses he had already presented over a period of three months since the hearing on the petition for bail started on July 2, 1971, he intends to present many more some 13 of them* before he calls Angelico Najar to the stand; and that since the testimonies of all these 40 witnesses are circumstantial and corroborative in nature and are intended to establish a basis for the testimony to be given by Angelico Najar, who is the only one who can testify directly as to the connection of the accused to the offenses charged, all the said witnesses should be presented before Najar himself is called. The issue, as started by the respondent Court in the order now sought to be set aside, is whether or not a proceeding in an application for bail is still summary in nature as it was under the old rule and whether or not the court has the power to limit, in the exercise of wise discretion, the number of witnesses to be presented if in its judgment it can foresee that said right to bail may be defeated due to an unnecessary delay in the presentation of witnesses showing strong evidence of guilt. The respondent Judge in effect ruled on both questions in the affirmative. The petitioner contends that the ruling is erroneous and constitutes a grave abuse of discretion in this case. As a general proposition, all persons shall before conviction be bailable except when the charge is a capital offense and the evidence of guilt is strong.[[1]] At the hearing of the application for bail the burden of showing that the case falls within the exception is on the prosecution, according to Section 7, Rule 114 of the Rules of Court. The determination of whether or not the evidence of guilt is strong is a matter of judicial discretion, which in the very nature of things may rightly be exercised only after the evidence is submitted to the court at the hearing.[[2]] Neither under the old nor under the new Rules is there any specific provision defining what kind of hearing it should be, but in the two cases cited at the footnote hereof it was stated that the hearing should be summary or otherwise in the discretion of the court. By summary hearing, this Court added, we mean such brief and speedy method of receiving and considering the evidence of guilt as is practicable and consistent with the purpose of the hearing which is merely to determine the weight of the evidence for purposes of bail. On such hearing, the court does not sit to try the merits or to enter into any nice inquiry as to the weight that ought to be allowed to the evidence for or against accused, nor will it speculate on the outcome of the

trial or on what further evidence may be therein offered and admitted. (8 C.J.S. 93, 94.) The course of the inquiry may be left to the discretion of the court which may confine itself to receiving such evidence as has reference to substantial matters, avoiding unnecessary thoroughness in the examination and cross-examination of witnesses and reducing to a reasonable minimum at the amount of corroboration particularly on details that are not essential to the purposes of the hearing. The petitioner submits that the nature of the hearing on a petition for bail has been changed and that it is now no longer summary in view of the addition to the former Section 7, Rule 110, which now appears as Section 7, Rule 114, of the following provision: SECTION 7. Capital offenses Burden of proof. xxx xxx xxx The evidence presented during such hearing in the Court of First Instance shall be considered automatically reproduced at the trial, without need of retaking the same; but, upon motion of either party, the Court may recall any witness for additional examination unless the witness is dead, outside the Philippines or otherwise unable to testify. We do not see that the addition of the provision aforequoted has materially changed the nature of the hearing on a petition for bail to the extent of depriving the Court of its discretion to confine the evidence to the extent necessary for the proper determination of the question of whether or not the evidence of guilt is strong. The only change that has been introduced is that such evidence shall be considered automatically reproduced at the trial in order to avoid unnecessary repetition. The proviso that any witness may be recalled at the trial for additional examination underscores, if anything, the difference between the hearing for purposes of the petition for bail and the trial on the merits. This is as it should be, because one has for its purpose, from the endpoint of the prosecution, to show that strong evidence of guilt exists while the contemplates proof beyond reasonable doubt. After going over the pleadings before Us and their accompanying annexes We fail to find any grave abuse of discretion committed by the respondent Judge. The prosecution had had three months since the hearing started until the questioned order was issued and had called 27 witnesses just to lay a sufficient corroborative basis for the testimony of its principal witness, Angelico Najar. The plea that this witness will reveal the names of persons who have some knowledge of circumstances which tend to connect the two accused with thecrimes and who presumably will also be called to testify, and whose willingness to do so may thereby be adversely influenced by such revelation, does not appear to be convincing, since the record of the cases below already contains the testimony which Najar gave at the preliminary investigation, aside from his three sworn statements consisting of 16 pages typed single-space in question and answer form. The right of the prosecution to control the quantum of evidence and the order of presentation of the witness while not to be disregarded, must nevertheless be equated with the purpose of the

hearing, which is to determine whether the accused falls within the exception to the general rule that he is constitutionally entitled to bail before conviction. To allow the prosecution to conduct the hearing as if it were a full-dress trial on the merits who defeat the purpose of the proceeding. In view of the foregoing, the petition is dismissed and the temporary restraining order issued by this Court is lifted, with instructions to the respondent Court to resume the hearing forthwith for the presentation of Angelico Najar as witness for the prosecution, without prejudice to said Courts allowing, in the exercise of its discretion, the presentation of such other prosecution as it may deem advisable, in the interest of justice. Concepcion, C.J., Reyes, J.B.L., Zaldivar, Castro, Fernando Barredo, Villamor and Makasiar, JJ., concur. Separate Opinions TEEHANKEE, J., concurring: I concur in the main opinions disposition of the case on the premise that while generally the right of the prosecution to control the quantum of evidence and the order of presentation of the witnesses should not be disregarded by the trial court, the trial courts exercise of its discretion in controlling the conduct of the trial so as not to allow a total full-dress trial on the merits that would defeat the very purpose of the hearing to determine whether strong evidence of guilt exists such as to bar the accused from the right to bail before conviction will not be interfered with nor set aside by this Court. The main opinion, to my mind, properly instructs respondent court to resume the bail hearing forthwith for the presentation of the principal state witness, Angelico Najar without prejudice to said courts allowing, in the exercise of its discretion, the presentation of such other prosecution witnesses as it may deem advisable, in the interests of justice. I believe that in following the instructions, respondent court should be guided in the taking of the testimony of the principal state witness by the comments in Franciscos Criminal Procedure on the new provision for automatic reproduction at the trial of testimony taken at the bail hearing that the hearing of the application for admission to bail should no longer be summary and the discretion of the court should not be exercised so as to restrict the examination and cross-examination of the witnesses as to substantial matters only but it must permit the parties to bring out in the examination of the witnesses all the facts relevant to the guilt or innocence of the accused and also allow an exhaustive cross-examination to test and impeach the credibility of the witnesses; otherwise at the trial of the case of the merits it may happen that when the parties want to make a complete examination or exhaustive cross-examination of a particular witnesses who testified at the hearing of the application for admission to bail, they may find themselves unable to do so either because the witness is dead, outside of the Philippines or otherwise unable to testify.[[1@t]] Particularly, should perpetuation of vital testimony be permitted in accordance with the Rules, letter and spirit, when the prosecution has serious reason to fear that its principal witness might no longer be available at the regular trial.

In the taking of the testimony of the other prosecution witnesses deemed by the trial court in the exercise of discretion as necessary for the bail application, respondent court should take into account the Courts opinion in People vs. San Diego,[[2@t]] thus: (T)he question presented before us is, whether the prosecution was deprived of proceedural due process. The answer is in the affirmative. We are of the considered opinion that whether the motion for a defendant who is in custody for a capital offense resolved in a summary proceeding or in the course of a regular trial, the prosecution must be given an opportunity to present, within a reasonable time, all the evidence that it may desire to introduce before the court should resolve the motion for bail. If, as in the criminal case involved in the instant special civil action, the prosecution should be denied such an opportunity, there would be a violation of procedural due process, and the order of the court granting bail should be considered void on that ground. echo