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Once again, the Court is faced with an age-old but persistently modern
problem. How does the Constitution of a free people combine the degree of
liberty, without which, law becomes tyranny, with the degree of law,
without which, liberty becomes license?
On February 24, 2006, as the nation celebrated the 20th Anniversary of the
Edsa People Power I, President Arroyo issued PP 1017 declaring a state of
national emergency, thus:
NOW, THEREFORE, I, Gloria Macapagal-Arroyo, President of the
Republic of the Philippines and Commander-in-Chief of the Armed Forces
of the Philippines, by virtue of the powers vested upon me by Section 18,
Article 7 of the Philippine Constitution which states that: "The President. . .
whenever it becomes necessary, . . . may call out (the) armed forces to
prevent or suppress . . . rebellion. . . ," and in my capacity as their
Commander-in-Chief, do hereby command the Armed Forces of the
Philippines, to maintain law and order throughout the Philippines, prevent
or suppress all forms of lawless violence as well as any act of insurrection
or rebellion and to enforce obedience to all the laws and to all decrees,
orders and regulations promulgated by me personally or upon my direction;
and as provided in Section 17, Article 12 of the Constitution do hereby
declare a State of National Emergency.
She cited the following facts as bases:
WHEREAS, over these past months, elements in the political opposition
have conspired with authoritarians of the extreme Left represented by the
NDF-CPP-NPA and the extreme Right, represented by military adventurists
the historical enemies of the democratic Philippine State who are now
in a tactical alliance and engaged in a concerted and systematic conspiracy,
over a broad front, to bring down the duly constituted Government elected
in May 2004;
WHEREAS, these conspirators have repeatedly tried to bring down the
President;
WHEREAS, the claims of these elements have been recklessly magnified
by certain segments of the national media;
sabotaging the people's confidence in the government and their faith in the
future of this country;
WHEREAS, these activities give totalitarian forces of both the extreme Left
and extreme Right the opening to intensify their avowed aims to bring down
the democratic Philippine State;
WHEREAS, Article 2, Section 4 of the our Constitution makes the defense
and preservation of the democratic institutions and the State the primary
duty of Government;
WHEREAS, the activities above-described, their consequences,
ramifications and collateral effects constitute a clear and present danger to
the safety and the integrity of the Philippine State and of the Filipino
people;
On the same day, the President issued G.O. No. 5 implementing PP 1017,
thus:
WHEREAS, over these past months, elements in the political opposition
have conspired with authoritarians of the extreme Left, represented by the
NDF-CPP-NPA and the extreme Right, represented by military adventurists
the historical enemies of the democratic Philippine State and who are
now in a tactical alliance and engaged in a concerted and systematic
conspiracy, over a broad front, to bring down the duly-constituted
Government elected in May 2004;
WHEREAS, these conspirators have repeatedly tried to bring down our
republican government;
WHEREAS, the claims of these elements have been recklessly magnified
by certain segments of the national media;
WHEREAS, these series of actions is hurting the Philippine State by
obstructing governance, including hindering the growth of the economy and
WHEREAS, pursuant to Section 18, Article VII and Section 17, Article XII
of the Constitution, Proclamation No. 1017 dated February 24, 2006, was
issued declaring a state of national emergency;
WHEREAS, by virtue of General Order No. 5 and No. 6 dated February 24,
2006, which were issued on the basis of Proclamation No. 1017, the Armed
Forces of the Philippines (AFP) and the Philippine National Police (PNP),
were directed to maintain law and order throughout the Philippines, prevent
and suppress all form of lawless violence as well as any act of rebellion and
to undertake such action as may be necessary;
During the oral arguments held on March 7, 2006, the Solicitor General
specified the facts leading to the issuance of PP 1017 and G.O. No. 5.
Significantly, there was no refutation from petitioners' counsels.
WHEREAS, the AFP and PNP have effectively prevented, suppressed and
quelled the acts lawless violence and rebellion;
The Solicitor General argued that the intent of the Constitution is to give
full discretionary powers to the President in determining the necessity of
calling out the armed forces. He emphasized that none of the petitioners has
shown that PP 1017 was without factual bases. While he explained that it is
not respondents' task to state the facts behind the questioned Proclamation,
however, they are presenting the same, narrated hereunder, for the
elucidation of the issues.
On the other hand, Cesar Renerio, spokesman for the National Democratic
Front (NDF) at North Central Mindanao, publicly announced: "Anti-Arroyo
groups within the military and police are growing rapidly, hastened by the
economic difficulties suffered by the families of AFP officers and enlisted
personnel who undertake counter-insurgency operations in the field." He
claimed that with the forces of the national democratic movement, the antiArroyo conservative political parties, coalitions, plus the groups that have
been reinforcing since June 2005, it is probable that the President's ouster is
nearing its concluding stage in the first half of 2006.
On March 3, 2006, President Arroyo issued PP 1021 declaring that the state
of national emergency has ceased to exist.
In the interim, these seven (7) petitions challenging the constitutionality of
PP 1017 and G.O. No. 5 were filed with this Court against the above-named
respondents. Three (3) of these petitions impleaded President Arroyo as
respondent.
In G.R. No. 171396, petitioners Randolf S. David, et al. assailed PP 1017
on the grounds that (1) it encroaches on the emergency powers of Congress;
(2) it is a subterfuge to avoid the constitutional requirements for the
imposition of martial law; and (3) it violates the constitutional guarantees of
freedom of the press, of speech and of assembly.
In G.R. No. 171409, petitioners Ninez Cacho-Olivares and Tribune
Publishing Co., Inc. challenged the CIDG's act of raiding the Daily Tribune
offices as a clear case of "censorship" or "prior restraint." They also claimed
that the term "emergency" refers only to tsunami, typhoon, hurricane and
similar occurrences, hence, there is "absolutely no emergency" that warrants
the issuance of PP 1017.
In G.R. No. 171485, petitioners herein are Representative Francis Joseph G.
Escudero, and twenty one (21) other members of the House of
Representatives, including Representatives Satur Ocampo, Rafael Mariano,
Teodoro Casio, Liza Maza, and Josel Virador. They asserted that PP 1017
and G.O. No. 5 constitute "usurpation of legislative powers"; "violation of
freedom of expression" and "a declaration of martial law." They alleged that
President Arroyo "gravely abused her discretion in calling out the armed
forces without clear and verifiable factual basis of the possibility of lawless
violence and a showing that there is necessity to do so."
In G.R. No. 171483, petitioners KMU, NAFLU-KMU, and their members
averred that PP 1017 and G.O. No. 5 are unconstitutional because (1) they
arrogate unto President Arroyo the power to enact laws and decrees; (2)
their issuance was without factual basis; and (3) they violate freedom of
expression and the right of the people to peaceably assemble to redress their
grievances.
1)
Whether the issuance of PP 1021 renders the petitions moot and
academic. DcHaET
2)
Whether petitioners in 171485 (Escudero et al.), G.R. Nos. 171400
(ALGI), 171483 (KMU et al.), 171489 (Cadiz et al.), and 171424 (Legarda)
have legal standing.
B.
SUBSTANTIVE:
1)
Whether the Supreme Court can review the factual bases of PP
1017.
2)
Whether PP 1017 and G.O. No. 5 are unconstitutional.
a.
Facial Challenge
b.
Constitutional Basis
c.
As Applied Challenge
A.
PROCEDURAL
First, we must resolve the procedural roadblocks.
I Moot and Academic Principle
One of the greatest contributions of the American system to this country is
the concept of judicial review enunciated in Marbury v. Madison. This
concept rests on the extraordinary simple foundation
The Constitution is the supreme law. It was ordained by the people, the
ultimate source of all political authority. It confers limited powers on the
national government. . . . If the government consciously or unconsciously
oversteps these limitations there must be some authority competent to hold
it in control, to thwart its unconstitutional attempt, and thus to vindicate and
preserve inviolate the will of the people as expressed in the Constitution.
This power the courts exercise. This is the beginning and the end of the
theory of judicial review.
But the power of judicial review does not repose upon the courts a "selfstarting capacity." Courts may exercise such power only when the following
requisites are present: first, there must be an actual case or controversy;
second, petitioners have to raise a question of constitutionality; third, the
constitutional question must be raised at the earliest opportunity; and fourth,
the decision of the constitutional question must be necessary to the
determination of the case itself.
Respondents maintain that the first and second requisites are absent, hence,
we shall limit our discussion thereon.
An actual case or controversy involves a conflict of legal right, an opposite
legal claims susceptible of judicial resolution. It is "definite and concrete,
touching the legal relations of parties having adverse legal interest;" a real
and substantial controversy admitting of specific relief. The Solicitor
General refutes the existence of such actual case or controversy, contending
that the present petitions were rendered "moot and academic" by President
Arroyo's issuance of PP 1021.
Such contention lacks merit.
A moot and academic case is one that ceases to present a justiciable
controversy by virtue of supervening events, so that a declaration thereon
would be of no practical use or value. Generally, courts decline jurisdiction
over such case or dismiss it on ground of mootness.
The Court holds that President Arroyo's issuance of PP 1021 did not render
the present petitions moot and academic. During the eight (8) days that PP
1017 was operative, the police officers, according to petitioners, committed
illegal acts in implementing it. Are PP 1017 and G.O. No. 5 constitutional
or valid? Do they justify these alleged illegal acts? These are the vital issues
that must be resolved in the present petitions. It must be stressed that "an
unconstitutional act is not a law, it confers no rights, it imposes no duties, it
affords no protection; it is in legal contemplation, inoperative."
The "moot and academic" principle is not a magical formula that can
automatically dissuade the courts in resolving a case. Courts will decide
cases, otherwise moot and academic, if: first, there is a grave violation of
the Constitution; second, the exceptional character of the situation and the
paramount public interest is involved; third, when constitutional issue raised
requires formulation of controlling principles to guide the bench, the bar,
and the public; and fourth, the case is capable of repetition yet evading
review.
All the foregoing exceptions are present here and justify this Court's
assumption of jurisdiction over the instant petitions. Petitioners alleged that
the issuance of PP 1017 and G.O. No. 5 violates the Constitution. There is
no question that the issues being raised affect the public's interest, involving
as they do the people's basic rights to freedom of expression, of assembly
and of the press. Moreover, the Court has the duty to formulate guiding and
controlling constitutional precepts, doctrines or rules. It has the symbolic
function of educating the bench and the bar, and in the present petitions, the
military and the police, on the extent of the protection given by
constitutional guarantees. 35 And lastly, respondents' contested actions are
capable of repetition. Certainly, the petitions are subject to judicial review.
In their attempt to prove the alleged mootness of this case, respondents cited
Chief Justice Artemio V. Panganiban's Separate Opinion in Sanlakas v.
Executive Secretary. 36 However, they failed to take into account the Chief
Justice's very statement that an otherwise "moot" case may still be decided
"provided the party raising it in a proper case has been and/or continues to
be prejudiced or damaged as a direct result of its issuance." The present
case falls right within this exception to the mootness rule pointed out by the
Chief Justice.
II Legal Standing
In view of the number of petitioners suing in various personalities, the
Court deems it imperative to have a more than passing discussion on legal
standing or locus standi.
Locus standi is defined as "a right of appearance in a court of justice on a
given question." 37 In private suits, standing is governed by the "realparties-in interest" rule as contained in Section 2, Rule 3 of the 1997 Rules
of Civil Procedure, as amended. It provides that "every action must be
prosecuted or defended in the name of the real party in interest."
Accordingly, the "real-party-in interest" is "the party who stands to be
benefited or injured by the judgment in the suit or the party entitled to the
avails of the suit." Succinctly put, the plaintiff's standing is based on his
own right to the relief sought.
The difficulty of determining locus standi arises in public suits. Here, the
plaintiff who asserts a "public right" in assailing an allegedly illegal official
action, does so as a representative of the general public. He may be a person
who is affected no differently from any other person. He could be suing as a
"stranger," or in the category of a "citizen," or 'taxpayer." In either case, he
has to adequately show that he is entitled to seek judicial protection. In
other words, he has to make out a sufficient interest in the vindication of the
public order and the securing of relief as a "citizen" or "taxpayer.
Case law in most jurisdictions now allows both "citizen" and "taxpayer"
standing in public actions. The distinction was first laid down in
Beauchamp v. Silk, where it was held that the plaintiff in a taxpayer's suit is
in a different category from the plaintiff in a citizen's suit. In the former, the
plaintiff is affected by the expenditure of public funds, while in the latter, he
is but the mere instrument of the public concern. As held by the New York
Supreme Court in People ex rel Case v. Collins: "In matter of mere public
right, however . . . the people are the real parties. . . It is at least the right, if
not the duty, of every citizen to interfere and see that a public offence be
properly pursued and punished, and that a public grievance be remedied."
With respect to taxpayer's suits, Terr v. Jordan 41 held that "the right of a
citizen and a taxpayer to maintain an action in courts to restrain the
unlawful use of public funds to his injury cannot be denied."
However, to prevent just about any person from seeking judicial
interference in any official policy or act with which he disagreed with, and
thus hinders the activities of governmental agencies engaged in public
service, the United States Supreme Court laid down the more stringent
"direct injury" test in Ex Parte Levitt, later reaffirmed in Tileston v. Ullman.
43 The same Court ruled that for a private individual to invoke the judicial
power to determine the validity of an executive or legislative action, he
must show that he has sustained a direct injury as a result of that action, and
it is not sufficient that he has a general interest common to all members of
the public.
This Court adopted the "direct injury" test in our jurisdiction. In People v.
Vera, it held that the person who impugns the validity of a statute must have
"a personal and substantial interest in the case such that he has sustained, or
will sustain direct injury as a result." The Vera doctrine was upheld in a
litany of cases, such as, Custodio v. President of the Senate, Manila Race
Horse Trainers' Association v. De la Fuente, Pascual v. Secretary of Public
Works and Anti-Chinese League of the Philippines v. Felix.
However, being a mere procedural technicality, the requirement of locus
standi may be waived by the Court in the exercise of its discretion. This was
done in the 1949 Emergency Powers Cases, Araneta v. Dinglasan, where
the "transcendental importance" of the cases prompted the Court to act
liberally. Such liberality was neither a rarity nor accidental. In Aquino v.
Comelec, this Court resolved to pass upon the issues raised due to the "farreaching implications" of the petition notwithstanding its categorical
statement that petitioner therein had no personality to file the suit. Indeed,
there is a chain of cases where this liberal policy has been observed,
allowing ordinary citizens, members of Congress, and civic organizations to
prosecute actions involving the constitutionality or validity of laws,
regulations and rulings.
Thus, the Court has adopted a rule that even where the petitioners have
failed to show direct injury, they have been allowed to sue under the
principle of "transcendental importance." Pertinent are the following cases:
(1)
Chavez v. Public Estates Authority, where the Court ruled that the
enforcement of the constitutional right to information and the equitable
diffusion of natural resources are matters of transcendental importance
which clothe the petitioner with locus standi;
(2)
Bagong Alyansang Makabayan v. Zamora, wherein the Court held
that "given the transcendental importance of the issues involved, the Court
may relax the standing requirements and allow the suit to prosper despite
the lack of direct injury to the parties seeking judicial review" of the
Visiting Forces Agreement;
(3)
Lim v. Executive Secretary, while the Court noted that the
petitioners may not file suit in their capacity as taxpayers absent a showing
that "Balikatan 02-01" involves the exercise of Congress' taxing or spending
powers, it reiterated its ruling in Bagong Alyansang Makabayan v. Zamora,
that in cases of transcendental importance, the cases must be settled
promptly and definitely and standing requirements may be relaxed.
By way of summary, the following rules may be culled from the cases
decided by this Court. Taxpayers, voters, concerned citizens, and legislators
may be accorded standing to sue, provided that the following requirements
are met:
(1)
the cases involve constitutional issues;
(2)
for taxpayers, there must be a claim of illegal disbursement of
public funds or that the tax measure is unconstitutional;
(3)
for voters, there must be a showing of obvious interest in the
validity of the election law in question;
(4)
for concerned citizens, there must be a showing that the issues
raised are of transcendental importance which must be settled early; and
(5)
for legislators, there must be a claim that the official action
complained of infringes upon their prerogatives as legislators.
Significantly, recent decisions show a certain toughening in the Court's
attitude toward legal standing.
In Kilosbayan, Inc. v. Morato, 56 the Court ruled that the status of
Kilosbayan as a people's organization does not give it the requisite
personality to question the validity of the on-line lottery contract, more so
where it does not raise any issue of constitutionality. Moreover, it cannot
sue as a taxpayer absent any allegation that public funds are being misused.
Nor can it sue as a concerned citizen as it does not allege any specific injury
it has suffered.
In Telecommunications and Broadcast Attorneys of the Philippines, Inc. v.
Comelec, the Court reiterated the "direct injury" test with respect to
concerned citizens' cases involving constitutional issues. It held that "there
must be a showing that the citizen personally suffered some actual or
threatened injury arising from the alleged illegal official act."
In Lacson v. Perez, the Court ruled that one of the petitioners, Laban ng
Demokratikong Pilipino (LDP), is not a real party-in-interest as it had not
demonstrated any injury to itself or to its leaders, members or supporters.
In Sanlakas v. Executive Secretary, the Court ruled that only the petitioners
who are members of Congress have standing to sue, as they claim that the
In G.R. No. 171489, petitioners, Cadiz et al., who are national officers of
the Integrated Bar of the Philippines (IBP) have no legal standing, having
failed to allege any direct or potential injury which the IBP as an institution
or its members may suffer as a consequence of the issuance of PP No. 1017
and G.O. No. 5. In Integrated Bar of the Philippines v. Zamora, the Court
held that the mere invocation by the IBP of its duty to preserve the rule of
law and nothing more, while undoubtedly true, is not sufficient to clothe it
with standing in this case. This is too general an interest which is shared by
other groups and the whole citizenry. However, in view of the
transcendental importance of the issue, this Court declares that petitioner
have locus standi.
In G.R. No. 171424, Loren Legarda has no personality as a taxpayer to file
the instant petition as there are no allegations of illegal disbursement of
public funds. The fact that she is a former Senator is of no consequence.
She can no longer sue as a legislator on the allegation that her prerogatives
as a lawmaker have been impaired by PP 1017 and G.O. No. 5. Her claim
that she is a media personality will not likewise aid her because there was
no showing that the enforcement of these issuances prevented her from
pursuing her occupation. Her submission that she has pending electoral
protest before the Presidential Electoral Tribunal is likewise of no
relevance. She has not sufficiently shown that PP 1017 will affect the
proceedings or result of her case. But considering once more the
transcendental importance of the issue involved, this Court may relax the
standing rules.
It must always be borne in mind that the question of locus standi is but
corollary to the bigger question of proper exercise of judicial power. This is
the underlying legal tenet of the "liberality doctrine" on legal standing. It
cannot be doubted that the validity of PP No. 1017 and G.O. No. 5 is a
judicial question which is of paramount importance to the Filipino people.
To paraphrase Justice Laurel, the whole of Philippine society now waits
with bated breath the ruling of this Court on this very critical matter. The
petitions thus call for the application of the "transcendental importance"
doctrine, a relaxation of the standing requirements for the petitioners in the
"PP 1017 cases."
This Court holds that all the petitioners herein have locus standi.
Incidentally, it is not proper to implead President Arroyo as respondent.
Settled is the doctrine that the President, during his tenure of office or actual
incumbency, may not be sued in any civil or criminal case, and there is no
need to provide for it in the Constitution or law. It will degrade the dignity
of the high office of the President, the Head of State, if he can be dragged
into court litigations while serving as such. Furthermore, it is important that
he be freed from any form of harassment, hindrance or distraction to enable
him to fully attend to the performance of his official duties and functions.
Unlike the legislative and judicial branch, only one constitutes the executive
branch and anything which impairs his usefulness in the discharge of the
many great and important duties imposed upon him by the Constitution
necessarily impairs the operation of the Government. However, this does
not mean that the President is not accountable to anyone. Like any other
official, he remains accountable to the people but he may be removed from
office only in the mode provided by law and that is by impeachment.
B.
SUBSTANTIVE
I. Review of Factual Bases
Petitioners maintain that PP 1017 has no factual basis. Hence, it was not
"necessary" for President Arroyo to issue such Proclamation.
The issue of whether the Court may review the factual bases of the
President's exercise of his Commander-in-Chief power has reached its
distilled point from the indulgent days of Barcelona v. Baker 70 and
Montenegro v. Castaneda 71 to the volatile era of Lansang v. Garcia, 72
Aquino, Jr. v. Enrile, 73 and Garcia-Padilla v. Enrile. 74 The tug-of-war
always cuts across the line defining "political questions," particularly those
questions "in regard to which full discretionary authority has been delegated
to the legislative or executive branch of the government." 75 Barcelon and
Montenegro were in unison in declaring that the authority to decide whether
an exigency has arisen belongs to the President and his decision is final and
conclusive on the courts. Lansang took the opposite view. There, the
members of the Court were unanimous in the conviction that the Court has
the authority to inquire into the existence of factual bases in order to
determine their constitutional sufficiency. From the principle of separation
of powers, it shifted the focus to the system of checks and balances, "under
which the President is supreme, . . . only if and when he acts within the
sphere allotted to him by the Basic Law, and the authority to determine
whether or not he has so acted is vested in the Judicial Department, which
in this respect, is, in turn, constitutionally supreme." 76 In 1973, the
unanimous Court of Lansang was divided in Aquino v. Enrile. 77 There, the
Court was almost evenly divided on the issue of whether the validity of the
imposition of Martial Law is a political or justiciable question. 78 Then
came Garcia-Padilla v. Enrile which greatly diluted Lansang. It declared
that there is a need to re-examine the latter case, ratiocinating that "in times
of war or national emergency, the President must be given absolute control
for the very life of the nation and the government is in great peril. The
President, it intoned, is answerable only to his conscience, the People, and
God."
The Integrated Bar of the Philippines v. Zamora 80 a recent case most
pertinent to these cases at bar echoed a principle similar to Lansang.
While the Court considered the President's "calling-out" power as a
discretionary power solely vested in his wisdom, it stressed that "this does
not prevent an examination of whether such power was exercised within
permissible constitutional limits or whether it was exercised in a manner
constituting grave abuse of discretion." This ruling is mainly a result of the
Court's reliance on Section 1, Article VIII of 1987 Constitution which
fortifies the authority of the courts to determine in an appropriate action the
validity of the acts of the political departments. Under the new definition of
judicial power, the courts are authorized not only "to settle actual
controversies involving rights which are legally demandable and
enforceable," but also "to determine whether or not there has been a grave
abuse of discretion amounting to lack or excess of jurisdiction on the part of
any branch or instrumentality of the government." The latter part of the
authority represents a broadening of judicial power to enable the courts of
justice to review what was before a forbidden territory, to wit, the discretion
of the political departments of the government. 81 It speaks of judicial
prerogative not only in terms of power but also of duty.
As to how the Court may inquire into the President's exercise of power,
Lansang adopted the test that "judicial inquiry can go no further than to
satisfy the Court not that the President's decision is correct," but that "the
President did not act arbitrarily." Thus, the standard laid down is not
correctness, but arbitrariness. 83 In Integrated Bar of the Philippines, this
Court further ruled that "it is incumbent upon the petitioner to show that the
President's decision is totally bereft of factual basis" and that if he fails, by
way of proof, to support his assertion, then "this Court cannot undertake an
independent investigation beyond the pleadings."
Petitioners failed to show that President Arroyo's exercise of the calling-out
power, by issuing PP 1017, is totally bereft of factual basis. A reading of the
Solicitor General's Consolidated Comment and Memorandum shows a
detailed narration of the events leading to the issuance of PP 1017, with
supporting reports forming part of the records. Mentioned are the escape of
the Magdalo Group, their audacious threat of the Magdalo D-Day, the
defections in the military, particularly in the Philippine Marines, and the
reproving statements from the communist leaders. There was also the
Minutes of the Intelligence Report and Security Group of the Philippine
Army showing the growing alliance between the NPA and the military.
Petitioners presented nothing to refute such events. Thus, absent any
contrary allegations, the Court is convinced that the President was justified
in issuing PP 1017 calling for military aid.
Indeed, judging the seriousness of the incidents, President Arroyo was not
expected to simply fold her arms and do nothing to prevent or suppress
what she believed was lawless violence, invasion or rebellion. However, the
exercise of such power or duty must not stifle liberty.
[II. Constitutionality of PP 1017 and G.O. No. 5
Doctrines of Several Political Theorists on the Power of the President in
Times of Emergency]
This case brings to fore a contentious subject the power of the President
in times of emergency. A glimpse at the various political theories relating to
this subject provides an adequate backdrop for our ensuing discussion.
John Locke, describing the architecture of civil government, called upon the
English doctrine of prerogative to cope with the problem of emergency. In
times of danger to the nation, positive law enacted by the legislature might
be inadequate or even a fatal obstacle to the promptness of action necessary
Carl J. Friedrich cast his analysis in terms similar to those of Watkins. "It is
a problem of concentrating power in a government where power has
consciously been divided to cope with . . . situations of unprecedented
magnitude and gravity. There must be a broad grant of powers, subject to
equally strong limitations as to who shall exercise such powers, when, for
how long, and to what end." Friedrich, too, offered criteria for judging the
adequacy of any of scheme of emergency powers, to wit: "The emergency
executive must be appointed by constitutional means i.e., he must be
legitimate; he should not enjoy power to determine the existence of an
emergency; emergency powers should be exercised under a strict time
limitation; and last, the objective of emergency action must be the defense
of the constitutional order."
Clinton L. Rossiter, after surveying the history of the employment of
emergency powers in Great Britain, France, Weimar, Germany and the
United States, reverted to a description of a scheme of "constitutional
dictatorship" as solution to the vexing problems presented by emergency.
Like Watkins and Friedrich, he stated a priori the conditions of success of
the "constitutional dictatorship," thus:
1)
No general regime or particular institution of constitutional
dictatorship should be initiated unless it is necessary or even indispensable
to the preservation of the State and its constitutional order. . .
2)
. . . the decision to institute a constitutional dictatorship should
never be in the hands of the man or men who will constitute the dictator. . .
3)
No government should initiate a constitutional dictatorship without
making specific provisions for its termination. . .
4)
. . . all uses of emergency powers and all readjustments in the
organization of the government should be effected in pursuit of
constitutional or legal requirements. . .
5)
. . . no dictatorial institution should be adopted, no right invaded,
no regular procedure altered any more than is absolutely necessary for the
conquest of the particular crisis . . .
6)
The measures adopted in the prosecution of the a constitutional
dictatorship should never be permanent in character or effect. . .
7)
The dictatorship should be carried on by persons representative of
every part of the citizenry interested in the defense of the existing
constitutional order. . .
8)
Ultimate responsibility should be maintained for every action taken
under a constitutional dictatorship. . .
9)
The decision to terminate a constitutional dictatorship, like the
decision to institute one should never be in the hands of the man or men
who constitute the dictator. . 10) No constitutional dictatorship should
extend beyond the termination of the crisis for which it was instituted. . .
11)
the termination of the crisis must be followed by a complete return
as possible to the political and governmental conditions existing prior to the
initiation of the constitutional dictatorship. . .
Rossiter accorded to legislature a far greater role in the oversight exercise of
emergency powers than did Watkins. He would secure to Congress final
responsibility for declaring the existence or termination of an emergency,
and he places great faith in the effectiveness of congressional investigating
committees.
Scott and Cotter, in analyzing the above contemporary theories in light of
recent experience, were one in saying that, "the suggestion that democracies
surrender the control of government to an authoritarian ruler in time of
grave danger to the nation is not based upon sound constitutional theory."
To appraise emergency power in terms of constitutional dictatorship serves
merely to distort the problem and hinder realistic analysis. It matters not
whether the term "dictator" is used in its normal sense (as applied to
authoritarian rulers) or is employed to embrace all chief executives
administering emergency powers. However used, "constitutional
dictatorship" cannot be divorced from the implication of suspension of the
processes of constitutionalism. Thus, they favored instead the "concept of
constitutionalism" articulated by Charles H. McIlwain:
A concept of constitutionalism which is less misleading in the analysis of
problems of emergency powers, and which is consistent with the findings of
this study, is that formulated by Charles H. McIlwain. While it does not by
any means necessarily exclude some indeterminate limitations upon the
substantive powers of government, full emphasis is placed upon procedural
integrity and wisdom of the Chief Executive but, at the same time, it obliges
him to operate within carefully prescribed procedural limitations.
a. "Facial Challenge"
Petitioners contend that PP 1017 is void on its face because of its
"overbreadth." They claim that its enforcement encroached on both
unprotected and protected rights under Section 4, Article III of the
Constitution and sent a "chilling effect" to the citizens.
A facial review of PP 1017, using the overbreadth doctrine, is uncalled for.
First and foremost, the overbreadth doctrine is an analytical tool developed
for testing "on their faces" statutes in free speech cases, also known under
the American Law as First Amendment cases.
A plain reading of PP 1017 shows that it is not primarily directed to speech
or even speech-related conduct. It is actually a call upon the AFP to prevent
or suppress all forms of lawless violence. In United States v. Salerno, the
US Supreme Court held that "we have not recognized an 'overbreadth'
doctrine outside the limited context of the First Amendment" (freedom of
speech).
Moreover, the overbreadth doctrine is not intended for testing the validity of
a law that "reflects legitimate state interest in maintaining comprehensive
control over harmful, constitutionally unprotected conduct." Undoubtedly,
lawless violence, insurrection and rebellion are considered "harmful" and
"constitutionally unprotected conduct." In Broadrick v. Oklahoma, it was
held:
It remains a 'matter of no little difficulty' to determine when a law may
properly be held void on its face and when 'such summary action' is
inappropriate. But the plain import of our cases is, at the very least, that
facial overbreadth adjudication is an exception to our traditional rules of
practice and that its function, a limited one at the outset, attenuates as the
otherwise unprotected behavior that it forbids the State to sanction moves
from 'pure speech' toward conduct and that conduct even if expressive
falls within the scope of otherwise valid criminal laws that reflect legitimate
state interests in maintaining comprehensive controls over harmful,
constitutionally unprotected conduct.
prediction that its very existence may cause others not before the Court to
refrain from constitutionally protected speech or expression. In Younger v.
Harris, 109 it was held that:
[T]he task of analyzing a proposed statute, pinpointing its deficiencies, and
requiring correction of these deficiencies before the statute is put into effect,
is rarely if ever an appropriate task for the judiciary. The combination of the
relative remoteness of the controversy, the impact on the legislative process
of the relief sought, and above all the speculative and amorphous nature of
the required line-by-line analysis of detailed statutes, . . . ordinarily results
in a kind of case that is wholly unsatisfactory for deciding constitutional
questions, whichever way they might be decided.
And third, a facial challenge on the ground of overbreadth is the most
difficult challenge to mount successfully, since the challenger must
establish that there can be no instance when the assailed law may be valid.
Here, petitioners did not even attempt to show whether this situation exists.
Petitioners likewise seek a facial review of PP 1017 on the ground of
vagueness. This, too, is unwarranted.
Related to the "overbreadth" doctrine is the "void for vagueness doctrine"
which holds that "a law is facially invalid if men of common intelligence
must necessarily guess at its meaning and differ as to its application." It is
subject to the same principles governing overbreadth doctrine. For one, it is
also an analytical tool for testing "on their faces" statutes in free speech
cases. And like overbreadth, it is said that a litigant may challenge a statute
on its face only if it is vague in all its possible applications. Again,
petitioners did not even attempt to show that PP 1017 is vague in all its
application. They also failed to establish that men of common intelligence
cannot understand the meaning and application of PP 1017.
b. Constitutional Basis of PP 1017
Now on the constitutional foundation of PP 1017.
The operative portion of PP 1017 may be divided into three important
provisions, thus:
First provision:
"by virtue of the power vested upon me by Section 18, Article VII . . . do
hereby command the Armed Forces of the Philippines, to maintain law and
order throughout the Philippines, prevent or suppress all forms of lawless
violence as well any act of insurrection or rebellion"
Second provision:
"and to enforce obedience to all the laws and to all decrees, orders and
regulations promulgated by me personally or upon my direction;"
Third provision:
"as provided in Section 17, Article XII of the Constitution do hereby declare
a State of National Emergency."
First Provision: Calling-out Power
The first provision pertains to the President's calling-out power. In Sanlakas
v. Executive Secretary, 111 this Court, through Mr. Justice Dante O. Tinga,
held that Section 18, Article VII of the Constitution reproduced as follows:
Sec. 18. The President shall be the Commander-in-Chief of all armed forces
of the Philippines and whenever it becomes necessary, he may call out such
armed forces to prevent or suppress lawless violence, invasion or rebellion.
In case of invasion or rebellion, when the public safety requires it, he may,
for a period not exceeding sixty days, suspend the privilege of the writ of
habeas corpus or place the Philippines or any part thereof under martial law.
Within forty-eight hours from the proclamation of martial law or the
suspension of the privilege of the writ of habeas corpus, the President shall
submit a report in person or in writing to the Congress. The Congress,
voting jointly, by a vote of at least a majority of all its Members in regular
or special session, may revoke such proclamation or suspension, which
revocation shall not be set aside by the President. Upon the initiative of the
President, the Congress may, in the same manner, extend such proclamation
or suspension for a period to be determined by the Congress, if the invasion
or rebellion shall persist and public safety requires it.
The Congress, if not in session, shall within twenty-four hours following
such proclamation or suspension, convene in accordance with its rules
without need of a call.
The Supreme Court may review, in an appropriate proceeding filed by any
citizen, the sufficiency of the factual bases of the proclamation of martial
law or the suspension of the privilege of the writ or the extension thereof,
and must promulgate its decision thereon within thirty days from its filing.
A state of martial law does not suspend the operation of the Constitution,
nor supplant the functioning of the civil courts or legislative assemblies, nor
authorize the conferment of jurisdiction on military courts and agencies
over civilians where civil courts are able to function, nor automatically
suspend the privilege of the writ.
The suspension of the privilege of the writ shall apply only to persons
judicially charged for rebellion or offenses inherent in or directly connected
with invasion.
During the suspension of the privilege of the writ, any person thus arrested
or detained shall be judicially charged within three days, otherwise he shall
be released.
grants the President, as Commander-in-Chief, a "sequence" of graduated
powers. From the most to the least benign, these are: the calling-out power,
the power to suspend the privilege of the writ of habeas corpus, and the
power to declare Martial Law. Citing Integrated Bar of the Philippines v.
Zamora, the Court ruled that the only criterion for the exercise of the
calling-out power is that "whenever it becomes necessary," the President
may call the armed forces "to prevent or suppress lawless violence, invasion
or rebellion." Are these conditions present in the instant cases? As stated
earlier, considering the circumstances then prevailing, President Arroyo
found it necessary to issue PP 1017. Owing to her Office's vast intelligence
network, she is in the best position to determine the actual condition of the
country.
Under the calling-out power, the President may summon the armed forces
to aid him in suppressing lawless violence, invasion and rebellion. This
involves ordinary police action. But every act that goes beyond the
President's calling-out power is considered illegal or ultra vires. For this
reason, a President must be careful in the exercise of his powers. He cannot
invoke a greater power when he wishes to act under a lesser power. There
lies the wisdom of our Constitution, the greater the power, the greater are
the limitations.
The second provision pertains to the power of the President to ensure that
the laws be faithfully executed. This is based on Section 17, Article VII
which reads:
SEC. 17. The President shall have control of all the executive departments,
bureaus, and offices. He shall ensure that the laws be faithfully executed.
As the Executive in whom the executive power is vested, the primary
function of the President is to enforce the laws as well as to formulate
policies to be embodied in existing laws. He sees to it that all laws are
enforced by the officials and employees of his department. Before assuming
office, he is required to take an oath or affirmation to the effect that as
President of the Philippines, he will, among others, "execute its laws." In
the exercise of such function, the President, if needed, may employ the
powers attached to his office as the Commander-in-Chief of all the armed
forces of the country, including the Philippine National Police under the
Department of Interior and Local Government.
Petitioners, especially Representatives Francis Joseph G. Escudero, Satur
Ocampo, Rafael Mariano, Teodoro Casio, Liza Maza, and Josel Virador
argue that PP 1017 is unconstitutional as it arrogated upon President Arroyo
the power to enact laws and decrees in violation of Section 1, Article VI of
the Constitution, which vests the power to enact laws in Congress. They
assail the clause "to enforce obedience to all the laws and to all decrees,
orders and regulations promulgated by me personally or upon my
direction."
Petitioners' contention is understandable. A reading of PP 1017 operative
clause shows that it was lifted from Former President Marcos' Proclamation
No. 1081, which partly reads:
NOW, THEREFORE, I, FERDINAND E. MARCOS, President of the
Philippines by virtue of the powers vested upon me by Article VII, Section
10, Paragraph (2) of the Constitution, do hereby place the entire Philippines
as defined in Article 1, Section 1 of the Constitution under martial law and,
in my capacity as their Commander-in-Chief, do hereby command the
Armed Forces of the Philippines, to maintain law and order throughout the
only order the military, under PP 1017, to enforce laws pertinent to its duty
to suppress lawless violence.
Third Provision: Power to Take Over
The pertinent provision of PP 1017 states:
. . . and to enforce obedience to all the laws and to all decrees, orders, and
regulations promulgated by me personally or upon my direction; and as
provided in Section 17, Article XII of the Constitution do hereby declare a
state of national emergency.
The import of this provision is that President Arroyo, during the state of
national emergency under PP 1017, can call the military not only to enforce
obedience "to all the laws and to all decrees . . ." but also to act pursuant to
the provision of Section 17, Article XII which reads:
Sec. 17. In times of national emergency, when the public interest so
requires, the State may, during the emergency and under reasonable terms
prescribed by it, temporarily take over or direct the operation of any
privately-owned public utility or business affected with public interest.
What could be the reason of President Arroyo in invoking the above
provision when she issued PP 1017?
The answer is simple. During the existence of the state of national
emergency, PP 1017 purports to grant the President, without any authority
or delegation from Congress, to take over or direct the operation of any
privately-owned public utility or business affected with public interest.
This provision was first introduced in the 1973 Constitution, as a product of
the "martial law" thinking of the 1971 Constitutional Convention. In effect
at the time of its approval was President Marcos' Letter of Instruction No. 2
dated September 22, 1972 instructing the Secretary of National Defense to
take over "the management, control and operation of the Manila Electric
Company, the Philippine Long Distance Telephone Company, the National
Waterworks and Sewerage Authority, the Philippine National Railways, the
Philippine Air Lines, Air Manila (and) Filipinas Orient Airways . . . for the
successful prosecution by the Government of its effort to contain, solve and
end the present national emergency."
But the exercise of emergency powers, such as the taking over of privately
owned public utility or business affected with public interest, is a different
matter. This requires a delegation from Congress.
Courts have often said that constitutional provisions in pari materia are to
be construed together. Otherwise stated, different clauses, sections, and
provisions of a constitution which relate to the same subject matter will be
construed together and considered in the light of each other. Considering
that Section 17 of Article XII and Section 23 of Article VI, previously
quoted, relate to national emergencies, they must be read together to
determine the limitation of the exercise of emergency powers.
Generally, Congress is the repository of emergency powers. This is evident
in the tenor of Section 23 (2), Article VI authorizing it to delegate such
powers to the President. Certainly, a body cannot delegate a power not
reposed upon it. However, knowing that during grave emergencies, it may
not be possible or practicable for Congress to meet and exercise its powers,
the Framers of our Constitution deemed it wise to allow Congress to grant
emergency powers to the President, subject to certain conditions, thus:
(1)
There must be a war or other emergency.
(2)
The delegation must be for a limited period only.
(3)
The delegation must be subject to such restrictions as the Congress
may prescribe.
(4)
The emergency powers must be exercised to carry out a national
policy declared by Congress.
Section 17, Article XII must be understood as an aspect of the emergency
powers clause. The taking over of private business affected with public
interest is just another facet of the emergency powers generally reposed
upon Congress. Thus, when Section 17 states that the "the State may, during
the emergency and under reasonable terms prescribed by it, temporarily
take over or direct the operation of any privately owned public utility or
business affected with public interest," it refers to Congress, not the
President. Now, whether or not the President may exercise such power is
dependent on whether Congress may delegate it to him pursuant to a law
prescribing the reasonable terms thereof. Youngstown Sheet & Tube Co. et
al. v. Sawyer, held:
It is clear that if the President had authority to issue the order he did, it must
be found in some provision of the Constitution. And it is not claimed that
express constitutional language grants this power to the President. The
contention is that presidential power should be implied from the aggregate
of his powers under the Constitution. Particular reliance is placed on
provisions in Article II which say that "The executive Power shall be vested
in a President . . . . ;" that "he shall take Care that the Laws be faithfully
executed;" and that he "shall be Commander-in-Chief of the Army and
Navy of the United States.
The order cannot properly be sustained as an exercise of the President's
military power as Commander-in-Chief of the Armed Forces. The
Government attempts to do so by citing a number of cases upholding broad
powers in military commanders engaged in day-to-day fighting in a theater
of war. Such cases need not concern us here. Even though "theater of war"
be an expanding concept, we cannot with faithfulness to our constitutional
system hold that the Commander-in-Chief of the Armed Forces has the
ultimate power as such to take possession of private property in order to
keep labor disputes from stopping production. This is a job for the nation's
lawmakers, not for its military authorities.
Nor can the seizure order be sustained because of the several constitutional
provisions that grant executive power to the President. In the framework of
our Constitution, the President's power to see that the laws are faithfully
executed refutes the idea that he is to be a lawmaker. The Constitution
limits his functions in the lawmaking process to the recommending of laws
he thinks wise and the vetoing of laws he thinks bad. And the Constitution
is neither silent nor equivocal about who shall make laws which the
President is to execute. The first section of the first article says that "All
legislative Powers herein granted shall be vested in a Congress of the
United States. . ."
Petitioner Cacho-Olivares, et al. contends that the term "emergency" under
Section 17, Article XII refers to "tsunami," "typhoon," "hurricane" and
"similar occurrences." This is a limited view of "emergency."
affected with public interest. Nor can he determine when such exceptional
circumstances have ceased. Likewise, without legislation, the President has
no power to point out the types of businesses affected with public interest
that should be taken over. In short, the President has no absolute authority
to exercise all the powers of the State under Section 17, Article VII in the
absence of an emergency powers act passed by Congress.
c. "AS APPLIED CHALLENGE"
One of the misfortunes of an emergency, particularly, that which pertains to
security, is that military necessity and the guaranteed rights of the
individual are often not compatible. Our history reveals that in the crucible
of conflict, many rights are curtailed and trampled upon. Here, the right
against unreasonable search and seizure; the right against warrantless arrest;
and the freedom of speech, of expression, of the press, and of assembly
under the Bill of Rights suffered the greatest blow.
object. For these reasons, one requirement for these rules to be valid is that
they must be reasonable, not arbitrary or capricious.
G.O. No. 5 mandates the AFP and the PNP to immediately carry out the
"necessary and appropriate actions and measures to suppress and prevent
acts of terrorism and lawless violence."
Unlike the term "lawless violence" which is unarguably extant in our
statutes and the Constitution, and which is invariably associated with
"invasion, insurrection or rebellion," the phrase "acts of terrorism" is still an
amorphous and vague concept. Congress has yet to enact a law defining and
punishing acts of terrorism.
In fact, this "definitional predicament" or the "absence of an agreed
definition of terrorism" confronts not only our country, but the international
community as well. The following observations are quite apropos:
In the actual unipolar context of international relations, the "fight against
terrorism" has become one of the basic slogans when it comes to the
justification of the use of force against certain states and against groups
operating internationally. Lists of states "sponsoring terrorism" and of
terrorist organizations are set up and constantly being updated according to
criteria that are not always known to the public, but are clearly determined
by strategic interests.
The basic problem underlying all these military actions or threats of the
use of force as the most recent by the United States against Iraq consists
in the absence of an agreed definition of terrorism.
Remarkable confusion persists in regard to the legal categorization of acts
of violence either by states, by armed groups such as liberation movements,
or by individuals.
The dilemma can by summarized in the saying "One country's terrorist is
another country's freedom fighter." The apparent contradiction or lack of
consistency in the use of the term "terrorism" may further be demonstrated
by the historical fact that leaders of national liberation movements such as
Nelson Mandela in South Africa, Habib Bourgouiba in Tunisia, or Ahmed
following provision: "That one who conspires with any other person for the
purpose of overthrowing the Government of the Philippines . . . by force,
violence, terrorism, . . . shall be punished by reclusion temporal . . . ."
P.D. No. 1835 was repealed by E.O. No. 167 (which outlaws the
Communist Party of the Philippines) enacted by President Corazon Aquino
on May 5, 1985. These two (2) laws, however, do not define "acts of
terrorism." Since there is no law defining "acts of terrorism," it is President
Arroyo alone, under G.O. No. 5, who has the discretion to determine what
acts constitute terrorism. Her judgment on this aspect is absolute, without
restrictions. Consequently, there can be indiscriminate arrest without
warrants, breaking into offices and residences, taking over the media
enterprises, prohibition and dispersal of all assemblies and gatherings
unfriendly to the administration. All these can be effected in the name of
G.O. No. 5. These acts go far beyond the calling-out power of the President.
Certainly, they violate the due process clause of the Constitution. Thus, this
Court declares that the "acts of terrorism" portion of G.O. No. 5 is
unconstitutional.
Significantly, there is nothing in G.O. No. 5 authorizing the military or
police to commit acts beyond what are necessary and appropriate to
suppress and prevent lawless violence, the limitation of their authority in
pursuing the Order. Otherwise, such acts are considered illegal.
We first examine G.R. No. 171396 (David et al.)
The Constitution provides that "the right of the people to be secured in their
persons, houses, papers and effects against unreasonable search and seizure
of whatever nature and for any purpose shall be inviolable, and no search
warrant or warrant of arrest shall issue except upon probable cause to be
determined personally by the judge after examination under oath or
affirmation of the complainant and the witnesses he may produce, and
particularly describing the place to be searched and the persons or things to
be seized." 142 The plain import of the language of the Constitution is that
searches, seizures and arrests are normally unreasonable unless authorized
by a validly issued search warrant or warrant of arrest. Thus, the
fundamental protection given by this provision is that between person and
But what made it doubly worse for petitioners David et al. is that not only
was their right against warrantless arrest violated, but also their right to
peaceably assemble.
Section 4 of Article III guarantees:
No law shall be passed abridging the freedom of speech, of expression, or
of the press, or the right of the people peaceably to assemble and petition
the government for redress of grievances.
"Assembly" means a right on the part of the citizens to meet peaceably for
consultation in respect to public affairs. It is a necessary consequence of our
republican institution and complements the right of speech. As in the case
of freedom of expression, this right is not to be limited, much less denied,
except on a showing of a clear and present danger of a substantive evil that
Congress has a right to prevent. In other words, like other rights embraced
in the freedom of expression, the right to assemble is not subject to previous
restraint or censorship. It may not be conditioned upon the prior issuance of
a permit or authorization from the government authorities except, of course,
if the assembly is intended to be held in a public place, a permit for the use
of such place, and not for the assembly itself, may be validly required.
The ringing truth here is that petitioner David, et al. were arrested while
they were exercising their right to peaceful assembly. They were not
committing any crime, neither was there a showing of a clear and present
danger that warranted the limitation of that right. As can be gleaned from
circumstances, the charges of inciting to sedition and violation of BP 880
were mere afterthought. Even the Solicitor General, during the oral
argument, failed to justify the arresting officers' conduct. In De Jonge v.
Oregon, it was held that peaceable assembly cannot be made a crime, thus:
Peaceable assembly for lawful discussion cannot be made a crime. The
holding of meetings for peaceable political action cannot be proscribed.
Those who assist in the conduct of such meetings cannot be branded as
criminals on that score. The question, if the rights of free speech and
peaceful assembly are not to be preserved, is not as to the auspices under
which the meeting was held but as to its purpose; not as to the relations of
the speakers, but whether their utterances transcend the bounds of the
freedom of speech which the Constitution protects. If the persons
assembling have committed crimes elsewhere, if they have formed or are
engaged in a conspiracy against the public peace and order, they may be
prosecuted for their conspiracy or other violations of valid laws. But it is a
different matter when the State, instead of prosecuting them for such
offenses, seizes upon mere participation in a peaceable assembly and a
lawful public discussion as the basis for a criminal charge.
On the basis of the above principles, the Court likewise considers the
dispersal and arrest of the members of KMU et al. (G.R. No. 171483)
unwarranted. Apparently, their dispersal was done merely on the basis of
Malacaang's directive canceling all permits previously issued by local
government units. This is arbitrary. The wholesale cancellation of all
permits to rally is a blatant disregard of the principle that "freedom of
assembly is not to be limited, much less denied, except on a showing of a
clear and present danger of a substantive evil that the State has a right to
prevent." Tolerance is the rule and limitation is the exception. Only upon a
showing that an assembly presents a clear and present danger that the State
may deny the citizens' right to exercise it. Indeed, respondents failed to
show or convince the Court that the rallyists committed acts amounting to
lawless violence, invasion or rebellion. With the blanket revocation of
permits, the distinction between protected and unprotected assemblies was
eliminated.
Moreover, under BP 880, the authority to regulate assemblies and rallies is
lodged with the local government units. They have the power to issue
permits and to revoke such permits after due notice and hearing on the
determination of the presence of clear and present danger. Here, petitioners
were not even notified and heard on the revocation of their permits. The
first time they learned of it was at the time of the dispersal. Such absence of
notice is a fatal defect. When a person's right is restricted by government
action, it behooves a democratic government to see to it that the restriction
is fair, reasonable, and according to procedure.
G.R. No. 171409, (Cacho-Olivares, et al.) presents another facet of freedom
of speech i.e., the freedom of the press. Petitioners' narration of facts, which
the Solicitor General failed to refute, established the following: first, the
Daily Tribune's offices were searched without warrant; second, the police
operatives seized several materials for publication; third, the search was
As heretofore stated, the premises searched were the business and printing
offices of the "Metropolitan Mail" and the "We Forum" newspapers. As a
consequence of the search and seizure, these premises were padlocked and
sealed, with the further result that the printing and publication of said
newspapers were discontinued.
Such closure is in the nature of previous restraint or censorship abhorrent to
the freedom of the press guaranteed under the fundamental law, and
constitutes a virtual denial of petitioners' freedom to express themselves in
print. This state of being is patently anathematic to a democratic framework
where a free, alert and even militant press is essential for the political
enlightenment and growth of the citizenry.
While admittedly, the Daily Tribune was not padlocked and sealed like the
"Metropolitan Mail" and "We Forum" newspapers in the above case, yet it
cannot be denied that the CIDG operatives exceeded their enforcement
duties. The search and seizure of materials for publication, the stationing of
policemen in the vicinity of the The Daily Tribune offices, and the arrogant
warning of government officials to media, are plain censorship. It is that
officious functionary of the repressive government who tells the citizen that
he may speak only if allowed to do so, and no more and no less than what
he is permitted to say on pain of punishment should he be so rash as to
disobey. Undoubtedly, the The Daily Tribune was subjected to these
arbitrary intrusions because of its anti-government sentiments. This Court
cannot tolerate the blatant disregard of a constitutional right even if it
involves the most defiant of our citizens. Freedom to comment on public
affairs is essential to the vitality of a representative democracy. It is the duty
of the courts to be watchful for the constitutional rights of the citizen, and
against any stealthy encroachments thereon. The motto should always be
obsta principiis.
Incidentally, during the oral arguments, the Solicitor General admitted that
the search of the Tribune's offices and the seizure of its materials for
publication and other papers are illegal; and that the same are inadmissible
"for any purpose," thus:
JUSTICE CALLEJO:
You made quite a mouthful of admission when you said that the
policemen, when inspected the Tribune for the purpose of gathering
evidence and you admitted that the policemen were able to get the
clippings. Is that not in admission of the admissibility of these clippings that
were taken from the Tribune?
SOLICITOR GENERAL BENIPAYO:
Under the law they would seem to be, if they were illegally seized,
I think and I know, Your Honor, and these are inadmissible for any purpose.
xxx
xxx
xxx
SR. ASSO. JUSTICE PUNO:
These have been published in the past issues of the Daily Tribune;
all you have to do is to get those past issues. So why do you have to go
there at 1 o'clock in the morning and without any search warrant? Did they
become suddenly part of the evidence of rebellion or inciting to sedition or
what?
SOLGEN BENIPAYO:
Well, it was the police that did that, Your Honor. Not upon my
instructions.
SR. ASSO. JUSTICE PUNO:
Are you saying that the act of the policeman is illegal, it is not
based on any law, and it is not based on Proclamation 1017.
SOLGEN BENIPAYO:
It is not based on Proclamation 1017, Your Honor, because there is
nothing in 1017 which says that the police could go and inspect and gather
clippings from Daily Tribune or any other newspaper.
SR. ASSO. JUSTICE PUNO:
Is it based on any law?
SOLGEN BENIPAYO:
As far as I know, no, Your Honor, from the facts, no. DITEAc
SR. ASSO. JUSTICE PUNO:
So, it has no basis, no legal basis whatsoever?
SOLGEN BENIPAYO:
Maybe so, Your Honor. Maybe so, that is why I said, I don't know
if it is premature to say this, we do not condone this. If the people who have
been injured by this would want to sue them, they can sue and there are
remedies for this. 156
Likewise, the warrantless arrests and seizures executed by the police were,
according to the Solicitor General, illegal and cannot be condoned, thus:
CHIEF JUSTICE PANGANIBAN:
There seems to be some confusions if not contradiction in your
theory.
SOLICITOR GENERAL BENIPAYO:
I don't know whether this will clarify. The acts, the supposed
illegal or unlawful acts committed on the occasion of 1017, as I said, it
cannot be condoned. You cannot blame the President for, as you said, a
misapplication of the law. These are acts of the police officers, that is their
responsibility.
The Dissenting Opinion states that PP 1017 and G.O. No. 5 are
constitutional in every aspect and "should result in no constitutional or
statutory breaches if applied according to their letter."
The Court has passed upon the constitutionality of these issuances. Its
ratiocination has been exhaustively presented. At this point, suffice it to
reiterate that PP 1017 is limited to the calling out by the President of the
military to prevent or suppress lawless violence, invasion or rebellion.
When in implementing its provisions, pursuant to G.O. No. 5, the military
and the police committed acts which violate the citizens' rights under the
Constitution, this Court has to declare such acts unconstitutional and illegal.
DaAISH
In this connection, Chief Justice Artemio V. Panganiban's concurring
opinion, attached hereto, is considered an integral part of this ponencia.
In the same vein, the Court finds G.O. No. 5 valid. It is an Order issued by
the President acting as Commander-in-Chief addressed to subalterns
in the AFP to carry out the provisions of PP 1017. Significantly, it also
provides a valid standard that the military and the police should take
only the "necessary and appropriate actions and measures to suppress and
prevent acts of lawless violence." But the words "acts of terrorism" found in
G.O. No. 5 have not been legally defined and made punishable by Congress
and should thus be deemed deleted from the said G.O. While "terrorism"
has been denounced generally in media, no law has been enacted to guide
the military, and eventually the courts, to determine the limits of the AFP's
authority in carrying out this portion of G.O. No. 5.
SUMMATION
In sum, the lifting of PP 1017 through the issuance of PP 1021 a
supervening event would have normally rendered this case moot and
academic. However, while PP 1017 was still operative, illegal acts were
committed allegedly in pursuance thereof. Besides, there is no guarantee
that PP 1017, or one similar to it, may not again be issued. Already, there
have been media reports on April 30, 2006 that allegedly PP 1017 would be
reimposed "if the May 1 rallies" become "unruly and violent."
Consequently, the transcendental issues raised by the parties should not be
On the basis of the relevant and uncontested facts narrated earlier, it is also
pristine clear that (1) the warrantless arrest of petitioners Randolf S. David
and Ronald Llamas; (2) the dispersal of the rallies and warrantless arrest of
the KMU and NAFLU-KMU members; (3) the imposition of standards on
media or any prior restraint on the press; and (4) the warrantless search of
the Tribune offices and the whimsical seizures of some articles for
publication and other materials, are not authorized by the Constitution, the
law and jurisprudence. Not even by the valid provisions of PP 1017 and
G.O. No. 5.
Other than this declaration of invalidity, this Court cannot impose any civil,
criminal or administrative sanctions on the individual police officers
concerned. They have not been individually identified and given their day
in court. The civil complaints or causes of action and/or relevant criminal
Informations have not been presented before this Court. Elementary due
process bars this Court from making any specific pronouncement of civil,
criminal or administrative liabilities.
It is well to remember that military power is a means to an end and
substantive civil rights are ends in themselves. How to give the military the
power it needs to protect the Republic without unnecessarily trampling
individual rights is one of the eternal balancing tasks of a democratic state.
During emergency, governmental action may vary in breadth and intensity
from normal times, yet they should not be arbitrary as to unduly restrain our
people's liberty.
Perhaps, the vital lesson that we must learn from the theorists who studied
the various competing political philosophies is that, it is possible to grant
government the authority to cope with crises without surrendering the two
vital principles of constitutionalism: the maintenance of legal limits to
arbitrary power, and political responsibility of the government to the
governed.
WHEREFORE, the Petitions are partly granted. The Court rules that PP
1017 is CONSTITUTIONAL insofar as it constitutes a call by President
Gloria Macapagal-Arroyo on the AFP to prevent or suppress lawless
violence. However, the provisions of PP 1017 commanding the AFP to
enforce laws not related to lawless violence, as well as decrees promulgated
by the President, are declared UNCONSTITUTIONAL. In addition, the
provision in PP 1017 declaring national emergency under Section 17,
Article VII of the Constitution is CONSTITUTIONAL, but such declaration
does not authorize the President to take over privately-owned public utility
or business affected with public interest without prior legislation.
G.O. No. 5 is CONSTITUTIONAL since it provides a standard by which
the AFP and the PNP should implement PP 1017, i.e. whatever is
"necessary and appropriate actions and measures to suppress and prevent
acts of lawless violence." Considering that "acts of terrorism" have not yet
been defined and made punishable by the Legislature, such portion of G.O.
No. 5 is declared UNCONSTITUTIONAL.
The warrantless arrest of Randolf S. David and Ronald Llamas; the
dispersal and warrantless arrest of the KMU and NAFLU-KMU members
during their rallies, in the absence of proof that these petitioners were
committing acts constituting lawless violence, invasion or rebellion and
violating BP 880; the imposition of standards on media or any form of prior
restraint on the press, as well as the warrantless search of the Tribune
offices and whimsical seizure of its articles for publication and other
materials, are declared UNCONSTITUTIONAL.
No costs.
SO ORDERED.
Quisumbing, Austria-Martinez, Azcuna, Chico-Nazario and Garcia, JJ.,
concur.
Panganiban, C.J. and Ynares-Santiago, JJ., please see concurring opinion.
Puno, J., is on leave.
Carpio, J., also concurs with Chief Justice's opinion.
Corona, J., shares the dissenting opinion of Mr. Justice Tinga.
Carpio-Morales, J., the concurring opinion of the Chief Justice merits also
my concurrence.
Callejo, Sr., J., also concurs with the concurring opinion of Chief Justice
Panagniban.
Tinga, J., please see dissenting opinion.
Velasco, Jr., J., joins the dissent of J. Tinga.
[I didnt include the concurring opinion. Its actually the same length as the
actual case and contains pretty much the same info.]
DECISION
CRUZ, J p:
There is probably no more notorious person in the country today than
Mayor Antonio L. Sanchez of Calauan, Laguna, who stands accused of an
unspeakable crime. On him the verdict has already been rendered by many
outraged persons who would immediately impose on him an angry
sentence. Yet, for all the prejudgments against him, he is under our
Constitution presumed innocent as long as the contrary has not been proved.
Like any other person accused of an offense, he is entitled to the full and
vigilant protection of the Bill of Rights.
Sanchez has brought this petition to challenge the order of the respondent
judge denying his motion to quash the informations for rape with homicide
filed against him and six other persons. We shall treat it as we would any
other suit filed by any litigant hoping to obtain a just and impartial
judgment from this Court.
The pertinent facts are as follows:
On July 28, 1993, the Presidential Anti-Crime Commission requested the
filing of appropriate charges against several persons, including the
petitioner, in connection with the rape-slay of Mary Eileen Sarmenta and
the killing of Allan Gomez.
the petitioner and the relationship of an employee in the trial court with one
of the accused. This Court thereupon ordered the transfer of the venue of
the seven cases to Pasig, Metro Manila, where they were raffled to
respondent Judge Harriet Demetriou.
On September 10, 1993, the seven informations were amended to include
the killing of Allan Gomez as an aggravating circumstance.
On that same date, the petitioner filed a motion to quash the informations
substantially on the grounds now raised in this petition. On September 13,
1993, after oral arguments, the respondent judge denied the motion.
Sanchez then filed with this Court the instant petition for certiorari and
prohibition with prayer for a temporary restraining order/writ of injunction.
The petitioner argues that the seven informations filed against him should
be quashed because: 1) he was denied the right to present evidence at the
preliminary investigation; 2) only the Ombudsman had the competence to
conduct the investigation; 3) his warrantless arrest is illegal and the court
has therefore not acquired jurisdiction over him; 4) he is being charged with
seven homicides arising from the death of only two persons; 5) the
informations are discriminatory because they do not include Teofilo
Alqueza and Edgardo Lavadia; and 6) as a public officer, he can be tried for
the offense only by the Sandiganbayan.
The respondents submitted a Comment on the petition, to which we
required a Reply from the petitioner within a non-extendible period of five
days. The Reply was filed five days late. The Court may consider his noncompliance an implied admission of the respondents' arguments or a loss of
interest in prosecuting his petition, which is a ground for its dismissal.
Nevertheless, we shall disregard this procedural lapse and proceed to
discuss his petition on the basis of the arguments before us.
The Preliminary Investigation
The records of the hearings held on August 9 and 13, 1993, belie the
petitioner's contention that he was not accorded the right to present counteraffidavits.
The petitioner was present at that hearing and he never disowned Atty.
Panelo as his counsel. During the entire proceedings, he remained quiet and
let this counsel speak and argue on his behalf. It was only in his tardy Reply
that he has suddenly bestirred himself and would now question his
representation by this lawyer as unauthorized and inofficious.
Section 3 paragraph (d), Rule 112 of the Rules of Court, provides that if the
respondent cannot be subpoenaed or, if subpoenaed, does not submit
counter-affidavits, the investigating officer shall base his resolution on the
evidence presented by the complainant.
Petitioners finally assert that the information and amended information filed
in this case needed the approval of the Ombudsman. It is not disputed that
the information and amended information here did not have the approval of
the Ombudsman. However, we do not believe that such approval was
necessary at all. In Deloso v. Domingo, 191 SCRA 545 (1990), the Court
held that the Ombudsman has authority to investigate charges of illegal acts
or omissions on the part of any public official, i.e., any crime imputed to a
public official. It must, however, be pointed out that the authority of the
Ombudsman to investigate "any [illegal] act or omission of any public
official" (191 SCRA at 550) is not an exclusive authority but rather a shared
or concurrent authority in respect of the offense here charged, i.e., the crime
of sedition. Thus, the non-involvement of the office of the Ombudsman in
the present case does not have any adverse legal consequence upon the
authority of the panel of prosecutors to file and prosecute the information or
amended information.
Just as the accused may renounce the right to be present at the preliminary
investigation, so may he waive the right to present counter-affidavits or any
other evidence in his defense.
At any rate, it is settled that 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.
If no preliminary investigation has been held, or if it is flawed, the trial
court may, on motion of the accused, order an investigation or
reinvestigation and hold the proceedings in the criminal cases in abeyance.
In the case at bar, however, the respondent judge saw no reason or need for
such a step. Finding no arbitrariness in her factual conclusions, we shall
defer to her judgment.
"Arrest" is defined under Section 1, Rule 113 of the Rules of Court as the
taking of a person into custody in order that he may be bound to answer for
the commission of an offense. Under Section 2 of the same Rule, an arrest
is effected by an actual restraint of the person to be arrested or by his
voluntary submission to the custody of the person making the arrest.
Application of actual force, manual touching of the body, physical restraint
or a formal declaration of arrest is not required. It is enough that there be an
intent on the part of one of the parties to arrest the other and an intent on the
part of the other to submit, under the belief and impression that submission
is necessary.
The petitioner was taken to Camp Vicente Lim, Canlubang, Laguna, by
virtue of a letter-invitation issued by PNP Commander Rex Piad requesting
him to appear at the said camp for investigation.
In Babst v. National Intelligence Board 13 this Court declared:
Be that as it may, it is not idle to note that ordinarily, an invitation to attend
a hearing and answer some questions, which the person invited may heed or
refuse at his pleasure, is not illegal or constitutionally objectionable. Under
certain circumstances, however, such an invitation can easily assume a
different appearance. Thus, where the invitation comes from a powerful
group composed predominantly of ranking military officers issued at a time
when the country has just emerged from martial rule and when the
suspension of the privilege of the writ of habeas corpus has not entirely
been lifted, and the designated interrogation site is a military camp, the
same can easily be taken, not as a strictly voluntary invitation which it
purports to be, but as an authoritative command which one can only defy at
his peril . . . (Emphasis supplied)
In the case at bar, the invitation came from a high-ranking military official
and the investigation of Sanchez was to be made at a military camp.
Although in the guise of a request, it was obviously a command or an order
of arrest that the petitioner could hardly be expected to defy. In fact,
apparently cowed by the "invitation," he went without protest (and in
informal clothes and slippers only) with the officers who had come to fetch
him.
It may not be amiss to observe that under R.A. No. 7438, the requisites of a
"custodial investigation" are applicable even to a person not formally
arrested but merely "invited" for questioning.
It should likewise be noted that at Camp Vicente Lim, the petitioner was
placed on "arrest status" after he was pointed to by Centeno and Malabanan
as the person who first raped Mary Eileen Sarmenta. Respondent Zuo
himself acknowledged during the August 13, 1993 hearing that, on the basis
of the sworn statements of the two state witnesses, the petitioner had been
"arrested."
We agree with the petitioner that his arrest did not come under Section 5,
Rule 113 of the Rules of Court, providing as follows:
SECTION 5.
Arrest without warrant; when lawful. A peace officer
or a private person may, without a warrant, arrest a person:
(a)
When, in his presence, the person to be arrested has committed, is
actually committing, or is attempting to commit an offense;
(b)
When an offense has in fact just been committed and he has
personal knowledge of facts indicating that the person to be arrested has
committed it; and
(c)
When the person to be arrested is a prisoner who has escaped from
a penal establishment or place where he is serving final judgment or
temporarily confined while his case is pending, or has escaped while being
transferred from one confinement to another.
It is not denied that the arresting officers were not present when the
petitioner allegedly participated in the killing of Allan Gomez and the rapeslay of Mary Eileen Sarmenta. Neither did they have any personal
knowledge that the petitioner was responsible therefor because the basis of
the arrest was the sworn statements of Centeno and Malabanan. Moreover,
as the rape and killing of Sarmenta allegedly took place on June 28 - June
29, 1993, or forty-six days before the date of the arrest, it cannot be said
that the offense had "in fact just been committed" when the petitioner was
arrested.
The original warrantless arrest of the petitioner was doubtless illegal.
Nevertheless, the Regional Trial Court lawfully acquired jurisdiction over
In one case, the petitioner sued on habeas corpus on the ground that she had
been arrested by virtue of a John Doe warrant. In their return, the
respondents declared that a new warrant specifically naming her had been
issued, thus validating her detention. While frowning at the tactics of the
respondents, the Court said:
The case has, indeed, become moot and academic inasmuch as the new
warrant of arrest complies with the requirements of the Constitution and the
Rules of Court regarding the particular description of the person to be
arrested. While the first warrant was unquestionably void, being a general
warrant, release of the petitioner for that reason will be a futile act as it will
be followed by her immediate re-arrest pursuant to the new and valid
warrant, returning her to the same prison she will just have left. This Court
will not participate in such a meaningless charade.
The same doctrine has been consistently followed by the Court, more
recently in the Umil case.
The Informations
The petitioner submits that the seven informations charging seven separate
homicides are absurd because the two victims in these cases could not have
died seven times.
This argument was correctly refuted by the Solicitor General in this wise:
Thus, where there are two or more offenders who commit rape, the
homicide committed on the occasion or by reason of each rape, must be
deemed as a constituent of the special complex crime of rape with
homicide. Therefore, there will be as many crimes of rape with homicide as
there are rapes committed.
In effect, the presence of homicide qualifies the crime of rape, thereby
raising its penalty to the highest degree. Thus, homicide committed on the
occasion or by reason of the rape, loses its character as an independent
offense, but assumes a new character, and functions like a qualifying
circumstance. However, by fiction of law, it is merged with rape to
constitute a constituent element of a special complex crime of rape with
homicide with a specific penalty which is in the highest degree, i.e., death
(reduced to reclusion perpetua with the suspension of the application of the
death penalty by the Constitution).
While the prosecuting officer is required by law to charge all those who, in
his opinion, appear to be guilty, he nevertheless cannot be compelled to
include in the information a person against whom he believes no sufficient
evidence of guilt exists. The appreciation of the evidence involves the use
of discretion on the part of the prosecutor, and we do not find in the case at
bar a clear showing by the petitioner of a grave abuse of such discretion.
The decision of the prosecutor may be reversed or modified by the
Secretary of Justice or in special cases by the President of the Philippines.
But even this Court cannot order the prosecution of a person against whom
the prosecutor does not find sufficient evidence to support at least a prima
facie case. The courts try and absolve or convict the accused but as a rule
have no part in the initial decision to prosecute him.
The possible exception is where there is an unmistakable showing of a
grave abuse of discretion that will justify judicial intrusion into the precincts
of the executive. But in such a case the proper remedy to call for such
exception is a petition for mandamus, not certiorari or prohibition.
Moreover, before resorting to this relief, the party seeking the inclusion of
another person as a co-accused in the same case must first avail itself of
other adequate remedies such as the filing of a motion for such decision.
At any rate, it is a preposterous contention that because no charges have
been filed against Alqueza and Lavadia, the charges against the petitioner
and his co-accused should also be dropped.
Jurisdiction of the Sandiganbayan
The petitioner argued earlier that since most of the accused were incumbent
public officials or employees at the time of the alleged commission of the
crimes, the cases against them should come under the jurisdiction of the
Sandiganbayan and not of the regular courts. This contention was
withdrawn in his Reply but we shall discuss it just the same for the
guidance of all those concerned.
Section 4, paragraph (a) of P.D. No. 1606, as amended by P.D. No. 1861,
provides:
SECTION 4.
Jurisdiction. The Sandiganbayan shall exercise:
a)
Exclusive original jurisdiction in all cases involving:
(1)
Violations of Republic Act No. 3019, as amended, otherwise
known as the Anti-Graft and Corrupt Practices Act, Republic Act No. 1379,
and Chapter II, Section 2, Title VII of the Revised Penal Code;
(2)
Other offenses or felonies committed by public officers and
employees in relation to their office, including those employed in
government-owned or controlled corporations, whether simple or
complexed with other crimes, where the penalty prescribed by law is higher
than prision correccional or imprisonment for six (6) years, or a fine of
P6,000.00 . . . (Emphasis supplied)
The crime of rape with homicide with which the petitioner stands charged
obviously does not fall under paragraph (1), which deals with graft and
corruption cases. Neither is it covered by paragraph (2) because it is not an
offense committed in relation to the office of the petitioner.
In Montilla v. Hilario, this Court described the "offense committed in
relation to the office" as follows:
[T]he relation between the crime and the office contemplated by the
Constitution is, in our opinion, direct and not accidental. To fall into the
intent of the Constitution, the relation has to be such that, in the legal sense,
the offense cannot exist without the office. In other words, the office must
be a constituent element of the crime as defined in the statute, such as, for
instance, the crimes defined and punished in Chapter Two to Six, Title
Seven, of the Revised Penal Code.
Public office is not of the essence of murder. The taking of human life is
either murder or homicide whether done by a private citizen or public
servant, and the penalty is the same except when the perpetrator, being a
public functionary, took advantage of his office, as alleged in this case, in
which event the penalty is increased.
But the use or abuse of office does not adhere to the crime as an element;
and even as an aggravating circumstance, its materiality arises, not from the
allegations but on the proof, not from the fact that the criminals are public
officials but from the manner of the commission of the crime.
There is no direct relation between the commission of the crime of rape
with homicide and the petitioner's office as municipal mayor because public
office is not an essential element of the crime charged. The offense can
stand independently of the office. Moreover, it is not even alleged in the
information that the commission of the crime charged was intimately
connected with the performance of the petitioner's official functions to
make it fall under the exception laid down in People v. Montejo.
In that case, a city mayor and several detectives were charged with murder
for the death of a suspect as a result of a "third degree" investigation held at
a police substation. The appearance of a senator as their counsel was
questioned by the prosecution on the ground that he was inhibited by the
Constitution from representing them because they were accused of an
offense committed in relation to their office. The Court agreed. It held that
even if their position was not an essential ingredient of the offense, there
was nevertheless an intimate connection between the office and the offense,
as alleged in the information, that brought it within the definition of an
offense "committed in relation to the public office."
As Chief Justice Concepcion said:
It is apparent from these allegations that, although public office is not an
element of the crime of murder in abstract, as committed by the main
respondents herein, according to the amended information, the offense
therein charged is intimately connected with their respective offices and
was perpetrated while they were in the performance, though improper or
irregular, of their official functions. Indeed, they had no personal motive to
commit the crime and they would not have committed it had they not held
their aforesaid offices. The co-defendants of respondent Leroy S. Brown,
obeyed his instructions because he was their superior officer, as Mayor of
Basilan City. (Emphasis supplied).
We have read the informations in the case at bar and find no allegation
therein that the crime of rape with homicide imputed to the petitioner was
connected with the discharge of his functions as municipal mayor or that
6.
ID.; ID.; ID.; FAILURE TO RESOLVE MOTION TO
DISMISS FOR MORE THAN ONE YEAR, VIOLATION OF RIGHT
TO SPEEDY TRIAL; CASE AT BAR. In the instant case, however,
the Court finds that delay concerns the resolution of petitioner's "Urgent
Motion to Dismiss", which is an offshoot of the Memorandum of the Office
of the Special Prosecutor recommending the dismissal of the case. Such
delay is now far from excusable. Petitioner's Motion to Dismiss has been
filed as early as December 13, 1996 and, on three occasions, petitioner has
moved for the urgent resolution of this motion. What further militates
against further delay in resolving this case is the fact that the government
prosecutors themselves concede that this case is paramount importance,
involving as it does "the recovery of the ill-gotten wealth or government
funds, unlawfully used or misused by persons close or perceived to be close
to the Marcoses." Respondent court declared in its Order dated February 17
1997 that the matter would be deemed submitted for resolution upon
compliance with the Office of the Special Prosecutor as to whether there is
indeed no probable cause against petitioner, which compliance was
submitted by the Office of the Special Prosecutor on March 17, 1997.
Under these circumstances, the Court does find the period of more than one
year that elapsed for resolving petitioner's motion to dismiss quite long,
considering that all pertinent pleadings required by the Sandiganbayan were
already submitted.
7.
ID.; ID ; RIGHT TO TRAVEL; DENIAL THEREOF IN
CASE AT BAR UNJUSTIFIED. The travel ban should be lifted
considering all the circumstances now prevailing. The rule laid down by
this Court is that a person facing a criminal indictment and provisionally
released on bail does not have an unrestricted right to travel, the reason
being that a person's right to travel is subject to the usual constraints
imposed by the very necessity of safeguarding the system of justice. But,
significantly, the Office of the Solicitor General in its Manifestation dated
November 20, 1998 indicated that it is not interposing any objection to
petitioner's prayer that he be allowed to travel abroad. Moreover,
prescinding from our initial declaration that the issuance of warrant of arrest
against petitioner by respondent court is invalid, it now becomes necessary
that there be strong and compelling reasons to justify the continued
restriction on petitioner's right to travel abroad. Admittedly, all of
petitioner's previous requests to travel abroad has been granted and that, as
confirmed by the Office of the Solicitor General, that petitioner has always
returned to the Philippines and complied with the restrictions imposed on
him. The necessity of further denying petitioner's right to travel abroad,
with attendant restrictions, appears less than clear. The risk of flight is
further diminished in view of petitioner's recent reinstatement as Chairman
and Chief Executive Officer of San Miguel Corporation, though he has now
more justification to travel so as to oversee the entire operations of that
company. In this regard, it has to be conceded that his assumption of such
vital post has come at a time when the current economic crisis has adversely
affected the international operations of many companies, including San
Miguel. The need to travel abroad frequently on the part of petitioner, to
formulate and implement the necessary corporate strategies and decisions,
could not be forestalled. These considerations affecting the petitioner's
duties to a publicly held company, militate against imposing further
restrictions on petitioner's right to travel abroad.
PANGANIBAN, J., concurring and dissenting:
1.
REMEDIAL LAW; CRIMINAL PROCEDURE; ARREST;
PROBABLE CAUSE; MUST BE PERSONALLY DETERMINED BY
JUDGE. With an analysis of case law as backdrop, the Court en banc
indeed categorically declared in Ho (280 SCRA 365 [1997]) that a judge
cannot issue a warrant of arrest with only the prosecutor's findings and
recommendation as bases for determining probable cause. No less than the
Constitution mandates in no uncertain terms that "no . . . warrant of arrest
shall issue except upon probable cause to be determined personally by the
judge after examination under oath or affirmation of the complainant and
the witnesses he may produce . . . . " This clause unequivocally means that
the judge must make his own determination independent of that of the
prosecutor of whether there is probable cause to issue a warrant of arrest,
based on the complainant's and his witnesses' accounts, if any.
2.
ID.; ID.; ID.; ID.; ID.; RELIANCE ON TWO (2)
DOCUMENTS SUBMITTED BY THE OFFICE OF THE
OMBUDSMAN AND OFFICE OF SPECIAL PROSECUTOR, NOT
SUFFICIENT FOR PROPER DETERMINATION OF EXISTENCE
OF PROBABLE CAUSE; WARRANT ISSUED NULL AND VOID;
to resolve his case. And, as borne by the records, for three years said court
practically sat on his case (reconsideration of the denial of his Opposition).
Under the circumstances, petitioner's actions should not be construed as a
waiver of his right to object to the nullity of his arrest. With all due respect,
I submit that to rule otherwise as the majority did is most unfair and unjust,
because an accused could be indefinitely detained as a result of the trial
court's expedient of merely sitting on the objection to the issuance of the
warrant.
VITUG, J., concurring:
1.
REMEDIAL LAW; CRIMINAL PROCEDURE; MOTION
TO DISMISS, BREACH OF RIGHT TO SPEEDY DISPOSITION OF
CASE; REQUISITE. A breach of the right of an accused to the speedy
disposition of his case may truly have consequential effects but it is not
enough that there be some procrastination in the proceedings. In order to
justify the dismissal of the criminal case, foreclosing thereby even a
rectification of its handling, it must be established that the proceedings
unquestionably have been marred by vexatious, capricious and oppressive
delays.
2.
ID.; ID.; ARREST; JUDGE MUST PERSONALLY
EVALUATE REPORT AND SUPPORTING DOCUMENTS
SUBMITTED BY PROSECUTOR The issuance of a warrant of arrest
is one of grave responsibility on the part of the issuing judge. While the
judge need not himself examine the complainant and his witnesses, he,
however, must personally evaluate the report and supporting documents
submitted by the prosecutor regarding the existence of probable cause and
only on the basis thereof can he validly and correspondingly issue a warrant
of arrest. The judge may, if he finds it needful, require the submission of
additional affidavits of witnesses or papers to aid him in arriving at a
conclusion on the existence or absence of probable cause.
3.
ID.; ID.; ID.; PROCEDURAL FLAWS IN ISSUANCE
THEREOF DEEMED WAIVED IN POSTING BOND. The
foregoing dictum would, however, be inconsequential in a case when the
person on whom the warrant is served has, in some other way, effectively
submitted himself to the jurisdiction of the court. One such case is by the
posting of bail. The fact that the issuance of the warrant of arrest is assailed
for its procedural flaws before the posting of bail is of little moment since
the arrest relates merely to the jurisdiction of the court which posting
would, of course, only be feasible if the court allowing it would have first
acquired lawful jurisdiction over person at the time.
4.
CONSTITUTIONAL LAW; BILL OF RIGHTS; RIGHT TO
TRAVEL; RESTRICTED WHEN ONE IS FACING CRIMINAL
CHARGES; RESTRICTION TEMPORARILY LIFTED IN CASE AT
BAR. Corollarily, the constitutional right of a person to travel may be
restricted not only because he may be facing criminal charges but also as
being the consequence of the nature and function of a bail. The condition
imposed upon him to make himself available at all times whenever the court
so requires his presence operates as a valid restriction on his right to travel.
Nevertheless, I join the majority of my colleagues in directing the
temporary lifting for the reasons advanced, which I find to be reasonable
and justified, of the ban on travel of petitioner.
DECISION
QUISUMBING, J p:
This petition for prohibition under Section 2 of Rule 65 of the Rules of
Court seeks to dismiss Criminal Case No. 22018 entitled "People of the
Philippines vs. Eduardo M. Cojuangco, Jr., et al.", now pending before
respondent Sandiganbayan (First Division), and to prohibit said court from
further proceeding with the case. Petitioner invokes his constitutional right
to due process, a speedy trial, and a speedy determination of his cases
before all judicial, quasi-judicial and administrative bodies. Further, he
prays for the issuance of a Temporary Restraining Order and/or Writ of
Preliminary Injunction enjoining respondent Sandiganbayan (First Division)
from further enforcing and/or implementing its order dated February 20,
1995, which bans petitioner from leaving the country except upon prior
approval by said court.
Criminal Case No. 22018 is an offshoot of a complaint filed on January 12,
1990, by the Office of the Solicitor General before the Presidential
Commission on Good Government (PCGG), docketed as I.S. No. 74,
On January 17, 1997, the prosecution filed its compliance to the Order
dated January 9, 1997. On the other hand, the Office of the Solicitor
General filed its comment on January 24, 1997.
urgent motion for hearing thereon 6 citing the urgency of lifting the travel
restriction on him in view of the various problems involving the
investments of San Miguel Corporation (SMC) abroad which must be
immediately attended to by petitioner as duly elected Chairman and Chief
Executive Officer of SMC. Petitioner asserts that quite often, it becomes
necessary for him to attend meetings and conferences abroad where
attendance must be confirmed promptly. Considering that he must first
secure the permission of respondent Sandiganbayan before he can travel
abroad and abide by the conditions imposed by said court upon the grant of
such permission, petitioner contends that it becomes impossible for him to
immediately attend to the aforecited tasks.
On September 2, 1998, the Court noted the respective comments to the
petition filed by the Office of the Special Prosecutor and the Solicitor
General and required petitioner to file a consolidated reply within ten (10)
days from notice.
On September 3, 1998, petitioner filed a Second Motion Reiterating
Application for Temporary Restraining Order and/or Writ of Preliminary
Injunction with Urgent Motion for Hearing, arguing among others that the
continued maintenance of the hold-departure order against him has
deleterious consequence not only on him personally but also on San Miguel
Corporation, a publicly listed stock company, of which he is now Chairman
and Executive Officer.
On September 7, 1998, the Court resolved to defer action on the
aforementioned second motion reiterating the application for the issuance of
a temporary restraining order and/or a writ of preliminary injunction until
the filing of petitioner's Consolidated Reply and required the
Sandiganbayan to file its own Comment on the petition in view of the
Comment filed by the Office of the Special Prosecutor divergent from the
position taken by respondent Sandiganbayan.
On September 10, 1998, petitioner filed a Consolidated Reply 11 and
prayed that his Second Application for a Temporary Restraining Order
and/or Writ of Preliminary Injunction with Urgent Motion for hearing dated
September 2, 1998 be now acted upon.
In its Resolution dated November 9, 1998, the Court noted the aforesaid
motion and directed petitioner that in the meanwhile, he may address his
request for permission to travel abroad to the Sandiganbayan.
On November 12, 1998, petitioner filed a Motion for Reconsideration of the
Court's resolution dated November 9, 1998 and argued that:
"xxx
xxx
xxx
(6)
While the petitioner may indeed obtain some relief by addressing
his 'prayer for permission to travel abroad to the Sandiganbayan', to a large
extent, this defeats the purpose of the petition because petitioner has
precisely come to the Supreme Court to obtain relief from an oppressive
regime of authorization to travel abroad that the Order of the
Sandiganbayan of February 20, 1995 (Annex 'E', Petition) has imposed
Significantly, not any of the respondents have opposed petitioner's
application for the issuance of temporary restraining order and/or writ of
preliminary injunction or for permission to travel abroad."
On November 20, 1998, petitioner filed a Manifestation in support of his
motion for reconsideration, setting forth the urgency of lifting the ban on
foreign travel imposed on him in view of the need to oversee the critical
stages in the international operations of SMC as its Chairman and Chief
Executive Officer.
On November 20, 1998, the Office of the Solicitor General filed a
Manifestation indicating that it is not interposing any objection to
petitioner's prayer that he be allowed to travel abroad.
With the submission of the parties' respective memoranda, the Court now
proceeds to resolve the petition.
As postulated during the oral argument, three main issues confront us in this
petition, to wit:
"(1)
whether the warrant of arrest issued by respondent Sandiganbayan
is null and void, or should now be lifted if initially valid;
(2)
whether petitioner's basic rights to due process, speedy trial and
speedy disposition of the case have been violated as to warrant dismissal of
Criminal Case No. 22018; and
(3)
whether the ban on foreign travel imposed on petitioner per Order
of February 20, 1995 should be vacated to enable petitioner to go abroad
without prior permission of, and other restrictions imposed by, the
respondent Sandiganbayan."
On the first issue, petitioner and the Office of the Special Prosecutor both
argue that the warrant of arrest issued by respondent Sandiganbayan is null
and void for lack of sufficient basis upon which it could have "personally''
determined the existence of probable cause to issue the warrant of arrest
against him. They contend that there was a violation of Section 2, Article III
of the Constitution because the Information in Criminal Case No. 22018
was accompanied only by the Resolution dated June 2, 1992 of the Panel of
Graft Investigators of the Office of the Ombudsman recommending the
filing of the information and the Memorandum dated January 16, 1995 of
the Office of the Special Prosecutor denying the existence of a prejudicial
question which will warrant the suspension of the filing of the criminal
case. Their argument is principally anchored on the pronouncements made
in the case of Ho vs. People that reliance on the prosecutor's report alone is
not sufficient in determining whether there is probable cause for the
issuance of a warrant of arrest. Consequent to the nullity of the warrant of
arrest, petitioner further argues that the Sandiganbayan has not acquired
jurisdiction over him and is without power to exercise the same.
However, the Office of the Special Prosecutor and the Office of the
Solicitor General maintain that any infirmity that may have attended the
issuance of the warrant of arrest was cured by petitioner's voluntary
submission to the jurisdiction of the respondent Sandiganbayan when
petitioner posted bail and subsequently invoked the jurisdiction of the
Sandiganbayan by filing numerous motions wherein he sought affirmative
reliefs.
Now, pertinent to the issue at hand is the second clause of Section 2, Article
III of the 1987 Constitution, which provides that:
"Sec. 2. . . . no search warrant or warrant of arrest shall issue except upon a
probable cause to be determined personally by the judge after examination
under oath or affirmation of the complainant and the witnesses he may
On this score, the rule is well-settled that the giving or posting of bail by the
accused is tantamount to submission of his person to the jurisdiction of the
court. Thus, it has been held that:
"When a defendant in a criminal case is brought before a competent court
by virtue of a warrant of arrest or otherwise, in order to avoid the
submission of his body to the jurisdiction of the court he must raise the
question of the court's jurisdiction over his person at the very earliest
opportunity. If he gives bail, demurs to the complaint or files any dilatory
plea or pleads to the merits, he thereby gives the court jurisdiction over his
person. (State ex rel. John Brown vs. Fitzgerald, 51 Minn., 534)''
xxx
xxx
xxx
"Conceding again that the warrant issued in this case was void for the
reason that no probable cause was found by the court before issuing it, the
defendant waived all his rights to object to the same by appearing and
giving bond."
By posting bail, herein petitioner cannot claim exemption from the effect of
being subject to the jurisdiction of respondent court. While petitioner has
exerted efforts to continue disputing the validity of the issuance of the
warrant of arrest despite his posting bail, his claim has been negated when
he himself invoked the jurisdiction of respondent court through the filing of
various motions that sought other affirmative reliefs.
As ruled in La Naval Drug vs. CA:
"[L]ack of jurisdiction over the person of the defendant may be waived
either expressly or impliedly. When a defendant voluntarily appears, he is
deemed to have submitted himself to the jurisdiction of the court. If he so
wishes not to waive this defense; he must do so seasonably by motion for
the purpose of objecting to the jurisdiction of the court; otherwise, he shall
be deemed to have submitted himself to that jurisdiction."
Moreover, "[w]here the appearance is by motion for the purpose of
objecting to the jurisdiction of the court over the person, it must be for the
sole and separate purpose of objecting to said jurisdiction. If the appearance
is for any other purpose, the defendant is deemed to have submitted himself
to the jurisdiction of the court. Such an appearance gives the court
jurisdiction over the person."
and sole judge on what to do with the case before it. The determination of
the case is within its exclusive jurisdiction and competence. A motion to
dismiss the case filed by the fiscal should be addressed to the Court who has
the option to grant or deny the same. It does not matter if this is done before
or after the arraignment of the accused or that the motion was filed after a
reinvestigation or upon instructions of the Secretary of Justice who
reviewed the records of the investigation."
Nevertheless, petitioner claims exception to this rule by making this
distinction:
"b.
The preliminary investigation in Crespo vs. Mogul, supra, was
conducted by the Office of the Provincial Fiscal and, following established
procedure with respect to such preliminary investigations, the preliminary
investigation conducted by the fiscal, in the language of Crespo, is
'terminated upon the filing of the information in the proper court' (at p.
470). On the other hand, the instant case involves a preliminary
investigation conducted by the Office of the Special Prosecutor pursuant to
Sec. 11[4](a), and under Sec. 27 of R.A. No. 6770. In preliminary
investigations conducted by the Office of the Special Prosecutor, the
respondent has the right to file a motion for reconsideration of any
resolution within five (5) days from receipt of written notice, and pursuant
to Sec. 7, Rule II of Administrative Order No. 7 (Rules of Procedure of the
Ombudsman), the respondent has the right to file a motion for
reconsideration within fifteen (15) days from notice of the Resolution of the
Ombudsman. Until the motion for reconsideration is resolved, preliminary
investigation is not terminated notwithstanding filing of information in
court. In the instant case, no copy of the Resolution of the Office of the
Special Prosecutor which brought about the filing of the Information, was
served on the petitioner; consequently, when the Information was filed, the
preliminary investigation had not yet been terminated. It follows that the
Resolution of the Office of the Special Prosecutor (approved by the
Ombudsman) resolving in petitioner's favor the 'Motion for
Reconsideration' he had filed, now finding no probable cause, was an
integral part of the preliminary investigation, not subject to review by the
Sandiganbayan (see Torralba vs. Sandiganbayan, 230 SCRA 33 [1994])"
Clearly, consistent with the rule in Crespo vs. Mogul, after the filing of the
information in court, "any disposition of the case as to its dismissal or the
conviction or acquittal of the accused rests in the sound discretion of the
Court."
Proceeding now to the second issue, petitioner maintains that the long delay
that characterized the proceedings in Criminal Case No. 22018 before
respondent Sandiganbayan has resulted in the violation of his Constitutional
right to a speedy trial and a speedy determination of his case. Thus,
petitioner submits that:
"4.09. It has been more than three (3) years since the Information in
Criminal Case No. 22018 was filed with respondent Sandiganbayan. More
than one and a half () years have elapsed since the Office of the Special
Prosecutor filed its Manifestation seeking the dismissal of the case. Based
on the Office of the Special Prosecutor's finding of the absence of probable
cause, petitioner filed on December 13, 1996, an 'Urgent Motion To
Dismiss'. Three times, on March 24, 1997, June 18, 1997 and January 23,
1998, petitioner has sought resolution of his 'Urgent Motion To Dismiss'.
These notwithstanding, the dismissal of the information as to petitioner
remains pending and petitioner continues to be under criminal indictment
constrained to suffer without justification in law and the Constitution,
the humiliation, the restraints to liberty and the tormenting anxieties of an
accused."
Respondents concede that there has indeed been some delay but deny that it
amounted to a violation of petitioner's right of speedy disposition of his
case. They cite as justification the reorganization of the Sandiganbayan on
September 23, 1997 wherein it was reconstituted into five (5) Divisions; 44
(2) the filing of motions by petitioner seeking affirmative reliefs from the
Sandiganbayan; (3) the failure of petitioner himself to invoke his right to
speedy resolution of his pending motions prior to the filing of this petition;
(4) the heavy caseload of respondent court.
The right to a speedy disposition of a case, like the right to speedy trial, is
deemed violated only when the proceeding is attended by vexatious,
capricious, and oppressive delays. It should be emphasized that the factors
that must be taken into account in determining whether this constitutional
rights has been violated are as follows: (1) the length of delay, (2) the
reason for such delay and (3) the assertion or failure to assert such right by
the accused, and the prejudice caused by the delay.
As in previous occasions, the Court takes judicial cognizance of the fact that
structural reorganizations 49 and the ever increasing case load of courts
have adversely affected the speedy disposition of the cases pending before
them.
In the instant case, however, the Court finds that delay concerns the
resolution of petitioner's "Urgent Motion to Dismiss", which is an offshoot
of the Memorandum of the Office of the Special Prosecutor recommending
the dismissal of the case. Such delay is now far from excusable. Petitioner's
Motion to Dismiss has been filed as early as December 13, 1996 and, on
three occasions, petitioner has moved for the urgent resolution of this
motion. What further militates against further delay in resolving this case is
the fact that the government prosecutors themselves concede that this case
is of paramount importance, involving as it does "the recovery of the illgotten wealth or government funds, unlawfully used or misused by persons
close or perceived to be close to the Marcoses''. Respondent court declared
in its Order dated February 17, 1997 that the matter would be deemed
submitted for resolution upon compliance with the Office of the Special
Prosecutor as to whether there is indeed no probable cause against
petitioner, which compliance was submitted by the Office of the Special
Prosecutor on March 17, 1997. 53 Under these circumstances, the Court
does find the period of more than one year that elapsed for resolving
petitioner's motion to dismiss quite long, considering that all pertinent
pleadings required by the Sandiganbayan were already submitted.
Even if petitioner himself might have contributed to said delay, as
contended by respondents, in our view it is best that the case be resolved on
the merits by the Sandiganbayan with due regard to petitioner's right to due
process, speedy trial and speedy disposition of the case against him and his
co-accused.
Finally, with respect to the issue of whether or not the ban on foreign travel
should be continued, as imposed on petitioner by respondent
Sandiganbayan per its Order dated February 20, 1995 with accompanying
restrictions in effect, we resolve to rule in the negative. The travel ban
should be lifted, considering all the circumstances now prevailing.
The rule laid down by this Court is that a person facing a criminal
indictment and provisionally released on bail does not have an unrestricted
right to travel, the reason being that a person's right to travel is subject to
the usual constraints imposed by the very necessity of safeguarding the
system of justice. But, significantly, the Office of the Solicitor General in its
Manifestation dated November 20, 1998 indicated that it is not interposing
any objection to petitioner's prayer that he be allowed to travel abroad based
on the following considerations:
". . . (1) that it is well within the power of this Court to suspend its own
rules, including the second paragraph, Section 23, Rule 114 of the Rules of
Court; (2) that it has been shown in the past that the petitioner has always
returned to the Philippines after the expiration of the period of his allowed
travel; and (3) that petitioner, now Chairman of the Board of San Miguel
Corporation, may be constrained to leave the country for business purposes,
more often than he had done in the past, . . .
It however recommended that the period of travel should be reduced to
three (3) months instead of six (6) months as requested by petitioner and
that the latter should be required to post an additional cash bond equivalent
to the present cash bond posted by him.
Moreover, prescinding from our initial declaration that the issuance of
warrant of arrest against petitioner by respondent court is invalid, it now
becomes necessary that there be strong and compelling reasons to justify
the continued restriction on petitioner's right to travel abroad. Admittedly,
all of petitioner's previous requests to travel abroad has been granted and
that, as confirmed by the Office of the Solicitor General, that petitioner has
always returned to the Philippines and complied with the restrictions
imposed on him. The necessity of further denying petitioner's right to travel
abroad, with attendant restrictions, appears less than clear. The risk of flight
is further diminished in view of petitioner's recent reinstatement as
Chairman and Chief Executive Officer of San Miguel Corporation, though
he has now more justification to travel so as to oversee the entire operations
conclusion that there is reason to charge the accused of an offense and hold
him for trial. However, the judge must decide independently. Hence, he
must have supporting evidence, other than the prosecutor's bare report, upon
which to legally sustain his own findings on the existence (or nonexistence)
of probable cause to issue an arrest order. This responsibility of determining
personally and independently the existence or nonexistence of probable
cause is lodged in him by no less than the most basic law of the land.
Parenthetically, the prosecutor could ease the burden of the judge and speed
up the litigation process by forwarding to the latter not only the information
and his bare resolution finding probable cause, but also so much of the
records and the evidence on hand as to enable His Honor to make his
personal and separate judicial finding on whether to issue a warrant of
arrest."
"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 prosecutor's 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."
The foregoing dictum would, however, be inconsequential in a case when
the person on whom the warrant is served has, in some other way,
effectively submitted himself to the jurisdiction of the court. One such case
is by the posting of bail. The fact that the issuance of the warrant of arrest is
assailed for its procedural flaws before the posting of bail is of little
moment since the arrest relates merely to the jurisdiction of the court which
posting would, of course, only be feasible if the court allowing it would
have first acquired lawful jurisdiction over person at the time.
In Callanta vs. Villanueva 7 the Court had occasion to state:
"With the express admission by petitioner that she had posted the required
bail to obtain her provisional liberty, it becomes futile to assail the validity
of the issuance of the warrants of arrest. This excerpt from the opinion of
Justice Sanchez in Zacarias vs. Cruz [30 SCRA 728] finds pertinence:
'Posting of a bail bond constitutes waiver of any irregularity attending the
arrest of a person, estops him from discussing the validity of his arrest. In
the recent case of Luna vs. Plaza . . ., our ruling is that where petitioner has
filed an application for bail and waived the preliminary investigation
proper, 'he waived his objection to whatever defect, if any, in the
preliminary examination conducted . . . prior to the issuance of the warrant
of arrest.' [26 SCRA 310] As a matter of fact, such a doctrine goes back to
People vs. Olandag [92 Phil. 286], the opinion being rendered by former
Chief Justice Paras. After Zacarias, mention may be made of three other
decisions, Bermejo vs. Barrios [31 SCRA 764]; People vs. La Caste [37
SCRA 767], and Manzano vs. Villa [46 SCRA 711]. The latest case in point
is People vs. Obngayan [55 SCRA 465] where this Court, through Justice
Antonio, after referring to Luna vs. Plaza, again reiterated the ruling 'that
where the accused has filed bail and waived the preliminary investigation
proper, he has waived whatever defect, if any, in the preliminary
examination conducted prior to the issuance of the warrant of arrest [Ibid.,
471]."
In People vs. Nazareno, 8 reiterated in People vs. Timon, 9 the Court again
declared:
". . . [The accused] waived objections based on the alleged irregularity of
their arrest, considering that they pleaded not guilty to the charges against
them and participated in the trial. Any defect in their arrest must be deemed
cured when they voluntarily submitted to the jurisdiction of the court. For
the legality of an arrest affects only the jurisdiction of the court over the
person of the accused. Consequently, if objections based on this ground are
waived, the fact that the arrest was illegal is not a sufficient cause for setting
aside an otherwise valid judgment rendered after a trial, free from error. The
technicality cannot render the subsequent proceedings void and deprive the
State of its right to convict the guilty when all the facts on record point to
the culpability of accused."
Corollarily, the constitutional right of a person to travel may be restricted
not only because he may be facing criminal charges but also as being the
consequence of the nature and function of a bail. The condition imposed
upon him to make himself available at all times whenever the court so
requires his presence operates as a valid restriction on his right to travel. 10
Nevertheless, I join the majority of my colleagues in directing the
temporary lifting for the reasons advanced, which I find to be reasonable
and justified, of the ban on travel of petitioner.
WHEREFORE, I vote to deny the petition and to order the lifting of the ban
on petitioner to travel for the period and under the conditions expressed in
the ponencia.
PANGANIBAN, J ., concurring:
I concur with the well-written ponencia of Mr. Justice Leonardo A.
Quisumbing insofar as it declares null and void the Sandiganbayan's
warrant of arrest against Petitioner Cojuangco, but beg to disagree with the
majority view that despite the nullity of the arrest order, the graft court still
acquired jurisdiction over petitioner. I respectfully submit that all
proceedings and orders issued by the Sandiganbayan, especially its
Resolution dated February 20, 1995, barring petitioner from leaving the
country without its prior approval, are likewise void for want of jurisdiction.
Hence, the case should be remanded to the Sandiganbayan for a proper
determination of whether a warrant of arrest could be issued pursuant to the
Constitution and upon satisfaction of the requisites therefor as laid down in
Ho v. People.
Nullity of the Warrant of Arrest
With an analysis of case law as backdrop, the Court en banc indeed
categorically declared in Ho that a judge cannot issue a warrant of arrest
with only the prosecutor's findings and recommendation as bases for
determining probable cause. No less than the Constitution mandates in no
uncertain terms that "no . . . warrant of arrest shall issue except upon
When petitioner posted his bail bond, he expressly manifested at the same
time that such was "without prejudice" to his Opposition. Subsequent
thereto, he also filed a Memorandum in Amplification of said Opposition.
When the graft court refused to recall the warrant, petitioner moved for a
reconsideration. And following the filing by the Office of the Ombudsman,
after reinvestigation, of a manifestation that there was no probable cause to
charge petitioner, he moved for the dismissal of the case on the ground that
"with the reversal of the earlier findings of the Ombudsman of probable
cause, there was therefore nothing on record before the respondent
Sandiganbayan which would warrant the issuance of a warrant of arrest and
the assumption of jurisdiction over the instant case." Petitioner's actions
more than conveyed his persistent objection to his arrest and, consequently,
to the court's authority over his person.
Furthermore, when he was arraigned, it was solely for the purpose of
accommodating his request to travel, in view of the Sandiganbayan order
barring him from leaving the country without its prior approval. His
"conditional arraignment," in the words of the Sandiganbayan itself, was
"subject to the condition that if petitioner is exonerated at the preliminary
investigation, the arraignment is set aside." Moreover, it was "being
undertaken solely to accommodate the accused in his request to travel
pending determination of probable cause against him at reinvestigation."
Clearly, therefore, in posting for bail and seeking permission to travel
abroad, the petitioner merely made special appearances in order to obtain
immediate urgent reliefs, without necessarily waiving the graft court's want
of jurisdiction. 6 He merely wanted to avoid incarceration, as he hardly had
any choice but to secure the court's consent whenever he left the country to
attend to his personal and business concerns. Otherwise, petitioner would
have been effectively rendered immobile and worthless until the
Sandiganbayan chose to resolve his case. And, as borne by the records, for
three years said court practically sat on his case (reconsideration of the
denial of his Opposition). Under the circumstances, petitioner's actions
should not be construed as a waiver of his right to object to the nullity of his
arrest. With all due respect, I submit that to rule otherwise as the majority
did is most unfair and unjust, because an accused could be indefinitely
their findings merely on their personal opinion and reasonable belief, yet,
this permissiveness should not be interpreted as giving them arbitrary
powers and letting them loose in the determination of the existence of
probable cause, a delicate legal question which can result in the harassment
and deprivation of liberty of the person sought to be charged or arrested. . . .
Good faith is not enough. If subjective good faith alone were the test, the
constitutional protection would be demeaned and the people would be
"secure in their persons, houses, papers and effects" only in the fallible
discretion of the judge. On the contrary, the probable cause test is an
objective one, for in order that there be probable cause the facts and
circumstances must be such as would warrant a belief by a reasonably
discreet and prudent man that the accused is guilty of the crime which has
just been committed.
4.
ID.; ID.; ID.; ID.; ID.; DUTIES OF A TRIAL JUDGE
BEFORE ISSUING A WARRANT OF ARREST; NOT COMPLIED
WITH IN CASE AT BAR. Before issuing a warrant of arrest, the judge
must satisfy himself that based on the evidence submitted there is sufficient
proof that a crime has been committed and that the person to be arrested is
probably guilty thereof. In the Order of respondent judge dated 11 February
1994, it is expressly stated that probable cause exists; and therefore, a
warrant of arrest should be issued." However, we are unable to see how
respondent judge arrived at such ruling. We have painstakingly examined
the records and we cannot find any support for his conclusion. On the
contrary, we discern a number of reasons why we consider the evidence
submitted to be insufficient for a finding of probable cause against
petitioners. . . . Verily, respondent judge committed grave abuse of
discretion in issuing the warrant for the arrest of petitioners it appearing that
he did not personally examine the evidence nor did he call for the
complainant and his witnesses in the face of their incredible accounts.
Instead, he merely relied on the certification of the prosecutors that
probable cause existed. For, otherwise, he would have found out that the
evidence thus far presented was utterly insufficient to warrant the arrest of
petitioners. In this regard, we restate the procedure we outlined in various
cases we have already decided, in Soliven v. Makasiar, (G.R. Nos. 82585,
82827 and 83979, 14 November 1988, 167 SCRA 393); in People v. Inting,
(G.R. No. 88919, 25 July 1990, 87 SCRA 788); and in Lim v. Felix (G.R.
Nos. 92466-69, 19 February 1991, 187 SCRA 292). . . . Hence, if upon the
filing of the information in court the trial judge, after reviewing the
information and the documents attached thereto, finds that no probable
cause exists must either call for the complainant and the witnesses
themselves or simply dismiss the case. There is no reason to hold the
accused for trial and further expose him to an open and public accusation of
the crime when no probable cause exists.
5.
REMEDIAL
LAW;
EVIDENCE;
WEIGHT
AND
SUFFICIENCY;
EXTRAJUDICIAL
CONFESSION,
UNCORROBORATED BY CORPUS DELICTI; CASE AT BAR.
The Presidential Anti-Crime Commission relies heavily on the sworn
statement of Security Guard Umbal who supposedly confessed his
participation in the alleged kidnapping and murder of Van Twest. For one,
there is serious doubt on Van Twest's reported death since the corpus delicti
has not been established, nor have his remains recovered. . . . In this regard,
we are reminded of the leading case of U.S. v. Samarin (1 Phil. 239 [1902])
decided ninety-two years ago where this Court ruled that when the supposed
victim is wholly unknown, his body not found, and there is but one witness
who testifies to the killing, the corpus delicti is not sufficiently proved.
6.
ID.; ID.; ID.; ID.; DESTRUCTION OF HUMAN BODY
HIGHLY IMPROBABLE IN CASE AT BAR. Umbal's claim that
Van Twest was completely burned into ashes with the use of gasoline and
rubber tires from around ten o'clock in the evening to six o'clock the next
morning is highly improbable, if not ridiculous. A human body cannot be
pulverized into ashes by simply burning it with the use of gasoline and
rubber tires in an open field. Even crematoria use entirely closed
incinerators where the corpse is subjected to intense heat. Thereafter, the
remains undergo a process where the bones are completely ground to dust.
In the case of Van Twest, there is not even any insinuation that earnest
efforts were exerted to recover traces of his remains from the scene of the
alleged cremation. Could it be that the government investigators did go to
the place of cremation but could not find any? Or could it be that they did
not go at all because they knew that there would not be any as no burning
ever took place? To allege then that the body of Van Twest was completely
burned to ashes in an open field with the use merely of tires and gasoline is
a tale too tall to gulp.
7.
ID.; ID.; ID.; ID.; ID.; EVEN LAWYER DOUBTED
CLIENT'S DEATH IN CASE AT BAR. Strangely, if not awkwardly,
after Van Twest's reported abduction on 16 June 1992 which culminated in
his decimation by cremation, his counsel continued to represent him before
judicial and quasi-judicial proceedings. Thus on 31 July 1992, his counsel
filed in his behalf a petition for review before this Court, docketed as G.R.
No. 106253, and on 18 March 1993, a memorandum before the Securities
and Exchange Commission in SEC Case No. 3896. On 26 November 1993,
during the preliminary investigation conducted by the panel of prosecutors,
counsel again manifested that "even then and even as of this time, I stated in
my counter-affidavit that until the matter of death is to be established in the
proper proceedings, I shall continue to pursue my duties and responsibilities
as counsel for Mr. Van Twest." Hence, even Asst. Solicitor General
Estoesta believes that counsel of Van Twest doubted the latter's death.
Obviously, counsel himself does not believe that his client is in fact already
dead otherwise his obligation to his client would have ceased except to
comply with his duty "to inform the court promptly of such death . . . and to
give the name and residence of his executor, administrator, guardian or
other legal representative," which he did not.
8.
ID.; ID.; ID.; ID.; ID.; ID.; THEORY BEHIND SUPPOSED
DEATH CANNOT BE DISCOUNTED. Under the circumstances, we
cannot discount petitioners' theory that the supposed death of Van Twest
who is reportedly an international fugitive from justice, a fact substantiated
by petitioners and never refuted by PACC, is a likely story to stop the
international manhunt for his arrest.
9.
ID.; ID.; ID.; ID.; SUFFERS FROM MATERIAL
INCONSISTENCIES. The extrajudicial statement of Umbal suffers
from material inconsistencies where in his sworn statement, he said that he
together with his cohorts were met by petitioners in Silahis Hotel where
they hatched the plan to abduct Van Twest. However, during the
preliminary investigation, he stated that he was not part of the actual
meeting as he only waited outside in the car for his companions who
supposedly discussed the plan inside Silahis Hotel. Umbal also said that
petitioners arrived with Bato and conducted a mock interrogation of Van
Twest who thereafter signed various documents upon being compelled to do
so. During the clarificatory questioning, however, Umbal changed his story
and said that he was asked to go outside of the "safe house" at the time Van
Twest was interrogated and thus did not see if Van Twest indeed signed
certain documents. Why Umbal had to be sent out of the "safe house," no
explanation was offered. Did these documents really exist? Or could the
non-existence of these documents be the reason why PACC was not able to
comply with the order of the prosecutors to produce them during the
preliminary investigation? And then, what happened to the P2.5M that was
supposedly offered by petitioners in exchange for the abduction of Van
Twest? These and more remain unanswered.
10.
ID.; ID.; ID.; COUNTER-AFFIDAVIT AS BASIS OF FILING
CHARGES, HARDLY OF ANY PROBATIVE VALUE; CASE AT
BAR. The alleged counter-affidavit of SPO2 Bato, which the panel of
prosecutors also considered in filing the charges against petitioners, can
hardly be credited as its probative value has tremendously waned. The
records show that the alleged counter-affidavit, which is self-incriminating,
was filed after the panel had considered the case submitted for resolution.
And before petitioners could refute this counter-affidavit, Bato moved to
suppress the same on the ground that it was extracted through duress and
intimidation.
11.
POLITICAL LAW; CONSTITUTION; BILL OF RIGHTS;
SEARCH
WARRANT;
ISSUED
UNDER
DUBIOUS
CIRCUMSTANCES IN CASE AT BAR. Most perplexing however is
that while the whole investigation was supposedly triggered off by Umbal's
confession of 16 September 1993, the application of the PACC operatives
for a search warrant to be served in the two (2) dwellings of Santiago was
filed and granted by the Regional Trial Court of Manila on 15 September
1993, a day before Umbal executed his sworn statement. In support of the
application, the PACC agents claimed that Umbal had been in their custody
since 10 September 1993. Significantly, although he was said to be already
under their custody, Umbal claims he was never interrogated until 16
September 1993 and only at the security barracks of Valle Verde V, Pasig,
16.
ID.; ID.; ID.; ID.; ID.; LAW ENFORCERS CAUTIONED TO
ACT WITH CIRCUMSPECTION. Let this then be a constant
reminder to judges, prosecutors and other government agents tasked with
the enforcement of the law that in the performance of their duties they must
act with circumspection, lest their thoughtless ways, methods and practices
cause a disservice to their office and maim their countrymen they are sworn
to serve and protect. We thus caution government agents, particularly the
law enforcers, to be more prudent in the prosecution of cases and not to be
oblivious of human rights protected by the fundamental law. While we
greatly applaud their determined efforts to weed society of felons, let not
their impetuous eagerness violate constitutional precepts which
circumscribe the structure of a civilized community.
DECISION
BELLOSILLO, J p:
On balance at the fulcrum once again are the intrinsic right of the State to
prosecute perceived transgressors of the law, which can be regulated, and
the innate value of human liberty, which can hardly be weighed.
Some twelve years ago we are confronted with a similar problem when
former Senator Jovito R. Salonga invoked before this Court his "right to life
and liberty guaranteed by the due process clause, alleging that no prima
facie case has been established to warrant the filing of an information for
subversion against him." We resolved the issue then and sustained him. He
is now back before us, this time as counsel pleading the cause of petitioners
herein who, he claims, are in a situation far worse than his predicament
twelve (12) years ago. He postulates that no probable cause likewise exists
in this case, and what is worse is that no bail is recommended.
This petition gives us an opportunity to revisit the concept and implication
of probable cause, the existence of which is necessary for the prosecutor to
have an accused held for trial and for a trial judge to issue a warrant for his
arrest. It is mandatory therefore that there be probable cause before an
information is filed and a warrant of arrest issued. Unfortunately, however,
at times a criminal case is filed, a warrant of arrest issued and a person
dwellings of Santiago, one located at No. 7 Sangley Street, and the other,
along Amalingan Street, both in Green Heights Subdivision, Paraaque.
The raiders recovered a blue Nissan Pathfinder and assorted firearms and
ammunition and placed Santiago and his trusted aide, Efren Madolid, under
arrest. Also arrested later that day were Antonino and Bato who where
found to have in their possession several firearms and ammunition and Van
Twest's Cartier sunglasses.
After evaluating the pieces of evidence gathered by PACC operatives, Sr.
Supt. Panfilo Lacson, Chief of PACC Task Force Habagat, referred the case
to the Department of Justice for the institution of criminal proceedings
against AFPCIG Agent Roberto Santiago, SPO1 Sergio Antonino, SPO2
Roger Bato, Ex-policeman Rolando Gamatero, Efren Madolid, and
petitioners herein, Atty. Diosdado Jose Allado and Atty. Roberto L.
Mendoza, for illegal possession of firearms and ammunition, carnapping,
kidnapping for ransom with murder, and usurpation of authority. In his
letter to the State Prosecutor dated 17 September 1993, Sr. Supt. Lacson
charged that Atty. Roberto L. Mendoza and Atty. Allado of Salonga,
Hernandez and Allado Law Offices . . . planned and conspired with other
suspects to abduct and kill the German national Alexander Van Twest in
order to eliminate him after forcing the victim to sign several documents
transferring ownership of several properties amounting to several million
pesos and caused the withdrawal of P5M deposit from the victim's bank
account.
Thereafter, Senior State Prosecutor Ferdinand R. Abesamis issued a
subpoena to petitioners informing them that a complaint was filed against
them by PACC TF-Habagat, directing them to appear on 30 September
1993 at the Multi-Purpose Hall of the Department of Justice and to submit
their counter-affidavits. Attached to the subpoena were copies of the
affidavits executed by Umbal and members of the team who raided the two
(2) dwellings of Santiago.
Not satisfied merely with the affidavits attached to the subpoena, petitioner
Mendoza moved for the production of other documents for examination and
copying to enable him to fully prepare for his defense and to submit an
intelligible counter-affidavit. Specifically, petitioner Mendoza was
abduction and slaying of Van Twest and implicating petitioners Allado and
Mendoza. Sometime in January 1994, however, before petitioners could
refute Bato's counter-affidavit, he moved to suppress it on the ground that it
was extracted through intimidation and duress.
On 3 February 1994, with the new panel failing to act on the twin motions
of SPO2 Bato, petitioners heard over the radio that the panel had issued a
resolution finding a prima facie case against them and that an information
had already been filed in court. Upon verification with the Department of
Justice, however, petitioners were informed that the resolution was not yet
ready for release, but later that afternoon they were able to secure a copy of
the information for kidnapping with murder against them and the 15-page
undated resolution under the letterhead of PACC, signed by the panel of
prosecutors, with the Head of the PACC Task Force recommending
approval thereof. 13 That same day, the information was filed before the
Regional Trial Court of Makati and raffled off to Branch 62 presided by
respondent Judge Roberto C. Diokno.
On 4 February 1994, respondent judge, in response to petitioner's request,
gave them until 8 February 1994 to submit their opposition to the issuance
of a warrant of arrest against all the accused. On 7 February 1994,
petitioners complied with the order of respondent judge. The following day,
8 February 1994, petitioner Allado filed an appeal with the Secretary of
Justice seeking review and reversal of the undated resolution on the panel of
prosecutors, which appeal was adopted by petitioner Mendoza. On 11
February 1994, petitioner Allado moved to defer the proceedings before the
trial court pending resolution of his appeal before the Secretary of Justice.
However, on even date, respondent judge issued the assailed warrant of
arrest against petitioners. Hence, on 15 February 1994, petitioners filed with
us the instant petition for certiorari and prohibition with prayer for a
temporary restraining order.
On 16 February 1994, we required respondents to comment on the petition
and set the case for hearing on 28 February 1994. After the hearing, we
issued a temporary restraining order enjoining PACC from enforcing the
warrant of arrest and respondent judge from conducting further proceedings
on the case and, instead, to elevate the records to us. Meanwhile, on 27
PACC was not able to comply with the order of his prosecutors to produce
them during the preliminary investigation? And then, what happened to the
P2.5M that was supposedly offered by petitioners in exchange for the
abduction of Van Twest? These and more remain unanswered.
the law appropriately exacts much more to sustain a warrant for their arrest
facts and circumstances strong enough in themselves to support the
belief that they are guilty of a crime that in fact happened. Quite obviously,
this has not been met.
In Soliven v. Makasiar, we said that the judge (a) shall personally evaluate
the report and the supporting documents submitted by the fiscal regarding
the existence of probable cause and, on the basis thereof, issue a warrant of
arrest; or, (b) if on the basis thereof he finds no probable cause, may
disregard the fiscal's report and require the submission of supporting
affidavits of witnesses to aid him in arriving at a conclusion on the
existence of probable cause.
In People v. Inting, we emphasized the important features of the
constitutional mandate: (a) The determination of probable cause is a
function of the judge; it is not for the provincial fiscal or prosecutor to
ascertain. Only the judge and the judge alone makes this determination; (b)
The preliminary inquiry made by a prosecutor does not bind the judge. It
merely assists him in making the determination of probable cause. The
judge does not have to follow what the prosecutor presents to him. By itself,
the prosecutor's certification of probable cause is ineffectual. It is the report,
the affidavits, the transcript of stenographic notes (if any), and all other
supporting documents behind the prosecutor's certification which are
material in assisting the judge in his determination of probable cause; and,
(c) Judges and prosecutors alike should distinguish the preliminary inquiry
which determines probable cause for the issuance of a warrant of arrest
from the preliminary investigation proper which ascertains whether the
offender should be held for trial or released. Even if the two inquiries be
conducted in the course of one and the same proceeding, there should be no
confusion about their objectives. The determination of probable cause for
the warrant is made by the judge. The preliminary investigation proper
whether or not there is reasonable ground to believe that the accused is
guilty of the offense charged and therefore, whether or not he should be
subjected to the expense, rigors and embarrassment of trial is a function
of the prosecutor.
In Lim v. Felix, where we reiterated Soliven v. Makasiar and People v.
Inting, we said
[T]he Judge does not have to personally examine the complainant and his
witnesses. The Prosecutor can perform the same functions as a
commissioner for the taking of the evidence. However, there should be a
report and necessary documents supporting the Fiscal's bare certification.
All these should be before the Judge.
The extent of the Judge's personal examination of the report and its annexes
depends on the circumstances of each case. We cannot determine
beforehand how cursory or exhaustive the Judge's examination should be.
The Judge has to exercise sound discretion for, after all, the personal
determination is vested in the Judge by the Constitution. It can be as brief or
as detailed as the circumstances of each case require. To be sure, the judge
must go beyond the Prosecutor's certification and investigation report
whenever necessary. He should call for the complainant and witnesses
themselves to answer the court's probing questions when the circumstances
of the case so require.
Clearly, probable cause may not be established simply by showing that a
trial judge subjectively believes that he has good grounds for his action.
Good faith is not enough. If subjective good faith alone were the test, the
constitutional protection would be demeaned and the people would be
"secure in their persons, houses, papers and effects" only in the fallible
discretion of the judge. On the contrary, the probable cause test is an
objective one, for in order that there be probable cause the facts and
circumstances must be such as would warrant a belief by a reasonably
discreet and prudent man that the accused is guilty of the crime which has
just been committed. This, as we said, is the standard. Hence, if upon the
filing of the information in court the trial judge, after reviewing the
information and the documents attached thereto, finds that no probable
cause exists must either call for the complainant and the witnesses
themselves or simply dismiss the case. There is no reason to hold the
accused for trial and further expose him to an open and public accusation of
the crime when no probable cause exists.
But then, it appears in the instant case that the prosecutors have similarly
misappropriated, if not abused, their discretion. If they really believed that
petitioners were probably guilty, they should have armed themselves with
facts and circumstances in support of that belief; for mere belief is not
enough. They should have presented sufficient and credible evidence to
demonstrate the existence of probable cause. For the prosecuting officer "is
the representative not of an ordinary party to a controversy, but of a
sovereignty whose obligation to govern impartially is as compelling as its
obligation to govern all; and whose interest, therefore, in a criminal
prosecution is not that it shall win a case, but that justice shall be done. As
such, he is in a peculiar and very definite sense the servant of the law, the
twofold aim of which is that guilt shall not escape or innocence suffer. He
may prosecute with earnestness and vigor indeed, he should do so. But,
while he may strike hard blows, he is not at liberty to strike foul ones. It is
as much his duty to refrain from improper methods calculated to produce a
wrongful conviction as it is to use every legitimate means to bring about a
just one."
In the case at bench, the undue haste in the filing of the information and the
inordinate interest of the government cannot be ignored. From the gathering
of evidence until the termination of the preliminary investigation, it appears
that the state prosecutors were overly eager to file the case and secure a
warrant for the arrest of the accused without bail and their consequent
detention. Umbal's sworn statement is laden with inconsistencies and
improbabilities. Bato's counter-affidavit was considered without giving
petitioners the opportunity to refute the same. The PACC which gathered
the evidence appears to have had a hand in the determination of probable
cause in the preliminary inquiry as the undated resolution of the panel not
only bears the letterhead of PACC but was also recommended for approval
by the head of the PACC Task Force. Then petitioners were given the
The facts of this case are fatefully distressing as they showcase the seeming
immensity of government power which when unchecked becomes
tyrannical and oppressive. Hence the Constitution, particularly the Bill of
Rights, defines the limits beyond which lie unsanctioned state actions. But
on occasion, for one reason or another, the State transcends this parameter.
In consequence, individual liberty unnecessarily suffers. The case before us,
if uncurbed, can be illustrative of a dismal trend. Needless injury of the sort
inflicted by government agents is not reflective of responsible government.
Judges and law enforcers are not, by reason of their high and prestigious
office, relieved of the common obligation to avoid deliberately inflicting
unnecessary injury.
The sovereign power has the inherent right to protect itself and its people
from vicious acts which endanger the proper administration of justice;
hence, the State has every right to prosecute and punish violators of the law.
This is essential for its self-preservation, nay, its very existence. But this
does not confer a license for pointless assaults on its citizens. The right of
the State to prosecute is not a carte blanche for government agents to defy
and disregard the rights of its citizens under the Constitution. Confinement,
regardless of duration, is too high a price to pay for reckless and impulsive
prosecution. Hence, even if we apply in this case the "multifactor balancing
test" which requires the officer to weigh the manner and intensity of the
interference on the right of the people, the gravity of the crime committed
and the circumstances attending the incident, still we cannot see probable
cause to order the detention of petitioners.
The purpose of the Bill of Rights is to protect the people against arbitrary
and discriminatory use of political power. This bundle of rights guarantees
the preservation of our natural rights which include personal liberty and
security against invasion by the government or any of its branches or
instrumentalities. Certainly, in the hierarchy of rights, the Bill of Rights
takes precedence over the right of the State to prosecute, and when weighed
against each other, the scales of justice tilt towards the former. Thus, relief
may be availed of to stop the purported enforcement of criminal law where
it is necessary to provide for an orderly administration of justice, to prevent
the use of the strong arm of the law in an oppressive and vindictive manner,
and to afford adequate protection to constitutional rights.
Perhaps, this case would not have reached this Court if petitioners were
ordinary people submissive to the dictates of government. They would have
been illegally arrested and detained without bail. Then we would not have
the opportunity to rectify the injustice. Fortunately, the victims of injustice
are lawyers who are vigilant of their rights, who fight for their liberty and
freedom not otherwise available to those who cover in fear and subjection.
Let this then be a constant reminder to judges, prosecutors and other
government agents tasked with the enforcement of the law that in the
performance of their duties they must act with circumspection, lest their
thoughtless ways, methods and practices cause a disservice to their office
and aim their countrymen they are sworn to serve and protest. We thus
caution government agents, particularly the law enforcers, to be more
prudent in the prosecution of cases and not to be oblivious of human rights
protected by the fundamental law. While we greatly applaud their
determined efforts to weed society of felons, let not their impetuous
eagerness violate constitutional precepts which circumscribe the structure of
a civilized community.
WHEREFORE, the petition for certiorari and prohibition is GRANTED.
The temporary restraining order we issued on 28 February 1994 in favor of
petitioners, Atty. Diosdado Jose Allado and Atty. Roberto L. Mendoza, is
made permanent. The warrant of arrest issued against them is SET ASIDE
and respondent Judge Roberto C. Diokno is ENJOINED from proceeding
any further against herein petitioners in Crim. Case No. 94-1757 of the
Regional Trial Court of Makati.
SO ORDERED.
Cruz, Davide, Jr., Quiason and Kapunan, JJ., concur.
of around forty persons when on the very face of the record no evidence
linking him to the alleged conspiracy exists. The term "prima facie
evidence" denotes evidence which, if unexplained or uncontradicted, is
sufficient to sustain the proposition it supports or to establish the facts, or to
counterbalance the presumption of innocence to warrant a conviction.
3.
ID.; ID.; HEARSAY RULE; TESTIMONY BASED ON
ANOTHER PERSON'S AFFIDAVITS ARE HEARSAY AND HAS NO
PROBATIVE VALUE; INQUEST JUDGE SHOULD CONFINE
INVESTIGATION TO SOLE WITNESS. Col. Diego, on the other
hand, when asked what evidence he was able to gather against the petitioner
depended only on the statement of Lovely "that it was the residence of exSenator Salonga where they met together with Renato Tanada, one of the
brains of the bombing conspiracy . . . and the fact that Sen. Salonga has
been meeting with several subversive personnel based in the U.S.A. was
also revealed to me by Victor Burns Lovely"; and on the group pictures
taken at former Congressman Raul Daza's birthday party. In concluding that
a conspiracy exists to overthrow by violent means the government of the
Philippines in the United States, his only bases were "documentary as well
as physical and sworn statements that were referred to me or taken by me
personally," which of course negate personal knowledge on his part.
Testimony based on affidavits of other persons and purely hearsay, can
hardly qualify as prima facie evidence of subversion. It should not have
been given credence by the court in the first place. Hearsay evidence,
whether objected to or not, has no probative value as the affiant could not
have been cross-examined on the facts stated therein. (See People v.
Labinia, 115 SCRA 223; People v. Valero, 112 SCRA 661). Moreover, as
Victor Lovely, himself, was personally examined by the court, there was no
need for the testimony of Col. Diego. Thus, the inquest judge should have
confined his investigation to Victor Burns Lovely, the sole witness whose
testimony has apparently implicated petitioner in the bombings which
eventually led to the filing of the information.
4.
ID.; ID.; INDICTING A PERSON BECAUSE PLOTTERS
MET IN HIS HOUSE, A DANGEROUS PRECEDENT. The jump
from the "contact point" theory to the conclusion of involvement in
subversive activities in the United States is not only inexplicable but
7.
CONSTITUTIONAL LAW; BILL OF RIGHTS; FREEDOM
OF THOUGHT AND EXPRESSION; OPINION ON THE
LIKELIHOOD OF A VIOLENT STRUGGLE, A LEGITIMATE
EXERCISE OF FREEDOM. The alleged opinion of the petitioner
about the likelihood of a violent struggle here in the Philippines if reforms
are not instituted, assuming that he really stated the same, is nothing but a
legitimate exercise of freedom of thought and expression. No man deserves
punishment for his thoughts. Cogitationis poenam nemo meretur. And as
the late Justice Oliver W. Holmes stated in the case of U .S. v. Schwimmer,
279 U.S. 644, ". . . if there is any principle of the Constitution that more
imperatively calls for attachment than any other it is the principle of free
thought not free thought for those who agree with us but freedom for the
thought that we hate."
8.
ID.; ID.; ID.; A PREFERRED RIGHT; POLITICAL
DISCUSSION CANNOT BE INDICTED. We have adopted the
concept that freedom of expression is a "preferred" right and, therefore,
stands on a higher level than substantive economic or other liberties. The
primacy, the high estate accorded freedom of expression is a fundamental
postulate of our constitutional system. (Gonzales v. Commission on
Elections, 29 SCRA 835). As explained by Justice Cardozo in Palko v.
Connecticut (302 U.S. 319) this must be so because the lessons of history,
both political and legal, illustrate that freedom of thought and speech is the
indispensable condition of nearly every other form of freedom. Protection is
especially mandated for political discussions. This Court is particularly
concerned when allegations are made that restraints have been imposed
upon mere criticisms of government and public officials. Political
discussion is essential to the ascertainment of political truth. It cannot be the
basis of criminal indictments. In the case before us, there is no teaching of
the moral propriety of a resort to violence, much less an advocacy of force
or a conspiracy to organize the use of force against the duly constituted
authorities. The alleged remark about the likelihood of violent struggle
unless reforms are instituted is not a threat against the government. Nor is it
even the uninhabited, robust, caustic, or unpleasantly sharp attack which is
protected by the guarantee of free speech. Parenthetically, the American
case of Brandenburg v. Ohio (395 U.S. 444) states that the constitutional
guarantees of free speech and free press do not permit a State to forbid or
proscribe advocacy of the use of force or of law violation except where such
advocacy is directed to inciting or producing imminent lawless action and is
likely to incite or produce such action. The words which petitioner allegedly
used according to the best recollection of Mr. Lovely are light years away
from such type of proscribed advocacy.
9.
REMEDIAL LAW; EVIDENCE; STATEMENT THAT HIS
MISSION WAS AGAINST A PARTICULAR FAMILY NEGATES
POLITICALLY MOTIVATED ASSIGNMENT. Lovely also declared
that he had nothing to do with the bombing on August 22, 1980, which was
the only bombing incident that occurred after his arrival in Manila on
August 20, 1980, and before the YMCA explosion on September 6, 1980.
He further testified that: (his) bombing mission was directed against the
particular family (referring to the Cabarrus family). Such a statement
wholly negates any politically motivated or subversive assignment which
Lovely was supposed to have been commissioned to perform upon the
orders of his co-accused and which was the very reason why they were
charged in the first place.
10.
ID.; ID.; BY ADOPTING DEFENSE WITNESS AS ITS OWN,
PROSECUTION IS BOUND BY HIS DISCLAIMER. It should be
noted that after Lovely's testimony, the prosecution manifested to the court
that is was adopting him as a prosecution witness. Therefore, the
prosecution became irreversibly bound by Lovely's disclaimers on the
witness stand, that it was not his intention "to do some kind of bombing
against the government" and that he "did not try to implicate Salonga,"
especially since Lovely is the sole witness adopted by the prosecution who
could supposedly establish the link between the petitioner and the bombing
incidents. The respondent court should have taken these factors into
consideration before concluding that a prima facie case exists against the
petitioner.
11.
ID.; ID.; EVIDENCE MUST COME NOT ONLY FROM A
CREDIBLE WITNESS BUT MUST BE CREDIBLE IN ITSELF.
Evidence must not only proceed from the mouth of a credible witness but it
must be credible in itself such as the common experience and observation of
doctrines, or rules. It has the symbolic function of educating bench and bar
on the extent of protection given by constitutional guarantees.
DECISION
GUTIERREZ, JR., J p:
The petitioner invokes the constitutionally protected right to life and liberty
guaranteed by the due process clause, alleging that no prima facie case has
been established to warrant the filing of an information for subversion
against him. Petitioner asks this Court to prohibit and prevent the
respondents from using the iron arm of the law to harass, oppress, and
persecute him, a member of the democratic opposition in the Philippines.
The background of this case is a matter of public knowledge.
The next day, newspapers came out with almost identical headlines stating
in effect that petitioner had been linked to the various bombings in Metro
Manila.
Meanwhile, on September 25, 1980, Lovely was taken out of the hospital's
intensive care unit and transferred to the office of Col. Madella where he
was held incommunicado for sometime.
On the night of October 4, 1980, more bombs were reported to have
exploded at three big hotels in Metro Manila, namely: Philippine Plaza,
Century Park Sheraton and Manila Peninsula. The bombs injured nine
people. A meeting of the General Military Council was called for October
6, 1980.
On October 19, 1980, minutes after the President had finished delivering his
speech before the International Conference of the American Society of
Travel Agents at the Philippine International Convention Center, a small
bomb exploded. Within the next twenty-four hours, arrest, search, and
seizure orders (ASSOs) were issued against persons who were apparently
implicated by Victor Lovely in the series of bombings in Metro Manila.
One of them was herein petitioner Victor Lovely offered himself to be a
"state witness" and in his letter to the President, he stated that he will reveal
everything he knows about the bombings.
On October 21, 1980, elements of the military went to the hospital room of
the petitioner at the Manila Medical Center where he was confined due to
his recurrent and chronic ailment of bronchial asthma and placed him under
arrest. The arresting officer showed the petitioner the ASSO form which
however did not specify the charge or charges against him. For some time,
the petitioner's lawyers were not permitted to visit him in his hospital room
until this Court in the case of Ordoez v. Gen. Fabian Ver, et al., (G.R. No.
55345, October 28, 1980) issued an order directing that the petitioner's right
to be visited by counsel be respected.
On November 2, 1980, the petitioner was transferred against his objections
from his hospital arrest to an isolation room without windows in an army
prison camp at Fort Bonifacio, Makati. The petitioner states that he was not
informed why he was transferred and detained, nor was he ever investigated
or questioned by any military or civil authority.
Subsequently, on November 27, 1980, the petitioner was released for
humanitarian reasons from military custody and placed "under house arrest
in the custody of Mrs. Lydia Salonga" still without the benefit of any
investigation or charges.
On December 10, 1980, the Judge Advocate General sent the petitioner a
"Notice of Preliminary Investigation" in People v. Benigno Aquino, Jr., et
al. (which included petitioner as a co-accused), stating that "the preliminary
investigation of the above-entitled case has been set at 2:30 o'clock p.m. on
December 12, 1980" and that petitioner was given ten (10) days from
receipt of the charge sheet and the supporting evidence within which to file
his counter-evidence. The petitioner states that up to the time martial law
was lifted on January 17, 1981, and despite assurance to the contrary, he has
not received any copies of the charges against him nor any copies of the socalled supporting evidence.
On February 9, 1981, the records of the case were turned over by the Judge
Advocate General's Office to the Ministry of Justice.
On February 24, 1981, the respondent City Fiscal filed a complaint accusing
petitioner, among others of having violated Republic Act No. 1700, as
amended by P.D. 885 and Batas Pambansa Blg. 31 in relation to Article 142
of the Revised Penal Code. The inquest court set the preliminary
investigation for March 17, 1981.
On March 6, 1981, the petitioner was allowed to leave the country to attend
a series of church conferences and undergo comprehensive medical
examinations of the heart, stomach, liver, eye and ear including a possible
removal of his left eye to save his right eye. Petitioner Salonga almost died
as one of the principal victims of the dastardly bombing of a Liberal Party
rally at Plaza Miranda on August 20, 1971. Since then, he has suffered
serious disabilities. The petitioner was riddled with shrapnel and pieces still
remain in various parts of his body. He has an AV fistula caused by a piece
of shrapnel lodged one millimeter from his aorta. The petitioner has limited
use of his one remaining hand and arms, is completely blind and phthisical
in the left eye, and has scar like formations in the remaining right eye. He is
totally deaf in the right ear and partially deaf in the left ear. The petitioner's
physical ailments led him to seek treatment abroad.
On or around March 26,1981, the counsel for petitioner was furnished a
copy of an amended complaint signed by Gen. Prospero Olivas, dated
March 12, 1981, charging the petitioner, along with 39 other accused with
the violation of R.A. 1700, as amended by P.D. 885, Batas Pambansa Blg.
31 and P.D. 1736. Hearings for preliminary investigation were conducted.
The prosecution presented as its witnesses Ambassador Armando
Fernandez, the Consul General of the Philippines in Los Angeles,
California, Col. Balbino Diego, PSC/NISA, Chief, Investigation and Legal
Panel of the Presidential Security Command and Victor Lovely himself.
On October 15, 1981, the counsel for petitioner filed a motion to dismiss the
charges against petitioner for failure of the prosecution to establish a prima
facie case against him.
On December 2, 1981, the respondent judge denied the motion. On January
4, 1982, he issued a resolution ordering the filing of an information for
violation of the Revised Anti-Subversion Act, as amended, against forty
(40) people, including herein petitioner.
"There is no disputing the validity and wisdom of the rule invoked by the
respondents. However, it is also recognized that. under certain situations,
recourse to the extraordinary legal remedies of certiorari, prohibition or
mandamus to question the denial of a motion to quash is considered proper
in the interest of 'more enlightened and substantial justice', as was so
declared in 'Yap v. Lutero', G.R. No. L-12669, April 30, 1969."
After a painstaking review of the records, this Court finds the evidence
offered by the prosecution utterly insufficient to establish a prima facie case
against the petitioner. We grant the petition.
However, before going into the merits of the case, we shall pass upon a
procedural issue raised by the respondents.
The respondents call for adherence to the consistent rule that the denial of a
motion to quash or to dismiss, being interlocutory in character, cannot be
questioned by certiorari; that since the question of dismissal will again be
considered by the court when it decides the case, the movant has a plain,
speedy and adequate remedy in the ordinary course of law; and that public
interest dictates that criminal prosecutions should not be enjoined.
The general rule is correctly stated. However, the respondents fail to
appreciate or take into account certain exceptions when a petition for
certiorari is clearly warranted. The case at bar is one such exception.
In the case of Mead v. Angel (115 SCRA 256) the same contentions were
advanced by the respondents to wit:
xxx
xxx
xxx
". . . Respondents advert to the rule that when a motion to quash filed by an
accused in a criminal case shall be denied, the remedy of the accusedmovant is not to file a petition for certiorari or mandamus or prohibition, the
proper recourse being to go to trial, without prejudice to his right to reiterate
the grounds invoked in his motion to quash if an adverse judgment is
rendered against him, in the appeal that he may take therefrom in the
manner authorized by law. (Mill v. People, et al., 101 Phil. 599; Echarol v.
Purisima, et al., 13 SCRA 309.)
On this argument, we ruled:
Victor Lovely and the only source of information with regard to the alleged
link between the petitioner and the series of terrorist bombings is now in the
United States. There is reason to believe the petitioner's citation of
international news dispatches ** that the prosecution may find it difficult if
not infeasible to bring him back to the Philippines to testify against the
petitioner. If Lovely refused to testify before an American federal grand
jury how could he possibly be made to testify when the charges against the
respondent come up in the course of the trial against the 39 accused.
Considering the foregoing, we find it in the interest of justice to resolve at
this stage the issue of whether or not the respondent judge gravely abused
his discretion in issuing the questioned resolutions.
The respondents contend that the prosecution will introduce additional
evidence during the trial and if the evidence, by then, is not sufficient to
prove the petitioner's guilt, he would anyway be acquitted. Yes, but under
the circumstances of this case, at what cost not only to the petitioner but to
the basic fabric of our criminal justice system?
The term "prima facie evidence" denotes evidence which, if unexplained or
uncontradicted, is sufficient to sustain the proposition it supports or to
establish the facts, or to counterbalance the presumption of innocence to
warrant a conviction. The question raised before us now is: Were the
evidences against the petitioner uncontradicted and if they were
unexplained or uncontradicted, would they, standing alone, sufficiently
overcome the presumption of innocence and warrant his conviction?
We do not think so.
The records reveal that in finding a case against the petitioner, the
respondent judge relied only on the testimonies of Col. Balbino Diego and
Victor Lovely. Ambassador Armando Fernandez, when called upon to
testify on subversive organizations in the United States nowhere mentioned
the petitioner as an organizer, officer or member of the Movement for Free
Philippines (MFP), or any of the organizations mentioned in the complaint.
Col. Diego, on the other hand, when asked what evidence he was able to
gather against the petitioner depended only on the statement of Lovely "that
it was the residence of ex-Senator Salonga where they met together with
Renato Taada, one of the brains of the bombing conspiracy . . . and the fact
that Sen. Salonga has been meeting with several subversive personnel based
in the U.S.A. was also revealed to me by Victor Burns Lovely; " and on the
group pictures taken at former Congressman Raul Daza's birthday party. In
concluding that a conspiracy exists to overthrow by violent means the
government of the Philippines in the United States, his only bases were
"documentary as well as physical and sworn statements that were referred to
me or taken by me personally," which of course negate personal knowledge
on his part. When asked by the court how he would categorize petitioner in
any of the subversive organizations, whether petitioner was an organizer,
officer or a member, the witness replied:
"A.
To categorize former Senator Salonga if he were an organizer, he
is an officer or he is a member, your Honor, please, we have to consider the
surrounding circumstances and on his involvement: first, Senator Salonga
wanted always to travel to the United States at least once a year or more
often under the pretext of to undergo some sort of operation and participate
in some sort of seminar. (t.s.n., April 21, 1981, pp. 14-15)
Such testimony, being based on affidavits of other persons and purely
hearsay, can hardly qualify as prima facie evidence of subversion. It should
not have been given credence by the court in the first place. Hearsay
evidence, whether objected to or not, has no probative value as the affiant
could not have been cross-examined on the facts stated therein. (See People
v. Labinia, 115 SCRA 223; People v. Valero, 112 SCRA 661). Moreover,
as Victor Lovely, himself, was personally examined by the court, there was
no need for the testimony of Col. Diego. Thus, the inquest judge should
have confined his investigation to Victor Burns Lovely, the sole witness
whose testimony had apparently implicated petitioner in the bombings
which eventually led to the filing of the information.
Lovely's account of the petitioner's involvement with the former's bombing
mission is found in his sworn statement made before Col. Diego and Lt.
Col. Madella and taken on October 17, 1980 at the AFP Medical Center.
Lovely was not presented as a prosecution or state witness but only as a
defense witness for his two younger brothers, Romeo and Baltazar, who
were both included in the complaint but who were later dropped from the
information. Victor Lovely was examined by his counsel and crossexamined by the fiscal. In the process, he identified the statement which he
made before Col. Diego and Lt. Col. Madella. After Lovely's testimony, the
prosecution made a manifestation before the court that it was adopting
Lovely as a prosecution witness.
According to Lovely's statement, the following events took place:
"36. Q. Did Psinakis tell you where to stay?
"A.
Yes, at first he told me to check-in at Manila Hotel or the Plaza
Hotel where somebody would come to contact me and give the materials
needed in the execution of my mission. I thought this was not safe so I
disagreed with him. Mr. Psinakis changed the plan and instead told me to
visit the residence of Ex-Sen. Jovito Salonga as often as I can and someone
will meet me there to give the materials I needed to accomplish my mission.
"37. Q. Did you comply as instructed?
"A.
Yes, I arrived in Manila on August 20, 1980 and stayed at the
residence of Mr. Johnny Chua, husband of my business partner, then I went
to the Hospital where I visited my mother and checked-in at Room 303 of
the YMCA at Concepcion Street, Manila.
"38. Q. Did you visit the residence of former Senator Jovito Salonga as
directed by Psinakis?
"A.
I visited Sen. Salonga's place three (3) times, the first visit was
August 20 or 21, and the last was 4:00 P.M. of August 31, 1980. In addition
to these visits, I TALKED to him on the phone about three or four times.
On my first visit, I told him 'I am expecting an attache case from somebody
which will be delivered to your house,' for which Sen. Salonga replied
'Wala namang nagpunta dito at wala namang attache case para sa iyo.'
However, if your attache case arrives, I'll just call you.' I gave him my
number. On my second visit, Salonga said, 'I'll be very busy so just come
back on the 31st of August at 4 P.M.' On that date, I was with friends at
Batulao Resort and had to hurry back to be at Salonga's place for the
appointment. I arrived at Salonga's place at exactly 4 P.M.
"39. Q. What happened then?
"A.
I was ushered to the sala by Mrs. Salonga and after five minutes,
Sen. Salonga joined me in the sala. Sen. Salonga informed me that
somebody will be coming to give me the attache case but did not tell me the
name.
"40. Q. Are there any subject matters you discussed while waiting for that
somebody to deliver your materials?
"A.
Yes, Salonga asked if Sen. Aquino and I have met, I explained to
him the efforts of Raul Daza in setting up that meeting but I have previous
business commitments at Norfolk, Virginia. I told him, however, that
through the efforts of Raul Daza, I was able to talk with Ninoy Aquino in
the airport telephone booth in San Francisco. He also asked about Raul
Daza, Steve Psinakis and the latest opposition group activities but it seems
he is well informed.
"41. Q. How long did you wait until that somebody arrived?
"A.
About thirty (30) minutes.
"42. Q. What happened when the man arrived?
"A.
This man arrived and I was greatly surprised to see Atty. Renato
Taada. Jovy Salonga was the one who met him and as I observed parang
nasa sariling bahay si Taada nung dumating. They talked for five (5)
minutes in very low tones so I did not hear what they talked about. After
their whispering conversations, Sen. Salonga left and at this time Atty. 'Nits'
Taada told me 'Nasa akin ang kailangan mo, nasa kotse.'
"43. Q. Were the materials given to you?
"A.
When Sen. Salonga came back, we asked to be permitted to leave
and I rode in Atty. Nits Taada's old Pontiac car colored dirty brown and
proceeded to Broadway Centrum where before I alighted, Atty. Taada
handed me a 'Puma' bag containing all the materials I needed.
xxx
xxx
xxx
"Q.
Who were the people that you contacted in Manila and for what
purpose?
"A.
Before I left for the Philippines, Mr. Psinakis told me to check-in
at the Manila Hotel or the Plaza Hotel, and somebody would just deliver the
materials I would need. I disapproved of this, and I told him I would prefer
a place that is familiar to me or who is close to me. Mr. Psinakis suggested
the residence of Sen. Salonga.
"And so, I arrived in Manila on August 20, 1980, I made a call to
Sen. Salonga, but he was out. The next day I made a call again. I was able
to contact him. I made an appointment to see him. I went to Sen. Salonga's
house the following day. I asked Sen. Salonga if someone had given him an
attache case for me. He said nobody. Afterwards, I made three calls to Sen.
Salonga. Sen. Salonga told me 'call me again on the 31st of August. I did
not call him, I just went to his house on the 31st of August at 4 P.M. A few
minutes after my arrival Atty. Renato Taada arrived. When he had a
chance to be near me, he (Atty. Taada) whispered to me that he had the
attache case and the materials I needed in his car. These materials were
given to me by Atty. Taada when I alighted at the Broadway Centrum.'
(Emphasis supplied)
During the cross-examination, counsel for petitioner asked Lovely about the
so-called destabilization plan which the latter mentioned in his sworn
statement:
"Q.
You mentioned in your statement taken on October 17, 1980,
marked Exhibit 'G' about the so-called destabilization plan of Aquino.
When you attended the birthday party of Raul Daza wherein Jovito Salonga
was also present, was this destabilization plan as alleged by you already
formulated?
WITNESS:
"A.
Not to my knowledge.
COURT TO WITNESS:
"Q.
Mr. Witness, who invited you to the party?
"A.
Raul Daza, your Honor.
"Q.
Were you told that Mr. Salonga would be present in the party?
"A.
I am really not quite sure, your Honor.
"Q.
Alright. You said initially it was social but then it became political.
Was there any political action taken as a result of the party?
"A.
Only political discussion, your Honor." (TSN, July 8, 1981, pp. 6984)
Counsel for petitioner also asked Lovely whether in view of the latter's
awareness of the physical condition of petitioner, he really implicated
petitioner in any of the bombings that occurred in Metro Manila. The fiscal
objected without stating any ground. In sustaining the objection, the Court
said:
"Sustained . . . The use of the word 'implicate' might expand the role of Mr.
Salonga. In other words, you are widening the avenue of Mr. Salonga's role
beyond the participation stated in the testimony of this witness about Mr.
Salonga, at least, as far as the evidence is concerned, I supposed, is only
being in the house of Mr. Salonga which was used as the contact point. He
never mentions Mr. Salonga about the bombings. Now these words had to
be put in the mouth of this witness. That would be unfair to Mr. Salonga."
(TSN. July 8, 1981, p. 67)
Respondent judge further said:
"COURT:
"As the Court said earlier, the parts or portions affecting Salonga
only refers to the witness coming to Manila already then the matter of . . . I
have gone over the statement and there is no mention of Salonga insofar as
activities in the United States is concerned. I don't know why it concerns
this cross-examination.
"ATTY. YAP:
"Because according to him, it was in pursuance of the plan that he
came to Manila.
"COURT:
"According to him it was Aquino, Daza, and Psinakis who asked
him to come here, but Salonga was introduced only when he (Lovely) came
here. Now, the tendency of the question is also to connect Salonga to the
activities in the United States. It seems to be the thrust of the questions.
"COURT:
"In other words, the point of the Court as of the time when yon
asked him question, the focus on Salonga was only from the time when he
met Salonga at Greenhills. It was the first time that the name of Salonga
(2)
Because "he mentioned some kind of violent struggle in the
Philippines being most likely should reforms be not instituted by President
Marcos immediately."
The "contact point" theory or what the petitioner calls the "guilt by visit or
guilt by association" theory is too tenuous a basis to conclude that Senator
Salonga was a leader or mastermind of the bombing incidents. To indict a
person simply because some plotters, masquerading as visitors, have
somehow met in his house or office would be to establish a dangerous
precedent. The right of citizens to be secure against abuse of governmental
processes in criminal prosecutions would be seriously undermined.
The testimony of Victor Lovely against petitioner Salonga is full of
inconsistencies. Senator Salonga and Atty. Renato Taada could not have
whispered to one another because the petitioner is almost totally deaf.
Lovely could not have met Senator Salonga at a Manglapus party in
Washington, D.C. in 1977 because the petitioner left for the United States
only on November, 1978. Senator Salonga denies having known Mr. Lovely
in the United States or in the Philippines. He states that he has hundred of
visitors from week to week in his residence but cannot recall any Victor
Lovely.
The presence of Lovely in a group picture taken at Mr. Raul Daza's birthday
party in Los Angeles where Senator Salonga was a guest is not proof of
conspiracy. As stated by the petitioner, in his many years in the turbulent
world of politics, he has posed with all kinds of people in various groups
and various places and could not possibly vouch for their conduct.
Commenting on the matter, newspaper columnist Teodoro Valencia stated
that Filipinos love to pose with important visitors and the picture proves
nothing.
It is likewise probable that a national figure and former politician of Senator
Salonga's stature can expect guests and visitors of all kinds to be visiting his
home or office. If a rebel or subversive happens to pose with the petitioner
for a group picture at a birthday party abroad, or even visit him with others
in his home, the petitioner does not thereby become a rebel or subversive,
much less a leader of a subversive group. More credible and stronger
The United States Supreme Court in Noto v. United States (367 U.S. 290)
distinguished between the abstract teaching of the moral propriety or even
moral necessity for a resort to force and violence and speech which would
prepare a group for violent action and steel it to such action. In Watts v.
United States (394 U.S. 705), the American court distinguished between
criminal threats and constitutionally protected speech.
It stated:
"We do not believe that the kind of political hyperbole indulged in by
petitioner fits within that statutory term. For we must interpret the language
Congress chose against the background of a profound national commitment
to the principle that debate on public issues should be uninhibited, robust,
and wide open and that it may well include vehement, caustic, and
sometimes unpleasantly sharp attacks on government and public officials.
New York Times Co. v. Sullivan (376 U.S. 254). The language of the
political arena, like the language used in labor disputed is often vituperative,
abusive, and inexact. We agree with petitioner that his only offense was a
kind of very crude offensive method of stating a political opposition to the
President."
In the case before us, there is no teaching of the moral propriety of a resort
to violence, much less an advocacy of force or a conspiracy to organize the
use of force against the duly constituted authorities. The alleged remark
about the likelihood of violent struggle unless reforms are instituted is not a
threat against the government. Nor is it even the uninhibited, robust, caustic,
or unpleasantly sharp attack which is protected by the guarantee of free
speech. Parenthetically, the American case of Brandenburg v. Ohio (395
U.S. 444) states that the constitutional guarantees of free speech and free
press do not permit a State to forbid or proscribe advocacy of the use of
force or of law violation except where such advocacy is directed to inciting
or producing imminent lawless action and is likely to incite or produce such
action. The words which petitioner allegedly used according to the best
recollections of Mr. Lovely are light years away from such type of
proscribed advocacy.
"Q.
Did you suspect any relation between Cabarrus and Jovito Salonga,
why did you implicate Jovito Salonga?
"A.
No, your Honor. I did not try to implicate Salonga.
It should be noted that after Lovely's testimony, the prosecution manifested
to the court that it was adopting him as a prosecution witness. Therefore, the
prosecution became irreversively bound by Lovely's disclaimers on the
witness stand, that it was not his intention "to do some kind of bombing
against the government" and that he "did not try to implicate Salonga",
especially since Lovely is the sole witness adopted by the prosecution who
could supposedly establish the link between the petitioner and the bombing
incidents.
The respondent court should have taken these factors into consideration
before concluding that a prima facie case exists against the petitioner.
Evidence must not only proceed from the mouth of a credible witness but it
must be credible in itself such as the common experience and observation of
mankind can approve as probable under the circumstances. (People v.
Dayad, 56 SCRA 439). In the case at bar, the prosecution cannot even
present a credible version of the petitioner's role in the bombings even if it
ignores the subsequent disclaimers of Lovely and without relying on mere
affidavits including those made by Lovely during his detention.
The resolution dated January 4, 1982 suffers from the same defect. In this
resolution, Lovely's previous declarations about the bombings as part of the
alleged destabilization plan and the people behind the same were accorded
such credibility by the respondent judge as if they had already been proved
beyond reasonable doubt.
The purpose of a preliminary investigation is to secure the innocent against
hasty, malicious and oppressive prosecution, and to protect him from an
open and public accusation of crime, from the trouble, expense and anxiety
of a public trial, and also to protect the state from useless and expensive
trials. (Trocio v. Manta, 118 SCRA 241; citing Hashim v. Boncan, 71 Phil.
216). The right to a preliminary investigation is a statutory grant, and to
withhold it would be to transgress constitutional due process. (See People v.
Oandasa, 25 SCRA 277) However, in order to satisfy the due process clause
the petition should have been resolved on the merits because it posed
important legal questions.
In the habeas corpus case of Aquino, Jr., v. Enrile, 59 SCRA 183), during
the pendency of the case, 26 petitioners were released from custody and one
withdrew his petition. The sole remaining petitioner was facing charges of
murder, subversion, and illegal possession of firearms. The fact that the
petition was moot and academic did not prevent this Court in the exercise of
its symbolic function from promulgating one of the most voluminous
decisions ever printed in the Reports.
In this case, the respondents agree with our earlier finding that the
prosecution evidence miserably fails to establish a prima facie case against
the petitioner, either as a co-conspirator of a destabilization plan to
overthrow the government or as an officer or leader of any subversive
organization. They have taken the initiative of dropping the charges against
the petitioner. We reiterate the rule, however, that this Court will not
validate the filing of an information based on the kind of evidence against
the petitioner found in the records.
WHEREFORE, the petition is DISMISSED for having become moot and
academic.
SO ORDERED.
Fernando, C.J., Teehankee, Makasiar, Concepcion, Jr., Melencio-Herrera,
Plana, Escolin, Relova and Cuevas, JJ., concur.
Aquino, De la Fuente and Alampay, JJ., took no part.
Separate Opinions
ABAD SANTOS, J., concurring:
Del Castillo vs. Ponce Enrile, G.R. No. 62119, August 27, 1984, 131 SCRA
405, was a petition for the writ of habeas corpus. Before this Court could
finally act on the petition, the subject was released and for that reason the
majority of this Court resolved to dismiss the petition for having become
moot and academic. Justice Teehankee and the undersigned disagreed with
the majority; we expressed the view that despite the release of the subject,
I am glad that this Court has abandoned its cavalier treatment of petitions by
dismissing them on the ground that they have become moot and academic
and stopped there. I am glad it has reverted to De la Camara vs. Enage,
Gonzales vs. Marcos and Aquino vs. Enrile which are mentioned in the
ponencia of Justice Gutierrez.
I agree with the ponencia of Justice Gutierrez that because the subversion
charges against the petitioner had been dropped by the trial court on January
18, 1985, there is no longer any need to prohibit the respondents from
prosecuting Criminal Case No. Q-18606 insofar as he is concerned.
I am not revealing any confidential matter by saying that the initial action of
this Court was to grant the petition, i.e. prohibit the prosecution of the
petitioner. This is manifest from the ponencia of Justice Gutierrez. I regret
that on this matter the Court has been pre-empted by a "first strike" which
has occurred once too often.
Justice Gutierrez states that, "The Court had already deliberated on this
case, and a consensus on the Court's judgment had been arrived at." Let me
add that the consensus had taken place as early as October 24, 1984, and the
decision started to circulate for signature on November 2, 1984. Alas, on
January 18, 1985, the decision was still circulating - overtaken by events.
The decision could have had a greater impact had it been promulgated prior
to the executive action.
2.
ID.; ID.; WARRANT OF ARREST; COMPLETION OF
ENTIRE PROCEDURE OF PRELIMINARY INVESTIGATION,
NOT INDISPENSABLE TO ISSUANCE THEREOF. While Rule 20
provides is that no complaint or information for an offense cognizable by
the Regional Trial Court may be filed without completing the procedure,
nowhere is it provided that the entire procedure must be completed before a
warrant of arrest may issue. The rule is and has always been that such
issuance need only await a finding of probable cause as provided by Sec. 6
of Rule 112, not the completion of the entire procedure of preliminary
investigation.
3.
ID.; ID.; ID.; MEANING OF "SEARCHING QUESTIONS
AND ANSWERS". In Luna vs. Plaza, this Court ruled that the term
"searching questions and answers" means ". . . only, taking into
consideration the purpose of the preliminary examination which is to
determine "whether there is a reasonable ground to believe that an offense
has been committed and the accused is probably guilty thereof so that a
warrant of arrest may be issued and the accused held for trial," such
questions as have tendency to show the commission of a crime and the
perpetuator thereof. What would be searching questions would depend on
what is sought to be inquired into, such as: the nature of the offense, the
date, time, and place of its commission, the possible motives for its
commission; the subject, his age, education, status, financial and social
circumstances, his attitude toward the investigation, social attitudes,
opportunities to commit the offense; the victim, his age, status, family
responsibilities, financial and social circumstances, characteristics, etc. The
points that are the subject of inquiry may differ from case to case. The
questions, therefore must to a great degree depend upon the Judge making
the investigation . . ."
4.
ID.; ID.; ID.; WARRANT ISSUE AGAINST FIFTY JOHN
DOES, VOID FOR BEING GENERAL IN NATURE. A warrant is
issued against fifty (50) "John Does" not one of whom the witnesses to the
complaint could or would identify, it is of the nature of a general warrant,
one of a class of writs long proscribed as unconstitutional and once
anathematized as "totally subversive of the liberty of the subject." Clearly
violative of the constitutional injunction that warrants of arrest should
suffering casualties. Another version has it that a group that was on its way
to another place, Lalabuan, also in Masiu, had been ambushed.
5.
ID.; ID.; PRELIMINARY INVESTIGATION; WHERE THE
PROVINCIAL FISCAL ANNOUNCED HIS INTENTION TO
INVESTIGATE THE INCIDENT, INVESTIGATING JUDGE
SHOULD ENDORSE THE SAME TO THE FORMER. In a case
where the Fiscal announced his intention to conduct his own inquiry, the
judge although he is not legally inhibited should as a courtesy endorse to the
former the investigation of the case filed with him. The action and final
resolution of the respondent Judge after completing the second stage of the
preliminary investigation are subject to review by the Provincial Fiscal.
Practical considerations of expediency and the avoidance of the duplication
of work dictate that the latter official be permitted to take over the
investigation even before the Municipal Judge completes his own inquiry.
DECISION
NARVASA, J p:
The petitioners ask this Court:
1)
to annul the warrant for their arrest issued by respondent Judge
Dimaporo T. Casar of the Municipal Circuit Court of Masiu, Lanao del Sur,
in Criminal Case No. 1748 entitled "People vs. Hadji Ibrahim Solay
Pangandaman, et al.;"
2)
to prohibit the Judge from taking further cognizance of said
Criminal Case No. 1748; and
3)
to compel the Judge to forward the entire record of Criminal Case
No. 1748 to the Provincial Fiscal of Lanao del Sur for proper disposition.
Their plea is essentially grounded on the claim that the warrant for their
arrest was issued by the respondent Judge without a proper preliminary
investigation. The Solicitor General agrees and recommends that their
petition be granted and the warrant of arrest voided.
On July 27, 1985, a shooting incident occurred in Pantao, Masiu, Lanao del
Sur, which left at least five persons dead and two others wounded. What in
fact transpired is still unclear. According to one version, armed men had
attacked a residence in Pantao, Masiu, with both attackers and defenders
with the procedure prescribed in Section 3, Rule 112 of the Rules of Court;
and that failure constituted a denial to petitioners of due process which
nullified the proceedings leading to the issuance of the warrant for the
petitioners' arrest. It is further contended that August 10, 1985 was a
Saturday during which "Municipal Trial Courts are open from 8:00 a.m. to
1:00 p.m. only, . . ." and ". . . it would hardly have been possible for
respondent Judge to determine the existence of probable cause against
sixty-four (64) persons whose participations were of varying nature and
degree in a matter of hours and issue the warrant of arrest in the same day;
and that there was undue haste and an omission to ask searching questions
by the Judge who relied "mainly on the supporting affidavits which were
obviously prepared already when presented to him by an enlisted PC
personnel as investigator."
the case, to the provincial fiscal; or (2) that the complaint and the
supporting documents show sufficient cause to continue with the inquiry
and this ushers in the second phase.
The petitioners further assert that the respondent Judge conducted the
preliminary investigation of the charges ". . . in total disregard of the
Provincial Fiscal . . ." who, as said respondent well knew, had already taken
cognizance of the matter twelve (12) days earlier and was poised to conduct
his own investigation of the same; and that issuance of a warrant of arrest
against fifty (50) "John Does" transgressed the Constitutional provision
requiring that such warrants should particularly describe the persons or
things to be seized.
The argument, therefore, must be rejected that the respondent Judge acted
with grave abuse of discretion in issuing the warrant of arrest against
petitioners without first completing the preliminary investigation in
accordance with the prescribed procedure. The rule is and has always been
that such issuance need only await a finding of probable cause, not the
completion of the entire procedure of preliminary investigation.
Also without appreciable merit is petitioners' other argument that there was
scarcely time to determine probable cause against sixty-four persons (the
fourteen petitioners and fifty "Does") within a matter of hours on a Saturday
when municipal trial courts are open only from 8:00 a.m. to 1:00 p.m. That
argument founders upon the respondent Judge's positive affirmations that he
had personally and closely examined under oath the three witnesses to the
complaint and that he had issued the warrant of arrest "believing that the
offense thus filed had been committed." Nothing in the record before this
Court belies or discredits those affirmations which have, besides, the benefit
of the legal presumption that official duty has been regularly performed. 26
The contention that the witnesses to the complaint had merely sworn before
the respondent Judge to statements prepared beforehand and submitted by a
military investigator 27 must, in view of the foregoing considerations and
for lack of any support in the record, be dismissed as mere speculation.
The same argument also unwarrantedly assumes that the respondent Judge
limited the proceedings on preliminary examination to the usual Saturday
office hours of 8:00 a.m. to 1:00 p.m., in addition to not making any
persuasive showing that such proceedings could not have been completed
within that time-frame. For all that appears, said respondent could have put
off the 1:00 p.m. adjournment until he had finished interrogating the
witnesses to his satisfaction. And there is really nothing unusual in
completing within a three-hour period the questioning of three witnesses in
a preliminary examination to determine the existence of probable cause.
The record which, lacking proof to the contrary, must be accepted as an
accurate chronicle of the questioned proceedings, shows prima facie that the
respondent Judge had personally examined the witnesses to the complaint,
and a consideration of the latter's sworn answers to his questions satisfies
this Court that the finding of probable cause against the petitioners was
neither arbitrary nor unfounded.
The three witnesses to the complaint, Misandoning Monasprang, a student,
Lawandato Ripors, an engineering graduate, and Sanny Monib, a farmer,
gave mutually corroborative accounts of the incident. Under separate
questioning, they declared that they were members of a party that was
passing by Pantao on its way to Lalabuan from Talaguian, all in Masiu,
Lanao del Sur, at about 10:00 a.m. on July 27, 1985, when they were
ambushed and fired upon by an armed group which included the petitioners
and about fifty other unidentified persons; that five of the party had been
killed and two (the witnesses Lawandato Ripors and Sanny Monib)
wounded; that even after they had killed their victims, the ambushers had
continued to fire at the dead bodies; that the witnesses managed to escape
their attackers and return to Talaguian, where they informed their relatives
about what had happened, and thence went to the municipal hall in Masiu to
report to the authorities; that the dead victims were recovered only late in
the afternoon of that day because the authorities could not "penetrate" the
area and the ambushers refused to release the bodies; and that the ambush
was an offshoot of a grudge between the families of the ambushers and
those of the victims.
The witnesses named and identified the dead victims as Cadar Monasprang,
Macacrao Guiling, Macrang Hadji Alawi, Alicman Ripors and Malabato
Diator. All of them also identified by name each of the fourteen petitioners
as members of the ambush group. The respondent Judge can hardly be
faulted for finding enough cause to hold the petitioners named in the
statements of three eyewitnesses to killings perpetrated in broad daylight.
In Luna vs. Plaza, this Court ruled that the term "searching questions and
answers" means
". . . only, taking into consideration the purpose of the preliminary
examination which is to determine "whether there is a reasonable ground to
believe that an offense has been committed and the accused is probably
guilty thereof so that a warrant of arrest may be issued and the accused held
for trial," such questions as have tendency to show the commission of a
crime and the perpetuator thereof. What would be searching questions
would depend on what is sought to be inquired into, such as: the nature of
the offense, the date, time, and place of its commission, the possible
motives for its commission; the subject, his age, education, status, financial
and social circumstances, his attitude toward the investigation, social
attitudes, opportunities to commit the offense; the victim, his age, status,
family responsibilities, financial and social circumstances, characteristics,
etc. The points that are the subject of inquiry may differ from case to case.
The questions, therefore must to a great degree depend upon the Judge
making the investigation . . ."
Upon this authority, and considering what has already been stated above,
this Court is not prepared to question the propriety of the respondent Judge's
finding of probable cause or substitute its judgment for his in the matter of
what questions to put to the witnesses during the preliminary examination.
Upon the facts and the law, therefore, the warrant of arrest in question
validly issued against the petitioners, such issuance having been ordered
after proceedings, to which no irregularity has been shown to attach, in
which the respondent Judge found sufficient cause to commit the petitioners
to answer for the crime complained of.
Insofar, however, as said warrant is issued against fifty (50) "John Does"
not one of whom the witnesses to the complaint could or would identify, it
is of the nature of a general warrant, one of a class of writs long proscribed
as unconstitutional and once anathematized as "totally subversive of the
liberty of the subject." Clearly violative of the constitutional injunction that
warrants of arrest should particularly describe the person or persons to be
seized, the warrant must, as regards its unidentified subjects, be voided.
The fact that the Provincial Fiscal may have announced his intention of
investigating the incident himself did not, in the view of the Court, legally
inhibit the respondent Judge from conducting his own inquiry into the
matter if, as is made to appear here, it was regularly brought before him and
no formal complaint was filed before the Fiscal. Courtesy may have
dictated that in those circumstances he leave the investigation to the Fiscal
and simply endorse to the latter the complaint filed with him; duty did not,
and if he nonetheless chose to conduct his own investigation, nothing in the
rules states or implies that he could not do so.
Be that as it may, since the action and final resolution of the respondent
Judge after completing the second stage of the preliminary investigation are
subject to review by the Provincial Fiscal, practical considerations of
expediency and the avoidance of duplication of work dictate that the latter
official be permitted to take over the investigation even in its present stage.
WHEREFORE, the warrant complained of is upheld and declared valid
insofar as it orders the arrest of the petitioners. Said warrant is voided to the
extent that it is issued against fifty (50) "John Does." The respondent Judge
is directed to forward to the Provincial Fiscal of Lanao del Sur the record of
the preliminary investigation of the complaint in Criminal Case No. 1728 of
his court for further appropriate action. Without pronouncement as to costs.
SO ORDERED.
Teehankee, C.J., Cruz, Gancayco and Grio-Aquino, JJ., concur.
SYLLABUS
1.
REMEDIAL
LAW;
CRIMINAL
PROCEDURE;
PRELIMINARY
INVESTIGATION;
DETERMINATION
OF
PROBABLE CAUSE, AN EXECUTIVE FUNCTION. The
determination of probable cause during a preliminary investigation is a
function that belongs to the public prosecutor. It is an executive function,
the correctness of the exercise of which is a matter that the trial court itself
does not and may not be compelled to pass upon. Indeed, the public
prosecutor has broad discretion to determine whether probable cause exists
and to charge those whom he or she believes to have committed the crime
as defined by law. Otherwise stated, such official has the quasi-judicial
authority to determine whether or not a criminal case must be filed in court.
Therefore, if the information is valid on its face, and there is no showing of
manifest error, grave abuse of discretion and prejudice on the part of the
public prosecutor, the trial court should respect such determination.
2.
ID.; ID.; ID.; PURPOSE. The primary objective of a
preliminary investigation is to free respondent from the inconvenience,
expense, ignominy and stress of defending himself/herself in the course of a
formal trial, until the reasonable probability of his or her guilt in a more or
less summary proceeding by a competent office designated by law for that
purpose. Secondarily, such summary proceeding also protects the state from
the burden of the unnecessary expense and effort in prosecuting alleged
offenses and in holding trials arising from false, frivolous or groundless
charges.
3.
ID.; ID.; ID.; NATURE. Such investigation is not part of the
trial. A full and exhaustive presentation of the parties' evidence is not
required, but only such as may engender a well-grounded belief than an
offense has been committed and that the accused is probably guilty thereof.
By reason of the abbreviated nature of preliminary investigations, a
dismissal of the charges as a result thereof is not equivalent to a judicial
pronouncement of acquittal. Hence, no double jeopardy attaches.
4.
ID.; ID.; DETERMINATION OF PROBABLE CAUSE TO
HOLD A PERSON FOR TRIAL DISTINGUISHED FROM THAT OF
ISSUANCE OF WARRANT OF ARREST. In light of the aforecited
fiscal, therefore, should not go on with the prosecution in the hope that
some credible evidence might later turn out during trial, for this would be a
flagrant violation of a basic right which the courts are created to uphold. In
all, the Court decreed in both cases that there was no basis in law and in fact
for the judicial and executive determination of probable cause. The Court
also held that the government, while vested with the right and the duty to
protect itself and its people against transgressors of the law, must perform
the same in a a manner that would not infringe the perceived violators' right
as guaranteed by the Constitution. We stress that Allado and Salonga
constitute exceptions to the general rule and may be invoked only if similar
circumstances are clearly shown to exist. But as the foregoing comparisons
show, such similarities are absent in the instant case. Hence, the rulings in
the two aforementioned cases cannot apply to it.
7.
ID.; ID.; ID.; ID.; NOT APPLICABLE TO CASE AT BAR.
However, the present case is not on all four with Allado and Salonga. First.
Elsa Gumban, the principal eyewitness to the killing of Rosalinda Dy, was
not a participant or conspirator in the commission of said crime. In Allado
and Salonga, however, the main witness were the confessed perpetrators of
the crimes, whose testimonies the Court deemed 'tainted'. Second, in the
case at bar, the private respondent was accorded due process, and no
precipitate haste or bias during the investigation of the case can be imputed
to the public prosecutor. On the other hand, the Court noted Allado the
"undue haste in the filing of the Information and the inordinate interest of
the government" in pursuing the case; and in Salonga, ". . . the failure of the
prosecution to show that the petitioner was probably guilty of conspiring to
commit the crime, the initial disregard of petitioner's constitutional rights
[and] the massive and damaging publicity made against him. In other
words, while the respective sets of evidence before the prosecutors in
Allado and Salonga were "utterly insufficient" to support a finding of
probable cause, the same cannot be said of the present case.
8.
ID.; ID.; WRITTEN MOTIONS; MUST BE SET FOR
HEARING AND SERVED TO OTHER PARTY; RATIONALE. It
is settled that every written motion in a trial court must be set for hearing by
the applicant and served with the notice of hearing thereof, in such a
manner as to ensure its receipt by the other party. The provisions on this
"On August 30, 1993, Rosalinda Dy, according to the petition, was shot at
pointblank range by private respondent Jonathan Cerbo in the presence and
at the office of his father, private respondent Billy Cerbo at Purok 9,
Poblacion, Nabunturan, Davao.
"On September 2, 1993, eyewitness Elsa B. Gumban executed an affidavit
positively identifying private respondent Jonathan Cerbo as the assailant.
(Annex C, Rollo, p. 34).
"On September 20, 1993, private respondent Jonathan Cerbo executed a
counter-affidavit interposing the defense that the shooting was accidental
(Annex D, Rollo, pp. 35-36).
"On October 6, 1993, the 3rd Municipal Circuit Trial Court of NabunturanMawab, Davao, after a preliminary investigation, found "sufficient ground
to engender a well-founded belief" that the crime of murder has been
committed by private respondent Jonathan Cerbo and resolved to forward
the entire records of the case to the provincial prosecutor at Tagum, Davao
(Annex E, Rollo, pp. 37-38).
"After [an] information for murder was filed against Jonathan Cerbo,
petitioner Alynn Plezette Dy, daughter of the victim Rosalinda Dy,
executed an affidavit-complaint charging private respondent Billy Cerbo of
conspiracy in the killing (Annex F, Rollo, p. 39), supported by a
supplemental affidavit of Elsa B. Gumban, alleging "in addition" to her
previous statement that:
'3.
In addition to my said sworn statement, I voluntarily and freely
aver as follows:
'a)
I vividly recall that while my mistress Rosalinda Go and I were in
the office of Billy Cerbo at about 11:45 a.m. on August 30, 1993, Mr. Cerbo
personally instructed me to fetch the food from the kitchen [and to bring it]
to the office instead of the dining room.
'b)
While bringing the food, Mr. Cerbo again instructed me to place
the food [o]n a corner table and commanded me to sit behind the entrance
door and at the same time Mr. Cerbo positioned Rosalinda [on] a chair
facing the entrance door for an easy target.
'c)
Immediately after Rosalinda was shot, Mr. Billy Cerbo called his
son Jonathan who was running, but did not and ha[s] never bothered to
bring Rosalinda to a hospital or even apply first aid.
'd)
To my surprise, Mr. Billy Cerbo, instead of bringing Rosalinda to
the hospital, brought her to the funeral parlor and immediately ordered her
to be embalmed without even informing her children or any of her
immediate relatives . . .' Annex G, Rollo, p. 40.)
"Private respondent Billy Cerbo submitted a counter-affidavit denying the
allegations of both petitioner Alynn Plezette Dy and Elsa B. Gumban
(Annex H, Rollo, pp. 41-42).
"On or about April 8, 1994, Prosecutor Protacio Lumangtad filed a "Motion
for leave of court to reinvestigate the case" (Annex I, Rollo, pp. 43-44)
which was granted by the respondent judge in an order dated April 28, 1994
(Annex J, Rollo, p. 45).
"In his resolution dated May 5, 1994, Prosecutor Lumangtad recommended
the filing of an amended information including Billy Cerbo '. . . as one of
the accused in the murder case . . .' (Annex K: rollo, pp. 46-49).
"Accordingly, the prosecution filed an amended information including Billy
Cerbo in the murder case. A warrant for his arrest was later issued on May
27, 1994 (Rollo, p. 27).
"Private respondent Billy Cerbo then filed a motion to quash warrant of
arrest arguing that the same was issued without probable cause (Rollo, p.
27).
"On June 28, 1994, respondent Judge issued the first assailed order
dismissing the case against Billy Cerbo and recalling the warrant for his
arrest[;] the dispositive portion of [the order] reads:
'IN THE LIGHT OF ALL THE FOREGOING, [an] order is hereby issued
DISMISSING the case as against Billy Cerbo only."
'Let, therefore, the warrant of arrest, dated May 27, 1994, be RECALLED.
'The prosecution is hereby ordered to withdraw its Amended Information
and file a new one charging Jonathan Cerbo only.
"In this special civil action, this Court is being asked to assume the function
of a public prosecutor. It is being asked to determine whether probable
cause exists as regards petitioners. More concretely, the Court is being
asked to examine and assess such evidence as has thus far been submitted
by the parties and, on the basis thereof, make a conclusion as to whether or
not it suffices 'to engender a well founded belief that a crime has been
committed and that the respondent is probably guilty thereof and should be
held for trial.'
"It is a function that this Court should not be called upon to perform. It is a
function that properly pertains to the public prosecutor, one that, as far as
crimes cognizable by a Regional Trial Court are concerned, and
notwithstanding that it involves an adjudicative process of a sort,
exclusively pertains, by law, to said executive officer, the public prosecutor.
It is moreover a function that in the established scheme of things, is
supposed to be performed at the very genesis of, indeed, prefatorily to, the
formal commencement of a criminal action. The proceedings before a
public prosecutor, it may well be stressed, are essentially preliminary,
prefatory and cannot lead to a final, definite and authoritative adjudgment
of the guilt or innocence of the persons charged with a felony or crime.
"Whether or not that function has been correctly discharged by the public
prosecutor i.e., whether or not he has made a correct ascertainment of the
existence of probable cause in a case, is a matter that the trial court itself
does not and may not be compelled to pass upon. It is not for instance
permitted for an accused, upon the filing of the information against him by
the public prosecutor, to preempt trial by filing a motion with the Trial
Court praying for the quashal or dismissal of the indictment on the ground
that the evidence upon which the same is based is inadequate. Nor is it
permitted, on the antipodal theory that the evidence is in truth inadequate,
for the complaining party to present a petition before the Court praying that
the public prosecutor be compelled to file the corresponding information
against the accused.
xxx
xxx
xxx"
Indeed, the public prosecutor has broad discretion to determine whether
probable cause exists and to charge those whom he or she believes to have
committed the crime as defined by law. Otherwise stated, such official has
the quasi-judicial authority to determine whether or not a criminal case must
be filed in court. Thus in Crespo v. Mogul, we ruled:
"It is a cardinal principle that all criminal actions either commenced by
complaint or by information shall be prosecuted under the direction and
control of the fiscal. The institution of a criminal action depends upon the
sound discretion of the fiscal. He may or may not file the complaint or
information, follow or not follow that presented by the offended party,
according to whether the evidence, in his opinion, is sufficient or not to
establish the guilt of the accused beyond reasonable doubt. The reason for
placing the criminal prosecution under the direction and control of the fiscal
is to prevent malicious or unfounded prosecutions by private persons. . . .
Prosecuting officers under the power vested in them by the law, not only
have the authority but also the duty of prosecuting persons who, according
to the evidence received from the complainant, are shown to be guilty of a
crime committed within the jurisdiction of their office. They have equally
the duty not to prosecute when the evidence adduced is not sufficient to
establish a prima facie case."
This broad prosecutorial power is however not unfettered, because just as
public prosecutors are obliged to bring forth before the law those who have
transgressed it, they are also constrained to be circumspect in filing criminal
charges against the innocent. Thus, for crimes cognizable by regional trial
courts, preliminary investigations are usually conducted. In Ledesma v.
Court of Appeals, we discussed the purposes and nature of a preliminary
investigation in this manner:
"The primary objective of a preliminary investigation is to free respondent
from the inconvenience, expense, ignominy and stress of defending
himself/herself in the course of a formal trial, until the reasonable
probability of his or her guilt in a more or less summary proceeding by a
competent office designated by law for that purpose. Secondarily, such
summary proceeding also protects the state from the burden of the
unnecessary expense and effort in prosecuting alleged offenses and in
holding trials arising from false, frivolous or groundless charges.
the judge. Whether there is reasonable ground to believe that the accused is
guilty of the offense charged and should be held for trial is what the
prosecutor passes upon. The judge, on the other hand, determines whether a
warrant of arrest should be issued against the accused, i.e., whether there is
a necessity for placing him under immediate custody in order not to
frustrate the ends of justice. Thus, even if both should base their findings on
one and the same proceeding or evidence, there should be no confusion as
to their distinct objectives.
"Second, since their objectives are different, the judge cannot rely solely on
the report of the prosecutor in finding probable cause to justify the issuance
of a warrant of arrest. Obviously and understandably, the contents of the
prosecutor's report will support his own conclusion that there is reason to
charge the accused of an offense and hold him for trial. However, the judge
must decide independently. Hence, he must have supporting evidence, other
than the prosecutor's bare report, upon which to legally sustain his own
findings on the existence or non-existence of probable cause to issue an
arrest order. This responsibility of determining personally and
independently the existence of non-existence of probable cause is lodged in
him by no less than the most basic law of the land. Parenthetically, the
prosecutor could ease the burden of the judge and speed up the litigation
process by forwarding to the latter not only the information and his bare
resolution, but also so much of the records and the evidence on hand as to
enable His Honor to make his personal and separate judicial finding on
whether to issue a warrant of arrest.
"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 the 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
transcript 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 prosecutor's recommendation, as
the Respondent Court did in this case. Although the prosecutor enjoys the
legal presumption of regularity in the performance of his 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.
xxx
xxx
xxx"
Verily, a judge cannot be compelled to issue a warrant of arrest if he or she
deems that there is no probable cause for doing so. Corollary to this
principle, the judge should not override the public prosecutor's
determination of probable cause to hold an accused for trial, on the ground
that the evidence presented to substantiate the issuance of an arrest warrant
was insufficient, as in the present case.
Indeed, it would be unfair to expect the prosecution to present all the
evidence needed to secure the conviction of the accused upon the filing of
the information against the latter. The reason is found in the nature and the
objective of a preliminary investigation. Here, the public prosecutors do not
decide whether there is evidence beyond reasonable doubt of the guilt of the
person charged; they merely determine "whether there is sufficient ground
to engender a well-founded belief that a crime . . . has been committed and
that the respondent is probably guilty thereof, and should be held for trial."
15 Evidentiary matters must be presented and heard during the trial. 16
Therefore, if the information is valid on its face, and there is no showing of
manifest error, grave abuse of discretion and prejudice on the part of the
public prosecutor, the trial court should respect such determination.
Inapplicability of Allado and Salonga
The Court of Appeals anchored its ruling on the pronouncement made in
Allado v. Diokno: ". . . [I]f, upon the filing of the information in court, the
trial judge, after reviewing the information and the documents attached
thereto, must either call for the complainant and the witnesses themselves or
simply dismiss the case. There is no reason to hold the accused for trial and
further expose him to an open and public accusation of the crime when no
probable cause exists."
this would be a flagrant violation of a basic right which the courts are
created to uphold."
In the aforecited case, Petitioner Jovito R. Salonga sought to bar the filing
of an Information for violation of the Revised Anti-Subversion Act, which
Judge Ernani Cruz-Pao had ordered to be filed against him. In sustaining
the petitioner, the Court held that the evidence upon which the Information
was based was not sufficient to charge him for a violation of the Revised
Anti-Subversion Act.
In all, the Court decreed in both cases that there was no basis in law and in
fact for the judicial and executive determination of probable cause. The
Court also held that the government, while vested with the right and the
duty to protect itself and its people against transgressors of the law, must
perform the same in a manner that would not infringe the perceived
violators' rights as guaranteed by the Constitution.
However, the present case is not on all fours with Allado and Salonga. First,
Elsa Gumban, the principal eyewitness to the killing of Rosalinda Dy, was
not a participant or conspirator in the commission of said crime. In Allado
and Salonga, however, the main witnesses were the confessed perpetrators
of the crimes, whose testimonies the Court deemed 'tainted'. Second, in the
case at bar, the private respondent was accorded due process, and no
precipitate haste or bias during the investigation of the case can be imputed
to the public prosecutor. On the other hand, the Court noted in Allado the
"undue haste in the filing of the Information and the inordinate interest of
the government" in pursuing the case; and in Salonga, ". . . the failure of the
prosecution to show that the petitioner was probably guilty of conspiring to
commit the crime, the initial disregard of petitioner's constitutional rights
[and] the massive and damaging publicity made against him." In other
words, while the respective sets of evidence before the prosecutors in
Allado and Salonga were "utterly insufficient" to support a finding of
probable cause, the same cannot be said of the present case.
We stress that Allado and Salonga constitute exceptions to the general rule
and may be invoked only if similar circumstances are clearly shown to
exist. But as the foregoing comparisons show, such similarities are absent in
the instant case. Hence, the rulings in the two aforementioned cases cannot
apply to it.
Motion Without Requisite Notice
One more thing. Petitioners aver that Private Respondent Cerbo did not give
them a copy of the Motion to Quash the Warrant of Arrest, which had been
issued against him, or a notice of the scheduled hearing. Thus, they contend,
Judge Valles should not have entertained such motion.
It is settled that every written motion in a trial court must be set for hearing
by the applicant and served with the notice of hearing thereof, in such a
manner as to ensure its receipt by the other party. The provisions on this
matter in Sections 4 and 5, Rule 15 of the Rules of Court, are categorical
and mandatory in character. Under Section 6 of the said rule, no motion
shall be acted upon by the court without proof of service thereof. The
rationale for this rule is simple: unless the movants set the time and the
place of hearing, the court will be unable to determine whether the adverse
parties agree or object to the motions, since the rules themselves do not fix
any period within which they may file their replies or oppositions.
The motion to quash the warrant of arrest in the present case being pro
forma, inasmuch as the requisite copy and notice were not duly served upon
the adverse party, the trial court had no authority to act on it.
Epilogue
In granting this petition, we are not prejudging the criminal case or the guilt
or innocence of Private Respondent Billy Cerbo. We are simply saying that,
as a general rule, if the information is valid on its face and there is no
showing of manifest error, grave abuse of discretion or prejudice on the part
of the public prosecutor, courts should not dismiss it for 'want of evidence,'
because evidentiary matters should be presented and heard during the trial.
The functions and duties of both the trial court and the public prosecutor in
"the proper scheme of things" in our criminal justice system should be
clearly understood.
The rights of the people from what could sometimes be an "oppressive"
exercise of government prosecutorial powers do need to be protected when
SYLLABUS
1.
CRIMINAL LAW; DANGEROUS DRUGS ACT OF 1972;
THE "OBJECTIVE TEST" IN BUY BUST OPERATIONS
DEMANDS THAT THE DETAILS OF THE PURPORTED
TRANSACTION MUST BE CLEARLY AND ADEQUATELY
SHOWN. We stress that the "objective" test in buy-bust operations
demands that the details of the purported transaction must be clearly and
adequately shown. This must start from the initial contact between the
poseur-buyer and the pusher, the offer to purchase, the promise or payment
of the consideration until the consummation of the sale by the delivery of
the illegal drug subject of the sale. The manner by which the initial contact
was made, whether or not through an informant, the offer to purchase the
drug, the payment of the "buy-bust" money, and the delivery of the illegal
drug, whether to the informant alone or the police officer, must be the
subject of strict scrutiny by courts to insure that law-abiding citizens are not
unlawfully induced to commit an offense. Criminals must be caught but not
at all cost. At the same time, however, examining the conduct of the police
should not disable courts into ignoring the accused's predisposition to
commit the crime. If there is overwhelming evidence of habitual
deliquency, recidivism or plain criminal proclivity, then this must also be
considered. Courts should look at all factors to determine the predisposition
of an accused to commit an offense in so far as they are relevant to
determine the validity of the defense of inducement.
2.
ID.;
ID.;
ID.;
NON-PRESENTATION
OF
THE
CONFIDENTIAL INFORMANT IS NOT FATAL TO THE
PROSECUTION'S CAUSE IN CASE AT BAR. In the case at bar, the
evidence shows that it was the confidential informant who initially
contacted accused-appellant Doria. At the pre-arranged meeting, the
informant was accompanied by PO3 Manlangit who posed as the buyer of
marijuana. PO3 Manlangit handed the marked money to accused-appellant
Doria as advance payment for one (1) kilo of marijuana. Accused-appellant
Doria was apprehended when he later returned and handed the brick of
marijuana to PO3 Manlangit. PO3 Manlangit testified in a frank,
spontaneous, straightforward and categorical manner and his credibility was
not crumpled on cross-examination by defense counsel. Moreover, PO3
Manlangit's testimony was corroborated on its material points by SPO1
reveals that the plastic wrapper was not colorless and transparent as to
clearly manifest its contents to a viewer. Each of the ten (10) bricks of
marijuana in the box was individually wrapped in old newspaper and placed
inside plastic bags white, pink or blue in color. PO3 Manlangit himself
admitted on cross-examination that the contents of the box could be items
other than marijuana. He did not know exactly what the box contained that
he had to ask appellant Gaddao about its contents. It was not immediately
apparent to PO3 Manlangit that the content of the box was marijuana. The
marijuana was not in plain view and its seizure without the requisite search
warrant was in violation of the law and the Constitution. It was fruit of the
poisonous tree and should have been excluded and never considered by the
trial court.
PANGANIBAN, J ., concurring opinion:
1.
REMEDIAL LAW; CRIMINAL PROCEDURE; VALID
ARRESTS WITHOUT WARRANTS; "IN FLAGRANTE DELICTO"
ARREST; IT IS NOT SUFFICIENT THAT THE SUSPECT
EXHIBITS UNUSUAL OR STRANGE ACTS OR SIMPLY APPEARS
SUSPICIOUS; THE BEHAVIOR OR CONDUCT OF THE PERSON
TO BE ARRESTED MUST BE CLEARLY INDICATIVE OF A
CRIMINAL ACT. Section 5(a) of Rule 113 is commonly referred to as
the rule on in flagrante delicto arrests. The accused is apprehended at the
very moment he is committing or attempting to commit or has just
committed an offense in the presence of the arresting officer. There are two
elements that must concur: (1) the person to be arrested must execute an
overt act indicating that he has just committed, is actually committing, or is
attempting to commit a crime; and (2) such overt act is done in the presence
or within the view of the arresting officer. It is not sufficient that the suspect
exhibits unusual or strange acts or simply appears suspicious. Thus, in the
recent en banc case of Malacat vs. Court of Appeals, the Court, through
now Chief Justice Hilario G. Davide, Jr., held that the fact that the
appellant's eyes were "moving very fast" and looking at every approaching
person were not sufficient to suspect him of "attempting to commit a
crime," much less to justify his arrest and subsequent search without a
warrant. The Court said that "there was nothing in [Malacat's] behavior or
conduct which could have reasonably elicited even mere suspicion" that he
was armed with a deadly weapon. In other words, there was no overt
physical act on the part of the suspect, positively indicating that he had just
committed a crime or was committing or attempting to commit one. There
was, therefore, no valid reason for the police officers to arrest or search
him. The same was true in People v. Mengote, where the arresting police
tried to justify the warrantless arrest of the appellant on the ground that he
appeared suspicious. The "suspicious" acts consisted of his darting eyes and
the fact that his hand was over his abdomen. The Court, rejecting such
justification, stated: "By no stretch of the imagination could it have been
inferred from these acts that an offense had just been committed, or was
actually being committed, or was at least being attempted in their presence."
In other words, the behavior or conduct of the person to be arrested must be
clearly indicative of a criminal act. If there is no outward indication at all
that calls for an arrest, the suspect cannot be validly apprehended under this
paragraph, notwithstanding a tip from an informant that he would at the
time be undertaking a felonious enterprise.
2.
ID.; ID.; ID.; "HOT PURSUIT" ARRESTS; ELEMENTS;
PERSONAL KNOWLEDGE OF FACTS INDICATING THAT THE
PERSON TO BE ARRESTED HAS COMMITTED AN OFFENSE;
WHILE THE LAW ENFORCERS MAY NOT ACTUALLY
WITNESS THE ACTS CONSTITUTING THE OFFENSE, THEY
MUST HAVE DIRECT KNOWLEDGE OR VIEW OF THE CRIME
RIGHT AFTER ITS COMMISSION; THEY MUST ALSO
PERCEIVED ACTS EXHIBITED BY THE PERSON TO BE
ARRESTED, INDICATING THAT HE PERPETRATED THE
CRIME. Section 5 (b) of Rule 113 is otherwise known as the rule on
"hot pursuit" arrests. Here, two elements must also concur prior to the
arrest: (1) an "offense has in fact just been committed," and (2) the arresting
officer "has personal knowledge of facts indicating that the person to be
arrested . . . committed [the offense]." In effecting this type of arrest, "it is
not enough that there is reasonable ground to believe that the person to be
arrested has committed a crime. A crime must in fact or actually have been
committed first. . . . The fact of the commission of the offense must be
undisputed." Thus, while the law enforcers may not actually witness the
execution of acts constituting the offense, they must have direct knowledge
or view of the crime right after its commission. They should know for a fact
that a crime was committed. AND they must also perceive acts exhibits by
was not there. Curious onlookers and kibitzers were, by that time,
surrounding them. When Violeta entered her house, three men were already
inside. Accused-appellant Doria, then still at the door, overheard one of the
men say that they found a carton box. Turning towards them, Doria saw a
box on top of the table. The box was open and had something inside. PO3
Manlangit ordered him and Violeta to go outside the house and board the
car. They were brought to police headquarters where they were
investigated.
Accused-appellant Doria further declared that his co-accused, Violeta
Gaddao, is the wife of his acquaintance, Totoy Gaddao. He said that he and
Totoy Gaddao sometimes drank together at the neighborhood store. This
closeness, however, did not extend to Violeta, Totoy's wife.
Accused-appellant Violeta Gaddao, a 35-year old rice vendor, claimed that
on December 5, 1995, she was at her house at Daang Bakal, Mandaluyong
City where she lived with her husband and five (5) children, namely, Arvy,
aged 10, Arjay, aged 8, the twins Raymond and Raynan, aged 5, and Jason,
aged 3. That day, accused-appellant woke up at 5:30 in the morning and
bought pan de sal for her children's breakfast. Her husband, Totoy, a
housepainter, had left for Pangasinan five days earlier. She woke her
children and bathed them. Her eldest son, Arvy, left for school at 6:45 A.M.
Ten minutes later, she carried her youngest son, Jayson, and accompanied
Arjay to school. She left the twins at home leaving the door open. After
seeing Arjay off, she and Jayson remained standing in front of the school
soaking in the sun for about thirty minutes. Then they headed for home.
Along the way, they passed the artesian well to fetch water. She was
pumping water when a man clad in short pants and denim jacket suddenly
appeared and grabbed her left wrist. The man pulled her and took her to her
house. She found out later that the man was PO3 Manlangit.
Inside her house were her co-accused Doria and three (3) other persons.
They asked her about a box on top of the table. This was the first time she
saw the box. The box was closed and tied with a piece of green straw. The
men opened the box and showed her its contents. She said she did not know
anything about the box and its contents.
Let a Commitment Order be issued for the transfer of accused DORIA from
the Mandaluyong City Jail to the New Bilibid Prisons, Muntinlupa City and
also for accused GADDAO for her transfer to the Correctional Institute for
Women, Mandaluyong City.
Let the entire records of this case be forwarded immediately to the Supreme
Court for mandatory review.
SO ORDERED."
Before this Court, accused-appellant Doria assigns two errors, thus:
"I
THE COURT A QUO GRAVELY ERRED IN GIVING WEIGHT TO
THE TESTIMONY OF THE WITNESSES FOR THE PROSECUTION
WHEN THEIR TESTIMONIES WERE SHOT WITH DISCREPANCIES,
INCONSISTENCIES AND THAT THE CORPUS DELICTI OF THE
MARIJUANA ALLEGEDLY TAKEN FROM APPELLANT WAS NOT
POSITIVELY IDENTIFIED BY THE POSEUR-BUYER.
II
THE COURT A QUO GRAVELY ERRED IN ADMITTING AS
EVIDENCE THE MARIJUANA FRUITINGS FOUND INSIDE THE
CARTON BOX AS THESE WERE OBTAINED THROUGH A
WARRANTLESS SEARCH AND DOES NOT COME WITHIN THE
PLAIN VIEW DOCTRINE."
Accused-appellant Violeta Gaddao contends:
"I
THE LOWER COURT ERRED IN FINDING APPELLANT GUILTY
DESPITE THE INCREDIBILITY OF THE POLICE VERSION OF THE
MANNER THE ALLEGED BUY-BUST WAS CONDUCTED.
II
THE PNP OFFICERS' VERSIONS AS TO WHERE THE BUY-BUST
MONEY CAME FROM ARE INCONSISTENT WITH ONE ANOTHER
AND ALSO REEKS WITH INCREDIBILITY.
III
commit the offense charged, his state of mind and inclination before his
initial exposure to government agents. All relevant facts such as the
accused's mental and character traits, his past offenses, activities, his
eagerness in committing the crime, his reputation, etc., are considered to
assess his state of mind before the crime. The predisposition test
emphasizes the accused's propensity to commit the offense rather than the
officer's misconduct and reflects an attempt to draw a line between a "trap
for the unwary innocent and the trap for the unwary criminal." If the
accused was found to have been ready and willing to commit the offense at
any favorable opportunity, the entrapment defense will fail even if a police
agent used an unduly persuasive inducement. Some states, however, have
adopted the "objective" test. This test was first authoritatively laid down in
the case of Grossman v. State rendered by the Supreme Court of Alaska.
Several other states have subsequently adopted the test by judicial
pronouncement or legislation. Here, the court considers the nature of the
police activity involved and the propriety of police conduct. The inquiry is
focused on the inducements used by government agents, on police conduct,
not on the accused and his predisposition to commit the crime. For the goal
of the defense is to deter unlawful police conduct. The test of entrapment is
whether the conduct of the law enforcement agent was likely to induce a
normally law-abiding person, other than one who is ready and willing, to
commit the offense; for purposes of this test, it is presumed that a lawabiding person would normally resist the temptation to commit a crime that
is presented by the simple opportunity to act unlawfully. Official conduct
that merely offers such an opportunity is permissible, but overbearing
conduct, such as badgering, cajoling or importuning, or appeals to
sentiments such as pity, sympathy, friendship or pleas of desperate illness,
are not. Proponents of this test believe that courts must refuse to convict an
entrapped accused not because his conduct falls outside the legal norm but
rather because, even if his guilt has been established, the methods employed
on behalf of the government to bring about the crime "cannot be
countenanced." To some extent, this reflects the notion that the courts
should not become tainted by condoning law enforcement improprieties.
Hence, the transactions leading up to the offense, the interaction between
the accused and law enforcement officer and the accused's response to the
officer's inducements, the gravity of the crime, and the difficulty of
induced him to commit the crime in order to prosecute him. Smith, the BIR
agent, testified that Phelps' apprehension came after he overheard Phelps in
a saloon say that he liked smoking opium on some occasions. Smith's
testimony was disregarded. We accorded significance to the fact that it was
Smith who went to the accused three times to convince him to look for an
opium den where both of them could smoke this drug. The conduct of the
BIR agent was condemned as "most reprehensible." In People v. Abella, we
acquitted the accused of the crime of selling explosives after examining the
testimony of the apprehending police officer who pretended to be a
merchant. The police officer offered "a tempting price, . . . a very high one"
causing the accused to sell the explosives. We found that there was
inducement, "direct, persistent and effective" by the police officer and that
outside of his testimony, there was no evidence sufficient to convict the
accused. In People v. Lua Chu and Uy Se Tieng, we convicted the accused
after finding that there was no inducement on the part of the law
enforcement officer. We stated that the Customs secret serviceman
smoothed the way for the introduction of opium from Hongkong to Cebu
after the accused had already planned its importation and ordered said drug.
We ruled that the apprehending officer did not induce the accused to import
opium but merely entrapped him by pretending to have an understanding
with the Collector of Customs of Cebu to better assure the seizure of the
prohibited drug and the arrest of the surreptitious importers.
that class of cases where the offense is one of a kind habitually committed,
and the solicitation merely furnishes evidence of a course of conduct. Mere
deception by the detective will not shield defendant, if the offense was
committed by him, free from the influence or instigation of the detective.
The fact that an agent of an owner acts as a supposed confederate of a thief
is no defense to the latter in a prosecution for larceny, provided the original
design was formed independently of such agent; and where a person
approached by the thief as his confederate notifies the owner or the public
authorities, and, being authorized by them to do so, assists the thief in
carrying out the plan, the larceny is nevertheless committed. It is generally
held that it is no defense to a prosecution for an illegal sale of liquor that the
purchase was made by a 'spotter,' detective, or hired informer; but there are
cases holding the contrary."
The distinction above-quoted was reiterated in two (2) decisions of the
Court of Appeals. In People v. Galicia, the appellate court declared that
"there is a wide difference between entrapment and instigation." The
instigator practically induces the would-be accused into the commission of
the offense and himself becomes a co-principal. In entrapment, ways and
means are resorted to by the peace officer for the purpose of trapping and
capturing the lawbreaker in the execution of his criminal plan. In People v.
Tan Tiong, 68 the Court of Appeals further declared that "entrapment is no
bar to the prosecution and conviction of the lawbreaker."
It was also in the same case of People v. Lua Chu and Uy Se Tieng we first
laid down the distinction between entrapment vis-a-vis instigation or
inducement. Quoting 16 Corpus Juris, we held:
peddlers and gamblers also accept payment from these persons who deceive
the police. The informant himself may be a drug addict, pickpocket, pimp,
or other petty criminal. For whatever noble purpose it serves, the spectacle
that government is secretly mated with the underworld and uses underworld
characters to help maintain law and order is not an inspiring one. Equally
odious is the bitter reality of dealing with unscrupulous, corrupt and
exploitative law enforcers. Like the informant, unscrupulous law enforcers'
motivations are legion harassment, extortion, vengeance, blackmail, or a
desire to report an accomplishment to their superiors. This Court has taken
judicial notice of this ugly reality in a number of cases 84 where we
observed that it is a common modus operandi of corrupt law enforcers to
prey on weak and hapless persons, particularly unsuspecting provincial
hicks. The use of shady underworld characters as informants, the relative
ease with which illegal drugs may be planted in the hands or property of
trusting and ignorant persons, and the imposed secrecy that inevitably
shrouds all drug deals have compelled this Court to be extra-vigilant in
deciding drug cases. Criminal activity is such that stealth and strategy,
although necessary weapons in the arsenal of the police officer, become as
objectionable police methods as the coerced confession and the unlawful
search. As well put by the Supreme Court of California in People v.
Barraza,
"[E]ntrapment is a facet of a broader problem. Along with illegal search and
seizures, wiretapping, false arrest, illegal detention and the third degree, it is
a type of lawless enforcement. They all spring from common motivations.
Each is a substitute for skillful and scientific investigation. Each is
condoned by the sinister sophism that the end, when dealing with known
criminals of the 'criminal classes,' justifies the employment of illegal
means."
It is thus imperative that the presumption, juris tantum, of regularity in the
performance of official duty by law enforcement agents raised by the
Solicitor General be applied with studied restraint. This presumption should
not by itself prevail over the presumption of innocence and the
constitutionally-protected rights of the individual. It is the duty of courts to
preserve the purity of their own temple from the prostitution of the criminal
law through lawless enforcement. Courts should not allow themselves to be
Your Honor, I must protest the line of questioning considering the fact that
we are now dealing with eleven items when the question posed to the
witness was what was handed to him by Jun?
COURT
So be it.
ATTY. ARIAS
May we make it of record that the witness is pulling out item after
item from the box showed to him and brought in front of him.
COURT
Noted.
Q
Now tell the court, how did you know that those are the eleven
bricks?
xxx
xxx
xxx.
A
I have markings on these eleven bricks, sir.
Q
Point to the court, where are those markings?
A
Here, sir, my signature, my initials with the date, sir.
PROSECUTOR
Witness showed a white wrapper and pointing to CLM and the
signature.
Q
Whose signature is that?
ATTY. VALDEZ
Your Honor, may we just limit the inquiry to the basic question of
the fiscal as to what was handed to him by the accused Jun, your Honor?
PROSECUTOR
Your Honor, there is already a ruling by this Honorable Court,
your Honor, despite reconsideration.
COURT
Let the prosecution do its own thing and leave the appreciation of
what it has done to the court.
ATTY. VALDEZ
We submit, your Honor.
A
This brick is the one that was handed to me by the suspect Jun, sir.
COURT
Why do you know that that is the thing? Are you sure that is not
"tikoy?"
A
Yes, your Honor.
Q
What makes you so sure?
A
I am sure that this is the one, your Honor. This is the Exhibit "A"
which I marked before I brought it to the PCCL, your Honor.
Q
What are you sure of ?
A
I am sure that this is the brick that was given to me by one alias
Jun, sir.
Q
What makes you so sure?
A
Because I marked it with my own initials before giving it to the
investigator and before we brought it to the PCCL, your Honor.
xxx
xxx
xxx.
PROSECUTOR
May we request that a tag be placed on this white plastic bag and
this be marked as Exhibit "D?"
COURT
Mark it as Exhibit "D."
Q
To stress, who made the entries of this date, Exhibit "A" then the
other letters and figures on this plastic?
A
This one, the signature, I made the signature, the date and the time
and this Exhibit "A."
Q
How about this one?
A
I don't know who made this marking, sir.
PROSECUTOR
May it be of record that this was just entered this morning.
Q
I am asking you about this "itim" and not the "asul."
A
This CLM, the date and the time and the Exhibit "A," I was the one
who made these markings, sir.
PROSECUTOR
May we place on record that the one that was enclosed. . .
ATTY. ARIAS
Your Honor, there are also entries included in that enclosure where
it appears D-394-95, also Exhibit "A," etc. etc., that was not pointed to by
the witness. I want to make it of record that there are other entries included
in the enclosure. LexLib
COURT
Noted. The court saw it.
Q
Now, and this alleged brick of marijuana with a piece of paper,
with a newspaper wrapping with a piece of paper inside which reads: "D394-95, Exhibit A, 970 grams SSL" be marked as our Exhibit "D-2?"
COURT
Tag it. Mark it.
Q
This particular exhibit that you identified, the wrapper and the
contents was given to you by whom?
A
It was given to me by suspect Jun, sir.
Q
Whereat?
A
At the corner of Boulevard and Jacinto St., sir.
Q
How about the other items that you were able to recover?
xxx
xxx
xxx.
A
These other marijuana bricks, because during our follow-up,
because according to Jun the money which I gave him was in the hands of
Neneth and so we proceeded to the house of Neneth sir.
xxx
xxx
xxx."
(b)
When an offense has in fact just been committed, and he has
personal knowledge of facts indicating that the person to be arrested has
committed it; and
(c)
When the person to be arrested is a prisoner who escaped from a
penal establishment or place where he is serving final judgment or
temporarily confined while his case is pending, or has escaped while being
transferred from one confinement to another.
xxx
xxx
xxx."
Under Section 5 (a), as above-quoted, a person may be arrested without a
warrant if he "has committed, is actually committing, or is attempting to
commit an offense." Appellant Doria was caught in the act of committing an
offense. When an accused is apprehended in flagrante delicto as a result of a
buy-bust operation, the police are not only authorized but duty-bound to
arrest him even without a warrant.
The first brick identified by PO3 Manlangit was the brick of marijuana
"given to [him] by suspect Jun" at the corner of Boulevard and Jacinto
Streets. This brick, including the newspaper and white plastic wrapping
were marked as Exhibits "D," "D-1," and "D-2" and described as weighing
nine hundred seventy (970) grams.
The warrantless arrest of appellant Gaddao, the search of her person and
residence, and the seizure of the box of marijuana and marked bills are
different matters.
We also reject appellant's submission that the fact that PO3 Manlangit and
his team waited for almost one hour for appellant Doria to give them the
one kilo of marijuana after he "paid" P1,600.00 strains credulity. Appellant
cannot capitalize on the circumstance that the money and the marijuana in
the case at bar did not change hands under the usual "kaliwaan" system.
There is no rule of law which requires that in "buy-bust" operations there
must be a simultaneous exchange of the marked money and the prohibited
drug between the poseur-buyer and the pusher. Again, the decisive fact is
that the poseur-buyer received the marijuana from the accused-appellant.
We also hold that the warrantless arrest of accused-appellant Doria is not
unlawful. Warrantless arrests are allowed in three instances as provided by
Section 5 of Rule 113 of the 1985 Rules on Criminal Procedure, to wit:
"Sec. 5. Arrest without warrant; when lawful. A peace officer or a
private person may, without a warrant, arrest a person:
(a)
When, in his presence, the person to be arrested has committed, is
actually committing, or is attempting to commit an offense;
Q
As far as you can see, she was just inside her house?
A
I saw her outside, sir.
Q
She was fetching water as a matter of fact?
A
She was 'sa bandang poso.'
Q
Carrying a baby?
A
No, sir.
Q
At that particular time when you reached the house of Aling
Neneth and saw her outside the house, she was not committing any crime,
she was just outside the house?
A
No, sir.
Q
She was not about to commit any crime because she was just
outside the house doing her daily chores. Am I correct?
A
I just saw her outside, sir.
Q
And at that point in time you already wanted to arrest her. That is
correct, is it not?
A
Yes, sir.
Q
Now, if any memory of your testimony is correct, according to you
SPO1 Manlangit approached her?
A
PO3 Manlangit, sir.
Q
You did not approach her because PO3 Manlangit approached her?
A
Yes, sir.
Q
During all the time that this confrontation, arrest or whatever by
SPO3 Manlangit was taking place, you were just in the side lines?
A
I was just watching, sir.
Q
So you were just an on-looker to what Manlangit was doing,
because precisely according to you your role in this buy-bust operation was
as a back-up?
A
Yes, sir.
Q
Who got the alleged marijuana from inside the house of Mrs.
Neneth?
A
PO3 Manlangit, sir.
Q
Manlangit got the marijuana?
A
Yes, sir.
Q
And the money from Aling Neneth?
A
I don't know, sir.
Q
You did not even know who got the money from Aling Neneth?
PROSECUTOR:
There is no basis for this question, your Honor. Money, there's no testimony
on that.
ATTY. VALDEZ:
I was asking him precisely.
PROSECUTOR:
No basis.
COURT:
Sustained.
Q
Alright. I will ask you a question and I expect an honest answer.
According to the records, the amount of P1,600.00 was recovered from the
person of Aling Neneth. That's right?
A
Yes, sir, the buy-bust money.
Q
What you are now saying for certain and for the record is the fact
that you were not the one who retrieved the money from Aling Neneth, it
was Manlangit maybe?
A
I saw it, sir.
Q
It was Manlangit who got the money from Aling Neneth?
A
The buy-bust money was recovered from the house of Aling
Neneth, sir.
Q
It was taken from the house of Aling Neneth, not from the person
of Aling Neneth. Is that what you are trying to tell the Court?
A
No, sir.
ATTY. VALDEZ:
I am through with this witness, your Honor."
Accused-appellant Gaddao was not caught red-handed during the buy-bust
operation to give ground for her arrest under Section 5 (a) of Rule 113. She
was not committing any crime. Contrary to the finding of the trial court,
there was no occasion at all for appellant Gaddao to flee from the policemen
to justify her arrest in "hot pursuit." In fact, she was going about her daily
chores when the policemen pounced on her.
Neither could the arrest of appellant Gaddao be justified under the second
instance of Rule 113. "Personal knowledge" of facts in arrests without
warrant under Section 5 (b) of Rule 113 must be based upon "probable
cause" which means an "actual belief or reasonable grounds of suspicion."
The grounds of suspicion are reasonable when, in the absence of actual
belief of the arresting officers, the suspicion that the person to be arrested is
probably guilty of committing the offense, is based on actual facts, i.e.,
supported by circumstances sufficiently strong in themselves to create the
probable cause of guilt of the person to be arrested. A reasonable suspicion
therefore must be founded on probable cause, coupled with good faith on
the part of the peace officers making the arrest.
Accused-appellant Gaddao was arrested solely on the basis of the alleged
identification made by her co-accused. PO3 Manlangit, however, declared
in his direct examination that appellant Doria named his co-accused in
response to his (PO3 Manlangit's) query as to where the marked money
was. Appellant Doria did not point to appellant Gaddao as his associate in
the drug business, but as the person with whom he left the marked bills.
This identification does not necessarily lead to the conclusion that appellant
Gaddao conspired with her co-accused in pushing drugs. Appellant Doria
may have left the money in her house, with or without her knowledge, with
or without any conspiracy. Save for accused-appellant Doria's word, the
Narcom agents had no reasonable grounds to believe that she was engaged
in drug pushing. If there is no showing that the person who effected the
warrantless arrest had, in his own right, knowledge of facts implicating the
person arrested to the perpetration of a criminal offense, the arrest is legally
objectionable.
Since the warrantless arrest of accused-appellant Gaddao was illegal, it
follows that the search of her person and home and the subsequent seizure
of the marked bills and marijuana cannot be deemed legal as an incident to
her arrest. This brings us to the question of whether the trial court correctly
found that the box of marijuana was in plain view, making its warrantless
seizure valid.
Objects falling in plain view of an officer who has a right to be in the
position to have that view are subject to seizure even without a search
warrant and may be introduced in evidence. The "plain view" doctrine
applies when the following requisites concur: (a) the law enforcement
officer in search of the evidence has a prior justification for an intrusion or
is in a position from which he can view a particular area; (b) the discovery
of the evidence in plain view is inadvertent; (c) it is immediately apparent to
the officer that the item he observes may be evidence of a crime, contraband
or otherwise subject to seizure. The law enforcement officer must lawfully
make an initial intrusion or properly be in a position from which he can
particularly view the area. In the course of such lawful intrusion, he came
inadvertently across a piece of evidence incriminating the accused. The
object must be open to eye and hand and its discovery inadvertent.
It is clear that an object is in plain view if the object itself is plainly exposed
to sight. The difficulty arises when the object is inside a closed container.
Where the object seized was inside a closed package, the object itself is not
in plain view and therefore cannot be seized without a warrant. However, if
the package proclaims its contents, whether by its distinctive configuration,
its transparency, or if its contents are obvious to an observer, then the
contents are in plain view and may be seized. In other words, if the package
is such that an experienced observer could infer from its appearance that it
contains the prohibited article, then the article is deemed in plain view. It
must be immediately apparent to the police that the items that they observe
may be evidence of a crime, contraband or otherwise subject to seizure.
PO3 Manlangit, the Narcom agent who found the box, testified on crossexamination as follows:
"ATTY. VALDEZ:
So here we are. When you and Badua arrived, Aling Neneth was inside the
house?
A
Yes, sir.
Q
Badua demanded from Aling Neneth the buy-bust money?
A
Yes, sir.
Q
At that particular instance, you saw the carton?
A
Yes, sir.
Q
This carton, according to you was under a table?
A
Yes, sir, dining table.
Q
I noticed that this carton has a cover?
A
Yes, sir.
Q
I ask you were the flaps of the cover raised or closed?
A
It was open, sir. Not like that.
COURT
Go down there. Show to the court.
INTERPRETER
Witness went down the witness stand and approached a carton box.
A
Like this, sir.
PROSECUTOR
Can we describe it?
ATTY. VALDEZ
Yes.
PROSECUTOR
One flap is inside and the other flap is standing and with the contents
visible.
COURT
Noted.
Q
At this juncture, you went inside the house?
A
Yes, sir.
Q
And got hold of this carton?
A
Yes, sir.
Q
Did you mention anything to Aling Neneth?
A
I asked her, what's this . . .
Q
No, no. no. did you mention anything to Aling Neneth before
getting the carton?
A
I think it was Badua who accosted Aling Neneth regarding the
buy-bust money and he asked "Sa iyo galing ang marijuanang ito, nasaan
ang buy-bust money namin?" sir.
Q
Making reference to the marijuana that was given by alias Jun?
A
Yes, sir.
Q
When you proceeded to take hold of this carton, Aling Neneth was
not yet frisked, is it not [sic]?
A
I just don't know if she was frisked already by Badua, sir.
Q
Who got hold of this?
A
I was the one, sir.
Q
You were the one who got this?
A
Yes, sir.
Q
At that particular point in time, you did not know if the alleged
buy-bust money was already retrieved by Badua?
A
Yes, sir.
Q
You went inside the house?
A
Yes, sir.
Q
You did not have any search warrant?
A
Yes, sir.
Q
In fact, there was nothing yet as far as you were concerned to
validate the fact that Mrs. Gadao was in possession of the buy-bust money
because according to you, you did not know whether Badua already
retrieved the buy-bust money from her?
A
Yes, sir.
Q
How far was this from the door?
A
Two and a half meters from the door, sir. It was in plain view.
Q
Under the table according to you?
A
Yes, sir, dining table.
Q
Somewhere here?
A
It's far, sir.
PROSECUTOR
May we request the witness to place it, where he saw it?
A
Here, sir.
Q
What you see is a carton?
A
Yes, sir, with plastic.
Q
Marked "Snow Time Ice Pop?"
A
Yes, sir.
Q
With a piece of plastic visible on top of the carton?
A
Yes, sir.
Q
That is all that you saw?
A
Yes, sir.
PROSECUTOR
For the record, your Honor. . .
Q
You were only able to verify according to you . . .
PROSECUTOR
Panero, wait. Because I am objecting to the words a piece of plastic. By
reading it. . .
ATTY. VALDEZ
That's a piece of plastic.
PROSECUTOR
By reading it, it will connote . . . this is not a piece of plastic.
ATTY. VALDEZ
What is that? What can you say, Fiscal? I'm asking you?
PROSECUTOR
With due respect, what I am saying is, let's place the size of the plastic. A
piece of plastic may be big or a small one, for record purposes.
COURT
Leave that to the court.
PROSECUTOR
Leave that to the court.
Q
The only reason according to you, you were able to . . . Look at
this, no even Superman . . . I withdraw that. Not even a man with very kin
[sic] eyes can tell the contents here. And according to the Court, it could be
"tikoy," is it not [sic]?
A
Yes, sir.
Q
Siopao?
A
Yes, sir.
Q
Canned goods?
A
Yes, sir.
Q
It could be ice cream because it says Snow Pop, Ice Pop?
A
I presumed it was also marijuana because it may . . .
Q
I am not asking you what your presumptions are. I'm asking you
what it could possibly be.
A
It's the same plastic, sir.
ATTY. VALDEZ:
I'm not even asking you that question so why are you voluntarily saying the
information. Let the prosecutor do that for you.
COURT:
Continue. Next question.
xxx
xxx
xxx."
PO3 Manlangit and the police team were at appellant Gaddao's house
because they were led there by appellant Doria. The Narcom agents testified
that they had no information on appellant Gaddao until appellant Doria
named her and led them to her. Standing by the door of appellant Gaddao's
house, PO3 Manlangit had a view of the interior of said house. Two and a
half meters away was the dining table and underneath it was a carton box.
The box was partially open and revealed something wrapped in plastic.
In his direct examination, PO3 Manlangit said that he was sure that the
contents of the box were marijuana because he himself checked and marked
Section 4 of Republic Act No. 6425, the Dangerous Drugs Act of 1972, as
amended by Section 13 of Republic Act No. 7659 punishes the "sale,
administration, delivery, distribution and transportation of a prohibited
drug" with the penalty of reclusion perpetua to death and a fine ranging
from P500,000.00 to P10 million, to wit:
"Sec. 4. Sale, Administration, Delivery, Distribution and Transportation of
Prohibited Drugs. The penalty of reclusion perpetua to death, and a fine
ranging from five hundred thousand pesos to ten million pesos shall be
imposed upon any person who, unless authorized by law, shall sell,
administer, deliver, give away to another, distribute, dispatch in transit or
transport any prohibited drug, or shall act as a broker in any of such
transactions.
xxx
xxx
xxx."
In every prosecution for illegal sale of dangerous drugs, what is material is
the submission of proof that the sale took place between the poseur-buyer
and the seller thereof and the presentation of the drug, i.e., the corpus
delicti, as evidence in court. 141 The prosecution has clearly established the
fact that in consideration of P1,600.00 which he received, accused-appellant
Doria sold and delivered nine hundred seventy (970) grams of marijuana to
PO3 Manlangit, the poseur-buyer. The prosecution, however, has failed to
prove that accused-appellant Gaddao conspired with accused-appellant
Doria in the sale of said drug. There being no mitigating or aggravating
circumstances, the lower penalty of reclusion perpetua must be imposed.
IN VIEW WHEREOF, the decision of the Regional Trial Court, Branch
156, Pasig City acting as a Special Court in Criminal Case No. 3307-D is
reversed and modified as follows:
1.
Accused-appellant Florencio Doria y Bolado is sentenced to suffer
the penalty of reclusion perpetua and to pay a fine of five hundred thousand
pesos (P500,000.00).
2.
Accused-appellant Violeta Gaddao y Catama is acquitted.
SO ORDERED.
Davide, Jr., C.J., Romero, Bellosillo, Melo, Vitug, Kapunan, Mendoza,
Martinez, Quisumbing, Purisima, Pardo, Buena and Gonzaga-Reyes, JJ.,
concur.
Panganiban, J., please see concurring opinion.
1.
In Flagrante Delicto Arrests
Section 5 (a) is commonly referred to as the rule on in flagrante delicto
arrests. The accused is apprehended at the very moment he is committing or
attempting to commit or has just committed an offense in the presence of
the arresting officer. There are two elements that must concur: (1) the
person to be arrested must execute an overt act indicating that he has just
committed, is actually committing, or is attempting to commit a crime; and
(2) such overt act is done in the presence or within the view of the arresting
officer.
It is not sufficient that the suspect exhibits unusual or strange acts or simply
appears suspicious. Thus, in the recent en banc case of Malacat v. Court of
Appeals, the Court, through now Chief Justice Hilario G. Davide Jr., held
that the fact that the appellant's eyes were "moving very fast" and looking at
every approaching person were not sufficient to suspect him of "attempting
to commit a crime," much less to justify his arrest and subsequent search
without a warrant. The Court said that "there was nothing in [Malacat's]
behavior or conduct which could have reasonably elicited even mere
suspicion" that he was armed with a deadly weapon. In other words, there
was no overt physical act on the part of the suspect, positively indicating
that he had just committed a crime or was committing or attempting to
commit one. There was, therefore, no valid reason for the police officers to
arrest or search him.
The same was true in People v. Mengote, where the arresting police tried to
justify the warrantless arrest of the appellant on the ground that he appeared
suspicious. The "suspicious" acts consisted of his darting eyes and the fact
that his hand was over his abdomen. The Court, rejecting such justification,
stated: "By no stretch of the imagination could it have been inferred from
these acts that an offense had just been committed, or was actually being
committed, or was at least being attempted in their presence."
In other words, the behavior or conduct of the person to be arrested must be
clearly indicative of a criminal act. If there is no outward indication at all
that calls for an arrest, the suspect cannot be validly apprehended under this
paragraph, notwithstanding a tip from an informant that he would at the
time be undertaking a felonious enterprise.
Thus, while the law enforcers may not actually witness the execution of acts
constituting the offense, they must have direct knowledge or view of the
crime right after its commission. They should know for a fact that a crime
was committed. AND they must also perceive acts exhibited by the person
to be arrested, indicating that he perpetrated the crime. Again, mere
intelligence information that the suspect committed the crime will not
suffice. The arresting officers themselves must have personal knowledge of
facts showing that the suspect performed the criminal act. Personal
knowledge means actual belief or reasonable grounds of suspicion, based on
actual facts, that the person to be arrested is probably guilty of committing
the crime.
In several cases wherein third persons gave law enforcers information that
certain individuals or groups were engaged in some felonious activities,
such relayed information was not deemed equivalent to personal knowledge
of the lawmen. In People v. Burgos, a certain Masamlok informed police
authorities that the appellant was involved in subversive activities. Acting
on the strength of such information and without securing a judicial warrant,
the police proceeded to appellant's house to arrest him. There, they also
allegedly recovered an unlicensed firearm and subversive materials.
The Court held that there was no personal knowledge on the part of the
arresting officers, since the information came in its entirety from
Masamlok, a civilian. We pointed out that at the time of his arrest, appellant
was not in actual possession of any firearm or subversive document; neither
was he committing a subversive act. His warrantless arrest, therefore, could
not be allowed under any of the instances in Rule 113, Section 6 (now 5) of
the Rules of Court.
Also in Encinada, the appellant was arrested without a warrant, on the
justification that the arresting officer "received an intelligence report that
appellant who was carrying marijuana would arrive the next morning
aboard M/V Sweet Pearl." The Court categorically stated that such "[r]aw
intelligence information is not a sufficient ground for a warrantless arrest."
And since, at the time of his arrest, no act or fact demonstrating a felonious
enterprise could be ascribed to appellant, there was no valid justification for
his arrest.
5.
Search With Consent
Waiver of any objection to the unreasonableness or invalidity of a search is
a recognized exception to the rule against a warrantless search. 24 The
consent to the search, however, must be express, knowing and voluntary. A
search based merely on implied acquiescence is not valid, because such
consent is not within the purview of the constitutional guarantee, but only a
passive conformity to the search given under intimidating and coercive
circumstances.
In People v. Lacerna, it was held that the otherwise prohibited intrusive
search of appellant's plastic bag was validated by the express consent of
appellant himself, who was observed to be "urbanized in mannerism and
speech," and who moreover stated that he had nothing to hide and had done
nothing wrong.
6.
"Stop and Frisk"
The "stop and frisk" concept is of American origin, the most notable case
thereon being Terry v. Ohio. The idea is that a police officer may after
properly introducing himself and making initial inquiries, approach and
restrain a person manifesting unusual and suspicious conduct, in order to
check, the latter's outer clothing for possibly concealed weapons. The strict
manner in which this notion should be applied has been laid down as
follows:
". . . where a police officer observes unusual conduct which leads him
reasonably to conclude in the light of his experience that criminal activity
may be afoot and that the persons with whom he is dealing may be armed
and presently dangerous, where in the course of investigating this behavior,
he identifies himself as a policeman and makes reasonable inquiries, and
where nothing in the initial stages of the encounter serves to dispel his
reasonable fear for his own and others' safety, he is entitled for the
protection of himself and others in the area to conduct a carefully limited
search of the outer clothing of such persons in an attempt to discover
weapons which might be used to assault him."
As in the warrantless arrest of a person reasonably suspected of having just
committed a crime, mere suspicious behavior would not call for a "stop and
frisk." There must be a genuine reason, in accordance with the police
2.
REMEDIAL LAW; CRIMINAL PROCEDURE; ARREST
WITHOUT WARRANT; WHEN LAWFUL; ARRESTING OFFICER
MUST HAVE PERSONAL KNOWLEDGE OF THE FACT. Under
Section 6(a) of rule 113, the officer arresting a person who has just
committed, is committing, or is about to commit an offense must have
personal knowledge of that fact. The offense must also be committed in his
presence or within his view. (Sayo v. Chief of Police, 80 Phil. 859). There is
no such personal knowledge in this case. Whatever knowledge was
possessed by the arresting officers, it came in its entirety from the
information furnished by Cesar Masamlok. The location of the firearm was
given by the appellant's wife. At the time of the appellant's arrest, he was
not in actual possession of any firearm or subversive document. Neither was
he committing any act which could be described as subversive. He was, in
fact, plowing his field at the time of the arrest.
3.
CONSTITUTIONAL LAW; BILL OF RIGHTS; RIGHT OF
PERSONS TO BE SECURE AGAINST ANY UNREASONABLE
SEIZURE; EXCEPTIONS; SHOULD BE STRICTLY CONSTRUED;
REASON. The right of a person to be secure against any unreasonable
seizure of his body and any deprivation of his liberty is a most basic and
fundamental one. The statute or rule which allows exceptions to the
requirement of warrants of arrest is strictly construed. Any exception must
clearly fall within the situations when securing a warrant would be absurd
or is manifestly unnecessary as provided by the Rule. We cannot liberally
construe the rule on arrest without warrant or extend its application beyond
the cases specifically provided by law. To do so would infringe upon
personal liberty and set back a basic right so often violated and so deserving
of full protection.
4.
REMEDIAL LAW; CRIMINAL PROCEDURE; ARREST
WITHOUT WARRANT; ACTUAL COMMISSION OF CRIME;
ESSENTIAL PRECONDITION. In arrests without a warrant under
Section 6(b), however, it is not enough that there is reasonable ground to
believe that the person to be arrested has committed a crime. A crime must
in fact or actually have been committed first. That a crime has actually been
committed is an essential precondition. It is not enough to suspect that a
crime may have been committed. The fact of the commission of the offense
must be undisputed. The test of reasonable ground applies only to the
identity of the perpetrator.
5.
ID.; ID.; ID.; WAIVER; REQUISITES. It cannot be
presumed that there was a waiver, or that consent was given by the accused
to be searched simply because he failed to object. To constitute a waiver, it
must appear first that the right exists; secondly, that the person involved had
knowledge, actual or constructive, of the existence of such a right; and
lastly, that said person had an actual intention to relinquish the right (Pasion
Vda. de Garcia v. Locsin, 65 Phil. 689). The fact that the accused failed to
object to the entry into his house does not amount to a permission to make a
search therein (Magoncia v. Palacio, 80 Phil. 770). As pointed out by
Justice Laurel in the case of Pasion Vda. de Garcia v. Locsin (supra): ". . .
As the constitutional guaranty is not dependent upon any affirmative act of
the citizen, the courts do not place the citizen in the position of either
contesting an officer's authority by force, or waiving his constitutional
rights; but instead they hold that a peaceful submission to a search or
seizure is not a consent or an invitation thereto, but is merely a
demonstration of regard for the supremacy of the law. (56 C.J., pp. 1180,
1181)."
6.
CONSTITUTIONAL LAW; BILL OF RIGHTS; RIGHT OF
PERSONS TO BE SECURE AGAINST UNREASONABLE
SEARCHES AND SEIZURE; WAIVER THEREOF NOT
PRESUMED. We apply the rule that: "courts indulge every reasonable
presumption against waiver of fundamental constitutional rights and that we
do not presume acquiescence in the loss of fundamental rights." (Johnson v.
Zerbst, 304 U.S. 458).
7.
ID.; ID.; ID.; DOCUMENTS OBTAINED IN VIOLATION
THEREOF, INADMISSIBLE AS EVIDENCE. Considering that the
questioned firearm and the alleged subversive documents were obtained in
violation of the accused's constitutional rights against unreasonable searches
and seizures, it follows that they are inadmissible as evidence.
8.
ID.; ID.; RIGHT AGAINST SELF-INCRIMINATION;
EVIDENCE
OBTAINED
IN
VIOLATION
THEREOF
INADMISSIBLE;
ADMISSIONS
MADE
BY
ARRESTING
OFFICERS CANNOT BE USED AGAINST ACCUSED. In proving
ownership of the questioned firearm and alleged subversive documents, the
prosecution presented the two arresting officers who testified that the
accused readily admitted ownership of the gun after his wife pointed to the
place where it was buried. The officers stated that it was the accused
himself who voluntarily pointed to the place where the alleged subversive
documents were hidden. Assuming this to be true, it should be recalled that
the accused was never informed of his constitutional rights at the time of his
arrest. So that when the accused allegedly admitted ownership of the gun
and pointed to the location of the subversive documents after questioning,
the admissions were obtained in violation of the constitutional right against
self-incrimination under Sec. 20 of Art. IV of the Bill of Rights which
provides: "No person shall be compelled to be a witness against himself.
Any person under investigation for the commission of an offense shall have
the right to remain silent and to counsel, and to be informed of such right. . .
." The Constitution itself mandates that any evidence obtained in violation
of this right is inadmissible in evidence. Consequently, the testimonies of
the arresting officers as to the admissions made by the appellant cannot be
used against him.
9.
REMEDIAL LAW; EVIDENCE; RULE THAT FINDINGS
OF FACTS OF TRIAL COURT GENERALLY GIVEN GREAT
RESPECT; NOT ABSOLUTE; REASON. We are not necessarily
bound by the credibility which the trial court attaches to a particular
witness. As stated in People v. Cabrera (100 SCRA 424): ". . . Time and
again we have stated that when it comes to question of credibility the
findings of the trial court are entitled to great respect upon appeal for the
obvious reason that it was able to observe the demeanor, actuations and
deportment of the witnesses during the trial. But we have also said that this
rule is not absolute for otherwise there would be no reversals of convictions
upon appeal. We must reject the findings of the trial court where the record
discloses circumstances of weight and substance which were not properly
appreciated by the trial court."
DECISION
GUTIERREZ, JR., J p:
This is an appeal from the decision of the Regional Trial Court of Davao del
Sur, 11th Judicial Region, Digos, Davao del Sur convicting defendantappellant Ruben Burgos y Tito of the crime of Illegal Possession of
Firearms in Furtherance of Subversion. The dispositive portion of the
decision reads:
"WHEREFORE, finding the guilt of accused Ruben Burgos sufficiently
established beyond reasonable doubt, of the offense charged, pursuant to
Presidential Decree No. 9, in relation to General Order No. 6, dated
September 22, 1972, and General Order No. 7, dated September 23, 1972,
in relation further to Presidential Decree No. 885, and considering that the
firearm subject of this case was not used in the circumstances as embraced
in paragraph 1 thereof, applying the provision of indeterminate sentence
law, accused Ruben Burgos is hereby sentenced to suffer an imprisonment
of twenty (20) years of reclusion temporal maximum, as minimum penalty,
to reclusion perpetua, as maximum penalty, pursuant to sub-paragraph B, of
Presidential Decree No. 9, as aforementioned, with accessory penalties, as
provided for by law.
"As a result of this judgment, the subject firearm involved in this case
(Homemade revolver, caliber .38, Smith and Wesson, with Serial No.
8.69221) is hereby ordered confiscated in favor of the government, to be
disposed of in accordance with law. Likewise, the subversive documents,
leaflets and/or propaganda seized are ordered disposed of in accordance
with law."
The information charged the defendant-appellant with the crime of illegal
possession of firearm in furtherance of subversion in an information which
reads as follows:
"That in the afternoon of May 13, 1982 and thereabouts at Tiguman, Digos,
Davao del Sur, Philippines, within the jurisdiction of this Court, the abovenamed accused with intent to possess and without the necessary license,
permit or authority issued by the proper government agencies, did then and
there wilfully, unlawfully and feloniously keep, possess, carry and have in
his possession, control and custody one (1) homemade revolver, caliber .38,
make Smith and Wesson, with Serial No. 8.69221, which firearm was
issued to and used by the accused at Tiguman, Digos, Davao del Sur, his
area of operations by one Alias Commander Pol for the New People's Army
(NPA), a subversive organization organized for the purpose of
overthrowing the Government of the Republic of the Philippines through
lawless and violent means, of which the accused had knowledge, and which
firearm was used by the accused in the performance of his subversive tasks
such as the recruitment of New Members to the NPA and collection of
contributions from the members.
"CONTRARY TO LAW."
The evidence for the prosecution is summarized in the decision of the lower
court as follows:
xxx
xxx
xxx
". . . Through the testimony of Pat. Pepito Bioco, and Sgt. Romeo Taroy, it
appears that by virtue of an intelligent information obtained by the
Constabulary and INP units, stationed at Digos, Davao del Sur, on May 12,
1982, one Cesar Masamlok personally and voluntarily surrendered to the
authorities at about 9:00 o'clock A.M. at Digos, Davao del Sur Constabulary
Headquarters, stating that he was forcibly recruited by accused Ruben
Burgos as member of the NPA, threatening him with the use of firearm
against his life, if he refused.
"Along with his recruitment, accused was asked to contribute one (1) chopa
of rice and one peso (P1.00) per month, as his contribution to the NPA
(TSN, page 5, Hearing - October 14, 1982).
"Immediately, upon receipt of said information, a joint team of PC-INP
units, composed of fifteen (15) members, headed by Captain Melchesideck
Bargio, (PC), on the following day, May 13, 1982, was dispatched at
Tiguman; Davao del Sur, to arrest accused Ruben Burgos. The team left the
headquarter at 1:30 P.M., and arrived at Tiguman, at more or less 2:00
o'clock P.M., where through the help of Pedro Burgos, brother of accused,
the team was able to locate accused, who was plowing his field. (TSN,
pages 6-7, Hearing October 14, 1982).
"Right in the house of accused, the latter was called by the team and Pat.
Bioco asked accused about his firearm, as reported by Cesar Masamlok. At
first accused denied possession of said firearm but later, upon question
propounded by Sgt. Alejandro Buncalan with the wife of the accused, the
latter pointed to a place below their house where a gun was buried in the
ground. (TSN, page 8, Hearing October 14, 1982).
"Pat. Bioco then verified the place pointed by accused's wife and dug the
grounds, after which he recovered the firearm, Caliber .38 revolver, marked
as Exhibit "A" for the prosecution.
"After the recovery of the firearm, accused likewise pointed to the team,
subversive documents which he allegedly kept in a stock pile of cogon, at a
distance of three (3) meters apart from his house. Then Sgt. Taroy
accordingly verified beneath said cogon grass and likewise recovered
documents consisting of notebook colored maroon with spiral bound,
Exhibit "B" for the prosecution; a pamphlet consisting of eight (8) leaves,
including the front and back covers entitled Ang Bayan, Pahayagan ng
Partido Komunista ng Pilipinas, Pinapatnubayan ng Marxismo, Leninismo,
Kaisipang Mao Zedong, dated December 31, 1980, marked as Exhibit "C",
and another pamphlet Asdang Pamantalaang Masa sa Habagatang
Mindanao, March and April 1981 issue, consisting of ten (10) pages,
marked as Exhibit "D" for the prosecution.
"Accused, when confronted with the firearm, Exhibit "A", after its recovery,
readily admitted the same as issued to him by Nestor Jimenez, otherwise
known as a certain Alias Pedipol, allegedly team leader of the sparrow unit
of New People's Army, responsible in the liquidation of target personalities,
opposed to NPA ideological movement, an example was the killing of the
late Mayor Llanos and Barangay Captain of Tienda Aplaya, Digos, Davao
del Sur. (TSN, pages 1-16, Hearing October 14, 1982).
"To prove accused's subversive activities, Cesar Masamlok, a former NPA
convert was presented, who declared that on March 7, 1972, in his former
residence at Tiguman, Digos, Davao del Sur, accused Ruben Burgos,
accompanied by his companions Landrino Burgos, Oscar Gomez and
Antonio Burgos, went to his house at about 5:00 o'clock P.M. and called
him downstairs. Thereupon, accused told Masamlok, their purpose was to
ask rice and one (1) peso from him, as his contribution to their companions,
the NPA of which he is now a member. (TSN, pages 70, 71, 72, Hearing
January 4, 1983).
"Accused and his companions told Masamlok, he has to join their group
otherwise, he and his family will be killed. He was also warned not to
reveal anything with the government authorities. Because of the threat to his
life and family, Cesar Masamlok joined the group. Accused then told him,
he should attend a seminar scheduled on April 19, 1982. Along with this
invitation, accused pulled out from his waistline a .38 caliber revolver
which Masamlok really saw, being only about two (2) meters away from
accused, which make him easily identified said firearm, as that marked as
Exhibit "A" for the prosecution (TSN, pages 72, 73, and 74, Hearing
January 4, 1983).
"On April 19, 1982, as previously invited, Masamlok, accompanied by his
father, Matuguil Masamlok, Isabel Ilan and Ayok Ides went to the house of
accused and attended the seminar. Those present in the seminar were:
accused Ruben Burgos, Antonio Burgos, Oscar Gomez, Landrino Burgos,
alias Pedipol and one alias Jamper.
"The first speaker was accused Ruben Burgos, who said very distinctly that
he is an NPA together with his companions, to assure the unity of the
civilian. That he encouraged the group to overthrow the government,
emphasizing that those who attended the seminar were already members of
the NPA, and if they reveal to the authorities, they will be killed.
"Accused, while talking, showed to the audience pamphlets and documents,
then finally shouted, the NPA will be victorious. Masamlok likewise
identified the pamphlets as those marked as Exhibits "B", "C", and "D" for
the prosecution. (TSN, pages 75, 76 and 77, Hearing January 4, 1983).
"Other speakers in said meeting were Pedipol, Jamper and Oscar Gomez,
who likewise expounded their own opinions about the NPA, It was also
announced in said seminar that a certain Tonio Burgos, will be responsible
for the collection of the contribution from the members. (TSN, pages 78-79,
Hearing January 4, 1983).
his name included among the lists of persons who applied for the licensing
of the firearm, under Presidential Decree No. 1745.
"After the above-testimony the prosecution formally closed its case and
offered its exhibits, which were all admitted in evidence, despite objection
interposed by counsel for accused, which was accordingly overruled."
On the other hand, the defendant-appellant's version of the case against him
is stated in the decision as follows:
"From his farm, the military personnel, whom he said he cannot recognize,
brought him to the PC Barracks at Digos, Davao del Sur, and arrived there
at about 3:00 o'clock, on the same date. At about 8:00 o'clock P.M., in the
evening, he was investigated by soldiers, whom he cannot identify because
they were wearing a civilian attire. (TSN, page 141, Hearing June 15,
1983).
"The investigation was conducted in the PC barracks, where he was
detained with respect to the subject firearm, which the investigator, wished
him to admit but accused denied its ownership. Because of his refusal,
accused was mauled, hitting him on the left and right side of his body which
rendered him unconscious. Accused in an atmosphere of tersed solemnity,
crying and with emotional attachment, described in detail how he was
tortured and the ordeals he was subjected.
"He said, after recovery of his consciousness, he was again confronted with
subject firearm, Exhibit "A", for him to admit and when he repeatedly
refused to accept as his own firearm, he was subjected to further prolong
(sic) torture and physical agony. Accused said, his eyes were covered with
wet black cloth with pungent effect on his eyes. He was undressed, with
only blindfold, pungent water poured in his body and over his private parts,
making his entire body, particularly his penis and testicle, terribly irritating
with pungent pain.
"All along, he was investigated to obtain his admission. The process of
beating, mauling, pain and or ordeal was repeatedly done in similar cycle,
from May 13 and 14, 1982, intercepted only whenever he fell unconscious
and again repeated after recovery of his senses.
"Finally on May 15, 1982, after undergoing the same torture and physical
ordeal, he was seriously warned, if he win still adamantly refuse to accept
ownership of the subject firearm, he will be salvaged, and no longer able to
bear any further the pain and agony, accused admitted ownership of subject
firearm.
"After his admission, the mauling and torture stopped, but accused was
made to sign his affidavit marked as Exhibit "E" for the prosecution,
consisting of five (5) pages, including the certification of the administering
officer. (TSN, pages 141-148, Hearing - June 15, 1983).
"In addition to how he described the torture inflicted on him, accused, by
way of explanation and commentary in details, and going one by one, the
allegations and or contents of his alleged extra-judicial statement, attributed
his answers to those questions involuntarily made only because of fear,
threat and intimidation of his person and family, as a result of unbearable
excruciating pain he was subjected by an investigator, who, unfortunately
he cannot identify and was able to obtain his admission of the subject
firearm, by force and violence exerted over his person.
"To support denial of accused of being involved in any subversive
activities, and also to support his denial to the truth of his alleged extrajudicial confession, particularly questions Nos. 35, 38, 41, 42, 43, 44, 45, 46
and 47, along with his answers to those questions, involving Honorata
Arellano alias Inday Arellano, said Honorata Arellano appeared and
declared categorically, that the above-questions embraced in the numbers
allegedly stated in the extra-judicial confession of accused, involving her to
such NPA personalities, as Jamper, Pol, Anthony, etc., were not true
because on the date referred on April 28, 1982, none of the persons
mentioned came to her house for treatment, neither did she meet the
accused nor able to talk with him. (TSN, pages 118-121, Hearing May
18, 1983).
"She, however, admitted being familiar with one Oscar Gomez, and that she
was personally charged with subversion in the Office of the Provincial
Commander, Philippine Constabulary, Digos, Davao del Sur, but said
charge was dismissed without reaching the Court. She likewise stated that
her son, Rogelio Arellano, was likewise charged for subversion filed in the
Municipal Trial Court of Digos, Davao del Sur, but was likewise dismissed
for lack of sufficient evidence to sustain his conviction. (TSN, pages 121122, in relation to her cross-examination, Hearing May 18, 1983).
"To support accused's denial of the charge against him, Barangay Captain of
Tiguman, Digos, Davao del Sur, Salvador Galaraga was presented, who
declared, he was not personally aware of any subversive activities of
accused, being his neighbor and member of his barrio. On the contrary, he
can personally attest to his good character and reputation, as a law abiding
citizen of his barrio, being a carpenter and farmer thereat. (TSN, pages 128129, Hearing May 18, 1983).
"He, however, admitted in cross-examination, that there were a lot of arrests
made by the authorities in his barrio involving subversive activities but they
were released and were not formally charged in Court because they publicly
took their oath of allegiance with the government. (TSN, pages 133-134, in
relation to page 136, Hearing May 18, 1983).
"Finally, to support accused's denial of the subject firearm, his wife, Urbana
Burgos, was presented and who testified that the subject firearm was left in
their house by Cesar Masamlok and one Pedipol on May 10, 1982. It was
night time, when the two left the gun, alleging that it was not in order, and
that they will leave it behind, temporarily, for them to claim it later. They
were the ones who buried it. She said, her husband, the accused, was not in
their house at that time and that she did not inform him about said firearm
neither did she report the matter to the authorities, for fear of the life of her
husband. (TSN, page 24, November 22, 1983).
"On cross-examination, she said, even if Masamlok during the recovery of
the firearm, was wearing a mask, she can still identify him (TSN, page 6,
Hearing - November 22, 1983).
"After the above-testimony, accused through counsel formally rested his
case, in support of accused's through counsel manifestation for the demurrer
to evidence of the prosecution, or in the alternative for violation merely of
simple illegal possession of firearm, under the Revised Administrative
Was the arrest of Ruben Burgos lawful? Were the search of his house and
the subsequent confiscation of a firearm and documents allegedly found
therein conducted in a lawful and valid manner? Does the evidence
sustaining the crime charged meet the test of proving guilt beyond
reasonable doubt?
The records of the case disclose that when the police authorities went to the
house of Ruben Burgos for the purpose of arresting him upon information
given by Cesar Masamlok that the accused allegedly recruited him to join
the New People's Army (NPA), they did not have any warrant of arrest or
search warrant with them (TSN, p. 25, October 14, 1982; and TSN, p. 61,
November 15, 1982).
Article IV, Section 3 of the Constitution provides:
"The right of the people to be secure in their persons, houses, papers, and
effects against unreasonable searches and seizures of whatever nature and
for any purpose shall not be violated, and no search warrant or warrant of
arrest shall issue except upon probable cause to be determined by the judge,
or such other responsible officer as may be authorized by law, after
examination under oath or affirmation of the complainant and the witnesses
"It is deference to one's personality that lies at the core of this right, but it
could be also looked upon as a recognition of a constitutionally protected
area, primarily one's home, but not necessarily thereto confined. (Cf. Hoffa
v. United States, 385 US 293 [1966]) What is sought to be guarded is a
man's prerogative to choose who is allowed entry to his residence. In that
haven of refuge, his individuality can assert itself not only in the choice of
who shall be welcome but likewise in the kind of objects he wants around
him. There the state, however powerful, does not as such have access except
under the circumstances above noted, for in the traditional formulation, his
house, however humble, is his castle. Thus is outlawed any unwarranted
intrusion by government, which is called upon to refrain from any invasion
of his dwelling and to respect the privacies of his life. (Cf. Schmerber v.
California, 384 US 757 [1966], Brennan, J. and Boyd v. United States, 116
US 616, 630 [1886]). In the same vein, Landynski in his authoritative work
(Search and Seizure and the Supreme Court [1966], could fitly characterize
this constitutional right as the embodiment of a `spiritual concept: the belief
that to value the privacy of home and person and to afford its constitutional
protection against the long reach of government is no less than to value
human dignity, and that his privacy must not be disturbed except in case of
overriding social need, and then only under stringent procedural safeguards.'
(Ibid, p. 47)."
The trial court justified the arrest of the accused-appellant without any
warrant as falling under one of the instances when arrests may be validly
made without a warrant. Rule 113, Section 6 ** of the Rules of Court,
provides the exceptions as follows:
a)
When the person to be arrested has committed, is actually
committing, or is about to commit an offense in his presence;
b)
When an offense has in fact been committed, and he has
reasonable ground to believe that the person to be arrested has committed it;
c)
When the person to be arrested is a prisoner who has escaped from
a penal establishment or place where he is serving final judgment or
temporarily confined while his case is pending, or has escaped while being
transferred from one confinement to another.
The Court stated that even if there was no warrant for the arrest of Burgos,
the fact that "the authorities received an urgent report of accused's
involvement in subversive activities from a reliable source (report of Cesar
Masamlok) the circumstances of his arrest, even without judicial warrant, is
lawfully within the ambit of Section 6-A of Rule 113 of the Rules of Court
and applicable jurisprudence on the matter."
If the arrest is valid, the consequent search and seizure of the firearm and
the alleged subversive documents would become an incident to a lawful
arrest as provided by Rule 126, Section 12, which states:
"A person charged with an offense may be searched for dangerous weapons
or anything which may be used as proof of the commission of the offense."
The conclusions reached by the trial court are erroneous.
Under Section 6(a) of Rule 113, the officer arresting a person who has just
committed, is committing, or is about to commit an offense must have
personal knowledge of that fact. The offense must also be committed in his
presence or within his view. (Sayo v. Chief of Police, 80 Phil. 859).
There is no such personal knowledge in this case. Whatever knowledge was
possessed by the arresting officers, it came in its entirety from the
information furnished by Cesar Masamlok. The location of the firearm was
given by the appellant's wife.
At the time of the appellant's arrest, he was not in actual possession of any
firearm or subversive document. Neither was he committing any act which
could be described as subversive. He was, in fact, plowing his field at the
time of the arrest.
indeed they had reasonable ground to believe that the accused had truly
committed a crime. There is no showing that there was a real apprehension
that the accused was on the verge of flight or escape. Likewise, there is no
showing that the whereabouts of the accused were unknown.
The basis for the action taken by the arresting officer was the verbal report
made by Masamlok who was not required to subscribe his allegations under
oath. There was no compulsion for him to state truthfully his charges under
pain of criminal prosecution. (TSN, p. 24, October 14, 1982). Consequently,
the need to go through the process of securing a search warrant and a
warrant of arrest becomes even more clear. The arrest of the accused while
he was plowing his field is illegal. The arrest being unlawful, the search and
seizure which transpired afterwards could not likewise be deemed legal as
being mere incidents to a valid arrest.
Neither can it be presumed that there was a waiver, or that consent was
given by the accused to be searched simply because he failed to object. To
constitute a waiver, it must appear first that the right exists; secondly, that
the person involved had knowledge, actual or constructive, of the existence
of such a right; and lastly, that said person had an actual intention to
relinquish the right (Pasion Vda. de Garcia v. Locsin, 65 Phil. 689). The
fact that the accused failed to object to the entry into his house does not
amount to a permission to make a search therein (Magoncia v. Palacio, 80
Phil. 770). As pointed out by Justice Laurel in the case of Pasion Vda. de
Garcia v. Locsin (supra):
xxx
xxx
xxx
". . . As the constitutional guaranty is not dependent upon any affirmative
act of the citizen, the courts do not place the citizen in the position of either
contesting an officer's authority by force, or waiving his constitutional
rights; but instead they hold that a peaceful submission to a search or
seizure is not a consent or an invitation thereto, but is merely a
demonstration of regard for the supremacy of the law. (56 C.J., pp. 1180,
1181)."
We apply the rule that: "courts indulge every reasonable presumption
against waiver of fundamental constitutional rights and that we do not
Office was too late. It could have no palliative effect. It cannot cure the
absence of counsel at the time of the custodial investigation when the
extrajudicial statement was being taken.
With the extra-judicial confession, the firearm, and the alleged subversive
documents inadmissible in evidence against the accused-appellant, the only
remaining proof to sustain the charge of Illegal Possession of Firearm in
Furtherance of Subversion is the testimony of Cesar Masamlok.
Assuming this to be true, it should be recalled that the accused was never
informed of his constitutional rights at the time of his arrest. So that when
the accused allegedly admitted ownership of the gun and pointed to the
location of the subversive documents after questioning, the admissions were
obtained in violation of the constitutional right against self-incrimination
under Sec. 20 of Art. IV of the Bill of Rights which provides:
"No person shall be compelled to be a witness against himself. Any person
under investigation for the commission of an offense shall have the right to
remain silent and to counsel, and to be informed of such right . . ."
The Constitution itself mandates that any evidence obtained in violation of
this right is inadmissible in evidence. Consequently, the testimonies of the
arresting officers as to the admissions made by the appellant cannot be used
against him.
The trial court validly rejected the extra-judicial confession of the accused
as inadmissible in evidence. The court stated that the appellant's having
been exhaustively subjected to physical terror, violence, and third degree
measures may not have been supported by reliable evidence but the failure
to present the investigator who conducted the investigation gives rise to the
"provocative presumption" that indeed torture and physical violence may
have been committed as stated.
The accused-appellant was not accorded his constitutional right to be
assisted by counsel during the custodial interrogation. The lower court
correctly pointed out that the securing of counsel, Atty. Anyog, to help the
accused when he subscribed under oath to his statement at the Fiscal's
SYLLABUS
1.
REMEDIAL
LAW;
CRIMINAL
PROCEDURE;
WARRANTLESS ARREST AND SEARCH; LAWFUL IN CASE AT
BAR. SPO1 Loreto Tenebro testified that in the evening of March 16,
1991, while he and Patrolmen Camotes and Racolas were patrolling in their
car, they received a radio message from their camp directing them to
proceed to the "Ihaw-Ihaw" on Bonifacio Street where there had been a
shooting. Accordingly, they proceeded to the place and there saw the
victim, Nelson Jordan. Bystanders pointed to accused-appellant as the one
who had shot Jordan. They then arrested accused-appellant. Seized from
him was a .38 caliber revolver with serial number 91955. Considering these
facts, the warrantless arrest was valid under Rule 113, Section 5(b) of the
Revised Rules of Criminal Procedure. The arresting officers acted on the
basis of personal knowledge of the death of the victim and of facts
indicating that accused-appellant was the assailant. The subsequent search
of accused-appellant's person and the seizure from him of the firearm was
likewise lawful under Rule 126, Section 12.
2.
CRIMINAL LAW; ILLEGAL POSSESSION OF FIREARM;
PRESENT WHERE MEMORANDUM RECEIPT AND MISSION
ORDER NOT VALID. Accused-appellant is liable for illegal
possession of firearm. His defense is that the gun is covered by a
memorandum receipt and mission order issued by Major Arquillano, then
Deputy Commander of the Civil-Military Operation and CAFGU Affairs of
the Davao Metropolitan District Command. The issuance of mission orders
is governed by Memorandum Circular No. 8 dated October 16, 1986 of the
then Ministry of Justice. Under the same, Major Arquillano was not
authorized to issue the mission order in question. Neither was accusedappellant qualified to have a mission order. Major Arquillano was not
authorized to issue mission orders to civilian agents of the AFP as he was
not any of the following officers mentioned in the Implementing Rules and
Regulations of P.D. No. 1866, Section 5(a). That Colonel Calida had
authorized him (Major Arquillano) to exercise this function is a bare
assertion that cannot be given credit. Neither was there a written delegation
of authority to Major Arquillano. It is even doubtful whether Col. Calida
who had authority to issue mission orders, could delegate this authority to
his deputy. Accused-appellant also was not qualified to be issued a mission
DECISION
MENDOZA, J p:
Accused-appellant Wenceslao Jayson was charged with violation of P.D.
No. 1866 in the Regional Trial Court of Davao City. The amended
information alleged
That on or about March 16, 1991, in the City of Davao, Philippines, and
within the jurisdiction of this Honorable Court, the above-mentioned
accused wilfully, unlawfully and feloniously with intent to possess, had in
his possession and under his custody one (1) .38 caliber revolver (Paltik),
with Serial Number 91955 and four (4) live ammunitions inside the
chamber of said revolver, without first securing the necessary license to
possess the same.
3.
ID.; ID.; RA 8294 PROVIDING FOR A LESSER PENALTY
NOT APPLICABLE; CASE AT BAR. The provisions of the recently
enacted R.A. No. 8294, amending P.D. No. 1866, cannot be applied to this
case. Even though the penalty for illegal possession of firearm has been
reduced in the new law, the latter cannot be applied in this case so as to
favor accused-appellant in view of the proviso in Sec. 1 that the first
paragraph, providing for lighter penalty, does not apply to cases where
another crime has been committed. Nor can the third paragraph be applied
by considering the illegal possession of firearm as a mere aggravating
circumstance because, although the gun seized was used in the commission
of a crime, this case concerns solely the charge of illegal possession of
firearm. The criminal case for homicide is not before us for consideration.
Consequently, this case must be decided in accordance with the ruling in
People v. Quijada, that a person who kills another with the use of an
unlicensed firearm is guilty of homicide or murder as the case may be under
the Revised Penal Code and aggravated illegal possession of firearm under
P.D. No. 1866, Sec. 1, par. 2.
That the same .38 caliber revolver was used by the accused in killing
Nelson Jordan on March 16, 1991.
Contrary to law.
Davao City, Philippines, July 12, 1991.
The prosecution evidence shows that in the evening of March 16, 1991,
accused-appellant, then a bouncer at the "Ihaw-Ihaw" nightclub on
Bonifacio Street, Davao City, shot one Nelson Jordan. He was arrested after
he had been pointed by eyewitnesses as the gunman. Recovered from him
was a .38 caliber revolver with serial number 91955, four live bullets, and
one empty shell. The firearm and ammunition were covered by a
memorandum receipt and mission order issued by Major Francisco
Arquillano, Deputy Commander of the Civil-Military Operation and
CAFGU Affairs of the Davao Metropolitan District Command. The mission
order authorized accused-appellant to carry the said firearm and twelve
rounds of ammunition "[t]o intensify intel[ligence] coverage" and was for a
three-month duration (from February 8, 1991 to May 8, 1991), subject to
the following restrictions:
VII.
The carrying of firearms is prohibited in places where people
gather for political, religious, social, educational, and recreational purposes,
such as churches or chapels, carnival grounds or fans, nightclubs, cabarets,
dance halls, dancing places during fiestas and other celebrations, bars,
liquor drinking places, theaters or movies, cockpits, race tracks and the like,
seizure from him of the firearm in question considering that both were made
without any warrant from a court.
With respect to the arrest, SPO1 Loreto Tenebro 11 testified that at around
10:00 in the evening of March 16, 1991, while he and Patrolmen Camotes
and Reinerio Racolas were patrolling in their car, they received a radio
message from their camp directing them to proceed to the "Ihaw-Ihaw" on
Bonifacio Street where there had been a shooting. Accordingly, they
proceeded to the place and there saw the victim, Nelson Jordan. Bystanders
pointed to accused-appellant as the one who had shot Jordan. They then
arrested accused-appellant. Seized from him was a .38 caliber revolver with
serial number 91955. The firearm was covered by a mission order and
memorandum receipt. Considering these facts, we hold that the warrantless
arrest and search were valid.
Rule 113, 5(b) of the Revised Rules of Criminal Procedure provides:
SEC. 5. Arrest without warrant ; when lawful. A peace officer or private
person may, without a warrant, arrest a person: . . .
(b)
When an offense has in fact just been committed, and he has
personal knowledge of facts indicating that the person to be arrested has
committed it.
In the case at bar there was a shooting. The policemen summoned to the
scene of the crime found the victim. Accused-appellant was pointed to them
as the assailant only moments after the shooting. In fact accused-appellant
had not gone very far (only ten meters away from the "Ihaw-Ihaw"),
although he was then fleeing. The arresting officers thus acted on the basis
of personal knowledge of the death of the victim and of facts indicating that
accused-appellant was the assailant.
This Court has upheld a warrantless arrest under analogous circumstances.
In People v. Tonog, Jr., 12 the police found the lifeless body of a person
with several stab wounds. An informer pointed to the accused as the person
who had killed the victim. That afternoon, police officers arrested the
accused. On their way to the police station, a policeman noticed bloodstains
on the accused's pants which, when examined, was found to be the same
blood type "O" found on the fatal knife. The Court upheld the warrantless
arrest and ruled that the blood-stained pants, having been seized as an
incident of a lawful arrest, was admissible in evidence.
In People v. Gerente, the police arrested the accused three hours after the
victim had been killed. They went to the scene of the crime where they
found a piece of wood and a concrete hollow block used by the killers in
bludgeoning the victim to death. A neighbor of the accused who witnessed
the killing, pointed to him as one of the assailants. The warrantless arrest
was held valid under Rule 113, 5(b).
In People v. Acol, a group held up a passenger jeepney. Policemen
immediately responded to the report of the crime. One of the victims saw
four persons walking towards Fort Bonifacio, one of whom was wearing his
jacket. He pointed them to the policemen. When the group saw the
policemen coming, they ran in different directions. Three were caught and
arrested. Each was found in possession of an unlicensed revolver and
charged with illegal possession of firearms. The accused claimed that the
warrantless seizure of firearms was illegal. The Court rejected their plea and
held that the search was a valid incident of a lawful arrest.
The subsequent search of accused-appellant's person and the seizure from
him of the firearm was likewise lawful. Rule 126, 12 states:
SEC. 12.Search incident to lawful arrest. A person lawfully arrested may
be searched for dangerous weapons or anything which may be used as proof
of the commission of an offense, without a search warrant.
In People v. Lua, 15 a buy-bust operation was conducted against the
accused. After accused had gone inside his house and returned with the
three tea bags of marijuana and received the marked money, the designated
poseur-buyer gave the signal to his fellow police officers who closed in and
arrested the accused. In the course of the arrest, a police officer noticed
something bulging at accused's waistline, which turned out to be an
unlicensed .38 caliber "paltik" with two live bullets. Accused was charged
with illegal possession of firearm. The search was held to be a valid
incident of a lawful arrest.
II.
We now come to the main question of accused-appellant's liability for
illegal possession of firearm. There is no dispute that accused-appellant was
in possession of the gun in this case. His defense is that the gun is covered
by a memorandum receipt and mission order issued by Major Francisco
Arquillano, then Deputy Commander of the Civil-Military Operation and
CAFGU Affairs of the Davao Metropolitan District Command.
The issuance of mission orders is governed by Memorandum Circular No. 8
dated October 16, 1986 of the then Ministry of Justice, which in pertinent
part states:
. . . It is unlawful for any person or office to issue a mission order
authorizing the carrying of firearms by any person unless the following
conditions are met:
1.
That the AFP officer is authorized by the law to issue the mission
order;
2.
That the recipient or addressee of the mission order is also
authorized by the law to have a mission order, i.e., he must be an organic
member of the command/unit of the AFP officer issuing the mission order.
If mission orders are issued to civilians (not members of the uniformed
service), they must be civilian agents included in the regular plantilla of the
government agency involved in law enforcement and are receiving regular
compensation for the services they are rendering. (In this case, the agency
head or officials so designated by the law shall issue the mission order.). . .
As the Court of Appeals held, however, Major Arquillano, who had issued
the mission order in question, was not authorized to do the same. Neither
was accused-appellant qualified to have a mission order.
Admittedly, Major Arquillano was not authorized to issue mission orders to
civilian agents of the AFP as he was not any of the following officers
mentioned in the Implementing Rules and Regulations of P.D. No. 1866,
5(a), to wit:
(1)
The Minister of National Defense and such other Ministry officials
duly designated by him;
(2)
The Chief of Staff; AFP;
(3)
Chief of the General/Special/Technical and Personal Staffs of
GHQ AFP;
(4)
Commanders of the AFP Major Services including the Chiefs of
their respective General/Special/Technical and Personal Staffs;
(5)
Commanders and Chiefs of Staffs of AFPWSSU and major
commands/units of the AFP and the Major Services;
(6)
Commanders of battalions and higher units and their equivalent in
the Philippine Air Force and Philippine Navy;
(7)
Commanders of AFP intelligence units from GHQ AFP down to
regional command levels;
(8)
Provincial Commanders, METRODISCOM Commanders,
company commanders and their equivalent in the Philippine Air Force and
Philippine Navy; and
(9)
Detachment commanders in remote areas whose higher
commanders are not easily available to issue such orders.
Major Arquillano claimed, however, that Colonel Franco Calida, had
authorized him (Major Arquillano) to exercise this function so that people
would not be "swarming [in Calida's] office." As the appellate court well
stated, full faith and credit cannot be given to such bare assertion. Not only
was there no written delegation of authority to Major Arquillano, it is even
doubtful whether Col. Calida, who, as commander of the unit had authority
to issue mission orders, could delegate this authority to his deputy.
Nevertheless, it is argued that the prosecution failed to prove accusedappellant's guilt beyond reasonable doubt because the prosecution did not
present SPO4 Welliejado S. Sim of the FAS/Explosive NCO Davao
Metropolitan District Command, who had certified that "per records on file
[in] this Command Mr. Wenceslao Jayson does not exist/appear in the list
of license holders as of this date." Accused-appellant claims that the
prosecution merely presented as Exhibit H the certification without calling
the "issuing authority" to testify so that he could be cross-examined with
regard to his certification.
Objection based on this ground must be deemed waived in view of accusedappellant's failure to object to the presentation of the evidence. The
certification in question was marked when the parties entered into a
stipulation of facts, but accused-appellant's counsel did not object. Neither
did counsel object when the certification was offered in evidence by the
prosecution.
In any event, accused-appellant does not claim to be the holder of a regular
license but only of a mission order and memorandum receipt. Considering
the invalidity of these documents, both the Regional Trial Court and Court
of Appeals correctly held accused-appellant liable under P.D. No. 1866.
Nor can accused-appellant claim to have acted in the good faith belief that
the documents issued to him sufficed as legal authority for him to carry the
firearm. As the Court of Appeals pointed out, good faith and absence of
criminal intent are not valid defenses because the offense committed is
malum prohibitum punishable by special law.
III.
It remains for us to determine whether the provisions of the recently enacted
R.A. No. 8294, amending P.D. No. 1866, 24 can be applied to this case on
the theory that it is more favorable to accused-appellant. 25 R.A. No. 8294,
provides in pertinent part:
1.
Unlawful Manufacture, Sale, Acquisition, Disposition or
Possession of Firearms or ammunition or Instruments Used or Intended to
be Used in the Manufacture of Firearms or Ammunition. The penalty of
prision correccional in its maximum period and a fine of not less than
Fifteen thousand pesos (P15,000) shall be imposed upon any person who
shall unlawfully manufacture, deal in, acquire, dispose, or possess any low
powered firearm, such as rimfire handgun, .380 or .32 and other firearm of
similar firepower, part of firearm, ammunition, or machinery, tool or
instrument used or intended to be used in the manufacture of any firearm or
ammunition: Provided, That no other crime was committed.
xxx
xxx
xxx
If homicide or murder is committed with the use of an unlicensed firearm,
such use of an unlicensed firearm shall be considered as an aggravating
circumstance. (Emphasis added)
Apparently, even though the penalty for illegal possession of firearm has
been reduced in the new law, the latter cannot be applied in this case so as
to favor accused-appellant in view of the proviso in 1 that the first
paragraph, providing for lighter penalty, does not apply to cases where
another crime has been committed. Nor can the third paragraph be applied
by considering the illegal possession of firearm as a mere aggravating
circumstance because, although the gun seized was used in the commission
of a crime, this case concerns solely the charge of illegal possession of
firearm. The criminal case for homicide is not before us for consideration.
Consequently, this case must be decided in accordance with the ruling in
People v. Quijada, 26 that a person who kills another with the use of an
unlicensed firearm is guilty of homicide or murder as the case may be under
the Revised Penal Code and aggravated illegal possession of firearm under
P.D. No. 1866, 1, par. 2.
WHEREFORE, the decision of the Court of Appeals is AFFIRMED.
SO ORDERED.
Puno, J ., concurs.
Regalado, J ., concurs, pro hac vice.
392 U.S. 1
Terry v. Ohio
CERTIORARI TO THE SUPREME COURT OF OHIO
No. 67 Argued: December 12, 1967
Decided: June 10, 1968
CASE BRIEF
Brief Fact Summary:
The Petitioner, John W. Terry (the Petitioner), was stopped and searched
by an officer after the officer observed the Petitioner seemingly casing a
store for a potential robbery. The officer approached the Petitioner for
questioning and decided to search him first.
Synopsis of Rule of Law:
An officer may perform a search for weapons without a warrant, even
without probable cause, when the officer reasonably believes that the person
may be armed and dangerous.
Facts:
The officer noticed the Petitioner talking with another individual on a street
corner while repeatedly walking up and down the same street. The men
would periodically peer into a store window and then talk some more. The
men also spoke to a third man whom they eventually followed up the street.
The officer believed that the Petitioner and the other men were casing a
store for a potential robbery. The officer decided to approach the men for
questioning, and given the nature of the behavior the officer decided to
perform a quick search of the men before questioning. A quick frisking of
the Petitioner produced a concealed weapon and the Petitioner was charged
with
carrying
a
concealed
weapon.
Issue:
Whether a search for weapons without probable cause for arrest is an
unreasonable search under the Fourth Amendment to the United States
Constitution (Constitution)?
Held:
The Supreme Court of the United States (Supreme Court) held that it is a
reasonable search when an officer performs a quick seizure and a limited
search for weapons on a person that the officer reasonably believes could be
armed. A typical beat officer would be unduly burdened by being prohibited
from searching individuals that the officer suspects to be armed.
Dissent:
Justice William Douglas (J. Douglas) dissented, reasoning that the
majoritys holding would grant powers to officers to authorize a search and
seizure
that
even
a
magistrate
would
not
possess.
Concurrence:
Justice John Harlan (J. Harlan) agreed with the majority, but he
emphasized an additional necessity of the reasonableness of the stop to
investigate the crime.
Justice Byron White (J. White) agreed with the majority, but he
emphasized that the particular facts of the case, that there was suspicion of a
violent act, merit the forcible stop and frisk.
Discussion:
The facts of the case are important to understand the Supreme Courts
willingness to allow the search. The suspicious activity was a violent crime,
armed robbery, and if the officers suspicions were correct then he would be
in a dangerous position to approach the men for questioning without
searching them. The officer also did not detain the men for a long period of
time to constitute an arrest without probable cause.
ACTUAL CASE
MR. CHIEF JUSTICE WARREN delivered the opinion of the Court.
This case presents serious questions concerning the role of theFourth
Amendment in the confrontation on the street between the citizen and the
policeman investigating suspicious circumstances.
the two men walked off together, heading west on Euclid Avenue,
following the path taken earlier by the third man.
By this time, Officer McFadden had become thoroughly suspicious. He
testified that, after observing their elaborately casual and oft-repeated
reconnaissance of the store window on Huron Road, he suspected the two
men of "casing a job, a stick-up," and that he considered it his duty as a
police officer to investigate further. He added that he feared "they may have
a gun." Thus, Officer McFadden followed Chilton and Terry and saw them
stop in front of Zucker's store to talk to the same man who had conferred
with them earlier on the street corner. Deciding that the situation was ripe
for direct action, Officer McFadden approached the three men,
identified [p7] himself as a police officer and asked for their names. At this
point, his knowledge was confined to what he had observed. He was not
acquainted with any of the three men by name or by sight, and he had
received no information concerning them from any other source. When the
men "mumbled something" in response to his inquiries, Officer McFadden
grabbed petitioner Terry, spun him around so that they were facing the other
two, with Terry between McFadden and the others, and patted down the
outside of his clothing. In the left breast pocket of Terry's overcoat, Officer
McFadden felt a pistol. He reached inside the overcoat pocket, but was
unable to remove the gun. At this point, keeping Terry between himself and
the others, the officer ordered all three men to enter Zucker's store. As they
went in, he removed Terry's overcoat completely, removed a .38 caliber
revolver from the pocket and ordered all three men to face the wall with
their hands raised. Officer McFadden proceeded to pat down the outer
clothing of Chilton and the third man, Katz. He discovered another revolver
in the outer pocket of Chilton's overcoat, but no weapons were found on
Katz. The officer testified that he only patted the men down to see whether
they had weapons, and that he did not put his hands beneath the outer
garments of either Terry or Chilton until he felt their guns. So far as appears
from the record, he never placed his hands beneath Katz' outer garments.
Officer McFadden seized Chilton's gun, asked the proprietor of the store to
call a police wagon, and took all three men to the station, where Chilton and
Terry were formally charged with carrying concealed weapons.
On the motion to suppress the guns, the prosecution took the position that
they had been seized following a search incident to a lawful arrest. The trial
court rejected this theory, stating that it "would be stretching the facts
beyond reasonable comprehension" to find that Officer [p8] McFadden had
had probable cause to arrest the men before he patted them down for
weapons. However, the court denied the defendants' motion on the ground
that Officer McFadden, on the basis of his experience, had reasonable cause
to believe . . . that the defendants were conducting themselves suspiciously,
and some interrogation should be made of their action.
Purely for his own protection, the court held, the officer had the right to pat
down the outer clothing of these men, who he had reasonable cause to
believe might be armed. The court distinguished between an investigatory
"stop" and an arrest, and between a "frisk" of the outer clothing for weapons
and a full-blown search for evidence of crime. The frisk, it held, was
essential to the proper performance of the officer's investigatory duties, for,
without it, "the answer to the police officer may be a bullet, and a loaded
pistol discovered during the frisk is admissible."
After the court denied their motion to suppress, Chilton and Terry waived
jury trial and pleaded not guilty. The court adjudged them guilty, and the
Court of Appeals for the Eighth Judicial District, Cuyahoga County,
affirmed. State v. Terry, 5 Ohio App.2d 122, 214 N.E.2d 114 (1966). The
Supreme Court of Ohio dismissed their appeal on the ground that no
"substantial constitutional question" was involved. We granted
certiorari, 387 U.S. 929 (1967), to determine whether the admission of the
revolvers in evidence violated petitioner's rights under the Fourth
Amendment, made applicable to the States by the Fourteenth. Mapp v.
Ohio, 367 U.S. 643 (1961). We affirm the conviction.
I
The Fourth Amendment provides that "the right of the people to be secure
in their persons, houses, papers, and effects, against unreasonable searches
and seizures, shall not be violated. . . ." This inestimable right
of [p9] personal security belongs as much to the citizen on the streets of our
cities as to the homeowner closeted in his study to dispose of his secret
affairs. For as this Court has always recognized, no right is held more
sacred, or is more carefully guarded, by the common law than the right of
every individual to the possession and control of his own person, free from
all restraint or interference of others, unless by clear and unquestionable
authority of law.
Union Pac. R. Co. v. Botsford, 141 U.S. 250, 251 (1891). We have recently
held that "the Fourth Amendment protects people, not places," Katz v.
United States, 389 U.S. 347, 351 (1967), and wherever an individual may
harbor a reasonable "expectation of privacy," id. at 361 (MR. JUSTICE
HARLAN, concurring), he is entitled to be free from unreasonable
governmental intrusion. Of course, the specific content and incidents of this
right must be shaped by the context in which it is asserted. For "what the
Constitution forbids is not all searches and seizures, but unreasonable
searches and seizures." Elkins v. United States, 364 U.S. 206, 222 (1960).
Unquestionably petitioner was entitled to the protection of the Fourth
Amendment as he walked down the street in Cleveland. Beck v. Ohio, 379
U.S. 89 (1964); Rios v. United States, 364 U.S. 253 (1960); Henry v. United
States, 361 U.S. 98 (1959); United States v. Di Re, 332 U.S.
581 (1948); Carroll v. United States, 267 U.S. 132 (1925). The question is
whether, in all the circumstances of this on-the-street encounter, his right to
personal security was violated by an unreasonable search and seizure.
We would be less than candid if we did not acknowledge that this question
thrusts to the fore difficult and troublesome issues regarding a sensitive area
of police activity -- issues which have never before been
squarely [p10] presented to this Court. Reflective of the tensions involved
are the practical and constitutional arguments pressed with great vigor on
both sides of the public debate over the power of the police to "stop and
frisk" -- as it is sometimes euphemistically termed -- suspicious persons.
On the one hand, it is frequently argued that, in dealing with the rapidly
unfolding and often dangerous situations on city streets, the police are in
need of an escalating set of flexible responses, graduated in relation to the
amount of information they possess. For this purpose, it is urged that
distinctions should be made between a "stop" and an "arrest" (or a "seizure"
of a person), and between a "frisk" and a "search." [n3] Thus, it is argued, the
police should be allowed to "stop" a person and detain him briefly for
But this is only partly accurate. For the issue is not the abstract propriety of
the police conduct, but the admissibility against petitioner of the evidence
uncovered by the search and seizure. Ever since its inception, the rule
excluding evidence seized in violation of the Fourth Amendment has been
recognized as a principal mode of discouraging lawless police conduct. See
Weeks v. United States, 232 U.S. 383, 391-393 (1914). Thus, its major
thrust is a deterrent one, see Linkletter v. Walker, 381 U.S. 618, 629-635
(1965), and experience has taught that it is the only effective deterrent to
police misconduct in the criminal context, and that, without it, the
constitutional guarantee against unreasonable searches and seizures would
be a mere "form of words." Mapp v. Ohio, 367 U.S. 643, 655 (1961). The
rule also serves another vital function -- "the imperative of judicial
integrity." Elkins [p13] v. United States, 364 U.S. 206, 222 (1960). Courts
which sit under our Constitution cannot and will not be made party to
lawless invasions of the constitutional rights of citizens by permitting
unhindered governmental use of the fruits of such invasions. Thus, in our
system, evidentiary rulings provide the context in which the judicial process
of inclusion and exclusion approves some conduct as comporting with
constitutional guarantees and disapproves other actions by state agents. A
ruling admitting evidence in a criminal trial, we recognize, has the
necessary effect of legitimizing the conduct which produced the evidence,
while an application of the exclusionary rule withholds the constitutional
imprimatur.
The exclusionary rule has its limitations, however, as a tool of judicial
control. It cannot properly be invoked to exclude the products of legitimate
police investigative techniques on the ground that much conduct which is
closely similar involves unwarranted intrusions upon constitutional
protections. Moreover, in some contexts, the rule is ineffective as a
deterrent. Street encounters between citizens and police officers are
incredibly rich in diversity. They range from wholly friendly exchanges of
pleasantries or mutually useful information to hostile confrontations of
armed men involving arrests, or injuries, or loss of life. Moreover, hostile
confrontations are not all of a piece. Some of them begin in a friendly
enough manner, only to take a different turn upon the injection of some
unexpected element into the conversation. Encounters are initiated by the
police for a wide variety of purposes, some of which are wholly unrelated to
a desire to prosecute for crime. [n9] Doubtless some [p14] police "field
interrogation" conduct violates the Fourth Amendment. But a stern refusal
by this Court to condone such activity does not necessarily render it
responsive to the exclusionary rule. Regardless of how effective the rule
may be where obtaining convictions is an important objective of the
police, [n10] it is powerless to deter invasions of constitutionally guaranteed
rights where the police either have no interest in prosecuting or are willing
to forgo successful prosecution in the interest of serving some other goal.
Proper adjudication of cases in which the exclusionary rule is invoked
demands a constant awareness of these limitations. The wholesale
harassment by certain elements of the police community, of which minority
groups, particularly Negroes, frequently complain, [n11] will not
be [p15] stopped by the exclusion of any evidence from any criminal trial.
Yet a rigid and unthinking application of the exclusionary rule, in futile
protest against practices which it can never be used effectively to control,
may exact a high toll in human injury and frustration of efforts to prevent
crime. No judicial opinion can comprehend the protean variety of the street
encounter, and we can only judge the facts of the case before us. Nothing
we say today is to be taken as indicating approval of police conduct outside
the legitimate investigative sphere. Under our decision, courts still retain
their traditional responsibility to guard against police conduct which is
overbearing or harassing, or which trenches upon personal security without
the objective evidentiary justification which the Constitution requires.
When such conduct is identified, it must be condemned by the judiciary,
and its fruits must be excluded from evidence in criminal trials. And, of
course, our approval of legitimate and restrained investigative conduct
undertaken on the basis of ample factual justification should in no way
discourage the employment of other remedies than the exclusionary rule to
curtail abuses for which that sanction may prove inappropriate.
Having thus roughly sketched the perimeters of the constitutional debate
over the limits on police investigative conduct in general and the
background against which this case presents itself, we turn our attention to
the quite narrow question posed by the facts before us: whether it is always
unreasonable for a policeman to seize a person and subject him to a limited
search for weapons unless there is probable cause for an arrest. [p16] Given
356-358 (1931);see United States v. Di Re, 332 U.S. 581, 586-587 (1948).
The scope of the search must be "strictly tied to and justified by" the
circumstances which rendered its initiation permissible. Warden v.
Hayden, 387 U.S. 294, 310 (1967) (MR. JUSTICE FORTAS,
concurring); see, e.g., Preston v. United States, 376 U.S. 364, 367-368
(1964); Agnello v. United States, 269 U.S. 20, 30-31 (1925).
(1964). But we deal here with an entire rubric of police conduct -necessarily swift action predicated upon the on-the-spot observations of the
officer on the beat -- which historically has not been, and, as a practical
matter, could not be, subjected to the warrant procedure. Instead, the
conduct involved in this case must be tested by the Fourth Amendment's
general proscription against unreasonable searches and seizures. [n17]
Nonetheless, the notions which underlie both the warrant procedure and the
requirement of probable cause remain fully relevant in this context. In order
to assess the reasonableness of Officer McFadden's conduct as a general
proposition, it is necessary "first to focus upon [p21] the governmental
interest which allegedly justifies official intrusion upon the constitutionally
protected interests of the private citizen," for there is
no ready test for determining reasonableness other than by balancing the
need to search [or seize] against the invasion which the search [or seizure]
entails.
In this case, there can be no question, then, that Officer McFadden "seized"
petitioner and subjected him to a "search" when he took hold of him and
patted down the outer surfaces of his clothing. We must decide whether, at
that point, it was reasonable for Officer McFadden to have interfered with
petitioner's personal security as he did. [n16] And, in determining whether the
seizure and search were "unreasonable," our inquiry [p20] is a dual one -whether the officer's action was justified at its inception, and whether it was
reasonably related in scope to the circumstances which justified the
interference in the first place.
III
If this case involved police conduct subject to the Warrant Clause of
the Fourth Amendment, we would have to ascertain whether "probable
cause" existed to justify the search and seizure which took place. However,
that is not the case. We do not retreat from our holdings that the police
must, whenever practicable, obtain advance judicial approval of searches
and seizures through the warrant procedure, see, e.g., Katz v. United
States, 389 U.S. 347(1967); Beck v. Ohio, 379 U.S. 89, 96
(1964); Chapman v. United States, 365 U.S. 610 (1961), or that, in most
instances, failure to comply with the warrant requirement can only be
excused by exigent circumstances, see, e.g., Warden v. Hayden, 387 U.S.
294(1967) (hot pursuit); cf. Preston v. United States, 376 U.S. 364, 367-368
Camara v. Municipal Court, 387 U.S. 523, 534-535, 536-537 (1967). And,
in justifying the particular intrusion, the police officer must be able to point
to specific and articulable facts which, taken together with rational
inferences from those facts, reasonably warrant that intrusion. [n18] The
scheme of the Fourth Amendmentbecomes meaningful only when it is
assured that, at some point, the conduct of those charged with enforcing the
laws can be subjected to the more detached, neutral scrutiny of a judge who
must evaluate the reasonableness of a particular search or seizure in light of
the particular circumstances. [n19] And, in making that assessment, it is
imperative that the facts be judged against an objective standard: would the
facts [p22] available to the officer at the moment of the seizure or the search
"warrant a man of reasonable caution in the belief" that the action taken was
appropriate? Cf. Carroll v. United States, 267 U.S. 132 (1925);Beck v.
Ohio, 379 U.S. 89, 96-97 (1964). [n20] Anything less would invite intrusions
upon constitutionally guaranteed rights based on nothing more substantial
than inarticulate hunches, a result this Court has consistently refused to
sanction. See, e.g., Beck v. Ohio, supra; Rios v. United States, 364 U.S.
253 (1960); Henry v. United States, 361 U.S. 98 (1959). And simple "good
faith on the part of the arresting officer is not enough." . . . If subjective
good faith alone were the test, the protections of the Fourth
police officer in taking steps to assure himself that the person with whom he
is dealing is not armed with a weapon that could unexpectedly and fatally
be used against him. Certainly it would be unreasonable to require that
police officers take unnecessary risks in the performance of their duties.
American criminals have a long tradition of armed violence, and every year
in this country many law enforcement officers are killed in the line of duty,
and thousands more are wounded. [p24] Virtually all of these deaths and a
substantial portion of the injuries are inflicted with guns and knives. [n21]
In view of these facts, we cannot blind ourselves to the need for law
enforcement officers to protect themselves and other prospective victims of
violence in situations where they may lack probable cause for an arrest.
When an officer is justified in believing that the individual whose
suspicious behavior he is investigating at close range is armed and presently
dangerous to the officer or to others, it would appear to be clearly
unreasonable to deny the officer the power to take necessary measures to
determine whether the person is, in fact, carrying a weapon and to
neutralize the threat of physical harm.
We must still consider, however, the nature and quality of the intrusion on
individual rights which must be accepted if police officers are to be
conceded the right to search for weapons in situations where probable cause
to arrest for crime is lacking. Even a limited search of the outer clothing for
weapons constitutes a severe, [p25] though brief, intrusion upon cherished
personal security, and it must surely be an annoying, frightening, and
perhaps humiliating experience. Petitioner contends that such an intrusion is
permissible only incident to a lawful arrest, either for a crime involving the
possession of weapons or for a crime the commission of which led the
officer to investigate in the first place. However, this argument must be
closely examined.
Petitioner does not argue that a police officer should refrain from making
any investigation of suspicious circumstances until such time as he has
probable cause to make an arrest; nor does he deny that police officers, in
properly discharging their investigative function, may find themselves
confronting persons who might well be armed and dangerous. Moreover, he
does not say that an officer is always unjustified in searching a suspect to
McFadden detailed before the trial judge, a reasonably prudent man would
have been warranted in believing petitioner was armed, and thus presented a
threat to the officer's safety while he was investigating his suspicious
behavior. The actions of Terry and Chilton were consistent with
McFadden's hypothesis that these men were contemplating a daylight
robbery -- which, it is reasonable to assume, would be likely to involve the
use of weapons -- and nothing in their conduct from the time he first noticed
them until the time he confronted them and identified himself as a police
officer gave him sufficient reason to negate that hypothesis. Although the
trio had departed the original scene, there was nothing to indicate
abandonment of an intent to commit a robbery at some point. Thus, when
Officer McFadden approached the three men gathered before the display
window at Zucker's store, he had observed enough to make it quite
reasonable to fear that they were armed, and nothing in their response to his
hailing them, identifying himself as a police officer, and asking their names
served to dispel that reasonable belief. We cannot say his decision at that
point to seize Terry and pat his clothing for weapons was the product of a
volatile or inventive imagination, or was undertaken simply as an act of
harassment; the record evidences the tempered act of a policeman who, in
the course of an investigation, had to make a quick decision as to how to
protect himself and others from possible danger, and took limited steps to
do so.
The manner in which the seizure and search were conducted is, of course, as
vital a part of the inquiry as whether they were warranted at all. The Fourth
Amendment proceeds as much by limitations upon the [p29] scope of
governmental action as by imposing preconditions upon its
initiation. Compare Katz v. United States, 389 U.S. 347, 354-356 (1967).
The entire deterrent purpose of the rule excluding evidence seized in
violation of the Fourth Amendment rests on the assumption that "limitations
upon the fruit to be gathered tend to limit the quest itself." United States v.
Poller, 43 F.2d 911, 914 (C.A.2d Cir.1930); see, e.g., Linkletter v.
Walker, 381 U.S. 618, 629-635 (1965); Mapp v. Ohio, 367 U.S.
643 (1961); Elkins v. United States, 364 U.S. 206, 216-221 (1960). Thus,
evidence may not be introduced if it was discovered by means of a seizure
and search which were not reasonably related in scope to the justification
for their initiation. Warden v. Hayden,387 U.S. 294, 310 (1967) (MR.
JUSTICE FORTAS, concurring).
We need not develop at length in this case, however, the limitations which
the Fourth Amendment places upon a protective seizure and search for
weapons. These limitations will have to be developed in the concrete factual
circumstances of individual cases. See Sibron v. New York, post, p. 40,
decided today. Suffice it to note that such a search, unlike a search without
a warrant incident to a lawful arrest, is not justified by any need to prevent
the disappearance or destruction of evidence of crime. See Preston v.
United States, 376 U.S. 364, 367 (1964). The sole justification of the search
in the present situation is the protection of the police officer and others
nearby, and it must therefore be confined in scope to an intrusion
reasonably designed to discover guns, knives, clubs, or other hidden
instruments for the assault of the police officer.
The scope of the search in this case presents no serious problem in light of
these standards. Officer McFadden patted down the outer clothing of
petitioner and his two companions. He did not place his hands in their
pockets or under the outer surface of their garments until he had [p30] felt
weapons, and then he merely reached for and removed the guns. He never
did invade Katz' person beyond the outer surfaces of his clothes, since he
discovered nothing in his pat-down which might have been a weapon.
Officer McFadden confined his search strictly to what was minimally
necessary to learn whether the men were armed and to disarm them once he
discovered the weapons. He did not conduct a general exploratory search
for whatever evidence of criminal activity he might find.
V
We conclude that the revolver seized from Terry was properly admitted in
evidence against him. At the time he seized petitioner and searched him for
weapons, Officer McFadden had reasonable grounds to believe that
petitioner was armed and dangerous, and it was necessary for the protection
of himself and others to take swift measures to discover the true facts and
neutralize the threat of harm if it materialized. The policeman carefully
restricted his search to what was appropriate to the discovery of the
particular items which he sought. Each case of this sort will, of course, have
to be decided on its own facts. We merely hold today that, where a police
officer observes unusual conduct which leads him reasonably to conclude in
light of his experience that criminal activity may be afoot and that the
persons with whom he is dealing may be armed and presently dangerous,
where, in the course of investigating this behavior, he identifies himself as a
policeman and makes reasonable inquiries, and where nothing in the initial
stages of the encounter serves to dispel his reasonable fear for his own or
others' safety, he is entitled for the protection of himself and others in the
area to conduct a carefully limited search of the outer clothing of such
persons in an attempt to discover weapons which might be used to assault
him. [p31] Such a search is a reasonable search under the Fourth
Amendment, and any weapons seized may properly be introduced in
evidence against the person from whom they were taken.
Affirmed.
MR. JUSTICE BLACK concurs in the judgment and the opinion except
where the opinion quotes from and relies upon this Court's opinion in Katz
v. United States and the concurring opinion in Warden v. Hayden.
scrutinized with extreme caution; and 3). The evidence of the prosecution
stands or falls on its own merits and cannot be allowed to draw strength
from the weakness of the defense.
3.
CRIMINAL LAW; RAPE UNDER R.A. 8353; RECLASSIFIED AS A CRIME AGAINST PERSONS. At the time of
the commission of this heinous act, rape was still considered a crime against
chastity, although under the Anti-Rape Law of 1997 (R.A. No. 8353), rape
has since been re-classified as a crime against persons under Articles 266-A
and 266-B, and thus, may be prosecuted even without a complaint filed by
the offended party.
4.
ID.; RAPE; ELEMENTS. The gravamen of the offense of
rape, prior to R.A. 8353, is sexual congress with a woman by force and
without consent. (Under the new law, rape may be committed even by a
woman and the victim may even be a man.) If the woman is under 12 years
of age, proof of force and consent becomes immaterial not only because
force is not an element of statutory rape, but the absence of a free consent is
presumed when the woman is below such age. Conviction will therefore lie,
provided sexual intercourse is proven. But if the woman is 12 years of age
or over at the time she was violated, as in this case, not only the first
element of sexual intercourse must be proven but also the other element that
the perpetrator's evil acts with the offended party was done through force,
violence, intimidation or threat needs to be established. Both elements are
present in this case.
5.
ID.; ID.; MERE TOUCHING OF THE MALE ORGAN ON
LABIA OF PUDENDUM, SUFFICIENT TO CONSUMMATE RAPE.
In proving sexual intercourse, it is not full or deep penetration of the
victim's vagina; rather the slightest penetration of the male organ into the
female sex organ is enough to consummate the sexual intercourse. The mere
touching by the male's organ or instrument of sex of the labia of the
pudendum of the woman's private parts is sufficient to consummate rape.
6.
ID.; ID.; FORCE EMPLOYED ON VICTIM, PROVEN IN
CASE AT BAR. From the wounds, contusions and abrasions suffered
by the victim, force was indeed employed upon her to satisfy carnal lust.
Moreover, from appellant's own account, he pushed the victim causing the
latter to hit her head on the table and fell unconscious. It was at that
instance that he ravished her and satisfied his salacious and prurient desires.
Considering that the victim, at the time of her penile invasion, was
unconscious, it could safely be concluded that she had not given free and
voluntary consent to her defilement, whether before or during the sexual
act.
7.
REMEDIAL LAW; EVIDENCE; CREDIBILITY; FINDINGS
OF FACTS AND ASSESSMENT OF CREDIBILITY OF WITNESSES
BY THE TRIAL COURT RECEIVED WITH HIGHEST RESPECT
ON APPEAL. Settled is the rule that the findings of facts and
assessment of credibility of witnesses is a matter best left to the trial court
because of its unique position of having observed that elusive and
incommunicable evidence of the witnesses' deportment on the stand while
testifying, which opportunity is denied to the appellate courts. In this case,
the trial court's findings, conclusions and evaluation of the testimony of
witnesses is received on appeal with the highest respect, the same being
supported by substantial evidence on record. There was no showing that the
court a quo had overlooked or disregarded relevant facts and circumstances
which when considered would have affected the outcome of this case or
justify a departure from the assessments and findings of the court below.
The absence of any improper or ill-motive on the part of the principal
witnesses for the prosecution all the more strengthens the conclusion that no
such motive exists. Neither was any wrong motive attributed to the police
officers who testified against appellant.
8.
CRIMINAL LAW; RAPE WITH HOMICIDE; PENALTY.
Death being a single indivisible penalty and the only penalty prescribed by
law for the crime of "rape with homicide," the court has no option but to
apply the same "regardless of any mitigating or aggravating circumstance
that may have attended the commission of the crime" in accordance with
Article 63 of the RPC, as amended. This case of rape with homicide carries
with it penalty of death which is mandatorily imposed by law within the
import of Article 47 of the RPC, as amended.
9.
CIVIL LAW; DAMAGES; INDEMNITY FOR RAPE.
Pursuant to current case law, a victim of simple rape is entitled to a civil
indemnity of fifty thousand pesos (P50,000.00) but if the crime of rape is
committed or effectively qualified by any of the circumstances under which
the death penalty is authorized by present amended law, the civil indemnity
for the victim shall be not less than seventy-five thousand pesos
(P75,000.00). In addition to such indemnity, she can also recover moral
damages pursuant to Article 2219 of the Civil Code in such amount as the
court deems just, without the necessity for pleading or proof of the basis
thereof. Civil indemnity is different from the award of moral and exemplary
damages.
10.
ID.; ID.; MORAL DAMAGES; AWARDED TO RAPE
VICTIM WITHOUT NEED FOR PLEADING OR PROOF OF BASIS.
The requirement of proof of mental and physical suffering provided in
Article 2217 of the Civil Code is dispensed with because it is "recognized
that the victim's injury is inherently concomitant with and necessarily
resulting from the odious crime of rape to warrant per se the award of moral
damages." Thus, it was held that a conviction for rape carries with it the
award of moral damages to the victim without need for pleading or proof of
the basis thereof.
11.
ID.; ID.; EXEMPLARY DAMAGES; AWARDED IF
COMMISSION OF CRIME WAS ATTENDED BY ONE OR MORE
AGGRAVATING CIRCUMSTANCES. Exemplary damages can also
be awarded if the commission of the crime was attended by one or more
aggravating circumstances pursuant to Article 2230 of the Civil Code after
proof that the offended party is entitled to moral, temperate and
compensatory damages. Under the circumstances of this case, appellant is
liable to the victim's heirs for the amount of P75,000.00 as civil indemnity
and P50,000.00 as moral damages.
DECISION
PER CURIAM p:
A violation of the dignity, purity and privacy of a child who is still innocent
and unexposed to the ways of worldly pleasures is a harrowing experience
that destroys not only her future but of the youth population as well, who in
the teachings of our national hero, are considered the hope of the fatherland.
Once again, the Court is confronted by another tragic desecration of human
dignity, committed no less upon a child, who at the salad age of a few days
past 12 years, has yet to knock on the portals of womanhood, and met her
untimely death as a result of the "intrinsically evil act" of non-consensual
sex called rape. Burdened with the supreme penalty of death, rape is an
ignominious crime for which necessity is neither an excuse nor does there
exist any other rational justification other than lust. But those who lust
ought not to last.
The Court quotes with approval from the People's Brief, the facts narrating
the horrible experience and the tragic demise of a young and innocent child
in the bloody hands of appellant, as such facts are ably supported by
evidence on record:
"Appellant Larry Mahinay started working as houseboy with Maria Isip on
November 20, 1993. His task was to take care of Isip's house which was
under construction adjacent to her old residence situated inside a compound
at No. 4165 Dian Street, Gen. T. de Leon, Valenzuela, Metro Manila. But
he stayed and slept in an apartment also owned by Isip, located 10 meters
away from the unfinished house (TSN, September 6, 1995, pp. 5-10).
"The victim, Ma. Victoria Chan, 12 years old, was Isip's neighbor in Dian
Street. She used to pass by Isip's house on her way to school and play inside
the compound yard, catching maya birds together with other children.
While they were playing, appellant was always around washing his clothes.
Inside the compound yard was a septic tank (TSN, August 22, 1995, pp. 2931; September 6, 1995, pp. 17; 20-22).
"On June 25, 1995, at 8 o'clock a.m., appellant joined Gregorio Rivera in a
drinking spree. Around 10 o'clock in the morning, appellant, who was
already drunk, left Gregorio Rivera and asked permission from Isip to go
out with his friends (TSN, September 6, 1995, pp. 9-11).
"Meantime, Isip's sister-in-law, Norgina Rivera, who also owned a store
fronting the compound, saw Ma. Victoria on that same day three to four
times catching birds inside Isip's unfinished house around 4 o'clock in the
afternoon. The unfinished house was about 8 meters away from Rivera's
store (TSN, September 18, 1995, pp. 9-11).
"On the other hand, Sgt. Roberto Suni, also a resident of Dian Street, went
to his in-law's house between 6 to 7 o'clock p.m. to call his office regarding
changes on the trip of President Fidel V. Ramos. The house of his in-laws
was near the house of Isip. On his way to his in-law's house, Sgt. Suni met
appellant along Dian Street. That same evening, between 8 to 9 o'clock
p.m., he saw Ma. Victoria standing in front of the gate of the unfinished
house (TSN, September 27, 1995, pp. 3-7; 14-17).
"Later, at 9 o'clock in the evening, appellant showed up at Norgina Rivera's
store to buy lugaw. Norgina Rivera informed appellant that there was none
left of it. She notice that appellant appeared to be uneasy and in deep
thought. His hair was disarrayed; he was drunk and was walking in a dazed
manner. She asked why he looked so worried but he did not answer. Then
he left and walked back to the compound (TSN, September 18, 1995, pp. 48; 12-14).
"Meanwhile, Elvira Chan noticed that her daughter, Ma. Victoria, was
missing. She last saw her daughter wearing a pair of white shorts, brown
belt, a yellow hair ribbon, printed blue blouse, dirty white panty, white lady
sando and blue rubber slippers (TSN, August 23, 1995, pp. 22, 33).
"Isip testified that appellant failed to show up for supper that night. On the
following day, June 26, 1995, at 2 o'clock in the morning, appellant boarded
a passenger jeepney driven by Fernando Trinidad at the talipapa. Appellant
alighted at the top of the bridge of the North Expressway and had thereafter
disappeared (TSN, September 20, 1995, pp. 4-9; September 27, 1995; pp.
14-17).
"That same morning, around 7:30, a certain Boy found the dead body of
Ma. Victoria inside the septic tank. Boy immediately reported what he saw
to the victim's parents, Eduardo and Elvira Chan (TSN, September 6, 1995,
p. 13).
"With the help of the Valenzuela Police, the lifeless body of Ma. Victoria
was retrieved from the septic tank. She was wearing a printed blouse
without underwear. Her face bore bruises. Results of the autopsy revealed
the following findings:
Cyanosis, lips and nailbeds,
Contusions, suprapubic area, 6.0 x 3.0 cm., thigh right,
Anterior aspect, middle third, 4.5 x 3.0 cm.
Contused-abrasions on the forehead, 5.0 x 5.0 cm. angle of the left eye,
lateral aspect, 2.5 x 1.5 cm. left jaw, 13.5 x 7.0 cm. neck, antero-lateral
aspect, right, 2.0 x 1.0 cm. and left, 7.0 x 6.0 cm., left iliac area, 9.0 x 5.5
cm. intraclavicular area, left, posterior aspect, 4.0 x 2.0 cm. scapular area,
right 4.0 x 4.0 cm. subscapular area, left, 1.5 x 1.5 cm. lumbar area, left 7.0
x 8.0 cm. arm, left, posterior aspect, middle third, 11.00 x 4.0 cm elbows,
right, 4.0 x 3.0 cm. and left 6.0 x 5.0 cm. forearms, left, posterior aspect,
lower rd, 5.2 x 4.0 cm. hand, left, dorsal aspect, 0.8 x 0.9 cm. thighs; right
antero-lateral aspect, upper 33rd, 12.0 x 10.0 cm. right anterior aspect,
lower 3rd 5.0 x 2.0 cm. and left antero-lower 3rd, 5.5 x 2.5 cm. knee, right,
lateral aspect, 1.5 x 1.0 cm. lateral mallcolum, left, 3.0 x 3.5 cm. foot, left,
dorsal aspect 2.2 x 1.0 cm.
Hematoma, forehead, and scalp, left, 3.5 x 3.0 cm.
Hemorrhage, interstitial, underneath nailmarks, neck, subepicardial,
subpleural petechial hemorrhages.
Hemorrhage, subdural, left fronto-parietal area.
Tracheo-bronchial tree, congested.
Other visceral organs, congested.
Stomach, contain 1/4 rice and other food particles.
CAUSE OF DEATH Asphyxia by Manual Strangulation; Traumatic
Head Injury, Contributory.
REMARKS: Hymen: tall, thick with complete lacerations at 4:00 and 8:00
o'clock position corresponding to the face of a watch edges congested with
blood clots. (TSN, August 18, 1995; p. 4; Record, p. 126)
"Back in the compound, SPO1 Arsenio Nacis and SPO1 Arnold Alabastro
were informed by Isip that her houseboy, appellant Larry Mahinay, was
missing. According to her, it was unlikely for appellant to just disappear
from the apartment since whenever he would go out, he would normally
return on the same day or early morning of the following day (TSN,
September 6, 1995, pp. 6-11-27).
to them that he was not alone in raping and killing the victim. He pointed to
Zaldy and Boyet as his co-conspirators (TSN, August 14, 1995, pp. 13-21)."
"SPO1 Nacis and SPO1 Alabastro were also informed that a townmate of
appellant was working in a pancit factory at Barangay Reparo, Caloocan
City. They proceeded to said place. The owner of the factory confirmed to
them that appellant used to work at the factory but she did not know his
present whereabouts. Appellant's townmate, on the other hand, informed
them that appellant could possibly be found on 8th Street, Grace Park,
Caloocan City (TSN, August 14, 1995, pp. 8-9).
Thus, on July 10, 1995, appellant was charged with rape with homicide in
an Information which reads:
"That on or about the 26th day of June 1995 in Valenzuela, Metro Manila
and within the jurisdiction of this Honorable Court the above-named
accused, by means of force and intimidation employed upon the person of
MARIA VICTORIA CHAN y CABALLERO, age 12 years old, did then
and there wilfully, unlawfully and feloniously lie with and have sexual
intercourse with said MARIA VICTORIA CHAN Y CABALLERO against
her will and without her consent; that on the occasion of said sexual assault,
the above-named accused, choke and strangle said MARIA VICTORIA
CHAN Y CABALLERO as a result of which, said victim died.
"The policemen returned to the scene of the crime. At the second floor of
the house under construction, they retrieved from one of the rooms a pair of
dirty white short pants, a brown belt and a yellow hair ribbon which was
identified by Elvira Chan to belong to her daughter, Ma. Victoria. They also
found inside another room a pair of blue slippers which Isip identified as
that of appellant. Also found in the yard, three armslength away from the
septic tank were an underwear, a leather wallet, a pair of dirty long pants
and a pliers positively identified by Isip as appellant's belongings. These
items were brought to the police station (TSN, August 14, 1995, pp. 10-13;
August 18, 1995, pp. 3-8; August 23, 1995, pp. 21-25).
"Contrary to law."
to which he pleaded not guilty. After trial, the lower court rendered a
decision convicting appellant of the crime charged, sentenced him to suffer
the penalty of death and to pay a total of P73,000.00 to the victim's heirs.
The dispositive portion of the trial court's decision states:
"WHEREFORE, finding accused Larry Mahinay y Amparado guilty beyond
reasonable doubt of the crime charged, he is hereby sentenced to death by
electricution (sic). He is likewise condemned to indemnify the heirs of the
victim, Ma. Victoria Chan the amount of P50,000.00 and to pay the further
sum of P23,000.00 for the funeral, burial and wake of the victim.
In the case at bench, the trial court gave credence to several circumstantial
evidence, which upon thorough review of the Court is more than enough to
prove appellant's guilt beyond the shadow of reasonable doubt. These
circumstantial evidence are as follows:
"FIRST Prosecution witness Norgina Rivera, sister-in-law of Maria Isip,
owner of the unfinished big house where the crime happened and the septic
tank where the body of Maria Victoria Chan was found in the morning of
June 26, 1995 is located, categorically testified that at about 9:00 in the
evening on June 25, 1995, accused Larry Mahinay was in her store located
in front portion of the compound of her sister-in-law Maria Isip where the
unfinished big house is situated buying rice noodle (lugaw). That she
noticed the accused's hair was disarranged, drunk and walking in sigsaging
manner. That the accused appeared uneasy and seems to be thinking deeply.
That the accused did not reply to her queries why he looked worried but
went inside the compound.
"SECOND Prosecution witness Sgt. Roberto G. Suni, categorically
testified that on June 25, 1995 between 6:00 and 7:00 in the evening, on his
way to his in-law's house, he met accused Larry Mahinay walking on the
road leading to his in-law's residence which is about 50 to 75 meters away
to the unfinished big house of Maria Isip. That he also saw victim Maria
Victoria Chan standing at the gate of the unfinished big house of Maria Isip
between 8:00 and 9:00 in the same evening.
"THIRD Prosecution witness Maria Isip, owner of the unfinished big
house where victim's body was found inside the septic tank, testified that
accused Larry Mahinay is her houseboy since November 20, 1993. That in
the morning of June 25, 1995, a Sunday, Larry Mahinay asked permission
from her to leave. That after finishing some work she asked him to do
accused Larry Mahinay left. That it is customary on the part of Larry
Mahinay to return in the afternoon of the same day or sometimes in the next
morning. That accused Larry Mahinay did not return until he was arrested
in Batangas on July 7, 1995.
"FOURTH Prosecution witness Fernando Trinidad, a passenger jeepney
driver plying the route Karuhatan-Ugong and vice versa which include
Diam St., Gen. T. de Leon, Valenzuela, Metro Manila, pinpointed the
accused Larry Mahinay as one of the passengers who boarded his passenger
jeepney on June 26, 1995 at 2:00 early morning and alighted on top of the
overpass of the North Expressway.
"FIFTH Personal belongings of the victim was found in the unfinished
big house of Maria Isip where accused Larry Mahinay slept on the night of
the incident. This is a clear indication that the victim was raped and killed in
the said premises.
"There is no showing that the testimonies of the prosecution witnesses (sic)
fabricated or there was any reason for them to testify falsely against the
accused. The absence of any evidence as to the existence of improper
motive sustain the conclusion that no such improper motive exists and that
the testimonies of the witnesses, therefore, should be given full faith and
credit. (People vs. Retubado, 58585 January 20, 1988, 162 SCRA 276, 284;
People vs. Ali, L-18512 October 30, 1969, 29 SCRA 756).
"SIXTH Accused Larry Mahinay during the custodial investigation and
after having been informed of his constitutional rights with the assistance of
Atty. Restituto Viernes of the Public Attorney's Office voluntarily gave his
statement admitting the commission of the crime. Said confession of
accused Larry Mahinay given with the assistance of Atty. Restituto Viernes
is believed to have been freely and voluntarily given. That accused did not
complain to the proper authorities of any maltreatment on his person
(People vs. delos Santos, L-3398 May 29, 1984; 150 SCRA 311). He did
not even informed the Inquest Prosecutor when he sworn to the truth of his
statement on July 8, 1995 that he was forced, coersed or was promised of
reward or leniency. That his confession abound with details known only to
him. The Court noted that a lawyer from the Public Attorneys Office Atty.
Restituto Viernes and as testified by said Atty. Viernes he informed and
explained to the accused his constitutional rights and was present all
throughout the giving of the testimony. That he signed the statement given
by the accused. Lawyer from the Public Attorneys Office is expected to be
watchful and vigilant to notice any irregularity in the manner of the
investigation and the physical conditions of the accused. The post mortem
findings show that the cause of death Asphyxia by manual strangulation;
Traumatic Head injury Contributory substantiate. Consistent with the
testimony of the accused that he pushed the victim and the latter's head hit
the table and the victim lost consciousness.
ground floor. Boyet and Zaldy can easily disposed and dumped the body in
the septic tank by themselves.
"It is likewise strange that the dead body of the child was taken to the room
where accused Larry Mahinay was sleeping only to force the latter to have
sex with the dead body of the child.
"We have no test to the truth of human testimony except it's conformity to
aver knowledge observation and experience. Whatever is repugnant to these
belongs to the miraculous. (People vs. Santos, L-385 Nov. 16, 1979)"
"EIGHT If the accused did not commit the crime and was only forced to
disposed/dumped the body of the victim in the septic tank, he could have
apprise Col. Maganto, a high ranking police officer or the lady reporter who
interviewed him. His failure and omission to reveal the same is unnatural.
An innocent person will at once naturally and emphatically repel an
accusation of crime as a matter of preservation and self-defense and as a
precaution against prejudicing himself. A person's silence therefore,
particularly when it is persistent will justify an inference that he is not
innocent. (People vs. Pilones, L-32754-5 July 21, 1978).
"NINTH The circumstance of flight of the accused strongly indicate his
consciousness of guilt. He left the crime scene on the early morning after
the incident and did not return until he was arrested in Batangas on July 7,
1995."
Guided by the three principles in the review of rape cases, to wit:
1).
An accusation for rape can be made with facility; it is difficult to
prove but more difficult for the person accused, though innocent, to
disprove;
2).
In view of the intrinsic nature of the crime of rape, where only two
persons are usually involved, the testimony of the complainant is
scrutinized with extreme caution; and
3).
The evidence of the prosecution stands or falls on its own merits
and cannot be allowed to draw strength from the weakness of the defense.
The foregoing circumstantial evidence clearly establishes the felony of rape
with homicide defined and penalized under Section 335 of the Revised
Penal Code, as amended by Section 11, R.A. 7659, which provides:
"When and how rape is committed. Rape is committed by having carnal
knowledge of a woman under any of the following circumstances.
1.)
By using force or intimidation;
2.)
When the woman is deprived of reason or otherwise unconscious;
and
3.)
When the woman is under twelve years of age or is demented.
The crime of rape shall be punished by reclusion perpetua.
Whenever the crime of rape is committed with use of a deadly weapon or
by two or more persons, the penalty shall be reclusion perpetua to death.
6.)
When committed by any member of the Armed Forces of the
Philippines or Philippine National Police or any law enforcement agency.
7.)
When by reason or on the occasion of the rape, the victim has
suffered permanent physical mutilation.
At the time of the commission of this heinous act, rape was still considered
a crime against chastity, although under the Anti-Rape Law of 1997 (R.A.
No. 8353), rape has since been re-classified as a crime against persons
under Articles 266-A and 266-B, and thus, may be prosecuted even without
a complaint filed by the offended party.
The gravamen of the offense of rape, prior to R.A. 8353, is sexual congress
with a woman by force and without consent. (Under the new law, rape may
be committed even by a woman and the victim may even be a man.) If the
woman is under 12 years of age, proof of force and consent becomes
immaterial not only because force is not an element of statutory rape, but
the absence of a free consent is presumed when the woman is below such
age. Conviction will therefore lie, provided sexual intercourse is proven.
But if the woman is 12 years of age or over at the time she was violated, as
in this case, not only the first element of sexual intercourse must be proven
but also the other element that the perpetrator's evil acts with the offended
party was done through force, violence, intimidation or threat needs to be
established. Both elements are present in this case.
The death penalty shall also be imposed if the crime of rape is committed
with any of the following attendant circumstances:
1.)
When the victim is under eighteen (18) years of age and the
offender is a parent, ascendant, step-parent, guardian, relative by
consanguinity or affinity within the third civil degree, or the common-law
spouse of the parent of the victim.
2.)
When the victim is under the custody of the police or military
authorities.
3.)
When the rape is committed in full view of the husband, parent,
any of the children or other relatives within the third degree of
consanguinity.
4.)
When the victim is a religious or a child below seven (7) years old.
5.)
When the offender knows that he is afflicted with Acquired
Immune Deficiency Syndrome (AIDS) disease.
Based on the evidence on record, sexual intercourse with the victim was
adequately proven. This is shown from the testimony of the medical doctor
who conducted post mortem examination on the child's body:
Q:
And after that what other parts of the victim did you examine?
A:
Then I examined the genitalia of the victim.
Q:
And what did you find out after you examined the genitalia of the
victim?
A:
The hymen was tall-thick with complete laceration at 4:00 o'clock
and 8:00 o'clock position and that the edges were congested.
Q:
Now, what might have caused the laceration?
A:
Under normal circumstances this might have (sic) caused by a
penetration of an organ.
Q:
So, the laceration was caused by the penetration of a male organ?
A:
Adult male organ, sir.
When by reason or on the occasion of the rape, the victim has become
insane, the penalty shall be death.
When the rape is attempted or frustrated and a homicide is committed by
reason or on the occasion thereof, the penalty shall be reclusion perpetua to
death.
Q:
You are very sure of that, Mr. Witness?
A:
I am very sure of that.
Besides, as may be gleaned from his extrajudicial confession, appellant
himself admitted that he had sexual congress with the unconscious child.
"15. T: Ano ang nangyari ng mga sandali o oras na iyon?
S:
Natutulog po ako sa itaas ng bahay ni ATE MARIA, yung
malaking bahay na ginagawa, tapos dumating yung batang babae. Pagpasok niya sa kuwarto hinawakan ko siya sa kamay tapos tinulak ko siya.
Tapos tumama yung ulo niya sa mesa. Ayon na, nakakatulog na siya tapos
ni rape ko na siya.
"16. T: Ano ang suot nung batang babae na sinasabi mo?
S:
Itong short na ito, (pointing to a dirty white short placed atop this
investigator's table. Subject evidence were part of evidences recovered at
the crime scene).
"17. T: Bakit mo naman ni rape yung batang babae?
S:
Eh nasobrahan ako ng lasing. Hindi ko na alam ang ginagawa ko.
"18. T: Ano ba ang inyong ininom bakit ka nasobrahan ng lasing?
S:
Red Horse po at saka GIN.
"19. T: Saan lugar ng malaking bahay ni ATE MARIA mo ni rape yung
batang babae?
S:
Sa kuwarto ko po sa itaas.
"20. T: Kailan ito at anong oras nangyari?
S:
Mga bandang alas 8:00 ng gabi, araw ng Linggo, hindi ko na
matandaan kung anong petsa, basta araw ng Linggo.
"21. T: Saan lugar ito nangyari?
S:
Sa Diam, Gen. T. de Leon, Valenzuela, M.M.
"22. T: Alam mo ba ang pangalan ng batang babae na ni rape mo?
S:
Hindi ko po alam.
"23. T: Ngayon, nais kong ipaalam sa iyo na ang pangalan ng batang
babae na iyong ni rape at pinatay ay si MA. VICTORIA CHAN?
Matatandaan mo ba ito?
S:
Oho.
"24. T: Nung ma-rape mo, nakaraos ka ba?
S:
Naka-isa po.
"25. T: Nais kong liwanagin sa iyo kung ano ang ibig sabihin ng
'NAKARAOS', maaari bang ipaliwanag mo ito?
S:
Nilabasan po ako ng tamod.
"26. T: Nung nakaraos ka, nasaan parte ng katawan ng batang babae yung
iyong ari?
S:
Nakapasok po doon sa ari nung babae.
"27. T: Natapos mong ma-rape si MA. VICTORIA CHAN, ano pa ang
sumunod mong ginawa?
S:
Natulak ko siya sa terrace.
"28. T: Ano ang nangyari kay MA. VICTORIA matapos mong itulak sa
terrace?
S:
Inilagay ko po sa poso-negra.
"29. T: Saan makikita yung poso-negra na sinasabi mo?
S:
Doon din sa malaking bahay ni ATE MARIA.
30. T: Bakit mo namang naisipang ilagay si MA. VICTORIA sa posonegra?
S:
Doon ko lang po inilagay.
"31. T: Bakit nga doon mo inilagay siya?
S:
Natatakot po ako.
"32. T: Kanino ka natatakot?
S:
Natatakot po ako sa ginawa kong masama, natatakot ako sa mga
pulis.
"33. T: Buhay pa ba si MA. VICTORIA nung ilagay mo siya sa posonegra?
S:
Hindi ko po alam dahil nung pagbagsak niya inilagay ko na siya sa
poso-negra.
34. T: Nung gawin mo ba itong krimen na ito, mayroon ka kasama?
S:
Nag-iisa lang po ako.
"35. T: Noong mga oras o sandaling gahasain mo si MA. VICTORIA
CHAN, buhay pa ba siya o patay na?
S:
Buhay pa po.
"36. T: Papaano mo siya pinatay?
S:
Tinulak ko nga po siya sa terrace."
In proving sexual intercourse, it is not full or deep penetration of the
victim's vagina; rather the slightest penetration of the male organ into the
female sex organ is enough to consummate the sexual intercourse. 22 The
mere touching by the male's organ or instrument of sex of the labia of the
pudendum of the woman's private parts is sufficient to consummate rape.
From the wounds, contusions and abrasions suffered by the victim, force
was indeed employed upon her to satisfy carnal lust. Moreover, from
appellant's own account, he pushed the victim causing the latter to hit her
head on the table and fell unconscious. It was at that instance that he
ravished her and satisfied his salacious and prurient desires. Considering
that the victim, at the time of her penile invasion, was unconscious, it could
safely be concluded that she had not given free and voluntary consent to her
defilement, whether before or during the sexual act.
Another thing that militates against appellant is his extrajudicial confession,
which he, however, claims was executed in violation of his constitutional
right to counsel. But his contention is belied by the records as well as the
testimony of the lawyer who assisted, warned and explained to him his
constitutionally guaranteed pre-interrogatory and custodial rights. As
testified to by the assisting lawyer:
"Q
Will you please inform the Court what was that call about?
"A
We went to the station, police investigation together with Atty.
Froilan Zapanta and we were told by Police Officer Alabastro that one
Larry Mahinay would like to confess of the crime of, I think, rape with
homicide.
"Q
And upon reaching the investigation room of Valenzuela PNP who
were the other person present?
"A
Police Officer Alabastro, sir, Police Officer Nacis and other
investigator inside the investigation room and the parents of the child who
was allegedly raped.
"Q
And when you reached the investigation room do you notice
whether the accused already there?
"A
The accused was already there.
"Q
Was he alone?
"A
He was alone, sir.
"Q
So, when you were already infront of SPO1 Arnold Alabastro and
the other PNP Officers, what did they tell you, if any?
"A
They told us together with Atty. Zapanta that this Larry Mahinay
would like to confess of the crime charged, sir.
"Q
By the way, who was that Atty. Zapanta?
"A
Our immediate Superior of the Public Attorney's Office.
"Q
Was he also present at the start of the question and answer period
to the accused?
"A
No more, sir, he already went to our office. I was left alone.
"Q
But he saw the accused, Larry Mahinay?
"A
Yes, sir.
"Q
Now, when Atty. Zapanta left at what time did the question and
answer period start?
"A
If I am not mistaken at around 4:05 of July 7, 1995 in the
afternoon, sir.
"Q
And when this question and answer period started, what was the
first thing that you did as assisting lawyer to the accused?
"A
First, I tried to explain to him his right, sir, under the constitution.
"Q
What are those right?
"A
That he has the right to remain silent. That he has the right of a
counsel of his own choice and that if he has no counsel a lawyer will be
appointed to him and that he has the right to refuse to answer any question
that would incriminate him.
"Q
Now, after enumerating these constitutional rights of accused
Larry Mahinay, do you recall whether this constitutional right enumerated
by you were reduced in writing?
"A
Yes, sir, and it was also explained to him one by one by Police
Officer Alabastro.
"Q
I show to you this constitutional right which you said were reduced
into writing, will you be able to recognize the same?
"A
Yes, sir.
"Q
Will you please go over this and tell the Court whether that is the
same document you mentioned?
"A
Yes, sir, these were the said rights reduced into writing.
ATTY. PRINCIPE:
May we request, Your Honor, that this document be marked as our Exhibit
A proper.
"Q
Do you recall after reducing into writing this constitutional right of
the accused whether you asked him to sign to acknowledge or to conform?
"A
I was the one who asked him, sir. It was Police Officer Alabastro.
"Q
But you were present?
"A
I was then present when he signed.
"Q
There is a signature in this constitutional right after the
enumeration, before and after there are two (2) signatures, will you please
recognize the two (2) signatures?
"A
These were the same signatures signed in my presence, sir.
"Q
The signature of whom?
"A
The signature of Larry Mahinay, sir.
"ATTY. PRINCIPE:
May we request, Your Honor, that the two (2) signatures identified by my
compaero be encircled and marked as Exhibit A-1 and A-2.
"Q
After you said that you apprised the accused of his constitutional
right explaining to him in Filipino, in local dialect, what was the respond of
the accused?
"A
Larry Mahinay said that we will proceed with his statement.
"Q
What was the reply?
"A
He said "Opo".
"Q
Did you ask him of his educational attainment?
"A
It was the Police Officer who asked him.
"Q
In your presence?
"A
In my presence, sir.
"Q
And when he said or when he replied "Opo" so the question
started?
"A
Yes, sir.
"Q
I noticed in this Exhibit A that there is also a waiver of rights, were
you present also when he signed this waiver?
"A
Yes, sir, I was also present.
"Q
Did you explain to him the meaning of this waiver?
"A
I had also explained to him, sir.
"Q
In Filipino?
"A
In Tagalog, sir.
"Q
And there is also a signature after the waiver in Filipino over the
typewritten name Larry Mahinay, "Nagsasalaysay", whose signature is that?
"A
This is also signed in my presence.
"Q
Why are you sure that this is his signature?
"A
He signed in my presence, sir.
"Q
And below immediately are the two (2) signatures. The first one is
when Larry Mahinay subscribed and sworn to, there is a signature here, do
you recognize this signature?
"A
This is my signature, sir.
"Q
And immediately after your first signature is a Certification that
you have personally examined the accused Larry Mahinay and testified that
he voluntary executed the Extra Judicial Confession, do you recognize the
signature?
"A
This is also my signature, sir." (emphasis supplied).
Appellant's defense that two other persons brought to him the dead body of
the victim and forced him to rape the cadaver is too unbelievable. In the
words of Vice-Chancellor Van Fleet of New Jersey.
"Evidence to be believed must not only proceed from the mouth of a
credible witness, but must be credible in itself such as the common
experience and observation of mankind can approve as probable under the
circumstances. We have no test of the truth of human testimony, except its
conformity to our knowledge, observation and experience. Whatever is
repugnant to these belongs to the miraculous, and is outside of judicial
cognizance."
Ultimately, all the foregoing boils down to the issue of credibility of
witnesses. Settled is the rule that the findings of facts and assessment of
credibility of witnesses is a matter best left to the trial court because of its
unique position of having observed that elusive and incommunicable
evidence of the witnesses' deportment on the stand while testifying, which
opportunity is denied to the appellate courts. In this case, the trial court's
findings, conclusions and evaluation of the testimony of witnesses is
received on appeal with the highest respect, the same being supported by
substantial evidence on record. There was no showing that the court a quo
had overlooked or disregarded relevant facts and circumstances which when
considered would have affected the outcome of this case or justify a
departure from the assessments and findings of the court below. The
absence of any improper or ill-motive on the part of the principal witnesses
for the prosecution all the more strengthens the conclusion that no such
motive exists. Neither was any wrong motive attributed to the police
officers who testified against appellant.
Coming now to the penalty, the sentence imposed by the trial court is
correct. Under Article 335 of the Revised Penal Code (RPC), as amended
by R.A. 7659 "when by reason or on occasion of the rape, a homicide is
committed, the penalty shall be death." This special complex crime is
treated by law in the same degree as qualified rape that is, when any of
the 7 (now 10) "attendant circumstances" enumerated in the law is alleged
and proven, in which instances, the penalty is death. In cases where any of
those circumstances is proven though not alleged, the penalty cannot be
death except if the circumstance proven can be properly appreciated as an
aggravating circumstance under Articles 14 and 15 of the RPC which will
affect the imposition of the proper penalty in accordance with Article 63 of
the RPC. However, if any of those circumstances proven but not alleged
cannot be considered as an aggravating circumstance under Articles 14 and
15, the same cannot affect the imposition of the penalty because Article 63
of the RPC in mentioning aggravating circumstances refers to those defined
in Articles 14 and 15. Under R.A. No. 8353, if any of the 10 circumstances
is alleged in the information/complaint, it may be treated as a qualifying
circumstance. But if it is not so alleged, it may be considered as an
aggravating circumstance, in which case the only penalty is death subject
to the usual proof of such circumstance in either case.
Death being a single indivisible penalty and the only penalty prescribed by
law for the crime of "rape with homicide", the court has no option but to
apply the same "regardless of any mitigating or aggravating circumstance
that may have attended the commission of the crime" in accordance with
Article 63 of the RPC, as amended. This case of rape with homicide carries
with it penalty of death which is mandatorily imposed by law within the
import of Article 47 of the RPC, as amended, which provides:
"The death penalty shall be imposed in all cases in which it must be
imposed under existing laws, except when the guilty person is below
eighteen (18) years of age at the time of the commission of the crime or is
more than seventy years of age or when upon appeal or automatic review of
the case by the Supreme Court, the required majority vote is not obtained
for the imposition of the death penalty, in which cases the penalty shall be
reclusion perpetua." (emphasis supplied).
making an arrest and again at and during the time of the custodial
interrogation in accordance with the Constitution, jurisprudence and
Republic Act No. 7438: It is high-time to educate our law-enforcement
agencies who neglect either by ignorance or indifference the so-called
Miranda rights which had become insufficient and which the Court must
update in the light of new legal developments:
1.
The person arrested, detained, invited or under custodial
investigation must be informed in a language known to and understood by
him of the reason for the arrest and he must be shown the warrant of arrest,
if any; Every other warnings, information or communication must be in a
language known to and understood by said person;
2.
He must be warned that he has a right to remain silent and that any
statement he makes may be used as evidence against him;
3.
He must be informed that he has the right to be assisted at all times
and have the presence of an independent and competent lawyer, preferably
of his own choice;
4.
He must be informed that if he has no lawyer or cannot afford the
services of a lawyer, one will be provided for him; and that a lawyer may
also be engaged by any person in his behalf, or may be appointed by the
court upon petition of the person arrested or one acting in his behalf;
5.
That whether or not the person arrested has a lawyer, he must be
informed that no custodial investigation in any form shall be conducted
except in the presence of his counsel or after a valid waiver has been made;
6.
The person arrested must be informed that, at any time, he has the
right to communicate or confer by the most expedient means telephone,
radio, letter or messenger with his lawyer (either retained or appointed),
any member of his immediate family, or any medical doctor, priest or
minister chosen by him or by any one from his immediate family or by his
counsel, or be visited by/confer with duly accredited national or
international non-government organization. It shall be the responsibility of
the officer to ensure that this is accomplished;
7.
He must be informed that he has the right to waive any of said
rights provided it is made voluntarily, knowingly and intelligently and
ensure that he understood the same;
8.
In addition, if the person arrested waives his right to a lawyer, he
must be informed that it must be done in writing AND in the presence of