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G.R. No.

116372 January 18, 2001

THE PEOPLE OF THE PHILIPPINES, represented by the DIRECTOR OF LANDS, petitioner.


vs.
COURT OF APPEALS and ROMEO DIVINAFLOR, respondents.

GONZAGA-REYES, J.:

Before us is a petition for review on certiorari under Rule 45 of the Rules of Court which seeks to
reverse and set aside the decision of the Court of Appeals dated February 8, 1994 in CA-G.R. CV
No. 29578 entitled "The Director of Lands, Petitioner-Appellant v. Romeo Divinaflor. Claimant-
Appelle"1 which affirmed the decision2 of the Regional Trial Court of Ligao, Albay, Branch 12,
rendered in favor of private respondent Romeo Divinaflor. 1wphi1.nt

This case stems from Cadastral Case No. N-11-lV initiated, pursuant to law, by the Director of Lands,
as petitioner before the Regional Trial Court of Ligao, Albay (Branch 12). In due time, Romeo
Divinaflor filed his answer to the petition relative to Lot No. 10739 with an area of 10,775 square
meters situated in Oas, Albay, claiming ownership of said lot by virtue of possession for over thirty
years. The facts, as found by the trial court and affirmed by the Court of Appeals, are as follows.

"Lot 10739 of the cadastral survey of Oas, Albay is one of the parcels of land subject of
these cadastral proceedings. When this case was called for initial hearing, nobody offered
any opposition. Whereupon, an order of general default against the whole world was issued.
Claimant was allowed to present his evidence.

Lot 10739 is one of the uncontested lots. It is a parcel of Riceland situated at Maramba, Oas,
Albay containing an area of 10,775; on the East by Lot 10738; on the South by Lot 10716;
and on the West by Lot 10716. Originally, the land was owned by Marcial Listana who began
possession and occupying the same in the concept of owner, openly, continuously,
adversely, notoriously and exclusively since 1939. He planted palay and harvested about 60
cavans of palay every harvest season. He declared the land in his name under Tax Dec. No.
1987 (Exh. 1). On May 21, 1973, claimant acquired ownership of the land by means of deed
of absolute sale (Exh. 2). He caused the same to be declared in his name under Tax Dec.
No. 1442 (Exh. 3). There was another reassessment under Tax Dec. No. 35 (Exh. 3-a). He
continued planting on the land and all the products are used for the benefit of his family.

The land was surveyed in the name of the previous owner per certification of the CENRO
(Exh. 4). The cadastral survey costs had been paid in the amount of P72.08 under Official
Receipt No. 50652483 (Exh. 5) and the certification thereof (Exh. 5-a). All the realty taxes
has likewise been paid up to the current year per Official Receipt No. 6422679 (Exh. 6)
together with the certification of the Municipal Treasure of Oas, Albay (Exh. 6_A).

There are no liens or encumbrances and neither are there persons claiming adverse
ownership and possession of the land. The lot does not infringe the public road, river or
stream. It is not part of a military reservation, Public Park, watershed or the government's
forest zone. The lot has not been utilized as a bond in civil or criminal cases or as collateral
for a loan in any banking institution. There is no pending petition for its registration under Act
496 known as the Land Registration Act or an application for the issuance of free patent with
the Community Environment and Natural Resources Office (CENRO). Claimant is not legally
disqualified from owning disposable property of the public domain." 3

Finding that the claimant, together with his predecessor-in-interest, has "satisfactorily possessed and
occupied this land in the concept of owner, openly, continuously, adversely, notoriously and
exclusively since 1939 very much earlier to June 12, 1945," the court ordered the registration and
confirmation of Lot 10739 in the name of the Spouses Romeo Divinaflor and Nenita Radan.

The Director of Lands appealed to the Court of Appeals alleging that the finding of the trial court that
claimant-appellee and his predecessor-in-interest have possessed Lot 10739 since 1939 is not
sufficiently supported by the evidence. The Director contended that the earliest tax declaration
presented by claimant took effect only in 1980 and the certificate of real estate tax payment is dated
1990. It was further contended that the testimony of Romeo Divinaflor was largely self-serving, he
being the applicant.

The Court of Appeals affirmed the judgement appealed from. It ruled:

"To our mind, it is not necessary, in cases of this nature, to present tax declarations and tax
receipts of the land in question. All that the law mandates is proof of "open, continuos,
peaceful and adverse possession" which appellee has convincingly established. Repeatedly,
appellant hammers the fact of possession into the record by appellee's testimony on cross-
examination. Thus:

ASST. PROV'L. PROS. CRISOSTOMO:

Q You said that you bought this land from Marcial Listana, and you are referring us to this
deed of sale?

WITNESS:

A Yes, sir.

Q This land is located at Maramba?

A Yes, sir.

Q Since when did Marcial Listana begin possessing this land?

A Since 1939.

Q What was Marcial Listana doiong on the land?

A He was planting palay and sometimes corn.


Q In what concept was he possessing the land?

A In the concept of owner, openly, continuously, adversely, notoriously and exclusively.

Q Do you know whether there are disputes involving the boundaries of the land.

A No, sir.

Q Are there also persons claiming adverse ownership and possession of the land?

A No, sir.

Q Does the land encroach any road, river or stream?

A No, sir.

Q Is this part of a military reservation, public park, watershed or the government's forest
zone?

A No, sir.

Q Have you paid all the taxes on the land?

A Yes, sir.

Q What about the cadastral costs?

A I also paid the same

Q What do you do with the land now?

A I planted palay during rainy season.

Q How many cavans of palay for you harvest every agricultural season?

A I get 40 cavans of palay every harvest season but sometimes more and sometimes
less, during summer month I plant corn and harvest about 8 cavans of unhooked corn.

Q If and when this land will be titled, in whose name would you like the title to be?

A In our names, my wife and myself.

PROSECUTOR CRISOSTOMO;

That is all."4
"While it is true that tax declarations and tax receipts, may be considered as evidence of a
claim of ownership, and when taken in connection with possession, it may be valuable in
support of one's title by prescription. Nevertheless, the mere payment of taxes does not
confer nor prove it. (Viernes, et al. Vs. Agpaoa, 41 Phil. 286. See also Director of Lands vs.
Court of Appeals, 133

The omission to declare the land in question for taxation purposes at the inception of the tax
system in 1901 of this country does not destroy the continuous and adverse possession
under claim of ownership of applicant's predecessors in interest. Fontanilla vs. Director of
Lands, et al., CA-G.R. No. 8371-R Aug. 4, 1952.

Finally, appellant asseverates that the testimony of appellee is insufficient to prove


possession for being self-serving, he being one of the applicants. We remind appellant on
this score that self-serving evidence comes into play only when such is made by the party
out of court and excludes testimony which a party gives as a witness at the trial. (See N.D.C.
vs. Workmen's Compensation, et al., 19 SCRA 861; 31 C.J.S. 952)." 5

Motion for reconsideration of the above-mentioned decision having been denied, the Director of
Lands has brought the instant petition raising the sole issue of-

WHETHER OR NOT THE RESPONDENT HAS AQUIRED REGISTRABLE TITLE OVER


THE SUBJECT PROPERTY.

Petitioner Director of Lands assails the decision of the Court of Appeals on the ground that the law,
as presently phrased, requires that possession of lands of the public domain must be from June 12,
1945 or earlier, for the same to be acquired through judicial confirmation of imperfect title. Petitioner
argues that Divinaflor failed to adduce sufficient evidence to prove possession of the land in question
since June 12, 1945 for the following reasons; (1) Divinaflor failed to present sufficient proof that his
predecessor-in-interest Marcial Listana has possessed the lot since 1939; and (2) Divinaflor in
incompetent to testify on his predecessor's possession since 1939 considering he was born only in
1941, and in 1945, he was only 4 years old.

We find no reversible error in the assailed judgement. Denial of the instant petition I proper in light of
the well-entrenched doctrine upholding the factual findings of the trial court when affirmed by the
Court of Appeals.6 It is likewise very basic that only errors of law and not of facts are revisable by this
Court in petitions for review on certiorari under Rule 45, which is the very rule relied upon by
petitioner.7

While the sole issue as so worded appears to raise an error of law, the arguments that follow in
support thereof pertain to factual issues. In effect, petitioner would have us analyze or weigh all over
again the evidence presented in the courts a quo in complete disregard of the well-settled rule that
"the jurisdiction of this Court in cases brought to it from the Court of Appeals is limited to the review
and revision of errors of law allegedly committed by the appellate court, as its findings of fact are
deemed conclusive. This Court is not bound to analyze and weigh all over again the evidence
already considered in the proceedings below."8 Indeed, It is not the function of the Supreme Court to
assess and evaluate all over again the evidence, testimonial and evidentiary, adduced by the parties
particularly where the findings of both the trila court and the appellate court on the matter coincide. 9

This Court has held in Republic vs. Doldol10 that, originally, "Section 48(b) of C.A. No. 141 provided
for possession and occupation of lands of the public domain since July 26, 1894. This was
superseded by R.A. No. 194211 which provided for a simple thirty-year prescriptive period of
occupation by an applicant for judicial confirmation of imperfect title. The same, however, has
already been amended by Presidential Decree no. 1073, approved on January 25, 1977." As
amended Section 48(b) now reads:

"(b) Those who by themselves or through their predecessors-in-interest have been in open,
continuous, exclusive and notorious possession and occupation of agricultural lands of the
public domain, under a bona fide claim of acquisition or ownership, since June 12, 1945, or
earlier, immediately preceding the filling of the application for confirmation of title, except
when prevented by wars or force majeure. Those shall be conclusively presumed to have
performed all the conditions to a certificate of title under the provisions of this chapter."

Interpreting the above-quoted provision, the Court stated in Republic vs. Court of Appeals12 that the
Public Land Act requires that the applicant must prove the following:

"(a) that the land is alienable public land and (b) that his open, continuous, exclusive and
notorious possession and occupation of the same must either be since time immemorial or
for the period prescribed in the Public Land Act. When the conditions set by law are complied
with, the possessor of the land, by operation of law, acquires a right to a grant, a government
grant, without the necessity of a certificate of title being issued.'

There is no dispute that the subject lot is alienable and disposable tract of public land. Since
claimant Romeo Divinaflor acquired ownership of Lot 10739 from Marcial Listana by deed of
absolute sale dated May 21, 1973,13the pivotal issue is whether his predecessor-in-interest Marcial
Listana has been in possession of the land since June 12, 1945 under a bona fide claim of
ownership.

The determination of whether claimants were in open, continuous, exclusive and notorious
possession under a bona fide claim of ownership since 1945 as required by law, is a question of
fact14 which was resolved affirmatively by the trial court and the Court of Appeals. Such factual
finding will not be reversed on appeal except for the most compelling reasons. None has been
adduced in the case at bar.

Petitioner questions the credibility of claimant Divinaflor who testified on the possession of Marcial
Listana for the period required by law. The issue on having personally heard the witnesses testify
and observed their deportment and manner of testifying.15 Being in a better position to observe the
witnesses, the trial court's appreciation of the witness' testimony, truthfulness, honesty, and candor,
deserves the highest respect.16

Further, it is axiomatic that a witness' "interest in the outcome of a case shall not be ground for
disqualification, and that such an interest, if shown, while perhaps, indicating the need for caution in
considering the witness' testimony, does not of itself operate to reduce his credit; indeed, his
testimony must be judged on its own merits, and if ** (it) is otherwise clear and convincing and not
destroyed by other evidence on record, it may be relied upon." 17 In this case, both the trial court and
the Court of Appeals found Divinaflor's testimony to be convincing, a finding with which, in the
premises, this Court will not and cannot take issue.

In the same vein, the issue of incompetence of Divinaflor to testify on the possession of his
predecessor-in-interest since 1939 in likewise unavailing and must be rejected. A timely objection
was never made by petitioner on the ground of incompetence of Divinaflor to testify on this matter at
any stage of the proceedings. It is an elementary rule in evidence that:

"When a witness is produced, it is a right and privilege accorded to the adverse party to
object to his examination on the ground of incompetence to testify. If a party knows before
trial that a witness is incompetent, objection must be made before trial that a witness is
incompetent, objection must be made before he has given any testimony; if the
incompetence appears on the trial, it must be interposed as soon as it becomes apparent." 18

Simply put, any objection to the admissibility of evidence should be made at the time such evidence
is offered or as soon thereafter as the objection to its admissibility becomes apparent, otherwise the
objection will be considered waived and such evidence will form part of the records of the case as
competent and admissible evidence.19 The failure of petitioner to interpose a timely objection to the
presentation of Divinaflor's testimony results in the waiver of any objection to the admissibility thereof
and he is therefore barred from raising said issue on appeal.

Be that as it may, a person is competent to be a witness if (a) he is capable of perceiving at the time
of the occurrence of the fact and (b) he can make his perception known. 20 True, in 1939, Divinaflor
was not born yet, but in 1945, he was four years old, residing in Maramba, Oas, Albay, where the
subject lot is located. As his testimony goes, he and Marcial Listana were barrio mates, and that he
usually passes by the subject land. The fact that Divinaflor was only a child at the required inception
of possession does not render him incompetent to testify on the matter. It is well-established that any
child regardless of age,can be a competent witness id he is capable of relating truthfully facts for
which he is examined.21 The requirements of a child's competence as a witness are: (a) capacity of
observation; (b) capacity of recollection; and (c) capacity of communication. 22 There is no showing
that as a child, claimant did not possess the foregoing qualifications. It is not necessary that a
witness' knowledge of the fact to which he testifies was obtained in adulthood. He may have first
acquired knowledge of the fact during childhood that is at the age of four, which knowledge was
reinforced through the years up until he testified in court in 1990. There is reason to reject
petitioner's claim that Divinaflor is incompetent to testify regarding Listana's possession since it
appears undisputed that Divinaflor grew up in Maramba, Oas, Albay, and had occasion to see
Listana possessing the land.

Finally, we agree with the Court of Appeals that the belated declaration of the property for tax
purposes does not necessarily lead to the conclusion that law not in possession of the land as
required the predecessors since 1945. Petitioner capitalizes on the fact that the earliest tax
declaration presented took effect only in 1980 while the certificate of tax payment is dated 1990.
While this Court has held in a long line of cases23 that tax declarations or tax receipts are good
indicia of possession in the concept of owner, it does not necessarily follow that belated declaration
of the same for tax purposes negates the fact of possession, especially in the instant case where
there are no other persons claiming any interest in Lot 10739.

WHEREFORE, the petition is hereby DENIED for lack of merit. The Court resolves to AFFIRM the
challenged decision of the Court of Appeals dated February 8, 1994 which sustained the
JUDGEMENT of the Regional Trial Court rendered on July 27, 1990 granting the registration of little
to herein private respondent.

SO ORDERED. 1wphi1.nt

Melo, Vitug, Panganiban, Sandoval-Gutierrez.,JJ.:

G.R. No. L-38169 February 23, 1978

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,


vs.
AURELIO SABATER, TRAN-QUILINO SABATER, VICTORINO CUENCA and ESTANITO
CRISOSTOMO, accused. VICTORINO CUENCA and ESTANITO CRISOSTOMO alias
TALIG accused-appellants.

E. J. Manipula for appellants.

Solicitor General Estelito P. Mendoza, Assistant Solicitor General octavio R. Ramirez and Solicitor N.
P. de Pano, Jr. for appellee.

AQUINO, J.:

This is a murder case. According to the evidence of the prosecution, at around eight o'clock in the
evening of December 16, 1974 Maximo Papa, at twenty-five year old jeepney driver, and his seven-
year old son, Maximo Papa, jr., residing at the corner of Rodriguez Avenue and General Lacuna
Street, Bangkal, Makati Rizal, stepped out of their house in order to buy food.

Upon reaching the street, father and son encountered Aurelio Sabater, Tranquilino Sabaster,
Victorino Cuenca and Estanito Crisostomo. The four were apparently waiting for Maximo Papa. They
dragged him to a nearby warehouse of the Gilman Enterprises located at the corner of Rodriguez
Avenue and General Vicente Lim Street. Thereafter, a gunshot was heard from the warehouse.
Maximo Papa was seen running out of the warehouse followed by the four malefactors.

Maximo Papa fell on the ground near the street corner, Cuenca shot him four or five times, Cuenca
and Aurelio Sabater fled in the direction of General Vicente Lim Street. Tranquilino Sabater and
Estanito Crisostomo reentered the warehouse.
The Makati policeman brought Maximo's body to the morgue. The medico-legal officer of the
National Bureau of Investigation (NBI), who conducted an autopsy, found that thje victim sustained
six entrance gunshot wounds. The bullets injured his vital organs, such as the brain, heart and liver.
The wounds caused his death (Exh. B).

The tragic occurence was witnessed by the victim's sons and wife. Mrs. Papa, who had been
informed by a person named Pol, the owner of the jeepney being driven by her husband, that some
persons were mad at her husband, had followed him at a distance after he had gone out of the
house. She had some premonition that something might happen to him. She had known the accused
for more than twelve years because they were her neighbors. Her statement was taken by the police
on January 8, 1964 (should be 1965) (Exh. A).

On January 8, 1965 the police filed a complaint for murder against the four accused in the municipal
court of Makati. They couild not be apprehended. It was only almost eight years after the killing or,
on November 15, 1972, when Cuenca surrendered voluntarily. Two days later, Crisostomo also
surrendered. On December 8, 1972 the fiscal filed an information for murder against Cuenca and
Crisostomo in the Court of First Instance of Rizal, Pasig Branch. The Sabater brothers have not
been arrested.

After trial, the lower court convicted Cuenca and Crisostomo of murder, sentenced each of them to
"life imprisonment" and ordered them to indemnify the heirs of the victim in the sum of P15,000, The
accused appealed to this Court.

They contend that the trial court erred in giving credence to the evidence for the prosecution and in
not upholding their defense of alibi.

Cuenca, a 43-year old mechanic, residing at 3422 General Vicente Lim Street, Bangkal, Makati,
testified that on December 16, 1964 (when the killing was penetrated he was in his house because
he had to repair the jeepney of Poe Caballero, a resident of Las Pinas, Rizal. He said that he heard
the gunshots. He learned that a driver named Susing was shot. Caballero corroborated Cuenca's
testimony.

The alibi of Crisostomo, a 41-year old fisherman allegedly residing at Bay, Laguna, is that he knew
nothing about the shooting of Papa because he was in his residence when Papa was shot. He
admitted that Tranquilino Sabater and Aurelio Sabater are his mother's brothers. Cuenca testified
that Crisostomo was his friend and that on some occasions the), were together (28-29 tsn, April 12,
1973). The defense through Cirilo Nonato, a 42-year old mason residing in Bangkal, tried to prove
that Papa was shot by Aurelio Sabater. The trial court did not believe Nonato's testimony house he
never reported to the police that Papa was shot by Aurelio Sabater Nonato admitted that he was a
friend of the accused. Since Aurelio Sabater was killed later by Makati policemen, it would seem that
the defense found it convenient to make a dead man responsible for the killing of Papa.

We hold that the appeal is devoid of merit. The appellants were positively Identified by the victim's
widow and son who made separate sketches of the scene of the crime which was wenlighted (Exh.
X and Y). Those sketches gave verisimilitude to their testimonies. The widow testified that she was
paralyzed (natigilan) with fear when she saw the killing of her husband being consumated in her
presence. She could not do anything. Moreover, the accused went into hiding for nearly eight years
to avoid being prosecuted. Flight is an indicium of guilty.

The appellants admitted that they were unaware Of any reason why the victim's and son would
frame them up. They argued that the wife was not an eyewitness because she testified that she was
merely informed by a person named Pol that her husband was killed.

The fact is that the wife in her statement to the police three weeks after the killing declared that Pol
had warned her that her husband might be liquidated and that she witnessed the killing because she
followed her husband when the latter went out of their residence (Exh. A).

Appellants' assertion that Pol was their witness, Poe Caballero, is false because, as already stated,
Pol was the victim's employer who had alerted Mrs. Papa to the contingency that her husband might
be killed by his enemies (No. 8, Exh. A). Mrs. Papa told the police that five days before the shooting
her husband had informed her that their neighbor. Tranquilino Sabater (the uncle of appellant
Crisostomo), had harbored some resentment against Papa.

The appellants impugn the testimony of the victim's son on the ground that he was only seven news
old when he witnessed the shooting, and that he testified eight years later or long after that
extraordinary event. That contention is not valid.

The court in several cases had given credence to the testimony of children who had witnessed the of
their parents. In the case of Maximo, Jr., the horrible manner in which his father was killed must have
been indelibly engraved in his uncluttered memory so much so that the passage of time could not
efface it. When he testified, he was already fifteen years old and a third year high school student. He
was certainly a competent witness.

Cuenca's alibi is a glaringly feeble defense. His residence was only a short distance from the scene
of the crime. Mrs. Papa's allegation in her statement that Cuenca after the shooting fled in the
direction of General Vicente Lim Street could mean that he went home since his residence was
located on that street.

The trial court did not err in disbelieving Crisostomo's alibi for being uncorroborated and because he
was indubitably Identified by the victim's widow and son. His participation in the killing shows that he
conspired with his uncles and with Cuenca, the gunwielder in encompassing Papa's death.

It may be noted that Cuenca, Crisostomo and the three Sabater brothers (including Epifanio) were
charged with murder in the Court of First Instance of Rizal sala of Judge Pedro Navarro, in
connection with the killing of Donato Sarte on January 5, 1965 (Exh. P, Cr Case No. 14374). (The
killing in the instant case was perpetrated on December 16, 1964). That other case was dismissed
provisionally because the prosecution witnesses had "disappeared" (Exh. P-1).

In the instant case, the Makati municipal court issued on January 9, 1965 a warrant for the arrest of
the Sabater brothers, Cuenca and Crisostomo. Cuenca and Crisostomo surrendered voluntarily to
the municipal judge on November 15 and 17, 1972, respectively, or more than seven years after the
issuance of the warrant of arrest.
Under those circumstances, voluntary surrender to the authorities cannot be considered mitigating.
The surrender was not spontaneous. The appellants surrendered because after having been
fugitives from justice for more than seven years, they found it impossible to live in hostility and
resistance to the authorities, martial law having been declared (See People vs. They wanted to avoid
the fate of their comrade, Aurelio Sabater, who was killed in an encounter with Makati policemen.

Premeditation, treachery and abuse of superiority were alleged as qualifying circumstances in the
information. Premeditation was not proven. But treachery and abuse of superiority attended the
killing The four asants unexpectedly grabbed the unarmed victim and brought him to the warehouse
so that they could kill him with impunity. They utilized their combined strength to overpower the
helpless victim.

There being no generic mitigating and aggravating circumstances, the penalty of reclusion temporal
maximum todeath for murder should be impose in its medium period ,which is reclusion perpertua
Arts 'L4[15 and 161,64[l] and 248, Revised Penal Code.)

WHEREFORE, the lower court's judgment is affirmed with * the slight modification that the penalty
on each of the *accused should be * termed decision perpetua and that they are *solidarity liable for
the indemnity. Costs against the appellants.

SO ORDERED.

Fernando (Chairman) Barredo, Antonio, Concepcion Jr. and Santos, JJ., concur.

FIRST DIVISION

PEOPLE OF THE PHILIPPINES,


Plaintiff-Appellee, G.R. No. 178321

Present:
- versus -
CORONA, C.J.,
Chairperson,
LEONARDO-DE CASTRO,
BERSAMIN,
DEL CASTILLO, and
VILLARAMA, JR., JJ.
CONRADO LAOG y RAMIN,

Accused-Appellant. Promulgated:

October 5, 2011
x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x
DECISION

VILLARAMA, JR., J.:

For our review is the March 21, 2007 Decision [1] of the Court of Appeals (CA) in
CA-G.R. CR HC No. 00234 which affirmed appellants conviction for murder in
Criminal Case No. 2162-M-2000 and rape in Criminal Case No. 2308-M-2000.

Appellant Conrado Laog y Ramin was charged with murder before the Regional
Trial Court (RTC), Branch 11, of Malolos, Bulacan. The Information,[2] which was
docketed as Criminal Case No. 2162-M-2000, alleged:
That on or about the 6th day of June, 2000, in the municipality of San
Rafael, province of Bulacan, Philippines, and within the jurisdiction of
this Honorable Court, the above-named accused, armed with a lead pipe
and with intent to kill one Jennifer Patawaran-Rosal, did then and there
wil[l]fully, unlawfully and feloniously, with evident premeditation, abuse
of superior strength and treachery, attack, assault and hit with the said
lead pipe the said Jennifer Patawaran-Rosal, thereby inflicting upon said
Jennifer Patawaran-Rosal serious physical injuries which directly caused
her death.

Contrary to law.

He was likewise charged before the same court with the crime of rape of AAA.
[3]
The second Information,[4] which was docketed as Criminal Case No. 2308-M-
2000, alleged:
That on or about the 6th day of June, 2000, in the municipality of San
Rafael, province of Bulacan, Philippines, and within the jurisdiction of
this Honorable Court, the above-named accused, with lewd designs, by
means of force, violence and intimidation, that is, by attacking and
hitting with a lead pipe one [AAA] which resulted [in] her incurring
serious physical injuries that almost caused her death, and while in such
defenseless situation, did then and there have carnal knowledge of said
[AAA] against her will and consent.

Contrary to law.
When arraigned, appellant pleaded not guilty to both charges. The two cases were
thereafter tried jointly because they arose from the same incident.

The prosecution presented as its principal witness AAA, the rape victim who
was 19 years old at the time of the incident. Her testimony was corroborated by her
grandfather BBB, Dr. Ivan Richard Viray, and her neighbor CCC.

AAA testified that at around six oclock in the evening of June 6, 2000, she and her
friend, Jennifer Patawaran-Rosal, were walking along the rice paddies on their way
to apply for work at a canteen near the National Highway in Sampaloc, San Rafael,
Bulacan. Suddenly, appellant, who was holding an ice pick and a lead pipe,
waylaid them and forcibly brought them to a grassy area at the back of a concrete
wall. Without warning, appellant struck AAA in the head with the lead pipe
causing her to feel dizzy and to fall down. When Jennifer saw this, she cried out
for help but appellant also hit her on the head with the lead pipe, knocking her
down. Appellant stabbed Jennifer several times with the ice pick and thereafter
covered her body with thick grass.[5] Appellant then turned to AAA. He hit AAA in
the head several times more with the lead pipe and stabbed her on the face. While
AAA was in such defenseless position, appellant pulled down her jogging pants,
removed her panty, and pulled up her blouse and bra. He then went on top of her,
sucked her breasts and inserted his penis into her vagina. After raping AAA,
appellant also covered her with grass.At that point, AAA passed out.[6]

When AAA regained consciousness, it was nighttime and raining hard. She
crawled until she reached her uncles farm at daybreak on June 8, 2000.[7] When she
saw him, she waved at him for help. Her uncle, BBB, and a certain Nano then
brought her to Carpa Hospital in Baliuag, Bulacan where she stayed for more than
three weeks. She later learned that Jennifer had died.[8]

During cross-examination, AAA explained that she did not try to run away when
appellant accosted them because she trusted appellant who was her uncle by
affinity. She said that she never thought he would harm them.[9]

BBB testified that on June 8, 2000, at about six oclock in the morning, he was at
his rice field at Sampaloc, San Rafael, Bulacan when he saw a woman waving a
hand and then fell down. The woman was about 200 meters away from him when
he saw her waving to him, and he did not mind her. However, when she was
about 100 meters away from him, he recognized the woman as AAA, his
granddaughter. He immediately approached her and saw that her face was swollen,
with her hair covering her face, and her clothes all wet. He asked AAA what
happened to her, and AAA uttered, Si Tata Coni referring to appellant who is his
son-in-law.[10]With the help of his neighbor, he brought AAA home. [11] AAA was
later brought to Carpa Hospital in Baliuag, Bulacan where she recuperated for
three weeks.

CCC, neighbor of AAA and Jennifer, testified that sometime after June 6, 2000,
she visited AAA at the hospital and asked AAA about the whereabouts of
Jennifer. AAA told her to look for Jennifer somewhere at Buenavista. She sought
the assistance of Barangay Officials and they went to Buenavista where they found
Jennifers cadaver covered with grass and already bloated.[12]

Meanwhile, Dr. Ivan Richard Viray, a medico-legal officer of


the Province of Bulacan, conducted the autopsy on the remains of Jennifer. His
findings are as follows:
the body is in advanced stage of decomposition[;] eyeballs and to[n]gue
were protru[d]ed; the lips and abdomen are swollen; desquamation and
bursting of bullae and denudation of the epidermis in the head, trunks
and on the upper extremities[;] [f]rothy fluid and maggots coming from
the nose, mouth, genital region and at the site of wounds, three (3)
lacerations at the head[;] two (2) stab wounds at the submandibular
region[;] four [4] punctured wounds at the chest of the victim[.]

cause of death of the victim was hemorrhagic shock as result of stab


wounds [in] the head and trunk.[13]

The prosecution and the defense also stipulated on the testimony of Elizabeth
Patawaran, Jennifers mother, as to the civil aspect of Criminal Case No. 2162-M-
2000. It was stipulated that she spent P25,000 for Jennifers funeral and burial.[14]

Appellant, on the other hand, denied the charges against him.Appellant


testified that he was at home cooking dinner around the time the crimes were
committed. With him were his children, Ronnie, Jay, Oliver and Conrado, Jr. and
his nephew, Rey Laog. At around seven oclock, he was arrested by the police
officers of San Rafael, Bulacan. He learned that his wife had reported him to the
police after he went wild that same night and struck with a lead pipe a man whom
he saw talking to his wife inside their house. When he was already incarcerated, he
learned that he was being charged with murder and rape.[15]

Appellant further testified that AAA and Jennifer frequently went to his nipa hut
whenever they would ask for rice or money. He claimed that in the evening of June
5, 2000, AAA and Jennifer slept in his nipa hut but they left the following morning
at around seven oclock. An hour later, he left his house to have his scythe
repaired. However, he was not able to do so because that was the time when he
went wild after seeing his wife with another man. He admitted that his nipa hut is
more or less only 100 metersaway from the scene of the crime.[16]

The defense also presented appellants nephew, Rey Laog, who testified that he
went to appellants house on June 5, 2000, at around three oclock in the afternoon,
and saw AAA and Jennifer there. He recalled seeing AAA and Jennifer before at
his uncles house about seven times because AAA and his uncle had an illicit
affair. He further testified that appellant arrived before midnight on June 5,
2000 and slept with AAA. The following morning, at around six oclock, AAA and
Jennifer went home. He and appellant meanwhile left the house together. Appellant
was going to San Rafael to have his scythe repaired while he proceeded to his
house in Pinakpinakan, San Rafael, Bulacan.[17]

After trial, the RTC rendered a Joint Decision [18] on June 30, 2003 finding appellant
guilty beyond reasonable doubt of both crimes. The dispositive portion of the RTC
decision reads:
WHEREFORE, in Crim. Case No. 2162-M-2000, this court finds the
accused Conrado Laog GUILTY beyond reasonable doubt of Murder
under Art. 248 of the Revised Penal Code, as amended, and hereby
sentences him to suffer the penalty of Reclusion Perpetua and to pay the
heirs of Jennifer Patawaran, the following sums of money:

a. P60,000.00 as civil indemnity;


b. P50,000.00 as moral damages;
c. P30,000.00 as exemplary damages.
WHEREFORE, in Crim. Case No. 2308-M-2000, this Court hereby
finds the accused Conrado Laog GUILTY beyond reasonable doubt of
Rape under Art. 266-A par. (a) of the Revised Penal Code, as amended,
and hereby sentences him to suffer the penalty of Reclusion Perpetua and
to pay the private complainant the following sums of money.

a. P50,000.00 as civil indemnity;


b. P50,000.00 as moral damages;
c. P30,000.00 as exemplary damages.

SO ORDERED.[19]

Appellant appealed his conviction to this Court. But conformably with our
pronouncement in People v. Mateo,[20] the case was referred to the CA for
appropriate action and disposition.

In a Decision dated March 21, 2007, the CA affirmed with modification the trial
courts judgment. The dispositive portion of the CA decision reads:
WHEREFORE, the instant Appeal is DISMISSED. The assailed Joint
Decision, dated June 30, 2003, of the Regional Trial Court of Malolos,
Bulacan, Branch 11, in Criminal Case Nos. 2162-M-2000 & 2308-M-
2000, is hereby AFFIRMED with MODIFICATION. In Criminal Case
[No.] 2162-M-2000, Accused-Appellant is further ordered to pay the
heirs of Jennifer Patawaran [an] additional P25,000.00 as actual
damages. The exemplary damages awarded by the Trial Court in 2162-
M-2000 & 2308-M-2000 are hereby reduced to P25,000.00 each.

SO ORDERED.[21]

Appellant is now before this Court assailing the CAs affirmance of his conviction
for both crimes of rape and murder. In a Resolution[22] dated August 22, 2007, we
required the parties to submit their respective Supplemental Briefs, if they so
desire. However, the parties submitted separate Manifestations in lieu of
Supplemental Briefs, adopting the arguments in their respective briefs filed in the
CA. Appellant had raised the following errors allegedly committed by the trial
court:
I
THE TRIAL COURT GRAVELY ERRED IN GIVING CREDENCE TO
THE INCONSISTENT AND INCREDIBLE TESTIMONY OF
PROSECUTION WITNESS [AAA].

II

THE TRIAL COURT GRAVELY ERRED IN FINDING THE


ACCUSED-APPELLANT GUILTY OF THE CRIMES CHARGED
DESPITE FAILURE OF THE PROSECUTION TO PROVE HIS GUILT
BEYOND REASONABLE DOUBT.[23]

Appellant asserts that the prosecution failed to prove his guilt beyond
reasonable doubt for the killing of Jennifer Patawaran-Rosal and the rape of
AAA. He assails AAAs credibility, the prosecutions main witness, and points out
alleged inconsistencies in her testimony. Appellant also contends that the
prosecution failed to establish that he carefully planned the execution of the crimes
charged. According to him, AAAs narration that he waylaid them while walking
along the rice paddies on their way to apply for work negates evident
premeditation since there was no evidence that the said path was their usual route.

Appellant further contends that the trial court and CA erred in appreciating
the qualifying circumstance of abuse of superior strength. He argues that for abuse
of superior strength to be appreciated in the killing of Jennifer, the physical
attributes of both the accused and the victim should have been shown in order to
determine whether the accused had the capacity to overcome the victim physically
or whether the victim was substantially weak and unable to put up a
defense. Additionally, he attempts to cast doubt upon AAAs testimony, arguing that
it lacked some details on how, after she was raped and stabbed by appellant, she
was still able to put on her clothes and crawl to her grandfathers farm.

The appeal lacks merit.

Appellant principally attacks the credibility of prosecution witness


AAA.Jurisprudence has decreed that the issue of credibility of witnesses is a
question best addressed to the province of 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[24] and absent any substantial reason which would justify the
reversal of the trial courts assessments and conclusions, the reviewing court is
generally bound by the formers findings, particularly when no significant facts and
circumstances are shown to have been overlooked or disregarded which when
considered would have affected the outcome of the case. [25] This rule is even more
stringently applied if the appellate court concurred with the trial court.[26]

Here, both the trial and appellate courts gave credence and full probative weight to
the testimony of AAA, the lone eyewitness to Jennifers killing and was herself
brutally attacked by appellant who also raped her. Appellant had not shown any
sufficiently weighty reasons for us to disturb the trial courts evaluation of the
prosecution eyewitness credibility. In particular, we defer to the trial courts
firsthand observations on AAAs deportment while testifying and its veritable
assessment of her credibility, to wit:
From the moment [AAA] took the stand, this Court has come to
discern in her the trepidations of a woman outraged who is about to
recount the ordeal she had gone through. She took her oath with
trembling hands, her voice low and soft, hardly audible. Face down, her
eyes were constantly fixed on the floor as if avoiding an eye contact with
the man she was about to testify against. After a few questions in direct,
the emotion building up inside her came to the fore and she burst into
tears, badly shaken, unfit to continue any further with her
testimony.Thus, in deference to her agitated situation, this Court has to
defer her direct-examination. When she came back, however, to continue
with her aborted questioning, this time, composed and collected, direct
and straightforward in her narration, all vestiges of doubt on her
credibility vanished.[27]

Indeed, records bear out that AAA became so tense and nervous when she
took the witness stand for the first time that the trial court had to cut short her
initial direct examination. However, during the next hearing she was able to narrate
her harrowing ordeal in a clear and straightforward manner, describing in detail
how appellant waylaid them and mercilessly hit and attacked her and Jennifer with
a lead pipe and ice pick before raping her. We quote the pertinent portions of her
testimony:
Q: During your previous testimony, Madam Witness, you said that youre
not able to reach your place of work on June 6, 2000, what is the
reason why you did not reach your place of work?
A: We were waylaid (hinarang) by Conrado Laog, sir.

Q: In what manner were you waylaid by Conrado Laog?


A: Conrado Laog hit me with the pipe on my head, sir.

xxxx

Q: Where were you when you were hit?


A: We were walking along the rice puddies (sic), Your Honor.

Fiscal:
Q: And what happened to you when you were hit with the lead pipe by
Conrado Laog?
A: I fell down (nabuwal) because I felt dizzy, sir.

Q: Now, what happened next, if any?


A: I heard Jennifer crying, sir.

Q: And you heard Jennifer but did you see her?


A: Yes, sir.

Q: Where was Conrado Laog when you heard Jennifer crying?


A: He was beside me, sir.

Court:
Q: How about Jennifer, where was she when you heard her crying?
A: She was standing on the rice puddies, (sic), Your Honor.

Fiscal:
Q: And what was Conrado Laog doing?
A: He approached Jennifer, sir.

Q: Then, what happened next?


A: He hit Jennifer with the pipe, sir.

Q: And what happened to Jennifer?


A: She fell down, sir.
Q: What did Conrado Laog do next?
A: He stabbed Jennifer, sir.

Q: After Conrado Laog stabbed Jennifer, what happened next?


A: He covered Jennifer with grasses, sir.

Q: And after that, what did Conrado Laog do?


A: He came back to me, sir.

Q: When Conrado Laog came back to you, what did you do, if any?
A: He hit me with the pipe several times, sir.

Q: And what happened to you?


A: And he stabbed me on my face, sir.

Q: Then, what happened to you?


A: After that, he pulled down my jogging pants, sir. He removed my
panty and my blouse and my bra.

Q: After that, what did he do next?


A: And then, he went on top of me, sir.

Q: Then, what happened?


A: He sucked my breast, sir.

Q: And after that?


A: He was forcing his penis into my vagina, sir.

Q: Did he suc[c]eed in putting his penis into your vagina?


A: Yes, sir.

Q: For how long did the accused Conrado Laog insert his penis into your
vagina?
A: For quite sometime, sir.

Q: After that, what happened?


A: After that, he stood up, sir.

Q: And where did he go?


A: After that, he covered me with grasses, sir.
Q: And after that, what did you do?
A: I fell unconscious, sir.

Q: Now, if Conrado Laog is inside the courtroom, will you be able to


point to him?

Interpreter:
Witness is pointing to a man wearing an inmates uniform and when
asked his name, answered: Conrado Laog.

x x x x[28]

On the other hand, appellant merely interposed the defense of denial and alibi. He
claimed that at the time of the incident, he was at his house with his children and
nephew cooking dinner. His defense, however, cannot prevail over the
straightforward and credible testimony of AAA who positively identified him as
the perpetrator of the murder and rape. Time and again, we have held that positive
identification of the accused, when categorical and consistent and without any
showing of ill motive on the part of the eyewitness testifying, should prevail over
the alibi and denial of the appellant whose testimony is not substantiated by clear
and convincing evidence.[29] AAA was firm and unrelenting in pointing to appellant
as the one who attacked her and Jennifer, stabbing the latter to death before raping
AAA. It should be noted that AAA knew appellant well since they were relatives
by affinity. As correctly held by the CA, with AAAs familiarity and proximity with
the appellant during the commission of the crime, her identification of appellant
could not be doubted or mistaken. In fact, AAA, upon encountering appellant, did
not run away as she never thought her own uncle would harm her and her
friend. Moreover, the most natural reaction of victims of violence is to strive to see
the appearance of the perpetrators of the crime and observe the manner in which
the crime is being committed.[30] There is no evidence to show any improper
motive on the part of AAA to testify falsely against appellant or to falsely implicate
him in the commission of a crime. Thus, the logical conclusion is that the
testimony is worthy of full faith and credence.[31]

In People v. Nieto,[32] we reiterated that --


It is an established jurisprudential rule that a mere denial, without any
strong evidence to support it, can scarcely overcome the positive
declaration by the victim of the identity and involvement of appellant in
the crimes attributed to him. The defense of alibi is likewise unavailing.
Firstly, alibi is the weakest of all defenses, because it is easy to concoct
and difficult to disprove. Unless substantiated by clear and convincing
proof, such defense is negative, self-serving, and undeserving of any
weight in law. Secondly, alibi is unacceptable when there is a positive
identification of the accused by a credible witness. Lastly, in order that
alibi might prosper, it is not enough to prove that the accused has been
somewhere else during the commission of the crime; it must also be
shown that it would have been impossible for him to be anywhere within
the vicinity of the crime scene.

Appellant does not dispute that he was near the vicinity of the crime on the evening
of June 6, 2000. In fact, during his cross-examination, appellant admitted that his
house was more or less only 100 meters from the crime scene. Thus, his defense of
alibi is not worthy of any credit for the added reason that he has not shown that it
was physically impossible for him to be at the scene of the crime at the time of its
commission.

In view of the credible testimony of AAA, appellants defenses of denial and


alibi deserve no consideration. We stress that these weak defenses cannot stand
against the positive identification and categorical testimony of a rape victim.[33]

Appellant attempts to discredit AAA's accusation of rape by pointing out that while
she testified on being very weak that she even passed out after she was raped by
appellant, she nevertheless stated that when she crawled her way to her
grandfather's farm she was wearing her clothes. Appellant also contends that the
prosecution should have presented the physician who examined AAA to prove her
allegations that she was beaten and raped by appellant.

We are not persuaded.

Based on AAAs account, appellant did not undress her completely -- her
blouse and bra were merely lifted up (nililis) while her undergarments were just
pulled down, which therefore explains why she still had her clothes on when she
crawled to her grandfathers farm. Nonetheless, this matter raised by appellant is a
minor detail which had nothing to do with the elements of the crime of
rape. Discrepancies referring only to minor details and collateral matters -- not to
the central fact of the crime -- do not affect the veracity or detract from the
essential credibility of witnesses declarations, as long as these are coherent and
intrinsically believable on the whole.[34] For a discrepancy or inconsistency in the
testimony of a witness to serve as a basis for acquittal, it must establish beyond
doubt the innocence of the appellant for the crime charged. [35] It cannot be
overemphasized that the credibility of a rape victim is not diminished, let alone
impaired, by minor inconsistencies in her testimony.[36]

As to the fact that the physician who examined AAA at the hospital did not
testify during the trial, we find this not fatal to the prosecutions case.

It must be underscored that the foremost consideration in the prosecution of


rape is the victims testimony and not the findings of the medico-legal officer. In
fact, a medical examination of the victim is not indispensable in a prosecution for
rape; the victims testimony alone, if credible, is sufficient to convict.[37] Thus we
have ruled that a medical examination of the victim, as well as the medical
certificate, is merely corroborative in character and is not an indispensable element
for conviction in rape. What is important is that the testimony of private
complainant about the incident is clear, unequivocal and credible,[38] as what we
find in this case.

While we concur with the trial courts conclusion that appellant indeed was the one
who raped AAA and killed Jennifer, we find that appellant should not have been
convicted of the separate crimes of murder and rape. An appeal in a criminal case
opens the entire case for review on any question, including one not raised by the
parties.[39] The facts alleged and proven clearly show that the crime committed by
appellant is rape with homicide, a special complex crime provided under Article
266-B, paragraph 5 of the Revised Penal Code, as amended by Republic Act (R.A.)
No. 8353.[40]

In People v. Larraaga,[41] this Court explained the concept of a special complex


crime, as follows:
A discussion on the nature of special complex crime is
imperative. Where the law provides a single penalty for two or more
component offenses, the resulting crime is called a special complex
crime. Some of the special complex crimes under the Revised Penal
Code are (1) robbery with homicide, (2) robbery with
rape, (3) kidnapping with serious physical injuries, (4) kidnapping with
murder or homicide, and (5) rape with homicide. In a special complex
crime, the prosecution must necessarily prove each of the component
offenses with the same precision that would be necessary if they were
made the subject of separate complaints. As earlier mentioned, R.A.
No. 7659 amended Article 267 of the Revised Penal Code by adding
thereto this provision: When the victim is killed or dies as a consequence
of the detention, or is raped, or is subjected to torture or dehumanizing
acts, the maximum penalty shall be imposed;[] and that this provision
gives rise to a special complex crime. In the cases at bar, particularly
Criminal Case No. CBU-45303, the Information specifically alleges that
the victim Marijoy was raped on the occasion and in connection with her
detention and was killed subsequent thereto and on the occasion thereof.
Considering that the prosecution was able to prove each of the
component offenses, appellants should be convicted of the special
complex crime of kidnapping and serious illegal detention with homicide
and rape. x x x[42] (Emphasis supplied.)

A special complex crime, or more properly, a composite crime, has its own definition and
special penalty in the Revised Penal Code, as amended. Justice Regalado, in his
Separate Opinion in the case of People v. Barros,[43]explained that composite crimes are
neither of the same legal basis as nor subject to the rules on complex crimes in Article
48 [of the Revised Penal Code], since they do not consist of a single act giving rise to
two or more grave or less grave felonies [compound crimes] nor do they involve an
offense being a necessary means to commit another [complex crime proper].
However, just like the regular complex crimes and the present case of aggravated
illegal possession of firearms, only a single penalty is imposed for each of such
composite crimes although composed of two or more offenses.[44]

Article 266-B of the Revised Penal Code, as amended, provides only a single
penalty for the composite acts of rape and the killing committed by reason or on
the occasion of the rape.
ART. 266-B. Penalties. Rape under paragraph 1 of the next
preceding article shall be punished by reclusion perpetua.

Whenever the rape is committed with the use of a deadly weapon


or by two or more persons, the penalty shall be reclusion perpetua to
death.

When by reason or on the occasion of the rape, the victim has


become insane, the penalty shall be reclusion perpetua to death.

When the rape is attempted and a homicide is committed by


reason or on the occasion thereof, the penalty shall be reclusion
perpetua to death.

When by reason or on the occasion of the rape, homicide is


committed, the penalty shall be death.

x x x x (Emphasis supplied.)

Considering that the prosecution in this case was able to prove both the rape of
AAA and the killing of Jennifer both perpetrated by appellant, he is liable for rape
with homicide under the above provision. There is no doubt that appellant killed
Jennifer to prevent her from aiding AAA or calling for help once she is able to run
away, and also to silence her completely so she may not witness the rape of AAA,
the original intent of appellant. His carnal desire having been satiated, appellant
purposely covered AAAs body with grass, as he did earlier with Jennifers body, so
that it may not be easily noticed or seen by passersby. Appellant indeed thought
that the savage blows he had inflicted on AAA were enough to cause her death as
with Jennifer. But AAA survived and appellants barbaric deeds were soon enough
discovered.

The facts established showed that the constitutive elements of rape with homicide
were consummated, and it is immaterial that the person killed in this case is
someone other than the woman victim of the rape. An analogy may be drawn from
our rulings in cases of robbery with homicide, where the component acts of
homicide, physical injuries and other offenses have been committed by reason or
on the occasion of robbery. In People v. De Leon,[45] we expounded on the special
complex crime of robbery with homicide, as follows:
In robbery with homicide, the original criminal design of the
malefactor is to commit robbery, with homicide perpetrated on the
occasion or by reason of the robbery. The intent to commit robbery must
precede the taking of human life. The homicide may take place before,
during or after the robbery. It is only the result obtained, without
reference or distinction as to the circumstances, causes or modes or
persons intervening in the commission of the crime that has to be taken
into consideration. There is no such felony of robbery with
homicidethrough reckless imprudence or simple negligence. The
constitutive elements of the crime, namely, robbery with homicide, must
be consummated.

It is immaterial that the death would supervene by mere


accident; or that the victim of homicide is other than the victim of
robbery, or that two or more persons are killed, or that aside from the
homicide, rape, intentional mutilation, or usurpation of authority, is
committed by reason or on the occasion of the crime. Likewise
immaterial is the fact that the victim of homicide is one of the robbers;
the felony would still be robbery with homicide. Once a homicide is
committed by or on the occasion of the robbery, the felony
committed is robbery with homicide. All the felonies committed by
reason of or on the occasion of the robbery are integrated into one
and indivisible felony of robbery with homicide. The word
homicide is used in its generic sense. Homicide, thus, includes
murder, parricide, and infanticide.[46] (Emphasis supplied.)

In the special complex crime of rape with homicide, the term homicide is to be
understood in its generic sense, and includes murder and slight physical injuries
committed by reason or on occasion of the rape. [47] Hence, even if any or all of the
circumstances (treachery, abuse of superior strength and evident premeditation)
alleged in the information have been duly established by the prosecution, the same
would not qualify the killing to murder and the crime committed by appellant is
still rape with homicide. As in the case of robbery with homicide, the aggravating
circumstance of treachery is to be considered as a generic aggravating
circumstance only.Thus we ruled in People v. Macabales[48]
Finally, appellants contend that the trial court erred in concluding
that the aggravating circumstance of treachery is present. They aver that
treachery applies to crimes against persons and not to crimes against
property. However, we find that the trial court in this case correctly
characterized treachery as a generic aggravating, rather than qualifying,
circumstance. Miguel was rendered helpless by appellants in defending
himself when his arms were held by two of the attackers before he was
stabbed with a knife by appellant Macabales, as their other companions
surrounded them. In People v. Salvatierra, we ruled that
when alevosia (treachery) obtains in the special complex crime of
robbery with homicide, such treachery is to be regarded as a generic
aggravating circumstance. Robbery with homicide is a composite crime
with its own definition and special penalty in the Revised Penal
Code. There is no special complex crime of robbery with murder
under the Revised Penal Code. Here, treachery forms part of the
circumstances proven concerning the actual commission of the
complex crime. Logically it could not qualify the homicide to
murder but, as generic aggravating circumstance, it helps determine
the penalty to be imposed.[49](Emphasis supplied.)

The aggravating circumstance of abuse of superior strength is considered whenever


there is notorious inequality of forces between the victim and the aggressor that is
plainly and obviously advantageous to the aggressor and purposely selected or
taken advantage of to facilitate the commission of the crime. [50] It is taken into
account whenever the aggressor purposely used excessive force that is out of
proportion to the means of defense available to the person attacked.[51]

In this case, as personally witnessed by AAA, appellant struck Jennifer in the head
with a lead pipe then stabbed her repeatedly until she was dead.Clearly, the manner
by which appellant had brutally slain Jennifer with a lethal weapon, by first hitting
her in the head with a lead pipe to render her defenseless and vulnerable before
stabbing her repeatedly, unmistakably showed that appellant intentionally used
excessive force out of proportion to the means of defense available to his unarmed
victim. As aptly observed by the appellate court:
It has long been established that an attack made by a man with a deadly
weapon upon an unarmed and defenseless woman constitutes the
circumstance of abuse of that superiority which his sex and the weapon
used in the act afforded him, and from which the woman was unable to
defend herself. Unlike in treachery, where the victim is not given the
opportunity to defend himself or repel the aggression, taking advantage
of superior strength does not mean that the victim was completely
defenseless. Abuse of superiority is determined by the excess of the
aggressors natural strength over that of the victim, considering the
momentary position of both and the employment of means weakening
the defense, although not annulling it. By deliberately employing deadly
weapons, an ice pick and a lead pipe, [a]ccused-[a]ppellant clearly took
advantage of the superiority which his strength, sex and weapon gave
him over his unarmed victim. The accused-appellants sudden attack
caught the victim off-guard rendering her defenseless. [52]

Abuse of superior strength in this case therefore is merely a generic aggravating


circumstance to be considered in the imposition of the penalty. The penalty
provided in Article 266-B of the Revised Penal Code, as amended,
is death. However, in view of the passage on June 24, 2006 of R.A. No. 9346,
entitled An Act Prohibiting the Imposition of the Death Penalty in
the Philippines the Court is mandated to impose on the appellant the penalty
of reclusion perpetua without eligibility for parole.[53]

The aggravating/qualifying circumstances of abuse of superior strength and use of


deadly weapon have greater relevance insofar as the civil aspect of this case is
concerned. While the trial court and CA were correct in holding that both the
victim of the killing (Jennifer) and the rape victim (AAA) are entitled to the award
of exemplary damages, the basis for such award needs further clarification.

Articles 2229 and 2230 of the Civil Code provide:


Art. 2229. Exemplary or corrective damages are imposed, by way
of example or correction for the public good, in addition to the moral,
temperate, liquidated or compensatory damages.

Art. 2230. In criminal offenses, exemplary damages as a part of


the civil liability may be imposed when the crime was committed with
one or more aggravating circumstances. Such damages are separate and
distinct from fines and shall be paid to the offended party.

In view of the presence of abuse of superior strength in the killing of Jennifer, her
heirs are entitled to exemplary damages pursuant to Article 2230. With respect to
the rape committed against AAA, Article 266-B of the Revised Penal Code, as
amended, provides that a man who shall have carnal knowledge of a woman
through force, threat or intimidation under Article 266-A (a), whenever such rape is
committed with the use of a deadly weapon or by two or more persons, the penalty
shall be reclusion perpetua to death. Since the use of a deadly weapon raises the
penalty for the rape, this circumstance would justify the award of exemplary
damages to the offended party (AAA) also in accordance with Article 2230.

Article 266-B likewise provides for the imposition of death penalty if the crime of
rape is committed with any of the aggravating/qualifying circumstances
enumerated therein. Among these circumstances is minority of the victim and her
relationship to the offender:
1) When the victim is under eighteen (18) years of age and the offender is
a parent, ascendant, stepparent, guardian, relative by consanguinity
or affinity within the third civil degree, or the common law spouse
of the parent of the victim. (Emphasis supplied.)

AAAs relationship to appellant, who is his uncle by affinity, was not alleged in the
information but admitted by appellant when he testified in court:
DIRECT EXAMINATION OF
CONRADO LAOG By:
Atty. Roque:

xxxx

Q Do you know a person by the name of [AAA]?


A Yes, sir.

Q Why do you know her?


A Because she is our neighbor. Her house is just adjacent to ours, sir.

Q How are you related to [AAA]?


A Her mother and my wife are sisters.

Q So she is your niece-in-law?


A Yes, sir.

x x x x[54] (Emphasis supplied.)


The failure of the prosecution to allege in the information AAAs relationship to
appellant will not bar the consideration of the said circumstance in the
determination of his civil liability. In any case, even without the attendance of
aggravating circumstances, exemplary damages may still be awarded where the
circumstances of the case show the highly reprehensible or outrageous conduct of
the offender. Citing our earlier ruling in the case of People v. Catubig,[55] this Court
clarified in People v. Dalisay[56]:
Prior to the effectivity of the Revised Rules of Criminal
Procedure, courts generally awarded exemplary damages in criminal
cases when an aggravating circumstance, whether ordinary or qualifying,
had been proven to have attended the commission of the crime, even if
the same was not alleged in the information. This is in accordance with
the aforesaid Article 2230. However, with the promulgation of the
Revised Rules, courts no longer consider the aggravating circumstances
not alleged and proven in the determination of the penalty and in the
award of damages. Thus, even if an aggravating circumstance has been
proven, but was not alleged, courts will not award exemplary damages.
Pertinent are the following sections of Rule 110:

xxxx

Nevertheless, People v. Catubig laid down the principle that


courts may still award exemplary damages based on the
aforementioned Article 2230, even if the aggravating circumstance
has not been alleged, so long as it has been proven, in criminal cases
instituted before the effectivity of the Revised Rules which remained
pending thereafter. Catubig reasoned that the retroactive application of
the Revised Rules should not adversely affect the vested rights of the
private offended party.

Thus, we find, in our body of jurisprudence, criminal cases,


especially those involving rape, dichotomized: one awarding exemplary
damages, even if an aggravating circumstance attending the commission
of the crime had not been sufficiently alleged but was consequently
proven in the light of Catubig; and another awarding exemplary damages
only if an aggravating circumstance has both been alleged and proven
following the Revised Rules. Among those in the first set are People v.
Laciste, People v. Victor, People v. Orilla, People v. Calongui, People v.
Magbanua, People of the Philippines v. Heracleo Abello y
Fortada, People of the Philippines v. Jaime Cadag Jimenez, and People
of the Philippines v. Julio Manalili. And in the second set are People v.
Llave, People of the Philippines v. Dante Gragasin y Par, and People of
the Philippines v. Edwin Mejia. Again, the difference between the two
sets rests on when the criminal case was instituted, either before or after
the effectivity of the Revised Rules.

xxxx

Nevertheless, by focusing only on Article 2230 as the legal basis for


the grant of exemplary damagestaking into account simply the
attendance of an aggravating circumstance in the commission of a crime,
courts have lost sight of the very reason why exemplary damages are
awarded. Catubig is enlightening on this point, thus

Also known as punitive or vindictive damages, exemplary or


corrective damages are intended to serve as a deterrent to serious
wrong doings, and as a vindication of undue sufferings and wanton
invasion of the rights of an injured or a punishment for those guilty
of outrageous conduct. These terms are generally, but not always, used
interchangeably. In common law, there is preference in the use of
exemplary damages when the award is to account for injury to feelings
and for the sense of indignity and humiliation suffered by a person
as a result of an injury that has been maliciously and wantonly
inflicted, the theory being that there should be compensation for the hurt
caused by the highly reprehensible conduct of the defendantassociated
with such circumstances as willfulness, wantonness, malice, gross
negligence or recklessness, oppression, insult or fraud or gross fraudthat
intensifies the injury. The terms punitive or vindictive damages are
often used to refer to those species of damages that may be awarded
against a person to punish him for his outrageous conduct. In either
case, these damages are intended in good measure to deter the
wrongdoer and others like him from similar conduct in the future.

Being corrective in nature, exemplary damages, therefore, can


be awarded, not only in the presence of an aggravating
circumstance, but also where the circumstances of the case show the
highly reprehensible or outrageous conduct of the offender. In much
the same way as Article 2230 prescribes an instance when exemplary
damages may be awarded, Article 2229, the main provision, lays down
the very basis of the award. Thus, in People v. Matrimonio, the Court
imposed exemplary damages to deter other fathers with perverse
tendencies or aberrant sexual behavior from sexually abusing their own
daughters. Also, in People v. Cristobal, the Court awarded exemplary
damages on account of the moral corruption, perversity and wickedness
of the accused in sexually assaulting a pregnant married woman.
Recently, in People of the Philippines v. Cristino Caada, People of the
Philippines v. Pepito Neverio and The People of the Philippines v.
Lorenzo Layco, Sr., the Court awarded exemplary damages to set a
public example, to serve as deterrent to elders who abuse and corrupt the
youth, and to protect the latter from sexual abuse.

It must be noted that, in the said cases, the Court used as basis
Article 2229, rather than Article 2230, to justify the award of exemplary
damages. Indeed, to borrow Justice Carpio Morales words in her
separate opinion in People of the Philippines v. Dante Gragasin y Par,
[t]he application of Article 2230 of the Civil Code strictissimi juris in
such cases, as in the present one, defeats the underlying public policy
behind the award of exemplary damagesto set a public example or
correction for the public good.[57] (Emphasis supplied.)

In this case, the brutal manner by which appellant carried out his lustful design
against his niece-in-law who never had an inkling that her own uncle would do any
harm to her and her friend, justified the award of exemplary damages. Appellants
sudden and fierce attack on AAA -- hitting her several times on the head with a
lead pipe before stabbing her face until she fell down, hurriedly lifting her bra and
blouse and pulling down her undergarments, raping her while she was in such a
defenseless position, covering her body with grasses and abandoning her to die in a
grassy field -- was truly despicable and outrageous. Such vicious assault was made
even more reprehensible as it also victimized Jennifer, who sustained more stab
wounds and beatings, causing her violent death. Article 2229 of the Civil
Code allows the award of exemplary damages in order to deter the commission of
similar acts and to allow the courts to forestall behavior that would pose grave and
deleterious consequences to society.[58] In line with current jurisprudence, the
amount of P30,000 each for AAA and the heirs of Jennifer as exemplary damages
was correctly awarded by the trial court.

We also affirm the trial court and CA in ordering appellant to pay the heirs
of Jennifer Patawaran-Rosal the amounts of P50,000 as moral damages. In cases of
murder and homicide, the award of moral damages is mandatory, without need of
allegation and proof other than the death of the victim. [59] Anent the award of civil
indemnity, the same is increased to P75,000 to conform with recent jurisprudence.
[60]
As to expenses incurred for the funeral and burial of Jennifer, the CA correctly
awarded her heirs the amount of P25,000 as actual damages, said amount having
been stipulated by the parties during the trial.

Lastly, we affirm the award of P50,000 to AAA as civil indemnity for the crime of
rape, as well as the award of P50,000 as moral damages. Civil indemnity ex
delicto is mandatory upon a finding of the fact of rape while moral damages are
awarded upon such finding without need of further proof, because it is assumed
that a rape victim has actually suffered moral injuries entitling the victim to such
award.[61]

WHEREFORE, the appeal is DISMISSED for lack of merit. The March


21, 2007 Decision of the Court of Appeals in CA-G.R. CR HC No. 00234
is AFFIRMED with MODIFICATIONS. Accused-appellant Conrado Laog y
Ramin is hereby found GUILTY beyond reasonable doubt of Rape With Homicide
under Article 266-B of the Revised Penal Code, as amended by R.A. No. 8353, and
is accordingly sentenced to suffer the penalty of reclusion perpetua without
eligibility for parole.

Accused-appellant is hereby ordered to pay the heirs of Jennifer Patawaran-


Rosal P75,000 as civil indemnity ex delicto, P50,000 as moral damages, P25,000
as actual damages and P30,000 as exemplary damages.He is further ordered to pay
to the victim AAA the sums of P50,000 as civil indemnity ex delicto, P50,000 as
moral damages and P30,000 as exemplary damages.

With costs against the accused-appellant.

SO ORDERED.
MARTIN S. VILLARAMA, JR.
Associate Justice
G.R. No. 180643 March 25, 2008

ROMULO L. NERI, petitioner,


vs.
SENATE COMMITTEE ON ACCOUNTABILITY OF PUBLIC OFFICERS AND INVESTIGATIONS,
SENATE COMMITTEE ON TRADE AND COMMERCE, AND SENATE COMMITTEE ON
NATIONAL DEFENSE AND SECURITY, respondents.

DECISION

LEONARDO-DE CASTRO, J.:

At bar is a petition for certiorari under Rule 65 of the Rules of Court assailing the show
cause Letter1 dated November 22, 2007 and contempt Order2 dated January 30, 2008 concurrently
issued by respondent

Senate Committees on Accountability of Public Officers and Investigations, 3 Trade and


Commerce,4 and National Defense and Security5 against petitioner Romulo L. Neri, former Director
General of the National Economic and Development Authority (NEDA).

The facts, as culled from the pleadings, are as follows:

On April 21, 2007, the Department of Transportation and Communication (DOTC) entered into a
contract with Zhong Xing Telecommunications Equipment (ZTE) for the supply of equipment and
services for the National Broadband Network (NBN) Project in the amount of U.S. $ 329,481,290
(approximately P16 Billion Pesos). The Project was to be financed by the People's Republic of
China.

In connection with this NBN Project, various Resolutions were introduced in the Senate, as follows:

(1) P.S. Res. No. 127, introduced by Senator Aquilino Q. Pimentel, Jr., entitled
RESOLUTION DIRECTING THE BLUE RIBBON COMMITTEE AND THE COMMITTEE ON
TRADE AND INDUSTRY TO INVESTIGATE, IN AID OF LEGISLATION, THE
CIRCUMSTANCES LEADING TO THE APPROVAL OF THE BROADBAND CONTRACT
WITH ZTE AND THE ROLE PLAYED BY THE OFFICIALS CONCERNED IN GETTING IT
CONSUMMATED AND TO MAKE RECOMMENDATIONS TO HALE TO THE COURTS OF
LAW THE PERSONS RESPONSIBLE FOR ANY ANOMALY IN CONNECTION THEREWITH
AND TO PLUG THE LOOPHOLES, IF ANY IN THE BOT LAW AND OTHER PERTINENT
LEGISLATIONS.

(2) P.S. Res. No. 144, introduced by Senator Mar Roxas, entitled RESOLUTION URGING
PRESIDENT GLORIA MACAPAGAL ARROYO TO DIRECT THE CANCELLATION OF THE
ZTE CONTRACT

(3) P.S. Res. No. 129, introduced by Senator Panfilo M. Lacson, entitled RESOLUTION
DIRECTING THE COMMITTEE ON NATIONAL DEFENSE AND SECURITY TO CONDUCT
AN INQUIRY IN AID OF LEGISLATION INTO THE NATIONAL SECURITY IMPLICATIONS
OF AWARDING THE NATIONAL BROADBAND NETWORK CONTRACT TO THE CHINESE
FIRM ZHONG XING TELECOMMUNICATIONS EQUIPMENT COMPANY LIMITED (ZTE
CORPORATION) WITH THE END IN VIEW OF PROVIDING REMEDIAL LEGISLATION
THAT WILL PROTECT OUR NATIONAL SOVEREIGNTY, SECURITY AND TERRITORIAL
INTEGRITY.

(4) P.S. Res. No. 136, introduced by Senator Miriam Defensor Santiago, entitled
RESOLUTION DIRECTING THE PROPER SENATE COMMITTEE TO CONDUCT AN
INQUIRY, IN AID OF LEGISLATION, ON THE LEGAL AND ECONOMIC JUSTIFICATION OF
THE NATIONAL BROADBAND NETWORK (NBN) PROJECT OF THE NATIONAL
GOVERNMENT.

At the same time, the investigation was claimed to be relevant to the consideration of three (3)
pending bills in the Senate, to wit:

1. Senate Bill No. 1793, introduced by Senator Mar Roxas, entitled AN ACT SUBJECTING
TREATIES, INTERNATIONAL OR EXECUTIVE AGREEMENTS INVOLVING FUNDING IN
THE PROCUREMENT OF INFRASTRUCTURE PROJECTS, GOODS, AND CONSULTING
SERVICES TO BE INCLUDED IN THE SCOPE AND APPLICATION OF PHILIPPINE
PROCUREMENT LAWS, AMENDING FOR THE PURPOSE REPUBLIC ACT NO. 9184,
OTHERWISE KNOWN AS THE GOVERNMENT PROCUREMENT REFORM ACT, AND
FOR OTHER PURPOSES;

2. Senate Bill No. 1794, introduced by Senator Mar Roxas, entitled AN ACT IMPOSING
SAFEGUARDS IN CONTRACTING LOANS CLASSIFIED AS OFFICIAL DEVELOPMENT
ASSISTANCE, AMENDING FOR THE PURPOSE REPUBLIC ACT NO. 8182, AS AMENDED
BY REPUBLIC ACT NO. 8555, OTHERWISE KNOWN AS THE OFFICIAL DEVELOPMENT
ASSISTANCE ACT OF 1996, AND FOR OTHER PURPOSES; and

3. Senate Bill No. 1317, introduced by Senator Miriam Defensor Santiago, entitled AN ACT
MANDATING CONCURRENCE TO INTERNATIONAL AGREEMENTS AND EXECUTIVE
AGREEMENTS.

Respondent Committees initiated the investigation by sending invitations to certain personalities and
cabinet officials involved in the NBN Project. Petitioner was among those invited. He was summoned
to appear and testify on September 18, 20, and 26 and October 25, 2007. However, he attended
only the September 26 hearing, claiming he was "out of town" during the other dates.

In the September 18, 2007 hearing, businessman Jose de Venecia III testified that several high
executive officials and power brokers were using their influence to push the approval of the NBN
Project by the NEDA. It appeared that the Project was initially approved as a Build-Operate-Transfer
(BOT) project but, on March 29, 2007, the NEDA acquiesced to convert it into a government-to-
government project, to be financed through a loan from the Chinese Government.

On September 26, 2007, petitioner testified before respondent Committees for eleven (11) hours. He
disclosed that then Commission on Elections (COMELEC) Chairman Benjamin Abalos offered
him P200 Million in exchange for his approval of the NBN Project. He further narrated that he
informed President Arroyo about the bribery attempt and that she instructed him not to accept the
bribe. However, when probed further on what they discussed about the NBN Project, petitioner
refused to answer, invoking "executive privilege". In particular, he refused to answer the questions
on (a) whether or not President Arroyo followed up the NBN Project, 6 (b) whether or not she directed
him to prioritize it,7 and (c) whether or not she directed him to approve.8

Unrelenting, respondent Committees issued a Subpoena Ad Testificandum to petitioner, requiring


him to appear and testify on November 20, 2007.

However, in the Letter dated November 15, 2007, Executive Secretary Eduardo R. Ermita requested
respondent Committees to dispense with petitioner's testimony on the ground of executive privilege.
The pertinent portion of the letter reads:

With reference to the subpoena ad testificandum issued to Secretary Romulo Neri to appear
and testify again on 20 November 2007 before the Joint Committees you chair, it will be
recalled that Sec. Neri had already testified and exhaustively discussed the ZTE / NBN
project, including his conversation with the President thereon last 26 September 2007.

Asked to elaborate further on his conversation with the President, Sec. Neri asked for time to
consult with his superiors in line with the ruling of the Supreme Court in Senate v. Ermita,
488 SCRA 1 (2006).

Specifically, Sec. Neri sought guidance on the possible invocation of executive privilege on
the following questions, to wit:

a) Whether the President followed up the (NBN) project?

b) Were you dictated to prioritize the ZTE?

c) Whether the President said to go ahead and approve the project after being
told about the alleged bribe?

Following the ruling in Senate v. Ermita, the foregoing questions fall under conversations and
correspondence between the President and public officials which are considered executive
privilege (Almonte v. Vasquez, G.R. 95637, 23 May 1995; Chavez v. PEA, G.R. 133250, July
9, 2002). Maintaining the confidentiality of conversations of the President is necessary in the
exercise of her executive and policy decision making process. The expectation of a
President to the confidentiality of her conversations and correspondences, like the value
which we accord deference for the privacy of all citizens, is the necessity for protection of the
public interest in candid, objective, and even blunt or harsh opinions in Presidential decision-
making. Disclosure of conversations of the President will have a chilling effect on the
President, and will hamper her in the effective discharge of her duties and responsibilities, if
she is not protected by the confidentiality of her conversations.

The context in which executive privilege is being invoked is that the information sought to be
disclosed might impair our diplomatic as well as economic relations with the People's
Republic of China. Given the confidential nature in which these information were conveyed
to the President, he cannot provide the Committee any further details of these conversations,
without disclosing the very thing the privilege is designed to protect.

In light of the above considerations, this Office is constrained to invoke the settled doctrine of
executive privilege as refined in Senate v. Ermita, and has advised Secretary Neri
accordingly.
Considering that Sec. Neri has been lengthily interrogated on the subject in an
unprecedented 11-hour hearing, wherein he has answered all questions propounded to him
except the foregoing questions involving executive privilege, we therefore request that his
testimony on 20 November 2007 on the ZTE / NBN project be dispensed with.

On November 20, 2007, petitioner did not appear before respondent Committees. Thus, on
November 22, 2007, the latter issued the show cause Letter requiring him to explain why he should
not be cited in contempt. The Letter reads:

Since you have failed to appear in the said hearing, the Committees on Accountability of
Public Officers and Investigations (Blue Ribbon), Trade and Commerce and National
Defense and Security require you to show cause why you should not be cited in contempt
under Section 6, Article 6 of the Rules of the Committee on Accountability of Public Officers
and Investigations (Blue Ribbon).

The Senate expects your explanation on or before 2 December 2007.

On November 29, 2007, petitioner replied to respondent Committees, manifesting that it was not his
intention to ignore the Senate hearing and that he thought the only remaining questions were those
he claimed to be covered by executive privilege, thus:

It was not my intention to snub the last Senate hearing. In fact, I have cooperated with the
task of the Senate in its inquiry in aid of legislation as shown by my almost 11 hours stay
during the hearing on 26 September 2007. During said hearing, I answered all the questions
that were asked of me, save for those which I thought was covered by executive privilege,
and which was confirmed by the Executive Secretary in his Letter 15 November 2007. In
good faith, after that exhaustive testimony, I thought that what remained were only the three
questions, where the Executive Secretary claimed executive privilege. Hence, his request
that my presence be dispensed with.

Be that as it may, should there be new matters that were not yet taken up during the 26
September 2007 hearing, may I be furnished in advance as to what else I need to clarify, so
that as a resource person, I may adequately prepare myself.

In addition, petitioner submitted a letter prepared by his counsel, Atty. Antonio R. Bautista, stating,
among others that: (1) his (petitioner) non-appearance was upon the order of the President; and (2)
his conversation with President Arroyo dealt with delicate and sensitive national security and
diplomatic matters relating to the impact of the bribery scandal involving high government officials
and the possible loss of confidence of foreign investors and lenders in the Philippines. The letter
ended with a reiteration of petitioner's request that he "be furnished in advance" as to what else he
needs to clarify so that he may adequately prepare for the hearing.

In the interim, on December 7, 2007, petitioner filed with this Court the present petition
for certiorari assailing the show cause Letter dated November 22, 2007.

Respondent Committees found petitioner's explanations unsatisfactory. Without responding to his


request for advance notice of the matters that he should still clarify, they issued the Order dated
January 30, 2008, citing him in contempt of respondent Committees and ordering his arrest and
detention at the Office of the Senate Sergeant-At-Arms until such time that he would appear and
give his testimony. The said Order states:
ORDER

For failure to appear and testify in the Committee's hearing on Tuesday, September 18,
2007; Thursday, September 20, 2007; Thursday, October 25, 2007; and Tuesday, November
20, 2007, despite personal notice and Subpoenas Ad Testificandum sent to and received by
him, which thereby delays, impedes and obstructs, as it has in fact delayed, impeded and
obstructed the inquiry into the subject reported irregularities, AND for failure to explain
satisfactorily why he should not be cited for contempt (Neri letter of 29 November 2007),
herein attached) ROMULO L. NERI is hereby cited in contempt of this (sic) Committees
and ordered arrested and detained in the Office of the Senate Sergeant-At-Arms until
such time that he will appear and give his testimony.

The Sergeant-At-Arms is hereby directed to carry out and implement this Order and make a
return hereof within twenty four (24) hours from its enforcement.

SO ORDERED.

On the same date, petitioner moved for the reconsideration of the above Order.9 He insisted that he
has not shown "any contemptible conduct worthy of contempt and arrest." He emphasized his
willingness to testify on new matters, however, respondent Committees did not respond to his
request for advance notice of questions. He also mentioned the petition for certiorari he filed on
December 7, 2007. According to him, this should restrain respondent Committees from enforcing the
show cause Letter "through the issuance of declaration of contempt" and arrest.

In view of respondent Committees' issuance of the contempt Order, petitioner filed on February 1,
2008 a Supplemental Petition for Certiorari (With Urgent Application for TRO/Preliminary Injunction),
seeking to restrain the implementation of the said contempt Order.

On February 5, 2008, the Court issued a Status Quo Ante Order (a) enjoining respondent
Committees from implementing their contempt Order, (b) requiring the parties to observe the status
quo prevailing prior to the issuance of the assailed order, and (c) requiring respondent Committees
to file their comment.

Petitioner contends that respondent Committees' show cause Letter and contempt Order were
issued with grave abuse of discretion amounting to lack or excess of jurisdiction. He stresses that his
conversations with President Arroyo are "candid discussions meant to explore options in
making policy decisions." According to him, these discussions "dwelt on the impact of the
bribery scandal involving high government officials on the country's diplomatic relations and
economic and military affairs and the possible loss of confidence of foreign investors and
lenders in the Philippines." He also emphasizes that his claim of executive privilege is upon the
order of the President and within the parameters laid down in Senate v. Ermita10 and United States v.
Reynolds.11 Lastly, he argues that he is precluded from disclosing communications made

to him in official confidence under Section 712 of Republic Act No. 6713, otherwise known as Code of
Conduct and Ethical Standards for Public Officials and Employees, and Section 2413 (e) of Rule 130
of the Rules of Court.

Respondent Committees assert the contrary. They argue that (1) petitioner's testimony is material
and pertinent in the investigation conducted in aid of legislation; (2) there is no valid justification for
petitioner to claim executive privilege; (3) there is no abuse of their authority to order petitioner's
arrest; and (4) petitioner has not come to court with clean hands.
In the oral argument held last March 4, 2008, the following issues were ventilated:

1. What communications between the President and petitioner Neri are covered by the
principle of 'executive privilege'?

1.a Did Executive Secretary Ermita correctly invoke the principle of executive
privilege, by order of the President, to cover (i) conversations of the President in the
exercise of her executive and policy decision-making and (ii) information, which
might impair our diplomatic as well as economic relations with the People's Republic
of China?

1.b. Did petitioner Neri correctly invoke executive privilege to avoid testifying on his
conversations with the President on the NBN contract on his assertions that the said
conversations "dealt with delicate and sensitive national security and
diplomatic matters relating to the impact of bribery scandal involving high
government officials and the possible loss of confidence of foreign investors
and lenders in the Philippines" x x x within the principles laid down in Senate v.
Ermita (488 SCRA 1 [2006])?

1.c Will the claim of executive privilege in this case violate the following provisions of
the Constitution:

Sec. 28, Art. II (Full public disclosure of all transactions involving public
interest)

Sec. 7, Art. III (The right of the people to information on matters of public
concern)

Sec. 1, Art. XI (Public office is a public trust)

Sec. 17, Art. VII (The President shall ensure that the laws be faithfully
executed)

and the due process clause and the principle of separation of powers?

2. What is the proper procedure to be followed in invoking executive privilege?

3. Did the Senate Committees gravely abuse their discretion in ordering the arrest of
petitioner for non-compliance with the subpoena?

After the oral argument, the parties were directed to manifest to the Court within twenty-four (24)
hours if they are amenable to the Court's proposal of allowing petitioner to immediately resume his
testimony before the Senate Committees to answer the other questions of the Senators without
prejudice to the decision on the merits of this pending petition. It was understood that petitioner may
invoke executive privilege in the course of the Senate Committees proceedings, and if the
respondent Committees disagree thereto, the unanswered questions will be the subject of a
supplemental pleading to be resolved along with the three (3) questions subject of the present
petition.14 At the same time, respondent Committees were directed to submit several pertinent
documents.15
The Senate did not agree with the proposal for the reasons stated in the Manifestation dated March
5, 2008. As to the required documents, the Senate and respondent Committees manifested that they
would not be able to submit the latter's "Minutes of all meetings" and the "Minute Book" because it
has never been the "historical and traditional legislative practice to keep them." 16 They instead
submitted the Transcript of Stenographic Notes of respondent Committees' joint public hearings.

On March 17, 2008, the Office of the Solicitor General (OSG) filed a Motion for Leave to Intervene
and to Admit Attached Memorandum, founded on the following arguments:

(1) The communications between petitioner and the President are covered by the principle of
"executive privilege."

(2) Petitioner was not summoned by respondent Senate Committees in accordance with the
law-making body's power to conduct inquiries in aid of legislation as laid down in Section 21,
Article VI of the Constitution and Senate v. Ermita.

(3) Respondent Senate Committees gravely abused its discretion for alleged non-
compliance with the Subpoena dated November 13, 2007.

The Court granted the OSG's motion the next day, March 18, 2008.

As the foregoing facts unfold, related events transpired.

On March 6, 2008, President Arroyo issued Memorandum Circular No. 151, revoking Executive
Order No. 464 and Memorandum Circular No. 108. She advised executive officials and employees
to follow and abide by the Constitution, existing laws and jurisprudence, including, among others, the
case of Senate v. Ermita17 when they are invited to legislative inquiries in aid of legislation.

At the core of this controversy are the two (2) crucial queries, to wit:

First, are the communications elicited by the subject three (3) questions covered by
executive privilege?

And second, did respondent Committees commit grave abuse of discretion in issuing the
contempt Order?

We grant the petition.

At the outset, a glimpse at the landmark case of Senate v. Ermita18 becomes


imperative. Senate draws in bold strokes the distinction between
the legislative and oversight powers of the Congress, as embodied under Sections 21 and 22,
respectively, of Article VI of the Constitution, to wit:

SECTION 21. The Senate or the House of Representatives or any of its respective
committees may conduct inquiries in aid of legislation in accordance with its duly published
rules of procedure. The rights of persons appearing in or affected by such inquiries shall be
respected.

SECTION 22. The heads of department may upon their own initiative, with the consent of the
President, or upon the request of either House, or as the rules of each House shall provide,
appear before and be heard by such House on any matter pertaining to their departments.
Written questions shall be submitted to the President of the Senate or the Speaker of the
House of Representatives at least three days before their scheduled appearance.
Interpellations shall not be limited to written questions, but may cover matters related
thereto. When the security of the state or the public interest so requires and the President so
states in writing, the appearance shall be conducted in executive session.

Senate cautions that while the above provisions are closely related and complementary to each
other, they should not be considered as pertaining to the same power of Congress. Section 21
relates to the power to conduct inquiries in aid of legislation. Its aim is to elicit information that may
be used for legislation. On the other hand, Section 22 pertains to the power to conduct a question
hour, the objective of which is to obtain information in pursuit of Congress' oversight
function.19 Simply stated, while both powers allow Congress or any of its committees to conduct
inquiry, their objectives are different.

This distinction gives birth to another distinction with regard to the use of compulsory process. Unlike
in Section 21, Congress cannot compel the appearance of executive officials under Section 22. The
Court's pronouncement in Senate v. Ermita20 is clear:

When Congress merely seeks to be informed on how department heads are implementing
the statutes which it has issued, its right to such information is not as imperative as that of
the President to whom, as Chief Executive, such department heads must give a report of
their performance as a matter of duty. In such instances, Section 22, in keeping with the
separation of powers, states that Congress may only request their appearance. Nonetheless,
when the inquiry in which Congress requires their appearance is 'in aid of legislation' under
Section 21, the appearance is mandatory for the same reasons stated in Arnault.

In fine, the oversight function of Congress may be facilitated by compulsory process


only to the extent that it is performed in pursuit of legislation. This is consistent with the
intent discerned from the deliberations of the Constitutional Commission

Ultimately, the power of Congress to compel the appearance of executive officials under
section 21 and the lack of it under Section 22 find their basis in the principle of separation of
powers. While the executive branch is a co-equal branch of the legislature, it cannot frustrate
the power of Congress to legislate by refusing to comply with its demands for information.
(Emphasis supplied.)

The availability of the power of judicial review to resolve the issues raised in this case has also been
settled in Senate v. Ermita, when it held:

As evidenced by the American experience during the so-called "McCarthy era," however, the
right of Congress to conduct inquiries in aid of legislation is, in theory, no less susceptible to
abuse than executive or judicial power. It may thus be subjected to judicial review pursuant
to the Court's certiorari powers under Section 1, Article VIII of the Constitution.

Hence, this decision.

The Communications Elicited by the Three (3) Questions are Covered by Executive Privilege

We start with the basic premises where the parties have conceded.
The power of Congress to conduct inquiries in aid of legislation is broad. This is based on the
proposition that a legislative body cannot legislate wisely or effectively in the absence of information
respecting the conditions which the legislation is intended to affect or change. 21 Inevitably, adjunct
thereto is the compulsory process to enforce it. But, the power, broad as it is, has limitations. To be
valid, it is imperative that it is done in accordance with the Senate or House duly published rules of
procedure and that the rights of the persons appearing in or affected by such inquiries be respected.

The power extends even to executive officials and the only way for them to be exempted is through a
valid claim of executive privilege.22 This directs us to the consideration of the question -- is there a
recognized claim of executive privilege despite the revocation of E.O. 464?

A- There is a Recognized Claim


of Executive Privilege Despite the
Revocation of E.O. 464

At this juncture, it must be stressed that the revocation of E.O. 464 does not in any way diminish our
concept of executive privilege. This is because this concept has Constitutional underpinnings. Unlike
the United States which has further accorded the concept with statutory status by enacting
the Freedom of Information Act23 and the Federal Advisory Committee Act,24 the Philippines has
retained its constitutional origination, occasionally interpreted only by this Court in various cases.
The most recent of these is the case of Senate v. Ermita where this Court declared unconstitutional
substantial portions of E.O. 464. In this regard, it is worthy to note that Executive Ermita's Letter
dated November 15, 2007 limits its bases for the claim of executive privilege to Senate v.
Ermita, Almonte v. Vasquez,25 and Chavez v. PEA.26 There was never a mention of E.O. 464.

While these cases, especially Senate v. Ermita,27 have comprehensively discussed the concept of
executive privilege, we deem it imperative to explore it once more in view of the clamor for this Court
to clearly define the communications covered by executive privilege.

The Nixon and post-Watergate cases established the broad contours of the presidential
communications privilege.28 In United States v. Nixon,29 the U.S. Court recognized a great public
interest in preserving "the confidentiality of conversations that take place in the President's
performance of his official duties." It thus considered presidential communications as
"presumptively privileged." Apparently, the presumption is founded on the "President's
generalized interest in confidentiality." The privilege is said to be necessary to guarantee the
candor of presidential advisors and to provide "the President and those who assist him with
freedom to explore alternatives in the process of shaping policies and making decisions and
to do so in a way many would be unwilling to express except privately."

In In Re: Sealed Case,30 the U.S. Court of Appeals delved deeper. It ruled that there are two (2) kinds
of executive privilege; one is the presidential communications privilege and, the other is the
deliberative process privilege. The former pertains to "communications, documents or other
materials that reflect presidential decision-making and deliberations and that the President
believes should remain confidential." The latter includes 'advisory opinions, recommendations
and deliberations comprising part of a process by which governmental decisions and
policies are formulated."

Accordingly, they are characterized by marked distinctions. Presidential communications


privilege applies to decision-making of the President while, the deliberative process privilege,
to decision-making of executive officials. The first is rooted in the constitutional principle of
separation of power and the President's unique constitutional role; the second on common law
privilege. Unlike the deliberative process privilege, the presidential communications
privilege applies to documents in their entirety, and covers final and post-decisional materials
as well as pre-deliberative ones31 As a consequence, congressional or judicial negation of
the presidential communications privilege is always subject to greater scrutiny than denial of
the deliberative process privilege.

Turning on who are the officials covered by the presidential communications privilege, In Re:
Sealed Case confines the privilege only to White House Staff that has "operational proximity" to
direct presidential decision-making. Thus, the privilege is meant to encompass only those functions
that form the core of presidential authority, involving what the court characterized as "quintessential
and non-delegable Presidential power," such as commander-in-chief power, appointment and
removal power, the power to grant pardons and reprieves, the sole-authority to receive ambassadors
and other public officers, the power to negotiate treaties, etc.32

The situation in Judicial Watch, Inc. v. Department of Justice33 tested the In Re: Sealed
Case principles. There, while the presidential decision involved is the exercise of the President's
pardon power, a non-delegable, core-presidential function, the Deputy Attorney General and the
Pardon Attorney were deemed to be too remote from the President and his senior White House
advisors to be protected. The Court conceded that

functionally those officials were performing a task directly related to the President's pardon power,
but concluded that an organizational test was more appropriate for confining the potentially broad
sweep that would result from the In Re: Sealed Case's functional test. The majority concluded that,
the lesser protections of the deliberative process privilege would suffice. That privilege was,
however, found insufficient to justify the confidentiality of the 4,341 withheld documents.

But more specific classifications of communications covered by executive privilege are made in older
cases. Courts ruled early that the Executive has a right to withhold documents that might
reveal military or state secrets,34 identity of government informers in some
circumstances,,35 and information related to pending investigations.36 An area where the
privilege is highly revered is in foreign relations. In United States v. Curtiss-Wright Export
Corp.37 the U.S. Court, citing President George Washington, pronounced:

The nature of foreign negotiations requires caution, and their success must often depend on
secrecy, and even when brought to a conclusion, a full disclosure of all the measures,
demands, or eventual concessions which may have been proposed or contemplated would
be extremely impolitic, for this might have a pernicious influence on future negotiations or
produce immediate inconveniences, perhaps danger and mischief, in relation to other
powers. The necessity of such caution and secrecy was one cogent reason for vesting the
power of making treaties in the President, with the advice and consent of the Senate, the
principle on which the body was formed confining it to a small number of members. To admit,
then, a right in the House of Representatives to demand and to have as a matter of course
all the papers respecting a negotiation with a foreign power would be to establish a
dangerous precedent.

Majority of the above jurisprudence have found their way in our jurisdiction. In Chavez v. PCGG38,
this Court held that there is a "governmental privilege against public disclosure with respect to state
secrets regarding military, diplomatic and other security matters." In Chavez v. PEA,39 there is also a
recognition of the confidentiality of Presidential conversations, correspondences, and discussions in
closed-door Cabinet meetings. In Senate v. Ermita, the concept of presidential communications
privilege is fully discussed.
As may be gleaned from the above discussion, the claim of executive privilege is highly recognized
in cases where the subject of inquiry relates to a power textually committed by the Constitution to the
President, such as the area of military and foreign relations. Under our Constitution, the President is
the repository of the commander-in-chief,40 appointing,41 pardoning,42 and diplomatic43 powers.
Consistent with the doctrine of separation of powers, the information relating to these powers may
enjoy greater confidentiality than others.

The above cases, especially, Nixon, In Re Sealed Case and Judicial Watch, somehow provide the
elements of presidential communications privilege, to wit:

1) The protected communication must relate to a "quintessential and non-delegable


presidential power."

2) The communication must be authored or "solicited and received" by a close advisor of the
President or the President himself. The judicial test is that an advisor must be in "operational
proximity" with the President.

3) The presidential communications privilege remains a qualified privilege that may be


overcome by a showing of adequate need, such that the information sought "likely contains
important evidence" and by the unavailability of the information elsewhere by an appropriate
investigating authority.44

In the case at bar, Executive Secretary Ermita premised his claim of executive privilege on the
ground that the communications elicited by the three (3) questions "fall under conversation and
correspondence between the President and public officials" necessary in "her executive and policy
decision-making process" and, that "the information sought to be disclosed might impair our
diplomatic as well as economic relations with the People's Republic of China." Simply put, the bases
are presidential communications privilege and executive privilege on matters relating
to diplomacy or foreign relations.

Using the above elements, we are convinced that, indeed, the communications elicited by the three
(3) questions are covered by the presidential communications privilege. First, the
communications relate to a "quintessential and non-delegable power" of the President, i.e. the power
to enter into an executive agreement with other countries. This authority of the President to enter
into executive agreements without the concurrence of the Legislature has traditionally been
recognized in Philippine jurisprudence.45 Second, the communications are "received" by a close
advisor of the President. Under the "operational proximity" test, petitioner can be considered a close
advisor, being a member of President Arroyo's cabinet. And third, there is no adequate showing of a
compelling need that would justify the limitation of the privilege and of the unavailability of the
information elsewhere by an appropriate investigating authority.

The third element deserves a lengthy discussion.

United States v. Nixon held that a claim of executive privilege is subject to balancing against other
interest. In other words, confidentiality in executive privilege is not absolutely protected by the
Constitution. The U.S. Court held:

[N]either the doctrine of separation of powers, nor the need for confidentiality of high-level
communications, without more, can sustain an absolute, unqualified Presidential privilege of
immunity from judicial process under all circumstances.
The foregoing is consistent with the earlier case of Nixon v. Sirica,46 where it was held
that presidential communications are presumptively privileged and that the presumption can be
overcome only by mere showing of public need by the branch seeking access to conversations. The
courts are enjoined to resolve the competing interests of the political branches of the government "in
the manner that preserves the essential functions of each Branch." 47 Here, the record is bereft of any
categorical explanation from respondent Committees to show a compelling or citical need for the
answers to the three (3) questions in the enactment of a law. Instead, the questions veer more
towards the exercise of the legislative oversight function under Section 22 of Article VI rather than
Section 21 of the same Article. Senate v. Ermita ruled that the "the oversight function of Congress
may be facilitated by compulsory process only to the extent that it is performed in pursuit of
legislation." It is conceded that it is difficult to draw the line between an inquiry in aid of
legislation and an inquiry in the exercise of oversight function of Congress. In this regard, much will
depend on the content of the questions and the manner the inquiry is conducted.

Respondent Committees argue that a claim of executive privilege does not guard against a possible
disclosure of a crime or wrongdoing. We see no dispute on this. It is settled in United States v.
Nixon48 that "demonstrated, specific need for evidence in pending criminal trial" outweighs the
President's "generalized interest in confidentiality." However, the present case's distinction with
the Nixon case is very evident. In Nixon, there is a pending criminal proceeding where the
information is requested and it is the demands of due process of law and the fair administration of
criminal justice that the information be disclosed. This is the reason why the U.S. Court was quick to
"limit the scope of its decision." It stressed that it is "not concerned here with the balance
between the President's generalized interest in confidentiality x x x and congressional
demands for information." Unlike in Nixon, the information here is elicited, not in a criminal
proceeding, but in a legislative inquiry. In this regard, Senate v. Ermita stressed that the validity of
the claim of executive privilege depends not only on the ground invoked but, also, on the procedural
setting or the context in which the claim is made. Furthermore, in Nixon, the President did not
interpose any claim of need to protect military, diplomatic or sensitive national security secrets. In the
present case, Executive Secretary Ermita categorically claims executive privilege on the grounds
of presidential communications privilege in relation to her executive and policy decision-making
process and diplomatic secrets.

The respondent Committees should cautiously tread into the investigation of matters which may
present a conflict of interest that may provide a ground to inhibit the Senators participating in the
inquiry if later on an impeachment proceeding is initiated on the same subject matter of the present
Senate inquiry. Pertinently, in Senate Select Committee on Presidential Campaign Activities v.
Nixon,49 it was held that since an impeachment proceeding had been initiated by a House
Committee, the Senate Select Committee's immediate oversight need for five presidential tapes
should give way to the House Judiciary Committee which has the constitutional authority to inquire
into presidential impeachment. The Court expounded on this issue in this wise:

It is true, of course, that the Executive cannot, any more than the other branches of
government, invoke a general confidentiality privilege to shield its officials and employees
from investigations by the proper governmental institutions into possible criminal
wrongdoing. The Congress learned this as to its own privileges in Gravel v. United States, as
did the judicial branch, in a sense, in Clark v. United States, and the executive branch itself
in Nixon v. Sirica. But under Nixon v. Sirica, the showing required to overcome the
presumption favoring confidentiality turned, not on the nature of the presidential conduct
that the subpoenaed material might reveal, but, instead, on the nature and
appropriateness of the function in the performance of which the material was sought,
and the degree to which the material was necessary to its fulfillment. Here also our
task requires and our decision implies no judgment whatever concerning possible
presidential involvement in culpable activity. On the contrary, we think the sufficiency
of the Committee's showing must depend solely on whether the subpoenaed evidence
is demonstrably critical to the responsible fulfillment of the Committee's functions.

In its initial briefs here, the Committee argued that it has shown exactly this. It contended that
resolution, on the basis of the subpoenaed tapes, of the conflicts in the testimony before it
'would aid in a determination whether legislative involvement in political campaigns is
necessary' and 'could help engender the public support needed for basic reforms in our
electoral system.' Moreover, Congress has, according to the Committee, power to oversee
the operations of the executive branch, to investigate instances of possible corruption and
malfeasance in office, and to expose the results of its investigations to public view. The
Committee says that with respect to Watergate-related matters, this power has been
delegated to it by the Senate, and that to exercise its power responsibly, it must have access
to the subpoenaed tapes.

We turn first to the latter contention. In the circumstances of this case, we need neither deny
that the Congress may have, quite apart from its legislative responsibilities, a general
oversight power, nor explore what the lawful reach of that power might be under the
Committee's constituent resolution. Since passage of that resolution, the House Committee
on the Judiciary has begun an inquiry into presidential impeachment. The investigative
authority of the Judiciary Committee with respect to presidential conduct has an express
constitutional source. x x x We have been shown no evidence indicating that Congress
itself attaches any particular value to this interest. In these circumstances, we think
the need for the tapes premised solely on an asserted power to investigate and inform
cannot justify enforcement of the Committee's subpoena.

The sufficiency of the Committee's showing of need has come to depend, therefore, entirely
on whether the subpoenaed materials are critical to the performance of its legislative
functions. There is a clear difference between Congress' legislative tasks and the
responsibility of a grand jury, or any institution engaged in like functions. While fact-finding
by a legislative committee is undeniably a part of its task, legislative judgments
normally depend more on the predicted consequences of proposed legislative actions
and their political acceptability, than on precise reconstruction of past events;
Congress frequently legislates on the basis of conflicting information provided in its hearings.
In contrast, the responsibility of the grand jury turns entirely on its ability to determine
whether there is probable cause to believe that certain named individuals did or did not
commit specific crimes. If, for example, as in Nixon v. Sirica, one of those crimes is perjury
concerning the content of certain conversations, the grand jury's need for the most precise
evidence, the exact text of oral statements recorded in their original form, is undeniable. We
see no comparable need in the legislative process, at least not in the circumstances of
this case. Indeed, whatever force there might once have been in the Committee's argument
that the subpoenaed materials are necessary to its legislative judgments has been
substantially undermined by subsequent events. (Emphasis supplied)

Respondent Committees further contend that the grant of petitioner's claim of executive privilege
violates the constitutional provisions on the right of the people to information on matters of public
concern.50 We might have agreed with such contention if petitioner did not appear before them at all.
But petitioner made himself available to them during the September 26 hearing, where he was
questioned for eleven (11) hours. Not only that, he expressly manifested his willingness to answer
more questions from the Senators, with the exception only of those covered by his claim of executive
privilege.
The right to public information, like any other right, is subject to limitation. Section 7 of Article III
provides:

The right of the people to information on matters of public concern shall be recognized.
Access to official records, and to documents, and papers pertaining to official acts,
transactions, or decisions, as well as to government research data used as basis for policy
development, shall be afforded the citizen, subject to such limitations as may be
provided by law.

The provision itself expressly provides the limitation, i.e. as may be provided by law. Some of
these laws are Section 7 of Republic Act (R.A.) No. 6713, 51 Article 22952 of the Revised Penal Code,
Section 3 (k)53 of R.A. No. 3019, and Section 24(e)54 of Rule 130 of the Rules of Court. These are in
addition to what our body of jurisprudence classifies as confidential55 and what our Constitution
considers as belonging to the larger concept of executive privilege. Clearly, there is a recognized
public interest in the confidentiality of certain information. We find the information subject of this case
belonging to such kind.

More than anything else, though, the right of Congress or any of its Committees to obtain
information in aid of legislation cannot be equated with the people's right to public information. The
former cannot claim that every legislative inquiry is an exercise of the people's right to information.
The distinction between such rights is laid down in Senate v. Ermita:

There are, it bears noting, clear distinctions between the right of Congress to information
which underlies the power of inquiry and the right of people to information on matters of
public concern. For one, the demand of a citizen for the production of documents pursuant to
his right to information does not have the same obligatory force as a subpoena duces
tecum issued by Congress. Neither does the right to information grant a citizen the power to
exact testimony from government officials. These powers belong only to Congress, not to an
individual citizen.

Thus, while Congress is composed of representatives elected by the people, it does


not follow, except in a highly qualified sense, that in every exercise of its power of
inquiry, the people are exercising their right to information.

The members of respondent Committees should not invoke as justification in their exercise of power
a right properly belonging to the people in general. This is because when they discharge their power,
they do so as public officials and members of Congress. Be that as it may, the right to information
must be balanced with and should give way, in appropriate cases, to constitutional precepts
particularly those pertaining to delicate interplay of executive-legislative powers and privileges which
is the subject of careful review by numerous decided cases.

B- The Claim of Executive Privilege


is Properly Invoked

We now proceed to the issue -- whether the claim is properly invoked by the
President. Jurisprudence teaches that for the claim to be properly invoked, there must be a formal
claim of privilege, lodged by the head of the department which has control over the matter." 56 A
formal and proper claim of executive privilege requires a "precise and certain reason" for preserving
their confidentiality.57

The Letter dated November 17, 2007 of Executive Secretary Ermita satisfies the requirement. It
serves as the formal claim of privilege. There, he expressly states that "this Office is constrained
to invoke the settled doctrine of executive privilege as refined in Senate v. Ermita, and has
advised Secretary Neri accordingly." Obviously, he is referring to the Office of the President. That
is more than enough compliance. In Senate v. Ermita, a less categorical letter was even adjudged to
be sufficient.

With regard to the existence of "precise and certain reason," we find the grounds relied upon by
Executive Secretary Ermita specific enough so as not "to leave respondent Committees in the dark
on how the requested information could be classified as privileged." The case of Senate v.
Ermita only requires that an allegation be made "whether the information demanded involves military
or diplomatic secrets, closed-door Cabinet meetings, etc." The particular ground must only be
specified. The enumeration is not even intended to be comprehensive."58 The following statement of
grounds satisfies the requirement:

The context in which executive privilege is being invoked is that the information sought to be
disclosed might impair our diplomatic as well as economic relations with the People's
Republic of China. Given the confidential nature in which these information were conveyed
to the President, he cannot provide the Committee any further details of these conversations,
without disclosing the very thing the privilege is designed to protect.

At any rate, as held further in Senate v. Ermita, 59 the Congress must not require the executive to
state the reasons for the claim with such particularity as to compel disclosure of the information
which the privilege is meant to protect. This is a matter of respect to a coordinate and co-equal
department.

II

Respondent Committees Committed Grave Abuse of Discretion


in Issuing the Contempt Order

Grave abuse of discretion means "such capricious and whimsical exercise of judgment as is
equivalent to lack of jurisdiction, or, in other words where the power is exercised in an arbitrary or
despotic manner by reason of passion or personal hostility and it must be so patent and gross as to
amount to an evasion of positive duty or to a virtual refusal to perform the duty enjoined or to act at
all in contemplation of law."60

It must be reiterated that when respondent Committees issued the show cause Letter dated
November 22, 2007, petitioner replied immediately, manifesting that it was not his intention to ignore
the Senate hearing and that he thought the only remaining questions were the three (3) questions he
claimed to be covered by executive privilege. In addition thereto, he submitted Atty. Bautista's letter,
stating that his non-appearance was upon the order of the President and specifying the reasons why
his conversations with President Arroyo are covered by executive privilege. Both correspondences
include an expression of his willingness to testify again, provided he "be furnished in
advance" copies of the questions. Without responding to his request for advance list of questions,
respondent Committees issued the Order dated January 30, 2008, citing him in contempt of
respondent Committees and ordering his arrest and detention at the Office of the Senate Sergeant-
At-Arms until such time that he would appear and give his testimony. Thereupon, petitioner filed a
motion for reconsideration, informing respondent Committees that he had filed the present petition
for certiorari.

Respondent Committees committed grave abuse of discretion in issuing the contempt Order in view
of five (5) reasons.
First, there being a legitimate claim of executive privilege, the issuance of the contempt Order
suffers from constitutional infirmity.

Second, respondent Committees did not comply with the requirement laid down in Senate v.
Ermita that the invitations should contain the "possible needed statute which prompted the need for
the inquiry," along with "the usual indication of the subject of inquiry and the questions relative to
and in furtherance thereof." Compliance with this requirement is imperative, both under Sections 21
and 22 of Article VI of the Constitution. This must be so to ensure that the rights of both
persons appearing in or affected by such inquiry are respected as mandated by said Section 21
and by virtue of the express language of Section 22. Unfortunately, despite petitioner's repeated
demands, respondent Committees did not send him an advance list of questions.

Third, a reading of the transcript of respondent Committees' January 30, 2008 proceeding reveals
that only a minority of the members of the Senate Blue Ribbon Committee was present during the
deliberation. 61 Section 18 of the Rules of Procedure Governing Inquiries in Aid of
Legislation provides that:

"The Committee, by a vote of majority of all its members, may punish for contempt any
witness before it who disobeys any order of the Committee or refuses to be sworn or to
testify or to answer proper questions by the Committee or any of its members."

Clearly, the needed vote is a majority of all the members of the Committee. Apparently, members
who did not actually participate in the deliberation were made to sign the contempt Order. Thus,
there is a cloud of doubt as to the validity of the contempt Order dated January 30, 2008. We quote
the pertinent portion of the transcript, thus:

THE CHAIRMAN (SEN. CAYETANO, A). For clarification. x x x The Chair will call either
a caucus or will ask the Committee on Rules if there is a problem. Meaning, if we do
not have the sufficient numbers. But if we have a sufficient number, we will just hold a
caucus to be able to implement that right away becauseAgain, our Rules provide
that any one held in contempt and ordered arrested, need the concurrence of a
majority of all members of the said committee and we have three committees
conducting this.

So thank you very much to the members

SEN. PIMENTEL. Mr. Chairman.

THE CHAIRMAN (SEN. CAYETANO,A). May I recognize the Minority Leader and give
him the floor, Senator Pimentel.

SEN. PIMENTEL. Mr. Chairman, there is no problem, I think, with consulting the other
committees. But I am of the opinion that the Blue Ribbon Committee is the lead
committee, and therefore, it should have preference in enforcing its own decisions.
Meaning to say, it is not something that is subject to consultation with other
committees. I am not sure that is the right interpretation. I think that once we decide
here, we enforce what we decide, because otherwise, before we know it, our
determination is watered down by delay and, you know, the so-called "consultation"
that inevitably will have to take place if we follow the premise that has been explained.
So my suggestion, Mr. Chairman, is the Blue Ribbon Committee should not forget it's the
lead committee here, and therefore, the will of the lead committee prevails over all the other,
you, know reservations that other committees might have who are only secondary or even
tertiary committees, Mr. Chairman.

THE CHAIRMAN (SEN. CAYETANO, A.) Thank you very much to the Minority Leader. And I
agree with the wisdom of his statements. I was merely mentioning that under Section 6 of
the Rules of the Committee and under Section 6, "The Committee by a vote of a majority of
all its members may punish for contempt any witness before it who disobeys any order of the
Committee."

So the Blue Ribbon Committee is more than willing to take that responsibility. But we only
have six members here today, I am the seventh as chair and so we have not met that
number. So I am merely stating that, sir, that when we will prepare the documentation, if a
majority of all members sign and I am following the Sabio v. Gordon rule wherein I do
believe, if I am not mistaken, Chairman Gordon prepared the documentation and then either
in caucus or in session asked the other members to sign. And once the signatures are
obtained, solely for the purpose that Secretary Neri or Mr. Lozada will not be able to legally
question our subpoena as being insufficient in accordance with law.

SEN. PIMENTEL. Mr. Chairman, the caution that the chair is suggesting is very well-taken.
But I'd like to advert to the fact that the quorum of the committee is only two as far as I
remember. Any two-member senators attending a Senate committee hearing provide that
quorum, and therefore there is more than a quorum demanded by our Rules as far as we are
concerned now, and acting as Blue Ribbon Committee, as Senator Enrile pointed out. In any
event, the signatures that will follow by the additional members will only tend to strengthen
the determination of this Committee to put its foot forward put down on what is happening
in this country, Mr. Chairman, because it really looks terrible if the primary Committee of the
Senate, which is the Blue Ribbon Committee, cannot even sanction people who openly defy,
you know, the summons of this Committee. I know that the Chair is going through an
agonizing moment here. I know that. But nonetheless, I think we have to uphold, you know,
the institution that we are representing because the alternative will be a disaster for all of us,
Mr. Chairman. So having said that, I'd like to reiterate my point.

THE CHAIRMAN (SEN. CAYETANO, A.) First of all, I agree 100 percent with the intentions
of the Minority Leader. But let me very respectfully disagree with the legal requirements.
Because, yes, we can have a hearing if we are only two but both under Section 18 of
the Rules of the Senate and under Section 6 of the Rules of the Blue Ribbon
Committee, there is a need for a majority of all members if it is a case of contempt and
arrest. So, I am simply trying to avoid the court rebuking the Committee, which will instead
of strengthening will weaken us. But I do agree, Mr. Minority Leader, that we should push for
this and show the executive branch that the well-decided the issue has been decided upon
the Sabio versus Gordon case. And it's very clear that we are all allowed to call witnesses.
And if they refure or they disobey not only can we cite them in contempt and have them
arrested. x x x 62

Fourth, we find merit in the argument of the OSG that respondent Committees likewise violated
Section 21 of Article VI of the Constitution, requiring that the inquiry be in accordance with the "duly
published rules of procedure." We quote the OSG's explanation:

The phrase 'duly published rules of procedure' requires the Senate of every Congress to
publish its rules of procedure governing inquiries in aid of legislation because every Senate
is distinct from the one before it or after it. Since Senatorial elections are held every three (3)
years for one-half of the Senate's membership, the composition of the Senate also changes
by the end of each term. Each Senate may thus enact a different set of rules as it may deem
fit. Not having published its Rules of Procedure, the subject hearings in aid of
legislation conducted by the 14th Senate, are therefore, procedurally infirm.

And fifth, respondent Committees' issuance of the contempt Order is arbitrary and precipitate. It
must be pointed out that respondent Committees did not first pass upon the claim of executive
privilege and inform petitioner of their ruling. Instead, they curtly dismissed his explanation as
"unsatisfactory" and simultaneously issued the Order citing him in contempt and ordering his
immediate arrest and detention.

A fact worth highlighting is that petitioner is not an unwilling witness. He manifested several times
his readiness to testify before respondent Committees. He refused to answer the three (3) questions
because he was ordered by the President to claim executive privilege. It behooves respondent
Committees to first rule on the claim of executive privilege and inform petitioner of their finding
thereon, instead of peremptorily dismissing his explanation as "unsatisfactory." Undoubtedly,
respondent Committees' actions constitute grave abuse of discretion for being arbitrary and for
denying petitioner due process of law. The same quality afflicted their conduct when they (a)
disregarded petitioner's motion for reconsideration alleging that he had filed the present petition
before this Court and (b) ignored petitioner's repeated request for an advance list of questions, if
there be any aside from the three (3) questions as to which he claimed to be covered by executive
privilege.

Even the courts are repeatedly advised to exercise the power of contempt judiciously and sparingly
with utmost self-restraint with the end in view of utilizing the same for correction and preservation of
the dignity of the court, not for retaliation or vindication. 63 Respondent Committees should have
exercised the same restraint, after all petitioner is not even an ordinary witness. He holds a high
position in a co-equal branch of government.

In this regard, it is important to mention that many incidents of judicial review could have been
avoided if powers are discharged with circumspection and deference. Concomitant with the doctrine
of separation of powers is the mandate to observe respect to a co-equal branch of the government.

One last word.

The Court was accused of attempting to abandon its constitutional duty when it required the parties
to consider a proposal that would lead to a possible compromise. The accusation is far from the
truth. The Court did so, only to test a tool that other jurisdictions find to be effective in settling similar
cases, to avoid a piecemeal consideration of the questions for review and to avert a constitutional
crisis between the executive and legislative branches of government.

In United States v. American Tel. & Tel Co.,64 the court refrained from deciding the case because of
its desire to avoid a resolution that might disturb the balance of power between the two branches
and inaccurately reflect their true needs. Instead, it remanded the record to the District Court for
further proceedings during which the parties are required to negotiate a settlement. In the
subsequent case of United States v. American Tel. &Tel Co.,65 it was held that "much of this spirit of
compromise is reflected in the generality of language found in the Constitution." It proceeded to
state:

Under this view, the coordinate branches do not exist in an exclusively adversary relationship
to one another when a conflict in authority arises. Rather each branch should take
cognizance of an implicit constitutional mandate to seek optimal accommodation through a
realistic evaluation of the needs of the conflicting branches in the particular fact situation.

It thereafter concluded that: "The Separation of Powers often impairs efficiency, in terms of
dispatch and the immediate functioning of government. It is the long-term staying power of
government that is enhanced by the mutual accommodation required by the separation of
powers."

In rendering this decision, the Court emphasizes once more that the basic principles of constitutional
law cannot be subordinated to the needs of a particular situation. As magistrates, our mandate is to
rule objectively and dispassionately, always mindful of Mr. Justice Holmes' warning on the dangers
inherent in cases of this nature, thus:

"some accident of immediate and overwhelming interestappeals to the feelings and


distorts the judgment. These immediate interests exercise a kind of hydraulic pressure which
makes what previously was clear seem doubtful, and before which even well settled
principles of law will bend."66

In this present crusade to "search for truth," we should turn to the fundamental constitutional
principles which underlie our tripartite system of government, where the Legislature enacts the law,
the Judiciary interprets it and the Executive implements it. They are considered separate, co-equal,
coordinate and supreme within their respective spheres but, imbued with a system of checks and
balances to prevent unwarranted exercise of power. The Court's mandate is to preserve these
constitutional principles at all times to keep the political branches of government within constitutional
bounds in the exercise of their respective powers and prerogatives, even if it be in the search for
truth. This is the only way we can preserve the stability of our democratic institutions and uphold the
Rule of Law.

WHEREFORE, the petition is hereby GRANTED. The subject Order dated January 30, 2008,
citing petitioner Romulo L. Neri in contempt of the Senate Committees and directing his arrest and
detention, is hereby nullified.

SO ORDERED.

Puno, C.J., Quisumbing, Ynares-Santiago, Carpio, Austria-Martinez, Corona, Carpio-Morales,


Azcuna, Tinga, Chico-Nazario, Velasco, Jr., Nachura, Reyes, Brion, JJ., concur.

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