FIRST DIVISION

January 11, 2017

G.R. No. 189158

JAMES IENT and MAHARLIKA SCHULZE, Petitioners,

vs.
TULLETT PREBON (PHILIPPINES), INC., Respondent.

x-----------------------x

JAMES IENT and MAHARLIKA SCHULZE, Petitioners,

vs.
TULLETT PREBON (PHILIPPINES), INC., Respondent.

DECISION

LEONARDO-DE CASTRO, J.:

In these consolidated Petitions for Review under Rule 45 of the Rules of Court, petitioners James A.
Ient (Ient) and Maharlika C. Schulze (Schulze) assail the Court of Appeals Decision 1 dated August 12,
2009 in CA-G.R. SP No. 109094, which affirmed the Resolutions dated April 23, 2009 2 and May 15,
20093 of the Secretary of Justice in LS. No. 08-J-8651. The Secretary of Justice, through the
Resolutions dated April 23, 2009 and May 15, 2009, essentially ruled that there was probable cause
to hold petitioners, in conspiracy with certain former directors and officers of respondent Tullet Prebon
(Philippines), Inc. (Tullett), criminally liable for violation of Sections 31 and 34 in relation to Section
144 of the Corporation Code.

From an assiduous review of the records, we find that the relevant factual and procedural antecedents
for these petitions can be summarized as follows:

Petitioner lent is a British national and the Chief Financial Officer of Tradition Asia Pacific Pte. Ltd.
(Tradition Asia) in Singapore.4 Petitioner Schulze is a Filipino/German who does Application Support
for Tradition Financial Services Ltd. in London (Tradition London). 5 Tradition Asia and Tradition
London are subsidiaries of Compagnie Financiere Tradition and are part of the "Tradition Group." The
Tradition Group is allegedly the third largest group of Inter-dealer Brokers (IDB) in the world while the
corporate organization, of which respondent Tullett is a part, is supposedly the second largest. In other
words, the Tradition Group and Tullett are competitors in the inter-dealer broking business. IDBs
purportedly "utilize the secondary fixed income and foreign exchange markets to execute their banks
and their bank customers' orders, trade for a profit and manage their exposure to risk, including credit,
interest rate and exchange rate risks." In the Philippines, the clientele for IDBs is mainly comprised of
banks and financial institutions.6

Tullett was the first to establish a business presence in the Philippines and had been engaged in the
inter-dealer broking business or voice brokerage here since 1995. 7 Meanwhile, on the part of the
Tradition Group, the needs of its Philippine clients were previously being serviced by Tradition Asia in
Singapore. The other IDBs in the Philippines are Amstel and Icap.8

Sometime in August 2008, in line with Tradition Group's motive of expansion and diversification in
Asia, petitioners lent and Schulze were tasked with the establishment of a Philippine subsidiary of
Tradition Asia to be known as Tradition Financial Services Philippines, Inc. (Tradition
Philippines).9 Tradition Philippines was registered with the Securities and Exchange Commission
(SEC) on September 19, 200810 with petitioners lent and Schulze, among others, named as
incorporators and directors in its Articles of Incorporation. 11

On October 15, 2008, Tullett, through one of its directors, Gordon Buchan, filed a Complaint-
Affidavit12 with the City Prosecution Office of Makati City against the officers/employees of the Tradition
Group for violation of the Corporation Code. Impleaded as respondents in the Complaint-Affidavit were
petitioners lent and Schulze, Jaime Villalon (Villalon), who was formerly President and Managing
Director of Tullett, Mercedes Chuidian (Chuidian), who was formerly a member of Tullett's Board of
Directors, and other John and Jane Does. Villalon and Chuidian were charged with using their former
positions in Tullett to sabotage said company by orchestrating the mass resignation of its entire
brokering staff in order for them to join Tradition Philippines. With respect to Villalon, Tullett claimed
that the former held several meetings between August 22 to 25, 2008 with members ofTullett's Spot
Desk and brokering staff in order to convince them to leave the company. Villalon likewise supposedly
intentionally failed to renew the contracts of some of the brokers. On August 25, 2008, a meeting was
also allegedly held in Howzat Bar in Makati City where petitioners and a lawyer of Tradition Philippines
were present. At said meeting, the brokers of complainant Tullett were purportedly induced, en
masse, to sign employment contracts with Tradition Philippines and were allegedly instructed by
Tradition Philippines' lawyer as to how they should file their resignation letters.

Complainant also claimed that Villalon asked the brokers present at the meeting to call up Tullett's
clients to inform them that they had already resigned from the company and were moving to Tradition
Philippines. On August 26, 2008, Villalon allegedly informed Mr. Barry Dennahy, Chief Operating
Officer of Tullett Prebon in the Asia-Pacific, through electronic mail that all of Tullett's brokers had
resigned. Subsequently, on September 1, 2008, in another meeting with lent and Tradition Philippines'
counsel, indemnity contracts in favor of the resigning employees were purportedly distributed by
Tradition Philippines. According to Tullett, respondents Villalon and Chuidian (who were still its
directors or officers at the times material to the Complaint-Affidavit) violated Sections 31 and 34 of the
Corporation Code which made them criminally liable under Section 144. As for petitioners lent and
Schulze, Tullett asserted that they conspired with Villalon and Chuidian in the latter's acts of disloyalty
against the company. 13

Villalon and Chuidian filed their respective Counter-Affivadits.14

Villalon alleged that frustration with management changes in Tullett Prebon motivated his personal
decision to move from Tullett and accept the invitation of a Leonard Harvey (also formerly an executive
of Tullett) to enlist with the Tradition Group. As a courtesy to the brokers and staff, he informed them
of his move contemporaneously with the tender of his resignation letter and claimed that his meetings
with the brokers was not done in bad faith as it was but natural, in light of their long working
relationship, that he share with them his plans. The affidavit of Engelbert Wee should allegedly be
viewed with great caution since Wee was one of those who accepted employment with Tradition
Philippines but changed his mind and was subsequently appointed Managing Director (Villalon's
former position) as a prize for his return. Villalon further argued that his resignation from Tullett was
done in the exercise of his fundamental rights to the pursuit of life and the exercise of his profession;
he can freely choose to avail of a better life by seeking greener pastures; and his actions did not fall
under any of the prohibited acts under Sections 31 and 34 of the Corporation Code. It is likewise his
contention that Section 144 of the Corporation Code applies only to violations of the Corporation Code
which do not provide for a penalty while Sections 31 and 34 already provide for the applicable penalties
for violations of said provisions - damages, accounting and restitution. Citing the Department of Justice
(DOJ) Resolution dated July 30, 2008 in UCPB v. Antiporda, Villalon claimed that the DOJ had
previously proclaimed that Section 31 is not a penal provision of law but only the basis of a cause of
action for civil liability. Thus, he concluded that there was no probable cause that he violated the
Corporation Code nor was the charge of conspiracy properly substantiated. 15

Chuidian claimed that she left Tullett simply to seek greener pastures. She also insisted the complaint
did not allege any act on her part that is illegal or shows her participation in any conspiracy. She merely
exercised her right to exercise her chosen profession and pursue a better life. Like Villalon, she
stressed that her resignation from Tullett and subsequent transfer to Tradition Philippines did not fall
under any of the prohibited acts under Sections 31 and 34. Section 144 of the Corporation Code
purportedly only applies to provisions of said Code that do not provide for any penalty while Sections
31 and 34 already provide for the penalties for their violation - damages, accounting and restitution. In
her view, that Section 34 provided for the ratification of the acts of the erring corporate director, trustee
or office evinced legislative intent to exclude violation of Section 34 from criminal prosecution. She
argued that Section 144 as a penal provision should be strictly construed against the State and liberally
in favor of the accused and Tullett has failed to substantiate its charge of bad faith on her part.16

In her Counter-Affidavit, 17 petitioner Schulze denied the charges leveled against her. She pointed out
that the Corporation Code is not a "special law" within the contemplation of Article 1018 of the Revised
Penal Code on the supplementary application of the Revised Penal Code to special laws since said
provision purportedly applies only to "special penal laws." She further argued that "[s]ince the
Corporation Code does not expressly provide that the provisions of the Revised Penal Code shall be
made to apply suppletorily, nor does it adopt the nomenclature of penalties of the Revised Penal Code,
the provisions of the latter cannot be made to apply suppletorily to the former as provided for in the
first sentence of Article 10 of the Revised Penal Code."19 Thus, she concluded that a charge of
conspiracy which has for its basis Article 8 of the Revised Penal Code cannot be made applicable to
the provisions of the Corporation Code.

Schulze also claimed that the resignations of Tullett's employees were done out of their own free will
without force, intimidation or pressure on her and Ient's part and were well within said employees' right
to "free choice of employment."20

For his part, petitioner lent alleged in his Counter-Affidavit that the charges against him were merely
filed to harass Tradition Philippines and prevent it from penetrating the Philippine market. He further
asserted that due to the highly specialized nature of the industry, there has always been a regular flow
of brokers between the major players. He claimed that Tradition came to the Philippines in good faith
and with a sincere desire to foster healthy competition with the other brokers. He averred that he never
forced anyone to join Tradition Philippines and the Tullett employees' signing on with Tradition
Philippines was their voluntary act since they were discontented with the working environment in
Tullett. Adopting a similar line of reasoning as Schulze, lent believed that the Revised Penal Code
could not be made suppletorily applicable to the Corporation Code so as to charge him as a
conspirator. According to lent, he merely acted within his rights when he offered job opportunities to
any interested person as it was within the employees' rights to change their employment, especially
since Article 23 of the Universal Declaration of Human Rights (of which the Philippines is a signatory)
provides that "everyone has the right to work, to free choice of employment, to just and favorable
conditions of work and to protection against unemployment."21He also denounced the Complaint-
Affidavit and the affidavits of Tullett employees attached thereto as self-serving or as an
exaggeration/twisting of the true events.22

In a Consolidated Reply-Affidavit23 notarized on January 22, 2009, Tullett argued that Villalon,
Chuidian, Schulze, and lent have mostly admitted the acts attributed to them in the Complaint-Affidavit
and only attempted to characterize said acts as "normal," "innocent" or "customary." It was allegedly
evident from the Counter-Affidavits that the resignation of Tullett's employees was an orchestrated
plan and not simply motivated by their seeking "greener pastures." Purported employee movements
in the industry between the major companies are irrevelant since such movements are subject to
contractual obligations. Tullett likewise denied that its working environment was stringent and "weird."
Even assuming that Villalon and Chuidian were dissatisfied with their employment in Tullett, this would
supposedly not justify nor exempt them from violating their duties as Tullett's officers/directors. There
was purportedly no violation of their constitutional rights to liberty or to exercise their profession as
such rights are not unbridled and subject to the laws of the State. In the case of Villalon and Chuidian,
they had to comply with their duties found in Sections 31 and 34 of the Corporation Code. Tullett
asserts that Section 144 applies to the case at bar since the DOJ Resolution in UCPB is not binding
as it applies only to the parties therein and it likewise involved facts different from the present case.
Relying on Home Insurance Company v. Eastern Shipping Lines, 24Tullett argued that Section 144
applies to all other violations of the Corporation Code without exception. Article 8 of the Revised Penal
Code on conspiracy was allegedly applicable to the Corporation Code as a special law with a penal
provision. 25

In a Supplemental Complaint-Affidavit26 likewise notarized on January 22, 2009, Tullett included

Leonard James Harvey (Harvey) in the case and alleged that it learned of Harvey's complicity through
the Counter-Affidavit of Villalon. Tullett claimed that Harvey, who was Chairman of its Board of
Directors at the time material to the Complaint, also conspired to instigate the resignations of its
employees and was an indispensable part of the sabotage committed against it.

In his Rejoiner-Affidavit,27 lent vehemently denied that there was a pre-arranged plan to sabotage
Tullett. According to lent, Gordon Buchan of Tullett thought too highly of his employer to believe that
the Tradition Group's purpose in setting up Tradition Philippines was specifically to sabotage Tullett.
He stressed that Tradition Philippines was set up for legitimate business purposes and Tullett
employees who signed with Tradition did so out of their own free will and without any force,
intimidation, pressure or inducement on his and Schulze' s part. All he allegedly did was confirm the
rumors that the Tradition Group was planning to set up a Philippine office. Echoing the arguments of
Villalon and Chuidian, lent claimed that (a) there could be no violation of Sections 31 and 34 of the
Corporation as these sections refer to corporate acts or corporate opportunity; (b) Section 144 of the
same Code cannot be applied to Sections 31 and 34 which already contains the penalties or remedies
for their violation; and (c) conspiracy under the Revised Penal Code cannot be applied to the Sections
31 and 34 of the Corporation Code.

In a Resolution28 dated February 17, 2009, State Prosecutor Cresencio F. Delos Trinos, Jr. (Prosecutor
Delos Trinos), Acting City Prosecutor of Makati City, dismissed the criminal complaints. He reasoned
that:

It is our considered view that the acts ascribed [to] respondents Villalon and Chuidian did not constitute
any of the prohibited acts of directors or trustees enunciated under Section 31. Their cited actuations
certainly did not involve voting for or assenting to patently unlawful acts of [Tullett] nor could the same
be construed as gross negligence or bad faith in directing the affairs of [Tullett]. There is also no
showing that they acquired any personal or pecuniary interest in conflict with their duty as directors of
[Tullett]. Neither was there a showing that they attempted to acquire or acquired, in violation of their
duty as directors, any interest adverse to [Tullett] in respect [to] any matter which has been reposed
in them in confidence.

xxxx

The issue that respondent Villalon informed the brokers of his plan to resign from [Tullett] and to
subsequently transfer to Tradition is not in dispute. However, we are unable to agree that the brokers
were induced or coerced into resigning from [Tullett] and transferring to Tradition themselves.x x x As
the record shows, Mr. Englebert Wee and the six (6) members of the broking staff who stand as
[Tullett]'s witnesses, also initially resigned from [Tullett] and transferred to Tradition but backed out
from their contract of employment with Tradition and opted to remain with [Tullett].

Even assuming ex gratia argumenti that the brokers were induced by the respondents or anyone of
them to leave their employment with [Tullett], such inducement may only give rise to civil liability for
damages against the respondents but no criminal liability would attach on them. x x x.

On the alleged inducements of clients of [Tullett] to transfer to Tradition, there is no showing that clients
of [Tullett] actually transferred to Tradition. Also, the allegation that respondents orchestrated the mass
resignation of employees of [Tullett] to destroy or shut down its business and to eliminate it from the
market in order that Tradition could take its place is baseless and speculative. Significantly, it is noted
that despite the resignations of respondents Villalon and Chuidian and the majority of the broking staff
and their subsequent transfer to Tradition, the business of [Tullet] was not destroyed or shut down.
[Tullett] was neither eliminated from the market nor its place in the market taken by Tradition. x x x

In the same vein, the "corporate opportunity doctrine" enunciated under Section 34 does not apply
herein and cannot be rightfully raised against respondents Villalon and Chuidian. Under Section 34, a
director of a corporation is prohibited from competing with the business in which his corporation is
engaged in as otherwise he would be guilty of disloyalty where profits that he may realize will have to
go to the corporate funds except if the disloyal act is ratified. Suffice it to say that their cited acts did
not involve any competition with the business of [Tullett].29

On the issue of conspiracy, Prosecutor Delos Trinos found that since Villalon and Chuidian did not
commit any acts in violation of Sections 31 and 34 of the Corporation Code, the charge of conspiracy
against Schulze and lent had no basis. As for Harvey, said Resolution noted that he was similarly
situated as Villalon and Chuidian; thus, the considerations in the latter's favor were applicable to the
former. 30 Lastly, on the applicability of Section 144 to Sections 31 and 34, Prosecutor Delos Trinos
relied on the reasoning in the DOJ Resolution dated July 30, 2008 in UCPB v. Antiporda issued by
then Secretary of Justice Raul M. Gonzalez, to wit:

We maintain and reiterate the ratiocination of the Secretary of Justice in United Coconut Planters Bank
vs. Tirso Antiporda, et al., I.S. No. 2007-633 promulgated on July 30, 2008, thus - "It must be noted
that Section 144 covers only those provisions 'not otherwise specifically penalized therein. ' In plain
language, this means that the penalties under Section 144 apply only when the other provisions of the
Corporation Code do not yet provide penalties for non-compliance therewith. "

A reading of Sections 31 and 34 shows that penalties for violations thereof are already provided
therein. Under Section 31, directors or trustees are made liable for damages that may result from their
fraudulent or illegal acts. Also, directors, trustees or officers who attempt to acquire or acquire any
interest adverse to the corporation will have to account for the profits which otherwise would have
accrued to the corporation. Section 34, on the other hand, penalizes directors who would be guilty of
disloyalty to the corporation by accounting to the corporation all profits that they may realize by
refunding the same.31

Consequently, Tullett filed a petition for review with the Secretary of Justice to assail the foregoing
resolution of the Acting City Prosecutor of Makati City. In a Resolution32 dated April 23, 2009, then
Secretary of Justice Raul M. Gonzalez reversed and set aside Prosecutor Delos Trinos's resolution
and directed the latter to file the information for violation of Sections 31 and 34 in relation to Section
144 of the Corporation Code against Villalon, Chuidian, Harvey, Schulze, and lent before the proper
court. As can be gleaned from the April 23, 2009 Resolution, the Secretary of Justice ruled that:

It is evident from the case at bar that there is probable cause to indict respondents Villalon, Chuidian
and Harvey for violating Section 31 of the Corporation Code. Indeed, there is prima facie evidence to
show that the said respondents acted in bad faith in directing the affairs of complainant. Undeniably,
respondents Villalon, Chuidian and Harvey occupied positions of high responsibility and great trust as
they were members of the board of directors and corporate officers of complainant. x x x As such, they
are required to administer the corporate affairs of complainant for the welfare and benefit of the
stockholders and to exercise the best care, skill and judgment in the management of the corporate
business and act solely for the interest of the corporation.

xxxx

Respondents Villalon and Chuidian acted with dishonesty and in fraud. They went to the extent of
having their several meetings away from complainant's office so as to secretly entice and induce all
its brokers to transfer to Tradition. Respondents Villalon and Chuidian did not entice merely one or
two employees of complainant but admittedly, the entire broking staff of the latter. This act would lead
to the sure collapse of complainant. x x x.

Further, respondents Villalon and Chuidian acquired personal and pecuniary interest in conflict with
their duties as directors of complainant. Respondents Villalon and Chuidian committed the acts
complained of in order to transfer to Tradition, to have a higher salary and position and bring the clients
and business of complainant with them. The fact that Tradition is not yet incorporated at that time is
of no consequence.

Moreover, respondents Villalon and Chuidian violated Section 34 of the Corporation Code when they
acquired business opportunity adverse to that of complainant. When respondents Villalon and
Chuidian told the brokers of complainant to convince their clients to transfer their business to Tradition,
the profits of complainant which rightly belonging to it will be transferred to a competitor company to
be headed by respondents.

The provision of Section 144 of the Corporation Code is also applicable in the case at bar as the penal
provision provided therein is made applicable to all violations of the Corporation Code, not otherwise
specifically penalized. Moreover, the factual milieu of the case entitled "Antiporda, et al., IS No. 2007-
633" is inapplicable as the facts of the above-entitled case is different.

xxxx

As for respondent Harvey's probable indictment, aside from not submitting his counter-affidavit, the
counter-affidavit of respondent Villalon showed that he is also liable as such since the idea to transfer
the employment of complainant's brokers was broached by him.
Anent respondents lent and Schulze, record revealed that they conspired with respondents Villalon
and Chuidian when they actively participated in the acts complained of. They presented the
employment contracts and indemnity agreements with the brokers of complainant in a series of
meetings held with respondents Villalon and Chuidian. Respondent lent signed the contracts as CFO
of Tradition Asia and even confirmed the transfer of respondent Villalon to Tradition. Respondent
Schulze admitted that the purpose of her sojourn in the Philippines was to assist in the formation of
Tradition. Thus, it is clear that their role in the acts complained of were instrumental for respondents
Villalon and Chuidian to violate their duties and responsibilities as directors and officers of
complainant.33

Ient and Schulze moved for reconsideration of the foregoing Resolution by the Secretary of Justice.
Meanwhile, on May 14, 2009, two Informations, one for violation of Section 31 and another for violation
of Section 34, were filed by Prosecutor Delos Trinos with the Metropolitan Trial Court of Makati City.
In a Resolution dated May 15, 2009, the Secretary of Justice denied the motion for reconsideration
filed by petitioners. Unsatisfied with this tum of events, petitioners lent and Schulze brought the matter
to the Court of Appeals via a petition for certiorari under Rule 65 which was docketed as CA-G.R. SP
No. 109094.

In a Decision dated August 12, 2009, the Court of Appeals affirmed the Secretary of Justice's
Resolutions dated April 23, 2009 and May 15, 2009, after holding that:

Respondent Secretary correctly stressed that Sections 31 and 34 must be read in the light of the
nature of the position of a director and officer of the corporation as highly imbued with trust and
confidence. Petitioners' rigid interpretation of clear-cut instances of liability serves only to undermine
the values of loyalty, honesty and fairness in managing the affairs of the corporation, which the law
vested on their position. Besides, this Court can hardly deduce abuse of discretion on the part of
respondent Secretary in considering a conflict of interest scenario from petitioners' act of advancing
the interest of an emerging competitor in the field rather than fiercely protecting the business of their
own company. As aptly pointed out by the private respondent, the issue is not the right of the employee
brokers to seek greener pastures or better employment opportunities but the breach of fiduciary duty
owed by its directors and officers.

In the commentary on the subject of duties of directors and controlling stockholders under
the Corporation Code, Campos explained:

"Fiduciary Duties; Conflict of Interest

"A director, holding as he does a position of trust, is a fiduciary of the corporation. As such, in case of
conflict of his interest with those of the corporation, he cannot sacrifice the latter without incurring
liability for his disloyal act. The fiduciary duty has many ramifications, and the possible conflict-
of-interest situations are almost limitless, each possibility posing different problems. There will
be cases where a breach of trust is clear. Thus, where a director converts for his own use funds or
property belonging to the corporation, or accepts material benefits for exercising his powers in favor
of someone seeking to do business with the corporation, no court will allow him to keep the profit he
derives from his wrongdoing. In many other cases, however, the line of demarcation between the
fiduciary relationship and a director's personal right is not easy to define. The Code has attempted
at least to lay down general rules of conduct and although these serve as guidelines for
directors to follow, the determination as to whether in a given case the duty of loyalty has been
violated has ultimately to be decided by the court on the case's own merits." x x x.

Prescinding from the above, We agree with the Secretary of Justice that the acts complained of in this
case establish a prima facie case for violation of Sec. 31 such that the accused directors and officers
of private respondent corporation are probably guilty of breach of bad faith in directing the affairs of
the corporation. The breach of fiduciary duty as such director and corporate office (sic) are evident
from their participation in recruiting the brokers employed in the corporation, inducing them to accept
employment contracts with the newly formed firm engaged in competing business, and securing these
new hires against possible breach of contract complaint by the corporation through indemnity contracts
provided by Tradition Philippines. Clearly, no grave abuse of discretion was committed by the
respondent Secretary in reversing the city prosecutor's dismissal of the criminal complaint and
ordering the filing of the corresponding information against the accused, including herein petitioners.

As to petitioners' contention that conspiracy had not been established by the evidence, suffice it to
state that such stance is belied by their own admission of the very acts complained of in the Complaint-
Affidavit, the defense put up by them consists merely in their common argument that no crime was
committed because private respondent's brokers had the right to resign and transfer employment if
they so decide.

It bears to reiterate that probable cause is such set of facts and circumstances which would lead a
reasonably discreet and prudent man to believe that the offense charged in the Information or any
offense included therein has been committed by the person sought to be arrested. In determining
probable cause, the average man weighs the facts and circumstances without resorting to the
calibrations of the rules of evidence of which he has no technical knowledge. He relies on common
sense. Thus, a finding of probable cause does not require an inquiry into whether there is sufficient
evidence to procure a conviction. It is enough that it is believed that the act or omission complained of
constitutes the offense charged. Precisely, there is a trial for the reception of evidence of the
prosecution in support of the charge.

Finally, the Court finds no merit in the argument of petitioners that Sec. 144 is not applicable since
Sec. 31 already provides for liability for damages against the guilty director or corporate officer.

"SEC. 144. Violations of the Code. - Violations of any of the provisions of this Code or its
amendments not otherwise specifically penalized therein shall be punished by a fine of not less
than one thousand (₱1,000.00) pesos but not more than ten thousand (₱10,000.00) pesos or by
imprisonment for not less than thirty (30) days but not more than five (5) years, or both, in the discretion
of the court. If the violation is committed by a corporation, the same may, after notice and hearing, be
dissolved in appropriate proceedings before the Securities and Exchange
Commission; Provided, That such dissolution shall not preclude the institution of appropriate action
against the director, trustee or officer of the corporation responsible for the said violation; Provided,
further, That nothing in this section shall be construed to repeal the other causes for dissolution of a
corporation provided in this Code." x x x.

"Damages" as the term is used in Sec. 31 cannot be deemed as punishment or penalty as this appears
in the above-cited criminal provision of the Corporation Code. Such "damage" implies civil, rather than,
criminal liability and hence does not fall under those provisions of the Code which are not "specifically
penalized" with fine or imprisonment.34

In light of the adverse ruling of the Court of Appeals, petitioners lent and Schulze filed separate
petitions for review with this Court. After requiring further pleadings from the parties, the Court
1âw phi 1

directed the parties to submit their memoranda to consolidate their positions on the issues.

At the outset, it should be noted that respondent Tullett interposed several procedural objections which
we shall dispose of first.
Anent respondent's contentions that the present petitions (assailing the issuances of the Secretary of
Justice on the question of probable cause) had become moot and academic with the filing of the
Informations in the trial court and that under our ruling in Advincula v. Court of Appeals35the filing of a
petition for certiorari with the appellate court was the improper remedy as findings of the Secretary of
Justice on probable cause must be respected, we hold that these cited rules are not inflexible.

In Yambot v. Tuquero,36we observed that under exceptional circumstances, a petition

for certiorari assailing the resolution of the Secretary of Justice (involving an appeal of the prosecutor's
ruling on probable cause) may be allowed, notwithstanding the filing of an information with the trial
court. We reiterated the doctrine in Ching v. Secretary of Justice37that the acts of a quasi-judicial officer
may be assailed by the aggrieved party through a petition for certiorari and enjoined (a) when
necessary to afford adequate protection to the constitutional rights of the accused; (b) when necessary
for the orderly administration of justice; (c) when the acts of the officer are without or in excess of
authority; (d) where the charges are manifestly false and motivated by the lust for vengeance; and (e)
when there is clearly no prima facie case against the accused.

In the case at bar, it is unsettling to perceive a seeming lack of uniformity in the rulings of the Secretary
of Justice on the issue of whether a violation of Section 31 entails criminal or only civil liability and
such divergent actions are explained with a terse declaration of an alleged difference in factual milieu
and nothing further. Such a state of affairs is not only offensive to principles of fair play but also
anathema to the orderly administration of justice. Indeed, we have held that where the action of the
Secretary of Justice is tainted with arbitrariness, an aggrieved party may seek judicial review
via certiorari on the ground of grave abuse of discretion. 38

We likewise cannot give credit to respondent's claim of mootness. The "moot and academic" principle
is not a magical formula that can automatically dissuade the courts in resolving a case. 39 The Court
will not hesitate to resolve the legal and constitutional issues raised to formulate controlling principles
to guide the bench, the bar, and the public, particularly on a question capable of repetition, yet evading
review.40

As for the assertion that the present petitions are dismissible due to forum shopping since they were
filed during the pendency of petitioners' motion to quash and their co-accused's motion for judicial
determination of probable cause with the trial court, we hold that there is no cause to dismiss these
petitions on such ground.

Forum shopping is an act of a party, against whom an adverse judgment or order has been rendered
in one forum, of seeking and possibly getting a favorable opinion in another forum, other than by
appeal or special civil action for certiorari. It may also involve the institution of two or more actions
or proceedings grounded on the same cause on the supposition that one or the other court would
make a favorable disposition.41 There is no forum shopping where the suits involve different causes of
action or different reliefs. 42

Jurisprudence explains that:

A motion to quash is the mode by which an accused assails, before entering his plea, the validity of
the criminal complaint or the criminal information filed against him for insufficiency on its face in point
of law, or for defect apparent on the face of the Information. The motion, as a rule, hypothetically
admits the truth of the facts spelled out in the complaint or information. The rules governing a motion
to quash are found under Rule 117 of the Revised Rules of Court. Section 3 of this Rule enumerates
the grounds for the quashal of a complaint or information. x x x.43 (Citation omitted.)
On the other hand, the action at bar is a review on certiorari of the assailed Court of Appeals decision
wherein the main issue is whether or not the Secretary of Justice committed grave abuse of discretion
in reversing the City Prosecutor's dismissal of the criminal complaint. These consolidated petitions
may proceed regardless of whether or not there are grounds to quash the criminal information pending
in the court a quo.

Neither do we find relevant the pendency of petitioners' co-accused's motion for judicial determination
of probable cause before the trial court. The several accused in these consolidated cases had a
number of remedies available to them and they are each free to pursue the remedy which they deem
is their best option. Certainly, there is no requirement that the different parties in a case must all choose
the same remedy. We have held that even assuming separate actions have been filed by different
parties involving essentially the same subject matter, no forum shopping is committed where the
parties did not resort to multiple judicial remedies.44 In any event, we have stated in the past that the
rules on forum shopping are not always applied with inflexibility.45

As a final point on the technical aspects of this case, we reiterate here the principle that in the exercise
of the Court’s equity jurisdiction, procedural lapses may be disregarded so that a case may be resolved
on its merits.46Indeed, where strong considerations of substantive justice are manifest in a petition, the
strict application of the rules of procedure may be relaxed.47 This is particularly true in these
consolidated cases where legal issues of first impression have been raised.

We now proceed to rule upon the parties' substantive arguments.

The main bone of disagreement among the parties in this case is the applicability of Section 144 of
the Corporation Code to Sections 31 and 34 of the same statute such that criminal liability attaches to
violations of Sections 31 and 34. For convenient reference, we quote the contentious provisions here:

SECTION 31. Liability of Directors, Trustees or Officers. - Directors or trustees who willfully and
knowingly vote for or assent to patently unlawful acts of the corporation or who are guilty of gross
negligence or bad faith in directing the affairs of the corporation or acquire any personal or pecuniary
interest in conflict with their duty as such directors or trustees shall be liable jointly and severally for
all damages resulting therefrom suffered by the corporation, its stockholders or members and other
persons.

When a director, trustee or officer attempts to acquire or acquires, in violation of his duty, any interest
adverse to the corporation in respect of any matter which has been reposed in him in confidence, as
to which equity imposes a disability upon him to deal in his own behalf, he shall be liable as a trustee
for the corporation and must account for the profits which otherwise would have accrued to the
corporation.

SECTION 34. Disloyalty of a Director. - Where a director, by virtue of his office, acquires for himself a
business opportunity which should belong to the corporation, thereby obtaining profits to the prejudice
of such corporation, he must account to the latter for all such profits by refunding the same, unless his
act has been ratified by a vote of the stockholders owning or representing at least two-thirds (2/3) of
the outstanding capital stock. This provision shall be applicable, notwithstanding the fact that the
director risked his own funds in the venture.

SECTION 144. Violations of the Code. - Violations of any of the provisions of this Code or its
amendments not otherwise specifically penalized therein shall be punished by a fine of not less than
one thousand (₱1,000.00) pesos but not more than ten thousand (₱10,000.00) pesos or by
imprisonment for not Jess than thirty (30) days but not more than five (5) years, or both, in the
discretion of the court. If the violation is committed by a corporation, the same may, after notice and
hearing, be dissolved in appropriate proceedings before the Securities and Exchange
Commission: Provided, That such dissolution shall not preclude the institution of appropriate action
against the director, trustee or officer of the corporation responsible for said violation: Provided,
further, That nothing in this section shall be construed to repeal the other causes for dissolution of a
corporation provided in this Code.

Petitioners posit that Section 144 only applies to the provisions of the Corporation Code or its
amendments "not otherwise specifically penalized" by said statute and should not cover Sections 31
and 34 which both prescribe the "penalties" for their violation; namely, damages, accounting and
restitution of profits. On the other hand, respondent and the appellate court have taken the position
that the term "penalized" under Section 144 should be interpreted as referring to criminal penalty, such
as fine or imprisonment, and that it could not possibly contemplate "civil" penalties such as damages,
accounting or restitution.

As Section 144 speaks, among others, of the imposition of criminal penalties, the Court is guided by
the elementary rules of statutory construction of penal provisions. First, in all criminal prosecutions,
the existence of criminal liability for which the accused is made answerable must be clear and certain.
We have consistently held that "penal statutes are construed strictly against the State and liberally in
favor of the accused. When there is doubt on the interpretation of criminal laws, all must be resolved
in favor of the accused. Since penal laws should not be applied mechanically, the Court must
determine whether their application is consistent with the purpose and reason of the law."48

Intimately related to the in dubio pro reo49principle is the rule of lenity. The rule applies when the court
is faced with two possible interpretations of a penal statute, one that is prejudicial to the accused and
another that is favorable to him. The rule calls for the adoption of an interpretation which is more
lenient to the accused. 50

In American jurisprudence, there are two schools of thought regarding the application of the rule of
lenity. Justice David Souter, writing for the majority in United States v. R.L.C.,51refused to resort to the
rule and held that lenity is reserved "for those situations in which a reasonable doubt persists about a
statute's intended scope even after resort to 'the language and structure, legislative history, and
motivating policies' of the statute." Justice Antonin Scalia, although concurring in part and concurring
in the judgment, argued that "it is not consistent with the rule of lenity to construe a textually ambiguous
penal statute against a criminal defendant on the basis of legislative history... The rule of lenity, in my
view, prescribes the result when a criminal statute is ambiguous: The more lenient interpretation must
prevail."52 In other words, for Justice Scalia, textual ambiguity in a penal statute suffices for the rule of
lenity to be applied. Although foreign case law is merely persuasive authority and this Court is not
bound by either legal perspective expounded in United States v. R.L.C., said case provides a useful
framework in our own examination of the scope and application of Section 144.

After a meticulous consideration of the arguments presented by both sides, the Court comes to the
conclusion that there is textual ambiguity in Section 144; moreover, such ambiguity remains even after
an examination of its legislative history and the use of other aids to statutory construction,
necessitating the application of the rule of lenity in the case at bar.

Respondent urges this Court to strictly construe Section 144 as contemplating only penal penalties.
However, a perusal of Section 144 shows that it is not a purely penal provision. When it is a corporation
that commits a violation of the Corporation Code, it may be dissolved in appropriate proceedings
before the Securities and Exchange Commission. The involuntary dissolution of an erring corporation
is not imposed as a criminal sanction,53 but rather it is an administrative penalty.
The ambivalence in the language of Section 144 becomes more readily apparent in comparison to the
penal provision54 in Republic Act No. 8189 (The Voter's Registration Act of 1996), which was the
subject of our decision in Romualdez v. Commission on Elections.55In that case, we upheld the
constitutionality of Section 45(j) of Republic Act No. 8189 which made any violation of said statute a
criminal offense. It is respondent's opinion that the penal clause in Section 144 should receive similar
treatment and be deemed applicable to any violation of the Corporation Code. The Court cannot
accept this proposition for there are weighty reasons to distinguish this case from Romualdez.

We find it apropos to quote Sections 45 and 46 of Republic Act No. 8189 here:

SECTION 45. Election Qffense. - The following shall be considered election offenses under this
Act:

a) to deliver, hand over, entrust or give, directly or indirectly, his voter's identification card to another
in consideration of money or other benefit or promise; or take or accept such voter's identification card,
directly or indirectly, by giving or causing the giving of money or other benefit or making or causing the
making of a promise therefor;

b) to fail, without cause, to post or give any of the notices or to make any of the reports required under
this Act;

c) to issue or cause the issuance of a voter's identification number to cancel or cause the cancellation
thereof in violation of the provisions of this Act; or to refuse the issuance of registered voters their
voter's identification card;

d) to accept an appointment, to assume office and to actually serve as a member of the Election
Registration Board although ineligible thereto; to appoint such ineligible person knowing him to be
ineligible;

e) to interfere with, impede, abscond for purposes of gain or to prevent the installation or use of
computers and devices and the processing, storage, generation and transmission of registration data
or information;

f) to gain, cause access to, use, alter, destroy, or disclose any computer data, program, system
software, network, or any computer-related devices, facilities, hardware or equipment, whether
classified or declassified;

g) failure to provide certified voters and deactivated voters list to candidates and heads or
representatives of political parties upon written request as provided in Section 30 hereof;

h) failure to include the approved application form for registration of a qualified voter in the book of
voters of a particular precinct or the omission of the name of a duly registered voter in the certified list
of voters of the precinct where he is duly registered resulting in his failure to cast his vote during an
election, plebiscite, referendum, initiative and/or recall. The presence of the form or name in the book
of voters or certified list of voters in precincts other than where he is duly registered shall not be an
excuse hereof;

i) The posting of a list of voters outside or at the door of a precinct on the day of an election, plebiscite,
referendum, initiative and/or recall and which list is different in contents from the certified list of voters
being used by the Board of Election Inspectors; and
j) Violation of any of the provisions of this Act.

SECTION 46. Penalties. - - Any person found guilty of any Election offense under this Act shall be
punished with imprisonment of not less than one (1) year but not more than six (6) years and shall not
be subject to probation. In addition, the guilty party shall be sentenced to suffer disqualification to hold
public office and deprivation of the right of suffrage. If he is a foreigner, he shall be deported after the
prison term has been served. Any political party found guilty shall be sentenced to pay a fine of not
less than One hundred thousand pesos (₱100,000) but not more than Five hundred thousand pesos
(₱500,000).

The crux of the Court's ruling in Romualdez is that, from the wording of Section 450), there is a clear
legislative intent to treat as an election offense any violation of the provisions of Republic Act No. 8189.
For this reason, we do not doubt that Section 46 contemplates the term "penalty" primarily in the
criminal law or punitive concept of the term.

There is no provision in the Corporation Code using similarly emphatic language that evinces a
categorical legislative intent to treat as a criminal offense each and every violation of that law.
Consequently, there is no compelling reason for the Court to construe Section 144 as similarly
employing the term "penalized" or "penalty" solely in terms of criminal liability.

In People v. Temporada, 56 we held that in interpreting penal laws, "words are given their ordinary
meaning and that any reasonable doubt about the meaning is decided in favor of anyone subjected to
a criminal statute." Black's Law Dictionary recognizes the numerous conceptions of the term penalty
and discusses in part that it is "[a]n elastic term with many different shades of meaning; it involves
idea of punishment, corporeal or pecuniary, or civil or criminal, although its meaning is generally
confined to pecuniary punishment."57 Persuasively, in Smith v. Doe,58the U.S. Supreme Court,
interpreting a statutory provision that covers both punitive and non-punitive provisions, held that:

The location and labels of a statutory provision do not by themselves transform a civil remedy into a
criminal one. In 89 Firearms, the Court held a forfeiture provision to be a civil sanction even though
the authorizing statute was in the criminal code. The Court rejected the argument that the placement
demonstrated Congress' "intention to create an additional criminal sanction," observing that "both
criminal and civil sanctions may be labeled 'penalties.'" (Emphasis supplied.)

Giving a broad and flexible interpretation to the term "penalized" in Section 144 only has utility if there
are provisions in the Corporation Code that specify consequences other than "penal" or "criminal" for
violation of, or non-compliance with, the tenets of the Code. Petitioners point to the civil liability
prescribed in Sections 31 and 34. Aside from Sections 31 and 34, we consider these provisions of
interest:

SECTION 21. Corporation by Estoppel. - All persons who assume to act as a corporation knowing
it to be without authority to do so shall be liable as general partners for all debts, liabilities and
damages incurred or arising as a result thereof: Provided, however, That when any such ostensible
corporation is sued on any transaction entered by it as a corporation or on any tort committed by it as
such, it shall not be allowed to use as a defense its lack of corporate personality.

One who assumes an obligation to an ostensible corporation as such, cannot resist performance
thereof on the ground that there was in fact no corporation.

SECTION 22. Effects of non-use of corporate charter and continuous inoperation of a corporation. - If
a corporation does not formally organize and commence the transaction of its business or the
construction of its works within two (2) years from the date of its incorporation, its corporate
powers cease and the corporation shall be deemed dissolved. However, if a corporation has
commenced the transaction of its business but subsequently becomes continuously inoperative for a
period of at least five (5) years, the same shall be a ground for the suspension or revocation of its
corporate franchise or certificate of incorporation.

This provision shall not apply if the failure to organize, commence the transaction of its business or
the construction of its works, or to continuously operate is due to causes beyond the control of the
corporation as may be determined by the Securities and Exchange Commission.

SECTION 65. Liability of directors for watered stocks. - Any director or officer of a corporation
consenting to the issuance of stocks for a consideration less than its par or issued value or
for a consideration in any form other than cash, valued in excess of its fair value, or who,
having knowledge thereof, does not forthwith express his objection in writing and file the same with
the corporate secretary, shall be solidarily liable with the stockholder concerned to the
corporation and its creditors for the difference between the fair value received at the time of
issuance of the stock and the par or issued value of the same.

SECTION 66. Interest on unpaid subscriptions. - Subscribers for stock shall pay to the
corporation interest on all unpaid subscriptions from the date of subscription, if so required by,
and at the rate of interest fixed in, the by-laws. If no rate of interest is fixed in the bylaws, such rate
shall be deemed to be the legal rate.

SECTION 67. Payment of balance of subscription. - Subject to the provisions of the contract of
subscription, the board of directors of any stock corporation may at any time declare due and payable
to the corporation unpaid subscriptions to the capital stock and may collect the same or such
percentage of said unpaid subscriptions, in either case with interest accrued, if any, as it may deem
necessary.

Payment of any unpaid subscription or any percentage thereof, together with the interest accrued, if
any, shall be made on the date specified in the contract of subscription or on the date stated in the call
made by the board. Failure to pay on such date shall render the entire balance due and payable
and shall make the stockholder liable for interest at the legal rate on such balance, unless a
different rate of interest is provided in the by-laws, computed from such date until full
payment. If within thirty (30) days from the said date no payment is made, all stocks covered by said
subscription shall thereupon become delinquent and shall be subject to sale as hereinafter
provided, unless the board of directors orders otherwise.

SECTION 74. Books to be kept; stock transfer agent. - Every corporation shall, at its principal office,
keep and carefully preserve a record of all business transactions, and minutes of all meetings of
stockholders or members, or of the board of directors or trustees, in which shall be set forth in detail
the time and place of holding the meeting, how authorized, the notice given, whether the meeting was
regular or special, if special its object, those present and absent, and every act done or ordered done
at the meeting. Upon the demand of any director, trustee, stockholder or member, the time when any
director, trustee, stockholder or member entered or left the meeting must be noted in the minutes; and
on a similar demand, the yeas and nays must be taken on any motion or proposition, and a record
thereof carefully made. The protest of any director, trustee, stockholder or member on any action or
proposed action must be recorded in full on his demand.

The records of all business transactions of the corporation and the minutes of any meeting shall be
open to the inspection of any director, trustee, stockholder or member of the corporation at reasonable
hours on business days and he may demand, in writing, for a copy of excerpts from said records or
minutes, at his expense.
Any officer or agent of the corporation who shall refuse to allow any director, trustee,
stockholder or member of the corporation to examine and copy excerpts from its records or
minutes, in accordance with the provisions of this Code, shall be liable to such director,
trustee, stockholder or member for damages, and in addition, shall be guilty of an offense
which shall be punishable under Section 144 of this Code: Provided, That if such refusal is
pursuant to a resolution or order of the board of directors or trustees, the liability under this section for
such action shall be imposed upon the directors or trustees who voted for such refusal: and Provided,
further, That it shall be a defense to any action under this section that the person demanding to
examine and copy excerpts from the corporation's records and minutes has improperly used any
information secured through any prior examination of the records or minutes of such corporation or of
any other corporation, or was not acting in good faith or for a legitimate purpose in making his demand.

Stock corporations must also keep a book to be known as the "stock and transfer book", in which must
be kept a record of all stocks in the names of the stockholders alphabetically arranged; the installments
paid and unpaid on all stock for which subscription has been made, and the date of payment of any
installment; a statement of every alienation, sale or transfer of stock made, the date thereof, and by
and to whom made; and such other entries as the by-laws may prescribe. The stock and transfer book
shall be kept in the principal office of the corporation or in the office of its stock transfer agent and shall
be open for inspection of any director or stockholder of the corporation at reasonable hours on
business days.

No stock transfer agent or one engaged principally in the business of registering transfer of stocks in
behalf of a stock corporation shall be allowed to operate in the Philippines unless he secures a license
from the Securities and Exchange Commission and pays a fee as may be fixed by the Commission,
which shall be renewed annually: Provided, That a stock corporation is not precluded from performing
or making transfer of its own stocks, in which case all the rules and regulations imposed on stock
transfer agents, except the payment of a license fee herein provided, shall be applicable.

Section 22 imposes the penalty of involuntary dissolution for non-use of corporate charter. The rest of
the above-quoted provisions, like Sections 31 and 34, provide for civil or pecuniary liabilities for the
acts covered therein but what is significant is the fact that, of all these provisions that provide for
consequences other than penal, only Section 74 expressly states that a violation thereof is likewise
considered an offense under Section 144. If respondent and the Court of Appeals are correct, that
Section 144 automatically imposes penal sanctions on violations of provisions for which no criminal
penalty was imposed, then such language in Section 74 defining a violation thereof as an offense
would have been superfluous. There would be no need for legislators to clarify that, aside from civil
liability, violators of Section 7 4 are exposed to criminal liability as well. We agree with petitioners that
the lack of specific language imposing criminal liability in Sections 31 and 34 shows legislative intent
to limit the consequences of their violation to the civil liabilities mentioned therein. Had it been the
intention of the drafters of the law to define Sections 31 and 34 as offenses, they could have easily
included similar language as that found in Section 74.

If we were to employ the same line of reasoning as the majority in United States v. R.L.C., would the
apparent ambiguities in the text of the Corporation Code disappear with an analysis of said statute's
legislative history as to warrant a strict interpretation of its provisions? The answer is a negative.

In his sponsorship speech of Cabinet Bill (C.B.) No. 3 (the bill that was enacted into the Corporation
Code), then Minister Estelito Mendoza highlighted Sections 31 to 34 as among the significant
innovations made to the previous statute (Act 1459 or the Corporation Law), thusly:

There is a lot of jurisprudence on the liability of directors, trustees or officers for breach of trust or acts
of disloyalty to the corporation. Such jurisprudence is not, of course, without any ambiguity of dissent.
Sections 31, 32, 33 and 34 of the code indicate in detail prohibited acts in this area as well as
consequences of the performance of such acts or failure to perform or discharge the responsibility to
direct the affairs of the corporation with utmost fidelity. 50

Alternatively stated, Sections 31 to 34 were introduced into the Corporation Code to define what acts
are covered, as well as the consequences of such acts or omissions amounting to a failure to fulfil a
director's or corporate officer's fiduciary duties to the corporation. A closer look at the subsequent
deliberations on C.B. No. 3, particularly in relation to Sections 31 and 34, would show that the
discussions focused on the civil liabilities or consequences prescribed in said provisions themselves.
We quote the pertinent portions of the legislative records:

On Section 31

(Period of Sponsorship, December 4, 1979 Session)

MR. LEGASPI. x x x.

In Section 31 page 22, it seems that the proviso is to make the directors or the trustees who willfully
and knowingly vote for or assent to patently unlawful act or guilty of gross negligence or bad
faith in directing the affairs of the corporation would be solidarily liable with the
officersconcerned.

Now, would this, Your Honor, not discourage the serving of competent people as members of
the Board of Directors, considering that they might feel that in the event things would do badly
against the corporation, they might be held liable personally for acts which should be attributed
only to the corporation?

MR. MENDOZA. Your Honor will note that the directors or trustees who are held liable must be proven
to have acted willfully and knowingly, or if not willfully and knowingly, it must be proven that they acted
with gross negligence or bad faith. It must also be demonstrated that the acts done were patently
unlawful. So, the requirement for liability is somewhat serious to the point of: in my opinion, being
extreme. It will be noted that this provision does not merely require assenting to patently unlawful acts.
It does not merely require being negligent. The provision requires that they assent to patently unlawful
acts willfully and with knowledge of the illegality of the act.

Now, it might be true, as Your Honor suggested, that some persons will be discouraged or disinclined
to agree to serve the Board of Directors because of this liability. But at the same time this provision -
Section 31 - is really no more than a consequence of the requirement that the position of
membership in the Board of Directors is a position of high responsibility and great trust. Unless
a provision such as this is included, then that requirement of responsibility and trust will not be as
meaningful as it should be. For after all, directors may take the attitude that unless they themselves
commit the act, they would not be liable. But the responsibility of a director is not merely to act properly.
The responsibility of a director is to assure that the Board of Directors, which means his colleagues
acting together, does not act in a manner that is unlawful or to the prejudice of the corporation because
of personal or pecuniary interest of the directors.60 (Emphases supplied.)

(Period of Amendments, March 11, 1980 Session)

MR. MILLORA. On line 16, Section 31, referring to the phrase "patently unlawful acts." Before J
introduce my proposed amendment to delete the word "patently" is there a reason for placing this
adjective before the word "unlawful", Your Honor?

MR. ABELLO. Probably the one who prepared this original draft of Cabinet Bill No. 3 wanted to make
sure that a director or trustee is not [made] liable for an act that is not clearly unlawful, so he used a
better word than "clearly," he used the word "patently."

MR. MILLORA. So, in that case, Your Honor, a director may not be liable for certain unlawful
acts.Is that right, Your Honor?

MR. ABELLO. Yes, if it is not patently unlawful. Precisely, the use of the word "patently" is also to
give some kind of protection to the directors or trustees. Because if you will hold the directors
or trustees responsible for everything, then no one will serve as director or trustee of any
corporation. But, he is made liable so long as he willfully and knowingly votes for or assent to patently
unlawful acts of the corporation. So it is also to protect the director [or] trustees from liability for acts
that was not patently unlawful.

MR. MILLORA. With that explanation, Your Honor, I will not proceed with my proposed amendment.61

On Section 34

(Period of Sponsorship, November 5, 1979 Session)

MR. NUÑEZ. x x x

May I go now to page 24, Section 34.

"Disloyalty of a Director -- Where a director by virtue of his office acquires for himself a business
opportunity which should belong to the corporation thereby obtaining profits to the prejudice of the
corporation, he must account to the latter for all such profits, unless his act has been ratified by a vote
of the stockholders owning or representing at least two-thirds (2/3) of the outstanding capital stock.
This provision shall be applicable notwithstanding the fact that the director risked his own funds in the
venture."

My question, Your Honor, is: is this not the so-called corporate opportunity doctrine found in the
American jurisprudence?

MR. MENDOZA. Yes, Mr. Speaker, as I stated many of the changes that have been incorporated in
the Code were drawn from jurisprudence on the matter, but even jurisprudence on several matters or
several issues relating to the Corporation Code are sometimes ambiguous, sometimes controversial.
In order, therefore, to clarify those issues, what was done was to spell out in statutory language
the rule that should be applied on those matters and one of such examples is Section 34.

MR. NUÑEZ. Does not His Honor believe that to codify this particular document into law may lead to
absurdity or confusion as the cited doctrine is subject to many qualifications depending on the peculiar
nature of the case?

Let us suppose that there is a business opportunity that the corporation did not take advantage of or
was not interested in. Would you hold the director responsible for acquiring the interest despite the
fact that the corporation did not take advantage of or was not interested in that particular business
venture? Does not His Honor believe that this should be subject to qualifications and should be dealt
with on a case-to-case basis depending on the circumstances of the case?

MR. MENDOZA. If a director is prudent or wise enough, then he can protect himself in such
contingency. If he is aware of a business opportunity, he can make it known to the corporation,
propose it to the corporation, and allow the corporation to reject it, after which he, certainly,
may avail of it without risk of the consequences provided for in Section 34.

MR. NUÑEZ. I see. So that the position of Your Honor is that the matter should be communicated to
the corporation, the matter of the director acquiring the business opportunity should be communicated
to the corporation and that if it is not communicated to the corporation, the director will be responsible.
Is that the position of His Honor?

MR. MENDOZA. In my opinion it must not only be made known to the corporation; the corporation
must be formally advised and if he really would like to be assured that he is protected against the
consequences provided for in Section 34, he should take such steps whereby the opportunity is
clearly presented to the corporation and the corporation has the opportunity to decide on whether to
avail of it or not and then let the corporation reject it, after which then he may avail of it. Under such
circumstances I do not believe he would expose himself to the consequences provided for under
Section 34.

Precisely, the reason we have laid down this ruling in statutory language is that for as long as the rule
is not clarified there will be ambiguity in the matter. And directors of corporations who may acquire
knowledge of such opportunities would always be risking consequences not knowing how the courts
will later on decide such issues. But now with the statutory rule, any director who comes to know
of an opportunity that may be available to the corporation would be aware of the
consequencesin case he avails of' that opportunity without giving the corporation the privilege of
deciding beforehand on whether to take advantage of it or not.

MR. NUÑEZ. Let us take the case of a corporation where, from all indications, the corporation was
aware of this business opportunity and despite this fact, Your Honor, and the failure of the director to
communicate the venture to the corporation, the director entered into the business venture. Is the
director liable, Your Honor, despite the fact that the corporation has knowledge, Your Honor, from all
indications, from all facts, from all circumstances of the case, the corporation is aware?

MR. MENDOZA. First of all, to say that a corporation has knowledge is itself a point that can be subject
of an argument. When does a corporation have knowledge -· when its president comes to know of the
fact, when its general manager knows of the fact, when one or two of the directors know of that fact,
when a majority of the directors come to know of that fact? So that in itself is a matter of great
ambiguity, when one says it has knowledge.

That is why when I said that a prudent director, who would assure that he does not become liable
under Section 34, should not only be sure that the corporation has official knowledge, that is, the
Board of Directors, but must take steps, positive steps, which will demonstrate that the matter or
opportunity \Vas brought before the corporation for its decision whether to avail of it or not, and the
corporation rejected it.

So, under those circumstances narrated by Your Honor, it is my view that the director will be liable,
unless his acts are ratified later by the vote of stockholders holding at least 2/3 of the outstanding
capital stock.
MR. NUÑEZ. Your Honor has already raised the possible complications that may arise out of this
particular provision. My question is: how can we remedy the situation? Is there a necessity, Your
Honor, of a formal notice to the corporation that it should be placed in the agenda, in a meeting or a
special 01 regular meeting of the corporation that such a business venture exists, that the corporation
should take advantage of this business venture before a director can be held not responsible for
acquiring this business venture?

MR. MENDOZA. Well, I believe, as I have stated, Mr. Speaker, that is what a prudent director should
do. If he does not wish to be in any way handicapped in availing of business opportunities, he should,
to the same degree, be circumspect in accepting directorships in corporations. If he wants to be
completely free to avail of any opportunity which may come his way, he should not accept the position
of director in any corporation which he may anticipate may be dealing in a business in connection with
which he may acquire a certain interest.

The purpose of all these provisions is to assure that directors or corporations constantly – not
only constantly remember but actually are imposed with certain positive obligations that at least
would assure that they will discharge their responsibilities with utmost fidelity. 62

(December 5, 1979 Session)

MR. CAMARA. Thank you, Your Honor. May we go to page 24, lines 1 to 20, Section 34 - Disloyalty
of a director.

Your Honor, it is provided that a director, who by virtue of his office acquires for himself a business
opportunity which should belong to the corporation thereby obtaining profits to the prejudice of such
corporation, must account to the corporation for all such profits unless his act has been ratified by a
vote of the stockholders owning or representing at least two-thirds (2/3) of the outstanding capital
stock.

However, Your Honor, the right to ratification would serve to defeat the intention of this provision. This
is possible if the director or officer is the controlling stockholder.

It is, therefore, suggested, Your Honor, that the twenty per cent (20%) stockholding limit be applied
here in which case, over twenty per cent limit, said director or officer is disallowed to participate in the
ratification. And this is precisely the point I was driving at in the previous section, Your Honor.

MR. ABELLO. Your Honor, I see the point that Your Honor has raised and that will be considered by
the committee at an appropriate time.

MR. CAMARA. Thank you, Your Honor.

Further, under the same provision, it is not clear as to what "account to the corporation" means
or what it includes. Is the offender liable for the profits in favor of the corporation?

MR. ABELLO. Yes, that is what it means.

MR. CAMARA. Or he be merely made to account?

MR. ABELLO. Well, Your Honor, when the law says "'He must account to the latter for an such
profits," that means that he is liable to the corporation for such profits.
MR. CAMARA. Who gets the profits then, Your Honor?

MR. ABELLO. The corporation itself.

MR. CAMARA. The corporation?

MR. ABELLO. Correct.

MR. CAMARA. Thank you, Your Honor.

Supposing under the same section, Your Honor, the director took the opportunity after resigning as
director or officer? It is suggested, Your Honor, that this should be clarified because the resigning
director can take the opportunity of this transaction before he resigns.

MR. ABELLO. If Your Honor refers to the fact that he took that opportunity while he was a director,
Section 34, would apply. But if the action was made after his resignation as a director of the
corporation, then Section 34 would not apply. 63

(Period of Amendments, March 11, 1980 Session)

MR. CAMARA. This is on Section 34, page 24, line 15, I propose to insert between the word "profits''
and the comma (,) the words BY REFUNDING THE SAME. So that the first sentence, lines 11 to 18
of said section, as modified, shall read as follows:

"SEC. 34. Disloyalty of a director. - Where a director by virtue of his office acquires for himself a
business opportunity which should belong to the corporation thereby obtaining profits to the prejudice
of such corporation, he must account to the latter for all such profits BY REFUNDING THE SAME,
unless his act has been ratified by a vote of the stockholders owning or representing at least two-thirds
(2/3) of the outstanding capital stock."

The purpose of this amendment, Mr. Speaker, is to clarify as to what to account to the
corporation.

MR. ABELLO. Mr. Speaker, the committee accepts the amendment.64 (Emphases and underscoring
supplied.)

Verily, in the instances that Sections 31 and 34 were taken up on the floor, legislators did not veer
away from the civil consequences as stated within the four comers of these provisions. Contrasted
with the interpellations on Section 74 (regarding the right to inspect the corporate records), the
discussions on said provision leave no doubt that legislators intended both civil and penal liabilities to
attach to corporate officers who violate the same, as was repeatedly stressed in the excerpts from the
legislative record quoted below:

On Section 74:

(Period of Sponsorship, December 10, 1979 Session)

MR. TUPAZ. x x x I guess, Mr. Speaker, that the distinguished sponsor has in mind a particular
situation where a minority shareholder is one of the thousands of shareholders. But I present a
situation, Your Honor, where the minority is 49% owner of a corporation and here comes this minority
shareholder wanting, but a substantial minority, and yet he cannot even have access to the records of
this corporation over which he owns almost one-half because, precisely, of this particular provision of
law.65

MR. MENDOZA. He will not have access if the grounds expressed in the proviso are present. It must
also be noted, Mr. Speaker, that the provision before us would, let us say, make it very difficult
for corporate officers to act unreasonably because they are not only subject to a suit which would
compel them to allow the access to corporate records, they are also liable for damages and are
in fact guilty of a penal act under Section 143.66

MR. TUPAZ. That is correct, Your Honor.

MR. MENDOZA. So that when corporate officers deny access to a shareholder, they do so under very
serious consequences. If they should err in making that decision and it is demonstrated that they have
erred deliberately, they expose themselves to damages and even to certain penal sanctions.

xxxx

As I said, Your Honor, I think it is fair enough to assume that persons do not act deliberately in bad
faith, that they do not act deliberately to expose themselves to damages, or to penal
sanctions.In the ultimate, I would agree that certain decisions may be unnecessarily harsh and
prejudicial. But by and large, I think, the probabilities are in favor of a decision being reasonable and
in accord with the interest of the corporation.67 (Emphases and underscoring supplied.)

Quite apart that no legislative intent to criminalize Sections 31 and 34 was manifested in the
deliberations on the Corporation Code, it is noteworthy from the same deliberations that legislators
intended to codify the common law concepts of corporate opportunity and fiduciary obligations of
corporate officers as found in American jurisprudence into said provisions. In common law, the
remedies available in the event of a breach of director's fiduciary duties to the corporation are civil
remedies. If a director or officer is found to have breached his duty of loyalty, an injunction may be
issued or damages may be awarded. 68 A corporate officer guilty of fraud or mismanagement may be
held liable for lost profits. 69 A disloyal agent may also suffer forfeiture of his compensation. 70 There is
nothing in the deliberations to indicate that drafters of the Corporation Code intended to deviate from
common law practice and enforce the fiduciary obligations of directors and corporate officers through
penal sanction aside from civil liability. On the contrary, there appears to be a concern among the
drafters of the Corporation Code that even the imposition of the civil sanctions under Section 31 and
34 might discourage competent persons from serving as directors in corporations.

In Crandon v. United States,71the U.S. Supreme Court had the occasion to state that:

In determining the meaning of the statute, we look not only to the particular statutory language,
but to the design of the statute as a whole and to its object and policy. Moreover, because the
governing standard is set forth in a criminal statute, it is appropriate to apply the rule of lenity in
resolving any ambiguity in the ambit of the statute's coverage. To the extent that the language or
history of [the statute] is uncertain, this "time-honored interpretive guideline" serves to ensure both
that there is fair warning of the boundaries of criminal conduct and that legislatures, not courts,
define criminal liability. (Citations omitted; emphases supplied.)

Under the circumstances of this case, we are convinced to adopt a similar view. For this reason, we
take into account the avowed legislative policy in the enactment of the Corporation Code as outlined
in the Sponsorship Speech of Minister Mendoza:
Cabinet Bill No. 3 is entitled "The Corporation Code of the Philippines." Its consideration at this time
in the history of our nation provides a fitting occasion to remind that under our Constitution the
economic system known as "free enterprise" is recognized and protected. We acknowledge as
a democratic republic that the individual must be free and that as a free man - "free to choose his work
and to retain the fruits of his labor" - he may best develop his capabilities and will produce and supply
the economic needs of the nation.

xxxx

The formation and organization of private corporations, and I underscore private corporations as
distinguished from corporations owned or controlled by the government or any subdivision or
instrumentality thereof, gives wider dimensions to free enterprise or free trade. For not only is the
right of individuals to organize collectively recognized; the collective organization is vested with a
juridical personality distinct from their own. Thus "the skill, dexterity, and judgment" of a nation's labor
force need not be constricted in their application to those of an individual or that which he alone may
assemble but to those of a collective organization.

While a code, such as the proposed code now before us, may appear essentially regulatory in
nature, it does not, and is not intended, to curb or stifle the use of the corporate entity as a
business organization. Rather, the proposed code recognizes the value, and seeks to inspire
confidence in the value of the corporate vehicle in the economic life of society. 72 (Emphases supplied.)

The Corporation Code was intended as a regulatory measure, not primarily as a penal statute.
Sections 31 to 34 in particular were intended to impose exacting standards of fidelity on corporate
officers and directors but without unduly impeding them in the discharge of their work with concerns
of litigation. Considering the object and policy of the Corporation Code to encourage the use of the
corporate entity as a vehicle for economic growth, we cannot espouse a strict construction of Sections
31 and 34 as penal offenses in relation to Section 144 in the absence of unambiguous statutory
language and legislative intent to that effect.

When Congress intends to criminalize certain acts it does so in plain, categorical language, otherwise
such a statute would be susceptible to constitutional attack. As earlier discussed, this can be readily
seen from the text of Section 450) of Republic Act No. 8189 and Section 74 of the Corporation Code.

We stress that had the Legislature intended to attach penal sanctions to Sections 31 and 34 of the
Corporation Code it could have expressly stated such intent in the same manner that it did for Section
74 of the same Code.

At this point, we dispose of some related arguments raised in the pleadings. We do not agree with
respondent Tullett that previous decisions of this Court have already settled the matter in controversy
in the consolidated cases at bar. The declaration of the Court in Home Insurance Company v. Eastern
Shipping Lines73that "[t]he prohibition against doing business without first securing a license [under
Section 133] is now given penal sanction which is also applicable to other violations of the Corporation
Code under the general provisions of Section 144 of the Code" is unmistakably obiter dictum. We
explained in another case:

An obiter dictum has been defined as an opinion expressed by a court upon some question of law that
is not necessary in the determination of the case before the court. It is a remark made, or opinion
expressed, by a judge, in his decision upon a cause by the way, that is, incidentally or collaterally, and
not directly upon the question before him, or upon a point not necessarily involved in the determination
of the cause, or introduced by way of illustration, or analogy or argument. It does not embody the
resolution or determination of the court, and is made without argument, or full consideration
of the point. It lacks the force of an adjudication, being a mere expression of an opinion with
no binding force for purposes of res judicata.74(Emphasis supplied.)

The issue in the Home Insurance Company case was whether or not a foreign corporation previously
doing business here without a license has the capacity to sue in our courts when it had already
acquired the necessary license at the time of the filing of the complaints. The Court ruled in the
affirmative. The statement regarding the supposed penal sanction for violation of Section 133 of the
Corporation Code was not essential to the resolution of the case as none of the parties was being
made criminally liable under Section 133.

As for respondent's allusion to Genuino v. National Labor Relations Commission, 75 we find the same
unavailing. Genuino involved the appeal of an illegal dismissal case wherein it was merely mentioned
in the narration of facts that the employer-bank also filed criminal complaints against its dismissed
corporate officers for alleged violation of Section 31 in relation to Section 144 of the Corporation Code.
The interpretation of said provisions of the Corporation Code in the context of a criminal proceeding
was not at issue in that case.

As additional support for its contentions, respondent cites several opinions of the SEC, applying
Section 144 to various violations of the Corporation Code in the imposition of graduated fines. In
respondent's view, these opinions show a consistent administrative interpretation on the applicability
of Section 144 to the other provisions of the Corporation Code and allegedly render absurd petitioners'
concern regarding the "over-criminalization" of the Corporation Code. We find respondent's reliance
on these SEC opinions to be misplaced. As petitioners correctly point out, the fines imposed by the
SEC in these instances of violations of the Corporation Code are in the nature of administrative fines
and are not penal in nature. Without ruling upon the soundness of the legal reasoning of the SEC in
these opinions, we note that these opinions in fact support the view that even the SEC construes
"penalty" as used in Section 144 as encompassing administrative penalties, not only criminal
sanctions. In all, these SEC issuances weaken rather than strengthen respondent's case.

With respect to the minutiae of other arguments cited in the parties' pleadings, it is no longer necessary
for the Court to pass upon the same in light of our determination that there is no clear, categorical
legislative intent to define Sections 31 and 34 as offenses under Section 144 of the Corporation Code.
We likewise refrain from resolving the question on the constitutionality of Section 144 of the
Corporation Code. It is a long standing principle in jurisprudence that "courts will not resolve the
constitutionality of a law, if the controversy can be settled on other grounds. The policy of the courts
is to avoid ruling on constitutional questions and to presume that the acts of the political departments
are valid, absent a clear and unmistakable showing to the contrary."76

WHEREFORE, the consolidated petitions are GRANTED. The Decision dated August 12, 2009 of the
Court of Appeals in CA-G.R. SP No. 109094 and the Resolutions dated April 23, 2009 and May 15,
2009 of the Secretary of Justice in I.S. No. 08-J-8651 are REVERSED and SET ASIDE.

SO ORDERED.
Minucher v. Scalzo, G.R. No. 142396, 11 February 2003

FIRST DIVISION

G.R. No. 142396 February 11, 2003

KHOSROW MINUCHER, petitioner,

vs.
HON. COURT OF APPEALS and ARTHUR SCALZO, respondents.

DECISION

VITUG, J.:

Sometime in May 1986, an Information for violation of Section 4 of Republic Act No. 6425, otherwise
also known as the "Dangerous Drugs Act of 1972," was filed against petitioner Khosrow Minucher and
one Abbas Torabian with the Regional Trial Court, Branch 151, of Pasig City. The criminal charge
followed a "buy-bust operation" conducted by the Philippine police narcotic agents in the house of
Minucher, an Iranian national, where a quantity of heroin, a prohibited drug, was said to have been
seized. The narcotic agents were accompanied by private respondent Arthur Scalzo who would, in
due time, become one of the principal witnesses for the prosecution. On 08 January 1988, Presiding
Judge Eutropio Migrino rendered a decision acquitting the two accused.

On 03 August 1988, Minucher filed Civil Case No. 88-45691 before the Regional Trial Court (RTC),
Branch 19, of Manila for damages on account of what he claimed to have been trumped-up charges
of drug trafficking made by Arthur Scalzo. The Manila RTC detailed what it had found to be the facts
and circumstances surrounding the case.

"The testimony of the plaintiff disclosed that he is an Iranian national. He came to the Philippines to
study in the University of the Philippines in 1974. In 1976, under the regime of the Shah of Iran, he
was appointed Labor Attaché for the Iranian Embassies in Tokyo, Japan and Manila, Philippines.
When the Shah of Iran was deposed by Ayatollah Khomeini, plaintiff became a refugee of the United
Nations and continued to stay in the Philippines. He headed the Iranian National Resistance
Movement in the Philippines.

"He came to know the defendant on May 13, 1986, when the latter was brought to his house and
introduced to him by a certain Jose Iñigo, an informer of the Intelligence Unit of the military. Jose Iñigo,
on the other hand, was met by plaintiff at the office of Atty. Crisanto Saruca, a lawyer for several
Iranians whom plaintiff assisted as head of the anti-Khomeini movement in the Philippines.
"During his first meeting with the defendant on May 13, 1986, upon the introduction of Jose Iñigo, the
defendant expressed his interest in buying caviar. As a matter of fact, he bought two kilos of caviar
from plaintiff and paid P10,000.00 for it. Selling caviar, aside from that of Persian carpets, pistachio
nuts and other Iranian products was his business after the Khomeini government cut his pension of
over $3,000.00 per month. During their introduction in that meeting, the defendant gave the plaintiff
his calling card, which showed that he is working at the US Embassy in the Philippines, as a special
agent of the Drug Enforcement Administration, Department of Justice, of the United States, and gave
his address as US Embassy, Manila. At the back of the card appears a telephone number in
defendant’s own handwriting, the number of which he can also be contacted.

"It was also during this first meeting that plaintiff expressed his desire to obtain a US Visa for his wife
and the wife of a countryman named Abbas Torabian. The defendant told him that he [could] help
plaintiff for a fee of $2,000.00 per visa. Their conversation, however, was more concentrated on
politics, carpets and caviar. Thereafter, the defendant promised to see plaintiff again.

"On May 19, 1986, the defendant called the plaintiff and invited the latter for dinner at Mario's
Restaurant at Makati. He wanted to buy 200 grams of caviar. Plaintiff brought the merchandize but for
the reason that the defendant was not yet there, he requested the restaurant people to x x x place the
same in the refrigerator. Defendant, however, came and plaintiff gave him the caviar for which he was
paid. Then their conversation was again focused on politics and business.

"On May 26, 1986, defendant visited plaintiff again at the latter's residence for 18 years at Kapitolyo,
Pasig. The defendant wanted to buy a pair of carpets which plaintiff valued at $27,900.00. After some
haggling, they agreed at $24,000.00. For the reason that defendant did not yet have the money, they
agreed that defendant would come back the next day. The following day, at 1:00 p.m., he came back
with his $24,000.00, which he gave to the plaintiff, and the latter, in turn, gave him the pair of carpets.1awphi1.nét

"At about 3:00 in the afternoon of May 27, 1986, the defendant came back again to plaintiff's house
and directly proceeded to the latter's bedroom, where the latter and his countryman, Abbas Torabian,
were playing chess. Plaintiff opened his safe in the bedroom and obtained $2,000.00 from it, gave it
to the defendant for the latter's fee in obtaining a visa for plaintiff's wife. The defendant told him that
he would be leaving the Philippines very soon and requested him to come out of the house for a while
so that he can introduce him to his cousin waiting in a cab. Without much ado, and without putting on
his shirt as he was only in his pajama pants, he followed the defendant where he saw a parked cab
opposite the street. To his complete surprise, an American jumped out of the cab with a drawn high-
powered gun. He was in the company of about 30 to 40 Filipino soldiers with 6 Americans, all armed.
He was handcuffed and after about 20 minutes in the street, he was brought inside the house by the
defendant. He was made to sit down while in handcuffs while the defendant was inside his bedroom.
The defendant came out of the bedroom and out from defendant's attaché case, he took something
and placed it on the table in front of the plaintiff. They also took plaintiff's wife who was at that time at
the boutique near his house and likewise arrested Torabian, who was playing chess with him in the
bedroom and both were handcuffed together. Plaintiff was not told why he was being handcuffed and
why the privacy of his house, especially his bedroom was invaded by defendant. He was not allowed
to use the telephone. In fact, his telephone was unplugged. He asked for any warrant, but the
defendant told him to `shut up.’ He was nevertheless told that he would be able to call for his lawyer
who can defend him.

"The plaintiff took note of the fact that when the defendant invited him to come out to meet his cousin,
his safe was opened where he kept the $24,000.00 the defendant paid for the carpets and another
$8,000.00 which he also placed in the safe together with a bracelet worth $15,000.00 and a pair of
earrings worth $10,000.00. He also discovered missing upon his release his 8 pieces hand-made
Persian carpets, valued at $65,000.00, a painting he bought for P30,000.00 together with his TV and
betamax sets. He claimed that when he was handcuffed, the defendant took his keys from his wallet.
There was, therefore, nothing left in his house.

"That his arrest as a heroin trafficker x x x had been well publicized throughout the world, in various
newspapers, particularly in Australia, America, Central Asia and in the Philippines. He was identified
in the papers as an international drug trafficker. x x x

In fact, the arrest of defendant and Torabian was likewise on television, not only in the Philippines, but
also in America and in Germany. His friends in said places informed him that they saw him on TV with
said news.

"After the arrest made on plaintiff and Torabian, they were brought to Camp Crame handcuffed
together, where they were detained for three days without food and water."1

During the trial, the law firm of Luna, Sison and Manas, filed a special appearance for Scalzo and
moved for extension of time to file an answer pending a supposed advice from the United States
Department of State and Department of Justice on the defenses to be raised. The trial court granted
the motion. On 27 October 1988, Scalzo filed another special appearance to quash the summons on
the ground that he, not being a resident of the Philippines and the action being one in personam, was
beyond the processes of the court. The motion was denied by the court, in its order of 13 December
1988, holding that the filing by Scalzo of a motion for extension of time to file an answer to the
complaint was a voluntary appearance equivalent to service of summons which could likewise be
construed a waiver of the requirement of formal notice. Scalzo filed a motion for reconsideration of the
court order, contending that a motion for an extension of time to file an answer was not a voluntary
appearance equivalent to service of summons since it did not seek an affirmative relief. Scalzo argued
that in cases involving the United States government, as well as its agencies and officials, a motion
for extension was peculiarly unavoidable due to the need (1) for both the Department of State and the
Department of Justice to agree on the defenses to be raised and (2) to refer the case to a Philippine
lawyer who would be expected to first review the case. The court a quo denied the motion for
reconsideration in its order of 15 October 1989.

Scalzo filed a petition for review with the Court of Appeals, there docketed CA-G.R. No. 17023,
assailing the denial. In a decision, dated 06 October 1989, the appellate court denied the petition and
affirmed the ruling of the trial court. Scalzo then elevated the incident in a petition for review on
certiorari, docketed G.R. No. 91173, to this Court. The petition, however, was denied for its failure to
comply with SC Circular No. 1-88; in any event, the Court added, Scalzo had failed to show that the
appellate court was in error in its questioned judgment.

Meanwhile, at the court a quo, an order, dated 09 February 1990, was issued (a) declaring Scalzo in
default for his failure to file a responsive pleading (answer) and (b) setting the case for the reception
of evidence. On 12 March 1990, Scalzo filed a motion to set aside the order of default and to admit
his answer to the complaint. Granting the motion, the trial court set the case for pre-trial. In his answer,
Scalzo denied the material allegations of the complaint and raised the affirmative defenses (a) of
Minucher’s failure to state a cause of action in his complaint and (b) that Scalzo had acted in the
discharge of his official duties as being merely an agent of the Drug Enforcement Administration of the
United States Department of Justice. Scalzo interposed a counterclaim of P100,000.00 to answer for
attorneys' fees and expenses of litigation.

Then, on 14 June 1990, after almost two years since the institution of the civil case, Scalzo filed a
motion to dismiss the complaint on the ground that, being a special agent of the United States Drug
Enforcement Administration, he was entitled to diplomatic immunity. He attached to his motion
Diplomatic Note No. 414 of the United States Embassy, dated 29 May 1990, addressed to the
Department of Foreign Affairs of the Philippines and a Certification, dated 11 June 1990, of Vice
Consul Donna Woodward, certifying that the note is a true and faithful copy of its original. In an order
of 25 June 1990, the trial court denied the motion to dismiss.

On 27 July 1990, Scalzo filed a petition for certiorari with injunction with this Court, docketed G.R. No.
94257 and entitled "Arthur W. Scalzo, Jr., vs. Hon. Wenceslao Polo, et al.," asking that the complaint
in Civil Case No. 88-45691 be ordered dismissed. The case was referred to the Court of Appeals,
there docketed CA-G.R. SP No. 22505, per this Court’s resolution of 07 August 1990. On 31 October
1990, the Court of Appeals promulgated its decision sustaining the diplomatic immunity of Scalzo and
ordering the dismissal of the complaint against him. Minucher filed a petition for review with this Court,
docketed G.R. No. 97765 and entitled "Khosrow Minucher vs. the Honorable Court of Appeals, et. al."
(cited in 214 SCRA 242), appealing the judgment of the Court of Appeals. In a decision, dated 24
September 1992, penned by Justice (now Chief Justice) Hilario Davide, Jr., this Court reversed the
decision of the appellate court and remanded the case to the lower court for trial. The remand was
ordered on the theses (a) that the Court of Appeals erred in granting the motion to dismiss of Scalzo
for lack of jurisdiction over his person without even considering the issue of the authenticity of
Diplomatic Note No. 414 and (b) that the complaint contained sufficient allegations to the effect that
Scalzo committed the imputed acts in his personal capacity and outside the scope of his official duties
and, absent any evidence to the contrary, the issue on Scalzo’s diplomatic immunity could not be
taken up.

The Manila RTC thus continued with its hearings on the case. On 17 November 1995, the trial court
reached a decision; it adjudged:

"WHEREFORE, and in view of all the foregoing considerations, judgment is hereby rendered for the
plaintiff, who successfully established his claim by sufficient evidence, against the defendant in the
manner following:

"`Adjudging defendant liable to plaintiff in actual and compensatory damages of P520,000.00; moral
damages in the sum of P10 million; exemplary damages in the sum of P100,000.00; attorney's fees in
the sum of P200,000.00 plus costs.

`The Clerk of the Regional Trial Court, Manila, is ordered to take note of the lien of the Court on this
judgment to answer for the unpaid docket fees considering that the plaintiff in this case instituted this
action as a pauper litigant.’"2

While the trial court gave credence to the claim of Scalzo and the evidence presented by him that he
was a diplomatic agent entitled to immunity as such, it ruled that he, nevertheless, should be held
accountable for the acts complained of committed outside his official duties. On appeal, the Court of
Appeals reversed the decision of the trial court and sustained the defense of Scalzo that he was
sufficiently clothed with diplomatic immunity during his term of duty and thereby immune from the
criminal and civil jurisdiction of the "Receiving State" pursuant to the terms of the Vienna Convention.

Hence, this recourse by Minucher. The instant petition for review raises a two-fold issue: (1) whether
or not the doctrine of conclusiveness of judgment, following the decision rendered by this Court in G.R.
No. 97765, should have precluded the Court of Appeals from resolving the appeal to it in an entirely
different manner, and (2) whether or not Arthur Scalzo is indeed entitled to diplomatic immunity.

The doctrine of conclusiveness of judgment, or its kindred rule of res judicata, would require 1) the
finality of the prior judgment, 2) a valid jurisdiction over the subject matter and the parties on the part
of the court that renders it, 3) a judgment on the merits, and 4) an identity of the parties, subject matter
and causes of action.3 Even while one of the issues submitted in G.R. No. 97765 - "whether or not
public respondent Court of Appeals erred in ruling that private respondent Scalzo is a diplomat immune
from civil suit conformably with the Vienna Convention on Diplomatic Relations" - is also a pivotal
question raised in the instant petition, the ruling in G.R. No. 97765, however, has not resolved that
point with finality. Indeed, the Court there has made this observation -

"It may be mentioned in this regard that private respondent himself, in his Pre-trial Brief filed on 13
June 1990, unequivocally states that he would present documentary evidence consisting of DEA
records on his investigation and surveillance of plaintiff and on his position and duties as DEA special
agent in Manila. Having thus reserved his right to present evidence in support of his position, which is
the basis for the alleged diplomatic immunity, the barren self-serving claim in the belated motion to
dismiss cannot be relied upon for a reasonable, intelligent and fair resolution of the issue of diplomatic
immunity."4

Scalzo contends that the Vienna Convention on Diplomatic Relations, to which the Philippines is a
signatory, grants him absolute immunity from suit, describing his functions as an agent of the United
States Drugs Enforcement Agency as "conducting surveillance operations on suspected drug dealers
in the Philippines believed to be the source of prohibited drugs being shipped to the U.S., (and) having
ascertained the target, (he then) would inform the Philippine narcotic agents (to) make the actual
arrest." Scalzo has submitted to the trial court a number of documents -

1. Exh. '2' - Diplomatic Note No. 414 dated 29 May 1990;

2. Exh. '1' - Certification of Vice Consul Donna K. Woodward dated 11 June 1990;

3. Exh. '5' - Diplomatic Note No. 757 dated 25 October 1991;

4. Exh. '6' - Diplomatic Note No. 791 dated 17 November 1992; and

5. Exh. '7' - Diplomatic Note No. 833 dated 21 October 1988.

6. Exh. '3' - 1st Indorsement of the Hon. Jorge R. Coquia, Legal Adviser, Department of Foreign
Affairs, dated 27 June 1990 forwarding Embassy Note No. 414 to the Clerk of Court of RTC
Manila, Branch 19 (the trial court);

7. Exh. '4' - Diplomatic Note No. 414, appended to the 1st Indorsement (Exh. '3'); and

8. Exh. '8' - Letter dated 18 November 1992 from the Office of the Protocol, Department of
Foreign Affairs, through Asst. Sec. Emmanuel Fernandez, addressed to the Chief Justice of
this Court.5

The documents, according to Scalzo, would show that: (1) the United States Embassy accordingly
advised the Executive Department of the Philippine Government that Scalzo was a member of the
diplomatic staff of the United States diplomatic mission from his arrival in the Philippines on 14 October
1985 until his departure on 10 August 1988; (2) that the United States Government was firm from the
very beginning in asserting the diplomatic immunity of Scalzo with respect to the case pursuant to the
provisions of the Vienna Convention on Diplomatic Relations; and (3) that the United States Embassy
repeatedly urged the Department of Foreign Affairs to take appropriate action to inform the trial court
of Scalzo’s diplomatic immunity. The other documentary exhibits were presented to indicate that: (1)
the Philippine government itself, through its Executive Department, recognizing and respecting the
diplomatic status of Scalzo, formally advised the "Judicial Department" of his diplomatic status and his
entitlement to all diplomatic privileges and immunities under the Vienna Convention; and (2) the
Department of Foreign Affairs itself authenticated Diplomatic Note No. 414. Scalzo additionally
presented Exhibits "9" to "13" consisting of his reports of investigation on the surveillance and
subsequent arrest of Minucher, the certification of the Drug Enforcement Administration of the United
States Department of Justice that Scalzo was a special agent assigned to the Philippines at all times
relevant to the complaint, and the special power of attorney executed by him in favor of his previous
counsel6 to show (a) that the United States Embassy, affirmed by its Vice Consul, acknowledged
Scalzo to be a member of the diplomatic staff of the United States diplomatic mission from his arrival
in the Philippines on 14 October 1985 until his departure on 10 August 1988, (b) that, on May 1986,
with the cooperation of the Philippine law enforcement officials and in the exercise of his functions as
member of the mission, he investigated Minucher for alleged trafficking in a prohibited drug, and (c)
that the Philippine Department of Foreign Affairs itself recognized that Scalzo during his tour of duty
in the Philippines (14 October 1985 up to 10 August 1988) was listed as being an Assistant Attaché
of the United States diplomatic mission and accredited with diplomatic status by the Government of
the Philippines. In his Exhibit 12, Scalzo described the functions of the overseas office of the United
States Drugs Enforcement Agency, i.e., (1) to provide criminal investigative expertise and assistance
to foreign law enforcement agencies on narcotic and drug control programs upon the request of the
host country, 2) to establish and maintain liaison with the host country and counterpart foreign law
enforcement officials, and 3) to conduct complex criminal investigations involving international criminal
conspiracies which affect the interests of the United States.

The Vienna Convention on Diplomatic Relations was a codification of centuries-old customary law
and, by the time of its ratification on 18 April 1961, its rules of law had long become stable. Among the
city states of ancient Greece, among the peoples of the Mediterranean before the establishment of
the Roman Empire, and among the states of India, the person of the herald in time of war and the
person of the diplomatic envoy in time of peace were universally held sacrosanct.7 By the end of the
16th century, when the earliest treatises on diplomatic law were published, the inviolability of
ambassadors was firmly established as a rule of customary international law.8Traditionally, the
exercise of diplomatic intercourse among states was undertaken by the head of state himself, as being
the preeminent embodiment of the state he represented, and the foreign secretary, the official usually
entrusted with the external affairs of the state. Where a state would wish to have a more prominent
diplomatic presence in the receiving state, it would then send to the latter a diplomatic mission.
Conformably with the Vienna Convention, the functions of the diplomatic mission involve, by and large,
the representation of the interests of the sending state and promoting friendly relations with the
receiving state.9

The Convention lists the classes of heads of diplomatic missions to include (a) ambassadors or
nuncios accredited to the heads of state,10 (b) envoys,11 ministers or internuncios accredited to the
heads of states; and (c) charges d' affairs12 accredited to the ministers of foreign affairs.13 Comprising
the "staff of the (diplomatic) mission" are the diplomatic staff, the administrative staff and the technical
and service staff. Only the heads of missions, as well as members of the diplomatic staff, excluding
the members of the administrative, technical and service staff of the mission, are accorded diplomatic
rank. Even while the Vienna Convention on Diplomatic Relations provides for immunity to the members
of diplomatic missions, it does so, nevertheless, with an understanding that the same be restrictively
applied. Only "diplomatic agents," under the terms of the Convention, are vested with blanket
diplomatic immunity from civil and criminal suits. The Convention defines "diplomatic agents" as the
heads of missions or members of the diplomatic staff, thus impliedly withholding the same privileges
from all others. It might bear stressing that even consuls, who represent their respective states in
concerns of commerce and navigation and perform certain administrative and notarial duties, such as
the issuance of passports and visas, authentication of documents, and administration of oaths, do not
ordinarily enjoy the traditional diplomatic immunities and privileges accorded diplomats, mainly for the
reason that they are not charged with the duty of representing their states in political matters. Indeed,
the main yardstick in ascertaining whether a person is a diplomat entitled to immunity is the
determination of whether or not he performs duties of diplomatic nature.
Scalzo asserted, particularly in his Exhibits "9" to "13," that he was an Assistant Attaché of the United
States diplomatic mission and was accredited as such by the Philippine Government. An attaché
belongs to a category of officers in the diplomatic establishment who may be in charge of its cultural,
press, administrative or financial affairs. There could also be a class of attaches belonging to certain
ministries or departments of the government, other than the foreign ministry or department, who are
detailed by their respective ministries or departments with the embassies such as the military, naval,
air, commercial, agricultural, labor, science, and customs attaches, or the like. Attaches assist a chief
of mission in his duties and are administratively under him, but their main function is to observe,
analyze and interpret trends and developments in their respective fields in the host country and submit
reports to their own ministries or departments in the home government.14 These officials are not
generally regarded as members of the diplomatic mission, nor are they normally designated as having
diplomatic rank.

In an attempt to prove his diplomatic status, Scalzo presented Diplomatic Notes Nos. 414, 757 and
791, all issued post litem motam, respectively, on 29 May 1990, 25 October 1991 and 17 November
1992. The presentation did nothing much to alleviate the Court's initial reservations in G.R. No. 97765,
viz:

"While the trial court denied the motion to dismiss, the public respondent gravely abused its discretion
in dismissing Civil Case No. 88-45691 on the basis of an erroneous assumption that simply because
of the diplomatic note, the private respondent is clothed with diplomatic immunity, thereby divesting
the trial court of jurisdiction over his person.

"x x x x x x x x x

"And now, to the core issue - the alleged diplomatic immunity of the private respondent. Setting aside
for the moment the issue of authenticity raised by the petitioner and the doubts that surround such
claim, in view of the fact that it took private respondent one (1) year, eight (8) months and seventeen
(17) days from the time his counsel filed on 12 September 1988 a Special Appearance and Motion
asking for a first extension of time to file the Answer because the Departments of State and Justice of
the United States of America were studying the case for the purpose of determining his defenses,
before he could secure the Diplomatic Note from the US Embassy in Manila, and even granting for the
sake of argument that such note is authentic, the complaint for damages filed by petitioner cannot be
peremptorily dismissed.

"x x x x x x x x x

"There is of course the claim of private respondent that the acts imputed to him were done in his official
capacity. Nothing supports this self-serving claim other than the so-called Diplomatic Note. x x x. The
public respondent then should have sustained the trial court's denial of the motion to dismiss. Verily,
it should have been the most proper and appropriate recourse. It should not have been overwhelmed
by the self-serving Diplomatic Note whose belated issuance is even suspect and whose authenticity
has not yet been proved. The undue haste with which respondent Court yielded to the private
respondent's claim is arbitrary."

A significant document would appear to be Exhibit No. 08, dated 08 November 1992, issued by the
Office of Protocol of the Department of Foreign Affairs and signed by Emmanuel C. Fernandez,
Assistant Secretary, certifying that "the records of the Department (would) show that Mr. Arthur W.
Scalzo, Jr., during his term of office in the Philippines (from 14 October 1985 up to 10 August 1988)
was listed as an Assistant Attaché of the United States diplomatic mission and was, therefore,
accredited diplomatic status by the Government of the Philippines." No certified true copy of such
"records," the supposed bases for the belated issuance, was presented in evidence.
Concededly, vesting a person with diplomatic immunity is a prerogative of the executive branch of the
government. In World Health Organization vs. Aquino,15 the Court has recognized that, in such matters,
the hands of the courts are virtually tied. Amidst apprehensions of indiscriminate and incautious grant
of immunity, designed to gain exemption from the jurisdiction of courts, it should behoove the
Philippine government, specifically its Department of Foreign Affairs, to be most circumspect, that
should particularly be no less than compelling, in its post litem motam issuances. It might be recalled
that the privilege is not an immunity from the observance of the law of the territorial sovereign or from
ensuing legal liability; it is, rather, an immunity from the exercise of territorial jurisdiction. 16 The
government of the United States itself, which Scalzo claims to be acting for, has formulated its
standards for recognition of a diplomatic agent. The State Department policy is to only concede
diplomatic status to a person who possesses an acknowledged diplomatic title and "performs duties
of diplomatic nature."17 Supplementary criteria for accreditation are the possession of a valid diplomatic
passport or, from States which do not issue such passports, a diplomatic note formally representing
the intention to assign the person to diplomatic duties, the holding of a non-immigrant visa, being over
twenty-one years of age, and performing diplomatic functions on an essentially full-time
basis.18 Diplomatic missions are requested to provide the most accurate and descriptive job title to that
which currently applies to the duties performed. The Office of the Protocol would then assign each
individual to the appropriate functional category.19

But while the diplomatic immunity of Scalzo might thus remain contentious, it was sufficiently
established that, indeed, he worked for the United States Drug Enforcement Agency and was tasked
to conduct surveillance of suspected drug activities within the country on the dates pertinent to this
case. If it should be ascertained that Arthur Scalzo was acting well within his assigned functions when
he committed the acts alleged in the complaint, the present controversy could then be resolved under
the related doctrine of State Immunity from Suit.

The precept that a State cannot be sued in the courts of a foreign state is a long-standing rule of
customary international law then closely identified with the personal immunity of a foreign sovereign
from suit20 and, with the emergence of democratic states, made to attach not just to the person of the
head of state, or his representative, but also distinctly to the state itself in its sovereign capacity.21 If the
acts giving rise to a suit are those of a foreign government done by its foreign agent, although not
necessarily a diplomatic personage, but acting in his official capacity, the complaint could be barred
by the immunity of the foreign sovereign from suit without its consent. Suing a representative of a state
is believed to be, in effect, suing the state itself. The proscription is not accorded for the benefit of an
individual but for the State, in whose service he is, under the maxim - par in parem, non habet imperium
- that all states are sovereign equals and cannot assert jurisdiction over one another.22 The implication,
in broad terms, is that if the judgment against an official would require the state itself to perform an
affirmative act to satisfy the award, such as the appropriation of the amount needed to pay the
damages decreed against him, the suit must be regarded as being against the state itself, although it
has not been formally impleaded.23

In United States of America vs. Guinto,24 involving officers of the United States Air Force and special
officers of the Air Force Office of Special Investigators charged with the duty of preventing the
distribution, possession and use of prohibited drugs, this Court has ruled -

"While the doctrine (of state immunity) appears to prohibit only suits against the state without its
consent, it is also applicable to complaints filed against officials of the state for acts allegedly
performed by them in the discharge of their duties. x x x. It cannot for a moment be imagined that they
were acting in their private or unofficial capacity when they apprehended and later testified against the
complainant. It follows that for discharging their duties as agents of the United States, they cannot be
directly impleaded for acts imputable to their principal, which has not given its consent to be sued. x x
x As they have acted on behalf of the government, and within the scope of their authority, it is that
government, and not the petitioners personally, [who were] responsible for their acts."25
This immunity principle, however, has its limitations. Thus, Shauf vs. Court of Appeals26 elaborates:

"It is a different matter where the public official is made to account in his capacity as such for acts
contrary to law and injurious to the rights of the plaintiff. As was clearly set forth by Justice Zaldivar in
Director of the Bureau of Telecommunications, et al., vs. Aligaen, et al. (33 SCRA 368): `Inasmuch as
the State authorizes only legal acts by its officers, unauthorized acts of government officials or officers
are not acts of the State, and an action against the officials or officers by one whose rights have been
invaded or violated by such acts, for the protection of his rights, is not a suit against the State within
the rule of immunity of the State from suit. In the same tenor, it has been said that an action at law or
suit in equity against a State officer or the director of a State department on the ground that, while
claiming to act for the State, he violates or invades the personal and property rights of the plaintiff,
under an unconstitutional act or under an assumption of authority which he does not have, is not a suit
against the State within the constitutional provision that the State may not be sued without its consent.
The rationale for this ruling is that the doctrine of state immunity cannot be used as an instrument for
perpetrating an injustice.

"x x x x x x x x x

"(T)he doctrine of immunity from suit will not apply and may not be invoked where the public official is
being sued in his private and personal capacity as an ordinary citizen. The cloak of protection afforded
the officers and agents of the government is removed the moment they are sued in their individual
capacity. This situation usually arises where the public official acts without authority or in excess of
the powers vested in him. It is a well-settled principle of law that a public official may be liable in his
personal private capacity for whatever damage he may have caused by his act done with malice and
in bad faith or beyond the scope of his authority and jurisdiction."27

A foreign agent, operating within a territory, can be cloaked with immunity from suit but only as long
as it can be established that he is acting within the directives of the sending state. The consent of the
host state is an indispensable requirement of basic courtesy between the two sovereigns. Guinto and
Shauf both involve officers and personnel of the United States, stationed within Philippine territory,
under the RP-US Military Bases Agreement. While evidence is wanting to show any similar agreement
between the governments of the Philippines and of the United States (for the latter to send its agents
and to conduct surveillance and related activities of suspected drug dealers in the Philippines), the
consent or imprimatur of the Philippine government to the activities of the United States Drug
Enforcement Agency, however, can be gleaned from the facts heretofore elsewhere mentioned. The
official exchanges of communication between agencies of the government of the two countries,
certifications from officials of both the Philippine Department of Foreign Affairs and the United States
Embassy, as well as the participation of members of the Philippine Narcotics Command in the "buy-
bust operation" conducted at the residence of Minucher at the behest of Scalzo, may be inadequate
to support the "diplomatic status" of the latter but they give enough indication that the Philippine
government has given its imprimatur, if not consent, to the activities within Philippine territory of agent
Scalzo of the United States Drug Enforcement Agency. The job description of Scalzo has tasked him
to conduct surveillance on suspected drug suppliers and, after having ascertained the target, to inform
local law enforcers who would then be expected to make the arrest. In conducting surveillance
activities on Minucher, later acting as the poseur-buyer during the buy-bust operation, and then
becoming a principal witness in the criminal case against Minucher, Scalzo hardly can be said to have
acted beyond the scope of his official function or duties.

All told, this Court is constrained to rule that respondent Arthur Scalzo, an agent of the United States
Drug Enforcement Agency allowed by the Philippine government to conduct activities in the country
to help contain the problem on the drug traffic, is entitled to the defense of state immunity from suit.
WHEREFORE, on the foregoing premises, the petition is DENIED. No costs.

SO ORDERED.

Liang v. People, G.R. No. 125865, 28 January 2000

G.R. No. 125865 January 28, 2000

JEFFREY LIANG (HUEFENG), petitioner,

vs.
PEOPLE OF THE PHILIPPINES, respondent.

YNARES-SANTIAGO, J.:

Petitioner is an economist working with the Asian Development Bank (ADB). Sometime in 1994, for
allegedly uttering defamatory words against fellow ADB worker Joyce Cabal, he was charged before
the Metropolitan Trial Court (MeTC) of Mandaluyong City with two counts of grave oral defamation
docketed as Criminal Cases Nos. 53170 and 53171. Petitioner was arrested by virtue of a warrant
issued by the MeTC. After fixing petitioner's bail at P2,400.00 per criminal charge, the MeTC released
him to the custody of the Security Officer of ADB. The next day, the MeTC judge received an "office
of protocol" from the Department of Foreign Affairs (DFA) stating that petitioner is covered by immunity
from legal process under Section 45 of the Agreement between the ADB and the Philippine
Government regarding the Headquarters of the ADB (hereinafter Agreement) in the country. Based
on the said protocol communication that petitioner is immune from suit, the MeTC judge without notice
to the prosecution dismissed the two criminal cases. The latter filed a motion for reconsideration which
was opposed by the DFA. When its motion was denied, the prosecution filed a petition
for certiorari and mandamus with the Regional Trial Court (RTC) of Pasig City which set aside the
MeTC rulings and ordered the latter court to enforce the warrant of arrest it earlier issued. After the
motion for reconsideration was denied, petitioner elevated the case to this Court viaa petition for
review arguing that he is covered by immunity under the Agreement and that no preliminary
investigation was held before the criminal cases were filed in court.1âw phi1.nêt

The petition is not impressed with merit.

First, courts cannot blindly adhere and take on its face the communication from the DFA that petitioner
is covered by any immunity. The DFA's determination that a certain person is covered by immunity is
only preliminary which has no binding effect in courts. In receiving ex-parte the DFA's advice and
in motu propio dismissing the two criminal cases without notice to the prosecution, the latter's right to
due process was violated. It should be noted that due process is a right of the accused as much as it
is of the prosecution. The needed inquiry in what capacity petitioner was acting at the time of the
alleged utterances requires for its resolution evidentiary basis that has yet to be presented at the
proper time.1 At any rate, it has been ruled that the mere invocation of the immunity clause does
not ipso facto result in the dropping of the charges.2

Second, under Section 45 of the Agreement which provides:

Officers and staff of the Bank including for the purpose of this Article experts and consultants
performing missions for the Bank shall enjoy the following privileges and immunities:

a.) immunity from legal process with respect to acts performed by them in their official
capacity except when the Bank waives the immunity.
the immunity mentioned therein is not absolute, but subject to the exception that the acts was done in
"official capacity." It is therefore necessary to determine if petitioner's case falls within the ambit of
Section 45(a). Thus, the prosecution should have been given the chance to rebut the DFA protocol
and it must be accorded the opportunity to present its controverting evidence, should it so desire.

Third, slandering a person could not possibly be covered by the immunity agreement because our
laws do not allow the commission of a crime, such as defamation, in the name of official duty.3 The
imputation of theft is ultra vires and cannot be part of official functions. It is well-settled principle of law
that a public official may be liable in his personal private capacity for whatever damage he may have
caused by his act done with malice or in bad faith or beyond the scope of his authority or jurisdiction.4 It
appears that even the government's chief legal counsel, the Solicitor General, does not support the
stand taken by petitioner and that of the DFA.

Fourth, under the Vienna Convention on Diplomatic Relations, a diplomatic agent, assuming petitioner
is such, enjoys immunity from criminal jurisdiction of the receiving state except in the case of an action
relating to any professional or commercial activity exercised by the diplomatic agent in the receiving
state outside his official functions.5 As already mentioned above, the commission of a crime is not part
of official duty.

Finally, on the contention that there was no preliminary investigation conducted, suffice it to say that
preliminary investigation is not a matter of right in cases cognizable by the MeTC such as the one at
bar.6 Being purely a statutory right, preliminary investigation may be invoked only when specifically
granted by law.7 The rule on the criminal procedure is clear that no preliminary investigation is required
in cases falling within the jurisdiction of the MeTC.8 Besides the absence of preliminary investigation
does not affect the court's jurisdiction nor does it impair the validity of the information or otherwise
render it defective.9

WHEREFORE, the petition is DENIED.

SO ORDERED. 1âw phi 1.nêt

People v. Tulin, G.R. No. 111709, 30 August 2001, 364 SCRA 10

G.R. No. 111709 August 30, 2001

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
ROGER P. TULIN, VIRGILIO I. LOYOLA, CECILIO O. CHANGCO, ANDRES C. INFANTE,
CHEONG SAN HIONG, and JOHN DOES, accused-appellants.

MELO, J.:

This is one of the older cases which unfortunately has remained in docket of the Court for sometime.
It was reassigned, together with other similar cases, to undersigned ponente in pursuance of A.M. No.
00-9-03-SC dated February 27, 2001.

In the evening of March 2, 1991, "M/T Tabangao," a cargo vessel owned by the PNOC Shipping and
Transport Corporation, loaded with 2,000 barrels of kerosene, 2,600 barrels of regular gasoline, and
40,000 barrels of diesel oil, with a total value of P40,426,793,87, was sailing off the coast of Mindoro
near Silonay Island.

The vessel, manned by 21 crew members, including Captain Edilberto Libo-on, Second Mate Christian
Torralba, and Operator Isaias Ervas, was suddenly boarded, with the use of an aluminum ladder, by
seven fully armed pirates led by Emilio Changco, older brother of accused-appellant Cecilio Changco.
The pirates, including accused-appellants Tulin, Loyola, and Infante, Jr. were armed with M-16 rifles,
.45 and .38 caliber handguns, and bolos. They detained the crew and took complete control of the
vessel. Thereafter, accused-appellant Loyola ordered three crew members to paint over, using black
paint, the name "M/T Tabangao" on the front and rear portions of the vessel, as well as the PNOC
logo on the chimney of the vessel. The vessel was then painted with the name "Galilee," with registry
at San Lorenzo, Honduras. The crew was forced to sail to Singapore, all the while sending misleading
radio messages to PNOC that the ship was undergoing repairs.

PNOC, after losing radio contact with the vessel, reported the disappearance of the vessel to the
Philippine Coast Guard and secured the assistance of the Philippine Air Force and the Philippine Navy.
However, search and rescue operations yielded negative results. On March 9, 1991, the ship arrived
in the vicinity of Singapore and cruised around the area presumably to await another vessel which,
however, failed to arrive. The pirates were thus forced to return to the Philippines on March 14, 1991,
arriving at Calatagan, Batangas on March 20, 1991 where it remained at sea.

On March 28, 1991, the "M/T Tabangao" again sailed to and anchored about 10 to 18 nautical miles
from Singapore's shoreline where another vessel called "Navi Pride" anchored beside it. Emilio
Changco ordered the crew of "M/T Tabangao" to transfer the vessel's cargo to the hold of "Navi Pride".
Accused-appellant Cheong San Hiong supervised the crew of "Navi Pride" in receiving the cargo. The
transfer, after an interruption, with both vessels leaving the area, was completed on March 30, 1991.

On March 30, 1991, "M/T Tabangao" returned to the same area and completed the transfer of cargo
to "Navi Pride."

On April 8, 1991, "M/T Tabangao" arrived at Calatagan, Batangas, but the vessel remained at sea. On
April 10, 1991, the members of the crew were released in three batches with the stern warning not to
report the incident to government authorities for a period of two days or until April 12, 1991, otherwise
they would be killed. The first batch was fetched from the shoreline by a newly painted passenger jeep
driven by accused-appellant Cecilio Changco, brother of Emilio Changco, who brought them to Imus,
Cavite and gave P20,000.00 to Captain Libo-on for fare of the crew in proceeding to their respective
homes. The second batch was fetched by accused-appellant Changco at midnight of April 10, 1991
and were brought to different places in Metro Manila.

On April 12, 1991, the Chief Engineer, accompanied by the members of the crew, called the PNOC
Shipping and Transport Corporation office to report the incident. The crew members were brought to
the Coast Guard Office for investigation. The incident was also reported to the National Bureau of
Investigation where the officers and members of the crew executed sworn statements regarding the
incident.

A series of arrests was thereafter effected as follows:

a. On May 19, 1991, the NBI received verified information that the pirates were present at U.K. Beach,
Balibago, Calatagan, Batangas. After three days of surveillance, accused-appellant Tulin was arrested
and brought to the NBI headquarters in Manila.

b. Accused-appellants Infante, Jr. and Loyola were arrested by chance at Aguinaldo Hi-way by NBI
agents as the latter were pursuing the mastermind, who managed to evade arrest.

c. On May 20, 1991, accused-appellants Hiong and Changco were arrested at the lobby of Alpha Hotel
in Batangas City.

On October 24, 1991, an Information charging qualified piracy or violation of Presidential Decree No.
532 (Piracy in Philippine Waters) was filed against accused-appellants, as follows:

The undersigned State Prosecutor accuses ROGER P. TULIN, VIRGILIO I. LOYOLA,

CECILIO O. CHANGCO, ANDRES C. INFANTE, and CHEONG SAN HIONG, and nine (9)
other JOHN DOES of qualified piracy (Violation of P.D. No. 532), committed as follows:

That on or about and during the period from March 2 to April 10, 1991, both dates
inclusive, and for sometime prior and subsequent thereto, and within the jurisdiction of
this Honorable Court, the said accused, then manning a motor launch and armed with
high powered guns, conspiring and confederating together and mutually helping one
another, did then and there, wilfully, unlawfully and feloniously fire upon, board and
seize while in the Philippine waters M/T PNOC TABANGCO loaded with petroleum
products, together with the complement and crew members, employing violence
against or intimidation of persons or force upon things, then direct the vessel to
proceed to Singapore where the cargoes were unloaded and thereafter returned to the
Philippines on April 10, 1991, in violation of the aforesaid law.

CONTRARY TO LAW.

(pp. 119-20, Rollo.)

This was docketed as Criminal Case No. 91-94896 before Branch 49 of the Regional Trial Court of
the National Capital Judicial Region stationed in Manila. Upon arraignment, accused-appellants
pleaded not guilty to the charge. Trial thereupon ensued.

Accused-appellants Tulin, Infante, Jr., and Loyola, notwithstanding some inconsistencies in their
testimony as to where they were on March 1, 1991, maintained the defense of denial, and disputed
the charge, as well as the transfer of any cargo from "M/T Tabangao" to the "Navi Pride." All of them
claimed having their own respective sources of livelihood. Their story is to the effect that on March 2,
1991, while they were conversing by the beach, a red speedboat with Captain Edilberto Liboon and
Second Mate Christian Torralba on board, approached the seashore. Captain Liboon inquired from
the three if they wanted to work in a vessel. They were told that the work was light and that each
worker was to be paid P3,000.00 a month with additional compensation if they worked beyond that
period. They agreed even though they had no sea-going experience. On board, they cooked, cleaned
the vessel, prepared coffee, and ran errands for the officers. They denied having gone to Singapore,
claiming that the vessel only went to Batangas. Upon arrival thereat in the morning of March 21, 1991,
they were paid P1,000.00 each as salary for nineteen days of work, and were told that the balance
would be remitted to their addresses. There was neither receipt nor contracts of employment signed
by the parties.

Accused-appellant Changco categorically denied the charge, averring that he was at home sleeping
on April 10, 1991. He testified that he is the younger brother of Emilio Changco, Jr.

Accused-appellant Cheong San Hiong, also known as Ramzan Ali, adduced evidence that he studied
in Sydney, Australia, obtaining the "Certificate" as Chief Officer, and later completed the course as a
"Master" of a vessel, working as such for two years on board a vessel. He was employed at Navi
Marine Services, Pte., Ltd. as Port Captain. The company was engaged in the business of trading
petroleum, including shipoil, bunker lube oil, and petroleum to domestic and international markets. It
owned four vessels, one of which was "Navi Pride."

On March 2, 1991, the day before "M/T Tabangao" was seized by Emilio Changco and his cohorts,
Hiong's name was listed in the company's letter to the Mercantile Section of the Maritime Department
of the Singapore government as the radio telephone operator on board the vessel "Ching Ma."

The company was then dealing for the first time with Paul Gan, a Singaporean broker, who offered to
sell to the former bunker oil for the amount of 300,000.00 Singapore dollars. After the company paid
over one-half of the aforesaid amount to Paul Gan, the latter, together with Joseph Ng, Operations
Superintendent of the firm, proceeded to the high seas on board "Navi Pride" but failed to locate the
contact vessel.

The transaction with Paul Gan finally pushed through on March 27, 1991. Hiong, upon his return on
board the vessel "Ching Ma," was assigned to supervise a ship-to-ship transfer of diesel oil off the port
of Singapore, the contact vessel to be designated by Paul Gan. Hiong was ordered to ascertain the
quantity and quality of the oil and was given the amount of 300,000.00 Singapore Dollars for the
purchase. Hiong, together with Paul Gan, and the surveyor William Yao, on board "Navi Pride" sailed
toward a vessel called "M/T Galilee". Hiong was told that "M/T Galilee" would be making the transfer.
Although no inspection of "Navi Pride" was made by the port authorities before departure, Navi Marine
Services, Pte., Ltd. was able to procure a port clearance upon submission of General Declaration and
crew list. Hiong, Paul Gan, and the brokers were not in the crew list submitted and did not pass through
the immigration. The General Declaration falsely reflected that the vessel carried 11,900 tons.

On March 28, 1991, "Navi Pride" reached the location of "M/T Galilee". The brokers then told the
Captain of the vessel to ship-side with "M/T Galilee" and then transfer of the oil transpired. Hiong and
the surveyor William Yao met the Captain of "M/T Galilee," called "Captain Bobby" (who later turned
out to be Emilio Changco). Hiong claimed that he did not ask for the full name of Changco nor did he
ask for the latter's personal card.

Upon completion of the transfer, Hiong took the soundings of the tanks in the "Navi Pride" and took
samples of the cargo. The surveyor prepared the survey report which "Captain Bobby" signed under
the name "Roberto Castillo." Hiong then handed the payment to Paul Gan and William Yao. Upon
arrival at Singapore in the morning of March 29, 1991, Hiong reported the quantity and quality of the
cargo to the company.

Thereafter, Hiong was again asked to supervise another transfer of oil purchased by the firm " from
"M/T Galilee" to "Navi Pride." The same procedure as in the first transfer was observed. This time,
Hiong was told that that there were food and drinks, including beer, purchased by the company for the
crew of "M/T Galilee. The transfer took ten hours and was completed on March 30, 1991. Paul Gan
was paid in full for the transfer.

On April 29 or 30, 1991, Emilio Changco intimated to Hiong that he had four vessels and wanted to
offer its cargo to cargo operators. Hiong was asked to act as a broker or ship agent for the sale of the
cargo in Singapore. Hiong went to the Philippines to discuss the matter with Emilio Changco, who laid
out the details of the new transfer, this time with "M/T Polaris" as contact vessel. Hiong was told that
the vessel was scheduled to arrive at the port of Batangas that weekend. After being billeted at Alpha
Hotel in Batangas City, where Hiong checked in under the name "SONNY CSH." A person by the
name of "KEVIN OCAMPO," who later turned out to be Emilio Changco himself, also checked in at
Alpha Hotel. From accused-appellant Cecilio Changco, Hiong found out that the vessel was not
arriving. Hiong was thereafter arrested by NBI agents.

After trial, a 95-page decision was rendered convicting accused-appellants of the crime charged. The
dispositive portion of said decision reads:

WHEREFORE, in the light of the foregoing considerations, judgment is hereby rendered by

this Court finding the accused Roger Tulin, Virgilio Loyola, Andres Infante, Jr. and Cecilio
Changco guilty beyond reasonable doubt, as principals, of the crime of piracy in Philippine
Waters defined in Section 2(d) of Presidential Decree No. 532 and the accused Cheong San
Hiong, as accomplice, to said crime. Under Section 3(a) of the said law, the penalty for the
principals of said crime is mandatory death. However, considering that, under the 1987
Constitution, the Court cannot impose the death penalty, the accused Roger Tulin, Virgilio
Loyola, Andres Infante, Jr., and Cecilio Changco are hereby each meted the penalty of
RECLUSION PERPETUA, with all the accessory penalties of the law. The accused Cheong
San Hiong is hereby meted the penalty of RECLUSION PERPETUA, pursuant to Article 52 of
the Revised Penal Code in relation to Section 5 of PD 532. The accused Roger Tulin, Virgilio
Loyola, Andres Infante, Jr. and Cecilio Changco are hereby ordered to return to the PNOC
Shipping and Transport Corporation the "M/T Tabangao" or if the accused can no longer return
the same, the said accused are hereby ordered to remit, jointly and severally, to said
corporation the value thereof in the amount of P11,240,000.00, Philippine Currency, with
interests thereon, at the rate of 6% per annum from March 2, 1991 until the said amount is
paid in full. All the accused including Cheong San Hiong are hereby ordered to return to the
Caltex Philippines, Inc. the cargo of the "M/T Tabangao", or if the accused can no longer return
the said cargo to said corporation, all the accused are hereby condemned to pay, jointly and
severally, to the Caltex Refinery, Inc., the value of said cargo in the amount of P40,426,793.87,
Philippine Currency plus interests until said amount is paid in full. After the accused Cheong
San Hiong has served his sentence, he shall be deported to Singapore.

All the accused shall be credited for the full period of their detention at the National Bureau of
Investigation and the City Jail of Manila during the pendency of this case provided that they
agreed in writing to abide by and comply strictly with the rules and regulations of the City Jail
of Manila and the National Bureau of Investigation. With costs against all the accused.

SO ORDERED.
 (pp. 149-150, Rollo.)

The matter was then elevated to this Court. The arguments of accused-appellants may be summarized
as follows:

Roger P. Tulin, Virgilio I. Loyola, Andres C. Infante, Jr., and Cecilio O. Changco

Accused-appellants Tulin, Loyola, Infante, Jr., and Cecilio Changco assert that the trial court erred in
allowing them to adopt the proceedings taken during the time they were being represented by Mr.
Tomas Posadas, a non-lawyer, thereby depriving them of their constitutional right to procedural due
process.

In this regard, said accused-appellants narrate that Mr. Posadas entered his appearance as counsel
for all of them. However, in the course of the proceedings, or on February 11, 1992, the trial court
discovered that Mr. Posadas was not a member of the Philippine Bar. This was after Mr. Posadas had
presented and examined seven witnesses for the accused.

Further, accused-appellants Tulin, Loyola, Infante, Cecilio, Changco uniformly contend that during the
custodial investigation, they were subjected to physical violence; were forced to sign statements
without being given the opportunity to read the contents of the same; were denied assistance of
counsel, and were not informed of their rights, in violation of their constitutional rights.

Said accused-appellants also argue that the trial court erred in finding that the prosecution proved
beyond reasonable doubt that they committed the crime of qualified piracy. They allege that the pirates
were outnumbered by the crew who totaled 22 and who were not guarded at all times. The crew, so
these accused-appellants conclude, could have overpowered the alleged pirates.

Cheong San Hiong

In his brief, Cheong argues that: (1) Republic Act No. 7659 in effect obliterated the crime committed
by him; (2) the trial court erred in declaring that the burden is lodged on him to prove by clear and
convincing evidence that he had no knowledge that Emilio Changco and his cohorts attacked and
seized the "M/T Tabangao" and/or that the cargo of the vessel was stolen or the subject of theft or
robbery or piracy; (3) the trial court erred in finding him guilty as an accomplice to the crime of qualified
piracy under Section 4 of Presidential Decree No. 532 (Anti-Piracy and Anti-Robbery Law of 1974);
(4) the trial court erred in convicting and punishing him as an accomplice when the acts allegedly
committed by him were done or executed outside of Philippine waters and territory, stripping the
Philippine courts of jurisdiction to hold him for trial, to convict, and sentence; (5) the trial court erred in
making factual conclusions without evidence on record to prove the same and which in fact are
contrary to the evidence adduced during trial; (6) the trial court erred in convicting him as an
accomplice under Section 4 of Presidential Decree No. 532 when he was charged as a principal by
direct participation under said decree, thus violating his constitutional right to be informed of the nature
and cause of the accusation against him.

Cheong also posits that the evidence against the other accused-appellants do not prove any
participation on his part in the commission of the crime of qualified piracy. He further argues that he
had not in any way participated in the seajacking of "M/T Tabangao" and in committing the crime of
qualified piracy, and that he was not aware that the vessel and its cargo were pirated.

As legal basis for his appeal, he explains that he was charged under the information with qualified
piracy as principal under Section 2 of Presidential Decree No. 532 which refers to Philippine waters.
In the case at bar, he argues that he was convicted for acts done outside Philippine waters or territory.
For the State to have criminal jurisdiction, the act must have been committed within its territory.

We affirm the conviction of all the accused-appellants.

The issues of the instant case may be summarized as follows: (1) what are the legal effects and
implications of the fact that a non-lawyer represented accused-appellants during the trial?; (2) what
are the legal effects and implications of the absence of counsel during the custodial investigation?; (3)
did the trial court err in finding that the prosecution was able to prove beyond reasonable doubt that
accused-appellants committed the crime of qualified piracy?; (4) did Republic Act No. 7659 obliterate
the crime committed by accused-appellant Cheong?; and (5) can accused-appellant Cheong be
convicted as accomplice when he was not charged as such and when the acts allegedly committed
by him were done or executed outside Philippine waters and territory?

On the first issue, the record reveals that a manifestation (Exhibit "20", Record) was executed by
accused-appellants Tulin, Loyola, Changco, and Infante, Jr. on February 11, 1991, stating that they
were adopting the evidence adduced when they were represented by a non-lawyer. Such waiver of
the right to sufficient representation during the trial as covered by the due process clause shall only
be valid if made with the full assistance of a bona fide lawyer. During the trial, accused-appellants, as
represented by Atty. Abdul Basar, made a categorical manifestation that said accused-appellants were
apprised of the nature and legal consequences of the subject manifestation, and that they voluntarily
and intelligently executed the same. They also affirmed the truthfulness of its contents when asked in
open court (tsn, February 11, 1992, pp. 7-59).

It is true that an accused person shall be entitled to be present and to defend himself in person and
by counsel at every stage of the proceedings, from arraignment to promulgation of judgment (Section
1, Rule 115, Revised Rules of Criminal Procedure). This is hinged on the fact that a layman is not
versed on the technicalities of trial. However, it is also provided by law that "[r]ights may be waived,
unless the waiver is contrary to law, public order, public policy, morals, or good customs or prejudicial
to a third person with right recognized by law." (Article 6, Civil Code of the Philippines). Thus, the same
section of Rule 115 adds that "[u]pon motion, the accused may be allowed to defend himself in person
when it sufficiently appears to the court that he can properly protect his rights without the assistance
of counsel." By analogy, but without prejudice to the sanctions imposed by law for the illegal practice
of law, it is amply shown that the rights of accused-appellants were sufficiently and properly protected
by the appearance of Mr. Tomas Posadas. An examination of the record will show that he knew the
technical rules of procedure. Hence, we rule that there was a valid waiver of the right to sufficient
representation during the trial, considering that it was unequivocally, knowingly, and intelligently made
and with the full assistance of a bona fidelawyer, Atty. Abdul Basar. Accordingly, denial of due process
cannot be successfully invoked where a valid waiver of rights has been made (People vs. Serzo, 274
SCRA 553 [1997]; Sayson vs. People, 166 SCRA 680 [1988]).

However, we must quickly add that the right to counsel during custodial investigation may not be
waived except in writing and in the presence of counsel.

Section 12, Article III of the Constitution reads:

SECTION 12. (1) Any person under investigation for the commission of an offense shall have
the right to be informed of his right to remain silent and to have competent and independent
counsel preferably of his own choice. If the person cannot afford the services of counsel, he
must be provided with one. These rights cannot be waived except in writing and in the
presence of counsel.
 (2) No torture, force, violence, threat, intimidation, or any other means which vitiate the free
will shall be used against him. Secret detention places, solitary, incommunicado, or other
similar forms of detention are prohibited.

(3) Any confession or admission obtained in violation of this or Section 17 hereof shall be
inadmissible in evidence against him.

(4) The law shall provide for penal and civil sanctions for violations of this section as well as
compensation to and rehabilitation of victims of torture or similar practices, and their families.

Such rights originated from Miranda v. Arizona (384 U.S. 436 [1966]) which gave birth to the so-called
Miranda doctrine which is to the effect that prior to any questioning during custodial investigation, the
person must be warned that he has a right to remain silent, that any statement he gives may be used
as evidence against him, and that he has the right to the presence of an attorney, either retained or
appointed. The defendant may waive effectuation of these rights, provided the waiver is made
voluntarily, knowingly, and intelligently. The Constitution even adds the more stringent requirement
that the waiver must be in writing and made in the presence of counsel.

Saliently, the absence of counsel during the execution of the so-called confessions of the accused-
appellants make them invalid. In fact, the very basic reading of the Miranda rights was not even shown
in the case at bar. Paragraph [3] of the aforestated Section 12 sets forth the so-called "fruit from the
poisonous tree doctrine," a phrase minted by Mr. Justice Felix Frankfurter in the celebrated case
of Nardone vs. United States (308 U.S. 388 [1939]). According to this rule, once the primary source
(the "tree") is shown to have been unlawfully obtained, any secondary or derivative evidence (the
"fruit") derived from it is also inadmissible. The rule is based on the principle that evidence illegally
obtained by the State should not be used to gain other evidence because the originally illegally
obtained evidence taints all evidence subsequently obtained (People vs. Alicando, 251 SCRA 293
[1995]). Thus, in this case, the uncounselled extrajudicial confessions of accused-appellants, without
a valid waiver of the right to counsel, are inadmissible and whatever information is derived therefrom
shall be regarded as likewise inadmissible in evidence against them.

However, regardless of the inadmissibility of the subject confessions, there is sufficient evidence to
convict accused-appellants with moral certainty. We agree with the sound deduction of the trial court
that indeed, Emilio Changco (Exhibits "U" and "UU") and accused-appellants Tulin, Loyola, and
Infante, Jr. did conspire and confederate to commit the crime charged. In the words of then trial judge,
now Justice Romeo J. Callejo of the Court of Appeals —

. . . The Prosecution presented to the Court an array of witnesses, officers and members of
the crew of the "M/T Tabangao" no less, who identified and pointed to the said Accused as
among those who attacked and seized, the "M/T Tabangao" on March 2, 1991, at about 6:30
o'clock in the afternoon, off Lubang Island, Mindoro, with its cargo, and brought the said vessel,
with its cargo, and the officers and crew of the vessel, in the vicinity of Horsebough Lighthouse,
about sixty-six nautical miles off the shoreline of Singapore and sold its cargo to the Accused
Cheong San Hiong upon which the cargo was discharged from the "M/T Tabangao" to the
"Navi Pride" for the price of about $500,000.00 (American Dollars) on March 29, and 30, 1991.
..

xxx xxx xxx

The Master, the officers and members of the crew of the "M/T Tabangao" were on board the
vessel with the Accused and their cohorts from March 2, 1991 up to April 10, 1991 or for more
than one (1) month. There can be no scintilla of doubt in the mind of the Court that the officers
 and crew of the vessel could and did see and identify the seajackers and their leader. In fact,
immediately after the Accused were taken into custody by the operatives of the National
Bureau of Investigation, Benjamin Suyo, Norberto Senosa, Christian Torralba and Isaias
Wervas executed their "Joint Affidavit" (Exhibit "B") and pointed to and identified the said
Accused as some of the pirates.

xxx xxx xxx

Indeed, when they testified before this Court on their defense, the three (3) Accused admitted
to the Court that they, in fact, boarded the said vessel in the evening of March 2, 1991 and
remained on board when the vessel sailed to its destination, which turned out to be off the port
of Singapore.

(pp. 106-112, Rollo.)

We also agree with the trial court's finding that accused-appellants' defense of denial is not supported
by any hard evidence but their bare testimony. Greater weight is given to the categorical identification
of the accused by the prosecution witnesses than to the accused's plain denial of participation in the
commission of the crime (People v. Baccay, 284 SCRA 296 [1998]). Instead, accused-appellants Tulin,
Loyola, and Infante, Jr. narrated a patently desperate tale that they were hired by three complete
strangers (allegedly Captain Edilberto Liboon, Second Mate Christian Torralba, and their companion)
while said accused-appellants were conversing with one another along the seashore at Aplaya,
Balibago, Calatagan, Batangas, to work on board the "M/T Tabangao" which was then anchored off-
shore. And readily, said accused-appellants agreed to work as cooks and handymen for an indefinite
period of time without even saying goodbye to their families, without even knowing their destination or
the details of their voyage, without the personal effects needed for a long voyage at sea. Such
evidence is incredible and clearly not in accord with human experience. As pointed out by the trial
court, it is incredible that Captain Liboon, Second Mate Torralba, and their companion "had to leave
the vessel at 9:30 o'clock in the evening and venture in a completely unfamiliar place merely to recruit
five (5) cooks or handymen (p. 113, Rollo)."

Anent accused-appellant Changco's defense of denial with the alibi that on May 14 and 17, he was at
his place of work and that on April 10, 1991, he was in his house in Bacoor, Cavite, sleeping, suffice
it to state that alibi is fundamentally and inherently a weak defense, much more so when
uncorroborated by other witnesses (People v. Adora, 275 SCRA 441 [1997]) considering that it is easy
to fabricate and concoct, and difficult to disprove. Accused-appellant must adduce clear and
convincing evidence that, at about midnight on April 10, 1991, it was physically impossible for him to
have been in Calatagan, Batangas. Changco not only failed to do this, he was likewise unable to prove
that he was in his place of work on the dates aforestated.

It is doctrinal that the trial court's evaluation of the credibility of a testimony is accorded the highest
respect, for trial courts have an untrammeled opportunity to observe directly the demeanor of
witnesses and, thus, to determine whether a certain witness is telling the truth (People v. Obello, 284
SCRA 79 [1998]).

We likewise uphold the trial court's finding of conspiracy. A conspiracy exists when two or more
persons come to an agreement concerning the commission of a felony and decide to commit it (Article
8, Revised Penal Code). To be a conspirator, one need not participate in every detail of execution; he
need not even take part in every act or need not even know the exact part to be performed by the
others in the execution of the conspiracy. As noted by the trial court, there are times when conspirators
are assigned separate and different tasks which may appear unrelated to one another, but in fact,
constitute a whole and collective effort to achieve a common criminal design.

We affirm the trial court's finding that Emilio Changco, accused-appellants Tulin, Loyola, and Infante,
Jr. and others, were the ones assigned to attack and seize the "M/T Tabangao" off Lubang, Mindoro,
while accused-appellant Cecilio Changco was to fetch the master and the members of the crew from
the shoreline of Calatagan, Batangas after the transfer, and bring them to Imus, Cavite, and to provide
the crew and the officers of the vessel with money for their fare and food provisions on their way home.
These acts had to be well-coordinated. Accused-appellant Cecilio Changco need not be present at
the time of the attack and seizure of "M/T Tabangao" since he performed his task in view of an
objective common to all other accused-appellants.

Of notable importance is the connection of accused-appellants to one another. Accused-appellant

Cecilio Changco is the younger brother of Emilio Changco (aka Captain Bobby/Captain Roberto
Castillo/Kevin Ocampo), owner of Phil-Asia Shipping Lines. Cecilio worked for his brother in said
corporation. Their residences are approximately six or seven kilometers away from each other. Their
families are close. Accused-appellant Tulin, on the other hand, has known Cecilio since their parents
were neighbors in Aplaya, Balibago, Calatagan, Batangas. Accused-appellant Loyola's wife is a
relative of the Changco brothers by affinity. Besides, Loyola and Emilio Changco had both been
accused in a seajacking case regarding "M/T Isla Luzon" and its cargo of steel coils and plates off
Cebu and Bohol in 1989. Emilio Changco (aka Kevin Ocampo) was convicted of the crime while Loyola
at that time remained at large.

As for accused-appellant Hiong, he ratiocinates that he can no longer be convicted of piracy in

Philippine waters as defined and penalized in Sections 2[d] and 3[a], respectively of Presidential
Decree No. 532 because Republic Act No. 7659 (effective January 1, 1994), which amended Article
122 of the Revised Penal Code, has impliedly superseded Presidential Decree No. 532. He reasons
out that Presidential Decree No. 532 has been rendered "superfluous or duplicitous" because both
Article 122 of the Revised Penal Code, as amended, and Presidential Decree No. 532 punish piracy
committed in Philippine waters. He maintains that in order to reconcile the two laws, the word "any
person" mentioned in Section 1 [d] of Presidential Decree No. 532 must be omitted such that
Presidential Decree No. 532 shall only apply to offenders who are members of the complement or to
passengers of the vessel, whereas Republic Act No. 7659 shall apply to offenders who are neither
members of the complement or passengers of the vessel, hence, excluding him from the coverage of
the law.

Article 122 of the Revised Penal Code, used to provide:

ARTICLE 122. Piracy in general and mutiny on the high seas. — The penalty of reclusion
temporal shall be inflicted upon any person who, on the high seas, shall attack or seize a
vessel or, not being a member of its complement nor a passenger, shall seize the whole or
part of the cargo of said vessel, its equipment, or personal belongings of its complement or
passengers.

(Italics supplied.)

Article 122, as amended by Republic Act No. 7659 (January 1, 1994), reads:

ARTICLE 122. Piracy in general and mutiny on the high seas or in Philippine waters. — The
penalty of reclusion perpetua shall be inflicted upon any person who, on the high seas, or in
Philippine waters, shall attack or seize a vessel or, not being a member of its complement nor
 a passenger, shall seize the whole or part of the cargo of said vessel, its equipment, or
personal belongings of its complement or passengers.

(Italics ours)

On the other hand, Section 2 of Presidential Decree No. 532 provides:

SECTION 2. Definition of Terms. — The following shall mean and be understood, as follows:

d. Piracy. — Any attack upon or seizure of any vessel or the taking away of the whole or part
thereof or its cargo, equipment, or the personal belongings of its complement or passengers,
irrespective of the value thereof, by means of violence against or intimidation of persons or
force upon things, committed by any person, including a passenger or member of the
complement of said vessel in Philippine waters, shall be considered as piracy. The offenders
shall be considered as pirates and punished as hereinafter provided (Italics supplied).

To summarize, Article 122 of the Revised Penal Code, before its amendment, provided that piracy
must be committed on the high seas by any person not a member of its complement nor a passenger
thereof. Upon its amendment by Republic Act No. 7659, the coverage of the pertinent provision was
widened to include offenses committed "in Philippine waters." On the other hand, under Presidential
Decree No. 532 (issued in 1974), the coverage of the law on piracy embraces any person including "a
passenger or member of the complement of said vessel in Philippine waters." Hence, passenger or
not, a member of the complement or not, any person is covered by the law.

Republic Act No. 7659 neither superseded nor amended the provisions on piracy under Presidential
Decree No. 532. There is no contradiction between the two laws. There is likewise no ambiguity and
hence, there is no need to construe or interpret the law. All the presidential decree did was to widen
the coverage of the law, in keeping with the intent to protect the citizenry as well as neighboring states
from crimes against the law of nations. As expressed in one of the "whereas" clauses of Presidential
Decree No. 532, piracy is "among the highest forms of lawlessness condemned by the penal statutes
of all countries." For this reason, piracy under the Article 122, as amended, and piracy under
Presidential Decree No. 532 exist harmoniously as separate laws.

As regards the contention that the trial court did not acquire jurisdiction over the person of accused-
appellant Hiong since the crime was committed outside Philippine waters, suffice it to state that
unquestionably, the attack on and seizure of "M/T Tabangao" (renamed "M/T Galilee" by the pirates)
and its cargo were committed in Philippine waters, although the captive vessel was later brought by
the pirates to Singapore where its cargo was off-loaded, transferred, and sold. And such transfer was
done under accused-appellant Hiong's direct supervision. Although Presidential Decree No. 532
requires that the attack and seizure of the vessel and its cargo be committed in Philippine waters, the
disposition by the pirates of the vessel and its cargo is still deemed part of the act of piracy, hence,
the same need not be committed in Philippine waters.

Moreover, piracy falls under Title One of Book Two of the Revised Penal Code. As such, it is an
exception to the rule on territoriality in criminal law. The same principle applies even if Hiong, in the
instant case, were charged, not with a violation of qualified piracy under the penal code but under a
special law, Presidential Decree No. 532 which penalizes piracy in Philippine waters. Verily,
Presidential Decree No. 532 should be applied with more force here since its purpose is precisely to
discourage and prevent piracy in Philippine waters (People v. Catantan, 278 SCRA 761 [1997]). It is
likewise, well-settled that regardless of the law penalizing the same, piracy is a reprehensible crime
against the whole world (People v. Lol-lo, 43 Phil. 19 [1922]).
However, does this constitute a violation of accused-appellant's constitutional right to be informed of
the nature and cause of the accusation against him on the ground that he was convicted as an
accomplice under Section 4 of Presidential Decree No. 532 even though he was charged as a principal
by direct participation under Section 2 of said law?

The trial court found that there was insufficiency of evidence showing:

(a) that accused-appellant Hiong directly participated in the attack and seizure of "M/T Tabangao" and
its cargo; (b) that he induced Emilio Changco and his group in the attack and seizure of "M/T
Tabangao" and its cargo; (c) and that his act was indispensable in the attack on and seizure of "M/T
Tabangao" and its cargo. Nevertheless, the trial court found that accused-appellant Hiong's
participation was indisputably one which aided or abetted Emilio Changco and his band of pirates in
the disposition of the stolen cargo under Section 4 of Presidential Decree No. 532 which provides:

SECTION 4. Aiding pirates or highway robbers/brigands or abetting piracy or highway robbery

brigandage. — Any person who knowingly and in any manner aids or protects pirates or
highway robbers/brigands, such as giving them information about the movement of police or
other peace officers of the government, or acquires or receives property taken by such pirates
or brigands or in any manner derives any benefit therefrom; or any person who directly or
indirectly abets the commission of piracy or highway robbery or brigandage, shall be
considered as an accomplice of the principal officers and be punished in accordance with
Rules prescribed by the Revised Penal Code.

It shall be presumed that any person who does any of the acts provided in this Section has
performed them knowingly, unless the contrary is proven.

The ruling of the trial court is within well-settled jurisprudence that if there is lack of complete evidence
of conspiracy, the liability is that of an accomplice and not as principal (People v. Tolentino, 40 SCRA
514 [1971]). Any doubt as to the participation of an individual in the commission of the crime is always
resolved in favor of lesser responsibility (People v. Corbes, 270 SCRA 465 [1997]; People vs. Elfano,
Jr., 125 SCRA 792 [1983]; People v. Pastores, 40 SCRA 498 [1971]).

Emphasis must also be placed on the last paragraph of Section 4 of Presidential Decree No. 532
which presumes that any person who does any of the acts provided in said section has performed
them knowingly, unless the contrary is proven. In the case at bar, accused-appellant Hiong had failed
to overcome the legal presumption that he knowingly abetted or aided in the commission of piracy,
received property taken by such pirates and derived benefit therefrom.

The record discloses that accused-appellant Hiong aided the pirates in disposing of the stolen cargo
by personally directing its transfer from "M/T Galilee" to "M/T Navi Pride". He profited therefrom by
buying the hijacked cargo for Navi Marine Services, Pte., Ltd. (tsn, June 3, 1992, pp. 15-23). He even
tested the quality and verified the quantity of the petroleum products, connived with Navi Marine
Services personnel in falsifying the General Declarations and Crew List to ensure that the illegal
transfer went through, undetected by Singapore Port Authorities, and supplied, the pirates with food,
beer, and other provisions for their maintenance while in port (tsn, June 3, 1992, pp. 133-134).

We believe that the falsification of the General Declaration (Arrival and Departure) and Crew List was
accomplished and utilized by accused-appellant Hiong and Navi Marine Services personnel in the
execution of their scheme to avert detection by Singapore Port Authorities. Hence, had accused-
appellant Hiong not falsified said entries, the Singapore Port Authorities could have easily discovered
the illegal activities that took place and this would have resulted in his arrest and prosecution in
Singapore. Moreover, the transfer of the stolen cargo from "M/T Galilee" to "Navi Pride" could not have
been effected.

We completely uphold the factual findings of the trial court showing in detail accused-appellant Hiong's
role in the disposition of the pirated goods summarized as follows: that on March 27, 1991, Hiong with
Captain Biddy Santos boarded the "Navi Pride," one of the vessels of the Navi Marine, to rendezvous
with the "M/T Galilee"; that the firm submitted the crew list of the vessel (Exhibit "8-CSH", Record) to
the port authorities, excluding the name of Hiong; that the "General Declaration" (for departure) of the
"Navi Pride" for its voyage off port of Singapore (Exhibits "HH" and "8-A CSH", Record) falsely stated
that the vessel was scheduled to depart at 2200 (10 o'clock in the evening), that there were no
passengers on board, and the purpose of the voyage was for "cargo operation" and that the vessel
was to unload and transfer 1,900 tons of cargo; that after the transfer of the fuel from "M/T Galilee"
with Emilio Changco a. k. a. Captain Bobby a. k. a. Roberto Castillo at the helm, the surveyor prepared
the "Quantity Certificate" (Exhibit "11-C CSH, Record) stating that the cargo transferred to the "Navi
Pride" was 2,406 gross cubic meters; that although Hiong was not the Master of the vessel, he affixed
his signature on the "Certificate" above the word "Master" (Exhibit "11-C-2 CSH", Record); that he
then paid P150,000.00 but did not require any receipt for the amount; that Emilio Changco also did
not issue one; and that in the requisite "General Declaration" upon its arrival at Singapore on March
29, 1991, at 7 o'clock in the evening, (Exhibits "JJ" and "13-A CSH", Record), it was made to falsely
appear that the "Navi Pride" unloaded 1,700 tons of cargo on the high seas during said voyage when
in fact it acquired from the "M/T Galilee" 2,000 metric tons of diesel oil. The second transfer transpired
with the same irregularities as discussed above. It was likewise supervised by accused-appellant
Cheong from his end while Emilio Changco supervised the transfer from his end.

Accused-appellant Hiong maintains that he was merely following the orders of his superiors and that
he has no knowledge of the illegality of the source of the cargo.

First and foremost, accused-appellant Hiong cannot deny knowledge of the source and nature of the
cargo since he himself received the same from "M/T Tabangao". Second, considering that he is a
highly educated mariner, he should have avoided any participation in the cargo transfer given the very
suspicious circumstances under which it was acquired. He failed to show a single piece of deed or bill
of sale or even a purchase order or any contract of sale for the purchase by the firm; he never bothered
to ask for and scrutinize the papers and documentation relative to the "M/T Galilee"; he did not even
verify the identity of Captain Robert Castillo whom he met for the first time nor did he check the source
of the cargo; he knew that the transfer took place 66 nautical miles off Singapore in the dead of the
night which a marine vessel of his firm did not ordinarily do; it was also the first time Navi Marine
transacted with Paul Gan involving a large sum of money without any receipt issued therefor; he was
not even aware if Paul Gan was a Singaporean national and thus safe to deal with. It should also be
noted that the value of the cargo was P40,426,793.87 or roughly more than US$1,000,000.00
(computed at P30.00 to $1, the exchange rate at that time). Manifestly, the cargo was sold for less
than one-half of its value. Accused-appellant Hiong should have been aware of this irregularity.
Nobody in his right mind would go to far away Singapore, spend much time and money for
transportation — only to sell at the aforestated price if it were legitimate sale involved. This, in addition
to the act of falsifying records, clearly shows that accused-appellant Hiong was well aware that the
cargo that his firm was acquiring was purloined.

Lastly, it cannot be correctly said that accused-appellant was "merely following the orders of his
superiors." An individual is justified in performing an act in obedience to an order issued by a superior
if such order, is for some lawful purpose and that the means used by the subordinate to carry out said
order is lawful (Reyes, Revised Penal Code, Vol. 1, 1981 ed., p. 212). Notably, the alleged order of
Hiong's superior Chua Kim Leng Timothy, is a patent violation not only of Philippine, but of international
law. Such violation was committed on board a Philippine-operated vessel. Moreover, the means used
by Hiong in carrying out said order was equally unlawful. He misled port and immigration authorities,
falsified records, using a mere clerk, Frankie Loh, to consummate said acts. During the trial, Hiong
presented himself, and the trial court was convinced, that he was an intelligent and articulate Port
Captain. These circumstances show that he must have realized the nature and the implications of the
order of Chua Kim Leng Timothy. Thereafter, he could have refused to follow orders to conclude the
deal and to effect the transfer of the cargo to the "Navi Pride." He did not do so, for which reason, he
must now suffer the consequences of his actions.

WHEREFORE, finding the conviction of accused-appellants justified by the evidence on record, the
Court hereby AFFIRMS the judgment of the trial court in toto.

SO ORDERED.
White Light Corp. v. City of Manila, G.R. No. 122846, 20 January 2009

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. 122846 January 20, 2009

WHITE LIGHT CORPORATION, TITANIUM CORPORATION and STA. MESA TOURIST &
DEVELOPMENT CORPORATION, Petitioners,
vs.
CITY OF MANILA, represented by DE CASTRO, MAYOR ALFREDO S. LIM, Respondent

DECISION

Tinga, J.:

With another city ordinance of Manila also principally involving the tourist district as subject, the Court
is confronted anew with the incessant clash between government power and individual liberty in
tandem with the archetypal tension between law and morality.

In City of Manila v. Laguio, Jr.,1 the Court affirmed the nullification of a city ordinance barring the
operation of motels and inns, among other establishments, within the Ermita-Malate area. The petition
at bar assails a similarly-motivated city ordinance that prohibits those same establishments from
offering short-time admission, as well as pro-rated or "wash up" rates for such abbreviated stays. Our
earlier decision tested the city ordinance against our sacred constitutional rights to liberty, due process
and equal protection of law. The same parameters apply to the present petition.

This Petition2 under Rule 45 of the Revised Rules on Civil Procedure, which seeks the reversal of the
Decision3 in C.A.-G.R. S.P. No. 33316 of the Court of Appeals, challenges the validity of Manila City
Ordinance No. 7774 entitled, "An Ordinance Prohibiting Short-Time Admission, Short-Time Admission
Rates, and Wash-Up Rate Schemes in Hotels, Motels, Inns, Lodging Houses, Pension Houses, and
Similar Establishments in the City of Manila" (the Ordinance).

I.

The facts are as follows:

On December 3, 1992, City Mayor Alfredo S. Lim (Mayor Lim) signed into law the Ordinance. 4 The
Ordinance is reproduced in full, hereunder:

SECTION 1. Declaration of Policy. It is hereby the declared policy of the City Government to protect
the best interest, health and welfare, and the morality of its constituents in general and the youth in
particular.
SEC. 2. Title. This ordinance shall be known as "An Ordinance" prohibiting short time admission in
hotels, motels, lodging houses, pension houses and similar establishments in the City of Manila.

SEC. 3. Pursuant to the above policy, short-time admission and rate [sic], wash-up rate or other
similarly concocted terms, are hereby prohibited in hotels, motels, inns, lodging houses, pension
houses and similar establishments in the City of Manila.

SEC. 4. Definition of Term[s]. Short-time admission shall mean admittance and charging of room rate
for less than twelve (12) hours at any given time or the renting out of rooms more than twice a day or
any other term that may be concocted by owners or managers of said establishments but would mean
the same or would bear the same meaning.

SEC. 5. Penalty Clause. Any person or corporation who shall violate any provision of this ordinance
shall upon conviction thereof be punished by a fine of Five Thousand (₱5,000.00) Pesos or
imprisonment for a period of not exceeding one (1) year or both such fine and imprisonment at the
discretion of the court; Provided, That in case of [a] juridical person, the president, the manager, or
the persons in charge of the operation thereof shall be liable: Provided, further, That in case of
subsequent conviction for the same offense, the business license of the guilty party shall automatically
be cancelled.

SEC. 6. Repealing Clause. Any or all provisions of City ordinances not consistent with or contrary to
this measure or any portion hereof are hereby deemed repealed.

SEC. 7. Effectivity. This ordinance shall take effect immediately upon approval.

Enacted by the city Council of Manila at its regular session today, November 10, 1992.

Approved by His Honor, the Mayor on December 3, 1992.

On December 15, 1992, the Malate Tourist and Development Corporation (MTDC) filed a complaint
for declaratory relief with prayer for a writ of preliminary injunction and/or temporary restraining order
( TRO)5 with the Regional Trial Court (RTC) of Manila, Branch 9 impleading as defendant, herein
respondent City of Manila (the City) represented by Mayor Lim.6 MTDC prayed that the Ordinance,
insofar as it includes motels and inns as among its prohibited establishments, be declared invalid and
unconstitutional. MTDC claimed that as owner and operator of the Victoria Court in Malate, Manila it
was authorized by Presidential Decree (P.D.) No. 259 to admit customers on a short time basis as
well as to charge customers wash up rates for stays of only three hours.

On December 21, 1992, petitioners White Light Corporation (WLC), Titanium Corporation (TC) and
Sta. Mesa Tourist and Development Corporation (STDC) filed a motion to intervene and to admit
attached complaint-in-intervention7 on the ground that the Ordinance directly affects their business
interests as operators of drive-in-hotels and motels in Manila.8 The three companies are components
of the Anito Group of Companies which owns and operates several hotels and motels in Metro Manila.9

On December 23, 1992, the RTC granted the motion to intervene.10 The RTC also notified the Solicitor
General of the proceedings pursuant to then Rule 64, Section 4 of the Rules of Court. On the same
date, MTDC moved to withdraw as plaintiff.11

On December 28, 1992, the RTC granted MTDC's motion to withdraw.12 The RTC issued a TRO on
January 14, 1993, directing the City to cease and desist from enforcing the Ordinance.13 The City filed
an Answer dated January 22, 1993 alleging that the Ordinance is a legitimate exercise of police
power.14

On February 8, 1993, the RTC issued a writ of preliminary injunction ordering the city to desist from
the enforcement of the Ordinance.15 A month later, on March 8, 1993, the Solicitor General filed his
Comment arguing that the Ordinance is constitutional.

During the pre-trial conference, the WLC, TC and STDC agreed to submit the case for decision without
trial as the case involved a purely legal question.16 On October 20, 1993, the RTC rendered a decision
declaring the Ordinance null and void. The dispositive portion of the decision reads:

WHEREFORE, in view of all the foregoing, [O]rdinance No. 7774 of the City of Manila is hereby
declared null and void.

Accordingly, the preliminary injunction heretofor issued is hereby made permanent.

SO ORDERED.17

The RTC noted that the ordinance "strikes at the personal liberty of the individual guaranteed and
jealously guarded by the Constitution."18 Reference was made to the provisions of the Constitution
encouraging private enterprises and the incentive to needed investment, as well as the right to operate
economic enterprises. Finally, from the observation that the illicit relationships the Ordinance sought
to dissuade could nonetheless be consummated by simply paying for a 12-hour stay, the RTC likened
the law to the ordinance annulled in Ynot v. Intermediate Appellate Court,19 where the legitimate
purpose of preventing indiscriminate slaughter of carabaos was sought to be effected through an inter-
province ban on the transport of carabaos and carabeef.

The City later filed a petition for review on certiorari with the Supreme Court.20 The petition was
docketed as G.R. No. 112471. However in a resolution dated January 26, 1994, the Court treated the
petition as a petition for certiorari and referred the petition to the Court of Appeals.21

Before the Court of Appeals, the City asserted that the Ordinance is a valid exercise of police power
pursuant to Section 458 (4)(iv) of the Local Government Code which confers on cities, among other
local government units, the power:

[To] regulate the establishment, operation and maintenance of cafes, restaurants, beerhouses, hotels,
motels, inns, pension houses, lodging houses and other similar establishments, including tourist
guides and transports.22

The Ordinance, it is argued, is also a valid exercise of the power of the City under Article III, Section
18(kk) of the Revised Manila Charter, thus:

"to enact all ordinances it may deem necessary and proper for the sanitation and safety, the
furtherance of the prosperity and the promotion of the morality, peace, good order, comfort,
convenience and general welfare of the city and its inhabitants, and such others as be necessary to
carry into effect and discharge the powers and duties conferred by this Chapter; and to fix penalties
for the violation of ordinances which shall not exceed two hundred pesos fine or six months
imprisonment, or both such fine and imprisonment for a single offense.23
Petitioners argued that the Ordinance is unconstitutional and void since it violates the right to privacy
and the freedom of movement; it is an invalid exercise of police power; and it is an unreasonable and
oppressive interference in their business.

The Court of Appeals reversed the decision of the RTC and affirmed the constitutionality of the
Ordinance.24 First, it held that the Ordinance did not violate the right to privacy or the freedom of
movement, as it only penalizes the owners or operators of establishments that admit individuals for
short time stays. Second, the virtually limitless reach of police power is only constrained by having a
lawful object obtained through a lawful method. The lawful objective of the Ordinance is satisfied since
it aims to curb immoral activities. There is a lawful method since the establishments are still allowed
to operate. Third, the adverse effect on the establishments is justified by the well-being of its
constituents in general. Finally, as held in Ermita-Malate Motel Operators Association v. City Mayor of
Manila, liberty is regulated by law.

TC, WLC and STDC come to this Court via petition for review on certiorari.25 In their petition and
Memorandum, petitioners in essence repeat the assertions they made before the Court of Appeals.
They contend that the assailed Ordinance is an invalid exercise of police power.

II.

We must address the threshold issue of petitioners’ standing. Petitioners allege that as owners of
establishments offering "wash-up" rates, their business is being unlawfully interfered with by the
Ordinance. However, petitioners also allege that the equal protection rights of their clients are also
being interfered with. Thus, the crux of the matter is whether or not these establishments have the
requisite standing to plead for protection of their patrons' equal protection rights.

Standing or locus standi is the ability of a party to demonstrate to the court sufficient connection to and
harm from the law or action challenged to support that party's participation in the case. More
importantly, the doctrine of standing is built on the principle of separation of powers,26 sparing as it
does unnecessary interference or invalidation by the judicial branch of the actions rendered by its co-
equal branches of government.

The requirement of standing is a core component of the judicial system derived directly from the
Constitution.27 The constitutional component of standing doctrine incorporates concepts which
concededly are not susceptible of precise definition.28 In this jurisdiction, the extancy of "a direct and
personal interest" presents the most obvious cause, as well as the standard test for a petitioner's
standing.29 In a similar vein, the United States Supreme Court reviewed and elaborated on the
meaning of the three constitutional standing requirements of injury, causation, and redressability
in Allen v. Wright.30

Nonetheless, the general rules on standing admit of several exceptions such as the overbreadth
doctrine, taxpayer suits, third party standing and, especially in the Philippines, the doctrine of
transcendental importance.31

For this particular set of facts, the concept of third party standing as an exception and the overbreadth
doctrine are appropriate. In Powers v. Ohio,32 the United States Supreme Court wrote that: "We have
recognized the right of litigants to bring actions on behalf of third parties, provided three important
criteria are satisfied: the litigant must have suffered an ‘injury-in-fact,’ thus giving him or her a
"sufficiently concrete interest" in the outcome of the issue in dispute; the litigant must have a close
relation to the third party; and there must exist some hindrance to the third party's ability to protect his
or her own interests."33 Herein, it is clear that the business interests of the petitioners are likewise
injured by the Ordinance. They rely on the patronage of their customers for their continued viability
which appears to be threatened by the enforcement of the Ordinance. The relative silence in
constitutional litigation of such special interest groups in our nation such as the American Civil Liberties
Union in the United States may also be construed as a hindrance for customers to bring suit.34

American jurisprudence is replete with examples where parties-in-interest were allowed standing to
advocate or invoke the fundamental due process or equal protection claims of other persons or classes
of persons injured by state action. In Griswold v. Connecticut,35 the United States Supreme Court held
that physicians had standing to challenge a reproductive health statute that would penalize them as
accessories as well as to plead the constitutional protections available to their patients. The Court held
that:

"The rights of husband and wife, pressed here, are likely to be diluted or adversely affected unless
those rights are considered in a suit involving those who have this kind of confidential relation to
them."36

An even more analogous example may be found in Craig v. Boren,37 wherein the United States
Supreme Court held that a licensed beverage vendor has standing to raise the equal protection claim
of a male customer challenging a statutory scheme prohibiting the sale of beer to males under the age
of 21 and to females under the age of 18. The United States High Court explained that the vendors
had standing "by acting as advocates of the rights of third parties who seek access to their market or
function."38

Assuming arguendo that petitioners do not have a relationship with their patrons for the former to
assert the rights of the latter, the overbreadth doctrine comes into play. In overbreadth analysis,
challengers to government action are in effect permitted to raise the rights of third parties. Generally
applied to statutes infringing on the freedom of speech, the overbreadth doctrine applies when a
statute needlessly restrains even constitutionally guaranteed rights.39 In this case, the petitioners claim
that the Ordinance makes a sweeping intrusion into the right to liberty of their clients. We can see that
based on the allegations in the petition, the Ordinance suffers from overbreadth.

We thus recognize that the petitioners have a right to assert the constitutional rights of their clients to
patronize their establishments for a "wash-rate" time frame.

III.

To students of jurisprudence, the facts of this case will recall to mind not only the recent City of
Manila ruling, but our 1967 decision in Ermita-Malate Hotel and Motel Operations Association, Inc., v.
Hon. City Mayor of Manila.40Ermita-Malate concerned the City ordinance requiring patrons to fill up a
prescribed form stating personal information such as name, gender, nationality, age, address and
occupation before they could be admitted to a motel, hotel or lodging house. This earlier ordinance
was precisely enacted to minimize certain practices deemed harmful to public morals. A purpose
similar to the annulled ordinance in City of Manila which sought a blanket ban on motels, inns and
similar establishments in the Ermita-Malate area. However, the constitutionality of the ordinance
in Ermita-Malate was sustained by the Court.

The common thread that runs through those decisions and the case at bar goes beyond the singularity
of the localities covered under the respective ordinances. All three ordinances were enacted with a
view of regulating public morals including particular illicit activity in transient lodging establishments.
This could be described as the middle case, wherein there is no wholesale ban on motels and hotels
but the services offered by these establishments have been severely restricted. At its core, this is
another case about the extent to which the State can intrude into and regulate the lives of its citizens.
The test of a valid ordinance is well established. A long line of decisions including City of Manila has
held that for an ordinance to be valid, it must not only be within the corporate powers of the local
government unit to enact and pass according to the procedure prescribed by law, it must also conform
to the following substantive requirements: (1) must not contravene the Constitution or any statute; (2)
must not be unfair or oppressive; (3) must not be partial or discriminatory; (4) must not prohibit but
may regulate trade; (5) must be general and consistent with public policy; and (6) must not be
unreasonable.41

The Ordinance prohibits two specific and distinct business practices, namely wash rate admissions
and renting out a room more than twice a day. The ban is evidently sought to be rooted in the police
power as conferred on local government units by the Local Government Code through such
implements as the general welfare clause.

A.

Police power, while incapable of an exact definition, has been purposely veiled in general terms to
underscore its comprehensiveness to meet all exigencies and provide enough room for an efficient
and flexible response as the conditions warrant.42 Police power is based upon the concept of necessity
of the State and its corresponding right to protect itself and its people.43 Police power has been used
as justification for numerous and varied actions by the State. These range from the regulation of dance
halls,44 movie theaters,45 gas stations46 and cockpits.47 The awesome scope of police power is best
demonstrated by the fact that in its hundred or so years of presence in our nation’s legal system, its
use has rarely been denied.

The apparent goal of the Ordinance is to minimize if not eliminate the use of the covered
establishments for illicit sex, prostitution, drug use and alike. These goals, by themselves, are
unimpeachable and certainly fall within the ambit of the police power of the State. Yet the desirability
of these ends do not sanctify any and all means for their achievement. Those means must align with
the Constitution, and our emerging sophisticated analysis of its guarantees to the people. The Bill of
Rights stands as a rebuke to the seductive theory of Macchiavelli, and, sometimes even, the political
majorities animated by his cynicism.

Even as we design the precedents that establish the framework for analysis of due process or equal
protection questions, the courts are naturally inhibited by a due deference to the co-equal branches of
government as they exercise their political functions. But when we are compelled to nullify executive
or legislative actions, yet another form of caution emerges. If the Court were animated by the same
passing fancies or turbulent emotions that motivate many political decisions, judicial integrity is
compromised by any perception that the judiciary is merely the third political branch of government.
We derive our respect and good standing in the annals of history by acting as judicious and neutral
arbiters of the rule of law, and there is no surer way to that end than through the development of
rigorous and sophisticated legal standards through which the courts analyze the most fundamental
and far-reaching constitutional questions of the day.

B.

The primary constitutional question that confronts us is one of due process, as guaranteed under
Section 1, Article III of the Constitution. Due process evades a precise definition.48 The purpose of the
guaranty is to prevent arbitrary governmental encroachment against the life, liberty and property of
individuals. The due process guaranty serves as a protection against arbitrary regulation or seizure.
Even corporations and partnerships are protected by the guaranty insofar as their property is
concerned.
The due process guaranty has traditionally been interpreted as imposing two related but distinct
restrictions on government, "procedural due process" and "substantive due process." Procedural due
process refers to the procedures that the government must follow before it deprives a person of life,
liberty, or property.49 Procedural due process concerns itself with government action adhering to the
established process when it makes an intrusion into the private sphere. Examples range from the form
of notice given to the level of formality of a hearing.

If due process were confined solely to its procedural aspects, there would arise absurd situation of
arbitrary government action, provided the proper formalities are followed. Substantive due process
completes the protection envisioned by the due process clause. It inquires whether the government
has sufficient justification for depriving a person of life, liberty, or property.50

The question of substantive due process, moreso than most other fields of law, has reflected
dynamism in progressive legal thought tied with the expanded acceptance of fundamental freedoms.
Police power, traditionally awesome as it may be, is now confronted with a more rigorous level of
analysis before it can be upheld. The vitality though of constitutional due process has not been
predicated on the frequency with which it has been utilized to achieve a liberal result for, after all, the
libertarian ends should sometimes yield to the prerogatives of the State. Instead, the due process
clause has acquired potency because of the sophisticated methodology that has emerged to
determine the proper metes and bounds for its application.

C.

The general test of the validity of an ordinance on substantive due process grounds is best tested
when assessed with the evolved footnote 4 test laid down by the U.S. Supreme Court in U.S. v.
Carolene Products.51 Footnote 4 of the Carolene Products case acknowledged that the judiciary would
defer to the legislature unless there is a discrimination against a "discrete and insular" minority or
infringement of a "fundamental right."52 Consequently, two standards of judicial review were
established: strict scrutiny for laws dealing with freedom of the mind or restricting the political process,
and the rational basis standard of review for economic legislation.

A third standard, denominated as heightened or immediate scrutiny, was later adopted by the U.S.
Supreme Court for evaluating classifications based on gender53 and legitimacy.54 Immediate scrutiny
was adopted by the U.S. Supreme Court in Craig,55 after the Court declined to do so in Reed v.
Reed.56 While the test may have first been articulated in equal protection analysis, it has in the United
States since been applied in all substantive due process cases as well.

We ourselves have often applied the rational basis test mainly in analysis of equal protection
challenges.57 Using the rational basis examination, laws or ordinances are upheld if they rationally
further a legitimate governmental interest.58 Under intermediate review, governmental interest is
extensively examined and the availability of less restrictive measures is considered.59 Applying strict
scrutiny, the focus is on the presence of compelling, rather than substantial, governmental interest and
on the absence of less restrictive means for achieving that interest.

In terms of judicial review of statutes or ordinances, strict scrutiny refers to the standard for determining
the quality and the amount of governmental interest brought to justify the regulation of fundamental
freedoms.60 Strict scrutiny is used today to test the validity of laws dealing with the regulation of
speech, gender, or race as well as other fundamental rights as expansion from its earlier applications
to equal protection.61 The United States Supreme Court has expanded the scope of strict scrutiny to
protect fundamental rights such as suffrage,62 judicial access63and interstate travel.64
If we were to take the myopic view that an Ordinance should be analyzed strictly as to its effect only
on the petitioners at bar, then it would seem that the only restraint imposed by the law which we are
capacitated to act upon is the injury to property sustained by the petitioners, an injury that would
warrant the application of the most deferential standard – the rational basis test. Yet as earlier stated,
we recognize the capacity of the petitioners to invoke as well the constitutional rights of their patrons
– those persons who would be deprived of availing short time access or wash-up rates to the lodging
establishments in question.

Viewed cynically, one might say that the infringed rights of these customers were are trivial since they
seem shorn of political consequence. Concededly, these are not the sort of cherished rights that, when
proscribed, would impel the people to tear up their cedulas. Still, the Bill of Rights does not shelter
gravitas alone. Indeed, it is those "trivial" yet fundamental freedoms – which the people reflexively
exercise any day without the impairing awareness of their constitutional consequence – that accurately
reflect the degree of liberty enjoyed by the people. Liberty, as integrally incorporated as a fundamental
right in the Constitution, is not a Ten Commandments-style enumeration of what may or what may not
be done; but rather an atmosphere of freedom where the people do not feel labored under a Big
Brother presence as they interact with each other, their society and nature, in a manner innately
understood by them as inherent, without doing harm or injury to others.

D.

The rights at stake herein fall within the same fundamental rights to liberty which we upheld in City of
Manila v. Hon. Laguio, Jr. We expounded on that most primordial of rights, thus:

Liberty as guaranteed by the Constitution was defined by Justice Malcolm to include "the right to exist
and the right to be free from arbitrary restraint or servitude. The term cannot be dwarfed into mere
freedom from physical restraint of the person of the citizen, but is deemed to embrace the right of man
to enjoy the facilities with which he has been endowed by his Creator, subject only to such restraint
as are necessary for the common welfare."[65] In accordance with this case, the rights of the citizen to
be free to use his faculties in all lawful ways; to live and work where he will; to earn his livelihood by
any lawful calling; and to pursue any avocation are all deemed embraced in the concept of liberty.[66]

The U.S. Supreme Court in the case of Roth v. Board of Regents, sought to clarify the meaning of
"liberty." It said:

While the Court has not attempted to define with exactness the liberty . . . guaranteed [by the Fifth and
Fourteenth Amendments], the term denotes not merely freedom from bodily restraint but also the right
of the individual to contract, to engage in any of the common occupations of life, to acquire useful
knowledge, to marry, establish a home and bring up children, to worship God according to the dictates
of his own conscience, and generally to enjoy those privileges long recognized . . . as essential to the
orderly pursuit of happiness by free men. In a Constitution for a free people, there can be no doubt
that the meaning of "liberty" must be broad indeed.67 [Citations omitted]

It cannot be denied that the primary animus behind the ordinance is the curtailment of sexual behavior.
The City asserts before this Court that the subject establishments "have gained notoriety as venue of
‘prostitution, adultery and fornications’ in Manila since they ‘provide the necessary atmosphere for
clandestine entry, presence and exit and thus became the ‘ideal haven for prostitutes and thrill-
seekers.’"68 Whether or not this depiction of a mise-en-scene of vice is accurate, it cannot be denied
that legitimate sexual behavior among willing married or consenting single adults which is
constitutionally protected69 will be curtailed as well, as it was in the City of Manila case. Our holding
therein retains significance for our purposes:
The concept of liberty compels respect for the individual whose claim to privacy and interference
demands respect. As the case of Morfe v. Mutuc, borrowing the words of Laski, so very aptly stated:

Man is one among many, obstinately refusing reduction to unity. His separateness, his isolation, are
indefeasible; indeed, they are so fundamental that they are the basis on which his civic obligations are
built. He cannot abandon the consequences of his isolation, which are, broadly speaking, that his
experience is private, and the will built out of that experience personal to himself. If he surrenders his
will to others, he surrenders himself. If his will is set by the will of others, he ceases to be a master of
himself. I cannot believe that a man no longer a master of himself is in any real sense free.

Indeed, the right to privacy as a constitutional right was recognized in Morfe, the invasion of which
should be justified by a compelling state interest. Morfe accorded recognition to the right to privacy
independently of its identification with liberty; in itself it is fully deserving of constitutional protection.
Governmental powers should stop short of certain intrusions into the personal life of the citizen.70

We cannot discount other legitimate activities which the Ordinance would proscribe or impair. There
are very legitimate uses for a wash rate or renting the room out for more than twice a day. Entire
families are known to choose pass the time in a motel or hotel whilst the power is momentarily out in
their homes. In transit passengers who wish to wash up and rest between trips have a legitimate
purpose for abbreviated stays in motels or hotels. Indeed any person or groups of persons in need of
comfortable private spaces for a span of a few hours with purposes other than having sex or using
illegal drugs can legitimately look to staying in a motel or hotel as a convenient alternative.

E.

That the Ordinance prevents the lawful uses of a wash rate depriving patrons of a product and the
petitioners of lucrative business ties in with another constitutional requisite for the legitimacy of the
Ordinance as a police power measure. It must appear that the interests of the public generally, as
distinguished from those of a particular class, require an interference with private rights and the means
must be reasonably necessary for the accomplishment of the purpose and not unduly oppressive of
private rights.71 It must also be evident that no other alternative for the accomplishment of the purpose
less intrusive of private rights can work. More importantly, a reasonable relation must exist between
the purposes of the measure and the means employed for its accomplishment, for even under the
guise of protecting the public interest, personal rights and those pertaining to private property will not
be permitted to be arbitrarily invaded.72

Lacking a concurrence of these requisites, the police measure shall be struck down as an arbitrary
intrusion into private rights. As held in Morfe v. Mutuc, the exercise of police power is subject to judicial
review when life, liberty or property is affected.73 However, this is not in any way meant to take it away
from the vastness of State police power whose exercise enjoys the presumption of validity.74

Similar to the Comelec resolution requiring newspapers to donate advertising space to candidates,
this Ordinance is a blunt and heavy instrument.75 The Ordinance makes no distinction between places
frequented by patrons engaged in illicit activities and patrons engaged in legitimate actions. Thus it
prevents legitimate use of places where illicit activities are rare or even unheard of. A plain reading of
section 3 of the Ordinance shows it makes no classification of places of lodging, thus deems them all
susceptible to illicit patronage and subject them without exception to the unjustified prohibition.

The Court has professed its deep sentiment and tenderness of the Ermita-Malate area, its longtime
home,76 and it is skeptical of those who wish to depict our capital city – the Pearl of the Orient – as a
modern-day Sodom or Gomorrah for the Third World set. Those still steeped in Nick Joaquin-dreams
of the grandeur of Old Manila will have to accept that Manila like all evolving big cities, will have its
problems. Urban decay is a fact of mega cities such as Manila, and vice is a common problem
confronted by the modern metropolis wherever in the world. The solution to such perceived decay is
not to prevent legitimate businesses from offering a legitimate product. Rather, cities revive
themselves by offering incentives for new businesses to sprout up thus attracting the dynamism of
individuals that would bring a new grandeur to Manila.

The behavior which the Ordinance seeks to curtail is in fact already prohibited and could in fact be
diminished simply by applying existing laws. Less intrusive measures such as curbing the proliferation
of prostitutes and drug dealers through active police work would be more effective in easing the
situation. So would the strict enforcement of existing laws and regulations penalizing prostitution and
drug use. These measures would have minimal intrusion on the businesses of the petitioners and
other legitimate merchants. Further, it is apparent that the Ordinance can easily be circumvented by
merely paying the whole day rate without any hindrance to those engaged in illicit activities. Moreover,
drug dealers and prostitutes can in fact collect "wash rates" from their clientele by charging their
customers a portion of the rent for motel rooms and even apartments.

IV.

We reiterate that individual rights may be adversely affected only to the extent that may fairly be
required by the legitimate demands of public interest or public welfare. The State is a leviathan that
must be restrained from needlessly intruding into the lives of its citizens. However well-intentioned the
Ordinance may be, it is in effect an arbitrary and whimsical intrusion into the rights of the
establishments as well as their patrons. The Ordinance needlessly restrains the operation of the
businesses of the petitioners as well as restricting the rights of their patrons without sufficient
justification. The Ordinance rashly equates wash rates and renting out a room more than twice a day
with immorality without accommodating innocuous intentions.

The promotion of public welfare and a sense of morality among citizens deserves the full endorsement
of the judiciary provided that such measures do not trample rights this Court is sworn to protect.77 The
notion that the promotion of public morality is a function of the State is as old as Aristotle. 78 The
advancement of moral relativism as a school of philosophy does not de-legitimize the role of morality
in law, even if it may foster wider debate on which particular behavior to penalize. It is conceivable
that a society with relatively little shared morality among its citizens could be functional so long as the
pursuit of sharply variant moral perspectives yields an adequate accommodation of different
interests.79

To be candid about it, the oft-quoted American maxim that "you cannot legislate morality" is ultimately
illegitimate as a matter of law, since as explained by Calabresi, that phrase is more accurately
interpreted as meaning that efforts to legislate morality will fail if they are widely at variance with public
attitudes about right and wrong.80 Our penal laws, for one, are founded on age-old moral traditions,
and as long as there are widely accepted distinctions between right and wrong, they will remain so
oriented.

Yet the continuing progression of the human story has seen not only the acceptance of the right-wrong
distinction, but also the advent of fundamental liberties as the key to the enjoyment of life to the fullest.
Our democracy is distinguished from non-free societies not with any more extensive elaboration on
our part of what is moral and immoral, but from our recognition that the individual liberty to make the
choices in our lives is innate, and protected by the State. Independent and fair-minded judges
themselves are under a moral duty to uphold the Constitution as the embodiment of the rule of law, by
reason of their expression of consent to do so when they take the oath of office, and because they are
entrusted by the people to uphold the law.81
Even as the implementation of moral norms remains an indispensable complement to governance,
that prerogative is hardly absolute, especially in the face of the norms of due process of liberty. And
while the tension may often be left to the courts to relieve, it is possible for the government to avoid
the constitutional conflict by employing more judicious, less drastic means to promote morality.

WHEREFORE, the Petition is GRANTED. The Decision of the Court of Appeals is REVERSED, and
the Decision of the Regional Trial Court of Manila, Branch 9, is REINSTATED. Ordinance No. 7774 is
hereby declared UNCONSTITUTIONAL. No pronouncement as to costs.

SO ORDERED.
Garcia v. Drilon, G.R. No. 179267, 25 June 2013

epublic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. 179267 June 25, 2013

JESUS C. GARCIA, Petitioner,

vs.
THE HONORABLE RAY ALAN T. DRILON, Presiding Judge, Regional Trial Court-Branch 41,
Bacolod City, and ROSALIE JAYPE-GARCIA, for herself and in behalf of minor children,
namely: JO-ANN, JOSEPH EDUARD, JESSE ANTHONE, all surnamed GARCIA, Respondents.

DECISION

PERLAS-BERNABE, J.:

Hailed as the bastion of Christianity in Asia, the Philippines boasts of 86.8 million Filipinos- or 93
percent of a total population of 93.3 million – adhering to the teachings of Jesus Christ.1 Yet, the
admonition for husbands to love their wives as their own bodies just as Christ loved the church and
gave himself up for her2 failed to prevent, or even to curb, the pervasiveness of violence against
Filipino women. The National Commission on the Role of Filipino Women (NCRFW) reported that,
for the years 2000-2003, "female violence comprised more than 90o/o of all forms of abuse and
violence and more than 90% of these reported cases were committed by the women's intimate
partners such as their husbands and live-in partners."3

Thus, on March 8, 2004, after nine (9) years of spirited advocacy by women's groups, Congress
enacted Republic Act (R.A.) No. 9262, entitled "An Act Defining Violence Against Women and Their
Children, Providing for Protective Measures for Victims, Prescribing Penalties Therefor, and for
Other Purposes." It took effect on March 27, 2004.4

R.A. 9262 is a landmark legislation that defines and criminalizes acts of violence against women and
their children (VAWC) perpetrated by women's intimate partners, i.e, husband; former husband; or
any person who has or had a sexual or dating relationship, or with whom the woman has a common
child.5 The law provides for protection orders from the barangay and the courts to prevent the
commission of further acts of VAWC; and outlines the duties and responsibilities of barangay
officials, law enforcers, prosecutors and court personnel, social workers, health care providers, and
other local government officials in responding to complaints of VAWC or requests for assistance.

A husband is now before the Court assailing the constitutionality of R.A. 9262 as being violative of
the equal protection and due process clauses, and an undue delegation of judicial power to
barangay officials.

The Factual Antecedents

On March 23, 2006, Rosalie Jaype-Garcia (private respondent) filed, for herself and in behalf of her
minor children, a verified petition6 (Civil Case No. 06-797) before the Regional Trial Court (RTC) of
Bacolod City for the issuance of a Temporary Protection Order (TPO) against her husband, Jesus C.
Garcia (petitioner), pursuant to R.A. 9262. She claimed to be a victim of physical abuse; emotional,
psychological, and economic violence as a result of marital infidelity on the part of petitioner, with
threats of deprivation of custody of her children and of financial support.7

Private respondent's claims

Private respondent married petitioner in 2002 when she was 34 years old and the former was eleven
years her senior. They have three (3) children, namely: Jo-Ann J. Garcia, 17 years old, who is the
natural child of petitioner but whom private respondent adopted; Jessie Anthone J. Garcia, 6 years
old; and Joseph Eduard J. Garcia, 3 years old.8

Private respondent described herself as a dutiful and faithful wife, whose life revolved around her
husband. On the other hand, petitioner, who is of Filipino-Chinese descent, is dominant, controlling,
and demands absolute obedience from his wife and children. He forbade private respondent to pray,
and deliberately isolated her from her friends. When she took up law, and even when she was
already working part time at a law office, petitioner trivialized her ambitions and prevailed upon her
to just stay at home. He was often jealous of the fact that his attractive wife still catches the eye of
some men, at one point threatening that he would have any man eyeing her killed.9

Things turned for the worse when petitioner took up an affair with a bank manager of Robinson's
Bank, Bacolod City, who is the godmother of one of their sons. Petitioner admitted to the affair when
private respondent confronted him about it in 2004. He even boasted to the household help about
his sexual relations with said bank manager. Petitioner told private respondent, though, that he was
just using the woman because of their accounts with the bank.10

Petitioner's infidelity spawned a series of fights that left private respondent physically and
emotionally wounded. In one of their quarrels, petitioner grabbed private respondent on both arms
and shook her with such force that caused bruises and hematoma. At another time, petitioner hit
private respondent forcefully on the lips that caused some bleeding. Petitioner sometimes turned his
ire on their daughter, Jo-Ann, who had seen the text messages he sent to his paramour and whom
he blamed for squealing on him. He beat Jo-Ann on the chest and slapped her many times. When
private respondent decided to leave petitioner, Jo-Ann begged her mother to stay for fear that if the
latter leaves, petitioner would beat her up. Even the small boys are aware of private respondent's
sufferings. Their 6-year-old son said that when he grows up, he would beat up his father because of
his cruelty to private respondent.11

All the emotional and psychological turmoil drove private respondent to the brink of despair. On
December 17, 2005, while at home, she attempted suicide by cutting her wrist. She was found by
her son bleeding on the floor. Petitioner simply fled the house instead of taking her to the hospital.
Private respondent was hospitalized for about seven (7) days in which time petitioner never bothered
to visit, nor apologized or showed pity on her. Since then, private respondent has been undergoing
therapy almost every week and is taking anti-depressant medications.12

When private respondent informed the management of Robinson's Bank that she intends to file
charges against the bank manager, petitioner got angry with her for jeopardizing the manager's job.
He then packed his things and told private respondent that he was leaving her for good. He even
told private respondent's mother, who lives with them in the family home, that private respondent
should just accept his extramarital affair since he is not cohabiting with his paramour and has not
sired a child with her.13
Private respondent is determined to separate from petitioner but she is afraid that he would take her
children from her and deprive her of financial support. Petitioner had previously warned her that if
she goes on a legal battle with him, she would not get a single centavo.14

Petitioner controls the family businesses involving mostly the construction of deep wells. He is the
President of three corporations – 326 Realty Holdings, Inc., Negros Rotadrill Corporation, and J-Bros
Trading Corporation – of which he and private respondent are both stockholders. In contrast to the
absolute control of petitioner over said corporations, private respondent merely draws a monthly
salary of ₱20,000.00 from one corporation only, the Negros Rotadrill Corporation. Household
expenses amounting to not less than ₱200,000.00 a month are paid for by private respondent
through the use of credit cards, which, in turn, are paid by the same corporation together with the
bills for utilities.15

On the other hand, petitioner receives a monthly salary of ₱60,000.00 from Negros Rotadrill
Corporation, and enjoys unlimited cash advances and other benefits in hundreds of thousands of
pesos from the corporations.16 After private respondent confronted him about the affair, petitioner
forbade her to hold office at JBTC Building, Mandalagan, where all the businesses of the
corporations are conducted, thereby depriving her of access to full information about said
businesses. Until the filing of the petition a quo, petitioner has not given private respondent an
accounting of the businesses the value of which she had helped raise to millions of pesos.17

Action of the RTC of Bacolod City

Finding reasonable ground to believe that an imminent danger of violence against the private
respondent and her children exists or is about to recur, the RTC issued a TPO18 on March 24, 2006
effective for thirty (30) days, which is quoted hereunder:

Respondent (petitioner herein), Jesus Chua Garcia, is hereby:

a) Ordered to remove all his personal belongings from the conjugal dwelling or family home
within 24 hours from receipt of the Temporary Restraining Order and if he refuses, ordering
that he be removed by police officers from the conjugal dwelling; this order is enforceable
notwithstanding that the house is under the name of 236 Realty Holdings Inc. (Republic Act
No. 9262 states "regardless of ownership"), this is to allow the Petitioner (private respondent
herein) to enter the conjugal dwelling without any danger from the Respondent.

After the Respondent leaves or is removed from the conjugal dwelling, or anytime the
Petitioner decides to return to the conjugal dwelling to remove things, the Petitioner shall be
assisted by police officers when re-entering the family home.

The Chief of Police shall also give the Petitioner police assistance on Sunday, 26 March
2006 because of the danger that the Respondent will attempt to take her children from her
when he arrives from Manila and finds out about this suit.

b) To stay away from the petitioner and her children, mother and all her household help and
driver from a distance of 1,000 meters, and shall not enter the gate of the subdivision where
the Petitioner may be temporarily residing.

c) Not to harass, annoy, telephone, contact or otherwise communicate with the Petitioner,
directly or indirectly, or through other persons, or contact directly or indirectly her children,
mother and household help, nor send gifts, cards, flowers, letters and the like. Visitation
rights to the children may be subject of a modified TPO in the future.
 d) To surrender all his firearms including a .9MM caliber firearm and a Walther PPK and
ordering the Philippine National Police Firearms and Explosives Unit and the Provincial
Director of the PNP to cancel all the Respondent's firearm licenses. He should also be
ordered to surrender any unlicensed firearms in his possession or control.

e) To pay full financial support for the Petitioner and the children, including rental of a house
for them, and educational and medical expenses.

f) Not to dissipate the conjugal business.

g) To render an accounting of all advances, benefits, bonuses and other cash he received
from all the corporations from 1 January 2006 up to 31 March 2006, which himself and as
President of the corporations and his Comptroller, must submit to the Court not later than 2
April 2006. Thereafter, an accounting of all these funds shall be reported to the court by the
Comptroller, copy furnished to the Petitioner, every 15 days of the month, under pain of
Indirect Contempt of Court.

h) To ensure compliance especially with the order granting support pendente lite, and
considering the financial resources of the Respondent and his threat that if the Petitioner
sues she will not get a single centavo, the Respondent is ordered to put up a BOND TO
KEEP THE PEACE in the amount of FIVE MILLION PESOS, in two sufficient sureties.

On April 24, 2006, upon motion19 of private respondent, the trial court issued an amended
TPO,20 effective for thirty (30) days, which included the following additional provisions:

i) The petitioners (private respondents herein) are given the continued use of the Nissan
Patrol and the Starex Van which they are using in Negros Occidental.

j) The petitioners are given the continued use and occupation of the house in Parañaque, the
continued use of the Starex van in Metro Manila, whenever they go to Manila.

k) Respondent is ordered to immediately post a bond to keep the peace, in two sufficient
sureties.

l) To give monthly support to the petitioner provisionally fixed in the sum of One Hundred
Fifty Thousand Pesos (Php 150,000.00) per month plus rental expenses of Fifty Thousand
Pesos (Php 50,000.00) per month until the matter of support could be finally resolved.

Two days later, or on April 26, 2006, petitioner filed an Opposition to the Urgent Ex-Parte Motion for
Renewal of the TPO21 seeking the denial of the renewal of the TPO on the grounds that it did not (1)
comply with the three-day notice rule, and (2) contain a notice of hearing. He further asked that the
TPO be modified by (1) removing one vehicle used by private respondent and returning the same to
its rightful owner, the J-Bros Trading Corporation, and (2) cancelling or reducing the amount of the
bond from ₱5,000,000.00 to a more manageable level at ₱100,000.00.

Subsequently, on May 23, 2006, petitioner moved22 for the modification of the TPO to allow him
visitation rights to his children.

On May 24, 2006, the TPO was renewed and extended yet again, but subject only to the following
modifications prayed for by private respondent:
 a) That respondent (petitioner herein) return the clothes and other personal belongings of
Rosalie and her children to Judge Jesus Ramos, co-counsel for Petitioner, within 24 hours
from receipt of the Temporary Protection Order by his counsel, otherwise be declared in
Indirect Contempt of Court;

b) Respondent shall make an accounting or list of furniture and equipment in the conjugal
house in Pitimini St., Capitolville Subdivision, Bacolod City within 24 hours from receipt of the
Temporary Protection Order by his counsel;

c) Ordering the Chief of the Women's Desk of the Bacolod City Police Headquarters to
remove Respondent from the conjugal dwelling within eight (8) hours from receipt of the
Temporary Protection Order by his counsel, and that he cannot return until 48 hours after the
petitioners have left, so that the petitioner Rosalie and her representatives can remove things
from the conjugal home and make an inventory of the household furniture, equipment and
other things in the conjugal home, which shall be submitted to the Court.

d) Deliver full financial support of Php200,000.00 and Php50,000.00 for rental and
Php25,000.00 for clothes of the three petitioners (sic) children within 24 hours from receipt of
the Temporary Protection Order by his counsel, otherwise be declared in indirect contempt of
Court;

e) That respondent surrender his two firearms and all unlicensed firearms to the Clerk of
Court within 24 hours from receipt of the Temporary Protection Order by his counsel;

f) That respondent shall pay petitioner educational expenses of the children upon
presentation of proof of payment of such expenses.23

Claiming that petitioner continued to deprive them of financial support; failed to faithfully comply with
the TPO; and committed new acts of harassment against her and their children, private respondent
filed another application24 for the issuance of a TPO ex parte. She alleged inter

alia that petitioner contrived a replevin suit against himself by J-Bros Trading, Inc., of which the latter
was purportedly no longer president, with the end in view of recovering the Nissan Patrol and Starex
Van used by private respondent and the children. A writ of replevin was served upon private
respondent by a group of six or seven policemen with long firearms that scared the two small boys,
Jessie Anthone and Joseph Eduard.25

While Joseph Eduard, then three years old, was driven to school, two men allegedly attempted to
kidnap him, which incident traumatized the boy resulting in his refusal to go back to school. On
another occasion, petitioner allegedly grabbed their daughter, Jo-Ann, by the arm and threatened
her.26 The incident was reported to the police, and Jo-Ann subsequently filed a criminal complaint
against her father for violation of R.A. 7610, also known as the "Special Protection of Children
Against Child Abuse, Exploitation and Discrimination Act."

Aside from the replevin suit, petitioner's lawyers initiated the filing by the housemaids working at the
conjugal home of a complaint for kidnapping and illegal detention against private respondent. This
came about after private respondent, armed with a TPO, went to said home to get her and her
children's belongings. Finding some of her things inside a housemaid's (Sheryl Jamola) bag in the
maids' room, private respondent filed a case for qualified theft against Jamola.27

On August 23, 2006, the RTC issued a TPO,28 effective for thirty (30) days, which reads as follows:
Respondent (petitioner herein), Jesus Chua Garcia, is hereby:

1) Prohibited from threatening to commit or committing, personally or through another, acts

of violence against the offended party;

2) Prohibited from harassing, annoying, telephoning, contacting or otherwise communicating

in any form with the offended party, either directly or indirectly;

3) Required to stay away, personally or through his friends, relatives, employees or agents,
from all the Petitioners Rosalie J. Garcia and her children, Rosalie J. Garcia's three brothers,
her mother Primitiva Jaype, cook Novelita Caranzo, driver Romeo Hontiveros,
laundrywoman Mercedita Bornales, security guard Darwin Gayona and the petitioner's other
household helpers from a distance of 1,000 meters, and shall not enter the gate of the
subdivision where the Petitioners are temporarily residing, as well as from the schools of the
three children; Furthermore, that respondent shall not contact the schools of the children
directly or indirectly in any manner including, ostensibly to pay for their tuition or other fees
directly, otherwise he will have access to the children through the schools and the TPO will
be rendered nugatory;

4) Directed to surrender all his firearms including .9MM caliber firearm and a Walther PPK to
the Court;

5) Directed to deliver in full financial support of Php200,000.00 a month and Php50,000.00

for rental for the period from August 6 to September 6, 2006; and support in arrears from
March 2006 to August 2006 the total amount of Php1,312,000.00;

6) Directed to deliver educational expenses for 2006-2007 the amount of Php75,000.00 and
Php25,000.00;

7) Directed to allow the continued use of a Nissan Patrol with Plate No. FEW 508 and a
Starex van with Plate No. FFD 991 and should the respondent fail to deliver said vehicles,
respondent is ordered to provide the petitioner another vehicle which is the one taken by J
Bros Tading;

8) Ordered not to dissipate, encumber, alienate, sell, lease or otherwise dispose of the
conjugal assets, or those real properties in the name of Jesus Chua Garcia only and those in
which the conjugal partnership of gains of the Petitioner Rosalie J. Garcia and respondent
have an interest in, especially the conjugal home located in No. 14, Pitimini St., Capitolville
Subdivision, Bacolod City, and other properties which are conjugal assets or those in which
the conjugal partnership of gains of Petitioner Rosalie J. Garcia and the respondent have an
interest in and listed in Annexes "I," "I-1," and "I-2," including properties covered by TCT
Nos. T-186325 and T-168814;

9) Ordered that the Register of Deeds of Bacolod City and E.B. Magalona shall be served a
copy of this TEMPORARY PROTECTION ORDER and are ordered not to allow the transfer,
sale, encumbrance or disposition of these above-cited properties to any person, entity or
corporation without the personal presence of petitioner Rosalie J. Garcia, who shall affix her
signature in the presence of the Register of Deeds, due to the fear of petitioner Rosalie that
her signature will be forged in order to effect the encumbrance or sale of these properties to
defraud her or the conjugal partnership of gains.
In its Order29 dated September 26, 2006, the trial court extended the aforequoted TPO for another
ten (10) days, and gave petitioner a period of five (5) days within which to show cause why the TPO
should not be renewed, extended, or modified. Upon petitioner's manifestation,30 however, that he
has not received a copy of private respondent's motion to modify/renew the TPO, the trial court
directed in its Order31 dated October 6, 2006 that petitioner be furnished a copy of said motion.
Nonetheless, an Order32 dated a day earlier, October 5, had already been issued renewing the TPO
dated August 23, 2006. The pertinent portion is quoted hereunder:

xxxx

x x x it appearing further that the hearing could not yet be finally terminated, the Temporary
Protection Order issued on August 23, 2006 is hereby renewed and extended for thirty (30) days and
continuously extended and renewed for thirty (30) days, after each expiration, until further orders,
and subject to such modifications as may be ordered by the court.

After having received a copy of the foregoing Order, petitioner no longer submitted the required
comment to private respondent's motion for renewal of the TPO arguing that it would only be an
"exercise in futility."33

Proceedings before the CA

During the pendency of Civil Case No. 06-797, petitioner filed before the Court of Appeals (CA) a
petition34 for prohibition (CA-G.R. CEB-SP. No. 01698), with prayer for injunction and temporary
restraining order, challenging (1) the constitutionality of R.A. 9262 for being violative of the due
process and the equal protection clauses, and (2) the validity of the modified TPO issued in the civil
case for being "an unwanted product of an invalid law."

On May 26, 2006, the appellate court issued a 60-day Temporary Restraining Order36 (TRO) against
the enforcement of the TPO, the amended TPOs and other orders pursuant thereto.

Subsequently, however, on January 24, 2007, the appellate court dismissed36 the petition for failure
of petitioner to raise the constitutional issue in his pleadings before the trial court in the civil case,
which is clothed with jurisdiction to resolve the same. Secondly, the challenge to the validity

of R.A. 9262 through a petition for prohibition seeking to annul the protection orders issued by the
trial court constituted a collateral attack on said law.

His motion for reconsideration of the foregoing Decision having been denied in the
Resolution37 dated August 14, 2007, petitioner is now before us alleging that –

The Issues

I.

THE COURT OF APPEALS ERRED IN DISMISSING THE PETITION ON THE THEORY THAT THE
ISSUE OF CONSTITUTIONALITY WAS NOT RAISED AT THE EARLIEST OPPORTUNITY AND
THAT, THE PETITION CONSTITUTES A COLLATERAL ATTACK ON THE VALIDITY OF THE
LAW.

II.
THE COURT OF APPEALS COMMITTED SERIOUS ERROR IN FAILING TO CONCLUDE THAT
R.A. 9262 IS DISCRIMINATORY, UNJUST, AND VIOLATIVE OF THE EQUAL PROTECTION
CLAUSE.

III.

THE COURT OF APPEALS COMMITTED GRAVE MISTAKE IN NOT FINDING THAT R.A. 9262
RUNS COUNTER TO THE DUE PROCESS CLAUSE OF THE CONSTITUTION.

IV.

THE COURT OF APPEALS ERRED IN NOT FINDING THAT THE LAW DOES VIOLENCE TO THE
POLICY OF THE STATE TO PROTECT THE FAMILY AS A BASIC SOCIAL INSTITUTION.

V.

THE COURT OF APPEALS SERIOUSLY ERRED IN NOT DECLARING R.A. No. 9262 AS INVALID
AND UNCONSTITUTIONAL BECAUSE IT ALLOWS AN UNDUE DELEGATION OF JUDICIAL
POWER TO THE BARANGAY OFFICIALS.38

The Ruling of the Court

Before delving into the arguments propounded by petitioner against the constitutionality of R.A.
9262, we shall first tackle the propriety of the dismissal by the appellate court of the petition for
prohibition (CA-G.R. CEB-SP. No. 01698) filed by petitioner.

As a general rule, the question of constitutionality must be raised at the earliest opportunity so that if
not raised in the pleadings, ordinarily it may not be raised in the trial, and if not raised in the trial
court, it will not be considered on appeal.39 Courts will not anticipate a question of constitutional law
in advance of the necessity of deciding it.40

In defending his failure to attack the constitutionality of R.A. 9262 before the RTC of Bacolod City,
petitioner argues that the Family Court has limited authority and jurisdiction that is "inadequate to
tackle the complex issue of constitutionality."41

We disagree.

Family Courts have authority and jurisdiction to consider the constitutionality of a statute.

At the outset, it must be stressed that Family Courts are special courts, of the same level as
Regional Trial Courts. Under R.A. 8369, otherwise known as the "Family Courts Act of 1997," family
courts have exclusive original jurisdiction to hear and decide cases of domestic violence against
women and children.42 In accordance with said law, the Supreme Court designated from among the
branches of the Regional Trial Courts at least one Family Court in each of several key cities
identified.43 To achieve harmony with the first mentioned law, Section 7 of R.A. 9262 now provides
that Regional Trial Courts designated as Family Courts shall have original and exclusive jurisdiction
over cases of VAWC defined under the latter law, viz:

SEC. 7. Venue. – The Regional Trial Court designated as a Family Court shall have original and
exclusive jurisdiction over cases of violence against women and their children under this law. In the
absence of such court in the place where the offense was committed, the case shall be filed in the
Regional Trial Court where the crime or any of its elements was committed at the option of the
complainant. (Emphasis supplied)

Inspite of its designation as a family court, the RTC of Bacolod City remains possessed of authority
as a court of general original jurisdiction to pass upon all kinds of cases whether civil, criminal,
special proceedings, land registration, guardianship, naturalization, admiralty or insolvency.44 It is
settled that RTCs have jurisdiction to resolve the constitutionality of a statute,45 "this authority being
embraced in the general definition of the judicial power to determine what are the valid and binding
laws by the criterion of their conformity to the fundamental law."46The Constitution vests the power of
judicial review or the power to declare the constitutionality or validity of a law, treaty, international or
executive agreement, presidential decree, order, instruction, ordinance, or regulation not only in this
Court, but in all RTCs.47 We said in J.M. Tuason and Co., Inc. v. CA48 that, "plainly the Constitution
contemplates that the inferior courts should have jurisdiction in cases involving constitutionality of
any treaty or law, for it speaks of appellate review of final judgments of inferior courts in cases where
such constitutionality happens to be in issue." Section 5, Article VIII of the 1987 Constitution reads in
part as follows:

SEC. 5. The Supreme Court shall have the following powers:

xxx

2. Review, revise, reverse, modify, or affirm on appeal or certiorari, as the law or the Rules of Court
may provide, final judgments and orders of lower courts in:

a. All cases in which the constitutionality or validity of any treaty, international or executive
agreement, law, presidential decree, proclamation, order, instruction, ordinance, or regulation is in
question.

xxxx

Thus, contrary to the posturing of petitioner, the issue of constitutionality of R.A. 9262 could have
been raised at the earliest opportunity in his Opposition to the petition for protection order before the
RTC of Bacolod City, which had jurisdiction to determine the same, subject to the review of this
Court.

Section 20 of A.M. No. 04-10-11-SC, the Rule on Violence Against Women and Their Children, lays
down a new kind of procedure requiring the respondent to file an opposition to the petition and not
an answer.49 Thus:

SEC. 20. Opposition to petition. – (a) The respondent may file an opposition to the petition which he
himself shall verify. It must be accompanied by the affidavits of witnesses and shall show cause why
a temporary or permanent protection order should not be issued.

(b) Respondent shall not include in the opposition any counterclaim, cross-claim or third-party
complaint, but any cause of action which could be the subject thereof may be litigated in a separate
civil action. (Emphasis supplied)

We cannot subscribe to the theory espoused by petitioner that, since a counterclaim, cross-claim
and third-party complaint are to be excluded from the opposition, the issue of constitutionality cannot
likewise be raised therein. A counterclaim is defined as any claim for money or other relief which a
defending party may have against an opposing party.50 A cross-claim, on the other hand, is any
claim by one party against a co-party arising out of the transaction or occurrence that is the subject
matter either of the original action or of a counterclaim therein.51Finally, a third-party complaint is a
claim that a defending party may, with leave of court, file against a person not a party to the action
for contribution, indemnity, subrogation or any other relief, in respect of his opponent's claim.52As
pointed out by Justice Teresita J. Leonardo-De Castro, the unconstitutionality of a statute is not a
cause of action that could be the subject of a counterclaim, cross-claim or a third-party complaint.
Therefore, it is not prohibited from being raised in the opposition in view of the familiar maxim
expressio unius est exclusio alterius.

Moreover, it cannot be denied that this issue affects the resolution of the case a quo because the
right of private respondent to a protection order is founded solely on the very statute the validity of
which is being attacked53 by petitioner who has sustained, or will sustain, direct injury as a result of
its enforcement. The alleged unconstitutionality of R.A. 9262 is, for all intents and purposes, a valid
cause for the non-issuance of a protection order.

That the proceedings in Civil Case No. 06-797 are summary in nature should not have deterred
petitioner from raising the same in his Opposition. The question relative to the constitutionality of a
statute is one of law which does not need to be supported by evidence.54 Be that as it may, Section
25 of A.M. No. 04-10-11-SC nonetheless allows the conduct of a hearing to determine legal issues,
among others, viz:

SEC. 25. Order for further hearing. - In case the court determines the need for further hearing, it may
issue an order containing the following:

(a) Facts undisputed and admitted;

(b) Factual and legal issues to be resolved;

(c) Evidence, including objects and documents that have been marked and will be presented;

(d) Names of witnesses who will be ordered to present their direct testimonies in the form of
affidavits; and

(e) Schedule of the presentation of evidence by both parties which shall be done in one day,
to the extent possible, within the 30-day period of the effectivity of the temporary protection
order issued. (Emphasis supplied)

To obviate potential dangers that may arise concomitant to the conduct of a hearing when
necessary, Section 26 (b) of A.M. No. 04-10-11-SC provides that if a temporary protection order
issued is due to expire, the trial court may extend or renew the said order for a period of thirty (30)
days each time until final judgment is rendered. It may likewise modify the extended or renewed
temporary protection order as may be necessary to meet the needs of the parties. With the private
respondent given ample protection, petitioner could proceed to litigate the constitutional issues,
without necessarily running afoul of the very purpose for the adoption of the rules on summary
procedure.

In view of all the foregoing, the appellate court correctly dismissed the petition for prohibition with
prayer for injunction and temporary restraining order (CA-G.R. CEB - SP. No. 01698). Petitioner may
have proceeded upon an honest belief that if he finds succor in a superior court, he could be granted
an injunctive relief. However, Section 22(j) of A.M. No. 04-10-11-SC expressly disallows the filing of
a petition for certiorari, mandamus or prohibition against any interlocutory order issued by the trial
court. Hence, the 60-day TRO issued by the appellate court in this case against the enforcement of
the TPO, the amended TPOs and other orders pursuant thereto was improper, and it effectively
hindered the case from taking its normal course in an expeditious and summary manner.

As the rules stand, a review of the case by appeal or certiorari before judgment is prohibited.
Moreover, if the appeal of a judgment granting permanent protection shall not stay its
enforcement,55 with more reason that a TPO, which is valid only for thirty (30) days at a
time,56 should not be enjoined.

The mere fact that a statute is alleged to be unconstitutional or invalid, does not of itself entitle a
litigant to have the same enjoined.57 In Younger v. Harris, Jr.,58 the Supreme Court of the United
States declared, thus:

Federal injunctions against state criminal statutes, either in their entirety or with respect to their
separate and distinct prohibitions, are not to be granted as a matter of course, even if such statutes
are unconstitutional. No citizen or member of the community is immune from prosecution, in good
faith, for his alleged criminal acts. The imminence of such a prosecution even though alleged to be
unauthorized and, hence, unlawful is not alone ground for relief in equity which exerts its
extraordinary powers only to prevent irreparable injury to the plaintiff who seeks its aid. (Citations
omitted)

The sole objective of injunctions is to preserve the status quo until the trial court hears fully the
merits of the case. It bears stressing, however, that protection orders are granted ex parte so as to
protect women and their children from acts of violence. To issue an injunction against such orders
will defeat the very purpose of the law against VAWC.

Notwithstanding all these procedural flaws, we shall not shirk from our obligation to determine novel
issues, or issues of first impression, with far-reaching implications. We have, time and again,
discharged our solemn duty as final arbiter of constitutional issues, and with more reason now, in
view of private respondent's plea in her Comment59 to the instant Petition that we should put the
challenge to the constitutionality of R.A. 9262 to rest. And so we shall.

Intent of Congress in enacting R.A. 9262.

Petitioner claims that since R.A. 9262 is intended to prevent and criminalize spousal and child
abuse, which could very well be committed by either the husband or the wife, gender alone is not
enough basis to deprive the husband/father of the remedies under the law.60

A perusal of the deliberations of Congress on Senate Bill No. 2723,61 which became R.A. 9262,
reveals that while the sponsor, Senator Luisa Pimentel-Ejercito (better known as Senator Loi
Estrada), had originally proposed what she called a "synthesized measure"62 – an amalgamation of
two measures, namely, the "Anti-Domestic Violence Act" and the "Anti-Abuse of Women in Intimate
Relationships Act"63 – providing protection to "all family members, leaving no one in isolation" but at
the same time giving special attention to women as the "usual victims" of violence and
abuse,64 nonetheless, it was eventually agreed that men be denied protection under the same
measure. We quote pertinent portions of the deliberations:

Wednesday, December 10, 2003

Senator Pangilinan. I just wanted to place this on record, Mr. President. Some women's groups have
expressed concerns and relayed these concerns to me that if we are to include domestic violence
apart from against women as well as other members of the household, including children or the
husband, they fear that this would weaken the efforts to address domestic violence of which the
main victims or the bulk of the victims really are the wives, the spouses or the female partners in a
relationship. We would like to place that on record. How does the good Senator respond to this kind
of observation?

Senator Estrada. Yes, Mr. President, there is this group of women who call themselves "WIIR"
Women in Intimate Relationship. They do not want to include men in this domestic violence. But
plenty of men are also being abused by women. I am playing safe so I placed here members of the
family, prescribing penalties therefor and providing protective measures for victims. This includes the
men, children, live-in, common-law wives, and those related with the family.65

xxx

Wednesday, January 14, 2004

xxxx

The President Pro Tempore. x x x

Also, may the Chair remind the group that there was the discussion whether to limit this to women
and not to families which was the issue of the AWIR group. The understanding that I have is that we
would be having a broader scope rather than just women, if I remember correctly, Madam sponsor.

Senator Estrada. Yes, Mr. President.

As a matter of fact, that was brought up by Senator Pangilinan during the interpellation period.

I think Senator Sotto has something to say to that.

Senator Legarda. Mr. President, the reason I am in support of the measure. Do not get me wrong.
However, I believe that there is a need to protect women's rights especially in the domestic
environment.

As I said earlier, there are nameless, countless, voiceless women who have not had the opportunity
to file a case against their spouses, their live-in partners after years, if not decade, of battery and
abuse. If we broaden the scope to include even the men, assuming they can at all be abused by the
women or their spouses, then it would not equalize the already difficult situation for women, Mr.
President.

I think that the sponsor, based on our earlier conversations, concurs with this position. I am sure that
the men in this Chamber who love their women in their lives so dearly will agree with this
representation. Whether we like it or not, it is an unequal world. Whether we like it or not, no matter
how empowered the women are, we are not given equal opportunities especially in the domestic
environment where the macho Filipino man would always feel that he is stronger, more superior to
the Filipino woman.

xxxx

The President Pro Tempore. What does the sponsor say?

Senator Estrada. Mr. President, before accepting this, the committee came up with this bill because
the family members have been included in this proposed measure since the other members of the
family other than women are also possible victims of violence. While women are most likely the
intended victims, one reason incidentally why the measure focuses on women, the fact remains that
in some relatively few cases, men also stand to be victimized and that children are almost always
the helpless victims of violence. I am worried that there may not be enough protection extended to
other family members particularly children who are excluded. Although Republic Act No. 7610, for
instance, more or less, addresses the special needs of abused children. The same law is
inadequate. Protection orders for one are not available in said law.

I am aware that some groups are apprehensive about granting the same protection to men, fearing
that they may use this law to justify their abusive behavior against women. However, we should also
recognize that there are established procedures and standards in our courts which give credence to
evidentiary support and cannot just arbitrarily and whimsically entertain baseless complaints.

Mr. President, this measure is intended to harmonize family relations and to protect the family as the
basic social institution. Though I recognize the unequal power relations between men and women in
our society, I believe we have an obligation to uphold inherent rights and dignity of both husband
and wife and their immediate family members, particularly children.

While I prefer to focus mainly on women, I was compelled to include other family members as a
critical input arrived at after a series of consultations/meetings with various NGOs, experts, sports
groups and other affected sectors, Mr. President.

Senator Sotto. Mr. President.

The President Pro Tempore. Yes, with the permission of the other senators.

Senator Sotto. Yes, with the permission of the two ladies on the Floor.

The President Pro Tempore. Yes, Sen. Vicente C. Sotto III is recognized.

Senator Sotto. I presume that the effect of the proposed amendment of Senator Legarda would be
removing the "men and children" in this particular bill and focus specifically on women alone. That
will be the net effect of that proposed amendment. Hearing the rationale mentioned by the
distinguished sponsor, Sen. Luisa "Loi" Ejercito Estrada, I am not sure now whether she is inclined
to accept the proposed amendment of Senator Legarda.

I am willing to wait whether she is accepting this or not because if she is going to accept this, I will
propose an amendment to the amendment rather than object to the amendment, Mr. President.

xxxx

Senator Estrada. The amendment is accepted, Mr. President.

The President Pro Tempore. Is there any objection?

xxxx

Senator Sotto. x x x May I propose an amendment to the amendment.

The President Pro Tempore. Before we act on the amendment?

Senator Sotto. Yes, Mr. President.

The President Pro Tempore. Yes, please proceed.

Senator Sotto. Mr. President, I am inclined to believe the rationale used by the distinguished
proponent of the amendment. As a matter of fact, I tend to agree. Kung may maaabuso, mas
malamang iyong babae kaysa sa lalake. At saka iyong mga lalake, puwede na talagang magulpi
iyan. Okey lang iyan. But I cannot agree that we remove the children from this particular measure.

So, if I may propose an amendment –

The President Pro Tempore. To the amendment.

Senator Sotto. – more than the women, the children are very much abused. As a matter of fact, it is
not limited to minors. The abuse is not limited to seven, six, 5-year-old children. I have seen 14, 15-
year-old children being abused by their fathers, even by their mothers. And it breaks my heart to find
out about these things.

Because of the inadequate existing law on abuse of children, this particular measure will update that.
It will enhance and hopefully prevent the abuse of children and not only women.

SOTTO-LEGARDA AMENDMENTS

Therefore, may I propose an amendment that, yes, we remove the aspect of the men in the bill but
not the children.

Senator Legarda. I agree, Mr. President, with the Minority Leader.

The President Pro Tempore. Effectively then, it will be women AND CHILDREN.

Senator Sotto. Yes, Mr. President.

Senator Estrada. It is accepted, Mr. President.

The President Pro Tempore. Is there any objection? [Silence] There being none, the amendment, as
amended, is approved.66

It is settled that courts are not concerned with the wisdom, justice, policy, or expediency of a
statute.67 Hence, we dare not venture into the real motivations and wisdom of the members of
Congress in limiting the protection against violence and abuse under R.A. 9262 to women and
children only. No proper challenge on said grounds may be entertained in this proceeding. Congress
has made its choice and it is not our prerogative to supplant this judgment. The choice may be
perceived as erroneous but even then, the remedy against it is to seek its amendment or repeal by
the legislative. By the principle of separation of powers, it is the legislative that determines the
necessity, adequacy, wisdom and expediency of any law.68 We only step in when there is a violation
of the Constitution. However, none was sufficiently shown in this case.

R.A. 9262 does not violate the guaranty of equal protection of the laws.
Equal protection simply requires that all persons or things similarly situated should be treated alike,
both as to rights conferred and responsibilities imposed. The oft-repeated disquisition in the early
case of Victoriano v. Elizalde Rope Workers' Union69 is instructive:

The guaranty of equal protection of the laws is not a guaranty of equality in the application of the
laws upon all citizens of the state. It is not, therefore, a requirement, in order to avoid the
constitutional prohibition against inequality, that every man, woman and child should be affected
alike by a statute. Equality of operation of statutes does not mean indiscriminate operation on
persons merely as such, but on persons according to the circumstances surrounding them. It
guarantees equality, not identity of rights. The Constitution does not require that things which are
different in fact be treated in law as though they were the same. The equal protection clause does
not forbid discrimination as to things that are different. It does not prohibit legislation which is limited
either in the object to which it is directed or by the territory within which it is to operate.

The equal protection of the laws clause of the Constitution allows classification. Classification in law,
as in the other departments of knowledge or practice, is the grouping of things in speculation or
practice because they agree with one another in certain particulars. A law is not invalid because of
simple inequality. The very idea of classification is that of inequality, so that it goes without saying
that the mere fact of inequality in no manner determines the matter of constitutionality. All that is
required of a valid classification is that it be reasonable, which means that the classification should
be based on substantial distinctions which make for real differences; that it must be germane to the
purpose of the law; that it must not be limited to existing conditions only; and that it must apply
equally to each member of the class. This Court has held that the standard is satisfied if the
classification or distinction is based on a reasonable foundation or rational basis and is not palpably
arbitrary. (Emphasis supplied)

Measured against the foregoing jurisprudential yardstick, we find that R.A. 9262 is based on a valid
classification as shall hereinafter be discussed and, as such, did not violate the equal protection
clause by favoring women over men as victims of violence and abuse to whom the State extends its
protection.

I. R.A. 9262 rests on substantial distinctions.

The unequal power relationship between women and men; the fact that women are more likely than
men to be victims of violence; and the widespread gender bias and prejudice against women all
make for real differences justifying the classification under the law. As Justice McIntyre succinctly
states, "the accommodation of differences ... is the essence of true equality."70

A. Unequal power relationship between men and women

According to the Philippine Commission on Women (the National Machinery for Gender Equality and
Women's Empowerment), violence against women (VAW) is deemed to be closely linked with the
unequal power relationship between women and men otherwise known as "gender-based violence".
Societal norms and traditions dictate people to think men are the leaders, pursuers, providers, and
take on dominant roles in society while women are nurturers, men's companions and supporters,
and take on subordinate roles in society. This perception leads to men gaining more power over
women. With power comes the need to control to retain that power. And VAW is a form of men's
expression of controlling women to retain power.71

The United Nations, which has long recognized VAW as a human rights issue, passed its Resolution
48/104 on the Declaration on Elimination of Violence Against Women on December 20, 1993 stating
that "violence against women is a manifestation of historically unequal power relations between men
and women, which have led to domination over and discrimination against women by men and to the
prevention of the full advancement of women, and that violence against women is one of the crucial
social mechanisms by which women are forced into subordinate positions, compared with men."72

Then Chief Justice Reynato S. Puno traced the historical and social context of gender-based
violence and developments in advocacies to eradicate VAW, in his remarks delivered during the
Joint Launching of R.A. 9262 and its Implementing Rules last October 27, 2004, the pertinent
portions of which are quoted hereunder:

History reveals that most societies sanctioned the use of violence against women. The patriarch of a
family was accorded the right to use force on members of the family under his control. I quote the
early studies:

Traditions subordinating women have a long history rooted in patriarchy – the institutional rule of
men. Women were seen in virtually all societies to be naturally inferior both physically and
intellectually. In ancient Western societies, women whether slave, concubine or wife, were under the
authority of men. In law, they were treated as property.

The Roman concept of patria potestas allowed the husband to beat, or even kill, his wife if she
endangered his property right over her. Judaism, Christianity and other religions oriented towards
the patriarchal family strengthened the male dominated structure of society.

English feudal law reinforced the tradition of male control over women. Even the eminent Blackstone
has been quoted in his commentaries as saying husband and wife were one and that one was the
husband. However, in the late 1500s and through the entire 1600s, English common law began to
limit the right of husbands to chastise their wives. Thus, common law developed the rule of thumb,
which allowed husbands to beat their wives with a rod or stick no thicker than their thumb.

In the later part of the 19th century, legal recognition of these rights to chastise wives or inflict
corporeal punishment ceased. Even then, the preservation of the family was given more importance
than preventing violence to women.

The metamorphosis of the law on violence in the United States followed that of the English common
law. In 1871, the Supreme Court of Alabama became the first appellate court to strike down the
common law right of a husband to beat his wife:

The privilege, ancient though it may be, to beat one's wife with a stick, to pull her hair, choke her,
spit in her face or kick her about the floor, or to inflict upon her like indignities, is not now
acknowledged by our law... In person, the wife is entitled to the same protection of the law that the
husband can invoke for himself.

As time marched on, the women's advocacy movement became more organized. The temperance
leagues initiated it. These leagues had a simple focus. They considered the evils of alcoholism as
the root cause of wife abuse. Hence, they demonstrated and picketed saloons, bars and their
husbands' other watering holes. Soon, however, their crusade was joined by suffragette movements,
expanding the liberation movement's agenda. They fought for women's right to vote, to own
property, and more. Since then, the feminist movement was on the roll.

The feminist movement exposed the private invisibility of the domestic violence to the public gaze.
They succeeded in transforming the issue into an important public concern. No less than the United
States Supreme Court, in 1992 case Planned Parenthood v. Casey, noted:
In an average 12-month period in this country, approximately two million women are the victims of
severe assaults by their male partners. In a 1985 survey, women reported that nearly one of every
eight husbands had assaulted their wives during the past year. The [American Medical Association]
views these figures as "marked underestimates," because the nature of these incidents discourages
women from reporting them, and because surveys typically exclude the very poor, those who do not
speak English well, and women who are homeless or in institutions or hospitals when the survey is
conducted. According to the AMA, "researchers on family violence agree that the true incidence of
partner violence is probably double the above estimates; or four million severely assaulted women
per year."

Studies on prevalence suggest that from one-fifth to one-third of all women will be physically
assaulted by a partner or ex-partner during their lifetime... Thus on an average day in the United
States, nearly 11,000 women are severely assaulted by their male partners. Many of these incidents
involve sexual assault... In families where wife beating takes place, moreover, child abuse is often
present as well.

Other studies fill in the rest of this troubling picture. Physical violence is only the most visible form of
abuse. Psychological abuse, particularly forced social and economic isolation of women, is also
common.

Many victims of domestic violence remain with their abusers, perhaps because they perceive no
superior alternative...Many abused women who find temporary refuge in shelters return to their
husbands, in large part because they have no other source of income... Returning to one's abuser
can be dangerous. Recent Federal Bureau of Investigation statistics disclose that 8.8 percent of all
homicide victims in the United States are killed by their spouses...Thirty percent of female homicide
victims are killed by their male partners.

Finally in 1994, the United States Congress enacted the Violence Against Women Act.

In the International front, the women's struggle for equality was no less successful. The United
States Charter and the Universal Declaration of Human Rights affirmed the equality of all human
beings. In 1979, the UN General Assembly adopted the landmark Convention on the Elimination of
all Forms of Discrimination Against Women (CEDAW). In 1993, the UN General Assembly also
adopted the Declaration on the Elimination of Violence Against Women. World conferences on the
role and rights of women have been regularly held in Mexico City, Copenhagen, Nairobi and Beijing.
The UN itself established a Commission on the Status of Women.

The Philippines has been in cadence with the half – and full – steps of all these women's
movements. No less than Section 14, Article II of our 1987 Constitution mandates the State to
recognize the role of women in nation building and to ensure the fundamental equality before the law
of women and men. Our Senate has ratified the CEDAW as well as the Convention on the Rights of
the Child and its two protocols. To cap it all, Congress, on March 8, 2004, enacted Rep. Act No.
9262, entitled "An Act Defining Violence Against Women and Their Children, Providing for Protective
Measures for Victims, Prescribing Penalties therefor and for other Purposes." (Citations omitted)

B. Women are the "usual" and "most likely"

victims of violence.

At the time of the presentation of Senate Bill No. 2723, official statistics on violence against women
and children show that –
x x x physical injuries had the highest number of cases at 5,058 in 2002 representing 55.63% of total
cases reported (9,903). And for the first semester of 2003, there were 2,381 reported cases out of
4,354 cases which represent 54.31%. xxx (T)he total number of women in especially difficult
circumstances served by the Department of Social Welfare and Development (DSWD) for the year
2002, there are 1,417 physically abused/maltreated cases out of the total of 5,608 cases. xxx
(T)here are 1,091 DSWD cases out of a total number of 3,471 cases for the first semester of 2003.
Female violence comprised more than 90% of all forms of abuse and violence and more than 90% of
these reported cases were committed by the women's intimate partners such as their husbands and
live-in partners.73

Recently, the Philippine Commission on Women presented comparative statistics on violence

against women across an eight-year period from 2004 to August of 2011 with violations under R.A.
9262 ranking first among the different VAW categories since its implementation in 2004,74 thus:

Table 1. Annual Comparative Statistics on Violence Against Women, 2004 - 2011*

Reported 200 200 200 200 200 200

2010 2011
Cases 4 5 6 7 8 9

Rape 997 927 659 837 811 770 1,042 832

Incestuous
38 46 26 22 28 27 19 23
Rape

Attempted
194 148 185 147 204 167 268 201
Rape

Acts of
Lasciviousne 580 536 382 358 445 485 745 625
ss

Physical 3,55 2,33 1,89 1,50 1,30 1,49

2,018 1,588
Injuries 3 5 2 5 7 8

Sexual
53 37 38 46 18 54 83 63
Harassment

1,26 2,38 3,59 5,28

RA 9262 218 924 9,974 9,021
9 7 9 5

Threats 319 223 199 182 220 208 374 213

 Seduction 62 19 29 30 19 19 25 15

Concubinag
121 102 93 109 109 99 158 128
e

RA 9208 17 11 16 24 34 152 190 62

Abduction
/Kidnapping 16 34 23 28 18 25 22
29

Unjust
90 50 59 59 83 703 183 155
Vexation

6,27 5,37 4,88 5,72 6,90 9,48 15,10 12,94

Total
1 4 1 9 5 5 4 8

*2011 report covers only from January to August

Source: Philippine National Police – Women and Children Protection Center (WCPC)

On the other hand, no reliable estimates may be obtained on domestic abuse and violence against
men in the Philippines because incidents thereof are relatively low and, perhaps, because many
men will not even attempt to report the situation. In the United Kingdom, 32% of women who had
ever experienced domestic violence did so four or five (or more) times, compared with 11% of the
smaller number of men who had ever experienced domestic violence; and women constituted 89%
of all those who had experienced 4 or more incidents of domestic violence.75Statistics in Canada
show that spousal violence by a woman against a man is less likely to cause injury than the other
way around (18 percent versus 44 percent). Men, who experience violence from their spouses are
much less likely to live in fear of violence at the hands of their spouses, and much less likely to
experience sexual assault. In fact, many cases of physical violence by a woman against a spouse
are in self-defense or the result of many years of physical or emotional abuse.76

While there are, indeed, relatively few cases of violence and abuse perpetrated against men in the
Philippines, the same cannot render R.A. 9262 invalid.

In a 1960 case involving the violation of a city ordinance requiring drivers of animal-drawn vehicles
to pick up, gather and deposit in receptacles the manure emitted or discharged by their vehicle-
drawing animals in any public highways, streets, plazas, parks or alleys, said ordinance was
challenged as violative of the guaranty of equal protection of laws as its application is limited to
owners and drivers of vehicle-drawing animals and not to those animals, although not utilized, but
similarly pass through the same streets.

The ordinance was upheld as a valid classification for the reason that, while there may be non-
vehicle-drawing animals that also traverse the city roads, "but their number must be negligible and
their appearance therein merely occasional, compared to the rig-drawing ones, as not to constitute a
menace to the health of the community."77 The mere fact that the legislative classification may result
in actual inequality is not violative of the right to equal protection, for every classification of persons
or things for regulation by law produces inequality in some degree, but the law is not thereby
rendered invalid.78

C. Gender bias and prejudices

From the initial report to the police through prosecution, trial, and sentencing, crimes against women
are often treated differently and less seriously than other crimes. This was argued by then United
States Senator Joseph R. Biden, Jr., now Vice President, chief sponsor of the Violence Against
Women Act (VAWA), in defending the civil rights remedy as a valid exercise of the U.S. Congress'
authority under the Commerce and Equal Protection Clauses. He stressed that the widespread
gender bias in the U.S. has institutionalized historic prejudices against victims of rape or domestic
violence, subjecting them to "double victimization" – first at the hands of the offender and then of the
legal system.79

Our own Senator Loi Estrada lamented in her Sponsorship Speech for Senate Bill No. 2723 that
"(w)henever violence occurs in the family, the police treat it as a private matter and advise the
parties to settle the conflict themselves. Once the complainant brings the case to the prosecutor, the
latter is hesitant to file the complaint for fear that it might later be withdrawn. This lack of response or
reluctance to be involved by the police and prosecution reinforces the escalating, recurring and often
serious nature of domestic violence."80

Sadly, our own courts, as well, have exhibited prejudices and biases against our women.

In a recent case resolved on March 9, 2011, we fined RTC Judge Venancio J. Amila for Conduct
Unbecoming of a Judge. He used derogatory and irreverent language in reference to the
complainant in a petition for TPO and PPO under R.A. 9262, calling her as "only a live-in partner"
and presenting her as an "opportunist" and a "mistress" in an "illegitimate relationship." Judge Amila
even called her a "prostitute," and accused her of being motivated by "insatiable greed" and of
absconding with the contested property.81 Such remarks betrayed Judge Amila's prejudices and lack
of gender sensitivity.

The enactment of R.A. 9262 aims to address the discrimination brought about by biases and
prejudices against women. As emphasized by the CEDAW Committee on the Elimination of
Discrimination against Women, addressing or correcting discrimination through specific measures
focused on women does not discriminate against men.82Petitioner's contention,83 therefore, that R.A.
9262 is discriminatory and that it is an "anti-male," "husband-bashing," and "hate-men" law deserves
scant consideration. As a State Party to the CEDAW, the Philippines bound itself to take all
appropriate measures "to modify the social and cultural patterns of conduct of men and women, with
a view to achieving the elimination of prejudices and customary and all other practices which are
based on the idea of the inferiority or the superiority of either of the sexes or on stereotyped roles for
men and women."84 Justice Puno correctly pointed out that "(t)he paradigm shift changing the
character of domestic violence from a private affair to a public offense will require the development
of a distinct mindset on the part of the police, the prosecution and the judges."85

II. The classification is germane to the purpose of the law.

The distinction between men and women is germane to the purpose of R.A. 9262, which is to
address violence committed against women and children, spelled out in its Declaration of Policy, as
follows:
SEC. 2. Declaration of Policy. – It is hereby declared that the State values the dignity of women and
children and guarantees full respect for human rights. The State also recognizes the need to protect
the family and its members particularly women and children, from violence and threats to their
personal safety and security.

Towards this end, the State shall exert efforts to address violence committed against women and
children in keeping with the fundamental freedoms guaranteed under the Constitution and the
provisions of the Universal Declaration of Human Rights, the Convention on the Elimination of All
Forms of Discrimination Against Women, Convention on the Rights of the Child and other
international human rights instruments of which the Philippines is a party.

In 1979, the U.N. General Assembly adopted the CEDAW, which the Philippines ratified on August
5, 1981. Subsequently, the Optional Protocol to the CEDAW was also ratified by the Philippines on
October 6, 2003.86 This Convention mandates that State parties shall accord to women equality with
men before the law87 and shall take all appropriate measures to eliminate discrimination against
women in all matters relating to marriage and family relations on the basis of equality of men and
women.88 The Philippines likewise ratified the Convention on the Rights of the Child and its two
protocols.89 It is, thus, bound by said Conventions and their respective protocols.

III. The classification is not limited to existing

conditions only, and apply equally to all members

Moreover, the application of R.A. 9262 is not limited to the existing conditions when it was
promulgated, but to future conditions as well, for as long as the safety and security of women and
their children are threatened by violence and abuse.

R.A. 9262 applies equally to all women and children who suffer violence and abuse. Section 3
thereof defines VAWC as:

x x x any act or a series of acts committed by any person against a woman who is his wife, former
wife, or against a woman with whom the person has or had a sexual or dating relationship, or with
whom he has a common child, or against her child whether legitimate or illegitimate, within or without
the family abode, which result in or is likely to result in physical, sexual, psychological harm or
suffering, or economic abuse including threats of such acts, battery, assault, coercion, harassment
or arbitrary deprivation of liberty. It includes, but is not limited to, the following acts:

A. "Physical Violence" refers to acts that include bodily or physical harm;

B. "Sexual violence" refers to an act which is sexual in nature, committed against a woman or her
child. It includes, but is not limited to:

a) rape, sexual harassment, acts of lasciviousness, treating a woman or her child as

a sex object, making demeaning and sexually suggestive remarks, physically
attacking the sexual parts of the victim's body, forcing her/him to watch obscene
publications and indecent shows or forcing the woman or her child to do indecent
acts and/or make films thereof, forcing the wife and mistress/lover to live in the
conjugal home or sleep together in the same room with the abuser;
 b) acts causing or attempting to cause the victim to engage in any sexual activity by
force, threat of force, physical or other harm or threat of physical or other harm or
coercion;

c) Prostituting the woman or child.

C. "Psychological violence" refers to acts or omissions causing or likely to cause mental or emotional
suffering of the victim such as but not limited to intimidation, harassment, stalking, damage to
property, public ridicule or humiliation, repeated verbal abuse and marital infidelity. It includes
causing or allowing the victim to witness the physical, sexual or psychological abuse of a member of
the family to which the victim belongs, or to witness pornography in any form or to witness abusive
injury to pets or to unlawful or unwanted deprivation of the right to custody and/or visitation of
common children.

D. "Economic abuse" refers to acts that make or attempt to make a woman financially dependent
which includes, but is not limited to the following:

1. withdrawal of financial support or preventing the victim from engaging in any

legitimate profession, occupation, business or activity, except in cases wherein the
other spouse/partner objects on valid, serious and moral grounds as defined in
Article 73 of the Family Code;

2. deprivation or threat of deprivation of financial resources and the right to the use
and enjoyment of the conjugal, community or property owned in common;

3. destroying household property;

4. controlling the victims' own money or properties or solely controlling the conjugal
money or properties.

It should be stressed that the acts enumerated in the aforequoted provision are attributable to
research that has exposed the dimensions and dynamics of battery. The acts described here are
also found in the U.N. Declaration on the Elimination of Violence Against Women.90 Hence, the
argument advanced by petitioner that the definition of what constitutes abuse removes the difference
between violent action and simple marital tiffs is tenuous.

There is nothing in the definition of VAWC that is vague and ambiguous that will confuse petitioner in
his defense. The acts enumerated above are easily understood and provide adequate contrast
between the innocent and the prohibited acts. They are worded with sufficient definiteness that
persons of ordinary intelligence can understand what conduct is prohibited, and need not guess at
its meaning nor differ in its application.91 Yet, petitioner insists92that phrases like "depriving or
threatening to deprive the woman or her child of a legal right," "solely controlling the conjugal or
common money or properties," "marital infidelity," and "causing mental or emotional anguish" are so
vague that they make every quarrel a case of spousal abuse. However, we have stressed that the
"vagueness" doctrine merely requires a reasonable degree of certainty for the statute to be upheld –
not absolute precision or mathematical exactitude, as petitioner seems to suggest. Flexibility, rather
than meticulous specificity, is permissible as long as the metes and bounds of the statute are clearly
delineated. An act will not be held invalid merely because it might have been more explicit in its
wordings or detailed in its provisions.93

There is likewise no merit to the contention that R.A. 9262 singles out the husband or father as the
culprit. As defined above, VAWC may likewise be committed "against a woman with whom the
person has or had a sexual or dating relationship." Clearly, the use of the gender-neutral word
"person" who has or had a sexual or dating relationship with the woman encompasses even lesbian
relationships. Moreover, while the law provides that the offender be related or connected to the
victim by marriage, former marriage, or a sexual or dating relationship, it does not preclude the
application of the principle of conspiracy under the Revised Penal Code (RPC). Thus, in the case of
Go-Tan v. Spouses Tan,94 the parents-in-law of Sharica Mari L. Go-Tan, the victim, were held to be
proper respondents in the case filed by the latter upon the allegation that they and their son (Go-
Tan's husband) had community of design and purpose in tormenting her by giving her insufficient
financial support; harassing and pressuring her to be ejected from the family home; and in
repeatedly abusing her verbally, emotionally, mentally and physically.

R.A. 9262 is not violative of the

due process clause of the Constitution.

Petitioner bewails the disregard of R.A. 9262, specifically in the issuance of POs, of all protections
afforded by the due process clause of the Constitution. Says he: "On the basis of unsubstantiated
allegations, and practically no opportunity to respond, the husband is stripped of family, property,
guns, money, children, job, future employment and reputation, all in a matter of seconds, without an
inkling of what happened."95

A protection order is an order issued to prevent further acts of violence against women and their
children, their family or household members, and to grant other necessary reliefs. Its purpose is to
safeguard the offended parties from further harm, minimize any disruption in their daily life and
facilitate the opportunity and ability to regain control of their life.96

"The scope of reliefs in protection orders is broadened to ensure that the victim or offended party is
afforded all the remedies necessary to curtail access by a perpetrator to the victim. This serves to
safeguard the victim from greater risk of violence; to accord the victim and any designated family or
household member safety in the family residence, and to prevent the perpetrator from committing
acts that jeopardize the employment and support of the victim. It also enables the court to award
temporary custody of minor children to protect the children from violence, to prevent their abduction
by the perpetrator and to ensure their financial support."97

The rules require that petitions for protection order be in writing, signed and verified by the
petitioner98 thereby undertaking full responsibility, criminal or civil, for every allegation therein. Since
"time is of the essence in cases of VAWC if further violence is to be prevented,"99 the court is
authorized to issue ex parte a TPO after raffle but before notice and hearing when the life, limb or
property of the victim is in jeopardy and there is reasonable ground to believe that the order is
necessary to protect the victim from the immediate and imminent danger of VAWC or to prevent
such violence, which is about to recur.100

There need not be any fear that the judge may have no rational basis to issue an ex parte order. The
victim is required not only to verify the allegations in the petition, but also to attach her witnesses'
affidavits to the petition.101

The grant of a TPO ex parte cannot, therefore, be challenged as violative of the right to due process.
Just like a writ of preliminary attachment which is issued without notice and hearing because the
time in which the hearing will take could be enough to enable the defendant to abscond or dispose of
his property,102 in the same way, the victim of VAWC may already have suffered harrowing
experiences in the hands of her tormentor, and possibly even death, if notice and hearing were
required before such acts could be prevented. It is a constitutional commonplace that the ordinary
requirements of procedural due process must yield to the necessities of protecting vital public
interests,103among which is protection of women and children from violence and threats to their
personal safety and security.

It should be pointed out that when the TPO is issued ex parte, the court shall likewise order that
notice be immediately given to the respondent directing him to file an opposition within five (5) days
from service. Moreover, the court shall order that notice, copies of the petition and TPO be served
immediately on the respondent by the court sheriffs. The TPOs are initially effective for thirty (30)
days from service on the respondent.104

Where no TPO is issued ex parte, the court will nonetheless order the immediate issuance and
service of the notice upon the respondent requiring him to file an opposition to the petition within five
(5) days from service. The date of the preliminary conference and hearing on the merits shall
likewise be indicated on the notice.105

The opposition to the petition which the respondent himself shall verify, must be accompanied by the
affidavits of witnesses and shall show cause why a temporary or permanent protection order should
not be issued.106

It is clear from the foregoing rules that the respondent of a petition for protection order should be
apprised of the charges imputed to him and afforded an opportunity to present his side. Thus, the
fear of petitioner of being "stripped of family, property, guns, money, children, job, future employment
and reputation, all in a matter of seconds, without an inkling of what happened" is a mere product of
an overactive imagination. The essence of due process is to be found in the reasonable opportunity
to be heard and submit any evidence one may have in support of one's defense. "To be heard" does
not only mean verbal arguments in court; one may be heard also through pleadings. Where
opportunity to be heard, either through oral arguments or pleadings, is accorded, there is no denial
of procedural due process.107

It should be recalled that petitioner filed on April 26, 2006 an Opposition to the Urgent Ex-Parte
Motion for Renewal of the TPO that was granted only two days earlier on April 24, 2006. Likewise,
on May 23, 2006, petitioner filed a motion for the modification of the TPO to allow him visitation
rights to his children. Still, the trial court in its Order dated September 26, 2006, gave him five days
(5) within which to show cause why the TPO should not be renewed or extended. Yet, he chose not
to file the required comment arguing that it would just be an "exercise in futility," conveniently
forgetting that the renewal of the questioned TPO was only for a limited period (30 days) each time,
and that he could prevent the continued renewal of said order if he can show sufficient cause
therefor. Having failed to do so, petitioner may not now be heard to complain that he was denied due
process of law.

Petitioner next laments that the removal and exclusion of the respondent in the VAWC case from the
residence of the victim, regardless of ownership of the residence, is virtually a "blank check" issued
to the wife to claim any property as her conjugal home.108

The wording of the pertinent rule, however, does not by any stretch of the imagination suggest that
this is so. It states:

SEC. 11. Reliefs available to the offended party. -- The protection order shall include any, some or
all of the following reliefs:

xxxx
(c) Removing and excluding the respondent from the residence of the offended party, regardless of
ownership of the residence, either temporarily for the purpose of protecting the offended party, or
permanently where no property rights are violated. If the respondent must remove personal effects
from the residence, the court shall direct a law enforcement agent to accompany the respondent to
the residence, remain there until the respondent has gathered his things and escort him from the
residence;

xxxx

Indubitably, petitioner may be removed and excluded from private respondent's residence,
regardless of ownership, only temporarily for the purpose of protecting the latter. Such removal and
exclusion may be permanent only where no property rights are violated. How then can the private
respondent just claim any property and appropriate it for herself, as petitioner seems to suggest?

The non-referral of a VAWC case

to a mediator is justified.

Petitioner argues that "by criminalizing run-of-the-mill arguments, instead of encouraging mediation
and counseling, the law has done violence to the avowed policy of the State to "protect and
strengthen the family as a basic autonomous social institution."109

Under Section 23(c) of A.M. No. 04-10-11-SC, the court shall not refer the case or any issue thereof
to a mediator. The reason behind this provision is well-explained by the Commentary on Section 311
of the Model Code on Domestic and Family Violence as follows:110

This section prohibits a court from ordering or referring parties to mediation in a proceeding for an
order for protection. Mediation is a process by which parties in equivalent bargaining positions
voluntarily reach consensual agreement about the issue at hand. Violence, however, is not a subject
for compromise. A process which involves parties mediating the issue of violence implies that the
victim is somehow at fault. In addition, mediation of issues in a proceeding for an order of protection
is problematic because the petitioner is frequently unable to participate equally with the person
against whom the protection order has been sought. (Emphasis supplied)

There is no undue delegation of

judicial power to barangay officials.

Petitioner contends that protection orders involve the exercise of judicial power which, under the
Constitution, is placed upon the "Supreme Court and such other lower courts as may be established
by law" and, thus, protests the delegation of power to barangay officials to issue protection
orders.111 The pertinent provision reads, as follows:

SEC. 14. Barangay Protection Orders (BPOs); Who May Issue and How. – Barangay Protection
Orders (BPOs) refer to the protection order issued by the Punong Barangay ordering the perpetrator
to desist from committing acts under Section 5 (a) and (b) of this Act. A Punong Barangay who
1âwphi1

receives applications for a BPO shall issue the protection order to the applicant on the date of filing
after ex parte determination of the basis of the application. If the Punong Barangay is unavailable to
act on the application for a BPO, the application shall be acted upon by any available Barangay
Kagawad. If the BPO is issued by a Barangay Kagawad, the order must be accompanied by an
attestation by the Barangay Kagawad that the Punong Barangay was unavailable at the time of the
issuance of the BPO. BPOs shall be effective for fifteen (15) days. Immediately after the issuance of
an ex parte BPO, the Punong Barangay or Barangay Kagawad shall personally serve a copy of the
same on the respondent, or direct any barangay official to effect its personal service.
The parties may be accompanied by a non-lawyer advocate in any proceeding before the Punong
Barangay.

Judicial power includes the duty of the courts of justice to settle actual controversies involving rights
which are legally demandable and enforceable, and to determine whether or not there has been a
grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or
instrumentality of the Government.112 On the other hand, executive power "is generally defined as
the power to enforce and administer the laws. It is the power of carrying the laws into practical
operation and enforcing their due observance."113

As clearly delimited by the aforequoted provision, the BPO issued by the Punong Barangay or, in his
unavailability, by any available Barangay Kagawad, merely orders the perpetrator to desist from (a)
causing physical harm to the woman or her child; and (2) threatening to cause the woman or her
child physical harm. Such function of the Punong Barangay is, thus, purely executive in nature, in
pursuance of his duty under the Local Government Code to "enforce all laws and ordinances," and to
"maintain public order in the barangay."114

We have held that "(t)he mere fact that an officer is required by law to inquire into the existence of
certain facts and to apply the law thereto in order to determine what his official conduct shall be and
the fact that these acts may affect private rights do not constitute an exercise of judicial powers."115

In the same manner as the public prosecutor ascertains through a preliminary inquiry or proceeding
"whether there is reasonable ground to believe that an offense has been committed and the accused
is probably guilty thereof," the Punong Barangay must determine reasonable ground to believe that
an imminent danger of violence against the woman and her children exists or is about to recur that
would necessitate the issuance of a BPO. The preliminary investigation conducted by the prosecutor
is, concededly, an executive, not a judicial, function. The same holds true with the issuance of a
BPO.

We need not even belabor the issue raised by petitioner that since barangay officials and other law
enforcement agencies are required to extend assistance to victims of violence and abuse, it would
be very unlikely that they would remain objective and impartial, and that the chances of acquittal are
nil. As already stated, assistance by barangay officials and other law enforcement agencies is
consistent with their duty to enforce the law and to maintain peace and order.

Conclusion

Before a statute or its provisions duly challenged are voided, an unequivocal breach of, or a clear
conflict with the Constitution, not merely a doubtful or argumentative one, must be demonstrated in
such a manner as to leave no doubt in the mind of the Court. In other words, the grounds for nullity
must be beyond reasonable doubt.116 In the instant case, however, no concrete evidence and
convincing arguments were presented by petitioner to warrant a declaration of the unconstitutionality
of R.A. 9262, which is an act of Congress and signed into law by the highest officer of the co-equal
executive department. As we said in Estrada v. Sandiganbayan, 117 courts must assume that the
legislature is ever conscious of the borders and edges of its plenary powers, and passed laws with
full knowledge of the facts and for the purpose of promoting what is right and advancing the welfare
of the majority.

We reiterate here Justice Puno's observation that "the history of the women's movement against
domestic violence shows that one of its most difficult struggles was the fight against the violence of
law itself. If we keep that in mind, law will not again be a hindrance to the struggle of women for
equality but will be its fulfillment."118 Accordingly, the constitutionality of R.A. 9262 is, as it should be,
sustained.

WHEREFORE, the instant petition for review on certiorari is hereby DENIED for lack of merit.

SO ORDERED.
Guingguing v. People, G.R. No. 128959, 30 September 2005.

Republic of the Philippines

SUPREME COURT

SECOND DIVISION

G.R. No. 128959 September 30, 2005

CIRIACO ‘BOY’ GUINGGUING, Petitioners,

vs.
THE HONORABLE COURT OF APPEALS and THE PEOPLE OF THE
PHILIPPINES, Respondents.

DECISION

Tinga, J.:

The liberty of the press is indeed essential. Whoever would overthrow the liberty of a nation must
begin by subduing the freeness of speech.

- Benjamin Franklin1

The right of free expression stands as a hallmark of the modern democratic and humane state.2 Not
only does it assure a person’s right to say freely what is thought freely, it likewise evinces the polity’s
freedom from psychological insecurity. This fundamental liberty is translated into the constitutional
guarantee that no law shall be passed abridging the freedom of speech, of expression, or the
press,3 contained in the Bill of Rights,4 which itself obtains a position of primacy in our fundamental
law.5

Criminal libel laws present a special problem. At face value, they might strike as laws passed that
abridge the freedom of speech, expression, or the press. Whatever seeming conflict between these
two precepts has long been judicially resolved with the doctrine that libelous speech does not fall
within the ambit of constitutional protection. Nonetheless, in ascertaining what class of materials may
be considered as libelous, the freedom of expression clause, its purposes as well as the evils it
guards against, warrant primordial consideration and application.

Before this Court is a Petition for Review under Rule 45 of the 1997 Rules of Civil Procedure,
assailing the Decision6 and the Resolution7 of the Court of Appeals (CA) dated 29 July 1996 and 3
October 1996, respectively, in CA-G.R. CR No. 16413. The CA affirmed with modification8 the
decision9 rendered by the Regional Trial Court (RTC), Branch 7 of Cebu City, finding Ciriaco "Boy"
Guingguing (petitioner) and Segundo Lim (Lim) guilty beyond reasonable doubt of the crime of libel.
This petition for certiorari was filed by petitioner alone, hence the verdict of guilt with respect to Lim
had already become final and executory.

The antecedent facts follow.

This case originated from a criminal complaint for libel filed by Cirse "Choy" Torralba (complainant)
against Lim and petitioner under Criminal Case No. CBU-26582. Complainant was a broadcast
journalist who handled two programs for radio stations DYLA and DYFX. The radio stations were
based in Cebu City but the programs were aired over a large portion of the Visayas and Mindanao.10
On 13 October 1991, Lim caused the publication of records of criminal cases filed against
complainant as well as photographs11 of the latter being arrested. These were published by means of
a one-page advertisement paid for by Lim in the Sunday Post, a weekly publication edited and
published by petitioner. The Sunday Post was circulated in the province of Bohol, as well as in the
Visayas and Mindanao.12 The full text of the advertisement which was the basis of the
information13 for libel reads:

REQUEST FOR PUBLIC SERVICE

ATTN: RADIOMAN CHOY TORRALBA, STATION DYFX, CEBU CITY

TEXT: IN THE INTEREST OF PUBLIC SERVICE, PLEASE DO ENLIGHTEN ME REGARDING THE

DISPOSITION OF THE FOLLOWING WHICH APPEAR HEREUNDER. THE CASES WERE
FOUND IN THE BLOTTER OF THE CEBU CITY POLICE DEPARTMENT. PLEASE DO TELL ME
THE STATUS OF THOSE CASES, WHETHER THEY HAVE BEEN DISMISSED, ARCHIVED
AND/OR PENDING.

Name: CIRSE ‘CHOY’ TORRALBA

CRIM. CASE NO. R-43035

FOR: MALICIOUS MISCHIEF

DATE FILED: MAY 10, 1979

COMPLAINANTS: DR. JOVENAL ALMENDRAS

ADDRESS: ALMENDRAS ST., MABOLO, CEBU CITY

MR. VICTORIANO VELOSO

ADDRESS: 117 HIPODROMO, MABOLO, CEBU CITY

DISPOSITION: PENDING ARREST

CRIM. CASE NO. 17984-R

FOR : ESTAFA

DATE FILED: July 12, 1982

COMPLAINANTS: MR. PIO Y. GO AND

MRS. ROSALITA R. ROLDAN

ADDRESS: c/o 2nd Floor Martinez Bldg.

(ALPHA MKTG., INC.),

Jones Ave., Cebu City

DISPOSITION: PENDING ARREST

CRIM. CASE NO. 14843-R

FOR: SERIOUS PHYSICAL INJURIES

DATED FILED: APRIL 28, 1980

COMPLAINANTS:

ADDRESS:

DISPOSITION: PROVISIONALLY DISMISSED

DATED: APRIL 14, 1991

NOT TOO LONG AGO, I RECEIVED THE FOLLOWING NEWSPAPER CLIPPING COURTESY OF
A CEBU CITY CONCERNED CITIZEN. THE CAPTION STORY BELOW TELLS ALL. IF YOU
KNOW WHO THE BUSINESSMAN ALLUDED TO IN THE CAPTION, PLEASE DO TELL ME.

[Thereafter followed by a picture of a person with face blotted out being arrested and an inset picture
of the same person with face likewise blotted out, being detained, these pictures being followed by
the caption, which states]:

‘ESTAFA CASE. Members of Cebu City Police Intelligence group under Lt. Col. Eduardo Ricardo
arrested last night a businessman (extreme left) for his alleged involvement in estafa case filed by
APOCEMCO. Left photo a member of the team serves the warrant of arrest order issued by CEBU
RTC Judge German Lee.

ANOTHER CLIPPING WHICH IDENTIFIED BUSINESSMAN CHOY TORRALBA TO HAVE BEEN

SERVED A WARRANT OF ARREST IN A (P)LUSH UPTOWN HOTEL IN CEBU CITY BY
OPERATIVES OF THE CEBU CITY POLICE. NOW TELL ME, IS IT YOU THE SAME CHOY
TORRALBA REFERRED TO IN THE CAPTION STORY. IF INDEED YOU ARE THE ONE AND THE
SAME WHO APPEARED IN THE PICTURE BELOW, PLEASE TO (sic) INFORM ME.:

[Thereafter followed by another picture, this time, the face of the person being arrested is clearly
shown to be that of Cirse Choy Torralba, followed by this caption.]

SERENE EVENING: The otherwise serene evening enjoyed by businessman Choy Torralba (left) in
a plush uptown Hotel was disturbed by operatives (right) of the Cebu City Police under P/Lt/Col.
Eduardo Ricardo just to serve on the former a warrant of arrest issued by Cebu RTC Judge German
Lee relative to the suit filed by Apocemco against the businessman (PR)

THANK YOU, AND MY BEST REGARDS.

PAID SPACE BY: (sgd.) SEGUNDO LIM14

Asserting inter alia that he had been acquitted and the case/s referred to had already been settled,
complainant sought Lim and petitioner’s conviction for libel. At the same time, he asked for moral,
compensatory and exemplary damages as well as attorney’s fees because the publication allegedly
placed him in public contempt and ridicule. It was claimed that the publication was also designed to
degrade and malign his person and destroy him as a broadcast journalist.15

Lim, in his defense, claimed that complainant was allegedly making scurrilous attacks against him
and his family over the airwaves. Since Lim had no access to radio time, he opted for paid
advertisements via newspaper to answer the attacks,16 as a measure of self-defense. Lim also
argued that complainant, as a media man and member of the fourth estate, occupied a position
almost similar to a public functionary and should not be onion-skinned and be able to absorb the
thrust of public scrutiny.17

After trial, the lower court concluded that the publication complained of was indeed
libelous.18 Declaring that malice is the most important element of libel, it held that the same was
present in the case because every defamatory publication prima facie implies malice on the part of
the author and publisher towards the person subject thereof.19The lower court gave no credence to
Lim and petitioner’s argument that the publication was resorted to in self-defense.

The trial court likewise disregarded the insulative effects of complainant’s status as a mediaman to
the prosecution of the criminal libel charge. The publication of a calumny even against public officers
or candidates for public office, according to the trial court, is an offense most dangerous to the
people. It deserves punishment because the latter may be deceived thereby and reject the best and
deserving citizens to their great injury.20 It further held that a private reputation is as constitutionally
protected as the enjoyment of life, liberty and property such that anybody who attacks a person’s
reputation by slanderous words or libelous publications is obliged to make full compensation for the
damage done.21

On appeal, the CA modified the penalty imposed but it affirmed the RTC’s finding of guilt. The CA
likewise held that self-defense was unavailing as a justification since the defendant should not go
beyond explaining what was previously said of him. The appellate court asserted that the purpose of
self-defense in libel is to repair, minimize or remove the effect of the damage caused to him but it
does not license the defendant to utter blow-for-blow scurrilous language in return for what he
received. Once the defendant hits back with equal or more scurrilous remarks unnecessary for his
defense, the retaliation becomes an independent act for which he may be liable.22 For this reason,
the CA refused to sanction the invocation of self-defense.

Petitioner now comes before this Court praying for the reversal of the judgment against him.
Petitioner contends inter alia that as editor-publisher of the Sunday Post and as a member of the
fourth estate, the lower courts’ finding of guilt against him constitutes an infringement of his
constitutional right to freedom of speech and of the press.23Petitioner likewise faults the lower courts’
failure to appreciate their invocation of self-defense.

For resolution of this Court, therefore, is the fundamental question of whether the publication subject
matter of the instant case is indeed libelous. While the findings and conclusions of the lower courts
are rigid in their application of the strict letter of the law, the issue seems more complex than it
appears at first blush. The Court is compelled to delve deeper into the issue considering that libel
principles formulated at one time or another have waxed and waned through the years, in the
constant ebb and flow of judicial review.24 A change in the factual milieu of a case is apt to evoke a
change in the judgment applicable. Viewed in this context, the petition has merit and the judgment
appealed from must be reversed.

Criminal Libel vis-à-vis the

Guarantee of Free Speech

Under our law, criminal libel is defined as a public and malicious imputation of a crime, or of a vice or
defect, real or imaginary, or any act, omission, condition, status, or circumstance tending to cause
the dishonor, discredit, or contempt of a natural or juridical person, or to blacken the memory of one
who is dead.25 Thus, the elements of libel are: (a) imputation of a discreditable act or condition to
another; (b) publication of the imputation; (c) identity of the person defamed; and, (d) existence of
malice.26

Originally, the truth of a defamatory imputation was not considered a defense in the prosecution for
libel. In the landmark opinion of England's Star Chamber in the Libelis Famosis case in 1603, two
major propositions in the prosecution of defamatory remarks were established: first, that libel against
a public person is a greater offense than one directed against an ordinary man, and second, that it is
immaterial that the libel be true.27 These propositions were due to the fact that the law of defamatory
libel was developed under the common law to help government protect itself from criticism and to
provide an outlet for individuals to defend their honor and reputation so they would not resort to
taking the law into their own hands.28

Our understanding of criminal libel changed in 1735 with the trial and acquittal of John Peter Zenger
for seditious libel in the then English colony of New York. Zenger, the publisher of the New-York
Weekly Journal, had been charged with seditious libel, for his paper’s consistent attacks against
Colonel William Cosby, the Royal Governor of New York. In his defense, Zenger’s counsel, Andrew
Hamilton, argued that the criticisms against Governor Cosby were "the right of every free-born
subject to make when the matters so published can be supported with truth."29The jury, by acquitting
Zenger, acknowledged albeit unofficially the defense of truth in a libel action. The Zengercase also
laid to rest the idea that public officials were immune from criticism.30

The Zenger case is crucial, not only to the evolution of the doctrine of criminal libel, but also to the
emergence of the American democratic ideal. It has been characterized as the first landmark in the
tradition of a free press, then a somewhat radical notion that eventually evolved into the First
Amendment31 in the American Bill of Rights and also proved an essential weapon in the war of words
that led into the American War for Independence.32

Yet even in the young American state, the government paid less than ideal fealty to the proposition
that Congress shall pass no law abridging the freedom of speech. The notorious Alien and Sedition
Acts of 179833 made it a crime for any person who, by writing, speaking or printing, should threaten
an officer of the government with damage to his character, person, or estate. The law was passed at
the insistence of President John Adams, whose Federalist Party had held a majority in Congress,
and who had faced persistent criticism from political opponents belonging to the Jeffersonian
Republican Party. As a result, at least twenty-five people, mostly Jeffersonian Republican editors,
were arrested under the law. The Acts were never challenged before the U.S. Supreme Court, but
they were not subsequently renewed upon their expiration.34

The massive unpopularity of the Alien and Sedition Acts contributed to the electoral defeat of
President Adams in 1800. In his stead was elected Thomas Jefferson, a man who once famously
opined, "Were it left to me to decide whether we should have a government without newspapers, or
newspapers without a government, I should not hesitate a moment to prefer the latter."35

There is an important observation to be made about the quality of the American press during the
time of Jefferson, one that is crucial to the contemporaneous understanding of the "freedom of
expression" clause at the time of its inception. The tenor of the public debate during that era was
hardly polite. About the impending election of Jefferson, the New England Courant predicted that
"murder, robbery, rape and adultery and incest will be openly taught and practiced, the air will be
rent with cries of distress, the soil soaked with blood and the nation black with crimes."36 After
Jefferson was elected, rumors spread about his dalliances with his slave, Sally Hemmings, adding
more fodder to his critics. The thirteen-year old William Cullen Bryant, who would grow up to become
a prominent poet and abolitionist, published the following doggerel: "Thy country’s ruin and thy
country’s shame!/ Go wretch! Resign the Presidential chair/Disclose thy secret measures foul and
fair…/ Go scan, philosophist, thy [Sally’s] charms/And sink supinely in her sable arms."37

Any comprehensive history of the American media during the first few decades of the existence of
the United States would reveal a similar preference in the media for such "mad-dog
rhetoric."38 These observations are important in light of the misconception that freedom of expression
extends only to polite, temperate, or reasoned expression. The assailed decision of the RTC betrays
such a perception, when it opined that the subject advertisement was libelous "because by the
language used, it had passed from the bounds of playful gist, and intensive criticism into the region
of scurrilous calumniation and intemperate personalities."39 Evidently, the First Amendment was
designed to protect expression even at its most rambunctious and vitriolic form as it had prevalently
taken during the time the clause was enacted.

Nonetheless, juristic enforcement of the guarantee of freedom of expression was not demonstrably
prominent in the United States during most of the 1800s. Notably, the prevalent philosophy then was
that the Bill of Rights did not apply to the different federal states.40 When the US Supreme Court was
confronted with substantial First Amendment issues in the late 1800s and early 1900s, it responded
by repeatedly declining to protect free speech.41The subsequent enactment of the due process
clause in the Fourteenth Amendment eventually allowed the U.S. Supreme Court to accept, in Gitlow
v. New York42 that the First Amendment was protected from impairment by the States, thus allowing
for a more vigorous enforcement of the freedom of expression clause in the twentieth century.43

The most important American ruling on libel, arguably from which modern libel law
emerged44 was New York Times v. Sullivan,45 penned by the liberal lion Justice William Brennan, Jr.
In ascertaining whether the New York Times was liable for damages in a libel action, the U.S.
Supreme Court had acknowledged that the writing in question, an advertisement published in the
paper46 extolling the virtues of the civil rights movement, had contained several factual inaccuracies
in describing actions taken by Montgomery, Alabama officials on civil rights protesters.47 The Court
even concluded that at most, there was a finding against the New York Times of negligence in failing
to discover the misstatements against the news stories in the newspaper’s own files.48

Nonetheless, the U.S. Supreme Court squarely assessed the import of the First Amendment
freedoms in the prosecution of criminal libel. Famously, the precedent was established that a public
official may not successfully sue for libel unless the official can prove actual malice, which was
defined as "with knowledge that the statement was false or with reckless disregard as to
whether or not it was true."49 By this standard, it was concluded that factual errors aside, actual
malice was not proven to sustain the convictions for libel. Moreover, leeway was allowed even if the
challenged statements were factually erroneous if honestly made.50

Shortly after New York Times was promulgated, its principles were extended by the U.S. Supreme
Court to criminal libel actions in Garrison v. Louisiana.51 The decision, also penned by Justice
Brennan, commented on the marked decline in the common resort to criminal libel actions:

Where criticism of public officials is concerned, we see no merit in the argument that criminal libel
statutes serve interests distinct from those secured by civil libel laws, and therefore should not be
subject to the same limitations. At common law, truth was no defense to criminal libel. Although the
victim of a true but defamatory publication might not have been unjustly damaged in reputation by
the libel, the speaker was still punishable since the remedy was designed to avert the possibility that
the utterance would provoke an enraged victim to a breach of peace . . .
[However], preference for the civil remedy, which enabled the frustrated victim to trade chivalrous
satisfaction for damages, has substantially eroded the breach of peace justification for criminal libel
laws. In fact, in earlier, more violent times, the civil remedy had virtually pre-empted the field of
defamation; except as a weapon against seditious libel, the criminal prosecution fell into virtual
desuetude.52

Then, the Court proceeded to consider whether the historical limitation of the defense of truth in
criminal libel to utterances published "with good motives and for justifiable ends:"53

. . . The "good motives" restriction incorporated in many state constitutions and statutes to reflect
Alexander Hamilton’s unsuccessfully urged formula in People v. Croswell, liberalized the common-
law rule denying any defense for truth. . . . In any event, where the criticism is of public officials
and their conduct of public business, the interest in private reputation is overborne by the
larger public interest, secured by the Constitution, in the dissemination of truth. . . .

Moreover, even where the utterance is false, the great principles of the Constitution which
secure freedom of expression in this area preclude attaching adverse consequences to any
except the knowing or reckless falsehood. Debate on public issues will not be uninhibited if the
speaker must run the risk that it will be proved in court that he spoke out of hatred; even if he did
speak out of hatred, utterances honestly believed contribute to the free interchange of ideas and the
ascertainment of truth. . . .54

Lest the impression be laid that criminal libel law was rendered extinct in regards to public officials,
the Court made this important qualification in Garrison:

The use of calculated falsehood, however, would put a different cast on the constitutional
question. Although honest utterance, even if inaccurate, may further the fruitful exercise of the right
of free speech, it does not follow that the lie, knowingly and deliberately published about a public
official, should enjoy a like immunity. At the time the First Amendment was adopted, as today,
there were those unscrupulous enough and skillful enough to use the deliberate or reckless
falsehood as an effective political tool to unseat the public servant or even topple an
administration. That speech is used as a tool for political ends does not automatically bring it
under the protective mantle of the Constitution. For the use of the known lie as a tool is at once
with odds with the premises of democratic government and with the orderly manner in which
economic, social, or political change is to be effected.55

Another ruling crucial to the evolution of our understanding was Curtis Publishing Co. v.
Butts,56 which expanded the actual malice test to cover not just public officials, but also public
figures. The U.S. Supreme Court, speaking through Chief Justice Warren, stated that:

[D]ifferentiation between ‘public figures’ and ‘public officials’ and adoption of separate standards of
proof for each have no basis in law, logic, or First Amendment policy. Increasingly in this country, the
distinctions between governmental and private sectors are blurred. . . . [I]t is plain that although they
are not subject to the restraints of the political process, ‘public figures’, like ‘public officials’, often
play an influential role in ordering society. And surely as a class these ‘public figures’ have as ready
access as ‘public officials’ to mass media of communication, both to influence policy and to counter
criticism of their views and activities. Our citizenry has a legitimate and substantial interest in the
conduct of such persons, and freedom of the press to engage in uninhibited debate about their
involvement in public issues and events is as crucial as it is in the case of "public officials." The fact
that they are not amenable to the restraints of the political process only underscores the legitimate
and substantial nature of the interest, since it means that public opinion may be the only instrument
by which society can attempt to influence their conduct.57
The public figure concept was later qualified in the case of Gertz v. Welch, Inc.,58 which held that a
private person should be able to recover damages without meeting the New York
Times standard.59 In doing so, the US Supreme Court recognized the legitimate state interest in
compensating private individuals for wrongful injury to reputation.60

The prominent American legal commentator, Cass Sunstein, has summarized the current American
trend in libel law as follows:

[C]onsider the law of libel. Here we have an explicit system of free speech tiers. To simplify a
complex body of law: In the highest, most-speech protective tier is libelous speech directed against a
"public figure". Government can allow libel plaintiffs to recover damages as a result of such speech if
and only if the speaker had "actual malice"–that is, the speaker must have known that the speech
was false, or he must have been recklessly indifferent to its truth or falsity. This standard means that
the speaker is protected against libel suits unless he knew that he was lying or he was truly foolish to
think that he was telling the truth. A person counts as a public figure (1) if he is a "public official" in
the sense that he works for the government, (2) if, while not employed by government, he otherwise
has pervasive fame or notoriety in the community, or (3) if he has thrust himself into some particular
controversy in order to influence its resolution. Thus, for example, Jerry Falwell is a public figure
and, as a famous case holds, he is barred from recovering against a magazine that portrays him as
having had sex with his mother. Movie stars and famous athletes also qualify as public figures. False
speech directed against public figures is thus protected from libel actions except in quite extreme
circumstances.61

It may also be noted that this heightened degree of protection afforded to free expression to
comment on public figures or matters against criminal prosecution for libel has also gained a
foothold in Europe. Article 10 of the European Convention on Human Rights and Fundamental
Freedoms provides that "[e]veryone has the right to freedom of expression. This right shall include
freedom to hold opinions and to receive and impart information and ideas without interference by
public authority and regardless of frontiers."62 The European Court of Human Rights applied this
provision in Lingens v. Austria,63 in ruling that the Republic of Austria was liable to pay monetary
damages "as just satisfaction" to a journalist who was found guilty for defamation under the Austrian
Criminal Code.64 The European Court noted:

[Article 10] is applicable not only to ‘information’ or ‘ideas’ that are favourably received or regarded
as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb. Such are
the demands of that pluralism, tolerance and broadmindedness without which there is no
‘democratic society’. . . . These principles are of particular importance as far as the press is
concerned. Whilst the press must not overstep the bounds set, inter alia, for the ‘protection of the
reputation of others’, it is nevertheless incumbent on it to impart information and ideas on political
issues just as on those in other areas of public interest. Not only does the press have the task of
imparting such information and ideas: the public also has the right to receive them. . . .65

The international trend in diminishing the scope, if not the viability, of criminal libel prosecutions is
clear. Most pertinently, it is also evident in our own acceptance in this jurisdiction of the principles
applied by the U.S. Supreme Court in cases such as New York Times and Garrison.

Particularly, this Court has accepted the proposition that the actual malice standard governs the
prosecution of criminal libel cases concerning public figures. In Adiong v. COMELEC,66 the Court
cited New York Times in noting that "[w]e have adopted the principle that debate on public issues
should be uninhibited, robust, and wide open and that it may well include vehement, caustic and
sometimes unpleasantly sharp attacks on government and public officials."67 The Court was even
more explicit in its affirmation of New York Times in Vasquez v. Court of Appeals.68Speaking through
Justice Mendoza:

For that matter, even if the defamatory statement is false, no liability can attach if it relates to official
conduct, unless the public official concerned proves that the statement was made with actual malice
— that is, with knowledge that it was false or with reckless disregard of whether it was false or not.
This is the gist of the ruling in the landmark case of New York Times v. Sullivan, which this Court has
cited with approval in several of its own decisions.[69] This is the rule of "actual malice." In this case,
the prosecution failed to prove not only that the charges made by petitioner were false but also that
petitioner made them with knowledge of their falsity or with reckless disregard of whether they were
false or not.70

The Court has likewise extended the "actual malice" rule to apply not only to public officials, but also
to public

figures. In Ayer Productions Pty. Ltd. v. Capulong,71 the Court cited with approval the following
definition of a public figure propounded by an American textbook on torts:

A public figure has been defined as a person who, by his accomplishments, fame, or mode of living,
or by adopting a profession or calling which gives the public a legitimate interest in his doings, his
affairs, and his character, has become a 'public personage.' He is, in other words, a celebrity.
Obviously to be included in this category are those who have achieved some degree of reputation by
appearing before the public, as in the case of an actor, a professional baseball player, a pugilist, or
any other entertainer. The list is, however, broader than this. It includes public officers, famous
inventors and explorers, war heroes and even ordinary soldiers, an infant prodigy, and no less a
personage than the Grand Exalted Ruler of a lodge. It includes, in short, anyone who has arrived at
a position where public attention is focused upon him as a person.72

Ayer did not involve a prosecution for libel, but a complaint for injunction on the filming of a
dramatized account of the 1986 EDSA Revolution. Nonetheless, its definition of a public figure is
important to this case, as it clearly establishes that even non-governmental officials are considered
public figures. In fact, the definition propounded in Ayer was expressly applied by the Court in Borjal
v. Court of Appeals73 in ascertaining whether the complainant therein was a public figure, thus
warranting the application of the actual malice test.74

We considered the following proposition as settled in this jurisdiction: that in order to justify a
conviction for criminal libel against a public figure, it must be established beyond reasonable doubt
that the libelous statements were made or published with actual malice, meaning knowledge that the
statement was false or with reckless disregard as to whether or not it was true. As applied to the
present petition, there are two main determinants: whether complainant is a public figure, and
assuming that he is, whether the publication of the subject advertisement was made with actual
malice. Sadly, the RTC and the CA failed to duly consider both propositions.

Complainant Is a Public Figure

There should be little controversy in holding that complainant is a public figure. He is a broadcast
journalist hosting two radio programs aired over a large portion of the Visayas and Mindanao.
Measured against the definition provided in Ayer, complainant would definitely qualify as a public
figure. Complainant even asserted before the trial court that his broadcast was listened to widely,
hence, his notoriety is unquestionable.
Complainant’s standing as a public figure is further militated by the contextual circumstances of the
case. The newspaper in question, the Sunday Post, is particularly in circulation in the areas where
complainant’s broadcasts were aired. Certainly, it cannot be denied that the target audience of the
newspaper were the same persons who may have listened regularly to the complainant’s broadcast.
Even if the sphere of complainant’s renown is limited in geography, it is in the same plane as the
circulation of the offending newspaper. The extent of complainant’s ability to influence hearts and
minds through his broadcasts need not be established, only that he has such capacity and
willingness to exert an influence. Complainant’s volition to practice the radio broadcasting profession
necessarily thrusts him in the public sphere.

Actual Malice Not Proven

As it has been established that complainant was a public figure, it was incumbent upon the
prosecution to prove actual malice on the part of Lim and petitioner when the latter published the
article subject matter of the complaint. Set otherwise, the prosecution must have established beyond
reasonable doubt that the defendants knew the statements in the advertisement was false or
nonetheless proceeded with reckless disregard as to publish it whether or not it was true.

It should thus proceed that if the statements made against the public figure are essentially true, then
no conviction for libel can be had. Any statement that does not contain a provably false factual
connotation will receive full constitutional protection.75 An examination of the records of this case
showed that the précis of information contained in the questioned publication were actually true.
Thus, complainant himself testified:

Q But is it true that these cases published in Exhibit "F-1" are actually existing or previous cases?

A At the time of the publication those cases were terminated, long terminated.

Q But is it true that in fact, there was a criminal case No. R-43035 for Malicious Mischief filed May
10, 1979 against you?

FISCAL ROCAMORA:

Your Honor, I believe the witness did not understand the question.

COURT: (to Stenographer)

Read back the question.

Q Is it true that in fact, there was a criminal case No. R-43035 for Malicious Mischief filed May 10,
1979, against you?

A I really do not know about that accusation.

COURT:

Proceed.

ATTY. FLORIDO:
Q When you came across the publication, did you check if in fact there was a case docketed with
that number against you? Did you check?

A I did not.

Q: Now, is it true that there was a criminal case against you for Estafa docketed as criminal case No.
17984-R filed July 21, 1982 where the complaints were Pio Go and Mrs. Rosalita Roldan?

A: Yes.

Q: Is it true that there was also a criminal case filed against you numbered 14843-R for Serious
Physical Injuries, date filed April 28, 1980 which in this publication appears provisionally dismissed
April 14, 1991?

A: That case, I do not have any idea about it.

Q: Did you inquire from the appropriate Court when you received a copy of this to find out if it is true
that these cases were filed against you?

A: As far as I know, in fact, I never received any subpoena or anything about this case.

Q: Yes, but did you upon receipt of Exhibit "F-1", did you inquire from the Court whether it is true that
these cases had been recorded as filed against you?

A: Well, as far as I know like the Estafa case, I was already long been acquitted in that case.

Q: You did not answer the question. Will you please answer.

COURT: (to witness)

Q: The question is, did you inquire from the Court concerned whether that case exist?

A: Yes.

COURT:

Proceed.

ATTY. FLORIDO:

Q: And you discovered that they were true that this was provisionally dismissed with reference to
14843-R for Serious Physical Injuries. You made inquiries?

A: Yes.

Q: And you also know that Dr. Jovenal Almendras your godfather in the wedding had also filed a
case of Malicious Mischief against you?

A: I know but that was in the past.

Q: Yes, I know that that was in the past, but that is true?

A: Yes.

Q: So, there is nothing false so far as Exhibit "F-1"?

A: There is no question about that but that is malicious.

Q: Let me see. On the lefthand side of the bottom it says. "Not too long ago, I received the following
newspaper clippings courtesy of the Cebu City concerned citizens. The caption story below tells all.
If you know who the businessman alluded to in the caption. Please do tells me and then, there is a
photograph a reprint from Sun Star publication. Do you confirm that?76

xxx

Q: But is it true that you were arrested per this photograph and I quote. "In a plush uptown hotel was
disturbed by operatives (right) of the Cebu City Police under Police Lieutenant Col. Eduardo Ricardo
just to serve on the former a warrant of arrest issued by the Cebu RTC Judge German Lee relative
to the suit filed by Apocemco against a businessman". Is it true that you were arrested?

A: Yes.

Q: So this photograph is genuine photograph?

A: Yes.

Q: And you claimed that you have a good reputation and that good reputation had been soiled by the
accused in this case. Let me ask you concerning your reputation then. Is it not a fact that aside from
this record of criminal cases appearing in Exhibit "F-1", you have also been at one time or another
been accused of several other criminal cases both in and out of the City of Cebu?

A: Yes, before, 10 years, 15 years ago.

Q: And in the Municipal Trial Court in Cities alone in Cebu City, you have the following per certificate
which we marked as Exhibit "2". Criminal Case Nos. 14843-R for Serious Physical Injuries, Torralba
Cirse "Choy"; 17984-R, for Estafa; Torralba Cirse R. R-43035 for Malicious Mischief. You will confirm
that the same Cirse Torralba and/or Choy Torralba and/or Cirse R. Torralba mentioned in this
certificate refer to your person?

A: Yes.

Q: Now, aside from these criminal cases in the Municipal Trial Courts in Cities, in Cebu City, you
also have 1, 2, 3, 4, 5, 6, 7, 8, 9 criminal cases before the Regional Trial Court of Cebu per
certificate that I marked as Exhibit "3". Is that correct?

A: Yes, but all those cases have already been either acquitted or dismissed. I will present the
certification.

Q: Specifically, these cases has something to do with your character. Let me count 1, 2, 3, 4, 5
cases for Estafa, the 6th case for issuance of a bouncing check, the 7th case is a case for issuance
of a bouncing check; and the 9th is also for issuance of a bouncing check. You will confirm that?
....

COURT: (to witness)

Q: What happened to those cases?

A: I was acquitted your Honor. I was acquitted in all those cases, some are dismissed, and
fortunately, your Honor, I do not have any conviction.77

From the foregoing, it is clear that there was nothing untruthful about what was published in the
Sunday Post. The criminal cases listed in the advertisement as pending against the complainant had
indeed been filed. It may have been inconvenient for the complainant that these matters may have
been divulged, yet such information hardly falls within any realm of privacy complainant could
invoke, since the pendency of these criminal charges are actually matters of public record.

The information, moreover, went into the very character and integrity of complainant to which his
listening public has a very legitimate interest. Complainant hosts a public affairs program, one which
he himself claimed was imbued with public character since it deals with "corruptions in government,
corruptions by public officials, irregularities in government in comrades."78 By entering into this line of
work, complainant in effect gave the public a legitimate interest in his life. He likewise gave them a
stake in finding out if he himself had the integrity and character to have the right to criticize others for
their conduct.

In convicting the defendants, the lower courts paid particular heed to Article 354 of the Revised
Penal Code, which provides that "every defamatory imputation is presumed to be malicious, even if it
be true, if no good intention and justifiable motive for making it is shown…". We hold that this
provision, as applied to public figures complaining of criminal libel, must be construed in light of the
constitutional guarantee of free expression, and this Court’s precedents upholding the standard of
actual malice with the necessary implication that a statement regarding a public figure if true is not
libelous. The provision itself allows for such leeway, accepting as a defense "good intention and
justifiable motive." The exercise of free expression, and its concordant assurance of commentary on
public affairs and public figures, certainly qualify as "justifiable motive," if not "good intention."

It cannot be helped if the commentary protected by the Bill of Rights is accompanied by excessive
color or innuendo. Certainly, persons in possession of truthful facts are not obliged to present the
same in bland fashion. These true facts may be utilized to convince the listener/reader against a
particular position, or to even dissuade one against accepting the credibility of a public figure. Dry
facts, by themselves, are hardly stirring. It is the commentary thereupon that usually animates the
discourse which is encouraged by the Constitution as integral to the democratic way of life. This is
replete in many components of our daily life, such as political addresses, televised debates, and
even commercial advertisements.

As adverted earlier, the guarantee of free speech was enacted to protect not only polite speech, but
even expression in its most unsophisticated form. Criminal libel stands as a necessary qualification
to any absolutist interpretation of the free speech clause, if only because it prevents the proliferation
of untruths which if unrefuted,

would gain an undue influence in the public discourse. But in order to safeguard against fears that
the public debate might be muted due to the reckless enforcement of libel laws, truth has been
sanctioned as a defense, much more in the case when the statements in question address public
issues or involve public figures.
In ascertaining the degree of falsity that would constitute actual malice, the Court, citing New York
Times, has even gone so far as acknowledging:

Even assuming that the contents of the articles are false, mere error, inaccuracy or even falsity
alone does not prove actual malice. Errors or misstatements are inevitable in any scheme of truly
free expression and debate. Consistent with good faith and reasonable care, the press should not be
held to account, to a point of suppression, for honest mistakes or imperfections in the choice of
language. There must be some room for misstatement of fact as well as for misjudgment. Only by
giving them much leeway and tolerance can they courageously and effectively function as critical
agencies in our democracy. In Bulletin Publishing Corp. v. Noel we held —

A newspaper especially one national in reach and coverage, should be free to report on events and
developments in which the public has a legitimate interest with minimum fear of being hauled to
court by one group or another on criminal or civil charges for libel, so long as the newspaper
respects and keeps within the standards of morality and civility prevailing within the general
community.

To avoid the self-censorship that would necessarily accompany strict liability for erroneous
statements, rules governing liability for injury to reputation are required to allow an adequate margin
of error by protecting some inaccuracies. It is for the same reason that the New York Times doctrine
requires that liability for defamation of a public official or public figure may not be imposed in the
absence of proof of "actual malice" on the part of the person making the libelous statement.79

To this end, the publication of the subject advertisement by petitioner and Lim cannot be deemed by
this Court to have been done with actual malice. Aside from the fact that the information contained in
said publication was true, the intention to let the public know the character of their radio
commentator can at best be subsumed under the mantle of having been done with good motives
and for justifiable ends. The advertisement in question falls squarely within the bounds of
constitutionally protected expression under Section 4, Article III, and thus, acquittal is mandated.

WHEREFORE, premises considered, the petition is GRANTED. The

assailed Decision and Resolution of the Court of Appeals dated 29 July 1996 and 3 October 1996,
respectively, in CA-G.R. CR No. 16413 are REVERSED and SET ASIDE insofar as they affect
petitioner. The Decision of the Regional Trial Court of Cebu City, promulgated on 17 May 1994, as
regards petitioner is likewise REVERSED and SET ASIDE and petitioner is ACQUITTED of the
charge of libel therein. No costs.

SO ORDERED.
Estrada v. Escritor, AM No. P-02-1651, 22 June 2006, 492 SCRA 1

EN BANC

A.M. No. P-02-1651 August 4, 2003

ALEJANDRO ESTRADA, complainant,

vs.
SOLEDAD S. ESCRITOR, respondent.

PUNO, J.:

The case at bar takes us to a most difficult area of constitutional law where man stands accountable
to an authority higher than the state. To be held on balance are the state's interest and the
respondent's religious freedom. In this highly sensitive area of law, the task of balancing between
authority and liberty is most delicate because to the person invoking religious freedom, the
consequences of the case are not only temporal. The task is not made easier by the American origin
of our religion clauses and the wealth of U.S. jurisprudence on these clauses for in the United
States, there is probably no more intensely controverted area of constitutional interpretation than the
religion clauses.1 The U.S. Supreme Court itself has acknowledged that in this constitutional area,
there is "considerable internal inconsistency in the opinions of the Court."2 As stated by a professor
of law, "(i)t is by now notorious that legal doctrines and judicial decisions in the area of religious
freedom are in serious disarray. In perhaps no other area of constitutional law have confusion and
inconsistency achieved such undisputed sovereignty."3 Nevertheless, this thicket is the only path to
take to conquer the mountain of a legal problem the case at bar presents. Both the penetrating and
panoramic view this climb would provide will largely chart the course of religious freedom in
Philippine jurisdiction. That the religious freedom question arose in an administrative case involving
only one person does not alter the paramount importance of the question for the "constitution
commands the positive protection by government of religious freedom -not only for a minority,
however small- not only for a majority, however large- but for each of us."4

I. Facts

The facts of the case will determine whether respondent will prevail in her plea of religious freedom.
It is necessary therefore to lay down the facts in detail, careful not to omit the essentials.

In a sworn letter-complaint dated July 27, 2000, complainant Alejandro Estrada wrote to Judge Jose
F. Caoibes, Jr., presiding judge of Branch 253, Regional Trial Court of Las Piñas City, requesting for
an investigation of rumors that respondent Soledad Escritor, court interpreter in said court, is living
with a man not her husband. They allegedly have a child of eighteen to twenty years old. Estrada is
not personally related either to Escritor or her partner and is a resident not of Las Piñas City but of
Bacoor, Cavite. Nevertheless, he filed the charge against Escritor as he believes that she is
committing an immoral act that tarnishes the image of the court, thus she should not be allowed to
remain employed therein as it might appear that the court condones her act.5

Judge Caoibes referred the letter to Escritor who stated that "there is no truth as to the veracity of
the allegation" and challenged Estrada to "appear in the open and prove his allegation in the proper
forum."6 Judge Caoibes set a preliminary conference on October 12, 2000. Escritor moved for the
inhibition of Judge Caoibes from hearing her case to avoid suspicion and bias as she previously filed
an administrative complaint against him and said case was still pending in the Office of the Court
Administrator (OCA). Escritor's motion was denied. The preliminary conference proceeded with both
Estrada and Escritor in attendance. Estrada confirmed that he filed the letter-complaint for immorality
against Escritor because in his frequent visits to the Hall of Justice of Las Piñas City, he learned
from conversations therein that Escritor was living with a man not her husband and that she had an
eighteen to twenty-year old son by this man. This prompted him to write to Judge Caoibes as he
believed that employees of the judiciary should be respectable and Escritor's live-in arrangement did
not command respect.7

Respondent Escritor testified that when she entered the judiciary in 1999,8 she was already a widow,
her husband having died in 1998.9 She admitted that she has been living with Luciano Quilapio, Jr.
without the benefit of marriage for twenty years and that they have a son. But as a member of the
religious sect known as the Jehovah's Witnesses and the Watch Tower and Bible Tract Society, their
conjugal arrangement is in conformity with their religious beliefs. In fact, after ten years of living
together, she executed on July 28, 1991 a "Declaration of Pledging Faithfulness," viz:

DECLARATION OF PLEDGING FAITHFULNESS

I, Soledad S. Escritor, do hereby declare that I have accepted Luciano D. Quilapio, Jr., as my
mate in marital relationship; that I have done all within my ability to obtain legal recognition of
this relationship by the proper public authorities and that it is because of having been unable
to do so that I therefore make this public declaration pledging faithfulness in this marital
relationship.

I recognize this relationship as a binding tie before 'Jehovah' God and before all persons to
be held to and honored in full accord with the principles of God's Word. I will continue to seek
the means to obtain legal recognition of this relationship by the civil authorities and if at any
future time a change in circumstances make this possible, I promise to legalize this union.

Signed this 28th day of July 1991.10

Escritor's partner, Quilapio, executed a similar pledge on the same day.11 Both pledges were
executed in Atimonan, Quezon and signed by three witnesses. At the time Escritor executed her
pledge, her husband was still alive but living with another woman. Quilapio was likewise married at
that time, but had been separated in fact from his wife. During her testimony, Escritor volunteered to
present members of her congregation to confirm the truthfulness of their "Declarations of Pledging
Faithfulness," but Judge Caoibes deemed it unnecessary and considered her identification of her
signature and the signature of Quilapio sufficient authentication of the documents.12

Judge Caoibes endorsed the complaint to Executive Judge Manuel B. Fernandez, Jr., who, in turn,
endorsed the same to Court Administrator Alfredo L. Benipayo. On July 17, 2001, the Court, upon
recommendation of Acting Court Administrator Zenaida N. Elepaño, directed Escritor to comment on
the charge against her. In her comment, Escritor reiterated her religious congregation's approval of
her conjugal arrangement with Quilapio, viz:
 Herein respondent does not ignore alleged accusation but she reiterates to state with candor
that there is no truth as to the veracity of same allegation. Included herewith are documents
denominated as Declaration of Pledging Faithfulness (Exhibit 1 and Exhibit 2) duly signed by
both respondent and her mate in marital relationship with the witnesses concurring their
acceptance to the arrangement as approved by the WATCH TOWER BIBLE and TRACT
SOCIETY, Philippine Branch.

Same marital arrangement is recognized as a binding tie before "JEHOVAH" God and before
all persons to be held to and honored in full accord with the principles of God's Word.

xxx xxx xxx

Undersigned submits to the just, humane and fair discretion of the Court with verification
from the WATCH TOWER BIBLE and TRACT SOCIETY, Philippine Branch . . . to which
undersigned believes to be a high authority in relation to her case.13

Deputy Court Administrator Christopher O. Lock recommended that the case be referred to
Executive Judge Bonifacio Sanz Maceda, RTC Branch 255, Las Piñas City for investigation, report
and recommendation. In the course of Judge Maceda's investigation, Escritor again testified that her
congregation allows her conjugal arrangement with Quilapio and it does not consider it immoral. She
offered to supply the investigating judge some clippings which explain the basis of her
congregation's belief and practice regarding her conjugal arrangement. Escritor started living with
Quilapio twenty years ago when her husband was still alive but living with another woman. She met
this woman who confirmed to her that she was living with her (Escritor's) husband.14

Gregorio Salazar, a member of the Jehovah's Witnesses since 1985, also testified. He had been a
presiding minister since 1991 and in such capacity is aware of the rules and regulations of their
congregation. He explained the import of and procedure for executing a "Declaration of Pledging
Faithfulness", viz:

Q: Now, insofar as the pre-marital relationship is concern (sic), can you cite some
particular rules and regulations in your congregation?

A: Well, we of course, talk to the persons with regards (sic) to all the parties involved
and then we request them to execute a Public Declaration of Pledge of faithfulness.

Q: What is that document?

A: Declaration of Pledge of faithfulness.

Q: What are the relations of the document Declaration of Pledge of faithfulness, who
are suppose (sic) to execute this document?

A: This must be signed, the document must be signed by the elders of the
congregation; the couple, who is a member (sic) of the congregation, baptized member and
true member of the congregation.

Q: What standard rules and regulations do you have in relation with this document?

A: Actually, sir, the signing of that document, ah, with the couple has consent to marital
relationship (sic) gives the Christian Congregation view that the couple has put themselves
 on record before God and man that they are faithful to each other. As if that relation is
validated by God.

Q: From your explanation, Minister, do you consider it a pledge or a document between

the parties, who are members of the congregation?

A: It is a pledge and a document. It is a declaration, pledge of a (sic) pledge of

faithfulness.

Q: And what does pledge mean to you?

A: It means to me that they have contracted, let us say, I am the one who contracted
with the opposite member of my congregation, opposite sex, and that this document will give
us the right to a marital relationship.

Q: So, in short, when you execute a declaration of pledge of faithfulness, it is a

preparation for you to enter a marriage?

A: Yes, Sir.

Q: But it does not necessarily mean that the parties, cohabiting or living under the same
roof?

A: Well, the Pledge of faithfulness document is (sic) already approved as to the marital
relationship.

Q: Do you mean to say, Minister, by executing this document the contracting parties
have the right to cohabit?

A: Can I sir, cite, what the Bible says, the basis of that Pledge of Faithfulness as we
Christians follow. The basis is herein stated in the Book of Matthew, Chapter Five, Verse
Twenty-two. So, in that verse of the Bible, Jesus said "that everyone divorcing his wife,
except on account of fornication, makes her a subject for adultery, and whoever marries a
divorced woman commits adultery.15

Escritor and Quilapio transferred to Salazar's Congregation, the Almanza Congregation in Las Piñas,
in May 2001. The declarations having been executed in Atimonan, Quezon in 1991, Salazar had no
personal knowledge of the personal circumstances of Escritor and Quilapio when they executed their
declarations. However, when the two transferred to Almanza, Salazar inquired about their status
from the Atimonan Congregation, gathered comments of the elders therein, and requested a copy of
their declarations. The Almanza Congregation assumed that the personal circumstances of the
couple had been considered by the Atimonan Congregation when they executed their declarations.

Escritor and Quilapio's declarations are recorded in the Watch Tower Central office. They were
executed in the usual and approved form prescribed by the Watch Tower Bible and Tract Society
which was lifted from the article, "Maintaining Marriage in Honor Before God and Men,"16 in the
March 15, 1977 issue of the Watch Tower magazine, entitled The Watchtower.

The declaration requires the approval of the elders of the Jehovah's Witnesses congregation and is
binding within the congregation all over the world except in countries where divorce is allowed. The
Jehovah's congregation requires that at the time the declarations are executed, the couple cannot
secure the civil authorities' approval of the marital relationship because of legal impediments. It is
thus standard practice of the congregation to check the couple's marital status before giving
imprimatur to the conjugal arrangement. The execution of the declaration finds scriptural basis in
Matthew 5:32 that when the spouse commits adultery, the offended spouse can remarry. The marital
status of the declarants and their respective spouses' commission of adultery are investigated before
the declarations are executed. Thus, in the case of Escritor, it is presumed that the Atimonan
Congregation conducted an investigation on her marital status before the declaration was approved
and the declaration is valid everywhere, including the Almanza Congregation. That Escritor's and
Quilapio's declarations were approved are shown by the signatures of three witnesses, the elders in
the Atimonan Congregation. Salazar confirmed from the congregation's branch office that these
three witnesses are elders in the Atimonan Congregation. Although in 1998 Escritor was widowed,
thereby lifting the legal impediment to marry on her part, her mate is still not capacitated to remarry.
Thus, their declarations remain valid. Once all legal impediments for both are lifted, the couple can
already register their marriage with the civil authorities and the validity of the declarations ceases.
The elders in the congregations can then solemnize their marriage as authorized by Philippine law.
In sum, therefore, insofar as the congregation is concerned, there is nothing immoral about the
conjugal arrangement between Escritor and Quilapio and they remain members in good standing in
the congregation.17

Salvador Reyes, a minister at the General de Leon, Valenzuela City Congregation of the Jehovah's
Witnesses since 1974 and member of the headquarters of the Watch Tower Bible and Tract Society
of the Philippines, Inc., presented the original copy of the magazine article entitled, "Maintaining
Marriage Before God and Men" to which Escritor and Minister Salazar referred in their testimonies.
The article appeared in the March 15, 1977 issue of the Watchtower magazine published in
Pennsylvania, U.S.A. Felix S. Fajardo, President of the Watch Tower Bible and Tract Society of the
Philippines, Inc., authorized Reyes to represent him in authenticating the article. The article is
distributed to the Jehovah's Witnesses congregations which also distribute them to the public.18

The parties submitted their respective memoranda to the investigating judge. Both stated that the
issue for resolution is whether or not the relationship between respondent Escritor and Quilapio is
valid and binding in their own religious congregation, the Jehovah's Witnesses. Complainant Estrada
adds however, that the effect of the relationship to Escritor's administrative liability must likewise be
determined. Estrada argued, through counsel, that the Declaration of Pledging Faithfulness
recognizes the supremacy of the "proper public authorities" such that she bound herself "to seek
means to . . . legalize their union." Thus, even assuming arguendo that the declaration is valid and
binding in her congregation, it is binding only to her co-members in the congregation and serves only
the internal purpose of displaying to the rest of the congregation that she and her mate are a
respectable and morally upright couple. Their religious belief and practice, however, cannot override
the norms of conduct required by law for government employees. To rule otherwise would create a
dangerous precedent as those who cannot legalize their live-in relationship can simply join the
Jehovah's Witnesses congregation and use their religion as a defense against legal liability.19

On the other hand, respondent Escritor reiterates the validity of her conjugal arrangement with
Quilapio based on the belief and practice of her religion, the Jehovah's Witnesses. She quoted
portions of the magazine article entitled, "Maintaining Marriage Before God and Men," in her
memorandum signed by herself, viz:

The Declaration of Pledging of Faithfulness (Exhibits "1" and "2") executed by the
respondent and her mate greatly affect the administrative liability of respondent. Jehovah's
Witnesses admit and recognize (sic) the supremacy of the proper public authorities in the
marriage arrangement. However, it is helpful to understand the relative nature of Caesar's
authority regarding marriage. From country to country, marriage and divorce legislation
presents a multitude of different angles and aspects. Rather than becoming entangled in a
 confusion of technicalities, the Christian, or the one desiring to become a disciple of God's
Son, can be guided by basic Scriptural principles that hold true in all cases.

God's view is of first concern. So, first of all the person must consider whether that one's
present relationship, or the relationship into which he or she contemplates entering, is one
that could meet with God's approval, or whether in itself, it violates the standards of God's
Word. Take, for example, the situation where a man lives with a wife but also spends time
living with another woman as a concubine. As long as such a state of concubinage prevails,
the relationship of the second woman can never be harmonized with Christian principles, nor
could any declaration on the part of the woman or the man make it so. The only right course
is cessation of the relationship. Similarly with an incestuous relationship with a member of
one's immediate family, or a homosexual relationship or other such situation condemned by
God's Word. It is not the lack of any legal validation that makes such relationships
unacceptable; they are in themselves unscriptural and hence, immoral. Hence, a person
involved in such a situation could not make any kind of "Declaration of Faithfulness," since it
would have no merit in God's eyes.

If the relationship is such that it can have God's approval, then, a second principle to
consider is that one should do all one can to establish the honorableness of one's marital
union in the eyes of all. (Heb. 13:4). If divorce is possible, then such step should now be
taken so that, having obtained the divorce (on whatever legal grounds may be available), the
present union can receive civil validation as a recognized marriage.

Finally, if the marital relationship is not one out of harmony with the principles of God's Word,
and if one has done all that can reasonably be done to have it recognized by civil authorities
and has been blocked in doing so, then, a Declaration Pledging Faithfulness can be signed.
In some cases, as has been noted, the extreme slowness of official action may make
accomplishing of legal steps a matter of many, many years of effort. Or it may be that the
costs represent a crushingly heavy burden that the individual would need years to be able to
meet. In such cases, the declaration pledging faithfulness will provide the congregation with
the basis for viewing the existing union as honorable while the individual continues
conscientiously to work out the legal aspects to the best of his ability.

Keeping in mind the basic principles presented, the respondent as a Minister of Jehovah
God, should be able to approach the matter in a balanced way, neither underestimating nor
overestimating the validation offered by the political state. She always gives primary concern
to God's view of the union. Along with this, every effort should be made to set a fine example
of faithfulness and devotion to one's mate, thus, keeping the marriage "honorable among
all." Such course will bring God's blessing and result to the honor and praise of the author of
marriage, Jehovah God. (1 Cor. 10:31-33)20

Respondent also brought to the attention of the investigating judge that complainant's Memorandum
came from Judge Caoibes' chambers21 whom she claims was merely using petitioner to malign her.

In his Report and Recommendation, investigating judge Maceda found Escritor's factual allegations
credible as they were supported by testimonial and documentary evidence. He also noted that "(b)y
strict Catholic standards, the live-in relationship of respondent with her mate should fall within the
definition of immoral conduct, to wit: 'that which is willful, flagrant, or shameless, and which shows a
moral indifference to the opinion of the good and respectable members of the community' (7 C.J.S.
959)' (Delos Reyes vs. Aznar, 179 SCRA, at p. 666)." He pointed out, however, that "the more
relevant question is whether or not to exact from respondent Escritor, a member of 'Jehovah's
Witnesses,' the strict moral standards of the Catholic faith in determining her administrative
responsibility in the case at bar."22 The investigating judge acknowledged that "religious freedom is a
fundamental right which is entitled to the highest priority and the amplest protection among human
rights, for it involves the relationship of man to his Creator (at p. 270, EBRALINAG supra, citing
Chief Justice Enrique M. Fernando's separate opinion in German vs. Barangan, 135 SCRA 514,
530-531)" and thereby recommended the dismissal of the complaint against Escritor.23

After considering the Report and Recommendation of Executive Judge Maceda, the Office of the
Court Administrator, through Deputy Court Administrator (DCA) Lock and with the approval of Court
Administrator Presbitero Velasco, concurred with the factual findings of Judge Maceda but departed
from his recommendation to dismiss the complaint. DCA Lock stressed that although Escritor had
become capacitated to marry by the time she joined the judiciary as her husband had died a year
before, "it is due to her relationship with a married man, voluntarily carried on, that respondent may
still be subject to disciplinary action."24 Considering the ruling of the Court in Dicdican v. Fernan, et
al.25 that "court personnel have been enjoined to adhere to the exacting standards of morality and
decency in their professional and private conduct in order to preserve the good name and integrity of
the court of justice," DCA Lock found Escritor's defense of freedom of religion unavailing to warrant
dismissal of the charge of immorality. Accordingly, he recommended that respondent be found guilty
of immorality and that she be penalized with suspension of six months and one day without pay with
a warning that a repetition of a similar act will be dealt with more severely in accordance with the
Civil Service Rules.26

II. Issue

Whether or not respondent should be found guilty of the administrative charge of "gross and immoral
conduct." To resolve this issue, it is necessary to determine the sub-issue of whether or not
respondent's right to religious freedom should carve out an exception from the prevailing
jurisprudence on illicit relations for which government employees are held administratively liable.

III. Applicable Laws

Respondent is charged with committing "gross and immoral conduct" under Book V, Title I, Chapter
VI, Sec. 46(b)(5) of the Revised Administrative Code which provides, viz:

Sec. 46. Discipline: General Provisions. - (a) No officer or employee in the Civil Service shall
be suspended or dismissed except for cause as provided by law and after due process.

(b) The following shall be grounds for disciplinary action:

xxx xxx xxx

(5) Disgraceful and immoral conduct; xxx.

Not represented by counsel, respondent, in layman's terms, invokes the religious beliefs and
practices and moral standards of her religion, the Jehovah's Witnesses, in asserting that her
conjugal arrangement with a man not her legal husband does not constitute disgraceful and immoral
conduct for which she should be held administratively liable. While not articulated by respondent,
she invokes religious freedom under Article III, Section 5 of the Constitution, which provides, viz:

Sec. 5. No law shall be made respecting an establishment of religion, or prohibiting the free
exercise thereof. The free exercise and enjoyment of religious profession and worship,
 without discrimination or preference, shall forever be allowed. No religious test shall be
required for the exercise of civil or political rights.

IV. Old World Antecedents of the American Religion Clauses

To understand the life that the religion clauses have taken, it would be well to understand not only its
birth in the United States, but its conception in the Old World. One cannot understand, much less
intelligently criticize the approaches of the courts and the political branches to religious freedom in
the recent past in the United States without a deep appreciation of the roots of these controversies in
the ancient and medieval world and in the American experience.27 This fresh look at the religion
clauses is proper in deciding this case of first impression.

In primitive times, all of life may be said to have been religious. Every significant event in the
primitive man's life, from birth to death, was marked by religious ceremonies. Tribal society survived
because religious sanctions effectively elicited adherence to social customs. A person who broke a
custom violated a taboo which would then bring upon him "the wrathful vengeance of a superhuman
mysterious power."28 Distinction between the religious and non-religious would thus have been
meaningless to him. He sought protection from all kinds of evil - whether a wild beast or tribe enemy
and lightning or wind - from the same person. The head of the clan or the Old Man of the tribe or the
king protected his wards against both human and superhuman enemies. In time, the king not only
interceded for his people with the divine powers, but he himself was looked upon as a divine being
and his laws as divine decrees.29

Time came, however, when the function of acting as intermediary between human and spiritual
powers became sufficiently differentiated from the responsibility of leading the tribe in war and
policing it in peace as to require the full-time services of a special priest class. This saw the birth of
the social and communal problem of the competing claims of the king and priest. Nevertheless, from
the beginning, the king and not the priest was superior. The head of the tribe was the warrior, and
although he also performed priestly functions, he carried out these functions because he was the
head and representative of the community.30

There being no distinction between the religious and the secular, the same authority that
promulgated laws regulating relations between man and man promulgated laws concerning man's
obligations to the supernatural. This authority was the king who was the head of the state and the
source of all law and who only delegated performance of rituals and sacrifice to the priests. The
Code of Hammurabi, king of Babylonia, imposed penalties for homicide, larceny, perjury, and other
crimes; regulated the fees of surgeons and the wages of masons and tailors and prescribed rules for
inheritance of property;31 and also catalogued the gods and assigned them their places in the divine
hierarchy so as to put Hammurabi's own god to a position of equality with existing gods.32 In sum,
the relationship of religion to the state (king) in pre-Hebreic times may be characterized as a union of
the two forces, with the state almost universally the dominant partner.33

With the rise of the Hebrew state, a new term had to be coined to describe the relation of the
Hebrew state with the Mosaic religion: theocracy. The authority and power of the state was ascribed
to God.34 The Mosaic creed was not merely regarded as the religion of the state, it was (at least until
Saul) the state itself. Among the Hebrews, patriarch, prophet, and priest preceded king and prince.
As man of God, Moses decided when the people should travel and when to pitch camp, when they
should make war and when peace. Saul and David were made kings by the prophet Samuel,
disciple of Eli the priest. Like the Code of Hammurabi, the Mosaic code combined civil laws with
religious mandates, but unlike the Hammurabi Code, religious laws were not of secondary
importance. On the contrary, religious motivation was primary and all-embracing: sacrifices were
made and Israel was prohibited from exacting usury, mistreating aliens or using false weights, all
because God commanded these.

Moses of the Bible led not like the ancient kings. The latter used religion as an engine to advance
the purposes of the state. Hammurabi unified Mesopotamia and established Babylon as its capital by
elevating its city-god to a primary position over the previous reigning gods.35 Moses, on the other
hand, capitalized on the natural yearnings of the Hebrew slaves for freedom and independence to
further God's purposes. Liberation and Exodus were preludes to Sinai and the receipt of the Divine
Law. The conquest of Canaan was a preparation for the building of the temple and the full worship of
God.36

Upon the monotheism of Moses was the theocracy of Israel founded. This monotheism, more than
anything else, charted not only the future of religion in western civilization, but equally, the future of
the relationship between religion and state in the west. This fact is acknowledged by many writers,
among whom is Northcott who pointed out, viz:

Historically it was the Hebrew and Christian conception of a single and universal God that
introduced a religious exclusivism leading to compulsion and persecution in the realm of
religion. Ancient religions were regarded as confined to each separate people believing in
them, and the question of change from one religious belief to another did not arise. It was not
until an exclusive fellowship, that the questions of proselytism, change of belief and liberty of
religion arose.37 (emphasis supplied)

The Hebrew theocracy existed in its pure form from Moses to Samuel. In this period, religion was not
only superior to the state, but it was all of the state. The Law of God as transmitted through Moses
and his successors was the whole of government.

With Saul, however, the state rose to be the rival and ultimately, the master, of religion. Saul and
David each received their kingdom from Samuel the prophet and disciple of Eli the priest, but soon
the king dominated prophet and priest. Saul disobeyed and even sought to slay Samuel the prophet
of God.38 Under Solomon, the subordination of religion to state became complete; he used religion
as an engine to further the state's purposes. He reformed the order of priesthood established by
Moses because the high priest under that order endorsed the claim of his rival to the throne.39

The subordination of religion to the state was also true in pre-Christian Rome which engaged in
emperor-worship. When Augustus became head of the Roman state and the priestly hierarchy, he
placed religion at a high esteem as part of a political plan to establish the real religion of pre-
Christian Rome - the worship of the head of the state. He set his great uncle Julius Caesar among
the gods, and commanded that worship of Divine Julius should not be less than worship of Apollo,
Jupiter and other gods. When Augustus died, he also joined the ranks of the gods, as other
emperors before him.40

The onset of Christianity, however, posed a difficulty to the emperor as the Christians' dogmatic
exclusiveness prevented them from paying homage to publicly accepted gods. In the first two
centuries after the death of Jesus, Christians were subjected to persecution. By the time of the
emperor Trajan, Christians were considered outlaws. Their crime was "hatred of the human race",
placing them in the same category as pirates and brigands and other "enemies of mankind" who
were subject to summary punishments.41

In 284, Diocletian became emperor and sought to reorganize the empire and make its administration
more efficient. But the closely-knit hierarchically controlled church presented a serious problem,
being a state within a state over which he had no control. He had two options: either to force it into
submission and break its power or enter into an alliance with it and procure political control over it.
He opted for force and revived the persecution, destroyed the churches, confiscated sacred books,
imprisoned the clergy and by torture forced them to sacrifice.42 But his efforts proved futile.

The later emperor, Constantine, took the second option of alliance. Constantine joined with Galerius
and Licinius, his two co-rulers of the empire, in issuing an edict of toleration to Christians "on
condition that nothing is done by them contrary to discipline."43 A year later, after Galerius died,
Constantine and Licius jointly issued the epochal Edict of Milan (312 or 313), a document of
monumental importance in the history of religious liberty. It provided "that liberty of worship shall not
be denied to any, but that the mind and will of every individual shall be free to manage divine affairs
according to his own choice." (emphasis supplied) Thus, all restrictive statutes were abrogated and it
was enacted "that every person who cherishes the desire to observe the Christian religion shall
freely and unconditionally proceed to observe the same without let or hindrance." Furthermore, it
was provided that the "same free and open power to follow their own religion or worship is granted
also to others, in accordance with the tranquillity of our times, in order that every person may have
free opportunity to worship the object of his choice."(emphasis supplied)44

Before long, not only did Christianity achieve equal status, but acquired privilege, then prestige, and
eventually, exclusive power. Religion became an engine of state policy as Constantine considered
Christianity a means of unifying his complex empire. Within seven years after the Edict of Milan,
under the emperor's command, great Christian edifices were erected, the clergy were freed from
public burdens others had to bear, and private heathen sacrifices were forbidden.

The favors granted to Christianity came at a price: state interference in religious affairs. Constantine
and his successors called and dismissed church councils, and enforced unity of belief and practice.
Until recently the church had been the victim of persecution and repression, but this time it
welcomed the state's persecution and repression of the nonconformist and the orthodox on the belief
that it was better for heretics to be purged of their error than to die unsaved.

Both in theory as in practice, the partnership between church and state was not easy. It was a
constant struggle of one claiming dominance over the other. In time, however, after the collapse and
disintegration of the Roman Empire, and while monarchical states were gradually being consolidated
among the numerous feudal holdings, the church stood as the one permanent, stable and universal
power. Not surprisingly, therefore, it claimed not merely equality but superiority over the secular
states. This claim, symbolized by Pope Leo's crowning of Charlemagne, became the church's
accepted principle of its relationship to the state in the Middle Ages. As viewed by the church, the
union of church and state was now a union of the state in the church. The rulers of the states did not
concede to this claim of supremacy. Thus, while Charlemagne received his crown from the Pope, he
himself crowned his own son as successor to nullify the inference of supremacy.45 The whole history
of medieval Europe was a struggle for supremacy between prince and Pope and the resulting
religious wars and persecution of heretics and nonconformists. At about the second quarter of the
13th century, the Inquisition was established, the purpose of which was the discovery and
extermination of heresy. Accused heretics were tortured with the approval of the church in the bull
Ad extirpanda issued by Pope Innocent IV in 1252.

The corruption and abuses of the Catholic Church spurred the Reformation aimed at reforming the
Catholic Church and resulting in the establishment of Protestant churches. While Protestants are
accustomed to ascribe to the Reformation the rise of religious liberty and its acceptance as the
principle governing the relations between a democratic state and its citizens, history shows that it is
more accurate to say that the "same causes that gave rise to the Protestant revolution also resulted
in the widespread acceptance of the principle of religious liberty, and ultimately of the principle of
separation of church and state."46 Pleas for tolerance and freedom of conscience can without doubt
be found in the writings of leaders of the Reformation. But just as Protestants living in the countries
of papists pleaded for toleration of religion, so did the papists that lived where Protestants were
dominant.47 Papist and Protestant governments alike accepted the idea of cooperation between
church and state and regarded as essential to national unity the uniformity of at least the outward
manifestations of religion.48 Certainly, Luther, leader of the Reformation, stated that "neither pope,
nor bishop, nor any man whatever has the right of making one syllable binding on a Christian man,
unless it be done with his own consent."49 But when the tables had turned and he was no longer the
hunted heretic, he likewise stated when he made an alliance with the secular powers that "(h)eretics
are not to be disputed with, but to be condemned unheard, and whilst they perish by fire, the faithful
ought to pursue the evil to its source, and bathe their hands in the blood of the Catholic bishops, and
of the Pope, who is a devil in disguise."50 To Luther, unity among the peoples in the interests of the
state was an important consideration. Other personalities in the Reformation such as Melanchton,
Zwingli and Calvin strongly espoused theocracy or the use of the state as an engine to further
religion. In establishing theocracy in Geneva, Calvin made absence from the sermon a crime, he
included criticism of the clergy in the crime of blasphemy punishable by death, and to eliminate
heresy, he cooperated in the Inquisition.51

There were, however, those who truly advocated religious liberty. Erasmus, who belonged to the
Renaissance than the Reformation, wrote that "(t)he terrible papal edict, the more terrible imperial
edict, the imprisonments, the confiscations, the recantations, the fagots and burnings, all these
things I can see accomplish nothing except to make the evil more widespread."52 The minority or
dissident sects also ardently advocated religious liberty. The Anabaptists, persecuted and despised,
along with the Socinians (Unitarians) and the Friends of the Quakers founded by George Fox in the
17th century, endorsed the supremacy and freedom of the individual conscience. They regarded
religion as outside the realm of political governments.53 The English Baptists proclaimed that the
"magistrate is not to meddle with religion or matters of conscience, nor compel men to this or that
form of religion."54

Thus, out of the Reformation, three rationalizations of church-state relations may be distinguished:
the Erastian (after the German doctor Erastus), the theocratic, and the separatist. The first assumed
state superiority in ecclesiastical affairs and the use of religion as an engine of state policy as
demonstrated by Luther's belief that civic cohesion could not exist without religious unity so that
coercion to achieve religious unity was justified. The second was founded on ecclesiastical
supremacy and the use of state machinery to further religious interests as promoted by Calvin. The
third, which was yet to achieve ultimate and complete expression in the New World, was discernibly
in its incipient form in the arguments of some dissident minorities that the magistrate should not
intermeddle in religious affairs.55 After the Reformation, Erastianism pervaded all Europe except for
Calvin's theocratic Geneva. In England, perhaps more than in any other country, Erastianism was at
its height. To illustrate, a statute was enacted by Parliament in 1678, which, to encourage woolen
trade, imposed on all clergymen the duty of seeing to it that no person was buried in a shroud made
of any substance other than wool.56 Under Elizabeth, supremacy of the crown over the church was
complete: ecclesiastical offices were regulated by her proclamations, recusants were fined and
imprisoned, Jesuits and proselytizing priests were put to death for high treason, the thirty-nine
Articles of the Church of England were adopted and English Protestantism attained its present
doctrinal status.57 Elizabeth was to be recognized as "the only Supreme Governor of this realm . . .
as well in all spiritual or ecclesiastical things or causes as temporal." She and her successors were
vested, in their dominions, with "all manner of jurisdictions, privileges, and preeminences, in any
wise touching or concerning any spiritual or ecclesiastical jurisdiction."58 Later, however, Cromwell
established the constitution in 1647 which granted full liberty to all Protestant sects, but denied
toleration to Catholics.59 In 1689, William III issued the Act of Toleration which established a de facto
toleration for all except Catholics. The Catholics achieved religious liberty in the 19th century when
the Roman Catholic Relief Act of 1829 was adopted. The Jews followed suit in 1858 when they were
finally permitted to sit in Parliament.60
When the representatives of the American states met in Philadelphia in 1787 to draft the
constitutional foundation of the new republic, the theocratic state which had flourished intermittently
in Israel, Judea, the Holy Roman Empire and Geneva was completely gone. The prevailing church-
state relationship in Europe was Erastianism embodied in the system of jurisdictionalism whereby
one faith was favored as the official state-supported religion, but other faiths were permitted to exist
with freedom in various degrees. No nation had yet adopted as the basis of its church-state relations
the principle of the mutual independence of religion and government and the concomitant principle
that neither might be used as an engine to further the policies of the other, although the principle
was in its seminal form in the arguments of some dissident minorities and intellectual leaders of the
Renaissance. The religious wars of 16th and 17th century Europe were a thing of the past by the
time America declared its independence from the Old World, but their memory was still vivid in the
minds of the Constitutional Fathers as expressed by the United States Supreme Court, viz:

The centuries immediately before and contemporaneous with the colonization of America
had been filled with turmoil, civil strife, and persecution generated in large part by
established sects determined to maintain their absolute political and religious supremacy.
With the power of government supporting them, at various times and places, Catholics had
persecuted Protestants, Protestants had persecuted Catholics, Protestant sects had
persecuted other protestant sects, Catholics of one shade of belief had persecuted Catholics
of another shade of belief, and all of these had from time to time persecuted Jews. In efforts
to force loyalty to whatever religious group happened to be on top and in league with the
government of a particular time and place, men and women had been fined, cast in jail,
cruelly tortured, and killed. Among the offenses for which these punishments had been
inflicted were such things as speaking disrespectfully of the views of ministers of
government-established churches, non-attendance at those churches, expressions of non-
belief in their doctrines, and failure to pay taxes and tithes to support them.61

In 1784, James Madison captured in this statement the entire history of church-state relations in
Europe up to the time the United States Constitution was adopted, viz:

Torrents of blood have been spilt in the world in vain attempts of the secular arm to
extinguish religious discord, by proscribing all differences in religious opinions.62

In sum, this history shows two salient features: First, with minor exceptions, the history of church-
state relationships was characterized by persecution, oppression, hatred, bloodshed, and war, all in
the name of the God of Love and of the Prince of Peace. Second, likewise with minor exceptions,
this history witnessed the unscrupulous use of religion by secular powers to promote secular
purposes and policies, and the willing acceptance of that role by the vanguards of religion in
exchange for the favors and mundane benefits conferred by ambitious princes and emperors in
exchange for religion's invaluable service. This was the context in which the unique experiment of
the principle of religious freedom and separation of church and state saw its birth in American
constitutional democracy and in human history.63

V. Factors Contributing to the Adoption of the American Religion Clauses

Settlers fleeing from religious persecution in Europe, primarily in Anglican-dominated England,

established many of the American colonies. British thought pervaded these colonies as the
immigrants brought with them their religious and political ideas from England and English books and
pamphlets largely provided their cultural fare.64 But although these settlers escaped from Europe to
be freed from bondage of laws which compelled them to support and attend government favored
churches, some of these settlers themselves transplanted into American soil the oppressive
practices they escaped from. The charters granted by the English Crown to the individuals and
companies designated to make the laws which would control the destinies of the colonials
authorized them to erect religious establishments, which all, whether believers or not, were required
to support or attend.65 At one time, six of the colonies established a state religion. Other colonies,
however, such as Rhode Island and Delaware tolerated a high degree of religious diversity. Still
others, which originally tolerated only a single religion, eventually extended support to several
different faiths.66

This was the state of the American colonies when the unique American experiment of separation of
church and state came about. The birth of the experiment cannot be attributed to a single cause or
event. Rather, a number of interdependent practical and ideological factors contributed in bringing it
forth. Among these were the "English Act of Toleration of 1689, the multiplicity of sects, the lack of
church affiliation on the part of most Americans, the rise of commercial intercourse, the exigencies of
the Revolutionary War, the Williams-Penn tradition and the success of their experiments, the writings
of Locke, the social contract theory, the Great Awakening, and the influence of European rationalism
and deism."67 Each of these factors shall be briefly discussed.

First, the practical factors. England's policy of opening the gates of the American colonies to different
faiths resulted in the multiplicity of sects in the colonies. With an Erastian justification, English lords
chose to forego protecting what was considered to be the true and eternal church of a particular time
in order to encourage trade and commerce. The colonies were large financial investments which
would be profitable only if people would settle there. It would be difficult to engage in trade with
persons one seeks to destroy for religious belief, thus tolerance was a necessity. This tended to
distract the colonies from their preoccupations over their religion and its exclusiveness, encouraging
them "to think less of the Church and more of the State and of commerce."68 The diversity brought
about by the colonies' open gates encouraged religious freedom and non-establishment in several
ways. First, as there were too many dissenting sects to abolish, there was no alternative but to learn
to live together. Secondly, because of the daily exposure to different religions, the passionate
conviction in the exclusive rightness of one's religion, which impels persecution for the sake of one's
religion, waned. Finally, because of the great diversity of the sects, religious uniformity was not
possible, and without such uniformity, establishment could not survive.69

But while there was a multiplicity of denomination, paradoxically, there was a scarcity of adherents.
Only about four percent of the entire population of the country had a church affiliation at the time the
republic was founded.70 This might be attributed to the drifting to the American colonies of the
skepticism that characterized European Enlightenment.71 Economic considerations might have also
been a factor. The individualism of the American colonist, manifested in the multiplicity of sects, also
resulted in much unaffiliated religion which treated religion as a personal non-institutional matter.
The prevalence of lack of church affiliation contributed to religious liberty and disestablishment as
persons who were not connected with any church were not likely to persecute others for similar
independence nor accede to compulsory taxation to support a church to which they did not belong.72

However, for those who were affiliated to churches, the colonial policy regarding their worship
generally followed the tenor of the English Act of Toleration of 1689. In England, this Act conferred
on Protestant dissenters the right to hold public services subject to registration of their ministers and
places of worship.73 Although the toleration accorded to Protestant dissenters who qualified under its
terms was only a modest advance in religious freedom, it nevertheless was of some influence to the
American experiment.74 Even then, for practical considerations, concessions had to be made to other
dissenting churches to ensure their cooperation in the War of Independence which thus had a
unifying effect on the colonies.

Next, the ideological factors. First, the Great Awakening in mid-18th century, an evangelical religious
revival originating in New England, caused a break with formal church religion and a resistance to
coercion by established churches. This movement emphasized an emotional, personal religion that
appealed directly to the individual, putting emphasis on the rights and duties of the individual
conscience and its answerability exclusively to God. Thus, although they had no quarrel with
orthodox Christian theology as in fact they were fundamentalists, this group became staunch
advocates of separation of church and state.75

Then there was the Williams-Penn tradition. Roger Williams was the founder of the colony of Rhode
Island where he established a community of Baptists, Quakers and other nonconformists. In this
colony, religious freedom was not based on practical considerations but on the concept of mutual
independence of religion and government. In 1663, Rhode Island obtained a charter from the British
crown which declared that settlers have it "much on their heart to hold forth a livelie experiment that
a most flourishing civil state may best be maintained . . . with full libertie in religious
concernments."76 In Williams' pamphlet, The Bloudy Tenent of Persecution for cause of Conscience,
discussed in a Conference between Truth and Peace,77 he articulated the philosophical basis for his
argument of religious liberty. To him, religious freedom and separation of church and state did not
constitute two but only one principle. Religious persecution is wrong because it "confounds the Civil
and Religious" and because "States . . . are proved essentially Civil. The "power of true discerning
the true fear of God" is not one of the powers that the people have transferred to Civil
Authority.78 Williams' Bloudy Tenet is considered an epochal milestone in the history of religious
freedom and the separation of church and state.79

William Penn, proprietor of the land that became Pennsylvania, was also an ardent advocate of
toleration, having been imprisoned for his religious convictions as a member of the despised
Quakers. He opposed coercion in matters of conscience because "imposition, restraint and
persecution for conscience sake, highly invade the Divine prerogative." Aside from his idealism,
proprietary interests made toleration in Pennsylvania necessary. He attracted large numbers of
settlers by promising religious toleration, thus bringing in immigrants both from the Continent and
Britain. At the end of the colonial period, Pennsylvania had the greatest variety of religious groups.
Penn was responsible in large part for the "Concessions and agreements of the Proprietors,
Freeholders, and inhabitants of West Jersey, in America", a monumental document in the history of
civil liberty which provided among others, for liberty of conscience.80 The Baptist followers of
Williams and the Quakers who came after Penn continued the tradition started by the leaders of their
denominations. Aside from the Baptists and the Quakers, the Presbyterians likewise greatly
contributed to the evolution of separation and freedom.81 The Constitutional fathers who convened in
Philadelphia in 1787, and Congress and the states that adopted the First Amendment in 1791 were
very familiar with and strongly influenced by the successful examples of Rhode Island and
Pennsylvania.82

Undeniably, John Locke and the social contract theory also contributed to the American experiment.
The social contract theory popularized by Locke was so widely accepted as to be deemed self-
evident truth in America's Declaration of Independence. With the doctrine of natural rights and
equality set forth in the Declaration of Independence, there was no room for religious discrimination.
It was difficult to justify inequality in religious treatment by a new nation that severed its political
bonds with the English crown which violated the self-evident truth that all men are created equal.83

The social contract theory was applied by many religious groups in arguing against establishment,
putting emphasis on religion as a natural right that is entirely personal and not within the scope of
the powers of a political body. That Locke and the social contract theory were influential in the
development of religious freedom and separation is evident from the memorial presented by the
Baptists to the Continental Congress in 1774, viz:
 Men unite in society, according to the great Mr. Locke, with an intention in every one the
better to preserve himself, his liberty and property. The power of the society, or Legislature
constituted by them, can never be supposed to extend any further than the common good,
but is obliged to secure every one's property. To give laws, to receive obedience, to compel
with the sword, belong to none but the civil magistrate; and on this ground we affirm that the
magistrate's power extends not to establishing any articles of faith or forms of worship, by
force of laws; for laws are of no force without penalties. The care of souls cannot belong to
the civil magistrate, because his power consists only in outward force; but pure and saving
religion consists in the inward persuasion of the mind, without which nothing can be
acceptable to God.84 (emphasis supplied)

The idea that religion was outside the jurisdiction of civil government was acceptable to both the
religionist and rationalist. To the religionist, God or Christ did not desire that government have that
jurisdiction ("render unto Caesar that which is Caesar's"; "my kingdom is not of this world") and to
the rationalist, the power to act in the realm of religion was not one of the powers conferred on
government as part of the social contract.85

Not only the social contract theory drifted to the colonies from Europe. Many of the leaders of the
Revolutionary and post-revolutionary period were also influenced by European deism and
rationalism,86 in general, and some were apathetic if not antagonistic to formal religious worship and
institutionalized religion. Jefferson, Paine, John Adams, Washington, Franklin, Madison, among
others were reckoned to be among the Unitarians or Deists. Unitarianism and Deism contributed to
the emphasis on secular interests and the relegation of historic theology to the background.87 For
these men of the enlightenment, religion should be allowed to rise and fall on its own, and the state
must be protected from the clutches of the church whose entanglements has caused intolerance and
corruption as witnessed throughout history.88 Not only the leaders but also the masses embraced
rationalism at the end of the eighteenth century, accounting for the popularity of Paine's Age of
Reason.89

Finally, the events leading to religious freedom and separation in Virginia contributed significantly to
the American experiment of the First Amendment. Virginia was the "first state in the history of the
world to proclaim the decree of absolute divorce between church and state."90 Many factors
contributed to this, among which were that half to two-thirds of the population were organized
dissenting sects, the Great Awakening had won many converts, the established Anglican Church of
Virginia found themselves on the losing side of the Revolution and had alienated many influential
laymen with its identification with the Crown's tyranny, and above all, present in Virginia was a group
of political leaders who were devoted to liberty generally,91 who had accepted the social contract as
self-evident, and who had been greatly influenced by Deism and Unitarianism. Among these leaders
were Washington, Patrick Henry, George Mason, James Madison and above the rest, Thomas
Jefferson.

The first major step towards separation in Virginia was the adoption of the following provision in the
Bill of Rights of the state's first constitution:

That religion, or the duty which we owe to our Creator, and the manner of discharging it, can
be directed only by reason and conviction, not by force or violence; and therefore, all men
are equally entitled to the free exercise of religion according to the dictates of conscience;
and that it is the mutual duty of all to practice Christian forbearance, love, and charity
towards each other.92 (emphasis supplied)

The adoption of the Bill of Rights signified the beginning of the end of establishment. Baptists,
Presbyterians and Lutherans flooded the first legislative assembly with petitions for abolition of
establishment. While the majority of the population were dissenters, a majority of the legislature
were churchmen. The legislature compromised and enacted a bill in 1776 abolishing the more
oppressive features of establishment and granting exemptions to the dissenters, but not
guaranteeing separation. It repealed the laws punishing heresy and absence from worship and
requiring the dissenters to contribute to the support of the establishment.93 But the dissenters were
not satisfied; they not only wanted abolition of support for the establishment, they opposed the
compulsory support of their own religion as others. As members of the established church would not
allow that only they would pay taxes while the rest did not, the legislature enacted in 1779 a bill
making permanent the establishment's loss of its exclusive status and its power to tax its members;
but those who voted for it did so in the hope that a general assessment bill would be passed.
Without the latter, the establishment would not survive. Thus, a bill was introduced in 1779 requiring
every person to enroll his name with the county clerk and indicate which "society for the purpose of
Religious Worship" he wished to support. On the basis of this list, collections were to be made by the
sheriff and turned over to the clergymen and teachers designated by the religious congregation. The
assessment of any person who failed to enroll in any society was to be divided proportionately
among the societies.94 The bill evoked strong opposition.

In 1784, another bill, entitled "Bill Establishing a Provision for Teachers of the Christian Religion"
was introduced requiring all persons "to pay a moderate tax or contribution annually for the support
of the Christian religion, or of some Christian church, denomination or communion of Christians, or
for some form of Christian worship."95 This likewise aroused the same opposition to the 1779 bill.
The most telling blow against the 1784 bill was the monumental "Memorial and Remonstrance
against Religious Assessments" written by Madison and widely distributed before the reconvening of
legislature in the fall of 1785.96 It stressed natural rights, the government's lack of jurisdiction over
the domain of religion, and the social contract as the ideological basis of separation while also citing
practical considerations such as loss of population through migration. He wrote, viz:

Because we hold it for a 'fundamental and undeniable truth,' that religion, or the duty which
we owe to our creator, and the manner of discharging it, can be directed only by reason and
conviction, not by force or violence. The religion, then, of every man, must be left to the
conviction and conscience of every man; and it is the right of every man to exercise it as
these may dictate. This right is, in its nature, an unalienable right. It is unalienable, because
the opinions of men, depending only on the evidence contemplated in their own minds,
cannot follow the dictates of other men; it is unalienable, also, because what is here a right
towards men, is a duty towards the creator. It is the duty of every man to render the creator
such homage, and such only as he believes to be acceptable to him; this duty is precedent,
both in order of time and degree of obligation, to the claims of civil society. Before any man
can be considered as a member of civil society, he must be considered as a subject of the
governor of the universe; and if a member of civil society, who enters into any subordinate
association, must always do it with a reservation of his duty to the general authority, much
more must every man who becomes a member of any particular civil society do it with the
saving his allegiance to the universal sovereign.97 (emphases supplied)

Madison articulated in the Memorial the widely held beliefs in 1785 as indicated by the great number
of signatures appended to the Memorial. The assessment bill was speedily defeated.

Taking advantage of the situation, Madison called up a much earlier 1779 bill of Jefferson which had
not been voted on, the "Bill for Establishing Religious Freedom", and it was finally passed in January
1786. It provided, viz:

Well aware that Almighty God hath created the mind free; that all attempts to influence it by
temporal punishments or burdens, or by civil incapacitations, tend not only to beget habits of
 hypocrisy and meanness, and are a departure from the plan of the Holy Author of our
religion, who being Lord both of body and mind, yet chose not to propagate it by coercions
on either, as was in his Almighty power to do;

xxx xxx xxx

Be it therefore enacted by the General Assembly. That no man shall be compelled to

frequent or support any religious worship, place or ministry whatsoever, nor shall be
enforced, restrained, molested or burdened in his body or goods, nor shall otherwise suffer
on account of his religious opinions or beliefs, but that all men shall be free to profess, and
by argument to maintain, their opinions in matters of religion, and that the same shall in no
wise diminish, enlarge or affect their civil capacities.98 (emphases supplied)

This statute forbade any kind of taxation in support of religion and effectually ended any thought of a
general or particular establishment in Virginia.99 But the passage of this law was obtained not only
because of the influence of the great leaders in Virginia but also because of substantial popular
support coming mainly from the two great dissenting sects, namely the Presbyterians and the
Baptists. The former were never established in Virginia and an underprivileged minority of the
population. This made them anxious to pull down the existing state church as they realized that it
was impossible for them to be elevated to that privileged position. Apart from these expediential
considerations, however, many of the Presbyterians were sincere advocates of
separation100 grounded on rational, secular arguments and to the language of natural
religion.101 Influenced by Roger Williams, the Baptists, on the other hand, assumed that religion was
essentially a matter of concern of the individual and his God, i.e., subjective, spiritual and
supernatural, having no relation with the social order.102 To them, the Holy Ghost was sufficient to
maintain and direct the Church without governmental assistance and state-supported religion was
contrary ti the spirit of the Gospel.103 Thus, separation was necessary.104 Jefferson's religious
freedom statute was a milestone in the history of religious freedom. The United States Supreme
Court has not just once acknowledged that the provisions of the First Amendment of the U.S.
Constitution had the same objectives and intended to afford the same protection against government
interference with religious liberty as the Virginia Statute of Religious Liberty.

Even in the absence of the religion clauses, the principle that government had no power to legislate
in the area of religion by restricting its free exercise or establishing it was implicit in the Constitution
of 1787. This could be deduced from the prohibition of any religious test for federal office in Article VI
of the Constitution and the assumed lack of power of Congress to act on any subject not expressly
mentioned in the Constitution.105 However, omission of an express guaranty of religious freedom and
other natural rights nearly prevented the ratification of the Constitution.106 In the ratifying conventions
of almost every state, some objection was expressed to the absence of a restriction on the Federal
Government as regards legislation on religion.107 Thus, in 1791, this restriction was made explicit
with the adoption of the religion clauses in the First Amendment as they are worded to this day, with
the first part usually referred to as the Establishment Clause and the second part, the Free Exercise
Clause, viz:

Congress shall make no law respecting an establishment of religion or prohibiting the free
exercise thereof.

VI. Religion Clauses in the United States:

Concept, Jurisprudence, Standards

With the widespread agreement regarding the value of the First Amendment religion clauses comes
an equally broad disagreement as to what these clauses specifically require, permit and forbid. No
agreement has been reached by those who have studied the religion clauses as regards its exact
meaning and the paucity of records in Congress renders it difficult to ascertain its
meaning.108 Consequently, the jurisprudence in this area is volatile and fraught with inconsistencies
whether within a Court decision or across decisions.

One source of difficulty is the difference in the context in which the First Amendment was adopted
and in which it is applied today. In the 1780s, religion played a primary role in social life - i.e., family
responsibilities, education, health care, poor relief, and other aspects of social life with significant
moral dimension - while government played a supportive and indirect role by maintaining conditions
in which these activities may be carried out by religious or religiously-motivated associations. Today,
government plays this primary role and religion plays the supportive role.109 Government runs even
family planning, sex education, adoption and foster care programs.110 Stated otherwise and with
some exaggeration, "(w)hereas two centuries ago, in matters of social life which have a significant
moral dimension, government was the handmaid of religion, today religion, in its social
responsibilities, as contrasted with personal faith and collective worship, is the handmaid of
government."111 With government regulation of individual conduct having become more pervasive,
inevitably some of those regulations would reach conduct that for some individuals are religious. As
a result, increasingly, there may be inadvertent collisions between purely secular government
actions and religion clause values.112

Parallel to this expansion of government has been the expansion of religious organizations in
population, physical institutions, types of activities undertaken, and sheer variety of denominations,
sects and cults. Churches run day-care centers, retirement homes, hospitals, schools at all levels,
research centers, settlement houses, halfway houses for prisoners, sports facilities, theme parks,
publishing houses and mass media programs. In these activities, religious organizations
complement and compete with commercial enterprises, thus blurring the line between many types of
activities undertaken by religious groups and secular activities. Churches have also concerned
themselves with social and political issues as a necessary outgrowth of religious faith as witnessed
in pastoral letters on war and peace, economic justice, and human life, or in ringing affirmations for
racial equality on religious foundations. Inevitably, these developments have brought about
substantial entanglement of religion and government. Likewise, the growth in population density,
mobility and diversity has significantly changed the environment in which religious organizations and
activities exist and the laws affecting them are made. It is no longer easy for individuals to live solely
among their own kind or to shelter their children from exposure to competing values. The result is
disagreement over what laws should require, permit or prohibit;113 and agreement that if the rights of
believers as well as non-believers are all to be respected and given their just due, a rigid, wooden
interpretation of the religion clauses that is blind to societal and political realities must be avoided.114

Religion cases arise from different circumstances. The more obvious ones arise from a government
action which purposely aids or inhibits religion. These cases are easier to resolve as, in general,
these actions are plainly unconstitutional. Still, this kind of cases poses difficulty in ascertaining proof
of intent to aid or inhibit religion.115 The more difficult religion clause cases involve government action
with a secular purpose and general applicability which incidentally or inadvertently aids or burdens
religious exercise. In Free Exercise Clause cases, these government actions are referred to as those
with "burdensome effect" on religious exercise even if the government action is not religiously
motivated.116 Ideally, the legislature would recognize the religions and their practices and would
consider them, when practical, in enacting laws of general application. But when the legislature fails
to do so, religions that are threatened and burdened turn to the courts for protection.117 Most of these
free exercise claims brought to the Court are for exemption, not invalidation of the facially neutral law
that has a "burdensome" effect.118

With the change in political and social context and the increasing inadvertent collisions between law
and religious exercise, the definition of religion for purposes of interpreting the religion clauses has
also been modified to suit current realities. Defining religion is a difficult task for even theologians,
philosophers and moralists cannot agree on a comprehensive definition. Nevertheless, courts must
define religion for constitutional and other legal purposes.119It was in the 1890 case of Davis v.
Beason120 that the United States Supreme Court first had occasion to define religion, viz:

The term 'religion' has reference to one's views of his relations to his Creator, and to the
obligations they impose of reverence for his being and character, and of obedience to his
will. It is often confounded with the cultus or form of worship of a particular sect, but is
distinguishable from the latter. The First Amendment to the Constitution, in declaring that
Congress shall make no law respecting the establishment of religion, or forbidding the free
exercise thereof, was intended to allow everyone under the jurisdiction of the United States
to entertain such notions respecting his relations to his Maker and the duties they impose as
may be approved by his judgment and conscience, and to exhibit his sentiments in such form
of worship as he may think proper, not injurious to the equal rights of others, and to prohibit
legislation for the support of any religious tenets, or the modes of worship of any sect.121

The definition was clearly theistic which was reflective of the popular attitudes in 1890.

In 1944, the Court stated in United States v. Ballard122 that the free exercise of religion "embraces
the right to maintain theories of life and of death and of the hereafter which are rank heresy to
followers of the orthodox faiths."123 By the 1960s, American pluralism in religion had flourished to
include non-theistic creeds from Asia such as Buddhism and Taoism.124 In 1961, the Court,
in Torcaso v. Watkins,125 expanded the term "religion" to non-theistic beliefs such as Buddhism,
Taoism, Ethical Culture, and Secular Humanism. Four years later, the Court faced a definitional
problem in United States v. Seeger126 which involved four men who claimed "conscientious objector"
status in refusing to serve in the Vietnam War. One of the four, Seeger, was not a member of any
organized religion opposed to war, but when specifically asked about his belief in a Supreme Being,
Seeger stated that "you could call (it) a belief in a Supreme Being or God. These just do not happen
to be the words that I use." Forest Peter, another one of the four claimed that after considerable
meditation and reflection "on values derived from the Western religious and philosophical tradition,"
he determined that it would be "a violation of his moral code to take human life and that he
considered this belief superior to any obligation to the state." The Court avoided a constitutional
question by broadly interpreting not the Free Exercise Clause, but the statutory definition of religion
in the Universal Military Training and Service Act of 1940 which exempt from combat anyone "who,
by reason of religious training and belief, is conscientiously opposed to participation in war in any
form." Speaking for the Court, Justice Clark ruled, viz:

Congress, in using the expression 'Supreme Being' rather than the designation 'God,' was
merely clarifying the meaning of religious tradition and belief so as to embrace all religions
and to exclude essentially political, sociological, or philosophical views (and) the test of belief
'in relation to a Supreme Being' is whether a given belief that is sincere and meaningful
occupies a place in the life of its possessor parallel to the orthodox belief in God. (emphasis
supplied)

The Court was convinced that Seeger, Peter and the others were conscientious objectors possessed
of such religious belief and training.

Federal and state courts have expanded the definition of religion in Seeger to include even non-
theistic beliefs such as Taoism or Zen Buddhism. It has been proposed that basically, a creed must
meet four criteria to qualify as religion under the First Amendment. First, there must be belief in God
or some parallel belief that occupies a central place in the believer's life. Second, the religion must
involve a moral code transcending individual belief, i.e., it cannot be purely subjective. Third, a
demonstrable sincerity in belief is necessary, but the court must not inquire into the truth or
reasonableness of the belief.127 Fourth, there must be some associational ties,128 although there is
also a view that religious beliefs held by a single person rather than being part of the teachings of
any kind of group or sect are entitled to the protection of the Free Exercise Clause.129

Defining religion is only the beginning of the difficult task of deciding religion clause cases. Having
hurdled the issue of definition, the court then has to draw lines to determine what is or is not
permissible under the religion clauses. In this task, the purpose of the clauses is the yardstick. Their
purpose is singular; they are two sides of the same coin.130 In devoting two clauses to religion, the
Founders were stating not two opposing thoughts that would cancel each other out, but two
complementary thoughts that apply in different ways in different circumstances.131 The purpose of
the religion clauses - both in the restriction it imposes on the power of the government to interfere
with the free exercise of religion and the limitation on the power of government to establish, aid, and
support religion - is the protection and promotion of religious liberty.132 The end, the goal, and the
rationale of the religion clauses is this liberty.133 Both clauses were adopted to prevent government
imposition of religious orthodoxy; the great evil against which they are directed is government-
induced homogeneity.134 The Free Exercise Clause directly articulates the common objective of the
two clauses and the Establishment Clause specifically addresses a form of interference with
religious liberty with which the Framers were most familiar and for which government historically had
demonstrated a propensity.135 In other words, free exercise is the end, proscribing establishment is a
necessary means to this end to protect the rights of those who might dissent from whatever religion
is established.136 It has even been suggested that the sense of the First Amendment is captured if it
were to read as "Congress shall make no law respecting an establishment of religion or otherwise
prohibiting the free exercise thereof" because the fundamental and single purpose of the two
religious clauses is to "avoid any infringement on the free exercise of religions"137 Thus, the
Establishment Clause mandates separation of church and state to protect each from the other, in
service of the larger goal of preserving religious liberty. The effect of the separation is to limit the
opportunities for any religious group to capture the state apparatus to the disadvantage of those of
other faiths, or of no faith at all138 because history has shown that religious fervor conjoined with
state power is likely to tolerate far less religious disagreement and disobedience from those who
hold different beliefs than an enlightened secular state.139 In the words of the U.S. Supreme Court,
the two clauses are interrelated, viz: "(t)he structure of our government has, for the preservation of
civil liberty, rescued the temporal institutions from religious interference. On the other hand, it has
secured religious liberty from the invasion of the civil authority."140

In upholding religious liberty as the end goal in religious clause cases, the line the court draws to
ensure that government does not establish and instead remains neutral toward religion is not
absolutely straight. Chief Justice Burger explains, viz:

The course of constitutional neutrality in this area cannot be an absolutely straight line;
rigidity could well defeat the basic purpose of these provisions, which is to insure that no
religion be sponsored or favored, none commanded and none inhibited.141 (emphasis
supplied)

Consequently, U.S. jurisprudence has produced two identifiably different,142 even opposing, strains
of jurisprudence on the religion clauses: separation (in the form of strict separation or the tamer
version of strict neutrality or separation) and benevolent neutrality or accommodation. A view of the
landscape of U.S. religion clause cases would be useful in understanding these two strains, the
scope of protection of each clause, and the tests used in religious clause cases. Most of these cases
are cited as authorities in Philippine religion clause cases.

A. Free Exercise Clause

The Court first interpreted the Free Exercise Clause in the 1878 case of Reynolds v. United
States.143 This landmark case involved Reynolds, a Mormon who proved that it was his religious duty
to have several wives and that the failure to practice polygamy by male members of his religion
when circumstances would permit would be punished with damnation in the life to come. Reynolds'
act of contracting a second marriage violated Section 5352, Revised Statutes prohibiting and
penalizing bigamy, for which he was convicted. The Court affirmed Reynolds' conviction, using what
in jurisprudence would be called the belief-action test which allows absolute protection to belief but
not to action. It cited Jefferson's Bill Establishing Religious Freedom which, according to the Court,
declares "the true distinction between what properly belongs to the Church and what to the
State."144 The bill, making a distinction between belief and action, states in relevant part, viz:

That to suffer the civil magistrate to intrude his powers into the field of opinion, and to
restrain the profession or propagation of principles on supposition of their ill tendency, is a
dangerous fallacy which at once destroys all religious liberty;

that it is time enough for the rightful purposes of civil government for its officers to interfere
when principles break out into overt acts against peace and good order.145 (emphasis
supplied)

The Court then held, viz:

Congress was deprived of all legislative power over mere opinion, but was left free to reach
actions which were in violation of social duties or subversive of good order. . .

Laws are made for the government of actions, and while they cannot interfere with mere
religious belief and opinions, they may with practices. Suppose one believed that human
sacrifice were a necessary part of religious worship, would it be seriously contended that the
civil government under which he lived could not interfere to prevent a sacrifice? Or if a wife
religiously believed it was her duty to burn herself upon the funeral pile of her dead husband,
would it be beyond the power of the civil government to prevent her carrying her belief into
practice?

So here, as a law of the organization of society under the exclusive dominion of the United
States, it is provided that plural marriages shall not be allowed. Can a man excuse his
practices to the contrary because of his religious belief? To permit this would be to make the
professed doctrines of religious belief superior to the law of the land, and in effect to permit
every citizen to become a law unto himself. Government could exist only in name under such
circumstances.146

The construct was thus simple: the state was absolutely prohibited by the Free Exercise Clause from
regulating individual religious beliefs, but placed no restriction on the ability of the state to regulate
religiously motivated conduct. It was logical for belief to be accorded absolute protection because
any statute designed to prohibit a particular religious belief unaccompanied by any conduct would
most certainly be motivated only by the legislature's preference of a competing religious belief. Thus,
all cases of regulation of belief would amount to regulation of religion for religious reasons violative
of the Free Exercise Clause. On the other hand, most state regulations of conduct are for public
welfare purposes and have nothing to do with the legislature's religious preferences. Any burden on
religion that results from state regulation of conduct arises only when particular individuals are
engaging in the generally regulated conduct because of their particular religious beliefs. These
burdens are thus usually inadvertent and did not figure in the belief-action test. As long as the Court
found that regulation address action rather than belief, the Free Exercise Clause did not pose any
problem.147 The Free Exercise Clause thus gave no protection against the proscription of actions
even if considered central to a religion unless the legislature formally outlawed the belief itself.148

This belief-action distinction was held by the Court for some years as shown by cases where the
Court upheld other laws which burdened the practice of the Mormon religion by imposing various
penalties on polygamy such as the Davis case and Church of Latter Day Saints v. United
States.149 However, more than a century since Reynolds was decided, the Court has expanded the
scope of protection from belief to speech and conduct. But while the belief-action test has been
abandoned, the rulings in the earlier Free Exercise cases have gone unchallenged. The belief-action
distinction is still of some importance though as there remains an absolute prohibition of
governmental proscription of beliefs.150

The Free Exercise Clause accords absolute protection to individual religious convictions and
beliefs151 and proscribes government from questioning a person's beliefs or imposing penalties or
disabilities based solely on those beliefs. The Clause extends protection to both beliefs and unbelief.
Thus, in Torcaso v. Watkins,152 a unanimous Court struck down a state law requiring as a
qualification for public office an oath declaring belief in the existence of God. The protection also
allows courts to look into the good faith of a person in his belief, but prohibits inquiry into the truth of
a person's religious beliefs. As held in United States v. Ballard,153 "(h)eresy trials are foreign to the
Constitution. Men may believe what they cannot prove. They may not be put to the proof of their
religious doctrines or beliefs."

Next to belief which enjoys virtually absolute protection, religious speech and expressive religious
conduct are accorded the highest degree of protection. Thus, in the 1940 case of Cantwell v.
Connecticut,154 the Court struck down a state law prohibiting door-to-door solicitation for any
religious or charitable cause without prior approval of a state agency. The law was challenged by
Cantwell, a member of the Jehovah's Witnesses which is committed to active proselytizing. The
Court invalidated the state statute as the prior approval necessary was held to be a censorship of
religion prohibited by the Free Exercise Clause. The Court held, viz:

In the realm of religious faith, and in that of political belief, sharp differences arise. In both
fields the tenets of one may seem the rankest error to his neighbor. To persuade others to
his point of view, the pleader, as we know, resorts to exaggeration, to vilification of men who
have been, or are, prominent in church or state, and even to false statement. But the people
of this nation have ordained in the light of history, that, in spite of the probability of excesses
and abuses, these liberties are, in the long view, essential to enlightened opinion and right
conduct on the part of citizens of a democracy.155

Cantwell took a step forward from the protection afforded by the Reynolds case in that it not only
affirmed protection of belief but also freedom to act for the propagation of that belief, viz:

Thus the Amendment embraces two concepts - freedom to believe and freedom to act. The
first is absolute but, in the nature of things, the second cannot be. Conduct remains subject
to regulation for the protection of society. . . In every case, the power to regulate must be so
exercised as not, in attaining a permissible end, unduly to infringe the protected freedom.
(emphasis supplied)156

The Court stated, however, that government had the power to regulate the times, places, and
manner of solicitation on the streets and assure the peace and safety of the community.

Three years after Cantwell, the Court in Douglas v. City of Jeanette,157 ruled that police could not
prohibit members of the Jehovah's Witnesses from peaceably and orderly proselytizing on Sundays
merely because other citizens complained. In another case likewise involving the Jehovah's
Witnesses, Niemotko v. Maryland,158 the Court unanimously held unconstitutional a city council's
denial of a permit to the Jehovah's Witnesses to use the city park for a public meeting. The city
council's refusal was because of the "unsatisfactory" answers of the Jehovah's Witnesses to
questions about Catholicism, military service, and other issues. The denial of the public forum was
considered blatant censorship. While protected, religious speech in the public forum is still subject to
reasonable time, place and manner regulations similar to non-religious speech. Religious
proselytizing in congested areas, for example, may be limited to certain areas to maintain the safe
and orderly flow of pedestrians and vehicular traffic as held in the case of Heffron v. International
Society for Krishna Consciousness.159

The least protected under the Free Exercise Clause is religious conduct, usually in the form of
unconventional religious practices. Protection in this realm depends on the character of the action
and the government rationale for regulating the action.160 The Mormons' religious conduct of
polygamy is an example of unconventional religious practice. As discussed in the Reynolds case
above, the Court did not afford protection to the practice. Reynolds was reiterated in the 1890 case
of Davis again involving Mormons, where the Court held, viz: "(c)rime is not the less odious because
sanctioned by what any particular sect may designate as religion."161

The belief-action test in Reynolds and Davis proved unsatisfactory. Under this test, regulation of
religiously dictated conduct would be upheld no matter how central the conduct was to the exercise
of religion and no matter how insignificant was the government's non-religious regulatory interest so
long as the government is proscribing action and not belief. Thus, the Court abandoned the
simplistic belief-action distinction and instead recognized the deliberate-inadvertent distinction, i.e.,
the distinction between deliberate state interference of religious exercise for religious reasons which
was plainly unconstitutional and government's inadvertent interference with religion in pursuing some
secular objective.162 In the 1940 case of Minersville School District v. Gobitis,163 the Court upheld
a local school board requirement that all public school students participate in a daily flag salute
program, including the Jehovah's Witnesses who were forced to salute the American flag in violation
of their religious training, which considered flag salute to be worship of a "graven image." The Court
recognized that the general requirement of compulsory flag salute inadvertently burdened the
Jehovah Witnesses' practice of their religion, but justified the government regulation as an
appropriate means of attaining national unity, which was the "basis of national security." Thus,
although the Court was already aware of the deliberate-inadvertent distinction in government
interference with religion, it continued to hold that the Free Exercise Clause presented no problem to
interference with religion that was inadvertent no matter how serious the interference, no matter how
trivial the state's non-religious objectives, and no matter how many alternative approaches were
available to the state to pursue its objectives with less impact on religion, so long as government
was acting in pursuit of a secular objective.

Three years later, the Gobitis decision was overturned in West Virginia v. Barnette164 which
involved a similar set of facts and issue. The Court recognized that saluting the flag, in connection
with the pledges, was a form of utterance and the flag salute program was a compulsion of students
to declare a belief. The Court ruled that "compulsory unification of opinions leads only to the
unanimity of the graveyard" and exempt the students who were members of the Jehovah's
Witnesses from saluting the flag. A close scrutiny of the case, however, would show that it was
decided not on the issue of religious conduct as the Court said, "(n)or does the issue as we see it
turn on one's possession of particular religious views or the sincerity with which they are held. While
religion supplies appellees' motive for enduring the discomforts of making the issue in this case,
many citizens who do not share these religious views hold such a compulsory rite to infringe
constitutional liberty of the individual." (emphasis supplied)165 The Court pronounced, however, that,
"freedoms of speech and of press, of assembly, and of worship . . . are susceptible only of restriction
only to prevent grave and immediate danger to interests which the state may lawfully protect."166 The
Court seemed to recognize the extent to which its approach in Gobitis subordinated the religious
liberty of political minorities - a specially protected constitutional value - to the common everyday
economic and public welfare objectives of the majority in the legislature. This time, even inadvertent
interference with religion must pass judicial scrutiny under the Free Exercise Clause with only grave
and immediate danger sufficing to override religious liberty. But the seeds of this heightened scrutiny
would only grow to a full flower in the 1960s.167

Nearly a century after Reynolds employed the belief-action test, the Warren Court began the modern
free exercise jurisprudence.168 A two-part balancing test was established in Braunfeld v.
Brown169 where the Court considered the constitutionality of applying Sunday closing laws to
Orthodox Jews whose beliefs required them to observe another day as the Sabbath and abstain
from commercial activity on Saturday. Chief Justice Warren, writing for the Court, found that the law
placed a severe burden on Sabattarian retailers. He noted, however, that since the burden was the
indirect effect of a law with a secular purpose, it would violate the Free Exercise Clause only if there
were alternative ways of achieving the state's interest. He employed a two-part balancing test of
validity where the first step was for plaintiff to show that the regulation placed a real burden on his
religious exercise. Next, the burden would be upheld only if the state showed that it was pursuing an
overriding secular goal by the means which imposed the least burden on religious practices.170 The
Court found that the state had an overriding secular interest in setting aside a single day for rest,
recreation and tranquility and there was no alternative means of pursuing this interest but to require
Sunday as a uniform rest day.

Two years after came the stricter compelling state interest test in the 1963 case of Sherbert v.
Verner.171 This test was similar to the two-part balancing test in Braunfeld,172 but this latter test
stressed that the state interest was not merely any colorable state interest, but must be paramount
and compelling to override the free exercise claim. In this case, Sherbert, a Seventh Day Adventist,
claimed unemployment compensation under the law as her employment was terminated for refusal
to work on Saturdays on religious grounds. Her claim was denied. She sought recourse in the
Supreme Court. In laying down the standard for determining whether the denial of benefits could
withstand constitutional scrutiny, the Court ruled, viz:

Plainly enough, appellee's conscientious objection to Saturday work constitutes no conduct

prompted by religious principles of a kind within the reach of state legislation. If, therefore,
the decision of the South Carolina Supreme Court is to withstand appellant's constitutional
challenge, it must be either because her disqualification as a beneficiary represents no
infringement by the State of her constitutional rights of free exercise, or because any
incidental burden on the free exercise of appellant's religion may be justified by a 'compelling
state interest in the regulation of a subject within the State's constitutional power to regulate.
. .'NAACP v. Button, 371 US 415, 438 9 L ed 2d 405, 421, 83 S Ct 328.173 (emphasis
supplied)

The Court stressed that in the area of religious liberty, it is basic that it is not sufficient to merely
show a rational relationship of the substantial infringement to the religious right and a colorable state
interest. "(I)n this highly sensitive constitutional area, '[o]nly the gravest abuses, endangering
paramount interests, give occasion for permissible limitation.' Thomas v. Collins, 323 US 516, 530,
89 L ed 430, 440, 65 S Ct 315."174 The Court found that there was no such compelling state interest
to override Sherbert's religious liberty. It added that even if the state could show that Sherbert's
exemption would pose serious detrimental effects to the unemployment compensation fund and
scheduling of work, it was incumbent upon the state to show that no alternative means of regulations
would address such detrimental effects without infringing religious liberty. The state, however, did
not discharge this burden. The Court thus carved out for Sherbert an exemption from the Saturday
work requirement that caused her disqualification from claiming the unemployment benefits. The
Court reasoned that upholding the denial of Sherbert's benefits would force her to choose between
receiving benefits and following her religion. This choice placed "the same kind of burden upon the
free exercise of religion as would a fine imposed against (her) for her Saturday worship." This
germinal case of Sherbert firmly established the exemption doctrine,175 viz:

It is certain that not every conscience can be accommodated by all the laws of the land; but
when general laws conflict with scruples of conscience, exemptions ought to be granted
unless some 'compelling state interest' intervenes.

Thus, in a short period of twenty-three years from Gobitis to Sherbert (or even as early as
Braunfeld), the Court moved from the doctrine that inadvertent or incidental interferences with
religion raise no problem under the Free Exercise Clause to the doctrine that such interferences
violate the Free Exercise Clause in the absence of a compelling state interest - the highest level of
constitutional scrutiny short of a holding of a per se violation. Thus, the problem posed by the belief-
action test and the deliberate-inadvertent distinction was addressed.176

Throughout the 1970s and 1980s under the Warren, and afterwards, the Burger Court, the rationale
in Sherbert continued to be applied. In Thomas v. Review Board177 and Hobbie v. Unemployment
Appeals Division,178 for example, the Court reiterated the exemption doctrine and held that in the
absence of a compelling justification, a state could not withhold unemployment compensation from
an employee who resigned or was discharged due to unwillingness to depart from religious practices
and beliefs that conflicted with job requirements. But not every governmental refusal to allow an
exemption from a regulation which burdens a sincerely held religious belief has been invalidated,
even though strict or heightened scrutiny is applied. In United States v. Lee,179 for instance, the
Court using strict scrutiny and referring to Thomas, upheld the federal government's refusal to
exempt Amish employers who requested for exemption from paying social security taxes on wages
on the ground of religious beliefs. The Court held that "(b)ecause the broad public interest in
maintaining a sound tax system is of such a high order, religious belief in conflict with the payment of
taxes affords no basis for resisting the tax."180 It reasoned that unlike in Sherbert, an exemption
would significantly impair government's achievement of its objective - "the fiscal vitality of the social
security system;" mandatory participation is indispensable to attain this objective. The Court noted
that if an exemption were made, it would be hard to justify not allowing a similar exemption from
general federal taxes where the taxpayer argues that his religious beliefs require him to reduce or
eliminate his payments so that he will not contribute to the government's war-related activities, for
example.

The strict scrutiny and compelling state interest test significantly increased the degree of protection
afforded to religiously motivated conduct. While not affording absolute immunity to religious activity,
a compelling secular justification was necessary to uphold public policies that collided with religious
practices. Although the members of the Court often disagreed over which governmental interests
should be considered compelling, thereby producing dissenting and separate opinions in religious
conduct cases, this general test established a strong presumption in favor of the free exercise of
religion.181

Heightened scrutiny was also used in the 1972 case of Wisconsin v. Yoder182 where the Court
upheld the religious practice of the Old Order Amish faith over the state's compulsory high school
attendance law. The Amish parents in this case did not permit secular education of their children
beyond the eighth grade. Chief Justice Burger, writing for the majority, held, viz:

It follows that in order for Wisconsin to compel school attendance beyond the eighth grade
against a claim that such attendance interferes with the practice of a legitimate religious
belief, it must appear either that the State does not deny the free exercise of religious belief
by its requirement, or that there is a state interest of sufficient magnitude to override the
 interest claiming protection under the Free Exercise Clause. Long before there was general
acknowledgement of the need for universal education, the Religion Clauses had specially
and firmly fixed the right of free exercise of religious beliefs, and buttressing this fundamental
right was an equally firm, even if less explicit, prohibition against the establishment of any
religion. The values underlying these two provisions relating to religion have been zealously
protected, sometimes even at the expense of other interests of admittedly high social
importance. . .

The essence of all that has been said and written on the subject is that only those interests
of the highest order and those not otherwise served can overbalance legitimate claims to the
free exercise of religion. . .

. . . our decisions have rejected the idea that that religiously grounded conduct is always
outside the protection of the Free Exercise Clause. It is true that activities of individuals, even
when religiously based, are often subject to regulation by the States in the exercise of their
undoubted power to promote the health, safety, and general welfare, or the Federal
government in the exercise of its delegated powers . . . But to agree that religiously grounded
conduct must often be subject to the broad police power of the State is not to deny that there
are areas of conduct protected by the Free Exercise Clause of the First Amendment and
thus beyond the power of the State to control, even under regulations of general applicability.
. . .This case, therefore, does not become easier because respondents were convicted for
their "actions" in refusing to send their children to the public high school; in this context belief
and action cannot be neatly confined in logic-tight compartments. . .183

The onset of the 1990s, however, saw a major setback in the protection afforded by the Free
Exercise Clause. In Employment Division, Oregon Department of Human Resources v.
Smith,184 the sharply divided Rehnquist Court dramatically departed from the heightened scrutiny
and compelling justification approach and imposed serious limits on the scope of protection of
religious freedom afforded by the First Amendment. In this case, the well-established practice of the
Native American Church, a sect outside the Judeo-Christian mainstream of American religion, came
in conflict with the state's interest in prohibiting the use of illicit drugs. Oregon's controlled
substances statute made the possession of peyote a criminal offense. Two members of the church,
Smith and Black, worked as drug rehabilitation counselors for a private social service agency in
Oregon. Along with other church members, Smith and Black ingested peyote, a hallucinogenic drug,
at a sacramental ceremony practiced by Native Americans for hundreds of years. The social service
agency fired Smith and Black citing their use of peyote as "job-related misconduct". They applied for
unemployment compensation, but the Oregon Employment Appeals Board denied their application
as they were discharged for job-related misconduct. Justice Scalia, writing for the majority, ruled that
"if prohibiting the exercise of religion . . . is . . . merely the incidental effect of a generally applicable
and otherwise valid law, the First Amendment has not been offended." In other words, the Free
Exercise Clause would be offended only if a particular religious practice were singled out for
proscription. The majority opinion relied heavily on the Reynolds case and in effect, equated
Oregon's drug prohibition law with the anti-polygamy statute in Reynolds. The relevant portion of the
majority opinion held, viz:

We have never invalidated any governmental action on the basis of the Sherbert test except
the denial of unemployment compensation.

Even if we were inclined to breathe into Sherbert some life beyond the unemployment
compensation field, we would not apply it to require exemptions from a generally applicable
criminal law. . .
We conclude today that the sounder approach, and the approach in accord with the vast majority of
our precedents, is to hold the test inapplicable to such challenges. The government's ability to
enforce generally applicable prohibitions of socially harmful conduct, like its ability to carry out other
aspects of public policy, "cannot depend on measuring the effects of a governmental action on a
religious objector's spiritual development." . . .To make an individual's obligation to obey such a law
contingent upon the law's coincidence with his religious beliefs except where the State's interest is
"compelling" - permitting him, by virtue of his beliefs, "to become a law unto himself," . . . -
contradicts both constitutional tradition and common sense.

Justice O'Connor wrote a concurring opinion pointing out that the majority's rejection of the
compelling governmental interest test was the most controversial part of the decision. Although she
concurred in the result that the Free Exercise Clause had not been offended, she sharply criticized
the majority opinion as a dramatic departure "from well-settled First Amendment jurisprudence. . .
and . . . (as) incompatible with our Nation's fundamental commitment to religious liberty." This portion
of her concurring opinion was supported by Justices Brennan, Marshall and Blackmun who
dissented from the Court's decision. Justice O'Connor asserted that "(t)he compelling state interest
test effectuates the First Amendment's command that religious liberty is an independent liberty, that
it occupies a preferred position, and that the Court will not permit encroachments upon this liberty,
whether direct or indirect, unless required by clear and compelling government interest 'of the
highest order'." Justice Blackmun registered a separate dissenting opinion, joined by Justices
Brennan and Marshall. He charged the majority with "mischaracterizing" precedents and
"overturning. . . settled law concerning the Religion Clauses of our Constitution." He pointed out that
the Native American Church restricted and supervised the sacramental use of peyote. Thus, the
state had no significant health or safety justification for regulating the sacramental drug use. He also
observed that Oregon had not attempted to prosecute Smith or Black, or any Native Americans, for
that matter, for the sacramental use of peyote. In conclusion, he said that "Oregon's interest in
enforcing its drug laws against religious use of peyote (was) not sufficiently compelling to outweigh
respondents' right to the free exercise of their religion."

The Court went back to the Reynolds and Gobitis doctrine in Smith. The Court's standard in Smith
virtually eliminated the requirement that the government justify with a compelling state interest the
burdens on religious exercise imposed by laws neutral toward religion. The Smith doctrine is highly
unsatisfactory in several respects and has been criticized as exhibiting a shallow understanding of
free exercise jurisprudence.185 First, the First amendment was intended to protect minority religions
from the tyranny of the religious and political majority. A deliberate regulatory interference with
minority religious freedom is the worst form of this tyranny. But regulatory interference with a
minority religion as a result of ignorance or sensitivity of the religious and political majority is no less
an interference with the minority's religious freedom. If the regulation had instead restricted the
majority's religious practice, the majoritarian legislative process would in all probability have modified
or rejected the regulation. Thus, the imposition of the political majority's non-religious objectives at
the expense of the minority's religious interests implements the majority's religious viewpoint at the
expense of the minority's. Second, government impairment of religious liberty would most often be of
the inadvertent kind as in Smith considering the political culture where direct and deliberate
regulatory imposition of religious orthodoxy is nearly inconceivable. If the Free Exercise Clause
could not afford protection to inadvertent interference, it would be left almost meaningless. Third, the
Reynolds-Gobitis-Smith doctrine simply defies common sense. The state should not be allowed to
interfere with the most deeply held fundamental religious convictions of an individual in order to
pursue some trivial state economic or bureaucratic objective. This is especially true when there are
alternative approaches for the state to effectively pursue its objective without serious inadvertent
impact on religion.186

Thus, the Smith decision has been criticized not only for increasing the power of the state over
religion but as discriminating in favor of mainstream religious groups against smaller, more
peripheral groups who lack legislative clout,187 contrary to the original theory of the First
Amendment.188 Undeniably, claims for judicial exemption emanate almost invariably from relatively
politically powerless minority religions and Smith virtually wiped out their judicial recourse for
exemption.189 Thus, the Smith decision elicited much negative public reaction especially from the
religious community, and commentaries insisted that the Court was allowing the Free Exercise
Clause to disappear.190 So much was the uproar that a majority in Congress was convinced to enact
the Religious Freedom Restoration Act (RFRA) of 1993. The RFRA prohibited government at all
levels from substantially burdening a person's free exercise of religion, even if such burden resulted
from a generally applicable rule, unless the government could demonstrate a compelling state
interest and the rule constituted the least restrictive means of furthering that interest.191 RFRA, in
effect, sought to overturn the substance of the Smith ruling and restore the status quo prior to Smith.
Three years after the RFRA was enacted, however, the Court, dividing 6 to 3, declared the RFRA
unconstitutional in City of Boerne v. Flores.192 The Court ruled that "RFRA contradicts vital
principles necessary to maintain separation of powers and the federal balance." It emphasized the
primacy of its role as interpreter of the Constitution and unequivocally rejected, on broad institutional
grounds, a direct congressional challenge of final judicial authority on a question of constitutional
interpretation.

After Smith came Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah193 which was ruled
consistent with the Smith doctrine. This case involved animal sacrifice of the Santeria, a blend of
Roman Catholicism and West African religions brought to the Carribean by East African slaves. An
ordinance made it a crime to "unnecessarily kill, torment, torture, or mutilate an animal in public or
private ritual or ceremony not for the primary purpose of food consumption." The ordinance came as
a response to the local concern over the sacrificial practices of the Santeria. Justice Kennedy,
writing for the majority, carefully pointed out that the questioned ordinance was not a generally
applicable criminal prohibition, but instead singled out practitioners of the Santeria in that it forbade
animal slaughter only insofar as it took place within the context of religious rituals.

It may be seen from the foregoing cases that under the Free Exercise Clause, religious belief is
absolutely protected, religious speech and proselytizing are highly protected but subject to restraints
applicable to non-religious speech, and unconventional religious practice receives less protection;
nevertheless conduct, even if its violates a law, could be accorded protection as shown in
Wisconsin.194

B. Establishment Clause

The Court's first encounter with the Establishment Clause was in the 1947 case of Everson v.
Board of Education.195 Prior cases had made passing reference to the Establishment Clause196 and
raised establishment questions but were decided on other grounds.197 It was in the Everson case
that the U.S. Supreme Court adopted Jefferson's metaphor of "a wall of separation between church
and state" as encapsulating the meaning of the Establishment Clause. The often and loosely used
phrase "separation of church and state" does not appear in the U.S. Constitution. It became part of
U.S. jurisprudence when the Court in the 1878 case of Reynolds v. United States198 quoted
Jefferson's famous letter of 1802 to the Danbury Baptist Association in narrating the history of the
religion clauses, viz:

Believing with you that religion is a matter which lies solely between man and his God; that
he owes account to none other for his faith or his worship; that the legislative powers of the
Government reach actions only, and not opinions, I contemplate with sovereign reverence
that act of the whole American people which declared that their Legislature should 'make no
law respecting an establishment of religion or prohibiting the free exercise thereof,' thus
building a wall of separation between Church and State.199 (emphasis supplied)
Chief Justice Waite, speaking for the majority, then added, "(c)oming as this does from an
acknowledged leader of the advocates of the measure, it may be accepted almost as an
authoritative declaration of the scope and effect of the amendment thus secured."200

The interpretation of the Establishment Clause has in large part been in cases involving education,
notably state aid to private religious schools and prayer in public schools.201 In Everson v. Board of
Education, for example, the issue was whether a New Jersey local school board could reimburse
parents for expenses incurred in transporting their children to and from Catholic schools. The
reimbursement was part of a general program under which all parents of children in public schools
and nonprofit private schools, regardless of religion, were entitled to reimbursement for
transportation costs. Justice Hugo Black, writing for a sharply divided Court, justified the
reimbursements on the child benefit theory, i.e., that the school board was merely furthering the
state's legitimate interest in getting children "regardless of their religion, safely and expeditiously to
and from accredited schools." The Court, after narrating the history of the First Amendment in
Virginia, interpreted the Establishment Clause, viz:

The 'establishment of religion' clause of the First Amendment means at least this: Neither a
state nor the Federal Government can set up a church. Neither can pass laws which aid one
religion, aid all religions, or prefer one religion over another. Neither can force nor influence a
person to go to or remain away from church against his will or force him to profess a belief or
disbelief in any religion. No person can be punished for entertaining or professing religious
beliefs or disbeliefs, for church attendance or non-attendance. No tax in any amount, large or
small, can be levied to support any religious activities or institutions, whatever they may be
called, or whatever form they may adopt to teach or practice religion. Neither a state nor the
Federal Government can, openly or secretly participate in the affairs of any religious
organizations or groups and vice versa. In the words of Jefferson, the clause against
establishment of religion by law was intended to erect "a wall of separation between Church
and State."202

The Court then ended the opinion, viz:

The First Amendment has erected a wall between church and state. That wall must be kept
high and impregnable. We could not approve the slightest breach. New Jersey has not
breached it here.203

By 1971, the Court integrated the different elements of the Court's Establishment Clause
jurisprudence that evolved in the 1950s and 1960s and laid down a three-pronged test in Lemon v.
Kurtzman204 in determining the constitutionality of policies challenged under the Establishment
Clause. This case involved a Pennsylvania statutory program providing publicly funded
reimbursement for the cost of teachers' salaries, textbooks, and instructional materials in secular
subjects and a Rhode Island statute providing salary supplements to teachers in parochial schools.
The Lemon test requires a challenged policy to meet the following criteria to pass scrutiny under the
Establishment Clause. "First, the statute must have a secular legislative purpose; second, its primary
or principal effect must be one that neither advances nor inhibits religion (Board of Education v.
Allen, 392 US 236, 243, 20 L Ed 2d 1060, 1065, 88 S Ct 1923 [1968]); finally, the statute must not
foster 'an excessive entanglement with religion.' (Walz v.Tax Commission, 397 US 664, 668, 25 L Ed
2d 697, 701, 90 S Ct 1409 [1970])" (emphasis supplied)205Using this test, the Court held that the
Pennsylvania statutory program and Rhode Island statute were unconstitutional as fostering
excessive entanglement between government and religion.

The most controversial of the education cases involving the Establishment Clause are the school
prayer decisions. "Few decisions of the modern Supreme Court have been criticized more intensely
than the school prayer decisions of the early 1960s."206 In the 1962 case of Engel v. Vitale,207 the
Court invalidated a New York Board of Regents policy that established the voluntary recitation of a
brief generic prayer by children in the public schools at the start of each school day. The majority
opinion written by Justice Black stated that "in this country it is no part of the business of government
to compose official prayers for any group of the American people to recite as part of a religious
program carried on by government." In fact, history shows that this very practice of establishing
governmentally composed prayers for religious services was one of the reasons that caused many
of the early colonists to leave England and seek religious freedom in America. The Court called to
mind that the first and most immediate purpose of the Establishment Clause rested on the belief that
a union of government and religion tends to destroy government and to degrade religion. The
following year, the Engel decision was reinforced in Abington School District v.
Schempp208 and Murray v. Curlett209 where the Court struck down the practice of Bible reading and
the recitation of the Lord's prayer in the Pennsylvania and Maryland schools. The Court held that to
withstand the strictures of the Establishment Clause, a statute must have a secular legislative
purpose and a primary effect that neither advances nor inhibits religion. It reiterated, viz:

The wholesome 'neutrality' of which this Court's cases speak thus stems from a recognition
of the teachings of history that powerful sects or groups might bring about a fusion of
governmental and religious functions or a concert or dependency of one upon the other to
the end that official support of the State of Federal Government would be placed behind the
tenets of one or of all orthodoxies. This the Establishment Clause prohibits. And a further
reason for neutrality is found in the Free Exercise Clause, which recognizes the value of
religious training, teaching and observance and, more particularly, the right of every person
to freely choose his own course with reference thereto, free of any compulsion from the
state.210

The school prayer decisions drew furious reactions. Religious leaders and conservative members of
Congress and resolutions passed by several state legislatures condemned these decisions.211 On
several occasions, constitutional amendments have been introduced in Congress to overturn the
school prayer decisions. Still, the Court has maintained its position and has in fact reinforced it in the
1985 case of Wallace v. Jaffree212 where the Court struck down an Alabama law that required public
school students to observe a moment of silence "for the purpose of meditation or voluntary prayer" at
the start of each school day.

Religious instruction in public schools has also pressed the Court to interpret the Establishment
Clause. Optional religious instruction within public school premises and instructional time were
declared offensive of the Establishment Clause in the 1948 case of McCollum v. Board of
Education,213 decided just a year after the seminal Everson case. In this case, interested members
of the Jewish, Roman Catholic and a few Protestant faiths obtained permission from the Board of
Education to offer classes in religious instruction to public school students in grades four to nine.
Religion classes were attended by pupils whose parents signed printed cards requesting that their
children be permitted to attend. The classes were taught in three separate groups by Protestant
teachers, Catholic priests and a Jewish rabbi and were held weekly from thirty to forty minutes
during regular class hours in the regular classrooms of the school building. The religious teachers
were employed at no expense to the school authorities but they were subject to the approval and
supervision of the superintendent of schools. Students who did not choose to take religious
instruction were required to leave their classrooms and go to some other place in the school building
for their secular studies while those who were released from their secular study for religious
instruction were required to attend the religious classes. The Court held that the use of tax-
supported property for religious instruction and the close cooperation between the school authorities
and the religious council in promoting religious education amounted to a prohibited use of tax-
established and tax-supported public school system to aid religious groups spread their faith. The
Court rejected the claim that the Establishment Clause only prohibited government preference of
one religion over another and not an impartial governmental assistance of all religions. In Zorach v.
Clauson,214 however, the Court upheld released time programs allowing students in public schools
to leave campus upon parental permission to attend religious services while other students attended
study hall. Justice Douglas, the writer of the opinion, stressed that "(t)he First Amendment does not
require that in every and all respects there shall be a separation of Church and State." The Court
distinguished Zorach from McCollum, viz:

In the McCollum case the classrooms were used for religious instruction and the force of the
public school was used to promote that instruction. . . We follow the McCollum case. But we
cannot expand it to cover the present released time program unless separation of Church
and State means that public institutions can make no adjustments of their schedules to
accommodate the religious needs of the people. We cannot read into the Bill of Rights such
a philosophy of hostility to religion.215

In the area of government displays or affirmations of belief, the Court has given leeway to religious
beliefs and practices which have acquired a secular meaning and have become deeply entrenched
in history. For instance, in McGowan v. Maryland,216 the Court upheld laws that prohibited certain
businesses from operating on Sunday despite the obvious religious underpinnings of the restrictions.
Citing the secular purpose of the Sunday closing laws and treating as incidental the fact that this day
of rest happened to be the day of worship for most Christians, the Court held, viz:

It is common knowledge that the first day of the week has come to have special significance
as a rest day in this country. People of all religions and people with no religion regard
Sunday as a time for family activity, for visiting friends and relatives, for later sleeping, for
passive and active entertainments, for dining out, and the like.217

In the 1983 case of Marsh v. Chambers,218 the Court refused to invalidate Nebraska's policy of
beginning legislative sessions with prayers offered by a Protestant chaplain retained at the
taxpayers' expense. The majority opinion did not rely on the Lemon test and instead drew heavily
from history and the need for accommodation of popular religious beliefs, viz:

In light of the unambiguous and unbroken history of more than 200 years, there can be no
doubt that the practice of opening legislative sessions with prayer has become the fabric of
our society. To invoke Divine guidance on a public body entrusted with making the laws is
not, in these circumstances, an "establishment" of religion or a step toward establishment; it
is simply a tolerable acknowledgement of beliefs widely held among the people of this
country. As Justice Douglas observed, "(w)e are a religious people whose institutions
presuppose a Supreme Being." (Zorach c. Clauson, 343 US 306, 313 [1952])219 (emphasis
supplied)

Some view the Marsh ruling as a mere aberration as the Court would "inevitably be embarrassed if it
were to attempt to strike down a practice that occurs in nearly every legislature in the United States,
including the U.S. Congress."220 That Marsh was not an aberration is suggested by subsequent
cases. In the 1984 case of Lynch v. Donnelly,221 the Court upheld a city-sponsored nativity scene in
Rhode Island. By a 5-4 decision, the majority opinion hardly employed the Lemon test and again
relied on history and the fact that the creche had become a "neutral harbinger of the holiday season"
for many, rather than a symbol of Christianity.

The Establishment Clause has also been interpreted in the area of tax exemption. By tradition,
church and charitable institutions have been exempt from local property taxes and their income
exempt from federal and state income taxes. In the 1970 case of Walz v. Tax Commission,222 the
New York City Tax Commission's grant of property tax exemptions to churches as allowed by state
law was challenged by Walz on the theory that this required him to subsidize those churches
indirectly. The Court upheld the law stressing its neutrality, viz:

It has not singled out one particular church or religious group or even churches as such;
rather, it has granted exemptions to all houses of religious worship within a broad class of
property owned by non-profit, quasi-public corporations . . . The State has an affirmative
policy that considers these groups as beneficial and stabilizing influences in community life
and finds this classification useful, desirable, and in the public interest.223

The Court added that the exemption was not establishing religion but "sparing the exercise of
religion from the burden of property taxation levied on private profit institutions"224 and preventing
excessive entanglement between state and religion. At the same time, the Court acknowledged the
long-standing practice of religious tax exemption and the Court's traditional deference to legislative
bodies with respect to the taxing power, viz:

(f)ew concepts are more deeply embedded in the fabric of our national life, beginning with
pre-Revolutionary colonial times, than for the government to exercise . . . this kind of
benevolent neutrality toward churches and religious exercise generally so long as none was
favored over others and none suffered interference.225(emphasis supplied)

C. Strict Neutrality v. Benevolent Neutrality

To be sure, the cases discussed above, while citing many landmark decisions in the religious
clauses area, are but a small fraction of the hundreds of religion clauses cases that the U.S.
Supreme Court has passed upon. Court rulings contrary to or making nuances of the above cases
may be cited. Professor McConnell poignantly recognizes this, viz:

Thus, as of today, it is constitutional for a state to hire a Presbyterian minister to lead the
legislature in daily prayers (Marsh v. Chambers, 463 US783, 792-93[1983]), but
unconstitutional for a state to set aside a moment of silence in the schools for children to
pray if they want to (Wallace v. Jaffree, 472 US 38, 56 [1985]). It is unconstitutional for a
state to require employers to accommodate their employees' work schedules to their sabbath
observances (Estate of Thornton v. Caldor, Inc., 472 US 703, 709-10 [1985]) but
constitutionally mandatory for a state to require employers to pay workers compensation
when the resulting inconsistency between work and sabbath leads to discharge (. . .Sherbert
v. Verner, 374 US 398, 403-4 [1963]). It is constitutional for the government to give money to
religiously-affiliated organizations to teach adolescents about proper sexual behavior (Bowen
v. Kendrick, 487 US 589, 611 [1988]), but not to teach them science or history (Lemon v.
Kurtzman, 403 US 602, 618-619 [1971]). It is constitutional for the government to provide
religious school pupils with books (Board of Education v. Allen, 392 US 236, 238 [1968]), but
not with maps (Wolman v. Walter, 433 US 229, 249-51 [1977]); with bus rides to religious
schools (Everson v. Board of Education, 330 US 1, 17 [1947]), but not from school to a
museum on a field trip (Wolman v. Walter, 433 US 229, 252-55 [1977]); with cash to pay for
state-mandated standardized tests (Committee for Pub. Educ. and Religious Liberty v.
Regan, 444 US 646, 653-54 [1980]), but not to pay for safety-related maintenance
(Committee for Pub. Educ v. Nyquist, 413 US 756, 774-80 [1973]). It is a mess.226

But the purpose of the overview is not to review the entirety of the U.S. religion clause jurisprudence
nor to extract the prevailing case law regarding particular religious beliefs or conduct colliding with
particular government regulations. Rather, the cases discussed above suffice to show that, as legal
scholars observe, this area of jurisprudence has demonstrated two main standards used by the
Court in deciding religion clause cases: separation (in the form of strict separation or the tamer
version of strict neutrality or separation) and benevolent neutrality or accommodation. The weight of
current authority, judicial and in terms of sheer volume, appears to lie with the separationists, strict
or tame.227 But the accommodationists have also attracted a number of influential scholars and
jurists.228 The two standards producing two streams of jurisprudence branch out respectively from
the history of the First Amendment in England and the American colonies and climaxing in Virginia
as narrated in this opinion and officially acknowledged by the Court in Everson, and from American
societal life which reveres religion and practices age-old religious traditions. Stated otherwise,
separation - strict or tame - protects the principle of church-state separation with a rigid reading of
the principle while benevolent neutrality protects religious realities, tradition and established practice
with a flexible reading of the principle.229 The latter also appeals to history in support of its
position, viz:

The opposing school of thought argues that the First Congress intended to allow government
support of religion, at least as long as that support did not discriminate in favor of one
particular religion. . . the Supreme Court has overlooked many important pieces of history.
Madison, for example, was on the congressional committee that appointed a chaplain, he
declared several national days of prayer and fasting during his presidency, and he
sponsored Jefferson's bill for punishing Sabbath breakers; moreover, while president,
Jefferson allowed federal support of religious missions to the Indians. . . And so, concludes
one recent book, 'there is no support in the Congressional records that either the First
Congress, which framed the First Amendment, or its principal author and sponsor, James
Madison, intended that Amendment to create a state of complete independence between
religion and government. In fact, the evidence in the public documents goes the other
way.230 (emphasis supplied)

To succinctly and poignantly illustrate the historical basis of benevolent neutrality that gives room for
accommodation, less than twenty-four hours after Congress adopted the First Amendment's
prohibition on laws respecting an establishment of religion, Congress decided to express its thanks
to God Almighty for the many blessings enjoyed by the nation with a resolution in favor of a
presidential proclamation declaring a national day of Thanksgiving and Prayer. Only two members of
Congress opposed the resolution, one on the ground that the move was a "mimicking of European
customs, where they made a mere mockery of thanksgivings", the other on establishment clause
concerns. Nevertheless, the salutary effect of thanksgivings throughout Western history was
acknowledged and the motion was passed without further recorded discussion.231 Thus,
accommodationists also go back to the framers to ascertain the meaning of the First Amendment,
but prefer to focus on acts rather than words. Contrary to the claim of separationists that rationalism
pervaded America in the late 19th century and that America was less specifically Christian during
those years than at any other time before or since,232accommodationaists claim that American
citizens at the time of the Constitution's origins were a remarkably religious people in particularly
Christian terms.233

The two streams of jurisprudence - separationist or accommodationist - are anchored on a different

reading of the "wall of separation." The strict separtionist view holds that Jefferson meant the "wall of
separation" to protect the state from the church. Jefferson was a man of the Enlightenment Era of
the eighteenth century, characterized by the rationalism and anticlericalism of that philosophic
bent.234 He has often been regarded as espousing Deism or the rationalistic belief in a natural
religion and natural law divorced from its medieval connection with divine law, and instead adhering
to a secular belief in a universal harmony.235 Thus, according to this Jeffersonian view, the
Establishment Clause being meant to protect the state from the church, the state's hostility towards
religion allows no interaction between the two.236 In fact, when Jefferson became President, he
refused to proclaim fast or thanksgiving days on the ground that these are religious exercises and
the Constitution prohibited the government from intermeddling with religion.237 This approach erects
an absolute barrier to formal interdependence of religion and state. Religious institutions could not
receive aid, whether direct or indirect, from the state. Nor could the state adjust its secular programs
to alleviate burdens the programs placed on believers.238 Only the complete separation of religion
from politics would eliminate the formal influence of religious institutions and provide for a free
choice among political views thus a strict "wall of separation" is necessary.239 Strict separation faces
difficulties, however, as it is deeply embedded in history and contemporary practice that enormous
amounts of aid, both direct and indirect, flow to religion from government in return for huge amounts
of mostly indirect aid from religion. Thus, strict separationists are caught in an awkward position of
claiming a constitutional principle that has never existed and is never likely to.240

A tamer version of the strict separationist view, the strict neutrality or separationist view is largely
used by the Court, showing the Court's tendency to press relentlessly towards a more secular
society.241 It finds basis in the Everson case where the Court declared that Jefferson's "wall of
separation" encapsulated the meaning of the First Amendment but at the same time held that the
First Amendment "requires the state to be neutral in its relations with groups of religious believers
and non-believers; it does not require the state to be their adversary. State power is no more to be
used so as to handicap religions than it is to favor them." (emphasis supplied)242 While the strict
neutrality approach is not hostile to religion, it is strict in holding that religion may not be used as a
basis for classification for purposes of governmental action, whether the action confers rights or
privileges or imposes duties or obligations. Only secular criteria may be the basis of government
action. It does not permit, much less require, accommodation of secular programs to religious
belief.243 Professor Kurland wrote, viz:

The thesis proposed here as the proper construction of the religion clauses of the first
amendment is that the freedom and separation clauses should be read as a single precept
that government cannot utilize religion as a standard for action or inaction because these
clauses prohibit classification in terms of religion either to confer a benefit or to impose a
burden.244

The Court has repeatedly declared that religious freedom means government neutrality in religious
matters and the Court has also repeatedly interpreted this policy of neutrality to prohibit government
from acting except for secular purposes and in ways that have primarily secular effects.245

Prayer in public schools is an area where the Court has applied strict neutrality and refused to allow
any form of prayer, spoken or silent, in the public schools as in Engel and Schempp.246 The
McCollum case prohibiting optional religious instruction within public school premises during regular
class hours also demonstrates strict neutrality. In these education cases, the Court refused to uphold
the government action as they were based not on a secular but on a religious purpose. Strict
neutrality was also used in Reynolds and Smith which both held that if government acts in pursuit of
a generally applicable law with a secular purpose that merely incidentally burdens religious exercise,
the First Amendment has not been offended. However, if the strict neutrality standard is applied in
interpreting the Establishment Clause, it could de facto void religious expression in the Free
Exercise Clause. As pointed out by Justice Goldberg in his concurring opinion in Schempp, strict
neutrality could lead to "a brooding and pervasive devotion to the secular and a passive, or even
active, hostility to the religious" which is prohibited by the Constitution.247 Professor Laurence Tribe
commented in his authoritative treatise, viz:

To most observers. . . strict neutrality has seemed incompatible with the very idea of a free
exercise clause. The Framers, whatever specific applications they may have intended,
clearly envisioned religion as something special; they enacted that vision into law by
guaranteeing the free exercise of religion but not, say, of philosophy or science. The strict
neutrality approach all but erases this distinction. Thus it is not surprising that the Supreme
 Court has rejected strict neutrality, permitting and sometimes mandating religious
classifications.248

The separationist approach, whether strict or tame, is caught in a dilemma because while the
Jeffersonian wall of separation "captures the spirit of the American ideal of church-state separation",
in real life church and state are not and cannot be totally separate.249 This is all the more true in
contemporary times when both the government and religion are growing and expanding their
spheres of involvement and activity, resulting in the intersection of government and religion at many
points.250

Consequently, the Court has also decided cases employing benevolent neutrality. Benevolent
neutrality which gives room for accommodation is buttressed by a different view of the "wall of
separation" associated with Williams, founder of the Rhode Island colony. In Mark DeWolfe Howe's
classic, The Garden and the Wilderness, he asserts that to the extent the Founders had a wall of
separation in mind, it was unlike the Jeffersonian wall that is meant to protect the state from the
church; instead, the wall is meant to protect the church from the state,251 i.e., the "garden" of the
church must be walled in for its own protection from the "wilderness" of the world252 with its potential
for corrupting those values so necessary to religious commitment.253 Howe called this the
"theological" or "evangelical" rationale for church-state separation while the wall espoused by
"enlightened" statesmen such as Jefferson and Madison, was a "political" rationale seeking to
protect politics from intrusions by the church.254 But it has been asserted that this contrast between
the Williams and Jeffersonian positions is more accurately described as a difference in kinds or
styles of religious thinking, not as a conflict between "religious" and "secular (political)"; the religious
style was biblical and evangelical in character while the secular style was grounded in natural
religion, more generic and philosophical in its religious orientation.255

The Williams wall is, however, breached for the church is in the state and so the remaining purpose
of the wall is to safeguard religious liberty. Williams' view would therefore allow for interaction
between church and state, but is strict with regard to state action which would threaten the integrity
of religious commitment.256 His conception of separation is not total such that it provides basis for
certain interactions between church and state dictated by apparent necessity or practicality.257 This
"theological" view of separation is found in Williams' writings, viz:

. . . when they have opened a gap in the hedge or wall of separation between the garden of
the church and the wilderness of the world, God hath ever broke down the wall itself,
removed the candlestick, and made his garden a wilderness, as this day. And that therefore
if He will eer please to restore His garden and paradise again, it must of necessity be walled
in peculiarly unto Himself from the world. . .258

Chief Justice Burger spoke of benevolent neutrality in Walz, viz:

The general principle deducible from the First Amendment and all that has been said by the
Court is this: that we will not tolerate either governmentally established religion or
governmental interference with religion. Short of those expressly proscribed governmental
acts there is room for play in the joints productive of a benevolent neutrality which will permit
religious exercise to exist without sponsorship and without interference.259(emphasis
supplied)

The Zorach case expressed the doctrine of accommodation,260 viz:

The First Amendment, however, does not say that in every and all respects there shall be a
separation of Church and State. Rather, it studiously defines the manner, the specific ways,
 in which there shall be no concert or union or dependency one or the other. That is the
common sense of the matter. Otherwise, the state and religion would be aliens to each other
- hostile, suspicious, and even unfriendly. Churches could not be required to pay even
property taxes. Municipalities would not be permitted to render police or fire protection to
religious groups. Policemen who helped parishioners into their places of worship would
violate the Constitution. Prayers in our legislative halls; the appeals to the Almighty in the
messages of the Chief Executive; the proclamations making Thanksgiving Day a holiday; "so
help me God" in our courtroom oaths- these and all other references to the Almighty that run
through our laws, our public rituals, our ceremonies would be flouting the First Amendment.
A fastidious atheist or agnostic could even object to the supplication with which the Court
opens each session: 'God save the United States and this Honorable Court.

xxx xxx xxx

We are a religious people whose institutions presuppose a Supreme Being. We guarantee

the freedom to worship as one chooses. . . When the state encourages religious instruction
or cooperates with religious authorities by adjusting the schedule of public events, it follows
the best of our traditions. For it then respects the religious nature of our people and
accommodates the public service to their spiritual needs. To hold that it may not would be to
find in the Constitution a requirement that the government show a callous indifference to
religious groups. . . But we find no constitutional requirement which makes it necessary for
government to be hostile to religion and to throw its weight against efforts to widen their
effective scope of religious influence.261(emphases supplied)

Benevolent neutrality is congruent with the sociological proposition that religion serves a function
essential to the survival of society itself, thus there is no human society without one or more ways of
performing the essential function of religion. Although for some individuals there may be no felt need
for religion and thus it is optional or even dispensable, for society it is not, which is why there is no
human society without one or more ways of performing the essential function of religion. Even in
ostensibly atheistic societies, there are vigorous underground religion(s) and surrogate religion(s) in
their ideology.262 As one sociologist wrote:

It is widely held by students of society that there are certain functional prerequisites without
which society would not continue to exist. At first glance, this seems to be obvious - scarcely
more than to say that an automobile could not exist, as a going system, without a carburetor.
. . Most writers list religion among the functional prerequisites.263

Another noted sociologist, Talcott Parsons, wrote: "There is no known human society without
something which modern social scientists would classify as a religion…Religion is as much a human
universal as language."264

Benevolent neutrality thus recognizes that religion plays an important role in the public life of the
United States as shown by many traditional government practices which, to strict neutrality, pose
Establishment Clause questions. Among these are the inscription of "In God We Trust" on American
currency, the recognition of America as "one nation under God" in the official pledge of allegiance to
the flag, the Supreme Court's time-honored practice of opening oral argument with the invocation
"God save the United States and this honorable Court," and the practice of Congress and every
state legislature of paying a chaplain, usually of a particular Protestant denomination to lead
representatives in prayer.265 These practices clearly show the preference for one theological
viewpoint -the existence of and potential for intervention by a god - over the contrary theological
viewpoint of atheism. Church and government agencies also cooperate in the building of low-cost
housing and in other forms of poor relief, in the treatment of alcoholism and drug addiction, in foreign
aid and other government activities with strong moral dimension.266 The persistence of these de facto
establishments are in large part explained by the fact that throughout history, the evangelical theory
of separation, i.e., Williams' wall, has demanded respect for these de facto establishments.267 But the
separationists have a different explanation. To characterize these as de jure establishments
according to the principle of the Jeffersonian wall, the U.S. Supreme Court, the many dissenting and
concurring opinions explain some of these practices as "'de minimis' instances of government
endorsement or as historic governmental practices that have largely lost their religious significance
or at least have proven not to lead the government into further involvement with religion.268

With religion looked upon with benevolence and not hostility, benevolent neutrality allows
accommodation of religion under certain circumstances. Accommodations are government policies
that take religion specifically into account not to promote the government's favored form of religion,
but to allow individuals and groups to exercise their religion without hindrance. Their purpose or
effect therefore is to remove a burden on, or facilitate the exercise of, a person's or institution's
religion. As Justice Brennan explained, the "government [may] take religion into account…to exempt,
when possible, from generally applicable governmental regulation individuals whose religious beliefs
and practices would otherwise thereby be infringed, or to create without state involvement an
atmosphere in which voluntary religious exercise may flourish."269 (emphasis supplied)
Accommodation is forbearance and not alliance. it does not reflect agreement with the minority, but
respect for the conflict between the temporal and spiritual authority in which the minority finds
itself.270

Accommodation is distinguished from strict neutrality in that the latter holds that government should
base public policy solely on secular considerations, without regard to the religious consequences of
its actions. The debate between accommodation and strict neutrality is at base a question of means:
"Is the freedom of religion best achieved when the government is conscious of the effects of its
action on the various religious practices of its people, and seeks to minimize interferences with those
practices? Or is it best advanced through a policy of 'religious blindness' - keeping government aloof
from religious practices and issues?" An accommodationist holds that it is good public policy, and
sometimes constitutionally required, for the state to make conscious and deliberate efforts to avoid
interference with religious freedom. On the other hand, the strict neutrality adherent believes that it is
good public policy, and also constitutionally required, for the government to avoid religion-specific
policy even at the cost of inhibiting religious exercise.271

There are strong and compelling reasons, however, to take the accommodationist position rather
than the strict neutrality position. First, the accommodationist interpretation is most consistent with
the language of the First Amendment. The religion clauses contain two parallel provisions, both
specifically directed at "religion." The government may not "establish" religion and neither may
government "prohibit" it. Taken together, the religion clauses can be read most plausibly as warding
off two equal and opposite threats to religious freedom - government action that promotes the
(political) majority's favored brand of religion and government action that impedes religious practices
not favored by the majority. The substantive end in view is the preservation of the autonomy of
religious life and not just the formal process value of ensuring that government does not act on the
basis of religious bias. On the other hand, strict neutrality interprets the religion clauses as allowing
government to do whatever it desires to or for religion, as long as it does the same to or for
comparable secular entities. Thus, for example, if government prohibits all alcoholic consumption by
minors, it can prohibit minors from taking part in communion. Paradoxically, this view would make
the religion clauses violate the religion clauses, so to speak, since the religion clauses single out
religion by name for special protection. Second, the accommodationist position best achieves the
purposes of the First Amendment. The principle underlying the First Amendment is that freedom to
carry out one's duties to a Supreme Being is an inalienable right, not one dependent on the grace of
legislature. Although inalienable, it is necessarily limited by the rights of others, including the public
right of peace and good order. Nevertheless it is a substantive right and not merely a privilege
against discriminatory legislation. The accomplishment of the purpose of the First Amendment
requires more than the "religion blindness" of strict neutrality. With the pervasiveness of government
regulation, conflicts with religious practices become frequent and intense. Laws that are suitable for
secular entities are sometimes inappropriate for religious entities, thus the government must make
special provisions to preserve a degree of independence for religious entities for them to carry out
their religious missions according to their religious beliefs. Otherwise, religion will become just like
other secular entities subject to pervasive regulation by majoritarian institutions. Third, the
accommodationist interpretation is particularly necessary to protect adherents of minority religions
from the inevitable effects of majoritarianism, which include ignorance and indifference and overt
hostility to the minority. In a democratic republic, laws are inevitably based on the presuppositions of
the majority, thus not infrequently, they come into conflict with the religious scruples of those holding
different world views, even in the absence of a deliberate intent to interfere with religious practice. At
times, this effect is unavoidable as a practical matter because some laws are so necessary to the
common good that exceptions are intolerable. But in other instances, the injury to religious
conscience is so great and the advancement of public purposes so small or incomparable that only
indifference or hostility could explain a refusal to make exemptions. Because of plural traditions,
legislators and executive officials are frequently willing to make such exemptions when the need is
brought to their attention, but this may not always be the case when the religious practice is either
unknown at the time of enactment or is for some reason unpopular. In these cases, a constitutional
interpretation that allows accommodations prevents needless injury to the religious consciences of
those who can have an influence in the legislature; while a constitutional interpretation that requires
accommodations extends this treatment to religious faiths that are less able to protect themselves in
the political arena. Fourth, the accommodationist position is practical as it is a commonsensical way
to deal with the various needs and beliefs of different faiths in a pluralistic nation. Without
accommodation, many otherwise beneficial laws would interfere severely with religious freedom.
Aside from laws against serving alcoholic beverages to minors conflicting with celebration of
communion, regulations requiring hard hats in construction areas can effectively exclude Amish and
Sikhs from the workplace, or employment anti-discrimination laws can conflict with the Roman
Catholic male priesthood, among others. Exemptions from such laws are easy to craft and
administer and contribute much to promoting religious freedom at little cost to public policy. Without
exemptions, legislature would be frequently forced to choose between violating religious conscience
of a segment of the population or dispensing with legislation it considers beneficial to society as a
whole. Exemption seems manifestly more reasonable than either of the alternative: no exemption or
no law.272

Benevolent neutrality gives room for different kinds of accommodation: those which are
constitutionally compelled, i.e., required by the Free Exercise Clause; and those which are
discretionary or legislative, i.e., and those not required by the Free Exercise Clause but nonetheless
permitted by the Establishment Clause.273 Some Justices of the Supreme Court have also used the
term accommodation to describe government actions that acknowledge or express prevailing
religious sentiments of the community such as display of a religious symbol on public property or the
delivery of a prayer at public ceremonial events.274 Stated otherwise, using benevolent neutrality as a
standard could result to three situations of accommodation: those where accommodation is required,
those where it is permissible, and those where it is prohibited. In the first situation, accommodation is
required to preserve free exercise protections and not unconstitutionally infringe on religious liberty
or create penalties for religious freedom. Contrary to the Smith declaration that free exercise
exemptions are "intentional government advancement", these exemptions merely relieve the
prohibition on the free exercise thus allowing the burdened religious adherent to be left alone. The
state must create exceptions to laws of general applicability when these laws threaten religious
convictions or practices in the absence of a compelling state interest.275 By allowing such
exemptions, the Free Exercise Clause does not give believers the right or privilege to choose for
themselves to override socially-prescribed decision; it allows them to obey spiritual rather than
temporal authority276 for those who seriously invoke the Free Exercise Clause claim to be fulfilling a
solemn duty. Religious freedom is a matter less of rights than duties; more precisely, it is a matter of
rights derived from duties. To deny a person or a community the right to act upon such a duty can be
justified only by appeal to a yet more compelling duty. Of course, those denied will usually not find
the reason for the denial compelling. "Because they may turn out to be right about the duty in
question, and because, even if they are wrong, religion bears witness to that which transcends the
political order, such denials should be rare and painfully reluctant."277

The Yoder case is an example where the Court held that the state must accommodate the religious
beliefs of the Amish who objected to enrolling their children in high school as required by law. The
Sherbert case is another example where the Court held that the state unemployment compensation
plan must accommodate the religious convictions of Sherbert.278 In these cases of "burdensome
effect", the modern approach of the Court has been to apply strict scrutiny, i.e., to declare the burden
as permissible, the Court requires the state to demonstrate that the regulation which burdens the
religious exercise pursues a particularly important or compelling government goal through the least
restrictive means. If the state's objective could be served as well or almost as well by granting an
exemption to those whose religious beliefs are burdened by the regulation, such an exemption must
be given.279This approach of the Court on "burdensome effect" was only applied since the 1960s.
Prior to this time, the Court took the separationist view that as long as the state was acting in pursuit
of non-religious ends and regulating conduct rather than pure religious beliefs, the Free Exercise
Clause did not pose a hindrance such as in Reynolds.280 In the second situation where
accommodation is permissible, the state may, but is not required to, accommodate religious
interests. The Walz case illustrates this situation where the Court upheld the constitutionality of tax
exemption given by New York to church properties, but did not rule that the state was required to
provide tax exemptions. The Court declared that "(t)he limits of permissible state accommodation to
religion are by no means co-extensive with the noninterference mandated by the Free Exercise
Clause."281 The Court held that New York could have an interest in encouraging religious values and
avoiding threats to those values through the burden of property taxes. Other examples are the
Zorach case allowing released time in public schools and Marsh allowing payment of legislative
chaplains from public funds. Finally, in the situation where accommodation is prohibited,
establishment concerns prevail over potential accommodation interests. To say that there are valid
exemptions buttressed by the Free Exercise Clause does not mean that all claims for free exercise
exemptions are valid.282 An example where accommodation was prohibited is McCollum where the
Court ruled against optional religious instruction in the public school premises.283 In effect, the last
situation would arrive at a strict neutrality conclusion.

In the first situation where accommodation is required, the approach follows this basic framework:

If the plaintiff can show that a law or government practice inhibits the free exercise of his
religious beliefs, the burden shifts to the government to demonstrate that the law or practice
is necessary to the accomplishment of some important (or 'compelling') secular objective and
that it is the least restrictive means of achieving that objective. If the plaintiff meets this
burden and the government does not, the plaintiff is entitled to exemption from the law or
practice at issue. In order to be protected, the claimant's beliefs must be 'sincere', but they
need not necessarily be consistent, coherent, clearly articulated, or congruent with those of
the claimant's religious denomination. 'Only beliefs rooted in religion are protected by the
Free Exercise Clause'; secular beliefs, however sincere and conscientious, do not suffice.284

In other words, a three-step process (also referred to as the "two-step balancing process" supra
when the second and third steps are combined) as in Sherbert is followed in weighing the state's
interest and religious freedom when these collide. Three questions are answered in this process.
First, "(h)as the statute or government action created a burden on the free exercise of religion?" The
courts often look into the sincerity of the religious belief, but without inquiring into the truth of the
belief because the Free Exercise Clause prohibits inquiring about its truth as held in Ballard and
Cantwell. The sincerity of the claimant's belief is ascertained to avoid the mere claim of religious
beliefs to escape a mandatory regulation. As evidence of sincerity, the U.S. Supreme Court has
considered historical evidence as in Wisconsin where the Amish people had held a long-standing
objection to enrolling their children in ninth and tenth grades in public high schools. In another
case, Dobkin v. District of Columbia,285 the Court denied the claim of a party who refused to
appear in court on Saturday alleging he was a Sabbatarian, but the Court noted that he regularly
conducted business on Saturday. Although it is true that the Court might erroneously deny some
claims because of a misjudgment of sincerity, this is not as argument to reject all claims by not
allowing accommodation as a rule. There might be injury to the particular claimant or to his religious
community, but for the most part, the injustice is done only in the particular case.286 Aside from the
sincerity, the court may look into the centrality of those beliefs, assessing them not on an objective
basis but in terms of the opinion and belief of the person seeking exemption. In Wisconsin, for
example, the Court noted that the Amish people's convictions against becoming involved in public
high schools were central to their way of life and faith. Similarly, in Sherbert, the Court concluded
that the prohibition against Saturday work was a "cardinal principle."287 Professor Lupu puts to task
the person claiming exemption, viz:

On the claimant's side, the meaning and significance of the relevant religious practice must
be demonstrated. Religious command should outweigh custom, individual conscience should
count for more than personal convenience, and theological principle should be of greater
significance than institutional ease. Sincerity matters, (footnote omitted) and longevity of
practice - both by the individual and within the individual's religious tradition - reinforces
sincerity. Most importantly, the law of free exercise must be inclusive and expansive,
recognizing non-Christian religions - eastern, Western, aboriginal and otherwise - as
constitutionally equal to their Christian counterparts, and accepting of the intensity and scope
of fundamentalist creed.288

Second, the court asks: "(i)s there a sufficiently compelling state interest to justify this infringement of
religious liberty?" In this step, the government has to establish that its purposes are legitimate for the
state and that they are compelling. Government must do more than assert the objectives at risk if
exemption is given; it must precisely show how and to what extent those objectives will be
undermined if exemptions are granted.289 The person claiming religious freedom, on the other hand,
will endeavor to show that the interest is not legitimate or that the purpose, although legitimate, is not
compelling compared to infringement of religious liberty. This step involves balancing, i.e., weighing
the interest of the state against religious liberty to determine which is more compelling under the
particular set of facts. The greater the state's interests, the more central the religious belief would
have to be to overcome it. In assessing the state interest, the court will have to determine the
importance of the secular interest and the extent to which that interest will be impaired by an
exemption for the religious practice. Should the court find the interest truly compelling, there will be
no requirement that the state diminish the effectiveness of its regulation by granting the
exemption.290

Third, the court asks: "(h)as the state in achieving its legitimate purposes used the least intrusive
means possible so that the free exercise is not infringed any more than necessary to achieve the
legitimate goal of the state?"291 The analysis requires the state to show that the means in which it is
achieving its legitimate state objective is the least intrusive means, i.e., it has chosen a way to
achieve its legitimate state end that imposes as little as possible on religious liberties. In Cantwell,
for example, the Court invalidated the license requirement for the door-to-door solicitation as it was a
forbidden burden on religious liberty, noting that less drastic means of insuring peace and tranquility
existed. As a whole, in carrying out the compelling state interest test, the Court should give careful
attention to context, both religious and regulatory, to achieve refined judgment.292
In sum, as shown by U.S. jurisprudence on religion clause cases, the competing values of secular
government and religious freedom create tensions that make constitutional law on the subject of
religious liberty unsettled, mirroring the evolving views of a dynamic society.293

VII. Religion Clauses in the Philippines

A. History

Before our country fell under American rule, the blanket of Catholicism covered the archipelago.
There was a union of church and state and Catholicism was the state religion under the Spanish
Constitution of 1876. Civil authorities exercised religious functions and the friars exercised civil
powers.294 Catholics alone enjoyed the right of engaging in public ceremonies of worship.295 Although
the Spanish Constitution itself was not extended to the Philippines, Catholicism was also the
established church in our country under the Spanish rule. Catholicism was in fact protected by the
Spanish Penal Code of 1884 which was in effect in the Philippines. Some of the offenses in chapter
six of the Penal Code entitled "Crimes against Religion and Worship" referred to crimes against the
state religion.296The coming of the Americans to our country, however, changed this state-church
scheme for with the advent of this regime, the unique American experiment of "separation of church
and state" was transported to Philippine soil.

Even as early as the conclusion of the Treaty of Paris between the United States and Spain on
December 10, 1898, the American guarantee of religious freedom had been extended to the
Philippines. The Treaty provided that "the inhabitants of the territories over which Spain relinquishes
or cedes her sovereignty shall be secured in the free exercise of religion."297 Even the Filipinos
themselves guaranteed religious freedom a month later or on January 22, 1899 upon the adoption of
the Malolos Constitution of the Philippine Republic under General Emilio Aguinaldo. It provided that
"the State recognizes the liberty and equality of all religion (de todos los cultos) in the same manner
as the separation of the Church and State." But the Malolos Constitution and government was short-
lived as the Americans took over the reigns of government.298

With the Philippines under the American regime, President McKinley issued Instructions to the
Second Philippine Commission, the body created to take over the civil government in the Philippines
in 1900. The Instructions guaranteed religious freedom, viz:

That no law shall be made respecting the establishment of religion or prohibiting the free
exercise thereof, and that the free exercise and enjoyment of religious profession and
worship without discrimination or preference shall forever be allowed ... that no form of
religion and no minister of religion shall be forced upon the community or upon any citizen of
the Islands, that, on the other hand, no minister of religion shall be interfered with or
molested in following his calling.299

This provision was based on the First Amendment of the United States Constitution. Likewise, the
Instructions declared that "(t)he separation between State and Church shall be real, entire and
absolute."300

Thereafter, every organic act of the Philippines contained a provision on freedom of religion. Similar
to the religious freedom clause in the Instructions, the Philippine Bill of 1902 provided that:

No law shall be made respecting an establishment of religion or prohibiting the free exercise thereof,
and that free exercise and enjoyment of religious worship, without discrimination or preference, shall
forever be allowed.
In U.S. v. Balcorta,301 the Court stated that the Philippine Bill of 1902 "caused the complete
separation of church and state, and the abolition of all special privileges and all restrictions theretofor
conferred or imposed upon any particular religious sect."302

The Jones Law of 1916 carried the same provision, but expanded it with a restriction against using
public money or property for religious purposes, viz:

That no law shall be made respecting an establishment of religion or prohibiting the free
exercise thereof, and that the free exercise and enjoyment of religious profession and
worship without discrimination or preference, shall forever be allowed; and no religious test
shall be required for the exercise of civil or political rights. No public money or property shall
ever be appropriated, applied, donated, or used, directly or indirectly, for the use, benefit, or
support of any sect, church, denomination, sectarian institution, or system of religion, or for
the use, benefit or support of any priest, preacher, minister, or other religious teachers or
dignitary as such.

This was followed by the Philippine Independence Law or Tydings-McDuffie Law of 1934
which guaranteed independence to the Philippines and authorized the drafting of a Philippine
constitution. It enjoined Filipinos to include freedom of religion in drafting their constitution
preparatory to the grant of independence. The law prescribed that "(a)bsolute toleration of
religious sentiment shall be secured and no inhabitant or religious organization shall be
molested in person or property on account of religious belief or mode of worship."303

The Constitutional Convention then began working on the 1935 Constitution. In their proceedings,
Delegate Jose P. Laurel as Chairman of the Committee on Bill of Rights acknowledged that "(i)t was
the Treaty of Paris of December 10, 1898, which first introduced religious toleration in our country.
President McKinley's Instructions to the Second Philippine Commission reasserted this right which
later was incorporated into the Philippine Bill of 1902 and in the Jones Law."304 In accordance with
the Tydings-McDuffie Law, the 1935 Constitution provided in the Bill of Rights, Article IV, Section 7,
viz:

Sec. 7. No law shall be made respecting an establishment of religion, or prohibiting the free
exercise thereof, and the free exercise and enjoyment of religious profession and worship,
without discrimination or preference, shall forever be allowed. No religious test shall be
required for the exercise of civil or political rights.

This provision, borrowed from the Jones Law, was readily approved by the Convention.305 In
his speech as Chairman of the Committee on Bill of Rights, Delegate Laurel said that
modifications in phraseology of the Bill of Rights in the Jones Law were avoided whenever
possible because "the principles must remain couched in a language expressive of their
historical background, nature, extent and limitations as construed and interpreted by the
great statesmen and jurists that vitalized them."306

The 1973 Constitution which superseded the 1935 Constitution contained an almost identical
provision on religious freedom in the Bill of Rights in Article IV, Section 8, viz:

Sec. 8. No law shall be made respecting an establishment of religion, or prohibiting the free
exercise thereof. The free exercise and enjoyment of religious profession and worship,
without discrimination or preference, shall forever be allowed. No religious test shall be
required for the exercise of civil or political rights.
This time, however, the General Provisions in Article XV added in Section 15 that "(t)he separation
of church and state shall be inviolable."

Without discussion by the 1986 Constitutional Commission, the 1973 religious clauses were
reproduced in the 1987 Constitution under the Bill of Rights in Article III, Section 5.307 Likewise, the
provision on separation of church and state was included verbatim in the 1987 Constitution, but this
time as a principle in Section 6, Article II entitled Declaration of Principles and State Policies.

Considering the American origin of the Philippine religion clauses and the intent to adopt the
historical background, nature, extent and limitations of the First Amendment of the U.S. Constitution
when it was included in the 1935 Bill of Rights, it is not surprising that nearly all the major Philippine
cases involving the religion clauses turn to U.S. jurisprudence in explaining the nature, extent and
limitations of these clauses. However, a close scrutiny of these cases would also reveal that while
U.S. jurisprudence on religion clauses flows into two main streams of interpretation - separation and
benevolent neutrality - the well-spring of Philippine jurisprudence on this subject is for the most part,
benevolent neutrality which gives room for accommodation.

B. Jurisprudence

In revisiting the landscape of Philippine jurisprudence on the religion clauses, we begin with the
definition of "religion". "Religion" is derived from the Middle English religioun, from Old French
religion, from Latin religio, vaguely referring to a "bond between man and the gods."308 This pre-
Christian term for the cult and rituals of pagan Rome was first Christianized in the Latin translation of
the Bible.309 While the U.S. Supreme Court has had to take up the challenge of defining the
parameters and contours of "religion" to determine whether a non-theistic belief or act is covered by
the religion clauses, this Court has not been confronted with the same issue. In Philippine
jurisprudence, religion, for purposes of the religion clauses, has thus far been interpreted as theistic.
In 1937, the Philippine case of Aglipay v. Ruiz310 involving the Establishment Clause, defined
"religion" as a "profession of faith to an active power that binds and elevates man to his Creator."
Twenty years later, the Court cited the Aglipay definition in American Bible Society v. City of
Manila,311 a case involving the Free Exercise clause. The latter also cited the American case of
Davis in defining religion, viz: "(i)t has reference to one's views of his relations to His Creator and to
the obligations they impose of reverence to His being and character and obedience to His Will." The
Beason definition, however, has been expanded in U.S. jurisprudence to include non-theistic beliefs.

1. Free Exercise Clause

Freedom of choice guarantees the liberty of the religious conscience and prohibits any degree of
compulsion or burden, whether direct or indirect, in the practice of one's religion. The Free Exercise
Clause principally guarantees voluntarism, although the Establishment Clause also assures
voluntarism by placing the burden of the advancement of religious groups on their intrinsic merits
and not on the support of the state.312

In interpreting the Free Exercise Clause, the realm of belief poses no difficulty. The early case
of Gerona v. Secretary of Education313 is instructive on the matter, viz:

The realm of belief and creed is infinite and limitless bounded only by one's imagination and
thought. So is the freedom of belief, including religious belief, limitless and without bounds.
One may believe in most anything, however strange, bizarre and unreasonable the same
may appear to others, even heretical when weighed in the scales of orthodoxy or doctrinal
standards. But between the freedom of belief and the exercise of said belief, there is quite a
stretch of road to travel.314
The difficulty in interpretation sets in when belief is externalized into speech and action.

Religious speech comes within the pale of the Free Exercise Clause as illustrated in the American
Bible Society case. In that case, plaintiff American Bible Society was a foreign, non-stock, non-profit,
religious missionary corporation which sold bibles and gospel portions of the bible in the course of its
ministry. The defendant City of Manila required plaintiff to secure a mayor's permit and a municipal
license as ordinarily required of those engaged in the business of general merchandise under the
city's ordinances. Plaintiff argued that this amounted to "religious censorship and restrained the free
exercise and enjoyment of religious profession, to wit: the distribution and sale of bibles and other
religious literature to the people of the Philippines."

After defining religion, the Court, citing Tanada and Fernando, made this statement, viz:

The constitutional guaranty of the free exercise and enjoyment of religious profession and
worship carries with it the right to disseminate religious information. Any restraint of such
right can only be justified like other restraints of freedom of expression on the grounds that
there is a clear and present danger of any substantive evil which the State has the right to
prevent. (Tanada and Fernando on the Constitution of the Philippines, vol. 1, 4th ed., p. 297)
(emphasis supplied)

This was the Court's maiden unequivocal affirmation of the "clear and present danger" rule in the
religious freedom area, and in Philippine jurisprudence, for that matter.315 The case did not clearly
show, however, whether the Court proceeded to apply the test to the facts and issues of the case,
i.e., it did not identify the secular value the government regulation sought to protect, whether the
religious speech posed a clear and present danger to this or other secular value protected by
government, or whether there was danger but it could not be characterized as clear and present. It is
one thing to apply the test and find that there is no clear and present danger, and quite another not
to apply the test altogether.

Instead, the Court categorically held that the questioned ordinances were not applicable to plaintiff
as it was not engaged in the business or occupation of selling said "merchandise" for profit. To add,
the Court, citing Murdock v. Pennsylvania,316 ruled that applying the ordinance requiring it to
secure a license and pay a license fee or tax would impair its free exercise of religious profession
and worship and its right of dissemination of religious beliefs "as the power to tax the exercise of a
privilege is the power to control or suppress its enjoyment." Thus, in American Bible Society, the
"clear and present danger" rule was laid down but it was not clearly applied.

In the much later case of Tolentino v. Secretary of Finance,317 also involving the sale of religious
books, the Court distinguished the American Bible Society case from the facts and issues in
Tolentino and did not apply the American Bible Society ruling. In Tolentino, the Philippine Bible
Society challenged the validity of the registration provisions of the Value Added Tax (VAT) Law as a
prior restraint. The Court held, however, that the fixed amount of registration fee was not imposed for
the exercise of a privilege like a license tax which American Bible Society ruled was violative of
religious freedom. Rather, the registration fee was merely an administrative fee to defray part of the
cost of registration which was a central feature of the VAT system. Citing Jimmy Swaggart
Ministries v. Board of Equalization,318 the Court also declared prefatorily that "the Free Exercise of
Religion Clause does not prohibit imposing a generally applicable sales and use tax on the sale of
religious materials by a religious organization." In the Court's resolution of the motion for
reconsideration of the Tolentino decision, the Court noted that the burden on religious freedom
caused by the tax was just similar to any other economic imposition that might make the right to
disseminate religious doctrines costly.
Two years after American Bible Society came the 1959 case of Gerona v. Secretary of
Education,319 this time involving conduct expressive of religious belief colliding with a rule prescribed
in accordance with law. In this case, petitioners were members of the Jehovah's Witnesses. They
challenged a Department Order issued by the Secretary of Education implementing Republic Act No.
1265 which prescribed compulsory flag ceremonies in all public schools. In violation of the Order,
petitioner's children refused to salute the Philippine flag, sing the national anthem, or recite the
patriotic pledge, hence they were expelled from school. Seeking protection under the Free Exercise
Clause, petitioners claimed that their refusal was on account of their religious belief that the
Philippine flag is an image and saluting the same is contrary to their religious belief. The Court
stated, viz:

. . . If the exercise of religious belief clashes with the established institutions of society and
with the law, then the former must yield to the latter. The Government steps in and either
restrains said exercise or even prosecutes the one exercising it. (emphasis supplied)320

The Court then proceeded to determine if the acts involved constituted a religious ceremony in
conflict with the beliefs of the petitioners with the following justification:

After all, the determination of whether a certain ritual is or is not a religious ceremony must rest with
the courts. It cannot be left to a religious group or sect, much less to a follower of said group or sect;
otherwise, there would be confusion and misunderstanding for there might be as many
interpretations and meaning to be given to a certain ritual or ceremony as there are religious groups
or sects or followers, all depending upon the meaning which they, though in all sincerity and good
faith, may want to give to such ritual or ceremony.321

It was held that the flag was not an image, the flag salute was not a religious ceremony, and there
was nothing objectionable about the singing of the national anthem as it speaks only of love of
country, patriotism, liberty and the glory of suffering and dying for it. The Court upheld the
questioned Order and the expulsion of petitioner's children, stressing that:

Men may differ and do differ on religious beliefs and creeds, government policies, the
wisdom and legality of laws, even the correctness of judicial decisions and decrees; but in
the field of love of country, reverence for the flag, national unity and patriotism, they can
hardly afford to differ, for these are matters in which they are mutually and vitally interested,
for to them, they mean national existence and survival as a nation or national extinction.322

In support of its ruling, the Court cited Justice Frankfurter's dissent in the Barnette case, viz:

The constitutional protection of religious freedom x x x gave religious equality, not civil
immunity. Its essence is freedom from conformity to religious dogma, not freedom from
conformity to law because of religious dogma.323

It stated in categorical terms, viz:

The freedom of religious belief guaranteed by the Constitution does not and cannot mean exemption
from or non-compliance with reasonable and non-discriminatory laws, rules and regulations
promulgated by competent authority.324

Thus, the religious freedom doctrines one can derive from Gerona are: (1) it is incumbent upon the
Court to determine whether a certain ritual is religious or not; (2) religious freedom will not be upheld
if it clashes with the established institutions of society and with the law such that when a law of
general applicability (in this case the Department Order) incidentally burdens the exercise of one's
religion, one's right to religious freedom cannot justify exemption from compliance with the law. The
Gerona ruling was reiterated in Balbuna, et al. v. Secretary of Education, et al.325

Fifteen years after Gerona came the 1974 case of Victoriano v. Elizalde Rope Workers Union.[326]
In this unanimously decided en banc case, Victoriano was a member of the Iglesia ni Cristo which
prohibits the affiliation of its members with any labor organization. He worked in the Elizalde Rope
Factory, Inc. and was a member of the Elizalde Rope Workers Union which had with the company a
closed shop provision pursuant to Republic Act No. 875 allowing closed shop arrangements.
Subsequently, Republic Act No. 3350 was enacted exempting from the application and coverage of
a closed shop agreement employees belonging to any religious sect which prohibits affiliation of their
members with any labor organization. Victoriano resigned from the union after Republic Act No.
3350 took effect. The union notified the company of Victoriano's resignation, which in turn notified
Victoriano that unless he could make a satisfactory arrangement with the union, the company would
be constrained to dismiss him from the service. Victoriano sought to enjoin the company and the
union from dismissing him. The court having granted the injunction, the union came to this Court on
questions of law, among which was whether Republic Act No. 3350 was unconstitutional for
impairing the obligation of contracts and for granting an exemption offensive of the Establishment
Clause. With respect to the first issue, the Court ruled, viz:

Religious freedom, although not unlimited, is a fundamental personal right and liberty
(Schneider v. Irgington, 308 U.S. 147, 161, 84 L.ed.155, 164, 60 S.Ct. 146) and has a
preferred position in the hierarchy of values. Contractual rights, therefore, must yield to
freedom of religion. It is only where unavoidably necessary to prevent an immediate and
grave danger to the security and welfare of the community that infringement of religious
freedom may be justified, and only to the smallest extent necessary.327 (emphasis supplied)

As regards the Establishment Clause issue, the Court after citing the constitutional provision on
establishment and free exercise of religion, declared, viz:

The constitutional provisions not only prohibits legislation for the support of any religious
tenets or the modes of worship of any sect, thus forestalling compulsion by law of the
acceptance of any creed or the practice of any form of worship (U.S. Ballard, 322 U.S. 78, 88
L. ed. 1148, 1153), but also assures the free exercise of one's chosen form of religion within
limits of utmost amplitude. It has been said that the religion clauses of the Constitution are all
designed to protect the broadest possible liberty of conscience, to allow each man to believe
as his conscience directs, to profess his beliefs, and to live as he believes he ought to live,
consistent with the liberty of others and with the common good. (footnote omitted). Any
legislation whose effect or purpose is to impede the observance of one or all religions, or to
discriminate invidiously between the religions, is invalid, even though the burden may be
characterized as being only indirect. (Sherbert v. Verner, 374 U.S. 398, 10 L.ed.2d 965, 83
S. Ct. 1970) But if the state regulates conduct by enacting, within its power, a general law
which has for its purpose and effect to advance the state's secular goals, the statute is valid
despite its indirect burden on religious observance, unless the state can accomplish its
purpose without imposing such burden. (Braunfeld v. Brown, 366 U.S. 599, 6 L ed. 2d. 563,
81 S. Ct. 144; McGowan v. Maryland, 366 U.S. 420, 444-5 and 449)328 (emphasis supplied)

Quoting Aglipay v. Ruiz,329 the Court held that "government is not precluded from pursuing valid
objectives secular in character even if the incidental result would be favorable to a religion or sect." It
also cited Board of Education v. Allen,330 which held that in order to withstand the strictures of
constitutional prohibition, a statute must have a secular legislative purpose and a primary effect that
neither advances nor inhibits religion. Using these criteria in upholding Republic Act No. 3350, the
Court pointed out, viz:
 (Republic Act No. 3350) was intended to serve the secular purpose of advancing the
constitutional right to the free exercise of religion, by averting that certain persons be refused
work, or be dismissed from work, or be dispossessed of their right to work and of being
impeded to pursue a modest means of livelihood, by reason of union security agreements. . .
. The primary effects of the exemption from closed shop agreements in favor of members of
religious sects that prohibit their members from affiliating with a labor organization, is the
protection of said employees against the aggregate force of the collective bargaining
agreement, and relieving certain citizens of a burden on their religious beliefs, and . . .
eliminating to a certain extent economic insecurity due to unemployment.331

The Court stressed that "(a)lthough the exemption may benefit those who are members of religious
sects that prohibit their members from joining labor unions, the benefit upon the religious sects is
merely incidental and indirect."332 In enacting Republic Act No. 3350, Congress merely relieved the
exercise of religion by certain persons of a burden imposed by union security agreements which
Congress itself also imposed through the Industrial Peace Act. The Court concluded the issue of
exemption by citing Sherbert which laid down the rule that when general laws conflict with scruples
of conscience, exemptions ought to be granted unless some "compelling state interest" intervenes.
The Court then abruptly added that "(i)n the instant case, We see no compelling state interest to
withhold exemption."333

A close look at Victoriano would show that the Court mentioned several tests in determining when
religious freedom may be validly limited. First, the Court mentioned the test of "immediate and grave
danger to the security and welfare of the community" and "infringement of religious freedom only to
the smallest extent necessary" to justify limitation of religious freedom. Second, religious exercise
may be indirectly burdened by a general law which has for its purpose and effect the advancement
of the state's secular goals, provided that there is no other means by which the state can accomplish
this purpose without imposing such burden. Third, the Court referred to the "compelling state
interest" test which grants exemptions when general laws conflict with religious exercise, unless a
compelling state interest intervenes.

It is worth noting, however, that the first two tests were mentioned only for the purpose of
highlighting the importance of the protection of religious freedom as the secular purpose of Republic
Act No. 3350. Upholding religious freedom was a secular purpose insofar as it relieved the burden
on religious freedom caused by another law, i.e, the Industrial Peace Act providing for union shop
agreements. The first two tests were only mentioned in Victoriano but were not applied by the Court
to the facts and issues of the case. The third, the "compelling state interest" test was employed by
the Court to determine whether the exemption provided by Republic Act No. 3350 was not
unconstitutional. It upheld the exemption, stating that there was no "compelling state interest" to
strike it down. However, after careful consideration of the Sherbert case from which Victoriano
borrowed this test, the inevitable conclusion is that the "compelling state interest" test was not
appropriate and could not find application in the Victoriano case. In Sherbert, appellant Sherbert
invoked religious freedom in seeking exemption from the provisions of the South Carolina
Unemployment Compensation Act which disqualified her from claiming unemployment benefits. It
was the appellees, members of the South Carolina Employment Commission, a government agency,
who propounded the state interest to justify overriding Sherbert's claim of religious freedom. The
U.S. Supreme Court, considering Sherbert's and the Commission's arguments, found that the state
interest was not sufficiently compelling to prevail over Sherbert's free exercise claim. This situation
did not obtain in the Victoriano case where it was the government itself, through Congress, which
provided the exemption in Republic Act No. 3350 to allow Victoriano's exercise of religion. Thus, the
government could not argue against the exemption on the basis of a compelling state interest as it
would be arguing against itself; while Victoriano would not seek exemption from the questioned law
to allow the free exercose of religion as the law in fact provides such an exemption. In sum, although
Victoriano involved a religious belief and conduct, it did not involve a free exercise issue where the
Free Exercise Clause is invoked to exempt him from the burden imposed by a law on his religious
freedom.

Victoriano was reiterated in several cases involving the Iglesia ni Cristo, namely Basa, et al. v.
Federacion Obrera de la Industria Tabaquera y Otros Trabajadores de
Filipinas,334 Anucension v. National Labor Union, et al.,335 and Gonzales, et al. v. Central
Azucarera de Tarlac Labor Union.336

Then came German v. Barangan in 1985 at the height of the anti-administration rallies. Petitioners
were walking to St. Jude Church within the Malacanang security area to pray for "an end to violence"
when they were barred by the police. Invoking their constitutional freedom of religious worship and
locomotion, they came to the Court on a petition for mandamus to allow them to enter and pray
inside the St. Jude Chapel. The Court was divided on the issue. The slim majority of six recognized
their freedom of religion but noted their absence of good faith and concluded that they were using
their religious liberty to express their opposition to the government. Citing Cantwell, the Court
distinguished between freedom to believe and freedom to act on matters of religion, viz:

. . . Thus the (First) amendment embraces two concepts - freedom to believe and freedom to
act. The first is absolute, but in the nature of things, the second cannot be.337

The Court reiterated the Gerona ruling, viz:

In the case at bar, petitioners are not denied or restrained of their freedom of belief or choice
of their religion, but only in the manner by which they had attempted to translate the same to
action. This curtailment is in accord with the pronouncement of this Court in Gerona v.
Secretary of Education (106 Phil. 2), thus:

. . . But between the freedom of belief and the exercise of said belief, there is quite a stretch
of road to travel. If the exercise of said religious belief clashes with the established
institutions of society and with the law, then the former must yield and give way to the latter.
The government steps in and either restrains said exercise or even prosecutes the one
exercising it. (italics supplied)

The majority found that the restriction imposed upon petitioners was "necessary to maintain the
smooth functioning of the executive branch of the government, which petitioners' mass action would
certainly disrupt"338 and denied the petition. Thus, without considering the tests mentioned in
Victoriano, German went back to the Gerona rule that religious freedom will not be upheld if it
clashes with the established institutions of society and the law.

Then Associate Justice Teehankee registered a dissent which in subsequent jurisprudence would be
cited as a test in religious freedom cases. His dissent stated in relevant part, viz:

A brief restatement of the applicable constitutional principles as set forth in the landmark
case of J.B.L. Reyes v. Bagatsing (125 SCRA 553[1983]) should guide us in resolving the
issues.

1. The right to freely exercise one's religion is guaranteed in Section 8 of our Bill of Rights.
(footnote omitted) Freedom of worship, alongside with freedom of expression and speech
and peaceable assembly "along with the other intellectual freedoms, are highly ranked in our
scheme of constitutional values. It cannot be too strongly stressed that on the judiciary -
even more so than on the other departments - rests the grave and delicate responsibility of
assuring respect for and deference to such preferred rights. No verbal formula, no sanctifying
 phrase can, of course, dispense with what has been so felicitously termed by Justice Holmes
'as the sovereign prerogative of judgment.' Nonetheless, the presumption must be to incline
the weight of the scales of justice on the side of such rights, enjoying as they do precedence
and primacy.' (J.B.L. Reyes, 125 SCRA at pp. 569-570)

2. In the free exercise of such preferred rights, there is to be no prior restraint although there
may be subsequent punishment of any illegal acts committed during the exercise of such
basic rights. The sole justification for a prior restraint or limitation on the exercise of these
basic rights is the existence of a grave and present danger of a character both grave and
imminent, of a serious evil to public safety, public morals, public health or any other
legitimate public interest, that the State has a right (and duty) to prevent (Idem, at pp. 560-
561).339 (emphasis supplied)

The J.B.L. Reyes v. Bagatsing case from which this portion of Justice Teehankee's dissent was
taken involved the rights to free speech and assembly, and not the exercise of religious freedom. At
issue in that case was a permit sought by retired Justice J.B.L. Reyes, on behalf of the Anti-Bases
Coalition, from the City of Manila to hold a peaceful march and rally from the Luneta to the gates of
the U.S. Embassy. Nevertheless Bagatsing was used by Justice Teehankee in his dissent which had
overtones of petitioner German and his companions' right to assemble and petition the government
for redress of grievances.340

In 1993, the issue on the Jehovah's Witnesses' participation in the flag ceremony again came before
the Court in Ebralinag v. The Division Superintendent of Schools.341 A unanimous Court
overturned the Gerona ruling after three decades. Similar to Gerona, this case involved several
Jehovah's Witnesses who were expelled from school for refusing to salute the flag, sing the national
anthem and recite the patriotic pledge, in violation of the Administrative Code of 1987. In resolving
the same religious freedom issue as in Gerona, the Court this time transported the "grave and
imminent danger" test laid down in Justice Teehankee's dissent in German, viz:

The sole justification for a prior restraint or limitation on the exercise of religious freedom
(according to the late Chief Justice Claudio Teehankee in his dissenting opinion in German
v. Barangan, 135 SCRA 514, 517) is the existence of a grave and present danger of a
character both grave and imminent, of a serious evil to public safety, public morals, public
health or any other legitimate public interest, that the State has a right (and duty) to prevent.
Absent such a threat to public safety, the expulsion of the petitioners from the schools is not
justified.342 (emphasis supplied)

The Court added, viz:

We are not persuaded that by exempting the Jehovah's Witnesses from saluting the flag,
singing the national anthem and reciting the patriotic pledge, this religious group which
admittedly comprises a 'small portion of the school population' will shake up our part of the
globe and suddenly produce a nation 'untaught and uninculcated in and unimbued with
reverence for the flag, patriotism, love of country and admiration for national heroes' (Gerona
v. Secretary of Education, 106 Phil. 224). After all, what the petitioners seek only is
exemption from the flag ceremony, not exclusion from the public schools where they may
study the Constitution, the democratic way of life and form of government, and learn not only
the arts, sciences, Philippine history and culture but also receive training for a vocation or
profession and be taught the virtues of 'patriotism, respect for human rights, appreciation of
national heroes, the rights and duties of citizenship, and moral and spiritual values' (Sec.
3[2], Art. XIV, 1987 Constitution) as part of the curricula. Expelling or banning the petitioners
from Philippine schools will bring about the very situation that this Court has feared in
 Gerona. Forcing a small religious group, through the iron hand of the law, to participate in a
ceremony that violates their religious beliefs, will hardly be conducive to love of country or
respect for duly constituted authorities.343

Barnette also found its way to the opinion, viz:

Furthermore, let it be noted that coerced unity and loyalty even to the country, x x x-
assuming that such unity and loyalty can be attained through coercion- is not a goal that is
constitutionally obtainable at the expense of religious liberty. A desirable end cannot be
promoted by prohibited means. (Meyer vs. Nebraska, 262 U.S. 390, 67 L. ed. 1042, 1046).344

Towards the end of the decision, the Court also cited the Victoriano case and its use of the
"compelling state interest" test in according exemption to the Jehovah's Witnesses, viz:

In Victoriano vs. Elizalde Rope Workers' Union, 59 SCRA 54, 72-75, we upheld the
exemption of members of the Iglesia ni Cristo, from the coverage of a closed shop
agreement between their employer and a union because it would violate the teaching of their
church not to join any group:

'x x x It is certain that not every conscience can be accommodated by all the laws of
the land; but when general laws conflict with scruples of conscience, exemptions
ought to be granted unless some 'compelling state interest' intervenes.' (Sherbert vs.
Verner, 374 U.S. 398, 10 L. Ed. 2d 965, 970, 83 S.Ct. 1790)'

We hold that a similar exemption may be accorded to the Jehovah's Witnesses with regard
to the observance of the flag ceremony out of respect for their religious beliefs, however
'bizarre' those beliefs may seem to others.345

The Court annulled the orders expelling petitioners from school.

Thus, the "grave and imminent danger" test laid down in a dissenting opinion in German which
involved prior restraint of religious worship with overtones of the right to free speech and assembly,
was transported to Ebralinag which did not involve prior restraint of religious worship, speech or
assembly. Although, it might be observed that the Court faintly implied that Ebralinag also involved
the right to free speech when in its preliminary remarks, the Court stated that compelling petitioners
to participate in the flag ceremony "is alien to the conscience of the present generation of Filipinos
who cut their teeth on the Bill of Rights which guarantees their rights to free speech and the free
exercise of religious profession and worship;" the Court then stated in a footnote that the "flag salute,
singing the national anthem and reciting the patriotic pledge are all forms of utterances."346

The "compelling state interest" test was not fully applied by the Court in Ebralinag. In the Solicitor
General's consolidated comment, one of the grounds cited to defend the expulsion orders issued by
the public respondents was that "(t)he State's compelling interests being pursued by the DEC's
lawful regulations in question do not warrant exemption of the school children of the Jehovah's
Witnesses from the flag salute ceremonies on the basis of their own self-perceived religious
convictions."347 The Court, however, referred to the test only towards the end of the decision and did
not even mention what the Solicitor General argued as the compelling state interest, much less did
the Court explain why the interest was not sufficiently compelling to override petitioners' religious
freedom.

Three years after Ebralinag, the Court decided the 1996 case of Iglesia ni Cristo v. Court of
Appeals, et al.348Although there was a dissent with respect to the applicability of the "clear and
present danger" test in this case, the majority opinion in unequivocal terms applied the "clear and
present danger" test to religious speech. This case involved the television program, "Ang Iglesia ni
Cristo," regularly aired over the television. Upon petitioner Iglesia ni Cristo's submission of the VTR
tapes of some of its episodes, respondent Board of Review for Motion Pictures and Television
classified these as "X" or not for public viewing on the ground that they "offend and constitute an
attack against other religions which is expressly prohibited by law." Invoking religious freedom,
petitioner alleged that the Board acted without jurisdiction or with grave abuse of discretion in
requiring it to submit the VTR tapes of its television program and x-rating them. While upholding the
Board's power to review the Iglesia television show, the Court was emphatic about the preferred
status of religious freedom. Quoting Justice Cruz' commentary on the constitution, the Court held
that freedom to believe is absolute but freedom to act on one's belief, where it affects the public, is
subject to the authority of the state. The commentary quoted Justice Frankfurter's dissent in Barnette
which was quoted in Gerona, viz: "(t)he constitutional provision on religious freedom terminated
disabilities, it did not create new privileges. It gave religious liberty, not civil immunity. Its essence is
freedom from conformity to religious dogma, not freedom from conformity to law because of religious
dogma."349 Nevertheless, the Court was quick to add the criteria by which the state can regulate the
exercise of religious freedom, that is, when the exercise will bring about the "clear and present
danger of some substantive evil which the State is duty bound to prevent, i.e., serious detriment to
the more overriding interest of public health, public morals, or public welfare."350

In annulling the x-rating of the shows, the Court stressed that the Constitution is hostile to all prior
restraints on speech, including religious speech and the x-rating was a suppression of petitioner's
freedom of speech as much as it was an interference with its right to free exercise of religion. Citing
Cantwell, the Court recognized that the different religions may criticize one another and their tenets
may collide, but the Establishment Clause prohibits the state from protecting any religion from this
kind of attack.

The Court then called to mind the "clear and present danger" test first laid down in the American
Bible Society case and the test of "immediate and grave danger" with "infringement only to the
smallest extent necessary to avoid danger" in Victoriano and pointed out that the reviewing board
failed to apply the "clear and present danger" test. Applying the test, the Court noted, viz:

The records show that the decision of the respondent Board, affirmed by the respondent
appellate court, is completely bereft of findings of facts to justify the conclusion that the
subject video tapes constitute impermissible attacks against another religion. There is no
showing whatsoever of the type of harm the tapes will bring about especially the gravity and
imminence of the threatened harm. Prior restraint on speech, including religious speech,
cannot be justified by hypothetical fears but only by the showing of a substantive and
imminent evil which has taken the life of a reality already on ground.

Replying to the challenge on the applicability of the "clear and present danger" test to the case, the
Court acknowledged the permutations that the test has undergone, but stressed that the test is still
applied to four types of speech: "speech that advocates dangerous ideas, speech that provokes a
hostile audience reaction, out of court contempt and release of information that endangers a fair
trial"351 and ruled, viz:

. . . even allowing the drift of American jurisprudence, there is reason to apply the clear and
present danger test to the case at bar which concerns speech that attacks other religions
and could readily provoke hostile audience reaction. It cannot be doubted that religious truths
disturb and disturb terribly.352
In Iglesia therefore, the Court went back to Gerona insofar as holding that religious freedom cannot
be invoked to seek exemption from compliance with a law that burdens one's religious exercise. It
also reiterated the "clear and present danger" test in American Bible Society and the "grave and
imminent danger" in Victoriano, but this time clearly justifying its applicability and showing how the
test was applied to the case.

In sum, the Philippine Supreme Court has adopted a posture of not invalidating a law offensive to
religious freedom, but carving out an exception or upholding an exception to accommodate religious
exercise where it is justified.353

2. Establishment Clause

In Philippine jurisdiction, there is substantial agreement on the values sought to be protected by the
Establishment Clause, namely, voluntarism and insulation of the political process from interfaith
dissension. The first, voluntarism, has both a personal and a social dimension. As a personal value,
it refers to the inviolability of the human conscience which, as discussed above, is also protected by
the free exercise clause. From the religious perspective, religion requires voluntarism because
compulsory faith lacks religious efficacy. Compelled religion is a contradiction in terms.354 As a social
value, it means that the "growth of a religious sect as a social force must come from the voluntary
support of its members because of the belief that both spiritual and secular society will benefit if
religions are allowed to compete on their own intrinsic merit without benefit of official patronage.
Such voluntarism cannot be achieved unless the political process is insulated from religion and
unless religion is insulated from politics."355 Non-establishment thus calls for government neutrality in
religious matters to uphold voluntarism and avoid breeding interfaith dissension.356

The neutrality principle was applied in the first significant non-establishment case under the 1935
Constitution. In the 1937 case of Aglipay v. Ruiz,357 the Philippine Independent Church challenged
the issuance and sale of postage stamps commemorating the Thirty-Third International Eucharistic
Congress of the Catholic Church on the ground that the constitutional prohibition against the use of
public money for religious purposes has been violated. It appears that the Director of Posts issued
the questioned stamps under the provisions of Act No. 4052358 which appropriated a sum for the cost
of plates and printing of postage stamps with new designs and authorized the Director of Posts to
dispose of the sum in a manner and frequency "advantageous to the Government." The printing and
issuance of the postage stamps in question appears to have been approved by authority of the
President. Justice Laurel, speaking for the Court, took pains explaining religious freedom and the
role of religion in society, and in conclusion, found no constitutional infirmity in the issuance and sale
of the stamps, viz:

The prohibition herein expressed is a direct corollary of the principle of separation of church
and state. Without the necessity of adverting to the historical background of this principle in
our country, it is sufficient to say that our history, not to speak of the history of mankind, has
taught us that the union of church and state is prejudicial to both, for occasions might arise
when the state will use the church, and the church the state, as a weapon in the furtherance
of their respective ends and aims . . . It is almost trite to say now that in this country we enjoy
both religious and civil freedom. All the officers of the Government, from the highest to the
lowest, in taking their oath to support and defend the Constitution, bind themselves to
recognize and respect the constitutional guarantee of religious freedom, with its inherent
limitations and recognized implications. It should be stated that what is guaranteed by our
Constitution is religious liberty, not mere toleration.

Religious freedom, however, as a constitutional mandate is not an inhibition of profound reverence

for religion and is not a denial of its influence in human affairs. Religion as a profession of faith to an
active power that binds and elevates man to his Creator is recognized. And, in so far as it instills into
the minds the purest principles of morality, its influence is deeply felt and highly appreciated. When
the Filipino people, in the preamble of their Constitution, implored "the aid of Divine Providence, in
order to establish a government that shall embody their ideals, conserve and develop the patrimony
of the nation, promote the general welfare, and secure to themselves and their posterity the
blessings of independence under a regime of justice, liberty and democracy," they thereby
manifested their intense religious nature and placed unfaltering reliance upon Him who guides the
destinies of men and nations. The elevating influence of religion in human society is recognized here
as elsewhere. In fact, certain general concessions are indiscriminately accorded to religious sects
and denominations. . .359

xxx xxx xxx

It is obvious that while the issuance and sale of the stamps in question may be said to be
inseparably linked with an event of a religious character, the resulting propaganda, if any,
received by the Roman Catholic Church, was not the aim and purpose of the Government.
We are of the opinion that the Government should not be embarrassed in its activities simply
because of incidental results, more or less religious in character, if the purpose had in view is
one which could legitimately be undertaken by appropriate legislation. The main purpose
should not be frustrated by its subordination to mere incidental results not contemplated.
(Vide Bradfield vs. Roberts, 175 U.S. 295; 20 Sup. Ct. Rep., 121; 44 Law. ed.,
168)360 (emphases supplied)

In so deciding the case, the Court, citing U.S. jurisprudence, laid down the doctrine that a law or
government action with a legitimate secular purpose does not offend the Establishment Clause even
if it incidentally aids a particular religion.

Almost forty-five years after Aglipay came Garces v. Estenzo.361 Although the Court found that the
separation of church and state was not at issue as the controversy was over who should have
custody of a saint's image, it nevertheless made pronouncements on the separation of church and
state along the same line as the Aglipay ruling. The Court held that there was nothing
unconstitutional or illegal in holding a fiesta and having a patron saint for the barrio. It adhered to the
barrio resolutions of the barangay involved in the case stating that the barrio fiesta is a socio-
religious affair, the celebration of which is an "ingrained tradition in rural communities" that "relieves
the monotony and drudgery of the lives of the masses." Corollarily, the Court found nothing illegal
about any activity intended to facilitate the worship of the patron saint such as the acquisition and
display of his image bought with funds obtained through solicitation from the barrio residents. The
Court pointed out that the image of the patron saint was "purchased in connection with the
celebration of the barrio fiesta honoring the patron saint, San Vicente Ferrer, and not for the purpose
of favoring any religion nor interfering with religious matters or the religious beliefs of the barrio
residents." Citing the Aglipay ruling, the Court declared, viz:

Not every governmental activity which involves the expenditure of public funds and which
has some religious tint is violative of the constitutional provisions regarding separation of
church and state, freedom of worship and banning the use of public money or property.

Then came the 1978 case of Pamil v. Teleron, et al.362 which presented a novel issue involving the
religion clauses. In this case, Section 2175 of the Revised Administrative Code of 1917 disqualifying
ecclesiastics from appointment or election as municipal officer was challenged. After protracted
deliberation, the Court was sharply divided on the issue. Seven members of the Court, one short of
the number necessary to declare a law unconstitutional, approached the problem from a free
exercise perspective and considered the law a religious test offensive of the constitution. They were
Justices Fernando, Teehankee, Muñoz-Palma, Concepcion, Jr., Santos, Fernandez, and Guerrero.
Then Associate Justice Fernando, the ponente, stated, viz: "The challenged Administrative Code
provision, certainly insofar as it declares ineligible ecclesiastics to any elective or appointive office,
is, on its face, inconsistent with the religious freedom guaranteed by the Constitution."
Citing Torcaso v. Watkins,363 the ponencia held, viz:

Torcaso v. Watkins, an American Supreme Court decision, has persuasive weight. What was
there involved was the validity of a provision in the Maryland Constitution prescribing that 'no
religious test ought ever to be required as a disqualification for any office or profit or trust in
this State, other than a declaration of belief in the existence of God ***.' Such a constitutional
requirement was assailed as contrary to the First Amendment of the United States
Constitution by an appointee to the office of notary public in Maryland, who was refused a
commission as he would not declare a belief in God. He failed in the Maryland Court of
Appeals but prevailed in the United States Supreme Court, which reversed the state court
decision. It could not have been otherwise. As emphatically declared by Justice Black: 'this
Maryland religious test for public office unconstitutionally invades the appellant's freedom of
belief and religion and therefore cannot be enforced against him.

The analogy appears to be obvious. In that case, it was lack of belief in God that was a
disqualification. Here being an ecclesiastic and therefore professing a religious faith suffices
to disqualify for a public office. There is thus an incompatibility between the Administrative
Code provision relied upon by petitioner and an express constitutional mandate.364

On the other hand, the prevailing five other members of the Court - Chief Justice Castro, Justices
Barredo, Makasiar, Antonio and Aquino - approached the case from a non-establishment
perspective and upheld the law as a safeguard against the constant threat of union of church and
state that has marked Philippine history. Justice Makasiar stated: "To allow an ecclesiastic to head
the executive department of a municipality is to permit the erosion of the principle of separation of
Church and State and thus open the floodgates for the violation of the cherished liberty of religion
which the constitutional provision seeks to enforce and protect." Consequently, the Court upheld the
validity of Section 2175 of the Revised Administrative Code and declared respondent priest ineligible
for the office of municipal mayor.

Another type of cases interpreting the establishment clause deals with intramural religious
disputes. Fonacier v. Court of Appeals365 is the leading case. The issue therein was the right of
control over certain properties of the Philippine Independent Church, the resolution of which
necessitated the determination of who was the legitimate bishop of the church. The Court cited
American Jurisprudence,366 viz:

Where, however, a decision of an ecclesiastical court plainly violates the law it professes to
administer, or is in conflict with the law of the land, it will not be followed by the civil courts. . .
In some instances, not only have the civil courts the right to inquire into the jurisdiction of the
religious tribunals and the regularity of their procedure, but they have subjected their
decisions to the test of fairness or to the test furnished by the constitution and the law of the
church. . .367

The Court then ruled that petitioner Fonacier was legitimately ousted and respondent de los Reyes
was the duly elected head of the Church, based on their internal laws. To finally dispose of the
property issue, the Court, citing Watson v. Jones,368 declared that the rule in property controversies
within religious congregations strictly independent of any other superior ecclesiastical association
(such as the Philippine Independent Church) is that the rules for resolving such controversies should
be those of any voluntary association. If the congregation adopts the majority rule then the majority
should prevail; if it adopts adherence to duly constituted authorities within the congregation, then that
should be followed. Applying these rules, Fonacier lost the case. While the Court exercised
jurisdiction over the case, it nevertheless refused to touch doctrinal and disciplinary differences
raised, viz:

The amendments of the constitution, restatement of articles of religion and abandonment of

faith or abjuration alleged by appellant, having to do with faith, practice, doctrine, form of
worship, ecclesiastical law, custom and rule of a church and having reference to the power of
excluding from the church those allegedly unworthy of membership, are unquestionably
ecclesiastical matters which are outside the province of the civil courts.369

VIII. Free Exercise Clause vis-à-vis Establishment Clause

In both Philippine and U.S. jurisdiction, it is recognized that there is a tension between the Free
Exercise Clause and the Establishment Clause in their application. There is a natural antagonism
between a command not to establish religion and a command not to inhibit its practice; this tension
between the religion clauses often leaves the courts with a choice between competing values in
religion cases.370

One set of facts, for instance, can be differently viewed from the Establishment Clause perspective
and the Free Exercise Clause point of view, and decided in opposite directions. In Pamil, the
majority gave more weight to the religious liberty of the priest in holding that the prohibition of
ecclesiastics to assume elective or appointive government positions was violative of the Free
Exercise Clause. On the other hand, the prevailing five justices gave importance to the
Establishment Clause in stating that the principle of separation of church and state justified the
prohibition.

Tension is also apparent when a case is decided to uphold the Free Exercise Clause and
consequently exemptions from a law of general applicability are afforded by the Court to the person
claiming religious freedom; the question arises whether the exemption does not amount to support of
the religion in violation of the Establishment Clause. This was the case in the Free Exercise Clause
case of Sherbert where the U.S. Supreme Court ruled, viz:

In holding as we do, plainly we are not fostering the "establishment" of the Seventh-day
Adventist religion in South Carolina, for the extension of unemployment benefits to
Sabbatarians in common with Sunday worshippers reflects nothing more than the
governmental obligation of neutrality in the face of religious differences, and does not
represent that involvement of religious with secular institutions which it is the object of the
Establishment Clause to forestall.371 (emphasis supplied)

Tension also exists when a law of general application provides exemption in order to uphold free
exercise as in the Walz case where the appellant argued that the exemption granted to religious
organizations, in effect, required him to contribute to religious bodies in violation of the
Establishment Clause. But the Court held that the exemption was not a case of establishing religion
but merely upholding the Free Exercise Clause by "sparing the exercise of religion from the burden
of property taxation levied on private profit institutions." Justice Burger wrote, viz:

(t)he Court has struggled to find a neutral course between the two religion clauses, both of
which are cast in absolute terms, and either of which, if expanded to a logical extreme, would
tend to clash with the other.372
Similarly, the Philippine Supreme Court in the Victoriano case held that the exemption afforded by
law to religious sects who prohibit their members from joining unions did not offend the
Establishment Clause. We ruled, viz:

We believe that in enacting Republic Act No. 3350, Congress acted consistently with the
spirit of the constitutional provision. It acted merely to relieve the exercise of religion, by
certain persons, of a burden that is imposed by union security agreements.373 (emphasis
supplied)

Finally, in some cases, a practice is obviously violative of the Establishment Clause but the Court
nevertheless upholds it. In Schempp, Justice Brennan stated: "(t)here are certain practices,
conceivably violative of the Establishment Clause, the striking down of which might seriously
interfere with certain religious liberties also protected by the First Amendment."

How the tension between the Establishment Clause and the Free Exercise Clause will be resolved is
a question for determination in the actual cases that come to the Court. In cases involving both the
Establishment Clause and the Free Exercise Clause, the two clauses should be balanced against
each other. The courts must review all the relevant facts and determine whether there is a
sufficiently strong free exercise right that should prevail over the Establishment Clause problem. In
the United States, it has been proposed that in balancing, the free exercise claim must be given an
edge not only because of abundant historical evidence in the colonial and early national period of the
United States that the free exercise principle long antedated any broad-based support of
disestablishment, but also because an Establishment Clause concern raised by merely
accommodating a citizen's free exercise of religion seems far less dangerous to the republic than
pure establishment cases. Each time the courts side with the Establishment Clause in cases
involving tension between the two religion clauses, the courts convey a message of hostility to the
religion that in that case cannot be freely exercised.374 American professor of constitutional law,
Laurence Tribe, similarly suggests that the free exercise principle "should be dominant in any conflict
with the anti-establishment principle." This dominance would be the result of commitment to religious
tolerance instead of "thwarting at all costs even the faintest appearance of establishment."375 In our
jurisdiction, Fr. Joaquin Bernas, S.J. asserts that a literal interpretation of the religion clauses does
not suffice. Modern society is characterized by the expanding regulatory arm of government that
reaches a variety of areas of human conduct and an expanding concept of religion. To adequately
meet the demands of this modern society, the societal values the religion clauses are intended to
protect must be considered in their interpretation and resolution of the tension. This, in fact, has
been the approach followed by the Philippine Court.376

IX. Philippine Religion Clauses: Nature, Purpose, Tests Based on Philippine and American
Religion Clause History, Law and Jurisprudence

The history of the religion clauses in the 1987 Constitution shows that these clauses were largely
adopted from the First Amendment of the U.S. Constitution. The religion clauses in the First
Amendment were contained in every organic Act of the Philippines under the American regime.
When the delegates of the 1934 Constitutional Convention adopted a Bill of Rights in the 1935
Constitution, they purposely retained the phraseology of the religion clauses in the First Amendment
as contained in the Jones Law in order to adopt its historical background, nature, extent and
limitations. At that time, there were not too many religion clause cases in the United States as the
U.S. Supreme Court decided an Establishment Clause issue only in the 1947 Everson case. The
Free Exercise Clause cases were also scarce then. Over the years, however, with the expanding
reach of government regulation to a whole gamut of human actions and the growing plurality and
activities of religions, the number of religion clause cases in the U.S. exponentially increased. With
this increase came an expansion of the interpretation of the religion clauses, at times reinforcing
prevailing case law, at other times modifying it, and still at other times creating contradictions so that
two main streams of jurisprudence had become identifiable. The first stream employs separation
while the second employs benevolent neutrality in interpreting the religious clauses. Alongside this
change in the landscape of U.S. religion clause jurisprudence, the Philippines continued to adopt the
1935 Constitution religion clauses in the 1973 Constitution and later, the 1987 Constitution.
Philippine jurisprudence and commentaries on the religious clauses also continued to borrow
authorities from U.S. jurisprudence without articulating the stark distinction between the two streams
of U.S. jurisprudence. One might simply conclude that the Philippine Constitutions and jurisprudence
also inherited the disarray of U.S. religion clause jurisprudence and the two identifiable streams;
thus, when a religion clause case comes before the Court, a separationist approach or a benevolent
neutrality approach might be adopted and each will have U.S. authorities to support it. Or, one might
conclude that as the history of the First Amendment as narrated by the Court in Everson supports
the separationist approach, Philippine jurisprudence should also follow this approach in light of the
Philippine religion clauses' history. As a result, in a case where the party claims religious liberty in
the face of a general law that inadvertently burdens his religious exercise, he faces an almost
insurmountable wall in convincing the Court that the wall of separation would not be breached if the
Court grants him an exemption. These conclusions, however, are not and were never warranted by
the 1987, 1973 and 1935 Constitutions as shown by other provisions on religion in all three
constitutions. It is a cardinal rule in constitutional construction that the constitution must be
interpreted as a whole and apparently conflicting provisions should be reconciled and harmonized in
a manner that will give to all of them full force and effect.377 From this construction, it will be
ascertained that the intent of the framers was to adopt a benevolent neutrality approach in
interpreting the religious clauses in the Philippine constitutions, and the enforcement of this intent is
the goal of construing the constitution.378

We first apply the hermeneutical scalpel to dissect the 1935 Constitution. At the same time that the
1935 Constitution provided for an Establishment Clause, it also provided for tax exemption of church
property in Article VI, Section 22, par. 3(b), viz:

(3) Cemeteries, churches, and parsonages or convents, appurtenant thereto, and all lands,
buildings, and improvements used exclusively for religious, charitable, or educational
purposes shall be exempt from taxation.

Before the advent of the 1935 Constitution, Section 344 of the Administrative Code provided for a
similar exemption. To the same effect, the Tydings-McDuffie Law contained a limitation on the taxing
power of the Philippine government during the Commonwealth period.379 The original draft of the
Constitution placed this provision in an ordinance to be appended to the Constitution because this
was among the provisions prescribed by the Tydings-McDuffie Law. However, in order to have a
constitutional guarantee for such an exemption even beyond the Commonwealth period, the
provision was introduced in the body of the Constitution on the rationale that "if churches, convents
[rectories or parsonages] and their accessories are always necessary for facilitating the exercise of
such [religious] freedom, it would also be natural that their existence be also guaranteed by
exempting them from taxation."380 The amendment was readily approved with 83 affirmative votes
against 15 negative votes.381

The Philippine constitutional provision on tax exemption is not found in the U.S. Constitution. In the
U.S. case of Walz, the Court struggled to justify this kind of exemption to withstand Establishment
Clause scrutiny by stating that church property was not singled out but was exempt along with
property owned by non-profit, quasi-public corporations because the state upheld the secular policy
"that considers these groups as beneficial and stabilizing influences in community life and finds this
classification useful, desirable, and in the public interest." The Court also stated that the exemption
was meant to relieve the burden on free exercise imposed by property taxation. At the same time,
however, the Court acknowledged that the exemption was an exercise of benevolent neutrality to
accommodate a long-standing tradition of exemption. With the inclusion of the church property tax
exemption in the body of the 1935 Constitution and not merely as an ordinance appended to the
Constitution, the benevolent neutrality referred to in the Walz case was given constitutional
imprimatur under the regime of the 1935 Constitution. The provision, as stated in the deliberations,
was an acknowledgment of the necessity of the exempt institutions to the exercise of religious
liberty, thereby evincing benevolence towards religious exercise.

Similarly, the 1935 Constitution provides in Article VI, Section 23(3), viz:

(3) No public money, or property shall ever be appropriated, applied, or used, directly or
indirectly, for the use, benefit, or support of any sect, church, denomination, sectarian
institution or system of religion, for the use, benefit or support of any priest, preacher,
ministers or other religious teacher or dignitary as such, except when such priest, preacher,
minister, or dignitary is assigned to the armed forces or to any penal institution, orphanage,
or leprosarium. (emphasis supplied)

The original draft of this provision was a reproduction of a portion of section 3 of the Jones Law
which did not contain the above exception, viz:

No public money or property shall ever be appropriated, applied, or used, directly or

indirectly, for the use, benefit, or support of any sect, church denomination, sectarian
institution, or system of religion, or for the use, benefit or support of any priest, preacher,
minister, or dignitary as such…382

In the deliberations of this draft provision, an amendment was proposed to strike down everything
after "church denomination."383 The proposal intended to imitate the silence of the U.S. Constitution
on the subject of support for priests and ministers. It was also an imitation of the silence of the
Malolos Constitution to restore the situation under the Malolos Constitution and prior to the Jones
Law, when chaplains of the revolutionary army received pay from public funds with no doubt about
its legality. It was pointed out, however, that even with the prohibition under the Jones Law,
appropriations were made to chaplains of the national penitentiary and the Auditor General upheld
its validity on the basis of a similar United States practice. But it was also pointed out that the U.S.
Constitution did not contain a prohibition on appropriations similar to the Jones Law.384 To settle the
question on the constitutionality of payment of salaries of religious officers in certain government
institutions and to avoid the feared situation where the enumerated government institutions could not
employ religious officials with compensation, the exception in the 1935 provision was introduced and
approved. The provision garnered 74 affirmative votes against 34 negative votes.385 As pointed out in
the deliberations, the U.S. Constitution does not provide for this exemption. However, the U.S.
Supreme Court in Cruz v. Beto, apparently taking a benevolent neutrality approach, implicitly
approved the state of Texas' payment of prison chaplains' salaries as reasonably necessary to
permit inmates to practice their religion. Also, in the Marsh case, the U.S. Supreme Court upheld the
long-standing tradition of beginning legislative sessions with prayers offered by legislative chaplains
retained at taxpayers' expense. The constitutional provision exempting religious officers in
government institutions affirms the departure of the Philippine Constitution from the U.S. Constitution
in its adoption of benevolent neutrality in Philippine jurisdiction. While the provision prohibiting aid to
religion protects the wall of separation between church and state, the provision at the same time
gives constitutional sanction to a breach in the wall.

To further buttress the thesis that benevolent neutrality is contemplated in the Philippine
Establishment Clause, the 1935 Constitution provides for optional religious instruction in public
schools in Article XIII, Section 5, viz:
 . . . Optional religious instruction shall be maintained in the public schools as now authorized
by law. . .

The law then applicable was Section 928 of the Administrative Code, viz:

It shall be lawful, however, for the priest or minister of any church established in the town
where a public school is situated, either in person or by a designated teacher of religion, to
teach religion for one-half hour three times a week, in the school building, to those public-
school pupils whose parents or guardians desire it and express their desire therefor in writing
filed with the principal of the school . . .

During the debates of the Constitutional Convention, there were three positions on the issue of
religious instruction in public schools. The first held that the teaching of religion in public schools
should be prohibited as this was a violation of the principle of separation of church and state and the
prohibition against the use of public funds for religious purposes. The second favored the proposed
optional religious instruction as authorized by the Administrative Code and recognized that the actual
practice of allowing religious instruction in the public schools was sufficient proof that religious
instruction was not and would not be a source of religious discord in the schools.386 The third wanted
religion to be included as a course in the curriculum of the public schools but would only be taken by
pupils at the option of their parents or guardians. After several rounds of debate, the second camp
prevailed, thus raising to constitutional stature the optional teaching of religion in public schools,
despite the opposition to the provision on the ground of separation of church and state.387 As in the
provisions on church property tax exemption and compensation of religious officers in government
institutions, the U.S. Constitution does not provide for optional religious instruction in public schools.
In fact, in the McCollum case, the Court, using strict neutrality, prohibited this kind of religious
instruction where the religion teachers would conduct class within the school premises. The
constitutional provision on optional religious instruction shows that Philippine jurisdiction rejects the
strict neutrality approach which does not allow such accommodation of religion.

Finally, to make certain the Constitution's benevolence to religion, the Filipino people "implored (ing)
the aid of Divine Providence (,) in order to establish a government that shall embody their ideals,
conserve and develop the patrimony of the nation, promote the general welfare, and secure to
themselves and their posterity the blessings of independence under a regime of justice, liberty, and
democracy, (in) ordain(ing) and promulgat(ing) this Constitution." A preamble is a "key to open the
mind of the authors of the constitution as to the evil sought to be prevented and the objects sought to
be accomplished by the provisions thereof."388 There was no debate on the inclusion of a "Divine
Providence" in the preamble. In Aglipay, Justice Laurel noted that when the Filipino people implored
the aid of Divine Providence, "(t)hey thereby manifested their intense religious nature and placed
unfaltering reliance upon Him who guides the destinies of men and nations."389 The 1935
Constitution's religion clauses, understood alongside the other provisions on religion in the
Constitution, indubitably shows not hostility, but benevolence, to religion.390

The 1973 Constitution contained in Article VI, Section 22(3) a provision similar to Article VI, Section
22, par. 3(b) of the 1935 Constitution on exemption of church property from taxation, with the
modification that the property should not only be used directly, but also actually and exclusively for
religious or charitable purposes. Parallel to Article VI, Section 23(3) of the 1935 Constitution, the
1973 Constitution also contained a similar provision on salaries of religious officials employed in the
enumerated government institutions. Article XIII, Section 5 of the 1935 Constitution on optional
religious instruction was also carried to the 1973 Constitution in Article XV, Section 8(8) with the
modification that optional religious instruction shall be conducted "as may be provided by law" and
not "as now authorized by law" as stated in the 1935 Constitution. The 1973 counterpart, however,
made explicit in the constitution that the religious instruction in public elementary and high schools
shall be done "(a)t the option expressed in writing by the parents or guardians, and without cost to
them and the government." With the adoption of these provisions in the 1973 Constitution, the
benevolent neutrality approach continued to enjoy constitutional sanction. In Article XV, Section 15
of the General Provisions of the 1973 Constitution this provision made its maiden appearance: "(t)he
separation of church and state shall be inviolable." The 1973 Constitution retained the portion of the
preamble "imploring the aid of Divine Providence."

In the Report of the Ad Hoc Sub-Committee on Goals, Principles and Problems of the Committee on
Church and State of the 1971 Constitutional Convention, the question arose as to whether the
"absolute" separation of Church and State as enunciated in the Everson case and reiterated in
Schempp - i.e., neutrality not only as between one religion and another but even as between religion
and non-religion - is embodied in the Philippine Constitution. The sub-committee's answer was that it
did not seem so. Citing the Aglipay case where Justice Laurel recognized the "elevating influence of
religion in human society" and the Filipinos' imploring of Divine Providence in the 1935 Constitution,
the sub-committee asserted that the state may not prefer or aid one religion over another, but may
aid all religions equally or the cause of religion in general.391 Among the position papers submitted to
the Committee on Church on State was a background paper for reconsideration of the religion
provisions of the constitution by Fr. Bernas, S.J. He stated therein that the Philippine Constitution is
not hostile to religion and in fact recognizes the value of religion and accommodates religious
values.392 Stated otherwise, the Establishment Clause contemplates not a strict neutrality but
benevolent neutrality. While the Committee introduced the provision on separation of church and
state in the General Provisions of the 1973 Constitution, this was nothing new as according to it, this
principle was implied in the 1935 Constitution even in the absence of a similar provision.393

Then came the 1987 Constitution. The 1973 Constitutional provision on tax exemption of church
property was retained with minor modification in Article VI, Section 28(3) of the 1987 Constitution.
The same is true with respect to the prohibition on the use of public money and property for religious
purposes and the salaries of religious officers serving in the enumerated government institutions,
now contained in Article VI, Section 29(2). Commissioner Bacani, however, probed into the
possibility of allowing the government to spend public money for purposes which might have
religious connections but which would benefit the public generally. Citing the Aglipay case,
Commissioner Rodrigo explained that if a public expenditure would benefit the government directly,
such expense would be constitutional even if it results to an incidental benefit to religion. With that
explanation, Commissioner Bacani no longer pursued his proposal.394

The provision on optional religious instruction was also adopted in the 1987 Constitution in Article
XIV, Section 3(3) with the modification that it was expressly provided that optional instruction shall
be conducted "within the regular class hours" and "without additional cost to the government". There
were protracted debates on what additional cost meant, i.e., cost over and above what is needed for
normal operations such as wear and tear, electricity, janitorial services,395 and when during the day
instruction would be conducted.396 In deliberating on the phrase "within the regular class hours,"
Commissioner Aquino expressed her reservations to this proposal as this would violate the time-
honored principle of separation of church and state. She cited the McCullom case where religious
instruction during regular school hours was stricken down as unconstitutional and also cited what
she considered the most liberal interpretation of separation of church and state in Surach v. Clauson
where the U.S. Supreme Court allowed only release time for religious instruction. Fr. Bernas
replied, viz:

. . . the whole purpose of the provision was to provide for an exception to the rule on non-
establishment of religion, because if it were not necessary to make this exception for
purposes of allowing religious instruction, then we could just drop the amendment. But, as a
matter of fact, this is necessary because we are trying to introduce something here which is
contrary to American practices.397 (emphasis supplied)
"(W)ithin regular class hours" was approved.

he provision on the separation of church and state was retained but placed under the Principles in
the Declaration of Principles and State Policies in Article II, Section 6. In opting to retain the wording
of the provision, Fr. Bernas stated, viz:

. . . It is true, I maintain, that as a legal statement the sentence 'The separation of Church
and State is inviolable,' is almost a useless statement; but at the same time it is a harmless
statement. Hence, I am willing to tolerate it there, because, in the end, if we look at the
jurisprudence on Church and State, arguments are based not on the statement of separation
of church and state but on the non-establishment clause in the Bill of Rights.398

The preamble changed "Divine Providence" in the 1935 and 1973 Constitutions to "Almighty God."
There was considerable debate on whether to use "Almighty God" which Commissioner Bacani said
was more reflective of Filipino religiosity, but Commissioner Rodrigo recalled that a number of
atheistic delegates in the 1971 Constitutional Convention objected to reference to a personal
God.399 "God of History", "Lord of History" and "God" were also proposed, but the phrase "Almighty
God" prevailed. Similar to the 1935 and 1971 Constitutions, it is obvious that the 1987 Constitution is
not hostile nor indifferent to religion;400 its wall of separation is not a wall of hostility or indifference.401

The provisions of the 1935, 1973 and 1987 constitutions on tax exemption of church property, salary
of religious officers in government institutions, optional religious instruction and the preamble all
reveal without doubt that the Filipino people, in adopting these constitutions, did not intend to erect a
high and impregnable wall of separation between the church and state.402 The strict neutrality
approach which examines only whether government action is for a secular purpose and does not
consider inadvertent burden on religious exercise protects such a rigid barrier. By adopting the
above constitutional provisions on religion, the Filipinos manifested their adherence to the
benevolent neutrality approach in interpreting the religion clauses, an approach that looks further
than the secular purposes of government action and examines the effect of these actions on
religious exercise. Benevolent neutrality recognizes the religious nature of the Filipino people and
the elevating influence of religion in society; at the same time, it acknowledges that government
must pursue its secular goals. In pursuing these goals, however, government might adopt laws or
actions of general applicability which inadvertently burden religious exercise. Benevolent neutrality
gives room for accommodation of these religious exercises as required by the Free Exercise Clause.
It allows these breaches in the wall of separation to uphold religious liberty, which after all is the
integral purpose of the religion clauses. The case at bar involves this first type of accommodation
where an exemption is sought from a law of general applicability that inadvertently burdens religious
exercise.

Although our constitutional history and interpretation mandate benevolent neutrality, benevolent
neutrality does not mean that the Court ought to grant exemptions every time a free exercise claim
comes before it. But it does mean that the Court will not look with hostility or act indifferently towards
religious beliefs and practices and that it will strive to accommodate them when it can within flexible
constitutional limits; it does mean that the Court will not simply dismiss a claim under the Free
Exercise Clause because the conduct in question offends a law or the orthodox view for this
precisely is the protection afforded by the religion clauses of the Constitution, i.e., that in the
absence of legislation granting exemption from a law of general applicability, the Court can carve out
an exception when the religion clauses justify it. While the Court cannot adopt a doctrinal formulation
that can eliminate the difficult questions of judgment in determining the degree of burden on religious
practice or importance of the state interest or the sufficiency of the means adopted by the state to
pursue its interest, the Court can set a doctrine on the ideal towards which religious clause
jurisprudence should be directed.403 We here lay down the doctrine that in Philippine jurisdiction, we
adopt the benevolent neutrality approach not only because of its merits as discussed above, but
more importantly, because our constitutional history and interpretation indubitably show that
benevolent neutrality is the launching pad from which the Court should take off in interpreting religion
clause cases. The ideal towards which this approach is directed is the protection of religious liberty
"not only for a minority, however small- not only for a majority, however large- but for each of us" to
the greatest extent possible within flexible constitutional limits.

Benevolent neutrality is manifest not only in the Constitution but has also been recognized in
Philippine jurisprudence, albeit not expressly called "benevolent neutrality" or "accommodation". In
Aglipay, the Court not only stressed the "elevating influence of religion in human society" but
acknowledged the Constitutional provisions on exemption from tax of church property, salary of
religious officers in government institutions, and optional religious instruction as well as the
provisions of the Administrative Code making Thursday and Friday of the Holy Week, Christmas Day
and Sundays legal holidays. In Garces, the Court not only recognized the Constitutional provisions
indiscriminately granting concessions to religious sects and denominations, but also acknowledged
that government participation in long-standing traditions which have acquired a social character -
"the barrio fiesta is a socio-religious affair" - does not offend the Establishment Clause. In Victoriano,
the Court upheld the exemption from closed shop provisions of members of religious sects who
prohibited their members from joining unions upon the justification that the exemption was not a
violation of the Establishment Clause but was only meant to relieve the burden on free exercise of
religion. In Ebralinag, members of the Jehovah's Witnesses were exempt from saluting the flag as
required by law, on the basis not of a statute granting exemption but of the Free Exercise Clause
without offending the Establishment Clause.

While the U.S. and Philippine religion clauses are similar in form and origin, Philippine constitutional
law has departed from the U.S. jurisprudence of employing a separationist or strict neutrality
approach. The Philippine religion clauses have taken a life of their own, breathing the air of
benevolent neutrality and accommodation. Thus, the wall of separation in Philippine jurisdiction is
not as high and impregnable as the wall created by the U.S. Supreme Court in Everson.404 While the
religion clauses are a unique American experiment which understandably came about as a result of
America's English background and colonization, the life that these clauses have taken in this
jurisdiction is the Philippines' own experiment, reflective of the Filipinos' own national soul, history
and tradition. After all, "the life of the law. . . has been experience."

But while history, constitutional construction, and earlier jurisprudence unmistakably show that
benevolent neutrality is the lens with which the Court ought to view religion clause cases, it must be
stressed that the interest of the state should also be afforded utmost protection. To do this, a test
must be applied to draw the line between permissible and forbidden religious exercise. It is quite
paradoxical that in order for the members of a society to exercise their freedoms, including their
religious liberty, the law must set a limit when their exercise offends the higher interest of the state.
To do otherwise is self-defeating for unlimited freedom would erode order in the state and foment
anarchy, eventually destroying the very state its members established to protect their freedoms. The
very purpose of the social contract by which people establish the state is for the state to protect their
liberties; for this purpose, they give up a portion of these freedoms - including the natural right to free
exercise - to the state. It was certainly not the intention of the authors of the constitution that free
exercise could be used to countenance actions that would undo the constitutional order that
guarantees free exercise.405

The all important question then is the test that should be used in ascertaining the limits of the
exercise of religious freedom. Philippine jurisprudence articulates several tests to determine these
limits. Beginning with the first case on the Free Exercise Clause, American Bible Society, the Court
mentioned the "clear and present danger" test but did not employ it. Nevertheless, this test continued
to be cited in subsequent cases on religious liberty. The Gerona case then pronounced that the test
of permissibility of religious freedom is whether it violates the established institutions of society and
law. The Victoriano case mentioned the "immediate and grave danger" test as well as the doctrine
that a law of general applicability may burden religious exercise provided the law is the least
restrictive means to accomplish the goal of the law. The case also used, albeit inappropriately, the
"compelling state interest" test. After Victoriano, German went back to the Gerona rule. Ebralinag
then employed the "grave and immediate danger" test and overruled the Gerona test. The fairly
recent case of Iglesia ni Cristo went back to the "clear and present danger" test in the maiden case
of American Bible Society. Not surprisingly, all the cases which employed the "clear and present
danger" or "grave and immediate danger" test involved, in one form or another, religious speech as
this test is often used in cases on freedom of expression. On the other hand, the Gerona and
German cases set the rule that religious freedom will not prevail over established institutions of
society and law. Gerona, however, which was the authority cited by German has been overruled by
Ebralinag which employed the "grave and immediate danger" test. Victoriano was the only case that
employed the "compelling state interest" test, but as explained previously, the use of the test was
inappropriate to the facts of the case.

The case at bar does not involve speech as in American Bible Society, Ebralinag and Iglesia ni
Cristo where the "clear and present danger" and "grave and immediate danger" tests were
appropriate as speech has easily discernible or immediate effects. The Gerona and German
doctrine, aside from having been overruled, is not congruent with the benevolent neutrality
approach, thus not appropriate in this jurisdiction. Similar to Victoriano, the present case involves
purely conduct arising from religious belief. The "compelling state interest" test is proper where
conduct is involved for the whole gamut of human conduct has different effects on the state's
interests: some effects may be immediate and short-term while others delayed and far-reaching. A
test that would protect the interests of the state in preventing a substantive evil, whether immediate
or delayed, is therefore necessary. However, not any interest of the state would suffice to prevail
over the right to religious freedom as this is a fundamental right that enjoys a preferred position in
the hierarchy of rights - "the most inalienable and sacred of all human rights", in the words of
Jefferson.406 This right is sacred for an invocation of the Free Exercise Clause is an appeal to a
higher sovereignty. The entire constitutional order of limited government is premised upon an
acknowledgment of such higher sovereignty,407 thus the Filipinos implore the "aid of Almighty God in
order to build a just and humane society and establish a government." As held in Sherbert, only the
gravest abuses, endangering paramount interests can limit this fundamental right. A mere balancing
of interests which balances a right with just a colorable state interest is therefore not appropriate.
Instead, only a compelling interest of the state can prevail over the fundamental right to religious
liberty. The test requires the state to carry a heavy burden, a compelling one, for to do otherwise
would allow the state to batter religion, especially the less powerful ones until they are
destroyed.408 In determining which shall prevail between the state's interest and religious liberty,
reasonableness shall be the guide.409 The "compelling state interest" serves the purpose of revering
religious liberty while at the same time affording protection to the paramount interests of the state.
This was the test used in Sherbert which involved conduct, i.e. refusal to work on Saturdays. In the
end, the "compelling state interest" test, by upholding the paramount interests of the state, seeks to
protect the very state, without which, religious liberty will not be preserved.

X. Application of the Religion Clauses to the Case at Bar

A. The Religion Clauses and Morality

In a catena of cases, the Court has ruled that government employees engaged in illicit relations are
guilty of "disgraceful and immoral conduct" for which he/she may be held administratively liable.410 In
these cases, there was not one dissent to the majority's ruling that their conduct was immoral. The
respondents themselves did not foist the defense that their conduct was not immoral, but instead
sought to prove that they did not commit the alleged act or have abated from committing the act. The
facts of the 1975 case of De Dios v. Alejo411 and the 1999 case of Maguad v. De Guzman,412 are
similar to the case at bar - i.e., the complainant is a mere stranger and the legal wife has not
registered any objection to the illicit relation, there is no proof of scandal or offense to the moral
sensibilities of the community in which the respondent and the partner live and work, and the
government employee is capacitated to marry while the partner is not capacitated but has long been
separated in fact. Still, the Court found the government employees administratively liable for
"disgraceful and immoral conduct" and only considered the foregoing circumstances to mitigate the
penalty. Respondent Escritor does not claim that there is error in the settled jurisprudence that an
illicit relation constitutes disgraceful and immoral conduct for which a government employee is held
liable. Nor is there an allegation that the norms of morality with respect to illicit relations have shifted
towards leniency from the time these precedent cases were decided. The Court finds that there is no
such error or shift, thus we find no reason to deviate from these rulings that such illicit relationship
constitutes "disgraceful and immoral conduct" punishable under the Civil Service Law. Respondent
having admitted the alleged immoral conduct, she, like the respondents in the above-cited cases,
could be held administratively liable. However, there is a distinguishing factor that sets the case at
bar apart from the cited precedents, i.e., as a defense, respondent invokes religious freedom since
her religion, the Jehovah's Witnesses, has, after thorough investigation, allowed her conjugal
arrangement with Quilapio based on the church's religious beliefs and practices. This distinguishing
factor compels the Court to apply the religious clauses to the case at bar.

Without holding that religious freedom is not in issue in the case at bar, both the dissenting opinion
of Mme. Justice Ynares-Santiago and the separate opinion of Mr. Justice Vitug dwell more on the
standards of morality than on the religion clauses in deciding the instant case. A discussion on
morality is in order.

At base, morality refers to, in Socrates' words, "how we ought to live" and why. Any definition of
morality beyond Socrates' simple formulation is bound to offend one or another of the many rival
theories regarding what it means to live morally.413 The answer to the question of how we ought to
live necessarily considers that man does not live in isolation, but in society. Devlin posits that a
society is held together by a community of ideas, made up not only of political ideas but also of ideas
about the manner its members should behave and govern their lives. The latter are their morals;
they constitute the public morality. Each member of society has ideas about what is good and what
is evil. If people try to create a society wherein there is no fundamental agreement about good and
evil, they will fail; if having established the society on common agreement, the agreement collapses,
the society will disintegrate. Society is kept together by the invisible bonds of common thought so
that if the bonds are too loose, the members would drift apart. A common morality is part of the
bondage and the bondage is part of the price of society; and mankind, which needs society, must
pay its price.414 This design is parallel with the social contract in the realm of politics: people give up
a portion of their liberties to the state to allow the state to protect their liberties. In a constitutional
order, people make a fundamental agreement about the powers of government and their liberties
and embody this agreement in a constitution, hence referred to as the fundamental law of the land. A
complete break of this fundamental agreement such as by revolution destroys the old order and
creates a new one.415 Similarly, in the realm of morality, the breakdown of the fundamental
agreement about the manner a society's members should behave and govern their lives would
disintegrate society. Thus, society is justified in taking steps to preserve its moral code by law as it
does to preserve its government and other essential institutions.416 From these propositions of
Devlin, one cannot conclude that Devlin negates diversity in society for he is merely saying that in
the midst of this diversity, there should nevertheless be a "fundamental agreement about good and
evil" that will govern how people in a society ought to live. His propositions, in fact, presuppose
diversity hence the need to come to an agreement; his position also allows for change of morality
from time to time which may be brought about by this diversity. In the same vein, a pluralistic society
lays down fundamental rights and principles in their constitution in establishing and maintaining their
society, and these fundamental values and principles are translated into legislation that governs the
order of society, laws that may be amended from time to time. Hart's argument propounded in Mr.
Justice Vitug's separate opinion that, "Devlin's view of people living in a single society as having
common moral foundation (is) overly simplistic" because "societies have always been diverse" fails
to recognize the necessity of Devlin's proposition in a democracy. Without fundamental agreement
on political and moral ideas, society will fall into anarchy; the agreement is necessary to the
existence and progress of society.

In a democracy, this common agreement on political and moral ideas is distilled in the public square.
Where citizens are free, every opinion, every prejudice, every aspiration, and every moral
discernment has access to the public square where people deliberate the order of their life together.
Citizens are the bearers of opinion, including opinion shaped by, or espousing religious belief, and
these citizens have equal access to the public square. In this representative democracy, the state is
prohibited from determining which convictions and moral judgments may be proposed for public
deliberation. Through a constitutionally designed process, the people deliberate and decide. Majority
rule is a necessary principle in this democratic governance.417 Thus, when public deliberation on
moral judgments is finally crystallized into law, the laws will largely reflect the beliefs and
preferences of the majority, i.e., the mainstream or median groups.418 Nevertheless, in the very act of
adopting and accepting a constitution and the limits it specifies -- including protection of religious
freedom "not only for a minority, however small- not only for a majority, however large- but for each
of us" -- the majority imposes upon itself a self-denying ordinance. It promises not to do what it
otherwise could do: to ride roughshod over the dissenting minorities.419 In the realm of religious
exercise, benevolent neutrality that gives room for accommodation carries out this promise, provided
the compelling interests of the state are not eroded for the preservation of the state is necessary to
the preservation of religious liberty. That is why benevolent neutrality is necessary in a pluralistic
society such as the United States and the Philippines to accommodate those minority religions which
are politically powerless. It is not surprising that Smith is much criticized for it blocks the judicial
recourse of the minority for religious accommodations.

The laws enacted become expressions of public morality. As Justice Holmes put it, "(t)he law is the
witness and deposit of our moral life."420 "In a liberal democracy, the law reflects social morality over
a period of time."421Occasionally though, a disproportionate political influence might cause a law to
be enacted at odds with public morality or legislature might fail to repeal laws embodying outdated
traditional moral views.422 Law has also been defined as "something men create in their best
moments to protect themselves in their worst moments."423 Even then, laws are subject to
amendment or repeal just as judicial pronouncements are subject to modification and reversal to
better reflect the public morals of a society at a given time. After all, "the life of the law...has been
experience," in the words of Justice Holmes. This is not to say though that law is all of morality. Law
deals with the minimum standards of human conduct while morality is concerned with the maximum.
A person who regulates his conduct with the sole object of avoiding punishment under the law does
not meet the higher moral standards set by society for him to be called a morally upright
person.424 Law also serves as "a helpful starting point for thinking about a proper or ideal public
morality for a society"425 in pursuit of moral progress.

In Magno v. Court of Appeals, et al.,426 we articulated the relationship between law and public
morality. We held that under the utilitarian theory, the "protective theory" in criminal law, "criminal law
is founded upon the moral disapprobation x x x of actions which are immoral, i.e., which are
detrimental (or dangerous) to those conditions upon which depend the existence and progress of
human society. This disapprobation is inevitable to the extent that morality is generally founded and
built upon a certain concurrence in the moral opinions of all. x x x That which we call punishment is
only an external means of emphasizing moral disapprobation: the method of punishment is in reality
the amount of punishment."427 Stated otherwise, there are certain standards of behavior or moral
principles which society requires to be observed and these form the bases of criminal law. Their
breach is an offense not only against the person injured but against society as a whole.428 Thus,
even if all involved in the misdeed are consenting parties, such as in the case at bar, the injury done
is to the public morals and the public interest in the moral order.429 Mr. Justice Vitug expresses
concern on this point in his separate opinion. He observes that certain immoral acts which appear
private and not harmful to society such as sexual congress "between a man and a prostitute, though
consensual and private, and with no injured third party, remains illegal in this country." His opinion
asks whether these laws on private morality are justified or they constitute impingement on one's
freedom of belief. Discussion on private morality, however, is not material to the case at bar for
whether respondent's conduct, which constitutes concubinage,430 is private in the sense that there is
no injured party or the offended spouse consents to the concubinage, the inescapable fact is that the
legislature has taken concubinage out of the sphere of private morals. The legislature included
concubinage as a crime under the Revised Penal Code and the constitutionality of this law is not
being raised in the case at bar. In the definition of the crime of concubinage, consent of the injured
party, i.e., the legal spouse, does not alter or negate the crime unlike in rape431 where consent of the
supposed victim negates the crime. If at all, the consent or pardon of the offended spouse in
concubinage negates the prosecution of the action,432 but does not alter the legislature's
characterization of the act as a moral disapprobation punishable by law. The separate opinion states
that, "(t)he ponencia has taken pains to distinguish between secular and private morality, and
reached the conclusion that the law, as an instrument of the secular State should only concern itself
with secular morality." The Court does not draw this distinction in the case at bar. The distinction
relevant to the case is not, as averred and discussed by the separate opinion, "between secular and
private morality," but between public and secular morality on the one hand, and religious morality on
the other, which will be subsequently discussed.

Not every moral wrong is foreseen and punished by law, criminal or otherwise. We recognized this
reality in Velayo, et al. v. Shell Co. of the Philippine Islands, et al., where we explained that for those
wrongs which are not punishable by law, Articles 19 and 21 in Chapter 2 of the Preliminary Title of
the New Civil Code, dealing with Human Relations, provide for the recognition of the wrong and the
concomitant punishment in the form of damages. Articles 19 and 21 provide, viz:

Art. 19. Any person must, in the exercise of his rights and in the performance of his duties,
act with justice, give everyone his due and observe honesty and good faith.

xxx xxx xxx

Art. 21. Any person who willfully causes loss or injury to another in a manner that is contrary
to morals, good customs or public policy shall compensate the latter for the damage.
(emphasis supplied)

We then cited in Velayo the Code Commission's comment on Article 21:

Thus at one stroke, the legislator, if the foregoing rule is approved (as it was approved),
would vouchsafe adequate legal remedy for that untold numbers of moral wrongs which is
impossible for human foresight to provide for specifically in the statutes.

But, it may be asked, would this proposed article obliterate the boundary line between
morality and law? The answer is that, in the last analysis, every good law draws its breath of
life from morals, from those principles which are written with words of fire in the conscience
of man. If this premise is admitted, then the proposed rule is a prudent earnest of justice in
the face of the impossibility of enumerating, one by one, all wrongs which cause damages.
When it is reflected that while codes of law and statutes have changed from age to age, the
conscience of man has remained fixed to its ancient moorings, one can not but feel that it is
 safe and salutary to transmute, as far as may be, moral norms into legal rules, thus imparting
to every legal system that enduring quality which ought to be one of its superlative attributes.

Furthermore, there is no belief of more baneful consequence upon the social order than that
a person may with impunity cause damage to his fellow-men so long as he does not break
any law of the State, though he may be defying the most sacred postulates of morality. What
is more, the victim loses faith in the ability of the government to afford him protection or relief.

A provision similar to the one under consideration is embodied in article 826 of the German
Civil Code.433(emphases supplied)

The public morality expressed in the law is necessarily secular for in our constitutional order, the
religion clauses prohibit the state from establishing a religion, including the morality it sanctions.
Religious morality proceeds from a person's "views of his relations to His Creator and to the
obligations they impose of reverence to His being and character and obedience to His Will," in
accordance with this Court's definition of religion in American Bible Society citing Davis. Religion
also dictates "how we ought to live" for the nature of religion is not just to know, but often, to act in
accordance with man's "views of his relations to His Creator."434 But the Establishment Clause puts a
negative bar against establishment of this morality arising from one religion or the other, and implies
the affirmative "establishment" of a civil order for the resolution of public moral disputes. This
agreement on a secular mechanism is the price of ending the "war of all sects against all"; the
establishment of a secular public moral order is the social contract produced by religious truce.435

Thus, when the law speaks of "immorality" in the Civil Service Law or "immoral" in the Code of
Professional Responsibility for lawyers436, or "public morals" in the Revised Penal Code,437 or
"morals" in the New Civil Code,438 or "moral character" in the Constitution,439 the distinction between
public and secular morality on the one hand, and religious morality, on the other, should be kept in
mind.440 The morality referred to in the law is public and necessarily secular, not religious as the
dissent of Mr. Justice Carpio holds. "Religious teachings as expressed in public debate may
influence the civil public order but public moral disputes may be resolved only on grounds articulable
in secular terms."441 Otherwise, if government relies upon religious beliefs in formulating public
policies and morals, the resulting policies and morals would require conformity to what some might
regard as religious programs or agenda. The non-believers would therefore be compelled to conform
to a standard of conduct buttressed by a religious belief, i.e., to a "compelled religion," anathema to
religious freedom. Likewise, if government based its actions upon religious beliefs, it would tacitly
approve or endorse that belief and thereby also tacitly disapprove contrary religious or non-religious
views that would not support the policy. As a result, government will not provide full religious
freedom for all its citizens, or even make it appear that those whose beliefs are disapproved are
second-class citizens. Expansive religious freedom therefore requires that government be neutral in
matters of religion; governmental reliance upon religious justification is inconsistent with this policy of
neutrality.442

In other words, government action, including its proscription of immorality as expressed in criminal
law like concubinage, must have a secular purpose. That is, the government proscribes this conduct
because it is "detrimental (or dangerous) to those conditions upon which depend the existence and
progress of human society" and not because the conduct is proscribed by the beliefs of one religion
or the other. Although admittedly, moral judgments based on religion might have a compelling
influence on those engaged in public deliberations over what actions would be considered a moral
disapprobation punishable by law. After all, they might also be adherents of a religion and thus have
religious opinions and moral codes with a compelling influence on them; the human mind endeavors
to regulate the temporal and spiritual institutions of society in a uniform manner, harmonizing earth
with heaven.443 Succinctly put, a law could be religious or Kantian or Aquinian or utilitarian in its
deepest roots, but it must have an articulable and discernible secular purpose and justification to
pass scrutiny of the religion clauses. Otherwise, if a law has an apparent secular purpose but upon
closer examination shows a discriminatory and prohibitory religious purpose, the law will be struck
down for being offensive of the religion clauses as in Church of the Lukumi Babalu Aye, Inc. where
the U.S. Supreme Court invalidated an ordinance prohibiting animal sacrifice of the Santeria.
Recognizing the religious nature of the Filipinos and the elevating influence of religion in society,
however, the Philippine constitution's religion clauses prescribe not a strict but a benevolent
neutrality. Benevolent neutrality recognizes that government must pursue its secular goals and
interests but at the same time strives to uphold religious liberty to the greatest extent possible within
flexible constitutional limits. Thus, although the morality contemplated by laws is secular, benevolent
neutrality could allow for accommodation of morality based on religion, provided it does not offend
compelling state interests.

Mr. Justice Vitug's separate opinion embraces the benevolent neutrality approach when it states that
in deciding the case at bar, the approach should consider that, "(a)s a rule . . . moral laws are
justified only to the extent that they directly or indirectly serve to protect the interests of the larger
society. It is only where their rigid application would serve to obliterate the value which society seeks
to uphold, or defeat the purpose for which they are enacted would, a departure be justified." In
religion clause parlance, the separate opinion holds that laws of general applicability governing
morals should have a secular purpose of directly or indirectly protecting the interests of the state. If
the strict application of these laws (which are the Civil Service Law and the laws on marriage) would
erode the secular purposes of the law (which the separate opinion identifies as upholding the
sanctity of marriage and the family), then in a benevolent neutrality framework, an accommodation of
the unconventional religious belief and practice (which the separate opinion holds should be
respected on the ground of freedom of belief) that would promote the very same secular purpose of
upholding the sanctity of marriage and family through the Declaration Pledging Faithfulness that
makes the union binding and honorable before God and men, is required by the Free Exercise
Clause. The separate opinion then makes a preliminary discussion of the values society seeks to
protect in adhering to monogamous marriage, but concludes that these values and the purposes of
the applicable laws should be thoroughly examined and evidence in relation thereto presented in the
OCA. The accommodation approach in the case at bar would also require a similar discussion of
these values and presentation of evidence before the OCA by the state that seeks to protect its
interest on marriage and opposes the accommodation of the unconventional religious belief and
practice regarding marriage.

The distinction between public and secular morality as expressed - albeit not exclusively - in the law,
on the one hand, and religious morality, on the other, is important because the jurisdiction of the
Court extends only to public and secular morality. Whatever pronouncement the Court makes in the
case at bar should be understood only in this realm where it has authority. More concretely, should
the Court declare respondent's conduct as immoral and hold her administratively liable, the Court will
be holding that in the realm of public morality, her conduct is reprehensible or there are state
interests overriding her religious freedom. For as long as her conduct is being judged within this
realm, she will be accountable to the state. But in so ruling, the Court does not and cannot say that
her conduct should be made reprehensible in the realm of her church where it is presently
sanctioned and that she is answerable for her immorality to her Jehovah God nor that other religions
prohibiting her conduct are correct. On the other hand, should the Court declare her conduct
permissible, the Court will be holding that under her unique circumstances, public morality is not
offended or that upholding her religious freedom is an interest higher than upholding public morality
thus her conduct should not be penalized. But the Court is not ruling that the tenets and practice of
her religion are correct nor that other churches which do not allow respondent's conjugal
arrangement should likewise allow such conjugal arrangement or should not find anything immoral
about it and therefore members of these churches are not answerable for immorality to their
Supreme Being. The Court cannot speak more than what it has authority to say. In Ballard, the U.S.
Supreme Court held that courts cannot inquire about the truth of religious beliefs. Similarly, in
Fonacier, this Court declared that matters dealing with "faith, practice, doctrine, form of worship,
ecclesiastical law, custom and rule of a church…are unquestionably ecclesiastical matters which are
outside the province of the civil courts."444 But while the state, including the Court, accords such
deference to religious belief and exercise which enjoy protection under the religious clauses, the
social contract and the constitutional order are designed in such a way that when religious belief
flows into speech and conduct that step out of the religious sphere and overlap with the secular and
public realm, the state has the power to regulate, prohibit and penalize these expressions and
embodiments of belief insofar as they affect the interests of the state. The state's inroad on religion
exercise in excess of this constitutional design is prohibited by the religion clauses; the Old World,
European and American history narrated above bears out the wisdom of this proscription.

Having distinguished between public and secular morality and religious morality, the more difficult
task is determining which immoral acts under this public and secular morality fall under the phrase
"disgraceful and immoral conduct" for which a government employee may be held administratively
liable. The line is not easy to draw for it is like "a line that divides land and sea, a coastline of
irregularities and indentations."445 But the case at bar does not require us to comprehensively
delineate between those immoral acts for which one may be held administratively liable and those to
which administrative liability does not attach. We need not concern ourselves in this case therefore
whether "laziness, gluttony, vanity, selfishness, avarice and cowardice" are immoral acts which
constitute grounds for administrative liability. Nor need we expend too much energy grappling with
the propositions that not all immoral acts are illegal or not all illegal acts are immoral, or different
jurisdictions have different standards of morality as discussed by the dissents and separate opinions,
although these observations and propositions are true and correct. It is certainly a fallacious
argument that because there are exceptions to the general rule that the "law is the witness and
deposit of our moral life," then the rule is not true; in fact, that there are exceptions only affirms the
truth of the rule. Likewise, the observation that morality is relative in different jurisdictions only
affirms the truth that there is morality in a particular jurisdiction; without, however, discounting the
truth that underneath the moral relativism are certain moral absolutes such as respect for life and
truth-telling, without which no society will survive. Only one conduct is in question before this Court,
i.e., the conjugal arrangement of a government employee whose partner is legally married to another
which Philippine law and jurisprudence consider both immoral and illegal. Lest the Court
inappropriately engage in the impossible task of prescribing comprehensively how one ought to live,
the Court must focus its attention upon the sole conduct in question before us.

In interpreting "disgraceful and immoral conduct," the dissenting opinion of Mme. Justice Ynares-
Santiago groped for standards of morality and stated that the "ascertainment of what is moral or
immoral calls for the discovery of contemporary community standards" but did not articulate how
these standards are to be ascertained. Instead, it held that, "(f)or those in the service of the
Government, provisions of law and court precedents . . . have to be considered." It identified the Civil
Service Law and the laws on adultery and concubinage as laws which respondent's conduct has
offended and cited a string of precedents where a government employee was found guilty of
committing a "disgraceful and immoral conduct" for maintaining illicit relations and was thereby
penalized. As stated above, there is no dispute that under settled jurisprudence, respondent's
conduct constitutes "disgraceful and immoral conduct." However, the cases cited by the dissent do
not involve the defense of religious freedom which respondent in the case at bar invokes. Those
cited cases cannot therefore serve as precedents in settling the issue in the case at bar.

Mme. Justice Ynares-Santiago's dissent also cites Cleveland v. United States446 in laying down the
standard of morality, viz: "(w)hether an act is immoral within the meaning of the statute is not to be
determined by respondent's concept of morality. The law provides the standard; the offense is
complete if respondent intended to perform, and did in fact perform, the act which it condemns." The
Mann Act under consideration in the Cleveland case declares as an offense the transportation in
interstate commerce of "any woman or girl for the purpose of prostitution or debauchery, or for any
other immoral purpose."447 The resolution of that case hinged on the interpretation of the phrase
"immoral purpose." The U.S. Supreme Court held that the petitioner Mormons' act of transporting at
least one plural wife whether for the purpose of cohabiting with her, or for the purpose of aiding
another member of their Mormon church in such a project, was covered by the phrase "immoral
purpose." In so ruling, the Court relied on Reynolds which held that the Mormons' practice of
polygamy, in spite of their defense of religious freedom, was "odious among the northern and
western nations of Europe,"448 "a return to barbarism,"449 "contrary to the spirit of Christianity and of
the civilization which Christianity has produced in the Western world,"450 and thus punishable by law.

The Cleveland standard, however, does not throw light to the issue in the case at bar. The
pronouncements of the U.S. Supreme Court that polygamy is intrinsically "odious" or "barbaric" do
not apply in the Philippines where Muslims, by law, are allowed to practice polygamy. Unlike in
Cleveland, there is no jurisprudence in Philippine jurisdiction holding that the defense of religious
freedom of a member of the Jehovah's Witnesses under the same circumstances as respondent will
not prevail over the laws on adultery, concubinage or some other law. We cannot summarily
conclude therefore that her conduct is likewise so "odious" and "barbaric" as to be immoral and
punishable by law.

While positing the view that the resolution of the case at bar lies more on determining the applicable
moral standards and less on religious freedom, Mme. Justice Ynares-Santiago's dissent
nevertheless discussed respondent's plea of religious freedom and disposed of this defense by
stating that "(a) clear and present danger of a substantive evil, destructive to public morals, is a
ground for the reasonable regulation of the free exercise and enjoyment of religious profession.
(American Bible Society v. City of Manila, 101 Phil. 386 [1957]). In addition to the destruction of
public morals, the substantive evil in this case is the tearing down of morality, good order, and
discipline in the judiciary." However, the foregoing discussion has shown that the "clear and present
danger" test that is usually employed in cases involving freedom of expression is not appropriate to
the case at bar which involves purely religious conduct. The dissent also cites Reynolds in
supporting its conclusion that respondent is guilty of "disgraceful and immoral conduct." The
Reynolds ruling, however, was reached with a strict neutrality approach, which is not the approach
contemplated by the Philippine constitution. As discussed above, Philippine jurisdiction adopts
benevolent neutrality in interpreting the religion clauses.

In the same vein, Mr. Justice Carpio's dissent which employs strict neutrality does not reflect the
constitutional intent of employing benevolent neutrality in interpreting the Philippine religion clauses.
His dissent avers that respondent should be held administratively liable not for "disgraceful and
immoral conduct" but "conduct prejudicial to the best interest of the service" as she is a necessary
co-accused of her partner in concubinage. The dissent stresses that being a court employee, her
open violation of the law is prejudicial to the administration of justice. Firstly, the dissent offends due
process as respondent was not given an opportunity to defend herself against the charge of
"conduct prejudicial to the best interest of the service." In addition, there is no evidence of the
alleged prejudice to the best interest of the service. Most importantly, the dissent concludes that
respondent's plea of religious freedom cannot prevail without so much as employing a test that
would balance respondent's religious freedom and the state's interest at stake in the case at bar.
The foregoing discussion on the doctrine of religious freedom, however, shows that with benevolent
neutrality as a framework, the Court cannot simply reject respondent's plea of religious freedom
without even subjecting it to the "compelling state interest" test that would balance her freedom with
the paramount interests of the state. The strict neutrality employed in the cases the dissent cites -
Reynolds, Smith and People v. Bitdu decided before the 1935 Constitution which unmistakably
shows adherence to benevolent neutrality - is not contemplated by our constitution.
Neither is Sulu Islamic Association of Masjid Lambayong v. Judge Nabdar J. Malik 451 cited in Mr.
Justice Carpio's dissent decisive of the immorality issue in the case at bar. In that case, the Court
dismissed the charge of immorality against a Tausug judge for engaging in an adulterous
relationship with another woman with whom he had three children because "it (was) not 'immoral' by
Muslim standards for Judge Malik to marry a second time while his first marriage (existed)." Putting
the quoted portion in its proper context would readily show that the Sulu Islamic case does not
provide a precedent to the case at bar. Immediately prior to the portion quoted by the dissent, the
Court stressed, viz: "(s)ince Art. 180 of P.D. No. 1083, otherwise known as the Code of Muslim
Personal Laws of the Philippines, provides that the penal laws relative to the crime of bigamy 'shall
not apply to a person married x x x under Muslim Law,' it is not 'immoral' by Muslim standards for
Judge Malik to marry a second time while his first marriage exists."452 It was by law, therefore, that
the Muslim conduct in question was classified as an exception to the crime of bigamy and thus an
exception to the general standards of morality. The constitutionality of P.D. No. 1083 when
measured against the Establishment Clause was not raised as an issue in the Sulu Islamic case.
Thus, the Court did not determine whether P.D. No. 1083 suffered from a constitutional infirmity and
instead relied on the provision excepting the challenged Muslim conduct from the crime of bigamy in
holding that the challenged act is not immoral by Muslim standards. In contradistinction, in the case
at bar, there is no similar law which the Court can apply as basis for treating respondent's conduct
as an exception to the prevailing jurisprudence on illicit relations of civil servants. Instead, the Free
Exercise Clause is being invoked to justify exemption.

B. Application of Benevolent Neutrality and the Compelling State Interest Test to the Case at
Bar

The case at bar being one of first impression, we now subject the respondent's claim of religious
freedom to the "compelling state interest" test from a benevolent neutrality stance - i.e. entertaining
the possibility that respondent's claim to religious freedom would warrant carving out an exception
from the Civil Service Law; necessarily, her defense of religious freedom will be unavailing should
the government succeed in demonstrating a more compelling state interest.

In applying the test, the first inquiry is whether respondent's right to religious freedom has been
burdened. There is no doubt that choosing between keeping her employment and abandoning her
religious belief and practice and family on the one hand, and giving up her employment and keeping
her religious practice and family on the other hand, puts a burden on her free exercise of religion. In
Sherbert, the Court found that Sherbert's religious exercise was burdened as the denial of
unemployment benefits "forces her to choose between following the precepts of her religion and
forfeiting benefits, on the one hand, and abandoning one of the precepts of her religion in order to
accept work, on the other hand." The burden on respondent in the case at bar is even greater as the
price she has to pay for her employment is not only her religious precept but also her family which,
by the Declaration Pledging Faithfulness, stands "honorable before God and men."

The second step is to ascertain respondent's sincerity in her religious belief. Respondent appears to
be sincere in her religious belief and practice and is not merely using the "Declaration of Pledging
Faithfulness" to avoid punishment for immorality. She did not secure the Declaration only after
entering the judiciary where the moral standards are strict and defined, much less only after an
administrative case for immorality was filed against her. The Declaration was issued to her by her
congregation after ten years of living together with her partner, Quilapio, and ten years before she
entered the judiciary. Ministers from her congregation testified on the authenticity of the Jehovah's
Witnesses' practice of securing a Declaration and their doctrinal or scriptural basis for such a
practice. As the ministers testified, the Declaration is not whimsically issued to avoid legal
punishment for illicit conduct but to make the "union" of their members under respondent's
circumstances "honorable before God and men." It is also worthy of notice that the Report and
Recommendation of the investigating judge annexed letters453 of the OCA to the respondent
regarding her request to be exempt from attending the flag ceremony after Circular No. 62-2001 was
issued requiring attendance in the flag ceremony. The OCA's letters were not submitted by
respondent as evidence but annexed by the investigating judge in explaining that he was caught in a
dilemma whether to find respondent guilty of immorality because the Court Administrator and Deputy
Court Administrator had different positions regarding respondent's request for exemption from the
flag ceremony on the ground of the Jehovah's Witnesses' contrary belief and practice. Respondent's
request for exemption from the flag ceremony shows her sincerity in practicing the Jehovah's
Witnesses' beliefs and not using them merely to escape punishment. She is a practicing member of
the Jehovah's Witnesses and the Jehovah ministers testified that she is a member in good standing.
Nevertheless, should the government, thru the Solicitor General, want to further question the
respondent's sincerity and the centrality of her practice in her faith, it should be given the opportunity
to do so. The government has not been represented in the case at bar from its incipience until this
point.

In any event, even if the Court deems sufficient respondent's evidence on the sincerity of her
religious belief and its centrality in her faith, the case at bar cannot still be decided using the
"compelling state interest" test. The case at bar is one of first impression, thus the parties were not
aware of the burdens of proof they should discharge in the Court's use of the "compelling state
interest" test. We note that the OCA found respondent's defense of religious freedom unavailing in
the face of the Court's ruling in Dicdican v. Fernan, et al., viz:

It bears emphasis that the image of a court of justice is mirrored in the conduct, official and
otherwise, of the personnel who work thereat, from the judge to the lowest of its personnel.
Court personnel have been enjoined to adhere to the exacting standards of morality and
decency in their professional and private conduct in order to preserve the good name and
integrity of the courts of justice.

It is apparent from the OCA's reliance upon this ruling that the state interest it upholds is the
preservation of the integrity of the judiciary by maintaining among its ranks a high standard of
morality and decency. However, there is nothing in the OCA's memorandum to the Court that
demonstrates how this interest is so compelling that it should override respondent's plea of religious
freedom nor is it shown that the means employed by the government in pursuing its interest is the
least restrictive to respondent's religious exercise.

Indeed, it is inappropriate for the complainant, a private person, to present evidence on the
compelling interest of the state. The burden of evidence should be discharged by the proper agency
of the government which is the Office of the Solicitor General. To properly settle the issue in the
case at bar, the government should be given the opportunity to demonstrate the compelling state
interest it seeks to uphold in opposing the respondent's stance that her conjugal arrangement is not
immoral and punishable as it comes within the scope of free exercise protection. Should the Court
prohibit and punish her conduct where it is protected by the Free Exercise Clause, the Court's action
would be an unconstitutional encroachment of her right to religious freedom.454 We cannot therefore
simply take a passing look at respondent's claim of religious freedom, but must instead apply the
"compelling state interest" test. The government must be heard on the issue as it has not been given
an opportunity to discharge its burden of demonstrating the state's compelling interest which can
override respondent's religious belief and practice. To repeat, this is a case of first impression where
we are applying the "compelling state interest" test in a case involving purely religious conduct. The
careful application of the test is indispensable as how we will decide the case will make a decisive
difference in the life of the respondent who stands not only before the Court but before her Jehovah
God.
IN VIEW WHEREOF, the case is REMANDED to the Office of the Court Administrator. The Solicitor
General is ordered to intervene in the case where it will be given the opportunity (a) to examine the
sincerity and centrality of respondent's claimed religious belief and practice; (b) to present evidence
on the state's "compelling interest" to override respondent's religious belief and practice; and (c) to
show that the means the state adopts in pursuing its interest is the least restrictive to respondent's
religious freedom. The rehearing should be concluded thirty (30) days from the Office of the Court
Administrator's receipt of this Decision.

SO ORDERED.
People v. Echagaray, G.R. No. 117472, 7 February 1997, 267 SCRA 682

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. 117472 June 25, 1996

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
LEO ECHEGARAY y PILO, accused-appellant.

PER CURIAM:p

Amidst the endless debates on whether or not the reimposition of the death penalty is indeed a deterrent as far as the commission of heinous
crimes is concerned and while the attendant details pertaining to the execution of a death sentence remain as yet another burning issue, we
are tasked with providing a clear-cut resolution of whether or not the herein accused-appellant deserves to forfeit his place in human society
for the infliction of the primitive and bestial act of incestuous lust on his own blood.

Before us for automatic review is the judgment of conviction, dated September 7, 1994, for the crime
of Rape, rendered after marathon hearing by the Regional Trial Court of Quezon City, Branch 104,
the dispositive portion of which reads:

WHEREFORE, judgment is hereby rendered finding accused LEO ECHEGARAY Y

PILO guilty beyond reasonable doubt of the crime of RAPE as charged in the
complaint, aggravated by the fact that the same was commited by the accused who
is the father/stepfather of the complainant, he is hereby sentenced to suffer the
penalty of DEATH, as provided for under RA. No. 7659, to pay the complainant
Rodessa Echegaray the sum
of P50,000.00 as damages, plus all the accessory penalties provided by law, without
subsidiary imprisonment in case of insolvency, and to pay the costs.1

We note, however, that the charge had been formulated in this manner:

COMPLAINT

The undersigned accuses LEO ECHEGARAY Y PILO of the crime of RAPE,

committed as follows:

That on or about the month of April 1994, in Quezon City, Philippines, the above-
named accused, by means of force and intimidation did then and there wilfully,
unlawfully and feloniously have carnal knowledge of the undersigned complainant,
his daughter, a minor, 10 years of age, all against her will and without her consent, to
her damage and prejudice.

CONTRARY TO LAW 2
Upon being arraigned on August 1, 1994, the accused-appellant, assisted by his counsel de oficio,
entered the plea of "not guilty."

These are the pertinent facts of the case as summarized by the Solicitor-General in his brief:

This is a case of rape by the father of his ten-year old daughter.

Complainant RODESSA ECHEGARAY is a ten-year old girl and a fifth-grader, born

on September 11, 1983. Rodessa is the eldest of five siblings. She has three
brothers aged 6, 5 and 2, respectively, and a 3-month old baby sister. Her parents
are Rosalie and Leo Echegaray, the latter being the accused-appellant himself. The
victim lives with her family in a small house located at No. 199 Fernandez St.,
Barangay San Antonio, San Francisco Del Monte, Quezon City (pp. 5-9, Aug. 9,
1994, TSN).

Sometime in the afternoon of April 1994, while Rodessa was looking after her three
brothers in their house as her mother attended a gambling session in another place,
she heard her father, the accused-appellant in this case, order her brothers to go out
of the house (pp. 10-11, ibid). As soon as her brothers left, accused-appellant Leo
Echegaray approached Rodessa and suddenly dragged her inside the room (p.
12, ibid). Before she could question the appellant, the latter immediately, removed
her panty and made her lie on the floor (p. 13, ibid). Thereafter, appellant likewise
removed his underwear and immediately placed himself on top of Rodessa.
Subsequently, appellant forcefully inserted his penis into Rodessa's organ causing
her to suffer intense pain (pp. 14-15, ibid). While appellant was pumping on her, he
even uttered. "Masarap ba, masarap ba?" and to which Rodessa answered: "Tama
na Papa, masakit" (p. 16, ibid). Rodessa's plea proved futile as appellant continued
with his act. After satisfying his bestial instinct, appellant threatened to kill her mother
if she would divulge what had happened. Scared that her mother would be killed by
appellant, Rodessa kept to herself the ordeal she suffered. She was very afraid of
appellant because the latter, most of the time, was high on drugs (pp. 17-18, ibid.).
The same sexual assault happened up to the fifth time and this usually took place
when her mother was out of the house (p. 19, ibid.). However, after the fifth time,
Rodessa decided to inform her grandmother, Asuncion Rivera, who in turn told
Rosalie, Radessa's mother. Rodessa and her mother proceeded to the Barangay
Captain where Rodessa confided the sexual assaults she suffered. Thereafter,
Rodessa was brought to the precinct where she executed an affidavit (p. 21, ibid.).
From there, she was accompanied to the Philippine National Police Crime Laboratory
for medical examination (p. 22, ibid.).

Rodessa testified that the said sexual assaults happened only during the time when
her mother was pregnant. Rodessa added that at first, her mother was on her side.
However, when appellant was detained, her mother kept on telling her. "Kawawa
naman ang Tatay mo, nakakulong" (pp. 39-40, ibid.).

When Rodessa was examined by the medico-legal officer in the person of Dra. Ma.
Cristina B. Preyna,3the complainant was described as physically on a non-virgin
state, as evidenced by the presence of laceration of the hymen of said complainant
(TSN, Aug. 22, 1995, pp. 8-9).4

On the other hand, the accused-appellant's brief presents a different story:

. . . the defense presented its first witness, Rosalie Echegaray. She asserted that the
RAPE charge against the accused was only the figment of her mothers dirty mind.
That her daughter's complaint was forced upon her by her grandma and the answers
in the sworn statement of Rodessa were coached. That the accusation of RAPE was
motivated by Rodessa's grandmother's greed over the lot situated at the Madrigal
Estate-NHA Project, Barangay San Antonio, San Francisco del Monte, Quezon City,
which her grandmother's paramour, Conrado Alfonso gave to the accused in order to
persuade the latter to admit that Rodessa executed an affidavit of desistance after it
turned out that her complaint of attempted homicide was substituted with the crime of
RAPE at the instance of her mother. That when her mother came to know about the
affidavit of desistance, she placed her granddaughter under the custody of the
Barangay Captain. That her mother was never a real mother to her.

She stated that her complaint against accused was for attempted homicide as her
husband poured alcohol on her body and attempted to burn her. She identified the
certification issued by the NHA and Tag No. 87-0393 (Exh. 2). That the Certification
based on the Masterlist (Exh. 3) indicates that the property is co-owned by accused
and Conrado Alfonso. That Rodessa is her daughter sired by Conrado Alfonso, the
latter being the paramour of her mother. That Conrado Alfonso waived his right and
participation over the lot in favor of the accused in consideration of the latter's
accepting the fact that he is the father of Rodessa to simulate the love triangle and to
conceal the nauseating sex orgies from Conrado Alfonso's real wife.

Accused testified in his behalf and stated that the grandmother of the complainant
has a very strong motive in implicating him to the crime of RAPE since she was
interested to become the sole owner of a property awarded to her live-in partner by
the Madrigal Estate-NHA Project. That he could not have committed the imputed
crime because he considers Rodessa as his own daughter. That he is a painter-
contractor and on the date of the alleged commission of the crime, he was painting
the house of one Divina Ang of Barangay Vitalis, Parañaque, Metro Manila (Exh. 4).
The travel time between his work place to his residence is three (3) hours
considering the condition of traffic. That the painting contract is evidenced by a
document denominated "Contract of Services" duly accomplished (see submarkings
of Exh. 4). He asserted that he has a big sexual organ which when used to a girl 11
years old like Rodessa, the said female organ will be "mawawarak." That it is
abnormal to report the imputed commission of the crime to the grandmother of the
victim.

Accused further stated that her (sic) mother-in-law trumped-up a charge of drug
pushing earlier and he pleaded guilty to a lesser offense of using drugs. The decretal
portion of the judgment of conviction ordering the accused to be confined at the
Bicutan Rehabilitation Center irked the grandmother of Rodessa because it was her
wish that accused should be meted the death penalty.

Accused remain steadfast in his testimony perorating the strong motive of Rodessa's
grandmother in implicating him in this heinous crime because of her greed to become
the sole owner of that piece of property at the National Housing Authority-Madrigal
Project, situated at San Francisco del Monte, Quezon City, notwithstanding rigid
cross-examination. He asserted that the imputed offense is far from his mind
considering that he treated Rodessa as his own daughter. He categorically testified
that he was in his painting job site on the date and time of the alleged commission of
the crime.
 Mrs. Punzalan was presented as third defense witness. She said that she is the
laundry woman and part time baby sitter of the family of accused. That at one time,
she saw Rodessa reading sex books and the Bulgar newspaper. That while hanging
washed clothes on the vacant lot, she saw Rodessa masturbating by tinkering her
private parts. The masturbation took sometime.

This sexual fling of Rodessa were corroborated by Silvestra Echegaray, the fourth
and last witness for the defense. She stated that she tried hard to correct the flirting
tendency of Rodessa and that she scolded her when she saw Rodessa viewing an
X-rated tape. Rodessa according to her was fond of going with friends of ill-repute.
That (sic) she corroborated the testimony of Mrs. Punzalan by stating that she herself
saw Rodessa masturbating inside the room of her house.5

In finding the accused-appellant guilty beyond reasonable doubt of the crime of rape, the lower court
dismissed the defense of alibi and lent credence to the straightforward testimony of the ten-year old
victim to whom no ill motive to testify falsely against accused-appellant can be attributed. The lower
court likewise regarded as inconsequential the defense of the accused-appellant that the
extraordinary size of his penis could not have insinuated itself into the victim's vagina and that the
accused is not the real father of the said victim.

The accused-appellant now reiterates his position in his attempt to seek a reversal of the lower
court's verdict through the following assignment of errors:

1. THE LOWER COURT FAILED TO APPRECIATE THE SINISTER

MOTIVE OF PRIVATE COMPLAINANT'S GRANDMOTHER? THAT
PRECIPITATED THE FILING OF THE CHARGE OF RAPE, HENCE
IT ERRED IN HOLDING ACCUSED GUILTY AS CHARGED.

2. THE COURT BELOW OVERLOOKED THE FACT THAT THE

HEALED LACERATIONS AT 3 AND 7 O'CLOCK COULD NOT HAVE
BEEN DUE TO THE PUMPING OF THE PENIS OF ACCUSED TO
THE VAGINA OF PRIVATE COMPLAINANT, HENCE IT ERRED IN
HOLDING THAT ACCUSED COMMITTED THE CRIME CHARGED,
NOTWITHSTANDING VEHEMENT DENIAL.

3. THE COURT A QUO WHIMSICALLY IGNORED THE DEFENSE

OF ALIBI THAT ACCUSED WAS IN PARAÑAQUE ON THE DATE
AND TIME OF THE IMPUTED CRIME HENCE, IT ERRED IN
HOLDING THAT ALIBI IS NOT SUSTAINABLE IN THE CASE AT
BAR.6

Considering that a rape charge, in the light of the reimposition of the death penalty, requires a
thorough and judicious examination of the circumstances relating thereto, this Court remains guided
by the following principles in evaluating evidence in cases of this nature: (a) An accusation for rape
can be made with facility; it is difficult to prove but more difficult for the accused though innocent to
disprove; (b) In view of the intrinsic nature of the crime of rape where only two persons are involved,
the testimony of the complainant must be scrutinized with extreme caution; and (c) The evidence for
the prosecution must stand and fall on its own merits, and cannot be allowed to draw strength from
the weakness of the evidence for the defense. 7

Anent the first assigned error, no amount of persuasion can convince this Court to tilt the scales of
justice in favor of the accused-appellant notwithstanding that he cries foul insisting that the rape
charge was merely concocted and strongly motivated by greed over a certain lot situated at the
NHA-Madrigal Estate Housing Project, Barangay San Antonio, San Francisco del Monte, Quezon
City. The accused-appellant theorizes that prosecution witness Asuncion Rivera, the maternal
grandmother of the victim Rodessa, concocted the charge of rape so that, in the event that the
accused-appellant shall be meted out a death sentence, title to the lot will be consolidated in her
favor. Indeed, the lot in question is co-owned by the accused-appellant and Conrado Alfonso, the
live-in partner of Asuncion Rivera, according to the records of the National Housing Authority (Exh.
"3"). The accused-appellant would want us to believe that the rape charge was fabricated by
Asuncion Rivera in order to eliminate the accused-appellant from being a co-owner. So, the live-in
partners would have the property for their own.8

We believe, as did the Solicitor-General, that no grandmother would be so callous as to instigate her
10-year old granddaughter to file a rape case against her own father simply on account of her
alleged interest over the disputed lot.9

It is a well-entrenched jurisprudential rule that the testimony of a rape victim is credible where she
has no motive to testify against the accused. 10

We find no flaws material enough to discredit the testimony of the ten-year old Rodessa which the
trial court found convincing enough and unrebutted by the defense. The trial court not surprisingly
noted that Rodessa's narration in detail of her father's monstrous acts had made her cry.11 Once
again, we rule that:

. . . The testimony of the victim who was only 12 years old at the time of the rape as
to the circumstances of the rape must be given weight, for testimony of young and
immature rape victims are credible (People v. Guibao, 217 SCRA 64 [1993]). No
woman especially one of tender age, practically only a girl, would concoct a story of
defloration, allow an examination of her private parts and thereafter expose herself to
a public trial, if she were not motivated solely by the desire to have the culprit
apprehended and punished (People v. Guibao, supra). 12

The accused-appellant points out certain inconsistencies in the testimonies of the prosecution
witnesses in his attempt to bolster his claim that the rape accusation against him is malicious and
baseless. Firstly, Rodessa's testimony that the accused-appellant was already naked when he
dragged her inside the room is inconsistent with her subsequent testimony that the said accused-
appellant was still wearing short pants when she was dragged inside the room. Secondly, Rodessa's
sworn statement before the police investigator which indicated that, while the accused was
executing pumping acts, he uttered the words "Masarap ba?", differ from her testimony in court
wherein she related that, when the accused took out his penis from her vagina, the accused said
"Masarap, tapos na." Thirdly, the victim's grandmother, Asuncion Rivera, recounted in her sworn
statement that it was the accused who went to see her to apprise her of the rape committed on her
granddaughter. However, in her testimony in court , Asuncion Rivera claimed that she was the one
who invited the accused-appellant to see her in her house so as to tell her a secret.13 These alleged
discrepancies merely pertain to minor details which in no way pose serious doubt as to the credibility
of the prosecution witnesses. Whether or not the accused was naked when he dragged Rodessa
inside the room where he sexually assaulted her bears no significant effect on Rodessa's testimony
that she was actually raped by the accused-appellant. Moreover, a conflicting account of whatever
words were uttered by the accused-appellant after he forcefully inserted his penis into Rodessa's
private organ against her will cannot impair the prosecution's evidence as a whole. A determination
of which version earmarks the truth as to how the victim's grandmother learned about the rape is
inconsequential to the judgment of conviction.
As we have pronounced in the case of People v. Jaymalin: 14

This Court has stated time and again that minor inconsistencies in the narration of
the witness do not detract from its essential credibility as long as it is on the whole
coherent and intrinsically believable. Inaccuracies may in fact suggest that the
witness is telling the truth and has not been rehearsed as it is not to he expected that
he will be able to remember every single detail of an incident with perfect or total
recall.

After due deliberation, this Court finds that the trial judge's assessment of the credibility of the
prosecution witnesses deserves our utmost respect in the absence of arbitrariness.

With respect to the second assigned error, the records of the instant case are bereft of clear and
concrete proof of the accused-appellant's claim as to the size of his penis and that if that be the fact,
it could not have merely caused shallow healed lacerations at 3:00 and 7:00 o'clock. 15 In his
testimony, the accused-appellant stated that he could not have raped Rodessa because of
the size of his penis which could have ruptured her vagina had he actually done so. 16 This Court
gives no probative value on the accused-appellant's self-serving statement in the light of our ruling in
the case of People v. Melivo, supra,17 that:

The vaginal wall and the hymenal membrane are elastic organs capable of varying
degrees of distensibility. The degree of distensibility of the female reproductive organ
is normally limited only by the character and size of the pelvic inlet, other factors
being minor. The female reprodructive canal being capable of allowing passage of a
regular fetus, there ought to be no difficulty allowing the entry of objects of much
lesser size, including the male reproductive organ, which even in its largest
dimensions, would still be considerably smaller than the full-term fetus.

xxx xxx xxx

In the case at bench, the presence of healed lacerations in various parts of he

vaginal wall, though not as extensive as appellant might have expected them to be,
indicate traumatic injury to the area within the period when the incidents were
supposed to have occurred. (At pp. 13-14, emphasis supplied)

In rape cases, a broken hymen is not an essential element thereof. 18 A mere knocking at the doors
of the pudenda, so to speak, by the accused's penis suffices to constitute the crime of rape as full
entry into the victim's vagina is not required to sustain a conviction. 19 In the case, Dr. Freyra, the
medico-legal examiner, categorically testified that the healed lacerations of Rodessa on her vagina
were consistent with the date of the commission of the rape as narrated by the victim to have taken
place in April, 1994. 20

Lastly, the third assigned error deserves scant consideration. The accused-appellant erroneously
argues that the Contract of Services (Exhibit 4) offered as evidence in support of the accused-
appellant's defense of alibi need not be corroborated because there is no law expressly requiring
so. 21 In view of our finding that the prosecution witnesses have no motive to falsely testify against
the accused-appellant, the defense of alibi, in this case, uncorroborated by other witnesses, should
be completely disregarded. 22 More importantly, the defense of alibi which is inherently weak
becomes even weaker in the face of positive identification of the accused-appellant as perpetrator of
the crime of rape by his victim, Rodessa. 23
The Contract of Services whereby the accused-appellant obligated himself to do some painting job
at the house of one Divina Ang in Parañaque, Metro Manila, within 25 days from April 4, 1994, is not
proof of the whereabouts of the accused-appellant at the time of the commission of the offense.

The accused-appellant in this case is charged with Statutory Rape on the basis of the complaint,
dated July 14, 1994. The gravamen of the said offense, as stated in paragraph 3, Article 335 of the
Revised Penal Code, is the carnal knowledge of a woman below twelve years old. 24 Rodessa
positively identified his father accused-appellant, as the culprit of Statutory Rape. Her account of
how the accused-appellant succeeded in consummating his grievous and odious sexual assault on
her is free from any substantial self-contradiction. It is highly inconceivable that it is rehearsed and
fabricated upon instructions from Rodessa's maternal grandmother Asuncion Rivera as asserted by
the accused-appellant. The words of Chief Justice Enrique M. Fernando, speaking for the Court,
more than two decades ago, are relevant and worth reiterating, thus:

. . . it is manifest in the decisions of this Court that where the offended parties are
young and immature girls like the victim in this case, (Cited cases omitted) there is
marked receptivity on its, part to tend credence to their version of what transpired. It
is not to be wondered at. The state, as parens patria, is under the obligation to
minimize the risk of harm to those, who, because of their minority, are as yet unable
to take care of themselves fully. Those of tender years deserve its utmost protection.
Moreover, the injury in cases of rape is not inflicted on the unfortunate victim alone.
The consternation it causes her family must also be taken into account It may reflect
a failure to abide by the announced concern in the fundamental law for such
institution There is all the more reason then for the rigorous application of the penal
law with its severe penalty for this offense, whenever warranted. It has been aptly
remarked that with the advance in civilization, the disruption in public peace and
order it represents defies explanation, much more so in view of what currently
appears to be a tendency for sexual permissiveness. Where the prospects of
relationship based on consent are hardly minimal, self-restraint should even be more
marked. 25

Under Section 11 of Republic Act No. 7659 often referred to as the Death Penalty Law, Art. 335 of
the Revised Penal Code was amended, to wit:

The death penalty shall also be imposed if the crime of rape is committed with any of
the following attendant circumstances:

1. When the victim is under eigthteen (18) years of age and the offender is a parent,
ascendant, step-parent, guardian, relative by consanguinity or affinity within the third
civil degree, or the common-law spouse of the parent of the victim.

xxx xxx xxx

(Emphasis supplied)

Apparently, as a last glimpse of hope, the accused-appellant questions the penalty imposed by the
trial court by declaring that he is neither a father, stepfather or grandfather of Rodessa although he
was a confirmed lover of Rodessa's mother. 26 On direct examination, he admitted that before the
charge of rape was riled against him, he had treated Rodessa as his real daughter and had provided
for her food, clothing, shelter and education. 27 The Court notes that Rodessa uses the surname of
the accused-appellant, not Rivera (her mother's maiden name) nor Alfonso (her grandmother's live-
in partner). Moreover, Rodessa's mother stated during the cross-examination that she, the accused-
appellant, and her five children, including Rodessa, had been residing in one house only. 28 At any
rate, even if he were not the father, stepfather or grandfather of Rodessa, this disclaimer cannot
save him from the abyss where perpetrators of heinous crimes ought to be, as mandated by law.
Considering that the accused-appellant is a confirmed lover of Rodessa's mother, 29 he falls squarely
within the aforequoted portion of the Death Penalty Law under the term "common-law spouse of the
parent of the victim."

The fact that the ten-year old Rodessa referred to the accused-appellant as "Papa" is reason enough
to conclude that accused-appellant is either the father or stepfather of Rodessa. Thus, the act of
sexual assault perpetrated by the accused on his young victim has become all the more repulsive
and perverse. The victim's tender age and the accused-appellant's moral ascendancy and influence
over her are factors which forced Rodessa to succumb to the accused's selfish and bestial craving.
The law has made it inevitable under the circumstances of this case that the accused-appellant face
the supreme penalty of death. WHEREFORE, we AFFIRM the decision of the Regional Trial Court of
Quezon City, Branch 104.

SO ORDERED.
Corpuz v. People, G.R. No. 180016, 29 April 2014

Republic of the Philippines

SUPREME COURT
Baguio City

EN BANC

G.R. No. 180016 April 29, 2014

LITO CORPUZ, Petitioner,

vs.
PEOPLE OF THE PHILIPPINES, Respondent.

DECISION

PERALTA, J.:

This is to resolve the Petition for Review on Certiorari, under Rule 45 of the Rules of Court, dated
November 5, 2007, of petitioner Lito Corpuz (petitioner), seeking to reverse and set aside the
Decision1 dated March 22, 2007 and Resolution2 dated September 5, 2007 of the Court of Appeals
(CA), which affirmed with modification the Decision3 dated July 30, 2004 of the Regional Trial Court
(RTC), Branch 46, San Fernando City, finding the petitioner guilty beyond reasonable doubt of the
crime of Estafa under Article 315, paragraph (1), sub-paragraph (b) of the Revised Penal Code.

The antecedent facts follow.

Private complainant Danilo Tangcoy and petitioner met at the Admiral Royale Casino in Olongapo
City sometime in 1990. Private complainant was then engaged in the business of lending money to
casino players and, upon hearing that the former had some pieces of jewelry for sale, petitioner
approached him on May 2, 1991 at the same casino and offered to sell the said pieces of jewelry on
commission basis. Private complainant agreed, and as a consequence, he turned over to petitioner
the following items: an 18k diamond ring for men; a woman's bracelet; one (1) men's necklace and
another men's bracelet, with an aggregate value of ₱98,000.00, as evidenced by a receipt of even
date. They both agreed that petitioner shall remit the proceeds of the sale, and/or, if unsold, to return
the same items, within a period of 60 days. The period expired without petitioner remitting the
proceeds of the sale or returning the pieces of jewelry. When private complainant was able to meet
petitioner, the latter promised the former that he will pay the value of the said items entrusted to him,
but to no avail.

Thus, an Information was filed against petitioner for the crime of estafa, which reads as follows:

That on or about the fifth (5th) day of July 1991, in the City of Olongapo, Philippines, and within the
jurisdiction of this Honorable Court, the above-named accused, after having received from one
Danilo Tangcoy, one (1) men's diamond ring, 18k, worth ₱45,000.00; one (1) three-baht men's
bracelet, 22k, worth ₱25,000.00; one (1) two-baht ladies' bracelet, 22k, worth ₱12,000.00, or in the
total amount of Ninety-Eight Thousand Pesos (₱98,000.00), Philippine currency, under expressed
obligation on the part of said accused to remit the proceeds of the sale of the said items or to return
the same, if not sold, said accused, once in possession of the said items, with intent to defraud, and
with unfaithfulness and abuse of confidence, and far from complying with his aforestated obligation,
did then and there wilfully, unlawfully and feloniously misappropriate, misapply and convert to his
own personal use and benefit the aforesaid jewelries (sic) or the proceeds of the sale thereof, and
despite repeated demands, the accused failed and refused to return the said items or to remit the
amount of Ninety- Eight Thousand Pesos (₱98,000.00), Philippine currency, to the damage and
prejudice of said Danilo Tangcoy in the aforementioned amount.

CONTRARY TO LAW.

On January 28, 1992, petitioner, with the assistance of his counsel, entered a plea of not guilty.
Thereafter, trial on the merits ensued.

The prosecution, to prove the above-stated facts, presented the lone testimony of Danilo Tangcoy.
On the other hand, the defense presented the lone testimony of petitioner, which can be
summarized, as follows:

Petitioner and private complainant were collecting agents of Antonio Balajadia, who is engaged in
the financing business of extending loans to Base employees. For every collection made, they earn
a commission. Petitioner denied having transacted any business with private complainant.

However, he admitted obtaining a loan from Balajadia sometime in 1989 for which he was made to
sign a blank receipt. He claimed that the same receipt was then dated May 2, 1991 and used as
evidence against him for the supposed agreement to sell the subject pieces of jewelry, which he did
not even see.

After trial, the RTC found petitioner guilty beyond reasonable doubt of the crime charged in the
Information. The dispositive portion of the decision states:

WHEREFORE, finding accused LITO CORPUZ GUILTY beyond reasonable doubt of the felony of
Estafa under Article 315, paragraph one (1), subparagraph (b) of the Revised Penal Code;

there being no offsetting generic aggravating nor ordinary mitigating circumstance/s to vary the
penalty imposable;

accordingly, the accused is hereby sentenced to suffer the penalty of deprivation of liberty consisting
of an imprisonment under the Indeterminate Sentence Law of FOUR (4) YEARS AND TWO (2)
MONTHS of Prision Correccional in its medium period AS MINIMUM, to FOURTEEN (14) YEARS
AND EIGHT (8) MONTHS of Reclusion Temporal in its minimum period AS MAXIMUM; to indemnify
private complainant Danilo Tangcoy the amount of ₱98,000.00 as actual damages, and to pay the
costs of suit.

SO ORDERED.

The case was elevated to the CA, however, the latter denied the appeal of petitioner and affirmed
the decision of the RTC, thus:

WHEREFORE, the instant appeal is DENIED. The assailed Judgment dated July 30, 2004 of the
RTC of San Fernando City (P), Branch 46, is hereby AFFIRMED with MODIFICATION on the
imposable prison term, such that accused-appellant shall suffer the indeterminate penalty of 4 years
and 2 months of prision correccional, as minimum, to 8 years of prision mayor, as maximum, plus 1
year for each additional ₱10,000.00, or a total of 7 years. The rest of the decision stands.

SO ORDERED.
Petitioner, after the CA denied his motion for reconsideration, filed with this Court the present
petition stating the following grounds:

A. THE HONORABLE COURT OF APPEALS ERRED IN CONFIRMING THE ADMISSION AND

APPRECIATION BY THE LOWER COURT OF PROSECUTION EVIDENCE, INCLUDING ITS
EXHIBITS, WHICH ARE MERE MACHINE COPIES, AS THIS VIOLATES THE BEST EVIDENCE
RULE;

B. THE HONORABLE COURT OF APPEALS ERRED IN AFFIRMING THE LOWER COURT'S

FINDING THAT THE CRIMINAL INFORMATION FOR ESTAFA WAS NOT FATALLY DEFECTIVE
ALTHOUGH THE SAME DID NOT CHARGE THE OFFENSE UNDER ARTICLE 315 (1) (B) OF THE
REVISED PENAL CODE IN THAT -

1. THE INFORMATION DID NOT FIX A PERIOD WITHIN WHICH THE SUBJECT [PIECES
OF] JEWELRY SHOULD BE RETURNED, IF UNSOLD, OR THE MONEY TO BE
REMITTED, IF SOLD;

2. THE DATE OF THE OCCURRENCE OF THE CRIME ALLEGED IN THE INFORMATION

AS OF 05 JULY 1991 WAS MATERIALLY DIFFERENT FROM THE ONE TESTIFIED TO
BY THE PRIVATE COMPLAINANT WHICH WAS 02 MAY 1991;

C. THE HONORABLE COURT OF APPEALS ERRED IN AFFIRMING THE LOWER COURT'S

FINDING THAT DEMAND TO RETURN THE SUBJECT [PIECES OF] JEWELRY, IF UNSOLD, OR
REMIT THE PROCEEDS, IF SOLD – AN ELEMENT OF THE OFFENSE – WAS PROVED;

D. THE HONORABLE COURT OF APPEALS ERRED IN AFFIRMING THE LOWER COURT'S

FINDING THAT THE PROSECUTION'S CASE WAS PROVEN BEYOND REASONABLE DOUBT
ALTHOUGH -

1. THE PRIVATE COMPLAINANT TESTIFIED ON TWO (2) VERSIONS OF THE INCIDENT;

2. THE VERSION OF THE PETITIONER – ACCUSED IS MORE STRAIGHTFORWARD

AND LOGICAL, CONSISTENT WITH HUMAN EXPERIENCE;

3. THE EQUIPOISE RULE WAS NOT APPRECIATED IN AND APPLIED TO THIS CASE;

4. PENAL STATUTES ARE STRICTLY CONSTRUED AGAINST THE STATE.

In its Comment dated May 5, 2008, the Office of the Solicitor General (OSG) stated the following
counter-arguments:

The exhibits were properly admitted inasmuch as petitioner failed to object to their admissibility.

The information was not defective inasmuch as it sufficiently established the designation of the
offense and the acts complained of.

The prosecution sufficiently established all the elements of the crime charged.

This Court finds the present petition devoid of any merit.

The factual findings of the appellate court generally are conclusive, and carry even more weight
when said court affirms the findings of the trial court, absent any showing that the findings are totally
devoid of support in the records, or that they are so glaringly erroneous as to constitute grave abuse
of discretion.4 Petitioner is of the opinion that the CA erred in affirming the factual findings of the trial
court. He now comes to this Court raising both procedural and substantive issues.

According to petitioner, the CA erred in affirming the ruling of the trial court, admitting in evidence a
receipt dated May 2, 1991 marked as Exhibit "A" and its submarkings, although the same was
merely a photocopy, thus, violating the best evidence rule. However, the records show that petitioner
never objected to the admissibility of the said evidence at the time it was identified, marked and
testified upon in court by private complainant. The CA also correctly pointed out that petitioner also
failed to raise an objection in his Comment to the prosecution's formal offer of evidence and even
admitted having signed the said receipt. The established doctrine is that when a party failed to
interpose a timely objection to evidence at the time they were offered in evidence, such objection
shall be considered as waived.5

Another procedural issue raised is, as claimed by petitioner, the formally defective Information filed
against him. He contends that the Information does not contain the period when the pieces of jewelry
were supposed to be returned and that the date when the crime occurred was different from the one
testified to by private complainant. This argument is untenable. The CA did not err in finding that the
Information was substantially complete and in reiterating that objections as to the matters of form
and substance in the Information cannot be made for the first time on appeal. It is true that the
gravamen of the crime of estafa under Article 315, paragraph 1, subparagraph (b) of the RPC is the
appropriation or conversion of money or property received to the prejudice of the owner6 and that the
time of occurrence is not a material ingredient of the crime, hence, the exclusion of the period and
the wrong date of the occurrence of the crime, as reflected in the Information, do not make the latter
fatally defective. The CA ruled:

x x x An information is legally viable as long as it distinctly states the statutory designation of the
offense and the acts or omissions constitutive thereof. Then Section 6, Rule 110 of the Rules of
Court provides that a complaint or information is sufficient if it states the name of the accused;

the designation of the offense by the statute; the acts or omissions complained of as constituting the
offense; the name of the offended party; the approximate time of the commission of the offense, and
the place wherein the offense was committed. In the case at bar, a reading of the subject Information
shows compliance with the foregoing rule. That the time of the commission of the offense was stated
as " on or about the fifth (5th) day of July, 1991" is not likewise fatal to the prosecution's cause
considering that Section 11 of the same Rule requires a statement of the precise time only when the
same is a material ingredient of the offense. The gravamen of the crime of estafa under Article 315,
paragraph 1 (b) of the Revised Penal Code (RPC) is the appropriation or conversion of money or
property received to the prejudice of the offender. Thus, aside from the fact that the date of the
commission thereof is not an essential element of the crime herein charged, the failure of the
prosecution to specify the exact date does not render the Information ipso facto defective. Moreover,
the said date is also near the due date within which accused-appellant should have delivered the
proceeds or returned the said [pieces of jewelry] as testified upon by Tangkoy, hence, there was
sufficient compliance with the rules. Accused-appellant, therefore, cannot now be allowed to claim
that he was not properly apprised of the charges proferred against him.7

It must be remembered that petitioner was convicted of the crime of Estafa under Article 315,
paragraph 1 (b) of the RPC, which reads:
ART. 315. Swindling (estafa). – Any person who shall defraud another by any of the means
mentioned hereinbelow.

1. With unfaithfulness or abuse of confidence, namely:

xxxx

(b) By misappropriating or converting, to the prejudice of another, money, goods, or any other
personal property received by the offender in trust or on commission, or for administration, or under
any other obligation involving the duty to make delivery of or to return the same, even though such
obligation be totally or partially guaranteed by a bond; or by denying having received such money,
goods, or other property; x x x

The elements of estafa with abuse of confidence are as follows: (a) that money, goods or other
personal property is received by the offender in trust, or on commission, or for administration, or
under any other obligation involving the duty to make delivery of, or to return the same; (b) that there
be misappropriation or conversion of such money or property by the offender or denial on his part of
such receipt; (c) that such misappropriation or conversion or denial is to the prejudice of another;
and (d) that there is a demand made by the offended party on the offender.8

Petitioner argues that the last element, which is, that there is a demand by the offended party on the
offender, was not proved. This Court disagrees. In his testimony, private complainant narrated how
he was able to locate petitioner after almost two (2) months from the time he gave the pieces of
jewelry and asked petitioner about the same items with the latter promising to pay them. Thus:

PROS. MARTINEZ

q Now, Mr. Witness, this was executed on 2 May 1991, and this transaction could have been
finished on 5 July 1991, the question is what happens (sic) when the deadline came?

a I went looking for him, sir.

q For whom?

a Lito Corpuz, sir.

q Were you able to look (sic) for him?

a I looked for him for a week, sir.

q Did you know his residence?

a Yes, sir.

q Did you go there?

a Yes, sir.

q Did you find him?

a No, sir.

q Were you able to talk to him since 5 July 1991?

a I talked to him, sir.

q How many times?

a Two times, sir.

q What did you talk (sic) to him?

a About the items I gave to (sic) him, sir.

q Referring to Exhibit A-2?

a Yes, sir, and according to him he will take his obligation and I asked him where the items are and
he promised me that he will pay these amount, sir.

q Up to this time that you were here, were you able to collect from him partially or full?

a No, sir.9

No specific type of proof is required to show that there was demand.10 Demand need not even be
formal; it may be verbal.11 The specific word "demand" need not even be used to show that it has
indeed been made upon the person charged, since even a mere query as to the whereabouts of the
money [in this case, property], would be tantamount to a demand.12 As expounded in Asejo v.
People:13

With regard to the necessity of demand, we agree with the CA that demand under this kind of estafa
need not be formal or written. The appellate court observed that the law is silent with regard to the
form of demand in estafa under Art. 315 1(b), thus:

When the law does not qualify, We should not qualify. Should a written demand be necessary, the
law would have stated so. Otherwise, the word "demand" should be interpreted in its general
meaning as to include both written and oral demand. Thus, the failure of the prosecution to present a
written demand as evidence is not fatal.

In Tubb v. People, where the complainant merely verbally inquired about the money entrusted to the
accused, we held that the query was tantamount to a demand, thus:

x x x [T]he law does not require a demand as a condition precedent to the existence of the crime of
embezzlement. It so happens only that failure to account, upon demand for funds or property held in
trust, is circumstantial evidence of misappropriation. The same way, however, be established by
other proof, such as that introduced in the case at bar.14

In view of the foregoing and based on the records, the prosecution was able to prove the existence
of all the elements of the crime. Private complainant gave petitioner the pieces of jewelry in trust, or
on commission basis, as shown in the receipt dated May 2, 1991 with an obligation to sell or return
the same within sixty (60) days, if unsold. There was misappropriation when petitioner failed to remit
the proceeds of those pieces of jewelry sold, or if no sale took place, failed to return the same pieces
of jewelry within or after the agreed period despite demand from the private complainant, to the
prejudice of the latter.

Anent the credibility of the prosecution's sole witness, which is questioned by petitioner, the same is
unmeritorious. Settled is the rule that in assessing the credibility of witnesses, this Court gives great
respect to the evaluation of the trial court for it had the unique opportunity to observe the demeanor
of witnesses and their deportment on the witness stand, an opportunity denied the appellate courts,
which merely rely on the records of the case.15 The assessment by the trial court is even conclusive
and binding if not tainted with arbitrariness or oversight of some fact or circumstance of weight and
influence, especially when such finding is affirmed by the CA.16 Truth is established not by the
number of witnesses, but by the quality of their testimonies, for in determining the value and
credibility of evidence, the witnesses are to be weighed not numbered.17

As regards the penalty, while this Court's Third Division was deliberating on this case, the question
of the continued validity of imposing on persons convicted of crimes involving property came up. The
legislature apparently pegged these penalties to the value of the money and property in 1930 when it
enacted the Revised Penal Code. Since the members of the division reached no unanimity on this
question and since the issues are of first impression, they decided to refer the case to the Court en
banc for consideration and resolution. Thus, several amici curiae were invited at the behest of the
Court to give their academic opinions on the matter. Among those that graciously complied were
Dean Jose Manuel Diokno, Dean Sedfrey M. Candelaria, Professor Alfredo F. Tadiar, the Senate
President, and the Speaker of the House of Representatives. The parties were later heard on oral
arguments before the Court en banc, with Atty. Mario L. Bautista appearing as counsel de oficio of
the petitioner.

After a thorough consideration of the arguments presented on the matter, this Court finds the
following:

There seems to be a perceived injustice brought about by the range of penalties that the courts
continue to impose on crimes against property committed today, based on the amount of damage
measured by the value of money eighty years ago in 1932. However, this Court cannot modify the
said range of penalties because that would constitute judicial legislation. What the legislature's
perceived failure in amending the penalties provided for in the said crimes cannot be remedied
through this Court's decisions, as that would be encroaching upon the power of another branch of
the government. This, however, does not render the whole situation without any remedy. It can be
appropriately presumed that the framers of the Revised Penal Code (RPC) had anticipated this
matter by including Article 5, which reads:

ART. 5. Duty of the court in connection with acts which should be repressed but which are not
covered by the law, and in cases of excessive penalties. - Whenever a court has knowledge of any
act which it may deem proper to repress and which is not punishable by law, it shall render the
proper decision, and shall report to the Chief Executive, through the Department of Justice, the
reasons which induce the court to believe that said act should be made the subject of penal
legislation.

In the same way, the court shall submit to the Chief Executive, through the Department of Justice,
such statement as may be deemed proper, without suspending the execution of the sentence, when
a strict enforcement of the provisions of this Code would result in the imposition of a clearly
excessive penalty, taking into consideration the degree of malice and the injury caused by the
offense.18
The first paragraph of the above provision clearly states that for acts bourne out of a case which is
not punishable by law and the court finds it proper to repress, the remedy is to render the proper
decision and thereafter, report to the Chief Executive, through the Department of Justice, the
reasons why the same act should be the subject of penal legislation. The premise here is that a
deplorable act is present but is not the subject of any penal legislation, thus, the court is tasked to
inform the Chief Executive of the need to make that act punishable by law through legislation. The
second paragraph is similar to the first except for the situation wherein the act is already punishable
by law but the corresponding penalty is deemed by the court as excessive. The remedy therefore, as
in the first paragraph is not to suspend the execution of the sentence but to submit to the Chief
Executive the reasons why the court considers the said penalty to be non-commensurate with the
act committed. Again, the court is tasked to inform the Chief Executive, this time, of the need for a
legislation to provide the proper penalty.

In his book, Commentaries on the Revised Penal Code,19 Guillermo B. Guevara opined that in Article
5, the duty of the court is merely to report to the Chief Executive, with a recommendation for an
amendment or modification of the legal provisions which it believes to be harsh. Thus:

This provision is based under the legal maxim "nullum crimen, nulla poena sige lege," that is, that
there can exist no punishable act except those previously and specifically provided for by penal
statute.

No matter how reprehensible an act is, if the law-making body does not deem it necessary to prohibit
its perpetration with penal sanction, the Court of justice will be entirely powerless to punish such act.

Under the provisions of this article the Court cannot suspend the execution of a sentence on the
ground that the strict enforcement of the provisions of this Code would cause excessive or harsh
penalty. All that the Court could do in such eventuality is to report the matter to the Chief Executive
with a recommendation for an amendment or modification of the legal provisions which it believes to
be harsh.20

Anent the non-suspension of the execution of the sentence, retired Chief Justice Ramon C. Aquino
and retired Associate Justice Carolina C. Griño-Aquino, in their book, The Revised Penal
Code,21 echoed the above-cited commentary, thus:

The second paragraph of Art. 5 is an application of the humanitarian principle that justice must be
tempered with mercy. Generally, the courts have nothing to do with the wisdom or justness of the
penalties fixed by law. "Whether or not the penalties prescribed by law upon conviction of violations
of particular statutes are too severe or are not severe enough, are questions as to which
commentators on the law may fairly differ; but it is the duty of the courts to enforce the will of the
legislator in all cases unless it clearly appears that a given penalty falls within the prohibited class of
excessive fines or cruel and unusual punishment." A petition for clemency should be addressed to
the Chief Executive.22

There is an opinion that the penalties provided for in crimes against property be based on the current
inflation rate or at the ratio of ₱1.00 is equal to ₱100.00 . However, it would be dangerous as this
would result in uncertainties, as opposed to the definite imposition of the penalties. It must be
remembered that the economy fluctuates and if the proposed imposition of the penalties in crimes
against property be adopted, the penalties will not cease to change, thus, making the RPC, a self-
amending law. Had the framers of the RPC intended that to be so, it should have provided the same,
instead, it included the earlier cited Article 5 as a remedy. It is also improper to presume why the
present legislature has not made any moves to amend the subject penalties in order to conform with
the present times. For all we know, the legislature intends to retain the same penalties in order to
deter the further commission of those punishable acts which have increased tremendously through
the years. In fact, in recent moves of the legislature, it is apparent that it aims to broaden the
coverage of those who violate penal laws. In the crime of Plunder, from its original minimum amount
of ₱100,000,000.00 plundered, the legislature lowered it to ₱50,000,000.00. In the same way, the
legislature lowered the threshold amount upon which the Anti-Money Laundering Act may apply,
from ₱1,000,000.00 to ₱500,000.00.

It is also worth noting that in the crimes of Theft and Estafa, the present penalties do not seem to be
excessive compared to the proposed imposition of their corresponding penalties. In Theft, the
provisions state that:

Art. 309. Penalties. — Any person guilty of theft shall be punished by:

1. The penalty of prision mayor in its minimum and medium periods, if the value of the thing
stolen is more than 12,000 pesos but does not exceed 22,000 pesos, but if the value of the
thing stolen exceeds the latter amount the penalty shall be the maximum period of the one
prescribed in this paragraph, and one year for each additional ten thousand pesos, but the
total of the penalty which may be imposed shall not exceed twenty years. In such cases, and
in connection with the accessory penalties which may be imposed and for the purpose of the
other provisions of this Code, the penalty shall be termed prision mayor or reclusion
temporal, as the case may be.

2. The penalty of prision correccional in its medium and maximum periods, if the value of the
thing stolen is more than 6,000 pesos but does not exceed 12,000 pesos.

3. The penalty of prision correccional in its minimum and medium periods, if the value of the
property stolen is more than 200 pesos but does not exceed 6,000 pesos.

4. Arresto mayor in its medium period to prision correccional in its minimum period, if the
value of the property stolen is over 50 pesos but does not exceed 200 pesos.

5. Arresto mayor to its full extent, if such value is over 5 pesos but does not exceed 50
pesos.

6. Arresto mayor in its minimum and medium periods, if such value does not exceed 5
pesos.

7. Arresto menor or a fine not exceeding 200 pesos, if the theft is committed under the
circumstances enumerated in paragraph 3 of the next preceding article and the value of the
thing stolen does not exceed 5 pesos. If such value exceeds said amount, the provision of
any of the five preceding subdivisions shall be made applicable.

8. Arresto menor in its minimum period or a fine not exceeding 50 pesos, when the value of
the thing stolen is not over 5 pesos, and the offender shall have acted under the impulse of
hunger, poverty, or the difficulty of earning a livelihood for the support of himself or his family.

In a case wherein the value of the thing stolen is ₱6,000.00, the above-provision states that the
penalty is prision correccional in its minimum and medium periods (6 months and 1 day to 4 years
and 2 months). Applying the proposal, if the value of the thing stolen is ₱6,000.00, the penalty is
imprisonment of arresto mayor in its medium period to prision correccional minimum period (2
months and 1 day to 2 years and 4 months). It would seem that under the present law, the penalty
imposed is almost the same as the penalty proposed. In fact, after the application of the
Indeterminate Sentence Law under the existing law, the minimum penalty is still lowered by one
degree; hence, the minimum penalty is arresto mayor in its medium period to maximum period (2
months and 1 day to 6 months), making the offender qualified for pardon or parole after serving the
said minimum period and may even apply for probation. Moreover, under the proposal, the minimum
penalty after applying the Indeterminate Sentence Law is arresto menor in its maximum period to
arresto mayor in its minimum period (21 days to 2 months) is not too far from the minimum period
under the existing law. Thus, it would seem that the present penalty imposed under the law is not at
all excessive. The same is also true in the crime of Estafa.23

Moreover, if we apply the ratio of 1:100, as suggested to the value of the thing stolen in the crime of
Theft and the damage caused in the crime of Estafa, the gap between the minimum and the
maximum amounts, which is the basis of determining the proper penalty to be imposed, would be
too wide and the penalty imposable would no longer be commensurate to the act committed and the
value of the thing stolen or the damage caused:

I. Article 309, or the penalties for the crime of Theft, the value would be modified but the penalties
are not changed:

1. ₱12,000.00 to ₱22,000.00 will become ₱1,200,000.00 to ₱2,200,000.00, punished by

prision mayor minimum to prision mayor medium (6 years and 1 day to 10 years).

2. ₱6,000.00 to ₱12,000.00 will become ₱600,000.00 to ₱1,200,000.00, punished by prision

correccional medium and to prision correccional maximum (2 years, 4 months and 1 day to 6
years).24

3. ₱200.00 to ₱6,000.00 will become ₱20,000.00 to ₱600,000.00, punishable by prision

correccional minimum to prision correccional medium (6 months and 1 day to 4 years and 2
months).

4. ₱50.00 to ₱200.00 will become ₱5,000.00 to ₱20,000.00, punishable by arresto mayor

medium to prision correccional minimum (2 months and 1 day to 2 years and 4 months).

5. ₱5.00 to ₱50.00 will become ₱500.00 to ₱5,000.00, punishable by arresto mayor (1 month
and 1 day to 6 months).

6. ₱5.00 will become ₱500.00, punishable by arresto mayor minimum to arresto mayor
medium.

x x x x.

II. Article 315, or the penalties for the crime of Estafa, the value would also be modified but the
penalties are not changed, as follows:

1st. ₱12,000.00 to ₱22,000.00, will become ₱1,200,000.00 to ₱2,200,000.00, punishable by

prision correccional maximum to prision mayor minimum (4 years, 2 months and 1 day to 8
years).25

2nd. ₱6,000.00 to ₱12,000.00 will become ₱600,000.00 to ₱1,200,000.00, punishable by

prision correccional minimum to prision correccional medium (6 months and 1 day to 4 years
and 2 months).26
 3rd. ₱200.00 to ₱6,000.00 will become ₱20,000.00 to ₱600,000.00, punishable by arresto
mayor maximum to prision correccional minimum (4 months and 1 day to 2 years and 4
months).

4th. ₱200.00 will become ₱20,000.00, punishable by arresto mayor maximum (4 months and
1 day to 6 months).

An argument raised by Dean Jose Manuel I. Diokno, one of our esteemed amici curiae, is that the
incremental penalty provided under Article 315 of the RPC violates the Equal Protection Clause.

The equal protection clause requires equality among equals, which is determined according to a
valid classification. The test developed by jurisprudence here and yonder is that of
reasonableness,27 which has four requisites:

(1) The classification rests on substantial distinctions;

(2) It is germane to the purposes of the law;

(3) It is not limited to existing conditions only; and

(4) It applies equally to all members of the same class.28

According to Dean Diokno, the Incremental Penalty Rule (IPR) does not rest on substantial
distinctions as ₱10,000.00 may have been substantial in the past, but it is not so today, which
violates the first requisite; the IPR was devised so that those who commit estafa involving higher
amounts would receive heavier penalties; however, this is no longer achieved, because a person
who steals ₱142,000.00 would receive the same penalty as someone who steals hundreds of
millions, which violates the second requisite; and, the IPR violates requisite no. 3, considering that
the IPR is limited to existing conditions at the time the law was promulgated, conditions that no
longer exist today.

Assuming that the Court submits to the argument of Dean Diokno and declares the incremental
penalty in Article 315 unconstitutional for violating the equal protection clause, what then is the
penalty that should be applied in case the amount of the thing subject matter of the crime exceeds
₱22,000.00? It seems that the proposition poses more questions than answers, which leads us even
more to conclude that the appropriate remedy is to refer these matters to Congress for them to
exercise their inherent power to legislate laws.

Even Dean Diokno was of the opinion that if the Court declares the IPR unconstitutional, the remedy
is to go to Congress. Thus:

xxxx

JUSTICE PERALTA:

Now, your position is to declare that the incremental penalty should be struck down as
unconstitutional because it is absurd.

DEAN DIOKNO:

Absurd, it violates equal protection, Your Honor, and cruel and unusual punishment.
JUSTICE PERALTA:

Then what will be the penalty that we are going to impose if the amount is more than Twenty-Two
Thousand (₱22,000.00) Pesos.

DEAN DIOKNO:

Well, that would be for Congress to ... if this Court will declare the incremental penalty rule
unconstitutional, then that would ... the void should be filled by Congress.

JUSTICE PERALTA:

But in your presentation, you were fixing the amount at One Hundred Thousand (₱100,000.00)
Pesos ...

DEAN DIOKNO:

Well, my presen ... (interrupted)

JUSTICE PERALTA:

For every One Hundred Thousand (₱100,000.00) Pesos in excess of Twenty-Two Thousand
(₱22,000.00) Pesos you were suggesting an additional penalty of one (1) year, did I get you right?

DEAN DIOKNO:

Yes, Your Honor, that is, if the court will take the route of statutory interpretation.

JUSTICE PERALTA:

Ah ...

DEAN DIOKNO:

If the Court will say that they can go beyond the literal wording of the law...

JUSTICE PERALTA:

But if we de ... (interrupted)

DEAN DIOKNO:

....then....

JUSTICE PERALTA:

Ah, yeah. But if we declare the incremental penalty as unsconstitutional, the court cannot fix the
amount ...

DEAN DIOKNO:
No, Your Honor.

JUSTICE PERALTA:

... as the equivalent of one, as an incremental penalty in excess of Twenty-Two Thousand

(₱22,000.00) Pesos.

DEAN DIOKNO:

No, Your Honor.

JUSTICE PERALTA:

The Court cannot do that.

DEAN DIOKNO:

Could not be.

JUSTICE PERALTA:

The only remedy is to go to Congress...

DEAN DIOKNO:

Yes, Your Honor.

JUSTICE PERALTA:

... and determine the value or the amount.

DEAN DIOKNO:

Yes, Your Honor.

JUSTICE PERALTA:

That will be equivalent to the incremental penalty of one (1) year in excess of Twenty-Two Thousand
(₱22,000.00) Pesos.

DEAN DIOKNO:

Yes, Your Honor.

JUSTICE PERALTA:

The amount in excess of Twenty-Two Thousand (₱22,000.00) Pesos.

Thank you, Dean.

DEAN DIOKNO:

Thank you.

x x x x29

Dean Diokno also contends that Article 315 of the Revised Penal Code constitutes cruel and
unusual punishment. Citing Solem v. Helm,30 Dean Diokno avers that the United States Federal
Supreme Court has expanded the application of a similar Constitutional provision prohibiting cruel
and unusual punishment, to the duration of the penalty, and not just its form. The court therein ruled
that three things must be done to decide whether a sentence is proportional to a specific crime, viz.;
(1) Compare the nature and gravity of the offense, and the harshness of the penalty; (2) Compare
the sentences imposed on other criminals in the same jurisdiction, i.e., whether more serious crimes
are subject to the same penalty or to less serious penalties; and (3) Compare the sentences
imposed for commission of the same crime in other jurisdictions.

However, the case of Solem v. Helm cannot be applied in the present case, because in Solem what
respondent therein deemed cruel was the penalty imposed by the state court of South Dakota after it
took into account the latter’s recidivist statute and not the original penalty for uttering a "no account"
check. Normally, the maximum punishment for the crime would have been five years imprisonment
and a $5,000.00 fine. Nonetheless, respondent was sentenced to life imprisonment without the
possibility of parole under South Dakota’s recidivist statute because of his six prior felony
convictions. Surely, the factual antecedents of Solem are different from the present controversy.

With respect to the crime of Qualified Theft, however, it is true that the imposable penalty for the
offense is high. Nevertheless, the rationale for the imposition of a higher penalty against a domestic
servant is the fact that in the commission of the crime, the helper will essentially gravely abuse the
trust and confidence reposed upon her by her employer. After accepting and allowing the helper to
be a member of the household, thus entrusting upon such person the protection and safekeeping of
the employer’s loved ones and properties, a subsequent betrayal of that trust is so repulsive as to
warrant the necessity of imposing a higher penalty to deter the commission of such wrongful acts.

There are other crimes where the penalty of fine and/or imprisonment are dependent on the subject
matter of the crime and which, by adopting the proposal, may create serious implications. For
example, in the crime of Malversation, the penalty imposed depends on the amount of the money
malversed by the public official, thus:

Art. 217. Malversation of public funds or property; Presumption of malversation. — Any public officer
who, by reason of the duties of his office, is accountable for public funds or property, shall
appropriate the same or shall take or misappropriate or shall consent, through abandonment or
negligence, shall permit any other person to take such public funds, or property, wholly or partially,
or shall otherwise be guilty of the misappropriation or malversation of such funds or property, shall
suffer:

1. The penalty of prision correccional in its medium and maximum periods, if the amount
involved in the misappropriation or malversation does not exceed two hundred pesos.

2. The penalty of prision mayor in its minimum and medium periods, if the amount involved is
more than two hundred pesos but does not exceed six thousand pesos.
 3. The penalty of prision mayor in its maximum period to reclusion temporal in its minimum
period, if the amount involved is more than six thousand pesos but is less than twelve
thousand pesos.

4. The penalty of reclusion temporal, in its medium and maximum periods, if the amount
involved is more than twelve thousand pesos but is less than twenty-two thousand pesos. If
the amount exceeds the latter, the penalty shall be reclusion temporal in its maximum period
to reclusion perpetua.

In all cases, persons guilty of malversation shall also suffer the penalty of perpetual special
disqualification and a fine equal to the amount of the funds malversed or equal to the total value of
the property embezzled.

The failure of a public officer to have duly forthcoming any public funds or property with which he is
chargeable, upon demand by any duly authorized officer, shall be prima facie evidence that he has
put such missing funds or property to personal use.

The above-provisions contemplate a situation wherein the Government loses money due to the
unlawful acts of the offender. Thus, following the proposal, if the amount malversed is ₱200.00
(under the existing law), the amount now becomes ₱20,000.00 and the penalty is prision
correccional in its medium and maximum periods (2 years 4 months and 1 day to 6 years). The
penalty may not be commensurate to the act of embezzlement of ₱20,000.00 compared to the acts
committed by public officials punishable by a special law, i.e., Republic Act No. 3019 or the Anti-
Graft and Corrupt Practices Act, specifically Section 3,31 wherein the injury caused to the government
is not generally defined by any monetary amount, the penalty (6 years and 1 month to 15
years)32 under the Anti-Graft Law will now become higher. This should not be the case, because in
the crime of malversation, the public official takes advantage of his public position to embezzle the
fund or property of the government entrusted to him.

The said inequity is also apparent in the crime of Robbery with force upon things (inhabited or
uninhabited) where the value of the thing unlawfully taken and the act of unlawful entry are the
bases of the penalty imposable, and also, in Malicious Mischief, where the penalty of imprisonment
or fine is dependent on the cost of the damage caused.

In Robbery with force upon things (inhabited or uninhabited), if we increase the value of the thing
unlawfully taken, as proposed in the ponencia, the sole basis of the penalty will now be the value of
the thing unlawfully taken and no longer the element of force employed in entering the premises. It
may likewise cause an inequity between the crime of Qualified Trespass to Dwelling under Article
280, and this kind of robbery because the former is punishable by prision correccional in its medium
and maximum periods (2 years, 4 months and 1 day to 6 years) and a fine not exceeding ₱1,000.00
(₱100,000.00 now if the ratio is 1:100) where entrance to the premises is with violence or
intimidation, which is the main justification of the penalty. Whereas in the crime of Robbery with force
upon things, it is punished with a penalty of prision mayor (6 years and 1 day to 12 years) if the
intruder is unarmed without the penalty of Fine despite the fact that it is not merely the illegal entry
that is the basis of the penalty but likewise the unlawful taking.

Furthermore, in the crime of Other Mischiefs under Article 329, the highest penalty that can be
imposed is arresto mayor in its medium and maximum periods (2 months and 1 day to 6 months) if
the value of the damage caused exceeds ₱1,000.00, but under the proposal, the value of the
damage will now become ₱100,000.00 (1:100), and still punishable by arresto mayor (1 month and 1
day to 6 months). And, if the value of the damaged property does not exceed ₱200.00, the penalty is
arresto menor or a fine of not less than the value of the damage caused and not more than ₱200.00,
if the amount involved does not exceed ₱200.00 or cannot be estimated. Under the proposal,
₱200.00 will now become ₱20,000.00, which simply means that the fine of ₱200.00 under the
existing law will now become ₱20,000.00. The amount of Fine under this situation will now become
excessive and afflictive in nature despite the fact that the offense is categorized as a light felony
penalized with a light penalty under Article 26 of the RPC.33 Unless we also amend Article 26 of the
RPC, there will be grave implications on the penalty of Fine, but changing the same through Court
decision, either expressly or impliedly, may not be legally and constitutionally feasible.

There are other crimes against property and swindling in the RPC that may also be affected by the
proposal, such as those that impose imprisonment and/or Fine as a penalty based on the value of
the damage caused, to wit: Article 311 (Theft of the property of the National Library and National
Museum), Article 312 (Occupation of real property or usurpation of real rights in property), Article
313 (Altering boundaries or landmarks), Article 316 (Other forms of swindling), Article 317 (Swindling
a minor), Article 318 (Other deceits), Article 328 (Special cases of malicious mischief) and Article
331 (Destroying or damaging statues, public monuments or paintings). Other crimes that impose
Fine as a penalty will also be affected, such as: Article 213 (Frauds against the public treasury and
similar offenses), Article 215 (Prohibited Transactions),

Article 216 (Possession of prohibited interest by a public officer), Article 218 (Failure of accountable
officer to render accounts), Article 219 (Failure of a responsible public officer to render accounts
before leaving the country).

In addition, the proposal will not only affect crimes under the RPC. It will also affect crimes which are
punishable by special penal laws, such as Illegal Logging or Violation of Section 68 of Presidential
Decree No. 705, as amended.34The law treats cutting, gathering, collecting and possessing timber or
other forest products without license as an offense as grave as and equivalent to the felony of
qualified theft.35 Under the law, the offender shall be punished with the penalties imposed under
Articles 309 and 31036 of the Revised Penal Code, which means that the penalty imposable for the
offense is, again, based on the value of the timber or forest products involved in the offense. Now, if
we accept the said proposal in the crime of Theft, will this particular crime of Illegal Logging be
amended also in so far as the penalty is concerned because the penalty is dependent on Articles
309 and 310 of the RPC? The answer is in the negative because the soundness of this particular law
is not in question.

With the numerous crimes defined and penalized under the Revised Penal Code and Special Laws,
and other related provisions of these laws affected by the proposal, a thorough study is needed to
determine its effectivity and necessity. There may be some provisions of the law that should be
amended; nevertheless, this Court is in no position to conclude as to the intentions of the framers of
the Revised Penal Code by merely making a study of the applicability of the penalties imposable in
the present times. Such is not within the competence of the Court but of the Legislature which is
empowered to conduct public hearings on the matter, consult legal luminaries and who, after due
proceedings, can decide whether or not to amend or to revise the questioned law or other laws, or
even create a new legislation which will adopt to the times.

Admittedly, Congress is aware that there is an urgent need to amend the Revised Penal Code.
During the oral arguments, counsel for the Senate informed the Court that at present, fifty-six (56)
bills are now pending in the Senate seeking to amend the Revised Penal Code,37 each one
proposing much needed change and updates to archaic laws that were promulgated decades ago
when the political, socio-economic, and cultural settings were far different from today’s conditions.

Verily, the primordial duty of the Court is merely to apply the law in such a way that it shall not usurp
legislative powers by judicial legislation and that in the course of such application or construction, it
should not make or supervise legislation, or under the guise of interpretation, modify, revise, amend,
distort, remodel, or rewrite the law, or give the law a construction which is repugnant to its
terms.38 The Court should apply the law in a manner that would give effect to their letter and spirit,
especially when the law is clear as to its intent and purpose. Succinctly put, the Court should shy
away from encroaching upon the primary function of a co-equal branch of the Government;
otherwise, this would lead to an inexcusable breach of the doctrine of separation of powers by
means of judicial legislation.

Moreover, it is to be noted that civil indemnity is, technically, not a penalty or a Fine; hence, it can be
increased by the Court when appropriate. Article 2206 of the Civil Code provides:

Art. 2206. The amount of damages for death caused by a crime or quasi-delict shall be at least three
thousand pesos, even though there may have been mitigating circumstances. In addition:

(1) The defendant shall be liable for the loss of the earning capacity of the deceased, and the
indemnity shall be paid to the heirs of the latter; such indemnity shall in every case be
assessed and awarded by the court, unless the deceased on account of permanent physical
disability not caused by the defendant, had no earning capacity at the time of his death;

(2) If the deceased was obliged to give support according to the provisions of Article 291, the
recipient who is not an heir called to the decedent's inheritance by the law of testate or
intestate succession, may demand support from the person causing the death, for a period
not exceeding five years, the exact duration to be fixed by the court;

(3) The spouse, legitimate and illegitimate descendants and ascendants of the deceased
may demand moral damages for mental anguish by reason of the death of the deceased.

In our jurisdiction, civil indemnity is awarded to the offended party as a kind of monetary restitution or
compensation to the victim for the damage or infraction that was done to the latter by the accused,
which in a sense only covers the civil aspect. Precisely, it is civil indemnity. Thus, in a crime where a
person dies, in addition to the penalty of imprisonment imposed to the offender, the accused is also
ordered to pay the victim a sum of money as restitution. Clearly, this award of civil indemnity due to
the death of the victim could not be contemplated as akin to the value of a thing that is unlawfully
taken which is the basis in the imposition of the proper penalty in certain crimes. Thus, the reasoning
in increasing the value of civil indemnity awarded in some offense cannot be the same reasoning
that would sustain the adoption of the suggested ratio. Also, it is apparent from Article 2206 that the
law only imposes a minimum amount for awards of civil indemnity, which is ₱3,000.00. The law did
not provide for a ceiling. Thus, although the minimum amount for the award cannot be changed,
increasing the amount awarded as civil indemnity can be validly modified and increased when the
present circumstance warrants it. Corollarily, moral damages under Article 222039 of the Civil Code
also does not fix the amount of damages that can be awarded. It is discretionary upon the court,
depending on the mental anguish or the suffering of the private offended party. The amount of moral
damages can, in relation to civil indemnity, be adjusted so long as it does not exceed the award of
civil indemnity.

In addition, some may view the penalty provided by law for the offense committed as tantamount to
cruel punishment. However, all penalties are generally harsh, being punitive in nature. Whether or
not they are excessive or amount to cruel punishment is a matter that should be left to lawmakers. It
is the prerogative of the courts to apply the law, especially when they are clear and not subject to
any other interpretation than that which is plainly written.
Similar to the argument of Dean Diokno, one of Justice Antonio Carpio’s opinions is that the
incremental penalty provision should be declared unconstitutional and that the courts should only
impose the penalty corresponding to the amount of ₱22,000.00, regardless if the actual amount
involved exceeds ₱22,000.00. As suggested, however, from now until the law is properly amended
by Congress, all crimes of Estafa will no longer be punished by the appropriate penalty. A
conundrum in the regular course of criminal justice would occur when every accused convicted of
the crime of estafa will be meted penalties different from the proper penalty that should be imposed.
Such drastic twist in the application of the law has no legal basis and directly runs counter to what
the law provides.

It should be noted that the death penalty was reintroduced in the dispensation of criminal justice by
the Ramos Administration by virtue of Republic Act No. 765940 in December 1993. The said law has
been questioned before this Court. There is, arguably, no punishment more cruel than that of death.
Yet still, from the time the death penalty was re-imposed until its lifting in June 2006 by Republic Act
No. 9346,41 the Court did not impede the imposition of the death penalty on the ground that it is a
"cruel punishment" within the purview of Section 19 (1),42 Article III of the Constitution. Ultimately, it
was through an act of Congress suspending the imposition of the death penalty that led to its non-
imposition and not via the intervention of the Court.

Even if the imposable penalty amounts to cruel punishment, the Court cannot declare the provision
of the law from which the proper penalty emanates unconstitutional in the present action. Not only is
it violative of due process, considering that the State and the concerned parties were not given the
opportunity to comment on the subject matter, it is settled that the constitutionality of a statute
cannot be attacked collaterally because constitutionality issues must be pleaded directly and not
collaterally,43 more so in the present controversy wherein the issues never touched upon the
constitutionality of any of the provisions of the Revised Penal Code.

Besides, it has long been held that the prohibition of cruel and unusual punishments is generally
aimed at the form or character of the punishment rather than its severity in respect of duration or
amount, and applies to punishments which public sentiment has regarded as cruel or obsolete, for
instance, those inflicted at the whipping post, or in the pillory, burning at the stake, breaking on the
wheel, disemboweling, and the like. Fine and imprisonment would not thus be within the prohibition.44

It takes more than merely being harsh, excessive, out of proportion, or severe for a penalty to be
obnoxious to the Constitution. The fact that the punishment authorized by the statute is severe does
not make it cruel and unusual. Expressed in other terms, it has been held that to come under the
ban, the punishment must be "flagrantly and plainly oppressive," "wholly disproportionate to the
nature of the offense as to shock the moral sense of the community."45

Cruel as it may be, as discussed above, it is for the Congress to amend the law and adapt it to our
modern time.

The solution to the present controversy could not be solved by merely adjusting the questioned
monetary values to the present value of money based only on the current inflation rate. There are
other factors and variables that need to be taken into consideration, researched, and deliberated
upon before the said values could be accurately and properly adjusted. The effects on the society,
the injured party, the accused, its socio-economic impact, and the likes must be painstakingly
evaluated and weighed upon in order to arrive at a wholistic change that all of us believe should be
made to our existing law. Dejectedly, the Court is ill-equipped, has no resources, and lacks sufficient
personnel to conduct public hearings and sponsor studies and surveys to validly effect these
changes in our Revised Penal Code. This function clearly and appropriately belongs to Congress.
Even Professor Tadiar concedes to this conclusion, to wit:
 xxxx

JUSTICE PERALTA:

Yeah, Just one question. You are suggesting that in order to determine the value of Peso you have
to take into consideration several factors.

PROFESSOR TADIAR:

Yes.

JUSTICE PERALTA:

Per capita income.

PROFESSOR TADIAR:

Per capita income.

JUSTICE PERALTA:

Consumer price index.

PROFESSOR TADIAR:

Yeah.

JUSTICE PERALTA:

Inflation ...

PROFESSOR TADIAR:

Yes.

JUSTICE PERALTA:

... and so on. Is the Supreme Court equipped to determine those factors?

PROFESSOR TADIAR:

There are many ways by which the value of the Philippine Peso can be determined utilizing all of
those economic terms.

JUSTICE PERALTA:

Yeah, but ...

PROFESSOR TADIAR:
And I don’t think it is within the power of the Supreme Court to pass upon and peg the value to One
Hundred (₱100.00) Pesos to ...

JUSTICE PERALTA:

Yeah.

PROFESSOR TADIAR:

... One (₱1.00.00) Peso in 1930.

JUSTICE PERALTA:

That is legislative in nature.

PROFESSOR TADIAR:

That is my position that the Supreme Court ...

JUSTICE PERALTA:

Yeah, okay.

PROFESSOR TADIAR:

... has no power to utilize the power of judicial review to in order to adjust, to make the adjustment
that is a power that belongs to the legislature.

JUSTICE PERALTA:

Thank you, Professor.

PROFESSOR TADIAR:

Thank you.46

Finally, the opinion advanced by Chief Justice Maria Lourdes P. A. Sereno echoes the view that the
role of the Court is not merely to dispense justice, but also the active duty to prevent injustice. Thus,
in order to prevent injustice in the present controversy, the Court should not impose an obsolete
penalty pegged eighty three years ago, but consider the proposed ratio of 1:100 as simply
compensating for inflation. Furthermore, the Court has in the past taken into consideration "changed
conditions" or "significant changes in circumstances" in its decisions.

Similarly, the Chief Justice is of the view that the Court is not delving into the validity of the
substance of a statute. The issue is no different from the Court’s adjustment of indemnity in crimes
against persons, which the Court had previously adjusted in light of current times, like in the case of
People v. Pantoja.47 Besides, Article 10 of the Civil Code mandates a presumption that the
lawmaking body intended right and justice to prevail.
With due respect to the opinions and proposals advanced by the Chief Justice and my Colleagues,
all the proposals ultimately lead to prohibited judicial legislation. Short of being repetitious and as
extensively discussed above, it is truly beyond the powers of the Court to legislate laws, such
immense power belongs to Congress and the Court should refrain from crossing this clear-cut
divide. With regard to civil indemnity, as elucidated before, this refers to civil liability which is
awarded to the offended party as a kind of monetary restitution. It is truly based on the value of
money. The same cannot be said on penalties because, as earlier stated, penalties are not only
based on the value of money, but on several other factors. Further, since the law is silent as to the
maximum amount that can be awarded and only pegged the minimum sum, increasing the amount
granted as civil indemnity is not proscribed. Thus, it can be adjusted in light of current conditions.

Now, with regard to the penalty imposed in the present case, the CA modified the ruling of the RTC.
The RTC imposed the indeterminate penalty of four (4) years and two (2) months of prision
correccional in its medium period, as minimum, to fourteen (14) years and eight (8) months of
reclusion temporal in its minimum period, as maximum. However, the CA imposed the indeterminate
penalty of four (4) years and two (2) months of prision correccional, as minimum, to eight (8) years of
prision mayor, as maximum, plus one (1) year for each additional ₱10,000.00, or a total of seven (7)
years.

In computing the penalty for this type of estafa, this Court's ruling in Cosme, Jr. v. People48 is highly
instructive, thus:

With respect to the imposable penalty, Article 315 of the Revised Penal Code provides:

ART. 315 Swindling (estafa). - Any person who shall defraud another by any of the means
mentioned hereinbelow shall be punished by:

1st. The penalty of prision correccional in its maximum period to prision mayor in its minimum period,
if the amount of the fraud is over 12,000 but does not exceed 22,000 pesos, and if such amount
exceeds the latter sum, the penalty provided in this paragraph shall be imposed in its maximum
period, adding one year for each additional 10,000 pesos; but the total penalty which may be
imposed shall not exceed twenty years. In such case, and in connection with the accessory penalties
which may be imposed and for the purpose of the other provisions of this Code, the penalty shall be
termed prision mayor or reclusion temporal, as the case may be.

The penalty prescribed by Article 315 is composed of only two, not three, periods, in which case,
Article 65 of the same Code requires the division of the time included in the penalty into three equal
portions of time included in the penalty prescribed, forming one period of each of the three portions.
Applying the latter provisions, the maximum, medium and minimum periods of the penalty prescribed
are:

Maximum - 6 years, 8 months, 21 days to 8 years

Medium - 5 years, 5 months, 11 days to 6 years, 8 months, 20 days

Minimum - 4 years, 2 months, 1 day to 5 years, 5 months, 10 days49

To compute the maximum period of the prescribed penalty, prisión correccional maximum to prisión
mayor minimum should be divided into three equal portions of time each of which portion shall be
deemed to form one period in accordance with Article 6550 of the RPC.51 In the present case, the
amount involved is ₱98,000.00, which exceeds ₱22,000.00, thus, the maximum penalty imposable
should be within the maximum period of 6 years, 8 months and 21 days to 8 years of prision mayor.
Article 315 also states that a period of one year shall be added to the penalty for every additional
₱10,000.00 defrauded in excess of ₱22,000.00, but in no case shall the total penalty which may be
imposed exceed 20 years.

Considering that the amount of ₱98,000.00 is ₱76,000.00 more than the ₱22,000.00 ceiling set by
law, then, adding one year for each additional ₱10,000.00, the maximum period of 6 years, 8 months
and 21 days to 8 years of prision mayor minimum would be increased by 7 years. Taking the
maximum of the prescribed penalty, which is 8 years, plus an additional 7 years, the maximum of the
indeterminate penalty is 15 years.

Applying the Indeterminate Sentence Law, since the penalty prescribed by law for the estafa charge
against petitioner is prision correccional maximum to prision mayor minimum, the penalty next lower
would then be prision correccional in its minimum and medium periods.

Thus, the minimum term of the indeterminate sentence should be anywhere from 6 months and 1
day to 4 years and 2 months.

One final note, the Court should give Congress a chance to perform its primordial duty of lawmaking.
The Court should not pre-empt Congress and usurp its inherent powers of making and enacting
laws. While it may be the most expeditious approach, a short cut by judicial fiat is a dangerous
proposition, lest the Court dare trespass on prohibited judicial legislation.

WHEREFORE, the Petition for Review on Certiorari dated November 5, 2007 of petitioner Lito
Corpuz is hereby DENIED. Consequently, the Decision dated March 22, 2007 and Resolution dated
September 5, 2007 of the Court of Appeals, which affirmed with modification the Decision dated July
30, 2004 of the Regional Trial Court, Branch 46, San Fernando City, finding petitioner guilty beyond
reasonable doubt of the crime of Estafa under Article 315, paragraph (1), sub-paragraph (b) of the
Revised Penal Code, are hereby AFFIRMED with MODIFICATION that the penalty imposed is the
indeterminate penalty of imprisonment ranging from THREE (3) YEARS, TWO (2) MONTHS and
ELEVEN DAYS of prision correccional, as minimum, to FIFTEEN (15) YEARS of reclusion temporal
as maximum.

Pursuant to Article 5 of the Revised Penal Code, let a Copy of this Decision be furnished the
President of the Republic of the Philippines, through the Department of Justice.

Also, let a copy of this Decision be furnished the President of the Senate and the Speaker of the
House of Representatives.

SO ORDERED.
People v. Ferrer, L-32613-14, 27 December 1972, 48 SCRA 382

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. Nos. L-32613-14 December 27, 1972

PEOPLE OF THE PHILIPPINES, petitioner,

vs.
HON. SIMEON. FERRER (in his capacity as Judge of the Court of First Instance of Tarlac,
Branch I), FELICIANO CO alias LEONCIO CO alias "Bob," and NILO S. TAYAG alias Romy
Reyes alias "Taba," respondents.

Solicitor R. Mutuc for respondent Feliciano Co.

Jose W. Diokno for respondent Nilo Tayag.

CASTRO, J.:p

I. Statement of the Case

Posed in issue in these two cases is the constitutionality of the Anti-Subversion

Act,1 which outlaws the Communist Party of the Philippines and other "subversive associations," and punishes any person who "knowingly,
willfully and by overt acts affiliates himself with, becomes or remains a member" of the Party or of any other similar "subversive" organization.

On March 5, 1970 a criminal complaint for violation of section 4 of the Anti-Subversion Act was filed
against the respondent Feliciano Co in the Court of First Instance of Tarlac. On March 10 Judge
Jose C. de Guzman conducted a preliminary investigation and, finding a prima facie case against
Co, directed the Government prosecutors to file the corresponding information. The twice-amended
information, docketed as Criminal Case No. 27, recites:

That on or about May 1969 to December 5, 1969, in the Municipality of Capas,

Province of Tarlac, Philippines, and within the jurisdiction of this Honorable Court, the
abovenamed accused, feloniously became an officer and/or ranking leader of the
Communist Party of the Philippines, an outlawed and illegal organization aimed to
overthrow the Government of the Philippines by means of force, violence, deceit,
subversion, or any other illegal means for the purpose of establishing in the
Philippines a totalitarian regime and placing the government under the control and
domination of an alien power, by being an instructor in the Mao Tse Tung University,
the training school of recruits of the New People's Army, the military arm of the said
Communist Party of the Philippines.

That in the commission of the above offense, the following aggravating

circumstances are present, to wit:
 (a) That the crime has been committed in contempt of or with insult to public
authorities;

(b) That the crime was committed by a band; and afford impunity.

(c) With the aid of armed men or persons who insure or afford impunity.

Co moved to quash on the ground that the Anti-Subversion Act is a bill of attainder.

Meanwhile, on May 25, 1970, another criminal complaint was filed with the same court, sharing the
respondent Nilo Tayag and five others with subversion. After preliminary investigation was had, an
information was filed, which, as amended, reads:

The undersigned provincial Fiscal of Tarlac and State Prosecutors duly designated
by the Secretary of Justice to collaborate with the Provincial Fiscal of Tarlac,
pursuant to the Order dated June 5, above entitled case, hereby accuse Nilo S.
Tayag, alias Romy Reyes alias TABA, ARTHUR GARCIA, RENATO (REY) CASIPE,
ABELARDO GARCIA, MANUEL ALAVADO, BENJAMIN BIE alias COMMANDER
MELODY and several JOHN DOES, whose identities are still unknown, for violation
of REPUBLIC ACT No. 1700, otherwise known as the Anti-Subversion Law,
committed as follows:

That in or about March 1969 and for sometime prior thereto and thereafter, in the
Province of Tarlac, within the jurisdiction of this Honorable Court, and elsewhere in
the Philippines, the above-named accused knowingly, willfully and by overt acts
organized, joined and/or remained as offices and/or ranking leaders, of the
KABATAANG MAKABAYAN, a subversive organization as defined in Republic Act
No. 1700; that BENJAMIN BIE and COMMANDER MELODY, in addition thereto,
knowingly, willfully and by over acts joined and/or remained as a member and
became an officer and/or ranking leader not only of the Communist Party of the
Philippines but also of the New People's Army, the military arm of the Communist
Party of the Philippines; and that all the above-named accused, as such officers
and/or ranking leaders of the aforestated subversive organizations, conspiring,
confederating and mutually helping one another, did then and there knowingly,
willfully and feloniously commit subversive and/or seditious acts, by inciting,
instigating and stirring the people to unite and rise publicly and tumultuously and take
up arms against the government, and/or engage in rebellious conspiracies and riots
to overthrow the government of the Republic of the Philippines by force, violence,
deceit, subversion and/or other illegal means among which are the following:

1. On several occasions within the province of Tarlac, the accused conducted

meetings and/or seminars wherein the said accused delivered speeches instigating
and inciting the people to unite, rise in arms and overthrow the Government of the
Republic of the Philippines, by force, violence, deceit, subversion and/or other illegal
means; and toward this end, the said accused organized, among others a chapter of
the KABATAANG MAKABAYAN in barrio Motrico, La Paz, Tarlac for the avowed
purpose of undertaking or promoting an armed revolution, subversive and/or
seditious propaganda, conspiracies, and/or riots and/or other illegal means to
discredit and overthrow the Government of the Republic of the Philippines and to
established in the Philippines a Communist regime.
 2. The accused NILO TAYAG alias ROMY REYES alias TABA, together with
FRANCISCO PORTEM alias KIKO Gonzales and others, pursued the above
subversive and/or seditious activities in San Pablo City by recruiting members for the
New People's Army, and/or by instigating and inciting the people to organize and
unite for the purpose of overthrowing the Government of the Republic of the
Philippines through armed revolution, deceit, subversion and/or other illegal means,
and establishing in the Philippines a Communist Government.

That the following aggravating circumstances attended the commission of the

offense: (a) aid of armed men or persons to insure or afford impunity; and (b) craft,
fraud, or disguise was employed.

On July 21, 1970 Tayag moved to quash, impugning the validity of the statute on the grounds that
(1) it is a bill of attainder; (2) it is vague; (3) it embraces more than one subject not expressed in the
title thereof; and (4) it denied him the equal protection of the laws.

Resolving the constitutional issues raised, the trial court, in its resolution of September 15, 1970,
declared the statute void on the grounds that it is a bill of attainder and that it is vague and
overboard, and dismissed the informations against the two accused. The Government appealed. We
resolved to treat its appeal as a special civil action for certiorari.

II. Is the Act a Bill of Attainder?

Article III, section 1 (11) of the Constitution states that "No bill of attainder or ex port facto law shall
be enacted."2 A bill of attainder is a legislative act which inflicts punishment without trial.3 Its essence
is the substitution of a legislative for a judicial determination of guilt.4 The constitutional ban against
bills of attainder serves to implement the principle of separation of powers 5 by confining legislatures
to
rule-making 6 and thereby forestalling legislative usurpation of the judicial function.7 History in
perspective, bills of attainder were employed to suppress unpopular causes and political
minorities, 8 and it is against this evil that the constitutional prohibition is directed. The singling out of
a definite class, the imposition of a burden on it, and a legislative intent, suffice to stigmatizea statute
as a bill of attainder. 9

In the case at bar, the Anti-Subversion Act was condemned by the court a quo as a bill of attainder
because it "tars and feathers" the Communist Party of the Philippines as a "continuing menace to the
freedom and security of the country; its existence, a 'clear, present and grave danger to the security
of the Philippines.'" By means of the Act, the trial court said, Congress usurped "the powers of the
judge," and assumed "judicial magistracy by pronouncing the guilt of the CCP without any of the
forms or safeguards of judicial trial." Finally, according to the trial court, "if the only issue [to be
determined] is whether or not the accused is a knowing and voluntary member, the law is still a bill of
attainder because it has expressly created a presumption of organizational guilt which the accused
can never hope to overthrow."

1. When the Act is viewed in its actual operation, it will be seen that it does not specify the
Communist Party of the Philippines or the members thereof for the purpose of punishment. What it
does is simply to declare the Party to be an organized conspiracy for the overthrow of the
Government for the purposes of the prohibition, stated in section 4, against membership in the
outlawed organization. The term "Communist Party of the Philippines" issued solely for definitional
purposes. In fact the Act applies not only to the Communist Party of the Philippines but also to "any
other organization having the same purpose and their successors." Its focus is not on individuals but
on conduct. 10
This feature of the Act distinguishes it from section 504 of the U.S. Federal Labor-Management
Reporting and Disclosure Act of 1959 11 which, in U.S. vs. Brown, 12 was held to be a bill of attainder
and therefore unconstitutional. Section 504 provided in its pertinent parts as follows:

(a) No person who is or has been a member of the Communist

Party ... shall serve —

(1) as an officer, director, trustee, member of any executive board or similar

governing body, business agent, manager, organizer, or other employee (other than
as an employee performing exclusively clerical or custodial duties) of any labor
organization.

during or for five years after the termination of his membership in the Communist
Party....

(b) Any person who willfully violates this section shall be fined not more than $10,000
or imprisoned for not more than one year, or both.

This statute specified the Communist Party, and imposes disability and penalties on its members.
Membership in the Party, without more, ipso facto disqualifies a person from becoming an officer or
a member of the governing body of any labor organization. As the Supreme Court of the United
States pointed out:

Under the line of cases just outlined, sec. 504 of the Labor Management Reporting
and Disclosure Act plainly constitutes a bill of attainder. Congress undoubtedly
possesses power under the Commerce Clause to enact legislation designed to keep
from positions affecting interstate commerce persons who may use of such positions
to bring about political strikes. In section 504, however, Congress has exceeded the
authority granted it by the Constitution. The statute does not set forth a generally
applicable rule decreeing that any person who commits certain acts or possesses
certain characteristics (acts and characteristics which, in Congress' view, make them
likely to initiate political strikes) shall not hold union office, and leaves to courts and
juries the job of deciding what persons have committed the specified acts or
possessed the specified characteristics. Instead, it designates in no uncertain terms
the persons who possess the feared characteristics and therefore cannot hold union
office without incurring criminal liability — members of the Communist Party.

Communist Party v. Subversive Activities Control Board, 367 US 1, 6 L ed 2d 625, 81

S CT 1357, lend a support to our conclusion. That case involved an appeal from an
order by the Control Board ordering the Communist Party to register as a
"Communist-action organization," under the Subversive Activities Control Act of
1950, 64 Stat 987, 50 USC sec. 781 et seq. (1958 ed). The definition of "Communist-
action organization" which the Board is to apply is set forth in sec. 3 of the Act:

[A]ny organization in the United States ... which (i)is substantially directed,
dominated, or controlled by the foreign government or foreign organization controlling
the world Communist movement referred to in section 2 of this title, and(ii) operates
primarily to advance the objectives of such world Communist movement... 64 Stat
989, 50 USC sec. 782 (1958 ed.)

A majority of the Court rejected the argument that the Act was a bill of attainder,
reasoning that sec. 3 does not specify the persons or groups upon which the
 deprivations setforth in the Act are to be imposed, but instead sets forth a general
definition. Although the Board has determined in 1953 that the Communist Party was
a "Communist-action organization," the Court found the statutory definition not to be
so narrow as to insure that the Party would always come within it:

In this proceeding the Board had found, and the Court of Appeals has sustained its
conclusion, that the Communist Party, by virtud of the activities in which it now
engages, comes within the terms of the Act. If the Party should at anytime choose to
abandon these activities, after it is once registered pursuant to sec. 7, the Act
provides adequate means of relief. (367 US, at 87, 6 L ed 2d at 683)

Indeed, were the Anti-Subversion Act a bill of attainder, it would be totally unnecessary to charge
Communists in court, as the law alone, without more, would suffice to secure their punishment. But
the undeniable fact is that their guilt still has to be judicially established. The Government has yet to
prove at the trial that the accused joined the Party knowingly, willfully and by overt acts, and that
they joined the Party, knowing its subversive character and with specific intent to further its basic
objective, i.e., to overthrow the existing Government by force deceit, and other illegal means and
place the country under the control and domination of a foreign power.

As to the claim that under the statute organizationl guilt is nonetheless imputed despite the
requirement of proof of knowing membership in the Party, suffice it to say that is precisely the nature
of conspiracy, which has been referred to as a "dragneet device" whereby all who participate in the
criminal covenant are liable. The contention would be correct if the statute were construed as
punishing mere membership devoid of any specific intent to further the unlawful goals of the
Party. 13 But the statute specifically required that membership must be knowing or active, with
specific intent to further the illegal objectives of the Party. That is what section 4 means when it
requires that membership, to be unlawful, must be shown to have been acquired "knowingly, willfully
and by overt acts." 14 The ingredient of specific intent to pursue the unlawful goals of the Party must
be shown by "overt acts." 15 This constitutes an element of "membership" distinct from the ingredient
of guilty knowledge. The former requires proof of direct participation in the organization's unlawful
activities, while the latter requires proof of mere adherence to the organization's illegal objectives.

2. Even assuming, however, that the Act specifies individuals and not activities, this feature is not
enough to render it a bill of attainder. A statute prohibiting partners or employees of securities
underwriting firms from serving as officers or employees of national banks on the basis of a
legislative finding that the persons mentioned would be subject to the temptation to commit acts
deemed inimical to the national economy, has been declared not to be a bill of attainder. 16 Similarly,
a statute requiring every secret, oath-bound society having a membership of at least twenty to
register, and punishing any person who becomes a member of such society which fails to register or
remains a member thereof, was declared valid even if in its operation it was shown to apply only to
the members of the Ku Klux Klan. 17

In the Philippines the validity of section 23 (b) of the Industrial Peace Act, 18 requiring labor unions to
file with the Department of Labor affidavits of union officers "to the effect that they are not members
of the Communist Party and that they are not members of any organization which teaches the
overthrow of the Government by force or by any illegal or unconstitutional method," was upheld by
this Court. 19

Indeed, it is only when a statute applies either to named individuals or to easily ascertainable
members of a group in such a way as to inflict punishment on them without a judicial trial does it
become a bill of attainder. 20 It is upon this ground that statutes which disqualified those who had
taken part in the rebellion against the Government of the United States during the Civil War from
holding office, 21 or from exercising their profession, 22 or which prohibited the payment of further
compensation to individuals named in the Act on the basis of a finding that they had engages in
subversive activities, 23 or which made it a crime for a member of the Communist Party to serve as an
officer or employee of a labor union, 24 have been invalidated as bills of attainder.

But when the judgment expressed in legislation is so universally acknowledged to be certain as to be

"judicially noticeable," the legislature may apply its own rules, and judicial hearing is not needed
fairly to make such determination. 25

In New York ex rel. Bryant vs. Zimmerman, 26 the New York legislature passed a law requiring every
secret, oath-bound society with a membership of at least twenty to register, and punishing any
person who joined or remained a member of such a society failing to register. While the statute did
not specify the Ku Klux Klan, in its operation the law applied to the KKK exclusively. In sustaining the
statute against the claim that it discriminated against the Ku Klux Klan while exempting other secret,
oath-bound organizations like masonic societies and the Knights of Columbus, the United States
Supreme Court relied on common knowledge of the nature and activities of the Ku Klux Klan. The
Court said:

The courts below recognized the principle shown in the cases just cited and reached
the conclusion that the classification was justified by a difference between the two
classes of associations shown by experience, and that the difference consisted (a) in
a manifest tendency on the part of one class to make the secrecy surrounding its
purpose and membership a cloak for acts and conduct inimical to personal rights and
public welfare, and (b) in the absence of such a tendency on the part of the other
class. In pointing out this difference one of the courts said of the Ku Klux Klan, the
principal association in the included class: "It is a matter of common knowledge that
this organization functions largely at night, its members disguised by hoods and
gowns and doing things calculated to strike terror into the minds of the people;" and
later said of the other class: "These organizations and their purposes are well known,
many of them having been in existence for many years. Many of them are oath-
bound and secret. But we hear no complaint against them regarding violation of the
peace or interfering with the rights of others." Another of the courts said: "It is a
matter of common knowledge that the association or organization of which the relator
is concededly a member exercises activities tending to the prejudice and intimidation
of sundry classes of our citizens. But the legislation is not confined to this society;"
and later said of the other class: "Labor unions have a recognized lawful purpose.
The benevolent orders mentioned in the Benevolent Orders Law have already
received legislative scrutiny and have been granted special privileges so that the
legislature may well consider them beneficial rather than harmful agencies." The third
court, after recognizing "the potentialities of evil in secret societies," and observing
that "the danger of certain organizations has been judicially demonstrated," —
meaning in that state, — said: "Benevolent orders, labor unions and college
fraternities have existed for many years, and, while not immune from hostile criticism,
have on the whole justified their existence."

We assume that the legislature had before it such information as was readily
available including the published report of a hearing, before a committee of the
House of Representatives of the 57th Congress relating to the formation, purposes
and activities of the Klu Klux Klan. If so it was advised — putting aside controverted
evidence — that the order was a revival of the Ku Klux Klan of an earlier time with
additional features borrowed from the Know Nothing and the A. P. A. orders of other
periods; that its memberships was limited to native-born, gentile, protestant whites;
that in part of its constitution and printed creed it proclaimed the widest freedom for
 all and full adherence to the Constitution of the United States; in another exacted of
its member an oath to shield and preserve "white supremacy;" and in still another
declared any person actively opposing its principles to be "a dangerous ingredient in
the body politic of our country and an enemy to the weal of our national
commonwealth;" that it was conducting a crusade against Catholics, Jews, and
Negroes, and stimulating hurtful religious and race prejudices; that it was striving for
political power and assuming a sort of guardianship over the administration of local,
state and national affairs; and that at times it was taking into its own hands the
punishment of what some of its members conceived to be crimes. 27

In the Philippines the character of the Communist Party has been the object of continuing scrutiny by
this Court. In 1932 we found the Communist Party of the Philippines to be an illegal association. 28 In
1969 we again found that the objective of the Party was the "overthrow of the Philippine Government
by armed struggle and to establish in the Philippines a communist form of government similar to that
of Soviet Russia and Red China." 29 More recently, in Lansang vs. Garcia, 30 we noted the growth of
the Communist Party of the Philippines and the organization of Communist fronts among youth
organizations such as the Kabataang Makabayan (KM) and the emergence of the New People's
Army. After meticulously reviewing the evidence, we said: "We entertain, therefore, no doubts about
the existence of a sizeable group of men who have publicly risen in arms to overthrow the
government and have thus been and still are engaged in rebellion against the Government of the
Philippines.

3. Nor is it enough that the statute specify persons or groups in order that it may fall within the ambit
of the prohibition against bills of attainder. It is also necessary that it must apply retroactively and
reach past conduct. This requirement follows from the nature of a bill of attainder as a legislative
adjudication of guilt. As Justice Frankfurter observed, "frequently a bill of attainder was ... doubly
objectionable because of its ex post facto features. This is the historic explanation for uniting the two
mischiefs in one
clause — 'No Bill of Attainder or ex post facto law shall be passed.' ... Therefore, if [a statute] is a bill
of attainder it is also an ex post facto law. But if it is not an ex post facto law, the reasons that
establish that it is not are persuasive that it cannot be a bill of attainder." 31

Thus in Gardner vs. Board of Public Works, 32 the U.S. Supreme Court upheld the validity of the
Charter of the City of Los Angeles which provided:

... [N]o person shall hold or retain or be eligible for any public office or employment in
the service of the City of Los Angeles, in any office or department thereof, either
elective or appointive, who has within five (5) years prior to the effective date of this
section advised, advocated, or taught, or who may, after this section becomes
effective, become a member of or affiliated with any group, society, association,
organization or party which advises, advocates or teaches or has within said period
of five (5) years advised, advocated, or taught the overthrow by force or violence of
the Government of the United States of America or of the State of California.

In upholding the statute, the Court stressed the prospective application of the Act to the petitioner
therein, thus:

... Immaterial here is any opinion we might have as to the charter provision insofar as
it purported to apply restrospectively for a five-year period to its effective date. We
assume that under the Federal Constitution the Charter Amendment is valid to the
extent that it bars from the city's public service persons who, subsequently to its
adoption in 1941, advise, advocate, or reach the violent overthrow of the
 Government or who are or become affiliated with any group doing so. The provisions
operating thus prospectively were a reasonable regulation to protect the municipal
service by establishing an employment qualification of loyalty to the State and the
United States.

... Unlike the provisions of the charter and ordinance under which petitioners were
removed, the statute in the Lovett case did not declare general and prospectively
operative standards of qualification and eligibility for public employment. Rather, by
its terms it prohibited any further payment of compensationto named individuals or
employees. Under these circumstances, viewed against the legislative background,
the statutewas held to have imposed penalties without judicial trial.

Indeed, if one objection to the bill of attainder is thatCongress thereby assumed judicial magistracy,
them it mustbe demonstrated that the statute claimed to be a bill of attainderreaches past conduct
and that the penalties it imposesare inescapable. As the U.S. Supreme Court observedwith respect
to the U.S. Federal Subversive Activities ControlAct of 1950:

Nor is the statute made an act of "outlawry" or of attainderby the fact that the conduct
which it regulates is describedwith such particularity that, in probability, few
organizationswill come within the statutory terms. Legislatures may act tocurb
behaviour which they regard as harmful to the public welfare,whether that conduct is
found to be engaged in by manypersons or by one. So long as the incidence of
legislation issuch that the persons who engage in the regulated conduct, bethey
many or few, can escape regulation merely by altering thecourse of their own present
activities, there can be no complaintof an attainder. 33

This statement, mutatis mutandis, may be said of theAnti-Subversion Act. Section 4 thereof
expressly statesthat the prohibition therein applies only to acts committed"After the approval of this
Act." Only those who "knowingly,willfully and by overt acts affiliate themselves with,become or
remain members of the Communist Party of thePhilippines and/or its successors or of any
subversive association"after June 20, 1957, are punished. Those whowere members of the Party or
of any other subversive associationat the time of the enactment of the law, weregiven the
opportunity of purging themselves of liability byrenouncing in writing and under oath their
membershipin the Party. The law expressly provides that such renunciationshall operate to exempt
such persons from penalliability. 34 The penalties prescribed by the Act are thereforenot inescapable.

III. The Act and the Requirements of Due Process

1. As already stated, the legislative declaration in section 2 of the Act that the Communist Party of
the Philippinesis an organized conspiracy for the overthrow of theGovernment is inteded not to
provide the basis for a legislativefinding of guilt of the members of the Party butrather to justify the
proscription spelled out in section 4. Freedom of expression and freedom of association are
sofundamental that they are thought by some to occupy a"preferred position" in the hierarchy of
constitutional values. 35 Accordingly, any limitation on their exercise mustbe justified by the existence
of a substantive evil. This isthe reason why before enacting the statute in question
Congressconducted careful investigations and then stated itsfindings in the preamble, thus:

... [T]he Communist Party of the Philippines althoughpurportedly a political party, is in

fact an organized conspiracyto overthrow the Government of the Republic of the
Philippinesnot only by force and violence but also by deceit, subversionand other
illegal means, for the purpose of establishing in thePhilippines a totalitarian regime
subject to alien dominationand control;
 ... [T]he continued existence and activities of the CommunistParty of the Philippines
constitutes a clear, present andgrave danger to the security of the Philippines;

... [I]n the face of the organized, systematice and persistentsubversion, national in
scope but international in direction,posed by the Communist Party of the Philippines
and its activities,there is urgent need for special legislation to cope withthis
continuing menace to the freedom and security of the country.

In truth, the constitutionality of the Act would be opento question if, instead of making these findings
in enactingthe statute, Congress omitted to do so.

In saying that by means of the Act Congress has assumed judicial magistracy, the trial courd failed
to takeproper account of the distinction between legislative fact and adjudicative fact. Professor Paul
Freund elucidatesthe crucial distinction, thus:

... A law forbidding the sale of beverages containingmore than 3.2 per cent of alcohol
would raise a question of legislativefact, i.e., whether this standard has a reasonable
relationto public health, morals, and the enforcement problem. Alaw forbidding the
sale of intoxicating beverages (assuming itis not so vague as to require
supplementation by rule-making)would raise a question of adjudicative fact, i.e.,
whether thisor that beverage is intoxicating within the meaning of the statuteand the
limits on governmental action imposed by the Constitution. Of course what we mean
by fact in each case is itselfan ultimate conclusion founded on underlying facts and
oncriteria of judgment for weighing them.

A conventional formulation is that legislative facts — those facts which are relevant to
the legislative judgment — will not be canvassed save to determine whether there is
a rationalbasis for believing that they exist, while adjudicativefacts — those which tie
the legislative enactment to the litigant — are to be demonstrated and found
according to the ordinarystandards prevailing for judicial trials. 36

The test formulated in Nebbia vs. new York, 37 andadopted by this Court in Lansang vs. Garcia, 38 is
that 'if laws are seen to have a reasonable relation to a proper legislative purpose, and are neither
arbitrary nor discriminatory, the requirements of due process are satisfied, and judicial determination
to that effect renders a court functus officio." The recital of legislative findings implements this test.

With respect to a similar statement of legislative findingsin the U.S. Federal Subversive Activities
Control Actof 1950 (that "Communist-action organizations" are controlledby the foreign government
controlling the worldCommunist movement and that they operate primarily to"advance the objectives
of such world Communist movement"),the U.S. Supreme Court said:

It is not for the courts to reexamine the validity of theselegislative findings and reject
them....They are the productof extensive investigation by Committes of Congress
over morethan a decade and a half. Cf. Nebbia v. New York, 291 U.S.502, 516, 530.
We certainly cannot dismiss them as unfoundedirrational imaginings. ... And if we
accept them, as we mustas a not unentertainable appraisal by Congress of the
threatwhich Communist organizations pose not only to existing governmentin the
United States, but to the United States as asovereign, independent Nation. ...we
must recognize that thepower of Congress to regulate Communist organizations of
thisnature is
extensive. 39
This statement, mutatis mutandis, may be said of thelegislative findings articulated in the Anti-
Subversion Act.

That the Government has a right to protect itself againstsubversion is a proposition too plain to
require elaboration.Self-preservation is the "ultimate value" of society. It surpasses and transcendes
every other value, "forif a society cannot protect its very structure from armedinternal attack, ...no
subordinate value can be protected" 40 As Chief Justice Vinson so aptly said in Dennis vs. United
States: 41

Whatever theoretical merit there may be to the argumentthat there is a 'right' to

rebellion against dictatorial governmentsis without force where the existing structure
of government provides for peaceful and orderly change. We rejectany principle of
governmental helplessness in the face of preparationfor revolution, which principle,
carried to its logical conclusion,must lead to anarchy. No one could conceive that it
isnot within the power of Congress to prohibit acts intended tooverthrow the
government by force and violence.

2. By carefully delimiting the reach of the Act to conduct (as explicitly described in sectin 4 thereof),
Congressreaffirmed its respect for the rule that "even throughthe governmental purpose be
legitimate and substantial,that purpose cannot be pursued by means that broadly stiflefundamental
personal liberties when the end can be more narrowly achieved." 42 The requirement
of knowing membership,as distinguished from nominal membership, hasbeen held as a sufficient
basis for penalizing membershipin a subversive organization. 43 For, as has been stated:

Membership in an organization renders aid and encouragement to the organization;

and when membership is acceptedor retained with knowledge that the organization is
engaged inan unlawful purpose, the one accepting or retaining membershipwith such
knowledge makes himself a party to the unlawfulenterprise in which it is engaged. 44

3. The argument that the Act is unconstitutionallyoverbroad because section 2 merely speaks of
"overthrow"of the Government and overthrow may be achieved by peaceful means, misconceives
the function of the phrase"knowingly, willfully and by overt acts" in section 4. Section 2 is merely a
legislative declaration; the definitionsof and the penalties prescribed for the different acts
prescribedare stated in section 4 which requires that membershipin the Communist Party of the
Philippines, to be unlawful, must be acquired "knowingly, willfully and by overt acts." Indeed, the first
"whereas" clause makes clear thatthe overthrow contemplated is "overthrow not only by forceand
violence but also be deceit, subversion and other illegalmeans." The absence of this qualificatio in
section 2 appearsto be due more to an oversight rather than to deliberateomission.

Moreover, the word "overthrow' sufficiently connotesthe use of violent and other illegal means. Only
in a metaphoricalsense may one speak of peaceful overthrow ofgovernments, and certainly the law
does not speak in metaphors.In the case of the Anti-Subversion Act, the use ofthe word "overthrow"
in a metaphorical sense is hardlyconsistent with the clearly delineated objective of the
"overthrow,"namely, "establishing in the Philippines a totalitarianregime and place [sic] the
Government under thecontrol and domination of an alien power." What thisCourt once said in a
prosecution for sedition is appropos: "The language used by the appellant clearly imported
anoverthrow of the Government by violence, and it should beinterpreted in the plain and obvious
sense in which it wasevidently intended to be understood. The word 'overthrow'could not have been
intended as referring to an ordinarychange by the exercise of the elective franchise. The useof the
whip [which the accused exhorted his audience to useagainst the Constabulary], an instrument
designed toleave marks on the sides of adversaries, is inconsistentwith the mild interpretation which
the appellant wouldhave us impute to the language." 45
IV. The Act and the Guaranty of Free Expression

As already pointed out, the Act is aimed against conspiracies to overthrow the Government by force,
violence orother illegal means. Whatever interest in freedom of speechand freedom of association is
infringed by the prohibitionagainst knowing membership in the Communist Party ofthe Philippines, is
so indirect and so insubstantial as to beclearly and heavily outweighed by the overriding
considerationsof national security and the preservartion of democraticinstitutions in his country.

The membership clause of the U.S. Federal Smith Actis similar in many respects to the membership
provision ofthe Anti-Subversion Act. The former provides:

Whoever organizes or helps or attempts to organize anysociety, group, or assembly

of persons who teach, advocate, orencourage the overthrow or destruction of any
such governmentby force or violence; or becomes or is a member of, or affiliatedwith,
any such society, group or assembly of persons, knowingthe purpose thereof —

Shall be fined not more than $20,000 or imprisoned notmore than twenty years, or
both, and shall be ineligible for emplymentby the United States or any department or
agencythereof, for the five years next following his conviction.... 46

In sustaining the validity of this provision, the "Court said in Scales vs. United States: 47

It was settled in Dennis that advocacy with which we arehere concerned is not
constitutionally protected speech, and itwas further established that a combination to
promote suchadvocacy, albeit under the aegis of what purports to be a politicalparty,
is not such association as is protected by the firstAmendment. We can discern no
reason why membership, whenit constitutes a purposeful form of complicity in a
group engagingin this same forbidden advocacy, should receive anygreater degree
of protection from the guarantees of that Amendment.

Moreover, as was held in another case, where the problemsof accommodating the exigencies of
self-preservationand the values of liberty are as complex and intricate as inthe situation described in
the legislative findings stated inthe U.S. Federal Subversive Activities Control Act of 1950,the
legislative judgment as to how that threat may best bemet consistently with the safeguards of
personal freedomsis not to be set aside merely because the judgment of judgeswould, in the first
instance, have chosen other methods. 48 For in truth, legislation, "whether it restrains freedom tohire
or freedom to speak, is itself an effort at compromisebetween the claims of the social order and
individual freedom,and when the legislative compromise in either case isbrought to the judicial test
the court stands one step removedfrom the conflict and its resolution through law." 49

V. The Act and its Title

The respondent Tayag invokes the constitutional commandthat "no bill which may be enacted into
law shall embrace more than one subject which shall be expressed in the title of the bill." 50

What is assailed as not germane to or embraced in thetitle of the Act is the last proviso of section 4
which reads:

And provided, finally, That one who conspires with anyother person to overthrow the
Government of the Republic ofthe Philippines, or the government of any of its
political subdivisionsby force, violence, deceit, subversion or illegal means,for the
 purpose of placing such Government or political subdivisionunder the control and
domination of any lien power, shallbe punished by prision correccional to prision
mayor with allthe accessory penalties provided therefor in the same code.

It is argued that the said proviso, in reality, punishes notonly membership in the Communist Party of
the Philippinesor similar associations, but as well "any conspiracyby two persons to overthrow the
national or any local governmentby illegal means, even if their intent is not to establisha totalitarian
regime, burt a democratic regime, evenif their purpose is not to place the nation under an
aliencommunist power, but under an alien democratic power likethe United States or England or
Malaysia or even an anti-communistpower like Spain, Japan, Thailand or Taiwanor Indonesia."

The Act, in addition to its main title ("An Act to Outlawthe Communist Party of the Philippines and
SimilarAssociations, Penalizing Membership Therein, and forOther Purposes"), has a short title.
Section 1 providesthat "This Act shall be known as the
Anti-Subversion Act."Together with the main title, the short title of the statuteunequivocally indicates
that the subject matter is subversionin general which has for its fundamental purpose the
substitutionof a foreign totalitarian regime in place of theexisting Government and not merely
subversion by Communistconspiracies..

The title of a bill need not be a catalogue or an indexof its contents, and need not recite the details of
the Act. 51 It is a valid title if it indicates in broad but clear termsthe nature, scope, and consequences
of the proposed lawand its operation. 52 A narrow or technical construction isto be avoided, and the
statute will be read fairly and reasonablyin order not to thwart the legislative intent. We holdthat the
Anti-Subversion Act fully satisfies these requirements.

VI. Conclusion and Guidelines

In conclusion, even as we uphold the validity of theAnti-Subversion Act, we cannot overemphasize

the needfor prudence and circumspection in its enforcement, operatingas it does in the sensitive
area of freedom of expressionand belief. Accordingly, we set the following basic guidelines to be
observed in any prosecution under the Act.The Government, in addition to proving such
circumstancesas may affect liability, must establish the following elementsof the crime of joining the
Communist Party of the Philippinesor any other subversive association:

(1) In the case of subversive organizations other thanthe Communist Party of the Philippines, (a) that
thepurpose of the organization is to overthrow the presentGovernment of the Philippines and to
establish in thiscountry a totalitarian regime under the domination of aforeign power; (b) that the
accused joined such organization;and (c) that he did so knowingly, willfully and byovert acts; and

(2) In the case of the Communist Party of the Philippines,(a) that the CPP continues to pursue the
objectiveswhich led Congress in 1957 to declare it to be an organizedconspiracy for the overthrow of
the Government by illegalmeans for the purpose of placing the country under thecontrol of a foreign
power; (b) that the accused joined theCPP; and (c) that he did so willfully, knowingly and byovert
acts.

We refrain from making any pronouncement as to thecrime or remaining a member of the

Communist Party ofthe Philippines or of any other subversive association: weleave this matter to
future determination.

ACCORDINGLY, the questioned resolution of September15, 1970 is set aside, and these two cases
are herebyremanded to the court a quo for trial on the merits. Costs de oficio.
Makalintal, Zaldivar, Teehankee, Barredo and Esguerra, JJ., concur.

Concepcion, C.J., concurs in the result.

Makasiar and Antonio, JJ., took no part.

US v. Diaz Conde, L-18208, 14 February 1922

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. L-18208 February 14, 1922

THE UNITED STATES, plaintiff-appellee,

vs.
VICENTE DIAZ CONDE and APOLINARIA R. DE CONDE, defendants-appellants.

Araneta & Zaragoza for appellants.

Attorney-General Villareal for appellee.

JOHNSON, J.:

It appears from the record that on the 6th day of May, 1921, a complaint was presented in the Court
of First Instance of the city of Manila, charging the defendants with a violation of the Usury Law (Act
No. 2655). Upon said complaint they were each arrested, arraigned, and pleaded not guilty. The
cause was finally brought on for trial on the 1st day of September, 1921. At the close of the trial, and
after a consideration of the evidence adduced, the Honorable M. V. del Rosario, judge, found that
the defendants were guilty of the crime charged in the complaint and sentenced each of them to pay
a fine of P120 and, in case of insolvency, to suffer subsidiary imprisonment in accordance with the
provisions of the law. From that sentence each of the defendants appealed to this court.

The appellants now contend: (a) That the contract upon which the alleged usurious interest was
collected was executed before Act No. 2655 was adopted; (b) that at the time said contract was
made (December 30, 1915), there was no usury law in force in the Philippine Islands; (c) that said
Act No. 2655 did not become effective until the 1st day of May, 1916, or four months and a half after
the contract in question was executed; (d) that said law could have no retroactive effect or operation,
and (e) that said law impairs the obligation of a contract, and that for all of said reasons the judgment
imposed by the lower court should be revoked; that the complaint should be dismissed, and that they
should each be discharged from the custody of the law.

The essential facts constituting the basis of the criminal action are not in dispute, and may be stated
as follows: (1) That on the 30th day of December, 1915, the alleged offended persons Bartolome
Oliveros and Engracia Lianco executed and delivered to the defendants a contract (Exhibit B)
evidencing the fact that the former had borrowed from the latter the sum of P300, and (2) that, by
virtue of the terms of said contract, the said Bartolome Oliveros and Engracia Lianco obligated
themselves to pay to the defendants interest at the rate of five per cent (5%) per month, payable
within the first ten days of each and every month, the first payment to be made on the 10th day of
January, 1916. There were other terms in the contract which, however, are not important for the
decision in the present case.

The lower court, in the course of its opinion, stated that at the time of the execution and delivery of
said contract (Exhibit B), there was no law in force in the Philippine Islands punishing usury; but,
inasmuch as the defendants had collected a usurious rate of interest after the adoption of the Usury
Law in the Philippine Islands (Act No. 2655), they were guilty of a violation of that law and should be
punished in accordance with its provisions.

The law, we think, is well established that when a contract contains an obligation to pay interest
upon the principal, the interest thereby becomes part of the principal and is included within the
promise to pay. In other words, the obligation to pay interest on money due under a contract, be it
express or implied, is a part of the obligation of the contract. Laws adopted after the execution of a
contract, changing or altering the rate of interest, cannot be made to apply to such contract without
violating the provisions of the constitution which prohibit the adoption of a law "impairing the
obligation of contract." (8 Cyc., 996; 12 Corpus Juris, 1058-1059.)

The obligation of the contract is the law which binds the parties to perform their agreement if it is not
contrary to the law of the land, morals or public order. That law must govern and control the contract
in every aspect in which it is intended to bear upon it, whether it affect its validity, construction, or
discharge. Any law which enlarges, abridges, or in any manner changes the intention of the parties,
necessarily impairs the contract itself. If a law impairs the obligation of a contract, it is prohibited by
the Jones Law, and is null and void. The laws in force in the Philippine Islands prior to any legislation
by the American sovereignty, prohibited the Legislature from giving to any penal law a retroactive
effect unless such law was favorable to the person accused. (Articles 21 and 22, Penal Code.)

A law imposing a new penalty, or a new liability or disability, or giving a new right of action, must not
be construed as having a retroactive effect. It is an elementary rule of contract that the laws in force
at the time the contract was made must govern its interpretation and application. Laws must be
construed prospectively and not retrospectively. If a contract is legal at its inception, it cannot be
rendered illegal by any subsequent legislation. If that were permitted then the obligations of a
contract might be impaired, which is prohibited by the organic law of the Philippine Islands. (U.S. vs.
Constantino Tan Quingco Chua, 39 Phil., 552; Aguilar vs. Rubiato and Gonzales Vila, 40 Phil., 570.)

Ex post facto laws, unless they are favorable to the defendant, are prohibited in this jurisdiction.
Every law that makes an action, done before the passage of the law, and which was innocent when
done, criminal, and punishes such action, is an ex post facto law. In the present case Act No. 2655
made an act which had been done before the law was adopted, a criminal act, and to make said Act
applicable to the act complained of would be to give it an ex post facto operation. The Legislature is
prohibited from adopting a law which will make an act done before its adoption a crime. A law may
be given a retroactive effect in civil action, providing it is curative in character, but ex post facto laws
are absolutely prohibited unless its retroactive effect is favorable to the defendant.

For the reason, therefore, that the acts complained of in the present case were legal at the time of
their occurrence, they cannot be made criminal by any subsequent or ex post facto legislation. What
the courts may say, considering the provisions of article 1255 of the Civil Code, when a civil action is
brought upon said contract, cannot now be determined. A contract may be annulled by the courts
when it is shown that it is against morals or public order.

For all of the foregoing reasons, we are of the opinion, and so decide, that the acts complained of by
the defendants did not constitute a crime at the time they were committed, and therefore the
sentence of the lower court should be, and is hereby, revoked; and it is hereby ordered and decreed
that the complaint be dismissed, and that the defendants be discharged from the custody of the law,
with costs de oficio. So ordered.

Araullo, C.J., Street, Malcolm, Avanceña, Ostrand, Johns and Romualdez, JJ., concur.
People v. Abilong, L-1960, 26 November 1948.

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. L-1960 November 26, 1948

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
FLORENTINO ABILONG, defendant-appellant.

Carlos Perfecto for appellant.

Assistant Solicitor General Ruperto Kapunan, Jr., and Solicitor Manuel Tomacruz for appellee.

MONTEMAYOR, J.:

Florentino Abilong was charged in the Court of First Instance of Manila with evasion of service of
sentence under the following information:

That on or about the 17th day of September, 1947, in the City of Manila, Philippines, the said
accused, being then a convict sentenced and ordered to serve two (2) years, four (4) months
and one (1) day of destierro during which he should not enter any place within the radius of
100 kilometers from the City of Manila, by virtue of final judgment rendered by the municipal
court on April 5, 1946, in criminal case No. B-4795 for attempted robbery, did then and there
wilfully, unlawfully and feloniously evade the service of said sentence by going beyond the
limits made against him and commit vagrancy.

Contrary to law.

Upon arraignment he pleaded guilty and was sentenced to two (2) years, four (4) months and one
(1) day of prision correccional, with the accessory penalties of the law and to pay the costs. He is
appealing from that decision with the following assignment of error:

1. The lower court erred in imposing a penalty on the accused under article 157 of the
Revised Penal Code, which does not cover evasion of service of "destierro."

Counsel for the appellant contends that a person like the accused evading a sentence of destierro is
not criminally liable under the provisions of the Revised Penal Code, particularly article 157 of the
said Code for the reason that said article 157 refers only to persons who are imprisoned in a penal
institution and completely deprived of their liberty. He bases his contention on the word
"imprisonment" used in the English text of said article which in part reads as follows:

Evasion of service of sentence. — The penalty of prision correccional in its medium and
maximum periods shall be imposed upon any convict who shall evade service of his
sentence by escaping during the term of his imprisonment by reason of final judgment.
The Solicitor General in his brief says that had the original text of the Revised Penal Code been in
the English language, then the theory of the appellant could be uphold. However, it is the Spanish
text that is controlling in case of doubt. The Spanish text of article 157 in part reads thus:

ART. 157. Quebrantamiento de sentencia. — Sera castigado con prision correccional en sus
grados medio y maximo el sentenciado que quebrantare su condena, fugandose mientras
estuviere sufriendo privacion de libertad por sentencia firme; . . . .

We agree with the Solicitor General that inasmuch as the Revised Penal Code was originally
approved and enacted in Spanish, the Spanish text governs (People vs. Manaba, 58 Phil., 665,
668). It is clear that the word "imprisonment" used in the English text is a wrong or erroneous
translation of the phrase "sufriendo privacion de libertad" used in the Spanish text. It is equally clear
that although the Solicitor General impliedly admits destierro as not constituting imprisonment, it is a
deprivation of liberty, though partial, in the sense that as in the present case, the appellant by his
sentence of destierro was deprived of the liberty to enter the City of Manila. This view has been
adopted in the case of People vs. Samonte, No. 36559 (July 26, 1932; 57 Phil., 968) wherein this
Court held, as quoted in the brief of the Solicitor General that "it is clear that a person under
sentence of destierro is suffering deprivation of his liberty and escapes from the restrictions of the
penalty when he enters the prohibited area." Said ruling in that case was ratified by this Court,
though, indirectly in the case of People vs. Jose de Jesus, (45 Off. Gaz. Supp. to No. 9, p. 370)1,
where it was held that one evades the service of his sentence of destierro when he enters the
prohibited area specified in the judgment of conviction, and he cannot invoke the provisions of the
Indeterminate Sentence Law which provides that its provisions do not apply to those who shall have
escaped from confinement or evaded sentence.

In conclusion we find and hold that the appellant is guilty of evasion of service of sentence under
article 157 of the Revised Penal Code (Spanish text), in that during the period of his sentence
of destierro by virtue of final judgment wherein he was prohibited from entering the City of Manila, he
entered said City.

Finding no reversible error in the decision appealed from, the same is hereby affirmed with costs
against the appellant. So ordered.

Moran, C. J., Paras, Feria, Pablo, Bengzon and Tuason, JJ., concur.

Separate Opinions

PERFECTO, J., dissenting:

The legal question raised in this case is whether or not appellant, for having violated his judgment
of destierro rendered by the Municipal Court of Manila, can be sentenced under article 157 of the
Revised Penal Code which reads as follows:

Evasion of service of sentence. — The penalty of prision correccional in its medium and
maximum periods shall be imposed upon any convict who shall evade service of his
sentence by escaping during the term of his imprisonment by reason of final judgment.
However, if such evasion or escape shall have taken place by means of unlawful entry, by
breaking doors, windows, gates, walls, roofs, or floors, or by using picklocks, false keys,
 disguise, deceit, violence or intimidation, or through connivance with other convicts or
employees of the penal institution, the penalty shall be prision correccional in its maximum
period.

Appellant invokes in his favor the negative opinion of author Guillermo Guevara (Revised Penal
Code, 1946, p. 322). This negative position is supported by another author, Ambrosio Padilla
(Revised Penal Code annotated, p. 474).

The prosecution invokes the decision of this Court in People vs. De Jesus, L-1411,2promulgated
April 16, 1948, but said decision has no application because in said case the legal question involved
in the case at bar was not raised. The Supreme Court did not consider the question of interpretation
of the wording of article 157. Undoubtedly, there was occasion for considering the question, but the
Court nevertheless failed to do so. This failure to see the question, at the time, is only an evidence
that the tribunal is composed of human beings for whom infallibility is beyond reach.

The prosecution maintains that appellant's contention, supported by two authors who have
considered the question, although tenable under the English text of article 157, is not so under the
Spanish text, which is the one controlling because the Revised Penal Code was originally enacted
by the Legislature in Spanish.

There is no quarrel, therefore, that under the above quoted English text, the appellant is entitled to
acquittal. The question now is whether or not the Spanish text conveys a thing different from that
which can be read in the English text. The Spanish text reads as follows:

ART. 157. Quebrantamiento de sentencia. — Sera castigado con prision correccional en sus
grados medio y maximo el sentenciado que quebrantare su condena, fugandose mientras
estuviere sufriendo privacion de libertad por sentencia firme; pero si la evasion o fuga se
hubiere llevado a efecto con escalamiento, fractura de puertas, ventanas, verjas, paredes,
techos o suelos, o empleado ganzuas, llaves falsas, disfraz, engano, violencia o
intimidacion, o poniendose de acuerdo con otros sentenciados o dependientes del
establecimiento donde a hallare recluido la pena sera prision correccional en su grado
maximo.

The question boils down to the words "fugandose mientras estuviere sufriendo privacion de libertad
por sentencia firme," which are translated into English "by escaping during the term of his
imprisonment by reason of final judgment." The prosecution contends that the words "privacion de
libertad" in the Spanish text is not the same as the word "imprisonment" in the English text, and that
while "imprisonment" cannot include destierro, "privacion de libertad" may include it.

The reason is, however, the result of a partial point of view because it obliterates the grammatical,
logical, ideological function of the words "fugandose" and "by escaping" in the Spanish and English
texts, respectively. There should not be any question that, whatever meaning we may want to give to
the words "privacion de libertad," it has to be conditioned by the verb "fugandose," (by escaping).
"Privacion de libertad" cannot be considered independently of "fugandose."

There seems to be no question that the Spanish "fugandose" is correctly translated into the English
"by escaping." Now, is there any sense in escaping from destierro or banishment, where there is no
enclosure binding the hypothetical fugitive? "Fugandose" is one of the forms of the Spanish verb
"fugar," to escape. The specific idea of "evasion" or "escape" is reiterated by the use of said words
after the semi-colon in the Spanish text and after the first period in the English text. Either the verb
"to escape" or the substantive noun "escape" essentially pre-supposes some kind of imprisonment
or confinement, except figuratively, and Article 157 does not talk in metaphors or parables.
"To escape" means "to get away, as by flight or other conscious effort; to break away, get free, or
get clear, from or out of detention, danger, discomfort, or the like; as to escape from prison. To issue
from confinement or enclosure of any sort; as gas escapes from the mains." (Webster's New
International Dictionary.)

"Escape" means "act of escaping, or fact or having escaped; evasion of or deliverance from injury or
any evil; also the means of escape. The unlawful departure of a prisoner from the limits of his
custody. When the prisoner gets out of prison and unlawfully regains his liberty, it is an actual
escape." (Webster's New International Dictionary.)

"Evasion" means "escape." (Webster's New International Dictionary.) .

The "destierro" imposed on appellant banished him from Manila alone, and he was free to stay in all
the remaining parts of the country, and to go and stay in any part of the globe outside the country.
With freedom to move all over the world, it is farfetched to allege that he is in any confinement from
which he could escape.

The words "privacion de libertad" have been correctly translated into the English "imprisonment,"
which gives the idea exactly conveyed by "privacion de libertad" in the Spanish text. Undoubtedly,
the drafters of the latter could have had used a more precise Spanish word, but the literary error
cannot be taken as a pretext to give to the less precise words a broader meaning than is usually
given to them.

"Privacion de libertad," literally meaning "deprivation of liberty or freedom," has always been used by
jurist using the Spanish language to mean "imprisonment." They have never given them the
unbounded philosophical scope that would lead to irretrievable absurdities.

Under that unlimited scope, no single individual in the more than two billion inhabitants of the world
can be considered free, as the freest citizen of the freest country is subject to many limitations or
deprivations of liberty. Under the prosecution's theory, should an accused, sentenced to pay a fine of
one peso, evade the payment of it, because the fine deprives him of liberty to dispose of his one
peso, he will be liable to be punished under article 157 of the Revised Penal Code to imprisonment
of from more that two years to six years. The iniquity and cruelty of such situation are too glaring and
violent to be entertained for a moment under our constitutional framework.

There is no gainsaying the proposition that to allow the violation of a sentence of destierro without
punishment is undesirable, but even without applying article 157 of the Revised Penal Code, the act
of the appellant cannot remain unpunished, because his violation of the sentence of destierro may
be punished as contempt of court, for which imprisonment up to six months is provided.

It is deplorable that article 157 should not provide for a situation presented in this case, but the gap
cannot be filled by this Court without encroaching upon the legislative powers of Congress.

Perhaps it is better that evasions of sentence be punished, as provided by the old Penal Code, by an
increased in the evaded penalty. This will be more reasonable that the penalties provided by article
157, which appear to be disproportionate and arbitrary, because they place on equal footing the
evader of a sentence of one day of imprisonment and a life-termer, one who commits an insignificant
offense and one who perpetrates the most heinous crime. At any rate, this is a problem for Congress
to solve.

The appealed decision should be set aside.

BRIONES, J., concurring:

I concur in the foregoing dissenting opinion, because evidently the word "fugandose" in the Spanish
text refers to imprisonment, not to destierro.
People v. Formigones, L-3246, 29 November 1950

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. L-3246 November 29, 1950

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
ABELARDO FORMIGONES, defendant-appellant.

Luis Contreras for appellant.

Office of the Solicitor General Felix Bautista Angelo and Solicitor Felix V. Makasiar for appellee.

MONTEMAYOR, J.:

This is an appeal from the decision of the Court of First Instance of Camarines Sur finding the
appellant guilty of parricide and sentencing him to reclusion perpetua, to indemnify the heirs of the
deceased in the amount of P2,000, and to pay the costs. The following facts are not disputed.

In the month of November, 1946, the defendant Abelardo Formigones was living on his farm in
Bahao, Libmanan, municipality of Sipocot, Camarines Sur, with his wife, Julia Agricola, and his five
children. From there they went to live in the house of his half-brother, Zacarias Formigones, in the
barrio of Binahian of the same municipality of Sipocot, to find employment as harvesters of palay.
After about a month's stay or rather on December 28, 1946, late in the afternoon, Julia was sitting at
the head of the stairs of the house. The accused, without any previous quarrel or provocation
whatsoever, took his bolo from the wall of the house and stabbed his wife, Julia, in the back, the
blade penetrating the right lung and causing a severe hemorrhage resulting in her death not long
thereafter. The blow sent Julia toppling down the stairs to the ground, immediately followed by her
husband Abelardo who, taking her up in his arms, carried her up the house, laid her on the floor of
the living room and then lay down beside her. In this position he was found by the people who came
in response to the shouts for help made by his eldest daughter, Irene Formigones, who witnessed
and testified to the stabbing of her mother by her father.

Investigated by the Constabulary, defendant Abelardo signed a written statement, Exhibit D, wherein
he admitted that he killed The motive was admittedly of jealousy because according to his statement
he used to have quarrels with his wife for the reason that he often saw her in the company of his
brother Zacarias; that he suspected that the two were maintaining illicit relations because he noticed
that his had become indifferent to him (defendant).

During the preliminary investigation conducted by the justice of the peace of Sipocot, the accused
pleaded guilty, as shown by Exhibit E. At the trial of the case in the Court of First Instance, the
defendant entered a plea of not guilty, but did not testify. His counsel presented the testimony of two
guards of the provincial jail where Abelardo was confined to the effect that his conduct there was
rather strange and that he behaved like an insane person; that sometimes he would remove his
clothes and go stark naked in the presence of his fellow prisoners; that at times he would remain
silent and indifferent to his surroundings; that he would refused to take a bath and wash his clothes
until forced by the prison authorities; and that sometimes he would sing in chorus with his fellow
prisoners, or even alone by himself without being asked; and that once when the door of his cell was
opened, he suddenly darted from inside into the prison compound apparently in an attempt to regain
his liberty.

The appeal is based merely on the theory that the appellant is an imbecile and therefore exempt
from criminal liability under article 12 of the Revised Penal Code. The trial court rejected this same
theory and we are inclined to agree with the lower court. According to the very witness of the
defendant, Dr. Francisco Gomez, who examined him, it was his opinion that Abelardo was suffering
only from feeblemindedness and not imbecility and that he could distinguish right from wrong.

In order that a person could be regarded as an imbecile within the meaning of article 12 of the
Revised Penal Code so as to be exempt from criminal liability, he must be deprived completely of
reason or discernment and freedom of the will at the time of committing the crime. The provisions of
article 12 of the Revised Penal Code are copied from and based on paragraph 1, article 8, of the old
Penal Code of Spain. Consequently, the decisions of the Supreme Court of Spain interpreting and
applying said provisions are pertinent and applicable. We quote Judge Guillermo Guevara on his
Commentaries on the Revised Penal Code, 4th Edition, pages 42 to 43:

The Supreme Court of Spain held that in order that this exempting circumstances may be
taken into account, it is necessary that there be a complete deprivation of intelligence in
committing the act, that is, that the accused be deprived of reason; that there be no
responsibility for his own acts; that he acts without the least discernment;1 that there be a
complete absence of the power to discern, or that there be a total deprivation of freedom of
the will. For this reason, it was held that the imbecility or insanity at the time of the
commission of the act should absolutely deprive a person of intelligence or freedom of will,
because mere abnormality of his mental faculties does not exclude imputability.2

The Supreme Court of Spain likewise held that deaf-muteness cannot be equaled to
imbecility or insanity.

The allegation of insanity or imbecility must be clearly proved. Without positive evidence that
the defendant had previously lost his reason or was demented, a few moments prior to or
during the perpetration of the crime, it will be presumed that he was in a normal condition.
Acts penalized by law are always reputed to be voluntary, and it is improper to conclude that
a person acted unconsciously, in order to relieve him from liability, on the basis of his mental
condition, unless his insanity and absence of will are proved.

As to the strange behaviour of the accused during his confinement, assuming that it was not feigned
to stimulate insanity, it may be attributed either to his being feebleminded or eccentric, or to a morbid
mental condition produced by remorse at having killed his wife. From the case of United
States vs. Vaquilar (27 Phil. 88), we quote the following syllabus:

Testimony of eye-witnesses to a parricide, which goes no further than to indicate that the
accused was moved by a wayward or hysterical burst of anger or passion, and other
testimony to the effect that, while in confinement awaiting trial, defendant acted
absentmindedly at times, is not sufficient to establish the defense of insanity. The conduct of
the defendant while in confinement appears to have been due to a morbid mental condition
produced by remorse.

After a careful study of the record, we are convinced that the appellant is not an imbecile. According
to the evidence, during his marriage of about 16 years, he has not done anything or conducted
himself in anyway so as to warrant an opinion that he was or is an imbecile. He regularly and
dutifully cultivated his farm, raised five children, and supported his family and even maintained in
school his children of school age, with the fruits of his work. Occasionally, as a side line he made
copra. And a man who could feel the pangs of jealousy to take violent measure to the extent of
killing his wife whom he suspected of being unfaithful to him, in the belief that in doing so he was
vindicating his honor, could hardly be regarded as an imbecile. Whether or not his suspicions were
justified, is of little or no import. The fact is that he believed her faithless.

But to show that his feeling of jealousy had some color of justification and was not a mere product of
hallucination and aberrations of a disordered mind as that an imbecile or a lunatic, there is evidence
to the following effect. In addition to the observations made by appellant in his written statement
Exhibit D, it is said that when he and his wife first went to live in the house of his half brother,
Zacarias Formigones, the latter was living with his grandmother, and his house was vacant.
However, after the family of Abelardo was settled in the house, Zacarias not only frequented said
house but also used to sleep there nights. All this may have aroused and even partly confirmed the
suspicions of Abelardo, at least to his way of thinking.

The appellant has all the sympathies of the Court. He seems to be one of those unfortunate beings,
simple, and even feebleminded, whose faculties have not been fully developed. His action in picking
up the body of his wife after she fell down to the ground, dead, taking her upstairs, laying her on the
floor, and lying beside her for hours, shows his feeling of remorse at having killed his loved one
though he thought that she has betrayed him. Although he did not exactly surrender to the
authorities, still he made no effort to flee and compel the police to hunt him down and arrest him. In
his written statement he readily admitted that he killed his wife, and at the trial he made no effort to
deny or repudiate said written statement, thus saving the government all the trouble and expense of
catching him, and insuring his conviction.

Although the deceased was struck in the back, we are not prepared to find that the aggravating
circumstance of treachery attended the commission of the crime. It seems that the prosecution was
not intent or proving it. At least said aggravating circumstance was not alleged in the complaint
either in the justice of the peace court or in the Court of First Instance. We are inclined to give him
the benefit of the doubt and we therefore declined to find the existence of this aggravating
circumstance. On the other hand, the fact that the accused is feebleminded warrants the finding in
his favor of the mitigating circumstance provided for in either paragraph 8 or paragraph 9 of article
13 of the Revised Penal Code, namely that the accused is "suffering some physical defect which
thus restricts his means of action, defense, or communication with his fellow beings," or such illness
"as would diminish the exercise of his will power." To this we may add the mitigating circumstance in
paragraph 6 of the same article, — that of having acted upon an impulse so powerful as naturally to
have produced passion or obfuscation. The accused evidently killed his wife in a fit of jealousy.

With the presence of two mitigating circumstances without any aggravating circumstance to offset
them, at first we thought of the possible applicability of the provisions of article 64, paragraph 5 of
the Revised Penal Code for the purpose of imposing the penalty next lower to that prescribed by
article 246 for parricide, which is reclusion perpetuato death. It will be observed however, that article
64 refers to the application of penalties which contain three periods whether it be a single divisible
penalty or composed of three different penalties, each one of which forms a period in accordance
with the provisions of articles 76 and 77, which is not true in the present case where the penalty
applicable for parricide is composed only of two indivisible penalties. On the other hand, article 63 of
the same Code refers to the application of indivisible penalties whether it be a single divisible
penalty, or two indivisible penalties like that of reclusion perpetua to death. It is therefore clear that
article 63 is the one applicable in the present case.
Paragraph 2, rule 3 of said article 63 provides that when the commission of the act is attended by
some mitigating circumstance and there is no aggravating circumstance, the lesser penalty shall be
applied. Interpreting a similar legal provision the Supreme Court in the case of United States vs.
Guevara (10 Phil. 37), involving the crime of parricide, in applying article 80, paragraph 2 (rule 3 of
the old Penal Code) which corresponds to article 63, paragraph 2 (rule 3 of the present Revised
Penal Code), thru Chief Justice Arellano said the following:

And even though the court should take into consideration the presence of two mitigating
circumstances of a qualifying nature, which it can not afford to overlook, without any
aggravating one, the penalty could not be reduced to the next lower to that imposed by law,
because, according to a ruling of the court of Spain, article 80 above-mentioned does not
contain a precept similar to that contained in Rule 5 of article 81 (now Rule 5, art. 64 of the
Rev. Penal Code.) (Decision of September 30, 1879.)

Yet, in view of the excessive penalty imposed, the strict application of which is inevitable and
which, under the law, must be sustained, this court now resorts to the discretional power
conferred by paragraph 2 of article 2 of the Penal Code; and.

Therefore, we affirm the judgment appealed from with costs, and hereby order that a proper
petition be filed with the executive branch of the Government in order that the latter, if it be
deemed proper in the exercise of the prerogative vested in it by the sovereign power, may
reduce the penalty to that of the next lower.

Then, in the case of People vs. Castañeda (60 Phil. 604), another parricide case, the Supreme Court
in affirming the judgment of conviction sentencing defendant to reclusion perpetua, said that
notwithstanding the numerous mitigating circumstances found to exist, inasmuch as the penalty for
parricide as fixed by article 246 of the Revised Penal Code is composed of two indivisible penalties,
namely, reclusion perpetua to death, paragraph 3 of article 63 of the said Code must be applied. The
Court further observed:

We are likewise convinced that appellant did not have that malice nor has exhibited such
moral turpitude as requires life imprisonment, and therefore under the provisions of article 5
of the Revised Penal Code, we respectfully invite the attention of the Chief Executive to the
case with a view to executive clemency after appellant has served an appreciable amount of
confinement.

In conclusion, we find the appellant guilty of parricide and we hereby affirm the judgment of the lower
court with the modification that the appellant will be credited with one-half of any preventive
imprisonment he has undergone. Appellant will pay costs.

Following the attitude adopted and the action taken by this same court in the two cases above cited,
and believing that the appellant is entitled to a lighter penalty, this case should be brought to the
attention of the Chief Executive who, in his discretion may reduce the penalty to that next lower
to reclusion perpetua to death or otherwise apply executive clemency in the manner he sees fit.

Moran, Bengzon, C. J., Paras, Feria, Pablo, Tuason, Reyes, and Jugo, JJ., concur.

PADILLA, J.:

I concur in the result.

Ladonga v. People, G.R. No. 141066, 17 February 2005

SECOND DIVISION

[G.R. No. 141066. February 17, 2005]

EVANGELINE LADONGA, petitioner, vs. PEOPLE OF THE

PHILIPPINES, respondent.

DECISION
AUSTRIA-MARTINEZ, J.:

Petitioner Evangeline Ladonga seeks a review of the Decision,[1] dated May

17, 1999, of the Court of Appeals in CA-G.R. CR No. 20443, affirming the
Decision dated August 24, 1996, of the Regional Trial Court (RTC), Branch 3
of Bohol, in Criminal Case Nos. 7068, 7069 and 7070 convicting her of violation
of B.P. Blg. 22, otherwise known as The Bouncing Checks Law.
The factual background of the case is as follows:
On March 27, 1991, three Informations for violation of B.P. Blg. 22 were filed
with the RTC, docketed as Criminal Case Nos. 7068 - 7070. The Information in
Criminal Case No. 7068 alleges as follows:

That, sometime in May or June 1990, in the City of Tagbilaran, Philippines, and
within the jurisdiction of this Honorable Court, the above-named accused, conspiring,
confederating, and mutually helping with one another, knowing fully well that they
did not have sufficient funds deposited with the United Coconut Planters Bank
(UCPB), Tagbilaran Branch, did then and there willfully, unlawfully, and feloniously,
draw and issue UCPB Check No. 284743 postdated July 7, 1990 in the amount of
NINE THOUSAND SEVENTY-FIVE PESOS AND FIFTY-FIVE CENTAVOS
(P9,075.55), payable to Alfredo Oculam, and thereafter, without informing the latter
that they did not have sufficient funds deposited with the bank to cover up the amount
of the check, did then and there willfully, unlawfully and feloniously pass on, indorse,
give and deliver the said check to Alfredo Oculam by way of rediscounting of the
aforementioned checks; however, upon presentation of the check to the drawee bank
for encashment, the same was dishonored for the reason that the account of the
accused with the United Coconut Planters Bank, Tagbilaran Branch, had already been
closed, to the damage and prejudice of the said Alfredo Oculam in the aforestated
amount.
Acts committed contrary to the provisions of Batas Pambansa Bilang 22.[2]

The accusatory portions of the Informations in Criminal Case Nos. 7069 and
7070 are similarly worded, except for the allegations concerning the number,
date and amount of each check, that is:
(a) Criminal Case No. 7069 - UCPB Check No. 284744 dated July 22, 1990 in the amount
of P12,730.00;[3]
(b) Criminal Case No. 7070 UCPB Check No. 106136 dated July 22, 1990 in the amount
of P8,496.55.[4]

The cases were consolidated and jointly tried. When arraigned on June 26,
1991, the two accused pleaded not guilty to the crimes charged.[5]
The prosecution presented as its lone witness complainant Alfredo Oculam.
He testified that: in 1989, spouses Adronico[6] and Evangeline Ladonga became
his regular customers in his pawnshop business in Tagbilaran City,
Bohol;[7] sometime in May 1990, the Ladonga spouses obtained a P9,075.55
loan from him, guaranteed by United Coconut Planters Bank (UCPB) Check
No. 284743, post dated to dated July 7, 1990 issued by Adronico;[8] sometime
in the last week of April 1990 and during the first week of May 1990, the
Ladonga spouses obtained an additional loan of P12,730.00, guaranteed by
UCPB Check No. 284744, post dated to dated July 26, 1990 issued by
Adronico;[9] between May and June 1990, the Ladonga spouses obtained a third
loan in the amount of P8,496.55, guaranteed by UCPB Check No. 106136, post
dated to July 22, 1990 issued by Adronico;[10] the three checks bounced upon
presentment for the reason CLOSED ACCOUNT;[11] when the Ladonga
spouses failed to redeem the check, despite repeated demands, he filed a
criminal complaint against them.[12]
While admitting that the checks issued by Adronico bounced because there
was no sufficient deposit or the account was closed, the Ladonga spouses
claimed that the checks were issued only to guarantee the obligation, with an
agreement that Oculam should not encash the checks when they
mature;[13] and, that petitioner is not a signatory of the checks and had no
participation in the issuance thereof.[14]
On August 24, 1996, the RTC rendered a joint decision finding the Ladonga
spouses guilty beyond reasonable doubt of violating B.P. Blg. 22, the dispositive
portion of which reads:

Premises considered, this Court hereby renders judgment finding accused Adronico
Ladonga, alias Ronie, and Evangeline Ladonga guilty beyond reasonable doubt in the
aforesaid three (3) criminal cases, for which they stand charged before this Court, and
accordingly, sentences them to imprisonment and fine, as follows:

1. In Criminal Case No. 7068, for (sic) an imprisonment of one (1) year for each of
them, and a fine in the amount of P9,075.55, equivalent to the amount of UCPB
Check No. 284743;

2. In Criminal Case No. 7069, for (sic) an imprisonment for each of them to one (1)
year and a fine of P12, 730.00, equivalent to the amount of UCPB Check No. 284744;
and,

3. In Criminal Case No. 7070, with (sic) an imprisonment of one year for each of
them and a fine of P8,496.55 equivalent to the amount of UCPB Check No. 106136;

4. That both accused are further ordered to jointly and solidarily pay and reimburse
the complainant, Mr. Alfredo Oculam, the sum of P15,000.00 representing actual
expenses incurred in prosecuting the instant cases; P10,000.00 as attorneys fee; and
the amount of P30,302.10 which is the total value of the three (3) subject checks
which bounced; but without subsidiary imprisonment in case of insolvency.

With Costs against the accused.

SO ORDERED.[15]

Adronico applied for probation which was granted.[16] On the other hand,
petitioner brought the case to the Court of Appeals, arguing that the RTC erred
in finding her criminally liable for conspiring with her husband as the principle
of conspiracy is inapplicable to B.P. Blg. 22 which is a special law; moreover,
she is not a signatory of the checks and had no participation in the issuance
thereof.[17]
On May 17, 1999, the Court of Appeals affirmed the conviction of
petitioner.[18] It held that the provisions of the penal code were made applicable
to special penal laws in the decisions of this Court in People vs. Parel, [19] U.S.
vs. Ponte, [20] and U.S. vs. Bruhez.[21] It noted that Article 10 of the Revised
Penal Code itself provides that its provisions shall be supplementary to special
laws unless the latter provide the contrary. The Court of Appeals stressed that
since B.P. Blg. 22 does not prohibit the applicability in a suppletory character of
the provisions of the Revised Penal Code (RPC), the principle of conspiracy
may be applied to cases involving violations of B.P. Blg. 22. Lastly, it ruled that
the fact that petitioner did not make and issue or sign the checks did not
exculpate her from criminal liability as it is not indispensable that a co-
conspirator takes a direct part in every act and knows the part which everyone
performed. The Court of Appeals underscored that in conspiracy the act of one
conspirator could be held to be the act of the other.
Petitioner sought reconsideration of the decision but the Court of Appeals
denied the same in a Resolution dated November 16, 1999.[22]
Hence, the present petition.
Petitioner presents to the Court the following issues for resolution:

1. WHETHER OR NOT THE PETITIONER WHO WAS NOT THE DRAWER OR

ISSUER OF THE THREE CHECKS THAT BOUNCED BUT HER CO-ACCUSED
HUSBAND UNDER THE LATTERS ACCOUNT COULD BE HELD LIABLE FOR
VIOLATIONS OF BATAS PAMBANSA BILANG 22 AS CONSPIRATOR.

2. ANCILLARY TO THE MAIN ISSUE ARE THE FOLLOWING ISSUES:

A. WHETHER OR NOT CONSPIRACY IS APPLICABLE IN VIOLATIONS

OF BATAS PAMBANSA BILANG 22 BY INVOKING THE LAST SENTENCE OF
ARTICLE 10 OF THE REVISED PENAL CODE WHICH STATES:

Art. 10. Offenses not subject of the provisions of this Code. Offenses which are or in
the future may be punished under special laws are not subject to the provisions of this
Code. This Code shall be supplementary to such laws, unless the latter should
specially provide the contrary.

B. WHETHER OR NOT THE CASES CITED BY THE HONORABLE COURT OF

APPEALS IN AFFIRMING IN TOTO THE CONVICTION OF PETITIONER AS
CONSPIRATOR APPLYING THE SUPPLETORY CHARACTER OF THE
REVISED PENAL CODE TO SPECIAL LAWS LIKE B.P. BLG. 22 IS
APPLICABLE.[23]

Petitioner staunchly insists that she cannot be held criminally liable for
violation of B.P. Blg. 22 because she had no participation in the drawing and
issuance of the three checks subject of the three criminal cases, a fact proven
by the checks themselves. She contends that the Court of Appeals gravely
erred in applying the principle of conspiracy, as defined under the RPC, to
violations of B.P. Blg. 22. She posits that the application of the principle of
conspiracy would enlarge the scope of the statute and include situations not
provided for or intended by the lawmakers, such as penalizing a person, like
petitioner, who had no participation in the drawing or issuance of checks.
 The Office of the Solicitor General disagrees with petitioner and echoes the
declaration of the Court of Appeals that some provisions of the Revised Penal
Code, especially with the addition of the second sentence in Article 10, are
applicable to special laws. It submits that B.P. Blg. 22 does not provide any
prohibition regarding the applicability in a suppletory character of the provisions
of the Revised Penal Code to it.
Article 10 of the RPC reads as follows:

ART. 10. Offenses not subject to the provisions of this Code. Offenses which are or in
the future may be punishable under special laws are not subject to the provisions of
this Code. This Code shall be supplementary to such laws, unless the latter should
specially provide the contrary.

The article is composed of two clauses. The first provides that offenses
which in the future are made punishable under special laws are not subject to
the provisions of the RPC, while the second makes the RPC supplementary to
such laws. While it seems that the two clauses are contradictory, a sensible
interpretation will show that they can perfectly be reconciled.
The first clause should be understood to mean only that the special penal
laws are controlling with regard to offenses therein specifically punished. Said
clause only restates the elemental rule of statutory construction that special
legal provisions prevail over general ones.[24] Lex specialis derogant generali.
In fact, the clause can be considered as a superfluity, and could have been
eliminated altogether. The second clause contains the soul of the article. The
main idea and purpose of the article is embodied in the provision that the "code
shall be supplementary" to special laws, unless the latter should specifically
provide the contrary.
The appellate courts reliance on the cases of People vs. Parel,[25] U.S. vs.
Ponte,[26] and U.S. vs. Bruhez[27] rests on a firm basis. These cases involved the
suppletory application of principles under the then Penal Code to special
laws. People vs. Parel is concerned with the application of Article 22[28] of the
Code to violations of Act No. 3030, the Election Law, with reference to the
retroactive effect of penal laws if they favor the accused. U.S. vs.
Ponte involved the application of Article 17[29] of the same Penal Code, with
reference to the participation of principals in the commission of the crime of
misappropriation of public funds as defined and penalized by Act No. 1740. U.S.
vs. Bruhez covered Article 45[30] of the same Code, with reference to the
confiscation of the instruments used in violation of Act No. 1461, the Opium
Law.
 B.P. Blg. 22 does not expressly proscribe the suppletory application of the
provisions of the RPC. Thus, in the absence of contrary provision in B.P.
Blg. 22, the general provisions of the RPC which, by their nature, are
necessarily applicable, may be applied suppletorily. Indeed, in the recent case
of Yu vs. People,[31] the Court applied suppletorily the provisions on subsidiary
imprisonment under Article 39[32] of the RPC to B.P. Blg. 22.
The suppletory application of the principle of conspiracy in this case is
analogous to the application of the provision on principals under Article 17
in U.S. vs. Ponte. For once conspiracy or action in concert to achieve a criminal
design is shown, the act of one is the act of all the conspirators, and the precise
extent or modality of participation of each of them becomes secondary, since
all the conspirators are principals.[33]
All these notwithstanding, the conviction of the petitioner must be set aside.
Article 8 of the RPC provides that a conspiracy exists when two or more
persons come to an agreement concerning the commission of a felony and
decide to commit it. To be held guilty as a co-principal by reason of conspiracy,
the accused must be shown to have performed an overt act in pursuance or
furtherance of the complicity.[34] The overt act or acts of the accused may
consist of active participation in the actual commission of the crime itself or may
consist of moral assistance to his co-conspirators by moving them to execute
or implement the criminal plan.[35]
In the present case, the prosecution failed to prove that petitioner performed
any overt act in furtherance of the alleged conspiracy. As testified to by the lone
prosecution witness, complainant Alfredo Oculam, petitioner was merely
present when her husband, Adronico, signed the check subject of Criminal
Case No. 7068.[36] With respect to Criminal Case Nos. 7069-7070, Oculam also
did not describe the details of petitioners participation. He did not specify the
nature of petitioners involvement in the commission of the crime, either by a
direct act of participation, a direct inducement of her co-conspirator, or
cooperating in the commission of the offense by another act without which it
would not have been accomplished. Apparently, the only semblance of overt
act that may be attributed to petitioner is that she was present when the first
check was issued. However, this inference cannot be stretched to mean
concurrence with the criminal design.
Conspiracy must be established, not by conjectures, but by positive and
conclusive evidence.[37] Conspiracy transcends mere companionship and mere
presence at the scene of the crime does not in itself amount to
conspiracy.[38] Even knowledge, acquiescence in or agreement to cooperate, is
not enough to constitute one as a party to a conspiracy, absent any
active participation in the commission of the crime with a view to the furtherance
of the common design and purpose.[39]
As the Court eloquently pronounced in a case of recent vintage, People vs.
Mandao:[40]

To be sure, conspiracy is not a harmless innuendo to be taken lightly or accepted at

every turn. It is a legal concept that imputes culpability under specific circumstances;
as such, it must be established as clearly as any element of the crime. Evidence to
prove it must be positive and convincing, considering that it is a convenient and
simplistic device by which the accused may be ensnared and kept within the penal
fold.

Criminal liability cannot be based on a general allegation of conspiracy, and a

judgment of conviction must always be founded on the strength of the prosecutions
evidence. The Court ruled thus in People v. Legaspi, from which we quote:

At most, the prosecution, realizing the weakness of its evidence against accused-
appellant Franco, merely relied and pegged the latters criminal liability on its
sweeping theory of conspiracy, which to us, was not attendant in the commission of
the crime.

The rule is firmly entrenched that a judgment of conviction must be predicated on the
strength of the evidence for the prosecution and not on the weakness of the evidence
for the defense. The proof against him must survive the test of reason; the strongest
suspicion must not be permitted to sway judgment. The conscience must be satisfied
that on the defense could be laid the responsibility for the offense charged; that not
only did he perpetrate the act but that it amounted to a crime. What is required then is
moral certainty.

Verily, it is the role of the prosecution to prove the guilt of the appellant beyond
reasonable doubt in order to overcome the constitutional presumption of innocence.

In sum, conviction must rest on hard evidence showing that the accused is guilty
beyond reasonable doubt of the crime charged. In criminal cases, moral certainty --
not mere possibility -- determines the guilt or the innocence of the accused. Even
when the evidence for the defense is weak, the accused must be acquitted when the
prosecution has not proven guilt with the requisite quantum of proof required in all
criminal cases. (Citations omitted)[41]

All told, the prosecution failed to establish the guilt of the petitioner with
moral certainty. Its evidence falls short of the quantum of proof required for
conviction. Accordingly, the constitutional presumption of the petitioners
innocence must be upheld and she must be acquitted.
WHEREFORE, the instant petition is GRANTED. The assailed Decision,
dated May 17, 1999, of the Court of Appeals in CA-G.R. CR No. 20443 affirming
the Decision, dated August 24, 1996, of the Regional Trial Court (Branch 3),
Bohol, in Criminal Case Nos. 7068, 7069 and 7070 convicting the petitioner of
violation of B.P. Blg. 22 is hereby REVERSED and SET ASIDE. Petitioner
Evangeline Ladonga is ACQUITTED of the charges against her under B.P.
Blg. 22 for failure of the prosecution to prove her guilt beyond reasonable doubt.
No pronouncement as to costs.
SO ORDERED.
People v. Simon, G.R. No. 93028, 29 July 1994

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. 93028 July 29, 1994

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
MARTIN SIMON y SUNGA, respondent.

The Solicitor General for plaintiff-appellee.

Ricardo M.Sampang for accused-appellant.

REGALADO, J.:

Herein accused-appellant Martin Simon y Sunga was charged on November 10, 1988 with a
violation of Section 4, Article II of Republic Act
No. 6425, as amended, otherwise known as the Dangerous Drugs Act of 1972, under an indictment
alleging that on or about October 22, 1988, at Barangay Sto. Cristo, Guagua, Pampanga, he sold
four tea bags of marijuana to a Narcotics Command (NARCOM) poseur-buyer in consideration of the
sum of P40.00, which tea bags, when subjected to laboratory examination, were found positive for
marijuana.1

Eventually arraigned with the assistance of counsel on March 2, 1989, after his rearrest following his
escape from Camp Olivas, San Fernando, Pampanga where he was temporarily detained,2 he
pleaded not guilty. He voluntarily waived his right to a pre-trial conference,3 after which trial on the
merits ensued and was duly concluded.

The evidence on record shows that a confidential informant, later identified as a NARCOM operative,
informed the police unit at Camp Olivas, San Fernando, Pampanga, of the illegal drug activities of a
certain "Alyas Pusa" at Sto. Cristo, Guagua, Pampanga. Capt. Francisco Bustamante, Commanding
Officer of the 3rd Narcotics Regional Unit in the camp, then formed a buy-bust team composed of
Sgt. Buenaventura Lopez, Pfc. Virgilio Villaruz and
Sgt. Domingo Pejoro, all members of the same unit. After securing marked money from Bustamante,
the team, together with their informant, proceeded to Sto. Cristo after they had coordinated with the
police authorities and barangay officers thereof. When they reached the place, the confidential
informer pointed out appellant to Lopez who consequently approached appellant and asked him if he
had marijuana. Appellant answered in the affirmative and Lopez offered to buy two tea bags.
Appellant then left and, upon returning shortly thereafter, handed to Lopez two marijuana tea bags
and Lopez gave him the marked money amounting to P40.00 as payment. Lopez then scratched his
head as a
pre-arranged signal to his companions who were stationed around ten to fifteen meters away, and
the team closed in on them. Thereupon, Villaruz, who was the head of the back-up team, arrested
appellant. The latter was then brought by the team to the 3rd Narcotics Regional Unit at Camp
Olivas on board a jeep and he was placed under custodial investigation, with Sgt. Pejoro as the
investigator.4

Pfc. Villaruz corroborated Lopez' testimony, claiming that he saw the deal that transpired between
Lopez and the appellant. He also averred that he was the one who confiscated the marijuana and
took the marked money from appellant.5

Sgt. Domingo Pejoro, for his part, declared that although he was part of the buy-bust team, he was
stationed farthest from the rest of the other members, that is, around two hundred meters away from
his companions. He did not actually see the sale that transpired between Lopez and appellant but he
saw his teammates accosting appellant after the latter's arrest. He was likewise the one who
conducted the custodial investigation of appellant wherein the latter was apprised of his rights to
remain silent, to information and to counsel. Appellant, however, orally waived his right to counsel.6

Pejoro also claimed having prepared Exhibit "G", the "Receipt of Property Seized/Confiscated" which
appellant signed, admitting therein the confiscation of four tea bags of marijuana dried leaves in his
possession. Pejoro likewise informed the court below that, originally, what he placed on the receipt
was that only one marijuana leaf was confiscated in exchange for P20.00. However, Lopez and
Villaruz corrected his entry by telling him to put "two", instead of "one" and "40", instead of "20". He
agreed to the correction since they were the ones who were personally and directly involved in the
purchase of the marijuana and the arrest of appellant.7

Dr. Pedro S. Calara, a medical officer at Camp Olivas, examined appellant at 5:30 p.m. of the day
after the latter's apprehension, and the results were practically normal except for his relatively high
blood pressure. The doctor also did not find any trace of physical injury on the person of appellant.
The next day, he again examined appellant due to the latter's complaint of
gastro-intestinal pain. In the course of the examination, Dr. Calara discovered that appellant has a
history of peptic ulcer, which causes him to experience abdominal pain and consequently vomit
blood. In the afternoon, appellant came back with the same complaint but, except for the gastro-
intestinal pain, his physical condition remained normal.8

As expected, appellant tendered an antipodal version of the attendant facts, claiming that on the day
in question, at around 4:30 p.m., he was watching television with the members of his family in their
house when three persons, whom he had never met before suddenly arrived. Relying on the
assurance that they would just inquire about something from him at their detachment, appellant
boarded a jeep with them. He was told that they were going to Camp Olivas, but he later noticed that
they were taking a different route. While on board, he was told that he was a pusher so he attempted
to alight from the jeep but he was handcuffed instead. When they finally reached the camp, he was
ordered to sign some papers and, when he refused, he was boxed in the stomach eight or nine
times by Sgt. Pejoro. He was then compelled to affix his signature and fingerprints on the documents
presented to him. He denied knowledge of the P20.00 or the dried marijuana leaves, and insisted
that the twenty-peso bill came from the pocket of Pejoro. Moreover, the reason why he vomited
blood was because of the blows he suffered at the hands of Pejoro. He admitted having escaped
from the NARCOM office but claimed that he did so since he could no longer endure the
maltreatment to which he was being subjected. After escaping, he proceeded to the house of his
uncle, Bienvenido Sunga, at San Matias, Guagua, reaching the place at around 6:30 or 7:30 p.m.
There, he consulted a quack doctor and, later, he was accompanied by his sister to the Romana
Pangan District Hospital at Floridablanca, Pampanga where he was confined for three days.9
Appellant's brother, Norberto Simon, testified to the fact that appellant was hospitalized at
Floridablanca, Pampanga after undergoing abdominal pain and vomiting of blood. He likewise
confirmed that appellant had been suffering from peptic ulcer even before the latter's arrest.10 Also,
Dr. Evelyn Gomez-Aguas, a resident physician of Romana Pangan District Hospital, declared that
she treated appellant for three days due to abdominal pain, but her examination revealed that the
cause for this ailment was appellant's peptic ulcer. She did not see any sign of slight or serious
external injury, abrasion or contusion on his body.11

On December 4, 1989, after weighing the evidence presented, the trial court rendered judgment
convicting appellant for a violation of Section 4, Article II of Republic Act No. 6425, as amended, and
sentencing him to suffer the penalty of life imprisonment, to pay a fine of twenty thousand pesos and
to pay the costs. The four tea bags of marijuana dried leaves were likewise ordered confiscated in
favor of the Government.12

Appellant now prays the Court to reverse the aforementioned judgment of the lower court,
contending in his assignment of errors that the latter erred in (1) not upholding his defense of "frame-
up", (2) not declaring Exhibit "G" (Receipt of Property Seized/Confiscated) inadmissible in evidence,
and (3) convicting him of a violation of the Dangerous Drugs Act.13

At the outset, it should be noted that while the People's real theory and evidence is to the effect the
appellant actually sold only two tea bags of marijuana dried leaves, while the other two tea bags
were merely confiscated subsequently from his possession,14 the latter not being in any way
connected with the sale, the information alleges that he sold and delivered four tea bags of
marijuana dried leaves.15 In view thereof, the issue presented for resolution in this appeal is merely
the act of selling the two tea bags allegedly committed by appellant, and does not include the
disparate and distinct issue of illegal possession of the other two tea bags which separate offense is
not charged herein.16

To sustain a conviction for selling prohibited drugs, the sale must be clearly and unmistakably
established.17 To sell means to give, whether for money or any other material consideration.18 It must,
therefore, be established beyond doubt that appellant actually sold and delivered two tea bags of
marijuana dried leaves to Sgt. Lopez, who acted as the poseur-buyer, in exchange for two twenty-
peso bills.

After an assiduous review and calibration of the evidence adduced by both parties, we are morally
certain that appellant was caught in flagrante delicto engaging in the illegal sale of prohibited drugs.
The prosecution was able to prove beyond a scintilla of doubt that appellant, on October 22, 1988,
did sell two tea bags of marijuana dried leaves to Sgt. Lopez. The latter himself creditably testified as
to how the sale took place and his testimony was amply corroborated by his teammates. As between
the straightforward, positive and corroborated testimony of Lopez and the bare denials and negative
testimony of appellant, the former undeniably deserves greater weight and is more entitled to
credence.

We are aware that the practice of entrapping drug traffickers through the utilization of poseur-buyers
is susceptible to mistake, harassment, extortion and abuse.19 Nonetheless, such causes for judicial
apprehension and doubt do not obtain in the case at bar. Appellant's entrapment and arrest were not
effected in a haphazard way, for a surveillance was conducted by the team before the
buy-bust operation was effected.20 No ill motive was or could be attributed to them, aside from the
fact that they are presumed to have regularly performed their official duty.21 Such lack of dubious
motive coupled with the presumption of regularity in the performance of official duty, as well as the
findings of the trial court on the credibility of witnesses, should prevail over the self-serving and
uncorroborated claim of appellant of having been framed,22 erected as it is upon the mere shifting
sands of an alibi. To top it all, appellant was caught
red-handed delivering prohibited drugs, and while there was a delimited chance for him to controvert
the charge, he does not appear to have plausibly done so.

When the drug seized was submitted to the Crime Laboratory Service of the then Philippine
Constabulary-Integrated National Police (PC-INP) at Camp Olivas for examination, P/Cpl. Marlyn
Salangad, a forensic chemist therein,23confirmed in her Technical Report No. NB-448-88 that the
contents of the four tea bags confiscated from appellant were positive for and had a total weight of
3.8 grams of marijuana.24 Thus, the corpus delicti of the crime had been fully proved with certainty
and conclusiveness.25

Appellant would want to make capital of the alleged inconsistencies and improbabilities in the
testimonies of the prosecution witnesses. Foremost, according to him, is the matter of who really
confiscated the marijuana tea bags from him since, in open court, Pejoro asserted that he had
nothing to do with the confiscation of the marijuana, but in the aforementioned "Receipt of Property
Seized/Confiscated," he signed it as the one who seized the same.26

Suffice it to say that whether it was Villaruz or Pejoro who confiscated the marijuana will not really
matter since such is not an element of the offense with which appellant is charged. What is
unmistakably clear is that the marijuana was confiscated from the possession of appellant. Even,
assuming arguendo that the prosecution committed an error on who actually seized the marijuana
from appellant, such an error or discrepancy refers only to a minor matter and, as such, neither
impairs the essential integrity of the prosecution evidence as a whole nor reflects on the witnesses'
honesty.27 Besides, there was clearly a mere imprecision of language since Pejoro obviously meant
that he did not take part in the physical taking of the drug from the person of appellant, but he
participated in the legalseizure or confiscation thereof as the investigator of their unit.

Next, appellant adduces the argument that the twenty-peso bills allegedly confiscated from him were
not powdered for finger-printing purposes contrary to the normal procedure in buy-bust
operations.28 This omission has been satisfactorily explained by Pfc. Virgilio Villaruz in his testimony,
as follows:

Q: Is it the standard operating procedure of your unit that in

conducting such operation you do not anymore provide a powder
(sic) on the object so as to determine the thumbmark or identity of the
persons taking hold of the object?

A: We were not able to put powder on these denominations because

we are lacking that kind of material in our office since that item can be
purchased only in Manila and only few are producing that, sir.

xxx xxx xxx

Q: Is it not a fact that your office is within (the) P.C. Crime Laboratory,
CIS, as well as the office of NICA?

A: Our office is only adjacent to those offices but we cannot make a

request for that powder because they, themselves, are using that in
their own work, sir.29

The foregoing explanation aside, we agree that the failure to mark the money bills used for
entrapment purposes can under no mode of rationalization be fatal to the case of the prosecution
because the Dangerous Drugs Act punishes "any person who, unless authorized by law, shall sell,
administer, deliver, give away to another, distribute, dispatch in transit or transport any prohibited
drug, or shall act as a broker in any of such transactions."30 The dusting of said bills with
phosphorescent powder is only an evidentiary technique for identification purposes, which
identification can be supplied by other species of evidence.

Again, appellant contends that there was neither a relative of his nor any barangay official or civilian
to witness the seizure. He decries the lack of pictures taken before, during and after his arrest.
Moreover, he was not reported to or booked in the custody of any barangay official or police
authorities.31 These are absurd disputations. No law or jurisprudence requires that an arrest or
seizure, to be valid, be witnessed by a relative, a barangay official or any other civilian, or be
accompanied by the taking of pictures. On the contrary, the police enforcers having caught appellant
in flagrante delicto, they were not only authorized but were also under the obligation to effect a
warrantless arrest and seizure.

Likewise, contrary to appellant's contention, there was an arrest report prepared by the police in
connection with his apprehension. Said Booking Sheet and Arrest Report32 states, inter alia, that
"suspect was arrested for selling two tea bags of suspected marijuana dried leaves and the
confiscation of another two tea bags of suspected marijuana dried leaves." Below these remarks
was affixed appellant's signature. In the same manner, the receipt for the seized property,
hereinbefore mentioned, was signed by appellant wherein he acknowledged the confiscation of the
marked bills from him.33

However, we find and hereby declare the aforementioned exhibits inadmissible in evidence.
Appellant's conformance to these documents are declarations against interest and tacit admissions
of the crime charged. They were obtained in violation of his right as a person under custodial
investigation for the commission of an offense, there being nothing in the records to show that he
was assisted by counsel.34 Although appellant manifested during the custodial investigation that he
waived his right to counsel, the waiver was not made in writing and in the presence of
counsel,35 hence whatever incriminatory admission or confession may be extracted from him, either
verbally or in writing, is not allowable in evidence.36 Besides, the arrest report is self-serving and
hearsay and can easily be concocted to implicate a suspect.

Notwithstanding the objectionability of the aforesaid exhibits, appellant cannot thereby be extricated
from his predicament since his criminal participation in the illegal sale of marijuana has been
sufficiently proven. The commission of the offense of illegal sale of prohibited drugs requires merely
the consummation of the selling transaction37 which happens the moment the buyer receives the
drug from the seller.38 In the present case, and in light of the preceding discussion, this sale has been
ascertained beyond any peradventure of doubt.

Appellant then asseverates that it is improbable that he would sell marijuana to a total stranger.39 We
take this opportunity to once again reiterate the doctrinal rule that drug-pushing, when done on a
small scale as in this case, belongs to that class of crimes that may be committed at any time and in
any place.40 It is not contrary to human experience for a drug pusher to sell to a total stranger,41 for
what matters is not an existing familiarity between the buyer and seller but their agreement and the
acts constituting the sale and delivery of the marijuana leaves.42 While there may be instances where
such sale could be improbable, taking into consideration the diverse circumstances of person, time
and place, as well as the incredibility of how the accused supposedly acted on that occasion, we can
safely say that those exceptional particulars are not present in this case.

Finally, appellant contends that he was subjected to physical and mental torture by the arresting
officers which caused him to escape from Camp Olivas the night he was placed under
custody.43 This he asserts to support his explanation as to how his signatures on the documents
earlier discussed were supposedly obtained by force and coercion.

The doctrine is now too well embedded in our jurisprudence that for evidence to be believed, it must
not only proceed from the mouth of a credible witness but must be credible in itself such as the
common experience and observation of mankind can approve as probable under the
circumstances.44 The evidence on record is bereft of any support for appellant's allegation of
maltreatment. Two doctors, one for the prosecution45 and the other for the defense,46 testified on the
absence of any tell-tale sign or indication of bodily injury, abrasions or contusions on the person of
appellant. What is evident is that the cause of his abdominal pain was his peptic ulcer from which he
had been suffering even before his arrest.47 His own brother even corroborated that fact, saying that
appellant has had a history of bleeding peptic ulcer.48

Furthermore, if it is true that appellant was maltreated at Camp Olivas, he had no reason whatsoever
for not divulging the same to his brother who went to see him at the camp after his arrest and during
his detention there.49Significantly, he also did not even report the matter to the authorities nor file
appropriate charges against the alleged malefactors despite the opportunity to do so50 and with the
legal services of counsel being available to him. Such omissions funnel down to the conclusion that
appellant's story is a pure fabrication.

These, and the events earlier discussed, soundly refute his allegations that his arrest was baseless
and premeditated for the NARCOM agents were determined to arrest him at all costs.51 Premeditated
or not, appellant's arrest was only the culmination, the final act needed for his isolation from society
and it was providential that it came about after he was caught in the very act of illicit trade of
prohibited drugs. Accordingly, this opinion could have concluded on a note of affirmance of the
judgment of the trial court. However, Republic Act No. 6425, as amended, was further amended by
Republic Act No. 7659 effective December 31, 1993,52 which supervenience necessarily affects the
original disposition of this case and entails additional questions of law which we shall now resolve.

II

The provisions of the aforesaid amendatory law, pertinent to the adjudication of the case at bar, are
to this effect:

Sec. 13. Sections 3, 4, 5, 7, 8 and 9 of Art. II of Republic Act No. 6425, as amended,
known as the Dangerous Drugs Act of 1972, are hereby amended to read as follows:

xxx xxx xxx

Sec. 4. Sale, Administration, Delivery, Distribution and Transportation

of Prohibited Drugs. — The penalty of reclusion perpetua to death
and a fine ranging from five hundred thousand pesos to ten million
pesos shall be imposed upon any person who, unless authorized by
law, shall sell, administer, deliver, give away to another, distribute,
dispatch in transit or transport any prohibited drug, or shall act as a
broker in any of such transactions.

xxx xxx xxx

Sec. 17. Section 20, Article IV of Republic Act No. 6425, as amended, known as the
Dangerous Drugs Act of 1972, is hereby amended to read as follows:
 Sec. 20. Application of Penalties, Confiscation and Forfeiture of the
Proceeds or Instrument of the Crime. — The penalties for offenses
under Sections 3, 4, 7, 8 and 9 of Article II and Sections 14, 14-A, 15
and 16 of Article III of this Act shall be applied if the dangerous drugs
involved is in any of the following quantities:

xxx xxx xxx

5. 750 grams or more of indian hemp or marijuana

xxx xxx xxx

Otherwise, if the quantity involved is less than the foregoing

quantities, the penalty shall range from prision
correccional to reclusion perpetua depending upon the quantity.

1. Considering that herein appellant is being prosecuted for the sale of four tea bags of marijuana
with a total weight of only 3.8 grams and, in fact, stands to be convicted for the sale of only two of
those tea bags, the initial inquiry would be whether the patently favorable provisions of Republic Act
No. 7659 should be given retroactive effect to entitle him to the lesser penalty provided thereunder,
pursuant to Article 22 of the Revised Penal Code.

Although Republic Act No. 6425 was enacted as a special law, albeit originally amendatory and in
substitution of the previous Articles 190 to 194 of the Revised Penal Code,53 it has long been settled
that by force of Article 10 of said Code the beneficient provisions of Article 22 thereof applies to and
shall be given retrospective effect to crimes punished by special laws.54 The execution in said article
would not apply to those convicted of drug offenses since habitual delinquency refers to convictions
for the third time or more of the crimes of serious or less serious physical injuries, robo, hurto, estafa
or falsification.55

Since, obviously, the favorable provisions of Republic Act No. 7659 could neither have then been
involved nor invoked in the present case, a corollary question would be whether this court, at the
present stage, can
sua sponte apply the provisions of said Article 22 to reduce the penalty to be imposed on appellant.
That issue has likewise been resolved in the cited case of People vs. Moran, et al., ante., thus:

. . . . The plain precept contained in article 22 of the Penal Code, declaring the
retroactivity of penal laws in so far as they are favorable to persons accused of a
felony, would be useless and nugatory if the courts of justice were not under
obligation to fulfill such duty, irrespective of whether or not the accused has applied
for it, just as would also all provisions relating to the prescription of the crime and the
penalty.

If the judgment which could be affected and modified by the reduced penalties provided in Republic
Act No. 7659 has already become final and executory or the accused is serving sentence
thereunder, then practice, procedure and pragmatic considerations would warrant and necessitate
the matter being brought to the judicial authorities for relief under a writ of habeas corpus.56

2. Probably through oversight, an error on the matter of imposable penalties appears to have been
committed in the drafting of the aforesaid law; thereby calling for and necessitating judicial
reconciliation and craftsmanship.
As applied to the present case, Section 4 of Republic Act No. 6425, as now further amended,
imposes the penalty of reclusion perpetua to death and a fine ranging from P500,000.00 to
P10,000,000.00 upon any person who shall unlawfully sell, administer, deliver, give away, distribute,
dispatch in transit or transport any prohibited drug. That penalty, according to the amendment to
Section 20 of the law, shall be applied if what is involved is 750 grams or more of indian hemp or
marijuana; otherwise, if the quantity involved is less, the penalty shall range from prision
correccional to reclusion perpetua depending upon the quantity.

In other words, there is here an overlapping error in the provisions on the penalty of reclusion
perpetua by reason of its dual imposition, that is, as the maximum of the penalty where the
marijuana is less than 750 grams, and also as the minimum of the penalty where the marijuana
involved is 750 grams or more. The same error has been committed with respect to the other
prohibited and regulated drugs provided in said Section 20. To harmonize such conflicting provisions
in order to give effect to the whole law,57 we hereby hold that the penalty to be imposed where the
quantity of the drugs involved is less than the quantities stated in the first paragraph shall range
from prision correccional to reclusion temporal, and not reclusion perpetua. This is also concordant
with the fundamental rule in criminal law that all doubts should be construed in a manner favorable
to the accused.

3. Where, as in this case, the quantity of the dangerous drug is only 3.8 grams, hence covered by
the imposable range of penalties under the second paragraph of Section 20, as now modified, the
law provides that the penalty shall be taken from said range "depending upon the quantity" of the
drug involved in the case. The penalty in said second paragraph constitutes a complex one
composed of three distinct penalties, that is, prision correccional,prision mayor, and reclusion
temporal. In such a situation, the Code provides that each one shall form a period, with the lightest
of them being the minimum, the next as the medium, and the most severe as the maximum period.58

Ordinarily, and pursuant to Article 64 of the Code, the mitigating and aggravating circumstances
determine which period of such complex penalty
shall be imposed on the accused. The peculiarity of the second paragraph of Section 20, however, is
its specific mandate, above quoted, that the penalty shall instead depend upon the quantity of the
drug subject of the criminal transaction.59 Accordingly, by way of exception to Article 77 of the Code
and to subserve the purpose of Section 20 of Republic Act No. 7659, each of the aforesaid
component penalties shall be considered as a principal imposable penalty depending on the quantity
of the drug involved. Thereby, the modifying circumstances will not altogether be disregarded. Since
each component penalty of the total complex penalty will have to be imposed separately as
determined by the quantity of the drug involved, then the modifying circumstances can be used to fix
the proper period of that component penalty, as shall hereafter be explained.

It would, therefore, be in line with the provisions of Section 20 in the context of our aforesaid
disposition thereon that, unless there are compelling reasons for a deviation, the quantities of the
drugs enumerated in its second paragraph be divided into three, with the resulting quotient, and
double or treble the same, to be respectively the bases for allocating the penalty proportionately
among the three aforesaid periods according to the severity thereof. Thus, if the marijuana involved
is below 250 grams, the penalty to be imposed shall be prision correccional; from 250 to 499
grams, prision mayor; and 500 to
749 grams, reclusion temporal. Parenthetically, fine is imposed as a conjunctive penalty only if the
penalty is reclusion perpetua to death.60

Now, considering the minimal quantity of the marijuana subject of the case at bar, the penalty
of prision correccional is consequently indicated but, again, another preliminary and cognate issue
has first to be resolved.
4. Prision correccional has a duration of 6 months and 1 day to 6 years and, as a divisible penalty, it
consists of three periods as provided in the text of and illustrated in the table provided by Article 76
of the Code. The question is whether or not in determining the penalty to be imposed, which is here
to be taken from the penalty of prision correccional, the presence or absence of mitigating,
aggravating or other circumstances modifying criminal liability should be taken into account.

We are not unaware of cases in the past wherein it was held that, in imposing the penalty for
offenses under special laws, the rules on mitigating or aggravating circumstances under the Revised
Penal Code cannot and should not be applied. A review of such doctrines as applied in said cases,
however, reveals that the reason therefor was because the special laws involved provided their own
specific penalties for the offenses punished thereunder, and which penalties were not taken from or
with reference to those in the Revised Penal Code. Since the penalties then provided by the special
laws concerned did not provide for the minimum, medium or maximum periods, it would
consequently be impossible to consider the aforestated modifying circumstances whose main
function is to determine the period of the penalty in accordance with the rules in Article 64 of the
Code.

This is also the rationale for the holding in previous cases that the provisions of the Code on the
graduation of penalties by degrees could not be given supplementary application to special laws,
since the penalties in the latter were not components of or contemplated in the scale of penalties
provided by Article 71 of the former. The suppletory effect of the Revised Penal Code to special
laws, as provided in Article 10 of the former, cannot be invoked where there is a legal or physical
impossibility of, or a prohibition in the special law against, such supplementary application.

The situation, however, is different where although the offense is defined in and ostensibly punished
under a special law, the penalty therefor is actually taken from the Revised Penal Code in its
technical nomenclature and, necessarily, with its duration, correlation and legal effects under the
system of penalties native to said Code. When, as in this case, the law involved speaks of prision
correccional, in its technical sense under the Code, it would consequently be both illogical and
absurd to posit otherwise. More on this later.

For the nonce, we hold that in the instant case the imposable penalty under Republic Act No. 6425,
as amended by Republic Act No. 7659, is prision correccional, to be taken from the medium period
thereof pursuant to Article 64 of the Revised Penal Code, there being no attendant mitigating or
aggravating circumstance.

5. At this juncture, a clarificatory discussion of the developmental changes in the penalties imposed
for offenses under special laws would be necessary.

Originally, those special laws, just as was the conventional practice in the United States but
differently from the penalties provided in our Revised Penal Code and its Spanish origins, provided
for one specific penalty or a range of penalties with definitive durations, such as imprisonment for
one year or for one to five years but without division into periods or any technical statutory
cognomen. This is the special law contemplated in and referred to at the time laws like the
Indeterminate Sentence Law61 were passed during the American regime.

Subsequently, a different pattern emerged whereby a special law would direct that an offense
thereunder shall be punished under the Revised Penal Code and in the same manner provided
therein. Inceptively, for instance, Commonwealth Act No. 30362 penalizing non-payment of salaries
and wages with the periodicity prescribed therein, provided:
 Sec. 4. Failure of the employer to pay his employee or laborer as required by section
one of this Act, shall prima facie be considered a fraud committed by such employer
against his employee or laborer by means of false pretenses similar to those
mentioned in article three hundred and fifteen, paragraph four, sub-paragraph two (a)
of the Revised Penal Code and shall be punished in the same manner as therein
provided.63

Thereafter, special laws were enacted where the offenses defined therein were specifically punished
by the penalties as technically named and understood in the Revised Penal Code. These are
exemplified by Republic Act No. 1700 (Anti-Subversion Act) where the penalties ranged from arresto
mayor to
death;64 Presidential Decree No. 1612 (Anti-Fencing Decree) where the penalties run from arresto
mayor to prision mayor; and Presidential Decree
No. 1866 (illegal possession and other prohibited acts involving firearms), the penalties wherefor
may involve prision mayor, reclusion temporal, reclusion perpetua or death.

Another variant worth mentioning is Republic Act No. 6539

(Anti-Carnapping Act of 1972) where the penalty is imprisonment for not less than 14 years and 8
months and not more than 17 years and 4 months, when committed without violence or intimidation
of persons or force upon things; not less than 17 years and 4 months and not more than 30 years,
when committed with violence against or intimidation of any person, or force upon things; and life
imprisonment to death, when the owner, driver or occupant of the carnapped vehicle is killed.

With respect to the first example, where the penalties under the special law are different from and
are without reference or relation to those under the Revised Penal Code, there can be no suppletory
effect of the rules for the application of penalties under said Code or by other relevant statutory
provisions based on or applicable only to said rules for felonies under the Code. In this type of
special law, the legislative intendment is clear.

The same exclusionary rule would apply to the last given example, Republic Act No. 6539. While it is
true that the penalty of 14 years and
8 months to 17 years and 4 months is virtually equivalent to the duration of the medium period
of reclusion temporal,such technical term under the Revised Penal Code is not given to that penalty
for carnapping. Besides, the other penalties for carnapping attended by the qualifying circumstances
stated in the law do not correspond to those in the Code. The rules on penalties in the Code,
therefore, cannot suppletorily apply to Republic Act No. 6539 and special laws of the same
formulation.

On the other hand, the rules for the application of penalties and the correlative effects thereof under
the Revised Penal Code, as well as other statutory enactments founded upon and applicable to such
provisions of the Code, have suppletory effect to the penalties under the former Republic Act
No. 1700 and those now provided under Presidential Decrees Nos. 1612 and 1866. While these are
special laws, the fact that the penalties for offenses thereunder are those provided for in the Revised
Penal code lucidly reveals the statutory intent to give the related provisions on penalties for felonies
under the Code the corresponding application to said special laws, in the absence of any express or
implicit proscription in these special laws. To hold otherwise would be to sanction an indefensible
judicial truncation of an integrated system of penalties under the Code and its allied legislation,
which could never have been the intendment of Congress.

In People vs. Macatanda,65 a prosecution under a special law (Presidential Decree No. 533,
otherwise known as the Anti-Cattle Rustling Law of 1974), it was contended by the prosecution that
Article 64, paragraph 5, of the Revised Penal Code should not apply to said special law. We said
therein that —

We do not agree with the Solicitor General that P.D. 533 is a special law entirely
distinct from and unrelated to the Revised Penal Code. From the nature of the
penalty imposed which is in terms of the classification and duration of penalties as
prescribed in the Revised Penal Code, which is not for penalties as are ordinarily
imposed in special laws, the intent seems clear that P.D. 533 shall be deemed as an
amendment of the Revised Penal Code, with respect to the offense of theft of large
cattle (Art. 310) or otherwise to be subject to applicable provisions thereof such as
Article 104 of the Revised Penal Code . . . . Article 64 of the same Code should,
likewise, be applicable, . . . . (Emphasis supplied.)

More particularly with regard to the suppletory effect of the rules on penalties in the Revised Penal
Code to Republic Act No. 6425, in this case involving Article 63(2) of the Code, we have this more
recent pronouncement:

. . . Pointing out that as provided in Article 10 the provisions of the Revised Penal
Code shall be "supplementary" to special laws, this Court held that where the special
law expressly grants to the court discretion in applying the penalty prescribed for the
offense, there is no room for the application of the provisions of the Code . . . .

The Dangerous Drugs Act of 1972, as amended by P.D. No. 1623, contains no
explicit grant of discretion to the Court in the application of the penalty prescribed by
the law. In such case, the court must be guided by the rules prescribed by the
Revised Penal Code concerning the application of penalties which distill the "deep
legal thought and centuries of experience in the administration of criminal laws."
(Emphasis ours.)66

Under the aforestated considerations, in the case of the Dangerous Drugs Act as now amended by
Republic Act No. 7659 by the incorporation and prescription therein of the technical penalties
defined in and constituting integral parts of the three scales of penalties in the Code, 67 with much
more reason should the provisions of said Code on the appreciation and effects of all attendant
modifying circumstances apply in fixing the penalty. Likewise, the different kinds or classifications of
penalties and the rules for graduating
such penalties by degrees should have supplementary effect on Republic Act No. 6425, except if
they would result in absurdities as will now be explained.

While not squarely in issue in this case, but because this aspect is involved in the discussion on the
role of modifying circumstances, we have perforce to lay down the caveat that mitigating
circumstances should be considered and applied only if they affect the periods and the degrees of
the penalties within rational limits.

Prefatorily, what ordinarily are involved in the graduation and consequently determine the degree of
the penalty, in accordance with the rules in Article 61 of the Code as applied to the scale of penalties
in Article 71, are the stage of execution of the crime and the nature of the participation of the
accused. However, under paragraph 5 of Article 64, when there are two or more ordinary mitigating
circumstances and no aggravating circumstance, the penalty shall be reduced by one degree. Also,
the presence of privileged mitigating circumstances, as provided in Articles 67 and 68, can reduce
the penalty by one or two degrees, or even more. These provisions of Articles 64(5), 67 and 68
should not apply in toto in the determination of the proper penalty under the aforestated second
paragraph of section 20 of Republic Act No. 6425, to avoid anomalous results which could not have
been contemplated by the legislature.

Thus, paragraph 5 of Article 61 provides that when the law prescribes a penalty in some manner not
specially provided for in the four preceding paragraphs thereof, the courts shall proceed by analogy
therewith. Hence, when the penalty prescribed for the crime consists of one or two penalties to be
imposed in their full extent, the penalty next lower in degree shall likewise consist of as many
penalties which follow the former in the scale in Article 71. If this rule were to be applied, and since
the complex penalty in this
case consists of three discrete penalties in their full extent, that is,
prision correccional, prision mayor and reclusion temporal, then one degree lower would be arresto
menor, destierro and arresto mayor. There could, however, be no further reduction by still one or two
degrees, which must each likewise consist of three penalties, since only the penalties of fine and
public censure remain in the scale.

The Court rules, therefore, that while modifying circumstances may be appreciated to determine
the periods of the corresponding penalties, or even reduce the penalty by degrees, in no case
should such graduation of penalties reduce the imposable penalty beyond or lower than prision
correccional. It is for this reason that the three component penalties in the second paragraph of
Section 20 shall each be considered as an independent principal penalty, and that the lowest penalty
should in any event be prision correccional in order not to depreciate the seriousness of drug
offenses. Interpretatio fienda est ut res magis valeat quam pereat. Such interpretation is to be
adopted so that the law may continue to have efficacy rather than fail. A perfect judicial solution
cannot be forged from an imperfect law, which impasse should now be the concern of and is
accordingly addressed to Congress.

6. The final query is whether or not the Indeterminate Sentence Law is applicable to the case now
before us. Apparently it does, since drug offenses are not included in nor has appellant committed
any act which would put him within the exceptions to said law and the penalty to be imposed does
not involve reclusion perpetua or death, provided, of course, that the penalty as ultimately resolved
will exceed one year of imprisonment.68 The more important aspect, however, is how the
indeterminate sentence shall be ascertained.

It is true that Section 1 of said law, after providing for indeterminate sentence for an offense under
the Revised Penal Code, states that "if the offense is punished by any other law, the court shall
sentence the accused to an indeterminate sentence, the maximum term of which shall not exceed
the maximum fixed by said law and the minimum shall not be less than the minimum term prescribed
by the same." We hold that this quoted portion of the section indubitably refers to an offense under a
special law wherein the penalty imposed was not taken from and is without reference to the Revised
Penal Code, as discussed in the preceding illustrations, such that it may be said that the "offense is
punished" under that law.

There can be no sensible debate that the aforequoted rule on indeterminate sentence for offenses
under special laws was necessary because of the nature of the former type of penalties under said
laws which were not included or contemplated in the scale of penalties in Article 71 of the Code,
hence there could be no minimum "within the range of the penalty next lower to that prescribed by
the Code for the offense," as is the rule for felonies therein. In the illustrative examples of penalties
in special laws hereinbefore provided, this rule applied, and would still apply, only to the first and last
examples. Furthermore, considering the vintage of Act No. 4103 as earlier noted, this holding is but
an application and is justified under the rule of contemporanea expositio.69
We repeat, Republic Act No. 6425, as now amended by Republic Act No. 7659, has unqualifiedly
adopted the penalties under the Revised Penal Code in their technical terms, hence with their
technical signification and effects. In fact, for purposes of determining the maximum of said
sentence, we
have applied the provisions of the amended Section 20 of said law to arrive at prision
correccional and Article 64 of the Code to impose the same in the medium period. Such offense,
although provided for in a special law, is now in effect punished by and under the Revised Penal
Code. Correlatively, to determine the minimum, we must apply the first part of the aforesaid Section
1 which directs that "in imposing a prison sentence for an offense punished by the Revised Penal
Code, or its amendments, the court shall sentence the accused to an indeterminate sentence
the maximum term of which shall be that which, in view of the attending circumstances, could be
properly imposedunder the rules of said Code, and the minimum which shall be within the range of
the penalty next lower to that prescribed by the Code for the offense." (Emphasis ours.)

A divergent pedantic application would not only be out of context but also an admission of the
hornbook maxim that qui haeret in litera haeret in cortice. Fortunately, this Court has never gone
only skin-deep in its construction of Act. No. 4103 by a mere literal appreciation of its provisions.
Thus, with regard to the phrase in Section 2 thereof excepting from its coverage "persons convicted
of offenses punished with death penalty or life imprisonment," we have held that what is considered
is the penalty actually imposed and not the penalty imposable under the law,70and that reclusion
perpetua is likewise embraced therein although what the law states is "life imprisonment".

What irresistibly emerges from the preceding disquisition, therefore, is that under the concurrence of
the principles of literal interpretation, which have been rationalized by comparative decisions of this
Court; of historical interpretation, as explicated by the antecedents of the law and related
contemporaneous legislation; and of structural interpretation, considering the interrelation of the
penalties in the Code as supplemented by Act No. 4103 in an integrated scheme of penalties, it
follows that the minimum of the indeterminate sentence in this case shall be the penalty next
lower to that prescribed for the offense. Thereby we shall have interpreted the seeming ambiguity in
Section 1 of Act No. 4103 in such a way as to harmonize laws with laws, which is the best mode of
interpretation.71

The indeterminate Sentence Law is a legal and social measure of compassion, and should be
liberally interpreted in favor of the accused.72 The "minimum" sentence is merely a period at which,
and not before, as a matter of grace and not of right, the prisoner may merely be allowed to serve
the balance of his sentence outside of his confinement.73 It does not constitute the totality of the
penalty since thereafter he still has to continue serving the rest of his sentence under set conditions.
That minimum is only the period when the convict's eligibility for parole may be considered. In fact,
his release on parole may readily be denied if he is found unworthy thereof, or his reincarceration
may be ordered on legal grounds, even if he has served the minimum sentence.

It is thus both amusing and bemusing if, in the case at bar, appellant should be begrudged the
benefit of a minimum sentence within the range of arresto mayor, the penalty next lower to prision
correccional which is the maximum range we have fixed through the application of Articles 61 and 71
of the Revised Penal Code. For, with fealty to the law, the court may set the minimum sentence at 6
months of arresto mayor, instead of 6 months and 1 day of prision correccional. The difference,
which could thereby even involve only one day, is hardly worth the creation of an overrated tempest
in the judicial teapot.

ACCORDINGLY, under all the foregoing premises, the judgment of conviction rendered by the court
a quo against accused-appellant Martin Simon y Sunga is AFFIRMED, but with the MODIFICATION
that he should be, as he hereby is, sentenced to serve an indeterminate penalty of six (6) months
of arresto mayor, as the minimum, to six (6) years of prision correccional, as the maximum thereof.

SO ORDERED.
People v. Sylvestre and Atienza, G.R. No. 35748, 14 December 1931, 56 Phil. 353

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. L-35748 December 14, 1931

THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellee,

vs.
ROMANA SILVESTRE and MARTIN ATIENZA, defendants-appellants.

Teofilo Mendoza for appellants.

Attorney-General Jaranilla for appellee.

VILLA-REAL, J.:

Martin Atienza and Romana Silvestre appeal to this court from the judgment of the Court of First
Instance of Bulacan convicting them upon the information of the crime of arson as follows: The
former as principal by direct participation, sentenced to fourteen years, eight months, and one day
of cadena temporal, in accordance with paragraph 2 of article 550, Penal Code; and the latter as
accomplice, sentenced to six years and one day of presidio mayor; and both are further sentenced
to the accessories of the law, and to pay each of the persons whose houses were destroyed by the
fire, jointly and severally, the amount set forth in the information, with costs.

Counsel appointed by the court to defend the accused- appellants de oficio, after delivering his
argument, prayed for the affirmance of the judgment with reference to the appellant Martin Atienza,
and makes the following assignments of error with reference to Romana Silvestre, to wit:

1. The lower court erred in convincing Romana Silvestre as accomplice of the crime charged
in the information.

2. Finally, the court erred in not acquitting said defendant from the information upon the
ground of insufficient evidence, or at the least, of reasonable doubt.

The following facts were proved at the hearing beyond a reasonable doubt:

Romana Silvestre, wife of Domingo Joaquin by her second marriage, cohabited with her
codefendant Martin Atienza from the month of March, 1930, in the barrio of Masocol, municipality of
Paombong, Province of Bulacan. On May 16, 1930, the complaining husband, Domingo Joaquin,
filed with the justice of the peace for that municipality, a sworn complaint for adultery, supported by
affidavits of Gerardo Cabigao and Castor de la Cruz (Exhibit B). On the same date, May 16, 1930,
the said accused were arrested on a warrant issued by said justice of the peace. On the 20th of the
month, they were released on bail, each giving a personal bond of P6,000. Pending the preliminary
investigation of the case, the two defendants begged the municipal president of Paombong,
Francisco Suerte Felipe, to speak to the complaint, Domingo Joaquin, urging him to withdraw the
complaint, the two accused binding themselves to discontinue cohabitation, and promising not to live
again in the barrio of Masocol; Martin Atienza voluntarily signed the promise (Exhibit A). The
municipal president transmitted the defendants' petition to the complaining husband, lending it his
support. Domingo Joaquin acceded to it, and on May 20, 1930, filed a motion for the dismissal of his
complaint. In consideration of this petition, the justice of the peace of Paombong dismissed the
adultery case commenced against the accused, and cancelled the bonds given by them, with the
costs against the complainant.

The accused then left the barrio of Masocol and went to live in that of Santo Niño, in the same
municipality of Paombong.

About November 20, 1930, the accused Romana Silvestre met her son by her former marriage,
Nicolas de la Cruz, in the barrio of Santo Niño, and under pretext of asking him for some nipa
leaves, followed him home to the village of Masocol, and remained there. The accused, Martin
Atienza, who had continued to cohabit with said Romana Silvestre, followed her and lived in the
home of Nicolas de la Cruz. On the night of November 25, 1930, while Nicolas de la Cruz and his
wife, Antonia de la Cruz, were gathered together with the appellants herein after supper, Martin
Atienza told said couple to take their furniture out of the house because he was going to set fire to it.
Upon being asked by Nicolas and Antonia why he wanted to set fire to the house, he answered that
that was the only way he could be revenged upon the people of Masocol who, he said, had
instigated the charge of adultery against him and his codefendant, Romana Silvestre. As Martin
Atienza was at that time armed with a pistol, no one dared say anything to him, not even Romana
Silvestre, who was about a meter away from her codefendant. Alarmed at what Martin Atienza had
said, the couple left the house at once to communicate with the barrio lieutenant, Buenaventura
Ania, as to what they had just heard Martin Atienza say; but they had hardly gone a hundred arms'
length when they heard cries of "Fire! Fire!" Turning back they saw their home in flames, and ran
back to it; but seeing that the fire had assumed considerable proportions, Antonia took refuge in the
schoolhouse with her 1 year old babe in her arms, while Nicolas went to the home of his parents-in-
law, took up the furniture he had deposited there, and carried it to the schoolhouse. The fire
destroyed about forty-eight houses. Tomas Santiago coming from the barrio artesian well, and
Tomas Gonzalez, teacher at the barrio school of Masocol, and Felipe Clemente, an old man 61
years of age, coming from their homes, to the house on fire, saw Martin Atienza going away from the
house where the fire started, and Romana Silvestre leaving it. lawphil.net

As stated in the beginning, counsel appointed by this court to defend the accused-appellant de
oficio, prays for the affirmance of the judgment appealed from with reference to defendant Martin
Atienza. The facts related heretofore, proved beyond a reasonable doubt at the hearing, justify this
petition of the de oficio counsel, and establish beyond a reasonable doubt said defendant's guilt of
arson as charged, as principal by direct participation.

With respect to the accused-appellant Romana Silvestre, the only evidence of record against her
are: That, being married, she lived adulterously with her codefendant Martin Atienza, a married man;
that both were denounced for adultery by Domingo Joaquin, Romana Silvestre's second husband;
that in view of the petition of the accused, who promised to discontinue their life together, and to
leave the barrio of Masocol, and through the good offices of the municipal president of Paombong,
the complaining husband asked for the dismissal of the complaint; that in pursuance of their
promise, both of the accused went to lived in the barrio of Santo Niño, in the same municipality; that
under pretext for some nipa leaves from her son by her former marriage, Nicolas de la Cruz, who
had gone to the barrio of Santo Niño, Romana Silvestre followed him to his house in the barrio of
Masocol on November 23, 1930, and remained there; that her codefendant, Martin Atienza followed
her, and stayed with his coaccused in the same house; that on the night of November 25, 1930, at
about 8 o'clock, while all were gathered together at home after supper, Martin Atienza expressed his
intention of burning the house as the only means of taking his revenge on the Masocol resident, who
had instigated Domingo Joaquin to file the complaint for adultery against them, which compelled
them to leave the barrio of Masocol; that Romana Silvestre listened to her codefendant's threat
without raising a protest, and did not give the alarm when the latter set fire to the house. Upon the
strength of these facts, the court below found her guilty of arson as accomplice.

Article 14 of the Penal Code, considered in connection with article 13, defines an accomplice to be
one who does not take a direct part in the commission of the act, who does not force or induce other
to commit it, nor cooperates in the commission of the act by another act without which it would not
have been accomplished, yet cooperates in the execution of the act by previous or simultaneous
actions.

Now then, which previous or simultaneous acts complicate Romana Silvestre in the crime of arson
committed by her codefendant Martin Atienza? Is it her silence when he told the spouses, Nicolas de
la Cruz and Antonia de la Cruz, to take away their furniture because he was going to set fire to their
house as the only means of revenging himself on the barrio residents, her passive presence when
Martin Atienza set fire to the house, where there is no evidence of conspiracy or cooperation, and
her failure to give the alarm when the house was already on fire?

The complicity which is penalized requires a certain degree of cooperation, whether moral, through
advice, encouragement, or agreement, or material, through external acts. In the case of the
accused-appellant Romana Silvestre, there is no evidence of moral or material cooperation, and
none of an agreement to commit the crime in question. Her mere presence and silence while they
are simultaneous acts, do not constitute cooperation, for it does not appear that they encouraged or
nerved Martin Atienza to commit the crime of arson; and as for her failure to give the alarm, that
being a subsequent act it does not make her liable as an accomplice.

The trial court found the accused-appellant Martin Atienza guilty of arson, defined and penalized in
article 550, paragraph 2, of the Penal Code, which reads as follows:

ART. 550. The penalty of cadena temporal shall be imposed upon:

xxx xxx xxx

2. Any person who shall set fire to any inhabited house or any building in which people are
accustomed to meet together, without knowing whether or not such building or house was
occupied at the time, or any freight train in motion, if the damage caused in such cases shall
exceed six thousand two hundred and fifty pesetas.

While the defendant indeed knew that besides himself and his codefendant, Romana Silvestre, there
was nobody in De la Cruz's house at the moment of setting fire to it, he cannot be convicted merely
arson less serious than what the trial court sentenced him for, inasmuch as that house was the
means of destroying the others, and he did not know whether these were occupied at the time or
not. If the greater seriousness of setting fire to an inhabited house, when the incendiary does not
know whether there are people in it at the time, depends upon the danger to which the inmates are
exposed, not less serious is the arson committed by setting fire to inhabited houses by means of
another inhabited house which the firebrand knew to be empty at the moment of committing the act,
if he did not know whether there were people or not in the others, inasmuch as the same danger
exists.

With the evidence produced at the trial, the accused-appellant Martin Atienza might have been
convicted of the crime of arson in the most serious degree provided for in article 549 of the Penal
Code, if the information had alleged that at the time of setting fire to the house, the defendant knew
that the other houses were occupied, taking into account that barrio residents are accustomed to
retire at the tolling of the bell for the souls in purgatory, i.e., at 8 o'clock at night.

For all the foregoing considerations, we are of the opinion and so hold, that: (1) Mere passive
presence at the scene of another's crime, mere silence and failure to give the alarm, without
evidence of agreement or conspiracy, do not constitute the cooperation required by article 14 of the
Penal Code for complicity in the commission of the crime witnessed passively, or with regard to
which one has kept silent; and (2) he who desiring to burn the houses in a barrio, without knowing
whether there are people in them or not, sets fire to one known to be vacant at the time, which
results in destroying the rest, commits the crime of arson, defined and penalized in article 550,
paragraph 2, Penal Code.

By virtue wherefore, the judgment appealed from is modified as follows: It is affirmed with reference
to the accused-appellant Martin Atienza, and reversed with reference to the accused-appellant
Romana Silvestre, who is hereby acquitted with
one-half of the costs de oficio. So ordered.
People v. Talingdan, L-32126, 6 July 1978, 84 SCRA 19

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. L-32126 July 6, 1978

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
NEMESIO TALINGDAN, MAGELLAN TOBIAS, AUGUSTO BERRAS, PEDRO BIDES and
TERESA DOMOGMA, accused-appellants.

PER CURIAM:

Appeal from the conviction for the crime of murder and the sentence of life imprisonment, with
indemnity to the offended party, the heirs of the deceased Bernardo Bagabag, in the amount of
P12,000, rendered by the Court of First Instance of Abra in its Criminal Case No. 686, of all the
accused the namely, Nemesio Talingdan, Magellan Tobias, Augusta Berras, Pedro Bides and
Teresa Domogma, the last being the supposed wife of the deceased, who, because no certificate
nor any other proof of their marriage could be presented by the prosecution, could not be charged
with parricide.

Prior to the violent death of Bernardo Bagabag on the night of June 24, 1967, he and appellant
Teresa Domogma and their children, arrived together in their house at Sobosob, Salapadan, Abra,
some 100 meters distant from the municipal building of the place. For sometime, however, their
relationship had been strained and beset with troubles, for Teresa had deserted their family home a
couple of times and each time Bernardo took time out to look for her. On two (2) different occasions,
appellant Nemesis Talingdan had visited Teresa in their house while Bernardo was out at work, and
during those visits Teresa had made Corazon, their then 12-year old daughter living with them, go
down the house and leave them. Somehow, Bernardo had gotten wind that illicit relationship was
going on between Talingdan and Teresa, and during a quarrel between him and Teresa, he directly
charged the latter that should she get pregnant, the child would not be his. About a month or so
before Bernardo was killed, Teresa had again left their house and did not come back for a period of
more than three (3) weeks, and Bernardo came to know later that she and Talingdan were seen
together in the town of Tayum Abra during that time; then on Thursday night, just two (2) days before
he was gunned down, Bernardo and Teresa had a violent quarrel; Bernardo slapped Teresa several
times; the latter went down the house and sought the help of the police, and shortly thereafter,
accused Talingdan came to the vicinity of Bernardo's house and called him to come down; but
Bernardo ignored him, for accused Talingdan was a policeman at the time and was armed, so the
latter left the place, but not without warning Bernardo that someday he would kin him. Between
10:00 and 11:00 o'clock the following Friday morning, Bernardo's daughter, Corazon, who was then
in a creek to wash clothes saw her mother, Teresa, meeting with Talingdan and their co-appellants
Magellan Tobias, Augusto Berras and Pedro Bides in a small hut owned by Bernardo, some 300 to
400 meters away from the latter's house; as she approached them, she heard one of them say
"Could he elude a bullet"; and when accused Teresa Domogma noticed the presence of her
daughter, she shoved her away saying "You tell your father that we will kill him".
Shortly after the sun had set on the following day, a Saturday, June 24, 1967, while the same 12-
year old daughter of Bernardo was cooking food for supper in the kitchen of their house, she saw her
mother go down the house through the stairs and go to the yard where she again met with the other
appellants. As they were barely 3-4 meters from the place where the child was in the "batalan", she
heard them conversing in subdued tones, although she could not discern what they were saying.
She was able to recognize all of them through the light coming from the lamp in the kitchen through
the open "batalan" and she knows them well for they are all residents of Sobosob and she used to
see them almost everytime. She noted that the appellants had long guns at the time. Their meeting
did not last long, after about two (2) minutes Teresa came up the house and proceeded to her room,
while the other appellants went under an avocado tree nearby. As supper was then ready, the child
caged her parents to eat, Bernardo who was in the room adjoining the kitchen did not heed his
daughter's call to supper but continued working on a plow, while Teresa also excused herself by
saying she would first put her small baby to sleep. So Corazon ate supper alone, and as soon as
she was through she again called her parents to eat. This time, she informed her father about the
presence of persons downstairs, but Bernardo paid no heed to what she said. He proceeded to the
kitchen and sat himself on the floor near the door. Corazon stayed nearby watching him. At that
moment, he was suddenly fired upon from below the stairs of the "batalan". The four accused then
climbed the stairs of the "batalan" carrying their long guns and seeing that Bernardo was still alive,
Talingdan and Tobias fired at him again. Bides and Berras did not fire their guns at that precise time,
but when Corazon tried to call for help Bides warned her, saying "You call for help and I will kill you",
so she kept silent. The assailants then fled from the scene, going towards the east.

The first to come to the aid of the family was Corazon's male teacher who lived nearby. Teresa came
out of her "silid" later; she pulled Corazon aside and questioned her, and when Corazon informed
her that she recognized the killers of her father to be her co-appellants herein, she warned her not to
reveal the matter to anyone, threatening to kill her if she ever did so. Still later on, other persons
arrived and helped fix and dress the lifeless body of the victim, Bernardo, autopsy on which was
performed in his own house by the Municipal Health Officer of the place on June 26, 1967, about 36
hours after death; burial took place on the same day. The victim's brother who came from Manila
arrived one day after the burial followed by their mother who came from La Paz, Abra where she
resides. Corazon, who had not earlier revealed the Identities of the killers of her father because she
was afraid of her own mother, was somehow able to reveal the circumstances surrounding his killing
to these immediate relatives of hers, and the sworn statement she thereafter executed on August 5,
1967 (Exh. B) finally led to the filing of the information for murder against the herein five (5)
appellants.

On the other hand, according to the evidence for the defense: Teresa prior to her marriage with
Bernardo, was a resident of the town of Manabo, Abra. She has a sister in Manila and two (2)
brothers in America who love her dearly, that is why said brothers of hers had been continuously and
regularly sending her monthly $100.00 in checks, starting from the time she was still single up to the
time of her husband's violent death on June 24, 1967, and thereafter. After their marriage, they
moved to and resided in her husband's place in Sallapadan, Abra, bringing with them three (3)
carabaos and two (2) horses, which Bernardo and she used in tilling a parcel of land in said place,
separate and distinct from the parcel of land worked on by Bernardo's parents and their other
children. She and Bernardo lived in their own house which was about 4-5 meters away from the
house of her parents-in-law. She loved Bernardo dearly, they never quarreled, and her husband
never maltreated her; although sometimes she had to talk to Bernardo when he quarrels with his
own mother who wanted that Bernardo's earnings be given to her, (the mother) which Bernardo
never did, and at those times, Bernardo would admonish Teresa "You leave me alone". Her in-laws
also hated her because her mother-in-law could not get the earnings of Bernardo for the support of
her other son, Juanito, in his schooling. On his part, Juanito also disliked her because she did not
give him any of the carpentry tools which her brothers in America were sending over to her. She
never left their conjugal home for any long period of time as charged by her mother-in-law, and if she
ever did leave the house to go to other places they were only during those times when she had to go
to Bangued to cash her dollar checks with the PNB branch there, and even on said trips, she was
sometimes accompanied by Bernardo, or if she had to go alone and leaves Sallapadan in the
morning, she rode in a weapons carrier along with merchants going to Bangued in the morning and
always rode back with them to Sallapadan in the afternoon of the same day because the weapons
carrier is owned by a resident of Sallapadan who waits for them. Teresa came to know Talingdan
only when the latter became a policeman in Sallapadan, as whenever any of the carabaos and
horses they brought from Manabo to Sallapadan got lost, she and Bernardo would go and report the
matter to the Mayor who would then refer the matter to his policemen, one of whom is Talingdan, so
that they may help locate the lost animals; Teresa knew Talingdan well because they are neighbors,
the latter's home being only about 250-300 meters away from theirs. But illicit relationship had never
existed between them.

Early in the evening of June 24, 1967, Teresa was in the kitchen of their house cooking their food for
supper. Two of the children, Corazon and Judit, were with her. Her husband, Bernardo, was then in
the adjoining room making a plow. He had to make the plow at that time of the night because at
daytime he worked as a carpenter in the convent. As soon as the food was ready, she and the
children moved over to the adjoining room where Bernardo was to call him for supper, and he then
proceeded to the kitchen to eat. Teresa and the two children were about to follow him to the kitchen
when suddenly they heard more than five (5) or six (6) successive gun shots coming from near their
"batalan". They were all so terrified that they immediately cried for help, albeit she did not know yet
at that precise time that her husband was shot, as she and the children were still in the other room
on their way to the kitchen, about three (3) meters away from Bernardo. But soon Teresa heard her
husband crying in pain, and as soon as she reached him, she took Bernardo into her arms. She did
not see the killers of her husband, as the night was then very dark and it was raining. Bernardo was
in her arms when the first group of people who responded to their cry for help arrived. Among them
were the chief of police, some members of the municipal council and appellant Tobias who even
advised Teresa not to carry the lifeless body of Bernardo to avoid abortion as she was then six (6)
months pregnant. The chief of police then conducted an investigation of the surroundings and he
found some empty shells and foot prints on the ground some meters away from the "batalan". He
also found some bullet holes on the southern walls of said "batalan" and on the nothern wallings of
the kitchen. Later, Teresa requested some persons to relay the information about the death of her
husband to her relatives in Manabo, Abra, and they in turn passed on the news to Bernardo's mother
and her family in La Paz, Abra, where they were then residing, as they have left their house in
Sallapadan about two (2) months previous after they lost the land they used to till there in a case
with the natives called Tingians. Two (2) PC soldiers arrived in the afternoon of June 26, 1967, and
after Bernardo's remains was autopsied and he was buried under their house, they conducted an
investigation, but she did not give them any information relative to the Identity of the persons who
shot her husband because she did not really see them. Her mother-in-law and a brother-in-law,
Juanita Bagabag, arrived later, the former from the town of La Paz, Abra, and the latter from Manila,
and after the usual nine (9) days mourning was over, they left Sallapadan, taking Teresa's children
under their custody. Teresa suspects that since her mother-in-law and her brother-in-law have axes
to grind against her and they have her daughter, Corazon, under their custody, they had forced the
said child to testify against her. She further declared that her late husband, Bernardo, had enemies
during his lifetime, as he had quarrels with some people over the land they work on.

Furthermore, the defense presented evidence to the effect that: Talingdan was not in Sallapadan at
the time of the killing of Bernardo on June 24, 1967; being a policeman of the place at the time, he
was one of the two (2) policemen who escorted and acted as bodyguard of the Mayor, when the
latter attended the cursillo in Bangued, all of them leaving Sallapadan on June 22 and returning
thereto four (4) days later on June 26, hence, he could not have anything to do with the said killing.
On the other hand, Tobias claimed to be in the house of one Mrs. Bayongan in Sallapadan on the
date of said killing, but he was one of the persons who was called upon by the chief of police of the
place to accompany him in answer to the call for help of the wife of the victim. The other two
appellants Bides and Berras also alleged that they were in the same house of Mrs. Bayongan on
that date; they are tillers of the land of said Mrs. Bayongan and had been staying in her house for a
long time. They were sleeping when the chief of police came that evening and asked Tobias, who
was then municipal secretary, to accompany him to the place of the shooting. They did not join them,
but continued sleeping. They never left the said house of Mrs. Bayongan, which is about 250-300
meters away from the place of the killing, that evening of June 24, 1967.

After carefully weighing the foregoing conflicting evidence of the prosecution and defense, We have
no doubt in Our mind that in that fatal evening of June 24, 1967, appellants Nemesio Talingdan,
Magellan Tobias, Augusto Berras and Pedro Bides, all armed with long firearms and acting
inconspiracy with each other gunned down Bernardo as the latter was sitting by the supper table in
their house at Sobosob, Sallapadan, Abra. They were actually seen committing the offense by the
witness Corazon. She was the one who prepared the food and was watching her father nearby.
They were all known to her, for they were all residents of Sobosob and she used to see them often
before that night. Although only Talingdan and Tobias continued firing at her father after they had
climbed the stairs of the "batalan", it was Bides who threatened her that he would kill her if she called
for help. Berras did not fire any shot then. But even before the four appellants went up the "batalan",
they already fired shots from downstairs.

We also fully believe Corazon's testimony that two nights before, or on Thursday, June 22, 1967, the
deceased Bernardo and appellant Teresa had a violent quarrel during which he slapped her several
times. She went to seek the help of the police, and it was appellant Talingdan, a policeman of their
town, who went to the vicinity of their house and challenged her father to come down, but the latter
refused because the former was a policeman and was armed. And so, Talingdan left after shouting
to her father that "If I will find you someday, I will kill you."

We likewise accept as truthful, Corazon's declaration regarding the amorous relationship between
her mother and appellant Talingdan, as already related earlier above. So also her testimony that in
the morning following the quarrel between her father and her mother and the threat made by
Talingdan to the former, between 10:00 and 11:00 o'clock, she saw all the herein four male accused-
appellants meeting with her mother in a small hut some 300 or 400 meters away from their house,
near where she was then washing clothes, and that on said occasion she overheard one of them ask
"Could (sic) he elude a bullet?", We have our doubts, however, as to whether or not her mother did
say to her in shoving her away upon seeing her approach, "You tell your father we will kill him." If it
were true that there was really such a message, it is to be wondered why she never relayed the
same to her father, specially when she again saw the said appellants on the very night in question
shortly before the shooting talking together in subdued tones with her mother and holding long arms.
Moreover, it is quite unnatural that such a warning could have been done in such a manner.

Accordingly, it is Our conclusion from the evidence related above and which We have carefully
reviewed that appellants Nemesio Talingdan, Magellan Tobias, Augusto Berras and Pedro Bides are
guilty of murder qualified by treachery, as charged, and that they committed the said offense in
conspiracy with each other, with evident premeditation and in the dwelling of the offended party. In
other words, two aggravating circumstances attended the commission of the offense, namely,
evident premeditation and that it was committed in the dwelling of the victim. No mitigating
circumstance has been proven.

Appellants insist in their brief that the lone testimony of Corazon suffered from vital contradictions
and inconsistencies and badges of falsehood because of patently unnatural circumstances alleged
by her. We do not agree. As the Solicitor General has well pointed out, the fact that the witness
varied on cross-examination the exact time of some of the occurrences she witnessed, such as, (1)
whether it was before or after Bernardo had began eating when he was shot; (2) whether it was
before or after seeing her mother's meeting with her co-accused in the morning of Friday, June 23,
1967, that she went to wash clothes; and (3) whether or not the accused were already upstairs or
still downstairs when they first fired their guns, cannot alter the veracity of her having seen
appellants in the act of mercilessly and cold-bloodedly shooting her father to death.

Contrary to the contention of appellants, there was nothing inherently unnatural in the circumstances
related by her. We agree with the following rebuttal of the Solicitor General:

Appellants also attempt to buttress their attack against the credibility of Corazon
Bagabag by pointing out five supposed unnatural declarations in her testimony; First,
she said that her father, appeared unconcerned when she informed him of the
presence of people downstairs. But as correctly observed by the prosecuting fiscal
the witness does not know then "the mentality of her father" (p. 62, t.s.n., hearing of
March 29, 1968). Second, Corazon also declared that the accused conversed that
Saturday night preceding the day the crime charged was committed in a lighted place
although there was a place which was unlighted in the same premises. But this only
proves that the accused were too engrossed in their conversation, unmindful of
whether the place where they were talking was lighted or not, and unmindful even of
the risk of recognition. Third, witness declared that Pedro Bides and Augusto Berras
did not fire their guns. Even if these accused did withhold their fire, however, since
they were privies to the same criminal design, would this alter their culpability?
Should the witness Corazon Bagabag be discredited for merely stating an
observation on her part which is not inherently unnatural? Fourth, Corazon also
declared that only three bullets from the guns of the four male accused found their
mark on the body of her father. But would this not merely prove that not all the
accused were good shots? And fifth, the witness declared that her father was still
able to talk after he was shot yet Dr. Jose Dalisan declared that his death was
instantaneous It is respectfully submitted, however, that the doctor's opinion could
yield to the positive testimony of Corazon Bagabag in this regard without in the least
affecting the findings of said doctor as regards the cause of the death of the
deceased. As thus viewed, there are no evident badges of falsehood in the whole
breadth and length of Corazon Bagabag's testimony. (Pp. 9-10, People's Brief.)

Why and how Corazon could have concocted her version of the killing of her father, if it were not
basically true, is hardly conceivable, considering she was hardly thirteen (13) years old when she
testified, an age when according to Moore, a child , is, as a rule, but little influenced by the
suggestion of others" because "he has already got some principles, lying is distasteful to him,
because he thinks it is mean, he is no stranger to the sentiment of self- respect, and he never loses
an opportunity of being right in what he affirms." (II Moore on Facts, pp. 1055-1056.) No cogent
explanation has been offered why she would attribute the assault on her father to three other men,
aside from Talingdan whom she knew had relations with her mother, were she merely making-up her
account of how he was shot, no motive for her to do so having been shown.

Demolishing the theory of the accused that such testimony was taught to her by her uncle, His
Honor pointed out that said "testimony, both direct and cross, would show that she was constant,
firm and steady in her answers to questions directed to her." We have Ourselves read said testimony
and We are convinced of the sincerity and truthfulness of the witness. We cannot, therefore, share
appellants' apprehension in their Seventh Assignment of Error that the grave imputation of a
mother's infidelity and her suggested participation in the killing of her husband, would if consistently
impressed in the mind of their child, constitute a vicious poison enough to make the child, right or
wrong, a willing instrument in any scheme to get even with her wicked mother. We feel Corazon was
too young to he affected by the infidelity of her mother in the manner the defense suggests. We are
convinced from a reading of her whole testimony that it could not have been a fabrication. On the
whole, it is too consistent for a child of thirteen years to be able to substantially maintain throughout
her stay on the witness stand without any fatal flaw, in the face of severe and long cross-
interrogations, if she had not actually witnessed the event she had described. We reject the
possibility of her having been "brainwashed or coached" to testify as she did.

The second to the sixth assignments of error in the appeal brief do not merit serious consideration.
Anent these alleged errors, suffice it to say that the following refutations of the Solicitor General are
well taken:

Appellants also decry that the trial court allegedly failed to consider the testimony of
Dr. Dalisan that the distance between the assailants and the deceased could have
been 4 to 5 meters when the shots were fired. But the appellants overlook the
testimony of Corazon Bagabag that when the first shot was fired, the gunman was
about 3-½ meters from her father (p. 60, t.s.n., hearing of March 29, 1968), which
disproves the theory of the defense that the killers fired from a stonepile under
an avocado tree some 4 to 5 meters away from the deceased's house. Appellants
also insist that the Court a quo ignored the testimonies of defense witness Cpl.
Bonifacio Hall and Chief of Police Rafael Berras on their having found bullet marks
on the southern walling of the house of the deceased, as well as empty cal. 30
carbine shells under the aforementioned avocado tree. The trial court, however,
made the following apt observations on the testimony of defense witness Cpl.
Bonifacio Hall:

This witness stated that we went to the house of the deceased to investigate the
crime after the deceased had already been buried; that he investigated the widow as
well as the surroundings of the house where the deceased was shot. He found empty
shells of carbine under the avocado tree. He stated that the 'batalan' of the house of
the deceased has a siding of about 1-½ meters high and that he saw bullet holes on
the top portion of the wall directly pointing to the open door of the 'batalan' of the
house of the deceased. When the court asked the witness what could have been the
position of the assailant in shooting the deceased, he stated that the assailant might
have been standing. The assailant could not have made a bullet hole on the top
portion of the sidings of the 'batalan' because the 'batalan' is only 1-½ meters high,
and further, when asked as to the level of the ground in relation to the top sidings of
the 'batalan,' he answered that it is in the same level with the ground. If this is true, it
is impossible for the assailant to make a bullet hole at the top portion sidings of the
'batalan,' hence, the testimony of this witness who is a PC corporal is of no
consequence and without merit. The court is puzzled to find a PC corporal testifying
for the defense in this case, which case was filed by another PC sergeant belonging
to the same unit and assigned in the same province of Abra (pp. 324- 325, rec.).

As regards the empty shells also found in the vicinity of the shooting, suffice it to
state that no testimony has been presented, expert or otherwise, linking said shells to
the bullets that were fired during the shooting incident. Surmises in this respect
surely would not overcome the positive testimony of Corazon Bagabag that the
accused shot her father as they came up the 'batalan' of their house. (Pp. 11-12,
People's Brief.)

At the trial, the four male appellants tried to prove that they were not at the scene of the crime when
it happened. This defense of alibi was duly considered by the trial court, but it was properly brushed
aside as untenable. In their brief, no mention thereof is made, which goes to show that in the mind of
the defense itself,. it cannot be successfully maintained and they do not, therefore, insist on it.
Nonetheless, it would do well for this Court to specifically affirm the apt pertinent ratiocination of His
Honor in reference thereto thus:

This defense, therefore, is alibi which, in the opinion of the court, can not stand firmly
in the face of a positive and unwavering testimony of the prosecution witness who
pointed out to the accused as the authors of the crime. This is so because, first,
according to the three accused — Bides, Tobias and Berras — they were sleeping at
8:00 o'clock that night in the house of Mrs. Bayongan which is only 250 meters away
from the scene of the crime. Granting, for the sake of argument, but without
admitting, that they were already sleeping at 8:00 o'clock in the house of Mrs.
Bayongan, Corazon Bagabag clearly stated that her father was gunned down at
sunset which is approximately between 6:00 and 6:30 in the evening, hence, the
accused Tobias, Berras and Bides could have committed the crime and went home
to sleep in the house of Mrs. Bayongan after the commission of the crime. According
to Pedro Bides, the house of Mrs. Bayongan is only 250 meters away from the house
of the victim. Second, the three accused have failed miserably to present the
testimony of Mrs. Bayongan, the owner of the house where they slept that night to
corroborate or bolster their defense of alibi. (Pp. 27A-28A, Annex of Appellants'
Brief.)

xxx xxx xxx

Nemesio Talingdan, alias Oming, the last of the accused, also in his defense of alibi,
stated that on June 22, 1967, he accompanied Mayor Gregorio Banawa of
Sallapadan to Bangued, together with policeman Cresencio Martinez for the purpose
of attending a cursillo in Bangued They started in Sallapadan in the early morning of
June 22, 1967 and arrived in Bangued the same day. According to him, he went to
accompany the mayor to the cursillo house near the Bangued Cathedral and after
conducting the mayor to the cursillo house, he went to board in the house of the
cousin of Mayor Banawa near the Filoil Station at Bangued, Abra. From that time, he
never saw the mayor until after they went home to Sallapadan on June 26th.

This kind of alibi could not gain much weight because he could have returned
anytime on the evening of June 22 or anytime before the commission of the offense
to Sallapadan and commit the crime on the 24th at sunset, then returned to
Bangued, Abra to fetch the mayor and bring him back to Sallapadan on the 26th.

The irony of this defense of alibi is that the mayor who was alleged to have been
accompanied by witness-accused is still living and very much alive. As a matter of
fact, Mayor Gregorio Banawa is still the mayor of Sallapadan, Abra, and also
policeman Cresencio Martinez, another policeman who accompanied the mayor to
Bangued, is also still living and still a policeman of Sallapadan. Why were not the
mayor and the policeman presented to corroborate or deny the testimony of Nemesio
Talingdan?

Conrado B. Venus, Municipal Judge of Penarrubia Abra, and a member of the

Cursillo Movement, was presented as rebuttal witness for the prosecution. On the
witness stand, he stated that he belongs to Cursillo No. 3 of the Parish of Bangued,
Abra, and said cursillo was held on October 20 to 23, 1966, at the St. Joseph
Seminary in Galicia, Pidigan Abra, and not on June 23 to 26, 1967. As a matter of
fact, Mayor Banawa of Sallapadan also attended the cursillo held on October 20 to
 23, 1966, as could be seen in his 'Guide Book' where the signature of Gregorio
Banawa appears because they both attended Cursillo No. 3 of the Parish of
Bangued.

(To) this testimony of the rebuttal witness belies partly, if not in full, the testimony of
accused Nemesio Talingdan. (Pp. 29A-30A, Annex of Appellants' Brief.)

Coming now to the particular case of appellant Teresa Domogma, as to whom the Solicitor General
has submitted a recommendation of acquittal, We find that she is not as wholly innocent in law as
she appears to the Counsel of the People. It is contended that there is no evidence proving that she
actually joined in the conspiracy to kill her husband because there is no showing of 'actual
cooperation" on her part with her co-appellants in their culpable acts that led to his death. If at all,
what is apparent, it is claimed, is "mere cognizance, acquiescence or approval" thereof on her part,
which it is argued is less than what is required for her conviction as a conspirator per People vs.
Mahlon, 99 Phil. 1068. We do not see it exactly that way.

True it is that the proof of her direct participation in the conspiracy is not beyond reasonable doubt,
for which reason, sue cannot have the same liability as her co-appellants. Indeed, she had no hand
at all in the actual shooting of her husband. Neither is it clear that she helped directly in the planning
and preparation thereof, albeit We are convinced that she knew it was going to be done and did not
object. (U.S. vs. Romulo, 15 Phil. 408, 411-414.) It is not definitely shown that she masterminded it
either by herself alone or together with her co-appellant Talingdan. At best, such conclusion could be
plain surmise, suspicion and conjecture, not really includible. After all, she had been having her own
unworthy ways with him for quite a long time, seemingly without any need of his complete
elimination. Why go to so much trouble for something she was already enjoying, and not even very
surreptitiously? In fact, the only remark Bernardo had occasion to make to Teresa one time was "If
you become pregnant, the one in your womb is not my child." The worst he did to her for all her
faults was just to slap her.

But this is not saying that she is entirely free from criminal liability. There is in the record morally
convincing proof that she is at the very least an accessory to the offense committed by her co-
accused. She was inside the room when her husband was shot. As she came out after the shooting,
she inquired from Corazon if she was able to recognize the assailants of her father. When Corazon
Identified appellants Talingdan, Tobias, Berras and Bides as the culprits, Teresa did not only enjoin
her daughter not to reveal what she knew to anyone, she went to the extent of warning her, "Don't
tell it to anyone. I will kill you if you tell this to somebody." Later, when the peace officers who
repaired to their house to investigate what happened, instead of helping them with the information
given to her by Corazon, she claimed she had no suspects in mind. In other words, whereas, before
the actual shooting of her husband, she was more or less passive in her attitude regarding her co-
appellants' conspiracy, known to her, to do away with him, after Bernardo was killed, she became
active in her cooperation with them. These subsequent acts of her constitute "concealing or assisting
in the escape of the principal in the crime" which makes her liable as an accessory after the fact
under paragraph 3 of Article 19 of the Revised Penal Code.

As already indicated earlier, the offense committed by appellants was murder qualified by treachery.
It being obvious that appellants deliberately chose nighttime to suddenly and without warning assault
their victim, taking advantage of their number and arms, it is manifest that they employed treachery
to insure success in attaining their malevolent objective. In addition, it is indisputable that appellants
acted with evident premeditation. Talingdan made the threat to kill Bernardo Thursday night, then he
met with his co-accused to work out their conspiracy Friday and again on Saturday evening just
before the actual shooting. In other words, they had motive Talingdan's taking up the cudgels for his
paramour, Teresa and enough time to meditate, and desist, if they were not resolved to proceed with
their objective. Finally, they committed the offense in the dwelling of the offended party.

In these premises, the crime committed by the male appellants being murder, qualified by treachery,
and attended by the generic aggravating circumstances of evident premeditation and that the
offense was committed in the dwelling of the offended party, the Court has no alternative under the
law but to impose upon them the capital penalty. However, as to appellant Teresa, she is hereby
found guilty only as an accessory to the same murder.

WHEREFORE, with the above finding of guilt beyond reasonable doubt of the appellants Nemesio
Talingdan, Magellan Tobias, Augusto Berras and Pedro Bides of the crime of murder with two
aggravating circumstances, without any mitigating circumstance to offset them, they are each hereby
sentenced to DEATH to be executed in accordance with law. Guilty beyond reasonable doubt as
accessory to the same murder, appellant Teresa Domogma is hereby sentenced to suffer the
indeterminate penalty of five (5) years of prision correccional as minimum to eight (8) years of prision
mayor as maximum, with the accessory penalties of the law. In all other respects, the judgment of
the trial court is affirmed, with costs against appellants.

Barredo, Muñoz Palma, Aquino, Concepcion, Jr., Santos, Fernandez and Guerrero, JJ., concur.

Antonio, Fernando, JJ., took no part.

Manuel v. People, G.R. No. 165842, 29 November 2005

SECOND DIVISION

EDUARDO P. MANUEL, G.R. No. 165842

Petitioner,
Present:
PUNO, J., Chairman,
AUSTRIA-MARTINEZ, - versus - CALLEJO, SR.,
TINGA, and
CHICO-NAZARIO,* JJ.
Promulgated:
PEOPLE OF THE PHILIPPINES,
Respondent. November 29, 2005

x-----------------------------------------------------------------------------------------x

DECISION

CALLEJO, SR., J.:

Before us is a petition for review on certiorari of the Decision[1] of the Court of

Appeals (CA) in CA-G.R. CR No. 26877, affirming the Decision[2] of the Regional
Trial Court (RTC) of Baguio City, Branch 3, convicting Eduardo P. Manuel of
bigamy in Criminal Case No. 19562-R.

Eduardo was charged with bigamy in an Information filed on November 7, 2001, the
accusatory portion of which reads:
 That on or about the 22nd day of April, 1996, in the City of Baguio,
Philippines, and within the jurisdiction of this Honorable Court, the above-named
accused EDUARDO P. MANUEL, being then previously and legally married to
RUBYLUS [GAA] and without the said marriage having been legally dissolved,
did then and there willfully, unlawfully and feloniously contract a second marriage
with TINA GANDALERA-MANUEL, herein complainant, who does not know the
existence of the first marriage of said EDUARDO P. MANUEL to Rubylus [Gaa].

CONTRARY TO LAW. [3]

The prosecution adduced evidence that on July 28, 1975, Eduardo was married to
Rubylus Gaa before Msgr. Feliciano Santos in Makati, which was then still a
municipality of the Province of Rizal.[4] He met the private complainant Tina B.
Gandalera in Dagupan City sometime in January 1996. She stayed in Bonuan,
Dagupan City for two days looking for a friend. Tina was then 21 years old, a
Computer Secretarial student, while Eduardo was 39. Afterwards, Eduardo went to
Baguio City to visit her. Eventually, as one thing led to another, they went to a motel
where, despite Tinas resistance, Eduardo succeeded in having his way with her.
Eduardo proposed marriage on several occasions, assuring her that he was single.
Eduardo even brought his parents to Baguio City to meet Tinas parents, and was
assured by them that their son was still single.

Tina finally agreed to marry Eduardo sometime in the first week of March
1996. They were married on April 22, 1996 before Judge Antonio C. Reyes, the
Presiding Judge of the RTC of Baguio City, Branch 61.[5] It appeared in their
marriage contract that Eduardo was single.

The couple was happy during the first three years of their married life.
Through their joint efforts, they were able to build their home in Cypress Point,
Irisan, Baguio City. However, starting 1999, Manuel started making himself scarce
and went to their house only twice or thrice a year. Tina was jobless, and whenever
she asked money from Eduardo, he would slap her.[6] Sometime in January 2001,
Eduardo took all his clothes, left, and did not return. Worse, he stopped giving
financial support.

Sometime in August 2001, Tina became curious and made inquiries from the
National Statistics Office (NSO) in Manila where she learned that Eduardo had been
previously married. She secured an NSO-certified copy of the marriage
contract.[7] She was so embarrassed and humiliated when she learned that Eduardo
was in fact already married when they exchanged their own vows.[8]

For his part, Eduardo testified that he met Tina sometime in 1995 in a bar where she
worked as a Guest Relations Officer (GRO). He fell in love with her and married
her. He informed Tina of his previous marriage to Rubylus Gaa, but she nevertheless
agreed to marry him. Their marital relationship was in order until this one time when
he noticed that she had a love-bite on her neck. He then abandoned her. Eduardo
further testified that he declared he was single in his marriage contract with Tina
because he believed in good faith that his first marriage was invalid. He did not know
that he had to go to court to seek for the nullification of his first marriage before
marrying Tina.

Eduardo further claimed that he was only forced to marry his first wife
because she threatened to commit suicide unless he did so. Rubylus was charged
with estafa in 1975 and thereafter imprisoned. He visited her in jail after three
months and never saw her again. He insisted that he married Tina believing that his
first marriage was no longer valid because he had not heard from Rubylus for more
than 20 years.

After trial, the court rendered judgment on July 2, 2002 finding Eduardo guilty
beyond reasonable doubt of bigamy. He was sentenced to an indeterminate penalty
of from six (6) years and ten (10) months, as minimum, to ten (10) years, as
maximum, and directed to indemnify the private complainant Tina Gandalera the
amount of P200,000.00 by way of moral damages, plus costs of suit.[9]
The trial court ruled that the prosecution was able to prove beyond reasonable doubt
all the elements of bigamy under Article 349 of the Revised Penal Code. It declared
that Eduardos belief, that his first marriage had been dissolved because of his first
wifes 20-year absence, even if true, did not exculpate him from liability for bigamy.
Citing the ruling of this Court in People v. Bitdu,[10] the trial court further ruled that
even if the private complainant had known that Eduardo had been previously
married, the latter would still be criminally liable for bigamy.
Eduardo appealed the decision to the CA. He alleged that he was not
criminally liable for bigamy because when he married the private complainant, he
did so in good faith and without any malicious intent. He maintained that at the time
that he married the private complainant, he was of the honest belief that his first
marriage no longer subsisted. He insisted that conformably to Article 3 of the
Revised Penal Code, there must be malice for one to be criminally liable for a felony.
He was not motivated by malice in marrying the private complainant because he did
so only out of his overwhelming desire to have a fruitful marriage. He posited that
the trial court should have taken into account Article 390 of the New Civil Code. To
support his view, the appellant cited the rulings of this Court in United States v.
Pealosa[11] and Manahan, Jr. v. Court of Appeals.[12]

The Office of the Solicitor General (OSG) averred that Eduardos defense of
good faith and reliance on the Courts ruling in United States v. Enriquez[13] were
misplaced; what is applicable is Article 41 of the Family Code, which amended
Article 390 of the Civil Code. Citing the ruling of this Court in Republic v.
Nolasco,[14] the OSG further posited that as provided in Article 41 of the Family
Code, there is a need for a judicial declaration of presumptive death of the absent
spouse to enable the present spouse to marry. Even assuming that the first marriage
was void, the parties thereto should not be permitted to judge for themselves the
nullity of the marriage;
the matter should be submitted to the proper court for resolution. Moreover,
the OSG maintained, the private complainants knowledge of the first marriage
would not afford any relief since bigamy is an offense against the State and not just
against the private complainant.
 However, the OSG agreed with the appellant that the penalty imposed by the
trial court was erroneous and sought the affirmance of the decision appealed from
with modification.

On June 18, 2004, the CA rendered judgment affirming the decision of the RTC with
modification as to the penalty of the accused. It ruled that the prosecution was able
to prove all the elements of bigamy. Contrary to the contention of the appellant,
Article 41 of the Family Code should apply. Before Manuel could lawfully marry
the private complainant, there should have been a judicial declaration of Gaas
presumptive death as the absent spouse. The appellate court cited the rulings of this
Court in Mercado v. Tan[15] and Domingo v. Court of Appeals[16] to support its
ruling. The dispositive portion of the decision reads:
WHEREFORE, in the light of the foregoing, the Decision promulgated on
July 31, 2002 is hereby MODIFIED to reflect, as it hereby reflects, that accused-
appellant is sentenced to an indeterminate penalty of two (2) years, four (4) months
and one (1) day of prision correccional, as minimum, to ten (10) years of prision
mayor as maximum. Said Decision is AFFIRMED in all other respects.

SO ORDERED.[17]

Eduardo, now the petitioner, filed the instant petition for review on certiorari,
insisting that:

I
THE COURT OF APPEALS COMMITTED REVERSIBLE ERROR OF LAW
WHEN IT RULED THAT PETITIONERS FIRST WIFE CANNOT BE
LEGALLY PRESUMED DEAD UNDER ARTICLE 390 OF THE CIVIL CODE
AS THERE WAS NO JUDICIAL DECLARATION OF PRESUMPTIVE DEATH
AS PROVIDED FOR UNDER ARTICLE 41 OF THE FAMILY CODE.

II
THE COURT OF APPEALS COMMITTED REVERSIBLE ERROR OF LAW
WHEN IT AFFIRMED THE AWARD OF PHP200,000.00 AS MORAL
DAMAGES AS IT HAS NO BASIS IN FACT AND IN LAW.[18]
The petitioner maintains that the prosecution failed to prove the second element of
the felony, i.e., that the marriage has not been legally dissolved or, in case his/her
spouse is absent, the absent spouse could not yet be presumed dead under the Civil
Code. He avers that when he married Gandalera in 1996, Gaa had been absent for
21 years since 1975; under Article 390 of the Civil Code, she was presumed dead as
a matter of law. He points out that, under the first paragraph of Article 390 of the
Civil Code, one who has been absent for seven years, whether or not he/she is still
alive, shall be presumed dead for all purposes except for succession, while the
second paragraph refers to the rule on legal presumption of death with respect to
succession.

The petitioner asserts that the presumptive death of the absent spouse arises
by operation of law upon the satisfaction of two requirements: the
specified period and the present spouses reasonable belief that the absentee is dead.
He insists that he was able to prove that he had not heard from his first wife since
1975 and that he had no knowledge of her whereabouts or whether she was still
alive; hence, under Article 41 of the Family Code, the presumptive death of Gaa had
arisen by operation of law, as the two requirements of Article 390 of the Civil Code
are present. The petitioner concludes that he should thus be acquitted of the crime of
bigamy.

The petitioner insists that except for the period of absences provided for in
Article 390 of the Civil Code, the rule therein on legal presumptions remains valid
and effective. Nowhere under Article 390 of the Civil Code does it require that there
must first be a judicial declaration of death before the rule on presumptive death
would apply. He further asserts that contrary to the rulings of the trial and appellate
courts, the requirement of a judicial declaration of presumptive death under Article
41 of the Family Code is only a requirement for the validity of the subsequent or
second marriage.

The petitioner, likewise, avers that the trial court and the CA erred in awarding moral
damages in favor of the private complainant. The private complainant was a GRO
before he married her, and even knew that he was already married. He genuinely
loved and took care of her and gave her financial support. He also pointed out that
she had an illicit relationship with a lover whom she brought to their house.

In its comment on the petition, the OSG maintains that the decision of the CA
affirming the petitioners conviction is in accord with the law, jurisprudence and the
evidence on record. To bolster its claim, the OSG cited the ruling of this Court
in Republic v. Nolasco.[19]

The petition is denied for lack of merit.

Article 349 of the Revised Penal Code, which defines and penalizes bigamy, reads:
Art. 349. Bigamy. The penalty of prision mayor shall be imposed upon any person
who shall contract a second or subsequent marriage before the former marriage has
been legally dissolved, or before the absent spouse has been declared presumptively
dead by means of a judgment rendered in the proper proceedings.

The provision was taken from Article 486 of the Spanish Penal Code, to wit:
El que contrajere Segundo o ulterior matrimonio sin hallarse legtimamente
disuelto el anterior, ser castigado con la pena de prision mayor. xxx

The reason why bigamy is considered a felony is to preserve and ensure the juridical
tie of marriage established by law.[20] The phrase or before the absent spouse had
been declared presumptively dead by means of a judgment rendered in the proper
proceedings was incorporated in the Revised Penal Code because the drafters of the
law were of the impression that in consonance with the civil law which provides for
the presumption of death after an absence of a number of years, the judicial
declaration of presumed death like annulment of marriage should be a
justification for bigamy.[21]

For the accused to be held guilty of bigamy, the prosecution is burdened to prove the
felony: (a) he/she has been legally married; and (b) he/she contracts a subsequent
marriage without the former marriage having been lawfully dissolved. The felony is
consummated on the celebration of the second marriage or subsequent
marriage.[22] It is essential in the prosecution for bigamy that the alleged second
marriage, having all the essential requirements, would be valid were it not for the
subsistence of the first marriage.[23] Viada avers that a third element of the crime is
that the second marriage must be entered into with fraudulent intent (intencion
fraudulente) which is an essential element of a felony by dolo.[24] On the other hand,
Cuello Calon is of the view that there are only two elements of bigamy: (1) the
existence of a marriage that has not been lawfully dissolved; and (2) the celebration
of a second marriage. It does not matter whether the first marriage is void or voidable
because such marriages have juridical effects until lawfully dissolved by a court of
competent jurisdiction.[25] As the Court ruled in Domingo v. Court of
Appeals[26] and Mercado v. Tan,[27] under the Family Code of the Philippines, the
judicial declaration of nullity of a previous marriage is a defense.

In his commentary on the Revised Penal Code, Albert is of the same view as
Viada and declared that there are three (3) elements of bigamy: (1) an undissolved
marriage; (2) a new marriage; and (3) fraudulent intention constituting the felony of
the act.[28] He explained that:

This last element is not stated in Article 349, because it is undoubtedly incorporated
in the principle antedating all codes, and, constituting one of the landmarks of our
Penal Code, that, where there is no willfulness there is no crime. There is no
willfulness if the subject
believes that the former marriage has been dissolved; and this must be supported
by very strong evidence, and if this be produced, the act shall be deemed not to
constitute a crime. Thus, a person who contracts a second marriage in the
reasonable and well-founded belief that his first wife is dead, because of the many
years that have elapsed since he has had any news of her whereabouts, in spite of
his endeavors to find her, cannot be deemed guilty of the crime of bigamy, because
there is no fraudulent intent which is one of the essential elements of the crime.[29]

As gleaned from the Information in the RTC, the petitioner is charged with bigamy,
a felony by dolo (deceit). Article 3, paragraph 2 of the Revised Penal Code provides
that there is deceit when the act is performed with deliberate intent. Indeed, a felony
cannot exist without intent. Since a felony by dolo is classified as an intentional
felony, it is deemed voluntary.[30] Although the words with malice do not appear in
Article 3 of the Revised Penal Code, such phrase is included in the word
voluntary.[31]

Malice is a mental state or condition prompting the doing of an overt act

without legal excuse or justification from which another suffers injury.[32] When the
act or omission defined by law as a felony is proved to have been done or committed
by the accused, the law presumes it to have been intentional.[33] Indeed, it is a legal
presumption of law that every man intends the natural or probable consequence of
his voluntary act in the absence of proof to the contrary, and such presumption must
prevail unless a reasonable doubt exists from a consideration of the whole
evidence.[34]

For one to be criminally liable for a felony by dolo, there must be a confluence of
both an evil act and an evil intent. Actus non facit reum, nisi mens sit rea.[35]

In the present case, the prosecution proved that the petitioner was married to Gaa in
1975, and such marriage was not judicially declared a nullity; hence, the marriage is
presumed to subsist.[36] The prosecution also proved that the petitioner married the
private complainant in 1996, long after the effectivity of the Family Code.

The petitioner is presumed to have acted with malice or evil intent when he
married the private complainant. As a general rule, mistake of fact or good faith of
the accused is a valid defense in a prosecution for a felony by dolo; such defense
negates malice or criminal intent. However, ignorance of the law is not an excuse
because everyone is presumed to know the law. Ignorantia legis neminem excusat.

It was the burden of the petitioner to prove his defense that when he married
the private complainant in 1996, he was of the well-grounded belief
that his first wife was already dead, as he had not heard from her for more than 20
years since 1975. He should have adduced in evidence a decision of a competent
court declaring the presumptive death of his first wife as required by Article 349 of
the Revised Penal Code, in relation to Article 41 of the Family Code. Such judicial
declaration also constitutes proof that the petitioner acted in good faith, and would
negate criminal intent on his part when he married the private complainant and, as a
consequence, he could not be held guilty of bigamy in such case. The petitioner,
however, failed to discharge his burden.

The phrase or before the absent spouse has been declared presumptively dead
by means of a judgment rendered on the proceedings in Article 349 of the Revised
Penal Code was not an aggroupment of empty or useless words. The requirement for
a judgment of the presumptive death of the absent spouse is for the benefit of the
spouse present, as protection from the pains and the consequences of a second
marriage, precisely because he/she could be charged and convicted of bigamy if the
defense of good faith based on mere testimony is found incredible.

The requirement of judicial declaration is also for the benefit of the State.
Under Article II, Section 12 of the Constitution, the State shall protect and strengthen
the family as a basic autonomous social institution. Marriage is a social institution
of the highest importance. Public policy, good morals and the interest of society
require that the marital relation should be surrounded with every safeguard and its
severance only in the manner prescribed and the causes specified by law. [37] The
laws regulating civil marriages are necessary to serve the interest, safety, good order,
comfort or general welfare of the community and the parties can waive nothing
essential to the validity of the proceedings. A civil marriage anchors an ordered
society by encouraging stable relationships over transient ones; it enhances the
welfare of the community.

In a real sense, there are three parties to every civil marriage; two willing
spouses and an approving State. On marriage, the parties assume new relations to
each other and the State touching nearly on every aspect of life and death. The
consequences of an invalid marriage to the parties, to innocent parties and to society,
are so serious that the law may well take means calculated to ensure the procurement
of the most positive evidence of death of the first spouse or of the presumptive death
of the absent spouse[38] after the lapse of the period provided for under the law. One
such means is the requirement of the declaration by a competent court of the
presumptive death of an absent spouse as proof that the present spouse contracts a
subsequent marriage on a well-grounded belief of the death of the first spouse.
Indeed, men readily believe what they wish to be true, is a maxim of the old jurists.
To sustain a second marriage and to vacate a first because one of the parties believed
the other to be dead would make the existence of the marital relation determinable,
not by certain extrinsic facts, easily capable of forensic ascertainment and proof, but
by the subjective condition of individuals.[39] Only with such proof can marriage be
treated as so dissolved as to permit second marriages.[40] Thus, Article 349 of the
Revised Penal Code has made the dissolution of marriage dependent not only upon
the personal belief of parties, but upon certain objective facts easily capable of
accurate judicial cognizance,[41] namely, a judgment of the presumptive death of the
absent spouse.

The petitioners sole reliance on Article 390 of the Civil Code as basis for his
acquittal for bigamy is misplaced.

Articles 390 and 391 of the Civil Code provide

Art. 390. After an absence of seven years, it being unknown whether or not, the
absentee still lives, he shall be presumed dead for all purposes, except for those of
succession.

The absentee shall not be presumed dead for the purpose of opening his succession
till after an absence of ten years. If he disappeared after the age of seventy-five
years, an absence of five years shall be sufficient in order that his succession may
be opened.

Art. 391. The following shall be presumed dead for all purposes, including the
division of the estate among the heirs:

(1) A person on board a vessel lost during a sea voyage, or an aeroplane

which is missing, who has not been heard of for four years since the
loss of the vessel or aeroplane;
(2) A person in the armed forces who has taken part in war, and has been
missing for four years;
 (3) A person who has been in danger of death under other circumstances
and his existence has not been known for four years.

The presumption of death of the spouse who had been absent for seven years,
it being unknown whether or not the absentee still lives, is created by law and arises
without any necessity of judicial declaration.[42] However, Article 41 of the Family
Code, which amended the foregoing rules on presumptive death, reads:

Art. 41. A marriage contracted by any person during the subsistence of a previous
marriage shall be null and void, unless before the celebration of the subsequent
marriage, the prior spouse had been absent for four consecutive years and the
spouse present had a well-founded belief that the absent spouse was already dead.
In case of disappearance where there is danger of death under the circumstances set
forth in the provisions of Article 391 of the Civil Code, an absence of only two
years shall be sufficient.

For the purpose of contracting the subsequent marriage under the preceding
paragraph, the spouse present must institute a summary proceeding as provided in
this Court for the declaration of presumptive death of the absentee, without
prejudice to the effect of reappearance of the absent spouse.[43]

With the effectivity of the Family Code,[44] the period of seven years under
the first paragraph of Article 390 of the Civil Code was reduced to four consecutive
years. Thus, before the spouse present may contract a subsequent marriage, he or
she must institute summary proceedings for the declaration of the presumptive death
of the absentee spouse,[45] without prejudice to the effect of the reappearance of the
absentee spouse. As explained by this Court in Armas v. Calisterio:[46]

In contrast, under the 1988 Family Code, in order that a subsequent

bigamous marriage may exceptionally be considered valid, the following
conditions must concur, viz.: (a) The prior spouse of the contracting party must have
been absent for four consecutive years, or two years where there is danger of death
under the circumstances stated in Article 391 of the Civil Code at the time of
disappearance; (b) the spouse present has a well-founded belief that the absent
spouse is already dead; and (c) there is, unlike the old rule, a judicial declaration of
presumptive death of the absentee for which purpose the spouse present can
institute a summary proceeding in court to ask for that declaration. The last
condition is consistent and in consonance with the requirement of judicial
intervention in subsequent marriages as so provided in Article 41, in relation to
Article 40, of the Family Code.
 The Court rejects petitioners contention that the requirement of instituting a
petition for declaration of presumptive death under Article 41 of the Family Code is
designed merely to enable the spouse present to contract a valid second marriage and
not for the acquittal of one charged with bigamy. Such provision was designed to
harmonize civil law and Article 349 of the Revised Penal Code, and put to rest the
confusion spawned by the rulings of this Court and comments of eminent authorities
on Criminal Law.

As early as March 6, 1937, this Court ruled in Jones v. Hortiguela[47] that, for
purposes of the marriage law, it is not necessary to have the former spouse judicially
declared an absentee before the spouse present may contract a subsequent marriage.
It held that the declaration of absence made in accordance with the provisions of the
Civil Code has for its sole purpose the taking of the necessary precautions for the
administration of the estate of the absentee. For the celebration of civil marriage,
however, the law only requires that the former spouse had been absent for seven
consecutive years at the time of the second marriage, that the spouse present does
not know his or her former spouse to be living, that such former spouse is generally
reputed to be dead and the spouse present so believes at the time of the celebration
of the marriage.[48] In In Re Szatraw,[49] the Court declared that a judicial declaration
that a person is presumptively dead, because he or she had been unheard from in
seven years, being a presumption juris tantum only, subject to contrary proof, cannot
reach the stage of finality or become final; and that proof of actual death of the
person presumed dead being unheard from in seven years, would have to be made
in another proceeding to have such particular fact finally determined. The Court
ruled that if a judicial decree declaring a person presumptively dead because he or
she had not been heard from in seven years cannot become final and executory even
after the lapse of the reglementary period within which an appeal may be taken, for
such presumption is still disputable and remains subject to contrary proof, then a
petition for such a declaration is useless, unnecessary, superfluous and of no benefit
to the petitioner. The Court stated that it should not waste its valuable time and be
made to perform a superfluous and meaningless act.[50] The Court also took note that
a petition for a declaration of the presumptive death of an absent spouse may even
be made in collusion with the other spouse.

In Lukban v. Republic of the Philippines,[51] the Court declared that the words
proper proceedings in Article 349 of the Revised Penal Code can only refer to those
authorized by law such as Articles 390 and 391 of the Civil Code which refer to the
administration or settlement of the estate of a deceased person. In Gue v. Republic
of the Philippines,[52] the Court rejected the contention of the petitioner therein that,
under Article 390 of the Civil Code, the courts are authorized to declare the
presumptive death of a person after an absence of seven years. The Court reiterated
its rulings in Szatraw, Lukban and Jones.

Former Chief Justice Ramon C. Aquino was of the view that the provision of
Article 349 or before the absent spouse has been declared presumptively dead by
means of a judgment reached in the proper proceedings is erroneous and should be
considered as not written. He opined that such provision presupposes that, if the prior
marriage has not been legally dissolved and the absent first spouse has not been
declared presumptively dead in a proper court proceedings, the subsequent marriage
is bigamous. He maintains that the supposition is not true.[53] A second marriage is
bigamous only when the circumstances in paragraphs 1 and 2 of Article 83 of the
Civil Code are not present.[54] Former Senator Ambrosio Padilla was, likewise, of
the view that Article 349 seems to require judicial decree of dissolution or judicial
declaration of absence but even with such decree, a second marriage in good faith
will not constitute bigamy. He posits that a second marriage, if not illegal, even if it
be annullable, should not give rise to bigamy.[55] Former Justice Luis B. Reyes, on
the other hand, was of the view that in the case of an absent spouse who could not
yet be presumed dead according to the Civil Code, the spouse present cannot be
charged and convicted of bigamy in case he/she contracts a second marriage.[56]

The Committee tasked to prepare the Family Code proposed the amendments
of Articles 390 and 391 of the Civil Code to conform to Article 349 of the Revised
Penal Code, in that, in a case where a spouse is absent for the requisite period, the
present spouse may contract a subsequent marriage only after securing a judgment
declaring the presumptive death of the absent spouse to avoid being charged and
convicted of bigamy; the present spouse will have to adduce evidence that he had a
well-founded belief that the absent spouse was already dead.[57] Such judgment is
proof of the good faith of the present spouse who contracted a subsequent marriage;
thus, even if the present spouse is later charged with bigamy if the absentee spouse
reappears, he cannot be convicted of the crime. As explained by former Justice Alicia
Sempio-Diy:

Such rulings, however, conflict with Art. 349 of the Revised Penal Code providing
that the present spouse must first ask for a declaration of presumptive death of the
absent spouse in order not to be guilty of bigamy in case he or she marries again.

The above Article of the Family Code now clearly provides that for the
purpose of the present spouse contracting a second marriage, he or she must file a
summary proceeding as provided in the Code for the declaration of the presumptive
death of the absentee, without prejudice to the latters reappearance. This provision
is intended to protect the present spouse from a criminal prosecution for bigamy
under Art. 349 of the Revised Penal Code because with the judicial declaration that
the missing spouses presumptively dead, the good faith of the present spouse in
contracting a second marriage is already established.[58]

Of the same view is former Dean Ernesto L. Pineda (now Undersecretary of

Justice) who wrote that things are now clarified. He says judicial declaration of
presumptive death is now authorized for purposes of
remarriage. The present spouse must institute a summary proceeding for declaration
of presumptive death of the absentee, where the ordinary rules of procedure in trial
will not be followed. Affidavits will suffice, with possible clarificatory examinations
of affiants if the Judge finds it necessary for a full grasp of the facts. The judgment
declaring an absentee as presumptively dead is without prejudice to the effect of
reappearance of the said absentee.

Dean Pineda further states that before, the weight of authority is that the clause
before the absent spouse has been declared presumptively dead x x x should be
disregarded because of Article 83, paragraph 3 of the Civil Code. With the new law,
there is a need to institute a summary proceeding for the declaration of the
presumptive death of the absentee, otherwise, there is bigamy.[59]

According to Retired Supreme Court Justice Florenz D. Regalado, an eminent

authority on Criminal Law, in some cases where an absentee spouse is believed to
be dead, there must be a judicial declaration of presumptive death, which could then
be made only in the proceedings for the settlement of his estate. [60] Before such
declaration, it was held that the remarriage of the other spouse is bigamous even if
done in good faith.[61] Justice Regalado opined that there were contrary views
because of the ruling in Jones and the provisions of Article 83(2) of the Civil Code,
which, however, appears to have been set to rest by Article 41 of the Family Code,
which requires a summary hearing for the declaration of presumptive death of the
absent spouse before the other spouse can remarry.

Under Article 238 of the Family Code, a petition for a declaration of the
presumptive death of an absent spouse under Article 41 of the Family Code may be
filed under Articles 239 to 247 of the same Code.[62]

On the second issue, the petitioner, likewise, faults the trial court and the CA for
awarding moral damages in favor of the private complainant. The petitioner
maintains that moral damages may be awarded only in any of the cases provided in
Article 2219 of the Civil Code, and bigamy is not one of them. The petitioner asserts
that the appellate court failed to apply its ruling in People v. Bondoc,[63] where an
award of moral damages for bigamy was disallowed. In any case, the petitioner
maintains, the private complainant failed to adduce evidence to prove moral
damages.

The appellate court awarded moral damages to the private complainant on its
finding that she adduced evidence to prove the same. The appellate court ruled that
while bigamy is not included in those cases enumerated in Article 2219 of the Civil
Code, it is not proscribed from awarding moral damages against the petitioner. The
appellate court ruled that it is not bound by the following ruling in People v. Bondoc:
 ... Pero si en dichos asuntos se adjudicaron daos, ello se debi indedublamente
porque el articulo 2219 del Cdigo Civil de Filipinas autoriza la adjudicacin de
daos morales en los delitos de estupro, rapto, violacin, adulterio o concubinato, y
otros actos lascivos, sin incluir en esta enumeracin el delito de bigamia. No existe,
por consiguiente, base legal para adjudicar aqu los daos de P5,000.00 arriba
mencionados.[64]

The OSG posits that the findings and ruling of the CA are based on the
evidence and the law. The OSG, likewise, avers that the CA was not bound by its
ruling in People v. Rodeo.

The Court rules against the petitioner.

Moral damages include physical suffering, mental anguish, fright, serious

anxiety, besmirched reputation, wounded feelings, moral shock, social humiliation,
and similar injury. Though incapable of pecuniary computation, moral damages may
be recovered if they are the proximate result of the defendants wrongful act or
omission.[65] An award for moral damages requires the confluence of the following
conditions: first, there must be an injury, whether physical, mental or psychological,
clearly sustained by the claimant; second, there must be culpable act or omission
factually established; third, the wrongful act or omission of the defendant is the
proximate cause of the injury sustained by the claimant; and fourth, the award of
damages is predicated on any of the cases stated in Article 2219 or Article 2220 of
the Civil Code.[66]

Moral damages may be awarded in favor of the offended party only in

criminal cases enumerated in Article 2219, paragraphs 1, 3, 4, 5 and 7 of the Civil
Code and analogous cases, viz.:
Art. 2219. Moral damages may be recovered in the following and analogous cases.

(1) A criminal offense resulting in physical injuries;

(2) Quasi-delicts causing physical injuries;
(3) Seduction, abduction, rape, or other lascivious acts;
(4) Adultery or concubinage;
(5) Illegal or arbitrary detention or arrest;
(6) Illegal search;
(7) Libel, slander or any other form of defamation;
 (8) Malicious prosecution;
(9) Acts mentioned in article 309;
(10) Acts and actions referred to in articles 21, 26, 27, 28, 29, 30, 32, 34
and 35.

The parents of the female seduced, abducted, raped, or abused, referred to

in No. 3 of this article, may also recover moral damages.

The spouse, descendants, ascendants, and brothers and sisters may bring the
action mentioned in No. 9 of this article in the order named.

Thus, the law does not intend that moral damages should be awarded in all cases
where the aggrieved party has suffered mental anguish, fright, moral anxieties,
besmirched reputation, wounded feelings, moral shock, social humiliation and
similar injury arising out of an act or omission of another, otherwise, there would
not have been any reason for the inclusion of specific acts in Article 2219 [67] and
analogous cases (which refer to those cases bearing analogy or resemblance,
corresponds to some others or resembling, in other respects, as in form, proportion,
relation, etc.)[68]

Indeed, bigamy is not one of those specifically mentioned in Article 2219 of

the Civil Code in which the offender may be ordered to pay moral damages to the
private complainant/offended party. Nevertheless, the petitioner is liable to the
private complainant for moral damages under Article 2219 in relation to Articles 19,
20 and 21 of the Civil Code.

According to Article 19, every person must, in the exercise of his rights and
in the performance of his act with justice, give everyone his due, and observe honesty
and good faith. This provision contains what is commonly referred to as the principle
of abuse of rights, and sets certain standards which must be observed not only in the
exercise of ones rights but also in the performance of ones duties. The standards are
the following: act with justice; give everyone his due; and observe honesty and good
faith. The elements for abuse of rights are: (a) there is a legal right or duty; (b)
exercised in bad faith; and (c) for the sole intent of prejudicing or injuring another.[69]
 Article 20 speaks of the general sanctions of all other provisions of law which
do not especially provide for its own sanction. When a right is exercised in a manner
which does not conform to the standards set forth in the said provision and results in
damage to another, a legal wrong is thereby committed for which the wrongdoer
must be responsible.[70] If the provision does not provide a remedy for its violation,
an action for damages under either Article 20 or Article 21 of the Civil Code would
be proper. Article 20 provides that every person who, contrary to law, willfully or
negligently causes damage to another shall indemnify the latter for the same. On the
other hand, Article 21 provides that any person who willfully causes loss or injury
to another in a manner that is contrary to morals, good customs or public policy shall
compensate the latter for damages. The latter provision
is adopted to remedy the countless gaps in the statutes which leave so many victims
of moral wrongs helpless, even though they have actually suffered material and
moral injury should vouchsafe adequate legal remedy for that untold number of
moral wrongs which it is impossible for human foresight to prove for specifically in
the statutes. Whether or not the principle of abuse of rights has been violated
resulting in damages under Article 20 or Article 21 of the Civil Code or other
applicable provisions of law depends upon the circumstances of each case.[71]

In the present case, the petitioner courted the private complainant and proposed to
marry her. He assured her that he was single. He even brought his parents to the
house of the private complainant where he and his parents made the same assurance
that he was single. Thus, the private complainant agreed to marry the petitioner, who
even stated in the certificate of marriage that he was single. She lived with the
petitioner and dutifully performed her duties as his wife, believing all the while that
he was her lawful husband. For two years or so until the petitioner heartlessly
abandoned her, the private complainant had no inkling that he was already married
to another before they were married.

Thus, the private complainant was an innocent victim of the petitioners

chicanery and heartless deception, the fraud consisting not of a single act alone, but
a continuous series of acts. Day by day, he maintained the appearance of being a
lawful husband to the private complainant, who
changed her status from a single woman to a married woman, lost the consortium,
attributes and support of a single man she could have married lawfully and endured
mental pain and humiliation, being bound to a man who it turned out was not her
lawful husband.[72]

The Court rules that the petitioners collective acts of fraud and deceit before,
during and after his marriage with the private complainant were willful, deliberate
and with malice and caused injury to the latter. That she did not sustain any physical
injuries is not a bar to an award for moral damages. Indeed, in Morris v.
Macnab,[73] the New Jersey Supreme Court ruled:

xxx The defendant cites authorities which indicate that, absent physical
injuries, damages for shame, humiliation, and mental anguish are not recoverable
where the actor is simply negligent. See Prosser, supra, at p. 180; 2 Harper & James,
Torts, 1031 (1956). But the authorities all recognize that where the wrong is willful
rather than negligent, recovery may be had for the ordinary, natural, and proximate
consequences though they consist of shame, humiliation, and mental anguish. See
Spiegel v. Evergreen Cemetery Co., 117 NJL 90, 94, 186 A 585 (Sup. Ct. 1936);
Kuzma v. Millinery Workers, etc., Local 24, 27 N.J. Super, 579, 591, 99 A.2d 833
(App. Div. 1953); Prosser, supra, at p. 38. Here the defendants conduct was not
merely negligent, but was willfully and maliciously wrongful. It was bound to result
in shame, humiliation, and mental anguish for the plaintiff, and when such result
did ensue the plaintiff became entitled not only to compensatory but also to punitive
damages. See Spiegel v. Evergreen Cemetery Co., supra; Kuzma v Millinery
Workers, etc., Local 24, supra. CF. Note, Exemplary Damages in the Law of Torts,
70 Harv. L. Rev. 517 (1957). The plaintiff testified that because of the defendants
bigamous marriage to her and the attendant publicity she not only was embarrassed
and ashamed to go out but couldnt sleep but couldnt eat, had terrific headaches and
lost quite a lot of weight. No just basis appears for judicial interference with the
jurys reasonable allowance of $1,000 punitive damages on the first count. See
Cabakov v. Thatcher, 37 N.J. Super 249, 117 A.2d 298 (App. Div.[74] 1955).

The Court thus declares that the petitioners acts are against public policy as they
undermine and subvert the family as a social institution, good morals and the interest
and general welfare of society.

Because the private complainant was an innocent victim of the petitioners

perfidy, she is not barred from claiming moral damages. Besides, even
considerations of public policy would not prevent her from recovery. As held
in Jekshewitz v. Groswald:[75]

Where a person is induced by the fraudulent representation of another to do an act

which, in consequence of such misrepresentation, he believes to be neither illegal
nor immoral, but which is in fact a criminal offense, he has a right of action against
the person so inducing him for damages sustained by him in consequence of his
having done such act. Burrows v. Rhodes, [1899] 1 Q.B. 816. In Cooper v. Cooper,
147 Mass. 370, 17 N.E. 892, 9 Am. St. Rep. 721, the court said that a false
representation by the defendant that he was divorced from his former wife, whereby
the plaintiff was induced to marry him, gave her a remedy in tort for deceit. It seems
to have been assumed that the fact that she had unintentionally violated the law or
innocently committed a crime by cohabiting with him would be no bar to the action,
but rather that it might be a ground for enhancing her damages. The injury to the
plaintiff was said to be in her being led by the promise to give the fellowship and
assistance of a wife to one who was not her husband and to assume and act in a
relation and condition that proved to be false and ignominious. Damages for such
an injury were held to be recoverable in Sherman v. Rawson, 102 Mass. 395 and
Kelley v. Riley, 106 Mass. 339, 343, 8 Am. Rep. 336.

Furthermore, in the case at bar the plaintiff does not base her cause of action upon
any transgression of the law by herself but upon the defendants misrepresentation.
The criminal relations which followed, innocently on her part, were but one of the
incidental results of the defendants fraud for which damages may be assessed.

[7] Actions for deceit for fraudulently inducing a woman to enter into the
marriage relation have been maintained in other jurisdictions. Sears v. Wegner, 150
Mich. 388, 114 N.W. 224, 17 L.R. A. (N.S.) 819; Larson v. McMillan, 99 Wash.
626, 170 P. 324; Blossom v. Barrett, 37 N.Y. 434, 97 Am. Dec. 747; Morril v.
Palmer, 68 Vt. 1, 33 A. 829, 33 L.R.A. 411. Considerations of public policy would
not prevent recovery where the circumstances are such that the plaintiff was
conscious of no moral turpitude, that her illegal action was induced solely by the
defendants misrepresentation, and that she does not base her cause of action upon
any transgression of the law by herself. Such considerations
distinguish this case from cases in which the court has refused to lend its aid to the
enforcement of a contract illegal on its face or to one who has consciously and
voluntarily become a party to an illegal act upon which the cause of action is
founded. Szadiwicz v. Cantor, 257 Mass. 518, 520, 154 N.E. 251, 49 A. L. R.
958.[76]

Considering the attendant circumstances of the case, the Court finds the award
of P200,000.00 for moral damages to be just and reasonable.
 IN LIGHT OF ALL THE FOREGOING, the petition is DENIED. The
assailed decision of the Court of Appeals is AFFIRMED. Costs against the
petitioner.

SO ORDERED.
People v. Puno, G.R. No. 97471, 17 February 1993, 219 SCRA 85

Republic of the Philippines

SUPREME COURT
Manila

SECOND DIVISION

G.R. No. 97471 February 17, 1993

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
ISABELO PUNO y GUEVARRA, alias "Beloy," and ENRIQUE AMURAO y PUNO, alias
"Enry," accused-appellants.

The Solicitor General for plaintiff-appellee.

Edward C. Castañeda for accused-appellants.

REGALADO, J.:

The primal issue for resolution in this case is whether accused-appellants committed the felony of
kidnapping for ransom under Article 267 of the Revised Penal Code, as charged in the information;
or a violation of Presidential Decree No. 532 (Anti-Piracy and Anti-Highway Robbery Law of 1974),
as contended by the Solicitor General and found by the trial court; or the offense of simple robbery
punished by Paragraph 5, Article 294 of the Revised Penal Code, as claimed by the defense.

In an information dated and filed on May 31, 1989 in the Regional Trial Court of Quezon City, Branch
103, as Criminal Case No. Q-57404 thereof, appellants were charged with kidnapping for ransom
allegedly committed in the following manner:

That on or about the 13th day of January, 1988 in Quezon City, Philippines and
within the jurisdiction of this Honorable Court, the said accused, being then private
individuals, conspiring together, confederating with and mutually helping each other,
did, then and there, wilfully, unlawfully and feloniously kidnap and carry away one
MARIA DEL SOCORRO SARMIENTO y MUTUC * for the purpose of extorting ransom, to the
damage and prejudice of the said offended party in such amount as may be awarded to her under the provisions of the
Civil Code.1

On a plea of not guilty when arraigned,2 appellants went to trial which ultimately resulted in a
judgment promulgated on September 26, 1990 finding them guilty of robbery with extortion
committed on a highway, punishable under Presidential Decree No. 532, with this disposition in
the fallo thereof:

ACCORDINGLY, judgment is hereby rendered finding the accused ISABELO PUNO

and ENRIQUE AMURAO GUILTY as principals of robbery with extortion committed
on a highway and, in accordance with P.D. 532, they are both sentenced to a jail
term of reclusion perpetua.
 The two accused are likewise ordered to pay jointly and severally the offended
private victim Ma. Socorro M. Sarmiento the sum of P7,000.00 as actual damages
and P3,000.00 as temperate damages.3

Before us now in this appeal, appellants contend that the court a quo erred (1) in convicting them
under Presidential Decree No. 532 since they were not expressly charged with a crime therein; (2) in
applying Sections 4 and 5, Rule 120 of the Rules of Court since the charge under said presidential
decree is not the offense proved and cannot rightly be used as the offense proved which is
necessarily included in the offense charged.4

For the material antecedents of this case, we quote with approval the following counter-statement of
facts in the People's brief5 which adopted the established findings of the court a quo, documenting
the same with page references to the transcripts of the proceedings, and which we note are without
any substantial divergence in the version proffered by the defense.

This is a prosecution for kidnapping for ransom allegedly done on January 13, 1988
by the two accused (tsn, Jan. 8, 1990, p. 7).

Mrs. Maria Socorro Mutuc-Sarmiento owns a bakeshop in Araneta Avenue, Quezon

City called Nika Cakes and Pastries. She has a driver of her own just as her husband
does (Ibid., pp. 4-6).

At around 5:00 in the afternoon of January 13, 1988, the accused Isabelo Puno, who
is the personal driver of Mrs. Sarmiento's husband (who was then away in Davao
purportedly on account of local election there) arrived at the bakeshop. He told Mrs.
Socorro that her own driver Fred had to go to Pampanga on an emergency
(something bad befell a child), so Isabelo will temporary (sic) take his place (Id., pp.
8-9).

Mrs. Socorro's time to go home to Valle Verde in Pasig came and so she got into the
Mercedes Benz of her husband with Isabelo on (sic) the wheel. After the car turned
right in (sic) a corner of Araneta Avenue, it stopped. A young man, accused Enrique
Amurao, boarded the car beside the driver (Id., pp. 9-10).

Once inside, Enrique clambered on top of the back side of the front seat and went
onto where Ma. Socorro was seated at the rear. He poke (sic) a gun at her (Id., p.
10).

Isabelo, who earlier told her that Enrique is his nephew announced, "ma'm, you
know, I want to get money from you." She said she has money inside her bag and
they may get it just so they will let her go. The bag contained P7,000.00 and was
taken (Id., pp. 11-14).

Further on, the two told her they wanted P100,000.00 more. Ma. Socorro agreed to
give them that but would they drop her at her gas station in Kamagong St., Makati
where the money is? The car went about the Sta. Mesa area. Meanwhile, Ma.
Socorro clutched her Rosary and prayed. Enrique's gun was menacingly storing (sic)
at her soft bread (sic) brown, perfumed neck. He said he is an NPA and threatened
her (Id., p.15).

The car sped off north towards the North superhighway. There Isabelo, Beloy as he
is called, asked Ma. Socorro to issue a check for P100,000.00. Ma. Socorro
 complied. She drafted 3 checks in denominations of two for P30 thousand and one
for P40 thousand. Enrique ordered her to swallow a pill but she refused (Id., pp. 17-
23).

Beloy turned the car around towards Metro Manila. Later, he changed his mind and
turned the car again towards Pampanga. Ma. Socorro, according to her, jumped out
of the car then, crossed to the other side of the superhighway and, after some
vehicles ignored her, she was finally able to flag down a fish vendors van. Her dress
had blood because, according to Ma. Socorro, she fell down on the ground and was
injured when she jumped out of the car. Her dress was torn too (Id., pp. 23-26).

On reaching Balintawak, Ma. Socorro reported the matter to CAPCOM (Id., p. 27).

Both accused were, day after, arrested. Enrique was arrested trying to encash Ma.
Socorro's P40,000.00 check at PCI Bank, Makati. (tsn, Oct. 18, 1989, pp. 10-13)6

As observed by the court below, the defense does not dispute said narrative of complainant, except
that, according to appellant Puno, he stopped the car at North Diversion and freely allowed
complainant to step out of the car. He even slowed the car down as he drove away, until he saw that
his employer had gotten a ride, and he claimed that she fell down when she stubbed her toe while
running across the highway.7

Appellants further testified that they brought the Mercedez Benz car to Dolores, San Fernando,
Pampanga and parked it near a barangay or police outpost. They thereafter ate at a restaurant and
divided their loot.8 Much later, when he took the stand at the trial of this case, appellant Puno tried to
mitigate his liability by explaining that he was in dire need of money for the medication of his ulcers.9

On these relatively simple facts, and as noted at the start of this opinion, three theories have been
advanced as to what crime was committed by appellants. The trial court cohered with the
submission of the defense that the crime could not be kidnapping for ransom as charged in the
information. We likewise agree.

Prefatorily, it is worth recalling an accepted tenet in criminal law that in the determination of the
crime for which the accused should be held liable in those instances where his acts partake of the
nature of variant offenses, and the same holds true with regard to the modifying or qualifying
circumstances thereof, his motive and specific intent in perpetrating the acts complained of are
invaluable aids in arriving at a correct appreciation and accurate conclusion thereon.

Thus, to illustrate, the motive of the accused has been held to be relevant or essential to determine
the specific nature of the crime as, for instance, whether a murder was committed in the furtherance
of rebellion in which case the latter absorbs the former, or whether the accused had his own
personal motives for committing the murder independent of his membership in the rebellious
movement in which case rebellion and murder would constitute separate offenses. 10 Also, where
injuries were inflicted on a person in authority who was not then in the actual performance of his
official duties, the motive of the offender assumes importance because if the attack was by reason of
the previous performance of official duties by the person in authority, the crime would be direct
assault; otherwise, it would only be physical injuries. 11

In the case at bar, there is no showing whatsoever that appellants had any motive, nurtured prior to
or at the time they committed the wrongful acts against complainant, other than the extortion of
money from her under the compulsion of threats or intimidation. This much is admitted by both
appellants, without any other esoteric qualification or dubious justification. Appellant Puno, as
already stated, candidly laid the blame for his predicament on his need for funds for, in his own
testimony, "(w)hile we were along the way Mam (sic) Corina was telling me "Beloy, I know your
family very well and I know that your (sic) not (a) bad person, why are you doing this?" I told her
"Mam, (sic), because I need money and I had an ulcer and that I have been getting an (sic)
advances from our office but they refused to give me any bale (sic). . . ." 12

With respect to the specific intent of appellants vis-a-vis the charge that they had kidnapped the
victim, we can rely on the proverbial rule of ancient respectability that for this crime to exist, there
must be indubitable proof that
the actual intent of the malefactors was to deprive the offended party of her liberty, 13 and not where
such restraint of her freedom of action was merely an incident in the commission of another offense
primarily intended by the offenders. Hence, as early as United States vs. Ancheta, 14 and consistently
reiterated thereafter, 15 it has been held that the detention and/or forcible taking away of the victims
by the accused, even for an appreciable period of time but for the primary and ultimate purpose of
killing them, holds the offenders liable for taking their lives or such other offenses they committed in
relation thereto, but the incidental deprivation of the victims' liberty does not constitute kidnapping or
serious illegal detention.

That appellants in this case had no intention whatsoever to kidnap or deprive the complainant of her
personal liberty is clearly demonstrated in the veritably confessional testimony of appellant Puno:

Q At what point did Mrs. Sarmiento handed (sic) the bag containing
the P7,000.00 to your nephew?

A Santo Domingo Exit.

Q And how about the checks, where were you already when the
checks was (sic) being handed to you?

A Also at the Sto. Domingo exit when she signed the checks.

Q If your intention was just to robbed (sic) her, why is it that you still
did not allow her to stay at Sto. Domingo, after all you already
received the money and the checks?

A Because we had an agreement with her that when she signed the
checks we will take her to her house at Villa (sic) Verde.

Q And why did you not bring her back to her house at Valle Verde
when she is (sic) already given you the checks?

A Because while we were on the way back I (sic) came to my mind

that if we reach Balintawak or some other place along the way we
might be apprehended by the police. So when we reached Santa Rita
exit I told her "Mam (sic) we will already stop and allow you to get out
of the car." 16

Neither can we consider the amounts given to appellants as equivalent to or in the nature of ransom,
considering the immediacy of their obtention thereof from the complainant personally. Ransom, in
municipal criminal law, is the money, price or consideration paid or demanded for redemption of a
captured person or persons, a payment that releases from captivity. 17 It can hardly be assumed that
when complainant readily gave the cash and checks demanded from her at gun point, what she
gave under the circumstances of this case can be equated with or was in the concept of ransom in
the law of kidnapping. These were merely amounts involuntarily surrendered by the victim upon the
occasion of a robbery or of which she was summarily divested by appellants. Accordingly, while we
hold that the crime committed is robbery as defined in Article 293 of the Code, we, however, reject
the theory of the trial court that the same constitutes the highway robbery contemplated in and
punished by Presidential Decree No. 532.

The lower court, in support of its theory, offers this ratiocination:

The court agrees that the crime is robbery. But it is also clear from the allegation in
the information that the victim was carried away and extorted for more money. The
accused admitted that the robbery was carried on from Araneta Avenue up to the
North Superhighway. They likewise admitted that along the way they intimidated Ma.
Socorro to produce more money that she had with her at the time for which reason
Ma. Socorro, not having more cash, drew out three checks. . . .

In view of the foregoing the court is of the opinion that the crimes committed is that
punishable under P.D. 532 (Anti-Piracy and Anti-Highway Robbery Law of 1974)
under which where robbery on the highway is accompanied by extortion the penalty
is reclusion perpetua.18

The Solicitor General concurs, with the observation that pursuant to the repealing clause in Section
5 of said decree, "P.D. No- 532 is a modification of the provisions of the Revised Penal Code,
particularly Article 267 which
are inconsistent with it." 19 Such opinion and complementary submission consequently necessitate an
evaluation of the correct interplay between and the legal effects of Presidential Decree No. 532 on
the pertinent Provisions of the Revised Penal Code, on which matter we are not aware that any
definitive pronouncement has as yet been made.

Contrary to the postulation of the Solicitor General, Presidential Decree No. 532 is not a modification
of Article 267 of the Revised Penal Code on kidnapping and serious illegal detention, but of Articles
306 and 307 on brigandage. This is evident from the fact that the relevant portion thereof which
treats of "highway robbery" invariably uses this term in the alternative and synonymously with
brigandage, that is, as "highway robbery/brigandage." This is but in line with our previous ruling, and
which still holds sway in criminal law, that highway robbers (ladrones) and brigands are
synonymous. 20

Harking back to the origin of our law on brigandage (bandolerismo) in order to put our discussion
thereon in the proper context and perspective, we find that a band of brigands, also known as
highwaymen or freebooters, is more than a gang of ordinary robbers. Jurisprudence on the matter
reveals that during the early part of the American occupation of our country, roving bands were
organized for robbery and pillage and since the then existing law against robbery was inadequate to
cope with such moving bands of outlaws, the Brigandage Law was passed. 21

The following salient distinctions between brigandage and robbery are succinctly explained in a
treatise on the subject and are of continuing validity:

The main object of the Brigandage Law is to prevent the formation of bands of
robbers. The heart of the offense consists in the formation of a band by more than
three armed persons for the purpose indicated in art. 306. Such formation is
sufficient to constitute a violation of art. 306. It would not be necessary to show, in a
 prosecution under it, that a member or members of the band actually committed
robbery or kidnapping or any other purpose attainable by violent means. The crime is
proven when the organization and purpose of the band are shown to be such as are
contemplated by art 306. On the other hand, if robbery is committed by a band,
whose members were not primarily organized for the purpose of committing robbery
or kidnapping, etc., the crime would not be brigandage, but only robbery. Simply
because robbery was committed by a band of more than three armed persons, it
would not follow that it was committed by a band of brigands. In the Spanish text of
art. 306, it is required that the band "sala a los campos para dedicarse a
robar." 22 (Emphasis supplied).

In fine, the purpose of brigandage is, inter alia, indiscriminate highway robbery. If the purpose is only
a particular robbery, the crime is only robbery, or robbery in band if there are at least four armed
participants. 23 The martial law legislator, in creating and promulgating Presidential Decree No. 532
for the objectives announced therein, could not have been unaware of that distinction and is
presumed to have adopted the same, there being no indication to the contrary. This conclusion is
buttressed by the rule on contemporaneous construction, since it is one drawn from the time when
and the circumstances under which the decree to be construed originated. Contemporaneous
exposition or construction is the best and strongest in the law. 24

Further, that Presidential Decree No. 532 punishes as highway robbery or brigandage only acts of
robbery perpetrated by outlaws indiscriminately against any person or persons on Philippine
highways as defined therein, and not acts of robbery committed against only a predetermined or
particular victim, is evident from the preambular clauses thereof, to wit:

WHEREAS, reports from law-enforcement agencies reveal that lawless elements are
still committing acts of depredation upon the persons and properties of innocent and
defenseless inhabitants who travel from one place to another, thereby disturbing the
peace, order and tranquility of the nation and stunting the economic and social
progress of the people:

WHEREAS, such acts of depredations constitute . . . highway robbery/brigandage

which are among the highest forms of lawlessness condemned by the penal statutes
of all countries;

WHEREAS, it is imperative that said lawless elements be discouraged from

perpetrating such acts of depredaions by imposing heavy penalty on the offenders,
with the end in view of eliminating all obstacles to the economic, social, educational
and community progress of the people. (Emphasis supplied).

Indeed, it is hard to conceive of how a single act of robbery against a particular person chosen by
the accused as their specific victim could be considered as committed on the "innocent and
defenseless inhabitants who travel from one place to another," and which single act of depredation
would be capable of "stunting the economic and social progress of the people" as to be considered
"among the highest forms of lawlessness condemned by the penal statutes of all countries," and
would accordingly constitute an obstacle "to the economic, social, educational and community
progress of the people, " such that said isolated act would constitute the highway robbery or
brigandage contemplated and punished in said decree. This would be an exaggeration bordering on
the ridiculous.

True, Presidential Decree No. 532 did introduce amendments to Articles 306 and 307 of the Revised
Penal Code by increasing the penalties, albeit limiting its applicability to the offenses stated therein
when committed on the highways and without prejudice to the liability for such acts if committed.
Furthermore, the decree does not require that there be at least four armed persons forming a band
of robbers; and the presumption in the Code that said accused are brigands if they use unlicensed
firearms no longer obtains under the decree. But, and this we broadly underline, the essence of
brigandage under the Code as a crime of depredation wherein the unlawful acts are directed not
only against specific, intended or preconceived victims, but against any and all prospective victims
anywhere on the highway and whosoever they may potentially be, is the same as the concept of
brigandage which is maintained in Presidential Decree No. 532, in the same manner as it was under
its aforementioned precursor in the Code and, for that matter, under the old Brigandage Law. 25

Erroneous advertence is nevertheless made by the court below to the fact that the crime of robbery
committed by appellants should be covered by the said amendatory decree just because it was
committed on a highway. Aside from what has already been stressed regarding the absence of the
requisite elements which thereby necessarily puts the offense charged outside the purview and
intendment of that presidential issuance, it would be absurd to adopt a literal interpretation that any
unlawful taking of property committed on our highways would be covered thereby. It is an
elementary rule of statutory construction that the spirit or intent of the law should not be
subordinated to the letter thereof. Trite as it may appear, we have perforce to stress the elementary
caveat that he who considers merely the letter of an instrument goes but skin deep into its
meaning, 26 and the fundamental rule that criminal justice inclines in favor of the milder form of
liability in case of doubt.

If the mere fact that the offense charged was committed on a highway would be the determinant for
the application of Presidential Decree No. 532, it would not be farfetched to expect mischievous, if
not absurd, effects on the corpus of our substantive criminal law. While we eschew resort to
a reductio ad absurdum line of reasoning, we apprehend that the aforestated theory adopted by the
trial court falls far short of the desideratum in the interpretation of laws, that is, to avoid absurdities
and conflicts. For, if a motor vehicle, either stationary or moving on a highway, is forcibly taken at
gun point by the accused who happened to take a fancy thereto, would the location of the vehicle at
the time of the unlawful taking necessarily put the offense within the ambit of Presidential Decree
No. 532, thus rendering nugatory the categorical provisions of the Anti-Carnapping Act of
1972? 27 And, if the scenario is one where the subject matter of the unlawful asportation is large
cattle which are incidentally being herded along and traversing the same highway and are
impulsively set upon by the accused, should we apply Presidential Decree No. 532 and completely
disregard the explicit prescriptions in the Anti-Cattle Rustling Law of 1974? 28

We do not entertain any doubt, therefore, that the coincidental fact that the robbery in the present
case was committed inside a car which, in the natural course of things, was casually operating on a
highway, is not within the situation envisaged by Section 2(e) of the decree in its definition of terms.
Besides, that particular provision precisely defines "highway robbery/brigandage" and, as we have
amply demonstrated, the single act of robbery conceived and committed by appellants in this case
does not constitute highway robbery or brigandage.

Accordingly, we hold that the offense committed by appellants is simple robbery defined in Article
293 and punished under Paragraph 5 of Article 294 of the Revised Penal Code with prision
correccional in its maximum period to prision mayor in its medium period. Appellants have
indisputably acted in conspiracy as shown by their concerted acts evidentiary of a unity of thought
and community of purpose. In the determination of their respective liabilities, the aggravating
circumstances of craft 29 shall be appreciated against both appellants and that of abuse of confidence
shall be further applied against appellant Puno, with no mitigating circumstance in favor of either of
them. At any rate, the intimidation having been made with the use of a firearm, the penalty shall be
imposed in the maximum period as decreed by Article 295 of the Code.
We further hold that there is no procedural obstacle to the conviction of appellants of the crime of
simple robbery upon an information charging them with kidnapping for ransom, since the former
offense which has been proved is necessarily included in the latter offense with which they are
charged. 30 For the former offense, it is sufficient that the elements of unlawful taking, with intent to
gain, of personal property through intimidation of the owner or possessor thereof shall be, as it has
been, proved in the case at bar. Intent to gain (animus lucrandi) is presumed to be alleged in an
information where it is charged that there was unlawful taking (apoderamiento) and appropriation by
the offender of the things subject of the robbery. 31

These foregoing elements are necessarily included in the information filed against appellants which,
as formulated, allege that they wilfully, unlawfully and feloniously kidnapped and extorted ransom
from the complainant. Such allegations, if not expressly but at the very least by necessary
implication, clearly convey that the taking of complainant's money and checks (inaccurately termed
as ransom) was unlawful, with intent to gain, and through intimidation. It cannot be logically argued
that such a charge of kidnapping for ransom does not include but could negate the presence of any
of the elements of robbery through intimidation of persons. 32

WHEREFORE, the assailed judgment of the trial court is hereby SET ASIDE and another one is
rendered CONVICTING accused-appellants Isabelo Puno y Guevarra and Enrique Amurao y Puno
of robbery as Punished in Paragraph 5 of Article 294, in relation to Article 295, of the Revised Penal
Code and IMPOSING on each of them an indeterminate sentence of four (4) years and two (2)
months of prision correccional, as minimum, to ten (10) years of prision mayor, as maximum, and
jointly and severally pay the offended party, Maria del Socorro M. Sarmiento, the amounts of
P7,000.00 as actual damages and P20,000.00 as moral damages, with costs.

SO ORDERED.
People v. Delim, G.R. No. 142773, 28 January 2003

EN BANC

G.R. No. 142773 January 28, 2003

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
MARLON DELIM, LEON DELIM, MANUEL DELIM alias "BONG" (At Large), ROBERT DELIM (At
Large), and RONALD DELIM alias "BONG", accused-appellants.

CALLEJO, SR., J.:

Before the Court on automatic review is the Decision,1 dated January 14, 2000, of the Regional Trial
Court, Branch 46, Urdaneta City, finding accused appellants Marlon Delim, Leon Delim and Ronald
Delim guilty beyond reasonable doubt of the crime of murder and sentencing them to suffer the
supreme penalty of death. The court also ordered accused-appellants to pay, jointly and severally,
the heirs of the victim the sums of P75,000.00 as moral damages and P25,000.00 as exemplary
damages.

Accused-appellants Marlon, Ronald and Leon, together with Manuel alias "Bong" and Robert, all
surnamed Delim, were indicted for murder under an Information dated May 4, 1999 which reads:

"That on or about January 23, 1999, in the evening at Brgy. Bila, Sison, Pangasinan, and
within the jurisdiction of this Honorable Court, the above-named accused, armed with short
firearms barged-in and entered the house of Modesto Delim and once inside with intent to
kill, treachery, evident premedidation (sic), conspiring with one another, did then and there,
wilfully, unlawfully and feloniously grab, hold, hogtie, gag with a piece of cloth, brought out
and abduct Modesto Delim, accused Leon Delim and Manuel Delim stayed in the house
guarded and prevented the wife and son of Modesto Delim from helping the latter, thereafter
with abuse of superior strength stabbed and killed said Modesto Delim, to the damage and
prejudice of his heirs.

CONTRARY to Article 248 of the Revised Penal Code, as amended by Republic Act No.
7659."2

Only accused-appellants Marlon (Bongbong), Leon and Ronald, all surnamed Delim, were
apprehended. Accused Robert and Manuel remain at-large.

At their arraignment, Marlon, Ronald and Leon, with the assistance of their counsel, pleaded not
guilty to the charge.
At the trial, the prosecution established the following relevant facts3 —

Marlon, Manuel and Robert Delim are brothers. They are the uncles of Leon Delim and Ronald
Delim. Modesto Manalo Bantas, the victim, was an Igorot and a carpenter. He took the surname
Delim after he was "adopted" by the father of Marlon, Manuel and Robert. However, Modesto's wife,
Rita, an illiterate, and their 16-year old son, Randy, continued using Manalo Bantas as their
surname. Modesto, Rita and Randy considered Marlon, Robert, Ronald, Manuel and Leon as their
relatives. Manuel and Leon were the neighbors of Modesto. Marlon, Robert and Ronald used to visit
Modesto and his family. Modesto and his family and the Delim kins resided in Barangay Bila, Sison,
Pangasinan.

On January 23, 1999, at around 6:30 in the evening, Modesto, Rita and Randy were preparing to
have their supper in their home. Joining them were Modesto and Rita's two young grandchildren,
aged 5 and 7 years old. They were about to eat their dinner when Marlon, Robert and Ronald
suddenly barged into the house and closed the door. Each of the three intruders was armed with a
short handgun. Marlon poked his gun at Modesto while Robert and Ronald simultaneously grabbed
and hog-tied the victim. A piece of cloth was placed in the mouth of Modesto.4Marlon, Robert and
Ronald herded Modesto out of the house on their way towards the direction of Paldit, Sison,
Pangasinan. Rita and Randy were warned by the intruders not to leave the house. Leon and
Manuel, who were also armed with short handguns, stayed put by the door to the house of Modesto
and ordered Rita and Randy to stay where they were. Leon and Manuel left the house of Modesto
only at around 7:00 a.m. the following day, January 24, 1999.

As soon as Leon and Manuel had left, Randy rushed to the house of his uncle, Darwin Niño, at Sitio
Labayog, informed the latter of the incident the night before and sought his help for the retrieval of
Modesto. Randy was advised to report the matter to the police authorities. However, Randy opted to
first look for his father. He and his other relatives scoured the vicinity to locate Modesto to no avail.
They proceeded to Paldit, Sison, Pangasinan, around 200 meters away from Modesto's house, to
locate Modesto but failed to find him there. On January 25, 1999, Randy and his relatives returned to
the housing project in Paldit, Sison, Pangasinan to locate Modesto but again failed to find him there.
On January 26, 1999, Randy reported the incident to the police authorities.

At around 3:00 in the afternoon of January 27, 1999, Randy, in the company of his relatives, Nida
Pucal, Pepito Pucal, Bernard Osias and Daniel Delim, returned to the housing project in Paldit,
Sison, Pangasinan and this time they found Modesto under thick bushes in a grassy area. He was
already dead. The cadaver was bloated and in the state of decomposition. It exuded a bad odor.
Tiny white worms swarmed over and feasted on the cadaver. Randy and his relatives immediately
rushed to the police station to report the incident and to seek assistance.

When informed of the discovery of Modesto's cadaver, the local chief of police and SPO2 Jovencio
Fajarito and other policemen rushed to the scene and saw the cadaver under the thick bushes.
Pictures were taken of the cadaver.5 Rita and Randy divulged to the police investigators the names
and addresses of Marlon, Ronald, Robert, Leon and Manuel, whom they claimed were responsible
for the death of Modesto. Rita and Randy were at a loss why the five malefactors seized Modesto
and killed him. Rita and Randy gave their respective sworn statements to the police
investigators.6 Police authorities proceeded to arrest Marlon, Ronald, Robert, Manuel and Leon but
failed to find them in their respective houses. The police officers scoured the mountainous parts of
Barangays Immalog and Labayog to no avail.

The cadaver was autopsied by Dr. Maria Fe L. De Guzman who prepared her autopsy report, which
reads:
 "SIGNIFICANT EXTERNAL FINDINGS:
 Body  both upper extremities are flexed
 both lower extremities are flexed
 (+) body decomposition
 (+) worms coming out from injuries
 10 x 10 ml. GSW, pre-auricular area, right
 20 x 20 ml. GSW, mandibular areas, right
 10 x 10 ml. GSW, maxillary area, right
 10 x 10 ml. GSW, below middle nose, directed upward (POE)
 30 x 40 ml. GSW, mid parieto — occipital area (POEx)
 2 x 1 cms. lacerated wound, right cheek
 1 x 1 cm. stabbed wound, axillary area, left
 1 x 1 cm. stabbed wound, lateral aspect M/3rd left arm
 1 x 1 cm. stabbed wound, lateral aspect D/3rd, left arm
 1 x 1 cm. stabbed wound, medial aspect M/3rd, left arm
 1 x 1 cm. stabbed wound medial aspect D/3rd, left arm
 #3; 1 x 1 cm. in line with each other, stabbed would, medial aspect, M/3rd, left
forearm
 1 x 1 cm. stabbed wound, medial aspect, D/3rd, left forearm
 10 x 6 cms. Inflamed scrotum
 penis inflamed
SIGNIFICANT INTERNAL FINDINGS:
 no significant internal findings
CAUSE OF DEATH:
 GUN SHOT WOUND, HEAD."7

The stab wounds sustained by Modesto on his left arm and forearm were defensive wounds. The
police investigators were able to confirm that Marlon, Ronald, Robert, Leon and Manuel had no
licenses for their firearms.8

Records of the PNP Criminal Investigation and Detection Group in Baguio City show that Marlon had
pending cases for robbery in the Regional Trial Court of Baguio City in Criminal Case No. 16193-R,
and for robbery in band in Criminal Cases Nos. 9801 and 9802 pending with the Regional Trial Court
in Urdaneta, Pangasinan.9

To exculpate themselves, Marlon, Ronald and Leon interposed denial and alibi.10

Ronald claimed that on January 23, 1999, he, his wife and children, his mother, his brothers and
sisters were in their house at Asan Norte, Sison, Pangasinan about two kilometers away from
Modesto's house.
He denied having been in the house of Modesto on January 23, 1999 and of abducting and killing
him. He theorized that Rita and Randy falsely implicated him upon the coaching of Melchor Javier
who allegedly had a quarrel with him concerning politics.

Leon for his part averred that on January 23, 1999, he was in the house of his sister, Hermelita
Estabillo at No. 55-B, Salet, Laoag City, Ilocos Norte where he had been living since 1997 after
leaving Asan Norte, Sison, Pangasinan. Since then, he had been working for Sally Asuncion at a
hollow-block factory in that city where he was a stay-in worker.

Sally Asuncion corroborated Leon's alibi. She testified that Leon Delim never went home to his
hometown in Pangasinan during his employment. His sister, Hermelita Estabillo, likewise averred
that on January 23, 1999, his brother was at her house to give her his laundry. She claimed that the
distance between Laoag City and Bila, Sison, Pangasinan can be traversed in six hours by bus.
Leon presented a Barangay Certificate to prove that he was a resident of Laoag City from January
1998 up to February 1999.11

Marlon asserted that he was on vacation in Dumaguete City from December 26, 1998 up to January
29, 1999. During his stay there, he lived with his sister, Francisca Delim. Upon his return to Manila
on January 29, 1999, he immediately proceeded to Baguio to visit his cousin. Marlon denied setting
foot in Bila, Sison, Pangasinan after his sojourn in Dumaguete City.

The trial court rendered judgment finding accused-appellants guilty of murder. The dispositive
portion of the trial court's decision reads:

"WHEREFORE, JUDGMENT OF CONVICTION beyond reasonable doubt is hereby

rendered against Ronald Delim, Marlon Delim and Leon Delim (for) the commission of
Aggravated Murder, an offense defined and penalized under Article 248 of the Revised
Penal Code, as amended by R.A. 7659 and the Court sentences Marlon Delim, Ronald
Delim and Leon Delim to suffer the penalty of DEATH, to be implemented in the manner as
provided for by law; the Court likewise orders the accused, jointly and solidarily, to indemnify
the heirs of Modesto Delim the sum of P75,000.00 as moral damages, plus the amount of
P25,000.00 as exemplary damages.

The Branch Clerk of Court is hereby ordered to transmit the entire records of this case to the
Honorable Supreme Court, and to prepare the mittimus fifteen (15) days from date of
promulgation.

The Jail Warden, Bureau of Jail Management and Penology, Urdaneta District Jail, Urdaneta
City is hereby ordered to transmit the persons of Marlon, Ronald and Leon, all surnamed
Delim to the New Bilibid Prisons, Muntinlupa City, fifteen days from receipt of this decision.

SO ORDERED."12

The trial court appreciated treachery as a qualifying circumstance and of taking advantage of
superior strength, nighttime and use of unlicensed firearms as separate of aggravating
circumstances in the commission of the crime. Marlon, Ronald and Leon, in their appeal brief, assail
the decision alleging that:

"I
THE COURT A QUO GRAVELY ERRED IN FINDING THE ACCUSED-APPELLANTS GUILTY
BEYOND REASONABLE DOUBT OF THE CRIME OF MURDER.

II

THE COURT A QUO GRAVELY ERRED IN FINDING THAT CONSPIRACY EXISTED IN THE
CASE AT BAR.

III

THE COURT A QUO GRAVELY ERRED IN NOT GIVING WEIGHT AND CREDENCE TO
ACCUSED-APPELLANTS' DEFENSE OF ALIBI."13

Before resolving the merits of the case at bar, we first resolve the matter of whether the crime
charged in the Information is murder or kidnapping. During the deliberation, some distinguished
members of the Court opined that under the Information, Marlon, Ronald and Leon are charged with
kidnapping under Article 267 of the Revised Penal Code and not with murder in its aggravated form
in light of the allegation therein that the accused "willfully, unlawfully and feloniously grab(bed),
h(e)ld, hog-tie(d), gag(ged), with a piece of cloth, brought out and abduct(ed) Modesto Delim (while)
Leon Delim and Manuel Delim stayed in the house (and) guarded and prevented the wife and son of
Modesto Delim from helping the latter." They submit that the foregoing allegation constitutes the act
of deprivation of liberty of the victim, the gravamen in the crime of kidnapping. They contend that the
fact that the Information went further to charge accused with the killing of the victim should be of no
moment, the real nature of the criminal charge being determined not from the caption or the
preamble of the Information nor from the specification of the law alleged to have been violated —
these being conclusions of law — but by the actual recital of facts in the complaint or information.
They further submit that since the prosecution failed to prove motive on the part of Marlon, Ronald
and Leon to kill Modesto, they are not criminally liable for the death of the victim but only for
kidnapping the victim.

It bears stressing that in determining what crime is charged in an information, the material
inculpatory facts recited therein describing the crime charged in relation to the penal law violated are
controlling. Where the specific intent of the malefactor is determinative of the crime charged such
specific intent must be alleged in the information and proved by the prosecution. A decade ago, this
Court held in People v. Isabelo Puno, et al.,14 that for kidnapping to exist, there must be indubitable
proof that the actual specific intent of the malefactor is to deprive the offended party of his liberty and
not where such restraint of his freedom of action is merely an incident in the commission of another
offense primarily intended by the malefactor. This Court further held:

"x x x Hence, as early as United States vs. Ancheta, and consistently reiterated thereafter, it
has been held that the detention and/or forcible taking away of the victims by the accused,
even for an appreciable period of time but for the primary and ultimate purpose of killing
them, holds the offenders liable for taking their lives or such other offenses they committed in
relation thereto, but the incidental deprivation of the victims' liberty does not constitute
kidnapping or serious illegal detention."15

If the primary and ultimate purpose of the accused is to kill the victim, the incidental deprivation of
the victim's liberty does not constitute the felony of kidnapping but is merely a preparatory act to the
killing, and hence, is merged into, or absorbed by, the killing of the victim.16 The crime committed
would either be homicide or murder.
What is primordial then is the specific intent of the malefactors as disclosed in the information or
criminal complaint that is determinative of what crime the accused is charged with — that of murder
or kidnapping.

Philippine and American penal laws have a common thread on the concept of specific intent as an
essential element of specific intent crimes. Specific intent is used to describe a state of mind which
exists where circumstances indicate that an offender actively desired certain criminal consequences
or objectively desired a specific result to follow his act or failure to act.17 Specific intent involves a
state of the mind. It is the particular purpose or specific intention in doing the prohibited act. Specific
intent must be alleged in the Information and proved by the state in a prosecution for a crime
requiring specific intent.18 Kidnapping and murder are specific intent crimes.

Specific intent may be proved by direct evidence or by circumstantial evidence. It may be inferred
from the circumstances of the actions of the accused as established by the evidence on record.19

Specific intent is not synonymous with motive. Motive generally is referred to as the reason which
prompts the accused to engage in a particular criminal activity. Motive is not an essential element of
a crime and hence the prosecution need not prove the same. As a general rule, proof of motive for
the commission of the offense charged does not show guilt and absence of proof of such motive
does not establish the innocence of accused for the crime charged such as murder.20 The history of
crimes shows that murders are generally committed from motives comparatively trivial.21 Crime is
rarely rational. In murder, the specific intent is to kill the victim. In kidnapping, the specific intent is to
deprive the victim of his/her liberty. If there is no motive for the crime, the accused cannot be
convicted for kidnapping.22 In kidnapping for ransom, the motive is ransom. Where accused kills the
victim to avenge the death of a loved one, the motive is revenge.

In this case, it is evident on the face of the Information that the specific intent of the malefactors in
barging into the house of Modesto was to kill him and that he was seized precisely to kill him with the
attendant modifying circumstances. The act of the malefactors of abducting Modesto was merely
incidental to their primary purpose of killing him. Moreover, there is no specific allegation in the
information that the primary intent of the malefactors was to deprive Modesto of his freedom or
liberty and that killing him was merely incidental to kidnapping.23 Irrefragably then, the crime charged
in the Information is Murder under Article 248 of the Revised Penal Code and not Kidnapping under
Article 268 thereof.

The threshold issue that now comes to fore is whether or not the prosecution mustered the requisite
quantum of evidence to prove that Marlon, Ronald and Leon are guilty of murder.

In criminal prosecutions, the prosecution is burdened to prove the guilt of the accused beyond cavil
of doubt. The prosecution must rely on the strength of its own evidence and not on the weakness of
the evidence of the accused. The proof against the accused must survive the test of reason; the
strongest suspicion must not be permitted to sway judgment.24

In the case at bar, the prosecution was burdened to prove the corpus delicti which consists of two
things: first, the criminal act and second, defendant's agency in the commission of the act.25 Wharton
says that corpus delictiincludes two things: first, the objective; second, the subjective element of
crimes.26 In homicide (by dolo) and in murder cases, the prosecution is burdened to prove: (a) the
death of the party alleged to be dead; (b) that the death was produced by the criminal act of some
other than the deceased and was not the result of accident, natural cause or suicide; and (c) that
defendant committed the criminal act or was in some way criminally responsible for the act which
produced the death.27 To prove the felony of homicide or murder, there must be incontrovertible
evidence, direct or circumstantial, that the victim was deliberately killed (with malice); in other words,
that there was intent to kill. Such evidence may consist inter alia in the use of weapons by the
malefactors, the nature, location and number of wounds sustained by the victim and the words
uttered by the malefactors before, at the time or immediately after the killing of the victim. If the
victim dies because of a deliberate act of the malefactor, intent to kill is conclusively presumed.

The prosecution is burdened to prove corpus delicti beyond reasonable doubt either by direct
evidence or by circumstantial or presumptive evidence.28

In the case at bar, the prosecution adduced the requisite quantum of proof of corpus delicti. Modesto
sustained five (5) gunshot wounds. He also sustained seven (7) stab wounds,29 defensive in nature.
The use by the malefactors of deadly weapons, more specifically handguns and knives, in the killing
of the victim as well as the nature, number and location of the wounds sustained by said victim are
evidence of the intent by the malefactors to kill the victim with all the consequences flowing
therefrom.30 As the State Supreme Court of Wisconsin held in Cupps v. State:31

"This rule, that every person is presumed to contemplate the ordinary and natural
consequences of his own acts, is applied even in capital cases. Because men generally act
deliberately and by the determination of their own will, and not from the impulse of blind
passion, the law presumes that every man always thus acts, until the contrary appears.
Therefore, when one man is found to have killed another, if the circumstances of the
homicide do not of themselves show that it was not intended, but was accidental, it is
presumed that the death of the deceased was designed by the slayer; and the burden of
proof is on him to show that it was otherwise."

The prosecution did not present direct evidence to prove the authors of the killing of Modesto. It
relied on circumstantial evidence to discharge its burden of proving the guilt of accused-appellants of
murder. Circumstantial evidence consists of proof of collateral facts and circumstances from which
the existence of the main fact may be inferred according to reason and common experience.32 What
was once a rule of account respectability is now entombed in Section 4, Rule 133 of the Revised
Rules of Evidence which states that circumstantial evidence, sometimes referred to as indirect or
presumptive evidence, is sufficient as anchor for a judgment of conviction if the following requisites
concur:

"x x x if (a) there is more than one circumstance; (b) the facts from which the inferences are
derived have been established; and (c) the combination of all the circumstances is such as to
warrant a finding of guilt beyond reasonable doubt."33

The prosecution is burdened to prove the essential events which constitute a compact mass of
circumstantial evidence, and the proof of each being confirmed by the proof of the other, and all
without exception leading by mutual support to but one conclusion: the guilt of accused for the
offense charged.34 For circumstantial evidence to be sufficient to support a conviction, all the
circumstances must be consistent with each other, consistent with the hypothesis that accused is
guilty and at the same time inconsistent with the hypothesis that he is innocent, and with every other
rational hypothesis except that of guilt.35 If the prosecution adduced the requisite circumstantial
evidence to prove the guilt of accused beyond reasonable doubt, the burden of evidence shifts to the
accused to controvert the evidence of the prosecution.

In the present case, the prosecution mustered the requisite quantum of circumstantial evidence to
prove that accused-appellants, in confabulation with their co-accused, conspired to kill and did kill
Modesto:
1. Randy Bantas testified that Marlon and Ronald barged into the house of Modesto, each armed
with a handgun. Marlon poked his gun on Modesto while Ronald hog-tied Modesto. They then
seized Modesto and herded him out of his house:

"FISCAL TOMBOC: What were you doing then at that time in your house?

A We were eating, sir.

Q You said we, who were your companions eating then at that time?

A My father, my mother and the two children and myself, sir.

Q While taking your supper that time, do you recall if there was anything unusual that
happened at that time?

A When we were about to start to eat three armed men entered our house.

Q Do you know these three armed men who entered your house?

A Yes, sir.

Q Who are they, name them one by one?

A Marlon Delim, Robert Delim and Ronald Delim.

Q Are these three persons inside the courtroom now?

A Two of them, sir.

Q Who are these two who are inside the courtroom?

A Marlon and Ronald, sir.

Q Will you please stand up and point to them?

A (Witness is pointing to a person seated on the bench inside the courtroom, who, when
his name was asked answered Marlon Delim. Likewise, witness is pointing unto a person
seated on the bench inside the courtroom, who, when his name was asked he answered
Ronald Delim).

Q You said that these two armed persons entered your house, what kind of arm were
they carrying at that time?

A Short handgun, sir.

Q When these three armed persons whom you have mentioned, armed with short
firearms, what did they do then when they entered your house?

A They took my father, sir.

 Q Who took your father?

A Marlon Delim, Robert Delim and Ronald Delim, sir.

Q When these three persons took your father, what did you do then?

A None, sir.

COURT: How did they get your father?

A They poked a gun and brought him outside the house, sir.

FISCAL TOMBOC: Who poked a gun?

A Marlon Delim, sir.

Q Again, Mr. Witness, will you point to the person who poked a gun?

A (Witness is pointing to Malon (sic) Delim, one of the accused).

Q After bringing your father out from your house, what transpired next?

A Manuel Delim and Leon Delim said, 'Stay in your house,' and guarded us.

COURT: You said your father was taken out, who?

A Marlon, Robert and Ronald, sir.

FISCAL TOMBOC: Where did these three persons bring your father?

A I do not know where they brought my father, sir.

COURT: Was your father taken inside your house or outside?

A Inside our house, sir.

Q You said that Marlon poked a gun at your father, is that correct?

A Yes, sir.

Q What did Ronald and Robert do while Marlon was poking his gun to your father?

A Ronald and Robert were the ones who pulled my father out, sir."36

Randy's account of the incident was corroborated by his mother, Rita, who testified:

"PROSECUTION TOMBOC: You said during the last hearing that on January 23, 1999 at
around 6:30 in the evening while preparing for your supper three (3) armed men entered
inside your house, who were these three (3) men who entered your house?
 A I know, Marlon, Bongbong and Robert, sir.

ATTY. FLORENDO: We just make of record that the witness is taking her time to answer,
Your Honor.

PROSECUTOR TOMBOC: You said that Marlon Delim, Robert Delim and Bongbong entered
your house, are these three (3) persons who entered your house in Court now?

A They are here except the other one, sir.

Q Will you please step down and point to the persons who entered your house?

A Witness is pointing to Marlon Delim, Robert Delim is not in Court and Bongbong is
Ronald Delim.

Q After these three (3) armed men entered your house, what happened then?

A My husband was brought out, sir.

Q What is the name of your husband?

A Modesto Delim, sir."37

2. Randy said that when Marlon and Ronald barged into their house, Leon, armed with a handgun,
acted as a lookout when he stood guard by the door of the house of Modesto and remained thereat
until 7:00 a.m. of the next day:

"FISCAL TOMBOC: When your father was pulled out from your house by these three
persons, what did you and your mother do while these three persons were taking out of your
house?

A We did not do anything because Manuel and Leon Delim guarded us.

COURT: Where, in your house?

A Yes, sir.

FISCAL TOMBOC: From that very time that your father was pulled out by these three
persons Marlon, Robert and Ronal (sic), where were Leon and Manuel then?

A They were at the door, sir.

COURT: Why do you know that they were guarding you?

A Because they were at the door, sir.

FISCAL TOMBOC: What was their appearance that time when these two persons were
guarding you, these Leon and Manuel?

A They were armed, sir.

 Q What do you mean by armed?

A They have gun, sir.

Q What kind of firearm?

A Short firearm, sir.

Q By the way, where are these Leon and Manuel now, if you know?

A Leon is here, sir.

Q About Manuel?

A None, sir.

Q Will you please stand up and point at Leon, Mr. Witness?

A (Witness pointed to a person seated on the bench inside the courtroom, who when
his name was asked, answered, Leon Delim)."38

3. Rita and Randy were ordered by Leon not to leave the house as Ronald and Marlon left the house
with Modesto in tow. Rita and Randy were detained in their house up to 7:00 a.m. of January 24,
1999 to prevent them from seeking help from their relatives and police authorities.

4. Randy likewise testified that on January 27, 1999, at about 3:00 p.m., the cadaver of Modesto was
found under the thick bushes in a grassy area in the housing project located about 200 meters away
from the house of Modesto. The cadaver exuded bad odor and was already in the state of
decomposition:

"Q So what did you do then on January 27, where did you look for your father?

A The same place and at 3:00 o'clock P.M., we were able to find my father.

COURT: Where?

A At the housing project at Paldit, Sison, Pangasinan, sir.

FISCAL TOMBOC: Do you have companions at that time when you were able to look for
your father on January 27, 1999 at 3:00 o'clock P.M.?

A Yes, sir.

Q Who?

A My Aunt, sir.

Q What is the name of your Aunt?

A Nida Pucal, sir.

 Q Who else?

A Pepito Pucal, Bernard Osias and Daniel Delim, sir.

COURT: When you found your father, what was his condition?

A He was dead, sir.

COURT: Go ahead.

FISCAL TOMBOC: You said that he was already dead, what was his appearance then when
you saw him dead?

A He has bad odor, sir, in the state of decompsition (sic)."39

The testimony of Randy was corroborated by Dr. de Guzman who testified that the cadaver of
Modesto was in a state of decomposition, with tiny white worms crawling from his wounds, and that
his penis and scrotum were inflamed. The victim sustained five gunshot wounds and defensive
wounds on the left arm and forearm:

"PROS. TOMBOC:

Q Will you please tell the Honorable Court your findings, Doctora?

WITNESS:

A First finding: Upon seeing the cadaver, this is the position of the body, both upper
extremities are flexed and both lower extremities are flexed (Nakakukot).

Q How many days had already elapsed when you autopsied the cadaver of the victim,
Doctora?

A Four (4) days upon the recovery of the body, sir.

Q And what was your findings Doctora?

A The body was already under the state of decomposition, sir, with foul odor and there
were so many worms coming out from the injuries, there were tiny white worms, sir.

Q What else did you observe Doctora?

A Upon seeing the cadaver I asked the relative to refer it to the NBI sir. Actually the
victim was an igorot (sic) and they have tradition that they will bury immediately. Whether
they like it or not I should do it, sir.

Q What else Doctora?

A And the penis was inflammed (sic), the scrotum was also inflammed (sic), sir.
 And for the head injuries there was 10 x 10 ml. GSW pre-auricular area, right; there was also
20 ml x 20 ml. GSW, mandibular area, right; I cannot also determine the exit.

Q So there were two (2) gunshot wounds (GSW) Doctora?

A Yes sir.

And there was also 10 x 10 ml. GSW, maxillary area, right; there was also 10 x 10 ml. GSW,
below middle nose, directed upward (POE); and there was also 30 x 40 ml. GSW, mid
parieto-occipital area (POEx).

Q How many all in all are the gunshot wound?

A Five (5) sir.

And also there was 2 x 1 cms. Lacerated wound, right cheek; 1 x 1 cm. stabbed
wound, axillary area, left; 1 x 1 cm. stabbed wound, lateral aspect M/3rd, left arm; 1 x
1 cm. stabbed wound lateral aspect D/3rd, left arm; 1 x 1 cm. stabbed wound, medial
aspect M/3rd, left arm; 1 x 1 cm. stabbed wound, medial aspect D/3rd, left arm; and
#3; 1 x 1 cm. in line with each other, stabbed wound, medial aspect, M/3rd, left
forearm.

Q How many stabbed wound are there Doctora?

A There were seven (7) stabbed wounds, sir.

Q Those stabbed wounds were defensive wounds, Doctora?

A Yes sir."40

The state of decomposition of the cadaver, with tiny white worms swarming and feasting on it and
the distention of his scrotum and penis are evidence that the cadaver was in the stage of
putrefaction and that the victim had been dead for a period ranging from three to six
days.41 Admittedly, there are variant factors determinative of the exact death of the victim. An equally
persuasive authority states:

"Chronological Sequence of Putrefactive Changes Occurring in Tropical

Region:
Time Since Condition of the Body
Death
48 hours Ova of flies seen. Trunk bloated. Face discolored and
swollen. Blisters present. Moving maggots seen
72 hours Whole body grossly swollen and disfigured. Hair and nails
loose. Tissues soft and discolored."42

The lapse of two or three to four days from the seizure of the victim in the evening of January 23,
1999 to the discovery of his cadaver which was already in the state of putrefaction in the afternoon
of January 27, 1999, about 200 meters away from his house, is consistent with and confirmatory of
the contention of the prosecution that the victim was killed precisely by the very malefactors who
seized him on January 23, 1999.
5. When police authorities went to the residences of all the malefactors, the latter had flown the coop
and were nowhere to be found:

"COURT: In connection with this case, you investigated the wife and son of Modesto Delim?

A Yes, sir.

Q In the course of the investigation did you come to know who were the suspects?

A Yes, sir, she elaborated that the suspects were their neighbors, Marlon Delim and his
brothers, sir.

Q What are the names of the brothers?

A Manuel Delim, Leon Delim I cannot remember the others, sir.

Q By reason of that information were you able to apprehend any of them for
investigation?

A No, sir.

Q Why?

A Because when we were dispatched by the Chief of Police no Delim brothers could be
found, they all left the place, sir.

Q In what place did you look for the brothers Delim?

A Within the vicinity, sir.

Q In what place?

A Brgy. Bila and the place where the crime was committed in Brgy. Bila and the place
where the cadaver was found in Paldit, sir.

Q Where did you look for the Delim brothers?

A Nearby barangays, Immalog, sir.

Q Wherelse (sic)?

A Labayog, Sison, sir.

Q Wherelse?

A In mountainous part of Immalog, part of Tuba Benguet, sir.

Q What was the result?

A Negative result, sir."43

6. Leon was the neighbor of Modesto and Rita while Marlon and Ronald used to go to the house of
Modesto and Rita:

"COURT: These Leon and Manuel Delim are they known to you prior to that day, January
23, 1999?

A Yes, sir, I know them.

Q Why do you know Manuel and Leon prior to January 23, 1999?

A They are my neighbors, sir.

Q How about Marlon, Robert and Bongbong do you know them before January 23,
1999?

A I know them, sir.

Q Why do you know them?

A They used to go to our house, sir.

Q I noticed that Marlon, Bongbong, Robert, Manuel and Leon are all Delims and your
husband's name is Modesto Delim are they related with each other?

A Yes, sir."44

The sudden disappearance of Marlon, Ronald and Leon from their houses in Barangay Bila, Sison is
strong circumstantial evidence of their guilt for the death of Modesto. Although flight after the
commission of an offense does not create a legal presumption of guilt, nevertheless, the same is
admissible in evidence against them and if not satisfactorily explained in a manner consistent with
their innocence, will tend to show that they, in fact, killed Modesto.45

It is true that the prosecution failed to prove motive on the part of the malefactors to abduct and kill
Modesto. Indeed, Randy and Rita testified that they were not aware of any misunderstanding or
grudge between Modesto on the one hand and Marlon, Ronald and Leon and their co-accused on
the other before the incident, or any motivation on the part of the three malefactors to cause harm to
Modesto. Nonetheless, it cannot thereby be concluded that a person or persons other than Marlon,
Ronald and Leon were criminally responsible for the death of the victim. It is a matter of judicial
notice that nowadays persons have killed or committed serious crimes for no reason at all.46 In this
case, the inscrutable facts are that Marlon and Ronald, each of whom was armed with a handgun,
forcibly took Modesto from his house at the gunpoint, hog-tied, put a piece of cloth in his mouth and
after Ronald and Marlon had left the house with Modesto in tow, Rita heard three gunshots or so and
the cadaver of Modesto was found concealed under the bushes and already in a state of
putrefaction in the afternoon of January 27, 1999. Modesto sustained several gunshot wounds and
died because of a gunshot wound on the head. The criminal acts and the connection of Marlon,
Ronald and Leon with said acts having been proved by the prosecution beyond reasonable doubt,
the act itself furnishes the evidence, that to its perpetration there was some causes or influences
moving the mind.47 The remarkable tapestry intricately woven by the prosecution should not be
trashed simply because the malefactors had no motive to kill Modesto.
Ranged against the evidence of the prosecution, the burden of evidence shifted on Marlon, Ronald
and Leon to rebut the same and explain what happened to the victim after taking him from his house
in the evening of January 23, 1999. They may have freed the victim shortly after taking him, or the
victim may have been able to escape and that thereafter a person or some other persons may have
killed him. However, Marlon, Ronald and Leon failed to give any explanation. Instead, they merely
denied having seized and killed the victim and interposed alibi as their defense.

Leon is equally guilty for the death of Modesto because the evidence on record shows that he
conspired with accused-appellants Marlon and Ronald and accused Robert and Manuel in killing the
victim.

There is conspiracy when two or more persons agree to commit a felony and decide to commit
it.48 Conspiracy must be proven with the same quantum of evidence as the felony itself, more
specifically by proof beyond reasonable doubt. Conspiracy is not presumed. It may be proved by
direct evidence or by circumstantial evidence. Conspiracy is deducible from the acts of the
malefactors before, during and after the commission of the crime which are indicative of a joint
purpose, concerted action and concurrence of sentiment.49 To establish conspiracy, it is not essential
that there be proof as to the existence of a previous agreement to commit a crime.50 It is sufficient if,
at the time of the commission of the crime, the accused had the same purpose and were united in its
execution. If conspiracy is established, the act of one is deemed the act of all. It matters not who
among the accused actually shot and killed the victim.51 This is based on the theory of a joint or
mutual agency ad hoc for the prosecution of the common plan:

"x x x The acts and declarations of an agent, within the scope of his authority, are considered
and treated as the acts and declarations of his principal. 'What is so done by an agent, is
done by the principal, through him, as his mere instrument.' Franklin Bank of Baltimore v.
Pennsylvania D. & M. Steam Navigation Co., 11 G. & J. 28, 33 (1839). 'If the conspiracy be
proved to have existed, or rather if evidence be given to the jury of its existence, the acts of
one in furtherance of the common design are the acts of all; and whatever one does in
furtherance of the common design, he does as the agent of the co-conspirators.' R. v.
O'Connell, 5 St.Tr. (N.S.) 1, 710."52

In the eyes of the law, conspirators are one man, they breathe one breath, they speak one voice,
they wield one arm and the law says that the acts, words and declaration of each, while in the
pursuit of the common design, are the acts, words and declarations of all.53

In the case at bar, Marlon, Ronald and Leon arrived together in the house of Modesto, each armed
with a handgun. Marlon and Ronald barged into said house while Leon stood guard by the door
thereof. After Marlon and Ronald had left with Modesto in tow, Leon stood by the door and warned
Randy and Rita not to leave the house. Leon stood guard by the door of the house until 7:00 a.m. of
January 24, 1999 when he left the house. The overt acts of all the malefactors were so synchronized
and executed with precision evincing a preconceived plan or design of all the malefactors to achieve
a common purpose, namely the killing of Modesto. Irrefragably, the tasks assigned to Leon in the
commission of the crime were — (a) to act as a lookout; (b) to ensure that Rita and Randy remain in
their house to prevent them from seeking assistance from police authorities and their relatives before
their mission to kill Modesto shall have been a fait accompli as well as the escape of Marlon and
Ronald.54 Patently, Leon, a lookout for the group, is guilty of the killing of Modesto.55 Leon may not
have been at the situs criminis when Modesto was killed by Marlon and Ronald nevertheless he is a
principal by direct participation.56 If part of a crime has been committed in one place and part in
another, each person concerned in the commission of either part is liable as principal. No matter
how wide may be the separation of the conspirators, if they are all engaged in a common plan for the
execution of a felony and all take their part in furtherance of the common design, all are liable as
principals. Actual presence is not necessary if there is a direct connection between the actor and the
crime.57

Ronald, Marlon and Leon, however, assail the testimonies of Randy and Rita alleging that the same
were marred by inconsistencies.

1. Randy initially stated that he did not know where the assailants brought his father. Later
however, Randy claimed that the malefactors proceeded to the direction of Paldit, Sison,
Pangasinan;

2. Rita on the other hand identified Leon, Marlon and Ronald as those who barged into their
house. She later changed her testimony and declared that it was Robert, together with
Marlon and Ronald who barged into the house;

3. Rita likewise testified that two men stood outside the house guarding them. Later, she
testified that after the three men brought out the victim, the two other accused entered the
house and guarded them there;

4. Rita claimed that she went out to look for her husband the next day, or on January 25,
1999, and she was accompanied by her son Randy. However, Randy testified that he was
alone when he looked for his father from January 24 to 26, 1999.58

We do not agree with Marlon, Ronald and Leon. Case law has it that the findings of facts of the trial
court, its calibration of the collective testimonies of witnesses and its assessment of the probative
weight thereof and its conclusions culled from its findings are accorded by the appellate court great
respect, if not conclusive effect, because of its unique advantage of observing at close range the
demeanor, deportment and conduct of the witnesses as they give their testimonies before the court.

In the present case, the trial court gave credence and full probative weight to the testimonies of the
witnesses of the prosecution. Moreover, there is no evidence on record that Randy and Rita were
moved by any improper or ill motive in testifying against the malefactors and the other accused;
hence, their testimonies must be given full credit and probative weight.59 The inconsistencies in the
testimonies of Rita and Randy do not render them incredible or their testimonies barren of probative
weight. It must be borne in mind that human memory is not as unerring as a photograph and a
person's sense of observation is impaired by many factors including the shocking effect of a crime. A
truth-telling witness is not always expected to give an error-free testimony considering the lapse of
time and the treachery of human memory. What is primordial is that the mass of testimony jibes on
material points, the slight clashing of statements dilute neither the witnesses' credibility nor the
veracity of his testimony.60 Variations on the testimony of witnesses on the same side with respect to
minor, collateral or incidental matters do not impair the weight of their united testimony to the
prominent facts.61 Inconsistencies on minor and trivial matters only serve to strengthen rather than
weaken the credibility of witnesses for they erase the suspicion of rehearsed testimony. 62

Moreover, the testimony of a witness should be construed in its entirety and not in truncated terms
and the true meaning of answers to isolated questions propounded to a witness is to be ascertained
by due consideration of all the questions propounded to the witness and his answers thereto.63

Randy's testimony that he did know where the malefactors brought his father is not inconsistent with
his testimony that Ronald and Marlon brought his father towards the direction of Paldit, Sison,
Pangasinan. Randy may not have known the destination of accused-appellants but he saw the
direction to which they went. While it may be true that when asked to identify the three who barged
into their house, Rita pointed to Leon as one of them, however, Rita had been consistent throughout
her testimony that those who barged into their house were Ronald and Marlon. Leon's counsel never
cross-examined Rita and impeached her testimony on her identification of Leon as one of those who
barged into their house to give her an opportunity to explain her perceived inconsistency
conformably with Rule 132, Section 13, of the Revised Rules of Evidence which reads:

"Before a witness can be impeached by evidence that he has made at other times
statements inconsistent with his present testimony, the statements must be related to him,
with the circumstances of the times and places and the persons present, and he must be
asked whether he made such statements, and if so, allowed to explain them. If the
statements be in writing they must be shown to the witness before any question is put to him
concerning them."64

Hence, the presentation of the inconsistent statements made by Rita is insufficient for the desired
impeachment of her.65 As to whether Rita and Randy were together in looking for Modesto or Leon
merely stood guard by the door of the house or entered the house are inconsequential. The fact is
that Leon stood guard throughout the night to prevent Rita and Randy from seeking assistance for
the seizure and killing of Modesto.

This Court is convinced, as the trial court was, that the respective testimonies of Randy and Rita
bear the earmarks of truth and sincerity. Despite intense and grueling cross-examination, they
responded with consistency upon material details that could only come from a firsthand knowledge
of the shocking events which unfolded before their eyes. The Court thus finds no cogent reason to
disregard the findings of the trial court regarding their credibility.

Marlon, Ronald and Leon contend that the trial court committed a reversible error in not giving
credence and probative weight to their evidence to prove their defense of alibi. They aver that their
collective evidence to prove their defense is strong.

We do not agree. Case law has it that the defense of alibi is one of the weakest of defenses in
criminal prosecution because the same is easy to concoct between relatives, friends and even those
not related to the offender.66 It is hard for the prosecution to disprove. For alibi to merit approbation
by the trial court and this Court, Marlon, Ronald and Leon are burdened to prove with clear and
convincing evidence that they were in a place other than the situs criminis at the time of the
commission of the crime; that it was physically impossible for them to have committed the said
crime.67 They failed to discharge their burden. Moreover, Rita and Randy positively and
spontaneously identified Marlon, Ronald and Leon as the culprits. The house of Ronald, where he
claimed he was when the crime was committed, was only two kilometers away from the house of
Modesto and can be negotiated by a tricycle. Leon failed to adduce any documentary evidence to
prove his employment by Sally Asuncion. The barefaced fact that he was a resident of Laoag City
does not constitute proof that he was in Laoag City on the day of the commission of the crime. With
respect to Marlon, he failed to adduce evidence aside from his self-serving testimony that he resided
in, left Dumaguete City and arrived in Manila on January 29, 1999.

The trial court convicted Marlon, Ronald and Leon of murder with the qualifying circumstance of
treachery in the killing of Modesto. The trial court likewise appreciated nighttime and abuse of
superior strength and the use of unlicensed firearms as separate aggravating circumstances. The
Office of the Solicitor General contends that indeed treachery was attendant in the killing of
Modesto. Hence, Marlon, Ronald and Leon are guilty of murder defined in and penalized by Article
248 of the Revised Penal Code.

The Court however finds that Marlon, Ronald and Leon are guilty only of homicide defined in and
penalized by Article 248 of the Revised Penal Code.
Qualifying circumstances such as treachery and abuse of superior strength must be alleged and
proved clearly and conclusively as the crime itself. Mere conjectures, suppositions or presumptions
are utterly insufficient and cannot produce the effect of qualifying the crime.68 As this Court held: "No
matter how truthful these suppositions or presumptions may seem, they must not and cannot
produce the effect of aggravating the condition of defendant."69Article 14, paragraph 16 of the
Revised Penal Code provides that there is treachery when the offender commits any of the crimes
against the person, employing means, methods or forms in the execution thereof which tend directly
and especially to insure its execution, without risk to himself arising from the defense which the
offended party might make. For treachery to be appreciated as a qualifying circumstance, the
prosecution is burdened to prove the following elements: (a) the employment of means of execution
which gives the person attacked no opportunity to defend himself or retaliate; (b) the means of
execution is deliberately or consciously adopted.70 Although the victim may have been defenseless
at the time he was seized but there is no evidence as to the particulars of how he was assaulted and
killed, treachery cannot be appreciated against the accused.71 In this case, the victim was
defenseless when seized by Marlon and Ronald. However, the prosecution failed to present any
witness or conclusive evidence that Modesto was defenseless immediately before and when he was
attacked and killed. It cannot be presumed that although he was defenseless when he was seized
the victim was in the same situation when he was attacked, shot and stabbed by the malefactors. To
take advantage of superior strength means to purposely use force that is out of proportion to the
means of defense available to the person attacked.72 What is primordial, this Court held in People v.
Rogelio Francisco73 is that the assailants deliberately took advantage of their combined strength in
order to consummate the crime. It is necessary to show that the malefactors cooperated in such a
way as to secure advantage from their superiority in strength.74 In this case, the prosecution failed to
adduce evidence that Marlon and Ronald deliberately took advantage of their numerical superiority
when Modesto was killed. The barefaced facts that the malefactors outnumbered Modesto and were
armed while Modesto was not does not constitute proof that the three took advantage of their
numerical superiority and their handguns when Modesto was shot and stabbed.75

In sum then, we believe that Marlon, Ronald and Leon are guilty only of Homicide defined in and
penalized by Article 249 of the Revised Penal Code with reclusion temporal in its full period.

Although the special aggravating circumstance of the use of unlicensed firearms was proven during
the trial, there is no allegation in the Information that Marlon, Ronald and Leon had no license to
possess the firearm. Lack of license to possess a firearm is an essential element of the crime of
violation of PD 1866 as amended by Republic Act No. 8294, or as a special aggravating
circumstance in the felony of homicide or murder.76 Neither can dwelling, although proven, aggravate
the crime because said circumstance was not alleged in the Information as required by Rule 110,
Section 8, of the Revised Rules of Court.77 Although this rule took effect on December 1, 2000, after
the commission of the offense in this case, nonetheless it had been given retroactive effect
considering that the rule is favorable to the accused.78

There being no modifying circumstances in the commission of homicide, Marlon, Ronald and Leon
should be meted an indeterminate penalty, the minimum of which shall be taken from the entirety
of prision mayor, ranging from 6 years and one day to 12 years and the maximum period of which
shall be taken from the medium period of reclusion temporal, ranging from 14 years, 8 months and
one day to 17 years and 4 months.

Consequently, the award for damages in favor of the heirs of the victim should be modified. The sum
of P75,000.00 awarded as moral damages should be reduced to P50,000.00 in accordance with
prevailing jurisprudence.79 The amount of P25,000.00 as exemplary damages is in order.80 In
addition, civil indemnity in the amount of P50,000.00 should be awarded without need of proof,
likewise in consonance with prevailing jurisprudence.81
IN LIGHT OF ALL THE FOREGOING, the decision of the trial court is AFFIRMED with
MODIFICATION. Accused-appellants Marlon Delim, Ronald Delim and Leon Delim are hereby found
guilty beyond reasonable doubt of the felony of Homicide defined in and penalized by Article 249 of
the Revised Penal Code. There being no modifying circumstances in the commission of the crime,
each of accused-appellants is hereby meted an indeterminate penalty of from ten (10) years and one
(1) day of prision mayor in its maximum period as minimum to fourteen (14) years, eight (8) months
and one (1) day of reclusion temporal in its medium period as maximum. Accused-appellants are
hereby ordered to pay, jointly and severally, to the heirs of the victim the amount of P50,000.00 by
way of civil indemnity, the amount of P50,000.00 by way of moral damages and the amount of
P25,000.00 by way of exemplary damages.

SO ORDERED.

Davide, Jr., C.J., Bellosillo, Puno, Mendoza, Panganiban, Quisumbing, Carpio, Austria-Martinez,
Corona, Carpio-Morales and Azcuna, JJ., concur.
Vitug, J., see separate opinion.
Ynares-Santiago, J., joins the dissenting opinion of J. Vitug.
Gutierrez, J., joins Justice Vitug in his dissenting opinion.

Separate Opinions

VITUG, J.:

Circumstantial evidence has been defined as that which relates to a series of facts other than the
fact in issue which, by experience, are found to be so associated with such fact that, in relation of
cause and effect, they lead to a veritable conclusion. There should, for circumstantial evidence to
warrant a criminal conviction, be a) more than one circumstance; b) proof of the facts from which the
inference is derived; and c) a clear showing that the combination of all the circumstances can aptly
support a conviction beyond reasonable doubt.1 The use of circumstantial evidence in criminal
cases, prompted by sheer necessity, has long been an accepted, practice but with one important
caveat — it must be used with utmost care and, when its exacting standards are not met, it is
correctly ignored.

On 04 May 1999, the following Information was filed against Marlon, Leon, Manuel, Robert and
Ronald, all surnamed Delim; viz:

"That on or about January 23, 1999 in the evening at Brgy. Bila, Sison, Pangasinan, and
within the jurisdiction of this Honorable Court, the above-named accused armed with short
firearms barged in and entered the house of Modesto Delim and once inside with intent to
kill, treachery, evident premeditation, conspiring with one another, did then and there,
willfully, unlawfully and feloniously grab, hold, hog-tie, gag with a piece of cloth, brought out
and abduct Modesto Delim, (while) accused Leon and Manuel Delim stayed in the house
(and) guarded and prevented the wife and son of Modesto Delim from helping the latter,
thereafter with abuse of superior strength stabbed and killed said Modesto Delim, to the
damage and prejudice of his heirs.

"Contrary to Article 248, Revised Penal Code, as amended by Republic Act No. 7659."2
The evidence would show that Modesto Delim was forcibly abducted from his residence by
appellants, all armed, on the night of 23 January 1999. But to say that the same group was also
responsible for his death, days later, or that his violent end was the consequence of the abduction,
and nothing more, would be to unduly put to risk our standard of moral certainty required for all
convictions.

It was approximately six-thirty on the evening of 23 January 1999. Three armed men suddenly
barged into the house of Modesto Delim in Brgy. Bila, Sison, Pangasinan. Modesto, who was then
about to take his supper with his wife Rita Manalo Bantas, his teen-age son Randy Manalo Bantas,
and his two grandchildren, was suddenly seized by the intruders. Randy identified the malefactors to
be their neighbors — Marlon, Robert, and Ronald, all surnamed Delim. Without any word, the trio
went straight for Modesto. Randy saw Marlon poke a gun at his father while Ronald and Robert held
back his arms and brought him outside the house. Two more armed cohorts, namely, Manuel and
Leon, both also surnamed Delim, stood guard by the door. No words were uttered to interrupt the
heavy silence except when one of the two men told the stunned family members to stay where they
were. All through the night, both Manuel and Leon Delim kept watch outside the door and only left at
around seven o'clock in the morning of the next day.

Soon after Manuel Delim and Leon Delim had left, Randy immediately sought the help of his Uncle
Darwin Niño who forthwith told him to bring the matter to the authorities. But it was only two days
later that, in the company of his Uncle Melchor, Randy finally reported the incident to the police. In
the meantime, the distressed son scoured the vicinity of Paldit, Pangasinan, to look for his father. He
was nowhere to be found. Days passed. Then, one day, he stumbled upon the decomposing body of
his father at a thick grassy portion of a housing project in Paldit, Sison, Pangasinan, some 200
meters from their house. Dr. Ma. Fe Lagmay de Guzman, who conducted the autopsy, found the
corpse riddled with five fatal gunshot wounds, seven stab wounds and several "defensive" wounds.

The victim's surviving spouse Rita Manalo Bantas and son Randy Manalo Bantas could not
understand why anyone would want Modesto killed. The family was completely unaware of any
possible motive for the nabbing and killing of Modesto Delim or of any bad blood between Modesto
and the five indictees.

On 14 January 2000, the Regional Trial Court of Urdaneta City, Branch 46, rejecting the defense
of alibi, convicted Ronald, Marlon, and Leon for murder; it held:

"WHEREFORE, judgment of conviction beyond reasonable doubt is hereby rendered against

Ronald Delim, Marlon Delim and Leon Delim (for) the commission of Aggravated Murder, an
offense defined and penalized under Article 248 of the Revised Penal Code, as amended by
R.A. 7659 and the Court sentences Marlon Delim, Ronald Delim and Leon Delim to suffer
the penalty of death, to be implemented in the manner as provided for by law; the Court
likewise ordered the accused, jointly and solidarily, to indemnify the heirs of Modesto Delim
the sum of P75,000.00 as moral damages, plus the amount of P25,000.00 as exemplary
damages."3

In assailing the finding of guilt beyond reasonable doubt by the court a quo, appellants stress on
what they claim to be inconsistencies in the testimony of Randy Manalo Bantas and that of Rita
Manalo Bantas. I agree with my colleagues that the trial court has not erred in regarding the so-
called inconsistencies as being minor and trivial that hardly can affect the credibility of the witnesses.
The narration given by Randy Manalo Bantas and Rita Manalo Bantas at the witness stand,
identifying each of the appellants and detailing their individual participation in the incident, could not
have been more spontaneous and straightforward; thus —
Testimony of Randy Manalo Bantas

"Q While taking your supper that time, do you recall if there was anything unusual that
happened at that time?

"A When we were about to start to eat, three armed men entered our house.

"Q Do you know these three armed men who entered your house?

"A Yes, sir.

"Q Who were they, name them one by one.

"A Marlon Delim, Robert Delim and Ronald Delim.

"Q Are these three persons inside the courtroom now?

"A Two of them, sir.

"Q Who are these two who are inside the courtroom?

"A Marlon and Ronald, sir.

xxx xxx xxx

"Q You said that these two armed persons entered your house; what kind of arms were
they carrying at that time?

"A Short handguns, sir.

"Q When these three armed persons whom you have mentioned, armed with short
firearms, what did they do when they entered your house?

"A They took my father, sir.

"Q Who took your father?

"A Marlon Delim, Robert Delim and Ronald Delim, sir.

"Q When these three persons took your father, what did you do then?

"A None, sir.

"COURT:

How did they get your father?

"A They poked a gun and brought him outside the house, sir.

"FISCAL TOMBOC:
 Who poked a gun?

"A Marlon Delim, sir.

"xxx xxx xxx

"Q After bringing your father out from your house, what transpired next?

"A Manuel Delim and Leon Delim said, 'Stay in your house,' and guarded us.

"COURT:

You said your father was taken out, who?

"A Marlon, Robert and Ronald, sir.

"FISCAL TOMBOC:

Where did these three persons bring your father?

"A I do not know where they brought my father, sir.

"COURT:

Was your father taken inside your house or outside?

"A Inside our house, sir.

"Q You said that Marlon poked a gun at your father, is that correct?

"A Yes, sir.

"Q What did Ronald and Robert do while Marlon was poking his gun at your father?

"A Ronald and Robert were the ones who pulled my father out, sir.

"FISCAL TOMBOC:

When your father was pulled out from your house by these three persons, what did
you and your mother do while these three persons were taking your father out of your
house?

"A We did not do anything because Manuel and Leon Delim guarded us.

"xxx xxx xxx

"FISCAL TOMBOC:

What was their appearance that time when these two persons were guarding you,
these Leon and Manuel?
"A They were armed, sir.

"Q What do you mean by armed?

"A They have [a] gun, sir.

"Q What kind of firearm?

"A Short firearm, sir.

"xxx xxx xxx

"FISCAL TOMBOC:

You said that you were guarded by Leon and Manuel, how long did these two
persons guard you in your house?

"A Up to the morning, sir.

"Q You know what time?

"A Yes, sir, [seven o'clock].

"xxx xxx xxx

"Q When [seven o'clock] arrived, you said that they guarded you up to [seven o'clock],
what did these two, Leon and Manuel, do then?

"A They left, sir.

"Q Do you know where they went?

"A No, sir."4

Testimony of Rita Manalo Bantas

"PROSECUTOR TOMBOC

You said during the last hearing that on January 23, 1999 at around 6:30 in the
evening while preparing for your supper three (3) armed men entered inside your
house, who were these three (3) men who entered your house?

"A I know, Marlon, Bongbong and Robert, sir.

"xxx xxx xxx

"PROSECUTOR TOMBOC

You said that Marlon Delim, Robert Delim and Bongbong entered your house, are
these three (3) persons who entered your house in Court now?
"A They are here except the other one, sir.

"Q Will you please step down and point to the persons who entered your house?

"A Witness is pointing to Marlon Delim, Robert Delim is not in Court and Bongbong is
Ronald Delim.

"Q After these three (3) armed men entered your house, what happened then?

"A My husband was brought out, sir.

"xxx xxx xxx

"PROSECUTOR TOMBOC

Who brought your husband out of your house on January 23, 1999 at 6:30 in the
evening?

"A Marion Delim, Bongbong and Robert Delim, sir.

"Q Then after Marlon Delim, Bongbong and Robert Delim brought your husband out
what transpired next?

"A The two (2) stayed at the door of our house to guard us, sir.

"Q Who were these two (2) persons who guarded you?

"A Leon and Manuel, sir.

"xxx xxx xxx

"COURT

You said the two (2) Leon and Manuel stayed at the door guarding you, is that
correct?`

"A Yes, sir.

"Q What made you say that you are guarded by them?

"A Because they have guns with them, sir.

"PROSECUTOR TOMBOC

Do you know what kind of firearm were they holding?

"A I don't know, sir.

"Q But you can describe whether long or short firearm?

"A Short firearms, sir.

"Q What did you do then when these two (2) armed persons guarded you in your
house?

"A We did not do anything because we were afraid, sir.

"COURT

These Leon and Manuel Delim are they known to you prior to that day, January 23,
1999?

"A Yes, sir, I know them.

"Q Why do you know Manuel and Leon prior to January 23, 1999?

"A They are my neighbors, sir.

"Q How about Marlon, Robert and Bongbong do you know them before January 23,
1999?

"A I know them, sir.

"Q Why do you know them?

"A They used to go to our house, sir.

"xxx xxx xxx

"Q You said that Leon and Manuel Delim guarded the door of your house, how long did
they stay there?

"A The whole night up to [seven] o'clock the following morning when they left the house,
sir.

"Q You said they left, do you know where they proceeded?

"A I don't know where they [went], sir.

"Q How about you, what did you do then when the two persons left your house?

"A I stayed at home because I [was] afraid, sir.

"COURT

When the 3 persons brought your husband out did Modesto Delim go with them
voluntarily?

"A No, sir.

 "Q Why do you say [that] he did not go voluntarily?

"A Because they held his hand and brought him outside, sir.

"PROSECUTOR TOMBOC

You said they held the hand of your husband, will you please demonstrate how he
was brought outside?

"A They held the 2 hands placed at the back and they brought outside my husband, sir.

"Q Who among the 3 men held the hands of your husband?

"A Marlon, Bongbong and Robert, Sir.

"COURT

Did your husband resist when they held the hand?

"A He did not resist, Sir."5

Between the positive identification made by the eyewitnesses and the bare denial of appellants,
there is scarcely any serious doubt but that decisive weight must be given to the positive testimony
of Randy Manalo Bantas and Rita Manalo Bantas.6 The defense of alibi, being one that can easily be
fabricated, is inherently weak and cannot be expected to withstand the positive identification made
by credible witnesses.

Randy Manalo Bantas, who was in the house when the five intruders entered their abode and took
his father away, could not have been mistaken in identifying the malefactors who not only were
neighbors but also had family ties with them as well. According to Randy and Rita Manalo Bantas, it
was appellant Leon Delim, together with Manuel Delim (at large), who stood guard at their house
after the others, appellant Marlon Delim, Robert Delim (at large) and appellant Ronald Delim, took
Modesto away on the early evening of 23 January 1999. Leon and Manuel stayed well into the night
and left only at seven o'clock in the morning of the next day. The certificate of residency issued by
the barangay captain of Salet, Laoag City, only confirmed that Leon Delim was a co-resident of the
barangay but it did not establish with any degree of certainty that Leon Delim had not left Laoag City
on the day of the incident. Appellant Ronald Delim, in his case, said that he was home at Asan Norte
with his family when the abduction and the brutal slaying of Modesto Delim occurred. Ronald himself
confirmed, however, that Asan Norte was a mere ten-minute bicycle ride from the victim's house at
Paldit, Pangasinan. Alibi, to be believed, must invariably place the accused at such location as to
render it physically impossible for him to be at the place of the crime and, let alone, to commit the
same. The claim, upon the other hand, of appellant Marlon Delim that he was at Dumaguete City
during the fateful day of 23 to 24 January 1999 remained to be just a bare assertion; it was not
corroborated even by his sister in Dumaguete whom, he said, he worked for.

The evidence would indeed point out that Marlon, Ronald and Robert seized Modesto Delim from his
house while Leon and Manuel stood guard and stayed at the door of the victim's house. Randy
Manalo Bantas and Rita Manalo Bantas, however, could only testify on the participation of each of
the malefactors in the abduction of Modesto Delim but not on what might have happened to him
thereafter. In arriving at its verdict convicting appellants for "aggravated murder," the trial court
considered the act of the accused of forcibly taking Modesto Delim from his house as being likewise
enough to substantiate the killing by them of the victim. The conclusion could rightly be assailed. The
accounts of Randy and his mother Rita would indicate that the forcible taking of Modesto was carried
out in absolute silence, with not one of the five intruders uttering any word which could give a clue on
the reason for the abduction and, more particularly, whether the same was carried out for the
purpose of killing Modesto. The two witnesses were unaware of any existing grudge between the
malefactors and the victim that could have prompted them to violently snuff out the life of the latter.
While the motive of an accused in a criminal case might generally be immaterial, not being an
element of the crime, motive could be important and consequential when the evidence on the
commission of the crime would be short of moral certainty.7

In sustaining the conclusion of the trial court that the five accused also snuffed out the life of
Modesto Delim, the ponencia relied on circumstantial evidence testified to by Randy Bantas. He
recounted that, on the early evening of 23 January 1999, Marlon and Ronald barged into the house
of Modesto, each armed with a handgun. Marlon poked his gun on Modesto while Ronald hog-tied
Modesto. They then seized Modesto and herded him out of the house. Leon, armed with a handgun,
acted as a lookout by standing guard by the door of the house of Modesto until seven o'clock in the
morning of the next day. Rita and Randy were ordered by Leon not to leave the house as Ronald
and Marlon left the house with Modesto in tow. On the afternoon of 27 January 1999, the cadaver of
Modesto was found under the thick bushes in a grassy area in the housing project located about 200
meters away from the house of Modesto, exuding bad odor and in a state of decomposition.

The above recitals all point to only one established fact, i.e., that the accused forcibly took Modesto
Delim from his residence to an unknown destination on the night of 23 January 1999, would be
scanty to support a conclusion that the five, aside from abducting the victim, likewise killed him.
There was an unexplained gap in what ought to have been a continuous chain of events. The body
bore several defensive wounds, which could give rise to the not too unlikely scenario that Modesto
might have ultimately been released by his abductors sometime before he was killed.

Recognizing that circumstantial evidence is as strong as the weakest link, this Court is bound not to
ignore all other possibilities.8 It would seem to me that what has instead . been shown and
established beyond reasonable doubt is the guilt of appellants for the crime of kidnapping and
serious illegal detention, the whereabouts of the victim — the immediate consequence of the
abduction — for "more than three days" from the time of his abduction not having been accounted
for. The allegation in the Information that the accused "willfully, unlawfully and feloniously grab(bed),
h(e)ld, hog-tie(d), gag(ged), with a piece of cloth, brought out and abduct(ed) Modesto Delim (while)
Leon Delim and Manuel Delim stayed in the house (and) guarded and prevented the wife and son of
Modesto Delim from helping the latter," constitutes the act of deprivation of liberty and the gravamen
in the crime of kidnapping. Article 267 of the Revised Penal Code, as amended by Republic Act No.
7659, provides:

"Article 267 Kidnapping and serious illegal detention. Any private individual who shall kidnap
or detain another, or in any manner deprive him of his liberty, shall suffer the penalty of
reclusion perpetua to death:

"1 If the kidnapping or detention shall have lasted more than three days.

"2 If it shall have been committed simulating public authority.

"3 If any serious physical injuries shall have been inflicted upon the person kidnapped or
detained; or if threats to kill him shall have been made.
 "4 If the person kidnapped or detained shall be a minor, except when the accused is any of
the parents, a female or a public officer.

"The penalty shall be death where the kidnapping or detention was committed for the
purpose of extorting ransom from the victim or any other person, even if none of the
circumstances abovementioned were present in the commission of the offense.

"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."

The fact that the Information went further to charge the accused with the killing of the victim should
be of no moment, the real nature of the criminal charge being determined not from the caption or the
preamble of the Information nor from the specification of the law alleged to have been violated —
these being conclusions of law — but by the actual recital of facts in the complaint or information. 9

In meting upon appellants the supreme penalty of death, the trial court has appreciated five
aggravating circumstances of treachery, abuse of superior strength, nighttime, dwelling, and use of
unlicensed firearms. The Information specifies treachery, abuse of superior strength and evident
premeditation as being the aggravating circumstances in the commission of the crime. Treachery
and superior strength, however, only pertain to crimes against persons. The crime of kidnapping,
falling as it does within the classification of crimes against liberty, is aggravated neither by treachery
nor superior strength. The aggravating circumstance of evident premeditation can be appreciated
when it is shown that the culprits have previously reflected on the crime, or that they have prepared
appropriate means to execute it, coolly taking into account its consequences. The evidence is
deficient in this respect. The aggravating circumstances of nighttime, dwelling and use of unlicensed
firearms, not having been alleged in the Information, cannot be considered. The Revised Rules of
Criminal Procedure, rendered effective on 01 December 2000,10 requires aggravating circumstances,
whether ordinary or qualifying, to be specified in the complaint or information.

The crime of kidnapping is punishable by reclusion perpetua to death. There being neither
aggravating nor mitigating circumstance that can be appreciated, the punishment that should be
imposed is the lesser penalty of reclusion perpetua than the penalty of death.11

Now, on the civil aspect of the case. The law places abundant protective shields in order to ensure
that no man shall be made to account for a crime he might not have committed or be adjudged guilty
and meted a punishment without him having first been afforded a full opportunity to defend his
cause. Thus, a conviction is pronounced only upon proof beyond reasonable doubt, preceded by
an arraignment where he pleads on the basis of a complaint or information that specifies the
gravamen of the offense and the circumstances that are said to aggravate it and then the trial where
evidence is adduced by the parties. For purposes of the civil liability, as well as its extent, civil law
principles, however, are applied, and damages might be accorded to the aggrieved party upon
a mere preponderance of evidence. There is, I believe, enough justification, albeit inadequate for
purposes of a criminal conviction, to hold appellants responsible and civilly liable for the death of
Modesto Delim whose body was found riddled with bullets a few days after being forcibly abducted
by appellants.

Consonantly, appellants should be held liable, jointly and severally, for civil indemnity of P50,000.00
for the death of the victim, moral damages in an equal amount for the mental anguish suffered by his
heirs and P25,000.00 exemplary damages because of the attendance of aggravating circumstances
that were established albeit not allowed to be considered in meting out the sentence for the crime.
Thus, in People vs. Catubig,12 the Court has said:
 "The term 'aggravating circumstances' used by the Civil Code, the law not having specified
otherwise, is to be understood in its broad or generic sense. The commission of an offense
has a two-pronged effect, one on the public as it breaches the social order and the other
upon the private victim as it causes personal sufferings, each of which is addressed by,
respectively, the prescription of heavier punishment for the accused and by an award of
additional damages to the victim. The increase of the penalty or a shift to a graver felony
underscores the exacerbation of the offense by the attendance of aggravating
circumstances, whether ordinary or qualifying, in its commission. Unlike the criminal liability
which is basically a State concern, the award of damages, however, is likewise, if not
primarily, intended for the offended party who suffers thereby. It would make little sense for
an award of exemplary damages to be due the private offended party when the aggravating
circumstance is ordinary but to be withheld when it is qualifying. Withal, the ordinary or
qualifying nature of an aggravating circumstance is a distinction that should only be of
consequence to the criminal, rather than to the civil, liability of the offender. In fine, relative to
the civil aspect of the case, an aggravating circumstance, whether ordinary or qualifying,
should entitle the offended party to an award of exemplary damages within the unbridled
meaning of Article 2230 of the Civil Code.

"Relevantly, the Revised Rules on Criminal Procedure, made effective on 01 December

2000, requires aggravating circumstances, whether ordinary or qualifying, to be stated in the
complaint or information.

"xxx xxx xxx

"A court would thus be precluded from considering in its judgment the attendance of
'qualifying or aggravating circumstances' if the complaint or information is bereft of any
allegation on the presence of such circumstances.

"The retroactive application of procedural rules, nevertheless, cannot adversely affect the
rights of the private offended party that have become vested prior to the effectivity of said
rules. Thus, in the case at bar, although relationship has not been alleged in the information,
the offense having been committed, however, prior to the effectivity of the new rules, the civil
liability already incurred by appellant remains unaffected thereby."

WHEREFORE, I vote for the modification of the decision of the Regional Trial Court, Branch 46, of
Urdaneta City by instead holding appellants Ronald Delim, Marlon Delim and Leon Delim guilty
beyond reasonable doubt of the crime of Kidnapping and Serious Illegal Detention, defined and
penalized by Article 267 of the Revised Penal Code, and imposing on each of them the penalty
of reclusion perpetua, as well as by ordering said appellants to pay, jointly and severally, the heirs of
Modesto Delim the amounts of P50,000.00 civil indemnity, P50,000.00 moral damages and
P25,000.00 exemplary damages, with costs de officio.
US v. Ah Chong, G.R. No. 5272, 19 March 1910, 15 Phil. 488

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. L-5272 March 19, 1910

THE UNITED STATES, plaintiff-appellee,

vs.
AH CHONG, defendant-appellant.

Gibb & Gale, for appellant.

Attorney-General Villamor, for appellee.

CARSON, J.:

The evidence as to many of the essential and vital facts in this case is limited to the testimony of the
accused himself, because from the very nature of these facts and from the circumstances
surrounding the incident upon which these proceedings rest, no other evidence as to these facts was
available either to the prosecution or to the defense. We think, however, that, giving the accused the
benefit of the doubt as to the weight of the evidence touching those details of the incident as to
which there can be said to be any doubt, the following statement of the material facts disclose by the
record may be taken to be substantially correct:

The defendant, Ah Chong, was employed as a cook at "Officers' quarters, No. 27," Fort Mc Kinley,
Rizal Province, and at the same place Pascual Gualberto, deceased, was employed as a house boy
or muchacho. "Officers' quarters No. 27" as a detached house situates some 40 meters from the
nearest building, and in August, 19087, was occupied solely as an officers' mess or club. No one
slept in the house except the two servants, who jointly occupied a small room toward the rear of the
building, the door of which opened upon a narrow porch running along the side of the building, by
which communication was had with the other part of the house. This porch was covered by a heavy
growth of vines for its entire length and height. The door of the room was not furnished with a
permanent bolt or lock, and occupants, as a measure of security, had attached a small hook or catch
on the inside of the door, and were in the habit of reinforcing this somewhat insecure means of
fastening the door by placing against it a chair. In the room there was but one small window, which,
like the door, opened on the porch. Aside from the door and window, there were no other openings
of any kind in the room.

On the night of August 14, 1908, at about 10 o'clock, the defendant, who had received for the night,
was suddenly awakened by some trying to force open the door of the room. He sat up in bed and
called out twice, "Who is there?" He heard no answer and was convinced by the noise at the door
that it was being pushed open by someone bent upon forcing his way into the room. Due to the
heavy growth of vines along the front of the porch, the room was very dark, and the defendant,
fearing that the intruder was a robber or a thief, leaped to his feet and called out. "If you enter the
room, I will kill you." At that moment he was struck just above the knee by the edge of the chair
which had been placed against the door. In the darkness and confusion the defendant thought that
the blow had been inflicted by the person who had forced the door open, whom he supposed to be a
burglar, though in the light of after events, it is probable that the chair was merely thrown back into
the room by the sudden opening of the door against which it rested. Seizing a common kitchen knife
which he kept under his pillow, the defendant struck out wildly at the intruder who, it afterwards
turned out, was his roommate, Pascual. Pascual ran out upon the porch and fell down on the steps
in a desperately wounded condition, followed by the defendant, who immediately recognized him in
the moonlight. Seeing that Pascual was wounded, he called to his employers who slept in the next
house, No. 28, and ran back to his room to secure bandages to bind up Pascual's wounds.

There had been several robberies in Fort McKinley not long prior to the date of the incident just
described, one of which took place in a house in which the defendant was employed as cook; and as
defendant alleges, it was because of these repeated robberies he kept a knife under his pillow for his
personal protection.

The deceased and the accused, who roomed together and who appear to have on friendly and
amicable terms prior to the fatal incident, had an understanding that when either returned at night,
he should knock at the door and acquiant his companion with his identity. Pascual had left the house
early in the evening and gone for a walk with his friends, Celestino Quiambao and Mariano Ibañez,
servants employed at officers' quarters No. 28, the nearest house to the mess hall. The three
returned from their walk at about 10 o'clock, and Celestino and Mariano stopped at their room at No.
28, Pascual going on to his room at No. 27. A few moments after the party separated, Celestino and
Mariano heard cries for assistance and upon returning to No. 27 found Pascual sitting on the back
steps fatally wounded in the stomach, whereupon one of them ran back to No. 28 and called
Liuetenants Jacobs and Healy, who immediately went to the aid of the wounded man.

The defendant then and there admitted that he had stabbed his roommate, but said that he did it
under the impression that Pascual was "a ladron" because he forced open the door of their sleeping
room, despite defendant's warnings.

No reasonable explanation of the remarkable conduct on the part of Pascuals suggests itself, unless
it be that the boy in a spirit of mischief was playing a trick on his Chinese roommate, and sought to
frightened him by forcing his way into the room, refusing to give his name or say who he was, in
order to make Ah Chong believe that he was being attacked by a robber.

Defendant was placed under arrest forthwith, and Pascual was conveyed to the military hospital,
where he died from the effects of the wound on the following day.

The defendant was charged with the crime of assassination, tried, and found guilty by the trial court
of simple homicide, with extenuating circumstances, and sentenced to six years and one
day presidio mayor, the minimum penalty prescribed by law.

At the trial in the court below the defendant admitted that he killed his roommate, Pascual Gualberto,
but insisted that he struck the fatal blow without any intent to do a wrongful act, in the exercise of his
lawful right of self-defense.

Article 8 of the Penal Code provides that —

The following are not delinquent and are therefore exempt from criminal liability:

xxx xxx xxx

4 He who acts in defense of his person or rights, provided there are the following attendant
circumstances:
 (1) Illegal aggression.

(2) Reasonable necessity of the means employed to prevent or repel it.

(3) Lack of sufficient provocation on the part of the person defending himself.

Under these provisions we think that there can be no doubt that defendant would be entitle to
complete exception from criminal liability for the death of the victim of his fatal blow, if the intruder
who forced open the door of his room had been in fact a dangerous thief or "ladron," as the
defendant believed him to be. No one, under such circumstances, would doubt the right of the
defendant to resist and repel such an intrusion, and the thief having forced open the door
notwithstanding defendant's thrice-repeated warning to desist, and his threat that he would kill the
intruder if he persisted in his attempt, it will not be questioned that in the darkness of the night, in a
small room, with no means of escape, with the thief advancing upon him despite his warnings
defendant would have been wholly justified in using any available weapon to defend himself from
such an assault, and in striking promptly, without waiting for the thief to discover his whereabouts
and deliver the first blow.

But the evidence clearly discloses that the intruder was not a thief or a "ladron." That neither the
defendant nor his property nor any of the property under his charge was in real danger at the time
when he struck the fatal blow. That there was no such "unlawful aggression" on the part of a thief or
"ladron" as defendant believed he was repelling and resisting, and that there was no real "necessity"
for the use of the knife to defend his person or his property or the property under his charge.

The question then squarely presents it self, whether in this jurisdiction one can be held criminally
responsible who, by reason of a mistake as to the facts, does an act for which he would be exempt
from criminal liability if the facts were as he supposed them to be, but which would constitute the
crime of homicide or assassination if the actor had known the true state of the facts at the time when
he committed the act. To this question we think there can be but one answer, and we hold that under
such circumstances there is no criminal liability, provided always that the alleged ignorance or
mistake or fact was not due to negligence or bad faith.

In broader terms, ignorance or mistake of fact, if such ignorance or mistake of fact is sufficient to
negative a particular intent which under the law is a necessary ingredient of the offense charged
(e.g., in larcerny, animus furendi; in murder, malice; in crimes intent) "cancels the presumption of
intent," and works an acquittal; except in those cases where the circumstances demand a conviction
under the penal provisions touching criminal negligence; and in cases where, under the provisions of
article 1 of the Penal Code one voluntarily committing a crime or misdeamor incurs criminal liability
for any wrongful act committed by him, even though it be different from that which he intended to
commit. (Wharton's Criminal Law, sec. 87 and cases cited; McClain's Crim. Law, sec. 133 and cases
cited; Pettit vs. S., 28 Tex. Ap., 240; Commonwealth vs. Power, 7 Met., 596; Yates vs. People, 32
N.Y., 509; Isham vs. State, 38 Ala., 213; Commonwealth vs. Rogers, 7 Met., 500.)

The general proposition thus stated hardly admits of discussion, and the only question worthy of
consideration is whether malice or criminal intent is an essential element or ingredient of the crimes
of homicide and assassination as defined and penalized in the Penal Code. It has been said that
since the definitions there given of these as well as most other crimes and offense therein defined,
do not specifically and expressly declare that the acts constituting the crime or offense must be
committed with malice or with criminal intent in order that the actor may be held criminally liable, the
commission of the acts set out in the various definitions subjects the actor to the penalties described
therein, unless it appears that he is exempted from liability under one or other of the express
provisions of article 8 of the code, which treats of exemption. But while it is true that contrary to the
general rule of legislative enactment in the United States, the definitions of crimes and offenses as
set out in the Penal Code rarely contain provisions expressly declaring that malice or criminal intent
is an essential ingredient of the crime, nevertheless, the general provisions of article 1 of the code
clearly indicate that malice, or criminal intent in some form, is an essential requisite of all crimes and
offense therein defined, in the absence of express provisions modifying the general rule, such as are
those touching liability resulting from acts negligently or imprudently committed, and acts done by
one voluntarily committing a crime or misdemeanor, where the act committed is different from that
which he intended to commit. And it is to be observed that even these exceptions are more apparent
than real, for "There is little distinction, except in degree, between a will to do a wrongful thing and
indifference whether it is done or not. Therefore carelessness is criminal, and within limits supplies
the place of the affirmative criminal intent" (Bishop's New Criminal Law, vol. 1, s. 313); and, again,
"There is so little difference between a disposition to do a great harm and a disposition to do harm
that one of them may very well be looked upon as the measure of the other. Since, therefore, the
guilt of a crime consists in the disposition to do harm, which the criminal shows by committing it, and
since this disposition is greater or less in proportion to the harm which is done by the crime, the
consequence is that the guilt of the crime follows the same proportion; it is greater or less according
as the crime in its own nature does greater or less harm" (Ruth. Ints. C. 18, p. 11); or, as it has been
otherwise stated, the thing done, having proceeded from a corrupt mid, is to be viewed the same
whether the corruption was of one particular form or another.

Article 1 of the Penal Code is as follows:

Crimes or misdemeanors are voluntary acts and ommissions punished by law.

Acts and omissions punished by law are always presumed to be voluntarily unless the
contrary shall appear.

An person voluntarily committing a crime or misdemeanor shall incur criminal liability, even
though the wrongful act committed be different from that which he had intended to commit.

The celebrated Spanish jurist Pacheco, discussing the meaning of the word "voluntary" as used in
this article, say that a voluntary act is a free, intelligent, and intentional act, and roundly asserts that
without intention (intention to do wrong or criminal intention) there can be no crime; and that the
word "voluntary" implies and includes the words "con malicia," which were expressly set out in the
definition of the word "crime" in the code of 1822, but omitted from the code of 1870, because, as
Pacheco insists, their use in the former code was redundant, being implied and included in the word
"voluntary." (Pacheco, Codigo Penal, vol. 1, p. 74.)

Viada, while insisting that the absence of intention to commit the crime can only be said to exempt
from criminal responsibility when the act which was actually intended to be done was in itself a lawful
one, and in the absence of negligence or imprudence, nevertheless admits and recognizes in his
discussion of the provisions of this article of the code that in general without intention there can be
no crime. (Viada, vol. 1, p. 16.) And, as we have shown above, the exceptions insisted upon by
Viada are more apparent than real.

Silvela, in discussing the doctrine herein laid down, says:

In fact, it is sufficient to remember the first article, which declared that where there is no
intention there is no crime . . . in order to affirm, without fear of mistake, that under our code
there can be no crime if there is no act, an act which must fall within the sphere of ethics if
there is no moral injury. (Vol. 2, the Criminal Law, folio 169.)
And to the same effect are various decisions of the supreme court of Spain, as, for example in its
sentence of May 31, 1882, in which it made use of the following language:

It is necessary that this act, in order to constitute a crime, involve all the malice which is
supposed from the operation of the will and an intent to cause the injury which may be the
object of the crime.

And again in its sentence of March 16, 1892, wherein it held that "considering that, whatever may be
the civil effects of the inscription of his three sons, made by the appellant in the civil registry and in
the parochial church, there can be no crime because of the lack of the necessary element or criminal
intention, which characterizes every action or ommission punished by law; nor is he guilty of criminal
negligence."

And to the same effect in its sentence of December 30, 1896, it made use of the following language:

. . . Considering that the moral element of the crime, that is, intent or malice or their absence
in the commission of an act defined and punished by law as criminal, is not a necessary
question of fact submitted to the exclusive judgment and decision of the trial court.

That the author of the Penal Code deemed criminal intent or malice to be an essential element of the
various crimes and misdemeanors therein defined becomes clear also from an examination of the
provisions of article 568, which are as follows:

He who shall execute through reckless negligence an act that, if done with malice, would
constitute a grave crime, shall be punished with the penalty of arresto mayor in its maximum
degree, to prision correccional in its minimum degrees if it shall constitute a less grave crime.

He who in violation of the regulations shall commit a crime through simple imprudence or
negligence shall incur the penalty of arresto mayor in its medium and maximum degrees.

In the application of these penalties the courts shall proceed according to their discretion,
without being subject to the rules prescribed in article 81.

The provisions of this article shall not be applicable if the penalty prescribed for the crime is
equal to or less than those contained in the first paragraph thereof, in which case the courts
shall apply the next one thereto in the degree which they may consider proper.

The word "malice" in this article is manifestly substantially equivalent to the words "criminal intent,"
and the direct inference from its provisions is that the commission of the acts contemplated therein,
in the absence of malice (criminal intent), negligence, and imprudence, does not impose any criminal
liability on the actor.

The word "voluntary" as used in article 1 of the Penal Code would seem to approximate in meaning
the word "willful" as used in English and American statute to designate a form of criminal intent. It
has been said that while the word "willful" sometimes means little more than intentionally or
designedly, yet it is more frequently understood to extent a little further and approximate the idea of
the milder kind of legal malice; that is, it signifies an evil intent without justifiable excuse. In one case
it was said to mean, as employed in a statute in contemplation, "wantonly" or "causelessly;" in
another, "without reasonable grounds to believe the thing lawful." And Shaw, C. J., once said that
ordinarily in a statute it means "not merely `voluntarily' but with a bad purpose; in other words,
corruptly." In English and the American statutes defining crimes "malice," "malicious," "maliciously,"
and "malice aforethought" are words indicating intent, more purely technical than "willful" or willfully,"
but "the difference between them is not great;" the word "malice" not often being understood to
require general malevolence toward a particular individual, and signifying rather the intent from our
legal justification. (Bishop's New Criminal Law, vol. 1, secs. 428 and 429, and cases cited.)

But even in the absence of express words in a statute, setting out a condition in the definition of a
crime that it be committed "voluntarily," willfully," "maliciously" "with malice aforethought," or in one of
the various modes generally construed to imply a criminal intent, we think that reasoning from
general principles it will always be found that with the rare exceptions hereinafter mentioned, to
constitute a crime evil intent must combine with an act. Mr. Bishop, who supports his position with
numerous citations from the decided cases, thus forcely present this doctrine:

In no one thing does criminal jurisprudence differ more from civil than in the rule as to the
intent. In controversies between private parties the quo animo with which a thing was done is
sometimes important, not always; but crime proceeds only from a criminal mind. So that —

There can be no crime, large or small, without an evil mind. In other words, punishment is
the sentence of wickedness, without which it can not be. And neither in philosophical
speculation nor in religious or mortal sentiment would any people in any age allow that a
man should be deemed guilty unless his mind was so. It is therefore a principle of our legal
system, as probably it is of every other, that the essence of an offense is the wrongful intent,
without which it can not exists. We find this doctrine confirmed by —

Legal maxims. — The ancient wisdom of the law, equally with the modern, is distinct on this
subject. It consequently has supplied to us such maxims as Actus non facit reum nisi mens
sit rea, "the act itself does not make man guilty unless his intention were so;" Actus me incito
factus non est meus actus, "an act done by me against my will is not my act;" and others of
the like sort. In this, as just said, criminal jurisprudence differs from civil. So also —

Moral science and moral sentiment teach the same thing. "By reference to the intention, we
inculpate or exculpate others or ourselves without any respect to the happiness or misery
actually produced. Let the result of an action be what it may, we hold a man guilty simply on
the ground of intention; or, on the dame ground, we hold him innocent." The calm judgment
of mankind keeps this doctrine among its jewels. In times of excitement, when vengeance
takes the place of justice, every guard around the innocent is cast down. But with the return
of reason comes the public voice that where the mind is pure, he who differs in act from his
neighbors does not offend. And —

In the spontaneous judgment which springs from the nature given by God to man, no one
deems another to deserve punishment for what he did from an upright mind, destitute of
every form of evil. And whenever a person is made to suffer a punishment which the
community deems not his due, so far from its placing an evil mark upon him, it elevates him
to the seat of the martyr. Even infancy itself spontaneously pleads the want of bad intent in
justification of what has the appearance of wrong, with the utmost confidence that the plea, if
its truth is credited, will be accepted as good. Now these facts are only the voice of nature
uttering one of her immutable truths. It is, then, the doctrine of the law, superior to all other
doctrines, because first in nature from which the law itself proceeds, that no man is to be
punished as a criminal unless his intent is wrong. (Bishop's New Criminal Law, vol. 1, secs.
286 to 290.)

Compelled by necessity, "the great master of all things," an apparent departure from this doctrine of
abstract justice result from the adoption of the arbitrary rule that Ignorantia juris non
excusat ("Ignorance of the law excuses no man"), without which justice could not be administered in
our tribunals; and compelled also by the same doctrine of necessity, the courts have recognized the
power of the legislature to forbid, in a limited class of cases, the doing of certain acts, and to make
their commission criminal without regard to the intent of the doer. Without discussing these
exceptional cases at length, it is sufficient here to say that the courts have always held that unless
the intention of the lawmaker to make the commission of certain acts criminal without regard to the
intent of the doer is clear and beyond question the statute will not be so construed (cases cited in
Cyc., vol. 12, p. 158, notes 76 and 77); and the rule that ignorance of the law excuses no man has
been said not to be a real departure from the law's fundamental principle that crime exists only
where the mind is at fault, because "the evil purpose need not be to break the law, and if suffices if it
is simply to do the thing which the law in fact forbids." (Bishop's New Criminal Law, sec. 300, and
cases cited.)

But, however this may be, there is no technical rule, and no pressing necessity therefore, requiring
mistake in fact to be dealt with otherwise that in strict accord with the principles of abstract justice.
On the contrary, the maxim here is Ignorantia facti excusat ("Ignorance or mistake in point of fact is,
in all cases of supposed offense, a sufficient excuse"). (Brown's Leg. Max., 2d ed., 190.)

Since evil intent is in general an inseparable element in every crime, any such mistake of fact as
shows the act committed to have proceeded from no sort of evil in the mind necessarily relieves the
actor from criminal liability provided always there is no fault or negligence on his part; and as laid
down by Baron Parke, "The guilt of the accused must depend on the circumstances as they appear
to him." (Reg. vs. Thurborn, 1 Den. C., 387; P. vs. Anderson, 44 Cal.., 65; P. vs. Lamb, 54 Barb.,
342; Yates vs. P., 32 N. Y., 509; Patterson vs. P., 46 Barb., 625; Reg. vs. Cohen, 8 Cox C. C., 41;
P. vs. Miles, 55 Cal., 207, 209; Nalley vs. S., 28 Tex. Ap., 387.) That is to say, the question as to
whether he honestly, in good faith, and without fault or negligence fell into the mistake is to be
determined by the circumstances as they appeared to him at the time when the mistake was made,
and the effect which the surrounding circumstances might reasonably be expected to have on his
mind, in forming the intent, criminal or other wise, upon which he acted.

If, in language not uncommon in the cases, one has reasonable cause to believe the
existence of facts which will justify a killing — or, in terms more nicely in accord with the
principles on which the rule is founded, if without fault or carelessness he does believe them
— he is legally guiltless of the homicide; though he mistook the facts, and so the life of an
innocent person is unfortunately extinguished. In other words, and with reference to the right
of self-defense and the not quite harmonious authorities, it is the doctrine of reason and
sufficiently sustained in adjudication, that notwithstanding some decisions apparently
adverse, whenever a man undertakes self-defense, he is justified in acting on the facts as
they appear to him. If, without fault or carelessness, he is misled concerning them, and
defends himself correctly according to what he thus supposes the facts to be the law will not
punish him though they are in truth otherwise, and he was really no occassion for the
extreme measures. (Bishop's New Criminal Law, sec. 305, and large array of cases there
cited.)

The common illustration in the American and English textbooks of the application of this rule is the
case where a man, masked and disguised as a footpad, at night and on a lonely road, "holds up" his
friends in a spirit of mischief, and with leveled pistol demands his money or his life, but is killed by
his friend under the mistaken belief that the attack is a real one, that the pistol leveled at his head is
loaded, and that his life and property are in imminent danger at the hands of the aggressor. No one
will doubt that if the facts were such as the slayer believed them to be he would be innocent of the
commission of any crime and wholly exempt from criminal liability, although if he knew the real state
of the facts when he took the life of his friend he would undoubtedly be guilty of the crime of
homicide or assassination. Under such circumstances, proof of his innocent mistake of the facts
overcomes the presumption of malice or criminal intent, and (since malice or criminal intent is a
necessary ingredient of the "act punished by law" in cases of homicide or assassination) overcomes
at the same time the presumption established in article 1 of the code, that the "act punished by law"
was committed "voluntarily."

Parson, C.J., in the Massachusetts court, once said:

If the party killing had reasonable grounds for believing that the person slain had a felonious
design against him, and under that supposition killed him, although it should afterwards
appear that there was no such design, it will not be murder, but it will be either manslaughter
or excusable homicide, according to the degree of caution used and the probable grounds of
such belief. (Charge to the grand jury in Selfridge's case, Whart, Hom., 417, 418, Lloyd's
report of the case, p.7.)

In this case, Parker, J., charging the petit jury, enforced the doctrine as follows:

A, in the peaceable pursuit of his affairs, sees B rushing rapidly toward him, with an
outstretched arms and a pistol in his hand, and using violent menaces against his life as he
advances. Having approached near enough in the same attitude, A, who has a club in his
hand, strikes B over the head before or at the instant the pistol is discharged; and of the
wound B dies. It turns out the pistol was loaded with powder only, and that the real design of
B was only to terrify A. Will any reasonable man say that A is more criminal that he would
have been if there had been a bullet in the pistol? Those who hold such doctrine must
require that a man so attacked must, before he strikes the assailant, stop and ascertain how
the pistol is loaded — a doctrine which would entirely take away the essential right of self-
defense. And when it is considered that the jury who try the cause, and not the party killing,
are to judge of the reasonable grounds of his apprehension, no danger can be supposed to
flow from this principle. (Lloyd's Rep., p. 160.)

To the same effect are various decisions of the supreme court of Spain, cited by Viada, a few of
which are here set out in full because the facts are somewhat analogous to those in the case at bar.

QUESTION III. When it is shown that the accused was sitting at his hearth, at night, in
company only of his wife, without other light than reflected from the fire, and that the man
with his back to the door was attending to the fire, there suddenly entered a person whom he
did not see or know, who struck him one or two blows, producing a contusion on the
shoulder, because of which he turned, seized the person and took from his the stick with
which he had undoubtedly been struck, and gave the unknown person a blow, knocking him
to the floor, and afterwards striking him another blow on the head, leaving the unknown lying
on the floor, and left the house. It turned out the unknown person was his father-in-law, to
whom he rendered assistance as soon as he learned his identity, and who died in about six
days in consequence of cerebral congestion resulting from the blow. The accused, who
confessed the facts, had always sustained pleasant relations with his father-in-law, whom he
visited during his sickness, demonstrating great grief over the occurrence. Shall he be
considered free from criminal responsibility, as having acted in self-defense, with all the
circumstances related in paragraph 4, article 8, of the Penal Code? The criminal branch of
the Audiencia of Valladolid found that he was an illegal aggressor, without sufficient
provocation, and that there did not exists rational necessity for the employment of the force
used, and in accordance with articles 419 and 87 of the Penal Code condemned him to
twenty months of imprisonment, with accessory penalty and costs. Upon appeal by the
accused, he was acquitted by the supreme court, under the following sentence:
"Considering, from the facts found by the sentence to have been proven, that the accused
was surprised from behind, at night, in his house beside his wife who was nursing her child,
was attacked, struck, and beaten, without being able to distinguish with which they might
have executed their criminal intent, because of the there was no other than fire light in the
room, and considering that in such a situation and when the acts executed demonstrated
that they might endanger his existence, and possibly that of his wife and child, more
especially because his assailant was unknown, he should have defended himself, and in
doing so with the same stick with which he was attacked, he did not exceed the limits of self-
defense, nor did he use means which were not rationally necessary, particularly because the
instrument with which he killed was the one which he took from his assailant, and was
capable of producing death, and in the darkness of the house and the consteration which
naturally resulted from such strong aggression, it was not given him to known or distinguish
whether there was one or more assailants, nor the arms which they might bear, not that
which they might accomplish, and considering that the lower court did not find from the
accepted facts that there existed rational necessity for the means employed, and that it did
not apply paragraph 4 of article 8 of the Penal Code, it erred, etc." (Sentence of supreme
court of Spain, February 28, 1876.) (Viada, Vol. I, p. 266.) .

QUESTION XIX. A person returning, at night, to his house, which was situated in a retired
part of the city, upon arriving at a point where there was no light, heard the voice of a man, at
a distance of some 8 paces, saying: "Face down, hand over you money!" because of which,
and almost at the same money, he fired two shots from his pistol, distinguishing immediately
the voice of one of his friends (who had before simulated a different voice) saying, "Oh! they
have killed me," and hastening to his assistance, finding the body lying upon the ground, he
cried, "Miguel, Miguel, speak, for God's sake, or I am ruined," realizing that he had been the
victim of a joke, and not receiving a reply, and observing that his friend was a corpse, he
retired from the place. Shall he be declared exempt in toto from responsibility as the author
of this homicide, as having acted in just self-defense under the circumstances defined in
paragraph 4, article 8, Penal Code? The criminal branch of the Audiencia of Malaga did not
so find, but only found in favor of the accused two of the requisites of said article, but not that
of the reasonableness of the means employed to repel the attack, and, therefore,
condemned the accused to eight years and one day of prison mayor, etc. The supreme court
acquitted the accused on his appeal from this sentence, holding that the accused was acting
under a justifiable and excusable mistake of fact as to the identity of the person calling to
him, and that under the circumstances, the darkness and remoteness, etc., the means
employed were rational and the shooting justifiable. (Sentence supreme court, March 17,
1885.) (Viada, Vol. I, p. 136.)

QUESTION VI. The owner of a mill, situated in a remote spot, is awakened, at night, by a
large stone thrown against his window — at this, he puts his head out of the window and
inquires what is wanted, and is answered "the delivery of all of his money, otherwise his
house would be burned" — because of which, and observing in an alley adjacent to the mill
four individuals, one of whom addressed him with blasphemy, he fired his pistol at one the
men, who, on the next morning was found dead on the same spot. Shall this man be
declared exempt from criminal responsibility as having acted in just self-defense with all of
the requisites of law? The criminal branch of the requisites of law? The criminal branch of
the Audiencia of Zaragoza finds that there existed in favor of the accused a majority of the
requisites to exempt him from criminal responsibility, but not that of reasonable necessity for
the means, employed, and condemned the accused to twelve months of prision
correctional for the homicide committed. Upon appeal, the supreme court acquitted the
condemned, finding that the accused, in firing at the malefactors, who attack his mill at night
in a remote spot by threatening robbery and incendiarism, was acting in just self-defense of
his person, property, and family. (Sentence of May 23, 1877). (I Viada, p. 128.)
A careful examination of the facts as disclosed in the case at bar convinces us that the defendant
Chinaman struck the fatal blow alleged in the information in the firm belief that the intruder who
forced open the door of his sleeping room was a thief, from whose assault he was in imminent peril,
both of his life and of his property and of the property committed to his charge; that in view of all the
circumstances, as they must have presented themselves to the defendant at the time, he acted in
good faith, without malice, or criminal intent, in the belief that he was doing no more than exercising
his legitimate right of self-defense; that had the facts been as he believed them to be he would have
been wholly exempt from criminal liability on account of his act; and that he can not be said to have
been guilty of negligence or recklessness or even carelessness in falling into his mistake as to the
facts, or in the means adopted by him to defend himself from the imminent danger which he believe
threatened his person and his property and the property under his charge.

The judgment of conviction and the sentence imposed by the trial court should be reversed, and the
defendant acquitted of the crime with which he is charged and his bail bond exonerated, with the
costs of both instance de oficio. So ordered.
People v. Oanis, G.R. No. 47722, 27 July 1943, 74 Phil. 257

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. L-47722 July 27, 1943

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
ANTONIO Z. OANIS and ALBERTO GALANTA, defendants-appellants.

Antonio Z. Oanis in his own behalf.

Maximo L. Valenzuela for appellant Galanta.
Acting Solicitor-General Ibañez and Assistant Attorney Torres for appellee.

MORAN, J.:

Charged with the crime of murder of one Serapio Tecson, the accused Antonio Z. Oanis and Alberto
Galanta, chief of police of Cabanatuan and corporal of the Philippine Constabulary, respectively,
were, after due trial, found guilty by the lower court of homicide through reckless imprudence and
were sentenced each to an indeterminate penalty of from one year and six months to two years and
two months of prison correccional and to indemnify jointly and severally the heirs of the deceased in
the amount of P1,000. Defendants appealed separately from this judgment.

In the afternoon of December 24, 1938. Captain Godofredo Monsod, Constabulary Provincial
Inspector at Cabanatuan, Nueva Ecija, received from Major Guido a telegram of the following tenor:
"Information received escaped convict Anselmo Balagtas with bailarina and Irene in Cabanatuan get
him dead or alive." Captain Monsod accordingly called for his first sergeant and asked that he be
given four men. Defendant corporal Alberto Galanta, and privates Nicomedes Oralo, Venancio
Serna and D. Fernandez, upon order of their sergeant, reported at the office of the Provincial
Inspector where they were shown a copy of the above-quoted telegram and a newspaper clipping
containing a picture of Balagtas. They were instructed to arrest Balagtas and, if overpowered, to
follow the instruction contained in the telegram. The same instruction was given to the chief of police
Oanis who was likewise called by the Provincial Inspector. When the chief of police was asked
whether he knew one Irene, a bailarina, he answered that he knew one of loose morals of the same
name. Upon request of the Provincial Inspector, the chief of police tried to locate some of his men to
guide the constabulary soldiers in ascertaining Balagtas' whereabouts, and failing to see anyone of
them he volunteered to go with the party. The Provincial Inspector divided the party into two groups
with defendants Oanis and Galanta, and private Fernandez taking the route to Rizal street leading to
the house where Irene was supposedly living. When this group arrived at Irene's house, Oanis
approached one Brigida Mallare, who was then stripping banana stalks, and asked her where Irene's
room was. Brigida indicated the place and upon further inquiry also said that Irene was sleeping with
her paramour. Brigida trembling, immediately returned to her own room which was very near that
occupied by Irene and her paramour. Defendants Oanis and Galanta then went to the room of Irene,
and an seeing a man sleeping with his back towards the door where they were, simultaneously or
successively fired at him with their .32 and .45 caliber revolvers. Awakened by the gunshots, Irene
saw her paramour already wounded, and looking at the door where the shots came, she saw the
defendants still firing at him. Shocked by the entire scene. Irene fainted; it turned out later that the
person shot and killed was not the notorious criminal Anselmo Balagtas but a peaceful and innocent
citizen named Serapio Tecson, Irene's paramour. The Provincial Inspector, informed of the killing,
repaired to the scene and when he asked as to who killed the deceased. Galanta, referring to
himself and to Oanis, answered: "We two, sir." The corpse was thereafter brought to the provincial
hospital and upon autopsy by Dr. Ricardo de Castro, multiple gunshot wounds inflicted by a .32 and
a .45 caliber revolvers were found on Tecson's body which caused his death.

These are the facts as found by the trial court and fully supported by the evidence, particularly by the
testimony of Irene Requinea. Appellants gave, however, a different version of the tragedy. According
to Appellant Galanta, when he and chief of police Oanis arrived at the house, the latter asked Brigida
where Irene's room was. Brigida indicated the place, and upon further inquiry as to the whereabouts
of Anselmo Balagtas, she said that he too was sleeping in the same room. Oanis went to the room
thus indicated and upon opening the curtain covering the door, he said: "If you are Balagtas, stand
up." Tecson, the supposed Balagtas, and Irene woke up and as the former was about to sit up in
bed. Oanis fired at him. Wounded, Tecson leaned towards the door, and Oanis receded and
shouted: "That is Balagtas." Galanta then fired at Tecson.

On the other hand, Oanis testified that after he had opened the curtain covering the door and after
having said, "if you are Balagtas stand up." Galanta at once fired at Tecson, the supposed Balagtas,
while the latter was still lying on bed, and continued firing until he had exhausted his bullets: that it
was only thereafter that he, Oanis, entered the door and upon seeing the supposed Balagtas, who
was then apparently watching and picking up something from the floor, he fired at him.

The trial court refused to believe the appellants. Their testimonies are certainly incredible not only
because they are vitiated by a natural urge to exculpate themselves of the crime, but also because
they are materially contradictory. Oasis averred that be fired at Tecson when the latter was
apparently watching somebody in an attitudes of picking up something from the floor; on the other
hand, Galanta testified that Oasis shot Tecson while the latter was about to sit up in bed immediately
after he was awakened by a noise. Galanta testified that he fired at Tecson, the supposed Balagtas,
when the latter was rushing at him. But Oanis assured that when Galanta shot Tecson, the latter
was still lying on bed. It is apparent from these contradictions that when each of the appellants tries
to exculpate himself of the crime charged, he is at once belied by the other; but their mutual
incriminating averments dovetail with and corroborate substantially, the testimony of Irene Requinea.
It should be recalled that, according to Requinea, Tecson was still sleeping in bed when he was shot
to death by appellants. And this, to a certain extent, is confirmed by both appellants themselves in
their mutual recriminations. According, to Galanta, Oanis shot Tecson when the latter was still in bed
about to sit up just after he was awakened by a noise. And Oanis assured that when Galanta shot
Tecson, the latter was still lying in bed. Thus corroborated, and considering that the trial court had
the opportunity to observe her demeanor on the stand, we believe and so hold that no error was
committed in accepting her testimony and in rejecting the exculpatory pretensions of the two
appellants. Furthermore, a careful examination of Irene's testimony will show not only that her
version of the tragedy is not concocted but that it contains all indicia of veracity. In her cross-
examination, even misleading questions had been put which were unsuccessful, the witness having
stuck to the truth in every detail of the occurrence. Under these circumstances, we do not feel
ourselves justified in disturbing the findings of fact made by the trial court.

The true fact, therefore, of the case is that, while Tecson was sleeping in his room with his back
towards the door, Oanis and Galanta, on sight, fired at him simultaneously or successively, believing
him to be Anselmo Balagtas but without having made previously any reasonable inquiry as to his
identity. And the question is whether or not they may, upon such fact, be held responsible for the
death thus caused to Tecson. It is contended that, as appellants acted in innocent mistake of fact in
the honest performance of their official duties, both of them believing that Tecson was Balagtas, they
incur no criminal liability. Sustaining this theory in part, the lower court held and so declared them
guilty of the crime of homicide through reckless imprudence. We are of the opinion, however, that,
under the circumstances of the case, the crime committed by appellants is murder through specially
mitigated by circumstances to be mentioned below.

In support of the theory of non-liability by reasons of honest mistake of fact, appellants rely on the
case of U.S. v. Ah Chong, 15 Phil., 488. The maxim is ignorantia facti excusat, but this applies only
when the mistake is committed without fault or carelessness. In the Ah Chong case, defendant
therein after having gone to bed was awakened by someone trying to open the door. He called out
twice, "who is there," but received no answer. Fearing that the intruder was a robber, he leaped from
his bed and called out again., "If you enter the room I will kill you." But at that precise moment, he
was struck by a chair which had been placed against the door and believing that he was then being
attacked, he seized a kitchen knife and struck and fatally wounded the intruder who turned out to be
his room-mate. A common illustration of innocent mistake of fact is the case of a man who was
marked as a footpad at night and in a lonely road held up a friend in a spirit of mischief, and with
leveled, pistol demanded his money or life. He was killed by his friend under the mistaken belief that
the attack was real, that the pistol leveled at his head was loaded and that his life and property were
in imminent danger at the hands of the aggressor. In these instances, there is an innocent mistake of
fact committed without any fault or carelessness because the accused, having no time or opportunity
to make a further inquiry, and being pressed by circumstances to act immediately, had no alternative
but to take the facts as they then appeared to him, and such facts justified his act of killing. In the
instant case, appellants, unlike the accused in the instances cited, found no circumstances
whatsoever which would press them to immediate action. The person in the room being then asleep,
appellants had ample time and opportunity to ascertain his identity without hazard to themselves,
and could even effect a bloodless arrest if any reasonable effort to that end had been made, as the
victim was unarmed, according to Irene Requinea. This, indeed, is the only legitimate course of
action for appellants to follow even if the victim was really Balagtas, as they were instructed not to
kill Balagtas at sight but to arrest him, and to get him dead or alive only if resistance or aggression is
offered by him.

Although an officer in making a lawful arrest is justified in using such force as is reasonably
necessary to secure and detain the offender, overcome his resistance, prevent his escape,
recapture him if he escapes, and protect himself from bodily harm (People vs. Delima, 46 Phil, 738),
yet he is never justified in using unnecessary force or in treating him with wanton violence, or in
resorting to dangerous means when the arrest could be effected otherwise (6 C.J.S., par. 13, p.
612). The doctrine is restated in the new Rules of Court thus: "No unnecessary or unreasonable
force shall be used in making an arrest, and the person arrested shall not be subject to any greater
restraint than is necessary for his detention." (Rule 109, sec. 2, par. 2). And a peace officer cannot
claim exemption from criminal liability if he uses unnecessary force or violence in making an arrest
(5 C.J., p. 753; U.S. vs. Mendoza, 2 Phil., 109). It may be true that Anselmo Balagtas was a
notorious criminal, a life-termer, a fugitive from justice and a menace to the peace of the community,
but these facts alone constitute no justification for killing him when in effecting his arrest, he offers no
resistance or in fact no resistance can be offered, as when he is asleep. This, in effect, is the
principle laid down, although upon different facts, in U.S. vs. Donoso (3 Phil., 234, 242).

It is, however, suggested that a notorious criminal "must be taken by storm" without regard to his
right to life which he has by such notoriety already forfeited. We may approve of this standard of
official conduct where the criminal offers resistance or does something which places his captors in
danger of imminent attack. Otherwise we cannot see how, as in the present case, the mere fact of
notoriety can make the life of a criminal a mere trifle in the hands of the officers of the law. Notoriety
rightly supplies a basis for redoubled official alertness and vigilance; it never can justify precipitate
action at the cost of human life. Where, as here, the precipitate action of the appellants has cost an
innocent life and there exist no circumstances whatsoever to warrant action of such character in the
mind of a reasonably prudent man, condemnation — not condonation — should be the rule;
otherwise we should offer a premium to crime in the shelter of official actuation.
The crime committed by appellants is not merely criminal negligence, the killing being intentional and
not accidental. In criminal negligence, the injury caused to another should be unintentional, it being
simply the incident of another act performed without malice. (People vs. Sara, 55 Phil., 939). In the
words of Viada, "para que se celifique un hecho de imprudencia es preciso que no haya mediado en
el malicia ni intencion alguna de dañar; existiendo esa intencion, debera calificarse el hecho del
delito que ha producido, por mas que no haya sido la intencion del agente el causar un mal de tanta
gravedad como el que se produjo." (Tomo 7, Viada Codigo Penal Comentado, 5.a ed. pag. 7). And,
as once held by this Court, a deliberate intent to do an unlawful act is essentially inconsistent with
the idea of reckless imprudence (People vs. Nanquil, 43 Phil., 232; People vs. Bindor, 56 Phil., 16),
and where such unlawful act is wilfully done, a mistake in the identity of the intended victim cannot
be considered as reckless imprudence (People vs. Gona, 54 Phil., 605) to support a plea of
mitigated liability.

As the deceased was killed while asleep, the crime committed is murder with the qualifying
circumstance of alevosia. There is, however, a mitigating circumstance of weight consisting in the
incomplete justifying circumstance defined in article 11, No. 5, of the Revised Penal Code. According
to such legal provision, a person incurs no criminal liability when he acts in the fulfillment of a duty or
in the lawful exercise of a right or office. There are two requisites in order that the circumstance may
be taken as a justifying one: (a) that the offender acted in the performance of a duty or in the lawful
exercise of a right; and (b) that the injury or offense committed be the necessary consequence of the
due performance of such duty or the lawful exercise of such right or office. In the instance case, only
the first requisite is present — appellants have acted in the performance of a duty. The second
requisite is wanting for the crime by them committed is not the necessary consequence of a due
performance of their duty. Their duty was to arrest Balagtas or to get him dead or alive if resistance
is offered by him and they are overpowered. But through impatience or over-anxiety or in their desire
to take no chances, they have exceeded in the fulfillment of such duty by killing the person whom
they believed to be Balagtas without any resistance from him and without making any previous
inquiry as to his identity. According to article 69 of the Revised Penal Code, the penalty lower by one
or two degrees than that prescribed by law shall, in such case, be imposed.

For all the foregoing, the judgment is modified and appellants are hereby declared guilty of murder
with the mitigating circumstance above mentioned, and accordingly sentenced to an indeterminate
penalty of from five (5) years of prision correctional to fifteen (15) years of reclusion temporal, with
the accessories of the law, and to pay the heirs of the deceased Serapio Tecson jointly and severally
an indemnity of P2,000, with costs.
Padilla v. Dizon, AC No. 3086, 23 February 1988, 158 SCRA 127

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

Adm. Case No. 3086 February 23, 1988

ALEXANDER PADILLA, complainant,

vs.
THE HON. BALTAZAR R. DIZON, Presiding Judge of the Regional Trial Court of Pasay City
Branch 113, respondent.

RESOLUTION

PER CURIAM:

This is an administrative complaint, dated August 6, 1987, filed by the then Commissioner of
Customs, Alexander Padilla, against respondent Baltazar R. Dizon, RTC Judge, Branch 115, Pasay
City, for rendering a manifestly erroneous decision due, at the very least, to gross incompetence and
gross ignorance of the law, in Criminal Case No. 86- 10126-P, entitled "People of the Philippines vs.
Lo Chi Fai", acquitting said accused of the offense charged, i.e., smuggling of foreign currency out of
the country.

Required by the Court to answer the complaint, the respondent judge filed an Answer, dated
October 6, 1987, reciting his "commendable record as a fearless prosecutor" since his appointment
as Assistant City Fiscal of Manila on December 4, 1962, until his appointment eventually as RTC
Judge on February 18, 1983; that at in the reorganization of the judiciary after the February 26, 1986
revolution, he was reappointed to his present position; that his length of service as prosecutor and
judge is "tangible proof that would negate the allegations of the petitioner" (should be complainant),
whereas the latter did not last long in the service for reasons only known to him; that the decision
involved in the complaint was promulgated by respondent on September 29, 1986, but the complaint
against him was filed only on August 6, 1987, a clear indication of malice and ill-will of the
complainant to subject respondent to harassment, humiliation and vindictiveness; that his decision,
of which he submits a copy (Annex A) as part of his Answer, is based on "fundamental principles
and the foundation of rights and justice" and that if there are mistakes or errors in the questioned
decision, they are committed in good faith. Accordingly, respondent prays for the dismissal of the
petition (should be complaint).

The issue before the Court is whether or not the respondent judge is guilty of gross incompetence or
gross ignorance of the law in rendering the decision in question. A judge can not be held to account
or answer, criminally, civilly or administratively, for an erroneous decision rendered by him in good
faith.

The case in which the respondent rendered a decision of acquittal involved a tourist, Lo Chi Fai, who
was caught by a Customs guard at the Manila International Airport while attempting to smuggle
foreign currency and foreign exchange instruments out of the country. Lo Chi Fai, was apprehended
by a customs guard and two PAFSECOM officers on July 9, 1986, while on board Flight PR 300 of
the Philippine Air Lines bound for Hongkong. At the time of his apprehension, he was found carrying
with him foreign currency and foreign exchange instruments (380 pieces) amounting to US$
355,349.57, in various currency denominations, to wit: Japanese Yen, Swiss Franc, Australian
Dollar, Singapore Dollar, HFL Guilder, French Franc, U.S. Dollar, English Pound, Malaysian Dollar,
Deutsche Mark, Canadian Dollar and Hongkong Dollar, without any authority as provided by law. At
the time the accused was apprehended, he was able to exhibit two currency declarations which he
was supposed to have accomplished upon his arrival in Manila in previous trips, namely, CB
Currency Declaration No. 05048, dated May 4, 1986 for US$39,600.00 and Japanese Yen
4,000,000.00, and CB Currency Declaration No. 06346, dated June 29, 1986 for Japanese Yen
6,600,000.00.

An information was filed against Lo Chi Fai, with the RTC of Pasay City for violation of Sec. 6,
Central Bank Circular No. 960, as follows:

That on or about the 9th day of July, 1986, in the City of Pasay, Metro Manila,
Philippines and within the jurisdiction of this Honorable Court, the above-named
accused, Mr. LO CHI FAI, did then and there wilfully, unlawfully and feloniously
attempt to take out of the Philippines through the Manila International Airport the
following foreign currencies in cash and in checks:

Japanese Yen Y 32,800,000.00

Swiss Franc SW. FR 6,9000.00

Australian Dollar A$ 17,425.00

Singapore Dollar S$ 9,945.00

Deutsche Marck DM 18,595.00

Canadian Dollar CS 13,330.00

Hongkong Dollar HK$ 15,630.00

HFL Guilder HFL 430.00

French Franc F/6,860.00

US Dollar US$ 73,950.00

English Pound 5,318.00

Malaysian Dollar M$. 14,760.00

(in checks)

Australian Dollar A$ 7,750.00

British Pound 700.00

US Dollar US$ 17,630.00

Canadian Dollar C$ 990.00

 without authority from the Central Bank.

Contrary to Law.

The case, which was docketed as Criminal Case No. 86-10126-P, was subsequently raffled to
Branch 113, presided by herein respondent Judge Baltazar A. Dizon.

Section 6 of Circular No. 960 of the Central Bank provides as follows:

Sec. 6. Export, import of foreign exchange; exceptions. — No person shall take out
or transmit or attempt to take out or transmit foreign exchange in any form, out of the
Philippines directly, through other persons, through the mails or through international
carriers except when specifically authorized by the Central Bank or allowed under
existing international agreements or Central Bank regulations.

Tourists and non-resident visitors may take out or send out from the Philippine
foreign exchange in amounts not exceeding such amounts of foreign exchange
brought in by them. For purposes of establishing the amount of foreign exchange
brought in or out of the Philippines, tourists and non-resident temporary visitors
bringing with them more than US$3,000.00 or its equivalent in other foreign
currencies shall declare their foreign exchange in the form prescribed by the Central
Bank at points of entries upon arrival in the Philippines.

The penal sanction is provided by Section 1, P.D. No. 1883, which reads as follows:

Section 1. Blackmarketing of Foreign Exchange .— That any person who shall

engage in the trading or purchase and sale of foreign currency in violation of existing
laws or rules and regulations of the Central Bank shall be guilty of the crime of
blackmarketing of foreign exchange and shall suffer the penalty of reclusion
temporal, (minimum of 12 years and I day and maximum of 20 years) and a fine of
no less than fifty thousand (P50,000.00) Pesos.

At the trial, the accused tried to establish that he was a businessman from Kowloon, Hongkong,
engaged in the garment business, in which he had invested 4 to 5 million Hongkong Dollars; that he
had come to the Philippines 9 to 1 0 times, although the only dates he could remember were April 2,
1986, May 4, 1986, June 28,1986, and July 8, 1986; that the reason for his coming to the Philippines
was to invest in business in the Philippines and also to play in the casino; that he had a group of
business associates who decided to invest in business with him, namely: Wakita Noboyuki,
Kobayashi Nabuo, Lee Shiang Pin, Lee Chin and Cze Kai Kwan, who had their own businesses in
Japan and Hongkong; that when he came to the Philippines on April 2,1986, he brought
US$50,000.00 and 8,500,000.00 Japanese Yen which he tried to declare but the Central Bank
representative refused to accept his declaration, until he could get a confirmation as to the source of
the money, for which reason he contacted his bank in Hongkong and a telex was sent to him on April
3,1986 (Exh. 4). He also brought in with him US$39,000.00 and 4,000,000.00 Japanese Yen when
he arrived on May 4,1986 which he declared (Exh. 1). Again, he declared 8,600,000.00 Japanese
Yen when he arrived on June 28, 1986 (Exh. 2). He also testified that his business associates, as
per their agreement to invest in some business with him in the Philippines, started putting their
money for this purpose in a common fund, hence, every time anyone of them came to the
Philippines, they would declare the money they were bringing in, and all declarations were handed to
and kept by him; these currency declarations were presented at the trial as exhibits for the defense.
When asked by the court why he did not present all of these declarations when he was apprehended
at the airport, his answer was that he was not asked to present the declaration papers of his
associates, and besides, he does not understand English and he was not told to do so. He also
testified on cross-examination that the reason he was going back to Hongkong bringing with him all
the money intended to be invested in the Philippines was because of the fear of his group that the
"revolution" taking place in Manila might become widespread. It was because of this fear that he was
urged by his associates to come to Manila on July 8, 1986 to bring the money out of the Philippines.

The respondent judge, in his decision acquitting the accused, stated:

The factual issue for this Court to determine is whether or not the accused wilfully
violated Section 6 of Circular No. 960. The fact that the accused had in his
possession the foreign currencies when he was about to depart from the Philippines
did not by that act alone make him liable for Violation of Section 6.

What is imperative is the purpose for which the act of bringing foreign currencies out
of the country was done the very intention. It is that which qualifies the act as criminal
or not. There must be that clear intention to violate and benefit from the act done.
Intent is a mental state, the existence of which is shown by overt acts of a person.

The respondent proceeded to analyze the evidence which, according to him, tended to show that the
accused had no wilfull intention to violate the law. According to the respondent in his decision:

... this Court is persuaded to accept the explanation of the defense that the
currencies confiscated and/or seized from the accused belong to him and his
business associates abovenamed. And from the unwavering and unequivocal
testimonies of Mr. Templo and all of currencies in question came from abroad and
not from the local source which is what is being prohibited by the government. Yes,
simply reading the provisions of said circular will, readily show that the currency
declaration is required for the purpose of establishing the amount of currency being
brought by tourist or temporary non-resident visitors into the country. The currency
declarations, therefore, is already (sic) intended to serve as a guideline for the
Customs authorities to determine the amounts actually brought in by them to
correspond to the amounts that could be allowed to be taken out. Indeed, this Court
is amazed and really has its misgivings in the manner currency declarations were
made as testified to by the Central Bank employees. Why the Bureau of Customs
representative never took part in all these declarations testified to by no less than five
(5) Central Bank employees? Seemingly, these employees are the favorites of these
travellers. It is the hope of this Court that the authorities must do something to
remedy the evident flaw in the system for effective implementation of the questioned
Central Bank Circular No. 960.

But even with a doubtful mind this Court would not be able to pin criminal
responsibility on the accused. This is due to its steadfast adherence and devotion to
the rule of law-a factor in restoring the almost lost faith and erosion of confidence of
the people in the administration of justice. Courts of Justice are guided only by the
rule of evidence.

The respondent-judge has shown gross incompetence or gross ignorance of the law in holding that
to convict the accused for violation of Central Bank Circular No. 960, the prosecution must establish
that the accused had the criminal intent to violate the law. The respondent ought to know that proof
of malice or deliberate intent (mens rea) is not essential in offenses punished by special laws, which
are mala prohibita. In requiring proof of malice, the respondent has by his gross ignorance allowed
the accused to go scot free. The accused at the time of his apprehension at the Manila International
Airport had in his possession the amount of US$355,349.57 in assorted foreign currencies and
foreign exchange instruments (380 pieces), without any specific authority from the Central Bank as
required by law. At the time of his apprehension, he was able to exhibit only two foreign currency
declarations in his possession. These were old declarations made by him on the occasion of his
previous trips to the Philippines.

Although lack of malice or wilfull intent is not a valid defense in a case for violation of Central Bank
Circular No. 960, the respondent nonetheless chose to exonerate the accused based on his defense
that the foreign currency he was bringing out of the country at the time he was apprehended by the
customs authorities were brought into the Philippines by him and his alleged business associates on
several previous occasions when they came to the Philippines, supposedly to be used for the
purpose of investing in some unspecified or undetermined business ventures; that this money was
kept in the Philippines and he precisely came to the Philippines to take the money out as he and his
alleged business associates were afraid that the "attempted revolution" which occurred on July
6,1986 might spread. Such fantastic tale, although totally irrelevant to the matter of the criminal
liability of the accused under the information, was swallowed by the respondent-judge "hook, line
and sinker." It did not matter to the respondent that the foreign currency and foreign currency
instruments found in the possession of the accused when he was apprehended at the airport-380
pieces in all-and the amounts of such foreign exchange did not correspond to the foreign currency
declarations presented by the accused at the trial. It did not matter to the respondent that the
accused by his own story admitted, in effect, that he was a carrier" of foreign currency for other
people. The respondent closed his eyes to the fact that the very substantial amounts of foreign
exchange found in the possession of the accused at the time of his apprehension consisted of
personal checks of other people, as well as cash in various currency denominations (12 kinds of
currency in all), which clearly belied the claim of the accused that they were part of the funds which
he and his supposed associates had brought in and kept in the Philippines for the purpose of
investing in some business ventures. The respondent ignored the fact that most of the CB Currency
declarations presented by the defense at the trial were declarations belonging to other people which
could not be utilized by the accused to justify his having the foreign exchange in his possession.
Although contrary to ordinary human experience and behavior, the respondent judge chose to give
credence to the fantastic tale of the accused that he and his alleged business associates had
brought in from time to time and accumulated and kept in the Philippines foreign exchange (of very
substantial amounts in cash and checks in various foreign currency denominations) for the purpose
of investing in business even before they knew and had come to an agreement as to the specific
business venture in which they were going to invest. These and other circumstances which make the
story concocted by the accused so palpably unbelievable as to render the findings of the respondent
judge obviously contrived to favor the acquittal of the accused, thereby clearly negating his claim
that he rendered the decision "in good faith." His actuations in this case amount to grave misconduct
prejudicial to the interest of sound and fair administration of justice.

He not only acquitted the accused Lo Chi Fai, but directed in his decision the release to the accused
of at least the amount of US$3,000.00, allowed, according to respondent, under Central Bank
Circular No. 960. This, in spite of the fact that forfeiture proceedings had already been instituted by
the Bureau of Customs over the currency listed in the information, which according to the
respondent should be respected since the Bureau of Customs "has the exclusive jurisdiction in the
matter of seizure and forfeiture of the property involved in the alleged infringements of the aforesaid
Central Bank Circular." In invoking the provisions of CB Circular No. 960 to justify the release of US$
3,000.00 to the accused, the respondent judge again displayed gross incompetence and gross
ignorance of the law. There is nothing in the said CB Circular which could be taken as authority for
the trial court to release the said amount of U.S. Currency to the accused. According to the above-
cited CB Circular, tourists may take out or send out from the Philippines foreign exchange in
amounts not exceeding such amounts of foreign exchange brought in by them; for the purpose of
establishing such amount, tourists or non-resident temporary visitors bringing with them more than
US$3,000.00 or its equivalent in other foreign currencies must declare their foreign exchange at
points of entries upon arrival in the Philippines. In other words, CB Circular No. 960 merely provides
that for the purpose of establishing the amount of foreign currency brought in or out of the
Philippines, a tourist upon arrival is required to declare any foreign exchange he is bringing in at the
time of his arrival, if the same exceeds the amount of US$3,000.00 or its equivalent in other foreign
currencies. There is nothing in said circular that would justify returning to him the amount of at least
US$3,000.00, if he is caught attempting to bring out foreign exchange in excess of said amount
without specific authority from the Central Bank.

Accordingly, the Court finds the respondent Regional Trial Court Judge, Baltazar R. Dizon, guilty of
gross incompetence, gross ignorance of the law and grave and serious misconduct affecting his
integrity and efficiency, and consistent with the responsibility of this Court for the just and proper
administration of justice and for the attainment of the objective of maintaining the people's faith in the
judiciary (People vs. Valenzuela, 135 SCRA 712), it is hereby ordered that the Respondent Judge be
DISMISSED from the service. All leave and retirement benefits and privileges to which he may be
entitled are hereby forfeited with prejudice to his being reinstated in any branch of government
service, including government-owned and/or controlled agencies or corporations.

This resolution is immediately executory.

SO ORDERED.
Magno v. CA, G.R. No. 96132, 26 June 1992, 210 SCRA 475

Republic of the Philippines

SUPREME COURT
Manila

SECOND DIVISION

G.R. No. 96132 June 26, 1992

ORIEL MAGNO, petitioner,

vs.
HONORABLE COURT OF APPEALS and PEOPLE OF THE PHILIPPINES, respondents.

PARAS, J.:

This is an appeal by certiorari under Rule 45 of the Revised Rules of Court, from the decision* of the
respondent Court of Appeals which affirmed in toto the decision of the Regional Trial Court of
Quezon City, Branch 104 finding the accused petitioner, guilty of violations of Batas Pambansa Blg.
22, in Criminal Cases Q-35693 to 35696 before they were elevated on appeal to the respondent
appellate Court under CA-G.R. CR No. 04889.

The antecedent facts and circumstances of the four (4) counts of the offense charged, have been
clearly illustrated, in the Comment of the Office of the Solicitor General as official counsel for the
public respondent, thus:

Petitioner was in the process of putting up a car repair shop sometime in April 1983, but a did not
have complete equipment that could make his venture workable. He also had another problem, and
that while he was going into this entrepreneurship, he lacked funds with which to purchase the
necessary equipment to make such business operational. Thus, petitioner, representing Ultra
Sources International Corporation, approached Corazon Teng, (private complainant) Vice President
of Mancor Industries (hereinafter referred to as Mancor) for his needed car repair service equipment
of which Mancor was a distributor, (Rollo, pp. 40-41)

Having been approached by petitioner on his predicament, who fully bared that he had no sufficient
funds to buy the equipment needed, the former (Corazon Teng) referred Magno to LS Finance and
Management Corporation (LB Finance for brevity) advising its Vice-President, Joey Gomez, that
Mancor was willing and able to supply the pieces of equipment needed if LS Finance could
accommodate petitioner and provide him credit facilities. (Ibid., P. 41)

The arrangement went through on condition that petitioner has to put up a warranty deposit
equivalent to thirty per centum (30%) of the total value of the pieces of equipment to be purchased,
amounting to P29,790.00. Since petitioner could not come up with such amount, he requested Joey
Gomez on a personal level to look for a third party who could lend him the equivalent amount of the
warranty deposit, however, unknown to petitioner, it was Corazon Teng who advanced the deposit in
question, on condition that the same would be paid as a short term loan at 3% interest (Ibid., P. 41)
The specific provision in the Leasing Agreement, reads:

1.1. WARRANTY DEPOSIT — Before or upon delivery of each item of Equipment,

the Lessee shall deposit with the Lessor such sum or sums specified in Schedule A
to serve as security for the faithful performance of its obligations.

This deposit shall be refunded to the Lessee upon the satisfactory completion of the
entire period of Lease, subject to the conditions of clause 1.12 of this Article. (Ibid., p.
17)

As part of the arrangement, petitioner and LS Finance entered into a leasing agreement whereby LS
Finance would lease the garage equipments and petitioner would pay the corresponding rent with
the option to buy the same. After the documentation was completed, the equipment were delivered
to petitioner who in turn issued a postdated check and gave it to Joey Gomez who, unknown to the
petitioner, delivered the same to Corazon Teng. When the check matured, Petitioner requested
through Joey Gomez not to deposit the check as he (Magno) was no longer banking with Pacific
Bank.

To replace the first check issued, petitioner issued another set of six (6) postdated checks. Two (2)
checks dated July 29, 1983 were deposited and cleared while the four (4) others, which were the
subject of the four counts of the aforestated charges subject of the petition, were held momentarily
by Corazon Teng, on the request of Magno as they were not covered with sufficient funds. These
checks were a) Piso Bank Check Nos. 006858, dated August 15, 1983, 006859 dated August 28,
1983 and 006860 dated September 15, 1983, all in the amount of P5,038.43 and No. 006861 dated
September 28, 1983, in the amount of P10,076.87. (Ibid., pp. 42 & 43).

Subsequently, petitioner could not pay LS Finance the monthly rentals, thus it pulled out the garage
equipments. It was then on this occasion that petitioner became aware that Corazon Teng was the
one who advanced the warranty deposit. Petitioner with his wife went to see Corazon Teng and
promised to pay the latter but the payment never came and when the four (4) checks were deposited
they were returned for the reason "account closed." (Ibid., p. 43)

After joint trial before the Regional Trial Court of Quezon City, Branch 104, the accused-petitioner
was convicted for violations of BP Blg. 22 on the four (4) cases, as follows:

. . . finding the accused-appellant guilty beyond reasonable doubt of the offense of

violations of B.P. Blg. 22 and sentencing the accused to imprisonment for one year in
each Criminal Case Nos. Q-35693, Q-35695 and Q-35696 and to pay to complainant
the respective amounts reflected in subject checks. (Ibid., pp. 25, 27)

Reviewing the above and the affirmation of the above-stated decision of the court a quo, this Court is
intrigued about the outcome of the checks subject of the cases which were intended by the parties,
the petitioner on the one hand and the private complainant on the other, to cover the "warranty
deposit" equivalent to the 30% requirement of the financing company. Corazon Teng is one of the
officers of Mancor, the supplier of the equipment subject of the Leasing Agreement subject of the
high financing scheme undertaken by the petitioner as lessee of the repair service equipment, which
was arranged at the instance of Mrs. Teng from the very beginning of the transaction.

By the nature of the "warranty deposit" amounting to P29,790.00 corresponding to 30% of the
"purchase/lease" value of the equipments subject of the transaction, it is obvious that the "cash out"
made by Mrs. Teng was not used by petitioner who was just paying rentals for the equipment. It
would have been different if petitioner opted to purchase the pieces of equipment on or about the
termination of the lease-purchase agreement in which case he had to pay the additional amount of
the warranty deposit which should have formed part of the purchase price. As the transaction did not
ripen into a purchase, but remained a lease with rentals being paid for the loaned equipment, which
were pulled out by the Lessor (Mancor) when the petitioner failed to continue paying possibly due to
economic constraints or business failure, then it is lawful and just that the warranty deposit should
not be charged against the petitioner.

To charge the petitioner for the refund of a "warranty deposit" which he did not withdraw as it was
not his own account, it having remained with LS Finance, is to even make him pay an unjust "debt",
to say the least, since petitioner did not receive the amount in question. All the while, said amount
was in the safekeeping of the financing company, which is managed, supervised and operated by
the corporation officials and employees of LS Finance. Petitioner did not even know that the checks
he issued were turned over by Joey Gomez to Mrs. Teng, whose operation was kept from his
knowledge on her instruction. This fact alone evoke suspicion that the transaction is irregular and
immoral per se, hence, she specifically requested Gomez not to divulge the source of the "warranty
deposit".

It is intriguing to realize that Mrs. Teng did not want the petitioner to know that it was she who
"accommodated" petitioner's request for Joey Gomez, to source out the needed funds for the
"warranty deposit". Thus it unfolds the kind of transaction that is shrouded with mystery, gimmickry
and doubtful legality. It is in simple language, a scheme whereby Mrs. Teng as the supplier of the
equipment in the name of her corporation, Mancor, would be able to "sell or lease" its goods as in
this case, and at the same time, privately financing those who desperately need petty
accommodations as this one. This modus operandi has in so many instances victimized
unsuspecting businessmen, who likewise need protection from the law, by availing of the deceptively
called "warranty deposit" not realizing that they also fall prey to leasing equipment under the guise of
a lease-purchase agreement when it is a scheme designed to skim off business clients.

This maneuvering has serious implications especially with respect to the threat of the penal sanction
of the law in issue, as in this case. And, with a willing court system to apply the full harshness of the
special law in question, using the "mala prohibitia" doctrine, the noble objective of the law is tainted
with materialism and opportunism in the highest, degree.

This angle is bolstered by the fact that since the petitioner or lessee referred to above in the lease
agreement knew that the amount of P29,790.00 subject of the cases, were mere accommodation-
arrangements with somebody thru Joey Gomez, petitioner did not even attempt to secure the refund
of said amount from LS Finance, notwithstanding the agreement provision to the contrary. To argue
that after the termination of the lease agreement, the warranty deposit should be refundable in full to
Mrs. Teng by petitioner when he did not cash out the "warranty deposit" for his official or personal
use, is to stretch the nicety of the alleged law (B.P. No, 22) violated.

For all intents and purposes, the law was devised to safeguard the interest of the banking system
and the legitimate public checking account user. It did not intend to shelter or favor nor encourage
users of the system to enrich themselves through manipulations and circumvention of the noble
purpose and objective of the law. Least should it be used also as a means of jeopardizing honest-to-
goodness transactions with some color of "get-rich" scheme to the prejudice of well-meaning
businessmen who are the pillars of society.

Under the utilitarian theory, the "protective theory" in criminal law, "affirms that the primary function
of punishment is the protective (sic) of society against actual and potential wrongdoers." It is not
clear whether petitioner could be considered as having actually committed the wrong sought to be
punished in the offense charged, but on the other hand, it can be safely said that the actuations of
Mrs. Carolina Teng amount to that of potential wrongdoers whose operations should also be clipped
at some point in time in order that the unwary public will not be failing prey to such a vicious
transaction (Aquino, The Revised Penal Code, 1987 Edition, Vol. I, P. 11)

Corollary to the above view, is the application of the theory that "criminal law is founded upon that
moral disapprobation . . . of actions which are immoral, i.e., which are detrimental (or dangerous) to
those conditions upon which depend the existence and progress of human society. This
disappropriation is inevitable to the extent that morality is generally founded and built upon a certain
concurrence in the moral opinions of all. . . . That which we call punishment is only an external
means of emphasizing moral disapprobation the method of punishment is in reality the amount of
punishment," (Ibid., P. 11, citing People v. Roldan Zaballero, CA 54 O.G. 6904, Note also Justice
Pablo's view in People v. Piosca and Peremne, 86 Phil. 31).

Thus, it behooves upon a court of law that in applying the punishment imposed upon the accused,
the objective of retribution of a wronged society, should be directed against the "actual and potential
wrongdoers." In the instant case, there is no doubt that petitioner's four (4) checks were used to
collateralize an accommodation, and not to cover the receipt of an actual "account or credit for
value" as this was absent, and therefore petitioner should not be punished for mere issuance of the
checks in question. Following the aforecited theory, in petitioner's stead the "potential wrongdoer",
whose operation could be a menace to society, should not be glorified by convicting the petitioner.

While in case of doubt, the case should have been resolved in favor of the accused, however, by the
open admission of the appellate court below, oven when the ultimate beneficiary of the "warranty
deposit" is of doubtful certainty, the accused was convicted, as shown below:

Nor do We see any merit in appellant's claim that the obligation of the accused to
complainant had been extinguished by the termination of the leasing agreement —
by the terms of which the warranty deposit advanced by complainant was refundable
to the accused as lessee — and that as the lessor L.S. Finance neither made any
liquidation of said amount nor returned the same to the accused, it may he assumed
that the amount was already returned to the complainant. For these allegations, even
if true, do not change the fact, admitted by appellant and established by the
evidence, that the four checks were originally issued on account or for value. And as
We have already observed, in order that there may be a conviction under the from
paragraph of Section 2 of B.P. Blg 22 — with respect to the element of said offense
that the check should have been made and issued on account or for value — it is
sufficient, all the other elements of the offense being present, that the check must
have been drawn and issued in payment of an obligation.

Moreover, even granting, arguendo, that the extinguishment, after the issuance of
the checks, of the obligation in consideration of which the checks were issued, would
have resulted in placing the case at bar beyond the purview of the prohibition in
Section 1 of BP Blg. 22, there is no satisfactory proof that there was such an
extinguishment in the present case. Appellee aptly points out that appellant had not
adduced any direct evidence to prove that the amount advanced by the complainant
to cover the warranty deposit must already have been returned to her. (Rollo, p. 30)

It is indubitable that the respondent Court of Appeals even disregarded the cardinal rule that the
accused is presumed innocent until proven guilty beyond reasonable doubt. On the contrary, the
same court even expected the petitioner-appellant to adduce evidence to show that he was not guilty
of the crime charged. But how can be produce documents showing that the warranty deposit has
already been taken back by Mrs. Teng when she is an officer of Mancor which has interest in the
transaction, besides being personally interested in the profit of her side-line. Thus, even if she may
have gotten back the value of the accommodation, she would still pursue collecting from the
petitioner since she had in her possession the checks that "bounced".

That the court a quo merely relied on the law, without looking into the real nature of the warranty
deposit is evident from the following pronouncement:

And the trail court concluded that there is no question that the accused violated BP
Blg. 22, which is a special statutory law, violations of which are mala prohibita. The
court relied on the rule that in cases ofmala prohibita, the only inquiry is whether or
not the law had been violated, proof of criminal intent not being necessary for the
conviction of the accused, the acts being prohibited for reasons of public policy and
the defenses of good faith and absence of criminal intent being unavailing in
prosecutions for said offenses." (Ibid., p. 26)

The crux of the matter rests upon the reason for the drawing of the postdated checks by the
petitioner, i.e., whether they were drawn or issued "to apply on account or for value", as required
under Section 1 of B.P. Blg, 22. When viewed against the following definitions of the catch-terms
"warranty" and "deposit", for which the postdated checks were issued or drawn, all the more, the
alleged crime could not have been committed by petitioner:

a) Warranty — A promise that a proposition of fact is true. A promise that certain

facts are truly as they are represented to be and that they will remain so: . . . (Black's
Law Dictionary, Fifth Edition, (1979) p. 1423)

A cross-reference to the following term shows:

Fitness for Particular Purpose: —

Where the seller at the time of contracting has reason to know any particular purpose
for which the goods are required and that the buyer is relying on the seller's skill or
judgment to select or furnish suitable goods, there is, unless excluded or modified,
an implied warranty that the goods shall be fit for such purpose, (Ibid., p. 573)

b) Deposit: — Money lodged with a person as an earnest or security for the

performance of some contract, to be forfeited if the depositor fails in his undertaking.
It may be deemed to be part payment and to that extent may constitute the
purchaser the actual owner of the estate.

To commit to custody, or to lay down; to place; to put. To lodge for safe- keeping or
as a pledge to intrust to the care of another.

The act of placing money in the custody of a bank or banker, for safety or
convenience, to be withdrawn at the will of the depositor or under rules and
regulations agreed on. Also, the money so deposited, or the credit which the
depositor receives for it. Deposit, according to its commonly accepted and generally
understood among bankers and by the public, includes not only deposits payable on
demand and for which certificates, whether interest-bearing or not, may be issued,
payable on demand, or on certain notice or at a fixed future time. (Ibid., pp. 394-395)
Furthermore, the element of "knowing at the time of issue that he does not have sufficient funds in or
credit with the drawee bank for the payment of such check in full upon its presentment, which check
is subsequently dishonored by the drawee bank for insufficiency of funds or credit or would have
been dishonored for the same reason . . . is inversely applied in this case. From the very beginning,
petitioner never hid the fact that he did not have the funds with which to put up the warranty deposit
and as a matter of fact, he openly intimated this to the vital conduit of the transaction, Joey Gomez,
to whom petitioner was introduced by Mrs. Teng. It would have been different if this predicament
was not communicated to all the parties he dealt with regarding the lease agreement the financing of
which was covered by L.S. Finance Management.

WHEREFORE, the appealed decision is REVERSED and the accused-petitioner is hereby

ACQUITTED of the crime charged.

SO ORDERED.
Garcia v. CA, G.R. No. 157171, 14 March 2006, 484 SCRA 617

THIRD DIVISION

ARSENIA B. GARCIA, G.R. No. 157171

Petitioner,
Present:

QUISUMBING, J., Chairperson,

- versus - CARPIO,
CARPIO MORALES, and
TINGA, JJ.

HONORABLE COURT OF Promulgated:

APPEALS and THE PEOPLE
OF THE PHILIPPINES, March 14, 2006
Respondents.
x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x

DECISION
QUISUMBING, J.:

This petition seeks the review of the judgment of the Court of Appeals in CA-
G.R. CR No. 24547[1] that affirmed the conviction of petitioner by
the Regional TrialCourt[2] of Alaminos City, Pangasinan, Branch 54, for violation of
Section 27(b) of Republic Act No. 6646.[3]

Based on the complaint-affidavit of Aquilino Q. Pimentel, Jr., who ran in the

1995 senatorial elections, an information dated March 30, 1998, was filed in the
Regional Trial Court of Alaminos, charging Herminio R. Romero, Renato R. Viray,
Rachel Palisoc and Francisca de Vera, and petitioner, with violation of Section
27(b). The information reads:

That on or about May 11, 1995, which was within the canvassing
period during the May 8, 1995 elections, in the Municipality of Alaminos,
Province of Pangasinan, Philippines, and within the jurisdiction of this
Honorable Court, the above-named accused, Election Officer Arsenia B.
 Garcia, Municipal Treasurer Herminio R. Romero, Public School District
Supervisor Renato R. Viray, Chairman, Vice-Chairman, and Member-
Secretary, respectively, of the Municipal Board of Canvassers
of Alaminos, Pangasinan, tabulators Rachel Palisoc and Francisca de
Vera, conspiring with, confederating together and mutually helping each
other, did, then and there, willfully, and unlawfully decrease[d] the votes
received by senatorial candidate Aquilino Q. Pimentel, Jr. from six
thousand nine hundred ninety-eight (6,998) votes, as clearly disclosed in
the total number of votes in the one hundred fifty-nine (159) precincts of
the Statement of Votes by Precincts of said municipality, with Serial Nos.
008417, 008418, 008419, 008420, 008421, 008422 and 008423 to one
thousand nine hundred twenty-one (1,921) votes as reflected in the
Statement of Votes by Precincts with Serial No. 008423 and Certificate of
Canvass with Serial No. 436156 with a difference of five thousand
seventy-seven (5,077) votes.

CONTRARY TO LAW.[4]

In a Decision dated September 11, 2000, the RTC acquitted all the accused
for insufficiency of evidence, except petitioner who was convicted as follows:
xxx
5. And finally, on the person of ARSENIA B. GARCIA, the
Court pronounces her GUILTY beyond reasonable doubt, of
the crime defined under Republic Act 6646, Section 27 (b)
for decreasing the votes of Senator Pimentel in the total
of 5,034 and in relation to BP Blg. 881, considering that this
finding is a violation of Election Offense, she is thus
sentenced to suffer an imprisonment of SIX (6) YEARS as
maximum, but applying the INDETERMINATE
SENTENCE LAW, the minimum penalty is the next degree
lower which is SIX (6) MONTHS; however,
accused ARSENIA B. GARCIA is not entitled to probation;
further, she is sentenced to suffer disqualification to hold
public office and she is also deprived of her right of suffrage.

The bailbond posted by her is hereby ordered cancelled, and the

Provincial Warden is ordered to commit her person to the Bureau of
Correctional Institution for Women, at Metro Manila, until further orders
from the court.
 No pronouncement as to costs.

IT IS SO ORDERED.[5]

Petitioner appealed before the Court of Appeals which affirmed with

modification the RTC Decision, thus,
WHEREFORE, foregoing considered, the appealed decision is
hereby AFFIRMED with MODIFICATION, increasing the minimum
penalty imposed by the trial court from six (6) months to one (1) year.

SO ORDERED.[6]

The Court of Appeals likewise denied the motion for reconsideration. Hence,
this appeal assigning the following as errors of the appellate court:
I
ON THE FIRST AND SECOND GROUNDS RELIED UPON BY THE
RESPONDENT COURT, NAMELY, THAT IT COULD NOT HAVE
BEEN SECRETARY VIRAY WHO DECREASED THE VOTES OF
COMPLAINANT PIMENTEL SINCE HE MERELY RELIED ON
WHAT THE PETITIONER DICTATED, AND THAT IT COULD NOT
HAVE ALSO BEEN THE TABULATORS BECAUSE PETITIONER
WAS THE ONE WHO READ THE ADDING [MACHINE] TAPE.

II
ON THE THIRD GROUND, NAMELY, THAT PETITIONER DID NOT
PRODUCE THE TAPES DURING THE TRIAL BECAUSE IF
PRODUCED, IT IS GOING TO BE ADVERSE TO HER.

III
ON THE FOURTH GROUND, NAMELY, THAT THE PETITIONER
WAS THE ONE WHO ENTERED THE REDUCED FIGURE OF 1,921 IN
THE CERTIFICATE OF CANVASS (COC), Exh. 7, WHEN THE DUTY
WAS THAT OF THE SECRETARY OF THE BOARD.

IV
THE REDUCTION OF THE VOTES OF CANDIDATE PIMENTEL
WAS CLEARLY NOT WILLFUL OR INTENTIONAL.[7]
 Petitioner contends that (1) the Court of Appeals judgment is erroneous, based
on speculations, surmises and conjectures, instead of substantial evidence; and (2)
there was no motive on her part to reduce the votes of private complainant.

Respondent on the other hand contends that good faith is not a defense in the
violation of an election law, which falls under the class of mala prohibita.

The main issue is, Is a violation of Section 27(b) of Rep. Act No. 6646,
classified under mala in se or mala prohibita? Could good faith and lack of criminal
intent be valid defenses?

Generally, mala in se felonies are defined and penalized in the Revised Penal
Code. When the acts complained of are inherently immoral, they are deemed mala in
se, even if they are punished by a special law.[8] Accordingly, criminal intent must
be clearly established with the other elements of the crime; otherwise, no crime is
committed. On the other hand, in crimes that are mala prohibita, the criminal acts
are not inherently immoral but become punishable only because the law says they
are forbidden. With these crimes, the sole issue is whether the law has been
violated.[9] Criminal intent is not necessary where the acts are prohibited for reasons
of public policy.[10]

Section 27(b) of Republic Act No. 6646[11] provides:

SEC. 27. Election Offenses.- In addition to the prohibited acts and
election offenses enumerated in Sections 261 and 262 of Batas Pambansa
Blg. 881, as amended, the following shall be guilty of an election offense:
xxx
(b) Any member of the board of election inspectors or board of
canvassers who tampers, increases, or decreases the votes received by a
candidate in any election or any member of the board who refuses, after
proper verification and hearing, to credit the correct votes or deduct such
tampered votes.
xxx

Clearly, the acts prohibited in Section 27(b) are mala in se.[12] For otherwise,
even errors and mistakes committed due to overwork and fatigue would be
punishable.Given the volume of votes to be counted and canvassed within a limited
amount of time, errors and miscalculations are bound to happen. And it could not be
the intent of the law to punish unintentional election canvass errors. However,
intentionally increasing or decreasing the number of votes received by a candidate
is inherently immoral, since it is done with malice and intent to injure another.

Criminal intent is presumed to exist on the part of the person who executes an
act which the law punishes, unless the contrary shall appear. [13] Thus, whoever
invokes good faith as a defense has the burden of proving its existence.

Records show that the canvassing of votes on May 11, 1995 before the Board
of Canvassers of the Municipality of Alaminos, Pangasinan was conducted as
follows:
1. After the votes in the 159 precincts of
the municipality of Alaminos were tallied, the results thereof were
sealed and forwarded to the Municipal Board of Canvassers for
canvassing;
2. The number of votes received by each candidate in each precinct was
then recorded in the Statement of Votes with appellant, in her capacity
as Chairman, reading the figures appearing in the results from the
precincts and accused Viray, in his capacity as secretary of the Board,
entering the number in the Statements of Votes as read by the
appellant. Six Statements of Votes were filled up to reflect the votes
received by each candidate in the 159 precincts of
the Municipality of Alaminos, Pangasinan.
3. After the number of votes received by each candidate for each
precincts were entered by accused Viray in the Statements of Votes,
these votes were added by the accused Palisoc and de Vera with the
use of electrical adding machines.
4. After the tabulation by accused Palisoc and de Vera, the corresponding
machine tapes were handed to appellant who reads the subtotal of votes
received by each candidate in the precincts listed in each Statement of
Votes. Accused Viray [then] records the subtotal in the proper column
in the Statement of Votes.
5. After the subtotals had been entered by accused Viray, tabulators
accused Palisoc and de Vera added all the subtotals appearing in all
Statement of Votes.
 6. After the computation, the corresponding machine tape on which the
grand total was reflected was handed to appellant who reads the same
and accused Viray enters the figure read by appellant in the column for
grand total in the Statement of Votes.[14]

Neither the correctness of the number of votes entered in the Statement of

Votes (SOV) for each precinct, nor of the number of votes entered as subtotals of
votes received in the precincts listed in SOV Nos. 008417 to 008422 was raised as
an issue.

At first glance, however, there is a noticeable discrepancy in the addition of

the subtotals to arrive at the grand total of votes received by each candidate for all
159 precincts in SOV No. 008423.[15] The grand total of the votes for private
complainant, Senator Aquilino Pimentel, was only 1,921 instead of 6,921, or 5,000
votes less than the number of votes private complainant actually received. This error
is also evident in the Certificate of Canvass (COC) No. 436156 signed by petitioner,
Viray and Romero.[16]

During trial of this case, petitioner admitted that she was indeed the one who
announced the figure of 1,921, which was subsequently entered by then accused
Viray in his capacity as secretary of the board.[17] Petitioner likewise admitted that
she was the one who prepared the COC (Exhibit A-7), though it was not her duty. To
our mind, preparing the COC even if it was not her task, manifests an intention to
perpetuate the erroneous entry in the COC.[18]

Neither can this Court accept petitioners explanation that the Board of
Canvassers had no idea how the SOV (Exhibit 6) and the COC reflected that private
complainant had only 1,921 votes instead of 6,921 votes. As chairman of the
Municipal Board of Canvassers, petitioners concern was to assure accurate, correct
and authentic entry of the votes.Her failure to exercise maximum efficiency and
fidelity to her trust deserves not only censure but also the concomitant sanctions as
a matter of criminal responsibility pursuant to the dictates of the law.[19]

The fact that the number of votes deducted from the actual votes received by
private complainant, Sen. Aquilino Pimentel, Jr. was not added to any senatorial
candidate does not relieve petitioner of liability under Section 27(b) of Rep. Act No.
6646. The mere decreasing of the votes received by a candidate in an election is
already punishable under the said provision.[20]

At this point, we see no valid reason to disturb the factual conclusions of the
appellate court. The Court has consistently held that factual findings of the trial
court, as well as of the Court of Appeals are final and conclusive and may not be
reviewed on appeal, particularly where the findings of both the trial court and the
appellate court on the matter coincide.[21]

Public policy dictates that extraordinary diligence should be exercised by the

members of the board of canvassers in canvassing the results of the elections. Any
error on their part would result in the disenfranchisement of the voters. The
Certificate of Canvass for senatorial candidates and its supporting statements of
votes prepared by the municipal board of canvassers are sensitive election
documents whose entries must be thoroughly scrutinized.[22]

In our review, the votes in the SOV should total 6,998.[23]

As between the grand total of votes alleged to have been received by private
complainant of 6,921 votes and statement of his actual votes received of 6,998 is a
difference of 77 votes. The discrepancy may be validly attributed to mistake or error
due to fatigue. However, a decrease of 5,000 votes as reflected in the Statement of
Votes and Certificate of Canvass is substantial, it cannot be allowed to remain on
record unchallenged, especially when the error results from the mere transfer of
totals from one document to another.

WHEREFORE, the instant petition is DENIED. The assailed Decision of

the Court of Appeals sustaining petitioners conviction but increasing the minimum
penalty in her sentence to one year instead of six months is AFFIRMED.

SO ORDERED.
People v. Pugay, L-74324, 17 November 1988, 167 SCRA 439

Republic of the Philippines

SUPREME COURT
Manila

FIRST DIVISION

G.R. No. L-74324 November 17, 1988

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
FERNANDO PUGAY y BALCITA, & BENJAMIN SAMSON y MAGDALENA, accused-appellants.

The Solicitor General for plaintiff-appellee.

Citizens Legal Assistance Office for accused-appellants.

MEDIALDEA, J.:

For the death of Bayani Miranda, a retardate, FERNANDO PUGAY y BALCITA and BENJAMIN SAMSON y MAGDALENA were charged
with the crime of MURDER in Criminal Case No. L-175-82 of the Court of First Instance (now Regional Trial Court) of Cavite, under an
information which reads as follows:

That on or about May 19, 1982 at the town plaza of the Municipality of Rosario,
Province of Cavite, Philippines, and within the jurisdiction of this Honorable Court,
the above-named accused, conspiring, confederating and mutually helping and
assisting one another, with treachery and evident premeditation, taking advantage of
their superior strength, and with the decided purpose to kill, poured gasoline, a
combustible liquid to the body of Bayani Miranda and with the use of fire did then and
there, wilfully, unlawfully and feloniously, burn the whole body of said Bayani Miranda
which caused his subsequent death, to the damage and prejudice of the heirs of the
aforenamed Bayani Miranda.

That the crime was committed with the qualifying circumstance of treachery and the
aggravating circumstances of evident premeditation and superior strength, and the
means employed was to weaken the defense; that the wrong done in the commission
of the crime was deliberately augmented by causing another wrong, that is the
burning of the body of Bayani Miranda.

CONTRARY TO LAW (p. 1, Records).

Upon being arraigned, both accused pleaded not guilty to the offense charged. After trial, the trial
court rendered a decision finding both accused guilty on the crime of murder but crediting in favor of
the accused Pugay the mitigating circumstance of lack of intention to commit so grave a wrong, the
dispositive portion of which reads as follows:

WHEREFORE, the accused Fernando Pugay y Balcita and Benjamin Samson y

Magdalena are pronounced guilty beyond reasonable doubt as principals by direct
participation of the crime of murder for the death of Bayani Miranda, and appreciating
 the aforestated mitigating circumstance in favor of Pugay, he is sentenced to a prison
term ranging from twelve (12) years of prision mayor, as minimum, to twenty (20)
years of reclusion temporal, as maximum, and Samson to suffer the penalty
of reclusion perpetua together with the accessories of the law for both of them. The
accused are solidarily held liable to indemnify the heirs of the victim in the amount of
P13,940.00 plus moral damages of P10,000.00 and exemplary damages of
P5,000.00.

Let the preventive imprisonment of Pugay be deducted from the principal penalty.

Cost against both accused.

SO ORDERED (p. 248, Records).

Not satisfied with the decision, both accused interposed the present appeal and assigned the
following errors committed by the court a quo:

1. THE COURT A QUO ERRED IN UTILIZING THE STATEMENTS OF ACCUSED-

APPELLANTS IN ITS APPRECIATION OF FACTS DESPITE ITS ADMISSION THAT
THE ACCUSED-APPELLANTS WERE NOT ASSISTED BY A COUNSEL DURING
THE CUSTODIAL INVESTIGATION.

2. THE COURT A QUO ERRED IN NOT FINDING THAT THE SUPPRESSION BY

THE PROSECUTION OF SOME EVIDENCE IS FATAL TO ITS CASE.

3. THE COURT A QUO ERRED IN LENDING CREDENCE TO THE INCREDIBLE

TESTIMONY OF EDUARDO GABION WHO WAS ONE OF THE MANY SUSPECTS
ARRESTED BY THE POLICE (Accused-appellants' Brief, p. 48, Rollo).

The antecedent facts are as follows:

The deceased Miranda, a 25-year old retardate, and the accused Pugay were friends. Miranda used
to run errands for Pugay and at times they slept together. On the evening of May 19, 1982, a town
fiesta fair was held in the public plaza of Rosario, Cavite. There were different kinds of ride and one
was a ferris wheel.

Sometime after midnight of the same date, Eduardo Gabion was sitting in the ferris wheel and
reading a comic book with his friend Henry. Later, the accused Pugay and Samson with several
companions arrived. These persons appeared to be drunk as they were all happy and noisy. As the
group saw the deceased walking nearby, they started making fun of him. They made the deceased
dance by tickling him with a piece of wood.

Not content with what they were doing with the deceased, the accused Pugay suddenly took a can
of gasoline from under the engine of the ferns wheel and poured its contents on the body of the
former. Gabion told Pugay not to do so while the latter was already in the process of pouring the
gasoline. Then, the accused Samson set Miranda on fire making a human torch out of him.

The ferris wheel operator later arrived and doused with water the burning body of the deceased.
Some people around also poured sand on the burning body and others wrapped the same with rags
to extinguish the flame.
The body of the deceased was still aflame when police officer Rolando Silangcruz and other police
officers of the Rosario Police Force arrived at the scene of the incident. Upon inquiring as to who
were responsible for the dastardly act, the persons around spontaneously pointed to Pugay and
Samson as the authors thereof.

The deceased was later rushed to the Grace Hospital for treatment. In the meantime, the police
officers brought Gabion, the two accused and five other persons to the Rosario municipal building for
interrogation. Police officer Reynaldo Canlas took the written statements of Gabion and the two
accused, after which Gabion was released. The two accused remained in custody.

After a careful review of the records, We find the grounds relied upon by the accused-appellants for
the reversal of the decision of the court a quo to be without merit.

It bears emphasis that barely a few hours after the incident, accused-appellants gave their written
statements to the police. The accused Pugay admitted in his statement, Exhibit F, that he poured a
can of gasoline on the deceased believing that the contents thereof was water and then the accused
Samson set the deceased on fire. The accused Samson, on the other hand, alleged in his statement
that he saw Pugay pour gasoline on Miranda but did not see the person who set him on fire. Worthy
of note is the fact that both statements did not impute any participation of eyewitness Gabion in the
commission of the offense.

While testifying on their defense, the accused-appellants repudiated their written statements alleging
that they were extracted by force. They claimed that the police maltreated them into admitting
authorship of the crime. They also engaged in a concerted effort to lay the blame on Gabion for the
commission of the offense.

Thus, while it is true that the written statements of the accused-appellants were mentioned and
discussed in the decision of the court a quo, the contents thereof were not utilized as the sole basis
for the findings of facts in the decision rendered. The said court categorically stated that "even
without Exhibits 'F' and 'G', there is still Gabion's straightforward, positive and convincing testimony
which remains unaffected by the uncorroborated, self-serving and unrealiable testimonies of Pugay
and Samson" (p. 247, Records).

Accused-appellants next assert that the prosecution suppressed the testimonies of other
eyewitnesses to the incident. They claim that despite the fact that there were other persons
investigated by the police, only Gabion was presented as an eyewitness during the trial of the case.
They argue that the deliberate non- presentation of these persons raises the presumption that their
testimonies would be adverse to the prosecution.

There is no dispute that there were other persons who witnessed the commission of the crime. In
fact there appears on record (pp. 16-17, Records) the written statements of one Abelardo Reyes and
one Monico Alimorong alleging the same facts and imputing the respective acts of pouring of
gasoline and setting the deceased on fire to the accused-appellants as testified to by Gabion in open
court. They were listed as prosecution witnesses in the information filed. Considering that their
testimonies would be merely corroborative, their non-presentation does not give rise to the
presumption that evidence wilfully suppressed would be adverse if produced. This presumption does
not apply to the suppression of merely corroborative evidence (U.S. vs. Dinola, 37 Phil.
797). Besides, the matter as to whom to utilize as witness is for the prosecution to decide.
<äre||anº• 1àw>

Accused-appellants also attack the credibility of the eyewitness Gabion alleging that not only was
the latter requested by the mother of the deceased to testify for the prosecution in exchange for his
absolution from liability but also because his testimony that he was reading a comic book during an
unusual event is contrary to human behavior and experience.

Gabion testified that it was his uncle and not the mother of the deceased who asked him to testify
and state the truth about the incident. The mother of the deceased likewise testified that she never
talked to Gabion and that she saw the latter for the first time when the instant case was tried.
Besides, the accused Pugay admitted that Gabion was his friend and both Pugay and the other
accused Samson testified that they had no previous misunderstanding with Gabion. Clearly, Gabion
had no reason to testify falsely against them.

In support of their claim that the testimony of Gabion to the effect that he saw Pugay pour gasoline
on the deceased and then Samson set him on fire is incredible, the accused-appellants quote
Gabion's testimony on cross-examination that, after telling Pugay not to pour gasoline on the
deceased, he (Gabion) resumed reading comics; and that it was only when the victim's body was on
fire that he noticed a commotion.

However, explaining this testimony on re-direct examination, Gabion stated:

Q. Mr. Gabion, you told the Court on cross-examination that you were
reading comics when you saw Pugay poured gasoline unto Bayani
Miranda and lighted by Samson. How could you possibly see that
incident while you were reading comics?

A. I put down the comics which I am reading and I saw what they
were doing.

Q. According to you also before Bayani was poured with gasoline and
lighted and burned later you had a talk with Pugay, is that correct?

A. When he was pouring gasoline on Bayani Miranda I was trying to

prevent him from doing so.

Q. We want to clarify. According to you a while ago you had a talk

with Pugay and as a matter of fact, you told him not to pour gasoline.
That is what I want to know from you, if that is true?

A. Yes, sir.

Q. Aside from Bayani being tickled with a stick on his ass, do you
mean to say you come to know that Pugay will pour gasoline unto
him?

A. I do not know that would be that incident.

Q. Why did you as(k) Pugay in the first place not to pour gasoline
before he did that actually?

A. Because I pity Bayani, sir.

Q. When you saw Pugay tickling Bayani with a stick on his ass you
tried according to you to ask him not to and then later you said you
 asked not to pour gasoline. Did Pugay tell you he was going to pour
gasoline on Bayani?

A. I was not told, sir.

Q. Did you come to know..... how did you come to know he was going
to pour gasoline that is why you prevent him?

A. Because he was holding on a container of gasoline. I thought it

was water but it was gasoline.

Q. It is clear that while Pugay was tickling Bayani with a stick on his
ass, he later got hold of a can of gasoline, is that correct?

A. Yes, sir.

Q. And when he pick up the can of gasoline, was that the time you
told him not to pour gasoline when he merely pick up the can of
gasoline.

A. I saw him pouring the gasoline on the body of Joe.

Q. So, it is clear when you told Pugay not to pour gasoline he was
already in the process of pouring gasoline on the body of Bayani?

A. Yes, sir (Tsn, July 30, 1983, pp. 32-33).

It is thus clear that prior to the incident in question, Gabion was reading a comic book; that Gabion
stopped reading when the group of Pugay started to make fun of the deceased; that Gabion saw
Pugay get the can of gasoline from under the engine of the ferris wheel; that it was while Pugay was
in the process of pouring the gasoline on the body of the deceased when Gabion warned him not to
do so; and that Gabion later saw Samson set the deceased on fire.

However, there is nothing in the records showing that there was previous conspiracy or unity of
criminal purpose and intention between the two accused-appellants immediately before the
commission of the crime. There was no animosity between the deceased and the accused Pugay or
Samson. Their meeting at the scene of the incident was accidental. It is also clear that the accused
Pugay and his group merely wanted to make fun of the deceased. Hence, the respective criminal
responsibility of Pugay and Samson arising from different acts directed against the deceased is
individual and not collective, and each of them is liable only for the act committed by him (U.S. vs.
Magcomot, et. al. 13, Phil. 386; U.S. vs. Abiog, et. al. 37 Phil. 1371).

The next question to be determined is the criminal responsibility of the accused Pugay. Having taken
the can from under the engine of the ferris wheel and holding it before pouring its contents on the
body of the deceased, this accused knew that the can contained gasoline. The stinging smell of this
flammable liquid could not have escaped his notice even before pouring the same. Clearly, he failed
to exercise all the diligence necessary to avoid every undesirable consequence arising from any act
that may be committed by his companions who at the time were making fun of the deceased. We
agree with the Solicitor General that the accused is only guilty of homicide through reckless
imprudence defined in Article 365 of the Revised Penal Code, as amended. In U.S. vs. Maleza, et.
al. 14 Phil. 468, 470, this Court ruled as follows:
 A man must use common sense and exercise due reflection in all his acts; it is his
duty to be cautious, careful, and prudent, if not from instinct, then through fear of
incurring punishment. He is responsible for such results as anyone might foresee
and for acts which no one would have performed except through culpable abandon.
Otherwise his own person, rights and property, all those of his fellow-beings, would
ever be exposed to all manner of danger and injury.

The proper penalty that the accused Pugay must suffer is an indeterminate one ranging from four (4)
months of arresto mayor, as minimum, to four (4) years and two (2) months of prision correccional,
as maximum. With respect to the accused Samson, the Solicitor General in his brief contends that
"his conviction of murder, is proper considering that his act in setting the deceased on fire knowing
that gasoline had just been poured on him is characterized by treachery as the victim was left
completely helpless to defend and protect himself against such an outrage" (p. 57, Rollo). We do not
agree.

There is entire absence of proof in the record that the accused Samson had some reason to kill the
deceased before the incident. On the contrary, there is adequate evidence showing that his act was
merely a part of their fun-making that evening. For the circumstance of treachery to exist, the attack
must be deliberate and the culprit employed means, methods, or forms in the execution thereof
which tend directly and specially to insure its execution, without risk to himself arising from any
defense which the offended party might make.

There can be no doubt that the accused Samson knew very well that the liquid poured on the body
of the deceased was gasoline and a flammable substance for he would not have committed the act
of setting the latter on fire if it were otherwise. Giving him the benefit of doubt, it call be conceded
that as part of their fun-making he merely intended to set the deceased's clothes on fire. His act,
however, does not relieve him of criminal responsibility. Burning the clothes of the victim would
cause at the very least some kind of physical injuries on his person, a felony defined in the Revised
Penal Code. If his act resulted into a graver offense, as what took place in the instant case, he must
be held responsible therefor. Article 4 of the aforesaid code provides, inter alia, that criminal liability
shall be incurred by any person committing a felony (delito) although the wrongful act done be
different from that which he intended.

As no sufficient evidence appears in the record establishing any qualifying circumstances, the
accused Samson is only guilty of the crime of homicide defined and penalized in Article 249 of the
Revised Penal Code, as amended. We are disposed to credit in his favor the ordinary mitigating
circumstance of no intention to commit so grave a wrong as that committed as there is evidence of a
fact from which such conclusion can be drawn. The eyewitness Gabion testified that the accused
Pugay and Samson were stunned when they noticed the deceased burning (Tsn, June 1, 1983, pp.
16-17).<äre||anº•1àw>

The proper penalty that the accused Samson must suffer is an indeterminate one ranging from eight
(8) years of prision mayor, as minimum, to fourteen (14) years of reclusion temporal, as maximum.

The lower court held the accused solidarily liable for P13,940.00, the amount spent by Miranda's
parents for his hospitalization, wake and interment. The indemnity for death is P30,000.00. Hence,
the indemnity to the heirs of the deceased Miranda is increased to P43,940.00.

Both accused shall be jointly and severally liable for the aforesaid amount plus the P10,000.00 as
moral damages and P5,000.00 as exemplary damages as found by the court a quo.
Accordingly, the judgment is affirmed with the modifications above-indicated. Costs against the
accused-appellants.

SO ORDERED.
Ivler v. San Pedro, G.R. No. 172716, 17 November 2010.

Republic of the Philippines

SUPREME COURT
Manila

SECOND DIVISION

G.R. No. 172716 November 17, 2010

JASON IVLER y AGUILAR, Petitioner,

vs.
HON. MARIA ROWENA MODESTO-SAN PEDRO, Judge of the Metropolitan Trial Court,
Branch 71, Pasig City, and EVANGELINE PONCE, Respondents.

DECISION

CARPIO, J.:

The Case

The petition seeks the review1 of the Orders2 of the Regional Trial Court of Pasig City affirming sub-
silencio a lower court’s ruling finding inapplicable the Double Jeopardy Clause to bar a second
prosecution for Reckless Imprudence Resulting in Homicide and Damage to Property. This, despite
the accused’s previous conviction for Reckless Imprudence Resulting in Slight Physical Injuries
arising from the same incident grounding the second prosecution.

The Facts

Following a vehicular collision in August 2004, petitioner Jason Ivler (petitioner) was charged before
the Metropolitan Trial Court of Pasig City, Branch 71 (MeTC), with two separate offenses: (1)
Reckless Imprudence Resulting in Slight Physical Injuries (Criminal Case No. 82367) for injuries
sustained by respondent Evangeline L. Ponce (respondent Ponce); and (2) Reckless Imprudence
Resulting in Homicide and Damage to Property (Criminal Case No. 82366) for the death of
respondent Ponce’s husband Nestor C. Ponce and damage to the spouses Ponce’s vehicle.
Petitioner posted bail for his temporary release in both cases.

On 7 September 2004, petitioner pleaded guilty to the charge in Criminal Case No. 82367 and was
meted out the penalty of public censure. Invoking this conviction, petitioner moved to quash the
Information in Criminal Case No. 82366 for placing him in jeopardy of second punishment for the
same offense of reckless imprudence.

The MeTC refused quashal, finding no identity of offenses in the two cases.3

After unsuccessfully seeking reconsideration, petitioner elevated the matter to the Regional Trial
Court of Pasig City, Branch 157 (RTC), in a petition for certiorari (S.C.A. No. 2803). Meanwhile,
petitioner sought from the MeTC the suspension of proceedings in Criminal Case No. 82366,
including the arraignment on 17 May 2005, invoking S.C.A. No. 2803 as a prejudicial question.
Without acting on petitioner’s motion, the MeTC proceeded with the arraignment and, because of
petitioner’s absence, cancelled his bail and ordered his arrest.4 Seven days later, the MeTC issued a
resolution denying petitioner’s motion to suspend proceedings and postponing his arraignment until
after his arrest.5 Petitioner sought reconsideration but as of the filing of this petition, the motion
remained unresolved.

Relying on the arrest order against petitioner, respondent Ponce sought in the RTC the dismissal of
S.C.A. No. 2803 for petitioner’s loss of standing to maintain the suit. Petitioner contested the motion.

The Ruling of the Trial Court

In an Order dated 2 February 2006, the RTC dismissed S.C.A. No. 2803, narrowly grounding its
ruling on petitioner’s forfeiture of standing to maintain S.C.A. No. 2803 arising from the MeTC’s order
to arrest petitioner for his non-appearance at the arraignment in Criminal Case No. 82366. Thus,
without reaching the merits of S.C.A. No. 2803, the RTC effectively affirmed the MeTC. Petitioner
sought reconsideration but this proved unavailing.6

Hence, this petition.

Petitioner denies absconding. He explains that his petition in S.C.A. No. 2803 constrained him to
forego participation in the proceedings in Criminal Case No. 82366. Petitioner distinguishes his case
from the line of jurisprudence sanctioning dismissal of appeals for absconding appellants because
his appeal before the RTC was a special civil action seeking a pre-trial relief, not a post-trial appeal
of a judgment of conviction.7

Petitioner laments the RTC’s failure to reach the merits of his petition in S.C.A. 2803. Invoking
jurisprudence, petitioner argues that his constitutional right not to be placed twice in jeopardy of
punishment for the same offense bars his prosecution in Criminal Case No. 82366, having been
previously convicted in Criminal Case No. 82367 for the same offense of reckless imprudence
charged in Criminal Case No. 82366. Petitioner submits that the multiple consequences of such
crime are material only to determine his penalty.

Respondent Ponce finds no reason for the Court to disturb the RTC’s decision forfeiting petitioner’s
standing to maintain his petition in S.C.A. 2803. On the merits, respondent Ponce calls the Court’s
attention to jurisprudence holding that light offenses (e.g. slight physical injuries) cannot be
complexed under Article 48 of the Revised Penal Code with grave or less grave felonies (e.g.
homicide). Hence, the prosecution was obliged to separate the charge in Criminal Case No. 82366
for the slight physical injuries from Criminal Case No. 82367 for the homicide and damage to
property.

In the Resolution of 6 June 2007, we granted the Office of the Solicitor General’s motion not to file a
comment to the petition as the public respondent judge is merely a nominal party and private
respondent is represented by counsel.

The Issues

Two questions are presented for resolution: (1) whether petitioner forfeited his standing to seek relief
in S.C.A. 2803 when the MeTC ordered his arrest following his non-appearance at the arraignment
in Criminal Case No. 82366; and (2) if in the negative, whether petitioner’s constitutional right under
the Double Jeopardy Clause bars further proceedings in Criminal Case No. 82366.

The Ruling of the Court

We hold that (1) petitioner’s non-appearance at the arraignment in Criminal Case No. 82366 did not
divest him of personality to maintain the petition in S.C.A. 2803; and (2) the protection afforded by
the Constitution shielding petitioner from prosecutions placing him in jeopardy of second punishment
for the same offense bars further proceedings in Criminal Case No. 82366.

Petitioner’s Non-appearance at the Arraignment in

Criminal Case No. 82366 did not Divest him of Standing
to Maintain the Petition in S.C.A. 2803

Dismissals of appeals grounded on the appellant’s escape from custody or violation of the terms of
his bail bond are governed by the second paragraph of Section 8, Rule 124,8 in relation to Section 1,
Rule 125, of the Revised Rules on Criminal Procedure authorizing this Court or the Court of Appeals
to "also, upon motion of the appellee or motu proprio, dismiss the appeal if the appellant escapes
from prison or confinement, jumps bail or flees to a foreign country during the pendency of the
appeal." The "appeal" contemplated in Section 8 of Rule 124 is a suit to review judgments of
convictions.

The RTC’s dismissal of petitioner’s special civil action for certiorari to review a pre-arraignment
ancillary question on the applicability of the Due Process Clause to bar proceedings in Criminal
Case No. 82366 finds no basis under procedural rules and jurisprudence. The RTC’s reliance
on People v. Esparas9 undercuts the cogency of its ruling because Esparas stands for a proposition
contrary to the RTC’s ruling. There, the Court granted review to an appeal by an accused who was
sentenced to death for importing prohibited drugs even though she jumped bail pending trial and
was thus tried and convicted in absentia. The Court in Esparas treated the mandatory review of
death sentences under Republic Act No. 7659 as an exception to Section 8 of Rule 124.10

The mischief in the RTC’s treatment of petitioner’s non-appearance at his arraignment in Criminal
Case No. 82366 as proof of his loss of standing becomes more evident when one considers the
Rules of Court’s treatment of a defendant who absents himself from post-arraignment hearings.
Under Section 21, Rule 11411 of the Revised Rules of Criminal Procedure, the defendant’s absence
merely renders his bondsman potentially liable on its bond (subject to cancellation should the
bondsman fail to produce the accused within 30 days); the defendant retains his standing and,
should he fail to surrender, will be tried in absentia and could be convicted or acquitted. Indeed, the
30-day period granted to the bondsman to produce the accused underscores the fact that mere non-
appearance does not ipso facto convert the accused’s status to that of a fugitive without standing.

Further, the RTC’s observation that petitioner provided "no explanation why he failed to attend the
scheduled proceeding"12 at the MeTC is belied by the records. Days before the arraignment,
petitioner sought the suspension of the MeTC’s proceedings in Criminal Case No. 82366 in light of
his petition with the RTC in S.C.A. No. 2803. Following the MeTC’s refusal to defer arraignment (the
order for which was released days after the MeTC ordered petitioner’s arrest), petitioner sought
reconsideration. His motion remained unresolved as of the filing of this petition.

Petitioner’s Conviction in Criminal Case No. 82367

Bars his Prosecution in Criminal Case No. 82366

The accused’s negative constitutional right not to be "twice put in jeopardy of punishment for the
same offense"13protects him from, among others, post-conviction prosecution for the same offense,
with the prior verdict rendered by a court of competent jurisdiction upon a valid information.14 It is not
disputed that petitioner’s conviction in Criminal Case No. 82367 was rendered by a court of
competent jurisdiction upon a valid charge. Thus, the case turns on the question whether Criminal
Case No. 82366 and Criminal Case No. 82367 involve the "same offense." Petitioner adopts the
affirmative view, submitting that the two cases concern the same offense of reckless imprudence.
The MeTC ruled otherwise, finding that Reckless Imprudence Resulting in Slight Physical Injuries is
an entirely separate offense from Reckless Imprudence Resulting in Homicide and Damage to
Property "as the [latter] requires proof of an additional fact which the other does not."15

We find for petitioner.

Reckless Imprudence is a Single Crime,

its Consequences on Persons and
Property are Material Only to Determine
the Penalty

The two charges against petitioner, arising from the same facts, were prosecuted under the same
provision of the Revised Penal Code, as amended, namely, Article 365 defining and penalizing
quasi-offenses. The text of the provision reads:

Imprudence and negligence. — Any person who, by reckless imprudence, shall commit any act
which, had it been intentional, would constitute a grave felony, shall suffer the penalty of arresto
mayor in its maximum period to prision correccional in its medium period; if it would have constituted
a less grave felony, the penalty of arresto mayor in its minimum and medium periods shall be
imposed; if it would have constituted a light felony, the penalty of arresto menor in its maximum
period shall be imposed.

Any person who, by simple imprudence or negligence, shall commit an act which would otherwise
constitute a grave felony, shall suffer the penalty of arresto mayor in its medium and maximum
periods; if it would have constituted a less serious felony, the penalty of arresto mayor in its
minimum period shall be imposed.

When the execution of the act covered by this article shall have only resulted in damage to the
property of another, the offender shall be punished by a fine ranging from an amount equal to the
value of said damages to three times such value, but which shall in no case be less than twenty-five
pesos.

A fine not exceeding two hundred pesos and censure shall be imposed upon any person who, by
simple imprudence or negligence, shall cause some wrong which, if done maliciously, would have
constituted a light felony.

In the imposition of these penalties, the court shall exercise their sound discretion, without regard to
the rules prescribed in Article sixty-four.

The provisions contained in this article shall not be applicable:

1. When the penalty provided for the offense is equal to or lower than those provided in the
first two paragraphs of this article, in which case the court shall impose the penalty next
lower in degree than that which should be imposed in the period which they may deem
proper to apply.

2. When, by imprudence or negligence and with violation of the Automobile Law, to death of
a person shall be caused, in which case the defendant shall be punished by prision
correccional in its medium and maximum periods.
Reckless imprudence consists in voluntary, but without malice, doing or failing to do an act from
which material damage results by reason of inexcusable lack of precaution on the part of the person
performing or failing to perform such act, taking into consideration his employment or occupation,
degree of intelligence, physical condition and other circumstances regarding persons, time and
place.

Simple imprudence consists in the lack of precaution displayed in those cases in which the damage
impending to be caused is not immediate nor the danger clearly manifest.

The penalty next higher in degree to those provided for in this article shall be imposed upon the
offender who fails to lend on the spot to the injured parties such help as may be in this hand to give.

Structurally, these nine paragraphs are collapsible into four sub-groupings relating to (1) the
penalties attached to the quasi-offenses of "imprudence" and "negligence" (paragraphs 1-2); (2) a
modified penalty scheme for either or both quasi-offenses (paragraphs 3-4, 6 and 9); (3) a generic
rule for trial courts in imposing penalties (paragraph 5); and (4) the definition of "reckless
imprudence" and "simple imprudence" (paragraphs 7-8). Conceptually, quasi-offenses penalize "the
mental attitude or condition behind the act, the dangerous recklessness, lack of care or foresight, the
imprudencia punible,"16 unlike willful offenses which punish the intentional criminal act. These
structural and conceptual features of quasi-offenses set them apart from the mass of intentional
crimes under the first 13 Titles of Book II of the Revised Penal Code, as amended.

Indeed, the notion that quasi-offenses, whether reckless or simple, are distinct species of crime,
separately defined and penalized under the framework of our penal laws, is nothing new. As early as
the middle of the last century, we already sought to bring clarity to this field by rejecting in Quizon v.
Justice of the Peace of Pampanga the proposition that "reckless imprudence is not a crime in itself
but simply a way of committing it x x x"17 on three points of analysis: (1) the object of punishment in
quasi-crimes (as opposed to intentional crimes); (2) the legislative intent to treat quasi-crimes as
distinct offenses (as opposed to subsuming them under the mitigating circumstance of minimal
intent) and; (3) the different penalty structures for quasi-crimes and intentional crimes:

The proposition (inferred from Art. 3 of the Revised Penal Code) that "reckless imprudence" is not a
crime in itself but simply a way of committing it and merely determines a lower degree of criminal
liability is too broad to deserve unqualified assent. There are crimes that by their structure cannot be
committed through imprudence: murder, treason, robbery, malicious mischief, etc. In truth, criminal
negligence in our Revised Penal Code is treated as a mere quasi offense, and dealt with separately
from willful offenses. It is not a mere question of classification or terminology. In intentional crimes,
the act itself is punished; in negligence or imprudence, what is principally penalized is the mental
attitude or condition behind the act, the dangerous recklessness, lack of care or foresight, the
imprudencia punible. x x x x

Were criminal negligence but a modality in the commission of felonies, operating only to reduce the
penalty therefor, then it would be absorbed in the mitigating circumstances of Art. 13, specially the
lack of intent to commit so grave a wrong as the one actually committed. Furthermore, the theory
would require that the corresponding penalty should be fixed in proportion to the penalty prescribed
for each crime when committed willfully. For each penalty for the willful offense, there would then be
a corresponding penalty for the negligent variety. But instead, our Revised Penal Code (Art. 365)
fixes the penalty for reckless imprudence at arresto mayor maximum, to prision correccional
[medium], if the willful act would constitute a grave felony, notwithstanding that the penalty for the
latter could range all the way from prision mayor to death, according to the case. It can be seen that
the actual penalty for criminal negligence bears no relation to the individual willful crime, but is set in
relation to a whole class, or series, of crimes.18 (Emphasis supplied)
This explains why the technically correct way to allege quasi-crimes is to state that their commission
results in damage, either to person or property.19

Accordingly, we found the Justice of the Peace in Quizon without jurisdiction to hear a case for
"Damage to Property through Reckless Imprudence," its jurisdiction being limited to trying charges
for Malicious Mischief, an intentional crime conceptually incompatible with the element of
imprudence obtaining in quasi-crimes.

Quizon, rooted in Spanish law20 (the normative ancestry of our present day penal code) and since
repeatedly reiterated,21 stands on solid conceptual foundation. The contrary doctrinal pronouncement
in People v. Faller22 that "[r]eckless impudence is not a crime in itself x x x [but] simply a way of
committing it x x x,"23 has long been abandoned when the Court en banc promulgated Quizon in
1955 nearly two decades after the Court decided Faller in 1939. Quizon rejected Faller’s
conceptualization of quasi-crimes by holding that quasi-crimes under Article 365 are distinct species
of crimes and not merely methods of committing crimes. Faller found expression in post-Quizon
jurisprudence24 only by dint of lingering doctrinal confusion arising from an indiscriminate fusion of
criminal law rules defining Article 365 crimes and the complexing of intentional crimes under Article
48 of the Revised Penal Code which, as will be shown shortly, rests on erroneous conception of
quasi-crimes. Indeed, the Quizonian conception of quasi-crimes undergirded a related branch of
jurisprudence applying the Double Jeopardy Clause to quasi-offenses, barring second prosecutions
for a quasi-offense alleging one resulting act after a prior conviction or acquittal of a quasi-offense
alleging another resulting act but arising from the same reckless act or omission upon which the
second prosecution was based.

Prior Conviction or Acquittal of

Reckless Imprudence Bars
Subsequent Prosecution for the Same
Quasi-Offense

The doctrine that reckless imprudence under Article 365 is a single quasi-offense by itself and not
merely a means to commit other crimes such that conviction or acquittal of such quasi-offense bars
subsequent prosecution for the same quasi-offense, regardless of its various resulting acts,
undergirded this Court’s unbroken chain of jurisprudence on double jeopardy as applied to Article
365 starting with People v. Diaz,25 decided in 1954. There, a full Court, speaking through Mr. Justice
Montemayor, ordered the dismissal of a case for "damage to property thru reckless imprudence"
because a prior case against the same accused for "reckless driving," arising from the same act
upon which the first prosecution was based, had been dismissed earlier. Since then, whenever the
same legal question was brought before the Court, that is, whether prior conviction or acquittal of
reckless imprudence bars subsequent prosecution for the same quasi-offense, regardless of the
consequences alleged for both charges, the Court unfailingly and consistently answered in the
affirmative in People v. Belga26 (promulgated in 1957 by the Court en banc, per Reyes, J.), Yap v.
Lutero27 (promulgated in 1959, unreported, per Concepcion, J.), People v. Narvas28 (promulgated in
1960 by the Court en banc, per Bengzon J.), People v. Silva29 (promulgated in 1962 by the Court en
banc, per Paredes, J.), People v. Macabuhay30 (promulgated in 1966 by the Court en banc, per
Makalintal, J.), People v. Buan31 (promulgated in 1968 by the Court en banc, per Reyes, J.B.L.,
acting C. J.), Buerano v. Court of Appeals32 (promulgated in 1982 by the Court en banc, per Relova,
J.), and People v. City Court of Manila33 (promulgated in 1983 by the First Division, per Relova, J.).
These cases uniformly barred the second prosecutions as constitutionally impermissible under the
Double Jeopardy Clause.

The reason for this consistent stance of extending the constitutional protection under the Double
Jeopardy Clause to quasi-offenses was best articulated by Mr. Justice J.B.L. Reyes in Buan, where,
in barring a subsequent prosecution for "serious physical injuries and damage to property thru
reckless imprudence" because of the accused’s prior acquittal of "slight physical injuries thru
reckless imprudence," with both charges grounded on the same act, the Court explained:34

Reason and precedent both coincide in that once convicted or acquitted of a specific act of reckless
imprudence, the accused may not be prosecuted again for that same act. For the essence of the
quasi offense of criminal negligence under article 365 of the Revised Penal Code lies in the
execution of an imprudent or negligent act that, if intentionally done, would be punishable as a
felony. The law penalizes thus the negligent or careless act, not the result thereof. The gravity of the
consequence is only taken into account to determine the penalty, it does not qualify the substance of
the offense. And, as the careless act is single, whether the injurious result should affect one person
or several persons, the offense (criminal negligence) remains one and the same, and can not be
split into different crimes and prosecutions.35 x x x (Emphasis supplied)

Evidently, the Diaz line of jurisprudence on double jeopardy merely extended to its logical conclusion
the reasoning of Quizon.

There is in our jurisprudence only one ruling going against this unbroken line of authority. Preceding
Diaz by more than a decade, El Pueblo de Filipinas v. Estipona,36 decided by the pre-war colonial
Court in November 1940, allowed the subsequent prosecution of an accused for reckless
imprudence resulting in damage to property despite his previous conviction for multiple physical
injuries arising from the same reckless operation of a motor vehicle upon which the second
prosecution was based. Estipona’s inconsistency with the post-war Diaz chain of jurisprudence
suffices to impliedly overrule it. At any rate, all doubts on this matter were laid to rest in 1982 in
Buerano.37 There, we reviewed the Court of Appeals’ conviction of an accused for "damage to
property for reckless imprudence" despite his prior conviction for "slight and less serious physical
injuries thru reckless imprudence," arising from the same act upon which the second charge was
based. The Court of Appeals had relied on Estipona. We reversed on the strength of Buan:38

Th[e] view of the Court of Appeals was inspired by the ruling of this Court in the pre-war case of
People vs. Estipona decided on November 14, 1940. However, in the case of People vs. Buan, 22
SCRA 1383 (March 29, 1968), this Court, speaking thru Justice J. B. L. Reyes, held that –

Reason and precedent both coincide in that once convicted or acquitted of a specific act of reckless
imprudence, the accused may not be prosecuted again for that same act. For the essence of the
quasi offense of criminal negligence under Article 365 of the Revised Penal Code lies in the
execution of an imprudent or negligent act that, if intentionally done, would be punishable as a
felony. The law penalizes thus the negligent or careless act, not the result thereof. The gravity of the
consequence is only taken into account to determine the penalty, it does not qualify the substance of
the offense. And, as the careless act is single, whether the injurious result should affect one person
or several persons, the offense (criminal negligence) remains one and the same, and can not be
split into different crimes and prosecutions.

xxxx

. . . the exoneration of this appellant, Jose Buan, by the Justice of the Peace (now Municipal) Court
of Guiguinto, Bulacan, of the charge of slight physical injuries through reckless imprudence, prevents
his being prosecuted for serious physical injuries through reckless imprudence in the Court of First
Instance of the province, where both charges are derived from the consequences of one and the
same vehicular accident, because the second accusation places the appellant in second jeopardy
for the same offense.39 (Emphasis supplied)
Thus, for all intents and purposes, Buerano had effectively overruled Estipona.

It is noteworthy that the Solicitor General in Buerano, in a reversal of his earlier stance in Silva,
joined causes with the accused, a fact which did not escape the Court’s attention:

Then Solicitor General, now Justice Felix V. Makasiar, in his MANIFESTATION dated December 12,
1969 (page 82 of the Rollo) admits that the Court of Appeals erred in not sustaining petitioner’s plea
of double jeopardy and submits that "its affirmatory decision dated January 28, 1969, in Criminal
Case No. 05123-CR finding petitioner guilty of damage to property through reckless imprudence
should be set aside, without costs." He stressed that "if double jeopardy exists where the reckless
act resulted into homicide and physical injuries. then the same consequence must perforce follow
where the same reckless act caused merely damage to property-not death-and physical injuries.
Verily, the value of a human life lost as a result of a vehicular collision cannot be equated with any
amount of damages caused to a motors vehicle arising from the same mishap."40 (Emphasis
supplied)

Hence, we find merit in petitioner’s submission that the lower courts erred in refusing to extend in his
favor the mantle of protection afforded by the Double Jeopardy Clause. A more fitting jurisprudence
could not be tailored to petitioner’s case than People v. Silva, 41 a Diaz progeny. There, the accused,
who was also involved in a vehicular collision, was charged in two separate Informations with "Slight
Physical Injuries thru Reckless Imprudence" and "Homicide with Serious Physical Injuries thru
Reckless Imprudence." Following his acquittal of the former, the accused sought the quashal of the
latter, invoking the Double Jeopardy Clause. The trial court initially denied relief, but, on
reconsideration, found merit in the accused’s claim and dismissed the second case. In affirming the
trial court, we quoted with approval its analysis of the issue following Diaz and its progeny People v.
Belga:42

On June 26, 1959, the lower court reconsidered its Order of May 2, 1959 and dismissed the case,
holding: —

[T]he Court believes that the case falls squarely within the doctrine of double jeopardy enunciated in
People v. Belga, x x x In the case cited, Ciriaco Belga and Jose Belga were charged in the Justice of
the Peace Court of Malilipot, Albay, with the crime of physical injuries through reckless imprudence
arising from a collision between the two automobiles driven by them (Crim. Case No. 88). Without
the aforesaid complaint having been dismissed or otherwise disposed of, two other criminal
complaints were filed in the same justice of the peace court, in connection with the same collision
one for damage to property through reckless imprudence (Crim. Case No. 95) signed by the owner
of one of the vehicles involved in the collision, and another for multiple physical injuries through
reckless imprudence (Crim. Case No. 96) signed by the passengers injured in the accident. Both of
these two complaints were filed against Jose Belga only. After trial, both defendants were acquitted
of the charge against them in Crim. Case No. 88. Following his acquittal, Jose Belga moved to
quash the complaint for multiple physical injuries through reckless imprudence filed against him by
the injured passengers, contending that the case was just a duplication of the one filed by the Chief
of Police wherein he had just been acquitted. The motion to quash was denied and after trial Jose
Belga was convicted, whereupon he appealed to the Court of First Instance of Albay. In the
meantime, the case for damage to property through reckless imprudence filed by one of the owners
of the vehicles involved in the collision had been remanded to the Court of First Instance of Albay
after Jose Belga had waived the second stage of the preliminary investigation. After such remand,
the Provincial Fiscal filed in the Court of First Instance two informations against Jose Belga, one for
physical injuries through reckless imprudence, and another for damage to property through reckless
imprudence. Both cases were dismissed by the Court of First Instance, upon motion of the
defendant Jose Belga who alleged double jeopardy in a motion to quash. On appeal by the Prov.
Fiscal, the order of dismissal was affirmed by the Supreme Court in the following language: .

The question for determination is whether the acquittal of Jose Belga in the case filed by the chief of
police constitutes a bar to his subsequent prosecution for multiple physical injuries and damage to
property through reckless imprudence.

In the case of Peo[ple] v. F. Diaz, G. R. No. L-6518, prom. March 30, 1954, the accused was
charged in the municipal court of Pasay City with reckless driving under sec. 52 of the Revised
Motor Vehicle Law, for having driven an automobile in a ῾fast and reckless manner ... thereby
causing an accident.’ After the accused had pleaded not guilty the case was dismissed in that court
῾for failure of the Government to prosecute’. But some time thereafter the city attorney filed an
information in the Court of First Instance of Rizal, charging the same accused with damage to
property thru reckless imprudence. The amount of the damage was alleged to be ₱249.50. Pleading
double jeopardy, the accused filed a motion, and on appeal by the Government we affirmed the
ruling. Among other things we there said through Mr. Justice Montemayor —

The next question to determine is the relation between the first offense of violation of the Motor
Vehicle Law prosecuted before the Pasay City Municipal Court and the offense of damage to
property thru reckless imprudence charged in the Rizal Court of First Instance. One of the tests of
double jeopardy is whether or not the second offense charged necessarily includes or is necessarily
included in the offense charged in the former complaint or information (Rule 113, Sec. 9). Another
test is whether the evidence which proves one would prove the other that is to say whether the facts
alleged in the first charge if proven, would have been sufficient to support the second charge and
vice versa; or whether one crime is an ingredient of the other. x x x

xxxx

The foregoing language of the Supreme Court also disposes of the contention of the prosecuting
attorney that the charge for slight physical injuries through reckless imprudence could not have been
joined with the charge for homicide with serious physical injuries through reckless imprudence in this
case, in view of the provisions of Art. 48 of the Revised Penal Code, as amended. The prosecution’s
contention might be true. But neither was the prosecution obliged to first prosecute the accused for
slight physical injuries through reckless imprudence before pressing the more serious charge of
homicide with serious physical injuries through reckless imprudence. Having first prosecuted the
defendant for the lesser offense in the Justice of the Peace Court of Meycauayan, Bulacan, which
acquitted the defendant, the prosecuting attorney is not now in a position to press in this case the
more serious charge of homicide with serious physical injuries through reckless imprudence which
arose out of the same alleged reckless imprudence of which the defendant have been previously
cleared by the inferior court.43

Significantly, the Solicitor General had urged us in Silva to reexamine Belga (and hence, Diaz) "for
the purpose of delimiting or clarifying its application."44 We declined the invitation, thus:

The State in its appeal claims that the lower court erred in dismissing the case, on the ground of
double jeopardy, upon the basis of the acquittal of the accused in the JP court for Slight Physical
Injuries, thru Reckless Imprudence. In the same breath said State, thru the Solicitor General, admits
that the facts of the case at bar, fall squarely on the ruling of the Belga case x x x, upon which the
order of dismissal of the lower court was anchored. The Solicitor General, however, urges a re-
examination of said ruling, upon certain considerations for the purpose of delimiting or clarifying its
application. We find, nevertheless, that further elucidation or disquisition on the ruling in the Belga
case, the facts of which are analogous or similar to those in the present case, will yield no practical
advantage to the government. On one hand, there is nothing which would warrant a delimitation or
clarification of the applicability of the Belga case. It was clear. On the other, this Court has reiterated
the views expressed in the Belga case, in the identical case of Yap v. Hon. Lutero, etc., L-12669,
April 30, 1959.45 (Emphasis supplied)

Article 48 Does not Apply to Acts Penalized

Under Article 365 of the Revised Penal Code

The confusion bedeviling the question posed in this petition, to which the MeTC succumbed, stems
from persistent but awkward attempts to harmonize conceptually incompatible substantive and
procedural rules in criminal law, namely, Article 365 defining and penalizing quasi-offenses and
Article 48 on complexing of crimes, both under the Revised Penal Code. Article 48 is a procedural
device allowing single prosecution of multiple felonies falling under either of two categories: (1) when
a single act constitutes two or more grave or less grave felonies (thus excluding from its operation
light felonies46); and (2) when an offense is a necessary means for committing the other. The
legislature crafted this procedural tool to benefit the accused who, in lieu of serving multiple
penalties, will only serve the maximum of the penalty for the most serious crime.

In contrast, Article 365 is a substantive rule penalizing not an act defined as a felony but "the mental
attitude x x x behind the act, the dangerous recklessness, lack of care or foresight x x x,"47 a single
mental attitude regardless of the resulting consequences. Thus, Article 365 was crafted as one
quasi-crime resulting in one or more consequences.

Ordinarily, these two provisions will operate smoothly. Article 48 works to combine in a single
prosecution multiple intentional crimes falling under Titles 1-13, Book II of the Revised Penal Code,
when proper; Article 365 governs the prosecution of imprudent acts and their consequences.
However, the complexities of human interaction can produce a hybrid quasi-offense not falling under
either models – that of a single criminal negligence resulting in multiple non-crime damages to
persons and property with varying penalties corresponding to light, less grave or grave offenses. The
ensuing prosecutorial dilemma is obvious: how should such a quasi-crime be prosecuted? Should
Article 48’s framework apply to "complex" the single quasi-offense with its multiple (non-criminal)
consequences (excluding those amounting to light offenses which will be tried separately)? Or
should the prosecution proceed under a single charge, collectively alleging all the consequences of
the single quasi-crime, to be penalized separately following the scheme of penalties under Article
365?

Jurisprudence adopts both approaches. Thus, one line of rulings (none of which involved the issue
of double jeopardy) applied Article 48 by "complexing" one quasi-crime with its multiple
consequences48 unless one consequence amounts to a light felony, in which case charges were split
by grouping, on the one hand, resulting acts amounting to grave or less grave felonies and filing the
charge with the second level courts and, on the other hand, resulting acts amounting to light felonies
and filing the charge with the first level courts.49 Expectedly, this is the approach the MeTC impliedly
sanctioned (and respondent Ponce invokes), even though under Republic Act No. 7691,50 the MeTC
has now exclusive original jurisdiction to impose the most serious penalty under Article 365 which is
prision correccional in its medium period.

Under this approach, the issue of double jeopardy will not arise if the "complexing" of acts penalized
under Article 365 involves only resulting acts penalized as grave or less grave felonies because
there will be a single prosecution of all the resulting acts. The issue of double jeopardy arises if one
of the resulting acts is penalized as a light offense and the other acts are penalized as grave or less
grave offenses, in which case Article 48 is not deemed to apply and the act penalized as a light
offense is tried separately from the resulting acts penalized as grave or less grave offenses.
The second jurisprudential path nixes Article 48 and sanctions a single prosecution of all the effects
of the quasi-crime collectively alleged in one charge, regardless of their number or
severity,51 penalizing each consequence separately. Thus, in Angeles v. Jose,52 we interpreted
paragraph three of Article 365, in relation to a charge alleging "reckless imprudence resulting in
damage to property and less serious physical injuries," as follows:

[T]he third paragraph of said article, x x x reads as follows:

When the execution of the act covered by this article shall have only resulted in damage to the
property of another, the offender shall be punished by a fine ranging from an amount equal to the
value of said damage to three times such value, but which shall in no case be less than 25 pesos.

The above-quoted provision simply means that if there is only damage to property the amount fixed
therein shall be imposed, but if there are also physical injuries there should be an additional penalty
for the latter. The information cannot be split into two; one for the physical injuries, and another for
the damage to property, x x x.53 (Emphasis supplied)

By "additional penalty," the Court meant, logically, the penalty scheme under Article 365.

Evidently, these approaches, while parallel, are irreconcilable. Coherence in this field demands
choosing one framework over the other. Either (1) we allow the "complexing" of a single quasi-crime
by breaking its resulting acts into separate offenses (except for light felonies), thus re-conceptualize
a quasi-crime, abandon its present framing under Article 365, discard its conception under the
Quizon and Diaz lines of cases, and treat the multiple consequences of a quasi-crime as separate
intentional felonies defined under Titles 1-13, Book II under the penal code; or (2) we forbid the
application of Article 48 in the prosecution and sentencing of quasi-crimes, require single
prosecution of all the resulting acts regardless of their number and severity, separately penalize
each as provided in Article 365, and thus maintain the distinct concept of quasi-crimes as crafted
under Article 365, articulated in Quizon and applied to double jeopardy adjudication in the Diaz line
of cases.1avvphi 1

A becoming regard of this Court’s place in our scheme of government denying it the power to make
laws constrains us to keep inviolate the conceptual distinction between quasi-crimes and intentional
felonies under our penal code. Article 48 is incongruent to the notion of quasi-crimes under Article
365. It is conceptually impossible for a quasi-offense to stand for (1) a single act constituting two or
more grave or less grave felonies; or (2) an offense which is a necessary means for committing
another. This is why, way back in 1968 in Buan, we rejected the Solicitor General’s argument that
double jeopardy does not bar a second prosecution for slight physical injuries through reckless
imprudence allegedly because the charge for that offense could not be joined with the other charge
for serious physical injuries through reckless imprudence following Article 48 of the Revised Penal
Code:

The Solicitor General stresses in his brief that the charge for slight physical injuries through reckless
imprudence could not be joined with the accusation for serious physical injuries through reckless
imprudence, because Article 48 of the Revised Penal Code allows only the complexing of grave or
less grave felonies. This same argument was considered and rejected by this Court in the case of
People vs. [Silva] x x x:

[T]he prosecution’s contention might be true. But neither was the prosecution obliged to first
prosecute the accused for slight physical injuries through reckless imprudence before pressing the
more serious charge of homicide with serious physical injuries through reckless imprudence. Having
first prosecuted the defendant for the lesser offense in the Justice of the Peace Court of
Meycauayan, Bulacan, which acquitted the defendant, the prosecuting attorney is not now in a
position to press in this case the more serious charge of homicide with serious physical injuries
through reckless imprudence which arose out of the same alleged reckless imprudence of which the
defendant has been previously cleared by the inferior court.

[W]e must perforce rule that the exoneration of this appellant x x x by the Justice of the Peace x x x
of the charge of slight physical injuries through reckless imprudence, prevents his being prosecuted
for serious physical injuries through reckless imprudence in the Court of First Instance of the
province, where both charges are derived from the consequences of one and the same vehicular
accident, because the second accusation places the appellant in second jeopardy for the same
offense.54 (Emphasis supplied)

Indeed, this is a constitutionally compelled choice. By prohibiting the splitting of charges under
Article 365, irrespective of the number and severity of the resulting acts, rampant occasions of
constitutionally impermissible second prosecutions are avoided, not to mention that scarce state
resources are conserved and diverted to proper use.

Hence, we hold that prosecutions under Article 365 should proceed from a single charge regardless
of the number or severity of the consequences. In imposing penalties, the judge will do no more than
apply the penalties under Article 365 for each consequence alleged and proven. In short, there shall
be no splitting of charges under Article 365, and only one information shall be filed in the same first
level court.55

Our ruling today secures for the accused facing an Article 365 charge a stronger and simpler
protection of their constitutional right under the Double Jeopardy Clause. True, they are thereby
denied the beneficent effect of the favorable sentencing formula under Article 48, but any
disadvantage thus caused is more than compensated by the certainty of non-prosecution for quasi-
crime effects qualifying as "light offenses" (or, as here, for the more serious consequence
prosecuted belatedly). If it is so minded, Congress can re-craft Article 365 by extending to quasi-
crimes the sentencing formula of Article 48 so that only the most severe penalty shall be imposed
under a single prosecution of all resulting acts, whether penalized as grave, less grave or light
offenses. This will still keep intact the distinct concept of quasi-offenses. Meanwhile, the lenient
schedule of penalties under Article 365, befitting crimes occupying a lower rung of culpability, should
cushion the effect of this ruling.

WHEREFORE, we GRANT the petition. We REVERSE the Orders dated 2 February 2006 and 2
May 2006 of the Regional Trial Court of Pasig City, Branch 157. We DISMISS the Information in
Criminal Case No. 82366 against petitioner Jason Ivler y Aguilar pending with the Metropolitan Trial
Court of Pasig City, Branch 71 on the ground of double jeopardy.

Let a copy of this ruling be served on the President of the Senate and the Speaker of the House of
Representatives.

SO ORDERED.
People v. Guillen, L-1477, 18 January 1950, 85 Phil. 307.

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. L-1477 January 18, 1950

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
JULIO GUILLEN, defendant-appellant.

Mariano A. Albert for appellant.

Office of the Solicitor General Felix Bautista Angelo and Solicitor Francisco A. Carreon for appellee.

PER CURIAM, J.:

This case is before us for review of, and by virtue of appeal from, the judgment rendered by the
Court of First Instance of Manila in case No. 2746, whereby Julio Guillen y Corpus, or Julio C.
Guillen, is found guilty beyond reasonable doubt of the crime of murder and multiple frustrated
murder, as charged in the information, and is sentenced to the penalty of death, to indemnify the of
the deceased Simeon Valera (or Barrela) in the sum of P2,000 and to pay the costs.

Upon arraignment the accused entered a plea of not guilty to the charges contained in the
information.

Then the case was tried in one of the branches of the Court of First Instance of Manila presided over
by the honorable Buenaventura Ocampo who, after the submission of the evidence of the
prosecution and the defense, rendered judgment as above stated.

In this connection it should be stated that, at the beginning of the trial and before arraignment,
counsel de oficio for the accused moved that the mental condition of Guillen be examined. The
court, notwithstanding that it had found out from the answers of the accused to questions
propounded to him in order to test the soundness of his mind, that he was not suffering from any
mental derangement, ordered that Julio Guillen be confined for Hospital, there to be examined by
medical experts who should report their findings accordingly. This was done, and, according to the
report of the board of medical experts, presided over by Dr. Fernandez of the National Psychopathic
Hospital, Julio Guillen was not insane. Said report (Exhibit L), under the heading "Formulation and
Diagnosis," at pages 13 and 14, reads:

FORMULATION AND DIAGNOSIS

Julio C. Guillen was placed under constant observation since admission. There was not a
single moment during his whole 24 hours daily, that he was not under observation.

The motive behind the commission of the crime is stated above. The veracity of this
motivation was determined in the Narcosynthesis. That the narco-synthesis was successful
was checked up the day after the test. The narco-synthesis proved not only reveal any
conflict or complex that may explain a delusional or hallucinatory motive behind the act.
 Our observation and examination failed to elicit any sign or symptom of insanity in Mr. Julio
C. Guillen. He was found to be intelligent, always able to differentiate right from wrong, fully
aware of the nature of the crime he committed and is equally decided to suffer for it in any
manner or form.

His version of the circumstances of the crime, his conduct and conversation relative thereto,
the motives, temptations and provocations that preceded the act, were all those of an
individual with a sound mind.

On the other hand he is an man of strong will and conviction and once arriving at a decision
he executes, irrespective of consequences and as in this case, the commission of the act at
Plaza Miranda.

What is of some interest in the personality of Julio C. Guillen is his commission of some overt
acts. This is seen not only in the present instance, but sometime when an employee in la
Clementina Cigar Factory he engaged in a boxing bout Mr. Manzano, a Span-wanted to
abuse the women cigar makers, and felt it his duty to defend them. One time he ran after a
policeman with a knife in hand after being provoked to a fight several times. He even
challenged Congressman Nueno to a fight sometime before when Mr. Nueno was running for
a seat in the Municipal Board of the City of Manila, after hearing him deliver one of his
apparently outspoken speeches.

All these mean a defect in his personality characterized by a weakness of censorship

especially in relation to rationalization about the consequences of his acts.

In view of the above findings it is our considered opinion that Julio C. Guillen is not insane
but is an individual with a personality defect which in Psychiatry is termed, Constitutional
Psychopathic Inferiority.

Final Diagnosis

Not insane: Constitutional Psychopathic Inferiority, without psychosis.

In view of the above-quoted findings of the medical board, and notwithstanding the contrary opinion
of one Dr. Alvarez, who was asked by the defense to give his opinion on the matter, the court ruled
that Guillen, not being insane, could be tired, as he was tired, for the offenses he committed on the
date in question.

THE FACTS

Upon careful perusal of the evidence and the briefs submitted by counsel for the accused, the
Solicitor General and their respective memoranda, we find that there is no disagreement between
the prosecution and the defense, as to the essential facts which caused the filing of the present
criminal case against this accused. Those facts may be stated as follows:

On the dates mentioned in this decision, Julio Guillen y Corpus, although not affirmed with any
particular political group, has voted for the defeated candidate in the presidential elections held in
1946. Manuel A. Roxas, the successful candidate, assumed the office of President of the
Commonwealth and subsequently President of the President of the Philippine Republic. According to
Guillen, he became disappointed in President Roxas for his alleged failure to redeem the pledges
and fulfill the promises made by him during the presidential election campaign; and his
disappointment was aggravated when, according to him, President Roxas, instead of looking after
the interest of his country, sponsored and campaigned for the approval of the so-called "parity"
measure. Hence he determined to assassinate the President.

After he had pondered for some time over the ways and means of assassinating President Roxas,
the opportunity presented itself on the night of March 10, 1947, when at a popular meeting held by
the Liberal Party at Plaza de Miranda, Quiapo, Manila attended by a big crowd, President Roxas,
accompanied by his wife and daughter and surrounded by a number of ladies and gentlemen
prominent in government and politics, stood on a platform erected for that purpose and delivered his
speech expounding and trying to convince his thousand of listeners of the advantages to be gained
by the Philippines, should the constitutional amendment granting American citizens the same rights
granted to Filipino nationals be adopted.

Guillen had first intended to use a revolver for the accomplishment of his purpose, but having lost
said firearm, which was duly licensed, he thought of two hand grenades which were given him by an
American soldier in the early days of the liberation of Manila in exchange for two bottles of whisky.
He had likewise been weighing the chances of killing President Roxas, either by going to
Malacañan, or following his intended victim in the latter's trips to provinces, for instance, to Tayabas
(now Quezon) where the President was scheduled to speak, but having encountered many
difficulties, he decided to carry out his plan at the pro-parity meeting held at Plaza de Miranda on the
night of March 10, 1947.

On the morning of that he went to the house of Amando Hernandez whom he requested to prepare
for him a document (Exhibit B), in accordance with their pervious understanding in the preceding
afternoon, when they met at the premises of the Manila Jockey Club on the occasion of an "anti-
parity" meeting held there. On account of its materially in this case, we deem it proper to quote
hereunder the contents of said document. An English translation (Exhibit B-2) from its original
Tagalog reads:

FOR THE SAKE OF A FREE PHILIPPINES

I am the only one responsible for what happened. I conceived it, I planned it, and I carried it
out all by myself alone. It took me many days and nights pondering over this act, talking to
my own conscience, to my God, until I reached my conclusion. It was my duty.

I did not expected to live long; I only had on life to spare. And had I expected to lives to
spare, I would not have hesitated either ton sacrifice it for the sake of a principle which was
the welfare of the people.

Thousands have died in Bataan; many more have mourned the loss of their husbands, of
their sons, and there are millions now suffering. Their deeds bore no fruits; their hopes were
frustrated.

I was told by my conscience and by my God that there was a man to be blamed for all this:
he had deceived the people, he had astounded them with no other purpose than to entice
them; he even went to the extent of risking the heritage of our future generations. For these
reasons he should not continue any longer. His life would mean nothing as compared with
the welfare of eighteen million souls. And why should I not give up my life too if only the good
of those eighteen million souls.

These are the reasons which impelled me to do what I did and I am willing to bear up the
consequences of my act. I t matters not if others will curse me. Time and history will show, I
 am sure, that I have only displayed a high degree of patriotism in my performance of my said
act.

Hurrah for a free Philippines.

Cheers for the happiness of every Filipino home.

May God pity on me.

Amen.

JULIO C. GUILLEN

A copy (Exhibit B-1) of the original in Tagalog (Exhibit B), made at the request of Guillen by his
nephew, was handed to him only at about 6 o'clock in the afternoon of March 10, 1947, for which
reason said Exhibit B-1 appears unsigned, because he was in a hurry for that meeting at Plaza de
Miranda.

When he reached Plaza de Miranda, Guillen was carrying two hand grenades concealed in a paper
bag which also contained peanuts. He buried one of the hand grenades (Exhibit D), in a plant pot
located close to the platform, and when he decided to carry out his evil purpose he stood on the
chair on which he had been sitting and, from a distance of about seven meters, he hurled the
grenade at the President when the latter had just closed his speech, was being congratulated by
Ambassador Romulo and was about to leave the platform.

General Castañeda, who was on the platform, saw the smoking, hissing, grenade and without losing
his presence of mind, kicked it away from the platform, along the stairway, and towards an open
space where the general thought the grenade was likely to do the least harm; and, covering the
President with his body, shouted to the crowd that everybody should lie down. The grenade fell to
the ground and exploded in the middle of a group of persons who were standing close to the
platform. Confusion ensued, and the crowd dispersed in a panic. It was found that the fragments of
the grenade had seriously injured Simeon Varela (or Barrela ) — who died on the following day as
the result of mortal wounds caused by the fragments of the grenade (Exhibits F and F-1) — Alfredo
Eva, Jose Fabio, Pedro Carrillo and Emilio Maglalang.

Guillen was arrested by members of the Police Department about two hours after the occurrence. It
appears that one Angel Garcia, who was one spectators at that meeting, saw how a person who was
standing next to him hurled an object at the platform and, after the explosion, ran away towards a
barber shop located near the platform at Plaza de Miranda. Suspecting that person was the thrower
of the object that exploded, Garcia went after him and had almost succeeded in holding him, but
Guillen offered stiff resistance, got loose from Garcia and managed to escape. Garcia pursued him,
but some detectives, mistaking the former for the real criminal and the author of the explosion,
placed him under arrest. In the meantime, while the City Mayor and some agents of the Manila
Police Department were investigating the affair, one Manuel Robles volunteered the information that
the person with whom Angel Garcia was wrestling was Julio Guillen; that he (Manuel Robles) was
acquainted with Julio Guillen for the previous ten years and had seen each other in the plaza a few
moments previous to the explosion.

The police operatives interrogated Garcia and Robles, and Julio Guillen was, within two hours after
the occurrence, found in his home at 1724 Juan Luna Street, Manila, brought to the police
headquarters and identified by Angel Garcia, as the same person who hurled towards the platform
the object which exploded and whom Garcia tried to hold when he was running away.

During the investigation conducted by the police he readily admitted his responsibility, although at
the same time he tried to justify his action in throwing the bomb at President Roxas. He also
indicated to his captors the place where he had hidden his so called last will quoted above and
marked Exhibit B, which was then unsigned by him and subsequently signed at the police
headquarters.

Re-enacting the crime (Exhibit C), he pointed out to the police where he had buried (Exhibit C-1) the
other hand grenade (Exhibit D), and, in the presence of witnesses he signed a statement which
contained his answers to question propounded to him by Major A. Quintos of the Manila Police, who
investigated him soon after his arrest (Exhibit E). From a perusal of his voluntary statement, we are
satisfied that it tallies exactly with the declarations and made by him on the witness stand during the
trial of this case.

THE ISSUES

In the brief submitted by counsel de oficio for this appellant, several errors are assigned allegedly
committed by the trial court, namely: first, "in finding the appellant guilty of murder for the death of
Simeon Varela"; second, "in declaring the appellant guilty of the complex crime of murder and
multiple frustrated murder"; third, "in applying sub-section 1 of article 49 of the Revised Penal Code
in determining the penalty to be imposed upon the accused"; andfourth, "in considering the
concurrence of the aggravating circumstances of nocturnity and of contempt of public authorities in
the commission of crime."

The evidence for the prosecution, supported by the brazen statements made by the accused, shows
beyond any shadow of doubt that, when Guillen attended that meeting, carrying with him two hand
grenades, to put into execution his preconceived plan to assassinate President Roxas, he knew fully
well that, by throwing one of those two hand grenades in his possession at President Roxas, and
causing it to explode, he could not prevent the persons who were around his main and intended
victim from being killed or at least injured, due to the highly explosive nature of the bomb employed
by him to carry out his evil purpose.

Guillen, testifying in his own behalf, in answer to questions propounded by the trial judge (page 96 of
transcript) supports our conclusion. He stated that he performed the act voluntarily; that his purpose
was to kill the President, but that it did not make any difference to him if there were some people
around the President when he hurled that bomb, because the killing of those who surrounded the
President was tantamount to killing the President, in view of the fact that those persons, being loyal
to the President being loyal to the President, were identified with the latter. In other word, although it
was not his main intention to kill the persons surrounding the President, he felt no conjunction in
killing them also in order to attain his main purpose of killing the President.

The facts do not support the contention of counsel for appellant that the latter is guilty only of
homicide through reckless imprudence in regard to the death of Simeon Varela and of less serious
physical injuries in regard to Alfredo Eva, Jose Fabio, Pedro Carrillo and Emilio Maglalang, and that
he should be sentenced to the corresponding penalties for the different felonies committed, the sum
total of which shall not exceed three times the penalty to be imposed for the most serious crime in
accordance with article 70 in relation to article 74 of the Revised Penal Code.

In throwing hand grenade at the President with the intention of killing him, the appellant acted with
malice. He is therefore liable for all the consequences of his wrongful act; for in accordance with
article 4 of the Revised Penal Code, criminal liability is incurred by any person committing felony
(delito) although the wrongful act done be different from that which he intended. In criminal
negligence, the injury caused to another should be unintentional, it being simply the incident of
another act performed without malice. (People vs. Sara, 55 Phil., 939.) In the words of Viada, "in
order that an act may be qualified as imprudence it is necessary that either malice nor intention to
cause injury should intervene; where such intention exists, the act should qualified by the felony it
has produced even though it may not have been the intention of the actor to cause an evil of such
gravity as that produced.' (Viada's Comments on the Penal Code, vol. 7, 5th ed., p.7.) And, as held
by this Court, a deliberate intent to do an unlawful act is essentially inconsistent with the idea of
reckless imprudence. (People vs. Nanquil, 43 Phil., 232.) Where such unlawful act is wilfully done, a
mistake in the identity of the intended victim cannot be considered as reckless imprudence. (People
vs. Gona, 54 Phil., 605)

Squarely on the point by counsel is the following decision of the Supreme Court of Spain:

Cuestion 62. Se presenta A, a las ocho de la noche, en el estanco de B a comprar tabaco, y

habiendose negado este a darselo al fiado, se retira a quel sin mediar entre ambos disputa
alguna; pero; trnscurrido un cuarto de hora, hallandose el estanquero despachando a C, se
oye la detonacion de un arma de fuego disparada por A desde la calle, quedando muertos
en el acto C y el estanquero; supuesta la no intencion en A de matar a C y si solo al
estanquero, cabe calificar la muerte de este de homicidio y la de c de imprudencia
temeraria? — La Sala de lo Criminal de la Auudiencia de Granada lo estimo asi, y condeno
al procesado a catorse anos de reclusion por el homivcidio y a un año de prision correctional
por la imprudencia. Aparte de que la muerte del estanquero debio calificarse de assesinato y
no de homicidio, por haberse ejecutado con aleviosa. es evidente que la muerte de C,
suponiendo que no se propusiera ejecutaria el procesado, no pudo calificarse de
imprudencia teme raria, sino que tambien debio declararsele responsable de la misma, a
tenor de lo puesto en este apartado ultimo del articulo; y que siendo ambas muertes
producidas por un solo hecho, o sea por un solo disparo, debio imponerse al reo la pena del
delito de asesinato en el grado maximo, a tenor de lo dispuesto en el art. 90 del Codigo, o
sea la pena de muerte. Se ve, pues, claramente que en el antedicha sentencia, aparte de
otros articulos del Codigo, se infringio por la Sala la disposicion de este apartado ultimo del
articulo muy principalmente, y asi lo declaro el Tribunal Supremo en S. de 18 junio de 1872.
(Gaceta de 1,0 de agosto.) (I Viada, 5th Ed., p. 42.)

Article 48 of the Revised Penal Code provides as follows:

Art. 48. Penalty for Complex Crimes. — When a single act constitutes two or more grave or
less grave felonies, or when an offense is a necessary means for committing the other, the
penalty for the most serious crime shall be imposed, the same to be applied in its maximum
period.

We think it is the above-quoted article and not paragraph 1 of article 49 that is applicable. The case
before us is clearly governed by the first clause of article 48 because by a single act, that a throwing
highly explosive hand grenade at President Roxas, the accused committed two grave felonies,
namely: (1) murder, of which Simeon Varela was the victim; and (2) multiple attempted murder, of
which President Roxas, Alfredo Eva, Jose Fabio, Pedro Carrillo and Emilio Maglalang were the
injured parties.

The killing of Simeon Varela was attended by the qualifying circumstance of treachery. In the case
of People vs. Mabug-at, supra, this court held that the qualifying circumstance of treachery may be
properly considered, even when the victim of the attack was not the one whom the defendant
intended to kill, if it appears from the evidence that neither of the two persons could in any manner
put up defense against the attack, or become aware of it. In the same case it was held that the
qualifying circumstance of premeditation may not be properly taken into the account when the
person whom the defendant proposed to kill was different from the one who became his victim.

There can be no question that the accused attempted to kill President Roxas by throwing a hand
grenade at him with the intention to kill him, thereby commencing the commission of a felony by over
acts, but he did not succeed in assassinating him "by reason of some cause or accident other than
his own spontaneous desistance." For the same reason we qualify the injuries caused on the four
other persons already named as merely attempted and not frustrated murder.

In this connection, it should be stated that , although there is abundant proof that , in violation of the
provisions of article 148 of the Revised Penal Code, the accused Guillen has committed among
others the offense of assault upon a person in authority, for in fact his efforts were directed towards
the execution of his main purpose of eliminating President Roxas for his failure to redeem his
electoral campaign promises, by throwing at him in his official capacity as the Chief Executive of the
nation the hand grenade in question, yet, in view of the appropriate allegation charging Guillen with
the commission of said offense, we shall refrain making a finding to that effect.

The complex crimes of murder and multiple attempted murder committed by the accused with the
single act of throwing a hand grenade at the President, was attended by the various aggravating
circumstances alleged in the information, without any mitigating circumstance. But we do not deem it
necessary to consider said aggravating circumstances because in any event article 48 of the
Revised Penal Code above-quoted requires that the penalty for the most serious of said crimes be
applied in its maximum period. The penalty for murder is reclusion temporal in its maximum period to
death. (Art. 248.)

It is our painful duty to apply the law and mete out to the accused the extreme penalty provided by it
upon the facts and circumstances hereinabove narrated.

The sentence of the trial court being correct, we have no alternative but to affirm it, and we hereby
do so by a unanimous vote. The death sentence shall be executed in accordance with article 81 of
the Revised Penal Code, under authority of the Director of Prisons, on such working day as the trial
court may fix within 30 days from the date the record shall have been remanded. It is so ordered.
People v. Sabalones, G.R. No. 123485, 31 August 1998, 294 SCRA 751

FIRST DIVISION

[G.R. No. 123485. August 31, 1998]

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ROLUSAPE

SABALONES alias Roling, ARTEMIO TIMOTEO BERONGA,
TEODULO ALEGARBES and EUFEMIO CABANERO, accused,
ROLUSAPE SABALONES alias Roling and ARTEMIO TIMOTEO
BERONGA, accused-appellants.

DECISION
PANGANIBAN, J.:

Factual findings of trial courts which are affirmed by the Court of Appeals are, as a
general rule, binding and conclusive upon the Supreme Court. Alibi, on the other hand,
cannot prevail over positive identification by credible witnesses. Furthermore, alleged
violations of constitutional rights during custodial investigation are relevant only when the
conviction of the accused by the trial court is based on the evidence obtained during such
investigation.

The Case

These are the principles relied upon by the Court in resolving this appeal from the
Court of Appeals (CA)[1] Decision[2] dated September 28, 1995, convicting Rolusape
Sabalones and Timoteo Beronga of murder and frustrated murder. The convictions arose
from a shooting incident on June 1, 1985 in Talisay, Cebu, which resulted in the killing of
two persons and the wounding of three others, who were all riding in two vehicles which
were allegedly ambushed by appellants.
After conducting a preliminary investigation, Second Assistant Provincial Prosecutor
Juanito M. Gabiana Sr. filed before the Regional Trial Court (RTC) of Cebu City, Branch
7,[3] five amended Informations charging four John Does, who were later identified as
Rolusape Sabalones, Artemio Timoteo Beronga, Teodulo Alegarbes and Eufemio
Cabanero, with two counts of murder and three counts of frustrated murder. The
Informations are quoted hereunder.

1) Crim Case No. CBU-9257 for murder:

That on the 1st day of June, 1985, at 11:45 oclock in the evening, more or
less, at Mansueto Village, Bulacao, Municipality of Talisay, Province of Cebu,
Philippines, and within the jurisdiction of this Honorable Court, the above-
named accused, conspiring, confederating and mutually helping one another,
armed with high-powered firearms, with intent to kill and treachery, did then
and there wilfully, unlawfully and feloniously attack, assault and shoot GLENN
TIEMPO, who was riding [i]n a jeep and who gave no provocation, thereby
inflicting upon the latter several gunshot wounds, thereby causing his
instantaneous death.

CONTRARY TO Article 248 of the Revised Penal Code.

2) Criminal Case No. 9258 for murder:

That on the 1st day of June, 1985 at 11:45 oclock in the evening, more or less
at Mansueto Village, Barangay Bulacao, Municipality of Talisay, Province of
Cebu, Philippines, and within the jurisdiction of this Honorable Court, the
above-named accused, conspiring, confederating and mutually helping one
another, armed with high-powered firearms, with intent to kill and treachery,
did [then] and there wilfully, unlawfully and feloniously attack, assault and
shoot ALFREDO NARDO, who was riding on a jeep and who gave no
provocation, thereby inflicting upon the latter several gunshot wounds, thereby
causing his instantaneous death.

CONTRARY TO Article 248 of the Revised Penal Code.

3) Crim Case No. CBU-9259 for frustrated murder:

That on the 1st day of June, 1985 at 11:45 oclock in the evening, more or
less, at Mansueto Village, Barangay Bulacao, Municipality of Talisay, Province
of Cebu, Philippines, and within the jurisdiction of this Honorable Court, the
above-named accused conspiring, confederating and mutually helping one
another, armed with high-powered firearms, with intent to kill and treachery,
did and there wilfully, unlawfully and feloniously attack, assault and shoot REY
BOLO who was riding in a car and who gave no provocation, thereby inflicting
upon the latter the following injuries to wit:

laceration, mouth due to gunshot wound, gunshot wound (L) shoulder

penetrating (L) chest; gunshot wound (R) hand (palm); open fracture (L)
clavicle (L) scapula; contusion (L) lung;
thereby performing all the acts of execution which would produce the crime of
[m]urder as a consequence but which, nevertheless, did not produce it by
reason of causes independent of the will of the perpetrator, i.e. the timely
medical attendance.

IN VIOLATION of Article 248 of the Revised Penal Code.

4) Criminal Case No. 9260 for frustrated murder:

That on the 1st day of June, 1985 at 11:45 oclock in the evening, more or
less, at Mansueto Village, Barangay Bulacao, Municipality of Talisay, Province
of Cebu, Philippines, and within the jurisdiction of this Honorable Court, the
above-named accused conspiring, confederating and mutually helping one
another, armed with high-powered firearms, with intent to kill and treachery,
did then and there wilfully, unlawfully and feloniously attack, assault and shoot
ROGELIO PRESORES, who was riding in a car and who gave no
provocation, thereby inflicting upon the latter the following injuries, to wit:

gunshot wound, thru and thru right chest

thereby performing all the acts of execution which would produce the crime of
[m]urder as a consequence but which, nevertheless, did not produce it by
reason of causes independent of the will of the perpetrator, i.e. the timely
medical attendance.

IN VIOLATION of Article 248 of the Revised Penal Code.

5) Criminal Case No. 9261 for frustrated murder:

That on the 1st day of June, 1985 at 11:45 oclock in the evening, more or
less, at Mansueto Village, Barangay Bulacao, Municipality of Talisay, Province
of Cebu, Philippines, and within the jurisdiction of this Honorable Court, the
above-named accused conspiring, confederating and mutually helping one
another, armed with high-powered firearms, with intent to kill and treachery,
did then and there wilfully, unlawfully and feloniously attack, assault and shoot
NELSON TIEMPO, who was riding in a car and who gave no provocation,
thereby inflicting upon the latter the following injuries, to wit:

Gunshot wound neck penetrating wound perforating trachea (cricoid) thereby

performing all the acts of execution which would produce the crime of [m]urder
as a consequence but which nevertheless, did not produce it by reason of
causes independent of the will of the perpetrator, i.e. the timely medical
attendance.

IN VIOLATION of Article 248 of the Revised Penal Code.

Of the four indictees in the five Informations, Teodulo Alegarbes and Artemio Timoteo
Beronga were the first to be arraigned. Upon the arrest of the two, the Informations were
amended by the public prosecutor, with the conformity of the defense counsel, by
substituting the names of the two accused for the John Does appearing in the original
Informations. When arraigned, said accused, assisted by their respective lawyers,
pleaded not guilty to the five Informations.
Alegarbes died in the course of trial; thus, the cases against him were
dismissed. Accused Cabanero remained at large. Sabalones, on the other hand, was
eventually arrested.Subsequently, he jumped bail but was recaptured in 1988 and
thereafter pleaded not guilty during his arraignment.
The cases against Sabalones and Beronga were jointly tried. Thereafter, the lower
court found them guilty beyond reasonable doubt of the crimes charged. The RTC
disposed as follows:

WHEREFORE, premises above-set forth, the Court finds accused

ROLUSAPE SABALONES and (ARTEMIO) TIMOTEO BERONGA, [g]uilty
beyond reasonable doubt, as principals:

In Crim. Case No. CBU-9257, for MURDER, defined and penalized in Art. 248
of the Revised Penal Code, hereby sentences each said accused to suffer the
penalty of [f]ourteen (14) years, [e]ight (8) months and [o]ne (1) day, as
minimum, to [s]eventeen (17) years, [f]our (4) months and [o]ne (1) day, of
[r]eclusion [t]emporal, as maximum, to indemnify the heirs of deceased, Glenn
Tiempo, the sum of P50,000.00;

In Crim. Case No. CBU-9258, for MURDER, defined and penalized in Art. 248
of the Revised Penal Code, hereby sentences each said accused to suffer the
penalty of [f]ourteen (14) years, [e]ight (8) months and [o]ne (1) day, as
minimum, to [s]eventeen (17) years, [f]our (4) months and [o]ne (1) day, of
[r]eclusion [t]emporal, as maximum, to indemnify the heirs of deceased,
Alfredo Nardo, the sum of P50,000.00;

In Crim. Case No. CBU-9259, for FRUSTRATED MURDER, defined and

penalized in Art. 248 in relation to Art. 50 of the Revised Penal Code, hereby
sentences each said accused to suffer the penalty of [e]ight (8) years
of prision mayor, as minimum, to [f]ourteen (14) years and [e]ight (8) months
of [re]clusion [t]emporal, as maximum, to indemnify the victim, Rey Bolo, the
sum of P20,000.00;

In Crim. Case No. CBU-9260, for FRUSTRATED MURDER, defined and

penalized in Art. 248 in relation to Art. 50 of the Revised Penal Code, hereby
sentences each said accused to suffer the penalty of [e]ight (8) years
of prision mayor, as minimum, to [f]ourteen (14) years and [e]ight months of
[r]eclusion [t]emporal, as maximum, to indemnify the victim, Rogelio Presores,
the sum of P20,000.00;

In Crim. Case no. CBU-9261, for FRUSTRATED MURDER, defined and

penalized in Art. 248 in relation to Art. 50 of the Revised Penal Code, hereby
sentences each said accused to suffer the penalty of [e]ight (8) years
of prision mayor, as minimum, to [f]ourteen (14) years and [e]ight (8) months
of [r]eclusion [t]emporal, as maximum, to indemnify the victim, Nelson Tiempo,
the sum of P20,000.00; and

To pay the costs in all instances. The period of their preventive imprisonment
shall be credited to each accused in full.

SO ORDERED.[4]

Appellants filed a notice of appeal to the Court of Appeals. Thereafter, the CA

affirmed their conviction but sentenced them to reclusion perpetua for the murders they
were found guilty of. Accordingly, the appellate court, without entering judgment, certified
the case to the Supreme Court in accordance with Section 13, Rule 124 of the Rules of
Court. The dispositive portion of the CA Decision reads:

WHEREFORE, the Decision of the trial court convicting accused-appellants

Rolusa[p]e Sabalones and Artemio Timoteo Beronga for murder in Crim.
Cases Nos. CBU-9257 and CBU-9258, and [f]rustrated [m]urder in Crim.
Cases Nos. CBU-9259, CBU-9260, and CBU-9261 is hereby AFFIRMED;
however, the penalties in the [f]rustrated [m]urder and [m]urder cases are
hereby MODIFIED, such that both accused-appellants are each sentenced to
imprisonment of TEN (10) YEARS of [p]rision [m]ayor medium as minimum to
SEVENTEEN (17) YEARS and FOUR (4) MONTHS of
[r]eclusion [t]emporal medium as maximum in each of the three [f]rustrated
[m]urder cases (Crim. Cases Nos. CBU-9259, CBU-9260 and CBU-9261);
and are each sentenced to [r]eclusion [p]erpetua in each of the two [m]urder
cases (Crim. Cases Nos. CBU-9257 and CBU-9258). The indemnity to the
victim in each [f]rustrated [m]urder case shall remain. In conformity with Rule
124, Section 13 of the Rules of Court, however, this Court refrains from
entering judgment, and hereby certifies the case and orders that the entire
record hereof be elevated to the Supreme Court for review.[5]

After the Court of Appeals certified the case to this Court, we required appellants to
file supplemental briefs. Appellants failed to comply within the prescribed period and were
deemed to have waived their right to do so.[6] Thus, in resolving this case, this Court will
address primarily the arguments raised by the appellants in their Brief before the Court of
Appeals, which assailed the RTC Decision.

The Facts

Version of the Prosecution

The solicitor general[7] quoted the following factual findings of the trial court:

Edwin Santos, a resident of Mambaling, Cebu City stated that on June 1,

1985 at 6:00 oclock in the evening, he was at the residence of Inday
Presores, sister of Rogelio Presores, located at Rizal Ave., Cebu City to
attend a wedding. He stayed until 9:00 oclock in the evening and proceeded
to the house of Maj. Tiempo at Basak, Mambaling, Cebu City where a small
gathering was also taking place. (pp. 3-6, tsn, April 7, 1987)

Arriving thereat, he saw Nelson and Glenn Tiempo as well as Rogelio

Presores, Rogelio Oliveros, Junior Villoria, Rey Bolo and Alfredo Nardo. (p.
7, ibid.)

At about 11:00 oclock in the evening, Stephen Lim, who was also at the party,
called their group and requested them to push his car. When the engine
started, the former asked them to drive his car home. (pp. 7-11, ibid.)

Together with Nelson Tiempo, who was at the wheel, Rogelio Presores,
Rogelio Oliveros and Junior Villoria, they drove to the residence of Stephen
Lim at Mansueto Compound, Bulacao, Talisay, Cebu. (p. 12, ibid.)

Glenn Tiempo, Rey Bolo and Alfredo Nardo also went with them riding in an
owner-type jeep, driven by the latter, in order to bring back the group [as]
soon as the car of Mr. Lim was parked in his home. (p. 21, ibid.)

The two vehicles traveled in convoy with the jeep 3 to 4 meters ahead of the
car. When they arrived at the gate of the house of Stephen Lim, they were
met with a sudden burst of gunfire.He looked at the direction where the
gunfire came, and saw [the] persons [who] fired at the jeep. He identified
accused, Teodulo Alegarbes, Rolusape Sabalones and Timoteo Beronga as
the persons who fired at the vehicle. Except for Teodulo Alegarbes, who was
naked from [the] waist up, the gunmen wore clothes. (pp. 21-23; 13-16;
33, ibid.)

After firing at the jeep, the assailants shot the car they were riding[,] hitting
Nelson Tiempo on the throat and Rogelio Presores on the breast. Despite the
injury he sustained, Nelson Tiempo was able to maneuver the car back to
their residence. (pp. 17-19, ibid.)

He immediately informed Maj. Tiempo about the incident and the lat[t]er
brought the victims to the Cebu Doctors Hospital. (p. 20, ibid.)

Rogelio Presores corroborated in substance the testimony of Edwin Santos,

being one of those who were in the car driven by Nelson Tiempo to the
residence of Stephen Lim. (pp. 4-6, tsn, Aug. 14, 1987)

He further testified that when the jeep driven by Alfredo Nardo with Rey Bolo
and Glenn Tiempo as passengers arrived at the front gate of Lims residence
and while their car was 3 meters from the rear end of the jeep, there was a
volley of gunfire. He glanced at the direction of the gunfire and saw the jeep
being fired at by four persons, who were standing behind a concrete wall, 42
inches in height, and armed with long firearms. Thenceforth, he saw Alfredo
Nardo, Glenn Tiempo and Rey Bolo f[a]ll to the ground. (pp. 6-7, ibid.)

He recognized accused, Rolusape Sabalones, as one of those who fired at

the jeep. He also identified in Court accused, Teodulo Alegarbes, Timoteo
Beronga and another person, whom he recognized only through his facial
appearance. (pp. 7-8, ibid.)

When the shots were directed [at] their car[,] they were able to bend their
heads low. When the firing stopped, he directed Nelson Tiempo to back out
from the place. As the latter was maneuvering the car, the shooting continued
and he was hit in the breast while Nelson Tiempo, in the neck, and the
windshield of the vehicle was shattered. (p. 10, ibid.)

Arriving at the house of Maj. Tiempo, they were brought to Cebu Doctors
Hospital. He and Nelson Tiempo were operated on. He had incurred hospital
expenses in the sum of P5,412.69, (Exh. I, K). (pp. 11-12, ibid.)
Ladislao Diola, Jr., [m]edico-[l]egal [o]fficer of the PC Crime Laboratory,
Regional Unit 7 stationed at Camp Sotero Cabahug, Cebu City remembered
having performed a post-mortem examination on the dead body of Glenn
Tiempo on June 2, 1985 at the Cosmopolitan Funeral Homes, Cebu City. (p.
7, tsn, Nov. 11, 1987)

He issued the necessary Death Certificate, (Exh. D) and Necropsy Report,

(Exh. F) and indicated therein that the victims cause of death was [c]ardio
respiratory arrest due to [s]hock and [h]emorrhage [s]econdary to [g]unshot
wounds to the trunk. (p. 8, ibid.)

The victim sustained gunshot wounds in the right chest and left lumbar
area. (pp. 10-11, ibid.)

He explained that in gunshot wound no. 1, the wound entrance[,] which [was]
characterized by invaginated edges and contusion collar[,] was located in the
right chest and the bullet went up to the left clavicle hitting a bone which
incompletely fractured it causing the navigation of the bullet to the left and to
the anterior side of the body. He recovered a slug, (Exh. G) below the
muscles of the left clavicle. (p. 21, ibid.)

Based on the trajectory of the bullet, the assailant could have been [o]n the
right side of the victim or in front of the victim but [o]n a lower level than the
latter.

In both gunshot wounds, he did not find any powder burns which would
indicate that the muzzle of the gun was beyond a distance of 12 inches from
the target. (p. 15, ibid.)

At the time he conducted the autopsy, he noted that rigor mortis in its early
stage had already set in which denote[s] that death had occurred 5 to 6 hours
earlier. (pp. 34-5, ibid.)

Maj. Juan Tiempo, father of the victims, Glenn and Nelson Tiempo, testified
that when he learned about the incident in question, he immediately
summoned military soldiers and together they proceeded to the scene. (pp. 4-
6, tsn, Nov. 12, 1988)

Arriving thereat, he saw the lifeless body of his son, Glenn. He immediately
carried him in his arms and rushed him to the hospital but the victim was
pronounced Dead on Arrival. (pp. 6-7, ibid.)
They buried his son, who was then barely 14 years old, at Cebu Memorial
Park and had incurred funeral expenses (Exhs. K, L, O). (pp. 7-8, ibid.)

His other son, Nelson, then 21 years old and a graduate of [m]edical
[t]echology, was admitted at the Cebu Doctors Hospital for gunshot wound in
the neck. The latter survived but could hardly talk as a result of the injuries he
sustained. He had incurred medical and hospitalization expenses in the sum
of P21,594.22, (Exh. H), (pp. 8-10, ibid.)

He had also incurred expenses in connection with the hospitalization of the

injured victims, Rogelio Presores and Rey Bolo in the amount[s] of P5,412.69,
(exh. I) and P9,431.10, (Exh. J), respectively. (p. 11, ibid.)

He further stated that he [was] familiar with the accused, Roling Sabalones,
because the latter had a criminal record in their office in connection with the
kidnapping of a certain Zabate and Macaraya. (p. 16, ibid.)

xxxxxxxxx

Dr. Jesus P. Cerna, [m]edico-[l]egal [o]fficer of the PC/INP, Cebu

Metrodiscom, had conducted an autopsy on the dead body of Alfredo Nardo,
who sustained two (2) gunshot wounds in the lower lip and left intraclavicular
region, upon the request of the [c]hief of the Homicide Section of Cebu
Metrodiscom. He issued the victims Necropsy Report, (Exh. F) and Death
Certificate, (Exh. G). (pp. 5-8, tsn, Dec. 4, 1987; pp. 4-6, tsn, Nov. 29, 1988)

He stated that the wound of entrance in gunshot wound no. 1 was located in
the lower lip, more or less[,] on the left side making an exit in the left
mandibular region. (pp. 9-11, tsn, Dec. 4, 1987; pp. 6-8, tsn, Nov. 29, 1988)

In gunshot wound no. 2, the wound of entrance was in the left intraclavicular
region exiting at the back as reflected in the sketch, (Exh. F-2). This wound
was fatal and [could] almost cause an instantaneous death considering that
the bullet penetrated the thoracic cavity, lacerating the lungs and perforating
the heart before making an exit. (pp. 11-13, tsn, Dec. 4, 1987; pp. 13-15, tsn,
Nov. 29, 1988)

He found no tattooing around the wound of entrance in both gunshot

wounds. (pp. 8-9, tsn, Nov. 29, 1988)
He prepared and issued th[e] Necropsy Report, (Exh. F) and Death
Certificate, (Exh. G) of Alfredo Nardo who was identified to him by the latters
daughter, Anita Nardo. (pp. 26-27, ibid.)

Rey Bolo, one of the victims, testified that when the jeep he was riding [in]
together with Glenn Tiempo and Alfredo Nardo, reached the gate of the
residence of Stephen Lim, they were suddenly fired upon. (pp. 5-8, tsn, March
6, 1989)

He was hit in the right palm and left cheek. He jumped out of the vehicle and
ran towards the car which was behind them but he was again shot at [,] [and
hit] in the left scapular region. He was still able to reach the road despite the
injuries he sustained and tried to ask help from the people who were in the
vicinity but nobody dared to help him, [they] simply disappeared from the
scene, instead. (pp. 8-9, ibid.)

He took a passenger jeepney to the city and had himself treated at the Cebu
Doctors Hospital, and incurred medical expenses in the sum of P9,000.00. (p.
9, ibid.)

He was issued a Medical Certificate, (Exh. N) by his attending physician.

Dr. Miguel Mancao, a [p]hysician-[s]urgeon, recalled having attended [to] the

victims, Nelson Tiempo, Rey Bolo and Rogelio Presores at the Cebu Doctors
Hospital on June 2, 1985. (pp. 7-8, 11, 14, tsn, May 30, 1989)

Nelson Tiempo sustained gunshot wound[s] in the neck and in the right chest
but the bullet did not penetrate the chest cavity but only the left axilla. He was
not able to recover any slugs because the same disintegrated while the other
was thru and thru. The wound could have proved fatal but the victim
miraculously survived. As a consequence of the injury he sustained, Nelson
Tiempo permanently lost his voice because his trachea was shattered. His
only chance of recovery is by coaching and speech therapy. He issued his
Medical Certificate. (Exh. O).(pp. 8-11, ibid.)

With regard to the patient, Rey Bolo, the latter suffered multiple gunshot
wounds in the left shoulder penetrating the chest and fracturing the 2nd, 3rd,
and 4th ribs in the process, in the right hand fracturing the proximal right
thumb and in the mouth lacerating its soft tissues, per Medical Certificate,
(Exh. N) which he issued. (pp. 11-16, ibid.)
Based on the trajectory of the bullet, the gunman could have been in front of
the victim, when gunshot would no. 1 was inflicted. (p. 30, ibid.)

With respect to the patient, Rogelio Presores, the latter suffered [a] gunshot
wound in the chest with the wound of entrance in the right anterior chest
exiting at the back which was slightly lower than the wound of entrance. He
issued the victims Medical Certificate, (Exh. M). (pp. 34-35, ibid.)

Based on the location of the wound, the gunman could have been in front of
the victim but [o]n a slightly higher elevation than the latter. (pp. 35-36, ibid.)[8]

Version of the Defense

Appellants interposed denial and alibi. Their version of the facts is summarized by
the trial court[9] thus:

xxx Timoteo Beronga, a cristo or bet caller in the cockpit, testified that in the
afternoon of June 1, 1985, he was in the Talisay Sports Complex located at
Tabunok, Talisay, Cebu to attend a cock-derby.

At about 7:00 oclock in the evening, he was fetched by his wife and they left
taking a taxicab going to their residence in Lapulapu City. After passing by the
market place, they took a tricycle and arrived home at 8:00 oclock in the
evening.

After taking his supper with his family, he went home to sleep at 10:30 in the
evening. The following morning, after preparing breakfast, he went back to
sleep until 11:00 in the morning.

On February 24, 1987, while he was playing mahjong at the corner of R.R.
Landon and D. Jakosalem Sts., Cebu City, complainant, Maj. Juan Tiempo
with some companions, arrived and after knowing that he [was] Timmy, [which
was] his nickname, the former immediately held him by the neck.

He ran away but the latter chased him and kicked the door of the house where
he hid. He was able to escape through the back door and took refuge in
Mandaue at the residence of Nito Seno, a driver of Gen. Emilio Narcissi.(Tsn-
Abangan, pp. 4-17, October 19, 1989)

On February 27, 1987, upon the advi[c]e of his friend, they approached Gen.
Narcissi and informed him of the incident. The latter brought him to the
Provincial Command Headquarters in Lahug, Cebu City to confront Maj. Juan
Tiempo.

After several days, he was brought by Maj. Tiempo to the PC Headquarter[s]

in Jones Ave., Cebu City where he was provided with a lawyer to defend him
but he was instructed that he should assent to whatever his lawyer would ask
of him.

He was introduced to Atty. Marcelo Guinto, his lawyer, who made him sign an
Affidavit, (Exh. U) the contents of which, co[u]ched in the dialect, were read to
him.

He also testified that before he was detained at the CPDRC, complainant

brought him inside the shop of a certain Den Ong, where he was again
mauled after he denied having any knowledge of the whereabouts of Roling
Sabalones and the carbine.

At the instance of Col. Medija, he was physically examined at the Southern

Islands Hospital, Cebu City and was issued a [M]edical Certificate. (Tsn-
Formentera, pp. 3-36, Jan. 18, 1990).

Justiniano Cuizon, [a]ccount [o]fficer of the Visayan Electric Company (VECO)

South Extension Office, who is in charge of the billing, disconnection and
reconnection of electric current, testified that based on the entries in their
logbook, (Exh. 3) made by their checker, Remigio Villaver, the electrical
supply at the Mansueto Compound, Bulacao, Talisay, Cebu, particularly the
Mansueto Homeowners covered by Account No. 465-293000-0, (Exh. 4-B)
was disconnected on January 10, 1985, (Exh. 3-A) for non-payment of electric
bills from March 1984 to January 1985 and was reconnected only on June 17,
1985 (Exh. 4, 4-A). (Tsn-Abangan, pp. 22-27, Jan. 31, 1990).

Remigio Villaver, a checker of VECO, whose area of responsibility cover[ed]

the towns of Talisay and San Fernando, Cebu had kept the record of
disconnection of electrical supply of Mansueto Subdivision in Bulacao,
Talisay, Cebu and the same showed that on January 10, 1985, (Exh. 3-A), a
service order was issued by their office to the Mansueto Homeowners for the
permanent disconnection of their electric lights due to non-payment of their
electric bills from March 1984 until January 1985. The actual disconnection
took place on December 29, 1984.

Witness Fredo Canete made efforts to corroborate their testimony. (Tsn-

Formentera, pp.3-5, Apr. 20, 1990).
Vicente Cabanero, a resident of Mansueto Compound in Talisay, Cebu since
1957 until the present, remembered that on June 1, 1985, between 10:00
oclock and 11:00 oclock in the evening, he heard a burst of gunfire about 15
to 20 armslength [sic] from his residence.

He did not bother to verify because he was scared since the whole place was
in total darkness. (Tsn-Abangan, pp. 18-23, Feb. 22, 1990).

Marilyn Boc, another witness for the accused, stated that on the date and time
of the incident in question, while she was at the wake of Junior Sabalones,
younger brother of Roling Sabalones, who died on May 26, 1985, a sudden
burst of gunfire occurred more or less 60 meters away.

Frightened, she went inside a room to hide and saw accused, Roling
Sabalones, sound asleep.

She came to know accused, Timoteo Beronga, only during one of the
hearings of this case and during the entire period that the body of the late
Junior Sabalones [lay] in state at his residence, she never saw said accused.

She was requested to testify in this case by Thelma Beronga, wife of Timoteo
Beronga. (Tsn-Abangan, pp. 9-13, February 28, 1990).

Dr. Daniel Medina, while then the [r]esident [p]hysician of Southern Islands
Hospital, Cebu City had treated the patient, Timoteo Beronga on March 18,
1987.

Upon examination, he found out that the patient sustained linear abrasion,
linear laceration and hematoma in the different parts of the body. Except for
the linear laceration which he believed to have been inflicted two or three days
prior to [the] date of examination, all the other injuries were already healed
indicating that the same were inflicted 10 to 12 days earlier.

He issued the corresponding Medical Certificate (Exh. 2) to the patient. (Tsn-

Abangan, pp. 9-13, May 21, 1990).

Atty. Jesus Pono, counsel for accused Beronga, mounted the witness stand
and averred that he [was] a resident of Mansueto Compound, Bulacao,
Talisay, Cebu. As shown in the pictures, (Exhs. 3, 4 & 5 with submarkings) his
house is enclosed by a concrete fence about 5 feet 6 inches tall. It is situated
6 meters from the residence of accused, Roling Sabalones, which was then
being rented by Stephen Lim. Outside the fence [are] shrubs and at the left
side is a lamp post provided with 200 watts fluorescent bulb.

On June 1, 1985 at about 7:00 oclock in the evening, he saw Roling

Sabalones, whom he personally [knew] because they used to be neighbors in
Talisay, Cebu, at the wake of his brother, Federico Sabalones, Jr. or Junior
Sabalones, as mentioned repeatedly hereabout. They even had a talk and he
noticed accused to be physically indisposed being gravely affected by the loss
of his only brother, who met a violent death in the hands of an unknown
hitman on May 26, 1985.

He went home after he saw accused [lie] down on a bamboo bench to rest.

At about 12:00 oclock midnight, he was awakened by a rapid burst of gunfire

which emanated near his house. He did not attempt to go down or look
outside. He [was] in no position to tell whether or not the street light was
lighted.

When he verified the following morning, he noticed bloodstains on the ground

as well as inside the jeep which was parked 2 to 3 meters from his fence and
50 to 70 meters from the house where Junior Sabalones [lay] in state. He
observed that the jeep was riddled with bullets and its windshield shattered.
(Tsn-Abangan, pp. 3-16, June 6, 1990).

He admitted that he used to be a counsel of accused, Roling Sabalones, in

several cases, among which involved the death of a certain Garces and
Macaraya, which cases were however, dismissed by the Office of the
Provincial Fiscal of Cebu. (Tsn-Tumarao, pp. 2-3, June 13, 1990).

Doroteo Ejares, a relative of accused, testified that when he attended the

wake of Junior Sabalones on June 1, 1985 at 8:00 oclock in the evening, he
saw accused lying on a bamboo bench in the yard of the house of the
deceased.

At past 10:00 oclock in the evening, accused excused himself as he was not
feeling well and entered a room to rest while he remained by the door and
slept.

At almost 12:00 oclock midnight, he was awakened by a burst of gunfire which

took place more or less 20 meters away and saw the people scamper[ing] for
safety. He hid inside the room where accused was sleeping and peeped thru
the door. Not long after, Marilyn Boc entered and in a low voice talked about
the incident.

They decided to wake up the accused to inform him of what was happening,
but the latter merely opened his eyes and realizing that accused was too
weak, they allowed him to go back to sleep.

When he went home at past 5:00 oclock in the morning of June 2, 1985, he
saw a jeep outside of the compound. He did not bother to investigate or
inquire about the incident as he was in a hurry to go home and prepare for the
burial of Junior Sabalones.

He was requested to testify in this case by his aunt and mother of accused
Rolusape Sabalones. (Tsn-Tumarao, pp. 10-15, June 13, 1990).

Russo Sabalones, uncle of accused, Sabalones, averred that the latter was
once, one of his undercover agents while he was then the [c]hief of the
Intelligence Service of the PC from 1966 until 1968.

As part of their intelligence tradition, an undercover agent is not allowed to

carry his real name. In the case of his nephew and accused, Rolusape
Sabalones, the latter chose the name Paciano Laput which name was
recorded in their code of names.

When he retired in 1968, the accused ceased to be an agent and xxx likewise
ceased to have the authority to use the name Paciano Laput. (Tsn-Abangan,
p. 12, July 23, 1990).

Alfonso Allere, a distant relative of the accused, remembered having received

a call from Roling Sabalones, one morning after the burial of the latters
brother, asking for his advise because of the threats [to] his life which he
received thru telephone from the group of Nabing Velez and the group of the
military.

After he had advised accused to lie low, he had not heard of him, since then.

Godofredo Mainegro of the Public Assistance and Complaint Action Office of

the Regional Unified Command 7, received a complaint from one Inocencia
Sabalones on March 13, 1986.

He recorded the complaint in their Complaint Sheet, (Exh. 6) and let

complainant affix her signature.
After the document was subscribed and sworn to before him, (Exh. 6-C), he
indorsed it to their [c]ommanding [o]fficer, Apolinario Castano. (Tsn-
Formentera, pp. 3-10, July 24, 1990).

Ret. Col. Apolinario Castano, recalled that while he was then with the
Regional Unified Command 7, his niece, Racquel Sabalones together with her
husband Roling Sabalones, came to him for advi[c]e because the latter was
afraid of his life brought about by the rampant killings of which his brother and
the son of Maj. Tiempo were victims.

Considering that accuseds problem was a police matter, they approached

Gen. Ecarma, the then [c]ommander of the PC/INP, Recom 7, and the latter
referred them to his [c]hief of [s]taff, Col. Roger Denia, who informed them
that there was no case filed against the accused. Nevertheless, the latter was
advised to be careful and consult a lawyer.

Inocencia Sabalones, mother of accused, Roling Sabalones, narrated that on

March 12, 1986 at past 10:00 oclock in the evening, she was roused from
sleep by a shout of a man demanding for Roling Sabalones.

Upon hearing the name of her son, she immediately stood up and peeped
through the door of her store and saw men in fatigue uniforms carrying long
firearms. Thenceforth, these men boarded a vehicle and left.

On the following morning, she was again awakened by the persistent shouts
and pushing of the gate. When she verified, the man who introduced himself
to her as Maj. Tiempo, ordered her to open the gate. Once opened, the men
of Maj. Tiempo entered the house and proceeded to search for Roling
Sabalones, whom Maj. Tiempo suspected to have killed his son and shot
another to near death. When she demanded for a search warrant, she was
only shown a piece of paper but was not given the chance to read its
contents.

Racquel Sabalones, wife of accused, Rolusape Sabalones, maintained that

on June 1, 1985 at 1:00 oclock in the afternoon, she was at the wake of her
brother-in-law, Junior Sabalones, at his residence in Bulacao, Talisay, Cebu.

At 11:00 oclock in the evening of the same day, together with her 3 daughters
as well as Marlyn Sabarita, Rose Lapasaran and Gloria Mondejar, left the
place in order to sleep in an unoccupied apartment situated 30 meters away
from the house where her deceased, brother-in-law, Junior, was lying in state,
as shown in the Sketch, (Exh. 7 and submarkings) prepared by her. They
brought with them a flashlight because the whole place was in total darkness.

As they were about to enter the gate leading to her apartment she noticed a
sedan car coming towards them. She waited for the car to come nearer as
she thought that the same belong[ed] to her friend, but the vehicle instead
stopped at the corner of the road, (Exh. 7-F) and then proceeded to the end
portion of Mansueto Compound, (Exh. 7-G). As it moved slowly towards the
highway, she rushed inside the apartment.

Few minutes later, she heard a burst of gunfire outside their gate. She
immediately gathered her children and instructed Marlyn Sabarita to use the
phone situated at the third door apartment and call the police.

After the lull of gunfire, she went to the terrace and saw people in civilian and
in fatigue uniforms with firearms, gathered around the place. One of these
men even asked her about the whereabouts of her husband, whom she left
sleeping in the house of the deceased.

At 8:30 in the morning of June 2, 1985, during the burial of Junior Sabalones,
they were informed by Pedro Cabanero that Roling Sabalones was a suspect
for the death of Nabing Velez and the son of Maj. Tiempo.

She believed that the reason why her husband was implicated in the killing of
Nabing Velez was because of the slapping incident involving her father-in-law,
Federico Sabalones, Sr. and Nabing Velez which took place prior to the death
of Junior Sabalones.

After the funeral, she began to receive mysterious calls at their residence in
Sikatuna St., Cebu City where they began staying since 1978. She also
noticed cars with tinted windows strangely parked in front of their residence.

Frightened and cowed, they decided to seek the advice of Col. Apolinario
Castano, who after relating to him their fears, advised her husband to lie low
and to consult a lawyer.

To allay their apprehension, accused, Roling Sabalones, left Cebu City for
Iligan, Manila and other cities to avoid those who were after him. When she
learned about the threat made by Maj. Tiempo on her husband, she
forewarned the latter not to return to Cebu.
Marlyn Sabarita, an illegitimate daughter of Rolusape Sabalones, stated that
in the night in question, she was at the wake of Junior Sabalones and saw her
Papa Roling, the herein accused, lying on the lawn of the house of the
deceased.

She was already in the apartment with her Mama Racquel when she heard a
burst of gunfire. Upon instructions of the latter, she went out to call the police
thru the phone located [in] the third apartment occupied by a certain Jet. (Tsn-
Tumarao, pp. 3-15, Oct. 15, 1990).

Edward Gutang, [a]sst. lay-out [e]ditor and [a]sst. [s]ports [e]ditor of Sun-Star
Daily, while then a military and police reporter had covered the shooting
incident which took place on June 1, 1985 at the Mansueto Compound,
Bulacao, Talisay, Cebu.

At past 1:00 oclock dawn, together with their newspaper photographer,

Almario Bitang, they went to the crime scene boarding the vehicle of the
Cosmopolitan Funeral Homes. Arriving thereat, they decided not to proceed
inside the compound because of fear. The place was then in complete
darkness.

Upon being informed that the victims were brought to Cebu City Medical
Center, they rushed to the place and met Maj. Tiempo hugging the dead body
of his 14-year old son. His photographer took a picture of that pathetic
scene. (Exh. 8-B).

Samson Sabalones, a retired [a]mbassador and uncle of Rolusape

Sabalones, posted a bail bond for his nephew with Eastern Insurance
Company, when a warrant for his arrest was issued by the Municipal Court, on
March 12, 1986 because he was bothered by the fact that the latter was being
unreasonably hunted by several groups. He even advised the accused to
appear in [c]ourt to clarify the nature of the case filed against him.

Virgincita Pajigal, a resident of Butuan City, met accused, Rolusape

Sabalones, who introduced himself to her as Paciano Laput nicknamed,
Ondo, in a massage clinic where she was working.

For less than a year, they lived together as husband and wife without the
benefit of marriage because according to her the accused was married but
separated from his wife, whose name was never mentioned to her. For such a
short span of time being together, her love for the accused developed to the
extent that whatever happen[ed] to him, she [would] always be there to defend
him.

With the help of Maj. delos Santos, who advised her to always stay close [to]
the accused, she was able to board the same vessel. She saw the latter clad
in green T-shirt, (Exh. 14) and pants, handcuffed and guarded.

Reaching Cebu City, they took a taxicab and as the vehicle went around the
city, she was instructed by Maj. Tiempo to place the towel, (Exh. 15) which
she found inside her bag, on the head of the accused. They stopped at the
Reclamation Area and Maj. Tiempo pulled them out of the vehicle but she
held on tightly to Ondo, ripping his shirt. This pulling incident happened for
several times but complainant failed to let them out of the vehicle.

The accused was finally brought to the Provincial Jail while she stayed in the
residence of the accused. She returned to Butuan after a week. (Tsn-
Formentera, pp. 5-33, Jan. 22, 1991).

Accused, Rolusape Sabalones, alias Roling, in his defense, with ancillary

incidental narrations, testified , that on June 1, 1985 at 6:00 oclock in the
evening, he was at the wake of his only brother, Junior Sabalones, who was
killed on May 26, 1985.

He had no idea as to who was responsible for the killing of his brother
inasmuch as the latter had plenty of enemies. He also did not exert effort to
look into the case and to place it under police authority since he had lost faith
in the capabilities of the police. The matter was however reported by his
uncle, Ambassador Sabalones, to the authorities.

He stayed at the wake until 10:00 oclock in the evening because he was not
feeling well. He retired in a small room adjacent to the sala of the house of the
deceased. Not long after, he felt somebody waking him up but he merely
opened his eyes and went back to sleep as he was really exhausted.

At 6:30 the following morning, he was roused by his wife so he could prepare
for the burial. He came to know about the burst of gunfire which took place the
previous night upon the information of his wife. He did not take the news
seriously as he was busy preparing for the burial of his deceased brother, Jun.

The funeral started at past 8:00 oclock in the morning and he noticed the
presence of Maj. Eddie Ricardo and his men, who were sent by Col. Castano
purposely to provide the burial with military security, upon the request of his
wife.

He had a conversation with Maj. Ricardo who inquired about the shooting
incident which resulted in the death of the son of Maj. Tiempo and others in
his company. Also in the course of their conversation, he came to know that
Nabing Velez was killed earlier on that same night in Labangon, Cebu [C]ity.

On the same occasion, Pedro Cabanero also notified him that he was a
suspect in the killing of Nabing Velez, a radio commentator of ferocious
character, who was engaged in a protection racket with several under his
control.

He remembered that a month prior to the death of Nabing Velez, his father,
Federico Sabalones, Sr. and the deceased while matching their fighting cocks
at the Talisay Sports Complex, had an altercation and the latter slapped his
paralytic father and challenged him to ask one of his sons to avenge what he
had done to him. He came to know about the incident only after a week.

He did not deny the fact that he was hurt by the actuation of the deceased for
humiliating his father but it did not occur to him to file a case or take any
action against the deceased because he was too busy with his business and
with his work as a bet caller in the cockpit.

He advised his father to stay in Bohol to avoid further trouble because he

knew that the latter would frequent the cockpit[,] being a cockfight aficionado.

Likewise, during the burial, he was informed by a PC soldier, Roger Capuyan,

that he was also a suspect in the killing of the son of Maj. Tiempo and even
advised him to leave the place.

On the following days after the burial, his wife started to notice cars
suspiciously parked in front of their house and [she] also received mysterious
calls.

Together with his wife, they decided to see Col. Apolinario Castao to seek his
advise. The latter verified from the Cebu Metrodiscom and learned that there
was no case filed against him.

In the evening of June 6, 1985, he left for Iligan and after a month, he
transferred to Ozamis and then to Pagadian. He likewise went to Manila
especially when he learned that his uncle, Samson Sabalones, had arrived
from abroad. The latter posted a bond for his temporary liberty immediately
after being informed that a case was filed against him, before the Municipal
Court of Talisay.

Despite xxx the bond put up by his uncle, he did not return to Cebu City
because it came to his knowledge that Maj. Tiempo inquired from the bonding
company as to his address.

He also stayed in Marikina in the house of his friend and during his stay in the
said place, he registered as a voter and was issued a Voters Affidavit, (Exh.
19; Exh. R for the prosecution) which bore the name Paciano Mendoza Laput
which [was] his baptismal name. He explained that the name[s] Mendoza and
Laput [were] the middle name and surname, respectively of his mother. The
name Rolusape was given to him by his father and the same [was] not his
registered name because during the old days, priests would not allow parents
to name their children with names not found in the Almanac; thus, Paciano
[was] his chosen name and the same appeared in his Baptismal Certificate,
(Exh. 20) issued by the Parish of the Blessed Trinity of Talibon, Bohol. In his
Birth Certificate, it [was] the name Rolusape which appeared based upon the
data supplied by his father.

He had used the name Paciano during the time when he [was] still a secret
agent under his uncle, Gen. Russo Sabalones, when the latter was still the
[c]hief of the C-2 in 1966 until 1967 and as such, he was issued a firearm. He
likewise used said name at the time he was employed at the Governors Office
in Agusan and when he registered in the Civil Service Commission to conceal
his identity to protect himself from those who were after him.

From Marikina he proceeded to Davao and then to Butuan City where he was
made to campaign for the candidacy of Gov. Eddie Rama. When the latter
won in the election, he was given a job at the Provincial Capitol and later
became an agent of the PC in Butuan using the name, Paciano Laput.

During his stay in Butuan, he met Virgie Pajigal, a manicurist who became his
live-in partner.

On October 23, 1988 while he was at the Octagon Cockpit in Butuan with Sgt.
Tambok, he was arrested by Capt. Ochate and was brought to the PC
Headquarter[s] in Libertad, Butuan City and was detained. Among the papers
confiscated from him was his Identification Card No. 028-88, (Exh. 21) issued
by the PC Command bearing the name Paciano Laput.
On October 26, 1988 he was taken from the City Jail by Capt. Ochate and
some soldiers, one of whom was Maj. Tiempo whom he met for the first time.

On their way to Nasipit to board a vessel bound for Cebu City, Maj. Tiempo
made him lie flat on his belly and stepped on his back and handcuffed him. He
cried in pain because of his sprained shoulder. A certain soldier also took his
watch and ring.

Arriving in Cebu at 7:00 oclock in the morning, he and Virgie Pajigal, who
followed him in the boat, were made to board a taxicab. Maj. Tiempo alighted
in certain place and talked to a certain guy. Thereafter, they were brought to
the Reclamation Area and were forced to go down from the vehicle but Virgie
Pajigal held him tightly. They were again pulled out of the taxi but they
resisted.

From the Capitol Building, they proceeded to CPDRC and on their way
thereto, Maj. Tiempo sat beside him inside the taxi and boxed him on the right
cheek below the ear and pulled his cuffed hands apart.

At the Provincial Jail, he was physically examined by its resident physician,

Dr. Dionisio Sadaya, and was also fingerprinted and photographed, (Exh.
21). He was issued a Medical Certificate, (Exh. 22).

He further stated that he [was] acquainted with his co-accused Timoteo

Beronga, known to him as Timmy being also a bet caller in the cockpit. (Tsn-
Formentera, pp. 5-23, Feb. 26, 1991; Tsn-Abangan, pp. 3-33, Feb. 27, 1991;
Tsn-Abangan, pp. 4-18, Apr. 10, 1991).

As surrebuttal witness, accused Rolusape Sabalones denied that he bribed a

certain soldier because at the time he was arrested, his wallet as well as his
wristwatch and ring worth P2,000.00 each were confiscated and his hands
tied behind his back.

He also denied the allegation of Maj. Tiempo that he offered the latter the
amount of P1,000.000.00 to drop the case against him, the truth being that
while they were on board a vessel bound for Cebu City, Maj. Tiempo
compelled him to tell [who] the real killers of his son [were] because he knew
that he (Rolusape Sabalones) was not responsible. The former also inquired
from him as to the whereabouts of the carbine.

He also rebutted complainants testimony that upon their arrival here in Cebu
City and while on board a taxicab, he directed the former [to] first go around
the city to locate a certain Romeo Cabaero, whom he did not know
personally.[10]

Ruling of the Court of Appeals

Giving full credence to the evidence of the prosecution, the Court of Appeals affirmed
the trial courts Decision convicting appellants of two counts of murder and three counts
of frustrated murder. Like the trial court, it appreciated the qualifying circumstance of
treachery and rejected appellants defense of alibi.
The Court of Appeals, however, ruled that the penalties imposed by the trial court
were erroneous. Hence, for each count of murder, it sentenced appellants to reclusion
perpetua. For each count of frustrated murder, it imposed the following penalty: ten years
(10) of prision mayor (medium), as minimum, to seventeen years (17) years and four (4)
months of reclusion temporal (medium), as maximum. Sustaining the trial court, the Court
of Appeals awarded indemnity of P20,000 to each of the victims of frustrated
murder. However, it was silent on the indemnity of P50,000 awarded by the trial court to
the heirs of each of the two deceased.
Having imposed reclusion perpetua on the appellants, the Court of Appeals, as
earlier noted, refrained from entering judgment and certified the case to the Supreme
Court for review, in conformity with Section 13, Rule 124 of the Rules of Court.
Hence, this appeal before this Court.[11]

The Issues

In his Brief,[12] Appellant Sabalones raised the following errors allegedly committed by
the trial court:
I

The court a quo erred in finding that accused Sabalones and his friends left
the house where his brother Sabalones Junior was lying in state and went to
their grisly destination amidst the dark and positioned themselves in defense
of his turf against the invasion of a revengeful gang of the supporters of
Nabing Velez.
II

The court a quo erred in finding that accused Sabalones and his two co-
accused were identified as among the four gunmen who fired at the victims.
III
The court a quo erred in overlooking or disregarding physical evidence that
would have contradicted the testimony of prosecution witnesses Edwin Santos
and Rogelio Presores that the gunmen were shooting at them from a standing
position.
IV

The court a quo erred in holding that the instant case is one of aberratio ictus,
which is not a defense, and that the defense of alibi interposed by the
accused may not be considered.
V

The court a quo erred in not finding that the evidence of the prosecution has
not overcome the constitutional presumption of innocence in favor of the
accused.
VI

The court a quo erred in not acquitting the accused on ground of reasonable
doubt.

In a Manifestation dated December 20, 1995, Appellant Beronga, through

counsel, adopted as his own the Brief of Sabalones.[13]

The foregoing assignment of errors shall be reformulated by the Court into

these three issues or topics: (1) credibility of the witnesses and sufficiency of
the prosecution evidence, (2) defense of denial and alibi, and (3)
characterization of the crimes committed and the penalty therefor.

The Courts Ruling

The appeal is devoid of merit.

First Issue:

Credibility of Witnesses and Sufficiency of Evidence

Well-entrenched is the tenet that this Court will not interfere with the trial courts
assessment of the credibility of the witnesses, absent any indication or showing that the
trial court has overlooked some material facts or gravely abused its
discretion,[14] especially where, as in this case, such assessment is affirmed by the Court
of Appeals. As this Court has reiterated often enough, the matter of assigning values to
declarations at the witness stand is best and most competently performed or carried out
by a trial judge who, unlike appellate magistrates, can weigh such testimony in light of the
accuseds behavior, demeanor, conduct and attitude at the trial.[15] Giving credence to the
testimonies of the prosecution witnesses, the trial court concluded:

Stripped of unnecessary verbiage, this Court, given the evidence, finds that
there is more realism in the conclusion based on a keener and realistic
appraisal of events, circumstances and evidentiary facts on record, that the
gun slaying and violent deaths of Glenn Tiempo and Alfredo Nardo, and the
near fatal injuries of Nelson Tiempo, Rey Bolo and Rogelio Presores, resulted
from the felonious and wanton acts of the herein accused for mistaking said
victims for the persons [who were] objects of their wrath.[16]

We stress that factual findings of the lower courts, the trial court and the Court of
Appeals are, as a general rule, binding and conclusive upon the Supreme Court.[17] We
find nothing in the instant case to justify a reversal or modification of the findings of the
trial court and the Court of Appeals that appellants committed two counts of murder and
three counts of frustrated murder.
Edwin Santos, a survivor of the assault, positively pointed to and identified the
appellants as the authors of the crime. His categorical and straightforward testimony is
quoted hereunder:[18]
COURT:
Q You stated there was a gun fired. What happened next?
WITNESS:
A There was a rapid fire in succession.
Q When you heard this rapid firing, what did you do?
A I tried to look from where the firing came from.
Q After that, what did you find?
A I saw persons firing towards us.
Q Where were these persons situated when they were firing towards you?
A Near the foot of the electric post and close to the cemented wall.
Q This electric post, was that lighted at that moment?
A Yes, sir, it was lighted.
Q How far were these persons firing, to the place where you were?
 A From here to there (The witness indicating the distance by pointing to a place inside the
courtroom, indicating a distance of about 6 to 7 meters, making the witness stand as the
point of reference).
Q Were you able to know how many persons fired towards you?
A I only saw 3 to 4 persons.
Q How long did these persons fire the guns at you?
A Until we went home. The persons were still firing, until we went home.
Q You stated that you saw these persons who were firing at you. Do you know these persons?
A I can identify [them] when I [see] them.
Q Try to look around this courtroom, if these persons you saw who were firing at you are
present in the courtroom[.]
A Yes, sir.
Q Can you point to these persons?
A Yes, sir.
Q Point at them.
COURT INTERPRETER:
The Court directed the witness to go down from the witness stand and [point] at them, Beronga
and Alegarbes.
FISCAL GABIANA:
I would like to make it of record that on the bench of prisoner, only the two accused were
seated.
COURT:
Make it of record that only two prisoners were present.
Q Now, Mr. Santos, aside from these two accused you identified as among those who fired [at]
you on that evening, were there other persons that you saw on that particular occasion
who fired at you?
A Yes, sir, there were[;] if I can see them, I can identify them.
Corroborating the foregoing, Rogelio Presores, another survivor, also pointed to
Timoteo Beronga, Teodulo Alegarbes and Roling Sabalones as the perpetrators of the
crime. His testimony proceeded in this manner:[19]
Q When you arrived at the residence of Stephen Lim, can you remember of any unusual
incident that took place?
A Yes, sir.
Q What was that?
A When the jeep arrived, the car was following.
Q What happened next?
A When the jeep was near the gate, the car was following.
Q The car was following the jeep, at what distance?
A 3 to 4 meters.
Q While the car was following the jeep at that distance of 3 to 4 meters, what happened?
A All of a sudden, we heard the burst of gunfire.
Q From what direction was the gunfire?
A Through the direction of the jeep.
Q After hearing the gunfire, what happened?
A We looked at the jeep.
Q What did you see?
A We saw Alfredo Nardo and Glenn Tiempo and Rey Bolo f[a]ll to the ground. There were only
3.
Q Who was driving the jeep at that time?
A Alfredo Nardo.
Q What happened after that?
A So, I looked, whence the burst of gunfire came from.
Q What did you see from that gunfire?
A I saw 4 persons standing at the back of the fence.
Q What were those 4 persons doing when they were standing at the back of the fence?
A They were bringing long firearms.
Q Did you recognize these persons?
A I can clearly recognize one and the 3 persons[.] I can identify them, if I can see them again.
Q If you are shown these persons, can you recognize them? Can you name these persons?
A No, sir. Only their facial appearance.
Q What about the 3 persons?
A Thats why the 3 persons, I do not know them. I can recognize only their facial appearance.
Q What about one person?
A Yes, sir.
Q What is the name of the person?
A Roling Sabalones.
Q If Roling Sabalones is inside the courtroom, can you recognize Roling Sabalones?
A Yes, sir, he is around.
Q Can you point to Roling Sabalones?
 A Yes, he is there (The witness pointing to the person who answered the name of Roling
Sabalones).
Q I would like [you] again to please look around and see, if those persons whom you know
through their faces, if they are here around?
A The two of them (The witness pointing to the 2 persons, who, when asked, answered that
his name [was] Teofilo Beronga and the other [was] Alegarbes).
Indeed, we have carefully waded through the voluminous records of this case and
the testimonies of all the fifty-nine witnesses, and we find that the prosecution has
presented the required quantum of proof to establish that appellants are indeed guilty as
charged. Appellants arguments, as we shall now discuss, fail to rebut this conclusion.

Positive Identification

Appellants allege that the two witnesses could not have properly identified the
appellants because, after the first burst of shooting, they both crouched down, such that
they could not have seen the faces of their assailants. This contention does not
persuade. Both eyewitnesses testified that the firing was not continuous; thus, during a
lull in the firing, they raised their heads and managed a peek at the perpetrators. Edwin
Santos testified as follows:
Atty. Albino, counsel for accused Beronga:
Q You mean to say that when you bent you heard the successive shots, [and] you again raised
your head. Is that correct?
A There were times that the shots were not in succession and continuous and that was the
time I raised my head again.[20]
Like Santos, Rogelio Presores also stooped down when the firing started, but he
raised his head during a break in the gunfire:
Atty. Albino:
Q So, what did you do when you first heard that one shot?
A So, after the first shot, we looked towards the direction we were facing and when we heard
the second shot, that was the time we stooped down.[21]
He further testified:
Atty. Acido: [Counsel for Appellant Sabalones]
Q And you said you stooped down inside the car when you heard the first firing to the jeep. Is
that what you want the Court to understand[?]
Presores:
A Yes, sir.
Q So, you never saw who fired the successive shots to the car as you said you stooped down
inside the car?
 A The bursts of gunfire stopped for a while and that was the time I reared of [sic] my head.
Q And that was the first time you saw them?
A Yes, sir.[22]
The records clearly show that two vehicles proceeded to the house of Stephen Lim
on that fateful day. The first was the jeep where Alfredo Nardo, Glenn Tiempo and Rey
Bolo were riding. About three to four meters behind was the second car carrying Nelson
Tiempo, Guillermo Viloria, Rogelio Oliveros and the two prosecution witnesses -- Edwin
Santos and Rogelio Presores.[23] As stated earlier, said witnesses attested to the fact that
after the first volley of shots directed at the jeep, they both looked at the direction where
the shots were coming from, and they saw their friends in the jeep falling to the ground,
as well as the faces of the perpetrators.[24] It was only then that a rapid succession of
gunshots were directed at them, upon which they started crouching to avoid being hit.
Hence, they were able to see and identify the appellants, having had a good look at
them after the initial burst of shots. We stress that the normal reaction of a person is to
direct his sights towards the source of a startling shout or occurrence. As held in People
v. Dolar,[25] the most natural reaction for victims of criminal violence is to strive to see the
looks and faces of their assailants and to observe the manner in which the crime is
committed.
In bolstering their claim that it was impossible for the witnesses to have identified
them, appellants further aver that the crime scene was dark, there being no light in the
lampposts at the time. To prove that the service wire to the street lamps at the Mansueto
Compound was disconnected as early as December 1984 and reconnected only on June
27, 1985, they presented the testimonies of Vicente Cabanero,[26] Remigio
Villaver,[27] Fredo Canete[28]and Edward Gutang.[29] The trial court, however, did not lend
weight to said testimonies, preferring to believe the statement of other prosecution
witnesses that the place was lighted during that time.
The Court of Appeals sustained said findings by citing the testimonies
of defense witnesses. Fredo Canete of the Visayan Electric Company (VECO), for
instance, admitted that it was so easy to connect and disconnect the lights. He testified
thus:
Atty. Kintanar:
Q Now, as a cutter, what instruments do you usually use in cutting the electrical connection of
a certain place?
Canete:
A Pliers and screw driver.
Q Does it need xxx very sophisticated instruments to disconnect the lights?
A No, these are the only instruments we use.
Q Ordinary pliers and ordinary screw driver?
A Yes, sir.
Q And does [one] need to be an expert in electronic [sic] in order to conduct the disconnection?
 A No, sir.
Q In other words, Mr. Canete, any ordinary electrician can cut it?
A That is if they are connected with the Visayan Electric Company.
Q What I mean is that, can the cutting be done by any ordinary electrician?
A Yes, sir.[30]
Said witness even admitted that he could not recall if he did in fact cut the electrical
connection of the Mansueto Compound.[31] The Court of Appeals further noted that none
of the above witnesses were at the crime scene at or about the exact time that the ambush
occurred. Thus, none was in a position to state with absolute certainty that there was
allegedly no light to illuminate the gunmen when they rained bullets on the victims. [32]
Even assuming arguendo that the lampposts were not functioning at the time, the
headlights of the jeep and the car were more than sufficient to illuminate the crime
scene.[33] The Court has previously held that the light from the stars or the moon, an oven,
or a wick lamp or gasera can give ample illumination to enable a person to identify or
recognize another.[34] In the same vein, the headlights of a car or a jeep are sufficient to
enable eyewitnesses to identify appellants at the distance of 4 to 10 meters.

Extrajudicial Statement of Beronga

Appellants insist that Berongas extrajudicial statement was obtained through violence
and intimidation. Citing the res inter alios acta rule, they also argue that the said
statement is inadmissible against Sabalones. Specifically, they challenge the trial courts
reliance on the following portions of Berongas statement:
Q After Roling knew that Na[b]ing Velez was killed, have you observed [if] Roling and his
companions prepared themselves for any eventuality?
A It did not take long after we knew that Na[b]ing was killed, somebody called up by telephone
looking for Roling, and this was answered by Roling but we did not know what they were
conversing about and then Roling went back to the house of Junior after answering the
phone. And after more than two hours, we heard the sound of engines of vehicles arriving,
and then Meo, the man who was told by Roling to guard, shouted saying: They are already
here[;] after that, Roling came out carrying a carbine accompanied by Tsupe, and not long
after we heard gunshots and because of that we ran towards the house where the wake
was. But before the gun-shots, I heard Pedring Sabalones father of Roling saying: You
clarify, [t]hat you watch out for mistake[n] in identity, and after that shout, gunshots
followed. [sic] Then after the gun-shots Roling went back inside still carrying the carbine
and shouted: GATHER THE EMPTY SHELLS AND MEO[,] YOU BRING A FLASHLIGHT,
and then I was called by Meo to help him gather the empty shells of the carbine and also
our third companion to gather the empty shells.
These arguments have no merit. In the first place, it is well to stress that appellants
were convicted based primarily on the positive identification of the two survivors, Edwin
Santos and Rogelio Presores, and not only on the extrajudicial statement, which merely
corroborates the eyewitness testimonies. Thus, said arguments have no relevance to this
case. As the Court held in People vs. Tidula:[35] Any allegation of violation of rights during
custodial investigation is relevant and material only to cases in which an extrajudicial
admission or confession extracted from the accused becomes the basis of their
conviction.
In any case, we sustain the trial courts holding, as affirmed by the Court of Appeals,
that the extrajudicial statement of Beronga was executed in compliance with the
constitutional requirements.[36] Extrajudicial confessions, especially those which are
adverse to the declarants interests are presumed voluntary, and in the absence of
conclusive evidence showing that the declarants consent in executing the same has been
vitiated, such confession shall be upheld.[37]
The exhaustive testimony of Sgt. Miasco, who undertook the investigation, shows
that the appellant was apprised of his constitutional rights to remain silent and to have
competent and independent counsel of his own choice. [38] Said witness also stated that
Beronga was assisted by Atty. Marcelo Guinto during the custodial investigation.[39] In fact,
Atty. Guinto also took the witness stand and confirmed that Appellant Beronga was
informed of his rights, and that the investigation was proper, legal and not
objectionable. Indeed, other than appellants bare allegations, there was no showing that
Berongas statement was obtained by force or duress.[40]
Equally unavailing is appellants reliance on the res inter alios acta rule under Section
30, Rule 130 of the Rules of Court, which provides:

The act or declaration of a conspirator relating to the conspiracy and during its
existence, may be given in evidence against the co-conspirator after the
conspiracy is shown by evidence other than such act or declaration.

Appellants assert that the admission referred to in the above provision is considered
to be against a co-conspirator only when it is given during the existence of the
conspiracy. They argue that Berongas statement was made after the termination of the
conspiracy; thus, it should not be admitted and used against Sabalones.
The well-settled rule is that the extrajudicial confession of an accused is binding only
upon himself and is not admissible as evidence against his co-accused, it being mere
hearsay evidence as far as the other accused are concerned. [41] But this rule admits of
exception. It does not apply when the confession, as in this case, is used as circumstantial
evidence to show the probability of participation of the co-accused in the killing of the
victims[42] or when the confession of the co-accused is corroborated by other evidence.[43]
Berongas extrajudicial statement is, in fact, corroborated by the testimony of
Prosecution Witness Jennifer Binghoy. Pertinent portions of said testimony are
reproduced hereunder:
Q While you were at the wake of Jun Sabalones and the group were sitting with Roling
Sabalones, what were they doing?
A They were gathered in one table and they were conversing with each other.
xxxxxxxxx
Q On that same date, time and place, at about 10:00 [i]n the evening, can you remember if
there was unusual incident that took place?
A I heard over the radio at the Sabalones Family that a certain Nabing Velez was shot.
Q That [a] certain Nabing Velez was shot? What else xxx transpired?
A I observed that their reactions were so queer, - as if they were running.
xxxxxxxxx
Q In that evening of June 1, 1985, when you went there at the house of Jun Sabalones, have
you seen an armalite?
A Yes, sir.
Q Where did you see this armalite?
A At the table where they were conversing.
Q How many armalites or guns [did you see] that evening in that place?
A Two (2).
xxxxxxxxx
Q This armalite that you saw, - how far was this in relation to the groups of Sabalones?
A There (The witness indicating a distance of about 4 to 5 meters).
ATTY. KINTANAR:
Q When you looked xxx through the window and saw there were two vehicles and there were
bursts of gunfire, what happened after that?
A I did not proceed to look xxx through the window because I stooped down.
Q When you stooped down, what happened?
A After the burst of gunfire, I again opened the window.
Q And when again you opened the window, what happened?
A I saw two persons going towards the jeep.
Q What transpired next after [you saw] those 2 persons?
A When they arrived there, they nodded their head[s].
Q After that, what happened?
A So, they went back to the direction where they came from, going to the house of Sabalones.
Q While they were going to the direction of the house of Sabalones, what transpired?
A I saw 5 to 6 persons coming from the highway and looking to the jeep, and before they
reached the jeep, somebody shouted that its ours.
Q Who shouted?
A The voice was very familiar to me.
Q Whose voice?
 A The voice of Roling Sabalones.
Q What else have you noticed during the commotion [when] wives were advising their
husbands to go home?
A They were really in chaos.[44]
A careful reading of her testimony buttresses the finding of the trial court that
Rolusape Sabalones and his friends were gathered at one table, conversing in whispers
with each other, that there were two rifles on top of the table, and that they became
panicky after hearing of the death of Nabing Velez on the radio. Hence, the observation
of the trial court that they went to their grisly destination amidst the dark and positioned
themselves in defense of his turf against the invasion of a revengeful gang of supporters
of the recently slain Nabing Velez.[45]

Alleged Inconsistencies

Appellants also allege that the prosecution account had inconsistencies relating to
the number of shots heard, the interval between gunshots and the victims positions when
they were killed. These, however, are minor and inconsequential flaws which strengthen,
rather than impair, the credibility of said eyewitnesses. Such harmless errors are
indicative of truth, not falsehood, and do not cast serious doubt on the veracity and
reliability of complainants testimony.[46]
Appellants further claim that the relative positions of the gunmen, as testified to by
the eyewitnesses, were incompatible with the wounds sustained by the victims. They cite
the testimony of Dr. Ladislao Diola, who conducted the autopsy on Glenn Tiempo. He
declared that the victim must necessarily be on a higher level than the assailant, in the
light of the path of the bullet from the entrance wound to where the slug was
extracted. This finding, according to appellant, negates the prosecutions account that the
appellants were standing side by side behind a wall when they fired at the victims. If
standing, appellants must have been on a level higher than that of the occupants of the
vehicles; if beside each other, they could not have inflicted wounds which were supposed
to have come from opposite angles.
We are not persuaded. The defense presumes that the victims were sitting still when
they were fired upon, and that they froze in the same position during and after the
shooting. This has no testimonial foundation. On the contrary, it was shown that the
victims ducked and hid themselves, albeit in vain, when the firing began. After the first
volley, they crouched and tried to take cover from the hail of bullets. It would have been
unnatural for them to remain upright and still in their seats. Hence, it is not difficult to
imagine that the trajectories of the bullet wounds varied as the victims shifted their
positions. We agree with the following explanation of the Court of Appeals:
The locations of the entry wounds can readily be explained. xxx Glenn Tiempo, after looking
in the direction of the explosion, turned his body around; and since the ambushers were
between the jeep and the car, he received a bullet in his right chest (wound no. 1) which
 traveled to the left. As to wound No. 2, it can be explained by the spot where Major Tiempo
found his fallen son.
Atty. Kintanar:
Q: Upon being informed by these occupants who were ambushed and [you] were able to return
the car, what did you do?
Major Tiempo:
A: I immediately got soldiers and we immediately proceeded to the area or to the place where
my fallen son was located and when we reached x x x the place, I saw my fallen son [in]
a kneeling position where both knees [were] touching the ground and the toes also and
the forehead was touching towards the ground. (TSN, Feb. 12, 1988, p. 6)
In such position, the second bullet necessarily traveled upwards in relation to the body, and thus
the entry wound should be lower than the exit wound. There is no showing that both wounds were
inflicted at the same time.[47]
In any event, the witnesses saw that the appellants were the gunmen who were
standing side by side firing at them. They could have been in a different position and in
another hiding place when they first fired, but this is not important. They were present at
the crime scene, and they were shooting their rifles at the victims.

Aberratio Ictus

Appellants likewise accuse the trial court of engaging in conjecture in ruling that there
was aberratio ictus in this case. This allegation does not advance the cause of the
appellants. It must be stressed that the trial court relied on the concept of aberratio
ictus to explain why the appellants staged the ambush, not to prove that appellants did in
fact commit the crimes. Even assuming that the trial court did err in explaining the motive
of the appellants, this does not detract from its findings, as affirmed by the Court of
Appeals and sustained by this Court in the discussion above, that the guilt of the
appellants was proven beyond reasonable doubt.
In any event, the trial court was not engaging in conjecture in so ruling. The
conclusion of the trial court and the Court of Appeals that the appellants killed the wrong
persons was based on the extrajudicial statement of Appellant Beronga and the testimony
of Jennifer Binghoy. These pieces of evidence sufficiently show that appellants believed
that they were suspected of having killed the recently slain Nabing Velez, and that they
expected his group to retaliate against them. Hence, upon the arrival of the victims
vehicles which they mistook to be carrying the avenging men of Nabing Velez, appellants
opened fire. Nonetheless, the fact that they were mistaken does not diminish their
culpability. The Court has held that mistake in the identity of the victim carries the same
gravity as when the accused zeroes in on his intended victim.[48]
Be that as it may, the observation of the solicitor general on this point is well-
taken. The case is better characterized as error in personae or mistake in the identity of
the victims, rather than aberratio ictus which means mistake in the blow, characterized by
aiming at one but hitting the other due to imprecision in the blow.
 Second Issue:

Denial and Alibi

Appellants decry the lower courts disregard of their defense of alibi. We disagree.
As constantly enunciated by this Court, the established doctrine requires the accused to
prove not only that he was at some other place at the time of the commission of the crime,
but that it was physically impossible for him at the time to have been present at the locus
criminis or its immediate vicinity.[49] This the appellants miserably failed to do.
Appellant Beronga testified that, at the time of the incident, he was in his residence
in Lapulapu City, which was not shown to be so remote and inaccessible that it precluded
his presence in Mansueto Subdivision. The alibi of Sabalones is even more unworthy of
belief; he sought to establish that he was a mere 20-25 meters away from the scene of
the crime. He was allegedly in the house of his brother who was lying in state, which was
so near the ambush site that some of the defense witnesses even testified that they were
terrified by the gunfire.Clearly, appellants failed to establish the requisites of alibi.
Furthermore, the defense of alibi cannot overcome the positive identification of the
appellants.[50] As aptly held by this Court in People v. Nescio:[51]

Alibi is not credible when the accused-appellant is only a short distance from
the scene of the crime. The defense of alibi is further offset by the positive
identification made by the prosecution witnesses. Alibi, to reiterate a well-
settled doctrine, is accepted only upon the clearest proof that the accused-
appellant was not or could not have been at the crime scene when it was
committed.

Flight

Appellants further object to the finding that Sabalones, after the incident, made
himself scarce from the place of commission. He left for Manila, thence Mindanao on the
supposition that he want[ed] to escape from the wrath of Maj. Tiempo and his men for the
death of Glenn Tiempo and the near fatal shooting of the other son or from the supporters
of Nabing Velez. x x xOn his supposedly borrowed freedom, he jumped bail and hid
himself deeper into Mindanao, under a cloak of an assumed name. Why, did his
conscience bother him for comfort?[52]
Appellants rationalized that Sabalones was forced to jump bail in order to escape two
groups, who were allegedly out to get him, one of Nabing Velez and the other of Major
Tiempo.Their ratiocination is futile. It is well-established that the flight of an accused is
competent evidence to indicate his guilt, and flight, when unexplained, is a circumstance
from which an inference of guilt may be drawn.[53] It must be stressed, nonetheless, that
appellants were not convicted based on legal inference alone but on the overwhelming
evidence presented against them.

Third Issue:

Crime and Punishment

We agree with the appellate court that accused-appellants are guilty of murder for the
deaths of Glenn Tiempo and Alfredo Nardo. The allegation of treachery as charged in the
Information was duly proven by the prosecution. Treachery is committed when two
conditions concur, namely, that the means, methods, and forms of execution employed
gave the person attacked no opportunity to defend himself or to retaliate; and that such
means, methods and forms of execution were deliberately and consciously adopted by
the accused without danger to his person.[54] These requisites were evidently present
when the accused, swiftly and unexpectedly, fired at the victims who were inside their
vehicles and were in no position and without any means to defend themselves.
The appellate court also correctly convicted them of frustrated murder for the injuries
sustained by Nelson Tiempo, Rey Bolo and Rogelio Presores. As evidenced by the
medical certificates and the testimony of Dr. Miguel Mancao who attended to the victims,
Nelson Tiempo sustained a neck wound which completely shattered his trachea and
rendered him voiceless, as well as a wound on the right chest which penetrated his axilla
but not his chest cavity.[55] Rey Bolo sustained three injuries which affected his clavicle,
ribs and lungs.[56]Rogelio Presores, on the other hand, sustained an injury to his lungs
from a bullet wound which entered his right chest and exited through his back. [57]
The wounds sustained by these survivors would have caused their death had it not
been for the timely medical intervention. Hence, we sustain the ruling of the Court of
Appeals that appellants are guilty of three counts of frustrated murder.
We also uphold the Court of Appeals modification of the penalty for murder, but not
its computation of the sentence for frustrated murder.
For each of the two counts of murder, the trial court imposed the penalty of fourteen
(14) years, eight (8) months and one (1) day of reclusion temporal (medium), as
minimum, to seventeen (17) years, four (4) months and one (1) day of reclusion
temporal (maximum), as maximum. This is incorrect. Under Article 248 of the Revised
Penal Code, the imposable penalty is reclusion temporal, in its maximum period, to
death. There being no aggravating or mitigating circumstance, aside from the qualifying
circumstance of treachery, the appellate court correctly imposed reclusion perpetua for
murder.
The Court of Appeals, however, erred in computing the penalty for each of the three
counts of frustrated murder. It sentenced appellants to imprisonment of ten years
of prision mayor(medium) as minimum to seventeen years and four months of reclusion
temporal (medium) as maximum. It modified the trial courts computation of eight (8) years
of prision mayor (minimum), as minimum, to fourteen (14) years and eight (8) months
of reclusion temporal (minimum) as maximum.
Under Article 50 of the Revised Penal Code, the penalty for a frustrated felony is the
next lower in degree than that prescribed by law for the consummated felony x x
x. The imposable penalty for frustrated murder, therefore, is prision mayor in its maximum
period to reclusion temporal in its medium period.[58] Because there are no aggravating or
mitigating circumstance as the Court of Appeals itself held, [59] the penalty prescribed by
law should be imposed in its medium period. With the application of the Indeterminate
Sentence Law, the penalty for frustrated murder should be 8 years of prision
mayor (minimum), as minimum, to 14 years and 8 months of reclusion
temporal (minimum) as maximum.
Although the Court of Appeals was silent on this point, the trial court correctly ordered
the payment of P50,000 as indemnity to the heirs of each of the two murdered victims. In
light of current jurisprudence, this amount is awarded without need of proof other than the
fact of the victims death.[60] The trial court and the CA, however, erred in awarding
indemnity of P20,000 each to Nelson Tiempo, Rogelio Presores and Rey Bolo. There is
no basis, statutory or jurisprudential, for the award of a fixed amount to victims of
frustrated murder. Hence, they are entitled only to the amounts of actual expenses duly
proven during the trial.
Thus, Nelson Tiempo, who was treated for a gunshot wound on the neck which
shattered his trachea, should be awarded indemnity of P21,594.22 for his medical
expenses. This is evidenced by a statement of account from Cebu Doctors Hospital.[61]
Rogelio Presores, who was likewise treated for gunshot wound in the same hospital,
presented a statement of account amounting to P5,412.69 for his
hospitalization.[62] Hence, he is likewise entitled to indemnity in the said amount.
Rey Bolo, on the other hand, incurred an expense of P9,431.10 for the treatment of
his gunshot wounds, as evidenced by a statement of account from the same
hospital.[63] This amount should be awarded to him as indemnity.
WHEREFORE, the appeal is DENIED and the assailed Decision is
AFFIRMED. However, the penalties are hereby MODIFIED as follows:

1) In Crim. Case No. CBU-9257, for MURDER, the accused-appellants are

each hereby sentenced to reclusion perpetua and to indemnify, jointly and
severally, the heirs of the deceased, Glenn Tiempo, in the sum of P50,000;

2) In Crim. Case No. CBU-9258, for MURDER, the accused-appellants are

each hereby sentenced to reclusion perpetua and to indemnify, jointly and
severally, the heirs of the deceased, Alfredo Nardo, in the sum of P50,000;

3) In Crim. Case No. CBU-9259, for FRUSTRATED MURDER, the accused-

appellants are each hereby sentenced to suffer the penalty of 8 years
of prision mayor (minimum), as minimum, to 14 years and 8 months
of reclusion temporal (minimum) as maximum; and to jointly and severally pay
the victim, Rey Bolo, in the sum of P9,431.10 as actual damages;

4) In Crim Case No. CBU-9260, for FRUSTRATED MURDER, the accused-

appellants are hereby sentenced to suffer the penalty of 8 years of prision
mayor (minimum), as minimum, to 14 years and 8 months of reclusion
temporal (minimum) as maximum; and to jointly and severally indemnify the
victim, Rogelio Presores, in the sum of P5,412.69 for actual damages;

5) In Crim. Case No. CBU-9261 for FRUSTRATED MURDER, the accused-

appellants are hereby sentenced to suffer the penalty of 8 years of prision
mayor (minimum), as minimum, to 14 years and 8 months of reclusion
temporal (minimum) as maximum; and to jointly and severally indemnify the
victim, Nelson Tiempo, in the sum of P21,594.22 as actual damages.

Let copies of this Decision be furnished the Secretary of Interior and Local
Government and the Secretary of Justice so that Accused Eufemio Cabanero may be
brought to justice.
Costs against appellants.
SO ORDERED.
People vs. Albuquerque, G.R. No. 38773, 19 December 1933, 59 Phil. 150

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. L-38773 December 19, 1933

THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellee,

vs.
GINES ALBURQUERQUE Y SANCHEZ, defendant-appellant.

Gibbs and McDonough and Roman Ozaeta, for appellant.

Office of the Solicitor-General Hilado for appellee.

AVANCEÑA, C.J.:

The judgment appealed from finds the appellants Gines Alburquerque guilty of the crime of homicide
committed on the person of Manuel Osma and sentences him to eight years and one day of prision
mayor, and to indemnify the heirs of the deceased in the sum of P1,000, with costs.

The appellant herein, who is a widower of fifty-five years of age and father of nine living children, has
been suffering from partial paralysis for some time, walks dragging one leg and has lost control of
the movement of his right arm. He has been unable to work since he suffered the stroke of paralysis.
One of his daughters was named Maria and another, are married, while still another one is a nun.
With the exemption of the other married daughter and the nun, of all of them, including the appellant,
live with Maria upon whom they depend for support.

Among the daughters living with Maria, one named Pilar became acquainted and had intimate
relations later with the deceased Manuel Osma about the end of the year 1928. It was then that the
appellant became acquainted with the deceased who frequently visited Pilar in his house. The
relations between Pilar and the deceased culminated in Pilar's giving birth to a child. The appellant
did not know that his daughter's relations with the deceased had gone to such extremes, that he had
to be deceived with the information that she had gone to her godfather's house in Singalong, when in
fact she had been taken to the Chinese Hospital for delivery. The appellant learned the truth only
when Pilar returned home with her child.

Naturally the appellant was deeply affected by this incident, since which time he has appeared sad
and worried not only because of the dishonor it brought upon his family but also because the child
meant an added burden to Maria upon whom they all depended for support. For some time the
appellant wrote letters, that at times were hostile and threatening and at other times entreating the
deceased to legitimize his union with Pilar by marrying her, or at least, to support her and his child.
Although the deceased agreed to give the child a monthly allowance by way of support, he never
complied with his promise.
The appellant was in such a mood when he presented himself one day at the office where the
deceased worked and asked leave of the manager thereof to speak to Osma. They both went
downstairs. What happened later, nobody witnessed. But the undisputed fact is that on that occasion
the appellant inflicted a wound at the base of the neck of the deceased, causing his death.

After excluding the improbable portions thereof, the court infers from the testimony of the appellant
that he proposed to said deceased to marry his daughter and that, upon hearing that the latter
refused to do so, he whipped out his penknife. Upon seeing the appellant's attitude, the deceased
tried to seize him by the neck whereupon the said appellant stabbed him on the face with the said
penknife. Due to his lack of control of the movement of his arm, the weapon landed on the base of
the neck of the deceased.

The trial court found that the appellant did not intend to cause so grave an injury as the death of the
deceased. We find that his conclusion is supported by the evidence. In his testimony the appellant
emphatically affirmed that he only wanted to inflict a wound that would leave a permanent scar on
the face of the deceased, or one that would compel him to remain in the hospital for a week or two
but never intended to kill him, because then it would frustrate his plan of compelling him to marry or,
at least, support his daughter. The appellant had stated this intention in some of his letters to the
deceased by way of a threat to induce him to accept his proposal for the benefit of his daughter.
That the act of the appellant in stabbing the deceased resulted in the fatal wound at the base of his
neck, was due solely to the fact hereinbefore mentioned that appellant did not have control of his
right arm on account of paralysis and the blow, although intended for the face, landed at the base of
the neck.

Therefore, the mitigating circumstance of lack of intention to cause so grave an injury as the death of
the deceased as well as those of his having voluntarily surrendered himself to the authorities, and
acted under the influence of passion and obfuscation, should be taken into consideration in favor of
the appellant.

Under the facts above stated, we cannot entertain the appellant's contention that he acted in
legitimate self-defense inasmuch as he provoked and commenced the aggression by whipping out
and brandishing his penknife.

The defense likewise claims that, at all events, article 49 of the Revised Penal Code, which refers to
cases where the crime committed is different from that intended by the accused, should be applied
herein. This article is a reproduction of article 64 of the old Code and has been interpreted as
applicable only in cases where the crime befalls a different person (decisions of the Supreme Court
of Spain of October 20, 1897, and June 28,1899), which is not the case herein.

The facts as herein proven constitute the crime of homicide defined and penalized in article 249 of
the Revised Penal Code with reclusion temporal. In view of the concurrence therein of three
mitigating circumstances without any aggravating circumstance, the penalty next lower in degree,
that is prision mayor, should be imposed.

Wherefore, pursuant to the provisions of Act No. 4103, the appellant is hereby sentenced to suffer
the indeterminate penalty of from one (1) year of prision correccional to eight (8) years and (1) day
of prision mayor, affirming the judgment appealed from in all other respects, with the costs. So
ordered.
Bataclan v. Medina, L-10126, 22 October 1957, 102 Phil. 181

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. L-10126 October 22, 1957

SALUD VILLANUEVA VDA. DE BATACLAN and the minors NORMA, LUZVIMINDA, ELENITA,
OSCAR and ALFREDO BATACLAN, represented by their Natural guardian, SALUD VILLANUEVA
VDA. DE BATACLAN, plaintiffs-appellants,
vs.
MARIANO MEDINA, defendant-appellant.

Lope E. Adriano, Emmanuel Andamo and Jose R. Francisco for plaintiffs-appellants.

Fortunato Jose for defendant and appellant.

MONTEMAYOR, J.:

Shortly after midnight, on September 13, 1952 bus no. 30 of the Medina Transportation, operated by
its owner defendant Mariano Medina under a certificate of public convenience, left the town of
Amadeo, Cavite, on its way to Pasay City, driven by its regular chauffeur, Conrado Saylon. There
were about eighteen passengers, including the driver and conductor. Among the passengers were
Juan Bataclan, seated beside and to the right of the driver, Felipe Lara, sated to the right of
Bataclan, another passenger apparently from the Visayan Islands whom the witnesses just called
Visaya, apparently not knowing his name, seated in the left side of the driver, and a woman named
Natalia Villanueva, seated just behind the four last mentioned. At about 2:00 o'clock that same
morning, while the bus was running within the jurisdiction of Imus, Cavite, one of the front tires burst
and the vehicle began to zig-zag until it fell into a canal or ditch on the right side of the road and
turned turtle. Some of the passengers managed to leave the bus the best way they could, others had
to be helped or pulled out, while the three passengers seated beside the driver, named Bataclan,
Lara and the Visayan and the woman behind them named Natalia Villanueva, could not get out of
the overturned bus. Some of the passengers, after they had clambered up to the road, heard groans
and moans from inside the bus, particularly, shouts for help from Bataclan and Lara, who said they
could not get out of the bus. There is nothing in the evidence to show whether or not the passengers
already free from the wreck, including the driver and the conductor, made any attempt to pull out or
extricate and rescue the four passengers trapped inside the vehicle, but calls or shouts for help were
made to the houses in the neighborhood. After half an hour, came about ten men, one of them
carrying a lighted torch made of bamboo with a wick on one end, evidently fueled with petroleum.
These men presumably approach the overturned bus, and almost immediately, a fierce fire started,
burning and all but consuming the bus, including the four passengers trapped inside it. It would
appear that as the bus overturned, gasoline began to leak and escape from the gasoline tank on the
side of the chassis, spreading over and permeating the body of the bus and the ground under and
around it, and that the lighted torch brought by one of the men who answered the call for help set it
on fire.

That same day, the charred bodies of the four deemed passengers inside the bus were removed
and duly identified that of Juan Bataclan. By reason of his death, his widow, Salud Villanueva, in her
name and in behalf of her five minor children, brought the present suit to recover from Mariano
Medina compensatory, moral, and exemplary damages and attorney's fees in the total amount of
P87,150. After trial, the Court of First Instance of Cavite awarded P1,000 to the plaintiffs plus P600
as attorney's fee, plus P100, the value of the merchandise being carried by Bataclan to Pasay City
for sale and which was lost in the fire. The plaintiffs and the defendants appealed the decision to the
Court of Appeals, but the latter endorsed the appeal to us because of the value involved in the claim
in the complaint.

Our new Civil Code amply provides for the responsibility of common carrier to its passengers and
their goods. For purposes of reference, we are reproducing the pertinent codal provisions:

ART. 1733. Common carriers, from the nature of their business and for reasons of public
policy, are bound to observe extraordinary diligence in the vigilance over the goods and for
the safety of the passengers transported by them, according to all the circumstances of each
case.

Such extraordinary diligence in the vigilance over the goods is further expressed in articles
1734, 1735, and 1745, Nos. 5, 6, and 7, while the extra ordinary diligence for the safety of
the passengers is further set forth in articles 1755 and 1756.

ART. 1755. A common carrier is bound to carry the passengers safely as far as human care
and foresight can provide, using the utmost diligence of very cautious persons, with a due
regard for all the circumstances.

ART. 1756. In case of death of or injuries to passengers, common carriers are presumed to
have been at fault or to have acted negligently, unless they prove that they observed
extraordinary diligence as prescribed in articles 1733 and 1755

ART. 1759. Common carriers are liable for the death of or injuries to passengers through the
negligence or willful acts of the former's employees, although such employees may have
acted beyond the scope of their authority or in violation of the order of the common carriers.

This liability of the common carriers does not cease upon proof that they exercised all the
diligence of a good father of a family in the selection and supervision of their employees.

ART. 1763. A common carrier responsible for injuries suffered by a passenger on account of
the willful acts or negligence of other passengers or of strangers, if the common carrier's
employees through the exercise of the diligence of a good father of a family could have
prevented or stopped the act or omission.

We agree with the trial court that the case involves a breach of contract of transportation for hire, the
Medina Transportation having undertaken to carry Bataclan safely to his destination, Pasay City. We
also agree with the trial court that there was negligence on the part of the defendant, through his
agent, the driver Saylon. There is evidence to show that at the time of the blow out, the bus was
speeding, as testified to by one of the passengers, and as shown by the fact that according to the
testimony of the witnesses, including that of the defense, from the point where one of the front tires
burst up to the canal where the bus overturned after zig-zaging, there was a distance of about 150
meters. The chauffeur, after the blow-out, must have applied the brakes in order to stop the bus, but
because of the velocity at which the bus must have been running, its momentum carried it over a
distance of 150 meters before it fell into the canal and turned turtle.

There is no question that under the circumstances, the defendant carrier is liable. The only question
is to what degree. The trial court was of the opinion that the proximate cause of the death of
Bataclan was not the overturning of the bus, but rather, the fire that burned the bus, including himself
and his co-passengers who were unable to leave it; that at the time the fire started, Bataclan, though
he must have suffered physical injuries, perhaps serious, was still alive, and so damages were
awarded, not for his death, but for the physical injuries suffered by him. We disagree. A satisfactory
definition of proximate cause is found in Volume 38, pages 695-696 of American jurisprudence, cited
by plaintiffs-appellants in their brief. It is as follows:

. . . 'that cause, which, in natural and continuous sequence, unbroken by any efficient
intervening cause, produces the injury, and without which the result would not have
occurred.' And more comprehensively, 'the proximate legal cause is that acting first and
producing the injury, either immediately or by setting other events in motion, all constituting a
natural and continuous chain of events, each having a close causal connection with its
immediate predecessor, the final event in the chain immediately effecting the injury as a
natural and probable result of the cause which first acted, under such circumstances that the
person responsible for the first event should, as an ordinary prudent and intelligent person,
have reasonable ground to expect at the moment of his act or default that an injury to some
person might probably result therefrom.

It may be that ordinarily, when a passenger bus overturns, and pins down a passenger, merely
causing him physical injuries, if through some event, unexpected and extraordinary, the overturned
bus is set on fire, say, by lightning, or if some highwaymen after looting the vehicle sets it on fire,
and the passenger is burned to death, one might still contend that the proximate cause of his death
was the fire and not the overturning of the vehicle. But in the present case under the circumstances
obtaining in the same, we do not hesitate to hold that the proximate cause was the overturning of the
bus, this for the reason that when the vehicle turned not only on its side but completely on its back,
the leaking of the gasoline from the tank was not unnatural or unexpected; that the coming of the
men with a lighted torch was in response to the call for help, made not only by the passengers, but
most probably, by the driver and the conductor themselves, and that because it was dark (about
2:30 in the morning), the rescuers had to carry a light with them, and coming as they did from a rural
area where lanterns and flashlights were not available; and what was more natural than that said
rescuers should innocently approach the vehicle to extend the aid and effect the rescue requested
from them. In other words, the coming of the men with a torch was to be expected and was a natural
sequence of the overturning of the bus, the trapping of some of its passengers and the call for
outside help. What is more, the burning of the bus can also in part be attributed to the negligence of
the carrier, through is driver and its conductor. According to the witness, the driver and the conductor
were on the road walking back and forth. They, or at least, the driver should and must have known
that in the position in which the overturned bus was, gasoline could and must have leaked from the
gasoline tank and soaked the area in and around the bus, this aside from the fact that gasoline when
spilled, specially over a large area, can be smelt and directed even from a distance, and yet neither
the driver nor the conductor would appear to have cautioned or taken steps to warn the rescuers not
to bring the lighted torch too near the bus. Said negligence on the part of the agents of the carrier
come under the codal provisions above-reproduced, particularly, Articles 1733, 1759 and 1763.

As regard the damages to which plaintiffs are entitled, considering the earning capacity of the
deceased, as well as the other elements entering into a damage award, we are satisfied that the
amount of SIX THOUSAND (P6,000) PESOS would constitute satisfactory compensation, this to
include compensatory, moral, and other damages. We also believe that plaintiffs are entitled to
attorney's fees, and assessing the legal services rendered by plaintiffs' attorneys not only in the trial
court, but also in the course of the appeal, and not losing sight of the able briefs prepared by them,
the attorney's fees may well be fixed at EIGHT HUNDRED (P800) PESOS for the loss of
merchandise carried by the deceased in the bus, is adequate and will not be disturbed.

There is one phase of this case which disturbs if it does not shock us. According to the evidence,
one of the passengers who, because of the injuries suffered by her, was hospitalized, and while in
the hospital, she was visited by the defendant Mariano Medina, and in the course of his visit, she
overheard him speaking to one of his bus inspectors, telling said inspector to have the tires of the
bus changed immediately because they were already old, and that as a matter of fact, he had been
telling the driver to change the said tires, but that the driver did not follow his instructions. If this be
true, it goes to prove that the driver had not been diligent and had not taken the necessary
precautions to insure the safety of his passengers. Had he changed the tires, specially those in front,
with new ones, as he had been instructed to do, probably, despite his speeding, as we have already
stated, the blow out would not have occurred. All in all, there is reason to believe that the driver
operated and drove his vehicle negligently, resulting in the death of four of his passengers, physical
injuries to others, and the complete loss and destruction of their goods, and yet the criminal case
against him, on motion of the fiscal and with his consent, was provisionally dismissed, because
according to the fiscal, the witnesses on whose testimony he was banking to support the complaint,
either failed or appear or were reluctant to testify. But the record of the case before us shows the
several witnesses, passengers, in that bus, willingly and unhesitatingly testified in court to the effect
of the said driver was negligent. In the public interest the prosecution of said erring driver should be
pursued, this, not only as a matter of justice, but for the promotion of the safety of passengers on
public utility buses. Let a copy of this decision be furnished the Department of Justice and the
Provincial Fiscal of Cavite.

In view of the foregoing, with the modification that the damages awarded by the trial court are
increased from ONE THOUSAND (P1,000) PESOS TO SIX THOUSAND (P6,000) PESOS, and from
SIX HUNDRED PESOS TO EIGHT HUNDRED (P800) PESOS, for the death of Bataclan and for the
attorney's fees, respectively, the decision appealed is from hereby affirmed, with costs.
People v. Iligan, G.R. No. 75369, 26 November 1990

THIRD DIVISION

[G.R. No. 75369. November 26, 1990.]

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, v. FERNANDO ILIGAN y JAMITO,

EDMUNDO ASIS y ILIGAN and JUAN MACANDOG (at large), Defendants, FERNANDO
ILIGAN y JAMITO and EDMUNDO ASIS y ILIGAN, Defendants-Appellants.

The Solicitor General for Plaintiff-Appellee.

Cesar R. Canonizado, for Defendants-Appellants.

SYLLABUS

1. REMEDIAL LAW; APPEAL; THROWS THE CASE OPEN FOR A COMPLETE REVIEW OF ALL ERRORS
AS MAY BE IMPUTABLE TO THE TRIAL COURT. — While the factual findings of the trial court are
generally given due respect by the appellate court, an appeal of a criminal case throws it open for
a complete review of all errors, by commission or omission, as may be imputable to the trial court.
(People v. Valerio, Jr., L-4116, February 25, 1982, 112 SCRA 208, 231) In this instance, the lower
court erred in finding that the maceration of one half of the head of the victim was also caused by
Iligan for the evidence on record point to a different conclusion. We are convinced beyond
peradventure that indeed, after Quiñones, Jr. had fallen from the bolo-hacking perpetrated by
Iligan, he was run over by a vehicle. This finding, however, does not in any way exonerate Iligan
from liability for the death of Quiñones, Jr.

2. CRIMINAL LAW; LIABILITY; REQUISITES THEREOF, PRESENT IN THE CASE AT BAR. — Under
Article 4 of the Revised Penal Code, criminal liability shall be incurred "by any person committing a
felony (delito) although the wrongful act done be different from that which he intended." Based on
the doctrine that "el que es causa de la causa es causa del mal causado" (he who is the cause of
the cause is the cause of the evil caused), (People v. Ural, G.R. No. L-30801, March 27, 1974, 56
SCRA 138, 144) the essential requisites of Article 4 are: (a) that an intentional felony has been
committed, and (b) that the wrong done to the aggrieved party be the direct, natural and logical
consequence of the felony committed by the offender. (People v. Mananquil, L-35574, September
28, 1984, 132 SCRA 196, 207). We hold that these requisites are present in this case.

3. ID.; ID.; PROXIMATE LEGAL CAUSE, DEFINED. — The intentional felony committed was the
hacking of the head of Quiñones, Jr. by Iligan. That it was considered as superficial by the
physician who autopsied Quiñones is beside the point. What is material is that by the instrument
used in hacking Quiñones, Jr. and the location of the wound, the assault was meant not only to
immobilize the victim but to do away with him as it was directed at a vital and delicate part of the
body: the head. (See: People v. Diana, 32 Phil. 344 [1915]). The hacking incident happened on
the national highway where vehicles are expected to pass any moment. One such vehicle passed
seconds later when Lukban and Zaldy Asis, running scared and having barely negotiated the
distance of around 200 meters, heard shouts of people. Quiñones, Jr., weakened by the hacking
blow which sent him to the cemented highway, was run over by a vehicle. Under these
circumstances, we hold that while Iligan’s hacking of Quiñones, Jr.’s head might not have been the
direct cause, it was the proximate cause of the latter’s death. Proximate legal cause is defined as
"that acting first and producing the injury, either immediately or by setting other events in motion,
all constituting a natural and continuous chain of events, each having a close causal connection
with its immediate predecessor, the final event in the chain immediately effecting the injury as a
natural and probable result of the cause which first acted, under such circumstances that the
person responsible for the first event should, as an ordinarily prudent and intelligent person, have
reasonable ground to expect at the moment of his act or default that an injury to some person
might probably result therefrom. (Urbano v. Intermediate Appellate Court, G.R. No. 72964,
January 7, 1988, 157 SCRA 1 quoting Vda. De Bataclan v. Medina, 102 Phil. 181). In other words,
the sequence of events from Iligan’s assault on him to the time Quiñones, Jr. was run over by a
vehicle is, considering the very short span of time between them, one unbroken chain of events.
Having triggered such events, Iligan cannot escape liability.

4. ID.; ALIBI; NOT CONSIDERED WHEN ACCUSED IS POSITIVELY IDENTIFIED BY WITNESSES. —

We agree with the lower court that the defense of alibi cannot turn the tide in favor of Iligan
because he was positively seen at the scene of the crime and identified by the prosecution
witnesses. (People v. Pineda, G.R. No. 72400, January 15, 1988, 157 SCRA 71).

5. ID.; AGGRAVATING CIRCUMSTANCES; TREACHERY AND EVIDENT PREMEDITATION, WRONGLY

APPRECIATED IN THE CASE AT BAR. — But we disagree with the lower court with regards to its
findings on the aggravating circumstances of treachery and evident premeditation. Treachery has
been appreciated by the lower court in view of the suddenness of the attack on the group of
Quiñones, Jr. Suddenness of such attack, however, does not by itself show treachery. (People v.
Gadiano, L-31818, July 30, 1982, 115 SCRA 559) There must be evidence that the mode of attack
was consciously adopted by the appellant to make it impossible or hard for the person attacked to
defend himself. (People v. Crisostomo, L-32243, April 15, 1988, 160 SCRA 47). In this case, the
hacking of Edmundo Asis by Iligan followed by the chasing of the trio by the group of Iligan was a
warning to the deceased and his companions of the hostile attitude of the appellants. The group of
Quiñones, Jr. was therefore placed on guard for any subsequent attacks against them. (People v.
Mercado, L-33492, March 30, 1988, 159 SCRA 455). The requisites necessary to appreciate
evident premeditation have likewise not been met in this case. Thus, the prosecution failed to
prove all of the following: (a) the time when the accused determined to commit the crime; (b) an
act manifestly indicating that the accused had clung to their determination to commit the crime;
and (c) the lapse of sufficient length of time between the determination and execution to allow him
to reflect upon the consequences of his act. (People v. Batas, G.R. Nos. 84277-78, August 2,
1989, 176 SCRA 46).

6. ID.; CONSPIRACY; NOT SUFFICIENTLY CONSTITUTED BY MERE KNOWLEDGE, ACQUIESCENCE

OR APPROVAL OF THE ACT WITHOUT COOPERATION OR AGREEMENT TO COOPERATE NOR BY
MERE PRESENCE AT THE SCENE OF THE CRIME. — Absent any qualifying circumstances, Iligan
must be held liable only for homicide. Again, contrary to the lower court’s finding, proof beyond
reasonable doubt has not been established to hold Edmundo Asis liable as Iligan’s co-conspirator.
Edmundo Asis did not take any active part in the infliction of the wound on the head of Quiñones,
Jr., which led to his running over by a vehicle and consequent death. As earlier pointed out, the
testimony that he was carrying a stone at the scene of the crime hardly merits credibility being
uncorroborated and coming from an undeniably biased witness. Having been the companion of
Iligan, Edmundo Asis must have known of the former’s criminal intent but mere knowledge,
acquiescense or approval of the act without cooperation or agreement to cooperate, is not enough
to constitute one a party to a conspiracy. There must be intentional participation in the act with a
view to the furtherance of the common design and purpose. (People v. Izon, 104 Phil. 690 [1958])
Such being the case, his mere presence at the scene of the crime did not make him a co-
conspirator, a co-principal or an accomplice to the assault perpetrated by Iligan. (Orobio v. Court
of Appeals, G.R. No. 57519, September 13, 1988, 165 SCRA 316) Edmundo Asis therefore
deserves exoneration.

7. ID.; HOMICIDE; PENALTY; ABSENT ANY MITIGATING CIRCUMSTANCE AND APPLYING THE
INDETERMINATE SENTENCE LAW. — There being no mitigating circumstance, the penalty
imposable on Iligan is reclusion temporal medium (Arts. 249 and 64, Revised Penal Code).
Applying the Indeterminate Sentence Law, the proper penalty is that within the range of prision
mayor as minimum and reclusion temporal medium as maximum. We find insufficient proof to
warrant the award of P256,960 for the victim’s unrealized income and therefore, the same is
disallowed.

DECISION
 FERNAN, J.:

In this appeal, uncle and nephew, Fernando Iligan and Edmundo Asis, seek a reversal of the
decision of the then Court of First Instance of Camarines Norte, Branch II 1 convicting them of the
crime of murder and sentencing them to suffer the penalty of reclusion perpetua and to indemnify
the heirs of Esmeraldo Quiñones, Jr. in the amounts of P30,000 for the latter’s death and
P256,960 representing the victim’s unrealized income.

On October 21, 1980, the following information for murder was filed against Fernando Iligan,
Edmundo Asis and Juan Macandog: chanro bles.c om.ph : vi rtual law lib rary

"That on or about 3:00 a.m., August 4, 1980, at sitio Lico II, barangay Sto. Domingo, municipality
of Vinzons, province of Camarines Norte, Philippines, and within the jurisdiction of the Honorable
Court, the above named accused, conspiring and mutually helping one another, with treachery and
evident premeditation, one of the accused Fernando Iligan armed with a bolo (sinampalok) and
with deliberate intent to kill, did then and there wilfully, unlawfully and feloniously, gang up and in
a sudden unexpected manner, hacked Esmeraldo Quiñones, Jr., on his face, thus causing fatal
injuries on the latter’s face which resulted to (sic) the death of said Esmeraldo Quiñones.

"CONTRARY TO LAW." cralaw virt ua1aw lib ra ry

Juan Macandog was never apprehended and he remains at large. At their arraignment on January
12, 1981 Fernando Iligan and Edmundo Asis pleaded not guilty to the crime charged. Thereafter,
the prosecution presented the following version of the commission of the crime. chan roble s.com.p h : virt ual law li bra ry

At around 2:00 o’clock in the morning of August 4, 1980, Esmeraldo Quiñones, Jr. and his
companions, Zaldy Asis and Felix Lukban, were walking home from barangay Sto. Domingo,
Vinzons, Camarines Norte after attending a barrio fiesta dance. In front of the ricemill of a certain
Almadrones, they met the accused Fernando Iligan, his nephew, Edmundo Asis, and Juan
Macandog. Edmundo Asis pushed ("winahi") them aside thereby prompting Zaldy Asis to box him.
2 Felix Lukban quickly told the group of the accused that they had no desire to fight. 3 Fernando
Iligan, upon seeing his nephew fall, drew from his back a bolo and hacked Zaldy Asis but missed.
Terrified, the trio ran pursued by the three accused. They ran for about half an hour, passing by
the house of Quiñones, Jr. They stopped running only upon seeing that they were no longer being
chased. After resting for a short while, Quiñones, Jr. invited the two to accompany him to his
house so that he could change to his working clothes and report for work as a bus conductor. 4

While the trio were walking towards the house of Quiñones, Jr., the three accused suddenly
emerged on the roadside and without a word, Fernando Iligan hacked Quiñones, Jr. with his bolo
hitting him on the forehead and causing him to fall down. 5 Horrified, Felix Lukban and Zaldy Asis
fled to a distance of 200 meters, but returned walking after they heard shouts of people. Zaldy
Asis specifically heard someone shout "May nadale na." 6

On the spot where Quiñones, Jr. was hacked, Zaldy Asis and Felix Lukban saw him already dead
with his head busted. 7 They helped the brother of Quiñones, Jr. in carrying him to their house. 8

That same day, August 4, 1980, the body of Quiñones, Jr. was autopsied at the Funeraria
Belmonte in Labo, Camarines Norte by the municipal health officer, Dr. Marcelito E. Abas. The
postmortem examination report which is found at the back of the death certificate reveals that
Esmeraldo Quiñones, Jr., who was 21 years old when he died, sustained the following injuries: jg c:chan rob les.com. ph

"1. Shock and massive cerebral hemorrhages due to multiple fracture of the entire half of the
frontal left, temporal, parietal and occipital bone of the head, with massive maceration of the brain
tissue.

"2. Other findings — Incised wound at the right eyebrow, medial aspect measuring about 4 cms. in
length, 0.5 cm. in width and 0.5 cm. in depth, abrasion on the left shoulder and right side of the
neck." 9
The death certificate also indicates that Quiñones, Jr. died of "shock and massive cerebral
hemorrhages due to a vehicular accident." cralaw virtua 1aw lib rary

The defendants denied having perpetrated the crime. They alleged that they were in their
respective houses at the time the crime was committed. chanrobles law li bra ry

Accused Fernando Iligan testified that at around midnight of August 4, 1980, he left his house to
fetch his visitors at the dance hall. 10 Along the way, he met his nephew, Edmundo Asis, whom he
presumed was drunk. He invited his nephew to accompany him to the dance hall. However, they
were not able to reach their destination because Edmundo was boxed by somebody whom he
(Edmundo) sideswiped. 11 Instead, Fernando Iligan brought his nephew home. 12 On their way,
they were overtaken by Juliano Mendoza whom Fernando Iligan invited to his house to help him
cook. 13 After bringing his nephew home, Fernando Iligan and Juliano Mendoza proceeded to
Iligan’s house and arrived there between 1:30 and 2:00 o’clock in the morning of the same day.
14

Edmundo Asis corroborated Iligan’s testimony. He testified that while they were walking in front of
the Almadrones ricemill, he sideswiped someone whom he did not recognize because there were
several persons around. He said, "Sorry, pare" but the person to whom he addressed his apology
boxed him on his left face. He fell down and Iligan helped him. Later, Iligan accompanied him to
his home in Lico II. 15 After Iligan and Juliano Mendoza had left his house, he slept and woke up
at 7:00 o’clock the following morning. 16

The defense made capital of the testimony of prosecution witness Dr. Abas to the effect that
Quiñones, Jr. died because of a vehicular accident. In ruling out said theory, however, the lower
court, in its decision of May 7, 1986, said:
jgc:chanro bles. com.ph

"The accused, to augment their alibi, have pointed to this Court that the Certificate of Death have
shown that the victim’s death was caused by a vehicular accident. To this, notwithstanding, the
Court cannot give credit for some reasons. First, the fact of the alleged vehicular accident has not
been fully established. Second, Esmeraldo Quiñones, Sr., (the) father of the victim, testified that
Dr. Abas told him that if his son was hacked by a bolo on the face and then run over the entire
head by a vehicle’s tire, then that hacking on the face could not be visibly seen on the head
(t.s.n., pp. 16-17, October 13, 1981) Third, Exhibit ‘2’ (the photograph of the victim taken
immediately after his body had been brought home) is a hard evidence. It will attestly (sic) show
that the entire head was not crushed by any vehicle. On the contrary, it shows that only half of the
face and head, was damaged with the wound starting on a sharp edge horizontally. There are
contusions and abrasions on the upper left shoulder and on the neck while the body downwards
has none of it, while on the right forehead there is another wound caused by a sharp instrument.
Therefore, it is simple, that if the victim was run over by a vehicle, the other half portion of his
head and downward part of his body must have been likewise seriously damaged, which there are
none." 17

The lower court also found that Iligan’s group conspired to kill anyone or all members of the group
of the victim to vindicate the boxing on the face of Edmundo Asis. It appreciated the aggravating
circumstances of evident premeditation and treachery and accordingly convicted Iligan and
Edmundo Asis of the crime of murder and imposed on them the aforementioned penalty.

Iligan and Edmundo Asis interposed this appeal professing innocence of the crime for which they
were convicted. For the second time, they attributed Quiñones, Jr.’s death to a vehicular accident.

No eyewitnesses were presented to prove that Quiñones, Jr. was run over by a vehicle. The
defense relies on the testimony of Dr. Abas, a prosecution witness, who swore that the multiple
fracture on the head of Quiñones, Jr. was caused by a vehicular accident 18 which opinion was
earlier put in writing by the same witness in the postmortem examination. Dr. Abas justified his
conclusion by what he considered as tire marks on the victim’s left shoulder and the right side of
his neck. 19 He also testified that the incised wound located at the victim’s right eyebrow could
have been caused by a sharp bolo but it was so superficial that it could not have caused the
victim’s death. 20

Circumstantial evidence on record indeed point to the veracity of the actual occurrence of the
vehicular mishap. One such evidence is the testimony of prosecution witness Zaldy Asis that when
he helped bring home the body of Quiñones, Jr., he told the victim’s father, Esmeraldo Quiñones,
Sr. that "before Esmeraldo Quiñones (Jr.) was run over by a vehicle, he was hacked by Fernando
Iligan." 21 When asked why he mentioned an automobile, Zaldy Asis said that he did not notice
any vehicle around but he mentioned it "because his (Quiñones, Jr.) head was busted." 22 It is
therefore not farfetched to conclude that Zaldy Asis had actual knowledge of said accident but for
understandable reasons he declined to declare it in court. Defense witness Marciano Mago, the
barangay captain of Sto. Domingo, also testified that when he went to the scene of the crime, he
saw bits of the brain of the victim scattered across the road where he also saw tire marks. 23

For its part, the prosecution, through the victim’s father, presented evidence to the effect that
Iligan authored the maceration of half of the victim’s head. Quiñones, Sr. testified that from their
house, which was about five meters away from the road, he saw Fernando Iligan holding a
"sinampalok" as he, together with Edmundo Asis and Juan Macandog, chased someone. During the
second time that he saw the three accused, he heard Iligan say, "Dali, ayos na yan." 24 Hence,
the lower court concluded that the victim’s head was "chopped" resulting in the splattering of his
brain all over the place. 25 It should be emphasized, however, that the testimony came from a
biased witness and it was uncorroborated.

While the factual findings of the trial court are generally given due respect by the appellate court,
an appeal of a criminal case throws it open for a complete review of all errors, by commission or
omission, as may be imputable to the trial court. 26 In this instance, the lower court erred in
finding that the maceration of one half of the head of the victim was also caused by Iligan for the
evidence on record point to a different conclusion. We are convinced beyond peradventure that
indeed, after Quiñones, Jr. had fallen from the bolo-hacking perpetrated by Iligan, he was run over
by a vehicle. This finding, however, does not in any way exonerate Iligan from liability for the
death of Quiñones, Jr.chanrobles. com : virtual law l ibra ry

Under Article 4 of the Revised Penal Code, criminal liability shall be incurred "by any person
committing a felony (delito) although the wrongful act done be different from that which he
intended." Based on the doctrine that "el que es causa de la causa es causa del mal causado" (he
who is the cause of the cause is the cause of the evil caused), 27 the essential requisites of Article
4 are: (a) that an intentional felony has been committed, and (b) that the wrong done to the
aggrieved party be the direct, natural and logical consequence of the felony committed by the
offender. 28 We hold that these requisites are present in this case.

The intentional felony committed was the hacking of the head of Quiñones, Jr. by Iligan. That it
was considered as superficial by the physician who autopsied Quiñones is beside the point. What is
material is that by the instrument used in hacking Quiñones, Jr. and the location of the wound, the
assault was meant not only to immobilize the victim but to do away with him as it was directed at
a vital and delicate part of the body: the head. 29

The hacking incident happened on the national highway 30 where vehicles are expected to pass
any moment. One such vehicle passed seconds later when Lukban and Zaldy Asis, running scared
and having barely negotiated the distance of around 200 meters, heard shouts of people.
Quiñones, Jr., weakened by the hacking blow which sent him to the cemented highway, was run
over by a vehicle.

Under these circumstances, we hold that while Iligan’s hacking of Quiñones, Jr.’s head might not
have been the direct cause, it was the proximate cause of the latter’s death. Proximate legal cause
is defined as "that acting first and producing the injury, either immediately or by setting other
events in motion, all constituting a natural and continuous chain of events, each having a close
causal connection with its immediate predecessor, the final event in the chain immediately
effecting the injury as a natural and probable result of the cause which first acted, under such
circumstances that the person responsible for the first event should, as an ordinarily prudent and
intelligent person, have reasonable ground to expect at the moment of his act or default that an
injury to some person might probably result therefrom." 31 In other words, the sequence of
events from Iligan’s assault on him to the time Quiñones, Jr. was run over by a vehicle is,
considering the very short span of time between them, one unbroken chain of events. Having
triggered such events, Iligan cannot escape liability. c hanro bles law l ib rary

We agree with the lower court that the defense of alibi cannot turn the tide in favor of Iligan
because he was positively seen at the scene of the crime and identified by the prosecution
witnesses. 32

But we disagree with the lower court with regards to its findings on the aggravating circumstances
of treachery and evident premeditation. Treachery has been appreciated by the lower court in view
of the suddenness of the attack on the group of Quiñones, Jr. Suddenness of such attack,
however, does not by itself show treachery. 33 There must be evidence that the mode of attack
was consciously adopted by the appellant to make it impossible or hard for the person attacked to
defend himself. 34 In this case, the hacking of Edmundo Asis by Iligan followed by the chasing of
the trio by the group of Iligan was a warning to the deceased and his companions of the hostile
attitude of the appellants. The group of Quiñones, Jr. was therefore placed on guard for any
subsequent attacks against them. 35

The requisites necessary to appreciate evident premeditation have likewise not been met in this
case. Thus, the prosecution failed to prove all of the following: (a) the time when the accused
determined to commit the crime; (b) an act manifestly indicating that the accused had clung to
their determination to commit the crime; and (c) the lapse of sufficient length of time between the
determination and execution to allow him to reflect upon the consequences of his act. 36

Absent any qualifying circumstances, Iligan must be held liable only for homicide. Again, contrary
to the lower court’s finding, proof beyond reasonable doubt has not been established to hold
Edmundo Asis liable as Iligan’s co-conspirator. Edmundo Asis did not take any active part in the
infliction of the wound on the head of Quiñones, Jr., which led to his running over by a vehicle and
consequent death. As earlier pointed out, the testimony that he was carrying a stone at the scene
of the crime hardly merits credibility being uncorroborated and coming from an undeniably biased
witness. Having been the companion of Iligan, Edmundo Asis must have known of the former’s
criminal intent but mere knowledge, acquiescense or approval of the act without cooperation or
agreement to cooperate, is not enough to constitute one a party to a conspiracy. There must be
intentional participation in the act with a view to the furtherance of the common design and
purpose. 37 Such being the case, his mere presence at the scene of the crime did not make him a
co-conspirator, a co-principal or an accomplice to the assault perpetrated by Iligan. 38 Edmundo
Asis therefore deserves exoneration.

There being no mitigating circumstance, the penalty imposable on Iligan is reclusion temporal
medium (Arts. 249 and 64, Revised Penal Code). Applying the Indeterminate Sentence Law, the
proper penalty is that within the range of prision mayor as minimum and reclusion temporal
medium as maximum. We find insufficient proof to warrant the award of P256,960 for the victim’s
unrealized income and therefore, the same is disallowed. cralawnad

WHEREFORE, appellant Fernando Iligan y Jamito is hereby convicted of the crime of homicide for
which he is imposed the indeterminate penalty of six (6) years and one (1) day of prision mayor as
minimum to fourteen (14) years, eight (8) months and one (1) day of reclusion temporal medium
as maximum and he shall indemnify the heirs of Esmeraldo Quiñones, Jr. in the amount of fifty
thousand pesos (P50,000). Appellant Edmundo Asis is hereby acquitted of the crime charged
against him. Costs against appellant Iligan.

SO ORDERED.
Urbano v. Intermediate Appellate Court, G.R. No. 72964, 7 January 1988

Republic of the Philippines

SUPREME COURT
Manila

THIRD DIVISION

G.R. No. 72964 January 7, 1988

FILOMENO URBANO, petitioner,

vs.
HON. INTERMEDIATE APPELLATE COURT AND PEOPLE OF THE PHILIPPINES, respondents.

GUTIERREZ, JR., J.:

This is a petition to review the decision of the then Intermediate Appellate Court which affirmed the decision of the then Circuit Criminal Court
of Dagupan City finding petitioner Filomeno Urban guilty beyond reasonable doubt of the crime of homicide.

The records disclose the following facts of the case.

At about 8:00 o'clock in the morning of October 23, 1980, petitioner Filomeno Urbano went to his
ricefield at Barangay Anonang, San Fabian, Pangasinan located at about 100 meters from the
tobacco seedbed of Marcelo Javier. He found the place where he stored his palay flooded with water
coming from the irrigation canal nearby which had overflowed. Urbano went to the elevated portion
of the canal to see what happened and there he saw Marcelo Javier and Emilio Erfe cutting grass.
He asked them who was responsible for the opening of the irrigation canal and Javier admitted that
he was the one. Urbano then got angry and demanded that Javier pay for his soaked palay. A
quarrel between them ensued. Urbano unsheathed his bolo (about 2 feet long, including the handle,
by 2 inches wide) and hacked Javier hitting him on the right palm of his hand, which was used in
parrying the bolo hack. Javier who was then unarmed ran away from Urbano but was overtaken by
Urbano who hacked him again hitting Javier on the left leg with the back portion of said bolo, causing
a swelling on said leg. When Urbano tried to hack and inflict further injury, his daughter embraced
and prevented him from hacking Javier.

Immediately thereafter, Antonio Erfe, Emilio Erfe, and Felipe Erfe brought Javier to his house about
50 meters away from where the incident happened. Emilio then went to the house of Barangay
Captain Menardo Soliven but not finding him there, Emilio looked for barrio councilman Felipe Solis
instead. Upon the advice of Solis, the Erfes together with Javier went to the police station of San
Fabian to report the incident. As suggested by Corporal Torio, Javier was brought to a physician.
The group went to Dr. Guillermo Padilla, rural health physician of San Fabian, who did not attend to
Javier but instead suggested that they go to Dr. Mario Meneses because Padilla had no available
medicine.

After Javier was treated by Dr. Meneses, he and his companions returned to Dr. Guillermo Padilla
who conducted a medico-legal examination. Dr. Padilla issued a medico-legal certificate (Exhibit "C"
dated September 28, 1981) which reads:

TO WHOM IT MAY CONCERN:

 This is to certify that I have examined the wound of Marcelo Javier, 20 years of age,
married, residing at Barangay Anonang, San Fabian, Pangasinan on October 23,
1980 and found the following:

1 -Incised wound 2 inches in length at the upper portion of the lesser palmar
prominence, right.

As to my observation the incapacitation is from (7-9) days period. This wound was
presented to me only for medico-legal examination, as it was already treated by the
other doctor. (p. 88, Original Records)

Upon the intercession of Councilman Solis, Urbano and Javier agreed to settle their differences.
Urbano promised to pay P700.00 for the medical expenses of Javier. Hence, on October 27, 1980,
the two accompanied by Solis appeared before the San Fabian Police to formalize their amicable
settlement. Patrolman Torio recorded the event in the police blotter (Exhibit A), to wit:

xxx xxx xxx

Entry Nr 599/27 Oct '80/103OH/ Re entry Nr 592 on page 257 both parties appeared
before this Station accompanied by brgy. councilman Felipe Solis and settled their
case amicably, for they are neighbors and close relatives to each other. Marcelo
Javier accepted and granted forgiveness to Filomeno Urbano who shoulder (sic) all
the expenses in his medical treatment, and promising to him and to this Office that
this will never be repeated anymore and not to harbour any grudge against each
other. (p. 87, Original Records.)

Urbano advanced P400.00 to Javier at the police station. On November 3, 1980, the additional
P300.00 was given to Javier at Urbano's house in the presence of barangay captain Soliven.

At about 1:30 a.m. on November 14, 1980, Javier was rushed to the Nazareth General Hospital in a
very serious condition. When admitted to the hospital, Javier had lockjaw and was having
convulsions. Dr. Edmundo Exconde who personally attended to Javier found that the latter's serious
condition was caused by tetanus toxin. He noticed the presence of a healing wound in Javier's palm
which could have been infected by tetanus.

On November 15, 1980 at exactly 4:18 p.m., Javier died in the hospital. The medical findings of Dr.
Exconde are as follows:

Date Diagnosis

11-14-80 ADMITTED due to trismus

adm. at DX TETANUS

1:30 AM Still having frequent muscle spasm. With diffi-

#35, 421 culty opening his mouth. Restless at times. Febrile

11-15-80 Referred. Novaldin 1 amp. inj. IM. Sudden cessa-

 tion of respiration and HR after
muscular spasm.

02 inhalation administered. Ambo bag

resuscita-

tion and cardiac massage done but to

no avail.

Pronounced dead by Dra. Cabugao at

4:18 P.M.

PMC done and cadaver brought home

by rela-

tives. (p. 100, Original Records)

In an information dated April 10, 1981, Filomeno Urbano was charged with the crime of homicide
before the then Circuit Criminal Court of Dagupan City, Third Judicial District.

Upon arraignment, Urbano pleaded "not guilty." After trial, the trial court found Urbano guilty as
charged. He was sentenced to suffer an indeterminate prison term of from TWELVE (12) YEARS
of prision mayor, as minimum to SEVENTEEN (17) years, FOUR (4) MONTHS and ONE (1) DAY
of reclusion temporal, as maximum, together with the accessories of the law, to indemnify the heirs
of the victim, Marcelo Javier, in the amount of P12,000.00 without subsidiary imprisonment in case
of insolvency, and to pay the costs. He was ordered confined at the New Bilibid Prison, in
Muntinlupa, Rizal upon finality of the decision, in view of the nature of his penalty.

The then Intermediate Appellate Court affirmed the conviction of Urbano on appeal but raised the
award of indemnity to the heirs of the deceased to P30,000.00 with costs against the appellant.

The appellant filed a motion for reconsideration and/or new trial. The motion for new trial was based
on an affidavit of Barangay Captain Menardo Soliven (Annex "A") which states:

That in 1980, I was the barrio captain of Barrio Anonang, San Fabian, Pangasinan,
and up to the present having been re-elected to such position in the last barangay
elections on May 17, 1982;

That sometime in the first week of November, 1980, there was a typhoon that swept
Pangasinan and other places of Central Luzon including San Fabian, a town of said
province;

That during the typhoon, the sluice or control gates of the Bued irrigation dam which
irrigates the ricefields of San Fabian were closed and/or controlled so much so that
water and its flow to the canals and ditches were regulated and reduced;

That due to the locking of the sluice or control gates of the dam leading to the canals
and ditches which will bring water to the ricefields, the water in said canals and
ditches became shallow which was suitable for catching mudfishes;
 That after the storm, I conducted a personal survey in the area affected, with my
secretary Perfecto Jaravata;

That on November 5, 1980, while I was conducting survey, I saw the late Marcelo
Javier catching fish in the shallow irrigation canals with some companions;

That few days there after,or on November l5, l980, I came to know that said Marcelo
Javier died of tetanus. (p. 33, Rollo)

The motion was denied. Hence, this petition.

In a resolution dated July 16, 1986, we gave due course to the petition.

The case involves the application of Article 4 of the Revised Penal Code which provides that
"Criminal liability shall be incurred: (1) By any person committing a felony (delito) although the
wrongful act done be different from that which he intended ..." Pursuant to this provision "an accused
is criminally responsible for acts committed by him in violation of law and for all the natural and
logical consequences resulting therefrom." (People v. Cardenas, 56 SCRA 631).

The record is clear that Marcelo Javier was hacked by the petitioner who used a bolo as a result of
which Javier suffered a 2-inch incised wound on his right palm; that on November 14, 1981 which
was the 22nd day after the incident, Javier was rushed to the hospital in a very serious condition and
that on the following day, November 15, 1981, he died from tetanus.

Under these circumstances, the lower courts ruled that Javier's death was the natural and logical
consequence of Urbano's unlawful act. Hence, he was declared responsible for Javier's death. Thus,
the appellate court said:

The claim of appellant that there was an efficient cause which supervened from the
time the deceased was wounded to the time of his death, which covers a period of 23
days does not deserve serious consideration. True, that the deceased did not die
right away from his wound, but the cause of his death was due to said wound which
was inflicted by the appellant. Said wound which was in the process of healing got
infected with tetanus which ultimately caused his death.

Dr. Edmundo Exconde of the Nazareth General Hospital testified that the victim
suffered lockjaw because of the infection of the wound with tetanus. And there is no
other way by which he could be infected with tetanus except through the wound in
his palm (tsn., p. 78, Oct. 5, 1981). Consequently, the proximate cause of the victim's
death was the wound which got infected with tetanus. And the settled rule in this
jurisdiction is that an accused is liable for all the consequences of his unlawful act.
(Article 4, par. 1, R.P.C. People v. Red, CA 43 O.G. 5072; People v. Cornel 78 Phil.
418).

Appellant's allegation that the proximate cause of the victim's death was due to his
own negligence in going back to work without his wound being properly healed, and
lately, that he went to catch fish in dirty irrigation canals in the first week of
November, 1980, is an afterthought, and a desperate attempt by appellant to wiggle
out of the predicament he found himself in. If the wound had not yet healed, it is
impossible to conceive that the deceased would be reckless enough to work with a
disabled hand. (pp. 20-21, Rollo)
The petitioner reiterates his position that the proximate cause of the death of Marcelo Javier was due
to his own negligence, that Dr. Mario Meneses found no tetanus in the injury, and that Javier got
infected with tetanus when after two weeks he returned to his farm and tended his tobacco plants
with his bare hands exposing the wound to harmful elements like tetanus germs.

The evidence on record does not clearly show that the wound inflicted by Urbano was infected with
tetanus at the time of the infliction of the wound. The evidence merely confirms that the wound,
which was already healing at the time Javier suffered the symptoms of the fatal ailment, somehow
got infected with tetanus However, as to when the wound was infected is not clear from the record.

In Vda. de Bataclan, et al. v. Medina (102 Phil. 1181), we adopted the following definition of
proximate cause:

xxx xxx xxx

... A satisfactory definition of proximate cause is found in Volume 38, pages 695-696
of American Jurisprudence, cited by plaintiffs-appellants in their brief. It is as follows:

... "that cause, which, in natural and continuous sequence, unbroken by any efficient
intervening cause, produces the injury, and without which the result would not have
occurred."And more comprehensively, "the proximate legal cause is that acting first
and producing the injury, either immediately or by setting other events in motion, all
constituting a natural and continuous chain of events, each having a close causal
connection with its immediate predecessor, the final event in the chain immediately
effecting the injury as a natural and probable result of the cause which first acted,
under such circumstances that the person responsible for the first event should, as
an ordinarily prudent and intelligent person, have reasonable ground to expect at the
moment of his act or default that an injury to some person might probably result
therefrom." (at pp. 185-186)

The issue, therefore, hinges on whether or not there was an efficient intervening cause from the time
Javier was wounded until his death which would exculpate Urbano from any liability for Javier's
death.

We look into the nature of tetanus-

The incubation period of tetanus, i.e., the time between injury and the appearance of
unmistakable symptoms, ranges from 2 to 56 days. However, over 80 percent of
patients become symptomatic within 14 days. A short incubation period indicates
severe disease, and when symptoms occur within 2 or 3 days of injury the mortality
rate approaches 100 percent.

Non-specific premonitory symptoms such as restlessness, irritability, and headache

are encountered occasionally, but the commonest presenting complaints are pain
and stiffness in the jaw, abdomen, or back and difficulty swallowing. As the
progresses, stiffness gives way to rigidity, and patients often complain of difficulty
opening their mouths. In fact, trismus in the commonest manifestation of tetanus and
is responsible for the familiar descriptive name of lockjaw. As more muscles are
involved, rigidity becomes generalized, and sustained contractions called risus
sardonicus. The intensity and sequence of muscle involvement is quite variable. In a
small proportion of patients, only local signs and symptoms develop in the region of
the injury. In the vast majority, however, most muscles are involved to some degree,
 and the signs and symptoms encountered depend upon the major muscle groups
affected.

Reflex spasm usually occur within 24 to 72 hours of the first symptom, an interval
referred to as the onset time. As in the case of the incubation period, a short onset
time is associated with a poor prognosis. Spasms are caused by sudden
intensification of afferent stimuli arising in the periphery, which increases rigidity and
causes simultaneous and excessive contraction of muscles and their antagonists.
Spasms may be both painful and dangerous. As the disease progresses, minimal or
inapparent stimuli produce more intense and longer lasting spasms with increasing
frequency. Respiration may be impaired by laryngospasm or tonic contraction of
respiratory muscles which prevent adequate ventilation. Hypoxia may then lead to
irreversible central nervous system damage and death.

Mild tetanus is characterized by an incubation period of at least 14 days and an

onset time of more than 6 days. Trismus is usually present, but dysphagia is absent
and generalized spasms are brief and mild. Moderately severe tetanus has a
somewhat shorter incubation period and onset time; trismus is marked, dysphagia
and generalized rigidity are present, but ventilation remains adequate even during
spasms. The criteria for severe tetanus include a short incubation time, and an onset
time of 72 hrs., or less, severe trismus, dysphagia and rigidity and frequent
prolonged, generalized convulsive spasms. (Harrison's Principle of Internal Medicine,
1983 Edition, pp. 1004-1005; Emphasis supplied)

Therefore, medically speaking, the reaction to tetanus found inside a man's body depends on the
incubation period of the disease.

In the case at bar, Javier suffered a 2-inch incised wound on his right palm when he parried the bolo
which Urbano used in hacking him. This incident took place on October 23, 1980. After 22 days, or
on November 14, 1980, he suffered the symptoms of tetanus, like lockjaw and muscle spasms. The
following day, November 15, 1980, he died.

If, therefore, the wound of Javier inflicted by the appellant was already infected by tetanus germs at
the time, it is more medically probable that Javier should have been infected with only a mild cause
of tetanus because the symptoms of tetanus appeared on the 22nd day after the hacking incident
or more than 14 days after the infliction of the wound. Therefore, the onset time should have been
more than six days. Javier, however, died on the second day from the onset time. The more credible
conclusion is that at the time Javier's wound was inflicted by the appellant, the severe form of
tetanus that killed him was not yet present. Consequently, Javier's wound could have been infected
with tetanus after the hacking incident. Considering the circumstance surrounding Javier's death, his
wound could have been infected by tetanus 2 or 3 or a few but not 20 to 22 days before he died.

The rule is that the death of the victim must be the direct, natural, and logical consequence of the
wounds inflicted upon him by the accused. (People v. Cardenas, supra) And since we are dealing
with a criminal conviction, the proof that the accused caused the victim's death must convince a
rational mind beyond reasonable doubt. The medical findings, however, lead us to a distinct
possibility that the infection of the wound by tetanus was an efficient intervening cause later or
between the time Javier was wounded to the time of his death. The infection was, therefore, distinct
and foreign to the crime. (People v. Rellin, 77 Phil. 1038).

Doubts are present. There is a likelihood that the wound was but the remote cause and its
subsequent infection, for failure to take necessary precautions, with tetanus may have been
the proximate cause of Javier's death with which the petitioner had nothing to do. As we ruled
in Manila Electric Co. v. Remoquillo, et al. (99 Phil. 118).

"A prior and remote cause cannot be made the be of an action if such remote cause
did nothing more than furnish the condition or give rise to the occasion by which the
injury was made possible, if there intervened between such prior or remote cause
and the injury a distinct, successive, unrelated, and efficient cause of the injury, even
though such injury would not have happened but for such condition or occasion. If no
danger existed in the condition except because of the independent cause, such
condition was not the proximate cause. And if an independent negligent act or
defective condition sets into operation the instances which result in injury because of
the prior defective condition, such subsequent act or condition is the proximate
cause." (45 C.J. pp. 931-932). (at p. 125)

It strains the judicial mind to allow a clear aggressor to go scot free of criminal liability. At the very
least, the records show he is guilty of inflicting slight physical injuries. However, the petitioner's
criminal liability in this respect was wiped out by the victim's own act. After the hacking incident,
Urbano and Javier used the facilities of barangay mediators to effect a compromise agreement
where Javier forgave Urbano while Urbano defrayed the medical expenses of Javier. This settlement
of minor offenses is allowed under the express provisions of Presidential Decree G.R. No. 1508,
Section 2(3). (See also People v. Caruncho, 127 SCRA 16).

We must stress, however, that our discussion of proximate cause and remote cause is limited to the
criminal aspects of this rather unusual case. It does not necessarily follow that the petitioner is also
free of civil liability. The well-settled doctrine is that a person, while not criminally liable, may still be
civilly liable. Thus, in the recent case of People v. Rogelio Ligon y Tria, et al. (G.R. No. 74041, July
29, 1987), we said:

xxx xxx xxx

... While the guilt of the accused in a criminal prosecution must be established
beyond reasonable doubt, only a preponderance of evidence is required in a civil
action for damages. (Article 29, Civil Code). The judgment of acquittal extinguishes
the civil liability of the accused only when it includes a declaration that the facts from
which the civil liability might arise did not exist. (Padilla v. Court of Appeals, 129
SCRA 559).

The reason for the provisions of article 29 of the Civil Code, which provides that the
acquittal of the accused on the ground that his guilt has not been proved beyond
reasonable doubt does not necessarily exempt him from civil liability for the same act
or omission, has been explained by the Code Commission as follows:

The old rule that the acquittal of the accused in a criminal case also
releases him from civil liability is one of the most serious flaws in the
Philippine legal system. It has given use to numberless instances of
miscarriage of justice, where the acquittal was due to a reasonable
doubt in the mind of the court as to the guilt of the accused. The
reasoning followed is that inasmuch as the civil responsibility is
derived from the criminal offense, when the latter is not proved, civil
liability cannot be demanded.
 This is one of those causes where confused thinking leads to
unfortunate and deplorable consequences. Such reasoning fails to
draw a clear line of demarcation between criminal liability and civil
responsibility, and to determine the logical result of the distinction.
The two liabilities are separate and distinct from each other. One
affects the social order and the other, private rights. One is for the
punishment or correction of the offender while the other is for
reparation of damages suffered by the aggrieved party. The two
responsibilities are so different from each other that article 1813 of
the present (Spanish) Civil Code reads thus: "There may be a
compromise upon the civil action arising from a crime; but the public
action for the imposition of the legal penalty shall not thereby be
extinguished." It is just and proper that, for the purposes of the
imprisonment of or fine upon the accused, the offense should be
proved beyond reasonable doubt. But for the purpose of indemnity
the complaining party, why should the offense also be proved beyond
reasonable doubt? Is not the invasion or violation of every private
right to be proved only by a preponderance of evidence? Is the right
of the aggrieved person any less private because the wrongful act is
also punishable by the criminal law?

"For these reasons, the Commission recommends the adoption of the

reform under discussion. It will correct a serious defect in our law. It
will close up an inexhaustible source of injustice-a cause for
disillusionment on the part of the innumerable persons injured or
wronged."

The respondent court increased the P12,000.00 indemnification imposed by the trial court to
P30,000.00. However, since the indemnification was based solely on the finding of guilt beyond
reasonable doubt in the homicide case, the civil liability of the petitioner was not thoroughly
examined. This aspect of the case calls for fuller development if the heirs of the victim are so
minded.

WHEREFORE, the instant petition is hereby GRANTED. The questioned decision of the then
Intermediate Appellate Court, now Court of Appeals, is REVERSED and SET ASIDE. The petitioner
is ACQUITTED of the crime of homicide. Costs de oficio.

SO ORDERED.
Intod v. CA, G.R. No. 103119, 21 October 1992, 215 SCRA 52

Republic of the Philippines

SUPREME COURT
Manila

SECOND DIVISION

G.R. No. 103119 October 21, 1992

SULPICIO INTOD, petitioner,

vs.
HONORABLE COURT OF APPEALS and PEOPLE OF THE PHILIPPINES, respondents.

CAMPOS, JR., J.:

Petitioner, Sulpicio Intod, filed this petition for review of the decision of the Court of
Appeals 1 affirming in toto the judgment of the Regional Trial Court, Branch XIV, Oroquieta City,
finding him guilty of the crime of attempted murder.

From the records, we gathered the following facts.

In the morning of February 4, 1979, Sulpicio Intod, Jorge Pangasian, Santos Tubio and Avelino
Daligdig went to Salvador Mandaya's house in Katugasan, Lopez Jaena, Misamis Occidental
and asked him to go with them to the house of Bernardina Palangpangan. Thereafter, Mandaya
and Intod, Pangasian, Tubio and Daligdig had a meeting with Aniceto Dumalagan. He told
Mandaya that he wanted Palangpangan to be killed because of a land dispute between them
and that Mandaya should accompany the four (4) men, otherwise, he would also be killed.

At about 10:00 o'clock in the evening of the same day, Petitioner, Mandaya, Pangasian, Tubio
and Daligdig, all armed with firearms, arrived at Palangpangan's house in Katugasan, Lopez
Jaena, Misamis Occidental. At the instance of his companions, Mandaya pointed the location of
Palangpangan's bedroom. Thereafter, Petitioner, Pangasian, Tubio and Daligdig fired at said
room. It turned out, however, that Palangpangan was in another City and her home was then
occupied by her son-in-law and his family. No one was in the room when the accused fired the
shots. No one was hit by the gun fire.

Petitioner and his companions were positively identified by witnesses. One witness testified that
before the five men left the premises, they shouted: "We will kill you (the witness) and especially
Bernardina Palangpangan and we will come back if (sic) you were not injured". 2

After trial, the Regional Trial Court convicted Intod of attempted murder. The court (RTC), as
affirmed by the Court of Appeals, holding that Petitioner was guilty of attempted murder.
Petitioner seeks from this Court a modification of the judgment by holding him liable only for an
impossible crime, citingArticle 4(2) of the Revised Penal Code which provides:
 Art. 4(2). CRIMINAL RESPONSIBILITY. — Criminal Responsibility shall be
incurred:

xxx xxx xxx

2. By any person performing an act which would be an offense against persons

or property, were it not for the inherent impossibility of its accomplishment or on
account of the employment of inadequate or ineffectual means.

Petitioner contends that, Palangpangan's absence from her room on the night he and his
companions riddled it with bullets made the crime inherently impossible.

On the other hand, Respondent People of the Philippines argues that the crime was not
impossible. Instead, the facts were sufficient to constitute an attempt and to convict Intod for
attempted murder. Respondent alleged that there was intent. Further, in its Comment to the
Petition, respondent pointed out that:

. . . The crime of murder was not consummated, not because of the inherent
impossibility of its accomplishment (Art. 4(2), Revised Penal Code), but due to a
cause or accident other than petitioner's and his accused's own spontaneous
desistance (Art. 3., Ibid.) Palangpangan did not sleep at her house at that time.
Had it not been for this fact, the crime is possible, not impossible. 3

Article 4, paragraph 2 is an innovation 4 of the Revised Penal Code. This seeks to remedy the
void in the Old Penal Code where:

. . . it was necessary that the execution of the act has been commenced, that the
person conceiving the idea should have set about doing the deed, employing
appropriate means in order that his intent might become a reality, and finally, that
the result or end contemplated shall have been physically possible. So long as
these conditions were not present, the law and the courts did not hold him
criminally liable. 5

This legal doctrine left social interests entirely unprotected. 6 The Revised Penal Code, inspired
by the Positivist School, recognizes in the offender his formidability, 7 and now penalizes an act
which were it not aimed at something quite impossible or carried out with means which prove
inadequate, would constitute a felony against person or against property. 8 The rationale of
Article 4(2) is to punish such criminal tendencies. 9

Under this article, the act performed by the offender cannot produce an offense against person
or property because: (1) the commission of the offense is inherently impossible of
accomplishment: or (2) the means employed is either (a) inadequate or (b) ineffectual. 10

That the offense cannot be produced because the commission of the offense is inherently
impossible of accomplishment is the focus of this petition. To be impossible under this clause,
the act intended by the offender must be by its nature one impossible of
accomplishment. 11 There must be either impossibility of accomplishing the intended act 12 in
order to qualify the act an impossible crime.
Legal impossibility occurs where the intended acts, even if completed, would not amount to a
crime. 13 Thus:

Legal impossibility would apply to those circumstances where (1) the motive,
desire and expectation is to perform an act in violation of the law; (2) there is
intention to perform the physical act; (3) there is a performance of the intended
physical act; and (4) the consequence resulting from the intended act does not
amount to a crime. 14

The impossibility of killing a person already dead 15 falls in this category.

On the other hand, factual impossibility occurs when extraneous circumstances unknown to the
actor or beyond his control prevent the consummation of the intended crime. 16 One example is
the man who puts his hand in the coat pocket of another with the intention to steal the latter's
wallet and finds the pocket empty. 17

The case at bar belongs to this category. Petitioner shoots the place where he thought his victim
would be, although in reality, the victim was not present in said place and thus, the petitioner
failed to accomplish his end.

One American case had facts almost exactly the same as this one. In People vs. Lee
Kong, 18 the accused, with intent to kill, aimed and fired at the spot where he thought the police
officer would be. It turned out, however, that the latter was in a different place. The accused
failed to hit him and to achieve his intent. The Court convicted the accused of an attempt to kill.
It held that:

The fact that the officer was not at the spot where the attacking party imagined
where he was, and where the bullet pierced the roof, renders it no less an
attempt to kill. It is well settled principle of criminal law in this country that where
the criminal result of an attempt is not accomplished simply because of an
obstruction in the way of the thing to be operated upon, and these facts are
unknown to the aggressor at the time, the criminal attempt is committed.

In the case of Strokes vs. State, 19 where the accused failed to accomplish his intent to kill the
victim because the latter did not pass by the place where he was lying-in wait, the court held
him liable for attempted murder. The court explained that:

It was no fault of Strokes that the crime was not committed. . . . It only became
impossible by reason of the extraneous circumstance that Lane did not go that
way; and further, that he was arrested and prevented from committing the
murder. This rule of the law has application only where it is inherently impossible
to commit the crime. It has no application to a case where it becomes impossible
for the crime to be committed, either by outside interference or because of
miscalculation as to a supposed opportunity to commit the crime which fails to
materialize; in short it has no application to the case when the impossibility grows
out of extraneous acts not within the control of the party.

In the case of Clark vs. State, 20 the court held defendant liable for attempted robbery even if
there was nothing to rob. In disposing of the case, the court quoted Mr. Justice Bishop, to wit:
 It being an accepted truth that defendant deserves punishment by reason of his
criminal intent, no one can seriously doubt that the protection of the public
requires the punishment to be administered, equally whether in the unseen
depths of the pocket, etc., what was supposed to exist was really present or not.
The community suffers from the mere alarm of crime. Again: Where the thing
intended (attempted) as a crime and what is done is a sort to create alarm, in
other words, excite apprehension that the evil; intention will be carried out, the
incipient act which the law of attempt takes cognizance of is in reason committed.

In State vs. Mitchell, 21 defendant, with intent to kill, fired at the window of victim's room thinking
that the latter was inside. However, at that moment, the victim was in another part of the house.
The court convicted the accused of attempted murder.

The aforecited cases are the same cases which have been relied upon by Respondent to make
this Court sustain the judgment of attempted murder against Petitioner. However, we cannot
rely upon these decisions to resolve the issue at hand. There is a difference between the
Philippine and the American laws regarding the concept and appreciation of impossible crimes.

In the Philippines, the Revised Penal Code, in Article 4(2), expressly provided for impossible
crimes and made the punishable. Whereas, in the United States, the Code of Crimes and
Criminal Procedure is silent regarding this matter. What it provided for were attempts of the
crimes enumerated in the said Code. Furthermore, in said jurisdiction, the impossibility of
committing the offense is merely a defense to an attempt charge. In this regard, commentators
and the cases generally divide the impossibility defense into two categories: legal versus factual
impossibility. 22 In U.S. vs. Wilson 23 the Court held that:

. . . factual impossibility of the commission of the crime is not a defense. If the

crime could have been committed had the circumstances been as the defendant
believed them to be, it is no defense that in reality the crime was impossible of
commission.

Legal impossibility, on the other hand, is a defense which can be invoked to avoid criminal
liability for an attempt. In U.S. vs. Berrigan, 24 the accused was indicated for attempting to
smuggle letters into and out of prison. The law governing the matter made the act criminal if
done without knowledge and consent of the warden. In this case, the offender intended to send
a letter without the latter's knowledge and consent and the act was performed. However,
unknown to him, the transmittal was achieved with the warden's knowledge and consent. The
lower court held the accused liable for attempt but the appellate court reversed. It held
unacceptable the contention of the state that "elimination of impossibility as a defense to a
charge of criminal attempt, as suggested by the Model Penal Code and the proposed federal
legislation, is consistent with the overwhelming modern view". In disposing of this contention,
the Court held that the federal statutes did not contain such provision, and thus, following the
principle of legality, no person could be criminally liable for an act which was not made criminal
by law. Further, it said:

Congress has not yet enacted a law that provides that intent plus act plus
conduct constitutes the offense of attempt irrespective of legal impossibility until
such time as such legislative changes in the law take place, this court will not
fashion a new non-statutory law of criminal attempt.
To restate, in the United States, where the offense sought to be committed is factually
impossible or accomplishment, the offender cannot escape criminal liability. He can be
convicted of an attempt to commit the substantive crime where the elements of attempt are
satisfied. It appears, therefore, that the act is penalized, not as an impossible crime, but as an
attempt to commit a crime. On the other hand, where the offense is legally impossible of
accomplishment, the actor cannot be held liable for any crime — neither for an attempt not for
an impossible crime. The only reason for this is that in American law, there is no such thing as
an impossible crime. Instead, it only recognizes impossibility as a defense to a crime charge —
that is, attempt.

This is not true in the Philippines. In our jurisdiction, impossible crimes are recognized. The
impossibility of accomplishing the criminal intent is not merely a defense, but an act penalized
by itself. Furthermore, the phrase "inherent impossibility" that is found in Article 4(2) of the
Revised Penal Code makes no distinction between factual or physical impossibility and legal
impossibility. Ubi lex non distinguit nec nos distinguere debemos.

The factual situation in the case at bar present a physical impossibility which rendered the
intended crime impossible of accomplishment. And under Article 4, paragraph 2 of the Revised
Penal Code, such is sufficient to make the act an impossible crime.

To uphold the contention of respondent that the offense was Attempted Murder because the
absence of Palangpangan was a supervening cause independent of the actor's will, will render
useless the provision in Article 4, which makes a person criminally liable for an act "which would
be an offense against persons or property, were it not for the inherent impossibility of its
accomplishment . . ." In that case all circumstances which prevented the consummation of the
offense will be treated as an accident independent of the actor's will which is an element of
attempted and frustrated felonies.

WHEREFORE, PREMISES CONSIDERED. the petition is hereby GRANTED, the decision of

respondent Court of Appeals holding Petitioner guilty of Attempted Murder is hereby MODIFIED.
We hereby hold Petitioner guilty of an impossible crime as defined and penalized in Articles 4,
paragraph 2, and 59 of the Revised Penal Code, respectively. Having in mind the social danger
and degree of criminality shown by Petitioner, this Court sentences him to suffer the penalty of
six (6) months of arresto mayor, together with the accessory penalties provided by the law, and
to pay the costs.

SO ORDERED.
Jacinto v. People, G.R. No. 162540, 13 July 2009.

Republic of the Philippines

Supreme Court
Manila

THIRD DIVISION

GEMMA T. JACINTO, G.R. No. 162540

Petitioner,
Present:

YNARES-SANTIAGO, J.,
Chairperson,
- versus - CHICO-NAZARIO,
VELASCO, JR.,
NACHURA, and
PERALTA, JJ.

PEOPLE OF THE PHILIPPINES, Promulgated:

Respondent.
July 13, 2009
x-----------------------------------------------------------------------------------------x
 DECISION

PERALTA, J.:

Before us is a petition for review on certiorari filed by petitioner Gemma T.

Jacinto seeking the reversal of the Decision[1] of the Court of Appeals (CA) in CA-
G.R. CR No. 23761 dated December 16, 2003, affirming petitioner's conviction of
the crime of Qualified Theft, and its Resolution[2] dated March 5, 2004 denying
petitioner's motion for reconsideration.

Petitioner, along with two other women, namely, Anita Busog de Valencia y
Rivera and Jacqueline Capitle, was charged before the Regional Trial Court (RTC)
of CaloocanCity, Branch 131, with the crime of Qualified Theft, allegedly
committed as follows:

That on or about and sometime in the month of July 1997, in

Kalookan City, Metro Manila, and within the jurisdiction of this
Honorable Court, the above-named accused, conspiring together and
mutually helping one another, being then all employees of MEGA FOAM
INTERNATIONAL INC., herein represented by JOSEPH DYHENGCO
Y CO, and as such had free access inside the aforesaid establishment, with
grave abuse of trust and confidence reposed upon them with intent to gain
and without the knowledge and consent of the owner thereof, did then and
there willfully, unlawfully and feloniously take, steal and deposited in
their own account, Banco De Oro Check No. 0132649 dated July 14, 1997
in the sum of P10,000.00, representing payment made by customer Baby
Aquino to the Mega Foam Int'l. Inc. to the damage and prejudice of the
latter in the aforesaid stated amount of P10,000.00.

CONTRARY TO LAW.[3]
The prosecution's evidence, which both the RTC and the CA found to be more
credible, reveals the events that transpired to be as follows.

In the month of June 1997, Isabelita Aquino Milabo, also known as Baby Aquino,
handed petitioner Banco De Oro (BDO) Check Number 0132649 postdated July 14,
1997 in the amount of P10,000.00. The check was payment for Baby Aquino's
purchases from Mega Foam Int'l., Inc., and petitioner was then the collector of Mega
Foam. Somehow, the check was deposited in the Land Bank account of Generoso
Capitle, the husband of Jacqueline Capitle; the latter is the sister of petitioner and
the former pricing, merchandising and inventory clerk of Mega Foam.
Meanwhile, Rowena Ricablanca, another employee of Mega Foam, received a phone
call sometime in the middle of July from one of their customers, Jennifer
Sanalila. The customer wanted to know if she could issue checks payable to the
account of Mega Foam, instead of issuing the checks payable to CASH. Said
customer had apparently been instructed by Jacqueline Capitle to make check
payments to Mega Foam payable to CASH. Around that time, Ricablanca also
received a phone call from an employee of Land Bank, Valenzuela Branch, who was
looking for Generoso Capitle. The reason for the call was to inform Capitle that the
subject BDO check deposited in his account had been dishonored.

Ricablanca then phoned accused Anita Valencia, a former employee/collector of

Mega Foam, asking the latter to inform Jacqueline Capitle about the phone call from
Land Bank regarding the bounced check. Ricablanca explained that she had to call
and relay the message through Valencia, because the Capitles did not have a phone;
but they could be reached through Valencia, a neighbor and former co-employee of
Jacqueline Capitle at Mega Foam.
Valencia then told Ricablanca that the check came from Baby Aquino, and
instructed Ricablanca to ask Baby Aquino to replace the check with
cash. Valencia also told Ricablanca of a plan to take the cash and divide it equally
into four: for herself, Ricablanca, petitioner Jacinto and Jacqueline
Capitle. Ricablanca, upon the advise of Mega Foam's accountant, reported the matter
to the owner of Mega Foam, Joseph Dyhengco.
Thereafter, Joseph Dyhengco talked to Baby Aquino and was able to confirm that
the latter indeed handed petitioner a BDO check for P10,000.00 sometime in June
1997 as payment for her purchases from Mega Foam.[4] Baby Aquino further
testified that, sometime in July 1997, petitioner also called her on the phone to tell
her that the BDO check bounced.[5] Verification from company records showed that
petitioner never remitted the subject check to Mega Foam. However, Baby Aquino
said that she had already paid Mega Foam P10,000.00 cash in August 1997 as
replacement for the dishonored check.[6]
Generoso Capitle, presented as a hostile witness, admitted depositing the subject
BDO check in his bank account, but explained that the check came into his
possession when some unknown woman arrived at his house around the first week
of July 1997 to have the check rediscounted. He parted with his cash in exchange
for the check without even bothering to inquire into the identity of the woman or her
address. When he was informed by the bank that the check bounced, he merely
disregarded it as he didnt know where to find the woman who rediscounted the
check.
Meanwhile, Dyhengco filed a Complaint with the National Bureau of Investigation
(NBI) and worked out an entrapment operation with its agents. Ten pieces
of P1,000.00 bills provided by Dyhengco were marked and dusted with fluorescent
powder by the NBI. Thereafter, the bills were given to Ricablanca, who was tasked
to pretend that she was going along with Valencia's plan.
On August 15, 2007, Ricablanca and petitioner met at the latter's house. Petitioner,
who was then holding the bounced BDO check, handed over said check to
Ricablanca. They originally intended to proceed to Baby Aquino's place to have the
check replaced with cash, but the plan did not push through. However, they agreed
to meet again on August 21, 2007.
On the agreed date, Ricablanca again went to petitioners house, where she met
petitioner and Jacqueline Capitle. Petitioner, her husband, and Ricablanca went to
the house of Anita Valencia; Jacqueline Capitle decided not to go with the group
because she decided to go shopping. It was only petitioner, her husband, Ricablanca
and Valencia who then boarded petitioner's jeep and went on to Baby Aquino's
factory. Only Ricablanca alighted from the jeep and entered the premises of Baby
Aquino, pretending that she was getting cash from Baby Aquino. However, the cash
she actually brought out from the premises was the P10,000.00 marked money
previously given to her by Dyhengco. Ricablanca divided the money and upon
returning to the jeep, gave P5,000.00 each to Valencia and petitioner. Thereafter,
petitioner and Valencia were arrested by NBI agents, who had been watching the
whole time.
Petitioner and Valencia were brought to the NBI office where the Forensic Chemist
found fluorescent powder on the palmar and dorsal aspects of both of their
hands. This showed that petitioner and Valencia handled the marked money. The
NBI filed a criminal case for qualified theft against the two and one Jane Doe who
was later identified as Jacqueline Capitle, the wife of Generoso Capitle.
The defense, on the other hand, denied having taken the subject check and presented
the following scenario.

Petitioner admitted that she was a collector for Mega Foam until she resigned
on June 30, 1997, but claimed that she had stopped collecting payments from Baby
Aquino for quite some time before her resignation from the company. She further
testified that, on the day of the arrest, Ricablanca came to her mothers house, where
she was staying at that time, and asked that she accompany her (Ricablanca) to Baby
Aquino's house. Since petitioner was going for a pre-natal check-up at the Chinese
General Hospital, Ricablanca decided to hitch a ride with the former and her husband
in their jeep going to Baby Aquino's place in Caloocan City. She allegedly had no
idea why Ricablanca asked them to wait in their jeep, which they parked outside the
house of Baby Aquino, and was very surprised when Ricablanca placed the money
on her lap and the NBI agents arrested them.
Anita Valencia also admitted that she was the cashier of Mega Foam until she
resigned on June 30, 1997. It was never part of her job to collect payments from
customers.According to her, on the morning of August 21, 1997, Ricablanca called
her up on the phone, asking if she (Valencia) could accompany her (Ricablanca) to
the house of Baby Aquino. Valencia claims that she agreed to do so, despite her
admission during cross-examination that she did not know where Baby Aquino
resided, as she had never been to said house. They then met at the house of
petitioner's mother, rode the jeep of petitioner and her husband, and proceeded to
Baby Aquino's place. When they arrived at said place, Ricablanca alighted, but
requested them to wait for her in the jeep. After ten minutes, Ricablanca came out
and, to her surprise, Ricablanca gave her money and so she even asked, What is
this? Then, the NBI agents arrested them.

The trial of the three accused went its usual course and, on October 4, 1999, the RTC
rendered its Decision, the dispositive portion of which reads:
 WHEREFORE, in view of the foregoing, the Court finds
accused Gemma Tubale De Jacinto y Latosa, Anita Busog De Valencia
y Rivera and Jacqueline Capitle GUILTY beyond reasonable doubt of
the crime of QUALIFIED THEFT and each of them is hereby sentenced
to suffer imprisonment of FIVE (5) YEARS, FIVE (5) MONTHS AND
ELEVEN (11) DAYS, as minimum, to SIX (6) YEARS, EIGHT (8)
MONTHS AND TWENTY (20) DAYS, as maximum.

SO ORDERED.[7]

The three appealed to the CA and, on December 16, 2003, a Decision was
promulgated, the dispositive portion of which reads, thus:

IN VIEW OF THE FOREGOING, the decision of the trial

court is MODIFIED, in that:

(a) the sentence against accused Gemma Jacinto stands;

(b) the sentence against accused Anita Valencia is reduced
to 4 months arresto mayor medium.
(c) The accused Jacqueline Capitle is acquitted.

SO ORDERED.

A Partial Motion for Reconsideration of the foregoing CA Decision was filed

only for petitioner Gemma Tubale Jacinto, but the same was denied per Resolution
dated March 5, 2004.

Hence, the present Petition for Review on Certiorari filed by petitioner alone,
assailing the Decision and Resolution of the CA. The issues raised in the petition are
as follows:

1. Whether or not petitioner can be convicted of a crime not charged

in the information;

2. Whether or not a worthless check can be the object of theft; and

3. Whether or not the prosecution has proved petitioner's guilt beyond

reasonable doubt.[8]
The petition deserves considerable thought.

The prosecution tried to establish the following pieces of evidence to constitute the
elements of the crime of qualified theft defined under Article 308, in relation to
Article 310, both of the Revised Penal Code: (1) the taking of personal property - as
shown by the fact that petitioner, as collector for Mega Foam, did not remit
the customer's check payment to her employer and, instead, appropriated it for
herself; (2) said property belonged to another − the check belonged to Baby Aquino,
as it was her payment for purchases she made; (3) the taking was done with intent to
gain this is presumed from the act of unlawful taking and further shown by the fact
that the check was deposited to the bank account of petitioner's brother-in-law; (4) it
was done without the owners consent petitioner hid the fact that she had received the
check payment from her employer's customer by not remitting the check to the
company; (5) it was accomplished without the use of violence or intimidation against
persons, nor of force upon things the check was voluntarily handed to petitioner by
the customer, as she was known to be a collector for the company; and (6) it was
done with grave abuse of confidence petitioner is admittedly entrusted with the
collection of payments from customers.
However, as may be gleaned from the aforementioned Articles of the Revised Penal
Code, the personal property subject of the theft must have some value, as the
intention of the accused is to gain from the thing stolen. This is further bolstered
by Article 309, where the law provides that the penalty to be imposed on the accused
is dependent on the value of the thing stolen.
In this case, petitioner unlawfully took the postdated check belonging to Mega Foam,
but the same was apparently without value, as it was subsequently dishonored. Thus,
the question arises on whether the crime of qualified theft was actually produced.

The Court must resolve the issue in the negative.

Intod v. Court of Appeals[9] is highly instructive and applicable to the present

case. In Intod, the accused, intending to kill a person, peppered the latters bedroom
with bullets, but since the intended victim was not home at the time, no harm came
to him. The trial court and the CA held Intod guilty of attempted murder. But upon
review by this Court, he was adjudged guilty only of an impossible crime as defined
and penalized in paragraph 2, Article 4, in relation to Article 59, both of the Revised
Penal Code, because of the factual impossibility of producing the crime. Pertinent
portions of said provisions read as follows:
Article 4(2). Criminal Responsibility. - Criminal responsibility shall be
incurred:

xxxx

2. By any person performing an act which would be an

offense against persons or property, were it not for
the inherent impossibility of its accomplishment or
on account of the employment of inadequate to
ineffectual means. (emphasis supplied)
Article 59. Penalty to be imposed in case of failure to commit the crime
because the means employed or the aims sought are impossible. - When
the person intending to commit an offense has already performed the acts
for the execution of the same but nevertheless the crime was not produced
by reason of the fact that the act intended was by its nature one of
impossible accomplishment or because the means employed by such
person are essentially inadequate to produce the result desired by him, the
court, having in mind the social danger and the degree of criminality
shown by the offender, shall impose upon him the penalty of arresto
mayor or a fine ranging from 200 to 500 pesos.
Thus, the requisites of an impossible crime are: (1) that the act performed would be
an offense against persons or property; (2) that the act was done with evil intent; and
(3) that its accomplishment was inherently impossible, or the means employed was
either inadequate or ineffectual. The aspect of the inherent impossibility of
accomplishing the intended crime under Article 4(2) of the Revised Penal Code was
further explained by the Court in Intod[10] in this wise:

Under this article, the act performed by the offender cannot produce an
offense against persons or property because: (1) the commission of the
offense is inherently impossible of accomplishment; or (2) the means
employed is either (a) inadequate or (b) ineffectual.

That the offense cannot be produced because the commission of the

offense is inherently impossible of accomplishment is the focus of this
petition. To be impossible under this clause, the act intended by the
offender must be by its nature one impossible of accomplishment. There
must be either (1) legal impossibility, or (2) physical impossibility of
 accomplishing the intended act in order to qualify the act as an impossible
crime.

Legal impossibility occurs where the intended acts, even if completed,

would not amount to a crime.
xxxx

The impossibility of killing a person already dead falls in this category.

On the other hand, factual impossibility occurs when extraneous

circumstances unknown to the actor or beyond his control prevent the
consummation of the intended crime. x x x [11]
In Intod, the Court went on to give an example of an offense that involved factual
impossibility, i.e., a man puts his hand in the coat pocket of another with the
intention to steal the latter's wallet, but gets nothing since the pocket is empty.
Herein petitioner's case is closely akin to the above example of factual impossibility
given in Intod. In this case, petitioner performed all the acts to consummate the
crime of qualified theft, which is a crime against property. Petitioner's evil intent
cannot be denied, as the mere act of unlawfully taking the check meant for Mega
Foam showed her intent to gain or be unjustly enriched. Were it not for the fact that
the check bounced, she would have received the face value thereof, which was not
rightfully hers. Therefore, it was only due to the extraneous circumstance of the
check being unfunded, a fact unknown to petitioner at the time, that prevented the
crime from being produced. The thing unlawfully taken by petitioner turned out to
be absolutely worthless, because the check was eventually dishonored, and Mega
Foam had received the cash to replace the value of said dishonored check.

The fact that petitioner was later entrapped receiving the P5,000.00 marked money,
which she thought was the cash replacement for the dishonored check, is of no
moment. The Court held in Valenzuela v. People[12] that under the definition of theft
in Article 308 of the Revised Penal Code, there is only one operative act of execution
by the actor involved in theft ─ the taking of personal property of
another. Elucidating further, the Court held, thus:

x x x Parsing through the statutory definition of theft under Article 308,

there is one apparent answer provided in the language of the law that theft
is already produced upon the tak[ing of] personal property of another
without the latters consent.
 xxxx

x x x when is the crime of theft produced? There would be all but certain
unanimity in the position that theft is produced when there is deprivation
of personal property due to its taking by one with intent to gain. Viewed
from that perspective, it is immaterial to the product of the felony that the
offender, once having committed all the acts of execution for theft, is able
or unable to freely dispose of the property stolen since the deprivation
from the owner alone has already ensued from such acts of execution. x
xx

xxxx

x x x we have, after all, held that unlawful taking, or apoderamiento, is

deemed complete from the moment the offender gains possession of the
thing, even if he has no opportunity to dispose of the same. x x x

x x x Unlawful taking, which is the deprivation of ones personal property,

is the element which produces the felony in its consummated stage. x x
x [13]

From the above discussion, there can be no question that as of the time that
petitioner took possession of the check meant for Mega Foam, she had
performed all the acts to consummate the crime of theft, had it not been
impossible of accomplishment in this case. The circumstance of petitioner
receiving the P5,000.00 cash as supposed replacement for the dishonored check was
no longer necessary for the consummation of the crime of qualified theft. Obviously,
the plan to convince Baby Aquino to give cash as replacement for the check was
hatched only after the check had been dishonored by the drawee bank. Since the
crime of theft is not a continuing offense, petitioner's act of receiving the cash
replacement should not be considered as a continuation of the theft. At most, the fact
that petitioner was caught receiving the marked money was merely corroborating
evidence to strengthen proof of her intent to gain.
Moreover, the fact that petitioner further planned to have the dishonored check
replaced with cash by its issuer is a different and separate fraudulent
scheme. Unfortunately, since said scheme was not included or covered by the
allegations in the Information, the Court cannot pronounce judgment on the accused;
otherwise, it would violate the due process clause of the Constitution. If at all, that
fraudulent scheme could have been another possible source of criminal liability.
IN VIEW OF THE FOREGOING, the petition is GRANTED. The Decision of the
Court of Appeals, dated December 16, 2003, and its Resolution dated March 5,
2004, are MODIFIED. Petitioner Gemma T. Jacinto is found GUILTY of
an IMPOSSIBLE CRIME as defined and penalized in Articles 4, paragraph 2, and
59 of the Revised Penal Code, respectively. Petitioner is sentenced to suffer the
penalty of six (6) months of arrresto mayor, and to pay the costs.

SO ORDERED.