A.M. No.

P-99-1308 May 4, 2000

(formerly OCA IPI No. 97-343-P)

EXECUTIVE JUDGE LEANDRO T. LOYAO, JR., RTC, MAASIN, SOUTHERN

LEYTE, complainant,
vs.
SOFRONIO S. MANATAD, Interpreter, Municipal Circuit Trial Court, Malitbog-Tomas
Oppus-Bontoc, Southern Leyte, respondent.

PER CURIAM:

Executive Judge Leandro T. Loyao, Jr. of the Regional Trial Court of Maasin, Southern Leyte,
Branch 24 charges respondent Sofronio S. Manatad, a Court Interpreter in the Municipal Circuit
Trial Court of Malitbog-Tomas Oppus-Bontoc, Southern Leyte, with gross neglect of duty and
frequent unauthorized absences or tardiness in reporting for duty.

Executive Judge Loyao alleges that for the year 1996, respondent Manatad has incurred a total
of one hundred nine (109) absences without leave as recorded in the court's logbook of
attendance in contrast with the 59 1/2 days absences without leave as reflected in his daily time
record (DTR). Executive Judge Loyao avers that the discrepancies in the entries simply mean
that respondent Manatad did not accomplish his DTR in accordance with the official logbook of
attendance. He further alleges that respondent Manatad took advantage of his superior's
absence by not reporting for work for a week starting from July 7, 1997 and not explaining the
reason for his absence. Executive Judge Loyao likewise avers that this is the second
administrative offense on record; the first was docketed as A.M. No. P-94-1034 for disgraceful
and immoral conduct for which respondent Manatad was meted the punishment of a fine in the
amount of P2,000.00 with a warning that a repetition of the same or similar acts would be dealt
with more severely.

Respondent Sofronio Manatad, in his Answer,1 claims that he never failed to accomplish the
application for leave form and that his approved leave application filed with this Court
mysteriously vanished from the place where it was kept. He further claims that he filed a sick
leave application for five (5) days with Judge Sulpicio D. Cunanan who recommended its
approval. He denies having neglected his duties alleging that the charges against him were
made up by people who wanted to get rid of him as they were allegedly envious of his job and
wanted to replace him as court interpreter. He further alleges that it is retired Clerk of Court II
Manuel V. Arevalo, who has a personal grudge against him, who made the fictitious report to
Judge Loyao. Respondent adds that the rest of the staff of the 2nd MCTC Malitbog-Tomas
Oppus-Bontoc, Southern Leyte were charged with Falsification of Public Documents on the
ground that their DTRs do not jibe with the logbook of attendance but the administrative charges
never reached the office of the Court Administrator. Respondent protests his being singled out,
claiming injustice because he was not the only one who made the erroneous entries in the DTR.

In the SC Resolution dated March 24, 1999,2 the case was referred to Judge Fernando Campilan,
Jr. of the RTC-Branch 39, Sogod, Southern Leyte for investigation, report and recommendation
and the case was set for hearing. On the first day of the hearing/investigation, Judge Loyao did
not appear but he filed a Manifestation and/or Motion praying that his personal presence be
dispensed with while respondent Manatad manifested that he is waving his right to adduce
additional evidence other than his written explanation and answer and further asked that the
case be resolved on the basis of the records only since he has already given his side in writing.
Investigating Judge Campilan made the following findings:3

For the purpose for which it was intended which was to record respondent's
absences, the office log book of attendance (Exhs. "A" to "A-60", inclusive) was
already in place in the year 1996. It faithfully recorded his absences for the period
January 2 to December 12, 1996, inclusive, and to make it credible and
 indisputable, all the court personnel including the presiding judge at times, affixed
their respective initials in every entry thereon. The authenticity and genuineness
of their respective initials were confirmed by each of them during the
investigation. They further affirmed and confirmed to the veracity and truthfulness
of all the entries in the said log book. For the calendar year 1996 it reflected a
total of 109 absences by the respondent without leave. In contrast, per his Daily
Time Records for the same period (pp. 23-24, Records) it only showed 59 1/2
days absences without leave. Considering that the official log book of attendance
is more credible and reliable over that of his submitted Daily Time Records which
are self-serving in character, it therefore, indubitably appears to the mind of the
investigator that respondent did not accomplish his DTRs in accordance with the
office log book of attendance.

Further showing the discrepancies in absences without leaves as appearing in

the log book and his daily time records is a "Breakdown Of The Total Number Of
Absences Of Mr. Sofronio S. Manatad, Jr., MCTC, Interpreter of Malitbog-Tomas
Oppus, Southern Leyte, For CY 1996" (pp. 101, Records) which was prepared by
Joselito M. Binongo, Acting Deputy Sheriff and Court Statistician. Attached to it
are the monthly breakdown of such absences (pp. 102-105, records). These
documents are accorded great evidentiary weight because of the presumption of
regularity in the performance of official duties by the court personnel who
prepared them.

Respondent's assertion that when he is not in Malitbog he is holding office in

Bontoc or acts as liaison officer of their Court per directive of his presiding judge
is belied and denied by the latter himself. According to Judge Cunanan, he only
send respondent to Bontoc on rare occasions when he wants some important
papers from their office in that town brought to Malitbog (TSN Matondo, pp. 4-5,
hearing June 30, 1999). Besides, respondent could not show any office order or
memorandum from Judge Cunanan that he was directed to hold office in Bontoc.
Neither could he present any certificate of appearance or other proof of his
physical presence from any appropriate government office or agency of that
municipality. In fine, his alibi that he was in Bontoc on certain days attending
some office business is but a shallow and vain attempt to conceal his absences
from office in Malitbog, his station.

His claim that (these) instant charges against him are only made up by people
who are envious of his job and want to replace him as court interpreter remains
unsubstantiated.

It is relevant to note that earlier herein respondent in A.M. No. P-9434

entitled Lewelyn S. Estreller vs.Sofrono Manatad, Jr. was found liable for
disgraceful and immoral conduct and imposed a fine of Two Thousand
(P2,000.00) Pesos. During the investigation his co-employees were one in their
observations that despite the filing of this instant case against him, respondent
has not completely reformed in his behavior although they noted some changes
in him.

To the mind of the Investigator, herein respondent has proven himself to be

incorrigible, and therefore, no longer deserving to stay a minute longer in the
service.

The Investigating Judge concluded that since respondent Manatad incurred a total of 109
unauthorized absences in the year 1996 that exceeded the allowable 2.5 days monthly leave
credit for at least three (3) months in a semester or at least three (3) consecutive months during
the year, he is administratively liable for the grave offense of Frequent Unauthorized Absences or
Tardiness in Reporting for Duty and for Gross Neglect of Duty under Section 22 (q) and (a),
respectively, of the Omnibus Rules Implementing Book V of Executive Order 292 and
recommends that respondent Manatad be meted the penalty of dismissal.

The Court Administrator found no cogent reason to reverse the findings of Investigating Judge
Campilan. He opines that respondent Manatad's justification on the discrepancies in the DTR
and logbook is glaringly weak and unavailing aside from the fact that it is wanting in substantial
veracity to warrant credence. His tardiness resulting in the Clerk of Court's acting as interpreter
in instances when respondent is not yet around after the start of court sessions is tantamount to
abandonment of duty. He recommends the dismissal of respondent Manatad from the service
which will carry with it the forfeiture of all his retirement and other benefits, with prejudice to re-
employment in other government-owned or controlled agencies.

We find the recommendations of the Investigating Judge and the Court Administrator to be well-
taken.

The records reveal that respondent Manatad incurred absences for the year 1996 as can be
seen from the xerox copies of his DTRs4 and the xerox copies of entries of attendance in the
logbook.5 Based on the entries in the logbook and the DTRs, Joselito Binongo, the court
statistician, submitted a monthly breakdown of absences of respondent Manatad for the year
1996 showing the discrepancies.6

Under Memorandum Circular No. 4, series of 1991 of the Civil Service Commission, an officer or
employee in the civil service shall be considered habitually absent if he incurs unauthorized
absences exceeding the allowable 2.5 days monthly leave credits under the leave law for at least
three (3) months in a semester or at least three (3) consecutive months during the year. In the
case at bar, respondent Manatad incurred unauthorized absences more than that allowed by law
in a given period. Unauthorized because there is no record of any application for leave of
absence during those days. In the year 1996 alone, his unauthorized absences amounted to a
total of 109 days as per logbook entries or 59 1/2 days per the DTRs.

Respondent Manatad's habitual absenteeism has caused inefficiency in the public service. Time
and again, this Court has made the pronouncement that any act which falls short of the exacting
standards for public office, especially on the part of those expected to preserve the image of the
judiciary, shall not be countenanced. Public office is a public trust. Public officers must at all
times be accountable to the people, serve them with utmost degree of responsibility, integrity,
loyalty and efficiency.7 A court employee's absence without leave for a prolonged period of time,
constitutes conduct prejudicial to the best interest of public service and warrants the penalty of
dismissal from the service with forfeiture of benefits.8

WHEREFORE, premises considered, respondent Sofronio S. Manatad of the MCTC-Malitbog-

Tomas Oppus-Bontoc, Southern Leyte is hereby DISMISSED from the service with forfeiture of
all retirement benefits, with prejudice to reinstatement or re-employment in any branch or
institutionality of the government, including government-owned or controlled corporations.

SO ORDERED.

Davide, Jr., C.J., Bellosillo, Puno, Vitug, Mendoza, Panganiban Quisumbing, Pardo, Buena,
Gonzaga-Reyes, Ynares-Santiago and De Leon, Jr., JJ., concur.

Melo and Kapunan, JJ., are on leave.

Purisima, J., abroad took no part.

Footnotes
 1
pp. 108-112, Rollo.

2
p. 116, ibid.

3
pp. 6-7, Report and Recommendation, pp. 168-169, ibid.

4
pp. 23-34, Rollo.

5
pp. 40-100, ibid.

6
pp. 102-105, ibid.

7
Re: Absence Without Official Leave (AWOL) of Antonio Macalintal, Process
Server, Office of the Clerk of Court, A.M. No. 99-11-06-SC, prom. February 15,
2000; Rangel-Roque vs. Rivota, 302 SCRA 502; Gano vs. Leonen, 232 SCRA
98.

8
Masadao, Jr. vs. Gloriosa, 280 SCRA 612; Torres vs. Tayson, 235 SCRA 297.

G.R. No. 130658 May 4, 2000

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
ORLITO GADIN, JR. alias "Ay-Ay", accused-appellant.

PARDO, J.:

The case is before the Court on automatic review of the decision of the Regional Trial Court of
Catbalogan, Samar, Branch 28 convicting Orlito Gadin, Jr. alias "Ay-Ay" of murder and
sentencing him to death, to indemnify the heirs of the victim Elito Pajanustan in the amount of
Thirty Two Thousand Four Hundred Pesos (P32,400.00) as actual damages and Two Hundred
Thousand Pesos (P200,000.00) as exemplary and moral damages, and to pay the costs. 1

On June 6, 1995, Samar Provincial Prosecutor Juan C. Latorre, Jr. filed with the Regional Trial
Court, Branch 28, Catbalogan, Samar an information charging Orlito Gadin, Jr. alias "Ay-Ay" with
homicide. However, after reinvestigation of the case, on February 6, 1996, Assistant Provincial
Prosecutor Wayne M. Villarin of Samar filed an amended information charging the accused with
murder, committed as follows:

That on or about the 13th day of March 1995 at nighttime which was purposely
sought, at Purok 1, Barangay Muñoz, Municipality of Catbalogan, Province of
Samar, Philippines, and within the jurisdiction of this Honorable Court, the above-
named accused, with deliberate intent to kill, with treachery and evident
premeditation, did then and there willfully, unlawfully and feloniously attack,
assault and stab one Elito Pajanustan with a knife with which the said accused
had conveniently provided himself for the purpose, thereby inflicting upon said
Elito Pajanustan a stab wound on his chest, which wound directly caused his
death. 2

Thus, on March 13, 1996, accused Orlito Gadin, Jr. was arraigned under the amended
information. He pleaded not guilty to the murder charge. 3 Accordingly, trial ensued.

The facts, as found by the trial court, are as follows:

On March 13, 1995, at around 10:00 in the evening, Rowena Dacut, Jessie Mabini and Elito
Pajanustan were drinking Tanduay mixed with beer while sitting on benches along the roadside
of Purok I, Barangay Muñoz, Catbalogan, Samar. Orlito Gadin, Jr. arrived and stood in front of
Elito Pajanustan. Rowena Dacut offered him a drink but Gadin merely stared at them. Suddenly,
Orlito Gadin drew a knife from the left backpocket of his pants. He thrust the knife into the chest
of Pajanustan, causing the latter to fall down. 4

Then, Orlito Gadin ran away, still holding the knife. Rowena chased after him, asking him why he
stabbed Pajanustan. Orlito did not answer and kept running about half a meter more towards his
uncle's house. He entered the house and hid the knife used to stab Pajanustan. Subsequently,
he ran out of the house and disappeared. After a few minutes of futile search for Orlito, Rowena
returned to the place where Pajanustan was stabbed and found that Jessie Mabini had left the
scene. Rowena saw Pajanustan wounded and sprawled on the ground. She told her mother to
inform the mother of Elito Pajanustan as to what had just occurred and brought the wounded
Elito to Samar Provincial Hospital.

At the hospital, Nelia Redito arrived and found her son, Elito Pajanustan, in the operating room.
She approached him and asked him what happened. He replied, "Ma', Ma', Orlito Gadin Ma',
abugho 'Ma guin buno ako." ("Mama, Mama, I was stabbed by Orlito Gadin because of
jealousy."). 5 Shortly thereafter, Elito Pajanustan expired.

Dr. Senecia Q. Yong, Municipal Health Officer, conducted a post mortem examination of the
body of deceased Elito Pajanustan and concluded that the cause of death was shock,
irreversible, due to profuse external and internal hemorrhage from a stab wound. The wound,
measuring 2 cm. in length, 0.5 cm. in width and 17 cm. in depth located along the right sternal
border and at the level of the 2nd ICS, was directed laterally hitting the right lung
parenchyma. 6 There were no other marks or contusions on the body of the deceased. 7

Accused Orlito Gadin, Jr., however, narrated a different version of the events. 8 At around 9:30 in
the evening of March 13, 1995, Orlito went to Barangay Muñoz to buy barbecue. While at the
barbecue stand, Rowena Dacut, from across the street, called Orlito. He knew Rowena, since
she was his godsister. 9 He saw her sitting with two other persons, drinking Tanduay with beer.
He approached them but refused their offer to drink with them. He conversed with Rowena for
approximately thirty minutes. In the course of the conversation, he noticed that one of the
drinking companions of Rowena kept interrupting them and insulting him. This person was Elito
Pajanustan.

Orlito then requested permission to leave. Suddenly, Elito Pajanustan grabbed a glass and
banged it on the table. Then, he stood up and punched Orlito on his left chest. Orlito returned the
punch given him. Elito saw a knife on top of the table which was used to crack ice. He took the
knife and tried to stab Orlito with it. Using both of his hands, Orlito grasped the hand of Elito and
tried to twist his arm. In the course of the struggle, Orlito managed to take hold of the knife. Elito
grabbed a bottle of beer and tried to hit Orlito with it. The latter moved backward to avoid the
advancing Elito, but realized that a bench obstructed his path. He pushed Elito using both his
hands in order to avoid tripping backward over the bench, unmindful that he was still holding the
knife. Orlito thrust the bladed instrument into Elito's chest. Elito fell on his back towards the
adjacent table. Orlito stood his ground, not knowing what happened, until he heard someone
declare that Elito had been wounded. Orlito ran from the scene, accidentally dropping the knife.
He ran until he reached his house, located in the same barangay. He hid behind his house,
fearful of the persons chasing him.

Afterwards, he hid beneath the swamps of Barangay Muñoz until policemen arrived and
surrounded the area. Orlito, after ascertaining that the companions of Elito were not within the
vicinity, came out and surrendered to the police. The policemen never found the knife used to
stab Elito Pajanustan.
Orlito testified that he never met Elito Pajanustan before the incident. He also alleged that
Rowena Dacut was his godsister and that he did not know any reason why she would testify
falsely against him. 10

On April 23, 1997, the trial court rendered decision, 11 the dispositive portion of which reads:

WHEREFORE, premises considered, it appearing that the prosecution had

adequately proven the guilt of the accused beyond reasonable doubt to the crime
of murder which is a capital offense, there being presence of the aggravating
circumstances of treachery and evident premeditation, the accused Orlito Gadin,
Jr. is hereby sentenced to suffer a penalty of DEATH; to indemnify the heirs of
the deceased Elito Pajanustan, represented by his mother, Nelia C. Redito in the
amount of Thirty Two Thousand Four Hundred (P32,400.00) Pesos for actual
damages and Two Hundred Thousand (P200,000.00) Pesos for exemplary and
moral damages. No subsidiary imprisonment in case of insolvency on the part of
the accused; and to pay the cost. 12

Hence, this automatic review.

In his brief, accused-appellant Orlito Gadin, Jr. claimed that he merely acted in self-defense. He
alleged that the killing was accidental since he was parrying the blows of the deceased Elito
Pajanustan, who insulted and punched him without provocation.

We have consistently held that in invoking the justifying circumstance of self-defense, the burden
of evidence is shifted to accused to prove all the elements of self-defense by clear and
convincing evidence, namely: (a) unlawful aggression on the part of the victim; (b) reasonable
necessity of the means employed to prevent or repel it; and (c) lack of sufficient provocation on
the part of the person defending himself. 1 He must rely on the strength of his own evidence, and
not on the weakness of that of the prosecution. 14

After a review of the record, we find accused-appellant's plea of self-defense untenable.

Accused-appellant failed to prove satisfactorily that Elito Pajanustan was the unlawful aggressor.
He presented no other witness to corroborate his testimony. On the contrary, positive testimony
of eyewitness Rowena Dacut pointed to accused-appellant as the one who stabbed Elito
Pajanustan, unexpectedly and without provocation.

She declared in a straightforward and candid manner that accused-appellant delivered the fatal
blow on Elito Pajanustan. Dacut was in the best position to witness the event, since she was
sitting beside the victim and was only about two meters away from accused-appellant. No motive
was given for her to testify falsely against accused-appellant. Notably, Dacut was in congenial
terms with accused-appellant, and even engaged in conversation with him prior to the stabbing
incident. Where there is no evidence that the principal witness for the prosecution was actuated
by improper motive, the presumption is that she was not so actuated and her testimony is entitled
to full faith and credit. 15

The trial court gave credence to the testimony of Rowena Dacut. We find no reason to overturn
such assessment of credibility. 16

Contradicting accused-appellant's narration of events is the medico-legal report stating that no

other marks or contusions on the body of the deceased had been detected except for the single
fatal stab wound. Such findings belie the testimony of accused-appellant that he grappled for
possession of the knife and that there was an exchange of blows and punches prior to the
stabbing.
Accused-appellant fled from the scene of the stabbing after realizing that he had wounded the
victim and admitted that he hid beneath the swamps, refusing to come out until he was certain
that the friends of Elito were not looking for him. Flight is evidence of consciousness of guilt and
betrays the existence of a guilty conscience. 17

Regarding the aggravating circumstance of treachery, clear and convincing evidence must be
given to show that the following elements existed: (a) the accused employed means of execution
that gives the person attacked no opportunity to defend himself or retaliate; and (b) that the
means of execution were deliberately or consciously adopted. 18

In this case, accused-appellant stabbed the victim when the latter was merely drinking with his
friends. The attack was sudden and unprovoked, giving the victim no opportunity to repel the
attack. Although the stabbing was done frontally, the victim had no chance to offer any defense.
Thus, treachery attended the commission of the crime. 19

We can not, however, agree with the trial court that evident premeditation attended the
commission of the crime. For evident premeditation to be appreciated, the following elements
must exist: (a) the time when the accused decided to commit the crime; (b) an overt act showing
that the accused clung to his determination to commit the crime; and (c) the lapse of a sufficient
period of time between the decision and the execution of the crime, to allow the accused to
reflect upon the consequences of the act. 20 In this case, the record is bereft of sufficient evidence
as to the time when accused-appellant decided to commit the crime. Eyewitness Rowena Dacut
could not remember a prior incident which could incite accused-appellant to attack the victim.
There was no proof when the intent to commit the crime was engendered in the mind of accused-
appellant, or when he meditated and reflected on his intention to kill the victim. Evident
premeditation must be based on external acts which are evident, not merely suspected, and
which indicate deliberate planning. 21 There must be direct evidence showing a plan or
preparation to kill, or proof that the accused meditated and reflected upon his decision to kill the
victim. 22 When there is no showing as to how and when the plan to kill was decided or what time
had elapsed before it was carried out, evident premeditation cannot be considered to exist. 2

It is basic that qualifying and aggravating circumstances must be proven with equal certainty as
the commission of the act charged as criminal offense. 24 Since the commission of the crime is
qualified by treachery, accused-appellant is liable for murder.

Under Article 248 of the Revised Penal Code, as amended by Republic Act No. 7659, the penalty
for murder is reclusion perpetua to death. Considering the absence of any other aggravating or
modifying circumstance, the penalty imposable is reclusion perpetua, not death. 25

As to the amount of actual damages, we find the amount awarded by the trial court to be
unsubstantiated. The mother of the deceased Elito Pajanustan testified that she spent one
thousand four hundred pesos (P1,400.00) for the seven-day wake, fifteen thousand pesos
(P15,000.00) for funeral service expenses, and sixteen thousand pesos (P16,000.00) for the first
death anniversary. 26 However, no receipts were ever presented during the trial to prove the
actual damages incurred.

To justify an award of actual damages, it is necessary "to prove with a reasonable degree of
certainty, premised upon competent proof and on the best evidence obtainable by the injured
party, the actual amount of loss." 27 The award of actual damages can not be sustained without
any tangible document to support such claim. 28 Thus, we delete the amount of actual damages,
for lack of supporting evidence. 29

Moral damages awarded by the trial court are proper. Moral damages are recoverable in criminal
offenses resulting in physical injuries, or the victim's death. 30 No proof of pecuniary loss is
necessary; however, there must be satisfactory showing of factual basis for the moral
injury. 31 Nelia Redito, mother of deceased Elito Pajanustan, has testified having suffered pain
and sorrow from the loss of her son. 32 Thus, we find the award of fifty thousand pesos
(P50,000.00) as moral damages to be reasonable and adequate.

Exemplary damages given by the trial court must be deleted, considering the absence of
aggravating circumstances which would justify such an award. 3

However, civil indemnity is automatically awarded to the heirs of the victim without need of proof
other than the fact of commission of the crime. 34 Thus, we award the amount of fifty thousand
pesos (P50,000.00) as civil indemnity for the death of Elito Pajanustan, in line with current
jurisprudence.35

WHEREFORE, the Court hereby AFFIRMS the appealed decision convicting accused-appellant
Orlito Gadin, Jr. of murder, with the MODIFICATION that the death penalty imposed by the
court a quo is reduced to reclusion perpetua. The Court further orders accused-appellant to pay
the heirs of the victim Elito Pajanustan the amount of fifty thousand pesos (P50,000.00) as civil
indemnity and fifty thousand pesos (P50,000.00) as moral damages. The award of actual and
exemplary damages is deleted. With costs.

SO ORDERED.

Davide, Jr., C.J., Bellosillo, Puno, Vitug, Mendoza, Panganiban, Quisumbing, Buena, Gonzaga-
Reyes, Ynares-Santiago and De Leon, Jr., JJ., concur.

Melo, Kapunan and Purisima, JJ., are on leave.

Footnotes

1
Decision denoted as "Sentence", Criminal Case No. 4053, Original Record, pp.
78-84. Judge Sibanah E. Usman, presiding.

2
Original Record, p. 38.

3
Certificate of Arraignment, Original Record, p. 43.

4
TSN, July 2, 1996, pp. 3-4 and p. 11.

5
Testimony of Nelia Redito, TSN, August 21, 1996, p. 14.

6
Post-Mortem Examination Report, Original Record, p. 58.

7
TSN, January 17, 1997, p. 8.

8
TSN, February 16, 1997, pp. 2-18; TSN, February 17, 1997, pp. 2-8.

9
TSN, February 17, 1997, p. 7.

10
TSN, February 18, 1997, pp. 6-8.

11
Denoted as "Sentence", Original Record, pp. 78-84.

12
Original Record, p. 84.

People vs. De la Cruz, G.R. No. 130608, August 26, 1999; People vs. Bitoon,
13

G.R. No. 112451, June 28, 1999; People vs. Villamor, 292 SCRA 384 (1998).
 People vs. Tan, G.R. No. 132324, September 28, 1999; People vs. Tomolin,
14

G.R. No. 126650, July 28, 1999; People vs. Carpio, 282 SCRA 23 (1997).

People vs. Nava, G.R. No. 123148, April 20, 1999; People vs. Alfeche, 294
15

SCRA 352 (1998).

16
People vs. Perez, G.R. No. 130501, September 2, 1999.

17
People vs. Borreros, G.R. No. 125185, May 5, 1999.

People vs. Emberga, G.R. No. 116616, November 26, 1999; People vs. Caisip,
18

290 SCRA 451 (1998).

People vs. Dando, G.R. No. 120646, February 14, 2000; People vs. Suelto,
19

G.R. No. 126097, February 8, 2000.

People vs. Virtucio, Jr., G.R. No. 130667, February 22, 2000; People vs. Pinca,
20

G.R. No. 129256, November 17, 1999; People vs. Padama, Jr., G.R. No. 132137,
October 1, 1999; People vs. Quinao, 269 SCRA 495 (1997).

21
People vs. Sison, G.R. No. 119307, August 20, 1999.

People vs. Asto, 277 SCRA 697 (1997).23 People vs. Sambulan, 289 SCRA
22

500 (1998).

24
People vs. Piamonte, G.R. No. 91999, February 25, 1999.

25
People vs. Yam-Id, G.R. No. 126116, June 21, 1999.

26
TSN, August 21, 1996, pp. 9-10.

27
People vs. Rosario, 246 SCRA 658 (1995).

People vs. Sanchez, G.R. No. 118423, June 16, 1999, citing David vs. Court of
28

Appeals, 290 SCRA 727 (1998).

People vs. Silvestre, G.R. No. 127573, May 12, 1999; People vs. Nialda, 289
29

SCRA 521 (1998).

People vs. Bromo, G.R. No. 97914, November 22, 1999; People vs. Tambis,
30

G.R. No. 124452, July 28, 1999.

31
People vs. Villamor, 284 SCRA 184 (1998).

32
TSN, August 21, 1996, pp. 9-10.

People vs. Bergante, 286 SCRA 629 (1998); People vs. Reyes, 287 SCRA 229
33

(1998).

34
People vs. Obello, 284 SCRA 79 (1998).

People vs. Catampongan, G.R. No. 131732, November 19, 1999; People vs.
35

Cayago, G.R. No. 128827, August 18, 1999; People vs. Heredia, G.R. No.
110001, July 28, 1999.
G.R. No. 117040 May 4, 2000

RUBEN SERRANO, petitioner,

vs.
NATIONAL LABOR RELATIONS COMMISSION and ISETANN DEPARTMENT STORE,
respondents.

RESOLUTION

MENDOZA, J.:

Respondent Isetann Department Store moves for reconsideration of the decision in this case
insofar as it is ordered to pay petitioner full backwages from the time the latter's employment was
terminated on October 11, 1991 up to the time it is determined that the termination of
employment is for an authorized cause. The motion is opposed by petitioner. The decision is
based on private respondent's failure to give petitioner a written notice of termination at least
thirty (30) days before the termination of his employment as required by Art. 283 the Labor Code.

In support of its motion, private respondent puts forth three principal arguments, to wit: (1) that its
failure to give a written notice to petitioner at least thirty (30) days in advance in accordance with
Art. 283 of the Labor Code is not in issue in this case because, as a matter of fact, it gave its
employees in the affected security section thirty (30) days pay which effectively gave them thirty
(30) days notice, and petitioner accepted this form of notice although he did not receive payment;
(2) that payment of thirty (30) days pay in lieu of the thirty (30) days prior formal notice is more
advantageous to an employee because instead of being required to work for thirty (30) days, the
employee can look for another job while being paid by the company; and (3) that in any event the
new ruling announced in this case should only be applied prospectively.

Private respondent's contentions have no merit.

First. Private respondent states that in September 1991, its employees in the security section
were called to a meeting during which they were informed that a security agency would take over
their work and that the employees would be paid "their last salaries, one month pay for every
year of service and proportionate 13th month pay"; that all affected personnel, numbering around
fifty (50), accepted the company's offer and stopped working by October 1, 1991, although they
were paid their salaries up to October 31, 1991; that petitioner Ruben Serrano said he was
reserving the right to take advantage of the offer but after several months brought this case
before the Labor Arbiter's office. Private respondent claims that "petitioner accepted the mode of
notice in this case [and] never questioned it" and that "not having been raised as an issue in the
petition. . . the said notice requirement "lies outside the issues raised by the pleadings of the
parties" and should not be passed upon by this Honorable Court."

It is not true that the validity of private respondent's offer to pay thirty (30) days salary in lieu of
the thirty (30) days written notice required under Art. 283 of the Labor Code was not raised in
issue in this case. Private respondent itself raised the issue in its position paper before the Labor
Arbiter's office, thus:

. . . Respondent was, from the time of [petitioner's] separation, offering to pay his
last salary and proportionate 13th month pay less payment of his loan but he
unreasonably refused to accept it. . . .
 . . . On October 11, 1991, [petitioner] together with all other employees holding
the position of Security Checker were formally terminated by the Respondent
Company on the ground of the adoption of cost saving devices. Accordingly, all
the security checkers were duly paid one month for every year of service
plus their last salaries and proportionate 13th month pay less payments for loans
obtained from the Respondent Company and other dues deductible from their
last salary. . . . [A]ll the security checkers with the sole exception of [petitioner]
herein, gladly accepted the offer and readily got what was due to them and in
turn, executed an "Affidavit of Quitclaim" manifesting their utter satisfaction to the
offer of Respondent and expressed their waiver and quitclaim for any claims from
the company. Respondent reserves the right to present such affidavits of
quitclaim at the right opportune time. After a few months, [petitioner] did not
manifest his reaction to the company's offer after he failed to appear on the day
the Respondent scheduled the giving of the separation pay and other amounts
due to them. The next time, Respondent received a word from [petitioner] was
when it received this summons. 1

Joining issue with private respondent with respect to the validity of the latter's scheme for
terminating the services of its security employees, petitioner contended before the Labor Arbiter:

2. [Petitioner's] dismissal is patently illegal. The constitutional duty of the state to

protect the right of the laborers to security of tenure demands that an employer
may be permitted to terminate the services of an employee only under conditions
allowed by and with due process of law (Cebu Stevedoring Co., Inc., v. Regional
Director/Minister of Labor, 168 SCRA 315).

3. This doctrinal pronouncement of the Highest Tribunal was wantonly

disregarded by respondent in the instant case [a]s purely narrated by [petitioner]
in his affidavit Annex "A." He performed his work faithfully and efficiently and he
never transgressed the rules and regulations of company during the entire period
of his employment. The commendation of the Company with regard to
[petitioner's] exemplary performance are attached and marked as Annex "G" to
"G-27" respectively. However, he was verbally told and notified by respondent[‘s]
Human Resource Division Manager Teresita A. Villanueva that his employment
was terminated on October 11, 1991. . . .

Indeed, it is mandatory for an employer to accord to the supposed errant or

unwanted worker the legal requirements of written notice of the specific reason
for the retrenchment and eventual termination of complainant and he should have
been given a chance to present his side, otherwise, the worker's security of
tenure would be at the pleasure of the employer. 2

Ruling on this issue as thus defined by the parties' pleadings, the Labor Arbiter held that
petitioner "was not afforded due process. Respondent merely issued to him a dismissal letter
stating retrenchment as the sole ground for his dismissal." 3 But, as the Labor Arbiter found,
private respondent failed to prove that it was laying off employees in order to prevent or minimize
losses. Accordingly, he ruled that petitioner had been illegally dismissed and ordered him to be
reinstated and paid full backwages and other monetary benefits to which he was entitled.

Private respondent appealed to the NLRC. Maintaining that it had complied with the notice
requirement of the law, it said in its Memorandum on Appeal:

POINT SIX. — When the [Labor Arbiter's] decision finds that [petitioner] was not
afforded due process, the Hon. Labor Arbiter failed to make distinction between
termination by reason of "just causes" (Arts. 282, Labor Code) and termination for
"authorized causes" (Art. 283 and 284, Labor Code). Due Process which is to
 afford an employee to explain why he should not be terminated is only required if
termination is for just cause under Art. 282 but not [in] termination for authorized
causes under Arts. 283 and 284 of the Labor Code. Termination for authorized
causes requires notice of 30 days before the intended termination date or in lieu
of notice, payment of wages for 30 days which respondent, in the case at bar,
was willing to pay the complainant. 4

The NLRC reversed the Labor Arbiter's decision not because it found that private respondent
had complied with the notice requirement but only that petitioner's employment had been
terminated for a cause authorized by law, i.e., redundancy. Accordingly, the NLRC ordered
petitioner to be given separation pay in addition to the other monetary benefits to which he is
entitled.

Indeed, the NLRC failed to address the question of whether the notice requirement in Art. 283
had been complied with. Because of this gap in the NLRC decision, this Court, in affirming the
decision, ordered the payment of full backwages to petitioner from October 11, 1991 — when his
employment was terminated without the requisite thirty (30) days written notice — until the
decision finding the termination to be for an authorized cause had become final.

There is thus no basis for private respondent's allegation that its failure to give a written notice of
termination to petitioner was never in issue and that, in awarding full backwages to petitioner for
its failure to comply with the notice requirement of Art. 283 of the Labor Code, this court dealt
"almost entirely" with a "non-issue."

In any event, this Court has authority to inquire into any question necessary in arriving at a just
decision of a case before it. 5

Second. It is contended that payment of petitioner's salary for thirty (30) days, "even when [he is]
no longer working, is effective notice and is much better than 30 days formal notice but working
until the end of the 30 day period." 6Private respondent's letter of October 11, 1991, so it is
claimed, was a mere reiteration of the oral notice previously given to petitioner in September that
effective October 1, 1991, he and his fellow security checkers would no longer be required to
work because they would be replaced by a security agency, although they would be given their
salary for the month of October 1991.

Private respondent's position has no basis in the law. The requirement to give a written notice of
termination at least thirty (30) days in advance is a requirement of the Labor Code. Art. 283
provides:

Closure of establishment and reduction of personnel. — The employer may also

terminate the employment of any employee due to the installation of labor-saving
devices, redundancy, retrenchment to prevent losses or the closing or cessation
of operation of the establishment or undertaking unless the closing is for the
purpose of circumventing the provisions of this Title, by serving a written notice
on the workers and the Department of Labor and Employment at least one (1)
month before the intended date thereof. In case of termination due to the
installation of labor-saving devices or redundancy, the worker affected thereby
shall be entitled to a separation pay equivalent to at least one (1) month pay or to
at least one (1) month pay for every year of service, whichever is higher. In case
of retrenchment to prevent losses and in cases of closure or cessation of
operations of establishment or undertaking not due to serious business losses or
financial reverses, the separation pay shall be equivalent to one (1) month pay or
at least one-half (1/2) month pay for every year of service, whichever is higher. A
fraction of at least six (6) months shall be considered one (1) whole year.
(Emphasis added).
As pointed out in Sebuguero v. National Labor Relations Conmission: 7

. . . [W]hat the law requires is a written notice to the employees concerned and
that requirement is mandatory. The notice must also be given at least one month
in advance of the intended date of retrenchment to enable the employees to look
for other means of employment and therefore to ease the impact of the loss of
their jobs and the corresponding income.

Nothing in the law gives private respondent the option to substitute the required prior written
notice with payment of thirty (30) days salary. It is not for private respondent to make
substitutions for a right that a worker is legally entitled to. For instance, as held in Farmanlis
Farms, Inc. v. Minister of
Labor, 8 under the law, benefits in the form of food or free electricity, assuming they were given,
were not a proper substitute for the 13th month pay required by law.

Indeed, a job is more than the salary that it carries. Payment of thirty (30) days salary cannot
compensate for the psychological effect or the stigma of immediately finding one's self laid off
from work. It cannot be a fully effective substitute for the thirty (30) days written notice required
by law especially when, as in this case, the fact is that no notice was given to the Department of
Labor and Employment (DOLE).

Besides, as we held in our decision in this case, 9 the purpose of such previous notice is to give
the employee some time to prepare for the eventual loss of his job as well as the DOLE the
opportunity to ascertain the verity of the alleged authorized cause of termination. Such purpose
would not be served by the simple expedient of paying thirty (30) days salary in lieu of notice of
an employee's impending dismissal, as by then the loss of employment would have been a fait
accompli.

Private respondent nevertheless claims that payment of thirty (30) days salary in lieu of written
notice given thirty (30) days before the termination of employment is in accordance with our
ruling in Associated Labor Unions-VIMCONTU v. NLRC. 10

This claim will not bear analysis. In that case, the employees and the then Ministry of Labor and
Employment (MOLE) were notified in writing on August 5, 1983 that the employees' services
would cease on August 31, 1983 but that they would be paid their salaries and other benefits
until September 5, 1983. It was held that such written notice was "more than substantial
compliance" with the notice requirement of the Labor Code.

Indeed, there was "more than substantial compliance" with the law in that case because, in
addition to the advance written notice required under Art. 284 (now Art. 283) of the Labor Code,
the employees were paid for five days, from September 1 to 5, 1993, even if they rendered no
service for the period. But, in the case at bar, there was no written notice given to petitioner at
least thirty (30) days before the termination of his employment. Had private respondent given a
written notice to petitioner on October 1, 1991, at the latest, that effective October 31, 1991 his
employment would cease although from October 1 he would no longer be required to work, there
would be basis for private respondent's boast that "[payment] of this salary even [if he is] no
longer working is effective notice and is much better than 30 days formal notice but working until
the end of the 30 days period." This is not the case here, however. What happened here was
that on October 11, 1991, petitioner was given a memorandum terminating his employment
effective on the same day on the ground of retrenchment (actually redundancy).

Third. It is contended that private respondent's non-observance of the notice requirement should
not be visited with a severe consequence in accordance with Art. III, §19(1) of the Constitution.
The contention is without merit. In the first place, Art. III, §19(1) of the Constitution, prohibiting
the imposition of excessive fines, applies only to criminal prosecutions. In the second place, the
decision in this case, providing for the payment of full backwages for failure of an employer to
give notice, seeks to vindicate the employee's right to notice before he is dismissed or laid off,
while recognizing the right of the employer to dismiss for any of the just causes enumerated in
Art. 282 or to terminate employment for any of the authorized causes mentioned in Arts. 283-
284. 11 The order to pay full backwages is a consequence of the employer's action in dismissing
an employee without notice which makes said dismissal ineffectual. 12 The employee is
considered not to have been terminated from his employment until it is finally determined that his
dismissal/termination of employment was for cause and, therefore, he should be paid his salaries
in the interim. This eliminates guesswork in determining the degree of prejudice suffered by an
employee dismissed with cause but without notice since the penalty is measured by the salary he
failed to earn on account of his dismissal/termination of employment.

Fourth. Private respondent finally contends that, in any event, the new doctrine announced in this
case should only be applied prospectively. Private respondent invokes the ruling in Columbia
Pictures, Inc. v. Court of Appeals 1 that —

[While] a judicial interpretation becomes a part of the law as of the date that law
was originally passed, [this is] subject to the qualification that when a doctrine of
this Court is overruled and a different view is adopted, and more so when there is
a reversal thereof, the new doctrine should be applied prospectively and should
not apply to parties who relied on the old doctrine and acted in good faith. To hold
otherwise would be to deprive the law of its quality of fairness and justice then, if
there is no recognition of what had transpired prior to such adjudication.

It is apparent that private respondent misconceived the import of the ruling. The decision in
Columbia Pictures does not mean that if a new rule is laid down in a case, it should not be
applied in that case but that said rule should apply prospectively to cases arising afterwards.
Private respondent's view of the principle of prospective application of new judicial doctrines
would turn the judicial function into a mere academic exercise with the result that the doctrine laid
down would be no more than a dictum and would deprive the holding in the case of any force.

Indeed, when the Court formulated the Wenphil doctrine, 14 which we reverse in this case, the
Court did not defer application of the rule laid down imposing a fine on the employer for failure to
give notice in a case of dismissal for cause. To the contrary, the new rule was applied right then
and there. For that matter, in 20th Century Fox Film Corp. v. Court of Appeals 15 the Court laid
down the rule that in determining the existence of probable cause for the issuance of a search
warrant in copyright infringement cases, the court must require the production of the master
tapes of copyrighted films in order to compare them with the "pirated" copies. The new rule was
applied in opinion of the Court written by Justice Hugo E. Gutierrez, Jr. in the very same case of
20th Century Fox in which the new requirement was laid down. Where the new rule was held to
be prospective in application was in Columbia Pictures and that was because at the time the
search warrant in that case was issued, the new standard had not yet been announced so it
would be unreasonable to expect the judge issuing the search warrant to apply a rule that had
not been announced at the time.

A good illustration of the scope of overruling decisions is People v. Mapa, 16 where the accused
was charged with illegal possession of firearms. The accused invoked the ruling in an earlier
case 17 that appointment as a secret agent of a provincial governor to assist in the maintenance of
peace and order sufficiently put the appointee in the category of a "peace officer" equal to a
member of the municipal police authorized under §879 of the Administrative Code of 1917 to
carry firearms. The Court rejected the accused's contention and overruled the prior decision
in People v. Macarandang on the ground that §879 of the Administrative Code of 1917 was
explicit and only those expressly mentioned therein were entitled to possess firearms. Since
secret agents were not among those mentioned, they were not authorized to possess firearms.

Although in People v. Jabinal 18 the Court refused to give retro active effect to its decision in
Mapa, because the new doctrine "should not apply to parties who had relied on the old doctrine
and acted in good faith thereon" and, for this reason, it acquitted the accused of illegal
possession of firearms, nonetheless it applied the new ruling (that secret agents of provincial
governors were not authorized to possess firearms) in the very case in which the new rule was
announced and convicted the accused.

In the case at bar, since private respondent does not even claim that it has relied in good faith on
the former doctrine of Wenphil and its progeny Sebuguero v. NLRC, there is no reason not to
apply the new standard to this case.

WHEREFORE, private respondent's motion for reconsideration is DENIED with finality for lack of
merit.

SO ORDERED.

Davide, Jr., C.J., Quisumbing, Pardo, Buena, Gonzaga-Reyes, Ynares-Santiago and De Leon,
Jr., JJ., concur.

Bellosillo, J., I reiterate by separate opinion in the original decision.

Puno, J., I reiterate my dissent in the main opinion.

Vitug, J., I reiterate my separate opinion (in the main decision).

Panganiban, J., I reiterate my separate opinion in the main decision.

Melo, Kapunan and Purisima, JJ., are on leave.

Footnotes

1
Private Respondent's position Paper, pp. 2-3; Records, pp. 53-54. (Emphasis
added).

2
Petitioner's Position Paper, pp. 5-7; id., 13-18. (Emphasis added).

3
Petition, Annex A, p. 6; Rollo, p. 32.

4
Private Respondent's Memorandum on Appeal, p. 8; Records, p. 263.
(Emphasis added).

5
Korean Airline Co., Ltd. v. Court of Appeals, 234 SCRA 717 (1994); Vda. de
Javellana v. Court of Appeals, 123 SCRA 799 (1983).

6
Private Respondent's Motion for Partial Reconsideration, p. 4; Rollo, p. 335.

7
248 SCRA 532, 545 (1995).

8
171 SCRA 87 (1989).

9
Decision, p. 15; Rollo, p. 228. See also International Hardware, Inc. v. NLRC,
176 SCRA 256 (1989).

10
204 SCRA 913 (1991).

11
Decision, p. 13; Rollo, p. 226.
 12
Id., p. 19; id., p. 232.

13
261 SCRA 144, 168 (1996).

14
Wenphil Corp. v. NLRC, 170 SCRA 69 (1989).

15
164 SCRA 655 (1988).

16
20 SCRA 1164 (1967).

17
People v. Macarandang, 106 Phil. 713 (1959).

18
55 SCRA 607 (1974).

G.R. Nos. 140850-51 May 4, 2000

EUGENIO "JING-JING" FAELNAR, petitioner,

vs.
PEOPLE OF THE PHILIPPINES, HON. RAMON CODILLA, in his capacity as Presiding
Judge of the RTC, Branch 19, Cebu City, and COMMISSION ON ELECTIONS, respondents.

MENDOZA, J.:

This is a petition for certiorari to set aside the order, dated July 29, 1999, of the Regional Trial
Court, Branch 19, Cebu City, denying petitioner's motion to quash in Criminal Cases Nos. CBU-
499411 and 49942,2 and the order, dated October 4, 1999, denying petitioner's motion for
reconsideration.

The facts are as follows:

On April 8, 1997, petitioner Eugenio Faelnar filed a certificate of candidacy for the position of
Barangay Chairman of Barangay Guadalupe, Cebu City in the May 12, 1997 barangay elections.
The following day, on April 9, 1997, a basketball tournament, dubbed the "2nd JING-JING
FAELNAR'S CUP," opened at the Guadalupe Sports Complex and lasted up to April 30, 1997.
This gave rise to a complaint for electioneering filed against petitioner and Cecilio Gillamac by
Antonio Luy. The complaint alleged that the basketball tournament was actually a campaign
gimmick staged outside the campaign period which officially started on May 1, 1997, in violation
of the Omnibus Election Code. Luy alleged that: (1) during the tournament, a streamer bearing
petitioner's name was placed on the facade of the Guadalupe Sports Complex; (2) petitioner's
name was repeatedly mentioned over the microphone during the games; (3) the tournament was
widely published in the local newspaper; and (4) a raffle sponsored by Cecilio Gillamac was held
with home appliances given away as prizes.

Petitioner denied participation in the tournament and claimed that its major sponsor was Gillamac
Marketing, Inc. He contended that the same was purely a sporting event for the benefit of the
youth.

The complaint was investigated by Atty. Edwin Cadungog, election officer of Cebu City, who later
recommended the dismissal of the charges against petitioner and Gillamac. On the other hand,
the Law Department of the COMELEC recommended the filing of a case against petitioner and
Gillamac for violation of §80,3 in relation to §262,4 of the Omnibus Election Code, and §50 of
COMELEC Resolution No. 2888, in relation to §12 of Republic Act No. 6679.5
In its Resolution No. 97-3040, dated September 16, 1997, the COMELEC en banc resolved to
dismiss the case. However, on motion of Antonio Luy, the COMELEC reconsidered its action and
ordered the filing of the necessary Informations against petitioner and Gillamac.

Accordingly, petitioner and Gillamac were formally charged in the Regional Trial Court, Cebu City
under two Informations in Criminal Cases Nos. CBU-49941 and CBU-49942.

Petitioner moved to quash the information or, in the alternative, for reinvestigation of the case,
contending that Resolution No. 97-3040, which dismissed the complaint against him, was
immediately executory and could no longer be reconsidered.

Petitioner's motion was denied by the trial court in an order dated July 29, 1999. He moved for
reconsideration, but his motion was likewise denied by the court in its order, dated October 4,
1999. Hence this petition.

Petitioner reiterates his argument in the trial court that COMELEC Resolution No. 97-3040, which
dismissed the complaint against him, can no longer be reconsidered by the COMELEC. He
contends that under the Rules of Procedure of the COMELEC, the dismissal of the complaint
was immediately final and executory. Additionally, he avers that Antonio Luy's Motion for
Reconsideration of Resolution No. 97-3040 is a prohibited pleading under the Commission's
Rules of Procedure. He avers that since the resolution in question was immediately final and
executory, it was no longer within the power of the COMELEC to reconsider. Consequently,
Resolution No. 98-2914, in directing the filing of charges in court, was "ultra-vires," and the
Informations filed against him should have been quashed.6

The petition is without merit.

First. While the instant petition challenges the trial court's orders denying petitioner's motion to
quash the complaints in Criminal Cases Nos. CBU-49941 and 49942, the grounds relied upon by
petitioner are directed at the validity of Resolution No. 98-2914 of the COMELEC. Thus,
petitioner prays that said resolution be declared null and void.7

This petition is nothing but an attempt to circumvent a final resolution of the COMELEC.

Resolution No. 98-2914 was promulgated by the COMELEC en banc on October 29, 1998.
Petitioner's remedy was to seek its annulment by way of a special civil action of certiorari under
Rule 65 of the Rules of Court. Rule 64, §2 provides:

Sec. 2. Mode of Review. — A judgment or final order or resolution of the

Commission on Elections and the Commission on Audit may be brought by the
aggrieved party to the Supreme Court on certiorariunder Rule 65, except as
hereinafter provided.

Sec. 3 of said Rule provides that such petition shall be filed within 30 days from notice of the
resolution sought to be reviewed. No such petition was ever filed. The present petition to set
aside the orders of the trial court denying its motion to quash and motion for reconsideration was
filed only on November 12, 1999, more than a year after Resolution No. 98-2194 was
promulgated on October 29, 1998. Consequently, the resolution is now final and binding upon
the parties.

Even if said resolution is erroneous for being contrary to the provisions of the Rules of Procedure
of the COMELEC, the same is not void. Since it has become final and executory, it is already
binding and effective.8
Second. The above discussion should be enough to dispose of this petition. However, we think
there is an important question of law that must not be left undecided, i.e., is the resolution of the
COMELEC dismissing the criminal complaint for violation of the election laws immediately final
and executory, as petitioner contends?

The contention is untenable. In support of his claims, petitioner cites Rule 13, §1(d) of the Rules
of Procedure of the COMELEC which provides:

Sec. 1. What pleadings are not allowed. — The following pleadings are not
allowed:

xxx xxx xxx

(d) motion for reconsideration of an en banc ruling, resolution, order or decision; .

...

The above quoted provision, however, is taken from the 1988 COMELEC Rules of Procedure
which has already been amended. The 1993 Rules of Procedure, now provides:

Rule 13. — Prohibited Pleadings.

Sec. 1. What pleadings are not allowed. — The following pleadings are not
allowed:

xxx xxx xxx

(d) motion for reconsideration of an en banc ruling, resolution, order or

decision except in election offense cases; . . . (Emphasis added).

Under the present rule, therefore, a motion for reconsideration of a ruling, resolution or decision
of the COMELEC en banc is allowed in cases involving election offenses.

Here, there is no question that what is involved is a resolution of the COMELEC en banc in an
election offense. Hence, a motion for reconsideration of such resolution is allowed under the
Rules of Procedure of the COMELEC.

Petitioner likewise invokes Rule 34, §10 of the COMELEC Rules of Procedure which provides
that —

Sec. 10. Appeals from the Action of the State Prosecutor, Provincial or City
Fiscal. — Appeals from the resolution of the State Prosecutor, or Provincial or
City Fiscal on the recommendation or resolution of investigating officers may be
made only to the Commission within ten (10) days from receipt of the resolution
of said officials, provided, however that this shall not divest the Commission of its
power to motu proprio review, revise, modify or reverse the resolution of the chief
state prosecutor and/or provincial/city prosecutors. The decision of the
Commission on said appeals shall be immediately executory and final. (Emphasis
added)

Even a cursory reading of the above rule, however, will show that it governs appeals from the
action of the State Prosecutor or Provincial or City Fiscal on the recommendation or resolution of
investigating officers. The present case does not involve such an appeal but a resolution of the
COMELEC itself in the exercise of its exclusive power to conduct preliminary investigation of
election offense cases.9 Such distinction can be easily explained.
In cases where the State Prosecutor, or Provincial or City Fiscal exercises the delegated
power 10 to conduct preliminary investigation of election offense cases, after the investigating
officer submits his recommendation, said officers already resolve the issue of probable cause.
From such resolution, appeal to the COMELEC lies. As the exercise by the Commission of its
review powers would, at this point, already constitute a second look on the issue of probable
cause, the COMELEC's ruling on the appeal would be immediately final and executory.

On the other hand, if the preliminary investigation of a complaint for election offense is conducted
by the COMELEC itself, its investigating officer prepares a report upon which the Commission's
Law Department makes its recommendation to the COMELEC en banc on whether there is
probable cause to prosecute. It is thus the COMELEC en banc which determines the existence of
probable cause. 11 Consequently, an appeal to the Commission is unavailing. Under the present
Rules of Procedure of the COMELEC, however, a motion for reconsideration of such resolution is
allowed. This effectively allows for a review of the original resolution, in the same manner that the
COMELEC, on appeal or motu proprio, may review the resolution of the State Prosecutor, or
Provincial or City Fiscal.

Reliance by petitioner upon Rule 34, §10 of the COMELEC Rules of Procedure is thus without
any basis.

WHEREFORE, the petition for certiorari is DENIED.

SO ORDERED.

Davide, Jr., C.J., Bellosillo, Puno, Vitug, Panganiban, Quisumbing, Buena, Gonzaga-Reyes,
Ynares-Santiago and De Leon, Jr., JJ., concur.

Melo, Kapunan and Purisima, JJ., are on leave.

Pardo, J., no part was COMELEC Chairman at that time.

Footnotes

1
For violation of §50 of COMELEC Resolution No. 2888, in relation to §12 of
Republic Act No. 6679.

2
For violation of §80, in relation to §262 of the Omnibus Election Code.

3
Sec. 80. Election campaign or partisan political activity outside campaign period.
— It shall be unlawful for any person, whether or not a voter or candidate, or for
any party, or association of persons, to engage in an election campaign or
partisan political activity except during the campaign period: Provided; That
political parties may hold political conventions or meetings to nominate their
official candidates within thirty days before the commencement of the campaign
period and forty-five days for Presidential and Vice-Presidential election. (Sec.
35, 1978 EC).

4
Sec. 262. Other election offenses. — Violation of the provisions, or pertinent
portions, of the following sections of this Code shall constitute election offenses:
Sections 9, 18, 74, 75, 76, 80, 81, 82, 83, 84, 85, 86, 87, 88, 89, 95, 96, 97, 98,
99, 100, 101, 102, 103, 104, 105, 106, 107, 108, 109, 110, 111, 112, 122, 123,
127, 128, 129, 132, 134, 135, 145, 148, 150, 152, 172, 173, 174, 178, 180, 182,
184, 185, 186, 189, 190, 191, 192, 194, 195, 196, 197, 198, 202, 203, 204, 205,
206, 207, 208, 209, 210, 211, 212, 213, 214, 215, 216, 217, 218, 219, 220, 223,
229, 230, 231, 233, 234, 235, 236, 239, and 240.
 5
AN ACT TO AMEND R.A. NO. 6653 TO POSTPONE THE BARANGAY
ELECTIONS TO MARCH 28, 1989, PRESCRIBING ADDITIONAL RULES
GOVERNING THE CONDUCT OF BARANGAY ELECTIONS AND FOR OTHER
PURPOSES.

Petition, pp. 7-10; Rollo, pp. 9-12. Petitioner cites Rule 117, §3 of the Rules of
6

Criminal Procedure which provides that —

Sec. 3. Grounds. — The accused may move to quash the complaint or

information on any of the following grounds:

xxx xxx xxx

(c) That the office who filed the information had no authority to do so;

xxx xxx xxx

7
Petition, p. 11; Rollo, p. 13.

8
See Mercado v. Court of Appeals, 162 SCRA 75 (1988).

9
COMELEC RULES OF PROCEDURE, RULE 34, §1 provides that:

Sec. 1. Authority of the Commission to Prosecute Election Offenses. — The

Commission shall have the exclusive power to conduct preliminary investigation
of all election offenses punishable under the election laws and to prosecute the
same, except as may otherwise be provided by law.

The basis of such power is Rule 34, §2 of the COMELEC Rules of Procedure
10

which provides that —

Sec. 2. Continuing Delegation of Authority to Other Prosecution Arms of the

Government. — The Chief State Prosecutor, all Provincial and City Fiscals,
and/or their respective assistants are hereby given continuing authority, as
deputies of the Commission, to conduct preliminary investigation of complaints
involving election offenses under the election laws which may be filed directly
with them, or which may be indorsed to them by the Commission or its duly
authorized representatives and to prosecute the same. Such authority may be
revoked or withdrawn any time by the Commission whenever in its judgment such
revocation or withdrawal is necessary to protect the integrity of the Commission,
promote the common good, or when it believes that successful prosecution of the
case can be done by the Commission.

11
RULE 34, §9 (b) of the COMELEC Rules of Procedure provides that —

(b) In cases investigated by the lawyers or the field personnel of the Commission,
the Director of the Law Department shall review and evaluate the
recommendation of said legal officer, prepare a report and make a
recommendation to the Commission affirming, modifying or reversing the same
which shall be included in the agenda of the succeeding meeting en banc of the
Commission. If the Commission approves the filing of an information in court
against the respondent/s, the Director of the Law Department shall prepare and
sign the information for immediate filing with the appropriate court.

G.R. No. 133872 May 5, 2000

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
ALEXANDER TAÑO y CABALLERO, accused-appellant.

PANGANIBAN,J.:

The appellant cannot be convicted of the special complex crime of robbery with rape because the
asportation was conceived and carried out as an afterthought and only after the rape has been
consummated. Dwelling cannot be appreciated as an aggravating circumstance in this case
because the rape was committed in the ground floor of a two-story structure, the lower floor
being used as a video rental store and not as a private place of abode or residence.

The Case

This is an automatic review of the Decision 1 dated April 23, 1998 of the Regional Trial Court of
Caloocan City, Branch 127, in Criminal Case No. C-53066, finding Accused-Appellant Alexander
Taño y Caballero guilty beyond reasonable doubt of robbery with rape and imposing upon him
the supreme penalty of death. The case arose out of an Information, 2 dated November 10, 1997,
signed by Assistant City Prosecutor Salvador C. Quimpo, accusing the appellant of robbery with
rape allegedly committed as follows:

That on or about the 6th day of November, 1997 in Kalookan City, Metro Manila,
Philippines and within the jurisdiction of this Honorable Court, the above-named
accused, with intent to gain and by means fo force and intimidation employed
upon the person of one AMY DE GUZMAN Y MAQUINANA, did there and then
wilfully, unlawfully and feloniously take, rob and carry away the following articles,
to wit:

Cash money P5,000.00

Three (3) bracelets 3,500.00

Two (2) rings 5,000.00

One (1) pair of earrings 2,000.00

One (1) Alba wristwatch 1,500.00

—————

TOTAL P16,000.00

with the total amount of P16,000.00 belonging to one ANA MARINAY Y SICYAN;
that in the course of said robbery, said accused, with the use of force and
intimidation, did then and there wilfully, unlawfully and feloniously lie with and
have sexual intercourse with said AMY DE GUZMAN Y MAQUINANA, against
the latter's will and without her consent and with the use of a bladed weapon.

During his arraignment on November 26, 1997, appellant, assisted by his counsel de oficio,
pleaded not guilty to the charge. 3 After trial on the merits, the lower court promulgated the herein
assailed Decision, the dispositive portion of which reads as follows:

W H E R E F O R E the prosecution having established beyond an iota of doubt

the guilt of Accused ALEXANDER TAÑO Y CABALLERO of the crime of Robbery
with Rape, and considering the presence of the aggravating circumstance of
 dwelling without any mitigating circumstances to offset the same, this Court
hereby sentences the Accused to suffer the maximum penalty of D E A T H with
all the accessory penalties provided by law; to indemnify Victim AMY DE
GUZMAN the amount of P50,000.00 and pay her actual damages of P2,687.65
and to restore to the victim her gold ring of undetermined amount as well as
moral and exemplary damages in the total sum of P100,000.00; and to pay the
costs.

The Facts

Version of the Prosecution

The solicitor general sums the evidence for the prosecution in this wise:4

On November 6, 1997, at around 7:30 p.m., Amy de Guzman (Amy) was tending
a Video Rental Shop owned by her employer and cousin, Ana Marinay (Ana)
located at 153 Loreto Street, Morning Breeze [S]ubdivision, Caloocan City (Tsn.,
January 8, 1998, p. 3). Thereupon, accused-appellant Alexander Taño, a relative
of Ana's husband Gerry Marinay (Gerry), arrived at said shop (ibid., p. 4).
Alexander Taño then asked Amy about the time when Gerry would be coming
home, to which she replied, 10:00 p.m. (id.). He then asked about the time when
Ana would be coming home and Amy replied that she did not know (id.).

Thereafter, but still on the same date, Alexander Taño kept on going in and out of
the Video Shop, and on the last time that he went inside said shop, he jumped
over the counter of the shop to where Amy was and seized the latter by placing
one of his arms around Amy['s] neck, while his other hand held a knife which he
poked at her neck (id., pp. 4-5).

Terrified by the attack, Amy started shouting for help but Alexander Taño
increased the volume of a karaoke which was on at the time to drown Amy's cries
for help (id., p. 5).

Alexander Taño then dragged Amy to the kitchen of the shop where, at knife
point, he ordered the latter to undress and he thereafter started raping her (id.,
pp. 5-6).

However, while Alexander Taño was raping Amy, somebody knocked at the door
of the shop prompting the former to stop what he was doing and ordered Amy to
put on her clothes (id., pp. 6-7).

Alexander Taño then directed Amy to go upstairs to the second floor of the shop
to change clothes as he will be taking her with him (id., p. 7). But suddenly
thereafter, Taño pulled her down and punched her in the stomach thrice causing
her to lose her balance (id.). Taño then started cursing her and again placed
himself on top of her while poking a knife at her neck (id.). Amy then pleaded with
Taño to just take anything inside the shop and to spare her life, to which Taño
replied "no, I will not leave you here alive." (id.).

But after a while and upon Amy's pleading, Taño put down his knife and while he
was kissing Amy, the latter got hold of the knife which she surreptitiously
concealed under the stairs (id.).

Therafter, Taño became violent again and banged Amy's head on the wall
causing the latter to lose consciousness (id., p. 9). When she regained
consciousness she found herself and Taño inside the toilet of the shop and the
 latter again banged her head, this time on the toilet bowl, several times causing
Amy to again lose consciousness (id., pp. 8-10).

Thereafter, Taño went upstairs and looted the place of valuables belonging to
Amy's employer, Ana. Amy, herself lost her ring, bracelet and wristwatch during
the incident in question (id., p. 10).

At about 9:00 o'clock p.m. of the same day, Amy's employer Ana arrived and
found the shop in disarray with the "karaoke" in full volume (Tsn., 13, 1998, pp. 2-
4). After turning off the "karaoke["], Ana proceeded to the toilet where she found
Amy bathed in blood (ibid., p. 4).

Ana immediately sought the help of Barangay officials of the place and Amy was
brought to the "MCU" Hospital where she was initially treated of her injuries (id.,
p. 5). Amy was, later on, transferred to Jose P. Reyes Memorial Medical Center
(JPRMMC) where she was confined for four (4) days.

Version of the Defense

On the other hand, appellant's version of the incident is as follows: 5

. . . [O]n November 6, 1997, at around 7:40 p.m., he went to the house of his
cousin Gerry Bautista Marinay at 113 Loreto St., Morning Breeze Subdivision,
Kalookan City and upon arrival thereat he found therein Amy de Guzman alone
which she greeted him because she knew that the accused was a frequent visitor
thereof. Upon learning from her that Gerry was not around, accused proceeded
to the kitchen to drink water and after he bought cigarettes at the nearby store, he
returned to the shop and seated himself infront of Amy de Guzman's counter.
After the lapse of five minutes he got bored and went out again to wait for the
arrival of GERRY. After finishing his cigarette he returned to Amy and talked with
her and learned that ANA was at her newly opened restaurant. After a while, the
thought of stealing his cousin's valuables struck his mind owing to his dire need
of cash/money. Thus, he approached Amy and held her hands and asked her to
come with him because he badly needed money, to lead him to where his cousin
was keeping his money and valuables. As to Amy's surprise [sic], she shouted
and to stop her, the accused covered her mouth with his right hand but Amy put
up a struggle and in the process they both fell down and rolled on the floor.
Thence, the accused was able to subdue Amy and forcibly took her in the
upstairs where he did the ransacking of the drawers while holding the private
complainant's hand. However, she was able to free herself from his hold and ran
downstairs to the kitchen where she tried to get hold [of] a knife but he was able
to wrest with her. As the accused was rattled, he pushed Amy inside the comfort
room and shoved her head against the tiles to mum her. He took Amy's bag
wherein he placed his loot consisting of 2 wrist watches, including Amy's Alba
watch, a bracelet, clothes and hair blower as well as jewelry box containing five
rings which he placed in his pocket, then he proceeded to his brother's house in
Taytay. Upon arrival of the police and his cousin thereat he returned the jewelry
box to the latter but the same was not presented in court, that no other jewelry
was taken by him from the place except those already specified, muchless has
he taken any cash money from his cousin Gerry Marinay, that he has a wife
staying in Iloilo and he has a girlfriend here in Manila, that he never raped the
private complainant Amy de Guzman and neither [had he] courted her prior to the
incident. (TSN., March 3, 1998, pp. 2-9) (TSN., March 4, 1998, pp. 2-6)"

Ruling of the Trial Court

Assessing the testimony of the private complainant, the trial judge observed: 6

Verily this Court finds the forthright account of the incident by the private
complainant whose small and slender physique was certainly no match to the tall
well-built body of an ex-convict, to be candid, straightforward, spontaneous and
frank which remained consistent and unwavering despite the rigid cross-
examinations of the defense counsel wherein she narrated in detail the sexual
assault with the use of a knife perpetrated by the accused against her.

Parenthetically this Court has observed the deportment of the private

complainant at the witness stand and certainly she did not appear to have the
callousness and shrewdness of a woman capable of imputing a heinous crime
against the [a]ccused if the same is not true. Besides, the defense has not shown
any evil motive or ill will on the part of the private complainant for testifying the
way she did in this case.

The lower court accepted the judicial admission of the accused that he stole valuables belonging
to private complainant and her employer, and then proceeded to determine "whether or not the
prosecution evidence has sufficiently established the rape angle of the case."

In fine, the [a]ccused having already admitted the robbery charge coupled with
the fact that the prosecution has established with clear and convincing evidence
[a]ccused's culpability for sexually assaulting the pri[v]ate complainant leaves no
room for doubt of the guilt of the accused for the complex crime of robbery with
(aggravated) rape[.]

Furthermore, the trial court appreciated dwelling as an aggravating circumstance because the
incident took place supposedly at the residence of private complainant's employer, "which
doubles as a video rental shop." 7 Applying Article 63 of the Revised Penal Code as amended by
RA 7659, it imposed the maximum penalty provided under Article 294 of the same Code as
amended, which is death.

Thus, this automatic review by this Court. 8

Issues

In his Brief, 9 Appellant Taño assigns only two errors or issues. These are:

The lower court erred in not taking into consideration the testimonies of Dr.
Godofredo Balderosa and Dr. Maria Redencion Bukid-Abella which negate the
rape [charge] imputed against the accused.

II

The lower court erred in finding the accused guilty beyond reasonable doubt of
the crime of robbery with rape despite the prosecution's insufficiency of evidence.

In criminal cases, an appeal throws the whole case open for review and the appellate court may
correct such errors it may find in the appealed judgment, even if they have not been specifically
assigned. 10 Hence, this Court likewise reviewed (a) the propriety of appellant's conviction of the
special complex crime of robbery with rape and (b) the trial court's appreciation of dwelling as an
aggravating circumstance. These two items will be discussed as the third and fourth issues.
 The Court's Ruling

After a careful review of the evidence on record, the Court finds that (a) appellant is guilty of two
separate crimes — rape and robbery, (b) dwelling cannot be appreciated as an aggravating
circumstance, and (c) the proper penalty for rape is reclusion perpetua, not death.

First Issue:

Evaluation of the Examining

Doctors' Testimonies

Appellant contends that the trial court failed to give due credence to the testimonies of Dr.
Godofredo Balderosa and Dr. Ma. Redencion Bukid-Abella, who both examined and treated Amy
de Guzman's physical injuries immediately after the incident. Both doctors similarly stated that
the victim complained to them of physical assault and attempted rape only, not of consummated
rape. 11 Additionally, the findings of NBI Medico-Legal Officer Aurea Villena were allegedly
inconclusive as to whether there was sexual intercourse between the appellant and the
victim. 12 Their testimonies supposedly bolster appellant's innocence of the rape charge.

Otherwise stated, appellant claims that the failure of Amy de Guzman to immediately disclose the
rape to her examining physicians could only mean that she was not in fact sexually assaulted.

In many criminal cases, especially of rape, this Court has acknowledged that the vacillation of the
victim in reporting the crime to the authorities is not necessarily an indication of a fabricated
charge. Neither does it always cast doubt on the credibility on the complaining witness. 1 The
initial reluctance of a young, inexperienced lass to admit having been ravished is normal and
natural.14 The Court takes judicial notice of the Filipina's inbred modesty and shyness and her
antipathy in publicly airing acts which blemish her honor and virtue. 15 She cannot be expected to
readily reveal the fact of her sexual violation to total strangers.

It is thus perfectly understandable and consistent with common experience that Amy initially tried
to downplay the assault upon her chastity by telling the doctors that there was no consummation
of the act. The following day, however, she was finally able to gather the courage to reveal the
entire truth to her cousin-employer, Ana Marinay. 16She also executed a Sworn
Statement 17 before PO3 Jaime Basa, detailing how she had been raped and beaten by appellant.
Four days later, she acceded to undergo a medico legal examination of her genital organ, which
was conducted by Dra. Aurea Villena of the Jose R. Reyes Memorial Hospital, where she was
confined.

Time-honored is the doctrine that no young and decent woman would publicly admit that she was
ravished and her virtue defiled, unless such was true, for it would be instinctive for her to protect
her honor. 18 No woman would concoct a story of defloration, allow an examination of her private
parts and submit herself to public humiliation and scrutiny via an open trial, if her sordid tale was
not true and her sole motivation was not to have the culprit apprehended and punished. 19 Thus,
absent any credible imputation of ill motive on the part of the private complainant to falsely
accuse the appellant of a heinous crime, her candid and consistent testimony should be given full
faith and credit. 20 It is a basic rule, founded on reason and experience, that when a victim testifies
that she has been raped, she effectively says all that is necessary to show that rape was indeed
committed. 21

In the case at bar, we find no reason to deviate from these doctrines. Amy de Guzman's
straightforward and convincing testimony, which will be detailed later, bears no badge of material
inconsistency which would bring doubt to its veracity. She stood firm on her tale throughout her
court appearance. The trial judge observed her "to be candid, straightforward, spontaneous and
frank . . . [and she] remained consistent and unwavering despite the rigid cross-examinations of
the defense counsel . . ." 22

Besides, no ill motive was imputed on her. Appellant offers us no plausible explanation why Amy
de Guzman cried rape against him. We believe she did so in order to bring out the truth and to
obtain justice.

Appellant's contention that the absence of genital and other injuries on Amy's body proves his
innocence is unacceptable. Time and again, we have ruled that hymenal laceration is not an
element of rape. 2 The victim need not sustain genital injuries, for even the slightest penetration
of the labia by the male organ is equivalent to consummated rape. 24

Besides, the examining physician satisfactorily explained the absence of lacerations on private
complainant's genitalia: 25

. . . during the examination I found out that [the victim's] hymen is that of elastic
type and so it is disten[s]ible and it could accommodate the penis without
producing any genital injuries.

She elucidated that "[l]aceration only occur[s] on non-elastic hymen because non-elastic hymen
cannot accommodate the size of the penis without producing injury but hers is that of the elastic
type, like rubber band that could stretch and turn back into its proper size." 26

Second Issue:

Sufficiency of Prosecution Evidence

Time-tested is the guiding principle that when a victim cries rape, she says in effect all that is
necessary to show that the crime was inflicted on her; and so long as her testimony meets the
test of credibility, the accused may be convicted on the basis thereof. 27 We have no reason in the
instant case to deviate from this settled jurisprudence.

Rape is committed by having carnal knowledge of a woman under any of the following instances:
(1) force or intimidation is used, (2) the woman is deprived of reason or otherwise unconscious,
or (3) she is under twelve years of age. 28 We find the necessary elements of rape duly
established by Private Complainant Amy de Guzman when she candidly testified thus: 29

a Then Alexander Taño kept coming in and out of the video rental
shop and last time he went in, he slammed the door and jumped
over the counter where I was and strangled me while his other
hand is holding a knife, the knife was poked at the right side of my
neck.

q What else transpired thereafter?

a And he took the knife from the right hand and held it with his left
hand and turned the volume of the karaoke louder so that my
voice will not be heard since I was shouting.

q When the accused poked the knife, what did you feel?

a "Natakot po."

q What happen[ed] next Ms. Witness?

 a Then after turning louder the volume of the karaoke to down my
voice, he took me to the kitchen.

COURT:

q How [were] you taken to the kitchen?

"Paano ka dinala sa kusina?"

a Sakal-sakal po niya ako.

xxx xxx xxx

a . . . and once in the kitchen he made me lay my back against

the stairs and told me to take[ ]off my pants. Due to fright I did as
told and the knife was then poked at my stomach.

q You said you removed . . . your pants, where [sic] you wearing
your panty at that time?

a Yes, Sir. I was wearing one.

q What happened to that panty?

a He told me to take off my pants, in doing so I took off completely

together with my panty.

q Then, what happened next?

a And once [I laid] down on the floor, he tried . . . to make me

spread[-]eagle my legs and in that process he knelt between my
legs then took off his pants.

q And after that, what happen[ed] next after accused removed his
pants . . .?

a Then after taking off his pants, he lay atop me and I felt he was
forcing his penis in and [while] in that process the knife was still
poked at my left neck.

q When he inserted his penis into your private parts, what did you
feel?

a Pain. (Masakit po).

q After inserting his penis into your private parts, what did he do?

a He kept on pumping.

As noted earlier, the trial judge, who was able to observe firsthand the conduct and demeanor of
the witnesses while testifying, perceived Amy to be candid, straightforward, spontaneous and
frank. Said witness was also found to have been consistent and unwavering despite the rigid
cross-examination of the defense counsel. We note from the transcript of stenographic notes that
the judge herself had posed additional clarificatory questions upon Amy. 30Throughout her
testimony, she indeed remained consistent as well as convincing.

Of long-standing is the rule that findings of trial courts, especially on the credibility of witnesses,
are entitled to great weight and accorded the highest respect by the reviewing courts, unless
certain facts of substance and value were overlooked or misappreciated such as would alter the
conviction of the appellant. 31 Trial judges are in a better position to assess the behavior of
witnesses and to detect whether they are telling the truth or not because they could directly
observe them in court. 32 The reviewing magistrate, on the other hand, has only the cold and
impersonal records of the proceedings to rely upon.

With respect to the robbery, its elements are: (1) the subject is personal property belonging to
another; (2) there is unlawful taking of that property, (3) the taking is with the intent to gain, and
(4) there is violence against or intimidation of any person or use of force upon things. 3 There is
no question on the unlawful taking of valuables belonging to Amy and her employer, Ana
Marinay. Appellant openly admitted in court the unlawful asportation, thus:

q [W]ere you able to get some valuables from the room of [the]
Bautista 34 couple?

a [Y]es sir.

q [W]hat are these valuables?

a I remember the jewelry box containing jewelry, clothes and

other valuables [sic] things sir.35

xxx xxx xxx

q [W]here did you get that jewelry box containing rings?

a [I]nside the locker or aparador sir.

q [A]fter having taken all these jewelries and clothes you placed
them all in a blue bag and left the place?

a [T]he jewelry box was placed inside my pocket. I did not place in
the blue bag sir.

q [Y]ou mentioned five rings, Alba wrist watch owned by rape

victim [A]my de [G]uzman, you also mentioned other jewelries,
what other jewelries aside from the jewelry that you took in the
house of the couple Gerry [and Ana] Bautista?

[A]tty. [C]risostomo

[O]bjection he did not mention other jewelries. He specified one

bracelet and one wrist watch.

Court

[W]itness may answer.

Witness
 a [T]here were sir.

Fiscal

q [W]hat are they?

Witness

a [C]lothes and a hair blower because I was in a hurry. 36

During his arrest, the following stolen valuables were found in his bag: P5,000 cash, two
bracelets, two rings and a pair of earrings, which Ana Marinay identified as belonging to her; and
one wristwatch and a bracelet belonging to Amy de Guzman. 37 Unrebutted is the presumption
that a person in possession of stolen personal effects is considered the author of the crime.

Third Issue:

Crime(s) Committed

We do not, however, agree with the trial court that appellant is guilty of the special complex crime
of robbery with rape. This felony contemplates a situation where the original intent of the accused
was to take, with intent to gain, personal property belonging to another; and rape is committed on
the occasion thereof or as an accompanying crime. 38

Such factual circumstance does not obtain here. As related by Private Complainant Amy de
Guzman, accused-appellant suddenly jumped over the counter, strangled her, poked a knife at
the left side of her neck, pulled her towards the kitchen where he forced her to undress, and
gained carnal knowledge of her against her will and consent. Thereafter, he ordered her to
proceed upstairs to get some clothes, so he could bring her out, saying he was not leaving her
alive. At this point, appellant conceived the idea of robbery because, before they could reach the
upper floor, he suddenly pulled Amy down and started mauling her until she lost consciousness;
then he freely ransacked the place. Leaving Amy for dead after repeatedly banging her head,
first on the wall, then on the toilet bowl, he took her bracelet, ring and wristwatch. He then
proceeded upstairs where he took as well the jewelry box containing other valuables belonging to
his victim's employer.

Under these circumstances, appellant cannot be convicted of the special complex crime of
robbery with rape. However, since it was clearly proven beyond reasonable doubt that he raped
Amy de Guzman and thereafter robbed her and Ana Marinay of valuables totaling P16,000, he
committed two separate offenses — rape with the use of a deadly weapon and simple robbery
with force and intimidation against persons.

Appellant may well be convicted of the separate offenses of rape and robbery notwithstanding
the fact that the offense charged in the Information is only "Robbery with Rape." In a similar
case, People v. Barrientos, 39 this Court held:

. . . Controlling in an Information should not be the title of the complaint, nor the
designation of the offense charged or the particular law or part thereof allegedly
violated, these being, by and large, mere conclusions of law made by the
prosecutor, but the description of the crime charged and the particular facts
therein recited. Neither is it the technical name given to the offense by the
prosecutor, more than the allegations made by him, that should predominate in
determining the true character of the crime. There should also be no problem in
convicting an accused of two or more crimes erroneously charged in one
 information or complaint, but later proven to be independent crimes, as if they
were made the subject of separate complaints or informations.

In the case at bar, we find the Information filed against appellant to have sufficiently alleged all
the elements necessary to convict him of the two separate crimes of rape and robbery. Needless
to state, appellant failed, before his arraignment, to move for the quashal of the Information
which appeared to charge more than one offense. He has thereby waived any objection and may
thus be found guilty of as many offenses as those charged in the Information and proven during
the trial. 40

Fourth Issue:

Dwelling as an

Aggravating Circumstance

Dwelling aggravates a felony when the crime was committed in the residence of the offended
party and the latter has not given any provocation. 41 It is considered an aggravating circumstance
primarily because of the sanctity of privacy that the law accords to human abode. 42 As one
commentator puts it, one's dwelling place is a sanctuary worthy of respect; thus, one who
slanders another in the latter's house is more severely punished than one who offends him
elsewhere. 4 According to Cuello Calon, the commission of the crime in another's dwelling shows
worse perversity and produces graver alarm. 44

In the case at bar, the building where the two offenses were committed was not entirely for
dwelling purposes. The evidence shows that it consisted of two floors: the ground floor, which
was being operated as a video rental shop, and the upper floor, which was used as a residence.
It was in the video rental shop where the rape was committed. True, the victim was dragged to
the kitchen and toilet but these two sections were adjacent to and formed parts of the store.
Being a commercial shop that caters to the public, the video rental outlet was open to the public.
As such, it is not attributed the sanctity of privacy that jurisprudence accords to residential
abodes. Hence, dwelling cannot be appreciated as an aggravating circumstance in the crime of
rape.

Proper Penalties

Under Article 335, paragraph 3, of the Revised Penal Code, as amended, "[w]henever the crime
of rape is committed with the use of a deadly weapon . . . the penalty shall be reclusion
perpetua to death." Under Article 63 of the same Code, reclusion perpetua is the appropriate
penalty imposable upon accused-appellant for the crime of rape, inasmuch as no aggravating
circumstance was proven. Pursuant to current jurisprudence, the award of P50,000 as
indemnity ex delicto is mandatory upon the finding of the fact of rape. 45 Moral damages may
additionally be awarded to the victim in such amount as the Court deems just, without the need
of pleading or proof of the basis thereof. 46 In rape cases, it is recognized that the victim's moral
injury is concomitant with and necessarily results from the odiousness of the crime to warrant the
grant of moral
damages. 47 In the instant case, we deem it appropriate to grant Amy de Guzman P30,000 as
moral damages. However, since no aggravating circumstance attended the rape, no exemplary
damages may be awarded. 48

For the crime of robbery committed under the circumstances of this case, the Code provides the
penalty of prision correccional in its maximum period to prision mayor in its medium
period. 49 Further, the appellant is also entitled to the benefits of the Indeterminate Sentence Law.
For the actual damages incurred by Amy de Guzman in connection with her physical injuries, the
lower court awarded P2,687.65, based on receipts submitted by her. A recomputation of the
receipts, however, reveals a total of only P2,487.65. We, therefore, reduce the award
accordingly. The trial court also ordered appellant "to restore to the victim her gold ring of
undetermined amount," which was supposedly unrecovered. Upon an examination of the
records, we note that the Information alleges the robbery of the following items: P5,000 cash,
three (3) bracelets, two rings, one pair of earrings and one (1) Alba wristwatch. Except for the
cash money, which has already been returned to Ana Marinay by the police, the other items were
offered as evidence 50 and submitted to the custody of the trial court. Upon Motion 51 of Ana
Marinay and Amy de Guzman, the release to them of these items was ordered by this Court via a
Resolution issued on December 7, 1999. The stolen items are therefore all accounted for. Thus,
we find no sufficient basis for the trial court's order for the appellant to return a "gold ring of
undetermined amount."

In robbery and other common crimes, the grant of moral damages is not automatic, unlike in rape
cases. The rule that a claim for moral damages must be supported by proof still stands. It must
be anchored on proof showing that the claimant experienced moral suffering, mental anguish,
serious anxiety, besmirched reputation, wounded feelings, moral shock, social humiliation or
similar injury. 52 The private complainants, however, did not present any evidence of their moral
sufferings as a result of the robbery. Thus, there is no basis for the grant of moral damages in
connection with the robbery.

WHEREFORE, the assailed Decision is hereby MODIFIED. Accused-Appellant Alexander Taño

y Caballero is found guilty of two separate offenses: rape and robbery. For the crime of rape,
appellant is hereby SENTENCED to reclusion perpetua and to pay Private Complainant Amy de
Guzman P50,000 as indemnity ex delicto and P30,000 as moral damages. For the crime of
robbery, appellant is sentenced to an indeterminate penalty of two (2) years and four (4) months
of prision correccional, as minimum, to eight (8) years of prision mayor, as maximum; and to pay
De Guzman P2,487.65 as actual damages.

SO ORDERED.

Davide, Jr., C.J., Bellosillo, Puno, Vitug, Mendoza, Quisumbing, Pardo, Buena, Gonzaga-Reyes,
Ynares-Santiago and De Leon Jr., JJ., concur.

Melo, Kapunan and Purisima, JJ., no part — abroad.

Footnotes

1
Penned by Judge Myrna Dimaranan Vidal; rollo, pp. 20-33.

2
Rollo, p. 5; records, p. 1.

3
Records, p. 7.

4
Brief for the Appellee, pp. 3-5; rollo, pp. 95-97. The Brief was signed by Sol.
Gen. Ricardo P. Galvez, Asst. Sol. Gen. Maria Aurora P. Cortes and Solicitor
Ronald B. de Luna.

5
Appellant's Brief, pp. 7-8; rollo, pp. 50-51. Said Brief was signed by Attys. Arceli
A. Rubin, Teresita S. de Guzman and Josephine M. Advento-Vito Cruz of the
Public Attorney's Office.

6
Assailed Decision, p. 9; rollo, p. 28.

7
Assailed Decision, p. 12; rollo, p. 31.
8
This case was deemed submitted for resolution on November 5, 1999, upon
receipt by this Court of the appellant's Reply Brief.

9
P. 1; rollo, p. 44.

People v. Llaguno, 285 SCRA 124, 147, January 28, 1998. See also People v.
10

Atop, 286 SCRA 157, 174, February 10, 1998.

Appellant's Brief, pp. 9-11, citing TSN, January 20, 1998, pp. 9-10, and TSN,
11

February 18, 1998, p. 12.

12
Ibid., pp. 12-15, citing TSN, February 4, 1998, pp. 11-13.

People v. Cabel, 282 SCRA 410, December 4, 1997; People v. Escober, 281
13

SCRA 498, November 6, 1997; People v. Fuensalida, 281 SCRA 452, November
6, 1997; People v. Perez, 270 SCRA 526, March 26, 1997.

14
People v. Del Rosario, 282 SCRA 178, November 18, 1997.

People v. Alfeche, 294 SCRA 352, August 17, 1998; People v. Sabalones, 294
15

SCRA 751, August 31, 1998.

16
TSN, January 13, 1998, p. 7.

17
Records, p. 2 et seq.

18
People v. Auxtero, 289 SCRA 75, April 15, 1998.

See People v. Escober, 281 SCRA 498, November 6, 1997; People v. Antipona,
19

274 SCRA 328, June 19, 1997; People v. Ramirez, 266 SCRA 335, January 20,
1997.

People v. Abrecinoz, 281 SCRA 59, October 17, 1997; People v.

20

Escober, supra.

21
People v. Garcia, 281 SCRA 463, November 6, 1997; People v. Cabel, supra.

22
Assailed Decision, p. 9; rollo, p. 28.

People v. Escober, supra; People v. Zaballero, 274 SCRA 627, June 30, 1997;
23

People v. Garcia, 288 SCRA 382, March 31, 1998; People v. Tirona, 300 SCRA
431, December 22, 1998.

24
People v. Borja, 267 SCRA 370, February 3, 1997.

25
TSN, February 4, 1998, p. 8.

26
Ibid., p. 11.

People v. Garcia, supra; People v. Erardo, 277 SCRA 643, August 18, 1997;
27

People v. Butron, 272 SCRA 352, May 7, 1997.

28
People v. Pili, 289 SCRA 118, April 15, 1998.
29
TSN, January 8, 1998, pp. 4-6.

30
See TSN, January 12, 1998, pp. 14-15.

People v. Sumalpong, 284 SCRA 464, January 20, 1998; People v. Correa, 285
31

SCRA 679, January 30, 1998; People v. Quinao, 269 SCRA 495, March 13,
1997; People v. Arellano, 282 SCRA 500, December 5, 1997.

People v. Navales, 266 SCRA, 569, January 23, 1997; People v. Dinglasan, 267
32

SCRA 26, January 28, 1997; People v. Daraman, 294 SCRA 27, August 7, 1998.

People v. Mendoza, 284 SCRA 705, January 23, 1998; People v. Gungon, 287
33

SCRA 618, March 19, 1998.

34
Should be "Marinay."

35
TSN, March 4, 1998, p. 4.

36
TSN, March 4, 1998, pp. 8-9.

37
TSN, January 13, 1998, p. 10.

People v. Barrientos, 285 SCRA 221, 241, January 28, 1998; People v. Cruz,
38

203 SCRA 682, 697, November 18, 1991; People v. Faigano, 254 SCRA 10,
February 22, 1996.

39
Supra, pp. 244-245, per Vitug, J.

People v. Manalili, 294 SCRA 220, August 14, 1998; People v. Bugayong, 299
40

SCRA 528, December 2, 1998.

People v. Paraiso, G.R. No. 127840, November 29, 1999; People v. Molina,
41

G.R. No. 129051, July 28, 1999.

People v. Monsayac, G.R. No. 126787, May 24, 1999; People vs. Parazo, 272
42

SCRA 512, May 14, 1997.

43
Aquino, Revised Penal Code Annotated, Vol. I, 1987 ed., p. 315.

44
Ibid.

People v. Maglente, 306 SCRA 546, 578, April 30, 1999; People v. Penaso,
45

G.R. No. 121980, February 23, 2000.

People v. Prades, 293 SCRA 411, July 30, 1998; People v. Arizapa, G.R. No.
46

131814, March 15, 2000.

47
People v. Arizapa, ibid.

See Art. 2230, Civil Code; People v. De Guzman, 265 SCRA 228, 247,
48

December 2, 1996.

49
Art. 294, no. 5, RPC.
 Exhs. "E," "E-1," "E-2" (3 bracelets); "E-3," "E-4" (2 rings); "E-5" (earrings); and
50

"E-6" (wristwatch)

51
Rollo, p. 81.

52
People v. Sumalpong, supra; People v. Adora, 275 SCRA 441, July 14, 1997.

G.R. No. 134084 May 4, 2000

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.

DOMINICO LICANDA y BOLANTI, accused-appellant.

MENDOZA, J.:

This is an automatic appeal from the decision 1 of the Regional Trial Court, Branch 129, Caloocan
City, finding accused-appellant guilty of raping his 13-year old daughter and sentencing him to
death and to pay the victim P50,000.00 in damages.

The complaint, filed by Nelita Mahinay, on August 14, 1997 and adopted by the prosecution as
Information, alleged:

That on or about the 11th day of August 1997 in Caloocan City, M.M. and within
the jurisdiction of this Honorable Court, the above-named accused, being then
the natural father of the victim, NELITA MAHINAY Y MONTINO, a minor of 13
years old, with lewd design, and by means of threats and intimidation, did then
and there willfully, unlawfully and feloniously lie and have sexual intercourse with
his daughter, NELITA MAHINAY Y MONTINO against her will and without her
consent.2

To the crime thus charged, accused-appellant pleaded not guilty, whereupon he was tried.

The prosecution presented evidence showing the following: Nelita Mahinay is one of the children
of accused-appellant and Dioleta Mahinay. She was born on July 14, 1984 in Samar and
reached only up to the third grade in school. In 1997, the family moved to Manila and, at the time
material to this case, stayed in the house of Nelita's grandmother in Bagong Barrio, Caloocan
City.3

Nelita testified that before her family moved to Manila, accused-appellant had already raped her
on several occasions. The first incident occurred on September 21, 1996 when she was only 12
years old. With regard to the rape subject of this case, she testified that it took place in the
evening of "August 4 or 5, 1997."4 That night, she and a seven-year old cousin slept on the floor
of the living room of her grandmother's house, while her parents slept near the terrace, about a
meter from her. When her mother was already asleep, accused-appellant moved beside her. The
following is her narration in open court of what subsequently took place:5

Fiscal Lomadilla

Q What happened after you said your father transferred near

you?

A He put off my dress Sir.

Q What else?
A And then he told me not to make any noise because if not, he is
going to stab me and my mother Sir.

Q Why? Was he holding anything at that time?

A No answer. . .

Atty. Ongteco

The question is leading your Honor.

Court

Because of the low intelligence of the witness, I can allow that.

Sige, answer.

Witness

A A bladed weapon your Honor.

Fiscal Lomadilla

Q What did you do, if any?

A I cried Sir.

Q Why did you cry?

A Because of what he did to me Sir.

Q When he said that you should not make any noise, what did he
do next?

A "Kinantot po niya ako".

(He raped me Sir.)

Q How did he rape you?

A He placed h[im]self on my top Sir.

Q What happened next after he placed h[im]self on top of you?

A He made sex with me Sir.

Fiscal Lomadilla

Q What was he wearing when he placed h[im]self on top of you?

A A brief Sir.

Q When you said he had sex with you, was his brief still on?
 A No answer . . .

Atty. Ongteco

Leading you Honor.

Court

As I said earlier, because of the low intelligence of this witness,

you can ask leading questions . . ., answer.

Witness

A Yes your Honor.

Fiscal Lomadilla

Q How long did he make sex with you?

A Less than an hour Sir.

Q Then, what did you feel [after] he had sex with you?

A Pain Sir.

Q What part of your body did you feel the pain?

A "Sa pekpek ko po."

(In my vagina Sir)

The following morning, she told her mother what happened. The latter sought the help of Nelita's
uncle who accompanied them to the office of the Bantay Bata Foundation of the TV station ABS-
CBN. There, they were advised that Nelita should be examined by a doctor.6

On the same day, Nelita underwent a physical examination conducted by Dr. Dennis Bellin, a
medico-legal officer of the National Bureau of Investigation, who issued the following
certification:7

FINDINGS:

GENERAL AND EXTRAGENITAL:

Fairly developed, fairly nourished and coherent female subject. Breasts are
conical with dark brown areola and nipples from which no secretions could be
pressed out. Abdomen is flat and soft.

GENITAL:

There is scanty growth of pubic hair. Labia majora are full, convex and coaptated
with the pinkish brown labia minora presenting in between. On separating the
same disclosed an elastic, fleshy-type hymen with deep healed lacerations at 4
and 7 o'clock and shallow healed laceration at 9 o'clock positions. External
vaginal orifice offers moderate resistance to the introduction of the examining
 index finger and the virgin-sized vaginal speculum. Vaginal canal is narrow with
prominent rugosities. Cervix is normal in size, color and consistency.

CONCLUSION:

Subject is in non-virgin state physically.

There are no external signs of application of any form of violence.

REMARKS:

Vaginal and peri-urethral smears are negative for gram-negative diplococci and
for spermatozoa.

Dr. Bellin testified that in his opinion, the healed lacerations in Nelita's genitalia were more than
three weeks old and had not been inflicted on the day prior to the examination. He added that
these lacerations served as the basis for his conclusion that complainant is in a "non-virgin
state." The lacerations, he continued, were caused by the introduction of a hard blunt object into
the victim's genitalia such as an erect penis or a finger.8

The prosecution presented Nelita's mother, Dioleta Mahinay. She testified that at around 11 in
the evening of August 11, 1997, she woke up and found her husband on top of her daughter
(nakatumbaw) making some motions (gumagalaw), while her daughter was crying. She said she
could not do anything because she was afraid of her husband who always carried a knife with
him. However, she did confront him later about the incident, but her husband merely kept quiet.
Dioleta corroborated her daughter's testimony that the following morning they sought assistance
from the office of the Bantay Bata Foundation of ABS-CBN and that, upon advice, she had her
daughter examined by a doctor that same day. Afterwards, they reported the incident to the
police as a result of which accused-appellant was arrested.9

Dioleta stated that when her husband was on top of their daughter, he had his briefs on while her
daughter had on a pair of short pants and blouse. On cross-examination, she added that her
husband had a knife tucked in his waist. The trial court noted the tendency of the witness to
laugh whenever she was embarrassed by questions regarding the details of the rape of her
daughter. 10

Accused-appellant testified in his behalf. After stating that he was 53 years old, married, a
construction worker and a resident of Bagong Barrio, Caloocan City, he only gave the following
testimony: 11

Atty. Ongteco

The witness your Honor will deny the charges filed against him.
With the kind permission of the Honorable Court.

Q Mr. Witness, did you rape Ms. Nelita Mahinay?

A No, sir.

Atty. Ongteco:

No further questions your Honor.

On cross-examination, the defense objected to the questions concerning accused-appellant's

filiation to Nelita and his relationship with Dioleta Mahinay, on the ground that this matter was
outside the scope of the direct examination. But as accused-appellant himself stated that he is
married, the lower court allowed the prosecution to question accused-appellant regarding his civil
status. He testified that Dioleta Mahinay is his wife and that he has five children by her. When
asked however whether he is related to, or knew Nelita, he did not answer but remained silent.
The trial court took this to mean that accused-appellant was answering in the negative. 12

On June 10, 1998, the trial court rendered its decision finding accused-appellant guilty. The
dispositive portion of its decision reads: 1

WHEREFORE, premises considered, this Court finds the accused DOMINICO

LICANDA y BOLANTI guilty beyond reasonable doubt of Rape, as defined and
penalized under Article 335 of the Revised Penal Code, as amended by Section
11, paragraph 1 of Republic Act No. 7659. Accordingly, he shall serve the penalty
of Death.

By way of damages, and pursuant to Article 2202 of the Civil Code and Article
100 of the Revised Penal Code, the accused shall pay complaining witness Nelita
Mahinay the sum of P50,000.00, without subsidiary imprisonment in case of
insolvency.

xxx xxx xxx

In this appeal, accused-appellant's sole assignment of error is that the trial court erred in
convicting him despite the alleged failure of the prosecution to prove his guilt beyond reasonable
doubt. 14

First. Accused-appellant capitalizes on Nelita's testimony that her father had his briefs on when
he went on top of her and raped her. He contends that this proves that the rape was not
consummated. 15

The contention has no merit. Admittedly, rape under the first paragraph of Art. 335 16 of the
Revised Penal Code, as amended by Republic Act No. 7659, is consummated when there is
penetration, no matter how slight, of the victim's genitalia 17 under any of the circumstances
enumerated therein. 18 It is also settled that inconsistencies between two statements of a witness
should be determined not by considering words or phrases separately, but by the entire
impression or effect of what has been said or done. 19

In this case, Nelita categorically stated that accused-appellant was able to have sexual
intercourse with her ("Kinantot niya ako") for less than an hour by threatening her with a bladed
weapon, as a result of which she felt pain in her genitalia. This is an assertion that accused-
appellant was able to consummate the rape. Her statement that her father was wearing briefs
should be taken to mean, as the lower court said, 20 that accused-appellant was wearing briefs but
he subsequently removed or lowered it during the sexual act to expose his penis. It is to be
remembered that accused-appellant was sleeping beside his wife about a meter away from
Nelita. It was unlikely then that he would pull down his briefs before moving over to Nelita's side.
Indeed, when a woman — in this case, a girl barely in her teens — says she has been raped,
she in effect says all that is necessary to show that she has been raped, provided her testimony
is credible. 21

In this case, the trial court noted: 22

. . . . Despite her tender age and being unlettered, the complaining witness
tearfully narrated the harrowing experiences she went through with her father,
starting from the time she was only 12 years of age in Samar up to the time the
family moved to Bagong Barrio, Caloocan City. Complainant's tearful testimony
abundantly demonstrated her anguish, even anger. She was emotionally bruised
 and scarred for life. For instead of being protected and showered with the loving
care of the very person who brought her into this world, the latter, her very own
father, was the one who wrecked her future and shattered whatever dreams she
might still have to survive her immense poverty . . . .

In a clear, direct and categorical manner, the complaining witness testified that
her own father, the accused, raped her — not only in Bagong Barrio, Caloocan
City which gave rise to this case — but also in Samar where the sexual assaults
were "maraming beses na po." When a woman, more so if she is a minor, says
that she has been raped, she says in effect all that is necessary to show that the
rape was committed. (People vs. Vitor, 245 SCRA 392.)

The trial court's evaluation of Nelita's credibility is entitled to the highest respect for it had
the opportunity to observe the demeanor of the witness on the stand. 2 We have carefully
examined the records of the case, and we find no ground for a reversal of the finding of
the trial court.

Indeed, no woman, especially one of such tender age as Nelita, would contrive a rape story,
allow an examination of her private parts and permit herself to be subjected to scrutiny at a public
trial if she is not motivated solely by a desire to have the culprit apprehended and punished. 24 Her
tale of sexual abuse is credible in the absence of a showing that she had cause to falsely
implicate accused-appellant. 25

On the other hand, the trial court correctly dismissed the claim of Nelita's mother that accused-
appellant's knife was tucked in his waist while he was having intercourse with the child. 26 This is
contrary to Nelita's testimony that accused-appellant held the knife in his hand and threatened
her with it. For the same reason, Dioleta Mahinay's claim that accused-appellant was wearing
briefs and that her daughter had a blouse and a pair of shorts on during the sexual act cannot
prevail over Nelita's direct testimony that accused-appellant removed her clothes and then
forcibly had intercourse with her. As Nelita was the victim, her account of the rape is more
credible.

Accused-appellant points out alleged discrepancies in Nelita's testimony with regard to the date
when the rape took place and when she reported it to her mother.

Nelita testified that the rape took place on "August 4 or 5, 1997." This is in conflict with the
allegation in the Information that accused-appellant committed the rape on August 11, 1997. It
appears, however, that the rape did take place on the latter date because the certification issued
by Dr. Bellin states that complainant was examined by him on August 12, 1997, and Nelita and
her mother had testified that she (Nelita) was examined by Dr. Bellin the day after the rape. In
any event, the mistake in Nelita's testimony does not impair her credibility, considering the
proximity of the dates involved. Indeed, we have held that the failure of a victim to state the exact
date and time of the commission of the rape is a minor matter which can be expected to happen
when the witness is made to recount the details of a traumatic experience in open court and in
the presence of other people. 27 Far from detracting from the truthfulness of her account, the
mistake buttresses, rather than weakens, Nelita's credibility 28 since it shows that Nelita has not
been rehearsed. 29

The same reason applies with regard to Nelita's testimony that she informed her mother of the
rape on July 24, 1997, which is obviously erroneous, since the rape took place on August 11,
1997. The Solicitor General says that this error may have been due to the fact that Nelita testified
concerning several incidents of rape of which she was the victim, and/or to the lengthy direct
examination on the stand which could have easily confused her as to the correct dates. 30 The
Court agrees. Besides, as already intimated above, error-free testimonies cannot be expected,
especially when a witness is narrating the details of a harrowing experience. 31 As long as the
testimony is consistent on material points, slightly conflicting statements will not undermine the
witness' credibility nor the veracity of the testimony. 32

Second. Accused-appellant makes much of the findings of Dr. Bellin that the lacerations in the
hymen were not inflicted on Nelita on the day prior to the examination. 3 To be sure, a medical
examination is not indispensable for the successful prosecution of the crime of rape, 34 and the
presence of healed hymenal laceration does not negate the commission of rape, 35 especially if,
as in this case, Nelita claims to have been raped several times by accused-appellant prior to the
conduct of a medical examination. If any, Dr. Bellin's findings further bolster Nelita's tale of the
prior incidents of rape.

Third. The foregoing notwithstanding, the Court finds merit in accused-appellant's contention, to
which the Solicitor General agrees, 36 that the prosecution failed to establish the qualifying
circumstance of filiation between Nelita and accused-appellant as alleged in the Information.

In prosecutions for rape, where the penalty imposable is death by virtue of the presence of the
circumstances 37mentioned in Art. 335 of the Revised Penal Code, as amended by §11 of R.A.
No. 7659, the pertinent circumstances must be alleged in the Information and proved during the
trial. This is because these circumstances have the effect of increasing the imposable penalty
from reclusion perpetua to death, and partake of the nature of qualifying circumstances of which
the accused must be informed. 38

In this case, the concurrence of the minority of the victim and her filiation with accused-appellant
under §11(1) of R.A. No. 7659, as amended, are alleged in the Information, which states that
accused-appellant is "the natural father of the victim" and that by means of threats and
intimidation, he succeeded in having sexual intercourse "with his daughter" who was then "a
minor . . . 13 years old." However, although Nelita's minority was established, 39 the filiation
between accused-appellant and Nelita was not satisfactorily proven. The prosecution evidence
fails to show that accused-appellant is the natural father of Nelita. It is noted that Nelita merely
stated that accused-appellant is her father and Dioleta Mahinay her mother, 40 while the latter
testified that accused-appellant is her husband and Nelita her daughter. 41 Accused-appellant, on
the other hand, did not admit that Nelita is his daughter, although he did state that Dioleta
Mahinay is his "wife." Considering that accused-appellant's surname is "Licanda" while that of
Nelita and her mother is "Mahinay," there is ground to doubt, as the Solicitor General
says, 42 whether appellant is legally married to Dioleta Mahinay and whether Nelita is their child.
In cases of incestuous rape where complainant is the daughter of the common-law spouse of the
accused, the complainant invariably bears the surname of her mother. 4 In this case, it is curious
that Dioleta Mahinay did not testify that Nelita is her daughter by accused-appellant. On the other
hand, although accused-appellant said that he has five children by Dioleta Mahinay, he did not
say that Nelita is one of them, nor did he answer questions concerning his filiation with
complainant.

Nelita tried to explain the discrepancy by stating that accused-appellant had two surnames and
that "Mahinay" is accused-appellant's other surname. 44 This is highly suspect since her mother
also bears the same surname. 45 In any event, the problem could have been easily remedied by
the prosecution by presenting Nelita's birth certificate or any other documentary evidence which
shows the name of Nelita's father. The failure of the prosecution to do so should be taken in
favor of accused-appellant considering that it has the burden of proving its allegations 46especially
in a death penalty case where the life of a human being hangs in the balance. 47 In view of the
foregoing, the penalty imposed by the trial court must be reduced to reclusion perpetua as there
is in effect a failure to prove the qualifying circumstance of filiation as alleged in the Information. 48

Nor can accused-appellant's use of a bladed weapon in committing the rape serve as basis for
the imposition of the death penalty. This circumstance, which under Art. 335, increases the
penalty of reclusion perpetua to death, 49 must be so alleged in the Information. This, however,
was not done in this case.
Neither can accused-appellant be held liable for the other rapes testified to by Nelita, specifically
that committed on September 21, 1996, since no Information covering such crime has been filed
against him. Because of the right of the accused to be informed of the nature and cause of the
accusation against him, he cannot be convicted of a crime with which he has not been charged
even if the evidence shows that he committed the same. 50

Fourth. In addition to the P50,000.00 civil indemnity awarded by the trial court, moral damages in
the amount of P50,000.00 should likewise be given to Nelita, which is to be automatically
awarded in rape cases without need of proof. 51

WHEREFORE, the decision of the Regional Trial Court, Branch 129, Caloocan City, is
AFFIRMED with the MODIFICATION that accused-appellant's sentence is reduced to reclusion
perpetua, and he is ordered to pay complainant Nelita Mahinay the amount of P50,000.00 as
moral damages, in addition to the amount of P50,000.00 civil indemnity awarded by the trial
court.

SO ORDERED.

Davide, Jr., C.J., Bellosillo, Puno, Vitug, Panganiban, Quisumbing, Pardo, Buena, Gonzaga-
Reyes, Ynares-Santiago and De Leon, Jr., JJ., concur.

Melo, Kapunan and Purisima, JJ., are on leave.

Footnotes

1
Per Judge Bayani S. Rivera.

2
Exh. B; Records, p. 40.

3
TSN, pp. 4, 8-10, Sept. 24, 1997; TSN, p. 4, Jan. 7, 1998.

4
The Information alleges that the rape was committed "on or about the 11th day
of August 1997."

5
TSN, pp. 3-7, Sept. 24, 1997.

6
TSN, pp. 10-11, Sept. 24, 1997.

7
Exh. A; Records, p. 39. (Emphasis added).

8
TSN, pp. 10-11, 13 & 16, Nov. 7, 1997.

9
TSN, pp. 5-10 & 15, Oct. 2, 1997.

10
Id., pp. 7, 13-14.

11
TSN, p. 3, Jan. 7, 1998.

12
Id., pp. 4-5.

13
RTC Decision, p. 16; Records, p. 70. (Emphasis in the original).

14
Accused-appellant's Brief, p. 1; Rollo, p. 36.
15
Id., p. 4; id., p. 39.

Now Art. 266-A, as amended by Republic Act No. 8353 (Anti-Rape Law of
16

1997), which took effect on October 22, 1997.

People v. Sanchez, 250 SCRA 14 (1995); People v. Borja, 267 SCRA 370
17

(1997); People v. Evangelista, 282 SCRA 37 (1997); People v. Clopino, 290

SCRA 432 (1998).

(a) Through force, threat or intimidation; (b) When the offended party is deprived
18

of reason or otherwise unconscious; (c) By means of fraudulent machination or

grave abuse of authority; and (d) When the offended party is under twelve (12)
years of age or is demented, even though none of the circumstances mentioned
above be present.

19
People v. Gabas, 233 SCRA 77 (1994).

20
RTC Decision, p. 5; Records, p. 68.

People v. Abad, 268 SCRA 246 (1997); People v. Butron, 272 SCRA 352
21

(1997); People v. Mercado, 275 SCRA 581 (1997).

22
RTC Decision, pp. 13-14; Rollo, pp. 67-68.

People v. Sanchez, 250 SCRA 14 (1995); People v. Tami, 244 SCRA 1 (1995);
23

People v. Abu, 230 SCRA 612 (1994).

People v. Antipona, 274 SCRA 328 (1997); People v. San Juan, 270 SCRA 693
24

(1997); People v. Abad, 268 SCRA 246 (1997).

25
See People v. Burce, 269 SCRA 293 (1997).

26
RTC Decision, 6; Records, p. 69.

27
People v. Bugarin, 273 SCRA 384 (1997).

28
People v. Ching, 240 SCRA 267 (1995).

29
People v. Abad, supra.

30
Appellee's Brief, p. 12; Rollo, p. 72.

31
People v. Cura, 240 SCRA 234 (1995).

32
Antonio v. Court of Appeals, 273 SCRA 328 (1997).

33
Accused-appellant's Brief, p. 7; Rollo, p. 42.

34
People v. Devilleres, 269 SCRA 710 (1997); People v. Cura, supra.

35
People v. Rabosa, 273 SCRA 142 (1997).

36
Appellee's Brief, pp. 15-16; Rollo, pp. 75-76.
37
1. When the victim is under eighteen (18) years of age and the offender is a
parent, ascendant, step-parent, guardian, relative by consanguinity or affinity
within the third civil degree, or the common-law spouse of the parent of the
victim.

2. When the victim is under the custody of the police or military authorities.

3. When the rape is committed in full view of the husband, parent, any of the
children or other relatives within the third degree of consanguinity.

4. When the victim is a religious or a child below seven (7) years old.

5. When the offender knows that he is afflicted with Acquired Immune Deficiency
Syndrome (AIDS) disease.

6. When committed by any member of the Armed Forces of the Philippines or the
Philippine National Police or any law enforcement agency.

7. When by reason or on the occasion of the rape, the victim has suffered
permanent physical mutilation.

People v. Ramos, 296 SCRA 559 (1998); People v. Dimapilis, 300 SCRA 279
38

(1998); People v. Cantos, Sr., 305 SCRA 786 (1999).

Nelita testified that she was born on July 4, 1984, so that on August 11, 1997,
39

when she was raped, she was only 13 years old (TSN, p. 10, Sept. 24, 1997).

40
TSN, p. 4, Sept. 24, 1997.

41
TSN, p. 3, Oct. 2, 1997.

42
Appellee's Brief, pp. 15-16; Rollo 75-76.

See People v. Medina, 300 SCRA 98 (1998); People v. Dimapilis, supra; People
43

v. Cantos, Sr., supra.

44
TSN, p. 3, Sept. 24, 1997.

45
Under Art. 176 of the Family Code, illegitimate children shall use the surname of
their mother.

46
People v. Ching, 240 SCRA 267 (1995).

People v. Alvario, 275 SCRA 529 (1997); People v. Galera, 280 SCRA 492
47

(1997).

48
See People v. Manggasin, G.R. Nos. 130599-600, April 21, 1999, where the
Court lowered the penalty to reclusion perpetua because although the
Information alleged that the accused is the step-father of the complainant, the
evidence showed that the accused and the victim's mother merely lived in a
common-law relationship, hence the accused could not be the step-father of the
complainant, that is, the man who is legally married to the victim's mother after
the death of the victim's biological father.
 49
People v. Bayron, G.R. No. 122732, Sept. 7, 1999.

People v. Antido, 278 SCRA 425 (1997); People v. De Guzman, 265 SCRA 228
50

(1996).

51
People v. Prades, 293 SCRA 411 (1998).

G.R. No. 134631 May 4, 2000

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
BANDY REPOLLO and TOMAS REPOLLO, accused-appellants.

VITUG, J.:

In an Information filed before the Regional Trial Court ("RTC") of Urdaneta, Pangasinan, Branch
46, accused Bandy Repollo and Tomas (a.k.a. Candido) Repollo were charged with murder for
the killing of Alfredo C. Baybayan; viz:

The undersigned accuses BANDY REPOLLO and TOMAS REPOLLO of the

crime of MURDER, committed as follows:

That on or about November 29, 1997 at barangay Nagsaag, San

Manuel, Pangasinan and within the jurisdiction of this Honorable
Court, the above-named accused, armed with a bladed weapon
with intent to kill, treachery evident premeditation and taking
advantage of superior strength, conspiring together, did then and
there wilfully, unlawfully and feloneously held, embrace and stab
Alfredo C. Baybayan, inflicting upon him the following injuries:

— Back-stab wound 2 cm in length penetrating at

the left infra-scapular area.

— 2 stab wounds 2 1/2 cm and 2 cm in length at

the upper 3rd of the vertebra.

which caused the instantaneous death of said Alfredo C.

Baybayan, to the damage and prejudice of his heirs.

CONTRARY to Art. 248, Revised Penal Code, as amended by R.A. 7659. 1

The criminal complaint that initiated the prosecution of the case was filed by the Chief of
Police of San Manuel, Pangasinan, on 16 December 1997 with the 7th Municipal Circuit
Trial Court of Asingan-San Manuel, Pangasinan.

At the arraignment, the two accused pleaded not guilty, and trial thereupon ensued. Following
the presentation of the evidence adduced by the prosecution and the defense, the trial court, in
its decision of 02 July 1998, found both accused guilty beyond reasonable doubt of the crime
with which they were charged and sentenced each of them to suffer the penalty of death. The
trial court adjudged:

WHEREFORE, JUDGMENT of CONVICTION beyond reasonable doubt is

hereby rendered CONVICTING BANDY REPOLLO and TOMAS @ CANDIDO
REPOLLO of the crime of MURDER, an offense defined and penalized under
Article 248, Revised Penal Code in relation to Republic Act 7659 aggravated by
 treachery, the Court hereby sentences Bandy Repollo and Tomas @ Candido
Repollo to suffer the penalty of DEATH to be implemented in the manner
provided for by law. Ordering the accused to reimburse the heirs of Alfredo
Baybayan to pay the sum of P64,700.00 as actual damages plus P50,000.00 for
moral damages and P20,000.00 as exemplary damages.

The Clerk of Court is hereby ordered to transmit the records of this case to the
Honorable Supreme Court of the Philippines for automatic review, and to prepare
the Mittimus immediately.

The Warden, Bureau of Jail Management and Penology (BJMP) is hereby

ordered to deliver the accused to the National Bilibid Prisons, Muntinlupa, Manila,
with proper escort and security immediately.

SO ORDERED. 2

The death penalty having been imposed, the case has been elevated to this Court for automatic
review. In their brief, accused-appellants make the standard and general ascription that the trial
court has erred in not acquitting them on the ground of the failure of the prosecution to establish
their guilt beyond reasonable doubt and in not finding that they, in fact, have established a
meritorious defense.

The evidence, culled from the records, consists mainly of the testimony of witnesses tendered, in
one version, by the prosecution and, in another, by the defense.

For the Prosecution:

On 29 November 1997, at about nine o'clock in the evening, the victim Alfredo C. Baybayan,
along with his wife Mercedes, attended the wake of the late Aurelia Ramos at the house of
Councilor Loreto Ramos in Sitio Saringit. Among the several persons in attendance were Tomas
and Bandy Repollo (herein appellants), Councilor Mario Faustino, Manuel Diaz and Virgilio
Galamgam. After paying his last respects, Alfredo joined the group then playing the "Lucky Nine"
card game. Behind Alfredo was Mercedes. Manuel watched the players a few meters away.
Later in the game, Mario Faustino took a break from watching the game to relieve himself.
Approximately four meters away from the place where the game was being held, Mario Faustino
saw Tomas Repollo and Bandy Repollo reeking of liquor and appearing to be in wait for
someone. When Mario came back, Alfredo got up and walked past his wife casually telling her
that he would urinate. Mercedes noticed that Tomas and Bandy hastily went to follow her
husband and then, from a distance of about three meters, she saw Tomas catch up with her
husband and hold the latter's hands above elbow level. Forthwith, Bandy stabbed Alfredo thrice
at the back. Just as Alfredo had slumped to the ground, Tomas and Bandy scampered away.
Responding to the instant cries of Mercedes, Mario Faustino ran towards the same spot where
Mario had seen Tomas and Bandy. Mario saw Alfredo dripping blood and apparently lifeless.
Meanwhile, Virgilio Galamgam announced over the microphone that somebody had been
stabbed causing the people at the wake to panic and leave the place except for the close
relatives of deceased Aurelia Ramos. Mercedes desperately attempted to revive her husband.
The latter was brought to the Sacred Heart Hospital where he was pronounced "dead on arrival."
Mario reported the incident to the police. In her statement, Mercedes pointed to Tomas and
Bandy as being the assailants of her husband. 3

The next day, 30 November 1997, PO3 Dominador Urbiztondo, Jr., and PO3 Avelino Sandi of
the Philippine National Police ("PNP") stationed at San Manuel, Pangasinan, repaired to the
scene of the crime and found bloodstains on the premises. On the basis of the information given
by Mario Faustino and Loreto Ramos, and with the help of Barangay Captain Marciano Alvarado,
the two police officers interviewed Tomas and Bandy Repollo, Rogelio Alvarado and Marcial
Alvarado. On 03 December 1997, in a follow-up investigation conducted by SPO1 Joselito
Sagles in the house of Barangay Captain Marciano Alvarado, Tomas Repollo admitted having
been at the wake when the stabbing incident occurred. Bandy, on the other hand, said that he
did not leave his house that night.

Dr. Asuncion Tuvera, a rural health physician of San Manuel, Pangasinan, who conducted the
autopsy on the body of the victim, found the latter to have suffered from three fatal stab wounds
delivered from behind. In the autopsy report, 4 as well as in the death certificate, 5 Tuvera
indicated the cause of death of Alfredo to be "cardio-respiratory arrest — severe internal
hemorrhage."

For the Defense:

Lorenzo Paguyo testified as having been one among those present at the Ramos wake watching
the "Lucky Nine" card game. He did not actually see the actual stabbing incident but just as he
heard the announcement of Galamgam that somebody was stabbed, he saw Alfredo walking in a
"zigzag manner" until he fell to the ground. 6He tarried for about 10 more minutes after Alfredo
was brought to the hospital. Bandy Repollo and Tomas Repollo were still at the scene of the
incident when he left.

Manuel Diaz stated that on the night of 29 November 1997, he went to the wake in the company
of Tomas Repollo and Bandy Repollo. He watched the card game and beside him was Tomas
Repollo. After about 15 minutes, Alfredo arrived and greeted him with a pat on his shoulder,
followed by a hug. Alfredo joined the card game. He saw Bandy Repollo approach Tomas for
some money to buy balut but Tomas ignored Bandy. Alfredo played the game for about 25 to 30
minutes and then left to urinate. Moments later, he heard an announcement made by Galamgam
that someone had been stabbed. The victim turned out to be Alfredo Baybayan. Manuel did not
see how the incident happened. The witness, in answer to the query of the Court, "Was it Bandy
who stabbed him (Alfredo)," answered, "I am not sure sir;" and to the next question, what "about
Tomas Repollo," the witness replied, "Tomas did not stab him because he was beside me, sir." 7

Testifying in his defense, accused Tomas (Candido) Repollo admitted that he was at the Ramos
wake on 29 November 1997, at seven o'clock in the evening, together with Alex Alvarado, Noel
Alvarado, Rod Alvarado, Jose Alvarado, Bandy Repollo and Manuel Diaz. He saw Alfredo later
come in, talk to and embrace Manuel Diaz, and then participate in the card game. After some
minutes, Alfredo got up and left the game. When Alfredo returned he was walking "as if drunk"
until he fell to the ground. When Galamgam announced the stabbing incident, he was beside
Manuel Diaz, and Bandy. He and Bandy went home afterwards at around ten o'clock that
evening.

Bandy Repollo denied having stabbed Alfredo and had no idea who did it. He arrived at the place
at eight o'clock in the evening, together with Candido Repollo, Marcial Alvarado, Alex Alvarado,
Rogelio Alvarado, Jose Alvarado and Manuel Diaz. He was watching the card game about three
meters away from the place where his uncle (Tomas) and Manuel Diaz were conversing.
Moments after Alfredo had left the card game, he heard Pepe Galamgam announce over the
microphone that somebody was stabbed. Alfredo was then seen walking awkwardly until he fell
to the ground. The card players soon resumed the game which he, along with Tomas Repollo
and Manuel Diaz, continued to watch. When the victim was brought out of the yard, he and his
companions left for home.

Evaluating the foregoing evidence respectively offered by the prosecution and the defense, the
trial court ruled against accused-appellants. Finding the latter both guilty beyond reasonable
doubt of murder, aggravated by treachery, the court a quo, per its judgment aforequoted,
imposed the penalty of death.

In arguing for their acquittal, accused-appellants assail the testimony of Mercedes Baybayan for
being biased and uncorroborated and claim that the filing of murder charges against them is a
mere "product of guesswork and not based on solid evidence." Insisting that Mercedes did not
witness the stabbing of her husband, accused-appellants point out that Mario Faustino, who
could have been in the best position to witness the incident, has failed to specifically implicate
them to the crime.

The appeal basically boil down to the issue of credibility. Let it be said at the outset that the Court
will not hesitate to superimpose its own judgment over that of the trial court in passing upon the
credibility of witnesses if there should appear a clear case of misapprehension by the latter of
significant facts or circumstances that, otherwise, can warrant a completely variant
result. 8 Bearing this possibility in mind, the Court has closely reviewed the records; unfortunately
for the accused-appellants, it finds not enough justification to reject and reverse the assessment
made by the trial court. The records, in fact, appear to adequately substantiate the findings of the
trial court in holding that —

Mercedes S. Baybayan, was clear and positive, unswerving and sure that she
saw her husband (Alfredo) left the card game table in the wake of Aurelia Ramos
at the house of Loreto Ramos at Brgy. Nagsaag, San Manuel, Pangasinan on
November 29, 1997 at about 9:00 P.M. — followed by Bandy Repollo and Tomas
@ Candido Repollo. Afterwards, Tomas held the two (2) hands of Baybayan
above his elbow, thereafter, Bandy stabbed Alfredo Baybayan's back three (3)
times hitting Alfredo which caused him to fall to the ground. Alfredo Baybayan
died as a result of the three (3) stabbing blows that he sustained. 9

The failure of Mercedes to disclose right away to the police the identity of the malefactors could
scarcely impair her credibility. 10 She explained that her mind was still "much disturbed" after the
stabbing to death of her husband; nonetheless, she was positive that accused-appellants, whom
she had known for a long time, were the malefactors who attacked her husband. She saw the
episode unfold before her eyes since the place was well-lighted.

The eyewitness account of Mercedes was corroborated by the physical evidence appearing in
the AUTOPSY REPORT, dated 30 November 1997, of Dr. Asuncion Tuvera, i.e.; that the victim
was stabbed three times at his back. The inaccurate date of October 1997 appearing in the
transcript of stenographic notes, capitalized by accused-appellants to discredit Dr. Tuvera's
testimony, was clearly a mere typographical error. The written autopsy report itself, Exhibit "D,"
would show that the autopsy was conducted in the house of the deceased on 30 November 1997
at 10:30 a.m., and not in October 1997 per the stenographic notes. 11

The argument that Mercedes, being the widow of the victim, makes her testimony unreliable is
tangential. Just to the contrary, her testimony can be far more credit-worthy than not because her
natural interest to bring to justice the real perpetrators, a matter of fact that certainly would be
incompatible with accusing anyone other than the real culprits themselves. 12

It is the defense account of the case that the Court finds to be much less than credible.

Tomas Repollo testified that Bandy Repollo stayed behind and continued to watch the card game
that he said had resumed. Bandy Repollo, on his part, averred that after it was announced over
the microphone that someone had been stabbed, the card players simply looked at the victim
and, apparently unperturbed, resumed playing, while he remained in his place and went on to
watch the game. The trial court did not err in rejecting this unusual version of the incident.

Conspiracy between the appellants to kill the victim was adequately shown by their overt acts.
Just as he left the card game, Alfredo Baybayan was pursued by accused-appellants. Catching
up with Alfredo, Tomas (Candido) Repollo held the victim by the elbow in order to allow Bandy
Repollo to attack from behind and to strike at the unsuspecting victim.
The trial court was correct in its disquisition that the qualifying circumstance of treachery
attended the crime. To quote:

The killing was attended by treachery. For treachery to exist, it must be

established that the means, method or manner of execution of the offense was
deliberately and consciously adopted in order to make it possible or difficult for
the victim to defend himself or to retaliate, People v. Castro, 117 SCRA 1018.
The attendance of treachery as a qualifying circumstance is founded upon the
concurrence of two (2) conditions:

1. The employment of means, method or manner of execution which would

ensure the offender's safety from any defensive or retaliatory act on the part of
the offended party, which means that no opportunity is given the latter to defend
himself or to retaliate; and

2. That such means, method or manner of execution deliberately or consciously

chosen. People v.Ganut, 118 SCRA 46.

In the instant case, the fact that Tomas @ Candido Repollo held the two (2)
hands of Alfredo Baybayan above his elbow in order to ensure that Bandy would
deliver the fatal blows and in fact he did deliver the three (3) stabbing blows from
behind hitting the back of Alfredo Baybayan which caused his death. Alfredo
under the situation could not retaliate or defend himself from the attack of Bandy
Repollo because his two hands were held by Tomas @ Candido. The attack
"came without warning, was swift, deliberate and unexpected, and afforded the
helpless, unarmed and unsuspecting victim no chance to resist or escape, and
this is the essence of treachery. 1

The sudden and unexpected attack by the two appellants, who positioned themselves
with one in front and the other at the back of the victim immediately holding the latter's
two hands and then delivering the fatal blows from behind, rendered the victim
completely defenseless and ensured the commission of the crime without risk to the
malefactors. The aggravating circumstance of "taking advantage of superior strength,"
although present, could not be so appreciated as an independent aggravating
circumstance, it being absorbed by treachery. 14

Evident premeditation has not been adequately established. Evident premeditation exists when
the execution of the criminal act is preceded by cool thought and reflection upon the resolution to
carry out the criminal intent during the space of time sufficient to arrive at a calm judgment.
Premeditation, to be considered, must be evident and so proved with equal certainty and clarity
as the crime itself. It is essential that the following elements should there concur: (1) the time
when the offender has determined to commit the crime, (2) an act manifestly indicating that the
culprit has clung to his determination and, (3) a sufficient interval of time between the
determination and the execution of the crime has lapsed to allow him to reflect upon the
consequences of his act. 15 These requirements are not extant in the case.

The penalty prescribed by law for murder, the qualifying circumstance of treachery having
attended the killing, is reclusion perpetua to death. There being no ordinary aggravating
circumstance that can still be appreciated in this case, the penalty of death imposed by the trial
court on the appellants must be reduced to the minimum of the penalty, i.e., reclusion perpetua. 16

The trial court has ordered accused-appellants to pay the heirs of Alfredo Baybayan the sum of
P64,700.00 as actual damages plus P50,000.00 for moral damages and P20,000.00 as
exemplary damages. We have previously ruled that actual damages, to be awarded, must be
supported by evidence. 17 The trial court has found Mercedes Baybayan to have spent
P64,700.00 for the burial of Alfredo Baybayan. It appears, however, that the prosecution, in
support of its prayer for actual damages, has merely presented a bond paper, Exhibit "B,"
containing a list of the "expenses" allegedly "incurred after the death of Alfredo C.
Baybayan." 18 For failing to prove the ACTUAL AMOUNT of the damages with any reasonable
degree of certainty, the Court is in no position to uphold the award of P64,700.00, except with
respect to the claims supported by receipts — (1) Myrna Valena Funeral Parlor Official Receipt
No. 1212, (P36,000.00) and (2) Nicolas Band Memorandum Receipt (P6,000.00) — for a total of
P42,000.00. Mercedes Baybayan has testified having suffered from anxiety and been unable to
sleep and eat, or to attend to her work and regular duties, due to the untimely and felonious
death of her husband. The Court finds the amount of P50,000.00 moral damages awarded by the
trial court as being reasonable. There being no aggravating circumstance independently
established, however, the exemplary damages awarded by the trial court cannot be held to be
warranted by law.

WHEREFORE, the appealed judgment is AFFIRMED with MODIFICATION by reducing the

penalty of death imposed by the trial court to RECLUSION PERPETUA; likewise, in conformity
with the foregoing disquisition, Tomas (Candido )and Bandy Repollo are ordered to pay the heirs
of the victim, Alfredo Baybayan, the amounts of P50,000.00 as death indemnity, P42,000.00 as
actual or compensatory damages, and P50,000.00 as moral damages, all without subsidiary
imprisonment in case of insolvency.

SO ORDERED.

Davide, Jr., C.J., Bellosillo, Puno, Mendoza, Panganiban, Quisumbing, Pardo, Buena, Gonzaga-
Reyes, Ynares-Santiago and De Leon, Jr., JJ., concur.

Melo, Kapunan and Purisima, JJ., no part — abroad.

Footnotes

1
Records, p. 29.

2
Rollo, pp. 30-31.

3
TSN, 27 April 1998, pp. 10 and 18.

4
Exh. D, Records, p. 6.

5
Exh. F, Records, p. 7.

6
TSN, 14 May 1998, pp. 4-6.

7
TSN, 20 May 1998, pp. 2-9.

8
People vs. Nang, 289 SCRA 16.

9
Rollo, p. 84.

10
People vs. Lapay, 298 SCRA 62.

11
See Records, p. 6.

People vs. Montero, Jr., 277 SCRA 194; People vs. Salvame, 270 SCRA 766;
12

People vs. Oliano, 287 SCRA 158.

 13
Rollo, pp. 29-30.

Revised Penal Code, Aquino, Vol. I, 1997 Edition, pp. 386-387; citing the cases
14

of Jamino, 3 Phil. 102; Bastas, 5 Phil. 251, Vitug, 17 Phil. 1; Domingo and Dolor,
18 Phil. 250; Estopia, 28 Phil. 97; Redoña, 87 Phil. 743; Develos, 122 Phil. 1145;
Agustin, 123 Phil. 301; Reyes, 126 Phil. 667; Nabual, 28 SCRA 747; Lumantas,
28 SCRA 764; Layson, 30 SCRA 92; Abletes, 58 SCRA 241.

15
People vs. Manalili, 294 SCRA 220; People vs. Gatchalian, 300 SCRA 1.

16
People vs. Viovicente, 286 SCRA 1.

17
People vs. Nialda, 289 SCRA 521.

18
Records, p. 86.

G.R. No. 140560 May 4, 2000

JOVITO O. CLAUDIO, petitioner,

vs.
COMMISSION ON ELECTIONS, DEPARTMENT OF BUDGET AND MANAGEMENT,
COMMISSION ON AUDIT and RICHARD ADVINCULA, respondents.

G.R. No. 140714 May 4, 2000

PREPARATORY RECALL ASSEMBLY OF PASAY CITY, herein represented by its

Chairman, RICHARD ADVINCULA, petitioner,
vs.
THE COMMISSION ON ELECTIONS, DEPARTMENT OF BUDGET AND MANAGEMENT,
COMMISSION ON AUDIT and HON. JOVITO O. CLAUDIO, respondents.

MENDOZA, J.:

These are petitions arising from the proceedings initiated by the Preparatory Recall Assembly of
Pasay City (PRA) in the Commission on Elections in E.M. No. 99-005 entitled IN THE MATTER
OF THE PREPARATORY RECALL ASSEMBLY RESOLUTION NO. 01, S-1999 ADOPTED ON
29 MAY 1999 FOR THE RECALL OF MAYOR JOVITO CLAUDIO OF PASAY CITY. G.R. No.
140560 is a petition for certiorari and prohibition, seeking the nullification of the resolution, 1 dated
October 18, 1999, of the COMELEC giving due course to the petition for the recall of petitioner
Jovito O. Claudio as mayor of Pasay City. On the other hand, G.R. No. 140714 is a petition
for mandamus filed by the PRA, represented by its Chair, Richard Advincula, to compel the
COMELEC to set the date for the holding of recall elections in Pasay City pursuant to the
aforecited resolution of the COMELEC.

The facts are as follows:

Jovito O. Claudio, petitioner in G.R. No. 140560, was the duly elected mayor of Pasay City in the
May 11, 1998 elections. He assumed office on July 1, 1998.

Sometime during the second week of May 1999, the chairs of several barangays in Pasay City
gathered to discuss the possibility of filing a petition for recall against Mayor Claudio for loss of
confidence. On May 19, 1999, at the residence of barangay chair Benjamin Lim, Jr. in Barangay
11, Zone 4, Pasay City, several barangay chairs formed an ad hoc committee for the purpose of
convening the PRA. Richard Advincula, private respondent in G.R. No. 140560 and petitioner in
G.R. No. 140714, was designated chair.

On May 29, 1999, 1,073 members of the PRA composed of barangay chairs, kagawads, and
sangguniang kabataan chairs of Pasay City, adopted Resolution No. 01, S-1999, entitled
RESOLUTION TO INITIATE THE RECALL OF JOVITO O. CLAUDIO AS MAYOR OF PASAY
CITY FOR LOSS OF CONFIDENCE. In a letter dated June 29, 1999, Advincula, as chair of the
PRA, invited the Mayor, Vice-Mayor, Station Commander, and thirteen (13) Councilors of Pasay
City to witness the formal submission to the Office of the Election Officer on July 2, 1999 of the
petition for recall.

As scheduled, the petition for recall was filed on July 2, 1999, accompanied by an affidavit of
service of the petition on the Office of the City Mayor. Pursuant to the rules of the COMELEC,
copies of the petition were posted on the bulletin boards of the local COMELEC office, the City
Hall, the Police Department, the public market at Libertad St. and Taft Avenue, and at the
entrance of the Sta. Clara Church on P. Burgos St., all in Pasay City. Subsequently, a verification
of the authenticity of the signatures on the resolution was conducted by Ligaya Salayon, the
election officer for Pasay City designated by the COMELEC.

Oppositions to the petition were filed by petitioner Jovito O. Claudio, Rev. Ronald Langub, and
Roberto L. Angeles, alleging procedural and substantive defects in the petition, to wit: (1) the
signatures affixed to the resolution were actually meant to show attendance at the PRA meeting;
(2) most of the signatories were only representatives of the parties concerned who were sent
there merely to observe the proceedings; (3) the convening of the PRA took place within the one-
year prohibited period; (4) the election case, 2 filed by Wenceslao Trinidad in this Court, seeking
the annulment of the proclamation of petitioner Claudio as mayor of Pasay City, should first be
decided before recall proceedings against petitioner could be filed; and (5) the recall resolution
failed to obtain the majority of all the members of the PRA, considering that 10 were actually
double entries, 14 were not duly accredited members of the barangays, 40 sangguniang
kabataan officials had withdrawn their support, and 60 barangay chairs executed affidavits of
retraction.

In its resolution of October 18, 1999, the COMELEC granted the petition for recall and dismissed
the oppositions against it. On the issue of whether the PRA was constituted by a majority of its
members, the COMELEC held that the 1,073 members who attended the May 29, 1999 meeting
were more than necessary to constitute the PRA, considering that its records showed the total
membership of the PRA was 1,790, while the statistics of the Department of Interior and Local
Government (DILG) showed that the total membership of the PRA was 1,876. In either case,
since only a majority is required to constitute the PRA, clearly, a majority had been obtained in
support of the recall resolution. Based on the verification made by election officer Ligaya
Salayon, the COMELEC found the signatures of 958 members of the PRA sufficient. On whether
the pendency of the case questioning the proclamation of petitioner was a prejudicial question
which must first be decided before any recall election could be held, the COMELEC ruled that it
was not and that petitioner was merely using the pendency of the case to delay the recall
proceedings. Finally, on whether the petition for recall violated the bar on recall within one year
from the elective official's assumption of office, the COMELEC ruled in the negative, holding that
recall is a process which starts with the filing of the petition for recall. Since the petition was filed
on July 2, 1999, exactly one year and a day after petitioner Claudio's assumption of office, it was
held that the petition was filed on time.

Hence, these petitions. Oral arguments were held in these cases in Baguio City on April 4, 2000,
after which the Court, by the vote of 8 to 6 of its members, 3 resolved to dismiss the petition in
G.R. No. 140560 for lack of showing that the COMELEC committed a grave abuse of discretion.
On the other hand, the Court unanimously dismissed the petition in G.R. No. 140714 on the
ground that the issue raised therein had become moot and academic.
We now proceed to explain the grounds for our resolution.

In its Resolution No. 3121, dated March 9, 2000, the COMELEC set the date of the recall
elections in Pasay City on April 15, 2000. Consequently, the petition for mandamus in G.R. No.
140714 to compel the COMELEC to fix a date for the recall elections in Pasay City is no longer
tenable. We are thus left with only petitioner Claudio's action for certiorari and prohibition.

The bone of contention in this case is §74 of the Local Government Code (LCG) 4 which provides:

Limitations on Recall. — (a) Any elective local official may be the subject of a
recall election only once during his term of office for loss of confidence.

(b) No recall shall take place within one (1) year from the date of the official's
assumption to office or one (1) year immediately preceding a regular local
election.

As defined at the hearing of these cases on April 4, 2000, the issues are:

WHETHER, under Section 74 of the Local Government Code of 1991 (R.A. No.
7160) . . . .

A. The word "recall" in paragraph (b) covers a process which includes the
convening of the Preparatory Recall Assembly and its approval of the recall
resolution.

B. The term "regular local election" in the last clause of paragraph (b) includes
the election period for that regular election or simply the date of such election.

(1)

On Whether the Word "Recall" in Paragraph (b) of §74 of the Local Government
Code Includes the Convening of the Preparatory Recall Assembly and the Filing
by it of a Recall Resolution.

Petitioner contends that the term "recall" in §74(b) refers to a process, in contrast to the term
"recall election" found in §74(a), which obviously refers to an election. He claims that "when
several barangay chairmen met and convened on May 19, 1999 and unanimously resolved to
initiate the recall, followed by the taking of votes by the PRA on May 29, 1999 for the purpose of
adopting a resolution "to initiate the recall of Jovito Claudio as Mayor of Pasay City for loss of
confidence," the process of recall began" and, since May 29, 1999 was less than a year after he
had assumed office, the PRA was illegally convened and all proceedings held thereafter,
including the filing of the recall petition on July 2, 1999, were null and void.

The COMELEC, on the other hand, maintains that the process of recall starts with the filing of the
petition for recall and ends with the conduct of the recall election, and that, since the petition for
recall in this case was filed on July 2, 1999, exactly one year and a day after petitioner's
assumption of office, the recall was validly initiated outside the one-year prohibited period.

Both petitioner Claudio and the COMELEC thus agree that the term "recall" as used in §74 refers
to a process. They disagree only as to when the process starts for purposes of the one-year
limitation in paragraph (b) of §74.

We can agree that recall is a process which begins with the convening of the preparatory recall
assembly or the gathering of the signatures at least 25% of the registered voters of a local
government unit, and then proceeds to the filing of a recall resolution or petition with the
COMELEC, the verification of such resolution or petition, the fixing of the date of the recall
election, and the holding of the election on the scheduled date. 5 However, as used in paragraph
(b) of §74, "recall" refers to the election itself by means of which voters decide whether they
should retain their local official or elect his replacement. Several reasons can be cited in support
of this conclusion.

First, §74 deals with restrictions on the power of recall. It is in fact entitled "Limitations on Recall."
On the other hand, §69 provides that "the power of recall . . . shall be exercised by the registered
voters of a local government unit to which the local elective official belongs." Since the power
vested on the electorate is not the power to initiate recall proceedings 6 but the power to elect an
official into office, the limitations in §74 cannot be deemed to apply to the entire recall
proceedings. In other words, the term "recall" in paragraph (b) refers only to the recall election,
excluding the convening of the PRA and the filing of a petition for recall with the COMELEC, or
the gathering of the signatures of at least 25 % of the voters for a petition for recall.

Thus, there may be several PRAs held (as in the case of Bataan Province in 1993) or petitions
for recall filed with the COMELEC — there is no legal limit on the number of times such
processes may be resorted to. These are merely preliminary steps for the purpose of initiating a
recall. The limitations in §74 apply only to the exercise of the power of recall which is vested in
the registered voters. It is this — and not merely the preliminary steps required to be taken to
initiate a recall — which paragraph (b) of §74 seeks to limit by providing that no recall shall take
place within one year from the date of assumption of office of an elective local official.

Indeed, this is the thrust of the ruling in Garcia v. COMELEC 7 where two objections were raised
against the legality of PRAs: (1) that even the power to initiate recall proceedings is the sole
prerogative of the electorate which cannot be delegated to PRAs, and (2) that by vesting this
power in a PRA, the law in effect unconstitutionally authorizes it to shorten the term of office of
incumbent elective local officials. Both objections were dismissed on the ground that the holding
of a PRA is not the recall itself. With respect to the first objection, it was held that it is the power
to recall and not the power to initiate recall that the Constitution gave to the people. With respect
to the second objection, it was held that a recall resolution "merely sets the stage for the official
concerned before the tribunal of the people so he can justify why he should be allowed to
continue in office. [But until] the people render their sovereign judgment, the official concerned
remains in office . . . ."

If these preliminary proceedings do not produce a decision by the electorate on whether the local
official concerned continues to enjoy the confidence of the people, then, the prohibition in
paragraph (b) against the holding of a recall, except one year after the official's assumption of
office, cannot apply to such proceedings.

The second reason why the term "recall" in paragraph (b) refers to recall election is to be found
in the purpose of the limitation itself. There are two limitations in paragraph (b) on the holding of
recalls: (1) that no recall shall take place within one year from the date of assumption of office of
the official concerned, and (2) that no recall shall take place within one year immediately
preceding a regular local election.

The purpose of the first limitation is to provide a reasonable basis for judging the performance of
an elective local official. In the Bower case 8 cited by this Court in Angobung v. COMELEC, 9 it
was held that "The only logical reason which we can ascribe for requiring the electors to wait one
year before petitioning for a recall election is to prevent premature action on their part in voting to
remove a newly elected official before having had sufficient time to evaluate the soundness of his
policies and decisions." The one-year limitation was reckoned as of the filing of a petition for
recall because the Municipal Code involved in that case expressly provided that "no removal
petition shall be filed against any officer or until he has actually held office for at least twelve
months." But however the period of prohibition is determined, the principle announced is that the
purpose of the limitation is to provide a reasonable basis for evaluating the performance of an
elective local official. Hence, in this case, as long as the election is held outside the one-year
period, the preliminary proceedings to initiate a recall can be held even before the end of the first
year in office of a local official.

It cannot be argued that to allow recall proceedings to be initiated before the official concerned
has been in office for one-year would be to allow him to be judged without sufficient basis. As
already stated, it is not the holding of PRA nor the adoption of recall resolutions that produces a
judgment on the performance of the official concerned; it is the vote of the electorate in the
election that does. Therefore, as long as the recall election is not held before the official
concerned has completed one year in office, he will not be judged on his performance
prematurely.

Third, to construe the term "recall" in paragraph (b) as including the convening of the PRA for the
purpose of discussing the performance in office of elective local officials would be to unduly
restrict the constitutional right of speech and of assembly of its members. The people cannot just
be asked on the day of the election to decide on the performance of their officials. The
crystallization and formation of an informed public opinion takes time. To hold, therefore, that the
first limitation in paragraph (b) includes the holding of assemblies for the exchange of ideas and
opinions among citizens is to unduly curtail one of the most cherished rights in a free society.
Indeed, it is wrong to assume that such assemblies will always eventuate in a recall election. To
the contrary, they may result in the expression of confidence in the incumbent.

Our esteemed colleague Justice Puno says in his dissent that the purpose of the one-year period
in paragraph (b) is to provide the local official concerned a "period of repose" during which "[his]
attention should not be distracted by any impediment, especially by disturbance due to political
partisanship." Unfortunately, the law cannot really provide for a period of honeymoon or
moratorium in politics. From the day an elective official assumes office, his acts become subject
to scrutiny and criticism, and it is not always easy to determine when criticism of his performance
is politically motivated and when it is not. The only safeguard against the baneful and enervating
effects of partisan politics is the good sense and self restraint of the people and its leaders
against such shortcomings of our political system. A respite from partisan politics may have the
incidental effect of providing respite from partisanship, but that is not really the purpose of the
limitation on recall under the law. The limitation is only intended to provide a sufficient basis for
evaluating and judging the performance of an elected local official.

In any event, it is argued that the judgments of PRAs are not "as politically unassailable as
recalls initiated directly by the people." Justice Puno cites the "embarrassing repudiation by the
people of [Kaloocan City's] Preparatory Recall Assembly" when, instead of ousting Mayor Rey
Malonzo, they reelected him.

Two points may be made against this argument.

One is that it is no disparagement of the PRA that in the ensuing election the local official whose
recall is sought is actually reelected. Laws converting municipalities into cities and providing for
the holding of plebiscites during which the question of cityhood is submitted to the people for
their approval are not always approved by the people. Yet, no one can say that Congress is not a
good judge of the will of the voters in the locality. In the case of recall elections in Kaloocan City,
had it been shown that the PRA was resorted to only because those behind the move to oust the
incumbent mayor failed to obtain the signatures of 25% of the voters of that city to a petition for
his recall, there may be some plausibility for the claim that PRAs are not as good a gauge of the
people's will as are the 25 % of the voters.

Indeed, recalls initiated directly by 25% of the registered voters of a local government unit cannot
be more representative of the sentiments of the people than those initiated by PRAs whose
members represent the entire electorate in the local government unit. Voters who directly initiate
recalls are just as vulnerable to political maneuverings or manipulations as are those composing
PRAs.

The other point regarding Justice Puno's claim is that the question here is not whether recalls
initiated by 25% of the voters are better. The issue is whether the one-year period of limitation in
paragraph (b) includes the convening of the PRA. Given that question, will convening the PRA
outside this period make it any more representative of the people, as the petition filed by 25% of
the registered voters is claimed to be?

To sum up, the term "recall" in paragraph (b) refers to the recall election and not to the
preliminary proceedings to initiate recall —

1. Because §74 speaks of limitations on "recall" which, according to §69, is a

power which shall be exercised by the registered voters of a local government
unit. Since the voters do not exercise such right except in an election, it is clear
that the initiation of recall proceedings is not prohibited within the one-year period
provided in paragraph (b);

2. Because the purpose of the first limitation in paragraph (b) is to provide voters
a sufficient basis for judging an elective local official, and final judging is not done
until the day of the election; and

3. Because to construe the limitation in paragraph (b) as including the initiation of

recall proceedings would unduly curtail freedom of speech and of assembly
guaranteed in the Constitution.

As the recall election in Pasay City is set on April 15, 2000, more than one year after petitioner
assumed office as mayor of that city, we hold that there is no bar to its holding on that date.

(2)

On Whether the Phrase "Regular Local Election" in the Same Paragraph (b) of
§74 of the Local Government Code includes the Election Period for that Regular
Election or Simply the Date of Such Election.

Petitioner contends, however, that the date set by the COMELEC for the recall election is within
the second period of prohibition in paragraph (b). He argues that the phrase "regular local
elections" in paragraph (b) does not only mean "the day of the regular local election" which, for
the year 2001 is May 14, but the election period as well, which is normally at least forty five (45)
days immediately before the day of the election. Hence, he contends that beginning March 30,
2000, no recall election may be held.

This contention is untenable.

The law is unambiguous in providing that "[n]o recall shall take place within . . . one (1) year
immediately preceding a regular local election." Had Congress intended this limitation to refer to
the campaign period, which period is defined in the Omnibus Election Code, 10 it could have
expressly said so.

Moreover, petitioner's interpretation would severely limit the period during which a recall election
may be held. Actually, because no recall election may be held until one year after the assumption
of office of an elective local official, presumably on June 30 following his election, the free period
is only the period from July 1 of the following year to about the middle of May of the succeeding
year. This is a period of only nine months and 15 days, more or less. To construe the second
limitation in paragraph (b) as including the campaign period would reduce this period to eight
months. Such an interpretation must be rejected, because it would devitalize the right of recall
which is designed to make local government units "more responsive and accountable."

Indeed, there is a distinction between election period and campaign period. Under the Omnibus
Election Code, 11unless otherwise fixed by the COMELEC, the election period commences ninety
(90) days before the day of the election and ends thirty (30) days thereafter. Thus, to follow
petitioner's interpretation that the second limitation in paragraph (b) includes the "election period"
would emasculate even more a vital right of the people.

To recapitulate the discussion in parts 1 and 2, §74 imposes limitations on the holding of recall
elections. First, paragraph (a) prohibits the holding of such election more than once during the
term of office of an elective local official. Second, paragraph (b) prohibits the holding of such
election within one year from the date the official assumed office. And third, paragraph (b)
prohibits the holding of a recall election within one year immediately preceding a regular local
election. As succinctly stated in Paras v. COMELEC, 12 "[p]aragraph (b) construed together with
paragraph (a) merely designates the period when such elective local official may be subject to
recall election, that is, during the second year of office."

(3)

On Whether the Recall RESOLUTION was Signed by a Majority of the PRA and
Duly Verified.

Petitioner alleges other grounds for seeking the annulment of the resolution of the COMELEC
ordering the holding of a recall election. He contends that a majority of the signatures of the
members of the PRA was not obtained because 74 members did not really sign the recall
resolution. According to petitioner, the 74 merely signed their names on pages 94-104 of the
resolution to signify their attendance and not their concurrence. Petitioner claims that this is
shown by the word "Attendance" written by hand at the top of the page on which the signatures
of the 74 begin.

This contention has no basis. To be sure, this claim is being raised for the first time in this case.
It was not raised before the COMELEC, in which the claim made by petitioner was that some of
the names in the petition were double entries, that some members had withdrawn their support
for the petition, and that Wenceslao Trinidad's pending election protest was a prejudicial question
which must first be resolved before the petition for recall could be given due course. The order of
the COMELEC embodying the stipulations of the parties and defining the issues to be resolved
does not include the issue now being raised by petitioner.

Although the word "Attendance" appears at the top of the page, it is apparent that it was written
by mistake because it was crossed out by two parallel lines drawn across it. Apparently, it was
mistaken for the attendance sheet which is a separate document. It is absurd to believe that the
74 members of the PRA who signed the recall resolution signified their attendance at the meeting
twice. It is more probable to believe that they signed pages 94-104 to signify their concurrence in
the recall resolution of which the pages in question are part.

The other point raised by petitioner is that the recall petition filed in the COMELEC was not duly
verified, because Atty. Nelson Ng, who notarized it, is not commissioned as notary public for
Pasay City but for Makati City. As in the case of the first claim, this issue was not raised before
the COMELEC itself. It cannot, therefore, be raised now.

WHEREFORE, G.R. No. 140560 is DISMISSED for lack of merit, while the petition in G.R. No.
140714 is DISMISSED for having been rendered moot and academic.

SO ORDERED.
Davide, Jr., C.J., Bellosillo, Quisumbing, Buena, Gonzaga-Reyes and Ynares-Santiago, JJ.,
concur.

Melo, J., is on leave.

Puno, J., see dissent.

Vitug, J., I also reiterate my separate opinion in the resolution of 5 Apr. 2000.

Kapunan, J., See attached separate and dissenting opinion.

Panganiban, J., I joined the dissents of JJ. Puno and Kapunan.

Pardo, J., I join J. Puno in dissent.

De Leon Jr., J., I join the dissenting opinion of Justice R.S. Puno.

Separate Opinions

PUNO, J., dissenting opinion;

The cases at bar are one of first impression. At issue is the meaning of Section 74 (b) of the
Local Government Code which provides: "No recall shall take place within one (1) year from the
date of the official's assumption to office or one (1) year immediately preceding a regular local
election." Our interpretation of this provision is significant for, to a large extent, it will determine
the use or misuse of the right of recall. The right of recall is part of the cutting edge of the sword
of the sovereignty of our people, and its exercise should be shielded from abuses.

I begin with the baseline proposition that the proper interpretation of Section 74 (b) of the Local
Government Code should depend on the edifying intent of our legislators. With due respect to the
majority, I wish to express my humble reading of the intent of our lawmakers, when they
engrafted the people's right of recall in the corpus of an laws. Our search should start with the
Constitution which provides the matrix of our rights. All our fundamental laws 1 set in stone the
principle that "the Philippines is a democratic and republican State. Sovereignty resides in the
people and all government authority emanates from them." An important component of this
sovereign power is the right of the people to elect officials who will wield the powers of
government i.e., the power to make laws and the power to execute laws. These powers are
enormous and in the wrong hands can wreak havoc to the people. Our laws therefore regulate
their exercise. Among others, they set minimum qualifications for candidates to elective public
office. They safeguard the integrity of the procedure of electing these candidates. They also
established an independent COMELEC to enhance the laboratory conditions under which
elections must be conducted.

Over the years, however, the country experienced the defilement of these ideals. The wrong
officials were able to win the scepters of power, the sanctity of our election process has been
breached, and unscrupulous politicians perpetuated themselves in public office. The authoritarian
regime that prolonged its reign from 1972 to 1986 demonstrated the need to address these
problems with greater resolve. Various schemes were installed in the 1987 Constitution and our
statutes. Among them are the provisions limiting terms of offices, banning political dynasties,
strengthening the power and independence of the COMELEC, sharpening the accountability of
public officials and institutionalizing the power or the people to recall their elected officials.

In the ground breaking case of Garcia v. COMELEC 2 we traced the metamorphosis of the
people's right of recall from its diaper days. In Angobung v. COMELEC 3 we articulated the
rationale of the right of recall, viz.:
. . . While recall was intended to be an effective and speedy remedy to remove an
official who is not giving satisfaction to the electorate regardless of whether or not
he is discharging his full duty to the best of his ability and as his conscience
dictates, it is a power granted to the people who, in concert, desire to change
their leaders for reasons only they, as a collective, can justify. In other words,
recall must be pursued by the people, not just by one disgruntled loser in the
elections or a small percentage of disenchanted electors. Otherwise, its purpose
as a direct remedy of the people shall be defeated by the ill motives of a few
among them whose selfish resort to recall would destabilize the community and
seriously disrupt the running of government.

A scrutiny of the rationale underlying the time bar provisions and the percentage
of minimum voter requirement in America recall statutes, unmistakably reveals
the vigilance of lawmakers against the abuse of the power of recall. For instance,
the Supreme Court of Illinois held in the case of In Re Bower that:

[t]he only logical reason which we can ascribe for requiring the
electors to wait one year before petitioning for a recall election is
to prevent premature action on their part in voting to remove a
newly elected official before having had sufficient time to evaluate
the soundness of his political policies and decisions. We view the
statutory provision requiring the number of petition signers to
equal at least 45% of the total votes cast in the last general
election for mayor as a further attempt to insure that an official will
not have to defend his policies against frivolous attacks launched
by a small percentage of disenchanted electors.

Along the same lines, the Supreme Court of Colorado held in the case
of Bernzen v. City of Boulderthat:

[t]he framers, by requiring that a recall petition contain the

signatures of at least 25% of all votes cast in the last election for
all candidates for the position which the person sought to be
recalled occupies, assured that a recall election will not be held in
response to the wishes of a small and unrepresentative minority.
However, once at least 25% of the electorate have expressed
their dissatisfaction, the constitution reserves the recall power to
the will of the electorate.

And in the case of Wallace v. Tripp, the Supreme Court of Michigan echoed the
foregoing posturings in this wise:

Much of what has been said to justify a limit upon recall clearly
not provided or contemplated by the Constitution has revealed
fears about an irresponsible electorate . . . A much cited
Nebraska case pertaining to a Nebraska recall statute provides
some answers which are equally applicable to the Michigan
constitutional right of recall:

. . . Doubtless the provision requiring 30 per cent of the electors to

sign the petition before the council [is[ compelled to act was
designed to avoid such a contingency. The Legislature apparently
assumed that nearly one-third of the electorate would not entail
upon the taxpayers the cost of an election unless the charges
made approved themselves to their understanding and they were
 seriously dissatisfied with the services of the incumbent of the
office.

In fine, democratic experience, here and abroad, shows that the right of recall is a double-edged
sword. Rightly used, it can promote the greater good. Wrongly used, it can result in greater evil.
There are recalls as pointed out in Angobung that should be avoided: (1) recalls borne by the ill
motive of a few; (2) recalls that disrupt the smooth running of government; and (3) recalls that
destabilize the local government unit. The standard mechanisms in recall statutes to avoid these
evils are: (1) the setting of a waiting period before a petition for recall can be initiated, and (2) the
fixing of a minimum percentage of voters signatures to kickstart a petition for recall. As clearly
explained in Bowers, the reason for fixing a waiting period is "to prevent premature action on
their part in voting to remove a newly elected official before having had sufficient time to evaluate
the soundness of his political policies and decisions." On the other hand, the reason for requiring
a minimum number of voters signatures is "to insure that an official will not have to defend his
policies against frivolous attacks launched by a small percentage of disenchanted electors." It will
further avoid expenditure of public funds for frivolous elections.

I like to focus on the one-year waiting period provided by Section 74 (b) which is the bedrock
issue in the cases at bar. Beyond debate, the ideal interpretation of the waiting period must bring
about this pristine purpose — — — to give the voters a sound basis for their decision to recall or
not to recall an official whom they have elected just a year ago. The sound basis cannot exist in a
vacuum. "Sound basis requires affording the official concerned a fair and reasonable opportunity
to accomplish his program for the people. By no means will there be a reasonable opportunity if
from Day One after assumption of office, the process of recall can already be initiated against
said official. For it cannot be gainsaid that the more disquieting and destabilizing part of recall is
its initiation more than the recall election itself. It is in the too early initiatory process where the
baseless criticisms and falsehoods of a few are foisted on the many. Premature initiatives to
recall an official are resisted with stronger vim and venom. The reasons are obvious to those
whose political innocence has long been slain. The incumbent would not like to lose power just
recently won. The challenger, often a loser in the previous election, would not want to lose a
second time. To allow early recall initiative is to encourage divisive, expensive; wasteful politics.
It will also put a premium on the politics of compromise — — — the politics where public interest
always comes out second best.

With due respect, the interpretation made by the majority of Section 74 (b) of the Local
Government Code, which will countenance recall initiatives right on Day One after an official
starts his term of office, will breed these political evils. To be sure, the interpretation is based on
a narrow rationale and cannot inspire assent. It starts from the premise that recall is a power
given to registered voters and "since the voters do not exercise such right except in an election, it
is clear that the initiation of recall proceedings is not prohibited within the one-year period"
provided by law. The reasoning is based on the misleading perception that the only participation
of the people in recall is on election day when they cast their vote electing or rejecting an
incumbent. But the role of the people in recall is not limited to being the judge on election day. In
truth, the people participate in the initiation of the recall process. There are two (2) kinds of recall
— — — recall initiated directly by the people and recall initiated by the people thru the
Preparatory Recall Assembly (PRA). In recall initiated by the people, it is self-evident that the
people are involved from beginning to the end of the process. But nothing less is true in recall
initiated by the PRA. In Garcia, 4 we scoured the history of recall and we held: "[p]etitioners have
misconstrued the nature of the initiatory process of recall by the PRAC. They have embraced the
view that initiation by the PRAC is not initiation by the people. This is a misimpression for
initiation by the PRAC is also initiation by the people, albeit done indirectly through their
representatives." We further ruled that "the members of the PRAC are in the PRAC not in
representation of their political parties but as representatives of the people." 5

There is another reason why I do not share the majority ruling that the one-year waiting period is
a limitation on the right of the people to judge an incumbent on election day itself but not a
limitation on their right to initiate the recall process. I submit that the rationale for fixing the
election day one year after assumption of office is different from the rationale for prohibiting
premature recall initiative. The rationale of the first is for the benefit of the people, to give them
sufficient time to assess intelligently the performance of an incumbent. The rationale of the
second is for the benefit of the incumbent, to give him a fair chance to govern well, to serve the
people minus the unnecessary distractions from the itch of too much politics. The ruling of the
majority recognizes the rationale of the first but not the rationale of the second. Its ruling that
sanctions too early a recall initiative, and worse, that allows endless recall initiatives will deprive
an incumbent a fair opportunity to prove himself thru the politics of performance.

The majority also holds that "to construe the limitation in paragraph (b) as including the initiation
of recall proceedings would unduly curtail freedom of speech and assembly." Again, I beg to
disagree. A dredging even of the subterranean meanings of freedom of speech and assembly
will not yield this result. It is one thing to postulate that during the one-year waiting period the
people cannot legally start a recall process. It is entirely non sequitur to add that during the said
period, the people's freedom of speech and freedom of assembly are suspended. These rights
are in no way restricted for critical speeches during the one-year waiting period cam serve as
valuable inputs in deciding after the said period whether to initiate the recall process. They will
assume more importance in the recall election date itself. To stress again, what the law deems
impermissible is formally starting the recall process right after Day One of an incumbent's term of
office for the purpose of ending his incumbency, an act bereft of any utility.

In my Preliminary Dissenting Opinion, I purveyed the view that the one-year waiting period is a
period of repose, of respite from divisive politics in order to give whoever is the sovereign choice
of the people a fair chance to succeed in public service. Rejecting this view, the majority holds
that "unfortunately, the law cannot really provide for a period of honeymoon or moratorium in
politics." With due respect, the ruling betrays historical amnesia. By no means is the one-year
waiting period a new, startling legal mechanism. This legal mechanism has long been installed to
regulate our labor-management relations, a volatile relationship, then and now. One of the areas
of concern in labor-management relations relates to the choice of employee representative who
shall bargain with the employer on the terms and conditions of employment. The choice of the
representative is determined in a certification election, a democratic exercise often forcefully
contested by unions for at stake is enormous power, both political and economic. In the infant
years of our labor-management relations, these representatives were the objects of frequent
change thru repeated petitions for new certification elections. These repeated petitions for
certification elections weakened employee representatives and resulted in instability in labor-
management relations. The instability had a debilitating effect on the economy. As a remedial
measure, the Industrial Peace Act insulated the term of the employee representative from
change for one year. This is known as the certification year rule pursuant to which no petition for
certification election can be ordered in the same bargaining unit more often than once in twelve
months. 6Hence, for one year, the employee representative is shielded from any initiative calling
for a certification election to change representative. This progressive mechanism is still contained
in Article 231 of our Labor Code. To jog our memory, this legal mechanism was taken from the
Wagner Act 7 of the United States which had a provision that no election can be directed in any
bargaining unit or in any subdivision, where in the preceding 12-months period, a valid election
has been held. This 12-month ban on certification election of the Wagner Act has never been
challenged as violative of freedom of speech and of assembly of members of minority unions
who wish to be elected as employee bargaining representative. Let us not miss the reason for
the twelve-month ban. Authorities in labor law like Professor Forkosch emphasize that the
"concepts of political democracy were assimilated in these representation elections in labor
law." 8 Needless to state, our own laws and derivative foreign law repudiate the majority ruling
that ". . . the law cannot really provide for a period of honeymoon or moratorium in politics. . . The
only safeguard against the baneful . . . effects of partisan politics is the good sense and self
restraint of the
people. . . ."

I do not have any competing vision to offer against the majority on the need to hike the efficacy of
the power of our people to recall elected officials who have lost their confidence. After all, our
EDSA experience has taught us that it is the people and the people alone who can end
malgovernment when all else fail. Recall is a powerful weapon given to our people but, like any
power, it can be abused. For this reason, the legislature carefully defined its limitations for its
misuse can bring about the disuse of a valuable means to terminate the misrule of misfits in
government. Our lawmakers know that the paradox of power is that to be effective it must be
restrained from running riot. Section 74 of the Local Government Code spelled out these
restraints. Section 74 (a) limits the number of times an official can be subjected to recall during
his term of office to only one time. Section 74 (b) limits the periods when the power can be
exercised. It sets two periods: the first, sets the beginning, i.e., one year after an officials'
assumption of office; the second, sets the end, i.e., one year immediately preceding a regular
election. These limitations should be strictly followed considering the short 3-year term of office
of local officials.

It is in this light that the Court should interpret Section 74. Its interpretation should strengthen the
right of recall and the best way to do this is to interpret it to prevent its misuse. By way of
summation, I respectfully submit that by holding that recall initiatives can start right after Day One
of an official's assumption to office, the majority failed to recognize the need for stability of a
public office. By holding that these initiatives can be undertaken not once, not twice but endlessly
within one year after an official's assumption to office, the majority exposed our people to an
overdose of politics. By holding that recall initiatives can be done prematurely, the majority forgot
that such initiatives are meaningful only if they are used to adjudge an official's performance in
office. By holding that recall initiatives can be done even without giving an official a fair chance to
serve the people, the majority has induced incumbents to play the politics of compromise instead
of the politics of performance. By holding that recall initiatives can be done at any one's caprice,
the majority has cast a blind eye on the expenses that accompany such exercise. These
expenses have to be repaid later, an undeniable cause of cronyism and corruption in
government.

The bottomline is that our law intends recall as a mechanism of good government. It can never
fulfill that intent if we allow its use to foment too much politics. We need not be adepts in the
alleyways of politics to say that too much politics is the root of a lot of evils in our country. Our
1987 Constitution sought to check this bad political cholesterol plaguing our government. Any
attempt to restore this fat should draw more than a phlegmatic posture.

I vote to grant the petition.

KAPUNAN, J., separate and dissenting opinion;

With utmost due respect, I am constrained to disagree with the main opinion that the term "recall"
under Section 74(b) of Republic Act No. 7160, otherwise known as the Local Government Code,
refers to the recall election alone. Section 74 provides:

Sec. 74. Limitation on Recall. —

(a) Any elective official may be the subject of a

recall election only once during his term of office
for loss of confidence;

(b) No recall shall take place within one year from

the date of the official's assumption of office.

Mayor Claudio won the mayoralty race in Pasay City in the 11 May 1998 elections. He assumed
office on 1 July 1998. 1 Less than 10 months thereafter, or on 29 May 1999, the People's Recall
Assembly (PRA) of Pasay City convened and passed a resolution to initiate the recall of Mayor
Claudio. 2 On 2 July 1999, a petition for the recall of Mayor Claudio was filed with the Commission
on Elections (COMELEC). 3 In a Resolution, promulgated on 18 October 1999, rendered in E.M.
No. 99-005 (RCL), the COMELEC resolved to approve and give due course to the petition for
recall. The COMELEC, construing that the word "recall" only begins upon the time of filing of the
recall petition in the Office of the Election Officer of Pasay City up to the date of recall
election," 4 ruled that since the petition was filed on 2 July 1999, the same was already outside
the prohibited period of one (1) year after Mayor Claudio assumed his office on 1 July
1998. 5 Hence, the present case where the majority fund that the COMELEC did not abuse its
discretion in issuing the assailed resolution.

Contrary to the majority view, I humbly submit that "recall" under Section 74(b) is not limited to
the election itself, but, rather, it is a process which begins once the PRA makes its first
affirmative acts towards the recall of the elective local official concerned, i.e. the convening of the
PRA and the passing by the PRA of a recall resolution during a session called for the said
purpose, and culminates with the holding of the recall election.

The majority opinion concedes that it "can agree that a process which begins with the convening
of the preparatory recall assembly on the gathering of the signatures at least 25% of the
registered voters of a local government unit." Yet, it maintains that "recall" as used in paragraph
(b) of Section 74 "refers to the election itself by means of which the voters decide whether they
should retain their local official or elect his replacement."

The majority opines that the power of recall can be exercised solely by he electorate and not by
the PRA through "the filing of a petition for recall with the COMELEC, or the gathering of the
signatures of at least 25% of the voters for a petition for recall." This is so since the majority
equates the power of recall with the electorate's power to replace or retain the local official
concerned during the recall elections. In furtherance of this premise, the majority concludes that
since the "power vested on the electorate is not the power to initiate the recall proceedings but
the power to elect an official into office, the limitations in §74 cannot be deemed to apply to the
entire recall proceedings." I beg to disagree.

Since our form of government is a representative democracy, it cannot be claimed that the
initiation of the recall process by the PRA is not an initiation by the people. This was explained by
the Court in the case of Garcia vs. Commission on Elections, 6 wherein it was said:

Again, the contention cannot command our concurrence. Petitioners have

misconstrued the nature of the initiatory process of recall by the PRAC. They
have embraced the view that initiation by the PRAC is not initiation by the
people. This is a misimpression for initiation by the PRAC is also initiation by the
people, albeit done indirectly through their representatives. It is not
constitutionally impermissible for the people to act through their elected
representatives. Nothing less than the paramount task of drafting our Constitution
is delegated by the people to their representatives, elected either to act as a
constitutional convention or as congressional constituent assembly. The initiation
of a recall process is a lesser act and there is no rhyme or a reason why it cannot
be entrusted to and exercised by the elected representatives of the people. 7

It must be noted that in the above quotation, as well as in all the discussions in the Garcia case,
recall is always described and referred to as a process. The Garcia case does not, either directly
or impliedly; state that the term "recall" in Section 74(b) is confined solely to the recall election
alone. Garcia explains that recall as a process which begins with the convening of the PRA
coupled with the passing of a recall resolution and culminating with the recall election itself. 8 It is
the PRA resolution which paves the way for the official sought to be recalled to appear before the
electorate so he can justify why he should be allowed to continue in office. 9 Thereafter, to
determine whether the elected official still retains the confidence of the people, a recall election is
held. Thus, the recall process may be considered as composed of two distinct but continuous
phases, namely: the initiatory phase and the election phase. As such, for purposes of
determining whether the recall was instituted within the allowable period under Section 74(b), the
reckoning point should be the initiatory phase which is the time of convening and passing of the
recall resolution. This should be so since it is from this moment that the process of recall comes
into being. It is at this precise moment when the PRA, as representatives of the electorate,
concretizes its stand and makes an affirmative act of its intent to recall the elected local official.
Nonetheless, it is still up to the people to affirm or reject the move to recall the incumbent official
during the election called for the purpose.

The underlying reason behind the time bar provisions, as pronounced by the Court in Angobung
vs. COMELEC 10 , is to guard against the abuse of the power of recall. In so holding, the Court
authoritatively cited the case of In Re Bower 11 , stating that "the only logical reason which we can
ascribe for requiring the electors to wait one year before petitioning for a recall is to prevent
premature action on their part in voting to remove a newly elected official before having had
sufficient time to evaluate the soundness of his policies and decisions." The phrase "premature
action" logically refers to any activity geared towards removing the incumbent official without
waiting for sufficient time to elapse to evaluate his performance in office. The convening of the
PRA and the passing of the questioned recall resolution in this case were actions or activities
proscribed by law, rendering the entire recall process invalid. The term "recall" under Section
74(b) being a process which begins with the convening of the PRA and the passing of the recall
resolution, such initiatory exercises within the prohibited period tend to disrupt the workings of a
local government unit and are deleterious to its development and growth.

In a political culture like ours where a losing candidate does not easily concede defeat as
demonstrated by numerous election protests pending before our courts and in the COMELEC, all
that a disgruntled candidate has to do to undermine the mandate of the victor is to court the other
local officials in order to set the stage for the convening of a PRA and the passage of a recall
resolution. After this, all that needs to be done is to wait for the lapse of the first time bar and,
thereafter, file the petition for recall. In the meantime, the incumbent official sought to be
removed and his political opponents engage in a full-scale election campaign which is divisive,
destabilizing and disruptive, with its pernicious effects taking their toll on good governance.

In this regard, Senator Aquilino Pimentel, the main author of the Local Government Code of
1991, in his book entitled "The Local Government Code of 1991: The Key to National
Development," explained:

Recall resolutions or petitions may not be used whimsically. In fact, they can be
resorted to only once during the term of the elective official sought to be recalled.
And since there is a prohibition against recalls within the first year of an official's
term of office, and within one year immediately preceding a regular local election,
the move to recall can only be done in the second year of the three year term of
local elective officials. 12

It can readily be observed that Senator Pimentel used the phrase "move to recall" in describing
the activity which can only he undertaken during the freedom period. This is significant because
the use of the phrase "move to recall" is instructive of the concept envisioned by the primary
author of the law in providing for the limitations on recall. It connotes a progressive course of
action or a step-by-step process. As such, the word "move," when used in conjunction with the
word "recall," can pertain to no other than the entire recall process which begins with the
convening of the PRA and the passing of the recall resolution and ending with the recall election.
It cannot, by any stretch of imagination, be construed as referring to the election alone.

I cannot subscribe to the observation of the majority that to construe the limitation in Section 74
(b) "as including the initiation of recall proceedings would unduly curtail freedom of speech and of
assembly guaranteed by the Constitution." The people can assemble and discuss their opinions
and grievances against the incumbent official, at any time during his term and as often as they
would like, because it is their right to do so. An exercise of their right to peaceably assemble and
exchange views about the governance of the local official would not be violative of the limitations
set forth in Section 74(b). However, once notice is sent, during the prohibited period, stating that
the purpose of the meeting is to convene the PRA and to pass a recall resolution, and the same
is actually approved, then Section 74(b) is transgressed. In this instance, the limitation of the
electorate's freedom of speech and assembly is not violated since the time bar provision is
imposed by the legislature in the exercise of its police power. The limitation in Section 74(b) is
analogous to the prohibition under Section 80 of Batas Pambansa Blg. 881, otherwise known as
the Omnibus Election Code, which prohibits a person from engaging in any election campaign or
partisan political activity except during the campaign period. 1 The limitation on the freedom of
speech and assembly imposed by Section 80 has never been questioned as being
unconstitutional.

Finally, I do not find any logical reason to support the view that the recall process should be
counted only from the time of the filing of the recall resolution or petition with the COMELEC.
Although the filing of the petition for recall with the COMELEC is, admittedly, an important
component in the recall process, it, however, cannot be considered as the starting point of the
same. The filing of the petition, being merely a consequential mechanical act, is just a next step
in the process of recall after PRA's acts of convening the recall assembly and passing the recall
resolution. Once a petition for recall is filed, the only role of the COMELEC is the verification of its
authenticity and genuineness. After such verification the COMELEC is mandated by law to set
the date of the recall election. Clearly, the role of the COMELEC in the recall process under
Section 70 of R.A. 7160 is merely ministerial in nature. Such being the case, it cannot be
correctly argued that the crucial moment in the recall process is the actual filing of the petition
with the COMELEC.

I vote, therefore, to grant the petition.

Footnotes

1
Per Commissioner Manolo B. Gorospe, and concurred in by Commissioner
Harriet O. Demetriou. Commissioner Julio F. Desamito was on leave.

2
The case has since been decided by being dismissed. See Trinidad v.
COMELEC, G.R. No. 134657, Dec. 15, 1999.

3
Davide, Jr., C.J., and Bellosillo, Vitug, Mendoza, Quisumbing, Buena, Reyes,
and Ynares-Santiago, JJ. voted to dismiss the petition. Puno, Kapunan,
Panganiban, Purisima, Pardo, and De Leon, Jr., JJ., dissented and voted to grant
the petitions. Melo, J., who was in Manila for the funeral of his brother, took no
part.

4
R.A. No. 7160.

5
Thus, the Local Government Code provides:

Sec. 70. Initiation of the Recall Process. — (a) Recall may be initiated by a
preparatory recall assembly or by the registered voters of the local government
unit to which the local elective official subject to such recall belongs.

(b) There shall be a preparatory recall assembly in every province, city, district,
and municipality which shall be composed of the following:

(1) Provincial level. — All mayors, vice mayors,

and sangguniang members of the municipalities
and component cities;
 (2) City level. — All punong barangay and
sangguniang barangay members in the city;

(3) Legislative District level. — In cases where the

sangguniang panlalawigan members are elected
by district, all elective municipal officials in the
district; and in cases where sangguniang
panlungsod members are elected by district, all
elective barangay officials in the district; and

(4) Municipal level. — All punong barangay and

sangguniang barangay members in the
municipality.

(c) A majority of all the preparatory recall assembly members may convene in
session in a public place and initiate a recall proceeding against any elective
official in the local government unit concerned. Recall of provincial, city, or
municipal officials shall be validly initiated through a resolution adopted by a
majority of all the members of the preparatory recall assembly concerned during
its session called for the purpose.

(d) Recall of any elective provincial, city, municipal, or barangay official may also
be validly initiated upon petition of at least twenty-five percent (25%) of the total
number of registered voters in the local government unit concerned during the
election in which the local official sought to be recalled was elected.

(1) A written petition for recall duly signed before the election registrar or his
representative, and in the presence of a representative of the petitioner and a
representative of the official sought to be recalled, and in a public place in the
province, city, municipality, or barangay, as the case may be, shall be filed with
the Comelec through its office in the local government unit concerned. The
Comelec or its duly authorized representative shall cause the publication of the
petition in a public and conspicuous place for a period of not less than ten (10)
days nor more than twenty (20) days, for the purpose of verifying the authenticity
and genuineness of the petition and the required percentage of voters.

(2) Upon the lapse of the aforesaid period, the Comelec or its duly authorized
representative shall announce the acceptance of candidates to the position and
thereafter prepare the list of candidates which shall include the name of the
official sought to be recalled.

Sec. 71. Election on Recall. — Upon the filing of a valid resolution or petition for
recall with the appropriate local office of the Comelec, the Commission or its duly
authorized representative shall set the date of the election on recall, which shall
not be later than thirty (30) days after the filing of the resolution or petition for
recall in the case of the barangay, city, or municipal officials, and forty-five (45)
days in the case of provincial officials. The official or officials sought to be
recalled shall automatically be considered as duly registered candidate or
candidates to the pertinent positions and, like other candidates, shall be entitled
to be voted upon.

6
Such power is vested in the PRA or in at least 25% of the registered voters.
§70(c)(d).

7
227 SCRA 100 (1993).
8
In re Bower 41 Ill. 777, 242 N.E. 2d 252 (1968).

9
269 SCRA 245, 256 (1997).

10
The Omnibus Election Code, §3, provides:

xxx xxx xxx

The campaign periods are hereby fixed as follows:

(a) For President, Vice President and Senators, ninety (90) days before the day
of the election; and

(b) For Members of the House of Representatives and elective provincial, city
and municipal officials, forty-five (45) days before the day of the election. . . .

11
Id.

12
264 SCRA 48, 54 (1996).

PUNO, J., dissenting opinion;

1 See section 1, Article II of the 1987 Constitution; section 1, Article II of the 1973
Constitution; section 1, Article II of the 1935 Constitution.

2 227 SCRA 100, 108-112 (1993).

3 269 SCRA 245 (1997).

4 Supra, p. 114.

5 Supra, p. 116.

6 See Sec. 12 (6) of the Industrial Peace Act.

7 See Sec. 9 (c).

8 A Treatise on Labor Law, 1955 ed., p. 564.

KAPUNAN, J., separate and dissenting opinion;

1
Rollo, p. 54.

2
Id., at 29.

3
Id., at 54.

4
Id., at 54.

5
Ibid.

6
227 SCRA 100 (1993).
 7
Id., at 114. Emphasis supplied.

8
Id., at 114-115.

9
Id., at 115.

10
269 SCRA 245 (1997).

11
41 III. 777, 242 N.E. 2nd 252 (1968).

PIMENTEL, The Local Government Code of 1991: The Key to National

12

Development, p. 187.

Emphasis supplied.

Sec. 80. Election campaign or partisan political activity outside campaign period.
13

— It shall be unlawful for any person, whether or not a voter or candidate, or for
any party, or association of persons, to engage in an election campaign or
partisan political activity except during the campaign period: Provided, That
political parties may hold political conventions or meeting to nominates their
official candidates within thirty days before the commencement of the campaign
period and forty-five days for the Presidential and Vice-Presidential election.

G.R. No. 127501 May 5, 2000

CONRADO C. SALVADOR, petitioner,

vs.
COURT OF APPEALS (SPECIAL SIXTH DIVISION), HON. FULGENCIO S. FACTORAN, as
the Secretary of the Department of Environment and Natural Resources, HON.
GUILLERMO N. CARAGUE, as the Secretary of the Department of Budget and
Management and THE CIVIL SERVICE COMMISSION, respondents.

YNARES-SANTIAGO, J.:

The instant Petition for Review seeks to set aside the September 3, 1996 Resolution1 of
respondent Court of Appeals in CA-G.R. SP No. 37611 entitled "Remedios T. Blaquera, et al.
versus Hon. Fulgencio S. Factoran, Jr."

Petitioner Conrado C. Salvador had been a permanent employee of the Department of

Environment and Natural Resources (hereinafter referred to as DENR) since 1964. Sometime in
1987, reorganization of the DENR under Executive Order No. 192, dated June 10, 1987,
commenced. This resulted in the conversion of the positions of several DENR employees to
coterminous, with their term of office ending December 31, 1991. With such threat of termination,
several of petitioner's co-employees filed on December 19, 1991 a Petition for Prohibition
and Mandmus 2 to stop the DENR from terminating their services. Their case, entitled "Blaquera
versus Civil Service Commission," was docketed as G.R. No. 103121.

Meanwhile, during the reorganization of the DENR, petitioner, who prior to said reorganization
had held the position of Forestry Supervisor II for almost eight (8) years, was constrained to
accept reappointment on September 16, 1988 as Senior Executive Assistant I, R-66/SG-17, a
coterminous position with a term not to exceed three (3) years. However, petitioner filed a protest
with respondent Civil Service Commission. He was later "promoted", effective February 14, 1992,
to the position of Forester III, SG-18, a position still lower in rank and salary than that of Forestry
Supervisor II, which he previously held.
During the pendency of G.R. No. 103121, petitioner received a letter, dated January 16, 1992,
from Director Cirilo B. Serna of the Forest Management Bureau of DENR,3 informing him that he
was deemed terminated from the service effective December 31, 1991, his position being a
coterminous position.

Thus, on February 24, 1992, petitioner joined his co-employees as intervenor in G.R. No.
103121, believing that his removal from the service was illegal. This was followed by his
Complaint-in-Intervention filed on July 20, 1993. On September 10, 1993, a Decision was
rendered in G.R. No. 103121 in favor of the petitioners therein, to wit —

WHEREFORE, the petition for certiorari is GRANTED. The removal of the

petitioners and intervenors from office is declared null and void. The respondent
Secretary of the Department of Environment and Natural Resources (DENR), or
his successor in office, is ordered to reinstate the petitioners to their former or
equivalent positions in the DENR without loss of seniority and other benefits, and
to issue regular and permanent appointments to them for the positions in the new
organization and staffing pattern corresponding to their positions in the 1986
plantilla. The respondent Secretary of the Department of Budget and
Management, or his successor in office, is ordered to reinstate the appropriation
for the salaries of the petitioners and intervenors. The temporary restraining order
which the Court issued in this case is made permanent.

The petitioners' motion to cite the public respondents for contempt of court is
DENIED for having become moot after the latter's resignation from office upon
the change of administration on June 30, 1992. No costs.

SO ORDERED.4

The aforesaid Decision became final and executory on October 25, 1993.

Accordingly, on December 8, 1993, respondent Civil Service Commission issued Resolution No.
94-6623 5 directing the DENR to issue appointments to the petitioners and intervenors, petitioner
Conrado C. Salvador included, in G.R. No. 103121, under the same terms and conditions as
their employment before the 1987 reorganization.

However, despite the Decision in G.R. No. 103121 and the above-mentioned Resolution of
respondent Civil Service Commission, the DENR still failed and refused to reinstate petitioner to
his former position or to an equivalent thereof. Meanwhile when a Supervising Forest
Management Specialist retired, petitioner applied for that position, since it was the only vacant
one equivalent to his former position as Forestry Supervisor II under the 1986 plantilla.
Petitioner's application was, however, ignored and instead the Selections and Promotions Board
of the Forest Management Bureau of the DENR appointed one Sofio B. Quintana to the position.6

With the continued inaction on his appointment and the appointment of another to an equivalent
position as his former one, petitioner filed on February 13, 1995 with this Court a Motion to Cite
Certain Respondents in Contempt7against the chairman and members of the Selections and
Promotions Board of the Forest Management Bureau of the DENR and Carlito L. Quiazon, Jr., a
field officer of respondent Civil Service Commission. After respondents filed their Comment, the
Motion was referred to respondent Court of Appeals where it was docketed as CA-G.R. SP No.
37611.

On September 3, 1996, respondent Court of Appeals issued the assailed Resolution which
denied petitioner Conrado C. Salvador's Motion and ruled further that inasmuch as he was earlier
given a permanent appointment in the DENR, he was no longer covered by the Decision in G.R.
No. 103121. Respondent court also held that the appointing power of the DENR is discretionary
and that petitioner was not entitled to the position he applied for considering that he had no
vested right thereto.

Hence, the instant Petition raising the following issues —

. . . whether or not the questioned resolution of the respondent Special Sixth

Division of the Court of Appeals dated September 3, 1996 amounts to an
amendment or modification by the respondent appellate court of the ruling of the
Honorable Supreme Court en banc in Blaquera v. Civil Service Commission.

. . . whether or not the motion to cite the chairman and members of the Selections
and Promotions Board of the Forest Management Bureau of the DENR as well as
Civil Service Commission Field Officer Carlito L. Quiazon, Jr. in contempt of court
filed by the petitioner should be granted.8

The ruling in G.R. No. 103121 called for nothing less than the reinstatement of petitioners therein
(including petitioner Conrado C. Salvador as intervenor), "to their former or equivalent positions
in the DENR without loss of seniority and other benefits, and to issue regular and permanent
appointments to them for the positions in the new organization and staffing pattern corresponding
to their positions in the 1986 plantilla."

In the assailed Resolution, respondent Court of Appeals ruled that petitioner falls outside the
scope of said decision since he accepted a permanent position and thus became different from
the petitioners therein who were in danger of losing their jobs. In so ruling, respondent Court of
Appeals relied on a DENR Memorandum dated December 22, 1993, regarding the Decision in
G.R. No. 103121. The said Memorandum provides in part, as follows —

New appointments have to be issued only to the petitioners and intervenors who
are still holding their coterminous positions up to the present on the strength of
the Temporary Restraining Order previously issued by the High Tribunal in this
case which have been made permanent by the Decision. These appointments
shall cover the change of their employment status from coterminous to
permanent provided they meet the minimum qualifications for the said positions.
However, the following petitioners are deemed no longer covered by the
Decision:

1. Those who were separated from the service by

resignation, retirement, dismissal, death or
transfer to other government agencies;

2. Those who accepted appointments to

regular/permanent positions either by promotion,
demotion or change of item (i.e., lateral movement
from a co-terminous position to a similar or
equivalent regular/permanent position); and

3. Those who accepted casual or contractual

positions.9

The anxiety and fear of losing one's job after more than twenty-seven continuous years of
service with the DENR, experienced by petitioner during the time of the reorganization of DENR,
must have compelled him to accept a position which was not only lower but of a coterminous
status. Any man in such an uncertain and economically threatening condition would be expected
to take whatever measures are available to ensure a means of sustenance for himself and his
family. This would include finding employment as soon as possible in order to meet the daily
financial demands of his family. Petitioner's application for and acceptance of a lower position in
the DENR, under the circumstances, was the practical and responsible thing to do, and cannot
be construed against him such as to foreclose his right to question the legality of his termination
and to claim the position he held previous to the reorganization. Succinctly put, applying for new
employment was not a choice for petitioner but a necessity.

In East Asiastic Company Ltd. vs. CIR, 10 this Court has held that the act of finding employment
elsewhere does not bar reinstatement of an illegally terminated employee. It was there ruled as
follows —

Accordingly, both views in the court below must be rectified and the decision
appealed from accordingly modified. We hold that the ruling of the majority in the
court below to the effect that the respondent Dizon is entitled to backwages only
from the time of her dismissal to the date she left for the United States on July 15,
1964 is not good law, in the sense that it fails to consider that in this particular
case it is undisputed that respondent's departure for the United States was to
look for employment in fulfillment precisely of her obligation to minimize her
damages resulting from her unjustified dismissal. As long as the reinstatement of
an illegally dismissed worker or employee has not been carried out he can seek
employment or work anywhere, including in a foreign country. Surely, his
departure from the Philippines for such purpose should not constitute a waiver of
his right to reinstatement; it is only if he unjustifiedly or unreasonably refuses to
report for work with his former employer after his reinstatement has been ordered
or after his employer has offered to reinstate him pursuant to the judgment of the
court that he could be considered as having renounced such right. The bare fact
of his being actually employed elsewhere in any capacity cannot affect his right to
reinstatement, for the option is his to return or not to return to his former work
upon knowing of the order or offer of reinstatement; if he opts to return, he has to
be reinstated, subject to the conditions as to his backwages already elucidated
above; if he refuses to return or imposes uncalled for conditions therefor, then
and only then would his right to reinstatement cease, although he would
nonetheless be entitled to the same backwages already discussed up to the time
of such refusal. . . . . (emphasis ours).

It was thus error for respondent Court of Appeals to exclude petitioner from the coverage of the
decision in G.R. No. 103121 simply because he accepted employment while said case was still
pending. Petitioner had the right to live during the pendency of the case and naturally the right to
accept any form of employment. 11

We now come to the issue of whether or not respondents should be held in contempt. In denying
the motion to cite public respondents in contempt of court, respondent Court of Appeals held that
even if petitioner was eligible for appointment, he was not entitled to the position of Supervising
Forest Management Specialist as a matter of right and that the Selection Board, in appointing
someone else, was merely exercising its discretionary powers.

Again, we disagree.

In Tañala vs. Legaspi, 12 it was held that a reinstatement order exacts a ministerial duty from the
office concerned:

It appearing that the appellee had been acquitted of the criminal charges that had
been filed against him, and the President had reversed the decision of the
Commissioner of Civil Service in the administrative case which ordered his
separation from the service, and the President had ordered his reinstatement to
his position, it results that the suspension and the separation from the service of
the appellee were thereby considered illegal. The President had declared that the
appellee was entitled to reinstatement in office and the President had ordered
 that the appellee be reinstated immediately to his office. That order of the
President was in accordance with law and it became the ministerial duty of the
authorities concerned to comply with that order. When the respondent-appellant
City Health Officer Dr. Carlos V. Matriano refused to reinstate the appellee in the
office, said appellant had thereby unlawfully excluded the appellee from the
enjoyment of a right to which he is entitled. Mandamus lies when a person
unlawfully neglects the performance of an act which the law specifically enjoins
as a duty resulting from an office or who unlawfully excludes another from the
use or enjoyment of a right or office to which such other is entitled (Sec. 3, Rule
65, Revised Rules of Court). (emphasis ours)

This sentiment was echoed in the later case of San Luis vs. Court of Appeals 1 where it was ruled
that —

Since private respondent Berroya had established his clear legal right to
reinstatement and back salaries under the aforementioned final and executory
administrative decisions, it became a clear ministerial duty on the part of the
authorities concerned to comply with the orders contained in said decisions
[Tañala v. Legaspi, G.R. No. L-22537, March 31, 1965, 13 SCRA 566 at 574-
575].

The established rule is that a writ of mandamus lies to enforce a ministerial duty
or the 'performance of an act which the law specifically enjoins as a duty resulting
from office, trust or station' [Section 3, Rule 65 of the Revised Rules of Court;
Llanto v. Mohamad Ali Dimaporo, et al., G.R. No. L-21906 March 31, 1996, 16
SCRA 599]. In this case, the appropriate administrative agencies having
determined with finality that Berroya's suspension and dismissal were without just
cause, his reinstatement becomes a plain ministerial duty of the petitioner
Provincial Governor, a duty whose performance may be controlled and enjoined
by mandamus [Ynchausti and Co. v. Wright, 47 Phil. 866 (1925); Tee and Co. v.
Wright, 53 Phil. 194 (1929); Gementiza v. Court of Appeals, G.R. Nos. L-41717-
33, April 12, 1982, 113 SCRA 477; Laganapan v. Asedillo, G.R. No. L-28353,
September 30, 1987, 154 SCRA 377].

In the light of these rulings and faced with the clear mandate of G.R. No. 103121 upon
respondent DENR to reinstate the petitioners (and petitioner Conrado C. Salvador, as intervenor)
"to their former or equivalent positions in the DENR without loss of seniority and other benefits,
and to issue regular and permanent appointments to them for the positions in the new
organization and staffing pattern corresponding to their positions in the 1986 plantilla," said
respondent can not do otherwise but comply.

However, notwithstanding respondent's non-compliance with the decision in G.R. No. 103121,
this Court believes that the same does not constitute indirect contempt of court. Disobedience of
or resistance to a judgment of a court, to be punishable as contempt, must be willful. In this case,
this Court finds that public respondent Secretary of the DENR acted in good faith. True,
respondent Secretary committed error in judgment, but that per se cannot be considered
contumacious.

WHEREFORE, based on the foregoing, the instant Petition for Review is GRANTED. The
September 3, 1996 Resolution of respondent Court of Appeals in CA-G.R. SP No. 37611 is
REVERSED and SET ASIDE. Public respondents are ordered to strictly comply with the Decision
in G.R. No. 103121. For the reasons aforestated, the motion to cite respondents in contempt of
court is DENIED.

SO ORDERED.
Davide, Jr., C.J., Bellosillo, Puno, Vitug, Mendoza, Panganiban, Quisumbing, Pardo, Buena,
Gonzaga-Reyes and De Leon, Jr., JJ., concur.

Melo, Kapunan and Purisima, JJ., are on leave.

Footnotes

1
Records, CA-G.R. SP No. 37611, pp. 362-367.

2
Id., at pp. 2-50.

3
Petition for Review, Annex "A; Rollo, p. 29.

4
Decision, G.R. No. 103121, pp. 17-18; Records, CA-G.R. SP No. 37611, pp.
210-211.

5
Petition for Review, Annex "E"; Rollo, pp. 32-35.

6
See Petition for Review, Annex "F"; Rollo, p. 36.

7
Records, CA-G.R. SP No. 37611, pp. 230-236.

8
Petition for Review, p. 10; Rollo, p. 19.

9
See Rollo, p. 91.

10
G.R. No. L-29068, 40 SCRA 521, 537-538 [1971].

11
See Gonzales vs. Hernandez, G.R. No. L-15482, 2 SCRA 228, 233 [1961].

12
G.R. No. L-22537, 13 SCRA 566, 574-575 [1965].

13
G.R. No. 80160, 174 SCRA 258, 272-273 [1989].

G.R. No. 139357 May 5, 2000

ABDULMADID P.B. MARUHOM, petitioner,

vs.
COMMISSION ON ELECTIONS and HADJI JAMIL DIMAPORO, respondents.

YNARES-SANTIAGO, J.:

Whether or not a motion to dismiss, filed after an answer has been filed, is a prohibited pleading
in an election protest pending before the Regional Trial Court is the issue posed in this petition
for certiorari with prayer for preliminary injunction challenging the Resolution of the Commission
on Elections (COMELEC) dated July 6, 19991dismissing Comelec Case SPR No. 52-98.

The COMELEC's challenged order summarizes the relevant facts of the controversy thus:
1. Petitioner and private respondent were both candidates for Mayor in
the Municipality of Marogong, Lanao del Sur and voted as such in the last
May 11, 1998 national and local election (sic). Petitioner is a re-electionist
and a veteran politician;

2. The election in Marogong functioned on May 11, 1998, and after the
voting the ballot boxes were transmitted to the Kalimodan Hall, Provincial
Capitol of Lanao del Sur at Marawi City where the automated counting of
votes and canvass of election returns were centralized;

3. During the counting of votes, serious irregularities, anomalies and

electoral frauds were committed at the instance of petitioner or his
followers in that votes actually casted (sic) for the private respondent
were not counted and credited in his favor thru (sic) the concerted acts,
conspiracy and manipulation of the Board of Election Inspectors, military,
Election Officer and the Machine Operator who happens to be a nephew
of the petitioner;

4. In Precincts Nos. 1A-1A1, 7A1, 8A, 10A-10A1 and 11A about 115
official ballots were refused or rejected by the counting machine which the
private respondent's watchers or representatives have requested and
insisted to be re-fed to the automated machine for the second and third
times pursuant to the provisions of Comelec Resolution No. 3030 but their
requests were not heeded by the Election Officer and the Machine
Operator, Solaiman Rasad, who is a close kin of the Petitioner, and
instead considered the said ballots as finally rejected, while in Precincts
Nos. 12A, 23A1 and 6A, around 56 ballots were found therein which were
not drawn from the official ballots and were included in the counting of
votes over the objection of the private respondent's watchers or
representatives;

5. Before the termination of the counting of votes and the consolidation of

the results, the machine operator and the Election Officer carried away
from the Kalimodan Hall the diskette and brought the same to the down
town without the knowledge of the private respondent's watchers or
representatives;

6. As a result of the foregoing irregularities, anomalies and electoral

frauds, the petitioner was illegally proclaimed as winner because he
appeared to have obtained 2,020 votes while the private respondent
garnered 2,000 votes with a slight margin of only 20 votes;

7. After the counting of votes, the ballot boxes were kept at the Kalimodan
Hall, Provincial Capitol, Marawi City guarded and secured by military and
PNP personnel together with the watchers/representatives of the
petitioner and the private respondent and other candidates or political
parties until they were transported and delivered to the respondent court
at Malabang, Lanao del Sur sometime on August 13, 1998 by 1Lt. Napisa
AG together with the duly authorized representatives of both parties.

xxx xxx xxx

1. On May 22, 1998, private respondent, knowing that he was cheated

and the true winner for Mayor, filed before this Honorable Commission a
petition to annul the proclamation of petitioner Abdulmadid Maruhom as
the duly elected Mayor of Marogong, Lanao del Sur docketed as SPC No.
98-226.2

2. As precautionary measure to avoid any technicality, private respondent

filed on May 25, 1998, an ordinary "Protest ad Cautelam" against the
petitioner before the Regional Trial Court, Branch 11, Malabang, Lanao
del Sur entitled "Hadji Jamil D. Dimaporo vs. Abdulmadid Maruhom" for
election protest (Manual Judicial Recount, revision and reappreciation of
ballots) docketed as Election Case No. 11-127.3

3. On June 1, 1998, petitioner Abdulmadid Maruhom filed an answer with

counter-protest in Election Case No. 11-127 special and affirmative
defenses and counter-protest.4 In his answer petitioner prayed to hold in
abeyance further proceedings since the protest is ad cautelam or subject
to the petition filed before this Honorable Commission.

4. On July 2, 1998, before SPC No. 98-228 could be set for hearing by
this Honorable Commission, the private respondent as petitioner therein,
filed a motion to withdraw his petition in said SPC No. 98-228 albeit said
case was among those cases the proceedings of which were ordered to
be continued beyond June 30, 1998, under Comelec Resolution No. 3049
promulgated on June 29, 1998.5 . . . .

5. On July 17, 1998, an order was issued by this Honorable Commission,

(First Division) granting the private respondent's motion to withdraw
petition in SPC No. 98-228 and considered the same withdrawn.6 . . . .

6. Upon receipt of a copy of said order, dated July 17, 1998, private
respondent filed an urgent motion before the respondent court on July 27,
1998, praying for the issuance of an order directing the proper
officials/officers concerned to bring and produce before said court the
ballot boxes subjects of the protest and counter-protest and to set the
case for hearing as mandated by law.7 . . . .

7. After the delivery of the ballot boxes involved in the protest and
counter-protest, the public respondent issued an order, dated August 17,
1998, setting Election Case No. 11-127 for hearing (a) for the creation of
the Committee on Revision and appointment of the Chairman and
Members thereof; (b) making of the cash deposit and payment of the
revisor's compensation; (c) partial determination of the case, etc. on
September 1, 1998, at 8:30 o'clock in the morning.8

8. When the case was called for hearing on September 2, 1998, a

Revision Committee was created and its membership were duly
appointed in open court which committee was directed by the respondent
court to finish the revision of ballots, if possible, within 20 days from the
commencement of the revision.9 . . . .

9. After the Revision Committee was directed by the respondent to

commence the revision of ballots, the petitioner Abdulmadid Maruhom
thru counsel orally moved for the dismissal of the protest on the grounds
that (1) The ballot boxes containing the ballots in the protested and
counter-protested precincts have been violated; (2) Automated counting
of ballots does not contemplate a manual recount of the ballots; and (3)
Protestant is guilty of forum shopping warranting summary dismissal of
the petitioner of the protest.
10. The private respondent thru (sic) undersigned counsel, vigorously
opposed the said oral motion to dismiss and orally argued that the motion
is clearly dilatory having been made only after the Revision Committee
has been ordered to commence the revision of ballots on September 1,
1998 and maintained that (1) The motion to dismiss is not allowed in an
election protest; (2) The sanctity and integrity of the ballot boxes subject
matter of the protest and counter-protest have been preserved and never
violated; (3) The automated counting of ballots does not preclude the
filing of the election protest for the judicial recount and revision of ballots;
and (4) The private respondent is not guilty of forum shopping because
his petition of protest is clearly and explicitly a Protest Ad Cautelam in
view of the pendency of his petition before this Honorable Commission
which was withdrawn by the private respondent before it could be set for
hearing or acted upon by this Honorable Commission.

11. After the oral arguments of both parties, the petitioner's counsel
asked that he be given ample time to file a written Omnibus Motion to
Dismiss and the respondent court thru then Acting Presiding Judge
Rasad Balindong, issued an order dated September 2, 1998, giving ten
(10) days to Atty. Tingcap T. Mortaba to file an Omnibus Motion in
substantiation of all the oral motions he made, furnishing a copy thereof
to the undersigned counsel for the private respondent who was likewise
given an equal period of time to comment. 10

12. On September 11, 1998, petitioner filed his motion to dismiss 11 and on
September 21, 1998, the private respondent filed a vigorous opposition to
motion to dismiss. 12

13. During the hearing on the motion to dismiss and the opposition
thereto on September 21, 1998, the petitioner's counsel requested for
ample time to file a rejoinder to the vigorous opposition to motion to
dismiss submitted by the private respondent which was granted by the
court and on September 28, 1998, petitioner filed his rejoinder 1 and on
October 5, 1998 private respondent filed his comment 14 thereto and
thereafter all incidents were submitted for resolution of the court.

14. On November 10, 1998, the respondent court thru Honorable

Presiding Judge Moslemen T. Macarambon, issued the assailed order
denying the petitioner's motion to dismiss for lack of merit and ordering
the Revision Committee to report to the court on November 19, 1998, at
8:30 o'clock in the morning for their oath taking and to receive the
instruction of the court in the revision of the ballots and other allied
matters. 15

15. On November 18, 1998, the petitioner filed a motion for

reconsideration of the order dated November 10, 1998, 16 and on
November 23, 1998, private respondent filed a vigorous opposition [to
motion] for reconsideration. 17

16. Finding no compelling reason to disturb its order dated November 10,
1998, the respondent court issued the assailed order dated December 1,
1998 which denied the motion for reconsideration for lack of merit. In the
same order, the respondent court reiterated its previous order to the
members of the Revision Committee to take their oaths before Atty.
Raqueza T. Umbaro or Atty. Khalil Laguindab and thereafter to convene
 and start the revision of ballots on December 14, 15, 16, 17 and 18, 1998,
morning and afternoon. 18

17. As a diabolical scheme to cause further delay of the proceedings of

the case more specifically the revision of ballots, the petitioner filed on
December 10, 1998, the instant petition for certiorari and prohibition with
prayer for preliminary injunction and on December 11, 1998, petitioner
filed an urgent motion before the respondent court praying that further
proceedings in Election Case No. 11-127 be deferred until after
protestee's petition for certiorari and prohibition before this Honorable
Commission shall have been finally resolved, copy of which was served
upon the undersigned counsel only on December 12, 1998, at 10:50
A.M. 19 . . . .

18. That before the undersigned counsel could file his opposition to said
urgent motion on December 14, 1998 and in the absence of a restraining
order or writ of preliminary injunction issued by (the COMELEC), the
respondent judge already issued an order granting the same motion and
ordering the Revision Committee to hold in abeyance the scheduled
revision of ballots on December 14, 15, 16, 17 and 18, 1998, etc. until
further order from the court . . . . 20

Petitioner alleges that in dismissing the petition the COMELEC acted in excess of, or with grave
abuse of discretion, amounting to lack of jurisdiction
in —

1.] holding that a motion to dismiss an election protest

case filed in the Regional Trial Court is a prohibited
pleading;

2.] holding that the motion to dismiss filed after the answer
is not allowed;

3.] failing to resolve the issues raised in SPR No. 52-98

which are sufficient legal bases to dismiss Election Case
No. 11-127.

In sum, petitioner insists that in refusing to pass upon the three (3) principal issues raised in
COMELEC Case SPR No. 52-98, to wit:

1. Whether or not public respondent acted in excess of, or

with grave abuse of discretion, amounting to lack of
jurisdiction in holding that a motion to dismiss an election
protest case in the Regional Trial Court is a prohibited
pleading;

2. Whether or not public respondent acted in excess of, or

with grave abuse of discretion, amounting to lack of
jurisdiction, in holding that a motion to dismiss filed after
the answer to an election protest case in the Regional
Trial court is not allowed; and

3. Whether or not public respondent gravely abused its

discretion amounting to lack of jurisdiction, in failing to
resolve the relevant material and substantial issues raised
in SPR No. 52-98.
 the COMELEC "abdicated its duty under its own rules of procedure and under the
Constitution and the election laws." Such abdication of duty, according to petitioner,
amounts to grave abuse of discretion amounting to lack of jurisdiction.

It must be borne in mind that the purpose of governing statutes on the conduct of elections —

. . . [i]s to protect the integrity of elections to suppress all evils that may violate its
purity and defeat the will of the voters. The purity of the elections is one of the
most fundamental requisites of popular government. The Commission on
Elections, by constitutional mandate must do everything in its power to secure a
fair and honest canvass of the votes cast in the elections. In the performance of
its duties, the Commission must be given a considerable latitude in adopting
means and methods that will insure the accomplishment of the great objective for
which it was created — to promote free, orderly and honest elections. The choice
of means taken by the Commission on Elections, unless they are clearly illegal or
constitute grave abuse of discretion, should not be interfered with. 21

Sec. 2 (1) of Article IX of the Constitution gives the COMELEC the broad power to "enforce and
administer all laws and regulations relative to the conduct of an election, plebiscite, initiative,
referendum and recall." There can hardly be any doubt that the text and intent of this
constitutional provision is to give COMELEC all the necessary and incidental powers for it to
achieve the holding of free, orderly, honest, peaceful and credible elections.

In accordance with this intent, the Court has been liberal in defining the parameters of the
COMELEC's powers in conducting elections. Sumulong v. COMELEC 22 aptly points out that —

Politics is a practical matter, and political questions must be dealt with realistically
— not from the standpoint of pure theory. The Commission on Elections, because
of its fact-finding facilities, its contacts with political strategists, and its knowledge
derived from actual experience in dealing with political controversies, is in a
peculiarly advantageous position to decide complex political questions . . . .
There are no ready made formulas for solving public problems. Time and
experience are necessary to evolve patterns that will serve the ends of good
government. In the matter of the administration of laws relative to the conduct of
election . . . we must not by any excessive zeal take away from the Commission
on Elections that initiative which by constitutional and legal mandates properly
belongs to it.

Succinctly stated, laws and statutes governing election contests especially the appreciation of
ballots must be liberally construed to the end that the will of the electorate in the choice of public
officials may not be defeated by technical infirmities. 2 An election protest is imbued with public
interest so much so that the need to dispel uncertainties which becloud the real choice of the
people is imperative, 24 much more so in this case considering that a mere twenty (20) votes
separates the winner from the loser of the contested election results.

The primordial issue to be resolved herein is whether or not the COMELEC gravely abused its
discretion in dismissing SPR No. 52-98.

In support of his cause, petitioner insists that there is "nothing irregular or anomalous in the filing
of the motion to dismiss" after the filing of the answer because in effect he is merely insisting on
a preliminary hearing of his special and affirmative defenses. Thus, he claims that the summary
dismissal of his motion to dismiss is tainted with grave abuse of discretion amounting to lack or
excess of jurisdiction.

We disagree.
The filing of the motion to dismiss, in fact, appears to be part of a perfidious plot to prevent the
early termination of the proceedings in Election Case No. 4847 as evidenced by a confluence of
events clearly showing a pattern of delay employed by petitioner to avert the revision ballots.
These events, pointed out by private respondent 25 and borne by the record, show
that —

1. It was only on September 1, 1999 after the creation of the Revision Committee
and the appointment of its Chairman and Members and after the said committee
was ordered by the trial court to commence the revision and to render its report
within 20 days that the petitioner orally moved for the dismissal of the case on the
flimsy grounds that (1) the ballot boxes subject of the protest and counter —
protest have been violated; (2) the automated counting of ballots does not
contemplate a manual recount of ballots; and (3) protestant is guilty of forum-
shopping warranting summary dismissal of the protest;

2. After the oral arguments on the oral motion to dismiss the petitioner requested
for ample time within which to file an Omnibus Motion to Dismiss and over the
vigorous opposition of the private respondent the same was granted by the court
and the petitioner was given a period of ten (10) days to file the same and the
private respondent was likewise given a period of ten (10) days to file his
comment;

3. On September 11, 1998, the motion to dismiss 26 and during the hearing on the
said motion and the opposition 27 thereto on September 21, 1998, the petitioner
again asked for ample time to file a rejoinder to the vigorous opposition to motion
to dismiss which was again granted by the court and it was only on September
28, 1998 that said rejoinder was filed;

4. After a denial of the motion to dismiss on November 10, 1998, 28 the petitioner
filed a motion for reconsideration on November 18, 1998; 29

5. When the motion for reconsideration was denied on December 1,

1998, 30 petitioner filed on December 18, 1998 before the Commission on
Elections a petition for certiorari and prohibition with prayer for preliminary
injunction and asked the trial court to defer the proceedings of Election Case No.
11-27 until after his petition shall have been finally resolved which was granted by
the trial court. Hence, the scheduled revision of the ballots on December 14, 15,
16 and 17, 1998 was cancelled and the proceedings of the case held in
abeyance; 31

6. As the Comelec En Banc did not give due course to petitioner's prayer for writ
of preliminary injunction, the trial court, upon motion of the private respondent,
issued an order for the revision of ballots on February 8, 1999. 32 On said day,
neither the petitioner's counsel nor his designated revisors appeared, instead the
petitioner, assisted by his numerous armed men, numbering around 30 stated
(sic) in strategic places, prevented the court personnel to enter the court
premises. Were it not for the maximum tolerance exercised by the PNP
personnel and the intervention of the local datus/leaders, there would have been
bloodshed;

7. On February 9, 1999, the petitioner's counsel filed a withdrawal of appearance

with the attached letter-request of the petitioner asking for the deferment of the
revision of ballots for at least two (2) weeks to enable him to engage the services
of another counsel. Considering that the incident was designed to delay the
further the early disposition of the case which would frustrate the ends of justice,
the court held in abeyance its ruling on the withdrawal of appearance of and
 directed petitioner's counsel to handle the case after the appearance of a new
counsel; 3

8. To further delay the proceedings of the case, the petitioner filed a petition for
transfer of venue of the trial to from RTC, Branch 11, Malabang, Lanao del Sur to
Iligan City or in Metro Manila which the private respondent did not oppose so as
not to delay the early resolution of this Honorable Supreme Court on the said
petition;

9. Again, the proceedings of the case was held in abeyance in view of the
pendency of the said petition for transfer of venue;

10. After the dismissal of the petition in Election Case No. 52-98, the petitioner
filed the instant petition for certiorari before this Honorable Supreme Court with a
prayer for issuance of temporary restraining order;

11. As a diabolical scheme to cause further delay of the proceedings of the case,
the petitioner filed an urgent motion before this Honorable Supreme Court
praying for the immediate issuance of a TRO directing the Presiding Judge, RTC,
Branch III, Iligan City to cease, desist and refrain from conducting any further
proceedings of Election Case No. 4847 until the instant case shall have been
resolved. This Honorable Supreme Court, without granting the prayer for TRO,
directed the RTC, Branch III, Iligan City not to promulgate any decision in the said
election case until further order[s] from this most Honorable Court. 34

It is clear, given the foregoing facts of this case, that the roundabout manner within which
petitioner virtually substituted his answer by belatedly filing a motion to dismiss three (3) months
later is a frivolous resort to procedure calculated to frustrate the will of the electorate. As
pointedly observed by the COMELEC in its challenged Resolution dated July 6, 1999, 35 petitioner
only filed his motion to dismiss "when the results of the trial appear[ed] to be adverse to him" 36 or
right after the creation of the Revision Committee had been ordered by the trial court. If petitioner
truly intended to move for the preliminary hearing of his special and affirmative defenses as he
claims, then he should have simultaneously moved for the preliminary hearing of his special and
affirmative defenses at the time he filed his answer. Otherwise, he should have filed his motion to
dismiss "within the time for but before filing the answer. . ." pursuant to Section 1, Rule 16 of the
1997 Rules of Civil Procedure.

Suffice it to state in this regard that such a whimsical change of mind by petitioner can not be
countenanced much more so in election cases where time is of the essence in the resolution
thereof. Indeed, the Omnibus Election Code states in no uncertain terms that —

Sec. 258. Preferential disposition of contests in courts. The RTC, in their

respective cases, shall give preference to election contests over all other cases,
except those of habeas corpus, and shall, without delay, hear and within thirty
(30) days from the date of their submission for decision, but in every case within
six (6) months after filing, decide the same. . . . 37 (emphasis and italics supplied).

Petitioner further argues that his submissions that a.] the integrity of the ballot boxes has been
violated; b.] only rejected ballots or ballots manually counted are the proper subjects of an
election protest; and c.] private respondent is guilty of forum-shopping, are enough grounds to
dismiss the case.

We remain unconvinced.

As aptly observed by the COMELEC in the challenged Resolution, these grounds are
"evidentiary in nature and can be best ventilated during the trial of the case." 38 It needs be
stressed in this regard that the purpose of an election protest is to ascertain whether the
candidate proclaimed elected by the board of canvassers is really the lawful choice of the
electorate. 39 In an election contest where the correctness of the number of votes is involved, the
best and most conclusive evidence are the ballots themselves; where the ballots can not be
produced or are not available, the election returns would be the best evidence. 40 In this case, the
counted official ballots are available and there is no evidence, other than the bare allegation of
petitioner, that the sanctity of the ballot boxes subject matter of the protest have been violated or
the official ballots contained therein impaired. The best way, therefore, to test the truthfulness of
petitioner's claim is to open the ballot boxes in the protested precincts followed by the
examination, revision, recounting and re-appreciation of the official ballots therein contained in
accordance with law and pertinent rules on the matter. Needless to state this can only be done
through a full-blown trial on the merits, not a peremptory resolution of the motion to dismiss on
the basis of the bare and one-sided averments made therein.

Petitioner's reliance on COMELEC Resolution No. 2868 41 to support his restrictive claim that only
rejected ballots or ballots manually counted in case of failure of the automated counting
machines are the proper subjects of an election protest, is just as unpersuasive.

There is admittedly a lacuna leges in R.A. No. 8436 which prescribes the adoption of an
automated election system. However, while conceding as much, this Court ruled in Tupay Loong
v. COMELEC, 42 that the Commission is nevertheless not precluded from conducting a manual
count when the automated counting system fails, reasoning thus:

. . . In enacting R.A. No. 8436, Congress obviously failed to provide a

remedy where the error in counting is not machine related for human
foresight is not all-seeing. We hold, however, that the vacuum in the law
cannot prevent the COMELEC from levitating above the problem. Section
2(1) of Article IX (C) of the Constitution gives the COMELEC the broad
power "to enforce and administer all laws and regulations relative to the
conduct of an election, plebiscite, initiative, referendum and recall."
Undoubtedly, the text and intent of this provision is to give the COMELEC
all the necessary and incidental powers for it to achieve the objective of
holding free, orderly, honest, peaceful and credible elections. Congruent
to this intent, this Court has not been niggardly in defining the parameters
of powers of COMELEC in the conduct of our elections . . . In the case at
bar, the COMELEC order for a manual count was not only reasonable. It
was the only way to count the decisive local votes . . . The bottom line is
that by means of the manual count, the will of the voters of Sulu was
honestly determined. We cannot kick away the will of the people by giving
a literal interpretation to R.A. 8436. R.A. 8436 did not prohibit manual
counting when machine count does not work. Counting is part and parcel
of the conduct of an election which is under the control and supervision of
the COMELEC . . .

. . . Our elections are not conducted under laboratory conditions. In running for
public offices, candidates do not follow the rules of Emily Post. Too often,
COMELEC has to make snap judgments to meet unforeseen circumstances that
threaten to subvert the will of our voters. In the process, the actions of COMELEC
may not be impeccable, indeed, may even be debatable. We cannot, however,
engage in a swivel chair criticism of these actions often taken under very difficult
circumstances.

Verily, the legal compass from which the COMELEC should take its bearings in acting upon
election controversies is the principle that "clean elections control the appropriateness of the
remedy." 4
Be that as it may, the fact is the averments in petitioner's counter-protest and private
respondent's protest already justified the determination of the issues through a judicial revision
and recounting of the ballots pursuant to Section 255 of the Omnibus Election Code which
provides that —

Sec. 255. Judicial counting of votes in election contest. — Where allegations in a

protest or counter-protest so warrant or whenever in the opinion of the court the
interests of justice so require, it shall immediately order the book of voters, ballot
boxes and their keys, ballots and other documents used in the election be
brought before it and that the ballots be examined and votes recounted.
(Emphasis supplied)

So too must fall petitioner's procedural objection that private respondent should be faulted for
forum-shopping vis-à-vis this Court's pronouncement in Samad v. COMELEC 44 which states in no
uncertain terms that —

As a general rule, the filing of an election protest or a petition for quo

warranto precludes the subsequent filing of a pre-proclamation controversy, or
amounts to the abandonment of one earlier filed, thus depriving the COMELEC of
the authority to inquire into and pass upon the title of the protestee or the validity
of his proclamation. The reason is that once the competent tribunal has acquired
jurisdiction of an election protest or a petition for quo warranto, all questions
relative thereto will have to be decided in the case itself and not in another
proceeding. This procedure will prevent confusion and conflict of authority.
Conformably, we have ruled in a number of cases that after a proclamation has
been made, a pre-proclamation case before the COMELEC is no longer viable.

The rule admits of exceptions, however, as where: (1) the board of canvassers
was improperly constituted; (2) quo warranto was not the proper remedy; (3) what
was filed was not really a petition for quo warranto or an election protest but a
petition to annul a proclamation; (4) the filing of a quo warranto petition or an
election protest was expressly made without prejudice to the pre-proclamation
controversy or was made ad cautelam; and (5) the proclamation was null and
void.

Petitioner's argument that the filing of a motion to dismiss in an election contest filed with a
regular court is not a prohibited pleading is well taken. As we pointed out
in Melendres, Jr. v. COMELEC: 45

Neither can petitioner seek refuge behind his argument that the motion to dismiss
filed by private respondent is a prohibited pleading under Section 1, Rule 13 of
the COMELEC Rules of Procedure because the said provision refers to
proceedings filed before the COMELEC. The applicable provisions on the matter
are found in Part VI of the Rules of Procedure titled "PROVISIONS GOVERNING
ELECTION CONTESTS BEFORE TRIAL COURT" and as this Court pointedly
stated in Aruelo v. Court of Appeals 46

It must be noted that nowhere in Part VI of the COMELEC Rules

of Procedure is it provided that motions to dismiss and bill of
particulars are not allowed in election protests or quo
warranto cases pending before regular courts.

Constitutionally speaking, the COMELEC cannot adopt a rule

prohibiting the filing of a certain pleading in the regular courts.
The power to promulgate rules concerning pleadings, practice
and procedure in all courts is vested in the Supreme Court. 47
The foregoing pronouncement, however, will not extricate petitioner from his predicament
because the denial of petitioner's motion to dismiss was based on the fact that the other grounds
relied therein was considered unmeritorious and not because the said motion is a prohibited
pleading in electoral protest cases. While the challenged COMELEC Resolution may not have
been entirely correct in dismissing the petition in this regard, the soundness of its discretion to
accord unto the trial court the competence to resolve the factual issues raised in the controversy
cannot be doubted. Indeed, as reasoned by the COMELEC,
the —

. . . Commission assumes the competence of the trial court to handle electoral

protest and cannot encroach on its original and exclusive jurisdiction on electoral
protest cases involving the contested mayoralty seat. To our mind, the trial court
should be allowed to resolve the case on the merits to be able to rule on the
factual and legal grounds raised by the petitioner as his defenses in his Answer.
Should the petitioner be dissatisfied with the outcome of the case in the lower
court, he can still appeal, as his relief, to this Commission within the reglementary
period provided by law.

Moreover —

At balance, the question really boils down to a choice of philosophy and

perception of how to interpret and apply the laws relating to elections; literal or
liberal; the letter or the spirit; the naked provision or the ultimate purpose; legal
syllogism or substantial justice; in isolation or in the context of social conditions;
harshly against or gently in favor of the voter's obvious choice. In applying
elections laws, it would be far better to err in favor of popular sovereignty than to
be right in complex but little understood legalisms. 48

WHEREFORE, in view of all the foregoing, the petition is hereby DISMISSED for lack of merit.

SO ORDERED.

Davide, Jr., C.J., Bellosillo, Puno, Vitug, Mendoza, Quisumbing, Pardo, Buena, Gonzaga-Reyes
and De Leon, Jr., JJ., concur.

Melo, Kapunan and Purisima, JJ., are on leave.

Panganiban, J., in the result.

Footnotes

1
Rollo, p. 32.

2
Record, pp. 72-74.

3
Record, pp. 30-38.

4
Ibid., pp. 39-45.

5
Id., pp. 214-215.

6
Id., pp. 216-218.

7
Id., pp. 219-220.
8
Id., p. 221.

9
Id., p. 222.

10
Id., p. 58.

11
Id., pp. 59-69.

12
Id., pp. 80-89.

13
Id., pp. 90-124.

14
Id., pp. 125-143.

15
Id., pp. 26-28.

16
Id., pp. 144-174.

17
Id., pp. 175-184.

18
Rollo, p. 138; Annex O, Petition.

19
Record, pp. 223-225.

20
Ibid., p. 226.

21
Cauton v. COMELEC, 19 SCRA 911 [1967].

22
73 Phil. 288 [1941].

Pangandaman v. COMELEC, G.R. No. 134340, 25 November 1999, p.

23

1, citing Punzalan v. COMELEC, 289 SCRA 702 [1998], citing Bince, Jr. v.
COMELEC, 242 SCRA 273 [1995]; Pahilan v. Tabalba, 230 SCRA 205 [1994];
Aruelo, Jr. v. CA, 227 SCRA 311 [1993]; Tatlonghari v. COMELEC, 199 SCRA
849 [1991]; Unda v. COMELEC, 190 SCRA 827 [1990]; De Leon v. Guadiz, Jr.,
104 SCRA 591 [1981].

24
Punzalan v. COMELEC, supra.

25
Rollo, pp. 241-243.

26
Record, pp. 59-69.

27
Ibid., pp. 80-89.

28
Id., pp. 26-28.

29
Id., pp. 144-174.

30
Rollo, p. 138; Annex O, Petition.

31
Ibid., p. 255; Annex 2, Comment.
 32
Id., pp. 262-265; Annex 4, Comment.

33
Id., pp. 266-267; Annex 5, Comment.

34
Id., p. 204.

35
Id., pp. 32-40; Annex A, Petition.

36
Id., p. 39.

37
See also Rule 35, Section 18 and Rule 36, Section 11, COMELEC Rules.

38
Rollo, p. 40; Annex A, Petition, p. 9.

39
Agpalo R., The Law On Public Officers, 1st ed. (1998), p. 58.

40
Lerias v. HRET, 202 SCRA 808 [1991].

41
Rollo, pp. 45-47; Annex C, Petition, which provides, inter alia, that:

Sec. 2. Filing of Protest. — Any losing candidate, who registers his objections on
the rejection of ballots, may file a protest with the Commission within ten (10)
days from proclamation of the winning candidates in accordance with the
Comelec Rules of Procedure.

Only rejected ballots and ballots manually counted shall be the subject of protest.

Sec. 3. Examination of rejected ballots. — In determining the intent of the voter in

the case of rejected ballots, the rejection of which have been objected to and
noted in the Minute of Counting, the Commission shall examine and appreciate
the rejected ballots concerned applying the provision of Section 7 of Resolution
No. 2862 (Rules and Regulations on the Manual Counting and Canvassing of
Votes in Case of Failure of the Automated Counting System in the September 9,
1996 Elections in the Autonomous Region in Muslim Mindanao [ARMM],
promulgated 14 August 1996).

42
G.R. No. 133676, 14 April 1999, 305 SCRA 832.

43
Pangandaman v. COMELEC, supra, citing Pacis v. COMELEC, 25 SCRA 377
[1968].

44
224 SCRA 631 [1993].

45
G.R. No. 129958, 25 November 1999, pp. 15-16.

46
227 SCRA 311 [1993].

47
Citing Article VIII, Section 5 (5), Constitution.

48
Frivaldo v. COMELEC, 257 SCRA 727 [1996].

A.M. No. MTJ-99-1227 May 9, 2000

(formerly IPI 99-339-MTJ)
FERNANDO V. TORRES, complainant,
vs.
JUDGE FRANCISCO D. VILLANUEVA, respondent.

VITUG, J.:

On 18 January 1994, Fernando V. Torres filed an action for "Annulment and/or Declaration of
Nullity of a Deed of Absolute Sale and a Deed of Real Estate Mortgage," which deeds he had
apparently entered into with one Amparo Medina, and for the cancellation of eleven (11) checks
issued to the latter pursuant to their agreement. The case was docketed Civil Case No. Q-94-
18962 before Branch 216, presided by Judge Mariano I. Bacalla, of the Regional Trial Court of
Quezon City.

Shortly after the civil action was initiated, Amparo Medina, therein defendant, filed with the Office
of the Quezon City Prosecutor criminal cases against Fernando V. Torres for violation, on
several counts, of Batas Pambansa ("BP") 22 covering the eleven (11) checks involved in Civil
Case No. Q-94-18962. These criminal cases, docketed Criminal Cases Numbered 26789 to
26799, inclusive, were lodged with the Metropolitan Trial Court, Branch 36, presided by
respondent Judge Francisco D. Villanueva, of Quezon City. The accused, Fernando V. Torres,
through counsel, filed a motion for the suspension of the proceedings and the deferment of his
arraignment upon the thesis that the pendency of Civil Case No. Q-94-18962, along with the
resultant prayer for the cancellation of the eleven (11) checks, raised a prejudicial question that
had to be first resolved before any action could be taken on the criminal cases.

The denial of the motion for deferment by respondent Judge prompted Torres to file a "Petition
for Certiorari and Prohibition" before Judge Marina Buzon of Branch 91 of the Regional Trial
Court of Quezon City, seeking to enjoin respondent Judge Villanueva from setting the criminal
cases for arraignment.

On 15 December 1994, Judge Buzon granted the Torres petition and ordered respondent Judge
to suspend the scheduled arraignment; viz:

WHEREFORE, in view of the foregoing, the petition for certiorari and prohibition
is GRANTED. The Orders dated August 17, 1994 and September 7, 1994 are set
aside and respondent Judge is directed to suspend the arraignment and trial of
petitioner in Criminal Cases Nos. 26789-99 until after the prejudicial question
raised in civil case no. Q-94-18962 before the Regional Trial Court, Branch 216,
Quezon City, shall have been resolved.

The petition for mandamus is DENIED for lack of merit.1

Pursuant to the aforementioned order, Judge Villanueva suspended the proceedings in

the criminal cases.

On 07 March 1997, Judge Bacalla issued a decision in Civil Case No. Q-94-18962, dismissing
the complaint for annulment of contract and cancellation of the questioned checks for lack of
cause of action. On 13 April 1997, Torres filed a notice of appeal. On 07 May 1997, following the
dismissal of Civil Case No. Q-94-18962, Amparo Medina filed a "Motion to Revive Proceedings
in Criminal Cases Nos. 26789-99" with a request that the same be heard on 09 May 1997 at 8:30
in the morning. The counsel for defendant Torres received a copy of the motion on the same day
of 07 May 1997. Without waiting for the hearing scheduled on 09 May 1997, and without
affording the accused, Fernando Torres, the opportunity to express his stand on the motion,
respondent Judge Villanueva forthwith issued an order, dated 07 May 1997, granting the prayer
for the revival of the criminal proceedings and setting the arraignment and trial of the cases on 04
June 1997. Torres objected to the action taken by the judge as being a denial of his "day in
court." An immediate offshoot was the filing of the instant administrative complaint against
respondent Judge Francisco D. Villanueva.

Respondent Judge, in his comment, asserted that he had already resolved the issue on which
the instant administrative complaint was predicated in an order, dated 14 July 1997, which
denied an "Omnibus Motion for Reconsideration and Inhibition"2 filed by complainant. He
elaborated:

The Court, in its desire to facilitate the disposition of cases in view of the
numerous cases pending now in Court, resolved the Motion to Revive
Proceedings and granted the same. It is the prerogative of the Court, even
without waiting for the date set, if it believes that it would help in the disposition of
cases with pending incidents similar to this one.

The records will show that these informations were filed way back in July 1994
and because of the Petition for Certiorari, Prohibition with Preliminary Mandatory
Injunction and/or Temporary Restraining Order filed by the accused, with the
Regional Trial Court of Quezon City, the proceedings in these cases were
suspended as the Regional Trial Court, Branch 91 of Quezon City enjoined this
Court from proceedings with the arraignment of the accused. Said Petition
for Certiorari was decided by the Regional Trial Court of Quezon City, Branch 91
dated December 16, 1994 granting said Petition and this Court was directed to
suspend the arraignment and trial of these cases until after the prejudicial
question raised in Civil Case No. Q-94-18962 shall have been resolved which
was then pending before Branch 216 of the Regional Trial Court of Quezon City.
Then, on May 7, 1997, complainant through counsel filed this Motion to Revive
Proceedings attaching thereto a xerox copy of the Decision rendered by the Hon.
Mariano Bacalla dated March 7, 1997 dismissing Civil Case No. Q-94-18962
hence, the order of this Court dated May 7, 1997. The Motion for Reconsideration
therefore, considering the antecedent facts stated above, is hereby DENIED.

Likewise, the Motion for Inhibition, for lack of merit is hereby DENIED.3

In the same comment, respondent Judge, justifying his summary disposition of the
Medina motion, underscored his heavy caseload with as many as 3,208 cases still then
pending before his sala.

The Office of the Court Administrator ("OCA"), to which office this Court had referred the matter
for evaluation, report and recommendation, found respondent Judge guilty of abuse of authority
and impropriety;4 it concluded:

It is wrong for respondent to say that he came to know of this administrative case
only when he received the resolution of this Honorable Court dated September
27, 1999 requiring the parties to manifest whether they are submitting the case
on basis of the pleadings/records already filed and submitted. In the first
Indorsement dated July 10, 1997, this Office required respondent to comment on
the complaint. In compliance therewith, respondent filed his Comment on
September 10, 1997. Verily, respondent, for reasons known only to him, has
forgotten that he already filed his comment as early as September 10, 1997.

As to the merits of the case, we find respondent guilty of abuse of authority. The
Motion to Revive Proceedings in Criminal Cases Nos. 26789-26799 was
requested by the Plaintiff to be scheduled for hearing on July 9, 1997 and yet two
(2) days before that, respondent granted the motion. Respondent deprived herein
 complainant of his day in court. The reason offered by respondent that he acted
on the motion without waiting for the scheduled hearing because of his heavy
caseload is not acceptable. Waiting for the scheduled hearing before ruling on
the motion would not have caused too much delay because the difference
involved here was a mere two (2) days.

Additionally, by his hasty action, respondent created the impression in the minds
of herein complainant that he is partial in favor of the plaintiff. It has been
repeatedly held that a judge's official conduct and his behavior in the
performance of his official duties should be free from the appearance of
impropriety and must be beyond reproach. (Alazar vs. Reyes, 131 SCRA 445).
He should avoid even the slightest infraction of the law. (Cabrera vs. Pajares, 142
SCRA 127).

IN VIEW OF THE FOREGOING, the undersigned respectfully recommends that

a) the instant case be RE-DOCKETED as an administrative matter; and b)
respondent be FINED in the amount of P5,000.00 with a WARNING that a
repetition of the same or similar acts in the future shall be dealt with more
severely.

The Court concurs with the OCA in its above report and recommendation; nevertheless, the
Court deems it fit to reduce the recommended fine of P5,000.00.

While the effort of respondent Judge to hasten the speedy resolution of the cases before him is
commendable, that task, however, should not be done in utter disregard of the rudiments of
notice and hearing, an indispensable element of procedural due process to which the parties
before him are entitled. The duty to dispose of the court business promptly and to decide
cases5 within the prescribed periods should be consistent with a faithful compliance with the set
of procedures laid down therefor.6 The avowed purpose of acting on cases as early as possible
does not justify even the slightest abuse of judicial authority and discretion7 or excuse due
observance of the basic elements of the rule of law. 8 Every litigant is entitled to nothing less than
a righteous judgment rendered by the court in such a manner that begets no suspicion over the
assiduity, the fairness and integrity of the judge.9 The latter must constantly be careful to avoid
even the slightest infraction of the law and established rules lest it be a demoralizing example to
others. 10

Even if a judge were of the opinion that the right asserted by any of the parties is not anchored
on any legal foundation and that going through the rigors of a proceeding would be a waste of
time, he nonetheless should, to prevent the imputation of bias on his part, have the patience and
circumspection to give that party a chance to be heard. A display of petulance and impatience in
the conduct of trial is a norm of behavior incompatible with the needful attitude and sobriety of a
good judge. 11

The Office of the Court Administrator has taken note of the fact that Judge Francisco D.
Villanueva is also the respondent in other administrative cases, two of which have already been
resolved, one being dismissed and the other meriting a reprimand. 12 The outcome of the number
of cases filed against respondent notwithstanding, the conduct he has displayed in the instant
case does leave much more than can aptly be desired. Looking at his explanation, however, the
Court considers it proper to reduce in this instance the recommended fine to P2,000.00.

WHEREFORE, respondent Judge is held GUILTY of ABUSE OF AUTHORITY and is fined in the
amount of Two Thousand Pesos (P2,000.00) with a WARNING that repetition of the same or
similar acts in the future will be dealt with severely.

SO ORDERED.
Melo, Panganiban and Gonzaga-Reyes, JJ., concur.

Purisima, J., took no part - abroad.

Footnotes

1
Rollo, p. 11.

2
Order dated 14 July 1997, Records, pp. 14-15.

3
Rollo, pp. 13-14.

Alfredo L. Benipayo, Administrative Supervision of Courts; Re: Administrative

4

Matter MTJ-99-1227 dated 21 January 2000.

5
Aquino vs. Luntok, 184 SCRA 177.

6
Collado vs. Hernando, 161 SCRA 639.

7
Olaivar vs. Singco, 56 SCRA 232.

8
Alejandro vs. Pepito, 96 SCRA 322.

9
Lugue vs. Kayanan, 29 SCRA 165.

10
De la Paz vs. Inutan, 64 SCRA 540.

11
Santiago vs. Santos, 63 SCRA 392.

See Administrative Matter for Agenda, Office of the SC Court Administrator,

12

dated 06 September 1999, Records, pp. 21-24.