Republic of the Philippines SUPREME COURT Manila EN BANC

G.R. No. 128096 January 20, 1999 PANFILO M. LACSON, petitioner, vs. THE EXECUTIVE SECRETARY, THE SANDIGANBAYAN, OFFICE OF THE SPECIAL PROSECUTOR, THE DEPARTMENT OF JUSTICE, MYRNA ABALORA, NENITA ALAP-AP, IMELDA PANCHO MONTERO, and THE PEOPLE OF THE PHILIPPINES, respondent. ROMEO M. ACOP AND FRANCISCO G. ZUBIA, JR., petitioner-intervenors.

MARTINEZ, J.: The constitutionality of Sections 4 and 7 of Republic Act No. 8249 an act which further defines the jurisdiction of the Sandiganbayan is being challenged in this petition for prohibition and mandamus. Petitioner Panfilo Lacson, joined by petitioners-intervenors Romeo Acop and Francisco Zubia, Jr., also seeks to prevent the Sandiganbayan from proceedings with the trial of Criminal Cases Nos. 23047-23057 (for multiple murder) against them on the ground of lack of jurisdiction. The antecedents of this case, as gathered from the parties' pleadings and documentary proofs, are as follows: In the early morning of May 18, 1995, eleven (11) persons believed to be members of the Kuratong Baleleng gang, reportedly an organized crime syndicate which had been involved in a spate of bank robberies in Metro Manila, where slain along Commonwealth Avenue in Quezon City by elements of the Anti-Bank Robbery and Intelligence Task Group (ABRITG) headed by Chieff Superintendent Jewel Canson of the Philippine National Police (PNP). The ABRITG was composed of police officers from the Traffic Management Command (TMC) led by petitioner-intervenor Senior Superintendent Francisco Zubia, Jr.; Presidential Anti-Crime Commission Task Force Habagat (PACC-TFH) headed by petitioner Chief Superintendent Panfilo M. Lacson; Central Police District Command (CPDC) led by Chief Superintendent Ricardo de Leon; and the Criminal Investigation Command (CIC) headed by petitioner-intervenor Chief Superintendent Romeo Acop. Acting on a media expose of SPO2 Eduardo delos Reyes, a member of the CIC, that what actually transpired at dawn of May 18, 1995 was a summary execution (or a rub out) and not a shoot-out between the Kuratong Baleleng gang members and the ABRITG, Ombudsman Aniano Desierto formed a panel of investigators headed by the Deputy Ombudsman for Military Affairs, Bienvenido Blancaflor, to investigate the incident. This panel later absolved from any criminal liability all the PNP

officers and personal allegedly involved in May 18, 1995 incident, with a finding that the said incident was a legitimate police operation. 1 However, a review board led by Overall Deputy Ombudsman Francisco Villa modified modified the Blancaflor panel's finding and recommended the indictment for multiple murder against twenty-six (26) respondents, including herein petitioner and intervenors. The recommendation was approved by the Ombudsman except for the withdrawal of the charges against Chief Supt. Ricardo de Leon. Thus, on November 2, 1995, petitioner Panfilo Lacson was among those charged as principal in eleven (11) information for murder 2 before the Sandiganbayan's Second Division, while intervenors Romeo Acop and Francisco Zubia, Jr. were among those charged in the same informations as accessories after-in-the-fact. Upon motion by all the accused in the 11 information, 3 the Sandiganbayan allowed them to file a motion for reconsideration of the Ombudsman's action. 4 After conducting a reinvestigation, the Ombudsman filed on March 1, 1996 eleven (11) amended informations 5before the Sandiganbayan, wherein petitioner was charged only as an accessory, together with Romeo Acop and Francisco Zubia, Jr. and other. One of the accused 6 was dropped from the case. On March 5-6, 1996, all the accused filed separate motions questioning the jurisdiction of the Sandiganbayan, asserting that under the amended informations, the cases fall within the jurisdiction of the Regional Trial Court pursuant to Section 2 (paragraphs a and c) of Republic Act No. 7975. 7 They contend that the said law limited the jurisdiction of the Sandiganbayan to cases where one or more of the "principal accused" are government officials with Salary Grade (SG) 27 or higher, or PNP officials with the rank of Chief Superintendent (Brigadier General) or higher. The highest ranking principal accused in the amended informations has the rank of only a Chief Inspector, and none has the equivalent of at least SG 27. Thereafter, in a Resolution 8 dated May 8, 1996 (promulgated on May 9, 1996), penned by Justice Demetriou, with Justices Lagman and de Leon concurring, and Justices Balajadia and Garchitorena dissenting, 9 the Sandiganbayan admitted the amended information and ordered the cases transferred to the Quezon City Regional Trial Court which has original and exclusive jurisdiction under R.A. 7975, as none of the principal accused has the rank of Chief Superintendent or higher. On May 17, 1996, the Office of the Special Prosecutor moved for a reconsideration, insisting that the cases should remain with the Sandiganbayan. This was opposed by petitioner and some of the accused. While these motions for reconsideration were pending resolution, and even before the issue of jurisdiction cropped up with the filing of the amended informations on March 1, 1996, House Bill No. 2299 10 and No. 1094 11(sponsored by Representatives Edcel C. Lagman and Lagman and Neptali M. Gonzales II, respectively), as well as Senate Bill No. 844 12 (sponsored by Senator Neptali Gonzales), were introduced in Congress, defining expanding the jurisdiction of the Sandiganbayan. Specifically, the said bills sought, among others, to amend the jurisdiction of the Sandiganbayan by deleting the word "principal" from the phrase "principal accused" in Section 2 (paragraphs a and c) of R.A. No. 7975. These bills were consolidated and later approved into law as R.A. No. 8249 13 by the President of the Philippines on February 5, 1997.

Subsequently, on March 5, 1997, the Sandiganbayan promulgated a Resolution 14 denying the motion for reconsideration of the Special Prosecutor, ruling that it "stands pat in its resolution dated May 8, 1996." On the same day 15 the Sandiganbayan issued and ADDENDUM to its March 5, 1997 Resolution, the pertinent portion of which reads: After Justice Lagman wrote the Resolution and Justice Demetriou concurred in it, but before Justice de Leon. Jr. rendered his concurring and dissenting opinion, the legislature enacted Republic Act 8249 and the President of the Philippines approved it on February 5, 1997. Considering the pertinent provisions of the new law, Justices Lagman and Demetriou are now in favor of granting, as they are now granting, the Special Prosecutor's motion for reconsideration. Justice de Leon has already done so in his concurring and dissenting opinion. xxx xxx xxx Considering that three of the accused in each of these cases are PNP Chief Superintendents: namely, Jewel T. Canson, Romeo M. Acop and Panfilo M. Lacson, and that trial has not yet begun in all these cases in fact, no order of arrest has been issued this court has competence to take cognizance of these cases.
To recapitulate, the net result of all the foregoing is that by the vote of 3 of 2, the court admitted the Amended Informations in these cases by the unanimous vote of 4 with 1 neither concurring not dissenting, retained jurisdiction to try and decide the cases 16 (Empahasis supplied)

Petitioner now questions the constitutionality of Section 4 of R.A. No. 8249, including Section 7 thereof which provides that the said law "shall apply to all cases pending in any court over which trial has not begun as to the approval hereof." Petitioner argues that: a) The questioned provisions of the statute were introduced by the authors thereof in bad faith as it was made to precisely suit the situation in which petitioner's cases were in at the Sandiganbayan by restoring jurisdiction thereof to it, thereby violating his right to procedural due process and the equal protection clause of the Constitution. Further, from the way the Sandiganbayan has foot-dragged for nine (9) months the resolution of a pending incident involving the transfer of the cases to the Regional Trial Court, the passage of the law may have been timed to overtake such resolution to render the issue therein moot, and frustrate the exercise of petitioner's vested rights under the old Sandiganbayan law (RA 7975) b) Retroactive application of the law is plan from the fact that it was again made to suit the peculiar circumstances in which petitioner's cases were under, namely, that the trial had not yet commenced, as provided in Section 7, to make certain that those cases will no longer be remanded to the Quezon City Regional Trial Court, as the Sandiganbayan alone should try them, thus making it an ex post facto legislation and a denial of the right of petitioner as an accused in Criminal Case Nos. 23047-23057 to procedural due process.
c) The title of the law is misleading in that it contains the aforesaid "innocuous" provisions in Sections 4 and 7 which actually expands rather than defines the old Sandiganbayan

law (RA 7975), thereby violating the one-title one-subject requirement for the passage of statutes under Section 26 (1), Article VI of the Constitution. 17

For their part, the intervenors, in their petition-in-intervention, add that "while Republic Act No. 8249 innocuously appears to have merely expanded the jurisdiction of the Sandiganbayan, the introduction of Section 4 and 7 in said statute impressed upon it the character of a class legislation and an ex-post facto statute intended to apply specifically to the accused in the Kuratong Baleleng case pending before the Sandiganbayan. 18 They further argued that if their case is tried before the Sandiganbayan their right to procedural due process would be violated as they could no longer avail of the two-tiered appeal to the Sandiganbayan, which they acquired under R.A. 7975, before recourse to the Supreme Court. Both the Office of the Ombudsman and the Solicitor-General filed separate pleadings in support of the constitutionality of the challenged provisions of the law in question and praying that both the petition and the petition-in-intervention be dismissed. This Court then issued a Resolution 19 requiring the parties to file simultaneously within a nonextendible period of ten (10) days from notice thereof additional memoranda on the question of whether the subject amended informations filed a Criminal Case Nos. 23047-23057 sufficiently allege the commission by the accused therein of the crime charged within the meaning Section 4 b of Republic Act No. 8249, so as to bring the said cases within the exclusive original jurisdiction of the Sandiganbayan. The parties, except for the Solicitor General who is representing the People of the Philippines, filed the required supplemental memorandum within the nonextendible reglementary period. The established rule is that every law has in its favor the presumption of constitutionality, and to justify its nullification there must be a clear and unequivocal breach of the Constitution, not a doubtful and argumentative one. 20 The burden of proving the invalidity of the law lies with those who challenge it. That burden, we regret to say, was not convincingly discharged in the present case. The creation of the Sandiganbayn was mandated in Section 5, Article XIII of the 1973 Constitution, which provides: Sec. 5. The Batasang Pambansa shall create a special court, to be known as Sandiganbayan, which shall have jurisdiction over criminal and civil cases involving graft and corrupt practices and such other offenses committed by public officers and employees including those in government-owned or controlled corporations, in relation to their office as may be determined by law. The said special court is retained in the new (1987) Constitution under the following provisions in Article XI, Section 4: Sec. 4. The present anti-graft court known as the Sandiganbayan shall continue to function and exercise its jurisdiction as now or hereafter may be provided by law. Pursuant to the constitutional mandate, Presidential Decree No. 1486 21 created the Sandiganbayan. Thereafter, the following laws on the Sandiganbayan, in chronological order, were enacted: P.D. No. 1606, 22 Section 20 of Batas Pambansa Blg. 123, 23 P.D. No. 1860, 24 P.D. No. 1861, 25 R.A. No. 7975, 26 and R.A. No. 8249. 27 Under the latest amendments introduced by Section 4 of R.A. No. 8249, the Sandiganbayan has jurisdiction over the following cases:

Sec 4. Section 4 of the same decree [P.D. No. 1606, as amended] is hereby further amended to read as follows: Sec. 4. Jurisdiction The Sandiganbayan shall exercise exclusive original jurisdiction in all cases involving: a. Violations of Republic Act No. 3019, as amended, otherwise known as the AntiGraft and Corrupt Practices Act, Republic Act No. 1379, and Chapter II, Section 2, Titile VII, Book II of the Revised Penal Code, where one or more of the accused are officials occupying the following positions in the government, whether in a permanent, acting or interim capacity, at the time of the commission of the offense: (1) Officials of the executive branch occupying the positions of regional director and higher, otherwise classified as Grade "27" and higher, of the Compensation and Position Classification Act of 1989 (Republic Act No. 6758), specifically including: (a) Provincial governors, vice-governors, members of the sangguniang panlalawigan, and provincial treasurers, assessors, engineers, and other provincial department heads; (b) City mayors, vice-mayors, members of the sangguniang panlungsod, city treasurers, assessors, engineers, and other city department heads; (c) Officials of the diplomatic service occupying the position of consul and higher; (d) Philippine Army and air force colonels, naval captains, and all officers of higher rank; (e) Officers of the Philippines National Police while occupying the position of provincial director and those holding the rank of senior superintendent or higher. (f) City of provincial prosecutors and their assistants, and officials and prosecutors in the Office of the Ombudsman and special prosecutor; (g) Presidents, directors or trustees or managers of governmentowned or controlled corporations, state universities or educational institutions or foundations; (2) Members of Congress or officials thereof classified as-Grade "27" and up under the Compensation and Position Classification Act of 1989; (3) Members of the judiciary without prejudice to the provisions of the Constitution; (4) Chairman and members of the Constitutional Commissions, without prejudice to the provisions of the Constitution; (5) All other national and local officials classified as Grade "27" or higher under the Compensation and Position Classification Act of 1989.

b. Other offenses or felonies whether simple or complexed with other crimes committed by the public officials and employees mentioned in Subsection a of this section in relation to their office. c. Civil and criminal cases filed pursuant to and connection with Executive Orders Nos. 1,2, 14 and 14-A, issued in 1986. In cases where none of the accused are occupying positions corresponding to salary Grade "27" or higher, as prescribed in the said Republic Act 6758, or military and PNP officers mentioned above, exclusive original jurisdiction thereof shall be vested in the proper regional trial court, metropolitan trial court, municipal trial court, and municipal circuit trial court, as the case may be, pursuant to their jurisdictions as privided in Batas Pambansa Blg. 129, as amended. The Sandiganbayan shall exercise exclusive appellate jurisdiction over final judgments, resolutions or orders of regional trial courts whether in the exercise of their own original jurisdiction or of their appellate jurisdiction as herein provided. The Sandiganbayan shall have exclusive original jurisdiction over petitions of the issuance of the writs of mandamus, prohibition, certiorari, habeas corpus, injunctions, and other ancillary writs and processes in aid of its appellate jurisdiction and over petitions of similar nature, including quo warranto, arising or that may arise in cases filed or which may be filed under Executive Order Nos. 1, 2, 14 and 14-A, issued in 1986: Provided, That the jurisdiction over these petitions shall not be exclusive of the Supreme Court. The procedure prescribed in Batas Pambansa Blg. 129, as well as the implementing rules that the Supreme Court has promulgated and may hereafter promulgate, relative to appeals/petitions for review to the Court of Appeals, shall apply to appeals and petitions for review filed with the Sandiganbayan. In all cases elevated to the Sandiganbayan and from the Sandiganbayan to the Supreme Court, the Office of the Ombudsman, through its special prosecutor, shall represent the People of the Philippines, except in cases filed pursuant to Executive Order Nos. 1, 2, 14, and 4-A, issued in 1986. In case private individuals are charged as co-principals, accomplices or accessories with the public officers or employee, including those employed in government-owned or controlled corporations, they shall be tried jointly with said public officers and employees in the proper courts which shall exercise exclusive jurisdiction over them. xxx xxx xxx (Emphasis supplied) Sec. 7 of R.A. No. 8249 states: Sec. 7. Transitory provision This act shall apply to all cases pending in any court over which trial has not begun as of the approval hereof. (Emphasis supplied) The Sandiganbayan law prior to R.A. 8249 was R.A. 7975. Section 2 of R.A. 7975 provides: Sec. 2. Section 4 of the same decree [Presidential Decree No. 1606, as amended) is hereby further amended to read as follows:

Sec 4. Jurisdiction The Sandiganbayan shall exercise exclusive original jurisdiction in all cases involving: a. Violations of Republic Act No. 3019, as amended, otherwise known as the AntiGraft and Corrupt Practices Act, Republic Act No. 1379, and Chapter II, Section 2, Title VII, Book II of the Revised Penal Code, where one or more of the pricipal accused are afficials occupying the following positions in the government, whether in a permanent, acting or interim capacity, at the time of the commission of the offense: (1) Officials of the executive branch occupying the positions of regional director and higher, otherwise classified as Grade "27" and higher, of the Compensation and Position Classification Act of 1989 (Republic Act No. 6758), specifically including: (a) Provincial governors, vice-governors, members of the sangguniang panlalawigan, and provincial treasurers, assessors, engineer, and other provincial department heads; (b) City mayors, vice-mayors, members of the sangguniang panlungsod, city treasurers, assessors, engineers, and other city department heads; (c) Officials of the diplomatic service occupying the position of consul and higher; (d) Philippine Army and air force colonels, naval captains, and all officers of higher rank; (e) PNP chief superintendent and PNP officers of higher rank; (f) City and provincial prosecutors and their assistants, and officials and prosecutors in the Office of the Ombudsman and special prosecutor; (g) Presidents, directors or trustees, or managers of governmentowned or controlled corporations, state universities or educational institutions or foundations; (2) Members of Congress or officials thereof classified as Grade "27" and up under the Compensation and Position Classification Act of 1989; (3) Members of the judiciary without prejudice to the provisions of the Constitution; (4) Chairman and members of the Constitutional Commissions, without prejudice to the provisions of the Constitution; (5) All other national and local officials classified as Grade "27" or higher under the Compensation and Position Classification Act of 1989. b. Other offenses or felonies committed by the public officials and employees mentioned in Subsection a of this section in relation to their office.

c. Civil and criminal cases files pursuant to and in connection with Executive Order Nos. 1, 2, 14, and 4-A. In cases where none of the principal accused are occupying positions corresponding to salary Grade "27" or higher, as presribed in the said Republic Act 6758, or PNP officers occupying the rank of superintendent or higher, or their equivalent, exclusive jurisdiction thereof shall be vested in the proper regional trial court, metropolitan trial court, municipal trial court, and municipal circuit trial court, as the case may be, pursuant to their respective jurisdictions as provided in Batas Pambansa Blg. 129. The Sandiganbayan shall exercise exclusive appellate jurisdiction on appelas from the final judgment, resolutions or orders of regular court where all the accused are occupying positions lower than grade "27," or not otherwise covered by the preceding enumeration. xxx xxx xxx In case private individuals are charged as co-principals, accomplices or accessories with the public officers or employees, including those employed in governmentowned or controlled corporations, they shall be tried jointly with said public officers and employees in the proper courts which shall have exclusive jurisdiction over them. xxx xxx xxx (Emphasis supplied) Sec. 7 of R.A. No. 7975 reads: Sec. 7. Upon the effectivity of this Act, all criminal cases in which trial has not begun in the Sandiganbayan shall be referred to the proper courts. Under paragraphs a and c, Section 4 of R.A. 8249, the word "principal" before the word "accused" appearing in the above-quoted Section 2 (paragraphs a and c) of R.A. 7975, was deleted. It is due to this deletion of the word "principal" that the parties herein are at loggerheads over the jurisdiction of the Sandiganbayan. Petitioner and intervenors, relying on R.A. 7975, argue that the Regional Trial Court, not the Sandiganbayan, has jurisdiction over the subject criminal cases since none of the principal accused under the amended information has the rank of Superintendent 28 or higher. On the other hand, the Office of the Ombudsman, through the Special Prosecutor who is tasked to represent the People before the Supreme Court except in certain cases, 29 contends that the Sandiganbayan has jurisdiction pursuant to R.A. 8249. A perusal of the aforequoted Section 4 of R.A. 8249 reveals that to fall under the exclusive original jurisdiction of the Sandiganbayan, the following requisites must concur: (1) the offense committed is a violation of (a) R.A. 3019, as amended (the Anti-Graft and Corrupt Practices Act), (b) R.A. 1379 (the law on ill-gotten wealth), (c) Chapter II, Section 2, Title VII, Book II of the Revised Penal Code (the law on bribery), 30 (d) Executive Order Nos. 1, 2, 14, and 14-A, issued in 1986 (sequestration cases), 31 or (e) other offenses or felonies whether simple or complexed with other crimes; (2) the offender comitting the offenses in items (a), (b), (c) and (e) is a public official or employee 32 holding any of the positions enumerated in paragraph a of Section 4; and (3) the offense committed is in relation to the office. Considering that herein petitioner and intervenors are being charged with murder which is a felony punishable under Title VIII of the Revised Penal Code, the governing on the jurisdictional offense is not paragraph a but paragraph b, Section 4 of R.A. 8249. This paragraph b pertains to "other

offenses or felonies whether simple or complexed with other crimes committed by the public officials and employees mentioned in subsection a of (Section 4, R.A. 8249) in relation to their office. "The phrase" other offenses or felonies" is too broad as to include the crime of murder, provided it was committed in relation to the accused's officials functions. Thus, under said paragraph b, what determines the Sandiganbayan's jurisdiction is the official position or rank of the offender that is, whether he is one of those public officers or employees enumerated in paragraph a of Section 4. The offenses mentioned in pargraphs a, b and c of the same Section 4 do not make any reference to the criminal participation of the accused public officer as to whether he is charged as a principal, accomplice or accessory. In enacting R.A. 8249, the Congress simply restored the original provisions of P.D. 1606 which does not mention the criminal participation of the public officer as a requisite to determine the jurisdiction of the Sandiganbayan. Petitioner and entervenors' posture that Section 4 and 7 of R.A. 8249 violate their right to equal protection of the law 33 because its enactment was particularly directed only to the Kuratong Baleleng cases in the Sandiganbayan, is a contention too shallow to deserve merit. No concrete evidence and convincing argument were presented to warrant a declaration of an act of the entire Congress and signed into law by the highest officer of the co-equal executive department as unconstitutional. Every classification made by law is presumed reasonable. Thus, the party who challenges the law must present proof of arbitrariness. 34 It is an established precept in constitutional law that the guaranty of the equal protection of the laws is not violated by a legislation based on reasonable classification. The classification is reasonable and not arbitrary when there is concurrence of four elements, namely: (1) it must rest on substantial distinction; (2) it must be germane to the purpose of the law; (3) must not be limited to existing conditions only, and
(4) must apply equaly to all members of the same class, 35

all of which are present in this case. The challengers of Sections 4 and 7 of R.A. 8249 failed to rebut the presumption of constitutionality and reasonables of the questioned provisions. The classification between those pending cases involving the concerned public officials whose trial has not yet commence and whose cases could have been affected by the amendments of the Sandiganbayan jurisdiction under R.A. 8249, as against those cases where trial had already started as of the approval of the law, rests on substantial distinction that makes real differences. 36 In the first instance, evidence against them were not yet presented, whereas in the latter the parties had already submitted their respective proofs, examined witnesses and presented documents. Since it is within the power of Congress to define the jurisdiction of courts subject to the constitutional limitations, 37 it can be reasonably anticipated that an alteration of that jurisdiction would necessarily affect pending cases, which is why it has to privide for a remedy in the form of a transitory provision. Thus, petitioner and intervenors cannot now claim that Sections 4 and 7 placed them under a different category from those similarly situated as them. Precisely, paragraph a of Section 4 provides that it shall apply to "all case involving" certain public officials and, under the transitory provision in Section 7, to "all cases pending in any court." Contrary to petitioner and intervenors' argument, the law is not particularly directed only to the Kuratong Baleleng cases. The transitory provision does not only cover cases which are in the Sandiganbayan but also in "any court." It just happened that Kuratong Baleleng cases are one of those affected by

the law. Moreover, those cases where trial had already begun are not affected by the transitory provision under Section 7 of the new law (R.A. 8249). In their futile attempt to have said sections nullified, heavy reliance is premised on what is perceived as bad faith on the part of a Senator and two Justices of the Sandiganbaya 38 for their participation in the passage of the said provisions. In particular, it is stressed that the Senator had expressed strong sentiments against those officials involved in the Kuratong Baleleng cases during the hearings conducted on the matter by the committee headed by the Senator. Petitioner further contends that the legislature is biased against him as he claims to have been selected from among the 67 million other Filipinos as the object of the deletion of the word "principal" in paragraph a, Section 4 of P.D. 1606, as amended, and of the transitory provision of R.A. 8249. 39 R.A 8249, while still a bill, was acted, deliberated, considered by 23 other Senators and by about 250 Representatives, and was separately approved by the Senate and House of Representatives and, finally, by the President of the Philippines. On the perceived bias that the Sandiganbayan Justices allegedly had against petitioner during the committe hearings, the same would not constitute sufficient justification to nullify an otherwise valid law. Their presence and participation in the legislative hearings was deemed necessary by Congress since the matter before the committee involves the graft court of which one is the head of the Sandiganbayan and the other a member thereof. The Congress, in its plenary legislative powers, is particularly empowered by the Constitution to invite persons to appear before it whenever it decides to conduct inquiries in aid of legislation. 40 Petitioner and entervenors further further argued that the retroactive application of R.A. 8249 to the Kuratong Baleleng cases constitutes an ex post facto law 41 for they are deprived of their right to procedural due process as they can no longer avail of the two-tiered appeal which they had allegedly acquired under R.A. 7975. Again, this contention is erroneous. There is nothing ex post facto in R.A. 8249. In Calder v. Bull, 42 an ex post facto law is one (a) which makes an act done criminal before the passing of the law and which was innocent when committed, and punishes such action; or (b) which aggravates a crime or makes it greater than when it was committed; or (c) which changes the punishment and inflicts a greater punishment than the law annexed to the crime when it was committed.
(d) which alters the legal rules of evidence and recieves less or different testimony that the law required at the time of the commission of the offense on order to convict the defendant. 43 (e) Every law which, in relation to the offense or its consequences, alters the situation of a person to his disadvantage. 44

This Court added two more to the list, namely:

(f) that which assumes to regulate civil rights and remedies only but in effect imposes a penalty or deprivation of a right which when done was lawful;
(g) deprives a person accussed of crime of some lawful protection to which he has become entitled, such as the protection of a former conviction or acquittal, or a proclamation of a amnesty. 45

Ex post facto law, generally, prohibits retrospectivity of penal laws. 46 R.A. 8249 is not penal law. It is a substantive law on jurisdiction which is not penal in character. Penal laws are those acts of the Legislature which prohibit certain acts and establish penalties for their violations; 47 or those that define crimes, treat of their nature, and provide dor their punishment. 48 R.A 7975, which amended P.D. 1606 as regards the Sandiganbayan's jurisdiction, its mode of appeal and other procedural matters, has been declared by the Court as not a penal law, but clearly a procedural statute, i.e. one which prescribes rules of procedure by which courts applying laws of all kinds can properly administer justice. 49 Not being a penal law, the retroactive application of R.A. 8249 cannot be challenged as unconstitutional. Petitioner's and entervenors' contention that their right to a two-tiered appeal which they acquired under R.A. 7975 has been diluted by the enactment of R.A. 8249, is incorrect. The same contention has already been rejected by the court several times 50 considering that the right to appeal is not a natural right but statutory in nature that can be regulated by law. The mode of procedure provided for in the statutory right of appeal is not included in the prohibition against ex post facto laws. 51 R.A. 8249 pertains only to matters of procedure, and being merely an amendatory statute it does not partake the nature of an ex post facto law. It does not mete out a penalty and, therefore, does not come within the prohibition. 52 Moreover, the law did not alter the rules of evidence or the mode of trial. 53 It has been ruled that adjective statutes may be made applicable to actions pending and unresolved at the time of their passage. 54 In any case; R.A. 8249 has preserved the accused's right to appeal to the Supreme Court to review questions of law. 55 On the removal of the intermediate review of facts, the Supreme Court still has the power of review to determine if he presumption of innocence has been convincing overcome. 56 Another point. The challenged law does not violate the one-title-one-subject provision of the Constitution. Much emphasis is placed on the wording in the title of the law that it "defines" the Sandiganbayan jurisdiction when what it allegedly does is to "expand" its jurisdiction. The expantion in the jurisdiction of the Sandiganbayan, if it can be considered as such, does not have to be expressly stated in the title of the law because such is the necessary consequence of the amendments. The requirement that every bill must only have one subject expressed in the title 57 is satisfied if the title is comprehensive enough, as in this case, to include subjects related to the general purpose which the statute seeks to achieve. 58 Such rule is liberally interpreted and should be given a practical rather than a technical construction. There is here sufficient compliance with such requirement, since the title of R.A. 8249 expresses the general subject (involving the jurisdiction of the Sandiganbayan and the amendment of P.D. 1606, as amended) and all the provisions of the law are germane to that general subject. 59 The Congress, in employing the word "define" in the title of the law, acted within its power since Section 2, Article VIII of the Constitution itself empowers the legislative body to "define, prescribe, and apportion the jurisdiction of various courts. 60 There being no unconstitutional infirmity in both the subject amendatory provision of Section 4 and the retroactive procedural application of the law as provided in Section 7 of R.A. No. 8249, we shall now determine whether under the allegations in the Informations, it is the Sandiganbayan or

Regional Trial Court which has jurisdictions over the multiple murder case against herein petitioner and entervenors. The jurisdiction of a court is defined by the Constitution or statute. The elements of that definition must appear in the complaint or information so as to ascertain which court has jurisdiction over a case. Hence the elementary rule that the jurisdiction of a court is determined by the allegations in the complaint or informations, 61 and not by the evidence presented by the parties at the trial. 62 As stated earlier, the multiple murder charge against petitioner and intervenors falls under Section 4 [paragraph b] of R.A. 8249. Section 4 requires that the offense charged must be committed by the offender in relation to his office in order for the Sandiganbayan to have jurisdiction over it. 63 This jurisdictional requirement is in accordance with Section 5, Article XIII of the 1973 Constitution which mandated that the Sandiganbayan shall have jurisdiction over criminal cases committed by the public officers and employees, including those in goverment-owned or controlled corporations, "in relation to their office as may be determined by law." This constitutional mandate was reiterated in the new (1987) Constitution when it declared in Section 4 thereof that the Sandiganbayan shall continue to function and exercise its jurisdiction as now or hereafter may be provided by law. The remaining question to be resolved then is whether the offense of multiple murder was committed in relation to the office of the accussed PNP officers. In People vs. Montejo, 64 we held that an offense is said to have been committed in relation to the office if it (the offense) is "intimately connected" with the office of the offender and perpetrated while he was in the performance of his official functions. 65 This intimate relation between the offense charged and the discharge of official duties "must be alleged in the informations." 66 As to how the offense charged be stated in the informations, Section 9, Rule 110 of the Revised Rules of Court mandates: Sec. 9 Couse of accusation The acts or omissions complied of as constituting the offense must be stated in ordinary and concise language without repetition not necessarily in the terms of the statute defining the offense, but in such from as is sufficient to enable a person of common understanding to know what offense is intended to be charged, and enable the court to pronounce proper judgment. (Emphasis supplied) As early as 1954 we pronounced that "the factor that characterizes the charge is the actual recital of the facts." 67The real nature of the criminal charge is determined not from the caption or preamble of the informations nor from the specification of the provision of law alleged to have been violated, they being conclusions of law, but by the actual recital of facts in the complaint or information. 68 The noble object or written accusations cannot be overemphasized. This was explained in U.S. v. Karelsen: 69 The object of this written accusations was First; To furnish the accused with such a descretion of the charge against him as will enable him to make his defense and second to avail himself of his conviction or acquittal for protection against a further prosecution for the same cause and third, to inform the court of the facts alleged so that it may decide whether they are sufficient in law to support a conviction if one should be had. In order that the requirement may be satisfied, facts must be stated, not conclusions of law. Every crime is made up of certain acts and intent these must be set forth in the complaint with reasonable

particularly of time, place, names (plaintiff and defendant) and circumstances. In short, the complaint must contain a specific allegation of every fact andcircumstance necessary to constitute the crime charged. (Emphasis supplied) It is essential, therefore, that the accused be informed of the facts that are imputed to him as "he is presumed to have no indefendent knowledge of the facts that constitute the offense." 70 Applying these legal principles and doctrines to the present case, we find the amended informations for murder against herein petitioner and intervenors wanting of specific factual averments to show the intimate relation/connection between the offense charged and the discharge of official function of the offenders. In the present case, one of the eleven (11) amended informations 71 for murder reads: AMENDED INFORMATIONS The undersigned Special Prosecution Officer III. Office of the Ombudsman hereby accuses CHIEF INSP. MICHAEL RAY AQUINO, CHIEF INSP. ERWIN T. VILLACORTE, SENIOR INSP. JOSELITO T. ESQUIVEL, INSP. RICARDO G. DANDAN, SPO4 VICENTE P. ARNADO, SPO4 ROBERTO F. LANGCAUON, SPO2 VIRGILIO V. PARAGAS, SPO2 ROLANDO R. JIMENEZ, SPO1 WILFREDO C. CUARTERO, SPO1 ROBERTO O. AGBALOG, SPO1 OSMUNDO B. CARINO, CHIEF SUPT. JEWEL F. CANSON, CHIEF SUPT. ROMEO M. ACOP, CHIEF SUPT. PANFILO M. LACSON, SENIOR SUPT. FRANCISCO G. ZUBIA JR., SUPT. ALMARIO A. HILARIO, CHIEF INSP. CESAR O. MANCAO III, CHIEF INSP. GIL L. MENESES, SENIOR INSP. GLENN DUMLAO, SENIOR INSP. ROLANDO ANDUYAN, INSP. CEASAR TANNAGAN, SPO3 WILLY NUAS, SPO3 CICERO S. BACOLOD, SPO2 NORBERTO LASAGA, PO2 LEONARDO GLORIA, and PO2 ALEJANDRO G. LIWANAG of the crime of Murder as defined and penalize under Article 248 of the Revised Penal Code committed as follows That on or about May 18, 1995 in Mariano Marcos Avenue, Quezon City Philippines and within the jurisdiction of his Honorable Court, the accused CHIEF INSP. MICHAEL RAY AQUINO, CHIEF INSP. ERWIN T. VILLACORTE, SENIOR INSP. JOSELITO T. ESQUIVEL, INSP. RICARDO G. DANDAN, SPO4 VICENTE ARNADO, SPO4 ROBERTO F. LANGCAUON, SPO2 VIRGILIO V. PARAGAS, SPO2 ROLANDO R. JIMENEZ, SPO1 WILFREDO C. CUARTERO, SPO1 ROBERTO O. AGBALOG, and SPO1 OSMUNDO B. CARINO, all taking advantage of their public and official positions as officers and members of the Philippine National Police and committing the acts herein alleged in relation to their public office, conspiring with intent to kill and using firearms with treachery evident premeditation and taking advantage of their superior strenghts did then and there willfully unlawfully and feloniously shoot JOEL AMORA, thereby inflicting upon the latter mortal wounds which caused his instantaneous death to the damage and prejudice of the heirs of the said victim. That accused CHIEF SUPT. JEWEL F. CANSON, CHIEF SUPT. ROMOE M. ACOP, CHIEF SUPT. PANFILO M. LACSON, SENIOR SUPT. FRANCISCO G. ZUBIAM JR., SUPT. ALMARIO A. HILARIO, CHIEF INSP. CESAR O. MANCAO II, CHIEF INSP. GIL L. MENESES, SENIOR INSP. GLENN DUMLAO, SENIOR INSP. ROLANDO ANDUYAN, INSP. CEASAR TANNAGAN, SPO3 WILLY NUAS, SPO3 CICERO S. BACOLOD, PO2 ALEJANDRO G. LIWANAG committing the acts in

relation to office as officers and members of the Philippine National Police are charged herein as accessories after-the-fact for concealing the crime herein above alleged by among others falsely representing that there where no arrest made during the read conducted by the accused herein at Superville Subdivision, Paranaque, Metro Manila on or about the early dawn of May 18, 1995. CONTRARY LAW. While the above-quoted information states that the above-named principal accused committed the crime of murder "in relation to thier public office, there is, however, no specific allegation of facts that the shooting of the victim by the said principal accused was intimately related to the discharge of their official duties as police officers. Likewise, the amended information does not indicate that the said accused arrested and investigated the victim and then killed the latter while in their custody. Even the allegations concerning the criminal participation of herein petitioner and intevenors as among the accessories after-the-facts, the amended information is vague on this. It is alleged therein that the said accessories concelead "the crime herein-above alleged by, among others, falsely representing that there were no arrests made during the raid conducted by the accused herein at Superville Subdivision, Paranaque Metro Manila, on or about the early dawn of May 18, 1995." The sudden mention of the "arrests made during the raid conducted by the accused" surprises the reader. There is no indication in the amended information that the victim was one of those arrested by the accused during the "raid." Worse, the raid and arrests were allegedly conducted "at Superville Subdivision, Paranaque, Metro Manila" but, as alleged in the immediately preceding paragraph of the amended information, the shooting of the victim by the principal accused occurred in Mariano Marcos Avenue, Quezon City." How the raid, arrests and shooting happened in the two places far away from each other is puzzling. Again, while there is the allegation in the amended information that the said accessories committed the offense "in relation to office as officers and members of the (PNP)," we, however, do not see the intimate connection between the offense charged and the accused's official functions, which, as earlier discussed, is an essential element in determining the jurisdiction of the Sandiganbayan. The stringent requirement that the charge be set forth with such particularly as will reasonably indicate the exact offense which the accused is alleged to have committed in relation to his office was, sad to say, not satisfied. We believe that the mere allegation in the amended information that the offense was committed by the accused public officer in relation to his office is not sufficient. That phrase is merely a conclusion between of law, not a factual avernment that would show the close intimacy between the offense charged and the discharge of the accused's official duties. In People vs. Magallanes, 72 where the jurisdiction between the Regional Trial Court and the Sandiganbayan was at issue, we ruled: It is an elementary rule that jurisdiction is determined by the allegations in the complaint or information and not by the result of evidence after trial. In (People vs) Montejo (108 Phil 613 (1960), where the amended information alleged Leroy S. Brown City Mayor of Basilan City, as such, has organized groups of police patrol and civilian commandoes consisting of regular policeman and . . . special policemen appointed and provided by him with pistols and higher power guns and then established a camp . . . at Tipo-tipo which is under his command . . . supervision and control where his co-defendants were stationed entertained criminal

complaints and conducted the corresponding investigations as well as assumed the authority to arrest and detain person without due process of law and without bringing them to the proper court, and that in line with this set-up established by said Mayor of Basilan City as such, and acting upon his orders his co-defendants arrested and maltreated Awalin Tebag who denied in consequence thereof. we held that the offense charged was committed in relation to the office of the accused because it was perpetreated while they were in the performance, though improper or irregular of their official functions and would not have been committed had they not held their office, besides, the accused had no personal motive in committing the crime thus, there was an intimate connection between the offense and the office of the accused. Unlike in Montejo the informations in Criminal Cases Nos. 15562 and 15563 in the court below do not indicate that the accused arrested and investigated the victims and then killed the latter in the course of the investigation. The informations merely allege that the accused for the purpose of extracting or extortin the sum of P353,000.00 abducted, kidnapped and detained the two victims, and failing in their common purpose they shot; and killed the said victims. For the purpose of determining jurisdiction, it is these allegations that shall control, and not the evidence presented by the prosecution at the trial. In the aforecited case of People vs. Montejo, it is noteworthy that the phrase committed in relation to public office "does not appear in the information, which only signifies that the said phrase is not what determines the jurisdiction of the Sandiganbayan. What is controlling is the specific factual allegations in the information that would indicate the close intimacy between the discharge of the accused's official duties and the commission of the offense charged, in order to qualify the crime as having been committed in relation to public office. Consequently, for failure to show in the amended informations that the charge of murder was intimately connected with the discharge of official functions of the accused PNP officers, the offense charged in the subject criminal cases is plain murder and, therefore, within the exclusive original jurisdiction of the Regional Trial Court, 73 not the Sandiganbayan. WHEREFORE, the constitutionality of Sections 4 and 7 of R.A. 8249 is hereby sustained. The Addendum to the March 5, 1997 Resolution of the Sandiganbayan is REVERSED. The Sandiganbayan is hereby directed to transfer Criminal Cases Nos. 23047 to 23057 (for multiple murder) to the Regional Trial Court of Quezon City which has exclusive original jurisdiction over the said cases.
1wphi1. nt

SO ORDERED. Davide, Jr., CJ., Romero, Bellosillo, Melo, Puno, Vitug, Kapunan, Mendoza, Panganiban, Quisumbing, Purisima, Pardo, Buena and Gonzaga-Reyes, JJ., concur.

Republic of the Philippines SUPREME COURT Manila FIRST DIVISION G.R. No. 125865 March 26, 2001

JEFFREY LIANG (HUEFENG), petitioner, vs. PEOPLE OF THE PHILIPPINES, respondent. RESOLUTION YNARES-SANTIAGO, J.: This resolves petitioner's Motion for Reconsideration of our Decision dated January 28, 2000, denying the petition for review. The Motion is anchored on the following arguments: 1) THE DFA'S DETERMINATION OF IMMUNITY IS A POLITICAL QUESTION TO BE MADE BY THE EXECUTIVE BRANCH OF THE GOVERNMENT AND IS CONCLUSIVE UPON THE COURTS. 2) THE IMMUNITY OF INTERNATIONAL ORGANIZATIONS IS ABSOLUTE. 3) THE IMMUNITY EXTENDS TO ALL STAFF OF THE ASIAN DEVELOPMENT BANK (ADB). 4) DUE PROCESS WAS FULLY AFFORDED THE COMPLAINANT TO REBUT THE DFA PROTOCOL. 5) THE DECISION OF JANUARY 28, 2000 ERRONEOUSLY MADE A FINDING OF FACT ON THE MERITS, NAMELY, THE SLANDERING OF A PERSON WHICH PREJUDGED PETITIONER'S CASE BEFORE THE METROPOLITAN TRIAL COURT (MTC)MANDALUYONG. 6) THE VIENNA CONVENTION ON DIPLOMATIC RELATIONS IS NOT APPLICABLE TO THIS CASE. This case has its origin in two criminal Informations1 for grave oral defamation filed against petitioner, a Chinese national who was employed as an Economist by the Asian Development Bank (ADB), alleging that on separate occasions on January 28 and January 31, 1994, petitioner allegedly uttered defamatory words to Joyce V. Cabal, a member of the clerical staff of ADB. On April 13, 1994, the Metropolitan Trial Court of Mandaluyong City, acting pursuant to an advice from the Department of Foreign Affairs that petitioner enjoyed immunity from legal processes, dismissed the criminal Informations against him. On a petition for certiorari and mandamus filed by the People, the Regional Trial Court of Pasig City, Branch 160, annulled and set aside the order of the Metropolitan Trial Court dismissing the criminal cases.2

Petitioner, thus, brought a petition for review with this Court. On January 28, 2000, we rendered the assailed Decision denying the petition for review. We ruled, in essence, that the immunity granted to officers and staff of the ADB is not absolute; it is limited to acts performed in an official capacity. Furthermore, we held that the immunity cannot cover the commission of a crime such as slander or oral defamation in the name of official duty. On October 18, 2000, the oral arguments of the parties were heard. This Court also granted the Motion for Intervention of the Department of Foreign Affairs. Thereafter, the parties were directed to submit their respective memorandum. For the most part, petitioner's Motion for Reconsideration deals with the diplomatic immunity of the ADB, its officials and staff, from legal and judicial processes in the Philippines, as well as the constitutional and political bases thereof. It should be made clear that nowhere in the assailed Decision is diplomatic immunity denied, even remotely. The issue in this case, rather, boils down to whether or not the statements allegedly made by petitioner were uttered while in the performance of his official functions, in order for this case to fall squarely under the provisions of Section 45 (a) of the "Agreement Between the Asian Development Bank and the Government of the Republic of the Philippines Regarding the Headquarters of the Asian Development Bank," to wit: Officers and staff of the Bank, including for the purpose of this Article experts and consultants performing missions for the Bank, shall enjoy the following privileges and immunities: (a) Immunity from legal process with respect to acts performed by them in their official capacity except when the Bank waives the immunity. After a careful deliberation of the arguments raised in petitioner's and intervenor's Motions for Reconsideration, we find no cogent reason to disturb our Decision of January 28, 2000. As we have stated therein, the slander of a person, by any stretch, cannot be considered as falling within the purview of the immunity granted to ADB officers and personnel. Petitioner argues that the Decision had the effect of prejudging the criminal case for oral defamation against him. We wish to stress that it did not. What we merely stated therein is that slander, in general, cannot be considered as an act performed in an official capacity. The issue of whether or not petitioner's utterances constituted oral defamation is still for the trial court to determine. WHEREFORE, in view of the foregoing, the Motions for Reconsideration filed by petitioner and intervenor Department of Foreign Affairs are DENIED with FINALITY. SO ORDERED. Kapunan and Pardo, JJ ., concur. Davide, Jr., C.J., I also join concurring opinion of Mr. Justice Puno. Puno, J., Please see concurring opinion.

Concurring Opinions PUNO, J., concurring:

For resolution is the Motion for Reconsideration filed by petitioner Jeffrey Liang of this Court's decision dated January 28, 2000 which denied the petition for review. We there held that: the protocol communication of the Department of Foreign Affairs to the effect that petitioner Liang is covered by immunity is only preliminary and has no binding effect in courts; the immunity provided for under Section 45(a) of the Headquarters Agreement is subject to the condition that the act be done in an "official capacity"; that slandering a person cannot be said to have been done in an "official capacity" and, hence, it is not covered by the immunity agreement; under the Vienna Convention on Diplomatic Relations, a diplomatic agent, assuming petitioner is such, enjoys immunity from criminal jurisdiction of the receiving state except in the case of an action relating to any professional or commercial activity exercised by the diplomatic agent in the receiving state outside his official functions; the commission of a crime is not part of official duty; and that a preliminary investigation is not a matter of right in cases cognizable by the Metropolitan Trial Court. Petitioner's motion for reconsideration is anchored on the following arguments: 1. The DFA's determination of immunity is a political question to be made by the executive branch of the government and is conclusive upon the courts; 2. The immunity of international organizations is absolute; 3. The immunity extends to all staff of the Asian Development Bank (ADB); 4. Due process was fully accorded the complainant to rebut the DFA protocol; 5. The decision of January 28, 2000 erroneously made a finding of fact on the merits, namely, the slandering of a person which prejudged petitioner's case before the Metropolitan Trial Court (MTC) Mandaluyong; and 6. The Vienna Convention on diplomatic relations is not applicable to this case. Petitioner contends that a determination of a person's diplomatic immunity by the Department of Foreign Affairs is a political question. It is solely within the prerogative of the executive department and is conclusive upon the courts. In support of his submission, petitioner cites the following cases: WHO vs. Aquino;1 International Catholic Migration Commission vs. Calleja;2 The Holy See vs. Rosario, Jr.;3 Lasco vs. United Nations;4 and DFA vs. NLRC.5 It is further contended that the immunity conferred under the ADB Charter and the Headquarters Agreement is absolute. It is designed to safeguard the autonomy and independence of international organizations against interference from any authority external to the organizations. It is necessary to allow such organizations to discharge their entrusted functions effectively. The only exception to this immunity is when there is an implied or express waiver or when the immunity is expressly limited by statute. The exception allegedly has no application to the case at bar. Petitioner likewise urges that the international organization's immunity from local jurisdiction empowers the ADB alone to determine what constitutes "official acts" and the same cannot be subject to different interpretations by the member states. It asserts that the Headquarters Agreement provides for remedies to check abuses against the exercise of the immunity. Thus, Section 49 states that the "Bank shall waive the immunity accorded to any person if, in its opinion, such immunity would impede the course of justice and the waiver would not prejudice the purposes for which the immunities are accorded." Section 51 allows for consultation between the government and the Bank should the government consider that an abuse has occurred. The same section provides the

mechanism for a dispute settlement regarding, among others, issues of interpretation or application of the agreement. Petitioner's argument that a determination by the Department of Foreign Affairs that he is entitled to diplomatic immunity is a political question binding on the courts, is anchored on the ruling enunciated in the case of WHO, et al. vs. Aquino, et al.,6 viz: "It is a recognized principle of international law and under our system of separation of powers that diplomatic immunity is essentially a political question and courts should refuse to look beyond a determination by the executive branch of the government, and where the plea of diplomatic immunity is recognized and affirmed by the executive branch of the government as in the case at bar, it is then the duty of the courts to accept the claim of immunity upon appropriate suggestion by the principal law officer of the government, the Solicitor General in this case, or other officer acting under his direction. Hence, in adherence to the settled principle that courts may not so exercise their jurisdiction by seizure and detention of property, as to embarrass the executive arm of the government in conducting foreign relations, it is accepted doctrine that in such cases the judicial department of the government follows the action of the political branch and will not embarrass the latter by assuming an antagonistic jurisdiction." This ruling was reiterated in the subsequent cases of International Catholic Migration Commission vs. Calleja;7The Holy See vs. Rosario, Jr.;8 Lasco vs. UN;9 and DFA vs. NLRC.10 The case of WHO vs. Aquino involved the search and seizure of personal effects of petitioner Leonce Verstuyft, an official of the WHO. Verstuyft was certified to be entitled to diplomatic immunity pursuant to the Host Agreement executed between the Philippines and the WHO. ICMC vs. Calleja concerned a petition for certification election filed against ICMC and IRRI. As international organizations, ICMC and IRRI were declared to possess diplomatic immunity. It was held that they are not subject to local jurisdictions. It was ruled that the exercise of jurisdiction by the Department of Labor over the case would defeat the very purpose of immunity, which is to shield the affairs of international organizations from political pressure or control by the host country and to ensure the unhampered performance of their functions. Holy See v. Rosario, Jr. involved an action for annulment of sale of land against the Holy See, as represented by the Papal Nuncio. The Court upheld the petitioner's defense of sovereign immunity. It ruled that where a diplomatic envoy is granted immunity from the civil and administrative jurisdiction of the receiving state over any real action relating to private immovable property situated in the territory of the receiving state, which the envoy holds on behalf of the sending state for the purposes of the mission, with all the more reason should immunity be recognized as regards the sovereign itself, which in that case is the Holy See. In Lasco vs. United Nations, the United Nations Revolving Fund for Natural Resources Exploration was sued before the NLRC for illegal dismissal. The Court again upheld the doctrine of diplomatic immunity invoked by the Fund. Finally, DFA v. NLRC involved an illegal dismissal case filed against the Asian Development Bank. Pursuant to its Charter and the Headquarters Agreement, the diplomatic immunity of the Asian Development Bank was recognized by the Court.

It bears to stress that all of these cases pertain to the diplomatic immunity enjoyed by international organizations. Petitioner asserts that he is entitled to the same diplomatic immunity and he cannot be prosecuted for acts allegedly done in the exercise of his official functions. The term "international organizations" "is generally used to describe an organization set up by agreement between two or more states. Under contemporary international law, such organizations are endowed with some degree of international legal personality such that they are capable of exercising specific rights, duties and powers. They are organized mainly as a means for conducting general international business in which the member states have an interest."11 International public officials have been defined as: ". . . persons who, on the basis of an international treaty constituting a particular international community, are appointed by this international community, or by an organ of it, and are under its control to exercise, in a continuous way, functions in the interest of this particular international community, and who are subject to a particular personal status."12 "Specialized agencies" are international organizations having functions in particular fields, such as posts, telecommunications, railways, canals, rivers, sea transport, civil aviation, meteorology, atomic energy, finance, trade, education and culture, health and refugees.13 Issues 1. Whether petitioner Liang, as an official of an international organization, is entitled to diplomatic immunity; 2. Whether an international official is immune from criminal jurisdiction for all acts, whether private or official; 3. Whether the authority to determine if an act is official or private is lodged in the courts; 4. Whether the certification by the Department of Foreign Affairs that petitioner is covered by immunity is a political question that is binding and conclusive on the courts. Discussion I A perusal of the immunities provisions in various international conventions and agreements will show that the nature and degree of immunities vary depending on who the recipient is. Thus: 1. Charter of the United Nations "Article 105 (1): The Organization shall enjoy in the territory of each of its Members such privileges and immunities as are necessary for the fulfillment of its purposes. Article 105 (2): Representatives of the Members of the United Nations and officials of the Organization shall similarly enjoy such privileges and immunities as are necessary for the independent exercise of their functions in connection with the Organization."

2. Convention on the Privileges and Immunities of the United Nations "Section 2: The United Nations, its property and assets wherever located and by whomsoever held, shall enjoy immunity from every form of legal process except insofar as in any particular case it has expressly waived its immunity. It is, however, understood that no waiver of immunity shall extend to any measure of execution. xxx xxx xxx Section 11 (a): Representatives of Members to the principal and subsidiary organs of the United Nations . . shall . . . enjoy . . . immunity from personal arrest or detention and from seizure of their personal baggage, and, in respect of words spoken or written and all acts done by them in their capacity as representatives, immunity from legal process of every kind. xxx xxx xxx Section 14: Privileges and immunities are accorded to the representatives of Members not for the personal benefit of the individuals themselves, but in order to safeguard the independent exercise of their functions in connection with the United Nations. Consequently, a Member not only has the right but is under a duty to waive the immunity of its representative in any case where in the opinion of the Member the immunity would impede the course of justice, and it can be waived without prejudice to the purpose for which the immunity is accorded. xxx xxx xxx Section 18 (a): Officials of the United Nations shall be immune from legal process in respect of words spoken or written and all acts performed by them in their official capacity. xxx xxx xxx Section 19: In addition to the immunities and privileges specified in Section 18, the Secretary-General and all Assistant Secretaries-General shall be accorded in respect of themselves, their spouses and minor children, the privileges and immunities, exemptions and facilities accorded to diplomatic envoys, in accordance with international law. Section 20: Privileges and immunities are granted to officials in the interest of the United Nations and not for the personal benefit of the individuals themselves. The SecretaryGeneral shall have the right and the duty to waive the immunity of any official in any case where, in his opinion, the immunity would impede the course of justice and can be waived without prejudice to the interests of the United Nations. xxx xxx xxx Section 22: Experts . . . performing missions for the United Nations . . . shall be accorded: (a) immunity from personal arrest or detention and from seizure of their personal baggage; (b) in respect of words spoken or written and acts done by them in the course of the performance of their mission, immunity from legal process of every kind." 3. Vienna Convention on Diplomatic Relations

"Article 29: The person of a diplomatic agent shall be inviolable. He shall not be liable to any form of arrest or detention. The receiving State shall treat him with due respect and shall take all appropriate steps to prevent any attack on his person, freedom, or dignity. xxx xxx xxx Article 31 (1): A diplomatic agent shall enjoy immunity from the criminal jurisdiction of the receiving State. He shall also enjoy immunity from its civil and administrative jurisdiction, except in certain cases. xxx xxx xxx Article 38 (1): Except in so far as additional privileges and immunities may be granted by the receiving State, a diplomatic agent who is a national of or permanently a resident in that State shall enjoy only immunity from jurisdiction, and inviolability, in respect of official acts performed in the exercise of his functions." 4. Vienna Convention on Consular Relations "Article 41 (1): Consular officials shall not be liable to arrest or detention pending trial, except in the case of a grave crime and pursuant to a decision by the competent judicial authority. xxx xxx xxx Article 43 (1): Consular officers and consular employees shall not be amenable to the jurisdiction of the judicial or administrative authorities of the receiving State in respect of acts performed in the exercise of consular functions. Article 43 (2): The provisions of paragraph 1 of this Article shall not, however, apply in respect of a civil action either: (a) arising out of a contract concluded by a consular officer or a consular employee in which he did not contract expressly or impliedly as an agent of the sending State; or (b) by a third party for damage arising from an accident in the receiving State caused by a vehicle, vessel or aircraft." 5. Convention on the Privileges and Immunities of the Specialized Agencies "Section 4: The specialized agencies, their property and assets, wherever located and by whomsoever held, shall enjoy immunity from every form of legal process except in so far as in any particular case they have expressly waived their immunity. It is, however, understood that no waiver of immunity shall extend to any measure of execution. Section 13 (a): Representatives of members at meetings convened by a specialized agency shall, while exercising their functions and during their journeys to and from the place of meeting, enjoy immunity from personal arrest or detention and from seizure of their personal baggage, and in respect of words spoken or written and all acts done by them in their official capacity, immunity from legal process of every kind. xxx xxx xxx Section 19 (a): Officials of the specialized agencies shall be immune from legal process in respect of words spoken or written and all acts performed by them in their official capacity.

xxx xxx xxx Section 21: In addition to the immunities and privileges specified in sections 19 and 20, the executive head of each specialized agency, including a any official acting on his behalf during his absence from duty, shall be accorded in respect of himself, his spouse and minor children, the privileges and immunities, exemptions and facilities accorded to diplomatic envoys, in accordance with international law." 6. Charter of the ADB "Article 50 (1): The Bank shall enjoy immunity from every form of legal process, except in cases arising out of or in connection with the exercise of its powers to borrow money, to guarantee obligations, or to buy and sell or underwrite the sale of securities, in which cases actions may be brought against the Bank in a court of competent jurisdiction in the territory of a country in which the Bank has its principal or a branch office, or has appointed an agent for the purpose of accepting service or notice of process, or has issued or guaranteed securities. xxx xxx xxx Article 55 (i): All Governors, Directors, alternates, officers and employees of the Bank, including experts performing missions for the Bank shall be immune from legal process with respect to acts performed by them in their official capacity, except when the Bank waives the immunity." 7. ADB Headquarters Agreement "Section 5: The Bank shall enjoy immunity from every form of legal process, except in cases arising out of or in connection with the exercise of its powers to borrow money, to guarantee obligations, or to buy and sell or underwrite the sale of securities, in which cases actions may be brought against the Bank in a court of competent jurisdiction in the Republic of the Philippines. xxx xxx xxx Section 44: Governors, other representatives of Members, Directors, the President, VicePresident and executive officers as may be agreed upon between the Government and the Bank shall enjoy, during their stay in the Republic of the Philippines in connection with their official duties with the Bank: (a) immunity from personal arrest or detention and from seizure of their personal baggage; (b) immunity from legal process of every kind in respect of words spoken or written and all acts done by them in their official capacity; and (c) in respect of other matters not covered in (a) and (b) above, such other immunities, exemptions, privileges and facilities as are enjoyed by members of diplomatic missions of comparable rank, subject to corresponding conditions and obligations. Section 45 (a): Officers and staff of the Bank, including for the purposes of this Article experts and consultants performing missions for the Bank, shall enjoy . . . immunity from legal process with respect to acts performed by them in their official capacity, except when the Bank waives the immunity." II

There are three major differences between diplomatic and international immunities. Firstly, one of the recognized limitations of diplomatic immunity is that members of the diplomatic staff of a mission may be appointed from among the nationals of the receiving State only with the express consent of that State; apart from inviolability and immunity from jurisdiction in respect of official acts performed in the exercise of their functions, nationals enjoy only such privileges and immunities as may be granted by the receiving State. International immunities may be specially important in relation to the State of which the official is a national. Secondly, the immunity of a diplomatic agent from the jurisdiction of the receiving State does not exempt him from the jurisdiction of the sending State; in the case of international immunities there is no sending State and an equivalent for the jurisdiction of the Sending State therefore has to be found either in waiver of immunity or in some international disciplinary or judicial procedure. Thirdly, the effective sanctions which secure respect for diplomatic immunity are the principle of reciprocity and the danger of retaliation by the aggrieved State; international immunities enjoy no similar protection.14 The generally accepted principles which are now regarded as the foundation of international immunities are contained in the ILO Memorandum, which reduced them in three basic propositions, namely: (1) that international institutions should have a status which protects them against control or interference by any one government in the performance of functions for the effective discharge of which they are responsible to democratically constituted international bodies in which all the nations concerned are represented; (2) that no country should derive any financial advantage by levying fiscal charges on common international funds; and (3) that the international organization should, as a collectivity of States Members, be accorded the facilities for the conduct of its official business customarily extended to each other by its individual member States. The thinking underlying these propositions is essentially institutional in character. It is not concerned with the status, dignity or privileges of individuals, but with the elements of functional independence necessary to free international institutions from national control and to enable them to discharge their responsibilities impartially on behalf of all their members.15 III Positive international law has devised three methods of granting privileges and immunities to the personnel of international organizations. The first is by simple conventional stipulation, as was the case in the Hague Conventions of 1899 and 1907. The second is by internal legislation whereby the government of a state, upon whose territory the international organization is to carry out its functions, recognizes the international character of the organization and grants, by unilateral measures, certain privileges and immunities to better assure the successful functioning of the organization and its personnel. In this situation, treaty obligation for the state in question to grant concessions is lacking. Such was the case with the Central Commission of the Rhine at Strasbourg and the International Institute of Agriculture at Rome. The third is a combination of the first two. In this third method, one finds a conventional obligation to recognize a certain status of an international organization and its personnel, but the status is described in broad and general terms. The specific definition and application of those general terms are determined by an accord between the organization itself and the state wherein it is located. This is the case with the League of Nations, the Permanent Court of Justice, and the United Nations.16 The Asian Development Bank and its Personnel fall under this third category. There is a connection between diplomatic privileges and immunities and those extended to international officials. The connection consists in the granting, by contractual provisions, of the relatively well-established body of diplomatic privileges and immunities to international functionaries. This connection is purely historical. Both types of officials find the basis of their special status in the necessity of retaining functional independence and freedom from interference by the state of

residence. However, the legal relationship between an ambassador and the state to which he is accredited is entirely different from the relationship between the international official and those states upon whose territory he might carry out his functions.17 The privileges and immunities of diplomats and those of international officials rest upon different legal foundations. Whereas those immunities awarded to diplomatic agents are a right of the sending state based on customary international law, those granted to international officials are based on treaty or conventional law. Customary international law places no obligation on a state to recognize a special status of an international official or to grant him jurisdictional immunities. Such an obligation can only result from specific treaty provisions.18 The special status of the diplomatic envoy is regulated by the principle of reciprocity by which a state is free to treat the envoy of another state as its envoys are treated by that state. The juridical basis of the diplomat's position is firmly established in customary international law. The diplomatic envoy is appointed by the sending State but it has to make certain that the agreement of the receiving State has been given for the person it proposes to accredit as head of the mission to that State.19 The staff personnel of an international organization the international officials assume a different position as regards their special status. They are appointed or elected to their position by the organization itself, or by a competent organ of it; they are responsible to the organization and their official acts are imputed to it. The juridical basis of their special position is found in conventional law,20 since there is no established basis of usage or custom in the case of the international official. Moreover, the relationship between an international organization and a member-state does not admit of the principle of reciprocity,21 for it is contradictory to the basic principle of equality of states. An international organization carries out functions in the interest of every member state equally. The international official does not carry out his functions in the interest of any state, but in serving the organization he serves, indirectly, each state equally. He cannot be, legally, the object of the operation of the principle of reciprocity between states under such circumstances. It is contrary to the principle of equality of states for one state member of an international organization to assert a capacity to extract special privileges for its nationals from other member states on the basis of a status awarded by it to an international organization. It is upon this principle of sovereign equality that international organizations are built. It follows from this same legal circumstance that a state called upon to admit an official of an international organization does not have a capacity to declare him persona non grata. The functions of the diplomat and those of the international official are quite different. Those of the diplomat are functions in the national interest. The task of the ambassador is to represent his state, and its specific interest, at the capital of another state. The functions of the international official are carried out in the international interest. He does not represent a state or the interest of any specific state. He does not usually "represent" the organization in the true sense of that term. His functions normally are administrative, although they may be judicial or executive, but they are rarely political or functions of representation, such as those of the diplomat. There is a difference of degree as well as of kind. The interruption of the activities of a diplomatic agent is likely to produce serious harm to the purposes for which his immunities were granted. But the interruption of the activities of the international official does not, usually, cause serious dislocation of the functions of an international secretariat.22 On the other hand, they are similar in the sense that acts performed in an official capacity by either a diplomatic envoy or an international official are not attributable to him as an individual but are

imputed to the entity he represents, the state in the case of the diplomat, and the organization in the case of the international official.23 IV Looking back over 150 years of privileges and immunities granted to the personnel of international organizations, it is clear that they were accorded a wide scope of protection in the exercise of their functions The Rhine Treaty of 1804 between the German Empire and France which provided "all the rights of neutrality" to persons employed in regulating navigation in the international interest; The Treaty of Berlin of 1878 which granted the European Commission of the Danube "complete independence of territorial authorities" in the exercise of its functions; The Covenant of the League which granted "diplomatic immunities and privileges." Today, the age of the United Nations finds the scope of protection narrowed. The current tendency is to reduce privileges and immunities of personnel of international organizations to a minimum. The tendency cannot be considered as a lowering of the standard but rather as a recognition that the problem on the privileges and immunities of international officials is new. The solution to the problem presented by the extension of diplomatic prerogatives to international functionaries lies in the general reduction of the special position of both types of agents in that the special status of each agent is granted in the interest of function. The wide grant of diplomatic prerogatives was curtailed because of practical necessity and because the proper functioning of the organization did not require such extensive immunity for its officials. While the current direction of the law seems to be to narrow the prerogatives of the personnel of international organizations, the reverse is true with respect to the prerogatives of the organizations themselves, considered as legal entities. Historically, states have been more generous in granting privileges and immunities to organizations than they have to the personnel of these organizations.24 Thus, Section 2 of the General Convention on the Privileges and Immunities of the United Nations states that the UN shall enjoy immunity from every form of legal process except insofar as in any particular case it has expressly waived its immunity. Section 4 of the Convention on the Privileges and Immunities of the Specialized Agencies likewise provides that the specialized agencies shall enjoy immunity from every form of legal process subject to the same exception. Finally, Article 50(1) of the ADB Charter and Section 5 of the Headquarters Agreement similarly provide that the bank shall enjoy immunity from every form of legal process, except in cases arising out of or in connection with the exercise of its powers to borrow money, to guarantee obligations, or to buy and sell or underwrite the sale of securities. The phrase "immunity from every form of legal process" as used in the UN General Convention has been interpreted to mean absolute immunity from a state's jurisdiction to adjudicate or enforce its law by legal process, and it is said that states have not sought to restrict that immunity of the United Nations by interpretation or amendment. Similar provisions are contained in the Special Agencies Convention as well as in the ADB Charter and Headquarters Agreement. These organizations were accorded privileges and immunities in their charters by language similar to that applicable to the United Nations. It is clear therefore that these organizations were intended to have similar privileges and immunities.25 From this, it can be easily deduced that international organizations enjoy absolute immunity similar to the diplomatic prerogatives granted to diplomatic envoys. Even in the United States this theory seems to be the prevailing rule. The Foreign Sovereign Immunities Act was passed adopting the "restrictive theory" limiting the immunity of states under international law essentially to activities of a kind not carried on by private persons. Then the International Organizations Immunities Act came into effect which gives to designated international organizations the same immunity from suit and every form of judicial process as is enjoyed by foreign governments. This gives the impression that the Foreign Sovereign Immunities Act has the

effect of applying the restrictive theory also to international organizations generally. However, aside from the fact that there was no indication in its legislative history that Congress contemplated that result, and considering that the Convention on Privileges and Immunities of the United Nations exempts the United Nations "from every form of legal process," conflict with the United States obligations under the Convention was sought to be avoided by interpreting the Foreign Sovereign Immunities Act, and the restrictive theory, as not applying to suits against the United Nations.26 On the other hand, international officials are governed by a different rule. Section 18(a) of the General Convention on Privileges and Immunities of the United Nations states that officials of the United Nations shall be immune from legal process in respect of words spoken or written and all acts performed by them in their official capacity. The Convention on Specialized Agencies carries exactly the same provision. The Charter of the ADB provides under Article 55(i) that officers and employees of the bank shall be immune from legal process with respect to acts performed by them in their official capacity except when the Bank waives immunity. Section 45 (a) of the ADB Headquarters Agreement accords the same immunity to the officers and staff of the bank. There can be no dispute that international officials are entitled to immunity only with respect to acts performed in their official capacity, unlike international organizations which enjoy absolute immunity. Clearly, the most important immunity to an international official, in the discharge of his international functions, is immunity from local jurisdiction. There is no argument in doctrine or practice with the principle that an international official is independent of the jurisdiction of the local authorities for his official acts. Those acts are not his, but are imputed to the organization, and without waiver the local courts cannot hold him liable for them. In strict law, it would seem that even the organization itself could have no right to waive an official's immunity for his official acts. This permits local authorities to assume jurisdiction over an individual for an act which is not, in the wider sense of the term, his act at all. It is the organization itself, as a juristic person, which should waive its own immunity and appear in court, not the individual, except insofar as he appears in the name of the organization. Provisions for immunity from jurisdiction for official acts appear, aside from the aforementioned treatises, in the constitution of most modern international organizations. The acceptance of the principle is sufficiently widespread to be regarded as declaratory of international law.27 V What then is the status of the international official with respect to his private acts? Section 18 (a) of the General Convention has been interpreted to mean that officials of the specified categories are denied immunity from local jurisdiction for acts of their private life and empowers local courts to assume jurisdiction in such cases without the necessity of waiver.28 It has earlier been mentioned that historically, international officials were granted diplomatic privileges and immunities and were thus considered immune for both private and official acts. In practice, this wide grant of diplomatic prerogatives was curtailed because of practical necessity and because the proper functioning of the organization did not require such extensive immunity for its officials. Thus, the current status of the law does not maintain that states grant jurisdictional immunity to international officials for acts of their private lives.29 This much is explicit from the Charter and Headquarters Agreement of the ADB which contain substantially similar provisions to that of the General Convention. VI Who is competent to determine whether a given act is private or official?

This is an entirely different question. In connection with this question, the current tendency to narrow the scope of privileges and immunities of international officials and representatives is most apparent. Prior to the regime of the United Nations, the determination of this question rested with the organization and its decision was final. By the new formula, the state itself tends to assume this competence. If the organization is dissatisfied with the decision, under the provisions of the General Convention of the United States, or the Special Convention for Specialized Agencies, the Swiss Arrangement, and other current dominant instruments, it may appeal to an international tribunal by procedures outlined in those instruments. Thus, the state assumes this competence in the first instance. It means that, if a local court assumes jurisdiction over an act without the necessity of waiver from the organization, the determination of the nature of the act is made at the national level.30 It appears that the inclination is to place the competence to determine the nature of an act as private or official in the courts of the state concerned. That the prevalent notion seems to be to leave to the local courts determination of whether or not a given act is official or private does not necessarily mean that such determination is final. If the United Nations questions the decision of the Court, it may invoke proceedings for settlement of disputes between the organization and the member states as provided in Section 30 of the General Convention. Thus, the decision as to whether a given act is official or private is made by the national courts in the first instance, but it may be subjected to review in the international level if questioned by the United Nations.31 A similar view is taken by Kunz, who writes that the "jurisdiction of local courts without waiver for acts of private life empowers the local courts to determine whether a certain act is an official act or an act of private life," on the rationale that since the determination of such question, if left in the hands of the organization, would consist in the execution, or non-execution, of waiver, and since waiver is not mentioned in connection with the provision granting immunities to international officials, then the decision must rest with local courts.32 Under the Third Restatement of the Law, it is suggested that since an international official does not enjoy personal inviolability from arrest or detention and has immunity only with respect to official acts, he is subject to judicial or administrative process and must claim his immunity in the proceedings by showing that the act in question was an official act. Whether an act was performed in the individual's official capacity is a question for the court in which a proceeding is brought, but if the international organization disputes the court's finding, the dispute between the organization and the state of the forum is to be resolved by negotiation, by an agreed mode of settlement or by advisory opinion of the International Court of Justice.33 Recognizing the difficulty that by reason of the right of a national court to assume jurisdiction over private acts without a waiver of immunity, the determination of the official or private character of a particular act may pass from international to national control, Jenks proposes three ways of avoiding difficulty in the matter. The first would be for a municipal court before which a question of the official or private character of a particular act arose to accept as conclusive in the matter any claim by the international organization that the act was official in character, such a claim being regarded as equivalent to a governmental claim that a particular act is an act of State. Such a claim would be in effect a claim by the organization that the proceedings against the official were a violation of the jurisdictional immunity of the organization itself which is unqualified and therefore not subject to delimitation in the discretion of the municipal court. The second would be for a court to accept as conclusive in the matter a statement by the executive government of the country where the matter arises certifying the official character of the act. The third would be to have recourse to the procedure of international arbitration. Jenks opines that it is possible that none of these three solutions would be applicable in all cases; the first might be readily acceptable only in the clearest cases and the second is available only if the executive government of the country where the matter arises concurs in the view of the international organization concerning the official character of the

act. However, he surmises that taken in combination, these various possibilities may afford the elements of a solution to the problem.34 One final point. The international official's immunity for official acts may be likened to a consular official's immunity from arrest, detention, and criminal or civil process which is not absolute but applies only to acts or omissions in the performance of his official functions, in the absence of special agreement. Since a consular officer is not immune from all legal process, he must respond to any process and plead and prove immunity on the ground that the act or omission underlying the process was in the performance of his official functions. The issue has not been authoritatively determined, but apparently the burden is on the consular officer to prove his status as well as his exemption in the circumstances. In the United States, the US Department of State generally has left it to the courts to determine whether a particular act was within a consular officer's official duties.35 Submissions On the bases of the foregoing disquisitions, I submit the following conclusions: First, petitioner Liang, a bank official of ADB, is not entitled to diplomatic immunity and hence his immunity is not absolute. Under the Vienna Convention on Diplomatic Relations, a diplomatic envoy is immune from criminal jurisdiction of the receiving State for all acts, whether private or official, and hence he cannot be arrested, prosecuted and punished for any offense he may commit, unless his diplomatic immunity is waived.36 On the other hand, officials of international organizations enjoy "functional" immunities, that is, only those necessary for the exercise of the functions of the organization and the fulfillment of its purposes.37 This is the reason why the ADB Charter and Headquarters Agreement explicitly grant immunity from legal process to bank officers and employees only with respect to acts performed by them in their official capacity, except when the Bank waives immunity. In other words, officials and employees of the ADB are subject to the jurisdiction of the local courts for their private acts, notwithstanding the absence of a waiver of immunity. Petitioner cannot also seek relief under the mantle of "immunity from every form of legal process" accorded to ADB as an international organization. The immunity of ADB is absolute whereas the immunity of its officials and employees is restricted only to official acts. This is in consonance with the current trend in international law which seeks to narrow the scope of protection and reduce the privileges and immunities granted to personnel of international organizations, while at the same time aims to increase the prerogatives of international organizations. Second, considering that bank officials and employees are covered by immunity only for their official acts, the necessary inference is that the authority of the Department of Affairs, or even of the ADB for that matter, to certify that they are entitled to immunity is limited only to acts done in their official capacity. Stated otherwise, it is not within the power of the DFA, as the agency in charge of the executive department's foreign relations, nor the ADB, as the international organization vested with the right to waive immunity, to invoke immunity for private acts of bank officials and employees, since no such prerogative exists in the first place. If the immunity does not exist, there is nothing to certify. As an aside, ADB cannot even claim to have the right to waive immunity for private acts of its officials and employees. The Charter and the Headquarters Agreement are clear that the immunity can be waived only with respect to official acts because this is only the extent to which the privilege has been granted. One cannot waive the right to a privilege which has never been granted or acquired.

Third, I choose to adopt the view that it is the local courts which have jurisdiction to determine whether or not a given act is official or private. While there is a dearth of cases on the matter under Philippine jurisprudence, the issue is not entirely novel. The case of M.H. Wylie, et al. vs. Rarang, et al.38 concerns the extent of immunity from suit of the officials of a United States Naval Base inside the Philippine territory. Although a motion to dismiss was filed by the defendants therein invoking their immunity from suit pursuant to the RP-US Military Bases Agreement, the trial court denied the same and, after trial, rendered a decision declaring that the defendants are not entitled to immunity because the latter acted beyond the scope of their official duties. The Court likewise applied the ruling enunciated in the case of Chavez vs. Sandiganbayan39 to the effect that a mere invocation of the immunity clause does not ipso facto result in the charges being automatically dropped. While it is true that the Chavez case involved a public official, the Court did not find any substantial reason why the same rule cannot be made to apply to a US official assigned at the US Naval Station located in the Philippines. In this case, it was the local courts which ascertained whether the acts complained of were done in an official or personal capacity. In the case of The Holy See vs. Rosario, Jr.,40 a complaint for annulment of contract of sale, reconveyance, specific performance and damages was filed against petitioner. Petitioner moved to dismiss on the ground of, among others, lack of jurisdiction based on sovereign immunity from suit, which was denied by the trial court. A motion for reconsideration, and subsequently, a "Motion for a Hearing for the Sole Purpose of Establishing Factual Allegation for Claim of Immunity as a Jurisdictional Defense" were filed by petitioner. The trial court deferred resolution of said motions until after trial on the merits. On certiorari, the Court there ruled on the issue of petitioner's nonsuability on the basis of the allegations made in the pleadings filed by the parties. This is an implicit recognition of the court's jurisdiction to ascertain the suability or non-suability of the sovereign by assessing the facts of the case. The Court hastened to add that when a state or international agency wishes to plead sovereign or diplomatic immunity in a foreign court, in some cases, the defense of sovereign immunity was submitted directly to the local courts by the respondents through their private counsels, or where the foreign states bypass the Foreign Office, the courts can inquire into the facts and make their own determination as to the nature of the acts and transactions involved. Finally, it appears from the records of this case that petitioner is a senior economist at ADB and as such he makes country project profiles which will help the bank in deciding whether to lend money or support a particular project to a particular country.41 Petitioner stands charged of grave slander for allegedly uttering defamatory remarks against his secretary, the private complainant herein. Considering that the immunity accorded to petitioner is limited only to acts performed in his official capacity, it becomes necessary to make a factual determination of whether or not the defamatory utterances were made pursuant and in relation to his official functions as a senior economist. I vote to deny the motion for reconsideration. Davide, Jr., C.J., concurs.

Republic of the Philippines SUPREME COURT Manila FIRST DIVISION G.R. No. 117033 February 15, 2001

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. RAFAEL AVECILLA y MOBIDO, accused-appellant. YNARES-SANTIAGO, J.: Accused-appellant was charged with the crime of Qualified Illegal Possession of Firearm, committed as follows: That on or about December 24, 1991, in the City of Manila, Philippines, the said accused, not being allowed or authorized by law to keep, possess and carry a firearm, did then and there wilfully, unlawfully, and knowingly have in his possession, control and custody a firearm, to with: One (1) .38 Caliber Revolver Colt (Paltik) marked made in USA without first obtaining the necessary license and/or permit to carry and possess the same and in connection and by reason of such possession, did then and there wilfully, unlawfully and feloniously, with intent to kill, fire and shoot one Macario Afable, Jr. y Canqui, thus inflicting upon the latter mortal gunshots and injuries which caused the death of the latter as a consequence.1 It appears from the records that at about 11:00 o'clock in the evening of December 24, 1991, accused-appellant arrived at the basketball court located on Dapo Street, Pandacan, Manila, and, for no apparent reason, suddenly fired a gun in the air. He then went to a nearby alley and, minutes later, proceeded to the closed store about four (4) meters away from the basketball court. There, he initiated an argument with the group of Boy Manalaysay, Jimmy Tolentino and Macario Afable, Jr. Afable tried to pacify accused-appellant, whereupon, the latter placed his left arm around Afable's neck and shot him pointblank on the abdomen. Afable ran toward the alley and accused-appellant ran after him. Another shot rang out, so one of the bystanders, Carlos Taganas, went to the alley and there, he saw accused-appellant and Afable grappling for possession of the gun. The Chief Barangay Tanod arrived and was able to wrest the gun away from accused-appellant, who immediately fled from the scene of the incident. Afable was rushed to the Philippine General Hospital, where he eventually expired.
1wphi 1.nt

On June 21, 1994, the Regional Trial Court of Manila, Branch 38, rendered judgment convicting accused-appellant of the crime of Qualified Illegal Possession of Firearm, sentencing him to suffer the penalty of reclusion perpetua, and ordering him to indemnify and pay damages to the victim's heirs.2 Hence, this appeal filed by accused-appellant.

The records and the evidence show that the elements of the offense of qualified illegal possession of firearms, defined in the second paragraph of Section 1, Presidential Decree No. 1866, are present in this case. Specifically, there are: 1. there must be a firearm; 2. the gun was possessed by the accused; 3. the accused had no license from the government; and 4. homicide or murder was committed by the accused with the use of said firearm.3 The prosecution sufficiently established by evidence that accused-appellant had in his custody and possession the following firearms and ammunitions: 1. One (1) .38 cal. Rev., Colt "paltik" without serial number, nickel plated with brown handle, two and one half inches barrel and marked "BC"; 2. Three (3) .38 Caliber cartridge cases marked BC-1, BC-2, BC-3; 3. Two (2) .38 cal. Ammo. (used for test); 4. One (1) .38 cal. Slug (deformed) marked "F" from Medico legal.4 Likewise, per Certification of the Firearms and Explosives Office dated September 1, 1992,5 it was proved that accused-appellant was not a licensed or registered firearm holder of any kind and caliber. Finally, there was an eyewitness account positively asserting that accused-appellant had the subject firearm in his possession and used it in shooting the victim.6 The medical examination on the victim disclosed that the gunshot wounds he sustained were caused by the same unlicensed firearm in accused-appellant's possession, and that the same were the direct cause of the death of the victim. The ballistics report established that the deformed .38 caliber slugs found in the victim's body were fired from the subject firearm.7 The victim's cause of death was determined as "cardio-respiratory arrest due to shock and hemorrhage secondary to gunshot wound, left antero-lateral thorax."8 However, the law on illegal possession of firearms has been amended by Republic Act No. 8294, which took effect on July 6, 1994. The pertinent provision of the said law provides: SECTION 1. Unlawful Manufacture, Sale, Acquisition, Disposition or Possession of Firearms or Ammunition or Instruments Used or Intended to be Used in the Manufacture of Firearms or Ammunition. The penalty of prision correccional in its maximum period and a fine of not less than Fifteen thousand pesos (P15,000.00) shall be imposed upon any person who shall unlawfully manufacture, deal in, acquire, dispose, or possess any low powered firearm, such as rimfire handgun, .380 or .32 and other firearm of similar firepower, part of firearm, ammunition, or machinery, tool or instrument used or intended to be used in the manufacture of any firearm or ammunition: Provided, that no other crime was committed. xxx xxx xxx

If homicide or murder is committed with the use of an unlicensed firearm, such use of an unlicensed firearm shall be considered as an aggravating circumstance. If the violation of this Section is in furtherance of or incident to, or in connection with the crime of rebellion or insurrection, sedition, or attempted coup d'etat, such violation shall be absorbed as an element of the crime of rebellion, or insurrection, sedition, or attempted coup d'etat. (Underscoring provided) It is clear from the foregoing that where murder or homicide results from the use of an unlicensed firearm, the crime is no longer qualified illegal possession, but murder or homicide, as the case may be. In such a case, the use of the unlicensed firearm is not considered as a separate crime but shall be appreciated as a mere aggravating circumstance. In view of the amendments introduced by Republic Act No. 8294 to Presidential Decree NO. 1866, separate prosecutions for homicide and illegal possession are no longer in order. Instead, illegal possession of firearms is merely to be taken as an aggravating circumstance in the homicide case.9 Thus, in People v. Nepomuceno, Jr.,10 we stated: But, pursuant to the amendment, the use of an unlicensed firearm in the commission of murder or homicide is treated as an aggravating circumstance. There, the illegal possession or use of the unlicensed firearm is no longer separately punished. This Court emphatically said so in People v. Bergante (286 SCRA 629 [1998]), thus: The violation of P.D. No. 1866 should have been punished separately conformably with our ruling inPeople v. Quijada. Nevertheless, fortunately for appellant Rex Bergante, P.D. No. 1866 was recently amended by Republic Act. No. 8294, otherwise known as "An Act Amending the Provisions of Presidential Decree No. 1866, as Amended." The third paragraph of Section 1 of said Act provides that "if homicide or murder is committed with the use of an unlicensed firearm, such use of an unlicensed firearm shall be considered as an aggravating circumstance." In short, only one offense should be punished, viz., either homicide or murder, and the use of the unlicensed firearm should only be considered as an aggravating circumstance. Being favorable to Rex Bergante, this provision may be given retroactive effect pursuant to Article 22 of the Revised Penal Code, he not being a habitual criminal. The crime of illegal possession of firearm, in its simple form, is committed only where the unlicensed firearm is not used to commit any of the crimes of murder, homicide, rebellion, insurrection, sedition or attempted coup d'etat. Otherwise, the use of unlicensed firearm would be treated either: (1) as an essential ingredient in the crimes of rebellion, insurrection, sedition or attempted coup d'etat; or (2) as an aggravating circumstance in murder or homicide. With respect to the conviction of accused-appellant for illegal possession of firearms under P. D. No. 1866, it was held in the case of People vs. Molina (292 SCRA 742) and reiterated in the recent case of People vs. Ronaldo Valdez (G.R. NO. 127663, March 11, 1999, 304 SCRA 611), that in cases where murder or homicide is committed with the use of an unlicensed firearm, there can be no separate conviction for the crime of illegal possession of firearms under P.D. No. 1866 in view of the amendments introduced by Republic Act No. 8294. Thereunder, the use of unlicensed firearm in murder or homicide is simply considered as an aggravating circumstance in the murder or homicide and no longer as a separate offense. Furthermore, the penalty for illegal possession of firearms shall be imposed provided that no other crime is committed (Section 1 of R.A. No. 8294). In other words, where murder or homicide was committed, the penalty for illegal possession of firearms is no

longer imposable since it becomes merely a special aggravating circumstance (People v. Molina, supra, at p. 782). It bears stressing, however, that the dismissal of the present case for illegal possession of firearm should not be misinterpreted to mean that there can be longer be any prosecution for the offense of illegal possession of firearms. In general, all pending cases involving illegal possession of firearms should continue to be prosecuted and tried if no other crimes expressly provided in R.A. No. 8294 are involved (murder or homicide, under Section 1, and rebellion, insurrection, sedition or attempted coup d' etat, under Section 3)(People v. Valdez, supra).11 Inasmuch as the amendatory law is favorable to accused-appellant in this case, the same may be retroactively applied. This new law applies even to violations that occurred prior to its effectivity as it may be given retroactive effect under Article 22 of the Revised Penal Code.12 R.A. 8294 took effect on July 6, 1997. The crime involved in the case at bench was committed on May 5, 1991. As a general rule, penal laws will generally have prospective application except where the new law will be advantageous to the accused. In this case R.A. 8294 will spare accused-appellant from a separate conviction for the crime of illegal possession of firearm. Accordingly, said law should be given retroactive application.13 Neither can accused-appellant be charged with simple illegal possession. As stated above, the same may only done where no other crime is committed.14 With more reason, accused-appellant cannot be convicted of homicide or murder with "the use of the unlicensed firearm as aggravating," inasmuch as said felonies are not charged in the information but merely mentioned as the result of the use of the unlicensed firearm. Accused-appellant was not arraigned for homicide or murder. Hence, he cannot be convicted of any of these crimes without violating his right to be informed of the nature and cause of the accusation against him, not to mention his right to due process.
1wphi 1.nt

WHEREFORE, in view of the foregoing, the appealed decision is REVERSED. Criminal Case No. 92-105691, for Qualified Illegal Possession of Firearm, is DISMISSED. SO ORDERED. Davide, Jr., Puno, Kapunan, and Pardo, JJ., concur.

Republic of the Philippines SUPREME COURT Manila THIRD DIVISION

G.R. No. 110097 December 22, 1997 PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ARNULFO ASTORGA, accused-appellant.

PANGANIBAN, J.: Actual detention or "locking up" is the primary element of kidnapping. If the evidence does not adequately prove this element, the accused cannot be held liable for kidnapping. In the present case, the prosecution merely proved that appellant forcibly dragged the victim toward a place only he knew. There being no actual detention or confinement, the appellant may be convicted only of grave coercion. The Case The foregoing principle is used by this Court in resolving the appeal of Arnulfo Astorga challenging the March 31, 1993 Decision 1 of the Regional Trial Court of Tagum, Davao convicting him of kidnapping. In an Information 2 dated March 24, 1992 and docketed as Criminal Case No. 8243, Appellant Arnulfo Astorga was charged with violation of Article 267, paragraph 4 of the Revised Penal Code, allegedly committed as follows: That on or about December 29, 1991 in the Municipality of Tagum, Province of Davao, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, with deliberate intent and by means of force, did then and there willfully, unlawfully and feloniously kidnap Yvonne Traya, a minor, 8 years of age, thereby depriving her of her liberty against her will, to the damage and prejudice of said offended party. Arraigned on February 24, 1993, Appellant Astorga, duly assisted by his counsel, 3 pleaded not guilty to the charge. Trial on the merits ensued. The dispositive portion of the assailed Decision 4 reads as follows: 5 WHEREFORE, premises considered, the guilt of accused ARNULFO ASTORGA having been proven beyond reasonable doubt, pursuant to Article 267 paragraph 4 of the Revised Penal Code, [he] is hereby sentenced to Reclusion Perpetua to be served at the National Penitentiary, [Muntinlupa]. This appeal was filed directly with this Court in view of the penalty imposed. 6

The Facts Evidence for the Prosecution The evidence for the prosecution was narrated in the Decision of the trial court, as follows: 7 Prosecution witnesses extant from their testimonies categorically assert that around 6:30 P.M. children of neighbors were near the store of the grandparents of Yvonne Traya. Incidentally, there was a brown out that evening hence candle was used. The daughter and nephew of her aunt Bebeth were quarelling [sic] about the possession of a flashlight until the glass got lost. Accused or "Boy" Astorga, went near and asked her daughter Jane what happened. Glenda or Bebeth grabbed her baby and went home. Accused told Yvonne to go with him to buy candy. She did not answer and accused immediately grabbed and hold [sic] her hand. Accused placed his hand on her shoulder and covered his [sic] mouth. Yvonne was only eight (8) years old on 29 December 1991 when she was brought by the accused allegedly to buy candy. Some stores were closed; others were opened. Accused never went inside the store to buy candy. Instead she [sic] held and dragged Yvonne until they went inside the compound of Maco Elementary School. They were walking inside the perimeter fence, [while the accused was] holding closely the child. Later, there being no person around the gate, accused brought her out to the highway and walked towards the direction of Tagum. Yvonne stays with her grandparents and so with her parents at Sitio Binuangan, Maco. She asked him where they were going and accused answered that they were going home. She told him that they were already on the opposite direction because her grandparent's house is at Binuangan, while their route was going towards Tagum. Indeed, it was an opposite direction. Notwithstanding the assertion of Yvonne that they were on the wrong direction, accused placed his hands on her shoulder and dragged her. She cried and protested that she must go home. Accused did not heed her plea and while she was forced to walk she continued crying. While accused and Yvonne were walking in the situation as described, somewhere near the Luponlupon bridge they met some group of men. Having met on their opposite direction, the two, were noticed by the group of youngsters. The group were bound to Maco Catholic Church to see a drama. Having met the two and as noticed by the group accused keep [sic] on looking back at them. The group were suspicious about the man who was bringing a child. The group decided to follow them. Accused hurriedly walked fast with Yvonne, and to prevent from being overtaken, he carried the victim and ran. They were chased. After a distance of half a kilometer they were overtaken. Edwin Fabila declared that Jonathan, one of his companions with others in chasing, asked the accused where they were bound. He answered towards Binuangan. The group noticed something suspicious because their destination was already towards Tagum which is an opposite direction to Binuangan. When asked who is the child, accused answered Traya. Jonathan one of those who chased knew the family. He got from the accused Yvonne who showed some resistance. Nevertheless, the group brought her home at Binuangan. Likewise, accused was also

brought by them to Yvonne's home. The house of accused and Yvonne were five (5) meters away. Accused wanted to talk to the parents of the victim, but he was driven by her aunt and adviced [sic] to leave otherwise he will be stabbed by Yvonne's father. He left and never talked with the family. Evidence for the Defense The facts as viewed by the defense are presented in the Appellant's Brief, 8 dated December 10, 1993: The defense consisted of the testimonies of Arbeth Nalcot and the accused-appellant himself. Arbeth Nalcot, a resident of Tagum, Davao, testified tht [sic] in the afternoon of December 29, 1991, she was at the Municipal Hall of Maco, Davao. She saw Astorga with two (2) companions. They were drinking Red Horse and were already drunk. When they finished drinking, she went with Astorga to the latter's house. (TSN, pp. 7-8 and 18, March 23, 1993). The house of Astorga is about 5 meters away from the house of the complainant[.] Yvonne came and asked money from the accused to buy candy. The two went together and she was left behind. She told them to hurry up. When they failed to return, she looked for them, but because it was already dark. She did not find them. She went back to the house of the accused. (Ibid., pp. 10-11). Arnulfo Astorga, a resident of Maco, Davao and a gold panner testified that "at around 1:00 P.M. of December 29, 1991, he arrived at Maco from Tagum. Upon arrival his two friends, Vicvic and Anding were already at his home. They decided to drink, hence they proceeded to Adecor Cottage and drank two gallons of Tuba. At around 2:00 P.M., they were at the market place and drink beer grande. At 5:00 P.M. on the same day, the three proceeded near the municipal hall and with some persons, they again continued their drinking spree taking up Red Horse wine". (Decision, p. 3). At about 6:00 P.M., he was already drunk and he went home. Yvonne approached him and asked him money to buy candy. He told her that they will buy. They were not able to buy because the two stores where they went were already closed. (TSN, pp. 12 and 13, March 24, 1993). He took her for a stroll for his drunkeness [sic] to subside. They walked inside the school premises which was about 20 meters away from the second store. They went out of the school compound going towards Lupon-lupon because due to his drunkneness [sic], he thought it was the way towards their house. (Ibid, pp. 14-15) They reached Lupon-lupon bridge, crossed it twice thinking that it was the bridge near the municipal hall. After reaching Purok, they met several persons, he was asked were (sic) they were heading, and he answered to Tagumpay, but he was told that they [sic] way was already going to Tagum. He requested those persons to guide them to Tagumpay. They asked him who was the child he was carrying. He answered that it was Traya's child, (Ibid, pp. 16-17). He was carrying the child because he was already crying she already wanted to go home. The group of persons, men and women, guided them. Yvonne was being held by the women. They arrived at Yvonne's house. He talked to the auntie of the child and told her that he would converse with her but he was advised to go away because the father of Yvonne might hack him. So he went home. (Ibid, pp. 18-19) The Trial Court's Ruling The trial court justified its finding of guilt with the following discussion: 9

Accused insisted [that] he was already drunk hence when he took Yvonne to buy candy, he strolled with her so that his drunkenness be subsided. All these defense version was rebutted by Yvonne when she categorically declared that she did not smell liquor on the accused. His defense of intoxication has no leg to stand [on]. Consider these facts. Never did he present Vicvic and Anding to corroborate that he was intoxicated that afternoon and at dusk because of their drinking spree from 1:00 P.M. until 5:00 P.M. He did not rebut the testimonies of Fabila that when they noticed his actions suspicious bringing with him a child, he walked fast dragging Yvonne. When he noticed that the group of youngsters were chasing him, he carried Yvonne and ran until they covered a distance of half a kilometer in chasing them, until they had overtaken him. If he was that intoxicated, being under stupor and weakened by liquor, he could not ran that fast carrying Yvonne for half a kilometer. Moreover, Yvonne categorically in straight forward testimony asserted that she did not smell liquor on the accused. Accused, naivety [sic], that because of his intoxication, he got lost and was not able to proceed with Yvonne to Binuangan was a shallow afterthought. It must be recalled that Yvonne told him they were already going at opposite direction from home. Instead they were heeding towards Tagum. Accused did not change course. xxx xxx xxx Again, not only force was employed in having Yvonne as captive by dragging, slapping her mouth and was holding her tight, but accused also used psychological means of scaring her about a red eyed ghost. Through this means and efforts, Yvonne was deprived of her liberty and was by force prevented to go home to her parents. On rebuttal, Yvonne denied that she asked money from accused to buy candy. She also denied as testified by defense witness Arbeth Nalcot that she went to the house of the accused on 29 December 1991 or on any other dates to ask money from Astorga for candy. Defense evidence are [sic] punctured with unbelievability in his off tangent and incredible theory of drunkardness. His alleged being lost in the direction of Binuangan in spite of Yvonne's insistence and that of the person they met that he was on the wrong way considering that there are no criss crossing roads except the highway is preposterous.

The Issues Appellant imputes the following errors to the trial court: 10 I The trial court erred in giving credence to the testimonies of the prosecution's witnesses which were replete with inconsistencies and contradictions. II The trial court erred in convicting the appellant despite the fact that Yvonne Traya was not detained, locked-up or deprived of her liberty. III The trial court erred in convicting the appellant despite the fact that appellant had no motive to kidnap Yvonne Traya. In the main, appellant challenges the credibility of the prosecution witnesses and the legal characterization of the acts imputed to him. The Court's Ruling The appeal is partly meritorious. Appellant should be convicted only of grave coercion, not kidnapping. First Issue: Credibility of Prosecution Witnesses Appellant contends that the testimonies of the prosecution witnesses are not worthy of credence because they were inconsistent and improbable. He cites the following: Glenda Chavez testified that she was present when the accused told Yvonne that they will buy candy. She sensed that the accused was drunk. (TSN, pp. 10-11, March 10, 1993). These testimonies were contradicted by Yvonne Traya when she declared that Glenda Chavez had already went [sic] inside their house when [the] accused told her that they will buy candy (TSN, pp. 10, March 16, 1993). She testified that she did not smell liquor on the accused. (Decision, pp. 3-4) Edwin Fabila testified that their group was able to overtake the accused at a distance of 2 fathoms and they [sic] him about 15 to 20 meters (TSN, p. 35, March 10, 1993) Arnel Fabila, on the other hand, testified that they overtook the accused after chasing him at a distance of half kilometer (TSN, p. 10, March 11, 1993).
Yvonne Traya testified that the accused could not ran fast carrying her because she was heavy. (TSN, p. 19, March 16, 1993). However, Arnel Fabila declared that they were able to overtake the accused only after chasing him at a distance of half kilometer (TSN, p. 10, March 11, 1993) meaning accused was running fast.11

We hold, however, that inconsistencies in the testimonies of witnesses concerning minor details and collateral matters, like the examples cited by appellant, do not affect the

substance, veracity or weight of their declarations. These inconsistencies reinforce, rather than weaken, their credibility, for different witnesses of startling events usually perceive things differently. 12 Indeed, the testimonies of the prosecution witnesses cannot be expected to be uniform to the last detail. The testimony of Glenda Chavez that the accused was drunk at that time allegedly contradicted Yvonne's statement that the accused did not smell of liquor. This does not detract from the credibility of either witness. Yvonne, then an eight-year-old child, 13 and her Aunt Glenda, then twenty-seven years old, 14 do not have the same experiences or level of maturity; hence, their perceptions of events differ. More important, whether the accused was drunk or not is an insignificant detail that does not substantially affect the testimonies of these witnesses. Further, the discrepancy in the witnesses' estimate of the distance covered by the men who chased appellant does not render their testimonies incredible. 15 Quite the contrary, such discrepancy shows their candor and sincerity, demonstrating that their testimonies were unrehearsed. 16 Yvonne testified that when appellant noticed the group of men following them, he carried her and ran. Yvonne's testimony is in accord with that of Arnel Fabila a member of the group who chased appellant that they were able to overtake appellant after chasing him half a kilometer. 17 Appellant's challenge to the credibility of the prosecution account is also premised on the alleged failure of the trial court to consider the following points: 18 a) that the alleged victim admitted that she and the accused casually moved around the school premises, as if they were strolling; That when they were already in the highway, they were also walking openly and casually until they were met by a group of youngster[s]. Edwin Fabila, one of the prosecution's witnesses, corroborated the fact that the two were walking casually along the highway when he first saw them; b) That it is highly incredible that accused and the alleged victim will not be seen or noticed by the people travelling or those persons residing along the highway if it was true that the accused was dragging her and she was continuously crying from her residence up to a distance of more than one kilometer; c) That the accused and the alleged victim were travelling at a very slow pace; a distance of barely a kilometer for a period of more than two hours; d) That the accused was very drunk, having been drinking different kinds of intoxicating liquors from 1:00 p.m. to 5:00 p.m., causing him to be confused on which way they should take in going home. e) That the accused was not hurt by the group of youngsters who allegedly rescued the child, nor was immediately brought to the municipal hall which was just near the house of the victim for the filing of the necessary charge; this [sic] actuations only confirm the fact that the accused merely sought their help in guiding them home, and f) That it took more than one week for the complainant and her parents to file the case at the Fiscal's Office.

We cannot sustain these contentions. The charge is not belied by the one-week delay in the filing of the complaint. It has been held that delay or vacillation in making a criminal accusation does not necessarily weaken the credibility of a witness where such delay is satisfactorily explained. 19 In the present case, one week was reasonable, considering that the victim was a resident of Binuangan and that the case was filed in Tagum, Davao. Furthermore, the group whom appellant met did not hurt or bring him to the municipal hall, because they deemed it more urgent at the time to rescue Yvonne and to bring her home, which they actually did. 20There is no settled rule on how a group of young men should react upon seeing a young girl snatched by an older man. Verily, violence is not the only normal reaction of young men who see a girl being forcibly taken. Appellant's claim that he and Yvonne were merely strolling and walking casually does not negate the fact that Yvonne was deprived of her will. As noted by the trial court, appellant used physical force and psychological means in restraining her. 21 Despite her young age, Yvonne was able to clearly recount the events that transpired on that fateful night. Moreover, there is no merit in the argument that the people travelling or living along the highway should have noticed appellant and Yvonne. The fact is that a group of men actually noticed and ultimately chased them. All in all, appellant utterly fails to justify a departure from the long settled rule that the trial court's assessment of the credibility of witnesses should be accorded great respect on appeal. 22 Second Issue: No Motive to "Kidnap" Petitioner contends that "[t]here was no evidence presented to prove why the accused should kidnap Yvonne Traya." He submits that "the prosecution had failed to prove [any] motive to support the alleged kidnapping incident, thus, making the theory of the defense more credible and believable." 23 The contention is insignificant. Motive is not an element of the crime. Furthermore, motive becomes material only when the evidence is circumstantial or inconclusive, and there is some doubt on whether a crime has been committed or whether the accused has committed it. Indeed, motive is totally irrelevant when ample direct evidence sustains the culpability of the accused beyond reasonable doubt. 24 In this case, the identity of appellant is not in question. He himself admitted having taken Yvonne to Maco Central Elementary School. Third Issue: Kidnapping or Coercion? Appellant contends that the prosecution failed to prove one essential element of kidnapping the fact of detention or the deprivation of liberty. The solicitor general counters that deprivation of liberty is not limited to imprisoning or placing the victim in an enclosure. Citing People vs. Crisostomo, 25 he argues:
(T)he act proven in the record constitutes (kidnapping). It is no argument against this conclusion that the accused deprived the offended party of her liberty without placing her in an inclosure; because illegal detention, as defined and punished in our Code, may consist not only in imprisoning a person but also in detaining her or depriving her in any manner of her liberty. 26

We agree with appellant's contention this time. Under Article 267 of the Revised Penal Code, 27 the elements of kidnapping are as follows: 1. That the offender is a private individual. 2. That he kidnaps or detains another, or in any other manner deprives the latter of his liberty. 3. That the act of detention or kidnapping must be illegal. 4. That in the commission of the offense, any of the following circumstances is present: 5. That the kidnapping or detention lasts for more than five (5) days; or 6. That it committed simulating public authority; or 7. That any serious physical injuries are inflicted upon the person kidnapped or detained or threats to kill him are made; or 8. That the person kidnapped or detained is a minor, female, or a public officer. The Spanish version of Article 267 of the Revised Penal Code uses the terms "lockup" (encerrar) rather than "kidnap" (secuestrar or raptar). Lockup is included in the broader term of "detention," which refers not only to the placing of a person in an enclosure which he cannot leave, but also to any other deprivation of liberty which does not necessarily involve locking up. 28 Likewise, the Revised Penal Code was originally approved and enacted in Spanish. Consequently, the Spanish text is controlling in cases of conflict with the English version, as provided in Section 15 of the Revised Administrative Code. 29 A review of the events as narrated by the prosecution witnesses ineluctably shows the absence of "locking up." Victim Yvonne Traya testified: 30 Q And after that what happened next? A When Auntie Bebeth went inside her house she was already bringing her child and bringing with her candle. And Arnulfo Astorga told me that we will buy candy, sir. Q And after that? A And while I was not answering the question he immediately grabbed me. xxx xxx xxx Q And after that, after he held your hand, what did he do next?

A He placed his hands on my shoulder and also covering [sic] my mouth. xxx xxx xxx Q And after that what did he do next? A He brought me to the school. Q What school did Boy Astorga bring you? What is the name of the school? A Maco Central Elementary School. Q How far is Maco Central Elementary School from your house? A A little bit near. Q When Boy Astorga brought you to school, was it dark? A Yes, sir. Q Exactly where in Maco Elementary School did Boy Astorga bring you? A Inside the gate, sir. Q And once inside the gate what did he do to you? A We were going around the school? xxx xxx xxx Q Do you know why you were going around the school? A Yes, sir. Q Why, what did he do? A We were going around and when he saw that there is no person in the gate we passed at that gate. Q And where did he go after passing that gate? A Towards Lupon-lupon, sir. xxx xxx xxx Q What about you, did you talk to him?

A I asked him where we were going and he told me that we are going home and I told him that this is not the way to our house, and we did not pass this way. (Witness gesturing a certain direction). Q And so when you said that that is not the way, when you said that is not the way because our house is towards Binuangan. . . By the way, you said you were going to Lupon-lupon, do you know to what direction is going to Lupon-lupon, to what place is Lupon-lupon going to? A Yes, sir. Q Where? A Going to my place. Q Do you know the place where it was going? What is that place? A On the road going to Tagum. Q Now, what, about your house, where is it going? A To Binuangan. Q And so when you . . . what did he do next when you said that is not the place going to your house? A We continued walking and he also placed his hands on my shoulder and dragged me, sir. Q What about you, what did you do when he was dragging you? A I was crying, sir. Q Did you say any word to him when you were crying? A Yes, I told him that we are going home. Q And what did Boy Astorga say? A He told me that we will be going home, and told me not to make any noise because if I will make any noise we will be lost on our way. Q And so, what did you do? A I continued crying, sir. Q And after that, what happened?

A We continued walking and we met a person and he asked Boy Astorga where we are going, sir. Q What did that man ask Boy Astorga? A The man asked Boy Astorga where are you going, and Boy Astorga answered, to Binuangan, but the man continued to say that this way is going to Tagum and not to Binuangan any more. Q What else did the man ask, if any? A I further said that we will already leave, and we will be the ones to go to Binuangan, and after that, Boy Astorga put me down because he urinated. So, at that instance, I ran, but, after he urinated, he already took hold of me not to run any more because there is a ghost. Q When you said you ran away after Boy Astorga left you when he urinated, where did you run? A Towards Binuangan, sir. Q Towards the direction of your house? A Yes, sir. Q And you were overtaken again by Boy Astorga? A Yes, sir. Q What did he do to you when you were overtaken by Boy Astorga? A He took hold of me again and he told me, he threatened me that there is [sic] a red eyes but I answered him that is [sic] not a red eyes of the ghost but that is a light coming from the vehicle. Q Now, what happened next? A He placed a necklace on me, sir. xxx xxx xxx A He was dragging me and I was crying when he was dragging me. Q While you were being dragged did you make any plea to him? A Yes, I told him that I will go home. Q And what did he say?

A He said that we will go home but I know [sic] that place we are [sic] heading to is [sic] not a way to our home but it is [sic] the opposite. Q So, what happened next? A He continued dragging me and after that we met plenty of persons and I shouted for help and at that instance, he slapped my mouth and after a few steps he already carried me. xxx xxx xxx A He continued walking and I also continued crying and I told him that I want to go home and he told me that we are heading towards home, but I told him that the way we are going to is not the way to our house. Q By the way, when you shouted [for] help, was it loud? A Yes, sir. Q So, what happened next? A He continued running and he stopped several vehicles but they did not stop, so, we just continued walking. Q After that, what happened next? A He moved closer to the banana plants. He looked back and he saw that persons were already chasing him and after that he carried me and ran. From the foregoing, it is clear that the appellant and the victim were constantly on the move. They went to Maco Elementary School and strolled on the school grounds. When nobody was at the Luponlupon bridge, appellant took the victim to the highway leading to Tagum, Davao. At that time, Yvonne pleaded with appellant that she really wanted to go home to Binuangan, but appellant ignored her pleas and continued walking her toward the wrong direction. Later on, the group of Witness Arnel Fabila spotted them. Appellant Astorga carried the victim and ran, but Fabila's group chased and caught up with them. This narration does not adequately establish actual confinement or restraint of the victim, which is the primary element of kidnapping. 31 Appellant's apparent intention was to take Yvonne against her will towards the direction of Tagum. Appellant's plan did not materialize, however, because Fabila's group chanced upon them. The evidence does not show that appellant wanted to detain Yvonne; much less, that he actually detained her. Appellant's forcible dragging of Yvonne to a place only he knew cannot be said to be an actual confinement or restriction on the person of Yvonne. There was no "lockup." Accordingly, appellant cannot be convicted of kidnapping under Article 267 of the Revised Penal Code. Rather, the felony committed in this case is grave coercion under Article 286 of the same code. Grave coercion or coaccion grave has three elements: (a) that any person is prevented by another from doing something not prohibited by law, or compelled to do something

against his or her will, be it right or wrong; (b) that the prevention or compulsion is effected by violence, either by material force or such a display of it as would produce intimidation and, consequently, control over the will of the offended party; and (c) that the person who restrains the will and liberty of another has no right to do so or, in other words, that the restraint is not made under authority of a law or in the exercise of any lawful right. 32 When appellant forcibly dragged and slapped Yvonne, he took away her right to go home to Binuangan. Appellant presented no justification for preventing Yvonne from going home, and we cannot find any. The present case should be distinguished from People vs. Rosemarie de la Cruz. 33 Here, Appellant Astorga tricked Yvonne to go with him by telling her that they were going to buy candy. When Yvonne recognized the deception, she demanded that she be brought home, but appellant refused and instead dragged her toward the opposite direction against her will. While it is unclear whether Appellant Astorga intended to detain or "lock up" Yvonne, there is no question that he forced her to go with him against her will. In Rosemarie de la Cruz, Victim Whiazel voluntarily went with accused. Furthermore, the accused in that case failed to consummate the crime of kidnapping because of the timely intervention of the victim's neighbor. Thus, the Court held in that case: 34 In a prosecution for kidnapping, the intent of the accused to deprive the victim of the latter's liberty, in any manner, needs to be established by indubitable proof (People vs. Puno, 219 SCRA 85 [1993]). The acts held by the trial court, and maintained by the People, as consummating the crime of kidnapping in this case are those when accused-appellant held the victim's hand and refused to let go when the victim asked to go over to her neighbor, who by then already saw what was happening. This happened for only a very brief span of time and the evidentiary record shows that there were a good number of people present at that time, that a guard was stationed at the gate, and that there was at least a teacher nearby. The child could have just as easily shouted for help. While it does not take much to scare the wits out of a small child like Whiazel, under the attendant circumstances, we cannot say with certainty that she was indeed deprived of her liberty. It must further be noted that up to that brief moment when Cecilia saw them, and the child asked to be let go, the victim had gone with accused-appellant voluntarily. Without any further act reinforcing the inference that the victim may have been denied her liberty, even taking cognizance of her minority, the Court hesitates to find that kidnapping in the case at bar was consummated. While it is a well-entrenched rule that factual findings of trial courts, especially when they concern the appreciation of testimony of witnesses, are accorded great respect, by exception, when the judgment is based on a misapprehension of facts, as we perceive in the case at bar, the Court may choose to substitute its own findings (People vs. Padua, 215 SCRA 266 [1992]). The Information, dated March 24, 1992, filed against Astorga contains sufficient allegations constituting grave coercion, the elements of which were sufficiently proved by the prosecution. Hence, a conviction for said crime is appropriate under Section 4, Rule 120 of the 1988 Rules on Criminal Procedure: Sec. 4.Judgment in case of variance between allegation and proof When there is variance between the offense charged in the complaint or information, and that proved or established by the evidence, and the offenses as charged is included in or necessarily includes the offense proved, the accused shall be convicted of the offense proved included in that which is charged, or of the offense charged included in that which is proved.

At the time the felony was committed on December 29, 1991, the penalty imposed by law for grave coercion was arresto mayor and a fine not exceeding five hundred pesos. 35 The Indeterminate Sentence Law does not apply here because the maximum penalty does not exceed one year. 36 However, appellant has been imprisoned for more than six (6) months. He has more than served the penalty imposable for such an offense. 37 WHEREFORE, the appeal is hereby PARTIALLY GRANTED. Appellant is CONVICTED only of grave coercion and is sentenced to six (6) months of arresto mayor. Unless he is being detained for any other valid cause, his IMMEDIATE RELEASE is herewith ordered, considering that he has more than served the maximum penalty imposable upon him. That director of prisons is DIRECTED to inform this Court, within five days from receipt of this Decision, of the actual date the appellant is released. No costs. SO ORDERED. Narvasa, C.J., Romero, Melo and Francisco, JJ., concur.

Republic of the Philippines SUPREME COURT Manila FIRST DIVISION

G.R. No. 112170 April 10, 1996 CESARIO URSUA, petitioner, vs. COURT OF APPEALS AND PEOPLE OF THE PHILIPPINES, respondents.

BELLOSILLO, J.:p This is a petition for review of the decision of the Court of Appeals which affirmed the conviction of petitioner by the Regional Trial Court of Davao City for violation of Sec. 1 of C.A. No. 142, as amended by R.A. No. 6085, otherwise known as "An Act to Regulate the Use of Aliases". 1 Petitioner Cesario Ursua was a Community Environment and Natural Resources Officer assigned in Kidapawan, Cotabato. On 9 May 1989 the Provincial Governor of Cotabato requested the Office of the Ombudsman in Manila to conduct an investigation on a complaint for bribery, dishonesty, abuse of authority and giving of unwarranted benefits by petitioner and other officials of the Department of Environment and Natural Resources. The complaint was initiated by the Sangguniang Panlalawigan of Cotabato through a resolution advising the Governor to report the involvement of petitioner and others in the illegal cutting of mahogany trees and hauling of illegally-cut logs in the area. 2 On 1 August 1989 Atty. Francis Palmones, counsel for petitioner, wrote the Office of the Ombudsman in Davao City requesting that he be furnished copy of the complaint against petitioner. Atty. Palmones then asked his client Ursua to take his letter-request to the Office of the Ombudsman because his law firm's messenger, Oscar Perez, had to attend to some personal matters. Before proceeding to the Office of the Ombudsman petitioner talked to Oscar Perez and told him that he was reluctant to personally ask for the document since he was one of the respondents before the Ombudsman. However, Perez advised him not to worry as he could just sign his (Perez) name if ever he would be required to acknowledge receipt of the complaint. 3 When petitioner arrived at the Office of the Ombudsman in Davao City he was instructed by the security officer to register in the visitors' logbook. Instead of writing down his name petitioner wrote the name "Oscar Perez" after which he was told to proceed to the Administrative Division for the copy of the complaint he needed. He handed the letter of Atty. Palmones to the Chief of the Administrative Division, Ms. Loida Kahulugan, who then gave him a copy of the complaint, receipt of which he acknowledged by writing the name "Oscar Perez." 4 Before petitioner could leave the premises he was greeted by an acquaintance, Josefa Amparo, who also worked in the same office. They conversed for a while then he left. When Loida learned that the person who introduced himself as "Oscar Perez" was actually petitioner Cesario Ursua, a customer of Josefa Amparo in her gasoline station, Loida reported the matter to the Deputy Ombudsman who recommended that petitioner be accordingly charged.

On 18 December 1990, after the prosecution had completed the presentation of its evidence, petitioner without leave of court filed a demurrer to evidence alleging that the failure of the prosecution to prove that his supposedalias was different from his registered name in the local civil registry was fatal to its cause. Petitioner argued that no document from the local civil registry was presented to show the registered name of accused which according to him was a condition sine qua non for the validity of his conviction. The trial court rejected his contentions and found him guilty of violating Sec. 1 of C.A. No. 142 as amended by R.A. No. 6085. He was sentenced to suffer a prison term of one (1) year and one (1) day of prision correccionalminimum as minimum, to four (4) years of prision correccional medium as maximum, with all the accessory penalties provided for by law, and to pay a fine of P4,000.00 plus costs. Petitioner appealed to the Court of Appeals. On 31 May 1993 the Court of Appeals affirmed the conviction of petitioner but modified the penalty by imposing an indeterminate term of one (1) year as minimum to three (3) years as maximum and a fine of P5,000.00. Petitioner now comes to us for review of his conviction as he reasserts his innocence. He contends that he has not violated C.A. No. 142 as amended by R.A. No. 6085 as he never used any alias name; neither is "Oscar Perez" hisalias. An alias, according to him, is a term which connotes the habitual use of another name by which a person is also known. He claims that he has never been known as "Oscar Perez" and that he only used such name on one occasion and it was with the express consent of Oscar Perez himself. It is his position that an essential requirement for a conviction under C.A. No. 142 as amended by R.A. No. 6085 has not been complied with when the prosecution failed to prove that his supposed alias was different from his registered name in the Registry of Births. He further argues that the Court of Appeals erred in not considering the defense theory that he was charged under the wrong law. 5 Time and again we have decreed that statutes are to be construed in the light of the purposes to be achieved and the evils sought to be remedied. Thus in construing a statute the reason for its enactment should be kept in mind and the statute should be construed with reference to the intended scope and purpose. 6 The court may consider the spirit and reason of the statute, where a literal meaning would lead to absurdity, contradiction, injustice, or would defeat the clear purpose of the lawmakers. 7 For a clear understanding of the purpose of C.A. No. 142 as amended, which was allegedly violated by petitioner, and the surrounding circumstances under which the law was enacted, the pertinent provisions thereof, its amendments and related statutes are herein cited. C.A. No. 142, which was approved on 7 November 1936, and before its amendment by R.A. No. 6085, is entitled An Act to Regulate the Use of Aliases. It provides as follows: Sec. 1. Except as a pseudonym for literary purposes, no person shall use any name different from the one with which he was christened or by which he has been known since his childhood, or such substitute name as may have been authorized by a competent court. The name shall comprise the patronymic name and one or two surnames. Sec. 2. Any person desiring to use an alias or aliases shall apply for authority therefor in proceedings like those legally provided to obtain judicial authority for a change of name. Separate proceedings shall be had for each alias, and each new

petition shall set forth the original name and the alias oraliases for the use of which judicial authority has been, obtained, specifying the proceedings and the date on which such authority was granted. Judicial authorities for the use of aliases shall be recorded in the proper civil register . . . . The above law was subsequently amended by R.A. No. 6085, approved on 4 August 1969. As amended, C.A. No. 142 now reads: Sec. 1. Except as a pseudonym solely for literary, cinema, television, radio or other entertainment purposes and in athletic events where the use of pseudonym is a normally accepted practice, no person shall use any name different from the one with which he was registered at birth in the office of the local civil registry or with which he was baptized for the first time, or in case of all alien, with which he was registered in the bureau of immigration upon entry; or such substitute name as may have been authorized by a competent court: Provided, That persons whose births have not been registered in any local civil registry and who have not been baptized, have one year from the approval of this act within which to register their names in the civil registry of their residence. The name shall comprise the patronymic name and one or two surnames. Sec. 2. Any person desiring to use an alias shall apply for authority therefor in proceedings like those legally provided to obtain judicial authority for a change of name and no person shall be allowed to secure such judicial authority for more than one alias. The petition for an alias shall set forth the person's baptismal and family name and the name recorded in the civil registry, if different, his immigrant's name, if an alien, and his pseudonym, if he has such names other than his original or real name, specifying the reason or reasons for the desired alias. The judicial authority for the use ofalias, the Christian name and the alien immigrant's name shall be recorded in the proper local civil registry, and no person shall use any name or names other than his original or real name unless the same is or are duly recorded in the proper local civil registry. The objective and purpose of C.A. No. 142 have their origin and basis in Act No. 3883, An Act to Regulate the Use in Business Transactions of Names other than True Names, Prescribing the Duties of the Director of the Bureau of Commerce and Industry in its Enforcement, Providing Penalties for Violations thereof, and for other purposes, which was approved on 14 November 1931 and amended by Act No. 4147, approved on 28 November 1934. 8The pertinent provisions of Act No. 3883 as amended follow Sec. 1. It shall be unlawful for any person to use or sign, on any written or printed receipt including receipt for tax or business or any written or printed contract not verified by a notary public or on any written or printed evidence of any agreement or business transactions, any name used in connection with his business other than his true name, or keep conspicuously exhibited in plain view in or at the place where his business is conducted, if he is engaged in a business, any sign announcing a firm name or business name or style without first registering such other name, or such firm name, or business name or style in the Bureau of Commerce together with his true name and that of any other person having a joint or common interest with him in such contract, agreement, business transaction, or business . . . . For a bit of history, the enactment of C.A. No. 142 as amended was made primarily to curb the common practice among the Chinese of adopting scores of different names and aliases which

created tremendous confusion in the field of trade. Such a practice almost bordered on the crime of using fictitious names which for obvious reasons could not be successfully maintained against the Chinese who, rightly or wrongly, claimed they possessed a thousand and one names. C.A. No. 142 thus penalized the act of using an alias name, unless such alias was duly authorized by proper judicial proceedings and recorded in the civil register. 9 In Yu Kheng Chiau v. Republic 10 the Court had occasion to explain the meaning, concept and ill effects of the use of an alias within the purview of C.A. No. 142 when we ruled There can hardly be any doubt that petitioner's use of alias "Kheng Chiau Young" in addition to his real name "Yu Cheng Chiau" would add to more confusion. That he is known in his business, as manager of the Robert Reid, Inc., by the former name, is not sufficient reason to allow him its use. After all, petitioner admitted that he is known to his associates by both names. In fact, the Anselmo Trinidad, Inc., of which he is a customer, knows him by his real name. Neither would the fact that he had encountered certain difficulties in his transactions with government offices which required him to explain why he bore two names, justify the grant of his petition, for petitioner could easily avoid said difficulties by simply using and sticking only to his real name "Yu Kheng Chiau." The fact that petitioner intends to reside permanently in the Philippines, as shown by his having filed a petition for naturalization in Branch V of the above-mentioned court, argues the more against the grant of his petition, because if naturalized as a Filipino citizen, there would then be no necessity for his further using said alias, as it would be contrary to the usual Filipino way and practice of using only one name in ordinary as well as business transactions. And, as the lower court correctly observed, if he believes (after he is naturalized) that it would be better for him to write his name following the Occidental method, "he can easily file a petition for change of name, so that in lieu of the name "Yu Kheng Chian," he can, abandoning the same, ask for authority to adopt the name Kheng Chiau Young." All things considered, we are of the opinion and so hold, that petitioner has not shown satisfactory proper and reasonable grounds under the aforequoted provisions of Commonwealth Act No. 142 and the Rules of Court, to warrant the grant of his petition for the use of an alias name. Clearly therefore an alias is a name or names used by a person or intended to be used by him publicly and habitually usually in business transactions in addition to his real name by which he is registered at birth or baptized the first time or substitute name authorized by a competent authority. A man's name is simply the sound or sounds by which he is commonly designated by his fellows and by which they distinguish him but sometimes a man is known by several different names and these are known as aliases. 11 Hence, the use of a fictitious name or a different name belonging to another person in a single instance without any sign or indication that the user intends to be known by this name in addition to his real name from that day forth does not fall within the prohibition contained in C.A. No. 142 as amended. This is so in the case at bench. It is not disputed that petitioner introduced himself in the Office of the Ombudsman as "Oscar Perez," which was the name of the messenger of his lawyer who should have brought the letter to that office in the first place instead of petitioner. He did so while merely serving the request of his lawyer to obtain a copy of the complaint in which petitioner was a respondent. There is no question then that "Oscar Perez" is not an alias name of petitioner. There is no evidence showing that he had used or was intending to use that name as his second name in addition to his real name. The use of the

name "Oscar Perez" was made by petitioner in an isolated transaction where he was not even legally required to expose his real identity. For, even if he had identified himself properly at the Office of the Ombudsman, petitioner would still be able to get a copy of the complaint as a matter of right, and the Office of the Ombudsman could not refuse him because the complaint was part of public records hence open to inspection and examination by anyone under the proper circumstances. While the act of petitioner may be covered by other provisions of law, such does not constitute an offense within the concept of C.A. No. 142 as amended under which he is prosecuted. The confusion and fraud in business transactions which the anti-alias law and its related statutes seek to prevent are not present here as the circumstances are peculiar and distinct from those contemplated by the legislature in enacting C.A. No. 142 as amended. There exists a valid presumption that undesirable consequences were never intended by a legislative measure and that a construction of which the statute is fairly susceptible is favored, which will avoid all objectionable, mischievous, indefensible, wrongful, evil and injurious consequences. 12 Moreover, as C.A. No. 142 is a penal statute, it should be construed strictly against the State and in favor of the accused. 13 The reason for this principle is the tenderness of the law for the rights of individuals and the object is to establish a certain rule by conformity to which mankind would be safe, and the discretion of the court limited. 14 Indeed, our mind cannot rest easy on the proposition that petitioner should be convicted on a law that does not clearly penalize the act done by him. WHEREFORE, the questioned decision of the Court of Appeals affirming that of the Regional Trial Court of Davao City is REVERSED and SET ASIDE and petitioner CESARIO URSUA is ACQUITTED of the crime charged. SO ORDERED. Padilla, Vitug, Kapunan and Hermosisima, Jr., JJ., concur.

Republic of the Philippines SUPREME COURT Manila THIRD DIVISION G.R. No. 151085 August 20, 2008

JOEMAR ORTEGA, petitioner, kk vs. PEOPLE OF THE PHILIPPINES, respondent. DECISION NACHURA, J.: Before this Court is a Petition1 for Review on Certiorari under Rule 45 of the Rules of Civil Procedure seeking the reversal of the Court of Appeals (CA) Decision2 dated October 26, 2000 which affirmed in toto the Decision3 of the Regional Trial Court (RTC) of Bacolod City, Branch 50, dated May 13, 1999, convicting petitioner Joemar Ortega4 (petitioner) of the crime of Rape. The Facts Petitioner, then about 14 years old,5 was charged with the crime of Rape in two separate informations both dated April 20, 1998, for allegedly raping AAA,6 then about eight (8) years of age. The accusatory portions thereof respectively state: Criminal Case No. 98-19083 That sometime in August, 1996, in the Municipality of XXX, Province of YYY, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, by means of force, violence and intimidation, did then and there, (sic) willfully, unlawfully and feloniously (sic) had carnal knowledge of and/or sexual intercourse with the said AAA, a minor, then about 6 years old, against her will. CONTRARY TO LAW.7 Criminal Case No. 98-19084

That on or about the 1st day of December, 1996, in the Municipality of XXX, Province of YYY, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, by means of force, violence and intimidation, did then and there, (sic) willfully, unlawfully and feloniously (sic) had carnal knowledge of and/or sexual intercourse with the said AAA, a minor, then about 6 years old, against her will. CONTRARY TO LAW.8 Upon arraignment on September 10, 1998, petitioner pleaded not guilty to the offense charged.9 Thus, trial on the merits ensued. In the course of the trial, two varying versions arose. Version of the Prosecution On February 27, 1990, AAA was born to spouses FFF and MMM.10 Among her siblings CCC, BBB, DDD, EEE and GGG, AAA is the only girl in the family. Before these disturbing events, AAA's family members were close friends of petitioner's family, aside from the fact that they were good neighbors. However, BBB caught petitioner raping his younger sister AAA inside their own home. BBB then informed their mother MMM who in turn asked AAA.11 There, AAA confessed that petitioner raped her three (3) times on three (3) different occasions. The first occasion happened sometime in August 1996. MMM left her daughter AAA, then 6 years old and son BBB, then 10 years old, in the care of Luzviminda Ortega12 (Luzviminda), mother of petitioner, for two (2) nights because MMM had to stay in a hospital to attend to her other son who was sick.13During the first night at petitioner's residence, petitioner entered the room where AAA slept together with Luzviminda and her daughter. Petitioner woke AAA up and led her to the sala. There petitioner raped AAA. The second occasion occurred the following day, again at the petitioner's residence. Observing that nobody was around, petitioner brought AAA to their comfort room and raped her there. AAA testified that petitioner inserted his penis into her vagina and she felt pain. In all of these instances, petitioner warned AAA not to tell her parents, otherwise, he would spank her.14 AAA did not tell her parents about her ordeal. The third and last occasion happened in the evening of December 1, 1996. Petitioner went to the house of AAA and joined her and her siblings in watching a battery-powered television. At that time, Luzviminda was conversing with MMM. While AAA's siblings were busy watching, petitioner

called AAA to come to the room of CCC and BBB. AAA obeyed. While inside the said room which was lighted by a kerosene lamp, petitioner pulled AAA behind the door, removed his pants and brief, removed AAA's shorts and panty, and in a standing position inserted his penis into the vagina of AAA.15 AAA described petitioner's penis as about five (5) inches long and the size of two (2) ballpens. She, likewise, narrated that she saw pubic hair on the base of his penis.16 This last incident was corroborated by BBB in his testimony. When BBB was about to drink water in their kitchen, as he was passing by his room, BBB was shocked to see petitioner and AAA both naked from their waist down in the act of sexual intercourse. BBB saw petitioner holding AAA and making a pumping motion. Immediately, BBB told petitioner to stop; the latter, in turn, hurriedly left. Thereafter, BBB reported the incident to his mother, MMM.17 MMM testified that when she asked AAA about what BBB saw, AAA told her that petitioner inserted his fingers and his penis into her vagina. MMM learned that this was not the only incident that petitioner molested AAA as there were two previous occasions. MMM also learned that AAA did not report her ordeal to them out of fear that petitioner would spank her. MMM testified that when BBB reported the matter to her, petitioner and Luzviminda already left her house. After waiting for AAA's brothers to go to sleep, MMM, with a heavy heart, examined AAA's vagina and she noticed that the same was reddish and a whitish fluid was coming out from it. Spouses FFF and MMM were not able to sleep that night. The following morning, at about four o'clock, MMM called Luzviminda and petitioner to come to their house. MMM confronted Luzviminda about what petitioner did to her daughter, and consequently, she demanded that AAA should be brought to a doctor for examination.18 MMM, together with Luzviminda, brought AAA to Dr. Lucifree Katalbas19 (Dr. Katalbas), the Rural Health Officer of the locality who examined AAA and found no indication that she was molested.20 Refusing to accept such findings, on December 12, 1996, MMM went to Dr. Joy Ann Jocson (Dr. Jocson), Medical Officer IV of the Bacolod City Health Office. Dr. Jocson made an unofficial written report21 showing that there were "abrasions on both right and left of the labia minora and a small laceration at the posterior fourchette." She also found that the minor injuries she saw on AAA's genitals were relatively fresh; and that such abrasions were superficial and could disappear after a period of 3 to 4 days. Dr. Jocson, however, indicated in her certification that her findings required the confirmation of the Municipal Health Officer of the locality.

Subsequently, an amicable settlement22 was reached between the two families through the DAWN Foundation, an organization that helps abused women and children. Part of the settlement required petitioner to depart from their house to avoid contact with AAA.23 As such, petitioner stayed with a certain priest in the locality. However, a few months later, petitioner went home for brief visits and in order to bring his dirty clothes for laundry. At the sight of petitioner, AAA's father FFF was infuriated and confrontations occurred. At this instance, AAA's parents went to the National Bureau of Investigation (NBI) which assisted them in filing the three (3) counts of rape. However, the prosecutor's office only filed the two (2) instant cases. Version of the Defense Petitioner was born on August 8, 1983 to spouses Loreto (Loreto) and an elder Luzviminda Ortega.24 He is the second child of three siblings brother and a younger sister. Petitioner denied the accusations made against him. He testified that: his parents and AAA's parents were good friends; when MMM left AAA and her brothers to the care of his mother, petitioner slept in a separate room together with BBB and CCC while AAA slept together with Luzviminda and his younger sister; he never touched or raped AAA or showed his private parts to her; petitioner did not threaten AAA in any instance; he did not rape AAA in the former's comfort room, but he merely accompanied and helped AAA clean up as she defecated and feared the toilet bowl; in the process of washing, he may have accidentally touched AAA's anus; on December 1, 1996, petitioner together with his parents, went to AAA's house;25 they were dancing and playing together with all the other children at the time; while they were dancing, petitioner hugged and lifted AAA up in a playful act, at the instance of which BBB ran and reported the matter to MMM, who at the time was with Luzviminda, saying that petitioner and AAA were having sexual intercourse;26 petitioner explained to MMM that they were only playing, and that he could not have done to AAA what he was accused of doing, as they were together with her brothers, and he treated AAA like a younger sister;27 BBB was lying; AAA's parents and his parents did not get angry at him nor did they quarrel with each other; petitioner and his parents peacefully left AAA's house at about nine o'clock in the evening; however, at about four o'clock in the morning, petitioner and his parents were summoned by MMM to go to the latter's house; upon arriving there they saw BBB being maltreated by his father as AAA pointed to BBB as the one who molested her; and MMM and Luzviminda agreed to bring AAA to a doctor for examination.28 Luzviminda corroborated the testimony of her son. She testified that: her son was a minor at the time of the incident; CCC and BBB were the children of

MMM in her first marriage, while AAA and the rest of her siblings were of the second marriage; CCC and BBB are half-brothers of AAA; when MMM entrusted AAA and her brothers to her sometime in August of 1996, she slept with AAA and her youngest daughter in a separate room from petitioner; on December 1, 1996, she was at AAA's house watching television and conversing with MMM, while FFF and Loreto were having a drinking spree in the kitchen; from where they were seated, she could clearly see all the children, including petitioner and AAA, playing and dancing in the dining area; she did not hear any unusual cry or noise at the time; while they were conversing, BBB came to MMM saying that petitioner and AAA were having sexual intercourse; upon hearing such statement, Luzviminda and MMM immediately stood up and looked for them, but both mothers did not find anything unusual as all the children were playing and dancing in the dining area; Luzviminda and MMM just laughed at BBB's statement; the parents of AAA, at that time, did not examine her in order to verify BBB's statement nor did they get angry at petitioner or at them; and they peacefully left AAA's house. However, the following day, MMM woke Luzviminda up, saying that FFF was spanking BBB with a belt as AAA was pointing to BBB nor to petitioner as the one who molested her. At this instance, Luzviminda intervened, telling FFF not to spank BBB but instead, to bring AAA to a doctor for examination. Luzviminda accompanied MMM to Dr. Katalbas who found no indication that AAA was molested. She also accompanied her to Dr. Jocson. After getting the results of the examination conducted by Dr. Jocson, they went to the police and at this instance only did Luzviminda learn that MMM accused petitioner of raping AAA. Petitioner vehemently denied to Luzviminda that he raped AAA. Thereafter, MMM and Luzviminda went to their employer who recommended that they should seek advice from the Women's Center. At the said Center, both agreed on an amicable settlement wherein petitioner would stay away from AAA. Thus, petitioner stayed with a certain priest in the locality for almost two (2) years. But almost every Saturday, petitioner would come home to visit his parents and to bring his dirty clothes for laundry. Every time petitioner came home, FFF bad-mouthed petitioner, calling him a rapist. Confrontations occurred until an altercation erupted wherein FFF allegedly slapped Luzviminda. Subsequently, AAA's parents filed the instant cases.29 The RTC's Ruling On May 13, 1999, the RTC held that petitioner's defenses of denial cannot prevail over the positive identification of petitioner as the perpetrator of the crime by AAA and BBB, who testified with honesty and credibility. Moreover, the RTC opined that it could not perceive any motive for AAA's family to

impute a serious crime of Rape to petitioner, considering the close relations of both families. Thus, the RTC disposed of this case in this wise: FOR ALL THE FOREGOING, the Court finds the accused Joemar Ortega Y Felisario GUILTY beyond reasonable doubt as Principal by Direct Participation of the crime of RAPE as charged in Criminal Cases Nos. 98-19083 and 98-19084 and there being no aggravating or mitigating circumstance, he is sentenced to suffer the penalty of Two (2) Reclusion Temporal in its medium period. Applying the Indeterminate Sentence Law, the accused shall be imprisoned for each case for a period of Six (6) years and One (1) day of Prision Mayor, as minimum, to Fifteen (15) years of Reclusion Temporal, as maximum. The accused is condemned to pay the offended party AAA, the sum of P100,000.00 as indemnification for the two (2) rapes (sic). Aggrieved, petitioner appealed the RTC Decision to the CA.30 Taking into consideration the age of petitioner and upon posting of the corresponding bail bond for his provisional liberty in the amount of P40,000.00, the RTC ordered the petitioner's release pending appeal.31 The CA's Ruling On October 26, 2000, the CA affirmed in toto the ruling of the RTC, holding that the petitioner's defense of denial could not prevail over the positive identification of the petitioner by the victim AAA and her brother BBB, which were categorical, consistent and without any showing of ill motive. The CA also held that the respective medical examinations conducted by the two doctors were irrelevant, as it is established that the slightest penetration of the lips of the female organ consummates rape; thus, hymenal laceration is not an element of rape. Moreover, the CA opined that petitioner acted with discernment as shown by his covert acts. Finally, the CA accorded great weight and respect to the factual findings of the RTC, particularly in the evaluation of the testimonies of witnesses. Petitioner filed his Motion for Reconsideration32 of the assailed Decision which the CA denied in its Resolution33 dated November 7, 2001. Hence, this Petition based on the following grounds: I.

THE HONORABLE COURT OF APPEALS HAS OVERLOOKED CERTAIN FACTS OF SUBSTANCE AND VALUE WHICH IF CONSIDERED MIGHT AFFECT THE RESULT OF THE CASE. II. THE HONORABLE COURT OF APPEALS COMMITTED GRAVE ERROR WHEN IT FAILED TO APPRECIATE THE MEDICAL FINDINGS OF DR. LUCIFREE KATALBAS. III. THE FINDINGS OF THE LOWER COURT, AFFIRMED BY THE APPELLATE COURT, THAT PETITIONER-APPELLANT IN FACT COMMITTED AND IS CAPABLE OF COMMITTING THE ALLEGED RAPE WITHIN THE RESIDENCE OF THE VICTIM WHERE SEVERAL OF THE ALLEGED VICTIM'S FAMILY MEMBERS AND THEIR RESPECTIVE MOTHERS WERE PRESENT IS IMPROBABLE AND CONTRARY TO HUMAN EXPERIENCE. IV. THE HONORABLE APPELLATE COURT ERRED IN UPHOLDING THE FACTS SET FORTH BY THE ALLEGED VICTIM REGARDING THE CIRCUMSTANCES ATTENDING THE COMMISSION OF RAPE SOMETIME IN AUGUST 1996.34 Petitioner argues that, while it is true that the factual findings of the CA are conclusive on this Court, we are not prevented from overturning such findings if the CA had manifestly overlooked certain facts of substance and value which if considered might affect the result of the case. Petitioner stresses that from the testimonies of AAA and BBB, it can be deduced that penetration was achieved; thus, AAA felt pain. Petitioner contends that assuming the allegations of AAA are true that petitioner inserted his fingers and his penis into her vagina, certainly such acts would leave certain abrasions, wounds and/or lacerations on the genitalia of AAA, taking into consideration her age at the time and the alleged size of petitioner's penis. However, such allegation is completely belied by the medical report of Dr. Katalbas who, one day after the alleged rape, conducted a medical examination on AAA and found that there were no signs or indications that AAA was raped or molested. Petitioner submits that the CA committed a grave error when it disregarded such medical report since it disproves the allegation of the existence of rape and,

consequently, the prosecution failed to prove its case; thus, the presumption of innocence in favor of the petitioner subsists. Moreover, petitioner opines that like AAA, petitioner is also a child of the barrio who is innocent, unsophisticated and lacks sexual experience. As such, it is incredible and contrary to human reason that a 13- year-old boy would commit such act in the very dwelling of AAA, whose reaction to pain, at the age of six, could not be controlled or subdued. Petitioner claims that poverty was MMM's motive in filing the instant case, as she wanted to extort money from the parents of the petitioner. Petitioner points out that the medical report of Dr. Jocson indicated that the abrasions that were inflicted on the genitalia of AAA were relatively fresh and the same could disappear within a period of 3 to 4 days. Considering that Dr. Jocson conducted the medical examination on December 12, 1996, or after the lapse of eleven (11) days after the alleged incident of rape, and that AAA's parents only filed the instant case after almost a year, in order to deter Luzviminda from filing a case of slander by deed against FFF, it is not inconceivable that MMM inflicted said abrasions on AAA to prove their case and to depart from the initial confession of AAA that it was actually BBB who raped her. Finally, petitioner submits that AAA and BBB were merely coached by MMM to fabricate these stories.35 On the other hand, respondent People of the Philippines through the Office of the Solicitor General (OSG) contends that: the arguments raised by the petitioner are mere reiterations of his disquisitions before the CA; the RTC, as affirmed by the CA, did not rely on the testimonies of both doctors since despite the absence of abrasions, rape is consummated even with the slightest penetration of the lips of the female organ; what is relevant in this case is the reliable testimony of AAA that petitioner raped her in August and December of 1996; even in the absence of force, rape was committed considering AAA's age at that time; as such, AAA did not have any ill motive in accusing petitioner; and it is established that the crime of rape could be committed even in the presence of other people nearby. Moreover, the OSG relies on the doctrine that the evaluation made by a trial court is accorded the highest respect as it had the opportunity to observe directly the demeanor of a witness and to determine whether said witness was telling the truth or not. Lastly, the OSG claims that petitioner acted with discernment when he committed the said crime, as manifested in his covert acts.36 However, Republic Act (R.A.) No. 9344,37 or the Juvenile Justice and Welfare Act of 2006, was enacted into law on April 28, 2006 and it took effect on May 20, 2006.38 The law establishes a comprehensive system to manage children in conflict with the law39 (CICL) and children at risk40 with child-appropriate

procedures and comprehensive programs and services such as prevention, intervention, diversion, rehabilitation, re-integration and after-care programs geared towards their development. In order to ensure its implementation, the law, particularly Section 841 thereof, has created the Juvenile Justice and Welfare Council (JJWC) and vested it with certain duties and functions42 such as the formulation of policies and strategies to prevent juvenile delinquency and to enhance the administration of juvenile justice as well as the treatment and rehabilitation of the CICL. The law also provides for the immediate dismissal of cases of CICL, specifically Sections 64, 65, 66, 67 and 68 of R.A. No. 9344's Transitory Provisions.43 The said Transitory Provisions expressly provide: Title VIII Transitory Provisions SECTION 64. Children in Conflict with the Law Fifteen (15) Years Old and Below. Upon effectivity of this Act, cases of children fifteen (15) years old and below at the time of the commission of the crime shall immediately be dismissed and the child shall be referred to the appropriate local social welfare and development officer. Such officer, upon thorough assessment of the child, shall determine whether to release the child to the custody of his/her parents, or refer the child to prevention programs, as provided under this Act. Those with suspended sentences and undergoing rehabilitation at the youth rehabilitation center shall likewise be released, unless it is contrary to the best interest of the child. SECTION 65. Children Detained Pending Trial. If the child is detained pending trial, the Family Court shall also determine whether or not continued detention is necessary and, if not, determine appropriate alternatives for detention. If detention is necessary and he/she is detained with adults, the court shall immediately order the transfer of the child to a youth detention home. SECTION 66. Inventory of "Locked-up" and Detained Children in Conflict with the Law. The PNP, the BJMP and the BUCOR are hereby directed to submit to the JJWC, within ninety (90) days from the effectivity of this Act, an inventory of all children in conflict with the law under their custody.

SECTION 67. Children Who Reach the Age of Eighteen (18) Years Pending Diversion and Court Proceedings. If a child reaches the age of eighteen (18) years pending diversion and court proceedings, the appropriate diversion authority in consultation with the local social welfare and development officer or the Family Court in consultation with the Social Services and Counseling Division (SSCD) of the Supreme Court, as the case may be, shall determine the appropriate disposition. In case the appropriate court executes the judgment of conviction, and unless the child in conflict with the law has already availed of probation under Presidential Decree No. 603 or other similar laws, the child may apply for probation if qualified under the provisions of the Probation Law. SECTION 68. Children Who Have Been Convicted and are Serving Sentences. Persons who have been convicted and are serving sentence at the time of the effectivity of this Act, and who were below the age of eighteen (18) years at the time of the commission of the offense for which they were convicted and are serving sentence, shall likewise benefit from the retroactive application of this Act. They shall be entitled to appropriate dispositions provided under this Act and their sentences shall be adjusted accordingly. They shall be immediately released if they are so qualified under this Act or other applicable laws. Ostensibly, the only issue that requires resolution in this case is whether or not petitioner is guilty beyond reasonable doubt of the crime of rape as found by both the RTC and the CA. However, with the advent of R.A. No. 9344 while petitioner's case is pending before this Court, a new issue arises, namely, whether the pertinent provisions of R.A. No. 9344 apply to petitioner's case, considering that at the time he committed the alleged rape, he was merely 13 years old. In sum, we are convinced that petitioner committed the crime of rape against AAA. In a prosecution for rape, the complainant's candor is the single most important factor. If the complainant's testimony meets the test of credibility, the accused can be convicted solely on that basis.44 The RTC, as affirmed by the CA, did not doubt AAA's credibility, and found no ill motive for her to charge petitioner of the heinous crime of rape and to positively identify him as the malefactor. Both courts also accorded respect to BBB's testimony that he saw petitioner having sexual intercourse with his younger sister. While petitioner asserts that AAA's poverty is enough motive for the imputation of the crime, we discard such assertion for no mother or father like MMM and FFF would stoop so low as to subject their daughter to the tribulations and the

embarrassment of a public trial knowing that such a traumatic experience would damage their daughter's psyche and mar her life if the charge is not true.45 We find petitioner's claim that MMM inflicted the abrasions found by Dr. Jocson in the genitalia of AAA, in order to extort money from petitioners parents, highly incredible. Lastly, it must be noted that in most cases of rape committed against young girls like AAA who was only 6 years old then, total penetration of the victim's organ is improbable due to the small vaginal opening. Thus, it has been held that actual penetration of the victim's organ or rupture of the hymen is not required.46 Therefore, it is not necessary for conviction that the petitioner succeeded in having full penetration, because the slightest touching of the lips of the female organ or of the labia of the pudendum constitutes rape.47 However, for one who acts by virtue of any of the exempting circumstances, although he commits a crime, by the complete absence of any of the conditions which constitute free will or voluntariness of the act, no criminal liability arises.48 Therefore, while there is a crime committed, no criminal liability attaches. Thus, in Guevarra v. Almodovar,49 we held: [I]t is worthy to note the basic reason behind the enactment of the exempting circumstances embodied in Article 12 of the RPC; the complete absence of intelligence, freedom of action, or intent, or on the absence of negligence on the part of the accused. In expounding on intelligence as the second element of dolus, Albert has stated: "The second element of dolus is intelligence; without this power, necessary to determine the morality of human acts to distinguish a licit from an illicit act, no crime can exist, and because . . . the infant (has) no intelligence, the law exempts (him) from criminal liability." It is for this reason, therefore, why minors nine years of age and below are not capable of performing a criminal act. In its Comment50 dated April 24, 2008, the OSG posited that petitioner is no longer covered by the provisions of Section 64 of R.A. No. 9344 since as early as 1999, petitioner was convicted by the RTC and the conviction was affirmed by the CA in 2001. R.A. No. 9344 was passed into law in 2006, and with the petitioner now approximately 25 years old, he no longer qualifies as a child as defined by R.A. No. 9344. Moreover, the OSG claimed that the retroactive effect of Section 64 of R.A. No. 9344 is applicable only if the child-accused is

still below 18 years old as explained under Sections 67 and 68 thereof. The OSG also asserted that petitioner may avail himself of the provisions of Section 3851 of R.A. No. 9344 providing for automatic suspension of sentence if finally found guilty. Lastly, the OSG argued that while it is a recognized principle that laws favorable to the accused may be given retroactive application, such principle does not apply if the law itself provides for conditions for its application. We are not persuaded. Section 6 of R.A. No. 9344 clearly and explicitly provides: SECTION 6. Minimum Age of Criminal Responsibility. A child fifteen (15) years of age or under at the time of the commission of the offense shall be exempt from criminal liability. However, the child shall be subjected to an intervention program pursuant to Section 20 of this Act. A child above fifteen (15) years but below eighteen (18) years of age shall likewise be exempt from criminal liability and be subjected to an intervention program, unless he/she has acted with discernment, in which case, such child shall be subjected to the appropriate proceedings in accordance with this Act. The exemption from criminal liability herein established does not include exemption from civil liability, which shall be enforced in accordance with existing laws. Likewise, Section 64 of the law categorically provides that cases of children 15 years old and below, at the time of the commission of the crime, shall immediately be dismissed and the child shall be referred to the appropriate local social welfare and development officer (LSWDO). What is controlling, therefore, with respect to the exemption from criminal liability of the CICL, is not the CICL's age at the time of the promulgation of judgment but the CICL's age at the time of the commission of the offense. In short, by virtue of R.A. No. 9344, the age of criminal irresponsibility has been raised from 9 to 15 years old.52 Given this precise statutory declaration, it is imperative that this Court accord retroactive application to the aforequoted provisions of R.A. No. 9344 pursuant to the well-entrenched principle in criminal law -favorabilia sunt amplianda adiosa restrigenda. Penal laws which are favorable to the accused

are given retroactive effect.53 This principle is embodied in Article 22 of the Revised Penal Code, which provides: Art. 22. Retroactive effect of penal laws. Penal laws shall have a retroactive effect insofar as they favor the persons guilty of a felony, who is not a habitual criminal, as this term is defined in Rule 5 of Article 62 of this Code, although at the time of the publication of such laws, a final sentence has been pronounced and the convict is serving the same. We also have extant jurisprudence that the principle has been given expanded application in certain instances involving special laws.54 R.A. No. 9344 should be no exception. In fact, the legislative intent for R.A. No. 9344's retroactivity is even patent from the deliberations on the bill in the Senate, quoted as follows: Sections 67-69 On Transitory Provisions Senator Santiago. In Sections 67 to 69 on Transitory Provisions, pages 34 to 35, may I humbly propose that we should insert, after Sections 67 to 69, the following provision: ALL CHILDREN WHO DO NOT HAVE CRIMINAL LIABILITY UNDER THIS LAW PENDING THE CREATION OF THE OFFICE OF JUVENILE WELFARE AND RESTORATION (OJWR) AND THE LOCAL COUNCIL FOR THE PROTECTION OF CHILDREN (LCPC) WITHIN A YEAR, SHALL BE IMMEDIATELY TRANSFERRED TO DSWD INSTITUTIONS, AND DSWD SHALL UNDERTAKE DIVERSION PROGRAMS FOR THEM, PRIORITIZING THE YOUNGER CHILDREN BELOW 15 YEARS OF AGE AND THE LIGHTER OFFENSES. The only question will be: Will the DSWD have enough facilities for these adult offenders? Senator Pangilinan, Mr. President, according to the CWC, the DSWD does not have the capability at the moment. It will take time to develop the capacity. Senator Santiago. Well, we can say that they shall be transferred whenever the facilities are ready.

Senator Pangilinan. Yes. Mr. President, just a clarification. When we speak here of children who do not have criminal liability under this law, we are referring here to those who currently have criminal liability, but because of the retroactive effect of this measure, will now be exempt. It is quite confusing. Senator Santiago. That is correct. Senator Pangilinan. In other words, they should be released either to their parents or through a diversion program, Mr. President. That is my understanding. Senator Santiago. Yes, that is correct. But there will have to be a process of sifting before that. That is why I was proposing that they should be given to the DSWD, which will conduct the sifting process, except that apparently, the DSWD does not have the physical facilities. Senator Pangilinan. Mr. President, conceptually, we have no argument. We will now have to just craft it to ensure that the input raised earlier by the good Senator is included and the capacity of the DSWD to be able to absorb these individuals. Likewise, the issue should also be incorporated in the amendment. The President.Just a question from the Chair. The moment this law becomes effective, all those children in conflict with the law, who were convicted in the present Penal Code, for example, who will now not be subject to incarceration under this law, will be immediately released. Is that the understanding? Senator Pangilinan. Yes, Mr. President. Senator Santiago. They would immediately fall under . . . . Senator Pangilinan. The diversion requirements, Mr. President. Senator Santiago. Yes. The President. But since the facilities are not yet available, what will happen to them? Senator Santiago. Well, depending on their age, which has not yet been settled . . . . . provides, for example, for conferencing family mediation,

negotiation, apologies, censure, et cetera. These methodologies will apply. They do not necessarily have to remain in detention. Senator Pangilinan. Yes, that is correct, Mr. President. But it will still require some sort of infrastructure, meaning, manpower. The personnel from the DSWD will have to address the counseling. So, there must be a transition in terms of building the capacity and absorbing those who will benefit from this measure. The President. Therefore, that should be specifically provided for as an amendment. Senator Pangilinan. That is correct, Mr. President. The President.All right. Is there any objection? [Silence] There being none, the Santiago amendment is accepted.55 xxxx PIMENTEL AMENDMENTS xxxx Senator Pimentel. xxxx Now, considering that laws are normally prospective, Mr. President, in their application, I would liketo suggest to the Sponsor if he could incorporate some kind of a transitory provision that would make this law apply also to those who might already have been convicted but are awaiting, let us say, execution of their penalties as adults when, in fact, they are juveniles. Senator Pangilinan. Yes, Mr. President. We do have a provision under the Transitory Provisions wherein we address the issue raised by the good Senator, specifically, Section 67. For example, "Upon effectivity of this Act, cases of children fifteen (15) years old and below at the time of the commission of the crime shall immediately be dismissed and the child shall be referred to the appropriate local social welfare and development officer." So that would be giving retroactive effect.

Senator Pimentel. Of cases that are still to be prosecuted. Senator Pangilinan. Yes. Senator Pimentel. What about those that have already been prosecuted? I was trying to cite the instance of juvenile offenders erroneously convicted as adults awaiting execution. Senator Pangilinan. Mr. President, we are willing to include that as an additional amendment, subject to style. Senator Pimentel. I would certainly appreciate that because that is a reality that we have to address, otherwise injustice will really be . . . Senator Pangilinan. Yes, Mr. President, we would also include that as a separate provision. The President. In other words, even after final conviction if, in fact, the offender is able to prove that at the time of the commission of the offense he is a minor under this law, he should be given the benefit of the law. Senator Pimentel. Yes, Mr. President. That is correct. Senator Pangilinan. Yes, Mr. President. We accept that proposed amendment.56 The Court is bound to enforce this legislative intent, which is the dominant factor in interpreting a statute. Significantly, this Court has declared in a number of cases, that intent is the soul of the law, viz.: The intent of a statute is the law. If a statute is valid it is to have effect according to the purpose and intent of the lawmaker. The intent is the vital part, the essence of the law, and the primary rule of construction is to ascertain and give effect to the intent. The intention of the legislature in enacting a law is the law itself, and must be enforced when ascertained, although it may not be consistent with the strict letter of the statute. Courts will not follow the letter of a statute when it leads away from the true intent and purpose of the legislature and to conclusions inconsistent with the general purpose of the act. Intent is the spirit which gives life to

a legislative enactment. In construing statutes the proper course is to start out and follow the true intent of the legislature and to adopt that sense which harmonizes best with the context and promotes in the fullest manner the apparent policy and objects of the legislature.57 Moreover, penal laws are construed liberally in favor of the accused.58 In this case, the plain meaning of R.A. No. 9344's unambiguous language, coupled with clear lawmakers' intent, is most favorable to herein petitioner. No other interpretation is justified, for the simple language of the new law itself demonstrates the legislative intent to favor the CICL. It bears stressing that the petitioner was only 13 years old at the time of the commission of the alleged rape. This was duly proven by the certificate of live birth, by petitioner's own testimony, and by the testimony of his mother. Furthermore, petitioners age was never assailed in any of the proceedings before the RTC and the CA. Indubitably, petitioner, at the time of the commission of the crime, was below 15 years of age. Under R.A. No. 9344, he is exempted from criminal liability. However, while the law exempts petitioner from criminal liability for the two (2) counts of rape committed against AAA, Section 6 thereof expressly provides that there is no concomitant exemption from civil liability. Accordingly, this Court sustains the ruling of the RTC, duly affirmed by the CA, that petitioner and/or his parents are liable to pay AAA P100,000.00 as civil indemnity. This award is in the nature of actual or compensatory damages, and is mandatory upon a conviction for rape. The RTC, however, erred in not separately awarding moral damages, distinct from the civil indemnity awarded to the rape victim. AAA is entitled to moral damages in the amount of P50,000.00 for each count of rape, pursuant to Article 2219 of the Civil Code, without the necessity of additional pleading or proof other than the fact of rape. Moral damages are granted in recognition of the victim's injury necessarily resulting from the odious crime of rape.59 A final note. While we regret the delay, we take consolation in the fact that a law intended to protect our children from the harshness of life and to alleviate, if not cure, the ills of the growing number of CICL and children at risk in our country, has been enacted by Congress. However, it has not escaped us that major concerns have been raised on the effects of the law. It is worth mentioning that in the Rationale for the Proposed Rule on Children Charged under R.A. No. 9165, or the Comprehensive Dangerous Drugs Act of 2002, it was found that:

The passage of Republic Act No. 9344 or the Juvenile Justice and Welfare Act of 2006 raising the age of criminal irresponsibility from 9 years old to 15 years old has compounded the problem of employment of children in the drug trade several times over. Law enforcement authorities,Barangay Kagawads and the police, most particularly, complain that drug syndicates have become more aggressive in using children 15 years old or below as couriers or foot soldiers in the drug trade. They claim that Republic Act No. 9344 has rendered them ineffective in the faithful discharge of their duties in that they are proscribed from taking into custody children 15 years old or below who openly flaunt possession, use and delivery or distribution of illicit drugs, simply because their age exempts them from criminal liability under the new law. 60 The Court is fully cognizant that our decision in the instant case effectively exonerates petitioner of rape, a heinous crime committed against AAA who was only a child at the tender age of six (6) when she was raped by the petitioner, and one who deserves the laws greater protection. However, this consequence is inevitable because of the language of R.A. No. 9344, the wisdom of which is not subject to review by this Court.61 Any perception that the result reached herein appears unjust or unwise should be addressed to Congress. Indeed, the Court has no discretion to give statutes a meaning detached from the manifest intendment and language of the law. Our task is constitutionally confined only to applying the law and jurisprudence to the proven facts, and we have done so in this case.62 WHEREFORE, in view of the foregoing, Criminal Case Nos. 98-19083 and 98-19084 filed against petitioner Joemar F. Ortega are hereby DISMISSED. Petitioner is hereby referred to the local social welfare and development officer of the locality for the appropriate intervention program. Nevertheless, the petitioner is hereby ordered to pay private complainant AAA, civil indemnity in the amount of One Hundred Thousand Pesos (P100,000.00) and moral damages in the amount of One Hundred Thousand Pesos (P100,000.00). No costs. Let a copy of this Decision be furnished the two Houses of Congress and the Juvenile Justice and Welfare Council (JJWC). SO ORDERED. ANTONIO EDUARDO B. NACHURA Associate Justice

WE CONCUR:
CONSUELO YNARES-SANTIAGO Associate Justice Chairperson MA. ALICIA AUSTRIA-MARTINEZ Associate Justice
*

RENATO C. CORONA Associate Justice

MINITA V. CHICO-NAZARIO Associate Justice

ATTESTATION I attest that the conclusions in the above Decision had been reached in consultation before the case was assigned to the writer of the opinion of the Courts Division. CONSUELO YNARES-SANTIAGO Associate Justice Chairperson, Third Division

CERTIFICATION Pursuant to Section 13, Article VIII of the Constitution and the Division Chairpersons Attestation, I certify that the conclusions in the above Decision had been reached in consultation before the case was assigned to the writer of the opinion of the Courts Division. REYNATO S. PUNO Chief Justice

Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. 166401 October 30, 2006 [Formerly G.R. Nos. 158660-67] PEOPLE OF THE PHILIPPINES, appellee, vs. ALFREDO BON, appellant.

DECISION

TINGA, J.: Two critical issues emerge in this case. The first relates to whether the Court should affirm the conviction of appellant Alfredo Bon (appellant) for six counts of rape and two counts of attempted rape, the victims being his then-minor nieces. On that score, we affirm. As a consequence though, we are ultimately impelled to confront a question much broader in both scope and import. While the Court had previously declined to acknowledge the constitutional abolition of the death penalty through the 1987 Constitution,1 we now find it necessary to determine whether the enactment of Republic Act No. 9346 resulted in the statutory interdiction of the death penalty. The second issue arises as we are compelled to review the maximum term of reclusion temporal in the sentence imposed on appellant by the Court of Appeals for the two counts of attempted rape. The sentence was prescribed by the appellate court prior to the enactment of Republic Act No. 9346 which ended the imposition of the death penalty in the Philippines. The proximate concern as to appellant is whether his penalty for attempted qualified rape, which under the penal law should be two degrees lower than that of consummated qualified rape, should be computed from death or reclusion perpetua. First, the antecedent facts. I. Eight (8) Informations2 were filed within the period from 21 August 2000 to 23 February 2001 by the Assistant Provincial Prosecutor of Gumaca, Quezon against appellant, charging him with the rape of AAA3 and BBB,4 the daughters of his older brother. Appellant was accused of raping AAA in Criminal Case Nos. 6899-G, 6902-G, 6906-G, and 6908-G; while he was accused of raping BBB in Criminal Case Nos. 6689-G, 6903-G, 6905-G, and 6907-G.5 All these cases were consolidated for trial. The rapes were alleged to have been committed in several instances over a span of six (6) years.

Both AAA and BBB testified against appellant, their uncle, and both identified him as the man who had raped them. During trial, their respective birth certificates and the medical certificates executed by the doctor who physically examined them were entered as documentary evidence. AAA testified that she was only six (6) years old when she was first molested in 1994 in the house appellant had shared with her grandmother.6 She recounted that the incident took place when she and appellant were alone in the house. Appellant touched her thighs and vagina, removed her clothes and inserted his penis into her vagina. Appellant threatened that she and her parents would be killed should she disclose the incident to anyone. She thereafter stopped sleeping in the house of her grandmother. It was only three (3) years after, in 1997, that she slept in the said house, yet again she was sexually abused by appellant. She was then nine (9) years old.7 AAA recounted that at age eleven (11) in 1999, she was raped by appellant for the third time, again at the house of her grandmother.8 The following year, when she was twelve (12), she was abused for the fourth time by appellant. This time, she was raped in an outdoor clearing9 after having been invited there by appellant to get some vegetables. While at the clearing, appellant forced her to lie down on a grassy spot and tried to insert his penis in her vagina. As she cried in pain, appellant allegedly stopped.10 It was only on 12 June 2000 that she decided to reveal to her mother, CCC,11 the brutish acts appellant had done to her.12 Her mother thus filed a complaint against her uncle. AAA identified appellant in open court and presented as documentary evidence her birth certificate to prove that she was born on 3 September 1988.13 BBB, on the other hand, testified that she was first raped by appellant in 1997 when she was ten (10) years old, also at the house appellant shared with her grandmother. While alone in the house, appellant poked a knife at her, removed her clothes and inserted his penis in her vagina. Despite the pain she felt, she could not resist appellant as he was holding a knife. She did not report the rape to her parents out of fear of appellant's threat that he would kill her.14 BBB further testified that in 1998 and 1999, she was raped again by appellant on several occasions, the rapes occurring under threat of a bladed weapon, and regardless of the time of day.15 BBB stated that she was last raped by appellant on 15 January 2000.16 On that night, she was sleeping beside her sister AAA in the house of her grandmother when she felt appellant touching her body. She pushed him away but appellant pulled her three (3) meters away from AAA towards the door. As appellant was holding a knife, BBB could not make any noise to alert her sister. Appellant ordered her to remove her clothes and forced her to lie down. After he took off his clothes, appellant placed himself on top of BBB and stayed there for three (3) minutes "moving up and down." Thereafter, she put on her clothes and returned to where her sister was. She added that although it was dark, she knew it was appellant who had molested her as she was familiar with his smell. Since then, she never slept in her grandmother's house again.17 It was on 14 June 2000 that BBB disclosed her harrowing experience to her mother. Prior to that, however, she had already revealed the sexual abuses she had underwent to her sister AAA. Upon learning of the same, her mother brought her to the police station and her statement was taken. Thereafter, she was brought to the hospital to be examined. Furthermore, BBB explained that she only reported the abuses done to her on 14 June 2000 or five (5) months after the last rape because she was afraid of appellant's threat of killing her and her family.18 The third witness for the prosecution was the mother, CCC. She testified that she only knew of the abuses done on her daughters on 15 June 2000. Five months earlier, CCC became concerned after observing that BBB, on the pretext of preparing clothes for a game, was packing more than enough

clothes. She asked her other daughter, DDD, to dig into the matter and the latter told her that BBB was planning to leave their house. Upon learning this, she sent somebody to retrieve BBB. However, it was only five months after that incident that BBB confided to her mother that she was raped by appellant. CCC lost no time in reporting the matter to the authorities and had BBB and AAA examined in the hospital. After examination, it was confirmed that BBB was indeed sexually molested.19 CCC initially did not tell her husband about what had happened to their daughters because she was afraid that her husband might kill appellant. It was only after appellant was arrested that she disclosed such fact to her husband. After the arrest of appellant, his relatives became angry at CCC, and her mother-in-law avoided talking to her since then.20 The physician who examined BBB and AAA also testified for the prosecution. Dr. Purita T. Tullas (Dr. Tullas), medical officer of Gumaca District Hospital, testified that she was the one who examined BBB and AAA, and thereafter, issued medical certificates for each child. These medical certificates were presented in court.21 The medical certificate of BBB revealed that at the time of examination, there were no external sign of physical injury found on her body. However, Dr. Tullas found that the labia majora and minora of BBB was slightly gaping, her vaginal orifice was admitting two fingers without resistance and there were hymenal lacerations at "three (3) o'clock" and "eight (8) o'clock" which might have happened a long time before her examination. Dr. Tullas concluded that there might have been sexual penetration caused by a male sex organ for several times.22 AAA's medical certificate stated that at the time of examination, there were no external physical injuries apparent on her body. AAA's labia majora and minora were well coaptated and the hymen was still intact. On direct examination, Dr. Tullas said that it could happen that the hymen would still be intact despite sexual penetration with a person having an elastic hymen. On the other hand, when asked on cross-examination, she stated that there was also the possibility that no foreign body touched the labia of the pudendum of AAA.23 Only appellant testified for his defense, offering denial and alibi as his defense. He averred in court that from 1994 to 2000, he lived in the house of his parents which was about "thirty (30) arm stretches" away from the house of BBB and AAA. He denied having raped BBB on 15 January 2000 because on said date he was at the house of his sister, two (2) kilometers away from the house of his parents where the rape occurred, from 11:30 in the morning and stayed there until early morning of the following day.24 He offered a general denial of the other charges against him by BBB and AAA. He claimed that he seldom saw the two minors. He further asserted that prior to the institution of the criminal case against him he had a smooth relationship with his nieces and the only reason the case was filed against him was that CCC, his sister-in-law and the mother of his nieces, harbored ill-feelings towards his deceased father, who would call CCC "lazy" within earshot of other family members.25 The RTC convicted appellant on all eight (8) counts of rape.26 The RTC pronounced appellant's defense of denial and alibi as unconvincing, citing jurisprudence declaring denial and alibi as intrinsically weak defenses. The RTC concluded that appellant failed to controvert the clear, candid and straightforward testimonies of his nieces. It further considered the qualifying circumstances of minority of the victims and the relationship of the victims and appellant, the latter being the former's relative by consanguinity within the third degree.

As the penalty imposed consisted of eight (8) death sentences, the records of the case were automatically elevated to this Court for review. However, in the aftermath of the pronouncement of the Court in People v. Mateo27 the present case was transferred to the Court of Appeals for appropriate action and disposition. On 29 December 2004, the Court of Appeals agreed with the rulings of the RTC in regard to six (6) of the eight (8) death sentences imposed on appellant.28 The appellate court ratiocinated, thus: We have painstakingly gone over the record of these cases and find no cogent reason to deviate from the findings of the trial court except in at least two (2) cases. The prosecution's case which was anchored mainly on the testimonies of private complainants [BBB] and [AAA], deserve full faith and credit for being clear, precise and straightforward. Like the trial court, We find no reason to disbelieve the private complainants. It was established with certitude that the accused on several occasions sexually assaulted his nieces. The perpetration of the crimes and its authorship were proved by the victims' candid and unwavering testimonies both of whom had the misfortune of sharing the same fate in the hands of their own uncle. The sincerity of [AAA] was made more evident when she cried on the witness stand in obvious distress over what their uncle had done to her and her sister.29 The Court of Appeals downgraded the convictions in Criminal Case Nos. 6906 and 6908 to attempted rape. In these two (2) cases, it was alleged that appellant had raped AAA in 1999 and on 11 June 2000, respectively. According to the appellate court, it could not find evidence beyond reasonable doubt in those two (2) cases that appellant had accomplished the slightest penetration of AAA's vagina to make him liable for consummated rape. It stressed that there was not even moral certainty that appellant's penis ever touched the labia of the pudendum, quoting portions of the transcript of the stenographic notes where AAA was asked if appellant was then successful in inserting his penis into her vagina and she answered in the negative.30 Accordingly, the Court of Appeals reduced the penalties attached to the two (2) counts of rape from death for consummated qualified rape to an indeterminate penalty of ten (10) years of prision mayor, as minimum, to seventeen (17) years and four (4) months of reclusion temporal, as maximum, for attempted rape. Appellant, in his Supplemental Brief31 before this Court, assails the findings of the Court of Appeals. He cites inconsistencies in the testimony of BBB as to what really transpired on 15 January 2000. Particularly, appellant observes that BBB testified on 6 June 2001 as to her rape on 15 January 2000. BBB, her sister and appellant had been sleeping side by side. However, when BBB again testified on 3 July 2002, this time she stated that on that night, as she and her sister AAA were sleeping in their room at their parents' house (and not at her grandmother's), the accused passed through a window, entered their room and raped her again.32 Appellant also latches on the inconsistencies in BBB's testimony as to the length of the duration of her rape on that day. In BBB's testimony on 6 June 2001, she said that appellant was atop her for three (3) minutes while in the 3 July 2002 hearing, BBB stated that the rape lasted for only half a minute. It must be observed though that BBB was at a tender age when she was raped in 2001. Moreover, these inconsistencies, which the RTC and the Court of Appeals did not consider material, were elicited while BBB was testifying in open court. Our observations in People v. Perez33 on the appreciation of alleged inconsistencies in the testimony of rape victims who happen to be minors are instructive, thus: We note that these alleged inconsistencies refer, at best, only to trivial, minor, and insignificant details. They bear no materiality to the commission of the crime of rape of which accused-appellant was convicted.[34] As pointed out by the Solicitor General in the Appellee's Brief, the seeming inconsistencies were brought about by confusion and merely

represent minor lapses during the rape victim's direct examination and cannot possibly affect her credibility. Minor lapses are to be expected when a person is recounting details of a traumatic experience too painful to recall. The rape victim was testifying in open court, in the presence of strangers, on an extremely intimate matter, which, more often than not, is talked about in hushed tones. Under such circumstances, it is not surprising that her narration was less than letter-perfect.[35] "Moreover, the inconsistency may be attributed to the well-known fact that a courtroom atmosphere can affect the accuracy of testimony and the manner in which a witness answers questions."[36]37 Further, the public prosecutor offered a convincing explanation on why BBB was confused on some points of her two testimonies. Particularly in the Memorandum for the People38 filed with the RTC, the public prosecutor creditably explained the inconsistencies, thus: [BBB]'s testimony on July 3, 2002 might be contradictory to her first testimony on June 6, 2001, with respect to the last rape on January 15, 2000, as regards the place of commissionhouse of her parents or house of accused; and the length of time he stayed on her top 3 minutes or half-minute. But she remained consistent in her declaration that on January 15, 2000, her uncle inserted his penis into her vagina, and he was moving while on her top then she felt something came out from him. He was able to rape her because he threatened her with a knife or bladed weapon. Further, the first she took the witness stand on June 6, 2001, she was made to recall the last rape, the first rape and many acts of sexual abuses [sic] against her. She was even confused about her age when she was first raped by her uncle. After she testified on November 14, 2001, for the separate charges of rapes in 1997, 1998 and 1999, she was able to recall more clearly the last rape on January 15, 2000, which happened in her own house. These noted discrepancies as to the exact place of commission accused's house or victim's house is not an essential element of the crime of rape and both houses are situated in Brgy. Villa Padua Ilaya, Gumaca, Quezon, which is within the territorial jurisdiction of this Honorable Court. x x x 39 In addition, we share the lower court's disbelief of appellant's proffered defenses of denial and alibi. These two defenses are inherently the weakest as they are negative defenses. Mere denials of involvement in a crime cannot take precedence over the positive testimony of the offended party. For alibi to prosper, it is not enough for the defendant to prove that he was somewhere else when the crime was committed; he must likewise demonstrate that it is physically impossible for him to have been at the scene of the crime at the time.40 In the case at bar, appellant's alibi that he was at his sister's house barely two (2) kilometers away when the rape took place on 15 January 2000 cannot be given credence by this Court. If we are to thread this line of reasoning, appellant could have easily left his sister's house in the middle of the night, raped BBB, and then returned to his sister's house without much difficulty and without anybody noticing his absence. Well-settled is the rule that a categorical and positive identification of an accused, without any showing of ill-motive on the part of the eyewitness testifying on the matter, prevails over alibi and denial.41 The defenses of denial and alibi deserve scant consideration when the prosecution has strong, clear and convincing evidence identifying appellant as the perpetrator.42 In this case, both BBB and AAA, minors and relatives of appellant, positively identified him as their rapist in open court. The lower courts found no issue detracting from the credibility of such identification. It is worthy to note that the alibi presented by appellant is limited to the 15 January 2000 rape of BBB. He offers nothing to counteract the accusations against him involving the seven (7) other

specific acts of rape other than the averment that he did not know anything about the allegations propounded on him, an infinitesimal defense considering the evidence against him. Appellant does claim that the present case was merely instituted because of the grudge of CCC towards his deceased father. It is outrageous to even suggest that a mother will subject her daughters to the humiliating experience of coming before the court and narrating their harrowing experience just because she was tagged by her father-in-law as lazy. In addition, CCC's father-inlaw had died several years before the criminal charges against appellant were ever instituted. If CCC truly wanted to retaliate and damage the reputation of her father-in-law, she could have done so when the latter was still alive. No member of a rape victim's family would dare encourage the victim to publicly expose the dishonor of the family, more specifically if such accusation is against a member of the family, unless the crime was in fact committed.43 Besides, no sane woman, least of all a child, would concoct a story of defloration, allow an examination of her private parts and subject herself to public trial or ridicule if she has not in truth, been a victim of rape and impelled to seek justice for the wrong done to her. Testimonies of childvictims are normally given full weight and credit, since 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 rape has been committed. Youth and immaturity are generally badges of truth and sincerity.44 The weight of such testimonies may be countered by physical evidence to the contrary, or indubitable proof that the accused could not have committed the rape, but in the absence of such countervailing proof, these testimonies shall be accorded utmost value. The twin aggravating circumstances of minority and relationship were properly appreciated in this case. The minority of the victims and their relationship with appellant were aptly established in the lower court proceedings. Not only did the prosecution allege in the Informations the ages of the victims when they were raped but the prosecution also presented the birth certificates of BBB and AAA in court as documentary evidence to prove that they were both minors when appellant raped them. Appellant, in open court, also admitted that that he was the uncle of both victims being the brother of the victims' father, and thus, a relative of the victims within the third degree of consanguinity. Furthermore, the delay in reporting the repulsive acts of appellant to BBB and AAA is understandably justified, considering that appellant repeatedly threatened to kill them and their family should they disclose the incidents to anyone. It has been held time and again that delay in revealing the commission of rape is not an indication of a fabricated charge.45 Such intimidation must be viewed in light of the victim's perception and judgment at the time of the commission of the crime and not by any hard and fast rule. It is enough that the intimidation produces a fear that if the victim does not yield to the perverse impulses of the accused, something would happen to her at the moment, or even thereafter, as when she is threatened with death if she would report the incident.46 At the same time, we agree with the Court of Appeals that the two counts of rape in Criminal Case Nos. 6906-G and 6908-G were not proven beyond reasonable doubt, but only the two separate incidents of attempted rape. It is to be noted that there is an attempt to commit rape when the offender commences its commission directly by overt acts but does not perform all acts of execution which should produce the felony by reason of some cause or accident other than his own spontaneous desistance.47 In Criminal Case No. 6906-G, the records show that there was no penetration or any indication that the penis of appellant touched the labia of the pudendum of AAA. This was evident in AAA's testimony at the hearing on 17 October 2001, to wit:

Q Do you remember of any unusual incident that happened to you when you were eleven years old? A Yes, Mam. [sic] Q What was that? A He also touched my vagina and my other private parts and he inserted also his penis (into) my vagina. [sic] Q Was he able to insert his penis into your vagina? A No, Mam. [sic] Q Why? A It was painful, Mam. [sic] xxxx Q How many times did he try to insert his penis into your vagina? A Many times, Mam.48 [sic] AAA also testified in the same vein in Criminal Case No. 6908-G. Q I am now through with Criminal Case No. 6906-G. In Criminal Case No. 6908-G, also for Rape. When was the last time that this sexual abuse was committed by your Uncle? A June 11, Mam. [sic] Q What year? A June 11, 2000, Mam. [sic] xxxx Q What did your Uncle do to you on June 11, 2000? A He also removed my clothes, Mam. [sic] Q And after removing your clothes, what did he do to you? A He was trying to insert his penis into my vagina, Mam. [sic] xxxx Q And what did you feel when he was trying to insert his penis in your vagina? A Painful, Mam. [sic]

Q And what did you do when you feel painful? A I cried, Mam. [sic] Q When you cried, what did your Uncle do, if any? A He did not pursue what he was doing, Mam. [sic] xxxx Q And your Uncle was not able to penetrate his penis to your vagina? A No, Mam.49 [sic] In downgrading the offense committed and consequently decreasing the penalty, the CA declared: It is carnal knowledge, not pain, that is the element to consummate rape. Indeed pain may be deduced from the sexual act but accused cannot be convicted of rape by presuming carnal knowledge out of pain. It is well-settled that complete penetration of the penis into the vagina is not necessary to convict for consummated rape since the slightest penetration of one into the other will suffice. However, in People v. Campuhan, the term "slightest penetration" was clarified to mean that there must be sufficient and convincing proof of the penis indeed touching at the very least the labias of the female organ. Mere epidermal contact between the penis and the external layer of the victim's vagina (the stroking and the grazing of the male organ upon the female organ or the mons pubis) categorizes the crime as attempted rape or acts of lasciviousness. There must be positive proof of even the slightest penetration, more accurately, the touching of the labias by the penis, before rape could be deemed consummated. We, therefore, take exception to the finding of the trial court that when the accused was trying to insert his penis into the child's vagina, the act proved painful to [AAA,] which made the accused stop from further executing the act. From the testimony of private complainant, [AAA] in the afore-numbered cases, the prosecution failed to demonstrate beyond any shadow of doubt that accused-appellant's penis reached the labia of the pudendum of AAA's vagina. There is no basis then to apply the rule that the introduction of the penis into the aperture of the female organ (thereby touching the labia of the pudendum) already consummates the case of rape. x x x 50 It should be added that under Article 6 of the Revised Penal Code, there is an attempt when the offender commences the commission of a felony directly by overt acts, and does not perform all the acts of execution which should produce the felony by reason of some cause or accident other than his own spontaneous desistance. In the crime of rape, penetration is an essential act of execution to produce the felony. Thus, for there to be an attempted rape, the accused must have commenced the act of penetrating his sexual organ to the vagina of the victim but for some cause or accident other than his own spontaneous desistance, the penetration, however slight, is not completed.51 The Court thus affirms the conclusions of the Court of Appeals that it has been established beyond reasonable doubt that appellant is guilty of six (6) counts of rape and two (2) counts of attempted rape. However, in light of Rep. Act No. 9346, the appropriate penalties for both crimes should be amended. II.

We shall not dwell at length on the proper penalty imposable on appellant for the six (6) counts of rape. The sentence of death imposed by the RTC and affirmed by the Court of Appeals can no longer be affirmed in view of Rep. Act No. 9346, titled "An Act Prohibiting the Imposition of Death Penalty in the Philippines." Section 2 of the law mandates that in lieu of the death penalty, the penalty of reclusion perpetua shall be imposed. Correspondingly, the Court can no longer uphold the death sentences imposed by lower courts, but must, if the guilt of the accused is affirmed, impose instead the penalty of reclusion perpetua, or life imprisonment when appropriate. Since the passage of Rep. Act No. 9346, the Court has had occasion to effectuate such reduction in recent cases such as People v. Tubongbanua52 and People v. Cabalquinto.53 III. The question of what should be the appropriate penalty for the two (2) counts of attempted rape proves to be the more challenging but interesting question facing the Court. The Court of Appeals had sentenced appellant, for the attempted rape of AAA, to "an indeterminate penalty of ten (10) years of prision mayor, as minimum, to seventeen (17) years and four (4) months of reclusion temporal as maximum," for each count of attempted rape. There is no doubt as to the validity of this sentence at the time it was meted prior to the enactment of Rep. Act No. 9346. Article 51 of the Revised Penal Code establishes the penalty to be imposed upon the principals of an attempted felony: ART. 51. xxx A penalty lower by two degrees than that prescribed by law for the consummated felony shall be imposed upon the principals in an attempt to commit a felony.54 What is the penalty "lower by two degrees than that prescribed by law" for attempted rape? Article 266-B of the Revised Penal Code, which incorporates the amendments introduced by Rep. Act No. 8353, prescribes: The death penalty shall also be imposed if the crime of rape is committed with any of the following aggravating/qualifying circumstances: 1. When the victim is under eighteen (18) years of age and the offender is a parent, ascendant, step-parent, guardian, relative by consanguinity or affinity within the third civil degree, or the common law spouse of the parent of the victim. x x x55 The prescribed penalty for the consummated rape of a victim duly proven to have been under eighteen years of age and to have been raped by her uncle, is death under Article 266-B of the Revised Penal Code. The determination of the penalty two degrees lower than the death penalty entails the application of Articles 61 and 71 of the Revised Penal Code: Art. 61. Rules of graduating penalties.For the purpose of graduating the penalties which, according to the provisions of Articles 50 to 57, inclusive, of this Code, are to be imposed upon persons guilty as principals of any frustrated or attempted felony, or as accomplices or accessories, the following rules shall be observed: 1. When the penalty prescribed for the felony is single and indivisible, the penalty next lower in degree shall be that immediately following that indivisible penalty in the respective graduated scale prescribed in Article 71 of this Code.56

xxxx Article 71 of the Revised Penal Code (Article 71) warrants special attention, crucial as it is to our disposition of this question. The provision reads: Art. 71. Graduated scales. In the case in which the law prescribes a penalty lower or higher by one or more degrees than another given penalty, the rules prescribed in Article 61 shall be observed in graduating such penalty. The lower or higher penalty shall be taken from the graduated scale in which is comprised the given penalty: The courts, in applying such lower or higher penalty, shall observe the following graduated scales: SCALE NO. 1 1. Death 2. Reclusion perpetua 3. Reclusion temporal 4. Prision mayor 5. Prision correctional 6. Arresto mayor 7. Destierro 8. Arresto menor 9. Public censure 10. Fine57 xxxx Following the scale prescribed in Article 71, the penalty two degrees lower than death is reclusion temporal, which was the maximum penalty imposed by the Court of Appeals on appellant for attempted rape. Reclusion temporal is a penalty comprised of three divisible periods, a minimum, a medium and a maximum. At the same time, the Indeterminate Sentence Law prescribes that "the court shall sentence the accused to an indeterminate sentence, the maximum term of which shall be that which, in view of the attending circumstances, could be properly imposed under the rules of the said Code, and the minimum which shall be within the range of the penalty next lower to that prescribed by the Code for the offense." The purpose of the prescription of minimum and maximum periods under the Indeterminate Sentence Law is to effect the privilege granted under the same law, for prisoners who

have served the minimum penalty to be eligible for parole per the discretion of the Board of Indiscriminate Sentence.58Thus, convicts sentenced to suffer death penalty or life-imprisonment are ineligible under that law, as are persons sentenced to reclusion perpetua, an indivisible penalty without minimum or maximum periods.59 Hence, the Court of Appeals sentenced appellant to suffer the penalty for attempted rape, with a maximum penalty within the range of reclusion temporal, and a minimum penalty within the range of the penalty next lower, or prision mayor. If Rep. Act No. 9346 had not been enacted, the Court would have affirmed such sentence without complication. However, the enactment of the law has given rise to the problem concerning the imposable penalty. Appellant was sentenced to a maximum term within reclusion temporal since that is the penalty two degrees lower than death. With the elimination of death as a penalty, does it follow that appellant should now be sentenced to a penalty two degrees lower than reclusion perpetua, the highest remaining penalty with the enactment of Rep. Act No. 9346? If it so followed, appellant would be sentenced to prision mayor in lieu ofreclusion temporal. IV. Obviously, our ruling on the appropriate penalty on appellant for attempted rape will affect not only appellant, but several classes of convicts as well. Before we proceed with the discussion, the Court finds it necessary to make the following qualification. Prior to the enactment of Rep. Act No. 9346, the death penalty was imposable under two different frames of reference. This was especially made clear with the 1993 amendments to the Revised Penal Code through Rep. Act No. 7659, or the Death Penalty Law. Under the Revised Penal Code, as amended, the death penalty was provided for in two ways, namely: as the maximum penalty for "reclusion perpetua to death," and death itself as an automatic and exclusive penalty. Death as the automatic penalty was mandated for the crimes of qualified bribery "if it is the public officer who asks or demands such gift or present;"60 kidnapping or detention "for the purpose of extorting ransom from the victim or any other person;"61 destructive arson wherein "death results;"62 and rape qualified by any of the several circumstances enumerated under the law. On the other hand, the penalty of "reclusion perpetua to death" was imposable on several crimes, including murder,63 qualified piracy,64 and treason.65 The imposition of the death penalty for crimes punishable by "reclusion perpetua to death" depended on the appreciation of the aggravating and mitigating circumstances generally outlined in Articles 13 and 14 of the Revised Penal Code. Reference to those two provisions was unnecessary if the penalty imposed was death, as opposed to "reclusion perpetua to death." There is no need for now to discuss the effects of Rep. Act No. 9346 on the penalties for frustrated and attempted felonies which were punishable by "reclusion perpetua to death" if consummated, or on accomplices and accessories to such felonies. Such situations do not relate to the case of appellant, who was convicted of two (2) counts of attempted rape, which, if consummated, of course would have carried prior to the enactment of Rep. Act 9346 the penalty of death, and not "reclusion perpetua to death." The Court also recognizes that the graduation of penalties reckoned from "reclusion perpetua to death" differs from that based on the exclusive penalty of death. For example, it has been held that the penalty two degrees lower than "reclusion perpetua to death" is prision mayor.66 In contrast, the Court has likewise held that for qualified rape in the attempted stage, "the penalty x x x two (2)

degrees lower than the imposable penalty of death for the offense charged x x x is reclusion temporal."67 In People v. Tolentino,68 we ruled that the accused, who had been sentenced to die for the rape of his nine (9)-year old stepdaughter, was guilty only of attempted rape. In explaining that "reclusion temporal" was the proper penalty, the Court, through then Chief Justice Davide, explained: Under Article 51 of the Revised Penal Code, the penalty for an attempted felony is the "penalty lower by two degrees than that prescribed by law for the consummated felony." In this case, the penalty for the rape if it had been consummated would have been death, pursuant to Article 335 of the Revised Penal Code, as amended by R.A. No. 7659, since [RT69] was eight years old and TOLENTINO was the common-law spouse of [RT's] mother. The last paragraph thereof provides: The death penalty shall also be imposed if the crime of rape is committed with any of the following attendant circumstances: 1. When the victim is under eighteen (18) years of age and the offender is a parent, ascendant, step-parent, guardian, relative by consanguinity or affinity within the third civil degree, or the common-law spouse of the parent of the victim. xxxx The penalty in this case should have been reclusion temporal, which is the penalty lower by two degrees than death. However, with the application of the Indeterminate Sentence Law, TOLENTINO may be sentenced to an indeterminate imprisonment penalty whose minimum shall be within the range of prision mayor and whose maximum shall be within the range of reclusion temporal in its medium period pursuant to Article 64 (1) of the Revised Penal Code.70 This dichotomy results from the application of Article 61 of the Revised Penal Code. Both reclusion perpetua and death are indivisible penalties. Under Article 61 (2) of the Revised Penal Code, "[w]hen the penalty prescribed for the crime is composed of two indivisible penalties the penalty next lower in degree shall be that immediately following the lesser of the penalties prescribed in the respective graduated scale." Hence, in passing sentence on those convicted of attempted felonies which warranted the penalty of "reclusion perpetua to death" if consummated, the Court has consistently held that penalty two degrees lower than "reclusion perpetua to death" is prision mayor. In contrast, if the penalty for the consummated crime is the single indivisible penalty of death, as was prescribed for several crimes under Rep. Act No. 7659, Article 61(1) of the Revised Penal Code provides that "the penalty prescribed for the felony is single and indivisible, the penalty next lower in degree shall be that immediately following that indivisible penalty in the respective graduated scale prescribed in Article 71". Thus, the proper penalty two degrees lower than death is reclusion temporal. It is also for this reason that the controversy we are now addressing did not similarly arise after the enactment of the 1987 Constitution, which prohibits the imposition of the death penalty subject to its subsequent readoption at the choice of Congress. Generally, the highest penalty imposed under the Revised Penal Code was "reclusion perpetua to death," a penalty composed of two indivisible penalties. As a result, the Court had no occasion, after the passage of the 1987 Constitution, to consider the effect of the charter on penalties downgraded from a single indivisible penalty. It was under Rep. Act No. 7659, passed in 1993, that some commonly occurring crimes, such as qualified rape and kidnapping for ransom, were penalized with the single indivisible penalty of death.

The discussion for purposes of this decision will only center on crimes, such as qualified rape as defined in the Revised Penal Code, as amended, for which the imposable penalty was death alone. Thus, our ruling will bear no direct effect on the sentencing of accomplices and accessories or persons guilty of the attempted or frustrated stage of felonies for which the imposable penalty was "reclusion perpetua to death." Hence, it should be understood that any reference forthwith to the penalty of death does not refer to the penalty of "reclusion perpetua to death." V. If there was a clear intent in Rep. Act No. 9346 to downgrade the penalties for convicts whose sentences had been graduated beginning from death pursuant to Article 71, the Court would not hesitate to enforce such downgrading based on clear statutory intent. However, nothing in Rep. Act No. 9346 expressly refers to those penalties imposed on frustrated or attempted felonies, or on accessories and accomplices. Section 1 of Rep. Act No. 9346 bears examination: Section 1. The imposition of the penalty of death is hereby prohibited. Accordingly, Republic Act No. Eight Thousand One Hundred Seventy-Seven (R.A. No. 8177), otherwise known as the Act Designating Death by Lethal Injection, is hereby repealed. Republic Act No. Seven Thousand Six Hundred Fifty-Nine (R.A. No. 7659), otherwise known as the Death Penalty Law, and all other laws, executive orders and decrees, insofar as they impose the death penalty are hereby repealed or amended accordingly. If the penalties for attempted rape of a minor,71 among others, were deemed to have been amended by virtue of Rep. Act No. 9346, such amendment can be justified under the ambit of the repealing clause, which reads, "all other laws, executive orders and decrees, insofar as they impose the death penalty are hereby repealed or amended accordingly." While this clause may, given its breadth, initially impress as the nature of a general repealing clause, it is in actuality an express repealing clause. Section 1 specifically repeals all laws, executive orders and decrees insofar as they impose the death penalty, and not merely such enactments which are inconsistent with Rep. Act No. 9346. Section 1 arguably presents more problems in that regard with its utilization of the particular phrase "insofar as they impose the death penalty." We can entertain two schools of thought in construing this provision, both of them rooted in literalist interpretations. First, it can be claimed that the present application of the penalties for attempted rape of a minor (among many examples) does not "impose the death penalty," since none of the convicts concerned would face execution through the application of the penalty for attempted rape. Hence, the statutory provisions enforced in determining the penalty for attempted rape, or other crimes not punishable by death, are not amended by Rep. Act No. 9346. On the other hand, the operation of the provisions imposing the penalty for attempted rape of a minor necessarily calls for the application, if not its literal imposition, of death as a penalty, in the context of applying the graduated scale of penalties under Article 71 of the Revised Penal Code. If we were to construe "impose" as to mean "apply," then it could be argued that Article 71 was indeed amended by Rep. Act No. 9346. After all, the application of Article 71 to crimes such as attempted rape of a minor call for the actual operation of the death penalty not only in theory, but as a means of determining the proper graduated penalty.

On face value, the attractive worth of the firstly offered line of thinking is enhanced by its innate conservatism, limiting as it would the effects of Rep. Act No. 9346. It also can be understood if confronted with the option of employing either a liberal or a conservative construction, there is a natural tendency to employ the conservative mode. Further, the reasoning is seemingly consistent with that employed by the Court in People v. Muoz,72 a decision which will be thoroughly analyzed in the course of this discussion. If the true intent of Rep. Act No. 9346 was to limit the extent of the "imposition" of the death penalty to actual executions, this could have been accomplished with more clarity. For example, had Section 1 read instead "insofar as they sentence an accused to death," there would have been no room for doubt that only those statutory provisions calling for actual executions would have been repealed or amended. The inability of Congress to shape the repealing clause in so specific a fashion does leave open the question whether Congress did actually intend to limit the operation of Rep. Act No. 9346 to actual executions only. But let us for now test that premise by assuming for the nonce that the legislative intent of Rep. Act No. 9346 was to limit the prohibition of the law to the physical imposition of the death penalty, without extending any effect to the graduated scale of penalties under Article 71 of the Revised Penal Code. VI. There are troubling results if we were to uphold, based on legislative intent, the interpretation of Rep. Act No. 9346 that limits its effects only to matters relating to the physical imposition of the death penalty. Illustrations are necessary. The easy demonstration of iniquitous results is in the case of accomplices. Under Article 267 of the Revised Penal Code, as amended, kidnapping for ransom was punishable by death. Let us say X and Y were tried for the crime. X was charged as a principal for having directly participated in the kidnapping. Y was charged as an accomplice for having allowed X to use his house to detain the victim, even though Y was abroad at the time of the crime and otherwise had no other participation therein. Both X and Y were convicted by final judgment. Since X could no longer be meted the death penalty, he is sentenced instead to reclusion perpetua. Ordinarily, Y as an accomplice should receive the penalty next lower in degree, or reclusion temporal. Yet following the "conservative" interpretation of Rep. Act No. 9346, the graduation of penalties remains unaffected with the enactment of the new law. Thus, under Article 71, which would still take into account the death penalty within the graduated scale, Y, as an accomplice, would be sentenced to reclusion perpetua, the same penalty as the principal. It might be countered that part of the legislative intent of Rep. Act No. 9346, by retaining the graduated scale of penalties under Article 71, was to equalize the penalties of principals and accomplices for crimes previously punishable by death. We do not doubt that the legislature has the theoretical capability to amend the penal law in such fashion. Yet given the drastic effects of equalizing the penalties for principals and accomplices, a step that runs contrary to entrenched thought in criminal law, one could reasonably assume that a legislature truly oriented to enact such change would have been candid enough to have explicitly stated such intent in the law itself. Of course, nothing in Rep. Act No. 9346, either in the caption or in the provisions, explicates the intention to equalize the penalties for principals and accomplices in any crime at all. Moreover, it cannot be denied that it would, at bare minimum, seem strange that the penalties for principals and accomplices are equalized in some crimes, and not in others. Let us return to our previous example of X and Y, but this time, assume that they were charged for simple kidnapping,

with no qualifying circumstance that would have resulted in the imposition of the death penalty. Since the crime is not punishable by death, Rep. Act No. 9346 would have no effect in the imposition of the penalty for simple kidnapping. Accordingly, X would have been sentenced to reclusion perpetua as the principal, while Y would have been sentenced to reclusion temporal as an accomplice. Since simple kidnapping is a comparatively lighter crime than kidnapping for ransom, the lesser penalties are justified. Since Y was merely an accomplice to the crime of simple kidnapping, the imposition on him of a lighter penalty than X is in accord with the Revised Penal Code and established juridical and legal thought. Less justifiable would be the notion that in kidnapping for ransom, the principal and the accomplice would receive the same penalty, while in simple kidnapping, the principal suffers a higher penalty than the accomplice. Frankly, there is no rational explanation for such a disparity, and no legal justification other than the recognition that Congress has the power to will it so. Admittedly, the impact of Rep. Act No. 9346 is less dramatic in relation to frustrated and attempted felonies which were punishable by death if consummated. The consummated felony previously punishable by death would now be punishable by reclusion perpetua. At the same time, the same felony in its frustrated stage would, under the foregoing premise in this section, be penalized one degree lower from death, or also reclusion perpetua. It does not seem right, of course, that the same penalty of reclusion perpetuawould be imposed on both the consummated and frustrated felony. However, the anomaly would be mainly in theory, as we recognize that those felonies previously punishable by death are improbable of commission in their frustrated stage, unlike several felonies punishable by "reclusion perpetua to death,"73 such as murder, which may be frustrated. Still, it cannot be denied that these felonies previously punishable by death are capable of commission in their attempted stages and that the Revised Penal Code provides that the penalty for attempted felonies is "a penalty lower by two degrees than that prescribed by law for the consummated felony." The Court has thus consistently imposed reclusion temporal, the penalty two degrees lower than death, as the maximum term for attempted felonies which, if consummated, would have warranted the death penalty.74 If it were to be insisted that Rep. Act No. 9346 did not affect at all the penalties for attempted felonies, then those found guilty of the subject attempted felonies would still be sentenced toreclusion temporal, even though the "penalty lower by two degrees than that prescribed by law for the consummated felony" would now be prision mayor. It should be pointed out that the interpretation of Rep. Act No. 9346 that would sanction a penalty for some attempted felonies that is only one degree lower than the consummated crime would, again, be disharmonious and inconsistent with the Revised Penal Code and established thought in criminal law. Conceding again that the legislature has the discretion to designate the criminal penalties it sees fit, a regime that foists a differential theoretical basis for the punishment of different attempted felonies resulting in discriminatory penalties is not only irrational but also, to say the least, highly suspect. Considering that physical liberties are at stake, it would be a most cruel joke if such discriminatory effects ensued not from deliberate legislative will, but from oversight. VII. The implementation of Rep. Act No. 9346 in a way that leaves extant the penalties for accomplices, accessories, frustrated and attempted felonies, clearly results in illogical, iniquitous and inconsistent effects. In contrast, no similar flaws ensue should we construe Rep. Act No. 9346 instead as not having barred the application of the death penalty even as a means of depreciating penalties other than death. In particular, the operative amendment that would assure the integrity of penalties for

accomplices, accessories, frustrated and attempted felonies lies in Article 71, which ranks "death" at the top of the scale for graduated penalties. Simply put, the negation of the word "death" as previously inscribed in Article 71 will have the effect of appropriately downgrading the proper penalties attaching to accomplices, accessories, frustrated and attempted felonies to the level consistent with the rest of our penal laws. Returning to our previous examples, Y, the convicted accomplice in kidnapping for ransom, would now bear the penalty of reclusion temporal, the penalty one degree lower than that the principal X would bear (reclusion perpetua). Such sentence would be consistent with Article 52 of the Revised Penal Code, as well as Article 71, as amended, to remove the reference to "death." Moreover, the prospect of the accomplice receiving the same sentence as the principal, an anomalous notion within our penal laws, would be eliminated. Thus, the same standard would prevail in sentencing principals and accomplices to the crime of kidnapping in ransom, as that prescribed to the crime of simple kidnapping. The harmonization that would result if Rep. Act No. 9346 were construed as having eliminated the reference to "death" in Article 71 would run across the board in our penal laws. Consistent with Article 51 of the Revised Penal Code, those convicted of attempted qualified rape would receive the penalty two degrees lower than that prescribed by law, now Rep. Act No. 9346, for qualified rape. There are principles in statutory construction that will sanction, even mandate, this "expansive" interpretation of Rep. Act No. 9346. The maxim interpretare et concordare legibus est optimus interpretandi embodies the principle that a statute should be so construed not only to be consistent with itself, but also to harmonize with other laws on the same subject matter, as to form a complete, coherent and intelligible systema uniform system of jurisprudence.75 "Interpreting and harmonizing laws with laws is the best method of interpretation. x x x x This manner of construction would provide a complete, consistent and intelligible system to secure the rights of all persons affected by different legislative and quasilegislative acts."76 There can be no harmony between Rep. Act No. 9346 and the Revised Penal Code unless the later statute is construed as having downgraded those penalties attached to death by reason of the graduated scale under Article 71. Only in that manner will a clear and consistent rule emerge as to the application of penalties for frustrated and attempted felonies, and for accessories and accomplices. It is also a well-known rule of legal hermeneutics that penal or criminal laws are strictly construed against the state and liberally in favor of the accused.77 If the language of the law were ambiguous, the court will lean more strongly in favor of the defendant than it would if the statute were remedial, as a means of effecting substantial justice.78 The law is tender in favor of the rights of an individual.79 It is this philosophy of caution before the State may deprive a person of life or liberty that animates one of the most fundamental principles in our Bill of Rights, that every person is presumed innocent until proven guilty. Resort to the aforementioned principles in statutory construction would not have been necessary had Rep. Act No. 9346 ineluctably stated that the repeal of all laws imposing the death penalty did not engender the corresponding modification of penalties other than death, dependent as these are on "death" as a measure under the graduated scale of penalties under Article 71. Admittedly, if this were indeed the intent of Congress, and such intent were unequivocally expressed in Rep. Act No. 9346, the resulting inequities and inconsistencies we had earlier pointed out would have remained. If that were to be the case, we would have acknowledged, perhaps tacitly, that such inequities and inconsistencies fell part of the legislative intent. It does not speak well of a Congress to be deliberately inconsistent with, or ignorant of its own prior enactments. Yet ultimately, Section 1 of

Rep. Act No. 9346 is not expressive of such rash or injudicious notions, as it is susceptible to a reading that would harmonize its effects with the precepts and practices that pervade our general penal laws, and in a manner that does not defy the clear will of Congress. VIII. One who would like to advocate that Rep. Act No. 9346 did not correspondingly amend any of the penalties other than death in our penal laws would most certainly invoke our ruling in People v. Muoz,80 decided in 1989. Therein, a divided Court ruled in that the constitutional bar on the imposition of the death penalty did not enact "a corresponding modification in the other periods [in penalties]", there being no expression of "such a requirement in Article III, Section 19(1) of the Constitution or indicat[ion] therein by at least clear and unmistakable implication."81 In so concluding, the Court made the oft-cited pronouncement that there was nothing in the 1987 Constitution "which expressly declares the abolition of the death penalty."82 It is time to re-examine Muoz and its continued viability in light of Rep. Act No. 9346. More precisely, would Muoz as precedent deter the Court from ruling that Rep. Act No. 9346 consequently downgraded penalties other than death? It can be recalled that the accused in Muoz were found guilty of murder, which under the Revised Penal Code, carried the penalty of reclusion temporal in its maximum period to death. The subject murders therein were not attended by any modifying circumstance, and thus penalized in the penalty's medium term. Jurisprudence previous to Muoz held that the proper penalty in such instances should be "the higher half of reclusion temporal maximum," with reclusion temporal maximum, divided into two halves for that purpose.Muoz rejected this formulation, holding instead that the penalty should be reclusion perpetua. Towards this conclusion, the Court made the above-cited conclusions relating to the constitutional abolition of the death penalty, and the charter's effects on the other periods. Six justices dissented from that ruling, and as recently as 1997, a member of the Court felt strongly enough to publish a view urging the reexamination of Muoz.83 It would be disingenuous to consider Muoz as directly settling the question now befacing us, as the legal premises behind Muoz are different from those in this case. Most pertinently, Muoz inquired into the effects of the Constitution on the proper penalty for murder; while herein, we are ascertaining the effects of Rep. Act No. 9346 on the proper penalty for attempted qualified rape. Muoz may have pronounced that the Constitution did not abolish the death penalty, but that issue no longer falls into consideration herein, the correct query now being whether Congress has banned the death penalty through Rep. Act No. 9346. Otherwise framed, Muoz does not preclude the Court from concluding that with the express prohibition of the imposition of the death penalty Congress has unequivocally banned the same. Muoz made hay over the peculiar formulation of Section 19(1), Article III, which provided that "[n]either shall death penalty be imposed, unless, for compelling reasons involving heinous crimes, the Congress hereafter provides for it." Muoz and its progenies, have interpreted that provision as prohibiting the actual imposition of the death penalty, as opposed to enacting an amendatory law that eliminates all references and applications of the death penalty in our statutes. It can also be understood and appreciated that at the time Muoz was decided, it would have been polemical to foster an unequivocal pronouncement that Section 19(1), Article III abolished the death penalty, since the very provision itself acknowledged that Congress may nonetheless subsequently provide for the penalty "for compelling reasons involving heinous crimes," as Congress very well did just four (4) years after Muoz. No such language exists in Rep. Act No. 9346. Of course, the legislature has

the inherent and constitutional power to enact laws prescribing penalties for crimes, and the Constitution will not prohibit Congress from reenacting the death penalty "for compelling reasons involving heinous crimes." Yet it was that express stipulation in the Constitution that dissuaded the Court from recognizing the constitutional abolition of the death penalty; and there is no similar statutory expression in Rep. Act No. 9346, which could be construed as evocative of intent similar to that of the Constitution. The doctrine in Muoz that the constitutional prohibition on the imposition of the death penalty did not enact a corresponding modification of other penalties is similarly irrelevant to this case, which calls for an examination as to whether such corresponding modifications of other penalties arose as a consequence of Rep. Act No. 9346, and not the Constitution. For purposes of legal hermeneutics, the critical question is whether Rep. Act No. 9346 intended to delete the word "death" as expressly provided for in the graduated scale of penalties under Article 71. Muoz did not engage in an analogous inquiry in relation to Article 71 and the Constitution, for what was relevant therein was not the general graduated scale of penalties, but the range of the penalties for murder. Herein, at bare minimum, no provision in Rep. Act No. 9346 provides a context within which the concept of "death penalty" bears retentive legal effect, especially in relation to Article 71. Unlike the Constitution, Rep. Act No. 9346 does expressly stipulate the amendment of all extant laws insofar as they called for the imposition of the penalty of death. The impression left by Muoz was that the use of the word "imposition" in the Constitution evinced the framer's intent to retain the operation of penalties under the Revised Penal Code. In the same vein, one might try to construe the use of "imposition" in Rep. Act No. 9346 as a means employed by Congress to ensure that the "death penalty", as applied in Article 71, remain extant. If the use of "imposition" was implemented as a means of retaining "death" under Article 71, it would have been a most curious, roundabout means indeed. The Court can tolerate to a certain degree the deliberate vagueness sometimes employed in legislation, yet constitutional due process demands a higher degree of clarity when infringements on life or liberty are intended. We have ruled, on due process grounds, as arbitrary and oppressive a tax assessed on a standard characterized as "nothing but blather in search of meaning."84 In the matter of statutes that deprive a person of physical liberty, the demand for a clear standard in sentencing is even more exacting. Yet in truth, there is no material difference between "imposition" and "application," for both terms embody the operation in law of the death penalty. Since Article 71 denominates "death" as an element in the graduated scale of penalties, there is no question that the operation of Article 71 involves the actual application of the death penalty as a means of determining the extent which a person's liberty is to be deprived. Since Rep. Act No. 9346 unequivocally bars the application of the death penalty, as well as expressly repeals all such statutory provisions requiring the application of the death penalty, such effect necessarily extends to its relevance to the graduated scale of penalties under Article 71. We cannot find basis to conclude that Rep. Act No. 9346 intended to retain the operative effects of the death penalty in the graduation of the other penalties in our penal laws.Munoz cannot enjoin us to adopt such conclusion. Rep. Act No. 9346 is not swaddled in the same restraints appreciated by Muoz on Section 19(1), Article III. The very Congress empowered by the Constitution to reinstate the imposition of the death penalty once thought it best to do so, through Rep. Act No. 7650. Within the same realm of constitutional discretion, Congress has reversed itself. It must be asserted that today, the legal status of the suppression of the death penalty in the Philippines has never been more secure than at any time in our political history as a nation.

Following Muoz, the sovereign people, through the 1987 Constitution, might not have willed the abolition of the death penalty and instead placed it under a suspensive condition. As such, we affirmed the characterization of the death penalty during the interregnum between the 1987 Constitution and its reimposition through law as being "in a state of hibernation."85 No longer. It reawakened then it died; because the sovereign people, through Rep. Act No. 9346, banned the death penalty. Only by an Act of Congress can it be reborn. Before that day, the consideration of death as a penalty is bereft of legal effect, whether as a means of depriving life, or as a means of depriving liberty. Despite our present pronouncement on the ban against of the death penalty, we do not acknowledge that Muoz lacked legal justification when it was decided; that its application as precedent prior to Rep. Act No. 9346 was erroneous; or that previous sentences imposed on convicts on the basis of Muoz were wrong. Muoz properly stood as the governing precedent in the matter of sentences that passed finality prior to Rep. Act No. 9346; and the consistent reliance by the courts on its doctrines entrenched its footing in criminal law jurisprudence. IX. Rep. Act No. 7659, in the course of reintroducing the death penalty in the Philippines, also effectively classified the crimes listed therein as "heinous," within constitutional contemplation. Such reclassification under Rep. Act No. 7659 was accompanied by certain legal effects other than the imposition of the death penalty, such as the increase in imposable fines attached to certain heinous crimes.86 The categorization of certain crimes as "heinous", constituting as it does official recognition that some crimes are more odious than others, has also influenced this Court in adjudging the proper pecuniary indemnities awarded to the victims of these crimes. Hence, a general inclination persists in levying a greater amount of damages on accused found guilty of heinous crimes. It should be understood that the debarring of the death penalty through Rep. Act No. 9346 did not correspondingly declassify those crimes previously catalogued as "heinous". The amendatory effects of Rep. Act No. 9346 extend only to the application of the death penalty but not to the definition or classification of crimes. True, the penalties for heinous crimes have been downgraded under the aegis of the new law. Still, what remains extant is the recognition by law that such crimes, by their abhorrent nature, constitute a special category by themselves. Accordingly, Rep. Act No. 9346 does not serve as basis for the reduction of civil indemnity and other damages that adhere to heinous crimes. X. Having pronounced the statutory disallowance of the death penalty through Rep. Act No. 9346 and the corresponding modification of penalties other than death through that statute, we now proceed to discuss the effects of these rulings. As to sentences not yet handed down, or affirmed with finality, the application is immediate. Henceforth, "death," as utilized in Article 71 of the Revised Penal Code, shall no longer form part of the equation in the graduation of penalties. For example, in the case of appellant, the determination of his penalty for attempted rape shall be reckoned not from two degrees lower than death, but two degrees lower than reclusion perpetua. Hence, the maximum term of his penalty shall no longer be reclusion temporal, as ruled by the Court of Appeals, but instead, prision mayor. There should be little complication if the crime committed was punishable by the free-standing penalty of "death," as utilized in Rep. Act No. 7659, as opposed to the ranged penalty of "reclusion perpetua to death," as often used in the Revised Penal Code and other penal laws. The facts of the

present case do not concern the latter penalty, hence our reluctance to avail of an extended discussion thereof. However, we did earlier observe that both "reclusion perpetua" and death are indivisible penalties. Under Article 61 (2) of the Revised Penal Code, "[w]hen the penalty prescribed for the crime is composed of two indivisible penalties x x x x the penalty next lower in degree shall be that immediately following the lesser of the penalties prescribed in the respective graduated scale." Hence, as we earlier noted, our previous rulings that the penalty two degrees lower than "reclusion perpetua to death" is prision mayor. Then there is the matter of whether retroactive effect should be extended to this new ruling, favorable as it is to persons previously convicted of crimes which, if consummated or participated in as a principal, would have warranted the solitary penalty of death. We see no choice but to extend the retroactive benefit. Article 22 of the Revised Penal Code states that "[p]enal laws shall have a retroactive effect insofar as they favor the person guilty of a felony, who is not a habitual criminal[87] x x x x although at the time of the publication of such laws a final sentence has been pronounced and the convict is serving the same." Given that we have ruled that Rep. Act No. 9346 downgraded the penalties for such crimes, the benefit of Article 22 has to apply, except as to those persons defined as "habitual criminal[s]." Indeed, Rep. Act No. 9346 expressly recognized that its enactment would have retroactive beneficial effects, referring as it did to "persons x x x whose sentences were reduced to reclusion perpetua by reason of this Act."88 It cannot be discounted that by operation of Rep. Act No. 9346 and Article 22 of the Revised Penal Code, there may be convicts presently serving their original sentences whose actual served terms exceed their reduced sentences. It should be understood that this decision does not make operative the release of such convicts, especially as there may be other reasons that exist for their continued detention. There are remedies under law that could be employed to obtain the release of such prisoners, if warranted. Offices such as the Public Attorney's Office and nongovernmental organizations that frequently assist detainees possess the capacity and acumen to help implement the release of such prisoners who are so entitled by reason of this ruling. XI. We close by returning to the matter of appellant Alfredo Bon. By reason of Rep. Act No. 9346, he is spared the death sentence, and entitled to the corresponding reduction of his penalty as a consequence of the downgrading of his offense from two (2) counts consummated rape to two (2) counts of attempted rape. For the six (6) counts of rape, we downgrade the penalty of death to reclusion perpetua with no eligibility for parole, pursuant to Rep. Act No. 9346. For each of the two (2) counts of attempted rape, we downgrade by one degree lower the penalty imposed by the Court of Appeals. We hold that there being no mitigating or aggravating circumstances, the penalty of prision mayor should be imposed in it medium period. Consequently, we impose the new penalty of two (2) years, four (4) months and one (1) day of prision correccional as minimum, to eight (8) years and one (1) day of prision mayor as maximum. Lastly, as to damages, the Court awards AAA P30,000.00 as civil indemnity, P25,000.00 as moral damages and P10,000.00 as exemplary damages for each count of attempted rape, it being the prevailing rate of indemnity as pronounced in the recent case of People v. Miranda.89 Separately, the Court applies prevailing jurisprudence90 in awarding to BBB and AAA P75,000.00 as civil indemnity, P75,000.00 as moral damages and P25,000.00 as exemplary damages, for each count of consummated rape. WHEREFORE, in light of the foregoing, the Decision of the Court of Appeals is hereby AFFIRMED WITH MODIFICATION. The Court sentences appellant Alfredo J. Bon to the penalty of reclusion

perpetua with no possibility of parole for each of the six (6) counts of consummated rape committed against AAA in Criminal Case Nos. 6699, 6902, and against BBB in Criminal Case Nos. 6689, 6903, 6905, and 6907. Appellant is further ORDERED to indemnify AAA and BBB for the crime of consummated rape, in the amounts ofP50,000.00 as civil indemnity, P50,000.00 as moral damages and P25,000.00 as exemplary damages for each of them. For the two (2) counts of attempted rape of AAA in Criminal Cases No. 6906 and 6908, appellant is hereby SENTENCED to an indeterminate penalty of two (2) years, four (4) months and one (1) day of prision correccional as minimum, to eight (8) years and one (1) of prision mayor as maximum for each count of attempted rape. In addition, appellant is ORDERED to indemnify AAA for each of the two (2) counts of attempted rape in the amounts of P30,000.00 as civil indemnity, P25,000.00 as moral damages and P10,000.00 as exemplary damages. SO ORDERED. Panganiban, C.J. (Chairperson), Puno, Quisumbing, Ynares-Santiago, Sandoval-Gutierrez, Carpio, Austria-Martinez, Corona, Carpio Morales, Callejo, Sr., Azcuna, Chico-Nazario, Garcia, and Velasco, Jr., JJ., concur.

Republic of the Philippines SUPREME COURT Manila SECOND DIVISION G.R. No. 145498 January 17, 2005

BENJAMIN LEE, petitioner, vs. COURT OF APPEALS and PEOPLE OF THE PHILIPPINES, respondents. DECISION AUSTRIA-MARTINEZ, J.: Petitioner is now before us on a petition for review under Rule 45 of the Rules of Court seeking the reversal of the Decision1 of the Court of Appeals dated July 30, 1999, which affirmed the judgment of the Regional Trial Court, Branch 79, Quezon City (RTC) convicting him of violating Batas Pambansa Blg. 22 in Criminal Case No. Q-93-50094; and the Resolution2 dated October 11, 2000, denying his motion for reconsideration. The facts are as follows: On October 4, 1993, an Information was filed against petitioner Dr. Benjamin F. Lee and a certain Cesar Al. Bautista, for violation of B.P. Blg. 22, which reads: That on or about the 24th day of July 1993, in Quezon City, Philippines, the said accused, conspiring together, confederating with, and mutually helping each other, did then and there willfully, unlawfully and feloniously make or draw and issue to Rogelio G. Bergado to apply on account or for value United Coconut Planters Bank Check No. 168341 dated July 24, 1993 payable to the order of Rogelio G. Bergado in the amount of P980,000.00, Philippine Currency, said accused well knowing that at the time of issue they did not have sufficient funds in or credit with the drawee bank for payment of such check in full upon its presentment, which check when presented for payment was subsequently dishonored by the drawee bank for Account Closed and despite receipt of notice of such dishonor, said accused failed to pay said Rogelio G. Bergado the amount of said check or to make arrangement for full payment of the same within five (5) banking days after receiving said notice. CONTRARY TO LAW.3 Petitioner pleaded not guilty in his arraignment on February 1, 1995.4 Presiding Judge Godofredo L. Legaspi noted in the assailed judgment that trial proceeded insofar only as petitioner is concerned, "since accused Cesar Bautista is presently detained at Municipal Jail at Calapan, Mindoro where he has a pending case before the Metropolitan Trial Court (MTC), Calapan, Mindoro and despite several notices to the jail warden of Calapan, Mindoro, the latter failed to bring the person of said accused to this Court for arraignment."5 For the prosecution, private complainant Rogelio Bergado testified that: on July 19, 1992, he loaned Unlad Commercial Enterprises (Unlad for brevity), through its agent Norma Ilagan, the amount of P500,000.00 with an interest of 4% a month; on September 10, 1992, he loaned

another P400,000.00 through Ilagan for the same interest rate; in exchange, he received a total of twenty-six checks, four of which were dishonored for the reason "drawn against insufficient funds"; he went to Calapan, Mindoro and talked to Bautista and the latter replaced the dishonored checks with United Coconut Planters Bank (UCPB) Check No. ARA 168341, signed by Bautista and herein petitioner dated July 24, 1993, in the amount of P980,000.00 representing the total amount loaned plus interests; when Bergado deposited the check at UCPB, the same was dishonored due to "account closed"; through his lawyer, he sent demand letters to Bautista and petitioner, who, despite having received the same still failed and refused to make any payment. Upon cross-examination, Bergado admitted that he did not see or meet petitioner prior to July 24, 1993 nor did he go to Calapan, Mindoro to check the existence of Unlad prior to lending it the amount of P900,000.00.6 The prosecution also presented Zenaida7 Katigbak, Branch Operations Officer of UCPB Araneta Avenue, Quezon City, who testified that Bautista and petitioner are the authorized signatories of Current Account No. 130-000406-2, against which the check subject of the present criminal case was issued; and that the account was opened on August 22, 1988 and closed on January 31, 1992 due to mishandling of the account, i.e., a check was previously issued against it without sufficient funds.8 The prosecution presented UCPB Check No. ARA 168341,9 UCPB Check Return Slip dated August 5, 1993 stating that Check No. ARA 168341 was returned unpaid due to "account closed";10 a demand letter addressed to petitioner dated August 9, 1993;11 registry return slip;12 a copy of the complaint affidavit of private complainant;13signature card of the current account of petitioner and Bautista at UCPB;14 and the bank statement of the current account of petitioner and Bautista dated January 31, 1992 reflecting that said account has been closed on said date.15 For the defense, petitioner testified that: it is Bautista who is the sole owner of Unlad; he knew Bautista and became his "compadre" because of Bautistas wife who was his employee; he does not know anything about the check issued by Bautista in favor of Bergado nor did he receive any amount from Bergado or any other person; he agreed to open an account with Bautista in 1988 because Bautista promised to give him 5% interest from the proceeds of loans that will be made in favor of other people from said account; before July of 1989, Bautista also asked him to sign several checks in exchange for 2.5% interest a month from the proceeds of loan to be made in favor of other people; after July 1989, he terminated his accommodation arrangement with Bautista after learning that Bautista was also giving 5% interest to other investors without any accommodation agreement; he asked for the checks he previously signed but Bautista refused to return them saying that he did not have them anymore; and inspite of these, he continued investing in Bautistas business in the amount of more than P500,000.00.16 On cross-examination, petitioner admitted that he signed several checks in blank on different occasions; that he was the one who asked and insisted that Bautista execute Exhs. "1" and "2", affidavits of Bautista stating that Unlad shall be Bautistas sole responsibility; and that despite having severed his relationship with Bautista in July of 1989, he did not inform UCPB Araneta, Quezon City branch of such fact and he continued investing in Unlad, from July 1989 to April 1994.17 To bolster his claim, petitioner presented: an affidavit executed by Bautista dated May 31, 1993 stating that Bautista is the sole proprietor of Unlad and that any business transaction entered into by Unlad shall be Bautistas personal responsibility;18 an affidavit executed by Bautista on June 4, 1990, stating that petitioner is no longer connected with Unlad and that petitioner should not be held liable regarding any transaction entered into by Unlad after July 1989 since petitioner is no longer a signatory;19 a business permit issued by the Municipality of Calapan certifying that Bautista has been granted a permit to operate a "general merchandise";20 a certification from the Department of Trade and Industry, Oriental Mindoro Provincial Office stating that Unlad is registered in the name of Cesar

Bautista and/or Placer Bautista;21 orders of attachment issued by the Regional Trial Court of Oriental Mindoro on the properties of Bautista and petitioner;22 and checks issued by Bautista in favor of petitioner and his wife Amelia Lee.23 On July 22, 1997, the RTC promulgated its decision, the dispositive portion of which reads as follows: WHEREFORE, judgment is hereby rendered in this case finding accused Benjamin Lee guilty beyond reasonable doubt of Violation of Batas Pambansa Blg. 22 and accordingly sentences him to suffer an imprisonment of one (1) year of prision correccional, and to pay the offended party P980,000.00 and to pay a fine of P200,000.00 with subsidiary imprisonment in case of insolvency and non-payment of the fine by the accused. SO ORDERED.24 Petitioner went to the Court of Appeals which modified the trial courts judgment, thus: WHEREFORE, the Decision is hereby MODIFIED by imposing a penalty of one (1) year and for the accused to pay the private party the sum of Nine Hundred Eighty Thousand Pesos (P980,000.00) as civil indemnity. With cost against the accused. SO ORDERED.25 Petitioners motion for reconsideration was denied on October 11, 2000. Hence, the present petition with the following assignment of errors: 1. THE COURT A QUO COMMITTED A REVERSIBLE ERROR OF LAW IN DISREGARDING PETITIONERS DEFENSE THAT HE HAD ALREADY SEVERED, SINCE JULY 1989, HIS ACCOMODATION ARRANGEMENT WITH HIS CO-ACCUSED BAUTISTA WHO WAS SOLELY RESPONSIBLE FOR ALL THE TRANSACTIONS ENTERED INTO BY UNLAD COMMERCIAL ENTERPRISES AND THEREFORE PETITIONER HAD NO KNOWLEDGE OF THE SUFFICIENCY OR INSUFFICIENCY OF FUNDS OF UNLADS BANK ACCOUNT. 2. THE COURT A QUO HAS DECIDED IN (A) WAY NOT IN ACCORD WITH LAW IN FAILING TO RULE THAT THE SUBJECT CHECK, UCPB CHECK NO. ARA 168341, WAS NOT ISSUED BY PETITIONER TO PRIVATE COMPLAINANT ON ACCOUNT OR FOR VALUE. 3. THE COURT A QUO COMMITTED AN ERROR OF LAW WHEN IT FAILED TO CONSIDER THAT AT THE TIME THE SUBJECT CHECK WAS ISSUED BY BAUTISTA IN FAVOR OF PRIVATE COMPLAINANT, THE LATTER WAS ALREADY AWARE THAT THE RESPECTIVE ESTATES OF THE ACCUSED WERE ALREADY ATTACHED BY THE REGIONAL TRIAL COURT OF CALAPAN, ORIENTAL MINDORO. 4. THE COURT A QUO COMMITTED A REVERSIBLE ERROR OF FACT AND LAW IN NOT ACQUITTING PETITIONER ON GROUND OF REASONABLE DOUBT.

5. THE COURT A QUO AND THE TRIAL COURT COMMITTED REVERSIBLE ERROR OF LAW WHEN THEY FAILED TO DISMISS THE INFORMATION FOR VIOLATION OF B.P. 22 AGAINST THE ACCUSED FOR LACK OF JURISDICTION.26 In support of his first assigned error, petitioner claims that: he had no actual knowledge of the sufficiency or insufficiency of the funds handled by his co-accused Bautista; while it is true that he opened a joint account with Bautista at UCPB Araneta Avenue, Quezon City and that he signed several UCPB checks in blank to accommodate Bautista, he already severed his accommodation arrangement with Bautista as early as July of 1989; this is evidenced by the affidavits executed by Bautista dated June 4, 1990 and May 31, 1993 which the court a quo ignored; the Court of Appeals erroneously held that the affidavits of Bautista are "self-serving" since there was no showing that Bautista was lying when he made the statements therein; also, the declarant in this case is Bautista and not petitioner, thus the principle of self-serving statements cannot apply; the affidavits of Bautista are declarations against the interest of the person making it, which are admissible notwithstanding their hearsay character, since such declarations are relevant to the case and the declarant is not available as a witness despite efforts of petitioner to present Bautista in court; the true test of the reliability of the declaration is not whether it was made ante litem motam as in this case but whether the declaration was uttered under circumstances justifying the conclusion that there was no probable motive to falsify; also, the affidavits of Bautista, having been acknowledged before a notary public, should be given evidentiary weight.27 Petitioner also points out that in Lao vs. Court of Appeals 28 the Court held that if knowledge of the insufficiency of funds is proven to be actually absent or non-existent, the accused should not be held liable for the offense defined under Sec. 1 of B.P. Blg. 22; in said case, petitioner was acquitted, even though she was still connected with the corporation at the time of the issuance of the check, since she was not expected or obliged to possess under the organizational structure of the corporation, knowledge of the insufficiency of funds; and that in the case at bar, the court a quo affirmed the conviction of petitioner even though it was established that he had ceased to be connected with co-accused Bautistas business for more than three years prior to the issuance of the subject check and even though it was clear from the testimony of private complainant himself that he had dealt with Bautista and Ilagan only.29 Anent the second and third assigned errors, petitioner argues that: in the case at bar, there was neither a pre-existing obligation nor an obligation incurred on the part of petitioner when the subject check was given by Bautista to private complainant on July 24, 1993 since petitioner was no longer connected with Unlad or Bautista starting July of 1989; when Bautista issued the subject check to Bergado on July 24, 1993, Bautista had no more authority to use petitioners pre-signed checks thus there was no consideration to speak of; petitioner was deceived by Bautista into believing that all the pre-signed checks were already used or issued as of 1989; the court a quo should not have presumed that when petitioner signed the checks and handed the same to Bautista, petitioner had knowledge that their account had no funds; in all criminal cases, suspicion, no matter how strong cannot sway judgment; even assuming that petitioner had issued the subject check when he signed the same sometime before July 1989 and that he had an undertaking to whoever would be the payee, still petitioner should be exempted from criminal liability since petitioner could not comply with the said undertaking due to an insuperable cause, i.e., as early as June 18, 1993, all the properties of petitioner had already been attached/garnished by the Regional Trial Court of Oriental Mindoro.30 Petitioner further argues that: private complainant is not a holder in due course because he knew that the account of Bautista and petitioner with UCPB Araneta branch had been closed at the time that he deposited UCPB Check No. ARA 168341 on August 5, 1993; Check No. ARA 374058 in the amount of P500,000.00, which bounced earlier, was drawn from the same UCPB account of Bautista and petitioner which had already been closed by the UCPB on January 31, 1992;31 private complainant also had knowledge that the respective estates of both accused were already attached

by the RTC at the time the subject check was given to him by Bautista since the first order of attachment was issued on June 18, 1993 and was recorded with the Registry of Deeds of Oriental Mindoro on the same date; applying the principle that registration of instrument is notice to the world, Bergado is presumed to know the various orders of attachment/garnishment issued by the court.32 As to his fourth assigned error, petitioner argues that: the prosecution failed to prove his guilt beyond reasonable doubt; the prosecution failed to rebut the allegation of petitioner that he was not anymore connected with the business of Bautista and therefore he had no knowledge of the insufficiency of the funds handled by Bautista; and the prosecution and the trial court relied solely on the authenticity of petitioners signature on the subject check which fact is not enough to convict petitioner of the offense charged.33 Finally, anent his fifth assigned error, petitioner claims that the Regional Trial Court which tried and convicted petitioner had no jurisdiction over violations of B.P. Blg. 22 considering that the penalty therefor is imprisonment of thirty days to one year and/or a fine not less than, and not more than double, the amount, but not to exceedP200,000.00; and that at the time the Information was filed on October 4, 1993, violations of B.P. Blg. 22 fell under the jurisdiction of the MTC in view of Sec. 32 (2) of B.P. Blg. 129 which provides that the MTC has exclusive original jurisdiction over all offenses punishable with imprisonment of not more than four years and two months or a fine of not more than P4,000.00 or both such fine and imprisonment, regardless of other imposable accessory or other penalties including the civil liability arising from such offenses or predicated thereon, irrespective of kin, nature, value or amount thereof.34 In his Comment, the Solicitor General contends that: the mere fact that petitioner was a signatory to the check makes him solidarily liable with his co-signatory; if it is true that petitioner severed his accommodation arrangement with Bautista as early as July of 1989, he should have informed the UCPB Araneta Avenue, Quezon City branch that any check that would be issued bearing his signature and that of Bautista and drawn against their joint account after July of 1989 should no longer be honored; the affidavit of Bautista to the effect that petitioner should not be held answerable for any liability of Unlad after July 1989 is not admissible as Bautista was not presented in court nor the prosecution afforded any opportunity to test the veracity of his allegations; having failed to convincingly establish that petitioner has severed his accommodation arrangement with his coaccused Bautista, the presumption stands that he was aware that they no longer had sufficient funds at the time the check was issued; the presumption also stands that the check was issued on account or for value; petitioner also cannot claim that private complainant was aware that petitioner and Bautistas joint account was already closed at the time the subject check was issued and delivered to complainant since there is nothing on record to show that the reason for the non-payment of the checks earlier issued to complainant was due to "account closed"; Bergado claims that the earlier checks were dishonored due to lack of sufficient funds; there is also no merit to the argument of petitioner that private complainant was already aware that petitioner together with Bautista could no longer make good the subject check in view of the various writs of attachment issued by the court against their properties, which writs of attachment were duly recorded with the Register of Deeds; the registration of the various writs of attachment affected only the real properties of petitioner and such registration served as warning to those who may have or intend to have dealings affecting such lands covered by the attachments; with regard to the attachment of their bank accounts, there was no showing that private complainant was aware of the same; there is also no merit to the claim of petitioner that his guilt was not proven beyond reasonable doubt; the prosecution was able to establish that petitioner, together with Bautista, issued the subject check to the complainant in payment of the money loaned by the latter to Unlad; the check bounced for the reason "account closed" and despite demand to make good the check, petitioner and his co-accused failed and refused to pay the complainant; and there is no merit to the claim of petitioner that the RTC had no jurisdiction over the present case following Sec. 32 (2) of B.P. Blg. 129 where it is provided that in order that the offense under the jurisdiction of Municipal Trial Courts, Metropolitan Trial Courts and

Municipal Circuit Trial Courts, the imposable penalty must not exceed four years and two months or a fine of not more than P4,000.00 or both such fine and imprisonment; in the case at bar, the imposable fine is way beyond the limit of P4,000.00 as the amount of the check is P980,000.00 thus the RTC had jurisdiction over the case.35 Simply stated, the issues that need to be resolved are as follows: (1) whether the RTC, which tried and convicted petitioner, has jurisdiction over the case; (2) whether petitioner had actual knowledge of the sufficiency or insufficiency of funds handled by his co-accused; (3) whether the check was issued on account or for value; (4) whether the private complainant, at the time of issuance, had knowledge that the check had no sufficient funds; and (5) whether the guilt of the accused was proven beyond reasonable doubt. First issue.Whether the RTC, which tried and convicted petitioner, had jurisdiction over the case. Petitioner claims that the RTC which tried and convicted him had no jurisdiction over violations of B.P. Blg. 22since such jurisdiction is vested on the MTC in view of Sec. 32 (2) of B.P. Blg. 129. We do not agree. As clearly provided by Sec. 32 (2) of B.P. Blg. 129, to wit: Sec. 32. Jurisdiction of Metropolitan Trial Courts, Municipal Trial Courts and Municipal Circuit Trial Courts in Criminal Cases.---Except in cases falling within the exclusive original jurisdiction of Regional Trial Courts and the Sandiganbayan, the Metropolitan Trial Courts, Municipal Trial Courts, and Municipal Circuit Trial Courts shall exercise: ..... (2) Exclusive original jurisdiction over all offenses punishable with imprisonment of not exceeding four years and two months, or a fine of not more than four thousand pesos, or both such fine and imprisonment, regardless of other imposable accessory or other penalties, including the civil liability arising from such offenses or predicated thereon, irrespective of kind, nature, value or amount thereof: Provided, however, That in offenses involving damage to property through criminal negligence they shall have exclusive original jurisdiction where the imposable fine does not exceed twenty thousand pesos. (Emphasis supplied) the MTC has exclusive jurisdiction over offenses punishable with imprisonment of not exceeding four years and two months, OR, a fine of not more than four thousand pesos or both such fine and imprisonment. The Information in this case was filed on October 4, 1993. On March 25, 1994, Republic Act No. 7691 took effect and amended Sec. 32 (2) of B.P. Blg. 129 to read as follows: Sec. 32. Jurisdiction of Metropolitan Trial Courts, Municipal Trial Courts and Municipal Circuit Trial Courts in Criminal Cases. --- Except in cases falling within the exclusive original jurisdiction of Regional Trial Courts and of the Sandiganbayan, the Metropolitan Trial Courts, Municipal Trial Courts and Municipal Circuit Trial Courts shall exercise: .....

(2) Exclusive original jurisdiction over all offenses punishable with imprisonment not exceeding six (6) years irrespective of the amount of fine, and regardless of other imposable accessory or other penalties, including the civil liability arising from such offenses or predicated thereon, irrespective of kind, nature, value or amount thereof: Provided, however, that in offenses involving damage to property through criminal negligence, they shall have exclusive original jurisdiction thereof. (Emphasis supplied) Since the Information in the present case was filed prior to the amendment of R.A. No. 7691, the old rule governs and therefore, considering that the imposable penalty for violation of B.P. Blg. 22 per Section 1, thereof is imprisonment of not less than thirty days but not more than one year OR by a fine of not less than but not more than double the amount of the check which fine shall in no case exceed P200,000.00, or both fine and imprisonment; and inasmuch as the fine imposable in the present case is more than P4,000.00 as the subject amount of the check is P980,000.00, it is the Regional Trial Court that has jurisdiction over the present case. As we held in People vs. Velasco :36 as a general rulethe jurisdiction of a court to try a criminal action is to be determined by the law in force at the time of the institution of the action. Where a court has already obtained and is exercising jurisdiction over a controversy, its jurisdiction to proceed to the final determination of the cause is not affected by new legislation placing jurisdiction over such proceedings in another tribunal. The exception to the rule is where the statute expressly provides, or is construed to the effect that it is intended to operate as to actions pending before its enactment. Where a statute changing the jurisdiction of a court has no retroactive effect, it cannot be applied to a case that was pending prior to the enactment of a statute. A perusal of R.A. No. 7691 will show that its retroactive provisions apply only to civil cases that have not yet reached the pre-trial stage. Neither from an express proviso nor by implication can it be understood as having retroactive application to criminal cases pending or decided by the Regional Trial Courts prior to its effectivityAt the time the case against the appellant was commenced by the filing of the information on July 3, 1991, the Regional Trial Court had jurisdiction over the offense charged. ..... In fine, the jurisdiction of the trial court (RTC) over the case of the appellant was conferred by the aforecited law then in force (R.A. No. 6425 before amendment) when the information was filed. Jurisdiction attached upon the commencement of the action and could not be ousted by the passage of R.A. No. 7691 reapportioning the jurisdiction of inferior courts, the application of which to criminal cases is, to stress, prospective in nature.37 Second issue.Whether petitioner had actual knowledge of the insufficiency of funds. We have held that knowledge involves a state of mind difficult to establish, thus the statute itself creates a prima facie presumption that the drawer had knowledge of the insufficiency of his funds in or credit with the bank at the time of the issuance and on the checks presentment for payment if he fails to pay the amount of the check within five banking days from notice of dishonor.38 Sec. 2 of B.P. Blg. 22, provides: Section 2. Evidence of knowledge of insufficient funds. - The making, drawing and issuance of a check payment of which is refused by the drawee bank because of insufficient funds in or credit with such bank, when presented within ninety (90) days from the date of the check, shall be prima facie evidence of knowledge of such insufficiency of funds or credit unless such maker or drawer

pays the holder thereof the amount due thereon, or makes arrangements for payment in full by the drawee of such check within five (5) banking days after receiving notice that such check has not been paid by the drawee. As a rule, the prosecution has a duty to prove all the elements of the crime, including the acts that give rise to theprima facie presumption. Petitioner, on the other hand, has a right to rebut such presumption. Thus, if such knowledge of insufficiency of funds is proven to be actually absent or inexistent, the accused should not be held liable for the offense defined under the first paragraph of Sec. 1 of B.P. Blg. 22,39 thus: SECTION 1. Checks without sufficient funds. Any person who makes or draws and issues any check to apply on account or for value, knowing at the time of issue that he does not have sufficient funds in or credit with the drawee bank for the payment of such check in full upon its presentment, which check is subsequently dishonored by the drawee bank for insufficiency of funds or credit or would have been dishonored for the same reason had not the drawer, without any valid reason, ordered the bank to stop payment, shall be punished by imprisonment of not less than thirty days but not more than one (1) year or by a fine of not less than but not more than double the amount of the check which fine shall in no case exceed Two hundred thousand pesos, or both such fine and imprisonment at the discretion of the court. The same penalty shall be imposed upon any person who having sufficient funds in or credit with the drawee bank when he makes or draws and issues a check, shall fail to keep sufficient funds or to maintain a credit or to cover the full amount of the check if presented within a period of ninety (90) days from the date appearing thereon, for which reason it is dishonored by the drawee bank. .... In the present case, the prosecution has established the prima facie presumption of knowledge of petitioner of insufficient funds through the demand letter sent to petitioner, Exhibit "C"40 which was duly received by petitioner as shown by the registry return receipt, Exhibit "D".41 Petitioner tried to rebut the prima facie presumption by insisting that he is not an owner of Unlad and he has already severed his accommodation arrangement with Bautista as early as 1989. He argues that the affidavits of Bautista exonerating him from any responsibility as well as the private complainants own testimony that he never dealt with petitioner, should be given weight. We are not persuaded. It is a hornbook doctrine that unless the affiant himself takes the witness stand to affirm the averments in his affidavits, the affidavits must be excluded from the judicial proceeding, being inadmissible hearsay.42 The trial court and the Court of Appeals were correct in considering the same as hearsay evidence and in not giving probative weight to such affidavits. Moreover, petitioner had admitted that he continued investing in Unlad until April 1994. Hence, he now cannot claim that he has completely severed his ties with Bautista as of 1989. With nothing but his bare assertions, which are ambiguous at best, petitioner has failed to rebut the prima facie presumption laid down by the statute and established by the prosecution. Petitioners insistence that since he is not an owner of Unlad, he could not have had any knowledge as to the insufficiency of funds is devoid of merit. As clarified in Lao vs. Court of Appeals,43 the very case petitioner is invoking, the doctrine that a mere employee tasked to sign checks in blanks may

not be deemed to have knowledge of the insufficiency of funds applies only to corporate checks and not to personal checks.44 In this case, what is involved is a personal and not a corporate check. Worth mentioning also is the fact that in the Lao case, the notice of dishonor was never personally received by petitioner, thus the prima facie presumption of knowledge of insufficiency of funds never arose. Here, as correctly found by the RTC, petitioner was duly notified of the dishonor of the subject check as shown by Exh. "C,"45 a letter, specifically mentioning that the subject check was dishonored for reason "Account Closed," with the corresponding registry return receipt showing that petitioner received the notice on August 16, 1993 which petitioner did not impugn.46 Third issue.Whether or not the check was issued on account or for value. Petitioners claim is not feasible. We have held that upon issuance of a check, in the absence of evidence to the contrary, it is presumed that the same was issued for valuable consideration.47 Valuable consideration, in turn, may consist either in some right, interest, profit or benefit accruing to the party who makes the contract, or some forbearance, detriment, loss or some responsibility, to act, or labor, or service given, suffered or undertaken by the other side. It is an obligation to do, or not to do in favor of the party who makes the contract, such as the maker or indorser.48 In this case, petitioner himself testified that he signed several checks in blank, the subject check included, in exchange for 2.5% interest from the proceeds of loans that will be made from said account. This is a valuable consideration for which the check was issued. That there was neither a pre-existing obligation nor an obligation incurred on the part of petitioner when the subject check was given by Bautista to private complainant on July 24, 1993 because petitioner was no longer connected with Unlad or Bautista starting July 1989, cannot be given merit since, as earlier discussed, petitioner failed to adequately prove that he has severed his relationship with Bautista or Unlad. At any rate, we have held that what the law punishes is the mere act of issuing a bouncing check, not the purpose for which it was issued nor the terms and conditions relating to its issuance. This is because the thrust of the law is to prohibit the making of worthless checks and putting them into circulation.49 Fourth issue.Whether the private complainant, at the time of issuance, had knowledge that the checks had no sufficient funds. We have held that knowledge of the payee that the drawer did not have sufficient funds with the drawee bank at the time the check was issued is immaterial as deceit is not an essential element of the offense under B.P. Blg. 22.50 This is because the gravamen of the offense is the issuance of a bad check, hence, malice and intent in the issuance thereof are inconsequential.51 In Yu Oh vs. Court of Appeals 52 the Court held that there is no violation of B.P. Blg. 22, if complainant was actually told by the drawer that he has no sufficient funds in the bank.53 In the present case, since there is no evidence that a categorical statement was given to private complainant when the subject check was issued to him, the above ruling cannot apply. Fifth issue.Whether the guilt of the accused was proved beyond reasonable doubt. Petitioner maintains that the prosecution has failed to prove his guilt beyond reasonable doubt since the prosecution failed to rebut his allegation that he was not anymore connected with the business of

Bautista and the trial court relied solely on the authenticity of petitioners signature on the subject check to convict him of the offense charged. We are not convinced. Proof beyond reasonable doubt does not mean absolute certainty. Suffice it to say the law requires only moral certainty or that degree of proof which produces conviction in a prejudiced mind.54 After reviewing the entire records of this case, we find that there is no reason to depart from the trial courts judgment of conviction. The weight and quantum of evidence needed to prove the guilt of petitioner beyond reasonable doubt were met and established by the prosecution and correctly affirmed by the Court of Appeals. However, in view of Supreme Court Administrative Circular No. 12-2000, as clarified by Administrative Circular No. 13-2001, establishing a rule of preference in the application of the penalties provided for in B.P. Blg. 22; and the recommendation of the Solicitor General in its Comment that the policy laid down in Vaca vs. Court of Appeals ,55and Lim vs. People,56 of redeeming valuable human material and preventing unnecessary deprivation of personal liberty and economic usefulness, be considered in favor of petitioner who is not shown to be a habitual delinquent or a recidivist,57 we find that the penalty imposed by the Court of Appeals should be modified by deleting the penalty of imprisonment and imposing only a fine of P200,000.00. An appeal in a criminal case throws the entire case for review and it becomes our duty to correct any error, as may be found in the appealed judgment, whether assigned as an error or not.58 Considering that the civil aspect of the case is deemed instituted with the criminal case and considering that the trial court and the Court of Appeals failed to award, in their respective judgments, the interest on the amount due to private complainant, it is incumbent upon us to correct the patent error of the lower courts. Private complainant is entitled to a 12% legal interest per annum from the date of finality of judgment.59 WHEREFORE, the decision of the Court of Appeals is AFFIRMED with the following MODIFICATIONS: The sentence of imprisonment is deleted. Instead, petitioner is ordered to pay a fine of P200,000.00, subject to subsidiary imprisonment in case of insolvency pursuant to Article 39 of the Revised Penal Code; and petitioner is ordered to pay the private complainant the amount of P980,000.00 with 12% legal interest per annum from the date of finality of herein judgment. SO ORDERED. Puno, (Chairman), Callejo, Sr., Tinga, and Chico-Nazario, JJ., concur.

Republic of the Philippines SUPREME COURT Manila FIRST DIVISION G.R. No. 160328 February 04, 2005

TERESITA ALCANTARA VERGARA, petitioner, vs. PEOPLE OF THE PHILIPPINES, respondent. DECISION YNARES-SANTIAGO, J.: This petition for review assails the March 28, 2003 decision1 of the Court of Appeals and its September 30, 2003 resolution2 in CA-G.R. CR No. 25799, which affirmed in toto the June 10, 1992 decision3 of the Regional Trial Court of Makati, Branch 132, in Criminal Case No. 91-2267, finding petitioner Teresita Alcantara Vergara guilty beyond reasonable doubt of violation of Batas Pambansa Blg. 22 (BP 22). The facts show that on June 13, 1988, Livelihood Corporation (LIVECOR) granted Perpetual Garments Corporation (PERPETUAL) a continuing credit line in the amount of P750,000.00.4 The parties agreed that for each availment from the line, PERPETUAL would execute a promissory note and issue postdated checks corresponding to the amount of the loan. Petitioner, in her capacity as Vice President and General Manager of PERPETUAL, signed the credit agreement and all the postdated checks. One of the checks issued and signed by petitioner was Check No. 019972 for P150,000.00. When deposited on December 15, 1988, the check was dishonored for insuffiency of funds.5 On the same month, LIVECOR verbally informed petitioner of the dishonor of the check. On April 1, 1991, LIVECOR charged petitioner with violation of BP 22. The information6 reads: That on or about the 15th day of Dec. 1988, in the Municipality of Makati, Metro Manila Philippines and within the jurisdiction of this Honorable Court, the above-named accused, did then and there willfully, unlawfully and feloniously make out or draw and issue to Livecor and represented by Victor Hernandez[,] to apply on account or for value the dated check described below: Check No. :019972 Drawn Against :Metro Bank In the amount of :P150,000.00 Date :Dec. 15, 1988 Payable to :LIVECOR

said accused well knowing that at the time of issue thereof, she did not have sufficient funds in or credit with the drawee bank for the payment in full of the face amount of such check upon its presentment for payment within ninety (90) days from the date thereof was subsequently dishonored by the drawee bank for the reason "DRAWN AGAINST INSUFFICIENT FUNDS" and, despite receipt of notice of such dishonor, the accused failed to pay said payee the face amount of said check or to make arrangement for full payment thereof within five (5) banking days after receiving notice. Contrary to law. The prosecution claims that petitioner failed to pay the full amount of Check No. 019972 or to make arrangements for its full payment within 5 days from notice of dishonor thereof in December 1988. Although petitioner made cash and check payments after the dishonor, the same were treated by LIVECOR as continuing payments of the outstanding loan. The payments were applied first to the interests and penalties while the rest were applied to the principal, pursuant to the terms of the agreement. As of February 29, 1992, PERPETUALs total outstanding loan is P610,656.95.7 Petitioner averred that she cannot be charged with violation of BP 22 because she replaced Check No. 019972 on May 25, 1989, with 6 checks, each for P25,000.00 or for the total amount of P150,000.00.8 She claimed that from the time of dishonor up to March 1992, PERPETUAL paid LIVECOR P542,000.00 thus covering the full amount of the dishonored check.9 On June 10, 1992, the trial court rendered decision finding petitioner guilty of violating BP 22. It ruled, however, that petitioner is not civilly liable to LIVECOR, thus: Premises considered, the Court finds the accused guilty beyond reasonable doubt of violation of BP 22. Considering, however, that the borrower is Perpetual Garments Corporation and there is no agreement that she shall be liable for the loan in her personal capacity, she shall not be liable to pay the unpaid balance thereof. WHEREFORE, the accused is hereby sentenced to pay a fine of P200,000.00 with subsidiary imprisonment in case of insolvency and to pay the costs. SO ORDERED.10 Dissatisfied, both LIVECOR and petitioner appealed to the Court of Appeals. On March 28, 2003, the appellate court dismissed the consolidated appeals and affirmed the trial courts decision in all respects. The dispositive portion thereof, reads: IN VIEW OF ALL THE FOREGOING, the instant appeals are ordered DISMISSED, and the appealed Decision dated June 10, 1992 is hereby AFFIRMED in toto. No pronouncement as to costs. SO ORDERED.11 Petitioner moved for reconsideration but was denied on September 30, 2003.12 Hence, the instant petition. In a Resolution dated December 15, 2004, petitioner was required to file a Reply. However, to date, no reply was filed. In the interest of justice and speedy disposition of cases, we resolve to dispense with the filing of said Reply and to decide the case based on the pleadings filed.

The issue for resolution in this petition for review is whether petitioner should be convicted of violation of BP 22. The Solicitor General contends that petitioners conviction is proper because all the elements of violation of BP 22 are present. Petitioner, on the other hand, insists that the full payment of the value of the dishonored check 2 years prior to the filing of the information justifies her acquittal. Petitioner argues that her conviction is without basis since the total payments she made from knowledge of the dishonor of the check in December 1988, up to the filing of the information on April 1, 1991, far exceeds the value of the bounced check. It is settled that factual findings of the trial court are accorded great weight, even finality on appeal, except when it has failed to appreciate certain facts and circumstances which, if taken into account, would materially affect the result of the case. This exception is present here.13 In King v. People,14 we ruled thus: Section 1 of BP 22 defines the offense as follows: Section 1. Checks without sufficient funds. - Any person who makes or draws and issues any check to apply on account or for value, knowing at the time of issue that he does not have sufficient funds in or credit with the drawee bank for the payment of such check in full upon its presentment, which check is subsequently dishonored by the drawee bank for insufficiency of funds or credit or would have been dishonored for the same reason had not the drawer, without any valid reason, ordered the bank to stop payment, shall be punished by imprisonment of not less than thirty days but not more than one (1) year or by a fine of not less than but not more than double the amount of the check which fine shall in no case exceed Two hundred thousand pesos, or both such fine and imprisonment at the discretion of the court. The same penalty shall be imposed upon any person who having sufficient funds with the drawee bank when he makes or draws and issues a check, shall fail to keep sufficient funds or to maintain a credit to cover the full amount of the check if presented within a period of ninety (90) days from the date appearing thereon, for which reason it is dishonored by the drawee bank. Where the check is drawn by a corporation, company or entity, the person or persons who actually signed the check in behalf of such drawer shall be liable under this Act. Accordingly, this Court has held that the elements of the crime are as follows: 1. The accused makes, draws or issues any check to apply to account or for value. 2. The check is subsequently dishonored by the drawee bank for insufficiency of funds or credit; or it would have been dishonored for the same reason had not the drawer, without any valid reason, ordered the bank to stop payment. 3. The accused knows at the time of the issuance that he or she does not have sufficient funds in, or credit with, drawee bank for the payment of the check in full upon its presentment.15 To hold petitioner liable for violation of BP 22, it is not enough that she issued the check that was subsequently dishonored for insufficiency of funds. It must also be shown beyond reasonable doubt that she knew of the insufficiency of funds at the time the check was issued. Thus:

To hold a person liable under BP 22, it is not enough to establish that a check issued was subsequently dishonored. It must be shown further that the person who issued the check knew "at the time of issue that he does not have sufficient funds in or credit with the drawee bank for the payment of such check in full upon its presentment." Because this element involves a state of mind which is difficult to establish, Section 2 of the law creates a prima facie presumption of such knowledge, as follows: Sec. 2. Evidence of knowledge of insufficient funds. The making, drawing and issuance of a check payment of which is refused by the drawee because of insufficient funds in or credit with such bank, when presented within ninety (90) days from the date of the check, shall be prima facie evidence of knowledge of such insufficiency of funds or credit unless such maker or drawer pays the holder thereof the amount due thereon, or make arrangements for payment in full by the drawee of such check within five (5) banking days after receiving notice that such check has not been paid by the drawee. In other words, the prima facie presumption arises when a check is issued. But the law also provides that the presumption does not arise when the issuer pays the amount of the check or makes arrangement for its payment "within five banking days after receiving notice that such check has not been paid by the drawee." Verily, BP 22 gives the accused an opportunity to satisfy the amount indicated in the check and thus avert prosecution.16 (Emphasis ours) Going through the records of this case, we find that it was not clearly established when the notice of dishonor was served on petitioner, thus: Atty. De Jesus: After you were informed by the bank that the check was dishonored due to insufficient funds, what did you do next, if any? Ms. Dalisay: We informed our client about it and made several demands upon her to redeem the bounced check. Q. Did the accused make good the amount of the bounced check? A. No.17 Q. After you were informed by the bank that the check bounced, what did you do next, if any? Atty. Arias: That was already answered. She informed the accused Court: She said the client was informed and demand was made. How were the demands made upon the accused? A. Verbally, Your Honor.

Court: All verbal? A: All verbal in the case of the subject check but written in the case of the entire loan.18 Even the petitioner was not sure as to when she was notified of the dishonor, thus: Court: You did not see the return notice of dishonor. So he was aware that the check was dishonored. Alright. Prior to, about a week before October 10, 1990, did you ever learn whether the check in the amount of P150,000.00 marked Exhibit D, was dishonored? Accused: Yes, Your Honor. Court: When for the first time did you learn that the check was dishonored? A. When they informed me at my residence in Bian, Your Honor. Court: When? A. That was a long time ago, Your Honor. They just sent their employee to our house at Bian to inform me that my check bounced. Court: In what year? A: That was a long time, Your Honor, maybe 1988. Court: You were informed of the dishonor of the check. In what month in 1988? A. Maybe December 1988, Your Honor.19 To our mind, the above testimonies do not categorically prove exactly when petitioner received the notice of dishonor. Hence, there was no way of determining when the 5-day period prescribed in Section 2 of BP 22 would start and end. In Danao v. Court of Appeals,20 we held that:

 if there is no proof as to when such notice was received by the drawer, then the presumption or prima facieevidence provided in Section 2 of B.P. Blg. 22 cannot arise, since there would simply be no way of reckoning the crucial 5-day period. In the present case, no proof of receipt by petitioner of any notice of non-payment of the checks was ever presented during the trial. As found by the trial court itself, "(t)he evidence however is not clear when Macasieb (private complainant) made the demands. There is no proof of the date when DANAO received the demand letter(Exh. F)." Obviously, in the instant case, there is no way of determining when the 5-day period prescribed in Section 2 of B.P. Blg. 22 would start and end. Thus, the presumption or prima facie evidence of knowledge by the petitioner of the insufficiency of funds or credit at the times she issued the checks did not arise. Even assuming that petitioner was properly notified of the dishonor, still, the prima facie presumption of knowledge of insufficiency of funds would not arise. Contrary to the claim of LIVECOR, it appears that an arrangement for the payment of the bounced check was entered into by the parties. Under the circumstances, we are more inclined to lend credence to petitioners allegation that she replaced the bounced check with 6 checks, each for P25,000.00, or a total of P150,000.00. For more than 2 years after the dishonor, LIVECOR accepted the payments made by PERPETUAL without complain. In addition, it appears that it has been the practice of LIVECOR to allow its client to "redeem" the dishonored checks and replace them with new ones. Thus: Atty. Arias: And it is a matter of procedure in you office, Madam Witness Court: For a while, is that check different from Exhibit F? Atty. Arias: The same, Your Honor. Q: And as a matter of fact, your practice is that whenever payments are made in check or checks and if these checks bounced, you first send the letter to redeem or to replace those bounced checks, is that correct? Ms. Dalisay: Yes. Q: And you did that also, when the check of the accused in the amount of P150,000.00 bounced, you sent her a letter to redeem or replace the check, is that not correct? A: I dont remember about the P150,000.00. I dont remember sending her a letter. Q: But it is a matter of practice that you

Court: That has been answered.21 Atty. Arias: However, your Honor, we want also to establish the fact that whenever a check bounced, they always asked for replacement or redemption of the check. Court: She already admitted that that is a matter of policy.22 The presumption that the issuer has knowledge of the insufficiency of funds is brought into existence only after it is proved that the issuer had received notice of dishonor and that within 5 banking days from receipt thereof, he failed to pay the amount of the check or to make arrangement for its payment.23 The prosecution is burdened to prove these acts that give rise to the prima facie presumption.24 Under the equipoise rule, where the evidence on an issue of fact is in equipoise or there is doubt on which side the evidence preponderates, the party having the burden of proof loses. The equipoise rule finds application if, as in this case, the inculpatory facts and circumstances are capable of two or more explanations, one of which is consistent with the innocence of the accused and the other consistent with his guilt, for then the evidence does not fulfill the test of moral certainty, and does not suffice to produce a conviction. Briefly stated, the needed quantum of proof to convict the accused of the crime charged is found lacking.25 In the case at bar, the constitutional presumption of innocence tilts the scales in favor of petitioner considering that the prosecution failed to discharge its burden of proving the evidentiary facts that would establish the prima faciepresumption of knowledge of the insufficiency of funds. In criminal cases, the prosecutions cases must rise and fall on the strength of its own evidence, never on the weakness of the defense.26 Finally, there is no merit in prosecutions claim that even if the 6 checks be considered replacement of the dishonored check, petitioner should still be held liable because they did not cover the entire amount of the dishonored check as 1 of the 6 checks for P25,000.00 also bounced for insufficiency of funds. Note that the replacement check for P25,000.00 was dishonored in July 1989 but LIVECOR notified PERPETUAL of the dishonor only after 3 years or on March 10, 1992. Petitioner could not thus be blamed for failing to make good said check due to the negligence of LIVECOR. At any rate, even if the P25,000.00 dishonored check be excluded from the P423,365.00 payments made by petitioner, the remaining balance thereof is still more than the P150,000.00 dishonored check subject of the instant case. In Magno v. Court of Appeals,27 it was held that Batas Pambansa Blg. 22 or the Bouncing Checks Law was devised to safeguard the interest of the banking system and the legitimate public checking account user. It was not intended to shelter or favor nor encourage users of the system to enrich themselves through the manipulation and circumvention of the noble purpose and objectives of the law. Under the utilitarian theory, the "protective theory" in criminal law affirms that the primary function of punishment is the protection of the society against actual and potential wrong doers.

In the case at bar, petitioner could hardly be classified as a menace against whom the society should be protected. The records show that from December 1988 when petitioner was informed of the dishonor, to the filing of the information on April 1, 1991, she paid P423,354.00 to LIVECOR.28 Although petitioner has not yet fully paid the loan, it cannot be denied that the previous payments fully covered the value of the dishonored check. It would be unjust to penalize her for the issuance of said check which has been satisfied 2 years prior to the filing of the criminal charge against her. Similarly, in gr_ Griffith v. Court of Appeals,29 the conviction of the accused for violation of BP 22 was found to be unjustified because the case was filed 2 years after private complainant had collected more than the value of the dishonored check. In acquitting the accused, we held that there exists no more reason to penalize him for the offense charged, thus: While we agree with the private respondent that the gravamen of violation of B.P. 22 is the issuance of worthless checks that are dishonored upon their presentment for payment, we should not apply penal laws mechanically. We must find if the application of the law is consistent with the purpose of and reason for the law. Ratione cessat lex, et cessat lex. (When the reason for the law ceases, the law ceases.) It is not the letter alone but the spirit of the law also that gives it life. This is especially so in this case where a debtors criminalization would not serve the ends of justice but in fact subvert it. The creditor having collected already more than a sufficient amount to cover the value of the checks for payment of rentals, via auction sale, we find that holding the debtors president to answer for a criminal offense under B.P. 22 two years after said collection is no longer tenable nor justified by law or equitable considerations. In sum, considering that the money value of the two checks issued by petitioner has already been effectively paid two years before the informations against him were filed, we find merit in this petition. We hold that petitioner herein could not be validly and justly convicted or sentenced for violation of B.P. 22. Whether the number of checks issued determines the number of violations of B.P. 22, or whether there should be a distinction between postdated and other kinds of checks need no longer detain us for being immaterial now to the determination of the issue of guilt or innocence of petitioner.30 WHEREFORE, in view of all the foregoing, the petition is GRANTED. The decision of the Court of Appeals dated March 28, 2003 in CA-G.R. CR No. 25799 which affirmed in toto the June 10, 1992 decision of the Regional Trial Court of Makati, Branch 132, in Criminal Case No. 91-2267, and its September 30, 2003 resolution denying reconsideration thereof, are REVERSED and SET ASIDE. Petitioner Teresita Alcantara Vergara is ACQUITTED of the charge of violation of Batas Pambansa Blg. 22. No pronouncement as to costs. SO ORDERED. Davide, Jr., C.J., (Chairman), Quisumbing, Carpio, and Azcuna, JJ., concur.

Republic of the Philippines SUPREME COURT Manila THIRD DIVISION G.R. No. 169364 September 18, 2009

PEOPLE OF THE PHILIPPINES, Petitioner, vs. EVANGELINE SITON y SACIL and KRYSTEL KATE SAGARANO y MEFANIA, Respondents. DECISION YNARES-SANTIAGO, J.: If a man is called to be a street sweeper, he should sweep streets even as Michelangelo painted, or Beethoven composed music, or Shakespeare wrote poetry. He should sweep streets so well that all the hosts of Heaven and Earth will pause to say, here lived a great street sweeper who did his job well. Martin Luther King, Jr. Assailed in this petition for review on certiorari is the July 29, 2005 Order1 of Branch 11, Davao City Regional Trial Court in Special Civil Case No. 30-500-2004 granting respondents Petition for Certiorari and declaring paragraph 2 of Article 202 of the Revised Penal Code unconstitutional. Respondents Evangeline Siton and Krystel Kate Sagarano were charged with vagrancy pursuant to Article 202 (2) of the Revised Penal Code in two separate Informations dated November 18, 2003, docketed as Criminal Case Nos. 115,716-C-2003 and 115,717-C-2003 and raffled to Branch 3 of the Municipal Trial Court in Cities, Davao City. The Informations, read: That on or about November 14, 2003, in the City of Davao, Philippines, and within the jurisdiction of this Honorable Court, the above-mentioned accused, willfully, unlawfully and feloniously wandered and loitered around San Pedro and Legaspi Streets, this City, without any visible means to support herself nor lawful and justifiable purpose.2 Article 202 of the Revised Penal Code provides: Art. 202. Vagrants and prostitutes; penalty. The following are vagrants: 1. Any person having no apparent means of subsistence, who has the physical ability to work and who neglects to apply himself or herself to some lawful calling; 2. Any person found loitering about public or semi-public buildings or places or tramping or wandering about the country or the streets without visible means of support; 3. Any idle or dissolute person who lodges in houses of ill fame; ruffians or pimps and those who habitually associate with prostitutes;

4. Any person who, not being included in the provisions of other articles of this Code, shall be found loitering in any inhabited or uninhabited place belonging to another without any lawful or justifiable purpose; 5. Prostitutes. For the purposes of this article, women who, for money or profit, habitually indulge in sexual intercourse or lascivious conduct, are deemed to be prostitutes. Any person found guilty of any of the offenses covered by this articles shall be punished by arresto menor or a fine not exceeding 200 pesos, and in case of recidivism, by arresto mayor in its medium period to prision correccional in its minimum period or a fine ranging from 200 to 2,000 pesos, or both, in the discretion of the court. Instead of submitting their counter-affidavits as directed, respondents filed separate Motions to Quash3 on the ground that Article 202 (2) is unconstitutional for being vague and overbroad. In an Order4 dated April 28, 2004, the municipal trial court denied the motions and directed respondents anew to file their respective counter-affidavits. The municipal trial court also declared that the law on vagrancy was enacted pursuant to the States police power and justified by the Latin maxim "salus populi est suprem(a) lex," which calls for the subordination of individual benefit to the interest of the greater number, thus: Our law on vagrancy was enacted pursuant to the police power of the State. An authority on police power, Professor Freund describes laconically police power "as the power of promoting public welfare by restraining and regulating the use of liberty and property." (Citations omitted). In fact the persons acts and acquisitions are hemmed in by the police power of the state. The justification found in the Latin maxim, salus populi est supreme (sic) lex" (the god of the people is the Supreme Law). This calls for the subordination of individual benefit to the interests of the greater number.In the case at bar the affidavit of the arresting police officer, SPO1 JAY PLAZA with Annex "A" lucidly shows that there was a prior surveillance conducted in view of the reports that vagrants and prostitutes proliferate in the place where the two accused (among other women) were wandering and in the wee hours of night and soliciting male customer. Thus, on that basis the prosecution should be given a leeway to prove its case. Thus, in the interest of substantial justice, both prosecution and defense must be given their day in Court: the prosecution proof of the crime, and the author thereof; the defense, to show that the acts of the accused in the indictment cant be categorized as a crime.5 The municipal trial court also noted that in the affidavit of the arresting police officer, SPO1 Jay Plaza, it was stated that there was a prior surveillance conducted on the two accused in an area reported to be frequented by vagrants and prostitutes who solicited sexual favors. Hence, the prosecution should be given the opportunity to prove the crime, and the defense to rebut the evidence.
1avvphi1

Respondents thus filed an original petition for certiorari and prohibition with the Regional Trial Court of Davao City,6 directly challenging the constitutionality of the anti-vagrancy law, claiming that the definition of the crime of vagrancy under Article 202 (2), apart from being vague, results as well in an arbitrary identification of violators, since the definition of the crime includes in its coverage persons who are otherwise performing ordinary peaceful acts. They likewise claimed that Article 202 (2) violated the equal protection clause under the Constitution because it discriminates against the poor and unemployed, thus permitting an arbitrary and unreasonable classification.

The State, through the Office of the Solicitor General, argued that pursuant to the Courts ruling in Estrada v. Sandiganbayan,7 the overbreadth and vagueness doctrines apply only to free speech cases and not to penal statutes. It also asserted that Article 202 (2) must be presumed valid and constitutional, since the respondents failed to overcome this presumption. On July 29, 2005, the Regional Trial Court issued the assailed Order granting the petition, the dispositive portion of which reads: WHEREFORE, PRESCINDING FROM THE FOREGOING, the instant Petition is hereby GRANTED. Paragraph 2 of Article 202 of the Revised Penal Code is hereby declared unconstitutional and the Order of the court a quo, dated April 28, 2004, denying the petitioners Motion to Quash is set aside and the said court is ordered to dismiss the subject criminal cases against the petitioners pending before it. SO ORDERED.8 In declaring Article 202 (2) unconstitutional, the trial court opined that the law is vague and it violated the equal protection clause. It held that the "void for vagueness" doctrine is equally applicable in testing the validity of penal statutes. Citing Papachristou v. City of Jacksonville,9 where an anti vagrancy ordinance was struck down as unconstitutional by the Supreme Court of the United States, the trial court ruled: The U.S. Supreme Courts justifications for striking down the Jacksonville Vagrancy Ordinance are equally applicable to paragraph 2 of Article 202 of the Revised Penal Code. Indeed, to authorize a police officer to arrest a person for being "found loitering about public or semipublic buildings or places or tramping or wandering about the country or the streets without visible means of support" offers too wide a latitude for arbitrary determinations as to who should be arrested and who should not. Loitering about and wandering have become national pastimes particularly in these times of recession when there are many who are "without visible means of support" not by reason of choice but by force of circumstance as borne out by the high unemployment rate in the entire country. To authorize law enforcement authorities to arrest someone for nearly no other reason than the fact that he cannot find gainful employment would indeed be adding insult to injury.10 On its pronouncement that Article 202 (2) violated the equal protection clause of the Constitution, the trial court declared: The application of the Anti-Vagrancy Law, crafted in the 1930s, to our situation at present runs afoul of the equal protection clause of the constitution as it offers no reasonable classification between those covered by the law and those who are not. Class legislation is such legislation which denies rights to one which are accorded to others, or inflicts upon one individual a more severe penalty than is imposed upon another in like case offending. Applying this to the case at bar, since the definition of Vagrancy under Article 202 of the Revised Penal Code offers no guidelines or any other reasonable indicators to differentiate those who have no visible means of support by force of circumstance and those who choose to loiter about and bum

around, who are the proper subjects of vagrancy legislation, it cannot pass a judicial scrutiny of its constitutionality.11 Hence, this petition for review on certiorari raising the sole issue of: WHETHER THE REGIONAL TRIAL COURT COMMITTED A REVERSIBLE ERROR IN DECLARING UNCONSTITUTIONAL ARTICLE 202 (2) OF THE REVISED PENAL CODE12 Petitioner argues that every statute is presumed valid and all reasonable doubts should be resolved in favor of its constitutionality; that, citing Romualdez v. Sandiganbayan,13 the overbreadth and vagueness doctrines have special application to free-speech cases only and are not appropriate for testing the validity of penal statutes; that respondents failed to overcome the presumed validity of the statute, failing to prove that it was vague under the standards set out by the Courts; and that the State may regulate individual conduct for the promotion of public welfare in the exercise of its police power. On the other hand, respondents argue against the limited application of the overbreadth and vagueness doctrines. They insist that Article 202 (2) on its face violates the constitutionallyguaranteed rights to due process and the equal protection of the laws; that the due process vagueness standard, as distinguished from the free speech vagueness doctrine, is adequate to declare Article 202 (2) unconstitutional and void on its face; and that the presumption of constitutionality was adequately overthrown. The Court finds for petitioner. The power to define crimes and prescribe their corresponding penalties is legislative in nature and inherent in the sovereign power of the state to maintain social order as an aspect of police power. The legislature may even forbid and penalize acts formerly considered innocent and lawful provided that no constitutional rights have been abridged.14 However, in exercising its power to declare what acts constitute a crime, the legislature must inform the citizen with reasonable precision what acts it intends to prohibit so that he may have a certain understandable rule of conduct and know what acts it is his duty to avoid.15 This requirement has come to be known as the void-for-vagueness doctrine which states that "a statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application, violates the first essential of due process of law."16 In Spouses Romualdez v. COMELEC,17 the Court recognized the application of the void-forvagueness doctrine to criminal statutes in appropriate cases. The Court therein held: At the outset, we declare that under these terms, the opinions of the dissent which seek to bring to the fore the purported ambiguities of a long list of provisions in Republic Act No. 8189 can be deemed as a facial challenge. An appropriate "as applied" challenge in the instant Petition should be limited only to Section 45 (j) in relation to Sections 10 (g) and (j) of Republic Act No. 8189 the provisions upon which petitioners are charged. An expanded examination of the law covering provisions which are alien to petitioners case would be antagonistic to the rudiment that for judicial review to be exercised, there must be an existing case or controversy that is appropriate or ripe for determination, and not conjectural or anticipatory.18 The first statute punishing vagrancy Act No. 519 was modeled after American vagrancy statutes and passed by the Philippine Commission in 1902. The Penal Code of Spain of 1870 which was in force in this country up to December 31, 1931 did not contain a provision on vagrancy.19 While historically an Anglo-American concept of crime prevention, the law on vagrancy was included by the

Philippine legislature as a permanent feature of the Revised Penal Code in Article 202 thereof which, to repeat, provides: ART. 202. Vagrants and prostitutes; penalty. The following are vagrants: 1. Any person having no apparent means of subsistence, who has the physical ability to work and who neglects to apply himself or herself to some lawful calling; 2. Any person found loitering about public or semi-public buildings or places, or tramping or wandering about the country or the streets without visible means of support; 3. Any idle or dissolute person who lodges in houses of ill-fame; ruffians or pimps and those who habitually associate with prostitutes; 4. Any person who, not being included in the provisions of other articles of this Code, shall be found loitering in any inhabited or uninhabited place belonging to another without any lawful or justifiable purpose; 5. Prostitutes. For the purposes of this article, women who, for money or profit, habitually indulge in sexual intercourse or lascivious conduct, are deemed to be prostitutes. Any person found guilty of any of the offenses covered by this article shall be punished by arresto menor or a fine not exceeding 200 pesos, and in case of recidivism, by arresto mayor in its medium period to prision correccionalin its minimum period or a fine ranging from 200 to 2,000 pesos, or both, in the discretion of the court. In the instant case, the assailed provision is paragraph (2), which defines a vagrant as any person found loitering about public or semi-public buildings or places, or tramping or wandering about the country or the streets without visible means of support. This provision was based on the second clause of Section 1 of Act No. 519 which defined "vagrant" as "every person found loitering about saloons or dramshops or gambling houses, or tramping or straying through the country without visible means of support." The second clause was essentially retained with the modification that the places under which the offense might be committed is now expressed in general terms public or semi-public places. The Regional Trial Court, in asserting the unconstitutionality of Article 202 (2), take support mainly from the U.S. Supreme Courts opinion in the Papachristou v. City of Jacksonville20 case, which in essence declares: Living under a rule of law entails various suppositions, one of which is that "[all persons] are entitled to be informed as to what the State commands or forbids." Lanzetta v.New Jersey, 306 U. S. 451, 306 U. S. 453. Lanzetta is one of a well recognized group of cases insisting that the law give fair notice of the offending conduct. See Connally v. General Construction Co., 269 U. S. 385, 269 U. S. 391; Cline v. Frink Dairy Co., 274 U. S. 445; United States v. Cohen Grocery Co., 255 U. S. 81. In the field of regulatory statutes governing business activities, where the acts limited are in a narrow category, greater leeway is allowed. Boyce Motor Lines, Inc. v. United States, 342 U. S. 337; United States v. National Dairy Products Corp., 372 U. S. 29; United States v. Petrillo, 332 U. S. 1.

The poor among us, the minorities, the average householder, are not in business and not alerted to the regulatory schemes of vagrancy laws; and we assume they would have no understanding of their meaning and impact if they read them. Nor are they protected from being caught in the vagrancy net by the necessity of having a specific intent to commit an unlawful act. See Screws v. United States, 325 U. S. 91; Boyce Motor Lines, Inc. v. United States, supra. The Jacksonville ordinance makes criminal activities which, by modern standards, are normally innocent. "Nightwalking" is one. Florida construes the ordinance not to make criminal one night's wandering, Johnson v. State, 202 So.2d at 855, only the "habitual" wanderer or, as the ordinance describes it, "common night walkers." We know, however, from experience that sleepless people often walk at night, perhaps hopeful that sleep-inducing relaxation will result. Luis Munoz-Marin, former Governor of Puerto Rico, commented once that "loafing" was a national virtue in his Commonwealth, and that it should be encouraged. It is, however, a crime in Jacksonville. xxxx Persons "wandering or strolling" from place to place have been extolled by Walt Whitman and Vachel Lindsay. The qualification "without any lawful purpose or object" may be a trap for innocent acts. Persons "neglecting all lawful business and habitually spending their time by frequenting . . . places where alcoholic beverages are sold or served" would literally embrace many members of golf clubs and city clubs. Walkers and strollers and wanderers may be going to or coming from a burglary. Loafers or loiterers may be "casing" a place for a holdup. Letting one's wife support him is an intra-family matter, and normally of no concern to the police. Yet it may, of course, be the setting for numerous crimes. The difficulty is that these activities are historically part of the amenities of life as we have known them. They are not mentioned in the Constitution or in the Bill of Rights. These unwritten amenities have been, in part, responsible for giving our people the feeling of independence and selfconfidence, the feeling of creativity. These amenities have dignified the right of dissent, and have honored the right to be nonconformists and the right to defy submissiveness. They have encouraged lives of high spirits, rather than hushed, suffocating silence. xxxx Where the list of crimes is so all-inclusive and generalized as the one in this ordinance, those convicted may be punished for no more than vindicating affronts to police authority: "The common ground which brings such a motley assortment of human troubles before the magistrates in vagrancy-type proceedings is the procedural laxity which permits 'conviction' for almost any kind of conduct and the existence of the House of Correction as an easy and convenient dumping-ground for problems that appear to have no other immediate solution." Foote, VagrancyType Law and Its Administration, 104 U.Pa.L.Rev. 603, 631. xxxx Another aspect of the ordinance's vagueness appears when we focus not on the lack of notice given a potential offender, but on the effect of the unfettered discretion it places in the hands of the Jacksonville police. Caleb Foote, an early student of this subject, has called the vagrancy-type law

as offering "punishment by analogy." Such crimes, though long common in Russia, are not compatible with our constitutional system. xxxx A presumption that people who might walk or loaf or loiter or stroll or frequent houses where liquor is sold, or who are supported by their wives or who look suspicious to the police are to become future criminals is too precarious for a rule of law. The implicit presumption in these generalized vagrancy standards -- that crime is being nipped in the bud -- is too extravagant to deserve extended treatment. Of course, vagrancy statutes are useful to the police. Of course, they are nets making easy the roundup of so-called undesirables. But the rule of law implies equality and justice in its application. Vagrancy laws of the Jacksonville type teach that the scales of justice are so tipped that even-handed administration of the law is not possible. The rule of law, evenly applied to minorities as well as majorities, to the poor as well as the rich, is the great mucilage that holds society together.21 The underlying principles in Papachristou are that: 1) the assailed Jacksonville ordinance "fails to give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden by the statute;" and 2) it encourages or promotes opportunities for the application of discriminatory law enforcement. The said underlying principle in Papachristou that the Jacksonville ordinance, or Article 202 (2) in this case, fails to give fair notice of what constitutes forbidden conduct, finds no application here because under our legal system, ignorance of the law excuses no one from compliance therewith.22 This principle is of Spanish origin, and we adopted it to govern and limit legal conduct in this jurisdiction. Under American law, ignorance of the law is merely a traditional rule that admits of exceptions.23 Moreover, the Jacksonville ordinance was declared unconstitutional on account of specific provisions thereof, which are not found in Article 202 (2). The ordinance (Jacksonville Ordinance Code 257) provided, as follows: Rogues and vagabonds, or dissolute persons who go about begging; common gamblers, persons who use juggling or unlawful games or plays, common drunkards, common night walkers, thieves, pilferers or pickpockets, traders in stolen property, lewd, wanton and lascivious persons, keepers of gambling places, common railers and brawlers, persons wandering or strolling around from place to place without any lawful purpose or object, habitual loafers, disorderly persons, persons neglecting all lawful business and habitually spending their time by frequenting houses of ill fame, gaming houses, or places where alcoholic beverages are sold or served, persons able to work but habitually living upon the earnings of their wives or minor children shall be deemed vagrants and, upon conviction in the Municipal Court shall be punished as provided for Class D offenses. Thus, the U.S. Supreme Court in Jacksonville declared the ordinance unconstitutional, because such activities or habits as nightwalking, wandering or strolling around without any lawful purpose or object, habitual loafing, habitual spending of time at places where alcoholic beverages are sold or served, and living upon the earnings of wives or minor children, which are otherwise common and normal, were declared illegal. But these are specific acts or activities not found in Article 202 (2). The closest to Article 202 (2) "any person found loitering about public or semi-public buildings or places, or tramping or wandering about the country or the streets without visible means of support" from the Jacksonville ordinance, would be "persons wandering or strolling around from place to place without any lawful purpose or object." But these two acts are still not the same: Article 202 (2) is qualified by "without visible means of support" while the Jacksonville ordinance prohibits

wandering or strolling "without any lawful purpose or object," which was held by the U.S. Supreme Court to constitute a "trap for innocent acts." Under the Constitution, the people are guaranteed the right to be secure in their persons, houses, papers and effects against unreasonable searches and seizures of whatever nature and for any purpose, and no search warrant or warrant of arrest shall issue except upon probable cause to be determined personally by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched and the persons or things to be seized.24 Thus, as with any other act or offense, the requirement of probable cause provides an acceptable limit on police or executive authority that may otherwise be abused in relation to the search or arrest of persons found to be violating Article 202 (2). The fear exhibited by the respondents, echoing Jacksonville, that unfettered discretion is placed in the hands of the police to make an arrest or search, is therefore assuaged by the constitutional requirement of probable cause, which is one less than certainty or proof, but more than suspicion or possibility.25 Evidently, the requirement of probable cause cannot be done away with arbitrarily without pain of punishment, for, absent this requirement, the authorities are necessarily guilty of abuse. The grounds of suspicion are reasonable when, in the absence of actual belief of the arresting officers, the suspicion that the person to be arrested is probably guilty of committing the offense, is based on actual facts, i.e., supported by circumstances sufficiently strong in themselves to create the probable cause of guilt of the person to be arrested. A reasonable suspicion therefore must be founded on probable cause, coupled with good faith of the peace officers making the arrest.26 The State cannot in a cavalier fashion intrude into the persons of its citizens as well as into their houses, papers and effects. The constitutional provision sheathes the private individual with an impenetrable armor against unreasonable searches and seizures. It protects the privacy and sanctity of the person himself against unlawful arrests and other forms of restraint, and prevents him from being irreversibly cut off from that domestic security which renders the lives of the most unhappy in some measure agreeable.27 As applied to the instant case, it appears that the police authorities have been conducting previous surveillance operations on respondents prior to their arrest. On the surface, this satisfies the probable cause requirement under our Constitution. For this reason, we are not moved by respondents trepidation that Article 202 (2) could have been a source of police abuse in their case. Since the Revised Penal Code took effect in 1932, no challenge has ever been made upon the constitutionality of Article 202 except now. Instead, throughout the years, we have witnessed the streets and parks become dangerous and unsafe, a haven for beggars, harassing "watch-your-car" boys, petty thieves and robbers, pickpockets, swindlers, gangs, prostitutes, and individuals performing acts that go beyond decency and morality, if not basic humanity. The streets and parks have become the training ground for petty offenders who graduate into hardened and battle-scarred criminals. Everyday, the news is rife with reports of innocent and hardworking people being robbed, swindled, harassed or mauled if not killed by the scourge of the streets. Blue collar workers are robbed straight from withdrawing hard-earned money from the ATMs (automated teller machines); students are held up for having to use and thus exhibit publicly their mobile phones; frail and helpless men are mauled by thrill-seeking gangs; innocent passers-by are stabbed to death by rowdy drunken men walking the streets; fair-looking or pretty women are stalked and harassed, if not abducted, raped and then killed; robbers, thieves, pickpockets and snatchers case streets and parks for possible victims; the old are swindled of their life savings by conniving streetsmart bilkers and con artists on the prowl; beggars endlessly pester and panhandle pedestrians and commuters, posing a health threat and putting law-abiding drivers and citizens at risk of running them over. All these happen on the streets and in public places, day or night.

The streets must be protected. Our people should never dread having to ply them each day, or else we can never say that we have performed our task to our brothers and sisters. We must rid the streets of the scourge of humanity, and restore order, peace, civility, decency and morality in them. This is exactly why we have public order laws, to which Article 202 (2) belongs. These laws were crafted tomaintain minimum standards of decency, morality and civility in human society. These laws may be traced all the way back to ancient times, and today, they have also come to be associated with the struggle to improve the citizens quality of life, which is guaranteed by our Constitution.28 Civilly, they are covered by the "abuse of rights" doctrine embodied in the preliminary articles of the Civil Code concerning Human Relations, to the end, in part, that any person who willfully causes loss or injury to another in a manner that is contrary to morals, good customs or public policy shall compensate the latter for the damage.29 This provision is, together with the succeeding articles on human relations, intended to embody certain basic principles "that are to be observed for the rightful relationship between human beings and for the stability of the social order."30 In civil law, for example, the summary remedy of ejectment is intended to prevent criminal disorder and breaches of the peace and to discourage those who, believing themselves entitled to the possession of the property, resort to force rather than to some appropriate action in court to assert their claims.31 Any private person may abate a public nuisance which is specially injurious to him by removing, or if necessary, by destroying the thing which constitutes the same, without committing a breach of the peace, or doing unnecessary injury.32 Criminally, public order laws encompass a whole range of acts from public indecencies and immoralities, to public nuisances, to disorderly conduct. The acts punished are made illegal by their offensiveness to societys basic sensibilities and their adverse effect on the quality of life of the people of society. For example, the issuance or making of a bouncing check is deemed a public nuisance, a crime against public order that must be abated.33As a matter of public policy, the failure to turn over the proceeds of the sale of the goods covered by a trust receipt or to return said goods, if not sold, is a public nuisance to be abated by the imposition of penal sanctions.34 Thus, public nuisances must be abated because they have the effect of interfering with the comfortable enjoyment of life or property by members of a community. Article 202 (2) does not violate the equal protection clause; neither does it discriminate against the poor and the unemployed. Offenders of public order laws are punished not for their status, as for being poor or unemployed, but for conducting themselves under such circumstances as to endanger the public peace or cause alarm and apprehension in the community. Being poor or unemployed is not a license or a justification to act indecently or to engage in immoral conduct. Vagrancy must not be so lightly treated as to be considered constitutionally offensive. It is a public order crime which punishes persons for conducting themselves, at a certain place and time which orderly society finds unusual, under such conditions that are repugnant and outrageous to the common standards and norms of decency and morality in a just, civilized and ordered society, as would engender a justifiable concern for the safety and well-being of members of the community. Instead of taking an active position declaring public order laws unconstitutional, the State should train its eye on their effective implementation, because it is in this area that the Court perceives difficulties. Red light districts abound, gangs work the streets in the wee hours of the morning, dangerous robbers and thieves ply their trade in the trains stations, drunken men terrorize lawabiding citizens late at night and urinate on otherwise decent corners of our streets. Rugby-sniffing individuals crowd our national parks and busy intersections. Prostitutes wait for customers by the roadside all around the metropolis, some even venture in bars and restaurants. Drug-crazed men

loiter around dark avenues waiting to pounce on helpless citizens. Dangerous groups wander around, casing homes and establishments for their next hit. The streets must be made safe once more. Though a mans house is his castle,35 outside on the streets, the king is fair game. The dangerous streets must surrender to orderly society. Finally, we agree with the position of the State that first and foremost, Article 202 (2) should be presumed valid and constitutional. When confronted with a constitutional question, it is elementary that every court must approach it with grave care and considerable caution bearing in mind that every statute is presumed valid and every reasonable doubt should be resolved in favor of its constitutionality.36 The policy of our courts is to avoid ruling on constitutional questions and to presume that the acts of the political departments are valid in the absence of a clear and unmistakable showing to the contrary. To doubt is to sustain, this presumption is based on the doctrine of separation of powers which enjoins upon each department a becoming respect for the acts of the other departments. The theory is that as the joint act of Congress and the President of the Philippines, a law has been carefully studied, crafted and determined to be in accordance with the fundamental law before it was finally enacted.37 It must not be forgotten that police power is an inherent attribute of sovereignty. It has been defined as the power vested by the Constitution in the legislature to make, ordain, and establish all manner of wholesome and reasonable laws, statutes and ordinances, either with penalties or without, not repugnant to the Constitution, as they shall judge to be for the good and welfare of the commonwealth, and for the subjects of the same. The power is plenary and its scope is vast and pervasive, reaching and justifying measures for public health, public safety, public morals, and the general welfare.38 As an obvious police power measure, Article 202 (2) must therefore be viewed in a constitutional light. WHEREFORE, the petition is GRANTED. The Decision of Branch 11 of the Regional Trial Court of Davao City in Special Civil Case No. 30-500-2004 declaring Article 202, paragraph 2 of the Revised Penal Code UNCONSTITUTIONAL is REVERSED and SET ASIDE. Let the proceedings in Criminal Cases Nos. 115,716-C-2003 and 115,717-C-2003 thus continue. No costs. SO ORDERED. CONSUELO YNARES-SANTIAGO Associate Justice WE CONCUR: MINITA V. CHICO-NAZARIO Associate Justice PRESBITERO J. VELASCO, JR. Associate Justice DIOSDADO M. PERALTA Associate Justice

LUCAS P. BERSAMIN* Associate Justice

ATTESTATION I attest that the conclusions in the above decision were reached in consultation before the case was assigned to the writer of the opinion of the Courts Division. CONSUELO YNARES-SANTIAGO Associate Justice Chairperson, Third Division CERTIFICATION Pursuant to Section 13, Article VIII of the Constitution and the Division Chairpersons Attestation, it is hereby certified that the conclusions in the above Decision were reached in consultation before the case was assigned to the writer of the opinion of the Courts Division. REYNATO S. PUNO Chief Justice

SECOND DIVISION

[G.R. Nos. 159418-19. December 10, 2003]

NORMA DE JOYA, petitioner, vs. THE JAIL WARDEN OF BATANGAS CITY AND HON. RUBEN A. GALVEZ AS PRESIDING JUDGE OF BATANGAS CITY MUNICIPAL TRIAL COURT IN CITIES, BRANCH I, respondents. DECISION
CALLEJO, SR., J.:

This is a petition for a writ of habeas corpus filed by Norma de Joya praying for her release from the Batangas City Jail on the claim that her detention was illegal.

The Antecedents The petitioner was charged separately with violations of Batas Pambansa Blg. 22 before the Municipal Trial Court In Cities in Batangas City. The docket numbers and accusatory portion of each of the Informations reads:

Criminal Case No. 25484 That on or about September 28, 1994 at Batangas City, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, well-knowing that she does not have funds in or credit with the Solid Bank, Batangas Branch, Batangas City, did then and there, wilfully, unlawfully and feloniously draw, make and issue to Flor Catapang de Tenorio, Solid Bank Check No. 040297 postdated to October 28, 1994 in the amount of ONE HUNDRED FIFTY THOUSAND (P150,000.00) PESOS, Philippine Currency, to apply on account or for value, but when said check was presented for full payment with the drawee bank within a period of ninety (90) days from the date of the check, the same was dishonored by the drawee bank on the ground account closed, which in effect is even more than a dishonor for insufficiency of funds, and despite notice of dishonor and demands made upon her to make good her check by making proper arrangement with the drawee bank or pay her obligation in full directly to Flor Catapang de Tenorio, accused failed and refused to do so, which acts constitute a clear violation of the aforecited law, to the damage and

prejudice of transaction in commercial documents in general and of Flor Catapang de Tenorio in particular in the aforementioned amount. CONTRARY TO LAW.[1] Criminal Case No. 25773 That on or about October 17, 1994 at Batangas City, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, well-knowing that she does not have fund in or credit with the Security Bank and Trust Company, Batangas Branch, Batangas City, did then and there, wilfully, unlawfully and feloniously draw, make and issue to Resurreccion T. Castillo, Security Bank and Trust Company Check No. 038111 postdated to October 24, 1994 in the amount of TWO HUNDRED TWENTY-FIVE THOUSAND PESOS (P225,000.00), Philippine Currency, to apply on account or for value, but when said check was presented for full payment with the drawee bank within a period of ninety (90) days from the date of the check, the same was dishonored by the drawee bank on the ground of account closed, which in effect is even more than a dishonor for insufficiency of funds, and despite notice of dishonor and demands made upon her to make good her check by making proper arrangement with the drawee bank or pay her obligation in full directly to Resurreccion T. Castillo, accused failed and refused to do so, which acts constitute a clear violation of the aforecited law, to the damage and prejudice of transaction in commercial documents in general and of Resurreccion T. Castillo in particular in the aforementioned amount. CONTRARY TO LAW.[2]
When arraigned in both cases, the petitioner, assisted by counsel, pleaded not guilty. While trial was going on, the petitioner jumped bail. No evidence was thereby adduced in her defense in any of the two cases. On December 14, 1995, the trial court promulgated its decision in Criminal Case No. 25484. The petitioner and her counsel failed to appear despite due notice. The decretal portion of the decision reads as follows:

WHEREFORE, this Court finds the accused Norma de Joya guilty of the crime of Violation of Batas Pambansa Blg. 22, and hereby sentences said accused to suffer an imprisonment of one (1) year and to indemnify the offended party, Flor Catapang Tenorio, in the sum of ONE HUNDRED FIFTY THOUSAND (P150,000.00) PESOS, Philippine Currency. SO ORDERED.[3]

On March 21, 1997, the decision in Criminal Case No. 25773 was likewise promulgated in absentia. The decretal portion of the said decision reads:

WHEREFORE, the Prosecution having satisfactorily established the guilt of the accused beyond reasonable doubt, this Court hereby sentences herein-accused Norma de Joya of imprisonment of ONE (1) YEAR and to pay complainant Resurreccion Castillo of the amount of TWO HUNDRED TWENTY-FIVE THOUSAND (P225,000.00) PESOS by way of damages. SO ORDERED.[4]
The petitioner remained at large and no appeal was filed from any of the said decisions. In the meantime, the Court issued Supreme Court Administrative Circular No. 12-2000 on November 21, 2000 enjoining all courts and judges concerned to take notice of the ruling and policy of the Court enunciated in Vaca v. Court of Appeals[5] and Lim v. People[6]with regard to the imposition of the penalty for violations of B.P. Blg. 22. After five years, the petitioner was finally arrested while she was applying for an NBI clearance. She was forthwith detained at the Batangas City Jail on December 3, 2002. On July 28, 2003, the petitioner filed an urgent motion with the Municipal Trial Court of Batangas City asking the court to apply SC Admin. Circular No. 12-2000 retroactively pursuant to Article 22 of the Revised Penal Code and to order her release from detention. The public prosecutor opposed the motion. In an Order dated August 15, 2003, the trial court denied the motion on three grounds: (a) its decision convicting the petitioner of violation of B.P. Blg. 22 had long become final and executory; hence, could no longer be amended to change the penalty imposed therein; (b) the SC Circular should be applied prospectively; and (c) the SC Circular did not amend B.P. Blg. 22, a substantive law, but merely encourages trial court judges to have a uniform imposition of fine. Hence, the petition at bar. The petitioner posits that SC Admin. Circular No. 12-2000 deleted the penalty of imprisonment for violation of B.P. Blg. 22 and allows only the imposition of a fine. The trial court was mandated to apply SC Admin. Circular No. 12-2000 retroactively conformably with Article 22 of the Revised Penal Code citing the ruling of this Court in United States v. Pacrose.[7] The petitioner prays that the Court declare her detention illegal and order her release from the Batangas City Jail. The Office of the Solicitor General (OSG) opposed the petition contending that:

1)

THE TWO (2) JUDGMENTS OF CONVICTION AGAINST THE PETITIONER HAD LONG ATTAINED FINALITY AND COULD NO LONGER BE MODIFIED.

2)

ADMINISTRATIVE CIRCULAR NO. 12-2000 AS MODIFIED BY ADMINISTRATIVE CIRCULAR NO. 13-2001 DID NOT DELETE THE PENALTY OF IMPRISONMENT IN BP 22 CASES.[8]

The OSG cited the ruling of this Court in Abarquez v. Court of Appeals.[9] The petition has no merit. Section 4, Rule 102 of the Rules of Court, as amended, provides that the writ of habeas corpus is not allowed if the person alleged to be restrained of his liberty is in the custody of an officer under process issued by a court or judge or by virtue of a judgment or order of a court of record:

Sec. 4. When writ not allowed or discharged authorized. If it appears that the person alleged to be restrained of his liberty is in the custody of an officer under process issued by a court or judge or by virtue of a judgment or order of a court of record, and that the court or judge had jurisdiction to issue the process, render the judgment; or make the order, the writ shall not be allowed; or if the jurisdiction appears after the writ is allowed, the person shall not be discharged by reason of any informality or defect in the process, judgment, or order. Nor shall anything in this rule be held to authorize the discharge of a person charged with or convicted of an offense in the Philippines, or of a person suffering imprisonment under lawful judgment.
In this case, the petitioner was arrested and detained pursuant to the final judgment of the Municipal Trial Court of Batangas City, convicting her of violation of B.P. Blg. 22. Irrefragably then, the petitioner is not entitled to a writ of habeas corpus. Petitioners reliance of our ruling in Ordonez v. Vinarao[10] that a convicted person is entitled to benefit from the reduction of penalty introduced by the new law, citing People v. Simon,[11] is misplaced. Thus, her plea that as provided for in Article 22 of the Revised Penal Code, SC Admin.Circular No. 12-2000 as modified by SC Admin. Circular No. 132001 should benefit her has no basis. First. SC Admin. Circular No. 12-2000 is not a penal law; hence, Article 22 of the Revised Penal Code is not applicable. The circular applies only to those cases pending as of the date of its effectivity and not to cases already terminated by final judgment. Second. As explained by the Court in SC Admin. Circular No. 13-2001, SC Admin. Circular No. 12-2000 merely lays down a rule of preference in the application of the penalties for violation of B.P. Blg. 22. It does not amend B.P. Blg. 22, nor defeat the legislative intent behind the law. SC Admin. Circular No. 12-2000 merely urges the courts to take into account not only the purpose of the law but also the circumstances of the accused whether he acted in good faith or on a clear mistake of fact without taint of negligence and such other circumstance which the trial court or the appellate court believes relevant to the penalty to be imposed. The Court thus emphasized that:

The clear tenor and intention of Administrative Circular No. 12-2000 is not to remove imprisonment as an alternative penalty, but to lay down a rule of preference in the application of the penalties provided for in B.P. Blg. 22. The pursuit of this purpose clearly does not foreclose the possibility of imprisonment for violators of B.P. Blg. 22. Neither does it defeat the legislative intent behind the law. Thus, Administrative Circular No. 12-2000 establishes a rule of preference in the application of the penal provisions of B.P. Blg. 22 such that where the circumstances of both the offense and the offender clearly indicate good faith or a clear mistake of fact without taint of negligence, the imposition of a fine alone should be considered as the more appropriate penalty. Needless to say, the determination of whether the circumstances warrant the imposition of a fine alone rests solely upon the Judge. Should the Judge decide that imprisonment is the more appropriate penalty, Administrative Circular No. 12-2000 ought not be deemed a hindrance. It is, therefore, understood that: 1. Administrative Circular No. 12-2000 does not remove imprisonment as an alternative penalty for violations of B.P. Blg. 22; The Judges concerned may, in the exercise of sound discretion, and taking into consideration the peculiar circumstances of each case, determine whether the imposition of a fine alone would best serve the interests of justice or whether forbearing to impose imprisonment would depreciate the seriousness of the offense, work violence on the social order, or otherwise be contrary to the imperatives of justice; Should only a fine be imposed and the accused be unable to pay the fine, there is no legal obstacle to the application of the Revised Penal Code provisions on subsidiary imprisonment.[12]

2.

3.

B.P. Blg. 22 provides for alternative penalties of fine or imprisonment or both fine and imprisonment as follows:

SECTION 1. Checks without sufficient funds. Any person who makes or draws and issues any check to apply on account or for value, knowing at the time of issue that he does not have sufficient funds in or credit with the drawee bank for the payment of such check in full upon its presentment, which check is subsequently dishonored by

the drawee bank for insufficiency of funds or credit or would have been dishonored for the same reason had not the drawer, without any valid reason, ordered the bank to stop payment, shall be punished by imprisonment of not less than thirty days but not more than one (1) year or by a fine of not less than but not more than double the amount of the check which fine shall in no case exceed two hundred thousand pesos, or both such fine and imprisonment at the discretion of the court.[13]
The courts are given the discretion to choose whether to impose a single penalty or conjunctive penalties; that is, whether to impose a penalty of fine, or a penalty of imprisonment only, or a penalty of both fine and imprisonment. In providing for alternative penalties in B.P. Blg. 22, Congress took into account the principal objectives of the law, namely, the prohibition on the making of worthless checks and putting them in circulation. The practice is prohibited by law because of its deleterious effects on public interest. The effects of the increase of worthless checks transcend the private interest of the parties directly involved in the transaction and touches the interest of the community at large. The mischief it creates is not only a wrong to the payee or holder, but also an injury to the public. The harmful practice of putting valueless commercial papers in circulation multiplied a thousand-fold can very well pollute the channels of trade and commerce, injure the banking system and eventually hurt the welfare of society and the public interest. The law punishes the act not as an offense against property but an offense against public order.[14] However, in imposing penalties for crimes, the courts must bear in mind that Philippine penal law is based on the Spanish penal code and has adopted features of the positivist theory of criminal law. The positivist theory states that the basis for criminal liability is the sum total of the social and economic phenomena to which the offense is expressed. The adoption of the aspects of the theory is exemplified by the indeterminate sentence law, Article 4, paragraph 2 of the Revised Penal Code (impossible crime), Article 68 and Articles 11 to 14, not to mention Article 63 of the Revised Penal Code (penalties for heinous and quasi-heinous crimes). Philippine penal law looks at the convict as a member of society. Among the important factors to be considered in determining the penalty to be imposed on him are (1) his relationship towards his dependents, family and their relationship with him; and (2) his relationship towards society at large and the State. The State is concerned not only in the imperative necessity of protecting the social organization against the criminal acts of destructive individuals but also in redeeming the individual for economic usefulness and other social ends.[15] The purpose of penalties is to secure justice. The penalties imposed must not only be retributive but must also be reformative, to give the convict an opportunity to live a new life and rejoin society as a productive and civic-spirited member of the community. The court has to consider not only the primary elements of punishment, namely, the moral responsibility of the convict, the relation of the convict to the private complainant, the intention of the convict, the temptation to the act or the excuse for the crime was it done by a rich man in the insolence of his wealth or by a poor man in the extremity of his need? The court must also take into account the secondary elements of punishment, namely, the reformation of the offender, the prevention of further offenses by the offender, the repression of offenses in others.[16] As

Rousseau said, crimes can be thoroughly repressed only by a system of penalties which, from the benignity they breathe, serve rather than to soften than to inflame those on whom they are imposed.[17] There is also merit in the view that punishment inflicted beyond the merit of the offense is so much punishment of innocence.[18] In this case, even if the Court applies SC Admin. Circular No. 12-2000, as revised, retroactively, the petition must nevertheless be dismissed. The petitioner did not offer any evidence during trial. The judgment of the court became final and executory upon her failure to appeal therefrom. Worse, the petitioner remained at large for five long years. Were it not for her attempt to secure an NBI clearance, she would have been able to elude the long arm of the law. IN LIGHT OF ALL THE FOREGOING, the petition is DISMISSED for lack of merit. SO ORDERED. Puno, (Chairman), Quisumbing, Austria-Martinez, and Tinga, JJ., concur.