Tamargo vs Romulo

G.R. No. 177727 January 19, 2010

HAROLD V. TAMARGO, Petitioner, vs. ROMULO AWINGAN, LLOYD ANTIPORDA and LICERIO ANTIPORDA, JR., Respondents. DECISION CORONA, J.: This is a petition for review on certiorari of the November 10, 2006 decision and May 18, 2007 resolution of the Court of Appeals (CA) in CA-G.R. SP No. 93610. Atty. Franklin V. Tamargo and his eight-year-old daughter, Gail Franzielle, were shot and killed at around 5:15 p.m. of August 15, 2003 along Nueva Street corner Escolta Street, Binondo, Manila. The police had no leads on the perpetrators of the crime until a certain Reynaldo Geron surfaced and executed an affidavit dated September 12, 2003. He stated that a certain Lucio Columna told him during a drinking spree that Atty. Tamargo was ordered killed by respondent Lloyd Antiporda and that he (Columna) was one of those who killed 4 Atty. Tamargo. He added that he told the Tamargo family what he knew and that the sketch of the suspect closely resembled Columna. After conducting a preliminary investigation and on the strength of Gerons affidavit, the investigating prosecutor issued a resolution 6 dated December 5, 2003 finding probable cause against Columna and three John Does. On February 2, 2004, the corresponding Informations for murder were filed against them in the Regional Trial Court (RTC) of Manila, one assigned to Branch 27 for the death of 7 Atty. Franklin Tamargo, and the other to Branch 29 for the death of the minor Gail Franzielle. Columna was arrested in the province of 8 Cagayan on February 17, 2004 and brought to Manila for detention and trial. On March 8, 2004, Columna (whose real name was Manuel, Jr.) executed an affidavit wherein he admitted his participation as "look out" during the shooting and implicated respondent Romulo Awingan (alias "Mumoy") as the gunman and one Richard Mecate. He also 9 tagged as masterminds respondent Licerio Antiporda, Jr. and his son, respondent Lloyd Antiporda. The former was the ex-mayor and the latter the mayor of Buguey, Cagayan at that time. When the killing took place, Licerio Antiporda was in detention for a kidnapping case in which Atty. Tamargo was acting as private prosecutor. Pursuant to this affidavit, petitioner Harold V. Tamargo (brother of Atty. Tamargo) filed a complaint against those implicated by 10 Columna in the Office of the City Prosecutor of Manila. On April 19, 2004, Columna affirmed his affidavit before the investigating prosecutor who subjected him to clarificatory questions.
11 12 5 1 2 3

Respondents denied any involvement in the killings. They alleged that Licerio was a candidate for mayor in Buguey, Cagayan during the May 2004 elections and that the case was instituted by his political opponents in order to derail his candidacy. The Antipordas admitted that Atty. Tamargo was their political rival for the mayoralty post of Buguey. Atty. Tamargo had been defeated twice by Lloyd and once by Licerio. Before the killing, Atty. Tamargo filed an election case against Lloyd and a kidnapping case in the Sandiganbayan against Licerio. However, they claimed that both cases were dismissed as Lloyd emerged as the winner in the elections and Licerio was 13 acquitted by the Sandiganbayan. During the preliminary investigation, respondent Licerio presented Columnas unsolicited handwritten letter dated May 3, 2004 to respondent Lloyd, sent from Columnas jail cell in Manila. In the letter, Columna disowned the contents of his March 8, 2004 affidavit and narrated how he had been tortured until he signed the extrajudicial confession. He stated that those he implicated had no 14 participation in the killings. Respondent Licerio also submitted an affidavit of Columna dated May 25, 2004 wherein the latter essentially repeated the statements in his handwritten letter. Due to the submission of Columnas letter and affidavit, the investigating prosecutor set a clarificatory hearing, to enable Columna to clarify his contradictory affidavits and his unsolicited letter. During the hearing held on October 22, 2004, Columna categorically

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admitted the authorship and voluntariness of the unsolicited letter. He affirmed the May 25, 2004 affidavit and denied that any violence 15 had been employed to obtain or extract the affidavit from him. 1avvphi1 Thus, on November 10, 2004, the investigating prosecutor recommended the dismissal of the charges. This was approved by the city prosecutor. Meanwhile, in another handwritten letter addressed to City Prosecutor Ramon Garcia dated October 29, 2004, Columna said that he was only forced to withdraw all his statements against respondents during the October 22, 2004 clarificatory hearing because of the 16 threats to his life inside the jail. He requested that he be transferred to another detention center. Aggrieved by the dismissal of the charges, petitioner filed an appeal to the Department of Justice (DOJ). On May 30, 2005, the DOJ, 18 through then Secretary Raul M. Gonzalez, reversed the dismissal and ordered the filing of the Informations for murder. He opined that the March 8, 2004 extrajudicial confession was not effectively impeached by the subsequent recantation and that there was enough 19 evidence to prove the probable guilt of respondents. Accordingly, the Informations were filed and the cases were consolidated and 20 assigned to the RTC of Manila, Branch 29. However, on August 12, 2005, Secretary Gonzales granted the Antipordas motion for reconsideration (MR) and directed the withdrawal 21 of the Informations. This time, he declared that the extrajudicial confession of Columna was inadmissible against respondents and 22 that, even if it was admissible, it was not corroborated by other evidence. As a result, on August 22, 2005, the trial prosecutor filed a motion to withdraw the Informations. On October 4, 2005, Secretary Gonzalez denied petitioners MR. The RTC, through Judge Cielito Mindaro-Grulla, granted the motion to withdraw the Informations in an order dated October 26, 23 2005. Petitioner filed an MR but the judge voluntarily inhibited herself without resolving the same. The cases were re-raffled to Branch 19, presided by Judge Zenaida R. Daguna. Judge Daguna granted the MR of petitioner in a resolution dated December 9, 2005. She ruled that, based on Columnas March 8, 2004 affidavit which he affirmed before the investigating prosecutor, there was probable cause to hold the accused for trial. She denied the MR of the Antipordas in an order dated February 6, 2006. Consequently, respondent Awingan filed a special civil action for certiorari and prohibition in the CA docketed as CA-G.R. SP No. 93610. The Antipordas separately filed another certiorari case docketed as CA-G.R. SP No. 94188. In a decision dated November 10, 2006 in CA-G.R. SP No. 93610, the CA ruled that the RTC judge gravely abused her discretion because she arbitrarily left out of her assessment and evaluation the substantial matters that the DOJ Secretary had fully taken into account in concluding that there was no probable cause against all the accused. It also held that Columnas extrajudicial confession was not admissible against the respondents because, aside from the recanted confession, there was no other piece of evidence presented to establish the existence of the conspiracy. Additionally, the confession was made only after Columna was arrested and not while the conspirators were engaged in carrying out the conspiracy. After this decision was promulgated, CA-G.R. SP No. 93610 was consolidated with CA-G.R. SP No. 94188. The CA denied reconsideration in a resolution dated May 18, 2007. In a decision dated August 24, 2007, the CA likewise granted the petition for certiorari of 24 respondents Antiporda. Petitioner filed this petition assailing the decision in CA-G.R. SP No. 93610. Later on, he filed an amended petition impleading respondents Antiporda and likewise assailing the CA decision in CA-G.R. SP No. 94188. The Court treated this as a supplemental petition. The main issue for our resolution is whether or not the CA erred in finding that Judge Daguna had committed grave abuse of discretion in denying the withdrawal of the Informations for murder against respondents. Petitioner argues that, based on the independent assessment of Judge Daguna, there was probable cause based on the earlier affidavit of Columna. She considered all the pieces of evidence but did not give credit to Columnas recantation.
17

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Tamargo vs Romulo
Respondents counter that Judge Daguna committed grave abuse of discretion by limiting her evaluation and assessment only to evidence that supported probable cause while completely disregarding contradicting evidence. They also contend that Columnas extrajudicial confession was inadmissible against respondents because of the rule on res inter alios acta. We find no merit in the petition. It is settled that, when confronted with a motion to withdraw an Information (on the ground of lack of probable cause to hold the accused for trial based on a resolution of the DOJ Secretary), the trial court has the duty to make an independent assessment of the 25 merits of the motion. It may either agree or disagree with the recommendation of the Secretary. Reliance alone on the resolution of 26 the Secretary would be an abdication of the trial courts duty and jurisdiction to determine a prima facie case. The court must itself be 27 convinced that there is indeed no sufficient evidence against the accused. We agree with the CA that Judge Daguna limited herself only to the following: (1) Columnas affidavit dated March 8, 2004 wherein he implicated the respondents in the murders; (2) his affirmation of this affidavit during the April 19, 2004 clarificatory hearing; (3) his letter dated October 29, 2004 and (4) the May 30, 2005 DOJ resolution upholding the prosecutors recommendation to file the murder 28 charges. She completely ignored other relevant pieces of evidence such as: (1) Columnas May 3, 2004 letter to respondent Lloyd Antiporda narrating the torture he suffered to force him to admit his participation in the crimes and to implicate the respondents; (2) his May 25, 2004 affidavit where he stated that neither he nor the respondents had any involvement in the murders and (3) his testimony during the October 22, 2004 clarificatory hearing wherein he categorically affirmed his May 3, 2004 letter and May 25, 2004 affidavit. We declared in Jimenez v. Jimenez that [although] there is no general formula or fixed rule for the determination of probable cause since the same must be decided in the light of the conditions obtaining in given situations and its existence depends to a large degree upon the finding or opinion of the judge conducting the examination, such a finding should not disregard the facts before the judge nor run counter to the clear dictates of reason. The judge or fiscal, therefore, should not go on with the prosecution in the hope that some credible evidence might later turn 30 up during trial for this would be a flagrant violation of a basic right which the courts are created to uphold. (Emphasis supplied) Had Judge Daguna reviewed the entire records of the investigation, she would have seen that, aside from the pieces of evidence she relied on, there were others which cast doubt on them. We quote with approval the reflections of the CA on this point: The selectivity of respondent RTC Judge for purposes of resolving the motion to withdraw the informationseffectively sidetracked the guidelines for an independent assessment and evaluation of the merits of the case. Respondent RTC Judge thus impaired the substantial rights of the accused. Instead, she should have made a circumspect evaluation by looking at everything made available to her at that point of the cases. No less than that was expected and required of her as a judicial officer. According to Santos v. Orda, Jr., the trial judge may make an independent assessment of the merits of the case based on the affidavits and counter-affidavits, documents, or evidence appended to the Information; the records of the public prosecutor which the court may order the latter to produce before the 31 court; or any evidence already adduced before the court by the accused at the time the motion is filed by the public prosecutor. Moreover, Judge Daguna failed to consider that Columnas extrajudicial confession in his March 8, 2004 affidavit was not admissible as evidence against respondents in view of the rule on res inter alios acta. Res inter alios acta alteri nocere non debet. The rule on res inter alios acta provides that the rights of a party cannot be prejudiced by an 32 act, declaration, or omission of another. Consequently, an extrajudicial confession is binding only on the confessant, is not admissible 33 34 against his or her co-accused and is considered as hearsay against them. The reason for this rule is that: on a principle of good faith and mutual convenience, a mans own acts are binding upon himself, and are evidence against him. So are his conduct and declarations. Yet it would not only be rightly inconvenient, but also manifestly unjust, that a man should be bound by the acts of mere unauthorized strangers; and if a party ought not to be bound by the acts of strangers, neither ought their acts or 35 conduct be used as evidence against him.
29

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Tamargo vs Romulo
An exception to the res inter alios acta rule is an admission made by a conspirator under Section 30, Rule 130 of the Rules of Court: Admission by conspirator. The act or declaration of a conspirator relating to the conspiracy and during its existence, may be given in evidence against the co-conspirator after the conspiracy is shown by evidence other than such act or declaration.1avvphi1 This rule prescribes that the act or declaration of the conspirator relating to the conspiracy and during its existence may be given in evidence against co-conspirators provided that the conspiracy is shown by independent evidence aside from the extrajudicial 36 confession. Thus, in order that the admission of a conspirator may be received against his or her co-conspirators, it is necessary that (a) the conspiracy be first proved by evidence other than the admission itself (b) the admission relates to the common object and (c) it 37 has been made while the declarant was engaged in carrying out the conspiracy. Otherwise, it cannot be used against the alleged co38 conspirators without violating their constitutional right to be confronted with the witnesses against them and to cross-examine them. Here, aside from the extrajudicial confession, which was later on recanted, no other piece of evidence was presented to prove the alleged conspiracy. There was no other prosecution evidence, direct or circumstantial, which the extrajudicial confession could corroborate. Therefore, the recanted confession of Columna, which was the sole evidence against respondents, had no probative value and was inadmissible as evidence against them. Considering the paucity and inadmissibility of the evidence presented against the respondents, it would be unfair to hold them for trial. Once it is ascertained that no probable cause exists to form a sufficient belief as to the guilt of the accused, they should be relieved from 39 the pain of going through a full blown court case. When, at the outset, the evidence offered during the preliminary investigation is nothing more than an uncorroborated extrajudicial confession of an alleged conspirator, the criminal complaint should not prosper so 40 that the system would be spared from the unnecessary expense of such useless and expensive litigation. The rule is all the more significant here since respondent Licerio Antiporda remains in detention for the murder charges pursuant to the warrant of arrest issued 41 by Judge Daguna. Indeed, at that stage of the proceedings, the duty of Judge Daguna was only to satisfy herself whether there was probable cause or sufficient ground to hold respondents for trial as co-conspirators. Given that she had no sufficient basis for a finding of probable cause against respondents, her orders denying the withdrawal of the Informations for murder against them were issued with grave abuse of discretion. Hence, we hold that the CA committed no reversible error in granting the petitions for certiorari of respondents. WHEREFORE, the petition is hereby DENIED. No pronouncement as to costs. SO ORDERED.

Earl Louie

People vs. Kamad

SECOND DIVISION

THE PEOPLE OF THEPHILIPPINES, Plaintiff-Appellee,

G.R. No. 174198 Present: CARPIO, J., Chairperson, * CORONA, BRION, ABAD, and PEREZ, JJ.

versus -

ZAIDA KAMAD y AMBING, Accused-Appellant.

Promulgated: January 19, 2010

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

DECISION BRION, J.:

We review the decision of the Court of Appeals (CA) in CA-G.R. CR-H.C. No. 00505 which affirmed in toto the decision of the Regional Trial Court (RTC), Branch 259, Paraaque City in Criminal Case Nos. 02-1236-7 finding Zaida Kamad y Ambing (accusedappellant) guilty beyond reasonable doubt of illegal sale of shabu under Section 5, Article II of Republic Act No. 9165 (RA 9165) or the Comprehensive Dangerous Drugs Act of 2002.
[4] [5]

[1]

[2]

[3]

Along with her boyfriend Leo Ramirez y Acosta (Leo) who was charged for illegal possession of shabu, the accused-appellant was charged under an Information that reads: The above-named accused, not being lawfully authorized to possess or otherwise use any dangerous drug and without the corresponding license or prescription, did then and there willfully, unlawfully and feloniously give away, distribute and sell to a customer for P300.00 pesos one (1) small heat sealed transparent plastic sachet containing crystalline substance (shabu) weighing 0.20 gram, which when examined were found positive for Methamphetamine Hydrochloride (shabu), a dangerous drug, in violation of the above-cited law. CONTRARY TO LAW.
[6]

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People vs. Kamad

The accused-appellant pleaded not guilty on arraignment. Trial on the merits thereafter ensued.

The prosecutions version of events is summarized below.

On October 16, 2002, the Philippine National Police (PNP) Drug Enforcement Unit of the Southern Police District, Fort Bonifacio, Taguig (Taguig police)received information from an asset that a certain Zaida was engaged in the illegal sale of shabu at Purok IV, Silverio Compound in Paraaque City. The Taguig police formed a buy-bust team composed of P/Insp. Antonio Parillas, PO3 Christopher Maulit (PO3 Maulit),
[8] [7]

PO1 Manfoste,

[9]

SPO2 Arthur Velasco, and SPO2 Ernesto Sanchez

[10]

(SPO2 Sanchez), as

members. SPO2 Sanchez acted as poseur-buyer and received three (3) one hundred peso bills for use as marked money.

After surveillance of the area, the buy-bust team and their asset proceeded at around 10:00 p.m. of October 16, 2002 to the target area where they immediately saw the accused-appellant and Leo. The asset and SPO2 Sanchez approached the two while the rest of the buy-bust team watched from a distance. The asset introduced SPO2 Sanchez as a buyer of shabu and the accused-appellant asked him how much he would buy. SPO2 Sanchez asked for P300.00 worth of shabu and gave the marked money; the accused-appellant thereafter handed him a plastic sachet containing a substance suspected to be shabu. SPO2 Sanchez lighted a cigarette to give the prearranged signal for the buy-bust team to approach. SPO2 Sanchez arrested the accused-appellant and recovered from her the P300.00 marked money. The buy-bust team arrested Leo who was found in possession of one (1) plastic sachet also suspected to contain shabu.

The buy-bust team took the accused-appellant and Leo and the recovered plastic sachets to their office for investigation. The recovered plastic sachets, marked as ES-1-161009 and ES-2-161002, were then brought to the PNP Crime Laboratory for qualitative examination; the tests yielded positive results formethamphetamine hydrochloride.
[11]

The defense expectedly presented a different version of events.

The accused-appellant

[12]

denied the charge and claimed that she and Leo were framed-up. At around 2:30 p.m. of October 16,

2002, the accused-appellant and Leo went to Leos cousins house. Since Leos cousin was not yet at home, she and Leo waited. After waiting for an hour, four (4) men wearing civilian clothes and carrying firearms entered the house and introduced themselves as police officers. The accused-appellant and Leo were frisked, but nothing was found in their possession. The police officers asked the accusedappellant where she kept the shabu; she replied that she was not selling shabu. Afterwards, she and Leo were taken to the police headquarters where they were again frisked and asked the same question to which they gave the same response. The police detained

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People vs. Kamad

Leo and the accused-appellant for about a day and later brought them to the Prosecutors Office for inquest without showing them any shabu.

THE RTC RULING After consideration of the evidence, the RTC decreed: WHEREFORE, PREMISES CONSIDERED, finding both accused GUILTY beyond reasonable doubt, this Court hereby sentences Zaida Kamad to life imprisonment and to pay a fine of P500,000.00 for Violation of Section 5, Art. II, RA 9165 xxxx SO ORDERED.
[13]

The accused-appellant appealed the RTC decision to the CA, attacking the RTCs reliance on the presumption of regularity that the RTC found to have attended the conduct of the buy-bust operation by the police. She argued that no presumption of regularity could arise considering that the police violated NAPOLCOM rules by using an asset; the rules prohibit the deputation of private persons as PNP civilian agents.
[14]

The accused-appellant also pointed out the material inconsistencies in the testimony of the prosecution

witnesses that cast doubt on their credibility, namely: (a) the uncertainty of SPO2 Sanchez regarding the time the buy-bust team was dispatched to the target area; (b) the confusion of PO3 Maulit on the identity of the team leader of the buy-bust team; (c) the admitted mistake of PO3 Maulit that only the recovered plastic sachet was marked ES (standing for the initials of SPO2 Sanchez), while the

marked money was marked MF (standing for the initials of P/Insp. Mariano F. Fegarido as commanding officer); and (d) the contradictory statements of PO3 Maulit who testified that it was Leo who sold the shabu and that of SPO2 Sanchez who testified that it was the accused-appellant who sold him the shabu.

THE CA RULING

The CA rejected the defense arguments and affirmed in toto the RTC findings. The CA ruled that the prosecution satisfactorily established the accused-appellants guilt based on the positive testimony of SPO2 Sanchez on the conduct of the buy-bust operation; his testimony bore badges of truth. Accordingly, the CA found the accused-appellants uncorroborated denial undeserving of any weight. The CA brushed aside as a minor inconsistency the uncertainty in the testimony of SPO2 Sanchez on the time the buy-bust operation took place. The CA also brushed aside the violation of the NAPOLCOM rules on the ground that the accused-appellant was arrested in flagrante delicto for illegal sale of shabu committed in the presence of the prosecution witnesses who were police officers. Moreover, the CA held that the use of assets to aid police officers in buy-bust operations has been judicially recognized. The CA found that while

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People vs. Kamad

the asset brokered the shabutransaction, he had no role in the apprehension of the accused-appellant and in the search and seizure of the shabu from the accused-appellant.

THE ISSUE

The only issue in this case is whether the accused-appellant is guilty beyond reasonable doubt of violation of Section 5, Article II of RA 9165 for

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People vs. Kamad

the illegal sale of 0.20 gram of shabu.

THE COURTS RULING

We draw attention at the outset to the unique nature of an appeal in a criminal case; the appeal throws the whole case open for review and it is the duty of the appellate court to correct, cite and appreciate errors in the appealed judgment whether they are assigned or unassigned.
[15]

We find the present appeal meritorious on the basis of such review.

As a general rule, the trial court's findings of fact, especially when affirmed by the CA, are entitled to great weight and will not be disturbed on appeal. This rule, however, admits of exceptions and does not apply where facts of weight and substance with direct and material bearing on the final outcome of the case have been overlooked, misapprehended or misapplied.
[16]

After due

consideration of the records of this case, the evidence adduced, and the applicable law and jurisprudence, we hold that a deviation from the general rule is warranted.

In a prosecution for illegal sale of dangerous drugs, the following elements must be duly established: (1) proof that the transaction or sale took place; and (2) the presentation in court of the corpus delicti or the illicit drug as evidence.
[17]

Proof of the corpus

delicti in a buy-bust situation requires evidence, not only that the transacted drugs actually exist, but evidence as well that the drugs seized and examined are the same drugs presented in court. This is a condition sine qua non for conviction as the drugs are the main subject of the illegal sale constituting the crime and their existence and identification must be proven for the crime to exist. As we discuss below, the special characteristics of prohibited drugs necessitate their strict identification by the prosecution.
[18]

Our examination of the records shows that while the prosecution established through the testimony of SPO2 Sanchez that the sale of the prohibited drug by the accused-appellant took place, we find that both the RTC and the CA failed to consider the following infirmities in the prosecutions case: (1) the serious lapses in the RA 9165 procedure committed by the buy-bust team in handling the seized shabu; and (2) the failure of the police to comply with the chain of custody rule in handling the seized shabu, resulting in the prosecutions failure to properly identify the shabu offered in court as the same shabu seized from the accused-appellant on October 16, 2002. Non-compliance with the prescribed procedure under Section 21, Article II of RA 9165

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People vs. Kamad

In People v. Garcia,
[19]

we emphasized the prosecutions duty to adduce evidence proving compliance by the buy-bust team

with the prescribed procedure laid down under paragraph 1, Section 21, Article II of RA 9165. This provision reads: 1) The apprehending team having initial custody and control of the drugs shall, immediately after seizure and confiscation, physically inventory and photograph the same in the presence of the accused or the person/s from whom such items were confiscated and/or seized, or his/her representative or counsel, a representative from the media and the Department of Justice (DOJ), and any elected public official who shall be required to sign the copies of the inventory and be given a copy thereof. [emphasis supplied]

The Implementing Rules and Regulations of RA 9165 under its Section 21(a) provides further details on how RA 9165 is to be applied, and provides too for a saving mechanism in case no strict compliance with the requirements took place. Section 21(a) states: (a) The apprehending office/team having initial custody and control of the drugs shall, immediately after seizure and confiscation, physically inventory and photograph the same in the presence of the accused or the person/s from whom such items were confiscated and/or seized, or his/her representative or counsel, a representative from the media and the Department of Justice (DOJ), and any elected public official who shall be required to sign the copies of the inventory and be given a copy thereof: Provided, further that non-compliance with these requirements under justifiable grounds, as long as the integrity and the evidentiary value of the seized items are properly preserved by the apprehending officer/team, shall not render void and invalid such seizures of and custody over said items.[Emphasis supplied.]

Strict compliance with the prescribed procedure is required because of the illegal drugs unique characteristic rendering it indistinct, not readily identifiable, and easily open to tampering, alteration or substitution either by accident or otherwise.
[20]

Hence, the

rules on the measures to be observed during and after the seizure, during the custody and transfer of the drugs for examination, and at all times up to their presentation in court.

In this case, SPO2 Sanchez testified on the seizure and the handling of the seized shabu. The records show that his testimony and the identification he made in court constitute the totality of the prosecutions evidence on how the police handled and preserved the integrity of the seized shabu. Significantly, SPO2 Sanchez merely stated in his testimony that: Q: What else transpired when Zaida gave something to you and you, being the poseur buyer, gave the money to Zaida? We brought them to our office. xxxx Q: A: What did you do with those plastic sachets containing white crystalline substance? We brought them to the SPD Crime Lab for examination.
[21]

A:

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People vs. Kamad

Thus, he failed to provide specific details on how the seized shabu was marked although the evidence shows that the shabu was marked as ES-1-161009 before it was sent to a forensic laboratory. His testimony also failed to state whether the marking of the shabu was done immediately after its seizure (as Section 21 of RA 9165 requires) or during the investigation. His testimony likewise failed to disclose if a physical inventory and photography of the seized items had taken place, or if they had, whether these were undertaken in the presence of the accused or his counsel, or a representative from the media and the Department of Justice, and of an elective official.

In sum, his testimony failed to show how the integrity and evidentiary value of the item seized had been preserved; no explanation was ever given by SPO2 Sanchez to justify the non-compliance by the buy-bust team with the prescribed procedures. In fact, the records clearly reveal that the prosecution did not even acknowledge the procedural lapses committed by the buy-bust team in the handling of the seized shabu.

The consequences of the above omissions must necessarily be grave for the prosecution under the rule that penal laws, such as RA 9165, are strictly construed against the government and liberally in favor of the accused. on the origins of the illegal drug presented in court,
[23] [22]

One consequence is to produce doubts

[24]

thus leading to the prosecutions failure to establish the corpus delicti.

Unless

excused by the saving mechanism, the acquittal of the accused must follow.

The non-compliance with the chain of custody rule

Separately from Section 21 violations, we also find the prosecution fatally remiss in establishing an unbroken link in the chain of custody of the seized shabu; its evidence is simply incomplete in establishing the necessary links in the handling of the seized prohibited drug from the time of its seizure until its presentation in court.

In Mallillin v. People,

[25]

we explained the chain of custody rule and what constitutes sufficient compliance with this rule:

As a method of authenticating evidence, the chain of custody rule requires that the admission of an exhibit be preceded by evidence sufficient to support a finding that the matter in question is what the proponent claims it to be. It would include testimony about every link in the chain, from the moment the item was picked up to the time it is offered into evidence, in such a way that every person who touched the exhibit would describe how and from whom it was received, where it was and what happened to it while in the witnesses' possession, the condition in which it was received and the condition in which it was delivered to the next link in the chain. These witnesses would then describe the precautions taken to ensure that there had been no change in the condition of the item and [26] no opportunity for someone not in the chain to have possession of the same.[emphasis supplied]

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People vs. Kamad

We applied this ruling in People v. Garcia,
[27]

People v. Gum-Oyen,

[28]

People v. Denoman

[29]

and People v. Coreche

[30]

where

we recognized the following links that must be established in the chain of custody in a buy-bust situation: first, the seizure and marking, if practicable, of the illegal drug recovered from the accused by the apprehending officer; second, the turnover of the illegal drug seized by the apprehending officer to the investigating officer; third, the turnover by the investigating officer of the illegal drug to the forensic chemist for laboratory examination; and fourth, the turnover and submission of the marked illegal drug seized from the forensic chemist to the court.

(a) The first link in the chain of custody We observe that SPO2 Sanchez testimony lacks specifics on how the seized shabu was handled immediately after the accusedappellants arrest. Although the records show that SPO2 Sanchez testified that he actually seized the shabu when he arrested the accused-appellant, he never disclosed the identity of the person/s who had custody and possession of the shabu after its seizure, nor that he retained possession of the shabu from the place of the arrest until they reached the police station.

SPO2 Sanchez also failed to state the time and place as well as the identity of the person/s who made the markings on the two (2) plastic sachets containing the recovered shabu seized from the accused-appellant and Leo on October 16, 2002.

(b) The second link in the chain of custody

We also observe that SPO2 Sanchez testimony regarding the post-arrest police investigation failed to provide particulars on whether the shabu was turned over to the investigator. The records only identify the name of the investigator as one SPO1 Nuestro before whom SPO2 Sanchez and PO3 Maulit executed a Joint Affidavit of Arrest dated October 17, 2002.
[31]

Thus, a big gap

exists on who had custody and possession of the shabu prior to, during and immediately after the police investigation, and how the shabu was stored, preserved, labeled and recorded from the time of its seizure up to its receipt by the forensic laboratory.

(c) The third link in the chain of custody

The third link in the chain is represented by two (2) pieces of documentary evidence adduced by the prosecution consisting of the letter-request dated October 17, 2002
[32]

of Police Superintendent Mariano F. Fegarido as Chief of the Southern Police District Drug

Enforcement Group and the Physical Science Report No. D-1502-02 prepared by Engr. Richard Allan B. Mangalip as the forensic chemist.
[33]

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People vs. Kamad

These documents reveal that the recovered plastic sachets of shabu bearing the markings ES-1-161002 and ES-2-161002 were sent to the forensic laboratory sealed in one (1) small brown envelope bearing unidentified signatures. On the same day, the PNP Crime Laboratory received this letter-request along with the submitted specimens. The specimens were then subjected to qualitative examination which yielded positive for methylamphetamine hydrochloride.

These pieces of evidence notably fail to identify the person who personally brought the seized shabu to the PNP Crime Laboratory. They also fail to clearly identify the person who received the shabu at the forensic laboratory pursuant to the letter-request dated October 17, 2002, and who exercised custody and possession of the shabu after it was examined and before it was presented in court. Neither was there any evidence adduced showing how the seized shabu was handled, stored and safeguarded pending its presentation in court.

(d) The fourth link in the chain of custody

The fourth link presents a very strange and unusual twist in the prosecutions evidence in this case. Although the forensic chemist was presented in court, we find that his offered testimony related to a shabu specimen other than that seized in the buy-bust operation of October 16, 2002. Specifically, his testimony pertained toshabu seized by the police on October 12, 2002. This is borne by the following exchanges: FISCAL UY: The testimony of the witness is being offered to prove . . . that he is the one who cause [sic] the examination of the physical evidence subject of this case containing with white crystalline substance placed inside the plastic sachet weighing 0.20 grams and 0.30 grams with markings of EBC and EBC-1 that I reduced findings after the examination conducted. xxxx Q And with the cause of the performance of your duties, were you able to receive a letter request relevant to this case specifically a drug test request, dated October 12, 2002from PS/Insp. Wilfredo Calderon. Do you have the letter request with you? Yes, sir. The witness presented to this representation the letter request dated October 12, 2002 for purposes of identification, respectfully request that it be marked in evidence as Exhibit A. In this Exhibit A Mr. Officer, were you able to receive the evidence submitted specifically a small brown stapled wire envelope with signature containing with white crystalline substance inside and with markings EBC- 12/10/02 and EBC-1 12/10/02. After you received this specimen what action did you take or do? Upon receiving, I read and understand the content of the letter request after which, I stamped and marked the letter request and then record it on the logbook and after recording it on the logbook, I performed the test for determination of the presence of dangerous drug on the specimen. xxxx

A Q

Earl Louie

People vs. Kamad

Q A

Now, after those tests conducted what was the result of the examination? It gives positive result for Methamphetamine Hydrochloride or otherwise known as shabu, a dangerous drug. xxxx

At this juncture your Honor, the witness handed with this representation a brown envelope with markings D1487-02, and the signature and the date 12 October 02, now Mr. Witness tell us who placed these markings on this brown envelope? I am the one who personally made the markings, sir. And in the face of this brown envelope there is a printed name PO1 Edwin Plopinio and the signature and the date 12 October 2002. Do you know who placed who placed those markings? I have no idea. At this juncture your Honor, this representation proceeded to open the brown envelope. May I respectfully request that this brown envelope be marked in evidence as Exhibit B. And inside this brown envelope are three pieces of plastic sachets inside which are white crystalline substance with markings EPC 12 October 02 and EPC-1 12 October 02. May I respectfully request that these plastic sachets with white substance inside be marked in evidence as Exhibit B-1 and B-2. And in these plastic sachets with white crystalline inside is a masking tape with the signature and letters are RAM, do you know who placed those letters? I am the one who placed that markings sir. And what RAM stands for? That stands for my name Richard Allan Mangalip sir. You mentioned that you reduced your findings in writing, do you have the official finding with you? Yes, sir. At this juncture the witness handed to this representation the physical science report no. D-1487-2 for purposes of identification respectfully request that this specimen be marked in evidence as Exhibit C. And in this Exhibit C, there is a signature above the typewritten name Engineer Richard Allan B. Mangalip, do you whose [34] signature is this Mr. Witness? [Emphasis supplied] That is my signature sir. Respectfully request that the signature appearing in Exhibit C be marked in evidence as Exhibit C-1. You stated earlier that you cause the weight of the white crystalline substance in this plastic sachet, what the weights of this white crystalline substance? For the specimen A, it is .20 grams and the specimen B, it is .30 gram. May I respectfully request that this weight indicated in this physical science report now mark in evidence as Exhibit C-2. I have no further questions to the witness your Honor. xxxx

A Q

A Q

A Q A Q A Q

A Q

A Q

Earl Louie

People vs. Kamad

Aside from the different dates of seizure, we note that the shabu identified and presented in court as evidence through the testimony of the forensic chemist, showed characteristics distinct from the shabu from the buy-bust sale of October 16, 2002:

First, there were different markings made on the plastic sachets of the shabu recovered on October 12, 2002. As testified to, one plastic sachet of shabu was marked, EBC 12 October 02, while the other plastic sachet of shabu was marked, EBC-1 12 October 02;
[35]

Second, there was a different sealed brown envelope used where a printed name and signature of one PO1 Edwin Plopino and the date 12 October 2002 were written;
[36]

Third, the examination of the shabu by the PNP Crime Laboratory was made pursuant to a different letter-request for examination dated October 12, 2002written by one P/Insp. Wilfredo Calderon;
[37]

and

Fourth, the results of the shabu testified to by the forensic chemist in court was contained in a different forensic laboratory report known as Physical Science Report No. D-1487-2.
[38]

We highlight these characteristics because they are different from the documentary evidence the prosecution formally offered
[39]

consisting of the letter-request dated October 17, 2002

[40]

and the Physical Science Report No. D-1502-02.

[41]

The testimonies

of SPO2 Sanchez and PO3 Maulit as well as the submitted documentary evidence referred to the plastic sachets of shabu through their markings of ES-1-161002 and ES-2-161002.
[42]

From all these, we find it obvious that some mistake must have been made in the presentation of the prosecutions evidence. The prosecution, however, left the discrepancies fully unexplained. To reiterate, the forensic chemist testified to a specimen dated October 12, 2002, or one secured way before the buy-bust of October 16, 2002, but marked as evidence documents relating to the specimen of October 16, 2002. Strangely, even the defense disregarded the discrepancies. In his comment on the offer of evidence, the defense simply stated, among others, by way of stipulation, that the forensic chemical officer only conducted a qualitative examination of the specimen he examined and not the quantitative examination.
[43]

Coming immediately after the offer of evidence

that mentioned the plastic sachets containing white crystalline substances with markings ES-1 16/10/02 and ES-2 16/10/02, and the Physical Science Report No. D-1502-02, evidence.
[44]

the defense was clearly sleeping on its feet when it reacted to the prosecutions offer of

Earl Louie

People vs. Kamad

But the defense was not alone in glossing over the discrepancies between the testimony for the prosecution and the offered evidence, as both the RTC and CA also failed to notice the glaring flaws in the prosecutions evidence. Apparently, because the parties did not point out these discrepancies while the appellate court did not closely review the records of the proceedings, the discrepancies were not taken into account in the decision now under review.

These observations bring us full circle to our opening statement under the Courts ruling on the kind and extent of review that an appellate court undertakes in a criminal case; the appeal opens the whole case for review, with the appellate court charged with the duty to cite and appreciate the errors it may find in the appealed judgment, whether these errors are assigned or unassigned. This is one such instance where we are duty bound to rectify errors that, although unnoticed below and unassigned by the parties, are clearly reflected in the records of the case.

The Conclusion

Given the flagrant procedural lapses the police committed in handling the seized shabu and the obvious evidentiary gaps in the chain of its custody, a presumption of regularity in the performance of duties cannot be made in this case. A presumption of regularity in the performance of official duty is made in the context of an existing rule of law or statute authorizing the performance of an act or duty or prescribing a procedure in the performance thereof. The presumption applies when nothing in the record suggests that the law enforcers deviated from the standard conduct of official duty required by law; where the official act is irregular on its face, the presumption cannot arise.
[45]

In light of the flagrant lapses we noted, the lower courts were obviously wrong when they relied on the

presumption of regularity in the performance of official duty.

We rule, too, that the discrepancy in the prosecution evidence on the identity of the seized and examined shabu and that formally offered in court cannot but lead to serious doubts regarding the origins of the shabu presented in court. This discrepancy and the gap in the chain of custody immediately affect proof of the corpus delicti without which the accused must be acquitted.

From the constitutional law point of view, the prosecutions failure to establish with moral certainty all the elements of the crime and to identify the accused as the perpetrator signify that it failed to overturn the constitutional presumption of innocence that every accused enjoys in a criminal prosecution. When this happens, as in this case, the courts need not even consider the case for the defense in deciding the case; a ruling for acquittal must forthwith issue.

WHEREFORE, premises considered, we hereby REVERSE and SET ASIDE the March 28, 2006 decision of the Court of Appeals in CA-G.R. CR-H.C. No. 00505 affirming the decision of conviction dated October 27, 2004 of the Regional Trial Court, Branch 259,

Earl Louie

People vs. Kamad

Paraaque City in Criminal Case Nos. 02-1236-7 for illegal sale of shabu under Section 5, Article II of Republic Act No. 9165. Accusedappellant ZAIDA KAMAD y AMBING is hereby declared ACQUITTED and ordered immediately RELEASED from detention, unless she is confined for any other lawful cause.

The Director of the Bureau of Corrections is DIRECTED to IMPLEMENT this Decision and to report to this Court the action taken hereon within five (5) days from receipt. SO ORDERED.

Earl Louie

People vs Hipona
G.R. No. 185709 February 18, 2010

PEOPLE OF THE PHILIPPINES, Appellee, vs. MICHAEL A. HIPONA, Appellant. DECISION CARPIO MORALES, J.: Michael A. Hipona (appellant) was convicted by Decision of September 10, 2002 of the Regional Trial Court of Cagayan de Oro City, Branch 18 with "Rape with Homicide (and Robbery)" [sic]. His conviction was affirmed by the Court of Appeals by Decision of January 28, 2 2008. The Second Amended Information charged appellant together with Romulo Seva, Jr. and one John Doe withRobbery with Rape and Homicide as follows: That on or about June 12, 2000 at 1:00 oclock dawn at District 3, Isla Copa, Consolation, Cagayan de Oro City, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, conspiring, confederating together, and mutually helping one another, by means of force and intimidation, did then and there willfully, unlawfully and feloniously have carnal knowledge with the offended party (AAA) who is the Aunt of accused Michael A. Hipona, she being the younger sister of the accuseds mother and against her will, that on occasion of the said rape, accused, with evident premeditation, treachery and abuse of superior strength, and dwelling, with intent to kill and pursuant to their conspiracy, choked and strangulated said AAA which strangulation resulted to the victims untimely death. That on the said occasion the victims brown bag worth P3,800.00; cash money in the amount of no less than P5,000.00; and gold necklace were stolen by all accused but the gold necklace was later on recovered and confiscated in the person of accused 3 Michael A. Hipona. (emphasis and underscoring in the original) The following facts are not disputed. AAA was found dead on the morning of June 12, 2000 in her house in Isla Copa, Consolation, Cagayan de Oro City. She was raped, physically manhandled and strangled, which eventually led to her death. Her furniture and belongings were found strewn on the floor. AAAs necklace with two heart-shaped pendants bearing her initials and handbag were likewise missing. Upon investigation, the local police discovered a hole bored into the lawanit wall of the comfort room inside AAAs house, big enough for a person of medium build to enter. The main electrical switch behind a "shower curtain" located at the "back room" was turned off, drawing the police to infer that the perpetrator is familiar with the layout of AAAs house. SPO1 Bladimir Agbalog of the local police thus called for a meeting of AAAs relatives during which AAAs sister BBB, who is appellants mother, declared that her son-appellant had told her that "Mama, Im sorry, I did it because I did not have the money," and he was thus 5 apologizing for AAAs death. BBB executed an affidavit affirming appellants confession. On the basis of BBBs information, the police arrested appellant on June 13, 2000 or the day after the commission of the crime. He was at the time wearing AAAs missing necklace. When on even date he was presented to the media and his relatives, appellant apologized but qualified his participation in the crime, claiming that he only acted as a look-out, and attributed the crime to his co-accused Romulo B. Seva, Jr. (Seva) alias "Gerpacs" and a certain "Reypacs." A day after his arrest or on June 14, 2000, appellant in an interview which was broadcasted, when asked by a radio reporter "Why did you do it to your aunt?," answered "Because of my friends and peers." When pressed if he was intoxicated or was on drugs when he "did it," appellant answered that he did it because of his friends and of poverty. Appellants co-accused Seva was later arrested on July 9, 2000, while "Reypacs" remained at large.
4 1

Earl Louie

People vs Hipona
Appellant entered a plea of not guilty while Seva refused to enter a plea, hence, the trial court entered a "not guilty" plea on his behalf. Post mortem examination of AAA revealed the following findings: Rigor mortis, generalized, Livor mortis, back, buttocks, flanks, posterior aspect of neck and extremities (violaceous). Face, markedly livid. Nailbeds, cyanotic. With extensive bilateral subconjunctival hemorrhages and injections. Petecchial hemorrhages are likewise, noted on the face and upper parts of neck. ABRASIONS, with fibrin: curvilinear; three (3) in number; measuring 1.1x0.4 cms., 0.8x0.3 cms., and 0.6x0.1 cm.; within an area of 2.8x1.1 cms. at the left side of the neck, antero-lateral aspect. HEMATOMAS, violaceous; hemispherical in shapes, highly characteristic of bite marks: 3.5 x 0.4 cms. and 4.1x1.4 cms.; located at the right lower buccal region, lateral and medial aspects, respectively. SOFT TISSUE DEFECT, with irregular edges; 2.5 x 2.7 cms.; left thigh, distal 3rd, medial aspect; involving only the skin and underlying adipose tissues; with an approximate depth of 1.6 cms. ABRASIONS, with fibrin, curvilinear in shapes; 0.6x0.3 cm. and 0.5x0.3cm., right upper eyelid; 0.4x0.2 cms. and 0.3x 0.2 cms, right upper arm, distal 3rd, medial aspect; 0.5x0.3 cm., right forearm, proximal 3rd, medial aspect; 0.7x0.3 cm., left elbow; 0.5x0.2 cm., left forearm, middle 3rd, posterior aspect. HEMATOMA, violaceous: 2.2x2.5 cms., right upper arm, middle 3rd, medial aspect DEPRESSED FRACTURE, body of thyroid cartilage, lateral aspects, bilateral. PETECCHIAL HEMORRHAGES, subpleural, bilateral, and sub-epicardial. xxxx GENITAL FINDINGS: Subject is menstruating. Pubic hairs, fully grown, abundant. Labiae majora and minora, both coaptated. Vestibular mucosa, pinkish, smooth. Hymen, short, thin with COMPLETE, FRESH HYMENAL LACERATION (with fibrin and fresh reddish soft blood clot) at 6:00 oclock position, and extending to the posterior aspect of vestibular mucosa up to the area of fourchette. Hymenal orifice originally annular, admits a glass tube of 2.5 cms. diameter with moderate resistance. Vaginal rugosities, prominent. Cervix, firm. Uterus, small. VVVVVVVVVVV CAUSE OF DEATH: Asphyxia by strangulation (manual). REMARKS: Genital injury noted, age of which is compatible with sexual intercourse(s) with man/menon or about June 11-12 6 2000. (underscoring supplied) Albeit appellants mother BBB refused to take the witness stand, SPO1 Agbalog and Consuelo Maravilla, another relative of appellant, testified on BBBs declaration given during the meeting of relatives. Appellant refused to present evidence on his behalf while Seva presented evidence to controvert the evidence on his alleged participation in the crime. By Decision of September 10, 2002, the trial court, after considering circumstantial evidence, viz:

Earl Louie

People vs Hipona
Based on the foregoing circumstances, specially of his failure to explain why he was in possession of victims stolen necklace with pendants, plus his confession to the media in the presence of his relatives, and to another radio reporter "live-on-the-air" about a day after his arrest, sealed his destiny to perdition and points to a conclusion beyond moral certainty that his hands were soiled and sullied 7 by blood of his own Aunt. (underscoring supplied), found appellant guilty beyond reasonable doubt of "Rape with Homicide (and Robbery)." [sic]. It acquitted Seva. Thus the trial court disposed: WHEREFORE, in view of all the foregoing, the Court finds accused MICHAEL HIPONA GUILTY beyond reasonable doubt of a special complex crime of Rape with Homicide (and Robbery) punishable under Articles 266-A and 266-B, of the Revised Penal Code, as amended by R.A. 8353, and after taking into account the generic aggravating circumstance of dwelling, without a mitigating circumstance, accused MICHAEL HIPONA is hereby sentenced and SO ORDERED to suffer the supreme penalty of DEATH by lethal injection, plus the accessory penalties. He is hereby SO ORDERED to pay the heirs the sum of One Hundred Thousand (P100,000.00) Pesos, as indemnity. Another One Hundred Thousand (P100,000.00) Pesos, as moral damages. In order to further give accused Michael Hipona a lesson that would serve as a warning to others, he is also directed and SO ORDERED to pay another Fifty Thousand (P50,000.00) Pesos, as exemplary damages. For failure on the part of the prosecution to prove the guilt of the accused Romulo Seva, Jr., beyond reasonable doubt, it is SO ORDERED that he should be acquitted and it is hereby ACQUITTED of the crime charged, and is hereby released from custody unless detained for other legal ground. Pursuant to Section 22 of R.A. 7659, and Section 10 of Rule 122 of the Rules of Court, let the entire record be forwarded to the Supreme 8 Court for automatic review." (emphasis in the original; underscoring supplied) On elevation of the records of the case, the Court, following People v. Mateo, referred the same to the Court of Appeals. Appellant maintains that his guilt was not proven beyond reasonable doubt.
10 9

As stated early on, the Court of Appeals sustained appellants conviction. It, however, modified the penalty imposed, and the amount of damages awarded by the trial court. Thus the appellate court, by the challenged Decision of January 28, 2008, disposed: WHEREFORE, the Decision of the lower court is hereby AFFIRMED with the following MODIFICATIONS: 1. That the penalty imposed is reclusion perpetua; 2. That appellant is hereby ordered to pay the heirs of AAA the following: the sum of P100,000.00 as civil indemnity; P75,000.00 as moral damages; and P100,000.00 as exemplary damages. SO ORDERED. (underscoring supplied) The records of the case were elevated to this Court in view of the Notice of Appeal filed by appellant. Both the People and appellant manifested that they were no longer filing any supplemental briefs. The appeal is bereft of merit. For circumstantial evidence to suffice to convict an accused, the following requisites must concur: (1) there is more than one circumstance; (2) the facts from which the inferences are derived are proven; and (3) the combination of all the circumstances is such as 13 to produce a conviction beyond reasonable doubt. The confluence of the following established facts and circumstances sustains the appellate courts affirmance of appellants conviction: First, appellant was frequently visiting AAA prior to her death, hence, his familiarity with the layout of the house; second, appellant admitted to his relatives and the media that he was present during commission of the crime, albeit only as a
12

11

Earl Louie

People vs Hipona
look-out; third, appellant was in possession of AAAs necklace at the time he was arrested; and fourth, appellant extrajudicially confessed to the radio reporter that he committed the crime due to his peers and because of poverty. Appellant argues that he should only be held liable for robbery and not for the complex crime of "Rape with Homicide (and Robbery)" [sic]. He cites the testimony of prosecution witness Aida Viloria-Magsipoc, DNA expert of the National Bureau of Investigation, that she found the vaginal smears taken from AAA to be negative of appellants DNA. Appellants argument fails. Presence of spermatozoa is not essential in finding that rape was committed, the important consideration 14 being not the emission of semen but the penetration of the female genitalia by the male organ. As underlined above, the post-mortem examination of AAAs body revealed fresh hymenal lacerations which are consistent with findings of rape. Not only does appellants conviction rest on an unbroken chain of circumstantial evidence. It rests also on his unbridled admission to the media. People v. Andan instructs: Appellants confessions to the media were likewise properly admitted. The confessions were made in response to questions by news reporters, not by the police or any other investigating officer. We have held that statements spontaneously made by a suspect to news 15 reporters on a televised interview are deemed voluntary and are admissible in evidence. (underscoring supplied) Appellant argues, however, that the questions posed to him by the radio broadcaster were vague for the latter did not specify what crime was being referred to when he questioned appellant. But, as the appellate court posited, appellant should have qualified his answer during the interview if indeed there was a need. Besides, he had the opportunity to clarify his answer to the interview during the trial. But, as stated earlier, he opted not to take the witness stand.1avvphi1 The Court gathers, however, that from the evidence for the prosecution, robbery was the main intent of appellant, and AAAs death 16 17 resulted by reason of or on the occasion thereof. Following Article 294(1) and Article 62(1)1 of the Revised Penal Code, rape should 18 have been appreciated as an aggravating circumstance instead. A word on the amount of exemplary damages awarded. As the Court finds the award of P100,000 exemplary damages excessive, it 19 reduces it to P25,000, in consonance with prevailing jurisprudence. WHEREFORE, the Decision of January 28, 2008 of the Court of Appeals is hereby AFFIRMED withMODIFICATION. Appellant, Michael A. Hipona is found guilty beyond reasonable doubt of Robbery with Homicide under Article 294(1) of the Revised Penal Code. He is accordingly sentenced to reclusion perpetua. And the award of exemplary damages is reduced to P25,000. In all other respects, the Decision is affirmed. SO ORDERED.

Earl Louie

IN RE: PETITION FOR CANCELLATION

SECOND DIVISION

IN RE: PETITION FOR CANCELLATION G.R. No. 177861 AND CORRECTION OF ENTRIES IN THE RECORD OF BIRTH, EMMA K. LEE, Petitioner, - versus Present: CARPIO, J., Chairperson, ABAD, VILLARAMA, JR., PEREZ, and MENDOZA, JJ. COURT OF APPEALS, RITA K. LEE, LEONCIO K. LEE, LUCIA K. LEE-ONG, JULIAN K. LEE, MARTIN K. LEE, ROSA LEE-VANDERLEK, MELODY LEE-CHIN, HENRY K. LEE, NATIVIDAD LEE-MIGUEL, VICTORIANO K. LEE, and THOMAS K. LEE, represented by RITA K. LEE, as Attorney-in-Fact, Respondents. July 13, 2010 Promulgated:
** *

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

DECISION

ABAD, J.:

Earl Louie

IN RE: PETITION FOR CANCELLATION

This case is about the grounds for quashing a subpoena ad testificandum and a parents right not to testify in a case against his children.

The Facts and the Case

Spouses Lee Tek Sheng (Lee) and Keh Shiok Cheng (Keh) entered the Philippines in the 1930s as immigrants from China. They had 11 children, namely, Rita K. Lee, Leoncio K. Lee, Lucia K. Lee-Ong, Julian K. Lee, Martin K. Lee, Rosa Lee-Vanderlek, Melody Lee-Chin, Henry K. Lee, Natividad Lee-Miguel, Victoriano K. Lee, and Thomas K. Lee (collectively, the Lee-Keh children).

In 1948, Lee brought from China a young woman named Tiu Chuan (Tiu), supposedly to serve as housemaid. The respondent Lee-Keh children believe that Tiu left the Lee-Keh household, moved into another property of Lee nearby, and had a relation with him.

Shortly after Keh died in 1989, the Lee-Keh children learned that Tius children with Lee (collectively, the Lees other children) claimed that they, too, were children of Lee and Keh. This prompted the Lee-Keh children to request the National Bureau of Investigation (NBI) to investigate the matter. After conducting such an investigation, the NBI concluded in its report:

[I]t is very obvious that the mother of these 8 children is certainly not KEH SHIOK CHENG, but a much younger woman, most probably TIU CHUAN. Upon further evaluation and analysis by these Agents, LEE TEK SHENG is in a quandary in fixing the age of KEH SHIOK CHENG possibly to conform with his grand design of making his 8 children as their own legitimate children, consequently elevating the status of his second family and secure their future. The doctor lamented that this complaint would not have been necessary had not the father and his second family kept [1] on insisting that the 8 children are the legitimate children of KEH SHIOK CHENG.

The NBI found, for example, that in the hospital records, the eldest of the Lees other children, Marcelo Lee (who was recorded as the 12th child of Lee and Keh), was born of a 17-year-old mother, when Keh was already 38 years old at the time. Another of the Lees other children, Mariano Lee, was born of a 23-year-old mother, when Keh was then already 40 years old, and so forth. In other words, by the hospital records of the Lees other children, Kehs declared age did not coincide with her actual age when she supposedly gave birth to such other children, numbering eight.

Earl Louie

IN RE: PETITION FOR CANCELLATION

On the basis of this report, the respondent Lee-Keh children filed two separate petitions, one of them before the Regional Trial Court (RTC) of Caloocan City in Special Proceeding C-1674 for the deletion from the certificate of live birth of the petitioner Emma Lee, one of Lees other children, the name Keh and replace the same with the name Tiu to indicate her true mothers name.
[2]

In April 2005 the Lee-Keh children filed with the RTC an ex parte request for the issuance of a subpoena ad testificandum to compel Tiu, Emma Lees presumed mother, to testify in the case. The RTC granted the motion but Tiu moved to quash the subpoena, claiming that it was oppressive and violated Section 25, Rule 130 of the Rules of Court, the rule on parental privilege, she being Emma Lees stepmother.
[3]

On August 5, 2005 the RTC quashed the subpoena it issued for being unreasonable and oppressive considering that

Tiu was already very old and that the obvious object of the subpoena was to badger her into admitting that she was Emma Lees mother.

Because the RTC denied the Lee-Keh childrens motion for reconsideration, they filed a special civil action of certiorari before the Court of Appeals (CA) in CA-G.R. SP 92555. On December 29, 2006 the CA rendered a decision, setting aside the RTCs August 5, 2005 Order. The CA ruled that only a subpoena duces tecum, not a subpoena ad testificandum, may be quashed for being oppressive or unreasonable under Section 4, Rule 21 of the Rules of Civil Procedure. The CA also held that Tius advanced age alone does not render her incapable of testifying. The party seeking to quash the subpoena for that reason must prove that she would be unable to withstand the rigors of trial, something that petitioner Emma Lee failed to do.
[4]

Since the CA denied Emma Lees motion for reconsideration by resolution of May 8, 2007, this Court.

[5]

she filed the present petition with

The Question Presented

The only question presented in this case is whether or not the CA erred in ruling that the trial court may compel Tiu to testify in the correction of entry case that respondent Lee-Keh children filed for the correction of the certificate of birth of petitioner Emma Lee to show that she is not Kehs daughter.

The Ruling of the Court

Earl Louie

IN RE: PETITION FOR CANCELLATION

Petitioner Emma Lee claims that the RTC correctly quashed the subpoena ad testificandum it issued against Tiu on the ground that it was unreasonable and oppressive, given the likelihood that the latter would be badgered on oral examination concerning the LeeKeh childrens theory that she had illicit relation with Lee and gave birth to the other Lee children.

But, as the CA correctly ruled, the grounds citedunreasonable and oppressiveare proper for subpoena ad duces tecum or for the production of documents and things in the possession of the witness, a command that has a tendency to infringe on the right against invasion of privacy. Section 4, Rule 21 of the Rules of Civil Procedure, thus provides:

SECTION 4. Quashing a subpoena. The court may quash a subpoena duces tecum upon motion promptly made and, in any event, at or before the time specified therein if it is unreasonable and oppressive, or the relevancy of the books, documents or things does not appear, or if the person in whose behalf the subpoena is issued fails to advance the reasonable cost of the production thereof.

Notably, the Court previously decided in the related case of Lee v. Court of Appeals that the Lee-Keh children have the right to file the action for correction of entries in the certificates of birth of Lees other children, Emma Lee included. The Court recognized that the ultimate object of the suit was to establish the fact that Lees other children were not children of Keh. Thus:

[6]

It is precisely the province of a special proceeding such as the one outlined under Rule 108 of the Revised Rules of Court to establish the status or right of a party, or a particular fact. The petitions filed by private respondents for the correction of entries in the petitioners' records of birth were intended to establish that for physical and/or biological reasons it was impossible for Keh Shiok Cheng to have conceived and given birth to the petitioners as shown in their birth records. Contrary to petitioners' contention that the petitions before the lower courts were actually actions to impugn legitimacy, the prayer therein is not to declare that petitioners are illegitimate children of Keh Shiok Cheng, but to establish that the former are not the latter's children. There is [7] nothing to impugn as there is no blood relation at all between Keh Shiok Cheng and petitioners. (Underscoring supplied)

Taking in mind the ultimate purpose of the Lee-Keh childrens action, obviously, they would want Tiu to testify or admit that she is the mother of Lees other children, including petitioner Emma Lee. Keh had died and so could not give testimony that Lees other children were not hers. The Lee-Keh children have, therefore, a legitimate reason for seeking Tius testimony and, normally, the RTC cannot deprive them of their right to compel the attendance of such a material witness.

Earl Louie

IN RE: PETITION FOR CANCELLATION

But petitioner Emma Lee raises two other objections to requiring Tiu to come to court and testify: a) considering her advance age, testifying in court would subject her to harsh physical and emotional stresses; and b) it would violate her parental right not to be compelled to testify against her stepdaughter.

1.

Regarding the physical and emotional punishment that would be inflicted on Tiu if she were compelled at her age and

condition to come to court to testify, petitioner Emma Lee must establish this claim to the satisfaction of the trial court. About five years have passed from the time the Lee-Keh children sought the issuance of a subpoena for Tiu to appear before the trial court. The RTC would have to update itself and determine if Tius current physical condition makes her fit to undergo the ordeal of coming to court and being questioned. If she is fit, she must obey the subpoena issued to her.

Tiu has no need to worry that the oral examination might subject her to badgering by adverse counsel. The trial courts duty is to protect every witness against oppressive behavior of an examiner and this is especially true where the witness is of advanced age.
[8]

2.

Tiu claimed before the trial court the right not to testify against her stepdaughter, petitioner Emma Lee, invoking Section

25, Rule 130 of the Rules of Evidence, which reads:

SECTION 25. Parental and filial privilege.- No person may be compelled to testify against his parents, other direct ascendants, children or other direct descendants.

The above is an adaptation from a similar provision in Article 315 of the Civil Code that applies only in criminal cases. But those who revised the Rules of Civil Procedure chose to extend the prohibition to all kinds of actions, whether civil, criminal, or administrative, filed against parents and other direct ascendants or descendants.

But here Tiu, who invokes the filial privilege, claims that she is the stepmother of petitioner Emma Lee. The privilege cannot apply to them because the rule applies only to direct ascendants and descendants, a family tie connected by a common ancestry. A stepdaughter has no common ancestry by her stepmother. Article 965 thus provides:

Art. 965. The direct line is either descending or ascending. The former unites the head of the family with those who descend from him. The latter binds a person with those from whom he descends.

Earl Louie

IN RE: PETITION FOR CANCELLATION

Consequently, Tiu can be compelled to testify against petitioner Emma Lee.

WHEREFORE, the Court DENIES the petition and AFFIRMS the decision and resolution of the Court of Appeals in CA-G.R. SP 92555.

SO ORDERED.

Earl Louie

People vs Gabo

SECOND DIVISION PEOPLE OF THE PHILIPPINES, represented by Chief State Prosecutor JOVENCITO ZUO, State Prosecutor GERONIMO SY and Prosecution Attorney IRWIN MARAYA, Petitioners, G.R. No. 161083

Present: CARPIO, J., Chairperson, NACHURA, PERALTA, ABAD, and MENDOZA, JJ.

- versus -

HON. BASILIO R. GABO, in his capacity as Presiding Judge of the Regional Trial Court of Malolos, Bulacan, Branch II and WILSON CUA TING, EDWARD NGO YAO, WILLY SO TAN and CAROL FERNAN ORTEGA, Respondents.

Promulgated: August 3, 2010 x-----------------------------------------------------------------------------------------x DECISION PERALTA, J.:

Before this Court is a petition for certiorari under Rule 65 of the Rules of Court, seeking to set aside the July 24, 2003 Decision and October 3, 2003 Resolution of the Court of Appeals (CA) in CA-G.R. SP No. 71985. The facts of the case, as culled from the petition, are as follows:
[2] [3]

[1]

On May 14, 2001, around 12:15 a.m., a fire broke out inside the plant of Sanyoware Plastic Products Manufacturing Corporation (Sanyoware) located at Km. 8,McArthur Highway, Lolomboy, Bocaue, Bulacan. The Sanyoware plant had four single-storey buildings, enclosed in concrete walls with steel tresses and galvanized iron sheet roofing.

Sanyoware 2, Warehouse 2, the building that was razed by fire, was located at the right innermost portion of the plant facing north. Sanyoware occupied the right, western portion of the said building, while New Unitedware Marketing Corporation (Unitedware) rented the other half, located at the left, eastern portion. The building was divided at the center by a tall concrete firewall with a steel gate.

Earl Louie

People vs Gabo
rd

Investigations were conducted by the Philippine 3 Regional Criminal Investigation and Detention Group (CIDG) and the Inter Agency Anti-Arson Task Force (IATF) of the Department of the Interior and Local Government. Pursuant to the August 1, 2001 letter of CIDG Regional Officer P/Supt. Christopher A. Laxa to the Secretary of the Justice; the IATFs October 25, 2001 Indorsement;
[6] [5] [4]

and the

October 8, 2001 letter of Bureau of Fire Protection (BFP) Chief Sr. Supt. Victoriano C. Remedio to the Prosecutor of the DOJ, the following were accused of destructive arson before the Office of the Chief State Prosecutor, namely: Samson Cua Ting, alias Ding Jian Zhi, External Vice-President; Wilson Cua Ting, Plant Manager; Edward Ngo Yao (Yao), President of New Marketing Corporation; Willy So Tan, alias Chen Yi Ming, Vice-President for Operations; Carol Fernan Ortega, Assistant to the External Vice-President; and John Doe and Peter Doe.

In support of the accusation, petitioner submitted the Sworn Statements of Richard Madrideo, Jaime Kalaw, Raymund Dy, Chit Chua, Jennifer Chua Reyes, Shanda Amistad, SPO1 Valeriano Dizon and Inspector Allan N. Barredo.

In his sworn statement, Richard Madrideo, a supervisor at Sanyoware said that there were two separate sets of fire in the Sanyoware Warehouse and that it was different from, but occurred simultaneously, with the fire at the Unitedware Warehouse. Madrideo claimed that respondents Wilson Ting and Yao instructed him that if anyone should ask about the fire, he should say that the fires did not break out simultaneously and the cause thereof was defective wiring. In his additional sworn statement, Madrideo claimed that, days after the fire, he was threatened by respondents and was being forced to write a sworn statement against his will.

[7]

Jaime Kalaw, a former head of the Maintenance Department of Sanyoware, alleged in his sworn statement

[8]

that the cause of

the fire could not have been faulty electrical wiring, because the warehouse was relatively new and that, on the day of the fire, the plant was not in operation so there was no heavy load of electricity and all the circuit breakers were shut down. Kalaw noted that a week before the fire occurred, almost 300 unserviceable molds were transferred to the burned Sanyoware warehouse. A day before the fire, expensive finish products were loaded in delivery trucks. In addition, Kalaw alleged that he saw respondent Yao a day before the fire driving to the Unitedware warehouse. Once inside, respondent Yao took a rectangular shaped object from his vehicle.

Raymond Dy, a warehouse supervisor at Sanyoware stated in his sworn statement

[9]

that a week before the fire occurred, he

observed that saleable products from the burned warehouse were transferred to the Sanyo City Warehouse, while unusable components from the Sanyo City warehouse were transferred to the burned warehouse. Dy alleged that the transfer of the products was upon the orders of Charles Lee, the plant manager of Sanyoware, who allegedly told the employees to finish the transfers on May 12, 2001.

Earl Louie

People vs Gabo
[10]

Chit Chua, an employee at the Accounting Department of Sanyoware, claimed in her sworn statement

that Sanyoware was

indebted to a number of banks and corporations and that Sanyowares outstanding obligations amounted to P95,000,000.00 to P96,000,000.00. Jennifer Chua Reyes, a secretary at Sanyoware, alleged in her sworn statement loan of P180,000,000.00 to various individuals. Shanda Amistad, a former stay-in worker at Sanyoware, alleged in her affidavit
[12] [11]

that Sanyoware has an outstanding

that, around 8:00 a.m. of May 13, 2001, she

saw respondent Yao driving a Canter truck of Unitedware loaded with goods. Yao went to Sanyoware three times that day. Amistad found it unusual, since Yao did not normally go to Sanyoware on Sundays and there were available drivers at that time. Around 2:00 p.m. of the same day, respondent Wilson Ting arrived. SPO1 Valeriano Dizon (SPO1 Dizon), a fireman assigned at the Meycauayan Fire Station, Bulacan, stated in his sworn statement
[13]

that he conducted the examination of the fire that occurred on May 14, 2001. He alleged that he took the statement of the

witnesses, but Sr. Supt. Enrique Linsangan of the BFP Regional Office, Region III, took the witnesses statements from him before he could prepare the Final Investigation Report (FIR). Thereafter, Sr. Supt. Linsangan summoned him, Inspector Allan Barredo and BFP C/Ins. Absalon Zipagan, Municipal Fire Marshall of Bocaue, Bulacan, and showed them the copy of the FIR and made them sign it . Inspector Barredo, in his affidavit, to sign the FIR. In their defense, respondents submitted a Counter-Affidavit
[15] [14]

corroborated SPO1 Dizons allegation as to how Sr. Supt. Lansangan summoned and ordered them

to refute the allegations made against them, the significant

portions of which read: 7. Principally on the basis of the Salaysay of Richard Madrideo attached Annex A to the Affidavit of Carol Ortega Fernan dated September 22, 2001, and on the basis of the Sinumpaang Salaysay of Ricky A. Hista and of the Karagdagang Salaysay of Bobby Bacang and on the basis of our inquiry from others, we have good reason to believe that one claiming to be a representative of CRM Adjustment Corporation had indeed offered money and jobs to persons to give perjured statements to make it appear that there was arson and that we committed it. (The Affidavit of Carol Ortega Fernan, together with the Salaysay of Richard Madrideo as Annex A thereto, the Sinumpaang Salaysay of Ricky A. Hista and the Karagdagang Salaysay of Bobby Bacang were all submitted last September 22, 2001 to the Inter Agency Anti-Arson Task Force, Office of the Secretary, Department of the Interior and Local Government. 8. We would like to stress the fact that during the supposed investigation of this arson case by complainant rd 3 Regional Criminal Investigation and Detection Group, not one of us was invited by complainant to answer the allegations of witnesses against us. As far as we know, complainant did not even make an ocular inspection of the place where fire occurred. 9. Although the CIDG investigators were allegedly informed by Mrs. June Go, a clerk of Sanyoware, that nobody could assist the team in the ocular inspection, said investigators did not proceed to conduct an ocular inspection when they actually did not need any assistance and when nobody was preventing them from conducting the inspection.

Earl Louie

People vs Gabo

10. Although Senior Police Officer Regino Raquipiso claims that when he and SPO1 John Tabago returned to the factory, the ocular inspection was not pushed through for alleged lack of clearance from the company owners, there is no showing that said police officers insisted or demanded to conduct then and there an ocular inspection. 11. Apparently, complainant solely relied on the statements of Jaime Kalaw, Raymond Dy and Richard Madrideo in deciding to file the case at bar against us. 12. Richard Madrideo executed a Sinumpaang Salaysay before SPO4 Regino D. Raquipiso, Jr. last June 29, 2001 wherein he claims, among others, that there was a simultaneous fire that occurred in two places in Sanyoware warehouse and in a place in Unitedware. However, said claim is a blatant lie and perjured statement. 13. In his Salaysay (Annex A to the Affidavit of Carol Ortega Fernan submitted last September 22, 2001 to the Inter Agency Anti-Arson Task Force), Richard Madrideo admitted to the fact that he received the sum of P1,000.00 from Atty. Lugtu and that he subsequently received another sum of P15,000.00 from Atty. Lugtu. Richard Madrideo was also given a cellphone and was promised a job. According to said Salaysay, Atty. Lugtu instructed Madrideo to state, among others, in his Salaysay that Madrideo saw a simultaneous fire that occurred in two sides of the plant of Sanyoware. 14. In the Karagdagang Salaysay of Richard Madrideo, he repudiated his Salaysay by claiming that he was threatened and coerced by Respondents into executing said Salaysay. Said claim is a blatant lie. In essence, the story contained in the Karagdagang Salaysay regarding alleged threats and coercion is nothing but a fabricated lie for the truth of the matter being that his Salaysay was executed by him freely and voluntarily last July 30, 2001 at the conference room of Sanyoware. He was not threatened by anyone. He was neither paid nor promised any consideration for executing said Salaysay. 15. At any rate, I, Wilson Ting, and the security guards on duty can attest to the fact that fire started at the warehouse of Unitedware and that it did not occur simultaneously in different places. 16. In the Sworn Statement of Raymond Dy, he claims that Richard Madrideo had told him that while the fire was on going at the Unitedware warehouse, Madrideo saw the fire on top of the stock piles inside the Sanyoware warehouse aside from that fire at the Unitedware. However, Jaime Kalaw, who was allegedly informed about the fire by Raymond Dy, did not mention in his Sworn Statement about any simultaneous occurrence of the fire in different places. Jaime Kalaw even further stated in his Sworn Statement that upon his inquiry from the employees, he was allegedly told that the fire originated from Unitedware warehouse that spread to Sanyoware warehouse. 17. The allegation of Jaime Kalaw in his Sworn Statement that all circuit breakers were off position so that there was no flow of electric current that may cause fire on the warehouses and the allegation of Raymond Dy that during his roving before the fire, all the lights were off are not true for the truth being that management had required that some lights be put on every night in all the warehouses so that they can be well guarded. Besides, I, Wilson Ting, and the guards on duty can attest to the fact that there were lights in all the warehouses during the subject incident. 18. Raymond Dy claims that the keys were usually kept by the guard on duty, but that on this occasion, he learned from Shandra Amistad, a stay-in helper, that the keys were then kept by Wilson Ting. Obviously, said claim is based on hearsay and thus, should not be given any credence and besides, I, Wilson Ting, deny said claim for the truth of the matter being that the keys of Sanyoware are kept inside its main office and are not kept by the guard on duty. 19. Raymond Dy also claims that the lights were 3 to 4 meters away from the stocks, so that it could be impossible that stocks will be caught by fire if and when the lights or electrical system leak down. However, said claim is not true for the fact of the matter is that in the Unitedware warehouse and in Sanyoware warehouse, there were so much pile[s] of stocks that some pile[s] almost reached the lights. 20. There is also no truth to the allegation of Raymond Dy that a week before the fire, saleable finished products from Sanyoware and Unitedware were removed and transferred toSanyo City warehouse. There is also no

Earl Louie

People vs Gabo

truth to the allegation that non-useable components were removed from Sanyo City and transferred a week before the fire to the warehouses that got burned. Likewise, there is no truth that Charles Lee gave a deadline until Saturday (May 12) to transfer non-useable components to the burned warehouses. Said allegations are all fabricated lies designed to make it appear that there was arson. 21. Long before the subject incident, I, Wilson Ting, had ordered to have the stock piles that were in between the steel gate dividing Unitedware and Sanyoware warehouses moved, not to have a pathway, but for the purpose of closing the said steel gate. After said stock piles were moved, the steel gate was padlocked. 22. There was nothing extraordinary or irregular for several delivery trucks filled with stocks to stay at the parking area for the night and to leave very early in the morning to avoid traffic. Considering the huge volume of deliveries being made regularly by Sanyoware and Unitedware, delivery trucks with finished products were often times parked in the evening and during Sundays and holidays at the compound of Sanyoware and they usually moved out very early in the morning from Monday to Saturday. Thus, there was nothing extraordinary or irregular for some delivery trucks with stocks at the parking area on the night of May 13, 2001, considering especially that it was a Sunday. 23. Being the operations manager of Sanyoware, I have no fixed time and schedule of work. Even on a Sunday or holiday, I, Wilson Ting[,] sometimes visit the plant. Thus, there was nothing unusual that I, Wilson Ting, went to Sanyoware last May 13, 2001. Due to several incidents of thefts that took place inside the compound of Sanyoware and because of reports that the delivery trucks at the parking lot might contain some items that were not included in the inventory for delivery, I, Wilson Ting, as operations manager, decided to be at Sanyoware on that Sunday (May 13, 2001) principally to check the goods inside the delivery trucks. With the help of security guards Bobby Bacang and Ricky Hista, I, Wilson Ting, checked the goods in all the delivery trucks. 24. Being the President and practically the owner of Unitedware, a marketing area of Sanyoware and the lessee of Sanyowares warehouse, I, (Edward Yao), visit Sanyoware and Unitedware from time to time. 25. As my (Edward Yaos) mother-in-law asked from me (Edward Yao) some chairs and drawers, I (Edward Yao) drove my Pajero and went to Sanyoware. I (Edward Yao) called up Wilson Ting and informed him that Ill be getting some chairs and drawers from Sanyoware for my mother-in-law. From the plant of Sanyoware, I (Edward Yao) got some chairs and drawers. When said chairs and drawers could not fit in my (Edward Yao) [P]ajero, I (Edward Yao) left to get a van. I (Edward Yao) came back later driving a van where the said chairs and drawers were placed. I (Edward Yao) brought said chairs and drawers to my mother-in-law who selected and got only some items and so, I (Edward Yao) returned to Sanyoware the remaining items. Before I (Edward Yao) left again, Wilson Ting asked me to come back for some chat and so, I (Edward Yao) returned in my [P]ajero. However, after chatting with Wilson Ting, I (Edward Yao) left at around 9:00 oclock in the evening of May 13, 2001. Thus, just before the incident when the fire occurred, I (Edward Yao) was not in the compound of Sanyoware. 26. There is no truth, however, to the claim that I (Edward Yao) had entered the warehouse of Unitedware and that I (Edward Yao) got a rectangular shape black object from my vehicle while inside the warehouse for the truth of the matter being that I (Edward Yao) did not enter said warehouse and I (Edward Yao) did not get any object from my vehicle. I (Edward Yao) got the said chairs and drawers from the plant of Sanyoware. 27. There is no truth that the company is suffering losses even before the fire occurred. The loan of Sanyoware with Metrobank is fully secured by a real estate mortgage wherein the value of the real estate, together with the improvements thereon that was mortgaged is more or less double the amount of the said loan and, thus, said real estate value is more than sufficient to cover said loan of Sanyoware. On the other hand, the loan with Equitable Bank is also fully secured by a real estate mortgage. 28. Before the subject incident, Sanyoware was making profits. There was no year that Sanyoware incurred losses. Its business was going every year. Prior to the subject incident, the record of Sanyoware with the banks was quite good.

Earl Louie

People vs Gabo

29. Likewise, prior to the fire, Unitedware was steadily growing. Every year, its profit continued to go up. Last year, Unitedware made a huge profit from its operation and it is expected that, despite the fire that burned the warehouses, Unitedware will still make a good profit this year. 30. Complainant did not conduct any investigation, except to get the statements of its witnesses: Madrideo, Kalaw and Dy. Likewise, the Inter Agency Anti-Arson Task Force did not also conduct any investigation, except in essence to ask the witnesses of complainant to identify under oath their sworn statements executed before the complainant and to ask respondents to submit their sworn statements and later to identify the same under oath. 31. On the other hand, the elements of Bocaue Fire Station and OPFM Bulacan BFP Region 3 Intel and Inves Section conducted a thorough investigation of the origin of the fire. Statements of security guards Bobby A. Bacang and Mark Anthony Gabay were taken. Statement of the operations manager Wilson Ting was also taken. The subject place was inspected. Pictures were taken. Specimens were obtained from the place where fire occurred and submitted to the laboratory for examination. Said elements undertook other activities in line with proper [16] investigation.

After preliminary investigation, then State Prosecutor Carlos C. Pormento issued a Resolution, reads:

[17]

the dispositive portion of which

WHEREFORE, premises considered, it is respectfully recommended that an information for Destructive Arson be filed against Wilson Ting, Edward Yao, Willy So Tan and Carol Ortega. That the case against Samson Ting be dismissed for lack of sufficient evidence to indict him under the charge. As to the charge of Accessories against herein three (3) Fire Officers, let that case be remanded to TF-IATF for [18] further investigation.

Pursuant to the foregoing Resolution, an Information

[19]

for Arson was filed against Wilson Cua Ting, Edward Ngo Yao, Willy So

Tan, Carol F. Ortega, John Doe and Peter Doe, of the crime of arson, to wit: That on or about May 14, 2001, in the Municipality of Bocaue, Province of Bulacan, and within the jurisdiction of this Honorable Court, the above-named accused, conspiring and confederating and mutually helping one another, acting in common accord, did then and there, willfully, unlawfully, and feloniously, destroy the warehouses known as Sanyoware Plastic Products Manufacturing Plant and New Unitedware Marketing Corporation, including the stocks of raw materials and finish products, machineries and various equipments by maliciously burning the same for the purpose of concealing or destroying evidence of another violation of law, and to conceal bankruptcy to defraud creditors and to collect from insurance. CONTRARY TO LAW.
[20]

The Information was raffled to Branch XI, Regional Trial Court (RTC) of Malolos Bulacan, 3 Judicial Region. The case was docketed as Criminal Case No. 300-47M 2002.

rd

Earl Louie

People vs Gabo

Prior to the arraignment of respondents and before warrants of arrest could be issued, respondents filed a Motion to Conduct Hearing to Determine Probable Cause and to Hold in Abeyance the Issuance of Warrant of Arrest Pending Determination of Probable Cause.
[21]

On February 27, 2002, the RTC issued an Order

[22]

dismissing the case, the dispositive portion of which reads:

Accordingly, for lack of probable cause, the instant case is DISMISSED as ordained under Sec. 6, Rule 112 of the Revised Rules of Criminal Procedure. SO ORDERED.
[23]

The RTC applied the equipoise rule in dismissing the case, because of its observation that the sworn statements submitted by petitioner and respondents contained contradictory positions.

Aggrieved, petitioner filed a Motion for Reconsideration, 25, 2002.

[24]

which was, however, denied by the RTC in an Order

[25]

dated March

On August 8, 2002, petitioner filed a petition for certiorari before the CA docketed as CA-G.R. SP No. 71985. On July 24, 2003, the CA issued a Decision denying the petition, the dispositive portion of which reads: WHEREFORE, premises considered, there being no grave abuse of discretion committed by the public respondent, the assailed Orders dated February 27, 2002 and March 25, 2002 are hereby AFFIRMED in toto and the present petition is hereby DENIED DUE COURSE and is, accordingly, DISMISSED for lack of merit. SO ORDERED.
[26]

Petitioner then filed a Motion for Reconsideration, which was, however, denied by the CA in a Resolution 2003.

[27]

dated October 3,

Hence, this instant petition, with petitioner raising the following ground for this Courts consideration, to wit: THE COURT OF APPEALS PATENTLY AND GROSSLY ABUSED ITS DISCRETION AMOUNTING TO LACK OR EXCESS OF [28] JURISDICTION IN ADOPTING THE EQUIPOISE RULE IN THE CASE AT BAR.

Before anything else, this Court shall address a procedural issue raised by respondents that certiorari does not lie considering that such special civil action is not and cannot be a substitute for an appeal, or more importantly, a lapsed appeal.
[29]

Earl Louie

People vs Gabo

Respondents position is well taken.

It is well settled that a special civil action for certiorari under Rule 65 of the Rules of Court lies only when, there is no appeal nor plain, speedy and adequate remedy in the ordinary course of law, and certiorari cannot be allowed when a party to a case fails to appeal a judgment despite the availability of that remedy,certiorari not being a substitute for a lost appeal.
[30]

A perusal of the records will show that petitioner received the assailed CA Resolution on October 10, 2003. From that time on, petitioner had 15 days, or until October 25, 2003, to file an appeal by way of a petition for review under Rule 45 of the Rules of Court. However, instead of filing the appeal on the last day of reglementary period, petitioner simply allowed it to lapse. Clearly, petitioner had an appeal, which under the circumstances was the adequate remedy in the ordinary course of law. On this point alone, petitioners petition must be dismissed, as herein petition is without a doubt a substitute for a lost appeal. In any case, even if this Court were to set aside the procedural infirmity of the petition, the same still fails on the merits.

In a petition for certiorari, the court must confine itself to the issue of whether or not respondent court lacked or exceeded its jurisdiction or committed grave abuse of discretion.
[31]

It is well to remember that there is a distinction between the preliminary inquiry, which determines probable cause for the issuance of a warrant of arrest, and the preliminary investigation proper, which ascertains whether the offender should be held for trial or be released. The determination of probable cause for purposes of issuing a warrant of arrest is made by the judge. The preliminary investigation proper whether or not there is reasonable ground to believe that the accused is guilty of the offense charged is the function of the investigating prosecutor.
[32]

Section 6, Rule 112 of the Revised Rules of Court provides:

SEC 6. When warrant of arrest may issue. xxxx (a) By the Regional Trial Court. Within (10) days from the filing of the complaint or information, the judge shall personally evaluate the resolution of the prosecutor and its supporting evidence. He may immediately dismiss the case if the evidence on record clearly fails to establish probable cause. If he finds probable cause, he shall issue a warrant of arrest, or a commitment order of the accused had already been arrested, pursuant to a warrant issued by the judge who conducted preliminary investigation or when the complaint or information was filed pursuant to Section 7 of this Rule. In case of doubt on the existence of probable cause, the judge may order the prosecutor to present additional evidence within five (5) days from notice and the issue must be resolved by the court within thirty [33] (30) days from the filing of the complaint or information.

Earl Louie

People vs Gabo
[34]

As enunciated in Baltazar v. People,

the task of the presiding judge when the Information is filed with the court is first and

foremost to determine the existence or non-existence of probable cause for the arrest of the accused. Probable cause is such set of facts and circumstances as would lead a reasonably discreet and prudent man to believe that the offense charged in the Information, or any offense included therein, has been committed by the person sought to be arrested. In determining probable cause, the average man weighs the facts and circumstances without resorting to the calibrations of the rules of evidence of which he has no technical knowledge. He relies on common sense. A finding of probable cause needs only to rest on evidence showing that, more likely than not, a crime has been committed and that it was committed by the accused. Probable cause demands more than suspicion; it requires less than evidence that would justify conviction.
[35]

The purpose of the mandate of the judge to first determine probable cause for the arrest

of the accused is to insulate from the very start those falsely charged with crimes from the tribulations, expenses and anxiety of a public trial.
[36]

Based on the foregoing, the RTC acted within its jurisdiction when it dismissed the case on lack of probable cause as the same is sanctioned under Section 6, Rule 112 of the Rules of Court. The penultimate question to be resolved then is was such exercise of jurisdiction attended by grave abuse of discretion?

Grave abuse of discretion implies such capricious and whimsical exercise of judgment as is equivalent to lack of jurisdiction, or in other words where the power is exercised in an arbitrary or despotic manner by reason of passion or personal hostility, and it must be so patent and gross as to amount to an evasion of positive duty or to a virtual refusal to perform the duty enjoined or to act at all in contemplation of law.
[37]

Petitioners main argument hinges on the propriety of the RTCs use of the equipoise rule in dismissing the case which was affirmed by the CA. Specifically, petitioner contends that the equipoise rule cannot be used by the RTC merely after the filing of the information, thus: Since there must be a proper determination of the presence or absence of evidence sufficient to support a conviction, i.e., proof beyond reasonable doubt, the equipoise rule shall properly come into play when the parties have already concluded the presentation of their respective evidence. It is only at this stage, not at any prior time and certainly not merely after the filing of the information, can the trial court assess and weigh the evidence of the parties and thereafter determine which party has the preponderance of evidence. If both parties fail to adduce evidence in support of their respective cases, an adverse decision would be rendered against the party which has the burden of [38] proof.

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 the inculpatory facts and

Earl Louie

People vs Gabo

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 suffice to produce a conviction.
[39]

To this Courts mind, the reliance of the RTC in the equipoise rule is misplaced as a review of previous Court decisions would show that the position of petitioner is in fact correct. The equipoise rule has been generally applied when the parties have already concluded the presentation of their respective evidence as shown in a plethora of cases such as Abarquez v. People, v. Leano.
[42] [40]

Tin v. People

[41]

and People

While the use of the equipoise rule was not proper under the circumstances of the case at bar, the same, however, does not equate to an abuse of discretion on the part of the RTC, but at most, merely an error of judgment. More importantly, this Court finds that the RTC had in fact complied with the requirement under the rules of personally evaluating the resolution of the prosecutor and its supporting evidence and that the assailed Order was arrived at after due consideration of the merits thereto, thus: By this statement of Madrideo, it would appear fire broke out in two (2) places, which, presupposes or implies that some sort of incendiary or flammable substances were ignited to start the fire. The investigation conducted by the Bocaue Fire Station, however, appears to have ruled out the use of incendiary or inflammable substances. Annex E of the Complaint, Chemistry Report No. C-054-2001 of the Bulacan Provincial Crime Laboratory Office indicated that the specimen submitted by the Bocaue Fire Station in connection with the fire in question was found negative of any flammable substance. This finding was never debunked or repudiated, which makes the misgivings of the police investigators about its veracity unfounded. Thus, pitted against the allegation of Madrideo, this physical evidence puts the truth of the latter in grave doubt. Physical evidence is evidence of the highest order. It speaks more eloquently than a hundred witnesses (People vs. Sacabin, 57 SCRA 707). Physical evidence are mute but eloquent manifestations of truth and they rate high in our hierarchy of trustworthy evidence (People vs. Uycoque, 124 SCRA 769). At this stage, it must be stressed that the Fire Investigation Report prepared by the Bocaue Fire Station (Annex D) and the Certification made by the Provincial Fire Marshall, Absalon Zipagan, point to the faulty wiring as the cause or origin (sic) of the conflagration at bar. The Office the Regional Fire Marshall also came out with the same findings. (Annexes B and C) All the above reports and investigation stand as the official report of the fire in question. Contrary to the Resolution, we find nothing in the respective sworn statements of Supt. Absalon Zipagan, Sr. Supt. Enrique Linsangan and Insp. Allan Barredo that deviated much less repudiated the aforesaid reports and findings. Far from impugning their own investigation, the three (3) fire officials simply narrated the steps that were taken at the provincial and regional levels in the investigation of the Sanyo fire. Needless to state, the investigation reports and findings carry the presumption that official duty has been regularly performed. A mere affidavit cannot overcome this presumption. (Transport Corporation vs. CA, 241 SCRA 77) Government officials are presumed to perform their functions with regularity and strong evidence is necessary to rebut this presumption. (Tata vs. Garcia, Jr., 243 SCRA 235) The significance of the above reports and findings cannot be overlooked. Note that F/CINSP. Absalon Zipagan, F/Insp. Allan Barredo and SPO1 Valeriano Dizon, Jr. were included as accessories in the complaint by the DILG, Inter Agency Anti-Arson Task Force but the State Prosecutor did not rule on their liability, which thus enhances all the more the probative value of the said reports and findings. This Court, likewise, noted that although the Inter Agency Anti Arson Task Force was quick to rule out faulty electrical wiring, it did note arrive at a definite theory how the fire started, leaving everything hanging in mid-air.

Earl Louie

People vs Gabo

This Court is also hard put to make out a case from the actuations of some of the accused before, during and after the fire. For one, the presence of Wilson Ting and Edward Yao in the Sanyo premises before the fire is not criminal per se. Both apparently have their own explanations, and following the equipoise rule as elucidated above, no adverse implications can be inferred therefrom. So are with the alleged utterances made by the accused during and after the fire, having been said in the midst of tenseful happening these can be attributed to their desperation over the loss of some of their properties. And, consistent with the equipoise rule, if ever said statements were uttered at [43] all, they cannot serve as evidence against the accused for the offense charged.

The conclusions of the RTC which led to the dismissal of the information against respondents cannot, in any sense, be characterized as outrageously wrong or manifestly mistaken, or whimsically or capriciously arrived at. The worst that may perhaps be said of it is that it is fairly debatable, and may even be possibly erroneous. But they cannot be declared to have been made with grave abuse of discretion.
[44]

Based on Section 6, Rule 112 of the Rules of Court, the RTC judge, upon the filing of an Information, has the following options: (1) dismiss the case if the evidence on record clearly failed to establish probable cause; (2) if he or she finds probable cause, issue a warrant of arrest; and (3) in case of doubt as to the existence of probable cause, order the prosecutor to present additional evidence within five days from notice, the issue to be resolved by the court within thirty days from the filing of the information.
[46] [45]

The judge is required to personally evaluate the resolution of the prosecutor and its supporting evidence. He may immediately dismiss the case if the evidence on record clearly fails to establish probable cause. To this Courts mind, the RTC had complied with its

duty of personally evaluating the supporting evidence of the prosecution before arriving at its decision of dismissing the case against respondents.

While petitioner mainly argues against the use of the equipoise rule, it cannot escape this Courts attention that ultimately petitioner is asking this Court to resolve the propriety of the dismissal of the case by the RTC, on the basis of the Information and the attached documents it had filed. This Court however, will defer to the findings of fact of the RTC, which are accorded great weight and respect, more so because the same were affirmed by the CA. In addition, it bears to stress that the instant case is a petition for certiorari where questions of fact are not entertained.
[47]

The sole office of writ of certiorari is the correction of errors of jurisdiction, including the commission of grave abuse of discretion amounting to lack of jurisdiction and does not include correction of public respondents evaluation of the evidence and factual findings based thereon.
[48]

An error of judgment that the court may commit in the exercise of its jurisdiction is not correctible
[49]

through the original special civil action of certiorari.

In any case, the dismissal of herein petition does not preclude petitioner from availing of any other action it deems appropriate under the premises. Double jeopardy cannot be invoked where the accused has not been arraigned and it was upon his express motion

Earl Louie

People vs Gabo
[50]

that the case was dismissed.

Moreover, while the absence of probable cause for the issuance of a warrant of arrest is a ground for
[51]

the dismissal of the case, the same does not result in the acquittal of the said accused.

WHEREFORE, premises considered, the petition is DISMISSED. The July 24, 2003 Decision and October 3, 2003 Resolution of the Court of Appeals, in CA-G.R. SP No. 71985, are AFFIRMED.

SO ORDERED.

Earl Louie

Southern Hemisphere vs KMU

G.R. No. 178552

October 5, 2010

SOUTHERN HEMISPHERE ENGAGEMENT NETWORK, INC., on behalf of the South-South Network (SSN) for Non-State Armed Group Engagement, and ATTY. SOLIMAN M. SANTOS, JR., Petitioners, vs. ANTI-TERRORISM COUNCIL, THE EXECUTIVE SECRETARY, THE SECRETARY OF JUSTICE, THE SECRETARY OF FOREIGN AFFAIRS, THE SECRETARY OF NATIONAL DEFENSE, THE SECRETARY OF THE INTERIOR AND LOCAL GOVERNMENT, THE SECRETARY OF FINANCE, THE NATIONAL SECURITY ADVISER, THE CHIEF OF STAFF OF THE ARMED FORCES OF THE PHILIPPINES, AND THE CHIEF OF THE PHILIPPINE NATIONAL POLICE, Respondents. x - - - - - - - - - - - - - - - - - - - - - - -x G.R. No. 178554 KILUSANG MAYO UNO (KMU), represented by its Chairperson Elmer Labog, NATIONAL FEDERATION OF LABOR UNIONS-KILUSANG MAYO UNO (NAFLU-KMU), represented by its National President Joselito V. Ustarez and Secretary General Antonio C. Pascual, and CENTER FOR TRADE UNION AND HUMAN RIGHTS, represented by its Executive Director Daisy Arago, Petitioners, vs. HON. EDUARDO ERMITA, in his capacity as Executive Secretary, NORBERTO GONZALES, in his capacity as Acting Secretary of National Defense, HON. RAUL GONZALES, in his capacity as Secretary of Justice, HON. RONALDO PUNO, in his capacity as Secretary of the Interior and Local Government, GEN. HERMOGENES ESPERON, in his capacity as AFP Chief of Staff, and DIRECTOR GENERAL OSCAR CALDERON, in his capacity as PNP Chief of Staff, Respondents. x - - - - - - - - - - - - - - - - - - - - - - -x G.R. No. 178581 BAGONG ALYANSANG MAKABAYAN (BAYAN), GENERAL ALLIANCE BINDING WOMEN FOR REFORMS, INTEGRITY, EQUALITY, LEADERSHIP AND ACTION (GABRIELA), KILUSANG MAGBUBUKID NG PILIPINAS (KMP), MOVEMENT OF CONCERNED CITIZENS FOR CIVIL LIBERTIES (MCCCL), CONFEDERATION FOR UNITY, RECOGNITION AND ADVANCEMENT OF GOVERNMENT EMPLOYEES (COURAGE), KALIPUNAN NG DAMAYANG MAHIHIRAP (KADAMAY), SOLIDARITY OF CAVITE WORKERS, LEAGUE OF FILIPINO STUDENTS (LFS), ANAKBAYAN, PAMBANSANG LAKAS NG KILUSANG MAMAMALAKAYA (PAMALAKAYA), ALLIANCE OF CONCERNED TEACHERS (ACT), MIGRANTE, HEALTH ALLIANCE FOR DEMOCRACY (HEAD), AGHAM, TEOFISTO GUINGONA, JR., DR. BIENVENIDO LUMBERA, RENATO CONSTANTINO, JR., SISTER MARY JOHN MANANSAN OSB, DEAN CONSUELO PAZ, ATTY. JOSEFINA LICHAUCO, COL. GERRY CUNANAN (ret.), CARLITOS SIGUION-REYNA, DR. CAROLINA PAGADUAN-ARAULLO, RENATO REYES, DANILO RAMOS, EMERENCIANA DE LESUS, RITA BAUA, REY CLARO CASAMBRE, Petitioners, vs. GLORIA MACAPAGAL-ARROYO, in her capacity as President and Commander-in-Chief, EXECUTIVE SECRETARY EDUARDO ERMITA, DEPARTMENT OF JUSTICE SECRETARY RAUL GONZALES, DEPARTMENT OF FOREIGN AFFAIRS SECRETARY ALBERTO ROMULO, DEPARTMENT OF NATIONAL DEFENSE ACTING SECRETARY NORBERTO GONZALES, DEPARTMENT OF INTERIOR AND LOCAL GOVERNMENT SECRETARY RONALDO PUNO. DEPARTMENT OF FINANCE SECRETARY MARGARITO TEVES, NATIONAL SECURITY ADVISER NORBERTO GONZALES, THE NATIONAL INTELLIGENCE COORDINATING AGENCY (NICA), THE NATIONAL BUREAU OF INVESTIGATION (NBI), THE BUREAU OF IMMIGRATION, THE OFFICE OF CIVIL DEFENSE, THE INTELLIGENCE SERVICE OF THE ARMED FORCES OF THE PHILIPPINES (ISAFP), THE ANTI-MONEY LAUNDERING COUNCIL (AMLC), THE PHILIPPINE CENTER ON TRANSNATIONAL CRIME, THE CHIEF OF THE PHILIPPINE NATIONAL POLICE GEN. OSCAR CALDERON, THE PNP, including its intelligence and investigative elements, AFP CHIEF GEN. HERMOGENES ESPERON, Respondents. x - - - - - - - - - - - - - - - - - - - - - - -x G.R. No. 178890 KARAPATAN, ALLIANCE FOR THE ADVANCEMENT OF PEOPLE'S RIGHTS, represented herein by Dr. Edelina de la Paz, and representing the following organizations: HUSTISYA, represented by Evangeline Hernandez and also on her own behalf; DESAPARECIDOS,

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Southern Hemisphere vs KMU

represented by Mary Guy Portajada and also on her own behalf, SAMAHAN NG MGA EX-DETAINEES LABAN SA DETENSYON AT PARA SA AMNESTIYA (SELDA), represented by Donato Continente and also on his own behalf, ECUMENICAL MOVEMENT FOR JUSTICE AND PEACE (EMJP), represented by Bishop Elmer M. Bolocon, UCCP, and PROMOTION OF CHURCH PEOPLE'S RESPONSE, represented by Fr. Gilbert Sabado, OCARM, Petitioners, vs. GLORIA MACAPAGAL-ARROYO, in her capacity as President and Commander-in-Chief, EXECUTIVE SECRETARTY EDUARDO ERMITA, DEPARTMENT OF JUSTICE SECRETARY RAUL GONZALEZ, DEPARTMENT OF FOREIGN AFFAIRS SECRETARY ALBERTO ROMULO, DEPARTMENT OF NATIONAL DEFENSE ACTING SECRETARY NORBERTO GONZALES, DEPARTMENT OF INTERIOR AND LOCAL GOVERNMENT SECRETARY RONALDO PUNO, DEPARTMENT OF FINANCE SECRETARY MARGARITO TEVES, NATIONAL SECURITY ADVISER NORBERTO GONZALES, THE NATIONAL INTELLIGENCE COORDINATING AGENCY (NICA), THE NATIONAL BUREAU OF INVESTIGATION (NBI), THE BUREAU OF IMMIGRATION, THE OFFICE OF CIVIL DEFENSE, THE INTELLIGENCE SERVICE OF THE ARMED FORCES OF THE PHILIPPINES (ISAFP), THE ANTI-MONEY LAUNDERING COUNCIL (AMLC), THE PHILIPPINE CENTER ON TRANSNATIONAL CRIME, THE CHIEF OF THE PHILIPPINE NATIONAL POLICE GEN. OSCAR CALDERON, THE PNP, including its intelligence and investigative elements, AFP CHIEF GEN. HERMOGENES ESPERON,Respondents. x - - - - - - - - - - - - - - - - - - - - - - -x G.R. No. 179157 THE INTEGRATED BAR OF THE PHILIPPINES (IBP), represented by Atty. Feliciano M. Bautista, COUNSELS FOR THE DEFENSE OF LIBERTY (CODAL), SEN. MA. ANA CONSUELO A.S. MADRIGAL and FORMER SENATORS SERGIO OSMEA III and WIGBERTO E. TAADA, Petitioners, vs. EXECUTIVE SECRETARY EDUARDO ERMITA AND THE MEMBERS OF THE ANTI-TERRORISM COUNCIL (ATC), Respondents. x - - - - - - - - - - - - - - - - - - - - - - -x G.R. No. 179461 BAGONG ALYANSANG MAKABAYAN-SOUTHERN TAGALOG (BAYAN-ST), GABRIELA-ST, KATIPUNAN NG MGA SAMAHYANG MAGSASAKA-TIMOG KATAGALUGAN (KASAMA-TK), MOVEMENT OF CONCERNED CITIZENS FOR CIVIL LIBERTIES (MCCCL), PEOPLES MARTYRS, ANAKBAYAN-ST, PAMALAKAYA-ST, CONFEDERATION FOR UNITY, RECOGNITION AND ADVANCEMENT OF GOVERNMENT EMPLOYEES (COURAGE-ST), PAGKAKAISA'T UGNAYAN NG MGA MAGBUBUKID SA LAGUNA (PUMALAG), SAMAHAN NG MGA MAMAMAYAN SA TABING RILES (SMTR-ST), LEAGUE OF FILIPINO STUDENTS (LFS), BAYAN MUNA-ST, KONGRESO NG MGA MAGBUBUKID PARA SA REPORMANG AGRARYO KOMPRA, BIGKIS AT LAKAS NG MGA KATUTUBO SA TIMOG KATAGALUGAN (BALATIK), SAMAHAN AT UGNAYAN NG MGA MAGSASAKANG KABABAIHAN SA TIMOG KATAGALUGAN (SUMAMAKA-TK), STARTER, LOSOS RURAL POOR ORGANIZATION FOR PROGRESS & EQUALITY, CHRISTIAN NIO LAJARA, TEODORO REYES, FRANCESCA B. TOLENTINO, JANNETTE E. BARRIENTOS, OSCAR T. LAPIDA, JR., DELFIN DE CLARO, SALLY P. ASTRERA, ARNEL SEGUNE BELTRAN, Petitioners, vs. GLORIA MACAPAGAL-ARROYO, in her capacity as President and Commander-in-Chief, EXECUTIVE SECRETARY EDUARDO ERMITA, DEPARTMENT OF JUSTICE SECRETARY RAUL GONZALEZ, DEPARTMENT OF FOREIGN AFFAIRS SECRETARY ALBERTO ROMULO, DEPARTMENT OF NATIONAL DEFENSE ACTING SECRETARY NORBERTO GONZALES, DEPARTMENT OF INTERIOR AND LOCAL GOVERNMEN T SECRETARY RONALDO PUNO, DEPARTMENT OF FINCANCE SECRETARY MARGARITO TEVES, NATIONAL SECURITY ADVISER NORBERTO GONZALES, THE NATIONAL INTELLIGENCE COORDINATING AGENCY (NICA), THE NATIONAL BUREAU OF INVESTIGATION (NBI), THE BUREAU OF IMMIGRATION, THE OFFICE OF CIVIL DEFENSE, THE INTELLIGENCE SERVICE OF THE ARMED FORCES OF THE PHILIPPINES (ISAFP), THE ANTI-MONEY LAUNDERING COUNCIL (AMLC), THE PHILIPPINE CENTER ON TRANSNATIONAL CRIME, THE CHIEF OF THE PHILIPPINE NATIONAL POLICE GEN. OSCAR CALDERON, THE PNP, including its intelligence and investigative elements, AFP CHIEF GEN. HERMOGENES ESPERON, Respondents. DECISION CARPIO MORALES, J.:

Earl Louie

Southern Hemisphere vs KMU

Before the Court are six petitions challenging the constitutionality of Republic Act No. 9372 (RA 9372), "An Act to Secure the State and 1 Protect our People from Terrorism," otherwise known as the Human Security Act of 2007, signed into law on March 6, 2007. Following the effectivity of RA 9372 on July 15, 2007, petitioner Southern Hemisphere Engagement Network, Inc., a non-government organization, and Atty. Soliman Santos, Jr., a concerned citizen, taxpayer and lawyer, filed a petition for certiorari and prohibition on July 16, 2007 docketed as G.R. No. 178552. On even date, petitioners Kilusang Mayo Uno (KMU), National Federation of Labor Unions3 Kilusang Mayo Uno (NAFLU-KMU), and Center for Trade Union and Human Rights (CTUHR), represented by their respective officers who are also bringing the action in their capacity as citizens, filed a petition for certiorari and prohibition docketed as G.R. No. 178554. The following day, July 17, 2007, organizations Bagong Alyansang Makabayan (BAYAN), General Alliance Binding Women for Reforms, Integrity, Equality, Leadership and Action (GABRIELA), Kilusang Magbubukid ng Pilipinas (KMP), Movement of Concerned Citizens for Civil Liberties (MCCCL), Confederation for Unity, Recognition and Advancement of Government Employees (COURAGE), Kalipunan ng Damayang Mahihirap (KADAMAY), Solidarity of Cavite Workers (SCW), League of Filipino Students (LFS), Anakbayan, Pambansang Lakas ng Kilusang Mamamalakaya (PAMALAKAYA), Alliance of Concerned Teachers (ACT), Migrante, Health Alliance for Democracy (HEAD), 4 and Agham, represented by their respective officers, and joined by concerned citizens and taxpayers Teofisto Guingona, Jr., Dr. Bienvenido Lumbera, Renato Constantino, Jr., Sister Mary John Manansan, OSB, Dean Consuelo Paz, Atty. Josefina Lichauco, Retired Col. Gerry Cunanan, Carlitos Siguion-Reyna, Dr. Carolina Pagaduan-Araullo, Renato Reyes, Danilo Ramos, Emerenciana de Jesus, Rita Baua and Rey Claro Casambre filed a petition for certiorari and prohibition docketed as G.R. No. 178581. On August 6, 2007, Karapatan and its alliance member organizations Hustisya, Desaparecidos, Samahan ng mga Ex-Detainees Laban sa Detensyon at para sa Amnestiya (SELDA), Ecumenical Movement for Justice and Peace (EMJP), and Promotion of Church Peoples 5 Response (PCPR), which were represented by their respective officers who are also bringing action on their own behalf, filed a petition for certiorari and prohibition docketed as G.R. No. 178890. On August 29, 2007, the Integrated Bar of the Philippines (IBP), Counsels for the Defense of Liberty (CODAL), Senator Ma. Ana Consuelo A.S. Madrigal, Sergio Osmea III, and Wigberto E. Taada filed a petition for certiorari and prohibition docketed as G.R. No. 179157. Bagong Alyansang Makabayan-Southern Tagalog (BAYAN-ST), other regional chapters and organizations mostly based in the Southern 7 8 Tagalog Region, and individuals followed suit by filing on September 19, 2007 a petition for certiorari and prohibition docketed as G.R. No. 179461 that replicates the allegations raised in the BAYAN petition in G.R. No. 178581. Impleaded as respondents in the various petitions are the Anti-Terrorism Council composed of, at the time of the filing of the petitions, Executive Secretary Eduardo Ermita as Chairperson, Justice Secretary Raul Gonzales as Vice Chairperson, and Foreign Affairs Secretary Alberto Romulo, Acting Defense Secretary and National Security Adviser Norberto Gonzales, Interior and Local Government Secretary Ronaldo Puno, and Finance Secretary Margarito Teves as members. All the petitions, except that of the IBP, also impleaded Armed Forces of the Philippines (AFP) Chief of Staff Gen. Hermogenes Esperon and Philippine National Police (PNP) Chief Gen. Oscar Calderon. The Karapatan, BAYAN and BAYAN-ST petitions likewise impleaded President Gloria Macapagal-Arroyo and the support agencies for the Anti-Terrorism Council like the National Intelligence Coordinating Agency, National Bureau of Investigation, Bureau of Immigration, Office of Civil Defense, Intelligence Service of the AFP, Anti-Money Laundering Center, Philippine Center on Transnational Crime, and the PNP intelligence and investigative elements. The petitions fail. Petitioners resort to certiorari is improper Preliminarily, certiorari does not lie against respondents who do not exercise judicial or quasi-judicial functions. Section 1, Rule 65 of the Rules of Court is clear: Section 1. Petition for certiorari.When any tribunal, board or officer exercising judicial or quasi-judicial functionshas acted without or in excess of its or his jurisdiction, or with grave abuse of discretion amounting to lack or excess of jurisdiction, and there is no appeal, nor any plain, speedy, and adequate remedy in the ordinary course of law, a person aggrieved thereby may file a verified petition in the
9 6 2

Earl Louie

Southern Hemisphere vs KMU

proper court, alleging the facts with certainty and praying that judgment be rendered annulling or modifying the proceedings of such tribunal, board or officer, and granting such incidental reliefs as law and justice may require. (Emphasis and underscoring supplied) Parenthetically, petitioners do not even allege with any modicum of particularity how respondents acted without or in excess of their respective jurisdictions, or with grave abuse of discretion amounting to lack or excess of jurisdiction. The impropriety of certiorari as a remedy aside, the petitions fail just the same. In constitutional litigations, the power of judicial review is limited by four exacting requisites, viz: (a) there must be an actual case or controversy; (b) petitioners must possess locus standi; (c) the question of constitutionality must be raised at the earliest opportunity; 10 and (d) the issue of constitutionality must be the lis mota of the case. In the present case, the dismal absence of the first two requisites, which are the most essential, renders the discussion of the last two superfluous. Petitioners lack locus standi Locus standi or legal standing requires a personal stake in the outcome of the controversy as to assure that concrete adverseness which 11 sharpens the presentation of issues upon which the court so largely depends for illumination of difficult constitutional questions. Anak Mindanao Party-List Group v. The Executive Secretary summarized the rule on locus standi, thus: Locus standi or legal standing has been defined as a personal and substantial interest in a case such that the party has sustained or will sustain direct injury as a result of the governmental act that is being challenged. The gist of the question on standing is whether a party alleges such personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which the court depends for illumination of difficult constitutional questions. [A] party who assails the constitutionality of a statute must have a direct and personal interest. It must show not only that the law or any governmental act is invalid, but also that it sustained or is in immediate danger of sustaining some direct injury as a result of its enforcement, and not merely that it suffers thereby in some indefinite way. It must show that it has been or is about to be denied some right or privilege to which it is lawfully entitled or that it is about to be subjected to some burdens or penalties by reason of the statute or act complained of. For a concerned party to be allowed to raise a constitutional question, it must show that (1) it has personally suffered some actual or threatened injury as a result of the allegedly illegal conduct of the government, (2) the injury is fairly traceable to the challenged action, and (3) the injury is likely to be redressed by a favorable action. (emphasis and underscoring supplied.) Petitioner-organizations assert locus standi on the basis of being suspected "communist fronts" by the government, especially the military; whereas individual petitioners invariably invoke the "transcendental importance" doctrine and their status as citizens and taxpayers. While Chavez v. PCGG holds that transcendental public importance dispenses with the requirement that petitioner has experienced or is in actual danger of suffering direct and personal injury, cases involving the constitutionality of penal legislation belong to an altogether different genus of constitutional litigation. Compelling State and societal interests in the proscription of harmful conduct, as will later be elucidated, necessitate a closer judicial scrutiny of locus standi. Petitioners have not presented any personal stake in the outcome of the controversy. None of them faces any charge under RA 9372. KARAPATAN, Hustisya, Desaparecidos, SELDA, EMJP and PCR, petitioners in G.R. No. 178890, allege that they have been subjected to "close security surveillance by state security forces," their members followed by "suspicious persons" and "vehicles with dark windshields," and their offices monitored by "men with military build." They likewise claim that they have been branded as "enemies of 14 the [S]tate."
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Southern Hemisphere vs KMU

Even conceding such gratuitous allegations, the Office of the Solicitor General (OSG) correctly points out that petitioners have yet to show any connection between the purported "surveillance" and the implementation of RA 9372. BAYAN, GABRIELA, KMP, MCCCL, COURAGE, KADAMAY, SCW, LFS, Anakbayan, PAMALAKAYA, ACT, Migrante, HEAD and Agham, petitioner-organizations in G.R. No. 178581, would like the Court to take judicial notice of respondents alleged action of tagging them as militant organizations fronting for the Communist Party of the Philippines (CPP) and its armed wing, the National Peoples Army (NPA). The tagging, according to petitioners, is tantamount to the effects of proscription without following the procedure under the 15 law. The petition of BAYAN-ST, et al. in G.R. No. 179461 pleads the same allegations. The Court cannot take judicial notice of the alleged "tagging" of petitioners. Generally speaking, matters of judicial notice have three material requisites: (1) the matter must be one of common and general knowledge; (2) it must be well and authoritatively settled and not doubtful or uncertain; and (3) it must be known to be within the limits of the jurisdiction of the court. The principal guide in determining what facts may be assumed to be judicially known is that of notoriety. Hence, it can be said that judicial notice is limited to facts evidenced by public records and facts of general notoriety. Moreover, a judicially noticed fact must be one not subject to a reasonable dispute in that it is either: (1) generally known within the territorial jurisdiction of the trial court; or (2) capable of accurate and ready determination by resorting to sources whose accuracy cannot reasonably be questionable. Things of "common knowledge," of which courts take judicial matters coming to the knowledge of men generally in the course of the ordinary experiences of life, or they may be matters which are generally accepted by mankind as true and are capable of ready and unquestioned demonstration. Thus, facts which are universally known, and which may be found in encyclopedias, dictionaries or other publications, are judicially noticed, provided, they are of such universal notoriety and so generally understood that they may be regarded as forming part of the common knowledge of every person. As the common knowledge of man ranges far and wide, a wide variety of particular facts have been judicially noticed as being matters of common knowledge. But a court cannot take judicial notice of any fact which, in part, is dependent on the existence or non-existence of a fact of which the court has no constructive 16 knowledge. (emphasis and underscoring supplied.) No ground was properly established by petitioners for the taking of judicial notice. Petitioners apprehension is insufficient to substantiate their plea. That no specific charge or proscription under RA 9372 has been filed against them, three years after its effectivity, belies any claim of imminence of their perceived threat emanating from the so-called tagging. The same is true with petitioners KMU, NAFLU and CTUHR in G.R. No. 178554, who merely harp as well on their supposed "link" to the CPP and NPA. They fail to particularize how the implementation of specific provisions of RA 9372 would result in direct injury to their organization and members. While in our jurisdiction there is still no judicially declared terrorist organization, the United States of America (US) and the European 18 Union (EU) have both classified the CPP, NPA and Abu Sayyaf Group as foreign terrorist organizations. The Court takes note of the joint statement of Executive Secretary Eduardo Ermita and Justice Secretary Raul Gonzales that the Arroyo Administration would adopt the 19 US and EU classification of the CPP and NPA as terrorist organizations. Such statement notwithstanding, there is yet to be filed before the courts an application to declare the CPP and NPA organizations as domestic terrorist or outlawed organizations under RA 9372. Again, RA 9372 has been in effect for three years now. From July 2007 up to the present, petitioner-organizations have conducted their activities fully and freely without any threat of, much less an actual, prosecution or proscription under RA 9372. Parenthetically, the Fourteenth Congress, in a resolution initiated by Party-list Representatives Saturnino Ocampo, Teodoro Casio, 20 Rafael Mariano and Luzviminda Ilagan, urged the government to resume peace negotiations with the NDF by removing the impediments thereto, one of which is the adoption of designation of the CPP and NPA by the US and EU as foreign terrorist 21 organizations. Considering the policy statement of the Aquino Administration of resuming peace talks with the NDF, the government is not imminently disposed to ask for the judicial proscription of the CPP-NPA consortium and its allied organizations. More important, there are other parties not before the Court with direct and specific interests in the questions being raised. Of recent 23 development is the filing of the first case for proscription under Section 17 of RA 9372 by the Department of Justice before the Basilan 24 Regional Trial Court against the Abu Sayyaf Group. Petitioner-organizations do not in the least allege any link to the Abu Sayyaf Group.
22 17

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Southern Hemisphere vs KMU

Some petitioners attempt, in vain though, to show the imminence of a prosecution under RA 9372 by alluding to past rebellion charges against them. In Ladlad v. Velasco, the Court ordered the dismissal of rebellion charges filed in 2006 against then Party-List Representatives Crispin Beltran and Rafael Mariano of Anakpawis, Liza Maza of GABRIELA, and Joel Virador, Teodoro Casio and Saturnino Ocampo of Bayan Muna. Also named in the dismissed rebellion charges were petitioners Rey Claro Casambre, Carolina Pagaduan-Araullo, Renato Reyes, Rita Baua, Emerencia de Jesus and Danilo Ramos; and accused of being front organizations for the Communist movement were 26 petitioner-organizations KMU, BAYAN, GABRIELA, PAMALAKAYA, KMP, KADAMAY, LFS and COURAGE. The dismissed rebellion charges, however, do not save the day for petitioners. For one, those charges were filed in 2006, prior to the enactment of RA 9372, and dismissed by this Court. For another, rebellion is defined and punished under the Revised Penal Code. Prosecution for rebellion is not made more imminent by the enactment of RA 9372, nor does the enactment thereof make it easier to charge a person with rebellion, its elements not having been altered. Conversely, previously filed but dismissed rebellion charges bear no relation to prospective charges under RA 9372. It cannot be overemphasized that three years after the enactment of RA 9372, none of petitioners has been charged. Petitioners IBP and CODAL in G.R. No. 179157 base their claim of locus standi on their sworn duty to uphold the Constitution. The IBP zeroes in on Section 21 of RA 9372 directing it to render assistance to those arrested or detained under the law. The mere invocation of the duty to preserve the rule of law does not, however, suffice to clothe the IBP or any of its members with 27 standing. The IBP failed to sufficiently demonstrate how its mandate under the assailed statute revolts against its constitutional rights and duties. Moreover, both the IBP and CODAL have not pointed to even a single arrest or detention effected under RA 9372. Former Senator Ma. Ana Consuelo Madrigal, who claims to have been the subject of "political surveillance," also lacks locus standi. Prescinding from the veracity, let alone legal basis, of the claim of "political surveillance," the Court finds that she has not shown even the slightest threat of being charged under RA 9372. Similarly lacking in locus standi are former Senator Wigberto Taada and Senator Sergio Osmea III, who cite their being respectively a human rights advocate and an oppositor to the passage of RA 9372. Outside these gratuitous statements, no concrete injury to them has been pinpointed. Petitioners Southern Hemisphere Engagement Network and Atty. Soliman Santos Jr. in G.R. No. 178552 also conveniently state that the issues they raise are of transcendental importance, "which must be settled early" and are of "far-reaching implications," without mention of any specific provision of RA 9372 under which they have been charged, or may be charged. Mere invocation of human rights advocacy has nowhere been held sufficient to clothe litigants with locus standi. Petitioners must show an actual, or immediate danger of sustaining, direct injury as a result of the laws enforcement. To rule otherwise would be to corrupt the settled doctrine of locus standi, as every worthy cause is an interest shared by the general public. Neither can locus standi be conferred upon individual petitioners as taxpayers and citizens. A taxpayer suit is proper only when there is 28 an exercise of the spending or taxing power of Congress, whereas citizen standing must rest on direct and personal interest in the 29 proceeding. RA 9372 is a penal statute and does not even provide for any appropriation from Congress for its implementation, while none of the individual petitioner-citizens has alleged any direct and personal interest in the implementation of the law. It bears to stress that generalized interests, albeit accompanied by the assertion of a public right, do not establish locus standi. Evidence of a direct and personal interest is key. Petitioners fail to present an actual case or controversy By constitutional fiat, judicial power operates only when there is an actual case or controversy. Section 1. The judicial power shall be vested in one Supreme Court and in such lower courts as may be established by law.
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Southern Hemisphere vs KMU

Judicial power includes the duty of the courts of justice to settle actual controversies involving rights which are legally demandable and enforceable, and to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on 30 the part of any branch or instrumentality of the Government. (emphasis and underscoring supplied.) As early as Angara v. Electoral Commission, the Court ruled that the power of judicial review is limited to actual cases or controversies to be exercised after full opportunity of argument by the parties. Any attempt at abstraction could only lead to dialectics and barren legal questions and to sterile conclusions unrelated to actualities. An actual case or controversy means an existing case or controversy that is appropriate or ripe for determination, not conjectural or 32 anticipatory, lest the decision of the court would amount to an advisory opinion. Information Technology Foundation of the Philippines v. COMELEC cannot be more emphatic: [C]ourts do not sit to adjudicate mere academic questions to satisfy scholarly interest, however intellectually challenging. The controversy must be justiciabledefinite and concrete, touching on the legal relations of parties having adverse legal interests. In other words, the pleadings must show an active antagonistic assertion of a legal right, on the one hand, and a denial thereof on the other hand; that is, it must concern a real and not merely a theoretical question or issue. There ought to be an actual and substantial controversy admitting of specific relief through a decree conclusive in nature, as distinguished from an opinion advising what the law would be upon a hypothetical state of facts. (Emphasis and underscoring supplied) Thus, a petition to declare unconstitutional a law converting the Municipality of Makati into a Highly Urbanized City was held to be 34 premature as it was tacked on uncertain, contingent events. Similarly, a petition that fails to allege that an application for a license to operate a radio or television station has been denied or granted by the authorities does not present a justiciable controversy, and 35 merely wheedles the Court to rule on a hypothetical problem. The Court dismissed the petition in Philippine Press Institute v. Commission on Elections for failure to cite any specific affirmative 37 action of the Commission on Elections to implement the assailed resolution. It refused, in Abbas v. Commission on Elections, to rule on the religious freedom claim of the therein petitioners based merely on a perceived potential conflict between the provisions of the Muslim Code and those of the national law, there being no actual controversy between real litigants. The list of cases denying claims resting on purely hypothetical or anticipatory grounds goes on ad infinitum. The Court is not unaware that a reasonable certainty of the occurrence of a perceived threat to any constitutional interest suffices to provide a basis for mounting a constitutional challenge. This, however, is qualified by the requirement that there must be sufficient 38 facts to enable the Court to intelligently adjudicate the issues. Very recently, the US Supreme Court, in Holder v. Humanitarian Law Project, allowed the pre-enforcement review of a criminal statute, challenged on vagueness grounds, since plaintiffs faced a "credible threat of prosecution" and "should not be required to await 40 and undergo a criminal prosecution as the sole means of seeking relief." The plaintiffs therein filed an action before a federal court to 41 assail the constitutionality of the material support statute, 18 U.S.C. 2339B (a) (1), proscribing the provision of material support to organizations declared by the Secretary of State as foreign terrorist organizations. They claimed that they intended to provide support for the humanitarian and political activities of two such organizations. Prevailing American jurisprudence allows an adjudication on the merits when an anticipatory petition clearly shows that the challenged 42 prohibition forbids the conduct or activity that a petitioner seeks to do, as there would then be a justiciable controversy. Unlike the plaintiffs in Holder, however, herein petitioners have failed to show that the challenged provisions of RA 9372 forbid constitutionally protected conduct or activity that they seek to do. No demonstrable threat has been established, much less a real and existing one. Petitioners obscure allegations of sporadic "surveillance" and supposedly being tagged as "communist fronts" in no way approximate a 43 credible threat of prosecution. From these allegations, the Court is being lured to render an advisory opinion, which is not its function.
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Southern Hemisphere vs KMU

Without any justiciable controversy, the petitions have become pleas for declaratory relief, over which the Court has no original jurisdiction. Then again, declaratory actions characterized by "double contingency," where both the activity the petitioners intend to 44 undertake and the anticipated reaction to it of a public official are merely theorized, lie beyond judicial review for lack of ripeness. The possibility of abuse in the implementation of RA 9372 does not avail to take the present petitions out of the realm of the surreal and 45 merely imagined. Such possibility is not peculiar to RA 9372 since the exercise of any power granted by law may be abused. Allegations of abuse must be anchored on real events before courts may step in to settle actual controversies involving rights which are legally demandable and enforceable. A facial invalidation of a statute is allowed only in free speech cases, wherein certain rules of constitutional litigation are rightly excepted Petitioners assail for being intrinsically vague and impermissibly broad the definition of the crime of terrorism under RA 9372 in that terms like "widespread and extraordinary fear and panic among the populace" and "coerce the government to give in to an unlawful demand" are nebulous, leaving law enforcement agencies with no standard to measure the prohibited acts. Respondents, through the OSG, counter that the doctrines of void-for-vagueness and overbreadth find no application in the present case since these doctrines apply only to free speech cases; and that RA 9372 regulates conduct, not speech. For a jurisprudentially guided understanding of these doctrines, it is imperative to outline the schools of thought on whether the voidfor-vagueness and overbreadth doctrines are equally applicable grounds to assail a penal statute. Respondents interpret recent jurisprudence as slanting toward the idea of limiting the application of the two doctrines to free speech 47 48 cases. They particularly cite Romualdez v. Hon. Sandiganbayan and Estrada v. Sandiganbayan. The Court clarifies. At issue in Romualdez v. Sandiganbayan was whether the word "intervene" in Section 5 of the Anti-Graft and Corrupt Practices Act was intrinsically vague and impermissibly broad. The Court stated that "the overbreadth and the vagueness doctrines have special 50 application only to free-speech cases," and are "not appropriate for testing the validity of penal statutes." It added that, at any rate, 51 the challenged provision, under which the therein petitioner was charged, is not vague. While in the subsequent case of Romualdez v. Commission on Elections, the Court stated that a facial invalidation of criminal statutes is not appropriate, it nonetheless proceeded to conduct a vagueness analysis, and concluded that the therein subject election 53 54 offense under the Voters Registration Act of 1996, with which the therein petitioners were charged, is couched in precise language. The two Romualdez cases rely heavily on the Separate Opinion of Justice Vicente V. Mendoza in the Estradacase, where the Court found the Anti-Plunder Law (Republic Act No. 7080) clear and free from ambiguity respecting the definition of the crime of plunder. The position taken by Justice Mendoza in Estrada relates these two doctrines to the concept of a "facial" invalidation as opposed to an "as-applied" challenge. He basically postulated that allegations that a penal statute is vague and overbroad do not justify a facial review of its validity. The pertinent portion of the Concurring Opinion of Justice Mendoza, which was quoted at length in the main Estrada decision, reads: A facial challenge is allowed to be made to a vague statute and to one which is overbroad because of possible"chilling effect" upon protected speech. The theory is that "[w]hen statutes regulate or proscribe speech and no readily apparent construction suggests itself as a vehicle for rehabilitating the statutes in a single prosecution, the transcendent value to all society of constitutionally protected expression is deemed to justify allowing attacks on overly broad statutes with no requirement that the person making the attack demonstrate that his own conduct could not be regulated by a statute drawn with narrow specificity." The possible harm to society in permitting some unprotected speech to go unpunished is outweighed by the possibility that the protected speech of others may be deterred and perceived grievances left to fester because of possible inhibitory effects of overly broad statutes.
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Southern Hemisphere vs KMU

This rationale does not apply to penal statutes. Criminal statutes have general in terrorem effect resulting from their very existence, and, if facial challenge is allowed for this reason alone, the State may well be prevented from enacting laws against socially harmful conduct. In the area of criminal law, the law cannot take chances as in the area of free speech. The overbreadth and vagueness doctrines then have special application only to free speech cases. They are inapt for testing the validity of penal statutes. As the U.S. Supreme Court put it, in an opinion by Chief Justice Rehnquist, "we have not recognized an 'overbreadth' doctrine outside the limited context of the First Amendment." In Broadrick v. Oklahoma, the Court ruled that "claims of facial overbreadth have been entertained in cases involving statutes which, by their terms, seek to regulate only spoken words" and, again, that "overbreadth claims, if entertained at all, have been curtailed when invoked against ordinary criminal laws that are sought to be applied to protected conduct." For this reason, it has been held that "a facial challenge to a legislative act is the most difficult challenge to mount successfully, since the challenger must establish that no set of circumstances exists under which the Act would be valid." As for the vagueness doctrine, it is said that a litigant may challenge a statute on its face only if it is vague in all its possible applications. "A plaintiff who engages in some conduct that is clearly proscribed cannot complain of the vagueness of the law as applied to the conduct of others." In sum, the doctrines of strict scrutiny, overbreadth, and vagueness are analytical tools developed for testing "on their faces" statutes in free speech cases or, as they are called in American law, First Amendment cases. They cannot be made to do service when what is involved is a criminal statute. With respect to such statute, the established rule is that "one to whom application of a statute is constitutional will not be heard to attack the statute on the ground that impliedly it might also be taken as applying to other persons or other situations in which its application might be unconstitutional." As has been pointed out, "vagueness challenges in the First Amendment context, like overbreadth challenges typically produce facial invalidation, while statutes found vague as a matter of due process typically are invalidated [only] 'as applied' to a particular defendant." Consequently, there is no basis for petitioner's claim that this Court review the Anti-Plunder Law on its face and in its entirety. Indeed, "on its face" invalidation of statutes results in striking them down entirely on the ground that they might be applied to parties not before the Court whose activities are constitutionally protected. It constitutes a departure from the case and controversy requirement of the Constitution and permits decisions to be made without concrete factual settings and in sterile abstract contexts. But, as the U.S. Supreme Court pointed out in Younger v. Harris [T]he task of analyzing a proposed statute, pinpointing its deficiencies, and requiring correction of these deficiencies before the statute is put into effect, is rarely if ever an appropriate task for the judiciary. The combination of the relative remoteness of the controversy, the impact on the legislative process of the relief sought, and above all the speculative and amorphous nature of the required line-byline analysis of detailed statutes, . . . ordinarily results in a kind of case that is wholly unsatisfactory for deciding constitutional questions, whichever way they might be decided. For these reasons, "on its face" invalidation of statutes has been described as "manifestly strong medicine," to be employed "sparingly and only as a last resort," and is generally disfavored. In determining the constitutionality of a statute, therefore, its provisions which are alleged to have been violated in a case must be examined in the light of the conduct with which the defendant is 56 charged. (Underscoring supplied.) The confusion apparently stems from the interlocking relation of the overbreadth and vagueness doctrines as grounds for a facial or asapplied challenge against a penal statute (under a claim of violation of due process of law) or a speech regulation (under a claim of abridgement of the freedom of speech and cognate rights). To be sure, the doctrine of vagueness and the doctrine of overbreadth do not operate on the same plane. A statute or act suffers from the defect of vagueness when it lacks comprehensible standards that men of common intelligence must necessarily guess at its meaning and differ as to its application. It is repugnant to the Constitution in two respects: (1) it violates due process for failure to accord persons, especially the parties targeted by it, fair notice of the conduct to avoid; and (2) it leaves law enforcers unbridled discretion in carrying out its provisions and becomes an arbitrary flexing of the Government 57 muscle. The overbreadth doctrine, meanwhile, decrees that a governmental purpose to control or prevent activities constitutionally subject to state regulations may not be achieved by means which sweep unnecessarily broadly and thereby invade the area of protected 58 freedoms.

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Southern Hemisphere vs KMU

As distinguished from the vagueness doctrine, the overbreadth doctrine assumes that individuals will understand what a statute 59 prohibits and will accordingly refrain from that behavior, even though some of it is protected. A "facial" challenge is likewise different from an "as-applied" challenge. Distinguished from an as-applied challenge which considers only extant facts affecting real litigants, a facialinvalidation is an examination of the entire law, pinpointing its flaws and defects, not only on the basis of its actual operation to the parties, but also on the assumption or prediction that its very existence may cause others not before the court to refrain from constitutionally protected 60 speech or activities. Justice Mendoza accurately phrased the subtitle in his concurring opinion that the vagueness and overbreadth doctrines, as grounds for a facial challenge, are not applicable to penal laws. A litigant cannot thus successfully mount a facial challenge against a criminal statute on either vagueness or overbreadth grounds. The allowance of a facial challenge in free speech cases is justified by the aim to avert the "chilling effect" on protected speech, the 62 exercise of which should not at all times be abridged. As reflected earlier, this rationale is inapplicable to plain penal statutes that generally bear an "in terrorem effect" in deterring socially harmful conduct. In fact, the legislature may even forbid and penalize acts formerly considered innocent and lawful, so long as it refrains from diminishing or dissuading the exercise of constitutionally protected 63 rights. The Court reiterated that there are "critical limitations by which a criminal statute may be challenged" and "underscored that an on-its64 face invalidation of penal statutes x x x may not be allowed." [T]he rule established in our jurisdiction is, only statutes on free speech, religious freedom, and other fundamental rights may be facially challenged. Under no case may ordinary penal statutes be subjected to a facial challenge. The rationale is obvious. If a facial challenge to a penal statute is permitted, the prosecution of crimes may be hampered. No prosecution would be possible. A strong criticism against employing a facial challenge in the case of penal statutes, if the same is allowed, would effectively go against the grain of the doctrinal requirement of an existing and concrete controversy before judicial power may be appropriately exercised. A facial challenge against a penal statute is, at best, amorphous and speculative. It would, essentially, force the court to consider third parties who are not before it. As I have said in my opposition to the allowance of a facial challenge to attack penal statutes, such a test will impair the States ability to deal with crime. If warranted, there would be nothing that can hinder an accused from defeating the States power to prosecute on a mere showing that, as applied to third parties, the penal statute is vague or overbroad, notwithstanding that the law is clear as applied 65 to him. (Emphasis and underscoring supplied) It is settled, on the other hand, that the application of the overbreadth doctrine is limited to a facial kind of challenge and, owing to the given rationale of a facial challenge, applicable only to free speech cases. By its nature, the overbreadth doctrine has to necessarily apply a facial type of invalidation in order to plot areas of protected speech, inevitably almost always under situations not before the court, that are impermissibly swept by the substantially overbroad regulation. Otherwise stated, a statute cannot be properly analyzed for being substantially overbroad if the court confines itself only to facts as applied to the litigants. The most distinctive feature of the overbreadth technique is that it marks an exception to some of the usual rules of constitutional litigation. Ordinarily, a particular litigant claims that a statute is unconstitutional as applied to him or her; if the litigant prevails, the courts carve away the unconstitutional aspects of the law by invalidating its improper applications on a case to case basis. Moreover, challengers to a law are not permitted to raise the rights of third parties and can only assert their own interests. In overbreadth analysis, those rules give way; challenges are permitted to raise the rights of third parties; and the court invalidates the entire statute "on its face," not merely"as applied for" so that the overbroad law becomes unenforceable until a properly authorized court construes it more narrowly. The factor that motivates courts to depart from the normal adjudicatory rules is the concern with the "chilling;" deterrent effect of the overbroad statute on third parties not courageous enough to bring suit. The Court assumes that an overbroad laws "very existence may cause others not before the court to refrain from constitutionally protected speech or expression." An overbreadth ruling 66 is designed to remove that deterrent effect on the speech of those third parties. (Emphasis in the original omitted; underscoring supplied.)
61

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Southern Hemisphere vs KMU

In restricting the overbreadth doctrine to free speech claims, the Court, in at least two cases, observed that the US Supreme Court has 68 not recognized an overbreadth doctrine outside the limited context of the First Amendment, and that claims of facial overbreadth 69 70 have been entertained in cases involving statutes which, by their terms, seek to regulate only spoken words. In Virginia v. Hicks, it was held that rarely, if ever, will an overbreadth challenge succeed against a law or regulation that is not specifically addressed to speech or speech-related conduct. Attacks on overly broad statutes are justified by the "transcendent value to all society of 71 constitutionally protected expression." Since a penal statute may only be assailed for being vague as applied to petitioners, a limited vagueness analysis of the definition of "terrorism" in RA 9372 is legally impermissible absent an actual or imminent chargeagainst them While Estrada did not apply the overbreadth doctrine, it did not preclude the operation of the vagueness test on the Anti-Plunder 72 Law as applied to the therein petitioner, finding, however, that there was no basis to review the law "on its face and in its entirety." It 73 stressed that "statutes found vague as a matter of due process typically are invalidated only 'as applied' to a particular defendant." American jurisprudence instructs that "vagueness challenges that do not involve the First Amendment must be examined in light of the specific facts of the case at hand and not with regard to the statute's facial validity." For more than 125 years, the US Supreme Court has evaluated defendants claims that criminal statutes are unconstitutionally vague, 75 developing a doctrine hailed as "among the most important guarantees of liberty under law." In this jurisdiction, the void-for-vagueness doctrine asserted under the due process clause has been utilized in examining the 76 constitutionality of criminal statutes. In at least three cases, the Court brought the doctrine into play in analyzing an ordinance penalizing the non-payment of municipal tax on fishponds, the crime of illegal recruitment punishable under Article 132(b) of the Labor Code, and the vagrancy provision under Article 202 (2) of the Revised Penal Code. Notably, the petitioners in these three cases, similar to those in the two Romualdezand Estrada cases, were actually charged with the therein assailed penal statute, unlike in the present case. There is no merit in the claim that RA 9372 regulates speech so as to permit a facial analysis of its validity From the definition of the crime of terrorism in the earlier cited Section 3 of RA 9372, the following elements may be culled: (1) the offender commits an act punishable under any of the cited provisions of the Revised Penal Code, or under any of the enumerated special penal laws; (2) the commission of the predicate crime sows and creates a condition of widespread and extraordinary fear and panic among the populace; and (3) the offender is actuated by the desire to coerce the government to give in to an unlawful demand. In insisting on a facial challenge on the invocation that the law penalizes speech, petitioners contend that the element of "unlawful 77 demand" in the definition of terrorism must necessarily be transmitted through some form of expression protected by the free speech clause. The argument does not persuade. What the law seeks to penalize is conduct, not speech. Before a charge for terrorism may be filed under RA 9372, there must first be a predicate crime actually committed to trigger the operation of the key qualifying phrases in the other elements of the crime, including the coercion of the government to accede to an "unlawful demand." Given the presence of the first element, any attempt at singling out or highlighting the communicative component of the prohibition cannot recategorize the unprotected conduct into a protected speech. Petitioners notion on the transmission of message is entirely inaccurate, as it unduly focuses on just one particle of an element of the crime. Almost every commission of a crime entails some mincing of words on the part of the offender like in declaring to launch overt criminal acts against a victim, in haggling on the amount of ransom or conditions, or in negotiating a deceitful transaction. An analogy in 78 one U.S. case illustrated that the fact that the prohibition on discrimination in hiring on the basis of race will require an employer to take down a sign reading "White Applicants Only" hardly means that the law should be analyzed as one regulating speech rather than conduct.
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Southern Hemisphere vs KMU

Utterances not elemental but inevitably incidental to the doing of the criminal conduct alter neither the intent of the law to punish socially harmful conduct nor the essence of the whole act as conduct and not speech. This holds true a fortiori in the present case where the expression figures only as an inevitable incident of making the element of coercion perceptible. [I]t is true that the agreements and course of conduct here were as in most instances brought about through speaking or writing. But it has never been deemed an abridgement of freedom of speech or press to make a course of conduct illegal merely because the conduct was, in part, initiated, evidenced, or carried out by means of language, either spoken, written, or printed. Such an expansive interpretation of the constitutional guaranties of speech and press would make it practically impossible ever to enforce laws against 79 agreements in restraint of trade as well as many other agreements and conspiracies deemed injurious to society. (italics and underscoring supplied) Certain kinds of speech have been treated as unprotected conduct, because they merely evidence a prohibited conduct. Since speech is not involved here, the Court cannot heed the call for a facial analysis.1avvphi1 IN FINE, Estrada and the other cited authorities engaged in a vagueness analysis of the therein subject penal statute as applied to the therein petitioners inasmuch as they were actually charged with the pertinent crimes challenged on vagueness grounds. The Court in said cases, however, found no basis to review the assailed penal statute on its face and in its entirety. In Holder, on the other hand, the US Supreme Court allowed the pre-enforcement review of a criminal statute, challenged on vagueness grounds, since the therein plaintiffs faced a "credible threat of prosecution" and "should not be required to await and undergo a criminal prosecution as the sole means of seeking relief." As earlier reflected, petitioners have established neither an actual charge nor a credible threat of prosecutionunder RA 9372. Even a limited vagueness analysis of the assailed definition of "terrorism" is thus legally impermissible. The Court reminds litigants that judicial power neither contemplates speculative counseling on a statutes future effect on hypothetical scenarios nor allows the courts to be used as an extension of a failed legislative lobbying in Congress. WHEREFORE, the petitions are DISMISSED. SO ORDERED.
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Earl Louie

Suplico vs NEDA

G.R. No. 178830

July 14, 2008

ROLEX SUPLICO, Petitioner, vs. NATIONAL ECONOMIC AND DEVELOPMENT AUTHORITY, represented by NEDA SECRETARY ROMULO L. NERI, and the NEDAINVESTMENT COORDINATION COMMITTEE, DEPARTMENT OF TRANSPORTATION AND COMMUNICATIONS (DOTC), represented by DOTC SECRETARY LEANDRO MENDOZA, including the COMMISSION ON INFORMATION AND COMMUNICATIONS TECHNOLOGY, headed by its Chairman, RAMON P. SALES, THE TELECOMMUNICATIONS OFFICE, BIDS AND AWARDS FOR INFORMATION AND COMMUNICATIONS TECHNOLOGY (ICT), headed by DOTC ASSISTANT SECRETARY ELMER A. SONEJA as Chairman, and the TECHNICAL WORKING GROUP FOR ICT, AND DOTC ASSISTANT SECRETARY LORENZO FORMOSO, AND ALL OTHER OPERATING UNITS OF THE DOTC FOR INFORMATION AND COMMUNICATIONS TECHNOLOGY, and ZTE CORPORATION, AMSTERDAM HOLDINGS, INC., AND ALL PERSONS ACTING IN THEIR BEHALF, Respondents. x - - - - - - - - - - - - - - - - - - - - - - -x G.R. No. 179317 AMSTERDAM HOLDINGS, INC., and NATHANIEL SAUZ, Petitioners, vs. DEPARTMENT OF TRANSPORTATION AND COMMUNICATIONS, SECRETARY LEANDRO MENDOZA, COMMISSION ON INFORMATION AND COMMUNICATIONS TECHNOLOGY, and ASSISTANT SECRETARY LORENZO FORMOSO III, Respondents. x - - - - - - - - - - - - - - - - - - - - - - -x G.R. No. 179613 GALELEO P. ANGELES, VICENTE C. ANGELES, JOB FLORANTE L. CASTILLO, TRINI ANNE G. NIEVA, ROY ALLAN T. ARELLANO, CARLO MAGNO M. REONAL, ETHEL B. REGADIO, RAENAN B. MALIG, AND VINALYN M. POTOT, TOGETHER WITH LAWYERS AND ADVOCATES FOR ACCOUNTABILITY, TRANSPARENCY, INTEGRITY AND GOOD GOVERNANCE (LATIGO), Petitioners, vs. DEPARTMENT OF TRANSPORTATION AND COMMUNICATIONS (DOTC), represented by DOTC SECRETARY LEANDRO MENDOZA, and ZHONG XING EQUIPMENT (ZTE) COMPANY, LTD., AND ANY AND ALL PERSONS ACTING ON THEIR BEHALF, Respondents. RESOLUTION REYES, R.T., J.: Under consideration is the Manifestation and Motion dated October 26, 2007 of the Office of the Solicitor General (OSG) which states: The Office of the Solicitor General (OSG) respectfully avers that in an Indorsement dated October 24, 2007, the Legal Service of the Department of Transportation and Communications (DOTC) has informed it of the Philippine Governments decision not to continue 2 with the ZTE National Broadband Network Project (see attachment ). That said, there is no more justiciable controversy for this Honorable Court to resolve. WHEREFORE, public respondents respectfully pray that the present petitions be DISMISSED. On November 13, 2007, the Court noted the OSGs manifestation and motion and required petitioners in G.R. Nos. 178830, 179317, and 179613 to comment. On December 6, 2007, Rolex Suplico, petitioner in G.R. No. 178830, filed his Consolidated Reply and Opposition, opposing the aforequoted OSG Manifestation and Motion, arguing that: 66. Aside from the fact that the Notes of the Meeting Between President Gloria Macapagal-Arroyo and Chinese President Hu Jintao held 2 October 2007 were not attached to the 26 October 2007 Manifestation and Motion thus depriving petitioners of
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Suplico vs NEDA

the opportunity to comment thereon a mere verbally requested 1st Indorsement is not sufficient basis for the conclusion that the ZTE-DOTC NBN deal has been permanently scrapped. 67. Suffice to state, said 1st Indorsement is glaringly self-serving, especially without the Notes of the Meeting Between President Gloria Macapagal-Arroyo and Chinese President Hu Jintao to support its allegations or other proof of the supposed 4 decision to cancel the ZTE-DOTC NBN deal. Public respondents can certainly do better than that. Petitioner Suplico further argues that: 79. Assuming arguendo that some aspects of the present Petition have been rendered moot (which is vehemently denied), this 5 Honorable Court, consistent with well-entrenched jurisprudence, may still take cognizance thereof. Petitioner Suplico cites this Courts rulings in Gonzales v. Chavez, Rufino v. Endriga, and Alunan III v. Mirasol that despite their mootness, the Court nevertheless took cognizance of these cases and ruled on the merits due to the Courts symbolic function of educating the bench and the bar by formulating guiding and controlling principles, precepts, doctrines, and rules. On January 31, 2008, Amsterdam Holdings, Inc. (AHI) and Nathaniel Sauz, petitioners in G.R. No. 179317, also filed their comment expressing their sentiments, thus: 3. First of all, the present administration has never been known for candor. The present administration has a very nasty habit of not keeping its word. It says one thing, but does another. 4. This being the case, herein petitioners are unable to bring themselves to feel even a bit reassured that the government, in the event that the above-captioned cases are dismissed, will not backtrack, re-transact, or even resurrect the now infamous NBN-ZTE transaction. This is especially relevant since what was attached to the OSGs Manifestation and Motion was a mere one (1) page written communication sent by the Department of Transportation and Communications (DOTC) to the OSG, allegedly relaying that the Philippine Government has decided not to continue with the NBN project "x x x due to several reasons and constraints." Petitioners AHI and Sauz further contend that because of the transcendental importance of the issues raised in the petition, which among others, included the Presidents use of the power to borrow, i.e., to enter into foreign loan agreements, this Court should take cognizance of this case despite its apparent mootness. On January 15, 2008, the Court required the OSG to file respondents reply to petitioners comments on its manifestation and motion. On April 18, 2008, the OSG filed respondents reply, reiterating their position that for a court to exercise its power of adjudication, there must be an actual case or controversy one which involves a conflict of legal rights, an assertion of opposite legal claims susceptible of judicial resolution; the case must not be moot or academic or based on extra-legal or other similar considerations not cognizable by a 9 court of justice. Respondents also insist that there is no perfected contract in this case that would prejudice the government or public interest. Explaining the nature of the NBN Project as an executive agreement, respondents stress that it remained in the negotiation stage. The 10 conditions precedent for the agreement to become effective have not yet been complied with. Respondents further oppose petitioners claim of the right to information, which they contend is not an absolute right. They contend that the matters raised concern executive policy, a political question which the judicial branch of government would generally hesitate to pass upon. On July 2, 2008, the OSG filed a Supplemental Manifestation and Motion. Appended to it is the Highlights from the Notes of Meeting between President Gloria Macapagal-Arroyo and Chinese President Hu Jintao, held in XI Jiao Guesthouse, Shanghai, China, on October 2, 2007. In the Notes of Meeting, the Philippine Government conveyed its decision not to continue with the ZTE National Broadband
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Suplico vs NEDA

Network Project due to several constraints. The same Notes likewise contained President Hu Jintaos expression of understanding of the Philippine Government decision. We resolve to grant the motion. Firstly, the Court notes the triple petitions to be for certiorari, prohibition and mandamus, with application for the issuance of a Temporary Restraining Order (TRO) and/or Preliminary Injunction. The individual prayers in each of the three (3) consolidated petitions are: G.R. No. 178830 WHEREFORE, it is respectfully prayed of this Honorable Court: 1. Upon the filing of this Petition, pursuant to the second paragraph of Rule 58, Section 5 of the Rules of Court, issue forthwith an ex parte temporary restraining order enjoining respondents, their subordinates, agents, representatives and any and all persons acting on their behalf from pursuing, entering into indebtedness, disbursing funds, and implementing the ZTE-DOTC Broadband Deal; 2. Compel respondents, upon Writ of Mandamus, to forthwith produce and furnish petitioner or his undersigned counsel a certified true copy of the contract or agreement covering the NBN project as agreed upon with ZTE Corporation; 3. Schedule Oral Arguments in the present case pursuant to Rule 49 in relation to Section 2, Rule 56 of the revised Rules of Court; and, 4. Annul and set aside the award of the ZTE-DOTC Broadband Deal, and compel public respondents to forthwith comply with pertinent provisions of law regarding procurement of government ICT contracts and public bidding for the NBN 11 contract. (Emphasis supplied) G.R. No. 179317 WHEREFORE, petitioners Amsterdam Holdings, Inc., and Nathaniel Sauz respectfully pray as follows: A. upon the filing of this Petition for Mandamus and conditioned upon the posting of a bond in such amount as the Honorable Court may fix, a temporary restraining order and/or writ of preliminary injunction be issued directing the Department of Transportation and Communication, the Commission on Information and Communications Technology, all other government agencies and instrumentalities, their officers, employees, and/or other persons acting for and on their behalf to desist during the pendency of the instant Petition for Mandamus from entering into any other agreements and from commencing with any kind, sort, or specie of activity in connection with the National Broadband Network Project; B. the instant Petition for Mandamus be given due course; and, C. after due consideration of all relevant issues, judgment be rendered directing respondents to allow herein petitioners access to all agreements entered into with the Government of China, the ZTE Corporation, and/or other entities, government 12 instrumentalities, and/or individuals with regard to the National Broadband Network Project. (Emphasis supplied) G.R. No. 179613 WHEREFORE, it is respectfully prayed of this Honorable Court to: 1. Compel respondents, upon Writ of Mandamus, to forthwith produce and furnish petitioner or his undersigned counsel a certified true copy of the contract or agreement covering the NBN project as agreed upon with ZTE Corporation;

Earl Louie

Suplico vs NEDA

2. Schedule Oral Arguments in the present case pursuant to Rule 49 in relation to Section 2, Rule 56 of the Revised Rules of Court; 3. Annul and set aside the award of the contract for the national broadband network to respondent ZTE Corporation, upon the ground that said contract, as well as the procedures resorted to preparatory to the execution thereof, is contrary to the Constitution, to law and to public policy; 4. Compel public respondent to forthwith comply with pertinent provisions of law regarding procurement of government infrastructure projects, including public bidding for said contract to undertake the construction of the national broadband 13 network. (Emphasis supplied) On September 11, 2007, the Court issued a TRO in G.R. No. 178830, enjoining the parties from "pursuing, entering into indebtedness, disbursing funds, and implementing the ZTE-DOTC Broadband Deal and Project" as prayed for. Pertinent parts of the said Order read: WHEREAS, the Supreme Court, on 11 September 2007, adopted a resolution in the above-entitled case, to wit: "G.R. No. 178830 (Rolex Suplico vs. National Economic and Development Authority, represented by NEDA Secretary Romulo L. Neri, and the NEDA Investment Coordination Committee, Department of Transportation and Communications (DOTC), represented by DOTC Secretary Leandro Mendoza, including the Commission on Information and Communications Technology, headed by its Chairman, Ramon P. Sales, The Telecommunications Office, Bids and Awards for Information and Communications Technology Committee (ICT), headed by DOTC Assistant Secretary Elmer A. Soneja as Chairman, and The Technical Working Group for ICT, and DOTC Assistant Secretary Lorenzo Formoso, and All Other Operating Units of the DOTC for Information and Communications Technology, and ZTE Corporation, Amsterdam Holdings, Inc., and ARESCOM, Inc.Acting on the instant petition with prayer for temporary restraining order and/or writ of preliminary injunction, the Court Resolved, without giving due course to the petition, to xxxx (d) Issue a TEMPORARY RESTRAINING ORDER, effective immediately and continuing until further orders from this Court, enjoining the (i) National Economic and Development Authority, (ii) NEDA-Investment Coordination Committee, (iii) Department of Transportation and Communications, Commission on Information and Communications Technology, (iv) Telecommunications Office, Bids and Awards for Information and Communications Technology Committee (ICT), (v) Technical Working Group for ICT, and all other Operating Units of the DOTC for Information and Communications Technology, (vi) ZTE Corporation; (vii) Amsterdam Holdings, Inc., and (viii) ARESCOM, Inc., and any and all persons acting on their behalf from pursuing, entering into indebtedness, disbursing funds, and implementing the ZTEDOTC Broadband Deal and Project as prayed for." NOW THEREFORE, effective immediately and continuing until further orders from this Court, You, Respondents (i) National Economic and Development Authority, (ii) NEDA-Investment Coordination Committee, (iii) Department of Transportation and Communications, Commission on Information and Communications Technology, (iv) Telecommunications Office, Bids and Awards for Information and Communications Technology Committee (ICT), (v) Technical Working Group for ICT, and all other Operating Units of the DOTC for Information and Communications Technology, (vi) ZTE Corporation; (vii) Amsterdam Holdings, Inc., and (viii) ARESCOM, Inc., and any and all persons acting on their behalf are hereby ENJOINED from "pursuing, entering into indebtedness, disbursing funds, and implementing 15 the ZTE-DOTC Broadband Deal and Project" as prayed for. (Emphasis supplied.) Petitioners in G.R. Nos. 178830 and 179613 pray that they be furnished certified true copies of the "contract or agreement covering the NBN project as agreed upon with ZTE Corporation." It appears that during one of the Senate hearings on the NBN project, copies of the 16 17 supply contract were readily made available to petitioners. Evidently, the said prayer has been complied with and is, thus, mooted. When President Gloria Macapagal-Arroyo, acting in her official capacity during the meeting held on October 2, 2007 in China, informed Chinas President Hu Jintao that the Philippine Government had decided not to continue with the ZTE-National Broadband Network (ZTE-NBN) Project due to several reasons and constraints, there is no doubt that all the other principal prayers in the three petitions (to annul, set aside, and enjoin the implementation of the ZTE-NBN Project) had also become moot.
14

Earl Louie

Suplico vs NEDA

Contrary to petitioners contentions that these declarations made by officials belonging to the executive branch on the Philippine Governments decision not to continue with the ZTE-NBN Project are self-serving, hence, inadmissible, the Court has no alternative but to take judicial notice of this official act of the President of the Philippines. Section 1, Rule 129 of the Rules of Court provides: SECTION 1. Judicial Notice, when mandatory. A court shall take judicial notice, without introduction of evidence, of the existence and territorial extent of states, their political history, forms of government and symbols of nationality, the law of nations, the admiralty and maritime courts of the world and their seals, the political constitution and history of the Philippines, the official acts of the legislative, executive and judicial departments of the Philippines, the laws of nature, the measure of time, and the geographical divisions. (Emphasis supplied) Under the rules, it is mandatory and the Court has no alternative but to take judicial notice of the official acts of the President of the Philippines, who heads the executive branch of our government. It is further provided in the above-quoted rule that the court shall take judicial notice of the foregoing facts without introduction of evidence. Since we consider the act of cancellation by President MacapagalArroyo of the proposed ZTE-NBN Project during the meeting of October 2, 2007 with the Chinese President in China as an official act of the executive department, the Court must take judicial notice of such official act without need of evidence. In David v. Macapagal-Arroyo, We took judicial notice of the announcement by the Office of the President banning all rallies and canceling all permits for public assemblies following the issuance of Presidential Proclamation No. 1017 and General Order No. 5. In Estrada v. Desierto, the Court also resorted to judicial notice in resolving the factual ingredient of the petition. Moreover, under Section 2, paragraph (m) of Rule 131 of the Rules of Court, the official duty of the executive officials of informing this Court of the governments decision not to continue with the ZTE-NBN Project is also presumed to have been regularly performed, absent proof to the contrary. Other than petitioner AHIs unsavory insinuation in its comment, the Court finds no factual or legal basis to disregard this disputable presumption in the present instance. Concomitant to its fundamental task as the ultimate citadel of justice and legitimacy is the judiciarys role of strengthening political stability indispensable to progress and national development. Pontificating on issues which no longer legitimately constitute an actual case or controversy will do more harm than good to the nation as a whole. Wise exercise of judicial discretion militates against resolving the academic issues, as petitioners want this Court to do. This is especially true where, as will be further discussed, the legal issues raised cannot be resolved without previously establishing the factual basis or antecedents. Judicial power presupposes actual controversies, the very antithesis of mootness. In the absence of actual justiciable controversies or disputes, the Court generally opts to refrain from deciding moot issues. Where there is no more live subject of controversy, the Court ceases to have a reason to render any ruling or make any pronouncement. Kapag wala nang buhay na kaso, wala nang dahilan para magdesisyon ang Husgado. In Republic Telecommunications Holdings, Inc. v. Santiago, the lone issue tackled by the Court of Appeals (CA) was whether the Securities Investigation and Clearing Department (SICD) and Securities and Exchange Commission (SEC) en banc committed reversible error in issuing and upholding, respectively, the writ of preliminary injunction. The writ enjoined the execution of the questioned agreements between Qualcomm, Inc. and Republic Telecommunications Holdings, Inc. (RETELCOM). The implementation of the agreements was restrained through the assailed orders of the SICD and the SEC en banc which, however, were nullified by the CA decision. Thus, RETELCOM elevated the matter to this Court praying for the reinstatement of the writ of preliminary injunction of the SICD and the SEC en banc. However, before the matter was finally resolved, Qualcomm, Inc. withdrew from the negotiating table. Its withdrawal had thwarted the execution and enforcement of the contracts. Thus, the resolution of whether the implementation of said agreements should be enjoined became no longer necessary. Equally applicable to the present case is the Court ruling in the above-cited Republic Telecommunications. There We held, thus:
21 20 19 18

Earl Louie

Suplico vs NEDA

Indeed, the instant petition, insofar as it assails the Court of Appeals Decision nullifying the orders of the SEC en banc and the SICD, has been rendered moot and academic. To rule, one way or the other, on the correctness of the questioned orders of the SEC en banc and the SICD will be indulging in a theoretical exercise that has no practical worth in view of the supervening event. The rule is well-settled that for a court to exercise its power of adjudication, there must be an actual case or controversy one which involves a conflict of legal rights, an assertion of opposite legal claims susceptible of judicial resolution; the case must not be moot or academic or based on extra-legal or other similar considerations not cognizable by a court of justice. Where the issue has become moot and academic, there is no justiciable controversy, and an adjudication thereon would be of no practical use or value as courts do not sit to adjudicate mere academic questions to satisfy scholarly interest, however intellectually challenging. In the ultimate analysis, petitioners are seeking the reinstatement of the writ of injunction to prevent the concerned parties from pushing through with transactions with Qualcomm, Inc. Given that Qualcomm, Inc. is no longer interested in pursuing the contracts, there is no actual substantial relief to which petitioners would be entitled and which would be negated by the dismissal of the petition. The Court likewise finds it unnecessary to rule whether the assailed Court of Appeals Decision had the effect of overruling the Courts Resolution dated 29 January 1999, which set aside the TRO issued by the appellate court. A ruling on the matter practically partakes of a mere advisory opinion, which falls beyond the realm of judicial review. The exercise of the power of judicial review is limited to actual cases and controversies. Courts have no authority to pass upon issues through advisory opinions or to resolve hypothetical or feigned problems. While there were occasions when the Court passed upon issues although supervening events had rendered those petitions moot and academic, the instant case does not fall under the exceptional cases. In those cases, the Court was persuaded to resolve moot and academic issues to formulate guiding and controlling constitutional principles, precepts, doctrines or rules for future guidance of both bench and bar. In the case at bar, the resolution of whether a writ of preliminary injunction may be issued to prevent the implementation of the assailed contracts calls for an appraisal of factual considerations which are peculiar only to the transactions and parties involved in this controversy. Except for the determination of whether petitioners are entitled to a writ of preliminary injunction which is now moot, the 22 issues raised in this petition do not call for a clarification of any constitutional principle or the interpretation of any statutory provision. Secondly, even assuming that the Court will choose to disregard the foregoing considerations and brush aside mootness, the Court cannot completely rule on the merits of the case because the resolution of the three petitions involves settling factual issues which definitely requires reception of evidence. There is not an iota of doubt that this may not be done by this Court in the first instance because, as has been stated often enough, this Court is not a trier of facts. Ang pagpapasiya sa tatlong petisyon ay nangangailangan ng paglilitis na hindi gawain ng Hukumang ito. Respondent ZTE, in its Comment in G.R. No. 178830, correctly pointed out that since petitioner Suplico filed his petition directly with this Court, without prior factual findings made by any lower court, a determination of pertinent and relevant facts is needed. ZTE enumerated some of these factual issues, to wit: (1) Whether an executive agreement has been reached between the Philippine and Chinese governments over the NBN Project; (2) Whether the ZTE Supply Contract was entered into by the Republic of the Philippines, through the DOTC, and ZTE International pursuant to, and as an integral part of, the executive agreement; (3) Whether a loan agreement for the NBN Project has actually been executed; (4) Whether the Philippine government required that the NBN Project be completed under a Build-Operate-and-Transfer Scheme;
23

Earl Louie

Suplico vs NEDA

(5) Whether the AHI proposal complied with the requirements for an unsolicited proposal under the BOT Law; (6) Whether the Philippine government has actually earmarked public finds for disbursement under the ZTE Supply Contract; and (7) Whether the coverage of the NBN Project to be supplied under the ZTE Supply Contract is more extensive than that under 24 the AHI proposal or such other proposal submitted therefor. Definitely, some very specific reliefs prayed for in both G.R. Nos. 178830 and 179613 require prior determination of facts before pertinent legal issues could be resolved and specific reliefs granted. In G.R. No. 178830, petitioner seeks to annul and set aside the award of the ZTE-DOTC Broadband Deal and compel public respondents to forthwith comply with pertinent provisions of law regarding procurement of government ICT contracts and public bidding for the NBN contract. In G.R. No. 179613, petitioners also pray that the Court annul and set aside the award of the contract for the national broadband network to respondent ZTE Corporation, upon the ground that said contract, as well as the procedures resorted to preparatory to the execution thereof, is contrary to the Constitution, to law and to public policy. They also ask the Court to compel public respondent to forthwith comply with pertinent provisions of law regarding procurement of government infrastructure projects, including public bidding for said contract to undertake the construction of the national broadband network. It is simply impossible for this Court "to annul and set aside the award of the ZTE-DOTC Broadband Deal" without any evidence to support a prior factual finding pointing to any violation of law that could lead to such annulment order. For sure, the Supreme Court is not the proper venue for this factual matter to be threshed out. Thirdly, petitioner Suplico in G.R. No. 178830 prayed that this Court order "public respondents to forthwith comply with pertinent 25 provisions of law regarding procurement of government ICT contracts and public bidding for the NBN contract." It would be too presumptuous on the part of the Court to summarily compel public respondents to comply with pertinent provisions of law regarding procurement of government infrastructure projects without any factual basis or prior determination of very particular violations committed by specific government officials of the executive branch. For the Court to do so would amount to a breach of the norms of comity among co-equal branches of government. A perceived error cannot be corrected by committing another error. Without proper evidence, the Court cannot just presume that the executive did not comply with procurement laws. Should the Court allow itself to fall into this trap, it would plainly commit grave error itself. Magiging kapangahasan sa Hukumang ito na pilitin ang mga pinipetisyon na tumalima sa batas sa pangongontrata ng pamahalaan kung wala pang pagtitiyak o angkop na ebidensiya ng nagawang paglabag dito. Let it be clarified that the Senate investigation in aid of legislation cannot be the basis of Our decision which requires a judicial finding of facts. Justice Antonio T. Carpio takes the view that the National Broadband Network Project should be declared null and void. The foregoing threefold reasons would suffice to address the concern of Our esteemed colleague. The Court is, therefore, constrained to dismiss the petitions and deny them due course because of mootness and because their resolution requires reception of evidence which cannot be done in an original petition brought before the Supreme Court. WHEREFORE, the petitions are DISMISSED. The Temporary Restraining Order issued on September 11, 2007 is DISSOLVED. SO ORDERED.

Earl Louie

Sps Rosario vs Gerry Roxas Foundation

FIRST DIVISION SPOUSES MANUEL AND FLORENTINA DELROSARIO, Petitioners, G.R. No. 170575

Present: CORONA, C.J., Chairperson, - versus VELASCO, JR., LEONARDO-DE CASTRO, DEL CASTILLO, and PEREZ, JJ. GERRY ROXAS FOUNDATION, INC., Respondent. Promulgated: June 8, 2011 x - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -- - - - - - - - - - - - - - - - - - - x DECISION DEL CASTILLO, J.: The allegations in the complaint and the reliefs prayed for are the determinants of the nature of the action and of which court has jurisdiction over the action.
[2] [1]

This Petition for Review on Certiorari assails the April 26, 2005 Decision of the Court of Appeals (CA) in CA-G.R. SP No. 87784 which dismissed the Petition for Review before it. Also assailed is the CA Resolution dated November 15, 2005 denying the Motion for Reconsideration thereto.
[4]

[3]

Factual Antecedents

The controversy between petitioners Manuel and Florentina Del Rosario and respondent Gerry Roxas Foundation Inc. emanated from a Complaint for Unlawful Detainer filed by the former against the latter, the surrounding circumstances relative thereto as summarized by the CA in its assailed Decision are as follows: The petitioner Manuel del Rosario appears to be the registered owner of Lot 3-A of Psd-301974 located in Roxas City which is described in and covered by Transfer Certificate of Title No. T-18397 of the Registry of Deeds for the City of Roxas. Sometime in 1991, the respondent, as a legitimate foundation, took possession and occupancy of said land by virtue of a memorandum of agreement entered into by and between it and the City of Roxas. Its possession and occupancy of said land is in the character of being lessee thereof. In February and March 2003, the petitioners served notices upon the respondent to vacate the premises of said land. The [5] respondent did not heed such notices because it still has the legal right to continue its possession and occupancy of said land.

Earl Louie

Sps Rosario vs Gerry Roxas Foundation

On July 7, 2003, petitioners filed a Complaint for Unlawful Detainer against the respondent before the Municipal Trial Court in Cities (MTCC) of Roxas City, docketed as Civil Case No. V-2391. Said complaint contains, among others, the following significant allegations: 3. Plaintiffs are the true, absolute and registered owner[s] of a parcel of land, situated at Dayao, Roxas City and covered by and described in Transfer Certificate of Title No. 18397 issued to the plaintiffs by the Register of Deeds for Roxas City as evidenced by a xerox copy thereof which is hereto attached as Annex A. 4. Sometime in 1991, without the consent and authority of the plaintiffs, defendant took full control and possession of the subject property, developed the same and use[d] it for commercial purposes. xxxx 7. Plaintiffs have allowed the defendant for several years, to make use of the land without any contractual or legal basis. Hence, defendants possession of the subject property is only by tolerance. 8. But *plaintiffs+ patience has come to its limits. Hence, sometime in the last quarter of 2002, plaintiffs made several demands upon said defendant to settle and/or pay rentals for the use of the property. xxxx 10. Notwithstanding receipt of the demand letters, defendant failed and refused, as it continues to fail and refuse to pay reasonable monthly rentals for the use and occupancy of the land, and to vacate the subject premises despite the lapse of the fifteen-day period specified in the said demand letters. Consequently, defendant is unlawfully withholding possession of the [7] subject property from the plaintiffs, who are the owners thereof.

[6]

Upon service of summons, respondent filed its Answer dated July 31, 2003 where it averred that: 3. The defendant ADMITS the allegations set forth in paragraph 4 of the Complaint to the effect that the defendant took full control and possession of the subject property, developed the same and has been using the premises in accordance with its agreements with the City of Roxas and the purposes of the defendant corporation without any objection or opposition of any kind on the part of the plaintiffs for over twenty-two long years; the defendant specifically DENIES the allegations contained in the last part of this paragraph 4 of the Complaint that the defendant has used the property leased for commercial purposes, the truth of the matter being that the defendant has used and [is] still using the property only for civic non-profit endeavors hewing closely to purposes of the defendant Gerry Roxas Foundation Inc., inter alia, devoted to general welfare, protection, and upliftment of the people of Roxas City, Capiz, and in Panay Island, and elsewhere in the Philippines; that the Foundation has spent out of its own funds for the compliance of its avowed aims and purposes, up to the present, more than P25M, and that all the improvements, including a beautiful auditorium built in the leased premises of the Foundation shall accrue to the CITY (of Roxas), free from any compensation whatsoever, upon the expiration of this Lease (Memorandum of Agreement, Annex 2 hereof), eighteen (18) years hence; xxxx 5. The defendant specifically DENIES the allegations set forth in paragraph 7 of the Complaint, the truth being that the defendant took possession of the subject property by virtue of Memorandums of Agreement, photo-copies of which are hereto attached as Annexes 1 and 2 and made integral parts hereof, entered into by defendant and the City of Roxas, which is the true and lawful owner thereof; thus, the possession of the subject property by the defendant foundation is lawful, being a lessee thereof; xxxx

[8]

Earl Louie

Sps Rosario vs Gerry Roxas Foundation

8. The defendant ADMITS the allegations set forth in paragraph 10 of the Complaint that defendant refused to pay monthly rental to the plaintiffs and to vacate the premises, but specifically DENIES the rest of the allegations thereof, the truth being that defendant has no obligation whatsoever, to the plaintiffs, as they are neither the owners or lessors of the land occupied by defendant; xxxx As and by way of AFFIRMATIVE DEFENSE The defendant repleads the foregoing allegations, and avers further that: 12. The plaintiffs have no cause of action against defendant. The leased property does not belong to the plaintiffs. The property covered by Transfer Certificate of Title No. T-18397, [is] occupied by the [defendant] as [lessee] of the City of Roxas since 1991, the latter having acquired it by purchase from the plaintiffs way back on February 19, 1981, as evidenced by the Deed of Absolute Sale which is hereto attached as Annex 3 and made an integral part hereof. While, admittedly, the said certificate of title is still in the name of the plaintiffs, nevertheless, the ownership of the property covered therein has already transferred to the City of Roxas upon its delivery to it. Article 1496 of the Civil Code provides that, ownership of the thing sold is acquired by the vendee from the moment it is delivered to him in any of the ways specified in articles 1497 to 1501, or in any other manner signifying an agreement that the possession is transferred from the vendor to the vendee. It is also provided under Article 1498 of the Civil Code that, when the sale is made through a public instrument, the execution thereof shall be equivalent to the delivery of the thing, which is the object of the contract, if from the deed the contrary does not appear or cannot clearly be inferred. Upon execution of the Deed of Absolute Sale (Annex 3), the plaintiffs have relinquished ownership of the property subject thereof in favor of the vendee, City of Roxas. Necessarily, the possession of the property subject of the said Deed of Absolute Sale now pertains to the City of Roxas and the plaintiffs have no more right, whatsoever, to the possession of the same. It is defendant foundation by virtue of the Memorandums of Agreement [9] (Annexes 1 and 2 hereof), which has the legal right to have possession of the subject property;

After the MTCC issued an Order setting the case for preliminary conference, respondent filed on October 20, 2003 a Motion to Resolve its Defenses on Forum Shopping and Lack of Cause of Action. Records show that before the instant case was filed, the City of Roxas had already filed a case against petitioners for Surrender of Withheld Duplicate Certificate Under Section 107, *Presidential Decree No.+ 1529 docketed as Special Case No. SPL-020-03 with the Regional Trial Court (RTC) of Roxas City. Subsequently, on October 27, 2003, petitioners filed their Opposition to the said Motion.

Ruling of the Municipal Trial Court in Cities

[10]

On November 24, 2003, the MTCC issued an Order

resolving the respondents Motion. In the said Order, the MTCC held that:

The plaintiffs [have] no cause of action against herein defendant. The defendant is the lessee of the City of Roxas of the parcel of land in question. There has been no previous contractual relationship between the plaintiffs Del Rosarios and the defendant Gerry Roxas Foundation, Inc. affecting the title of the land leased by the [Gerry] Roxas Foundation. The Gerry Roxas Foundation, Inc. has not unlawfully withheld the possession of the land it is leasing from its lessor. Its right to the physical possession of the land leased by it from the City of Roxassubsists and continues to subsist until the termination of the contract of lease according to its terms and pursuant to law.

Earl Louie

Sps Rosario vs Gerry Roxas Foundation

The defendant had presented as its main defense that the property was already sold by the plaintiffs to the present lessor of the property, the City of Roxas thru a Deed of Absolute Sale dated February 19, 1981 executed by herein [plaintiff] spouses as vendors. Plaintiffs had not directly and specifically shown that the purported Deed of Absolute Sale does not exist; rather, they contend that said document is merely defective. They had not even denied the signatories to the said Contract of Sale; specifically the authenticity of the spouses-plaintiffs signatures; all that plaintiffs did merely referred to it as null and void and highly questionable without any specifications. When the parties pleadings fail to tender any issue of fact, either because all the factual allegations have been admitted expressly or impliedly; as when a denial is a general denial; there is no need of conducting a trial, since there is no need of presenting evidence anymore. The case is then ripe for judicial determination, either through a judgment on the pleadings (Rules of Court, Rule 34) or by summary judgment under Rule 35, Rules of Court. In the instant case, plaintiffs alleged that sometime in 1991, without the consent and authority of the plaintiffs, defendant took full control and possession of the subject property, developed the same and use[d] it for commercial purposes. x x x for so many years, plaintiffs patiently waited for someone to make representation to them regarding the use of the subject property, but the same never happened. Plaintiff[s] have allowed the defendant for several years, to make use of the land without any contractual or legal basis. Hence, defendants possession of the subject property is only by tolerance. xxxx Defendant admits the allegations of the plaintiffs that the defendant took full control and possession of the subject property, developed the same and has been using the premises in accordance with its agreements with the City of Roxas and the purposes of the defendant corporation without any objection or opposition of any kind on the part of the plaintiffs for over twentytwo long years. That the defendants possession of the subject property is by virtue of a contract of lease entered into by the defendant foundation with the City of Roxas which is the true and lawful owner, the latter having acquired said property by virtue of a Deed of Absolute Sale as early as February 19, 1981, long before the defendant foundations occupation of the property. In Alcos v. IAC 162 SCRA 823 (1988), Buyers immediate possession and occupation of the property was deemed corroborative of the truthfulness and authenticity of the deed of sale. WHEREFORE, although this Court finds the defense on forum shopping interposed by the defendant to be untenable and unmeritorious, and hence, denied; this Court still finds the pleadings filed by the plaintiffs-spouses to be without a cause of action and hence, dismisses this instant complaint. With cost against the plaintiffs. SO ORDERED.
[11]

Ruling of the Regional Trial Court

[12]

On appeal, the RTC of Roxas City, Branch 17 rendered a Decision

dated July 9, 2004 affirming the MTCC Order.

Ruling of the Court of Appeals

[13]

Aggrieved, petitioners filed with the CA a Petition for Review. However, the CA, in a Decision and affirmed the assailed Decision of the RTC.
[14]

dated April 26, 2005, dismissed the petition

Petitioners timely filed a Motion for Reconsideration

which was, however, denied in a Resolution

[15]

dated November 15, 2005.

Earl Louie

Sps Rosario vs Gerry Roxas Foundation

Issues

Still undaunted, petitioners now come to this Court on a Petition for Review on Certiorari raising the following issues: I. Whether x x x in determining if there is a case for unlawful detainer, a court should limit itself in interpreting a single phrase/allegation in the complaint; and, II. Whether x x x there exists an unlawful detainer in this case.
[16]

Our Ruling

The petition is bereft of merit. The allegations in petitioners Complaint constitute judicial admissions.

Petitioners alleged in their Complaint before the MTCC, among others, that: (1) sometime in 1991, without their consent and authority, respondent took full control and possession of the subject property, developed the same and used it for commercial purposes; and (2) they allowed the respondent for several years, to make use of the land without any contractual or legal basis. Petitioners thus conclude that respondents possession of subject property is only by tolerance.

Section 4, Rule 129 of the Rules of Court provides that: Sec. 4. Judicial admissions. An admission, verbal or written, made by a party in the course of the proceedings in the same case, does not require proof. x x x

A judicial admission is one so made in pleadings filed or in the progress of a trial as to dispense with the introduction of evidence otherwise necessary to dispense with some rules of practice necessary to be observed and complied with. are deemed admissions of the plaintiff and binding upon him. against the pleader.
[19] [18] [17]

Correspondingly, facts alleged in the complaint

The allegations, statements or admissions contained in a pleading are conclusive as

In this case, petitioners judicially admitted that respondents took control and possession of subject property without their consent and authority and that respondents use of the land was without any contractual or legal basis. Nature of the action is determined by the judicial admissions in the Complaint.

Earl Louie

Sps Rosario vs Gerry Roxas Foundation

In Spouses Huguete v. Spouses Embudo,

[20]

citing Caiza v. Court of Appeals,

[21]

this Court held that what determines the nature of an

action as well as which court has jurisdiction over it are the allegations of the complaint and the character of the relief sought.

This Court, in Sumulong v. Court of Appeals,

[22]

differentiated the distinct causes of action in forcible entry vis--vis unlawful detainer, to wit:

Forcible entry and unlawful detainer are two distinct causes of action defined in Section 1, Rule 70 of the Rules of Court. In forcible entry, one is deprived of physical possession of any land or building by means of force, intimidation, threat, strategy, or stealth. In unlawful detainer, one unlawfully withholds possession thereof after the expiration or termination of his right to hold possession under any contract, express or implied. In forcible entry, the possession is illegal from the beginning and the only issue is who has the prior possession de facto. In unlawful detainer, possession was originally lawful but became unlawful by the expiration or termination of the right to possess and the issue of rightful possession is the one decisive, for in such action, the defendant is the [23] party in actual possession and the plaintiff's cause of action is the termination of the defendant's right to continue in possession.

The words by force, intimidation, threat, strategy or stealth shall include every situation or condition under which one person can wrongfully enter upon real property and exclude another, who has had prior possession, therefrom. forcible exclusion of the original possessor by a person who has entered without right.
[25] [24]

The foundation of the action is really the

The act of going on the property and excluding the lawful possessor therefrom necessarily implies the exertion of force over the property, and this is all that is necessary.
[26]

The employment of force, in this case, can be deduced from petitioners allegation that respondent took full control

and possession of the subject property without their consent and authority.

Stealth, on the other hand, is defined as any secret, sly, or clandestine act to avoid discovery and to gain entrance into or remain within residence of another without permission, property.
[28] [27]

while strategy connotes the employment of machinations or artifices to gain possession of the subject

The CA found that based on the petitioners allegations in their complaint, respondents entry on the land of the petitioners was by
[29]

stealth x x x.

However, stealth as defined requires a clandestine character which is not availing in the instant case as the entry of the

respondent into the property appears to be with the knowledge of the petitioners as shown by petitioners allegation in their complaint that *c+onsidering the personalities behind the defendant foundation and considering further that it is plaintiffs nephew, then the vice-mayor, and now the Mayor of the City of Roxas Antonio A. del Rosario, although without any legal or contractual right, who transacted with the foundation, plaintiffs did not interfere with the activities of the foundation using their property.
[30]

To this Courts mind, this allegation if true, also illustrates strategy.

Taken in its entirety, the allegations in the Complaint establish a cause of action for forcible entry, and not for unlawful detainer.

Earl Louie

Sps Rosario vs Gerry Roxas Foundation

In forcible entry, one is deprived of physical possession of any land or building by means of force, intimidation, threat, strategy, or stealth.
[31]

*W+here the defendants possession of the property is illegal ab initio, the summary action for forcible entry (detentacion) is the remedy
[32]

to recover possession.

In their Complaint, petitioners maintained that the respondent took possession and control of the subject property without any contractual or legal basis. Assuming that these allegations are true, it hence follows that respondents possession was illegal from the very beginning. Therefore, the foundation of petitioners complaint is one for forcible entry that is the forcible exclusion of the original possessor by a person who has entered without right. the inception.
[34] [33]

Thus, and as correctly found by the CA, there can be no tolerance as petitioners alleged that respondents possession was illegal at

[35]

Corollarily, since the deprivation of physical possession, as alleged in petitioners Complaint and as earlier discussed, was attended by strategy and force, this Court finds that the proper remedy for the petitioners was to file a Complaint for Forcible Entry and not the instant suit for unlawful detainer. Petitioners should have filed a Complaint for Forcible Entry within the reglementary one-year period from the time of dispossession.

Petitioners likewise alleged in their Complaint that respondent took possession and occupancy of subject property in 1991. Considering that the action for forcible entry must be filed within one year from the time of dispossession,
[36]

the action for forcible entry has already prescribed when

petitioners filed their Complaint in 2003. As a consequence, the Complaint failed to state a valid cause of action against the respondent.

In fine, the MTCC properly dismissed the Complaint, and the RTC and the CA correctly affirmed said order of dismissal.

WHEREFORE, the petition is DENIED. The Decision dated April 26, 2005 and the Resolution dated November 15, 2005 of the Court of Appeals in CA-G.R. SP No. 87784 are AFFIRMED.

SO ORDERED.

Earl Louie

Ho Wai Pang vs People

HO WAI PANG, Petitioner,

G.R. No. 176229

Present: CORONA, C.J., Chairperson, - versus LEONARDO-DE CASTRO, BERSAMIN, DEL CASTILLO, and VILLARAMA, JR., JJ. PEOPLE OF THE PHILIPPINES, Respondent. Promulgated: October 19, 2011 x-------------------------------------------------------------------x

DECISION

DEL CASTILLO, J.: Infraction of the rights of an accused during custodial investigation or the so-called Miranda Rights render inadmissible only the extrajudicial confession or admission made during such investigation. The admissibility of other evidence, provided they are relevant to the issue and is not otherwise excluded by law or rules, is not affected even if obtained or taken in the course of custodial investigation.
[2] [1]

Petitioner Ho Wai Pang (petitioner) in this present recourse assails the June 16, 2006 Decision of the Court of Appeals (CA) in CA-G.R. CR-H.C. No. 01459 affirming the April 6, 1995 Decision of the Regional Trial Court (RTC), Branch 118 of Pasay City in Criminal Case No. 91-1592, finding him and his co-accused, namely, Law Ka Wang, Chan Chit Yue, Wu Hing Sum, Tin San Mao and Kin San Ho guilty beyond reasonable doubt for violation of Section 15, Article III of Republic Act (R.A.) No. 6425 otherwise known as the Dangerous Drugs Act of 1972. Also assailed is the January 16, 2007 CA Resolution denying the motion for reconsideration thereto.
[9] [8] [5] [6] [7] [4]

[3]

Factual Antecedents

On September 6, 1991, at around 11:30 in the evening, United Arab Emirates Airlines Flight No. 068 from Hongkong arrived at the Ninoy Aquino International Airport (NAIA). Among the passengers were 13 Hongkong nationals who came to the Philippines as tourists. At the arrival area, the group leader Wong Kwok Wah (Sonny Wong) presented a Baggage Declaration Form to Customs Examiner Gilda L. Cinco (Cinco), who was then manning Lane 8 of the Express Lane. Cinco examined the baggages of each of the 13 passengers as their turn came up. From the first traveling bag, she saw few personal belongings such as used clothing, shoes and chocolate boxes which she pressed. When the second bag was examined, she noticed chocolate boxes which were almost of the same size as those in the first bag. Becoming suspicious, she took out four of the chocolate boxes and opened one of them. Instead of chocolates, what she saw inside was white crystalline substance contained in a white transparent plastic. Cinco

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Ho Wai Pang vs People

thus immediately called the attention of her immediate superiors Duty Collector Alalo and Customs Appraiser Nora Sancho who advised her to call the Narcotics Command (NARCOM) and the police. Thereupon, she guided the tourists to the Intensive Counting Unit (ICU) while bringing with her the four chocolate boxes earlier discovered.

At the ICU, Cinco called the tourists one after the other using the passenger manifest and further examined their bags. The bag of Law Ka Wang was first found to contain three chocolate boxes. Next was petitioners bag which contains nothing except for personal effects. Cinco, however, recalled that two of the chocolate boxes earlier discovered at the express lane belong to him. Wu Hing Sums bag followed and same yielded three chocolate boxes while the baggages of Ho Kin San, Chan Chit Yue and Tin San Mao each contained two or three similar chocolate boxes. All in all, 18 chocolate boxes were recovered from the baggages of the six accused.

NARCOM Agent Neowillie de Castro corroborated the relevant testimony of Cinco pertaining to the presence of the chocolate boxes. According to him, he conducted a test on the white crystalline substance contained in said chocolate boxes at the NAIA using the Mandelline Re-Agent Test.
[10] [11]

The result of his examination

of the white crystalline substance yielded positive for methamphetamine hydrochloride or shabu. Thereafter,

the chocolate boxes were bundled together with tape, placed inside a plastic bag and brought to the Inbond Section.

The following day, September 7, 1991, the 13 tourists were brought to the National Bureau of Investigation (NBI) for further questioning. The confiscated stuff were turned over to the Forensic Chemist who weighed and examined them. Findings show that its total weight is 31.1126 kilograms and that the representative samples were positive for methamphetamine hydrochloride. of R.A. No. 6425 only as against petitioner and his five co-accused.
[12]

Out of the 13 tourists, the NBI found evidence for violation

Accordingly, six separate Informations all dated September 19, 1991 were filed against petitioner and his co-accused. These Informations were docketed as Criminal Case Nos. 91-1591 to 97. Subsequently, however, petitioner filed a Motion for Reinvestigation
[14] [15] [13]

which the trial court

granted. The reinvestigation conducted gave way to a finding of conspiracy among the accused and this resulted to the filing of a single Amended Information under Criminal Case No. 91-1592 and to the withdrawal of the other Informations. The Amended Information reads:

That on or about September 6, 1991 in Pasay City, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, conspiring, confederating and mutually helping one another, did, then and there, willfully, unlawfully and feloniously carry and transport into the country without lawful authority, 31.112 kilograms, more or less, ofMETHAMPHETAMINE HYDROCHLORIDE, also popularly known as SHABU, a regulated drug. CONTRARY TO LAW.
[16]

After pleading not guilty to the crime charged,

[17]

all the accused testified almost identically, invoking denial as their defense. They claimed that

they have no knowledge about the transportation of illegal substance (shabu) taken from their traveling bags which were provided by the travel agency.

Ruling of the Regional Trial Court

Earl Louie

Ho Wai Pang vs People

On April 6, 1995, the RTC rendered a Decision decretal portion of which reads:

[18]

finding all the accused guilty of violating Section 15, Article III of R.A. No. 6425, as amended, the

WHEREFORE, all the foregoing considered, the Court finds the accused LAW KA WANG, CHAN CHIT YUE, HO WAI PANG, WU HING SUM, TIN SUN MAO, AND KIN SAN HO (HO KIN SAN) GUILTY of Conspiracy in violating Section 15, Article III, Republic Act No. 6425, as amended for having conspired to transport into the Philippines 31.112 kilograms of methamp[h]etamine hydrochloride, locally known as Shabu, and they are hereby sentenced to suffer the PENALTY OF IMPRISONMENT OF SIX (6) [sic] RECLUSION PERPETUA AND TO PAY EACH (SIC) THE AMOUNT OF THIRTY (30) THOUSAND PESOS (P30,000.00) each as FINE, the penalty of reclusion perpetua is being imposed pursuant to Republic Act No. 7659 considering its applicability to the accused though retroactively for having a less stricter penalty than that of life imprisonment provided in Republic Act No. 6425. The fine of P30,000.00 for each accused is imposed pursuant to R.A. No. 6425 it being more favorable to the accused [than] that provided in R.A. No. 7659 WITH IMMEDIATE DEPORTATION AFTER SERVICE OF SENTENCE. The penalty of death cannot be imposed since the offense was committed prior to the effectivity of R.A. No. 7659. Let an alias warrant of arrest be issued against accused WONG KOK WAH @ SONNY WONG, CHAN TAK PIU, HO WAI LING AND INOCENCIA CHENG. SO ORDERED.
[19]

From this judgment, all the accused appealed to this Court where the case records were forwarded to per Order of the RTC dated May 10, 1995.
[20]

Later, all the accused except for petitioner, filed on separate dates their respective withdrawal of appeal.
[22] [23]

[21]

This Court, after being satisfied

that the withdrawing appellants were fully aware of the consequences of their action, granted the withdrawal of their respective appeals through a Resolution dated June 18, 1997. Per Entry of Judgment, said Resolution became final and executory on July 7, 1997. Consequently, petitioner

was the only one left to pursue his appeal.

[24] [25]

Petitioner filed his Brief

on April 6, 1998 while the brief

[26]

for the respondent People of the Philippines was filed on August 27, 1998 through

the Office of the Solicitor General (OSG). Per Resolution

dated August 30, 2004, this Court referred the appeal to the CA for proper disposition and
[27]

determination pursuant to this Courts ruling in People v. Mateo. Ruling of the Court of Appeals

On June 16, 2006, the CA denied the appeal and affirmed the Decision of the RTC. While conceding that petitioners constitutional right to counsel during the custodial investigation was indeed violated, it nevertheless went on to hold that there were other evidence sufficient to warrant his conviction. The CA also rebuked petitioners claim that he was deprived of his constitutional and statutory right to confront the witnesses against him. The CA gave credence to the testimonies of the prosecution witnesses and quoted with favor the trial courts ratiocination regarding the existence of conspiracy among the accused.
[28] [29]

Undeterred, petitioner filed a Motion for Reconsideration

which the CA denied in its Resolution

dated January 16, 2007.

Hence, this petition for review on certiorari anchored on the following grounds:

Earl Louie

Ho Wai Pang vs People

I WHILE ACKNOWLEDGING THAT PETITIONER WAS DEPRIVED OF HIS CONSTITUTIONAL AND STATUTORY RIGHTS UNDER CUSTODIAL INVESTIGATION BOTH BY THE CUSTOMS OFFICIALS AND BY THE NBI INVESTIGATORS, THE HONORABLE COURT OF APPEALS ERRED IN NOT EXCLUDING EVIDENCE TAKEN DURING THE CUSTODIAL INVESTIGATION. II THE HONORABLE COURT OF APPEALS ERRED IN NOT CONSIDERING THAT PETITIONER WAS DEPRIVED OF HIS CONSTITUTIONAL RIGHT TO CONFRONT THE WITNESSES AGAINST HIM.

III THE HONORABLE COURT OF APPEALS ERRED IN NOT FINDING THAT THE PROSECUTIONS EVIDENCE FAILED TO ESTABLISH THE EXISTENCE OF A CONSPIRACY.

IV THE HONORABLE COURT OF APPEALS ERRED IN NOT FINDING THAT THE PROSECUTION FAILED TO PRESENT PROOF BEYOND REASONABLE DOUBT AS TO OVERTURN THE PRESUMPTION OF INNOCENCE ACCORDED TO PETITIONER BY THE [30] CONSTITUTION.

OUR RULING

The petition lacks merit. Section 12, Article III of the Constitution prohibits as evidence only confessions and admissions of the accused as against himself.

Anent the error first assigned, petitioner takes issue on the fact that he was not assisted by a competent and independent lawyer during the custodial investigation. He claimed that he was not duly informed of his rights to remain silent and to have competent counsel of his choice. Hence, petitioner faults the CA in not excluding evidence taken during such investigation.

While there is no dispute that petitioner was subjected to all the rituals of a custodial questioning by the customs authorities and the NBI in violation of his constitutional right under Section 12
[31]

of Article III of the Constitution, we must not, however, lose sight of the fact that what said
[32]

constitutional provision prohibits as evidence are only confessions and admissions of the accused as against himself. Thus, in Aquino v. Paiste,

the

Court categorically ruled that the infractions of the so-called Miranda rights render inadmissible only the extrajudicial confession or admission made during custodial investigation. The admissibility of other evidence, provided they are relevant to the issue and [are] not otherwise excluded by law or rules, *are+ not affected even if obtained or taken in the course of custodial investigation.

In the case at bench, petitioner did not make any confession or admission during his custodial investigation. The prosecution did not present any extrajudicial confession extracted from him as evidence of his guilt. Moreover, no statement was taken from petitioner during his detention and subsequently used in evidence against him. Verily, in determining the guilt of the petitioner and his co-accused, the trial court based its Decision on the

Earl Louie

Ho Wai Pang vs People

testimonies of the prosecution witnesses and on the existence of the confiscated shabu. As the Court held in People v. Buluran,

[33]

*a+ny allegation of

violation of rights during custodial investigation is relevant and material only to cases in which an extrajudicial admission or confession extracted from the accused becomes the basis of their conviction. Hence, petitioners claim that the trial court erred in not excluding evidence taken during the custodial investigation deserves scant consideration.
[34]

Petitioner cannot take refuge in this Courts ruling in People v. Wong Chuen Ming

to exculpate himself from the crime charged. Though there

are semblance in the facts, the case of Ming is not exactly on all fours with the present case. The disparity is clear from the evidence adduced upon which the trial courts in each case relied on in rendering their respective decisions. Apparently in Ming, the trial court, in convicting the accused, relied heavily on the signatures which they affixed on the boxes of Alpen Cereals and on the plastic bags. The Court construed the accuseds act of affixing their signatures thereon as a tacit admission of the crime charged. And, since the accused were not informed of their Miranda rights when they affixed their signatures, the admission was declared inadmissible evidence for having been obtained in violation of their constitutional rights. In ruling against the accused, the trial court also gave credence to the sole testimony of the customs examiner whom it presumed to have performed his duties in regular manner. However, in reversing the judgment of conviction, the Court noted that said examiners testimony was not corroborated by other prosecution witnesses.

On the other hand, petitioners conviction in the present case was on the strength of his having been caught in flagrante delicto transporting shabu into the country and not on the basis of any confession or admission. Moreover, the testimony of Cinco was found to be direct, positive and credible by the trial court, hence it need not be corroborated. Cinco witnessed the entire incident thus providing direct evidence as eyewitness to the very act of the commission of the crime. As the Court held in People v Dela Cruz,
[35]

*n+o rule exists which requires a testimony to be

corroborated to be adjudged credible. x x x Thus, it is not at all uncommon to reach a conclusion of guilt on the basis of the testimony of a single witness despite the lack of corroboration, where such testimony is found positive and credible by the trial court. In such a case, the lone testimony is sufficient to produce a conviction.

Indeed, a ruling in one case cannot simply be bodily lifted and applied to another case when there are stark differences between the two cases. Cases must be decided based on their own unique facts and applicable law and jurisprudence. Petitioner was not denied of his right to confrontation.

Turning now to the second assigned error, petitioner invokes the pertinent provision of Section 14(2) of Article III of the 1987 Philippine Constitution providing for the right to confrontation, viz: Section 14. x x x (2) In all criminal prosecutions, the accused shall be presumed innocent until the contrary is proved, and shall enjoy the right to be heard by himself and counsel, to be informed of the nature and cause of the accusation against him, to have a speedy, impartial, and public trial, to meet the witnesses face to face, and to have compulsory process to secure the attendance of witnesses and the production of evidence in his behalf. However, after arraignment, trial may proceed notwithstanding the absence of the accused provided that he has been duly notified and his failure to appear is unjustifiable.

Earl Louie

Ho Wai Pang vs People

Petitioner asserts that he was deprived of his right to know and understand what the witnesses testified to. According to him, only a full understanding of what the witnesses would testify to would enable an accused to comprehend the evidence being offered against him and to refute it by crossexamination or by his own countervailing evidence.

In refutation, the OSG countered that petitioner was given the opportunity to confront his accusers and/or the witnesses of the prosecution when his counsel cross-examined them. It is petitioners call to hire an interpreter to understand the proceedings before him and if he could not do so, he should have manifested it before the court. At any rate, the OSG contends that petitioner was nevertheless able to cross-examine the prosecution witnesses and that such examination suffices as compliance with petitioners right to confront the witnesses against him.

We agree with the OSG.

As borne out by the records, petitioner did not register any objection to the presentation of the prosecutions evidence particularly on the testimony of Cinco despite the absence of an interpreter. Moreover, it has not been shown that the lack of an interpreter greatly prejudiced him. Still and all, the important thing is that petitioner, through counsel, was able to fully cross-examine Cinco and the other witnesses and test their credibility. The right to confrontation is essentially a guarantee that a defendant may cross-examine the witnesses of the prosecution. In People v. Libo-on,
[36]

the Court held:

The right to confrontation is one of the fundamental rights guaranteed by the Constitution to the person facing criminal prosecution who should know, in fairness, who his accusers are and must be given a chance to cross-examine them on their charges. The chief purpose of the right of confrontation is to secure the opportunity for cross-examination, so that if the opportunity for cross-examination has been secured, the function and test of confrontation has also been accomplished, the confrontation being merely the dramatic preliminary to cross-examination.

Under the circumstances obtaining, petitioners constitutional right to confront the witnesses against him was not impaired. Conspiracy among the accused was duly established.

Respecting the third assigned error, we uphold the trial courts finding of conspiracy which was quoted by the appellate court in its assailed Decision, and which we once again herein reproduce with approval: On the allegation of conspiracy, the Court finds [no] direct evidence to conclude conspiracy. However, just like in other cases where conspiracy is not usually established by direct evidence but by circumstantial evidence, the Court finds that there are enough circumstantial evidence which if taken together sufficiently prove conspiracy. First, it cannot be denied that the accused somehow have known each other prior to their [departure] in Hong Kong for Manila. Although Law Ka Wang denied having known any of the accused prior to the incident in NAIA, accused Ho Wai Pang identified him as the one who assisted him in the supposed tour in the Philippines to the extent of directly dealing with the travel agency and [that] Law Ka Wang was the one who received the personal things of Ho Wai Pang allegedly to be place[d] in a bag provided for by the travel agency. Accused Wu Hing Sum has been known to accused Ho Kin San for about two to three years as they used to work as cooks in a restaurant in Hong Kong. Accused Ho Wai Ling, who is still at large, is know[n] to accused Chan Chit Yue, Wu Hing Sum and Ho Kin San. These relationships in a way can lead to the presumption that they have the capability to enter into a conspiracy. Second, all the illegal substances confiscated from the six accused were contained in chocolate boxes of similar sizes and almost the same weight all contained in their luggages. The Court agrees with the finding of the trial prosecutor that under the given circumstances, the offense charged

Earl Louie

Ho Wai Pang vs People

[c]ould have been perpetrated only through an elaborate and methodically planned conspiracy with all the accused assiduously [37] cooperating and mutually helping each other in order to ensure its success.

We find no cogent reason to reverse such findings.

[38]

Conspiracy is *the+ common design to commit a felony.

*C+onspiracy which determines criminal culpability need not entail a close

[39]

personal association or at least an acquaintance between or among the participants to a crime. came together and agreed in express terms to enter into and pursue a common design.
[41] [40]

It need not be shown that the parties actually

The assent of the minds may be and, from the secrecy of

the crime, usually inferred from proof of facts and circumstances which, taken together, indicate that they are parts of some complete whole as we ruled in People v. Mateo, Jr. Here, it can be deduced from petitioner and his co-accuseds collective conduct, viewed in its totality, that there was a

common design, concerted action and concurrence of sentiments in bringing about the crime committed. Petitioners guilt was proved beyond reasonable doubt.

Finally, petitioner asserts that the prosecution failed to prove his guilt beyond reasonable doubt. He makes capital on the contention that no chocolate boxes were found in his traveling bag when it was examined at the ICU. He claimed that it was his co-accused Sonny Wong who took charge in ascribing upon him the possession of the two chocolate boxes.

Petitioners contentions fail to persuade.

True, when principal prosecution witness Cinco first testified on June 3, 1992, she declared that she did not see any chocolate boxes but only personal effects in petitioners bag.
[43] [42]

Nonetheless, she clarified in her succeeding testimony that she recalls taking the two chocolate boxes from

petitioners bag when they were still at the counter. This sufficiently explained why Cinco did not find any chocolate boxes from petitioners bag when they were at the ICU. To us, this slight clash in Cincos statements neither dilute her credibility nor the veracity of her testimony.
[44]

The trial courts words on this matter when it resolved petitioners Demurrer to Evidence in its Order enlightening. Thus

of February 16, 1993 is quite

In claiming that the evidences [sic] presented by the prosecution is insufficient to command conviction, the Demurrer went on to say that the testimony of Hilda Cinco is either conjectural or hearsay and definitely missed its mark in incriminating accused, Ho Wai Pang, because she even testified that she found nothing inside the hand-carried luggage of Ho Wai Pang (pp. 48-49, TSN, June 3, 1992). But that was when investigation was going on at the Intensive Counting Unit (ICU). However, the same Hilda Cinco later on testified that from the express lane in going to the ICU, after the discovery of shabu, she was already carrying with her four (4) chocolate boxes, two of [which] taken from the bag of Tin Sun Mau and the other two retrieved from the luggage of herein movant, Ho Wai Pang. Categorically, Cinco admitted it was the reason that at the ICU, Ho Wai Pangs bag was already empty (pp. 53-54, TSN, June 3, 1992), but she nonetheless recognized the bag and could recall the owner thereof, pointing to Ho Wai Pang. Such testimony is not hearsay evidence. They are facts from the personal perception of the witness and out of her personal [45] knowledge. Neither is it conjectural.

Earl Louie

Ho Wai Pang vs People

Jurisprudence teaches that in assessing the credibility of a witness, his testimony must be considered in its entirety instead of in truncated parts. The technique in deciphering a testimony is not to consider only its isolated parts and anchor a conclusion on the basis of said parts. In ascertaining the facts established by a witness, everything stated by him on direct, cross and redirect examinations must be calibrated and considered.
[46]

Also, where there is nothing in the records which would show a motive or reason on the part of the witnesses to falsely implicate the

accused, identification should be given full weight. Here, petitioner presented no evidence or anything to indicate that the principal witness for the prosecution, Cinco, was moved by any improper motive, hence her testimony is entitled to full faith and credit.

Verily, the evidence adduced against petitioner is so overwhelming that this Court is convinced that his guilt has been established beyond reasonable doubt. Nothing else can speak so eloquently of his culpability than the unassailable fact that he was caught red-handed in the very act of transporting, along with his co-accused, shabu into the country. In stark contrast, the evidence for the defense consists mainly of denials.

Petitioner tried to show that he was not aware of the shabu inside his luggage considering that his bag was provided by the travel agency. However, it bears stressing that the act of transporting a prohibited drug is a malum prohibitum because it is punished as an offense under a special law. As such, the mere commission of the act is what constitutes the offense punished and same suffices to validly charge and convict an individual caught committing the act so punished regardless of criminal intent. Moreover, beyond his bare denials, petitioner has not presented any plausible proof to successfully rebut the evidence for the prosecution. It is basic that affirmative testimony of persons who are eyewitnesses of the events or facts asserted easily overrides negative testimony.
[47]

All told, we are convinced that the courts below committed no error in adjudging petitioner guilty of transporting methamphetamine hydrochloride or shabu into the country in violation of Section 15, Article III of R.A. No. 6425, as amended.

Penalty

As to the penalties imposed by the trial court and as affirmed by the appellate court, we find the same in accord with law and jurisprudence. It should be recalled that at the time of the commission of the crime on September 6, 1991, Section 15 of R.A. No. 6425 was already amended by Presidential Decree No. 1683.
[48]

The decree provided that for violation of said Section 15, the penalty of life imprisonment to death and a
[49]

fine ranging from P20,000.00 to P30,000.00 shall be imposed. Subsequently, however, R.A. No. 7659

further introduced new amendments to

Section 15, Article III and Section 20, Article IV of R.A. No. 6425, as amended. Under the new amendments, the penalty prescribed in Section 15 was changed from life imprisonment to death and a fine ranging from P20,000.00 to P30,000.00 to reclusion perpetua to death and a fine ranging from P500,000.00 to P10 million. On the other hand, Section 17 of R.A. No. 7659 amended Section 20, Article IV of R.A. No. 6425 in that the new penalty provided by the amendatory law shall be applied depending on the quantity of the dangerous drugs involved.

The trial court, in this case, imposed on petitioner the penalty of reclusion perpetua under R.A. No. 7659 rather than life imprisonment ratiocinating that R.A. No. 7659 could be given retroactive application, it being more favorable to the petitioner in view of its having a less stricter punishment.
[50]

We agree. In People v. Doroja,

we held:

Earl Louie

Ho Wai Pang vs People

In People v. Martin Simon (G.R. No. 93028, 29 July 1994) this Court ruled (a) that the amendatory law, being more lenient and favorable to the accused than the original provisions of the Dangerous Drugs Act, should be accorded retroactive application, x x x.

And, since reclusion perpetua is a lighter penalty than life imprisonment, and considering the rule that criminal statutes with a favorable effect to the accused, have, as to him, a retroactive effect,
[51]

the penalty imposed by the trial court upon petitioner is proper. Consequently, the Court

sustains the penalty of imprisonment, which is reclusion perpetua, as well as the amount of fine imposed by the trial court upon petitioner, the same being more favorable to him.

WHEREFORE premises considered, the petition is DENIED and the assailed June 16, 2006 Decision and January 16, 2007 Resolution of the Court of Appeals in CA-G.R. CR-H.C. No. 01459 are AFFIRMED.

SO ORDERED.

Earl Louie

People vs Galvez

G.R. No. 157221

March 30, 2007

PEOPLE OF THE PHILIPPINES, Appellee, vs. CESAR GALVEZ, Appellant. DECISION AUSTRIA-MARTINEZ, J.: For review before this Court is the Decision of the Court of Appeals (CA) in CA-G.R. CR No. 18255 dated March 30, 2001, which affirmed 2 the Decision of the Regional Trial Court (RTC) Isabela, Basilan finding the accused-appellant Cesar Galvez (Galvez), guilty of Murder, but modifying the penalty of the RTC from a sentence of "seventeen (17) years, four (4) months and one (1) day as minimum to twenty (20) years as maximum" to reclusion perpetua. The facts are as follows: At around 11 oclock in the evening of July 27, 1991, Danilo Perez, Rosalio Enojarda, Noel Cugal, Ricardo Francisco and Wilfredo Rellios, took a break from making copra to eat leftover dinner inside the copra kiln in the farm of Perez in Matarling, Lantawan, Basilan. When Enojarda stood up from the circle where they were eating to drink water, shots rang out and Enojarda fell to the ground shouting "Dan ya tupa comigo" (Dan, I am hit). The rest of the group took cover, crawling to different directions. After the attack, Rellios reported the 3 incident to the barangay captain and they brought Enojardas dead body to his family. On May 28, 1992, an Information was filed against Cesar Galvez (Galvez), a member of the Philippine National Police (PNP) for Murder, which reads: That on or about the 27th day of July, 1991, and within the jurisdiction of this Honorable Court, viz. at Matarling, Municipality of Lantawan, Province of Basilan, Philippines, the above named accused, armed with an M16 armalite rifle, with treachery and evident premeditation, and with intent to kill, did then and there willfully, unlawfully and feloniously assault, attack and shoot one Rosalio 4 Enojarda with the said M16 armalite rifle, thereby inflicting gunshot wound on the body of the latter which caused his death. The prosecution presented evidence showing that: after Enojarda fell, the rest of the group took cover and Rellios while in a crawling position, saw Galvez about 5 meters away holding an armalite rifle and firing at their direction; Rellios also saw that Galvez had 5 companions but did not recognize them as well as the firearms they carried because they were approximately nine meters away; Perez, also crawled and hid in the bushes about 5 meters away; when the firing stopped, one of the attackers passed by about two meters from where Perez was hiding and because the moon was bright, he recognized Galvez, his cousin, who was wearing a fatigue uniform and armed with an armalite rifle; he also saw that Galvez had three armed companions but did not recognize them nor the firearms they 6 were carrying because they were about nine meters from Galvez. Galvez put up denial and alibi as his defenses. He testified that he was staying at his father-in-laws house on July 27, 1991 and 7 drank tuba at around 10:30 p.m. at a nearby store. He went home and slept with his wife soon after. To corroborate his testimony, he 8 presented SPO2 Danilo Ramillano, a visitor at his father-in-laws house and Wilhelmina Espinosa, a sari-sari store owner. He also presented Athena Elisa Anderson, Document Examiner and Forensic Analyst of the PNP Crime Laboratory of Region 9, Zamboanga City, 9 who testified that the paraffin test conducted on both his hands showed that there was no nitrate present; and Police Inspector Lemuel 10 Caser, Ballistic Examiner, who testified that the shells found at the scene of the crime were not fired from the firearm issued to Galvez. After trial, the RTC rendered its Decision dated February 27, 1995 with the following findings: From the foregoing facts as well as from the records of this case, this Court finds the following facts to be undisputable, to wit:
1

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People vs Galvez

1) That at the late night of July 27, 1991, Rosalio Enojarda, while making copra in the coconut land of Danilo Perez at Matarling, Lantawan, Basilan, was shot to death by one of the four (4) men. How many gunshot wounds he suffered and what part of his body was hit by the gunfire, the evidence is found wanting. 2) That a day before the incident and on the date of the incident which was July 27, 1991, the accused Cesar Galvez has not fired any firearms. xxx 3) That the five (5) empty shells of armalite rifleallegedly found by Barangay Captain Inocente Manicap from the scene of the crime and later turned over to PFC Samuel Omoso, the Police Investigator of this case, did not come from the M16 armalite rifle 11 with Serial No. 117460, the gun issued to the accused Cesar Galvez. (citations omitted). Further, the trial court found that the testimonies of the prosecution witnesses, Rellios and Perez, were credible and trustworthy as there was no motive to perjure themselves; that the testimony of defense witness SPO2 Ramillano was full of loopholes; and that the 12 testimony of the store owner was insufficient to disprove the presence of the accused at the scene of the crime. The RTC concluded: xxx since this accused, Cesar Galvez, has not fired his M16 armalite rifle on that night of July 27, 1991, and those five (5) empty shells were not fired from his armalite, then xxx the bullet that hit and instantly killed Rosalio Enojarda on that night of July 27, 1991 at the copra kiln of Danilo Perez came from the gun fired by any of the three (3) unidentified persons who were the companions of the 13 accused, Cesar Galvez at the night of the incident xxx. (emphasis supplied) Despite the fact that the Information failed to allege conspiracy and the aggravating circumstances of nocturnity and armed band, the RTC still convicted Galvez of murder based on conspiracy since Galvez was seen by two witnesses at the scene of the crime carrying a 14 firearm together with his unidentified armed companions. The trial court also held that the offer of Galvez to have the case settled out 15 of court is an indication of his guilt. The RTC then disposed of the case as follows: WHEREFORE, all factual and circumstantial matters surrounding the commission of the crime, being carefully and meticulously examined and studied, this Court finds the accused SPO2 Cesar Galvez, a member of the Philippine National Police GUILTY beyond reasonable doubt as principal in committing the crime of Murder as alleged in the Information and which crime is defined and penalized under Art. 248 of the Revised Penal Code, but considering his good military records after the commission of the crime, hereby sentences him to suffer an imprisonment of SEVENTEEN (17) YEARS, FOUR (4) MONTHS and ONE (1) DAY as minimum, to TWENTY (20) YEARS as maximum, which is the minimum period of Reclusion Temporal in its maximum period to death. And to indemnify the heirs of the late Rosalio Enojarda, the amount of P50,000.00 as moral damages and to pay the Court the amount of P500.00 as judicial costs and other accessory penalties attached to the penalty of Reclusion Temporal. And further this accused is hereby stripped of all the military ranks he now hold [sic] in the Armed Forces of the Philippines. And upon the promulgation of this decision, the accused shall immediately be committed to the Provincial Jail where the Provincial Warden is directed to immediately transfer him to the National Penitentiary at San Ramon Penal Colony at Zamboanga City for commitment thereat. And the property bail bond he has posted for his provisional liberty is hereby ordered cancelled and its pertinent papers returned, upon 16 receipt to the bondsman. Galvez appealed the case to the CA, docketed as CA-G.R. CR No. 18255, which rendered its Decision on March 30, 2001 affirming his guilt but modifying the penalty to be imposed, thus:

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People vs Galvez

WHEREFORE, with the MODIFICATION that appellant CESAR GALVEZ is hereby sentenced to reclusion perpetua, the decision appealed 17 from is hereby AFFIRMED in all other respects. The CA held that the RTC erred in holding Galvez criminally liable based on conspiracy when such fact was not alleged in the 18 Information. However, it still found Galvez guilty of Murder. The CA reasoned that: the negative results of the paraffin and ballistic tests do not negate the possibility that Galvez used another gun in shooting the victim; the eyewitnesses of the prosecution identified Galvez as the perpetrator if not one of the perpetrators of the crime; alibi, which was offered by Galvez, is the weakest of all defenses and cannot prevail over positive identification; the offer of Galvez to the wife of the victim to have the case settled is also a strong indication of Galvezs culpability; and treachery was adequately established as the attack was sudden, unexpected and did not accord 19 the victim an opportunity to defend himself. The CA further held that since there was no mitigating circumstance, the proper penalty 20 should be reclusion perpetua. Galvez filed a Motion for Reconsideration which the CA denied in its Resolution dated August 21, 2001, stating that it was a mere 22 rehash of the arguments already addressed in the decision. The entire records of the case were forwarded to this Court pursuant to Section 13, Rule 124 of the Rules of Criminal Procedure. On 23 April 8, 2003, the Court issued a Resolution accepting the case; committing the accused to the Davao Prison and Penal Farm; and 24 informing the accused and the Solicitor General that they may file additional briefs with this Court. In his Appellants Brief, Galvez argued that the trial court erred: I IN HOLDING THAT (HE) THE ACCUSED-APPELLANT IS LIABLE FOR MURDER FOR THE DEATH OF ROSALIO ENOJARDA ON JULY 27, 1991 DESPITE ITS EXPRESS FINDINGS THAT THE ACCUSED-APPELLANT DID NOT FIRE HIS RIFLE ON THAT FATAL NIGHT AND THAT THE BULLET THAT HIT AND KILLED ROSALIO ENOJARDA COULD HAVE BEEN FIRED FROM ANY OF THE GUNS OR RIFLES BELONGING TO ANY OF THE THREE UNIDENTIFIED PERSONS WHO WERE NOT CHARGED NOR INDICTED TOGETHER WITH THE ACCUSED IN THE SAME CRIMINAL INFORMATION IN QUESTION. II IN HOLDING THAT DANILO PEREZ AND WILFREDO RELLIOS, WHILE IN CRAWLING POSITION WHOSE CHESTS WERE ALMOST TOUCHING THE GROUND AND UNDER CONDITIONS DESCRIBED BY THEM, HAD SEEN THE ACCUSED-APPELLANT ARMED WITH M16 ARMALITE RIFLE IN THE NIGHTIME, OF 27 JULY 1991 DESPITE DANILO PEREZ *sic+ POSITIVE ASSERTION THAT IT WAS IMPOSSIBLE OF HIS (SIC) TO 25 IDENTIFY THE ACCUSED WHEN ASKED TO DEMONSTRATE IN OPEN COURT IN THE MANNER AND CIRCUMSTANCE NARRATED BY HIM. In his Supplemental Appellants Brief, Galvez further claims that it was seriously erroneous: I. TO CONCLUDE THAT THERE WAS CONSPIRACY BETWEEN ACCUSED-APPELLANT AND THE OTHER MALEFACTORS NOT INCLUDED IN THE PRESENT CASE. II. TO BE SELECTIVE IN APPRECIATING MATTERS NOT INCLUDED IN THE INFORMATION, MORE SO THE THEORY OF CONSPIRACY AGAINST ACCUSED-APPELLANT, THERE BEING NO OTHER PERSONS CHARGED IN THE PRESENT CASE. III. TO FIND THE ACCUSED-APPELLANT GUILTY OF MURDER UNDER CIRCUMSTANCES FAR DIFFERENT FROM THE INFORMATION, IN EFFECT DENYING ACCUSED-APPELLANT [THE] RIGHT TO BE INFORMED OF THE NATURE AND CAUSE OF ACCUSATION AGAINST HIM.
21

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People vs Galvez

IV. TO GIVE CREDENCE TO THE TESTIMONIES OF THE TWO ALLEGED EYE WITNESSES WHOSE DECLARATIONS WERE CLEARLY BELIED DURING THEIR CROSS EXAMINATION. V. NOT TO CONSIDER THE DEFENSE OF ALIBI OF ACCUSED-APPELLANT. VI. TO MAKE UNSUBSTANTIATED, BASELESS PRESUMPTIONS AND CONCLUSIONS IN A CRIMINAL CASE WHERE THE INNOCENCE OF THE 26 ACCUSED IS PRESUMED. Galvez also filed an Addendum to Supplemental Appellants Brief adding that: VII THE HONORABLE COURT OF APPEALS SERIOUSLY ERRED IN DISREGARDING THE RESULTS OF THE PARAFFIN AND BALLISTIC TESTS AND IN 27 ASSUMING THAT THE ACCUSED-APPELLANT SHOT THE DECEASED USING AN M16 RIFLE OTHER THAN THE ONE ISSUED TO HIM. Galvez contends that: the degree of proof required in criminal cases is proof beyond reasonable doubt because an accused is always 28 presumed to be innocent unless proven otherwise; when circumstances yield two or more inferences, one of which is consistent with the presumption of innocence and the other compatible with the finding of guilt, the court must side with that which will acquit the accused; in this case, the RTC found undisputed the fact that he did not shoot the victim on the night of July 27, 1991 and the firearm that was used in killing the victim was owned and possessed by another man, as shown by the negative results of the paraffin and ballistic tests; the statement of Danilo Perez that he saw the accused on the night of July 27, 1991 is not credible since Perez was in a crawling position with his chest almost touching the ground at the time he allegedly saw the accused; Judge Memoracion, who penned the decision could not have assessed the demeanor of the prosecution witnesses while testifying as it was another judge who heard and 29 received their testimonies; the two defense witnesses, who corroborated his (Galvezs) alibi are unbiased and unrelated to him; while alibi is the weakest defense, it is the only defense if it is the truth and it assumes importance where the prosecution evidence is weak; the statement of the trial court that the offer of the accused to have the case extra-judicially settled is a tacit admission of guilt is also 30 unsubstantiated as there is nothing in the records that shows that the accused made an offer to settle the case out of court. For the plaintiff-appellee, the Solicitor General argued that: the paraffin test and the ballistic examination are not conclusive proof that Galvez did not fire a gun during the incident; in this case, the paraffin test was conducted on Galvez two days from the date of the incident; Galvez was also positively identified by the prosecution witnesses as one of four armed men who attacked them during the incident; Perez clarified that while he was in a crawling position, he was looking upward, thus, he was able to identify Galvez; between Galvezs alibi and the positive declarations of witnesses whose testimonies have not been assailed nor discredited by improper motive, the latter deserves greater credence; the trial court correctly convicted Galvez of murder as there was treachery since the victim was not in a position to defend himself from the attack of the accused; the proper penalty should bereclusion perpetua under Art. 248 of the 31 Revised Penal Code as there was no mitigating circumstance; Galvez is also liable for temperate damages of P25,000.00 since pecuniary loss has been suffered although its exact amount could not be determined, and exemplary damages of P25,000.00 due to the presence of the qualifying circumstance of treachery; the amount of P50,000.00 as civil indemnity should also be awarded to the heirs of 32 the victim together with the P50,000.00 awarded by the trial court for moral damages. After reviewing the entire records of the case, the Court resolves to acquit Galvez. Conspiracy must be alleged in the information in order that an accused may be held liable for the acts of his co-accused. In the absence of any averment of conspiracy in the information, an accused can only be made liable for the acts committed by him alone and such 33 criminal responsibility is individual and not collective.

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People vs Galvez

As explained in People v. Tampis,

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The rule is that conspiracy must be alleged, not merely inferred, in the information. Absence of a particular statement in the accusatory portion of the charge sheet concerning any definitive act constituting conspiracy renders the indictment insufficient to hold one accused liable for the individual acts of his co-accused. Thus, each of them would be held accountable only for their respective participation in 35 the commission of the offense. The rationale for this rule has long been settled. In People v. Quitlong, the Court explained: Overwhelming, such as it may have been thought of by the trial court, evidence of conspiracy is not enough for an accused to bear and respond to all its grave legal consequences; it is equally essential that such accused has been apprised when the charge is made conformably with prevailing substantive and procedural requirements. Article III, Section 14, of the 1987 Constitution, in particular, mandates that no person shall be held answerable for a criminal offense without due process of law and that in all criminal prosecutions the accused shall first be informed of the nature and cause of the accusation against him. The right to be informed of any such indictment is likewise explicit in procedural rules. x x x xxx x x x Quite unlike the omission of an ordinary recital of fact which, if not excepted from or objected to during trial, may be corrected or supplied by competent proof, an allegation, however, of conspiracy, or one that would impute criminal liability to an accused for the act of another or others, is indispensable in order to hold such person, regardless of the nature and extent of his own participation, equally guilty with the other or others in the commission of the crime. Where conspiracy exists and can rightly be appreciated, the individual acts done to perpetrate the felony becomes of secondary importance, the act of one being imputable to all the others. Verily, an accused must know from the information whether he faces a criminal responsibility not only for his acts but also for the acts of his co36 accused as well. Since conspiracy was not alleged in the Information in this case, it is imperative that the prosecution prove Galvezs direct participation in the killing of the victim. This, the prosecution failed to do. The CA, in holding Galvez guilty of Murder, gave weight to the testimonies of the prosecution witnesses Rellios and Perez that they saw Galvez fire an armalite rifle in their direction on the night in question. The positive identification of these witnesses, the CA ruled, has 37 more weight than the negative results of the paraffin and ballistic tests. We disagree. The prosecution witnesses never actually saw Galvez shoot the victim. While this Court does not ordinarily interfere with the findings of the lower courts on the trustworthiness of witnesses, when there appears on the records, however, facts and circumstances of real weight which might have been overlooked or misapprehended, this Court cannot shirk from its duty to render the law and apply 38 justice. During his direct examination, Perez testified as follows: Q: While you were eating your merienda at about 11:00 oclock in the evening on July 27, 1991 what happened? A: Suddenly we heard shots and we could not determine where it came from and one of our companion was hit. Q: Do you know who was that companion of yours who was hit? A: Yes, Rosalio Enojarda. xxx

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People vs Galvez

Q: After you heard the gun fire which hit your companion Rosalio Enojarda, what did you do? A: I dropped and crawled, sir. xxx Q: And then did the gunfire stop after you hid yourself among the grasses? A: Yes sir. Q: What happened after the firings stopped, when you were already hiding among the grasses? A: I recognized the culprit sir because he passed by where I was hiding about two meters from me. Q: You said you recognized the culprit when he passed by where you were hiding, who was that culprit? A: Cesar Galvez, sir. xxx COURT: After you heard the shots how long after you saw him passed by? xxx Q: Was it 30 minutes after? xxx A: In my own estimate about 20 to 25 minutes. Q: In other words more or less you saw him (accused) passed by together with his companions around 20 to 25 minutes after you heard the shots, is that what you want to impress this Court? A: Yes, Your Honor. xxx Q: Did you see him really shoot? A: No, Your Honor.
39

(Emphasis supplied)

During his cross-examination, Perez further testified: Q: So, when you said the explosions came from different directions, was not true? A: We heard shots but we do not know where it came from, what we did was to drop and crawl. COURT: (To the witness)

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People vs Galvez

You did not see the one firing? Yes, your Honor, because I crawled. Q: And how many minutes after you heard firings you saw this accused and companions pass by? A: I am not sure Your Honor about the exact time but I think it has about 20 to 25 minutes. xxx Q: Mr. Perez, you did not see the accused shot at Mr. Enojarda? A: No sir. (Emphasis supplied). Rellios also admitted during his cross-examination the following: Q: You did not actually see Mr. Galvez shoot at Mr. Enojarda? A: No sir. COURT: (To the witness) In other words you were only presuming that it was him. A: No, Your Honor, I saw him. ATTY. MARTIN: (Continuing) Did you understand the question when you were asked by the Court. Since you did not actually see Mr. Galvez shoot at the victim, and reportedly you saw him only five minutes thereafter, you only presume Mr. Galvez to have shoot Mr. Enojarda? A: Yes sir. (Emphasis supplied) Based on the above testimonies, the following circumstances appear to have been established: (1) at around 11 p.m., Enojarda, Rellios, Perez, and their two companions were eating merienda near the copra kiln when they were sprayed with gunfire; (2) Enojarda was fatally hit and fell on the ground; (3) Rellios, Perez and their two companions ducked and crawled to seek cover; (4) about five minutes after the first burst of gunfire, Galvez, armed with an M16 armalite rifle, was seen firing at Rellios, Perez and their two companions as well as in the direction of the copra kiln; and (5) about 20 to 25 minutes after the first burst of gunfire, Galvez was again seen clad in fatigue uniform and carrying an M16 armalite rifle along with three armed companions, after which, their group left the scene of the crime. However, these circumstances are not sufficient to establish the guilt of Galvez beyond reasonable doubt. It is well to emphasize the four basic guidelines that must be observed in assaying the probative value of circumstantial evidence: x x x (a) It should be acted upon with caution; (b) All the essential facts must be consistent with the hypothesis of guilt; (c) The facts must exclude every other theory but that of guilt of the accused; and, (d) The facts must establish with certainty the guilt of the accused as to convince beyond reasonable doubt that he was the perpetrator of the offense. The peculiarity of circumstantial evidence is that the series of events pointing to the commission of a felony is appreciated not singly but collectively. The guilt of the accused cannot be deduced from scrutinizing just one (1) particular piece of evidence. It is more like a puzzle which when put together reveals a convincing 43 picture pointing to the conclusion that the accused is the author of the crime.
42 41 40

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People vs Galvez

as well as the doctrines enunciated by the Court that the prosecution must establish beyond reasonable doubt every circumstance 44 essential to the guilt of the accused; and that every circumstance or doubt favoring the innocence of the accused must be duly taken 45 into account. The "incriminating circumstances" enumerated above are mainly based on the testimonies of prosecution witnesses Perez and Rellios. A perusal of said testimonies reveals, however, other circumstances that should be appreciated in favor of Galvez, to wit: (a) Both Perez and Rellios testified that they saw Galvez with three other armed companions minutes after Enojarda was shot 46 but they did not testify that they saw him in the vicinity before the shooting of Enojarda. (b) Perez testified that only one shot hit Enojarda.
47

(c) Perez testified that he did not see Galvez shoot at Enojarda and that he merely assumed that Galvez was the one who shot 48 49 the victim when the latter passed by him. Rellios testified that he only presumed that Galvez shot at Enojarda. (d) Perez testified that he had no misunderstanding with Galvez and that he does not know any motive why Enojarda was 51 killed. In considering both favorable and "incriminating" circumstances for or against Galvez, the following must always be borne in mind: that the Information charged Galvez as the sole perpetrator of the crime of Murder; that the three other armed men were not included as John Does; and that there was no allegation of conspiracy in the Information. Consequently, it was incumbent upon the prosecution to prove that Galvez was the sole author of the shot that killed Enojarda. The "incriminating circumstances" do not point to Galvez as the sole perpetrator of the crime. The presence of the three armed men raises the probability that any one of those men inflicted the fatal shot. It must be stressed that the prosecution witnesses merely presumed that it was Galvez who shot Enojarda. Moreover, the fact that Galvez was seen minutes after Enojarda was shot does not sufficiently establish that Galvez was the one who shot Enojarda. There is no evidence that Galvez was seen or was together with the three other armed men when Enojarda was hit. 52 There is a missing link that precludes the Court from concluding that it was Galvez who shot Enojarda. It cannot be said therefore that there was positive identification of Galvez through circumstantial evidence. In People v. Comendador, the Court held: While no general rule can be laid down as to the quantity of circumstantial evidence which will suffice in a given case, all the circumstances proved must be consistent with each other, consistent with the hypothesis that the accused is guilty, and at the same time inconsistent with the hypothesis that he is innocent, and with every other rational hypothesis except that of guilt. The circumstances proved should constitute an unbroken chain which leads to one fair and reasonable conclusion which points to the 54 accused, to the exclusion of all others as the guilty person. (Emphasis supplied) And in Dela Cruz v. People, the Court stressed, thus: To emphasize, the foundation of the ruling of acquittal is reasonable doubt, which simply means that the prosecutions evidence was not sufficient to sustain the guilt of the accused-petitioner beyond the point of moral certainty certainty that convinces and satisfies the reason and the conscience of those who are to act upon it. It is such proof to the satisfaction of the court, keeping in mind the presumption of innocence, as precludes every reasonable hypothesis except that which it is given to support it. An acquittal based on reasonable doubt will prosper even though the accuseds innocence may be doubted, for a criminal conviction rests on the strength of the evidence of the prosecution and not on the weakness of the defense. And, if 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, then the evidence does not fulfill the test of moral certainty and is not sufficient to support a conviction, and, thus, that which 56 is favorable to the accused should be considered. (Emphasis supplied).
55 53 50

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People vs Galvez

And when the evidence on the commission of the crime is purely circumstantial or inconclusive, motive is vital. As held in Crisostomo v. 57 Sandiganbayan, Motive is generally held to be immaterial because it is not an element of the crime. However, motive becomes important when the 58 evidence on the commission of the crime is purely circumstantial or inconclusive. Motive is thus vital in this case. In this case, prosecution witness Perez testified that he did not know of any motive on the part of Galvez to kill Enojarda. This is a circumstance that should be taken in favor of Galvez. In line with the ruling of the Court in Torralba v. People, to wit: Time and again, this Court has faithfully observed and given effect to the constitutional presumption of innocence which can only be overcome by contrary proof beyond reasonable doubt one which requires moral certainty, a certainty that convinces and satisfies the reason and conscience of those who are to act upon it. As we have so stated in the past Accusation is not, according to the fundamental law, synonymous with guilt, the prosecution must overthrow the presumption of innocence with proof of guilt beyond reasonable doubt. To meet this standard, there is need for the most careful scrutiny of the testimony of the State, both oral and documentary, independently of whatever defense is offered by the accused. Only if the judge below and the appellate tribunal could arrive at a conclusion that the crime had been committed precisely by the person on trial under such an exacting test should the sentence be one of conviction. It is thus required that every circumstance favoring innocence be duly taken into account. The proof against him must survive the test of reason; the strongest suspicion must not be permitted to 61 sway judgment. (Emphasis supplied) There could not be any doubt that the facts, as established by the circumstantial evidence, failed to exclude the possibility that another person shot Enojarda. There were three other armed men, any one of whom could be the culprit. When a crime is committed, it is the duty of the prosecution to prove the identity of the perpetrator of the crime beyond reasonable 62 doubt for there can be no conviction even if the commission of the crime is established. Indeed, the State, aside from showing the 63 existence of a crime, has the burden of correctly identifying the author of such crime. Both facts must be proved by the State beyond 64 reasonable doubt on the strength of its evidence and without solace from the weakness of the defense. Galvez correctly pointed out in his supplemental brief before this Court that it was erroneous for the CA to have affirmed the RTC ruling 65 that Galvezs offer to the victims wife to settle the case is a tacit admission of guilt. While the Court agrees that in criminal cases, an offer of compromise by the accused may be received in evidence as an implied 66 admission of guilt, such principle is not applicable in this case. The only basis of the RTC in concluding that Galvez made on offer of compromise, is the March 3, 1993 Order of the RTC which reads as follows: Considering that the accused as well as his Counsel, Atty. Bienvenido G. Martin appeared in Court together with Rosaflor Enojarda, the wife of the victim, and manifested that there is a possibility of understanding and settlement between the parties, the above-entitled 68 case is hereby reset for new assignment. Galvezs supposed offer of compromise was not formally offered and admitted as evidence during the trial. The victims widow or any prosecution witness did not testify on any offer of compromise made by Galvez. We have held that when the evidence on the alleged 69 offer of compromise is amorphous, the same shall not benefit the prosecution in its case against the accused. The Court also recognizes that there may be instances when an offer of compromise will not amount to an admission of guilt. Thus, 70 in People v. Godoy, the Court pronounced that:
67 60 59

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People vs Galvez

In criminal cases, an offer of compromise is generally admissible as evidence against the party making it. It is a legal maxim, which assuredly constitutes one of the bases of the right to penalize, that in the matter of public crimes which directly affect the public interest, no compromise whatever may be entered into as regards the penal action. It has long been held, however, that in such cases the accused is permitted to show that the offer was not made under a consciousness of guilt, but merely to avoid the inconvenience of imprisonment or for some other reason which would justify a claim by the accused that the offer to compromise was not in truth 71 an admission of guilt or an attempt to avoid the legal consequences which would ordinarily ensue therefrom. (Emphasis supplied). As the alleged offer of compromise was not presented in court, it was not shown that Galvez indeed made such an offer under the consciousness of guilt. Galvez was not given the opportunity to explain that it was given for some other reason that would justify a claim that it was not an admission of guilt or an attempt to avoid its legal consequences. In this case, the presumption of innocence of Galvez prevails over the alleged implied admission of guilt. In Godoy, the Court, in acquitting the accused, explained that: It frequently happens that in a particular case two or more presumptions are involved. Sometimes the presumptions conflict, one tending to demonstrate the guilt of the accused and the other his innocence. In such case, it is necessary to examine the basis for each presumption and determine what logical or social basis exists for each presumption, and then determine which should be regarded as the more important and entitled to prevail over the other. It must, however, be remembered that the existence of a presumption indicating his guilt does not in itself destroy the presumption against innocence unless the inculpating presumption, together with all the evidence, or the lack of any evidence or explanation, is sufficient to overcome the presumption of innocence by proving the defendants guilt beyond a reasonable doubt. Until the defendants guilt is shown in this manner, the presumption of innocence 72 continues. xxx The presumption of innocence, x x x is founded upon the first principles of justice, and is not a mere form but a substantial part of the law. It is not overcome by mere suspicion or conjecture; a probability that the defendant committed the crime; nor by the fact that he had the opportunity to do so. Its purpose is to balance the scales in what would otherwise be an uneven contest between the lone individual pitted against the People and all the resources at their command. Its inexorable mandate is that, for all the authority and influence of the prosecution, the accused must be acquitted and set free if his guilt cannot be proved beyond the whisper of a doubt. This is in consonance with the rule that conflicts in evidence must be resolved upon the theory of innocence rather than upon a theory 73 of guilt when it is possible to do so. Thus, taking into account all the circumstances in favor of Galvez, there could not be a moral certainty as to the guilt of Galvez. The prosecution has not proven the guilt of Galvez beyond reasonable doubt. It may be pointed out that the following circumstances support the conviction of Galvez as charged: (a) the negative findings of the paraffin and ballistic tests do not prove that Galvez did not fire a gun; (b) Galvez was a police officer who could have justified his presence at the scene of the crime with a lawful purpose, yet he put up alibi which is inherently weak; (c) Galvez did not present his wife and father-in-law as witnesses to corroborate his story that he was at their house on the night in question; and (d) Galvez refused three times to give a statement to the investigating police officer. These circumstances do not help the prosecution in the discharge of its duty to prove the guilt of Galvez beyond reasonable doubt. It is true that a negative finding in a paraffin test is not a conclusive proof that one has not fired a gun, as held by this Court in People v. 74 75 Pagal and People v. Teehankee which were cited by the CA in its Decision, since it is possible for a person to fire a gun and yet bear

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People vs Galvez

no traces of nitrate or gunpowder as when the hands are bathed in perspiration or washed afterwards. Such principle, however, has no bearing in the present case. In the Pagaland Teehankee cases, the Court concluded that a negative finding does not prove that the accused therein had not fired a gun because the accused were positively identified by witnesses as having shot their victims, unlike in the case at hand where Galvez is not positively identified by direct or circumstantial evidence that he shot Enojarda. If the principle should be given any weight at all, it should be in favor of Galvez, that is, considering that he is not positively identified, then, the negative results of the paraffin test bolster his claim that he did not shoot Enojarda, and not the other way around. The argument that the negative result of the ballistic examination does not prove that Galvez did not fire a gun during the incident as it was possible that he used another gun, should also be struck down. It is the prosecution which has the burden of showing that Galvez used a firearm other than the one issued to him and that such firearm, which Galvez used, was the one that killed the victim. It is not for Galvez to prove the opposite of the possibility adverted to by the prosecution as it is the prosecution which must prove his guilt beyond reasonable doubt and not for him to prove his innocence. Thus, while it is true that the negative results of the paraffin and ballistic tests do not conclusively prove that Galvez did not shoot the victim, the same negative results cannot be used as circumstantial evidence against Galvez to prove that he shot Enojarda. To do otherwise would violate the basic precepts of criminal law which presumes the innocence of the accused. Every circumstance favoring an accuseds innocence must be duly taken into account, the proof against him must survive the test of reason, and the strongest 77 suspicion must not be permitted to sway judgment. That Galvez was a police officer who could have justified his presence at the scene of the crime with a lawful purpose, yet he put up an alibi which is inherently weak; and that Galvez did not present his wife and father-in-law as witnesses to corroborate his story that he was at their house on the night in question, pertain to the weakness of Galvezs alibi which may cast doubt on his innocence. However, these circumstances do not prove beyond reasonable doubt Galvezs guilt. Although an accused must satisfactorily prove his alibi, the burden in criminal cases still rests on the prosecution to prove the accuseds guilt. The prosecution evidence must stand or fall on its own weight and cannot draw strength from the weakness of the defense. Unless the prosecution overturns the constitutional presumption of innocence of an accused by competent and credible evidence proving his guilt beyond reasonable doubt, the 78 presumption remains. Courts must judge the guilt or innocence of the accused based on facts and not on mere conjectures, 79 presumptions, or suspicions. That Galvez refused three times to give a statement to the investigating police officer is a prerogative given to the accused and should 80 not be given evidentiary value to establish his guilt. In People v. Saavedra, the Court held that an accused has the right to remain silent and his silence should not be construed as an admission of guilt. Even if the defense of the appellant may be weak, the same is inconsequential if, in the first place, the prosecution failed to discharge 81 the onus of his identity and culpability. Conviction must be based on the strength of the prosecution and not on the weakness of the defense, i.e., the obligation is upon the shoulders of the prosecution to prove the guilt of the accused and not the accused to prove his 82 83 innocence. The prosecutions job is to prove that the accused is guilty beyond reasonable doubt. Thus, when the evidence for the 84 prosecution is insufficient to sustain a conviction, it must be rejected and the accused absolved and released at once. Time and again, the Court has pronounced that the great goal of our criminal law and procedure is not to send people to jail but to 85 render justice. Under our criminal justice system, the overriding consideration is not whether the court doubts the innocence of the 86 accused, but whether it entertains reasonable doubt as to his guilt. It is indeed lamentable that because of the lapses of the Prosecution, justice could not be rendered in this case for the untimely death of Enojarda. Justice, however, would also not be served with the conviction of the herein accused. It is well to quote Justice Josue N. Bellosillo: In fine, we are not unmindful of the gravity of the crime charged; but justice must be dispensed with an even hand. Regardless of how much we want to punish the perpetrators of this ghastly crime and give justice to the victim and her family, the protection provided by the Bill of Rights is bestowed upon all individuals, without exception, regardless of race, color, creed, gender or political persuasion whether privileged or less privileged to be invoked without fear or favor. Hence, the accused deserves no less than an 87 acquittal; ergo, he is not called upon to disprove what the prosecution has not proved. (Emphasis supplied)

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Earl Louie

People vs Galvez

As the prosecution in this case failed to discharge its burden of proving Galvezs guilt beyond reasonable doubt, the Court has no choice but to acquit him. WHEREFORE, the Decision of the Regional Trial Court, Isabela, Basilan, Branch 1 in Criminal Case No. 1816 dated February 2, 1995 and the Decision of the Court of Appeals in CA-G.R. CR No. 18255 dated March 30, 2001 are REVERSED and SET ASIDE. The accusedappellant Cesar Galvez is hereby ACQUITTED on the ground that his guilt was not proven beyond reasonable doubt. The Director of the Bureau of Corrections is ordered to cause the immediate release of Cesar Galvez unless he is being lawfully held for another crime and to inform this Court accordingly within ten (10) days from notice. SO ORDERED.

Earl Louie