G.R. No.

L-409

January 30, 1947

ANASTACIO LAUREL, petitioner, vs. ERIBERTO MISA, respondent. RESOLUTION In G.R. No. L-409, Anastacio Laurel vs. Eriberto Misa, etc., the Court, acting on the petition for habeas corpus filed by Anastacio Laurel and based on a theory that a Filipino citizen who adhered to the enemy giving the latter aid and comfort during the Japanese occupation cannot be prosecuted for the crime of treason defined and penalized by article 114 of the Revised Penal Code, for the reason (1) that the sovereignty of the legitimate government in the Philippines and, consequently, the correlative allegiance of Filipino citizens thereto was then suspended; and (2) that there was a change of sovereignty over these Islands upon the proclamation of the Philippine Republic: (1) Considering that a citizen or subject owes, not a qualified and temporary, but an absolute and permanent allegiance, which consists in the obligation of fidelity and obedience to his government or sovereign; and that this absolute and permanent allegiance should not be confused with the qualified and temporary allegiance which a foreigner owes to the government or sovereign of the territory wherein he resides, so long as he remains there, in return for the protection he receives, and which consists in the obedience to the laws of the government or sovereign. (Carlisle vs. Unite States, 21 Law. ed., 429; Secretary of State Webster Report to the President of the United States in the case of Thraser, 6 Web. Works, 526); Considering that the absolute and permanent allegiance of the inhabitants of a territory occupied by the enemy of their legitimate government or sovereign is not abrogated or severed by the enemy occupation, because the sovereignty of the government or sovereign de jure is not transferred thereby to the occupier, as we have held in the cases of Co Kim Cham vs. Valdez Tan Keh and Dizon (75 Phil., 113) and of Peralta vs. Director of Prisons (75 Phil., 285), and if it is not transferred to the occupant it must necessarily remain vested in the legitimate government; that the sovereignty vested in the titular government (which is the supreme power which governs a body politic or society which constitute the state) must be distinguished from the exercise of the rights inherent thereto, and may be destroyed, or severed and transferred to another, but it cannot be suspended because the existence of sovereignty cannot be suspended without putting it out of existence or divesting the possessor thereof at least during the so-called period of suspension; that what may be suspended is the exercise of the rights of sovereignty with the control and government of the territory occupied by the enemy passes temporarily to the occupant; that the subsistence of the sovereignty of the legitimate government in a territory occupied by the military forces of the enemy during the war, "although the former is in fact prevented from exercising the supremacy over them" is one of the "rules of international law of our times"; (II Oppenheim, 6th Lauterpacht ed., 1944, p. 482), recognized, by necessary implication, in articles 23, 44, 45, and 52 of Hague Regulation; and that, as a corollary of the conclusion that the sovereignty itself is not suspended and subsists during the enemy occupation, the allegiance of the inhabitants to their

legitimate government or sovereign subsists, and therefore there is no such thing as suspended allegiance, the basic theory on which the whole fabric of the petitioner's contention rests; Considering that the conclusion that the sovereignty of the United State was suspended in Castine, set forth in the decision in the case of United States vs. Rice, 4 Wheaton, 246, 253, decided in 1819, and quoted in our decision in the cases of Co Kim Cham vs. Valdez Tan Keh and Dizon and Peralta vs. Director of Prisons, supra, in connection with the question, not of sovereignty, but of the existence of a government de facto therein and its power to promulgate rules and laws in the occupied territory, must have been based, either on the theory adopted subsequently in the Hague Convention of 1907, that the military occupation of an enemy territory does not transfer the sovereignty to the occupant; that, in the first case, the word "sovereignty" used therein should be construed to mean the exercise of the rights of sovereignty, because as this remains vested in the legitimate government and is not transferred to the occupier, it cannot be suspended without putting it out of existence or divesting said government thereof; and that in the second case, that is, if the said conclusion or doctrine refers to the suspension of the sovereignty itself, it has become obsolete after the adoption of the Hague Regulations in 1907, and therefore it can not be applied to the present case; Considering that even adopting the words "temporarily allegiance," repudiated by Oppenheim and other publicists, as descriptive of the relations borne by the inhabitants of the territory occupied by the enemy toward the military government established over them, such allegiance may, at most, be considered similar to the temporary allegiance which a foreigner owes to the government or sovereign of the territory wherein he resides in return for the protection he receives as above described, and does not do away with the absolute and permanent allegiance which the citizen residing in a foreign country owes to his own government or sovereign; that just as a citizen or subject of a government or sovereign may be prosecuted for and convicted of treason committed in a foreign country, in the same way an inhabitant of a territory occupied by the military forces of the enemy may commit treason against his own legitimate government or sovereign if he adheres to the enemies of the latter by giving them aid and comfort; and that if the allegiance of a citizen or subject to his government or sovereign is nothing more than obedience to its laws in return for the protection he receives, it would necessarily follow that a citizen who resides in a foreign country or state would, on one hand, ipso facto acquire the citizenship thereof since he has enforce public order and regulate the social and commercial life, in return for the protection he receives, and would, on the other hand, lose his original citizenship, because he would not be bound to obey most of the laws of his own government or sovereign, and would not receive, while in a foreign country, the protection he is entitled to in his own; Considering that, as a corollary of the suspension of the exercise of the rights of sovereignty by the legitimate government in the territory occupied by the enemy military forces, because the authority of the legitimate power to govern has passed into the hands of the occupant (Article 43, Hague Regulations), the political laws which prescribe the reciprocal rights, duties and obligation of government and citizens, are suspended or in abeyance during military occupation (Co Kim cham vs. Valdez Tan Keh and dizon,

supra), for the only reason that as they exclusively bear relation to the ousted legitimate government, they are inoperative or not applicable to the government established by the occupant; that the crimes against national security, such as treason and espionage; inciting to war, correspondence with hostile country, flight to enemy's country, as well as those against public order, such as rebellion, sedition, and disloyalty, illegal possession of firearms, which are of political complexion because they bear relation to, and are penalized by our Revised Penal Code as crimes against the legitimate government, are also suspended or become inapplicable as against the occupant, because they can not be committed against the latter (Peralta vs. Director of Prisons, supra); and that, while the offenses against public order to be preserved by the legitimate government were inapplicable as offenses against the invader for the reason above stated, unless adopted by him, were also inoperative as against the ousted government for the latter was not responsible for the preservation of the public order in the occupied territory, yet article 114 of the said Revised Penal Code, was applicable to treason committed against the national security of the legitimate government, because the inhabitants of the occupied territory were still bound by their allegiance to the latter during the enemy occupation; Considering that, although the military occupant is enjoined to respect or continue in force, unless absolutely prevented by the circumstances, those laws that enforce public order and regulate the social and commercial life of the country, he has, nevertheless, all the powers of de facto government and may, at his pleasure, either change the existing laws or make new ones when the exigencies of the military service demand such action, that is, when it is necessary for the occupier to do so for the control of the country and the protection of his army, subject to the restrictions or limitations imposed by the Hague Regulations, the usages established by civilized nations, the laws of humanity and the requirements of public conscience (Peralta vs. Director of Prisons, supra; 1940 United States Rules of Land Warfare 76, 77); and that, consequently, all acts of the military occupant dictated within these limitations are obligatory upon the inhabitants of the territory, who are bound to obey them, and the laws of the legitimate government which have not been adopted, as well and those which, though continued in force, are in conflict with such laws and orders of the occupier, shall be considered as suspended or not in force and binding upon said inhabitants; Considering that, since the preservation of the allegiance or the obligation of fidelity and obedience of a citizen or subject to his government or sovereign does not demand from him a positive action, but only passive attitude or forbearance from adhering to the enemy by giving the latter aid and comfort, the occupant has no power, as a corollary of the preceding consideration, to repeal or suspend the operation of the law of treason, essential for the preservation of the allegiance owed by the inhabitants to their legitimate government, or compel them to adhere and give aid and comfort to him; because it is evident that such action is not demanded by the exigencies of the military service or not necessary for the control of the inhabitants and the safety and protection of his army, and because it is tantamount to practically transfer temporarily to the occupant their allegiance to the titular government or sovereign; and that, therefore, if an inhabitant of the occupied territory were compelled illegally by the military occupant, through force, threat or intimidation, to give him aid and comfort, the former may

lawfully resist and die if necessary as a hero, or submit thereto without becoming a traitor; Considering that adoption of the petitioner's theory of suspended allegiance would lead to disastrous consequences for small and weak nations or states, and would be repugnant to the laws of humanity and requirements of public conscience, for it would allow invaders to legally recruit or enlist the Quisling inhabitants of the occupied territory to fight against their own government without the latter incurring the risk of being prosecuted for treason, and even compel those who are not aid them in their military operation against the resisting enemy forces in order to completely subdue and conquer the whole nation, and thus deprive them all of their own independence or sovereignty such theory would sanction the action of invaders in forcing the people of a free and sovereign country to be a party in the nefarious task of depriving themselves of their own freedom and independence and repressing the exercise by them of their own sovereignty; in other words, to commit a political suicide; (2) Considering that the crime of treason against the government of the Philippines defined and penalized in article 114 of the Penal Code, though originally intended to be a crime against said government as then organized by authority of the sovereign people of the United States, exercised through their authorized representative, the Congress and the President of the United States, was made, upon the establishment of the Commonwealth Government in 1935, a crime against the Government of the Philippines established by authority of the people of the Philippines, in whom the sovereignty resides according to section 1, Article II, of the Constitution of the Philippines, by virtue of the provision of section 2, Article XVI thereof, which provides that "All laws of the Philippine Islands . . . shall remain operative, unless inconsistent with this Constitution . . . and all references in such laws to the Government or officials of the Philippine Islands, shall be construed, in so far as applicable, to refer to the Government and corresponding officials under this constitution; Considering that the Commonwealth of the Philippines was a sovereign government, though not absolute but subject to certain limitations imposed in the Independence Act and incorporated as Ordinance appended to our Constitution, was recognized not only by the Legislative Department or Congress of the United States in approving the Independence Law above quoted and the Constitution of the Philippines, which contains the declaration that "Sovereignty resides in the people and all government authority emanates from them" (section 1, Article II), but also by the Executive Department of the United States; that the late President Roosevelt in one of his messages to Congress said, among others, "As I stated on August 12, 1943, the United States in practice regards the Philippines as having now the status as a government of other independent nations in fact all the attributes of complete and respected nationhood" (Congressional Record, Vol. 29, part 6, page 8173); and that it is a principle upheld by the Supreme Court of the United States in many cases, among them in the case of Jones vs. United States (137 U.S., 202; 34 Law. ed., 691, 696) that the question of sovereignty is "a purely political question, the determination of which by the legislative and executive departments of any government conclusively binds the judges, as well as all other officers, citizens and subjects of the country.

Considering that section I (1) of the Ordinance appended to the Constitution which provides that pending the final and complete withdrawal of the sovereignty of the United States "All citizens of the Philippines shall owe allegiance to the United States", was one of the few limitations of the sovereignty of the Filipino people retained by the United States, but these limitations do not away or are not inconsistent with said sovereignty, in the same way that the people of each State of the Union preserves its own sovereignty although limited by that of the United States conferred upon the latter by the States; that just as to reason may be committed against the Federal as well as against the State Government, in the same way treason may have been committed during the Japanese occupation against the sovereignty of the United States as well as against the sovereignty of the Philippine Commonwealth; and that the change of our form of government from Commonwealth to Republic does not affect the prosecution of those charged with the crime of treason committed during the Commonwealth, because it is an offense against the same government and the same sovereign people, for Article XVIII of our Constitution provides that "The government established by this constitution shall be known as the Commonwealth of the Philippines. Upon the final and complete withdrawal of the sovereignty of the United States and the proclamation of Philippine independence, the Commonwealth of the Philippines shall thenceforth be known as the Republic of the Philippines"; This Court resolves, without prejudice to write later on a more extended opinion, to deny the petitioner's petition, as it is hereby denied, for the reasons above set forth and for others to be stated in the said opinion, without prejudice to concurring opinion therein, if any. Messrs. Justices Paras and Hontiveros dissent in a separate opinion. Mr. justice Perfecto concurs in a separate opinion. Separate Opinions PERFECTO, J., concurring: Treason is a war crime. It is not an all-time offense. It cannot be committed in peace time. While there is peace, there are no traitors. Treason may be incubated when peace reigns. Treasonable acts may actually be perpetrated during peace, but there are no traitors until war has started. As treason is basically a war crime, it is punished by the state as a measure of selfdefense and self-preservation. The law of treason is an emergency measure. It remains dormant until the emergency arises. But as soon as war starts, it is relentlessly put into effect. Any lukewarm attitude in its enforcement will only be consistent with national harakiri. All war efforts would be of no avail if they should be allowed to be sabotaged by fifth columnists, by citizens who have sold their country out to the enemy, or any other kind of traitors, and this would certainly be the case if he law cannot be enforced under the theory of suspension. Petitioner's thesis that allegiance to our government was suspended during enemy occupation is advanced in support of the proposition that, since allegiance is identical with obedience to law, during the enemy occupation, the laws of the Commonwealth

were suspended. Article 114 of the Revised Penal Code, the law punishing treason, under the theory, was one of the laws obedience to which was also suspended. Allegiance has been defined as the obligation for fidelity and obedience which the individual owes to his government or his sovereign in return for the protection which he receives. "Allegiance", as the return is generally used, means fealty or fidelity to the government of which the person is either a citizen or subject. Murray vs. The Charming Betsy, 6 U.S. (2 Cranch), 64, 120; 2 Law. ed., 208. "Allegiance" was said by Mr. Justice Story to be "nothing more than the tie or duty of obedience of a subject to the sovereign, under whose protection he is." United States vs. Wong Kim Ark, 18 S. Ct., 461; 169 U.S., 649; 42 Law. ed., 890. Allegiance is that duty which is due from every citizen to the state, a political duty binding on him who enjoys the protection of the Commonwealth, to render service and fealty to the federal government. It is that duty which is reciprocal to the right of protection, arising from the political relations between the government and the citizen. Wallace vs. Harmstad, 44 Pa. (8 Wright), 492, 501. By "allegiance" is meant the obligation to fidelity and obedience which the individual owes to the government under which he lives, or to his sovereign, in return for the protection which he receives. It may be an absolute and permanent obligation, or it may be a qualified and temporary one. A citizen or subject owes an absolute and permanent allegiance to his government or sovereign, or at least until, by some open and distinct act, he renounces it and becomes a citizen or subject of another government or sovereign, and an alien while domiciled in a country owes it a temporary allegiance, which is continuous during his residence. Carlisle vs. United States, 83 U.S. (16 Wall.), 147, 154; 21 Law ed., 426. "Allegiance," as defined by Blackstone, "is the tie or ligament which binds the subject to the King, in return for that protection which the King affords the subject. Allegiance, both expressed and implied, is of two sorts, the one natural, the other local, the former being perpetual, the latter temporary. Natural allegiance is such as is due from all men born within the King's dominions immediately upon their birth, for immediately upon their birth they are under the King's protection. Natural allegiance is perpetual, and for this reason, evidently founded on the nature of government. Allegiance is a debt due from the subject upon an implied contract with the prince that so long as the one affords protection the other will demean himself faithfully. Natural-born subjects have a great variety of rights which they acquire by being born within the King's liegance, which can never be forfeited but by their own misbehaviour; but the rights of aliens are much more circumscribed, being acquired only by residence, and lost whenever they remove. If an alien could acquire a permanent property in lands, he must owe an allegiance equally permanent to the King, which would probably be inconsistent with that which he owes his natural liege lord; besides, that thereby the nation might, in time, be subject to foreign influence and feel

many other inconveniences." Indians within the state are not aliens, but citizens owing allegiance to the government of a state, for they receive protection from the government and are subject to its laws. They are born in allegiance to the government of the state. Jackson vs. Goodell, 20 Johns., 188, 911. (3 Words and Phrases, Permanent ed., 226-227.) Allegiance. Fealty or fidelity to the government of which the person is either a citizen or subject; the duty which is due from every citizen to the state; a political duty, binding on him who enjoys the protection of the commonwealth, to render service and fealty to the federal government; the obligation of fidelity and obedience which the individual owes to the government or to the sovereign under which he lives in return for the protection he receives; that duty is reciprocal to the right of protection he receives; that duty which is reciprocal to the right of protection, arising from the political relations between the government and the citizen. Classification. Allegiance is of four kinds, namely: (1) Natural allegiance that which arises by nature and birth; (2) acquired allegiance that arising through some circumstance or act other than birth, namely, by denization or naturalization; (3) local allegiance-- that arising from residence simply within the country, for however short a time; and (4) legal allegiance that arising from oath, taken usually at the town or leet, for, by the common law, the oath of allegiance might be tendered to every one upon attaining the age of twelve years. (3 C.J.S., p.885.) Allegiance. the obligation of fidelity and obedience which the individual owes to the government under which he lives, or to his sovereign in return for the protection he receives. 15 R.C.L., 140. (Ballentine Law Dictionary, p. 68.). "Allegiance," as its etymology indicates, is the name for the tie which binds the citizen to his state the obligation of obedience and support which he owes to it. The state is the political person to whom this liege fealty is due. Its substance is the aggregate of persons owing this allegiance. The machinery through which it operates is its government. The persons who operate this machinery constitute its magistracy. The rules of conduct which the state utters or enforces are its law, and manifest its will. This will, viewed as legally supreme, is its sovereignty. (W.W. Willoughby, Citizenship and Allegiance in Constitutional and International Law, 1 American Journal of International Law, p. 915.). The obligations flowing from the relation of a state and its nationals are reciprocal in character. This principle had been aptly stated by the Supreme Court of the United States in its opinion in the case of Luria vs. United States: Citizenship is membership in a political society and implies a duty of allegiance on the part of the member and a duty protection on the part of the society. These are reciprocal obligations, one being a compensation for the other. (3 Hackworth, Digest of International Law, 1942 ed., p.6.)

Allegiance. The tie which binds the citizen to the government, in return for the protection which the government affords him. The duty which the subject owes to the sovereign, correlative with the protection received. It is a comparatively modern corruption of ligeance (ligeantia), which is derived from liege (ligius), meaning absolute or unqualified. It signified originally liege fealty, i. e., absolute and qualified fealty. 18 L. Q. Rev., 47. xxx xxx xxx

Allegiance may be an absolute and permanent obligation, or it may be a qualified and temporary one; the citizen or subject owes the former to his government or sovereign, until by some act he distinctly renounces it, whilst the alien domiciled in the country owes a temporary and local allegiance continuing during such residence. (Carlisle vs. United States, 16 Wall. [U.S.], 154; 21 Law. ed., 426. (1 Bouvier's Law Dictionary, p. 179.). The above quotations express ideas that do not fit exactly into the Philippine pattern in view of the revolutionary insertion in our Constitution of the fundamental principle that "sovereignty resides in the people and all government authority emanates from them." (Section 1, Article II.) The authorities above quoted, judges and juridical publicists define allegiance with the idea that sovereignty resides somewhere else, on symbols or subjects other than the people themselves. Although it is possible that they had already discovered that the people and only the people are the true sovereign, their minds were not yet free from the shackles of the tradition that the powers of sovereignty have been exercised by princes and monarchs, by sultans and emperors, by absolute and tyrannical rules whose ideology was best expressed in the famous words of one of the kings of France: "L'etat c'est moi," or such other persons or group of persons posing as the government, as an entity different and in opposition to the people themselves. Although democracy has been known ever since old Greece, and modern democracies in the people, nowhere is such principle more imperative than in the pronouncement embodied in the fundamental law of our people. To those who think that sovereignty is an attribute of government, and not of the people, there may be some plausibility in the proposition that sovereignty was suspended during the enemy occupation, with the consequence that allegiance must also have been suspended, because our government stopped to function in the country. But the idea cannot have any place under our Constitution. If sovereignty is an essential attribute of our people, according to the basic philosophy of Philippine democracy, it could not have been suspended during the enemy occupation. Sovereignty is the very life of our people, and there is no such thing as "suspended life." There is no possible middle situation between life and death. Sovereignty is the very essence of the personality and existence of our people. Can anyone imagine the possibility of "suspended personality" or "suspended existence" of a people? In no time during enemy occupation have the Filipino people ceased to be what they are. The idea of suspended sovereignty or suspended allegiance is incompatible with our Constitution. There is similarity in characteristics between allegiance to the sovereign and a wife's loyalty to her husband. Because some external and insurmountable force precludes

the husband from exercising his marital powers, functions, and duties and the wife is thereby deprived of the benefits of his protection, may the wife invoke the theory of suspended loyalty and may she freely share her bed with the assailant of their home? After giving aid and comfort to the assailant and allowing him to enjoy her charms during the former's stay in the invaded home, may the wife allege as defense for her adultery the principle of suspended conjugal fidelity? Petitioner's thesis on change of sovereignty at the advent of independence on July 4, 1946, is unacceptable. We have already decided in Brodett vs. De la Rosa and Vda. de Escaler (p. 752, ante) that the Constitution of the Republic is the same as that of the Commonwealth. The advent of independence had the effect of changing the name of our Government and the withdrawal by the United States of her power to exercise functions of sovereignty in the Philippines. Such facts did not change the sovereignty of the Filipino people. That sovereignty, following our constitutional philosophy, has existed ever since our people began to exist. It has been recognized by the United States of America, at least since 1935, when President Roosevelt approved our Constitution. By such act, President Roosevelt, as spokesman of the American people, accepted and recognized the principle that sovereignty resides in the people that is, that Philippine sovereignty resides in the Filipino people. The same sovereignty had been internationally recognized long before the proclamation of independence on July 4, 1946. Since the early part of the Pacific war, President Quezon had been sitting as representative of a sovereign people in the Allied War Council, and in June, 1945, the same Filipino people took part outstanding and brilliant, it may be added in the drafting and adoption of the charter of the United Nations, the unmistakable forerunner of the future democratic federal constitution of the world government envisioned by all those who adhere to the principle of unity of all mankind, the early realization of which is anxiously desired by all who want to be spared the sufferings, misery and disaster of another war. Under our Constitution, the power to suspend laws is of legislative nature and is lodged in Congress. Sometimes it is delegated to the Chief Executive, such as the power granted by the Election Code to the President to suspend the election in certain districts and areas for strong reasons, such as when there is rebellion, or a public calamity, but it has never been exercised by tribunals. The Supreme Court has the power to declare null and void all laws violative of the Constitution, but it has no power, authority, or jurisdiction to suspend or declare suspended any valid law, such as the one on treason which petitioner wants to be included among the laws of the Commonwealth which, by his theory of suspended allegiance and suspended sovereignty, he claims have been suspended during the Japanese occupation. Suppose President Quezon and his government, instead of going from Corregidor to Australia, and later to Washington, had fled to the mountains of Luzon, and a group of Filipino renegades should have killed them to serve the interests of the Japanese imperial forces. By petitioner's theory, those renegades cannot be prosecuted for treason or for rebellion or sedition, as the laws punishing them were suspended. Such absurd result betrays the untenability of the theory. "The defense of the State is a prime duty of Government, and in the fulfillment of that duty all citizens may be required by law to render personal, military or civil service." Thus, section 2 of Article II of the Constitution provides: That duty of defense becomes more imperative in time of war and when the country is invaded by an aggressor nation. How can it be fulfilled if the allegiance of the citizens to the

sovereign people is suspended during enemy occupation? The framers of the Constitution surely did not entertain even for the moment the absurdity that when the allegiance of the citizens to the sovereign people is more needed in the defense of the survival of the state, the same should be suspended, and that upon such suspension those who may be required to render personal, military or civil service may claim exemption from the indispensable duty of serving their country in distress. Petitioner advances the theory that protection in the consideration of allegiance. He argues that the Commonwealth Government having been incapacitated during enemy occupation to protect the citizens, the latter were relieved of their allegiance to said government. The proposition is untenable. Allegiance to the sovereign is an indispensable bond for the existence of society. If that bond is dissolved, society has to disintegrate. Whether or not the existence of the latter is the result of the social compact mentioned by Roseau, there can be no question that organized society would be dissolved if it is not united by the cohesive power of the citizen's allegiance. Of course, the citizens are entitled to the protection of their government, but whether or not that government fulfills that duty, is immaterial to the need of maintaning the loyalty and fidelity of allegiance, in the same way that the physical forces of attraction should be kept unhampered if the life of an individual should continue, irrespective of the ability or inability of his mind to choose the most effective measures of personal protection. After declaring that all legislative, executive, and judicial processes had during and under the Japanese regime, whether executed by the Japanese themselves or by Filipino officers of the puppet government they had set up, are null and void, as we have done in our opinions in Co Kim Cham vs. Valdez Tan Keh and Dizon (75 Phil., 113), in Peralta vs. Director of Prison (75, Phil., 285), and in several other cases where the same question has been mentioned, we cannot consistently accept petitioner's theory. If all laws or legislative acts of the enemy during the occupation were null and void, and as we cannot imagine the existence of organized society, such as the one constituted by the Filipino people, without laws of the Commonwealth were the ones in effect during the occupation and the only ones that could claim obedience from our citizens. Petitioner would want us to accept the thesis that during the occupation we owed allegiance to the enemy. To give way to that paradoxical and disconcerting allegiance, it is suggested that we accept that our allegiance to our legitimate government was suspended. Petitioner's proposition has to fall by its own weight, because of its glaring absurdities. Allegiance, like its synonyms, loyalty and fidelity, is based on feelings of attraction, love, sympathy, admiration, respect, veneration, gratitude, amity, understanding, friendliness. These are the feelings or some of the feelings that bind us to our own people, and are the natural roots of the duty of allegiance we owe them. The enemy only provokes repelling and repulsive feelings hate, anger, vexation, chagrin, mortification, resentment, contempt, spitefulness. The natural incompatibility of political, social and ethical ideologies between our people and the Japanese, making impossible the existence of any feeling of attraction between them, aside from the initial fact that the Japanese invaded our country as our enemy, was aggravated by the morbid complexities of haughtiness, braggadocio and beastly brutality of the Nippon soldiers and officers in their dealings with even the most inoffensive of our citizens.

Giving bread to our enemy, and, after slapping one side of our face, offer him the other to be further slapped, may appear to be divinely charitable, but to make them a reality, it is necessary to change human nature. Political actions, legal rules and judicial decisions deal with human relations, taking man as he is, not as he should be. To love the enemy is not natural. As long as human pyschology remains as it is, the enemy shall always be hated. Is it possible to conceive an allegiance based on hatred? The Japanese, having waged against us an illegal war condemned by prevailing principles of international law, could not have established in our country any government that can be legally recognized as de facto. They came as bandits and ruffians, and it is inconceivable that banditry and ruffianism can claim any duty of allegiance even a temporary one from a decent people. One of the implications of petitioner's theory, as intimated somewhere, is that the citizens, in case of invasion, are free to do anything not forbidden by the Hague Conventions. Anybody will notice immediately that the result will be the doom of small nations and peoples, by whetting the covetousness of strong powers prone on imperialistic practices. In the imminence of invasion, weak-hearted soldiers of the smaller nations will readily throw away their arms to rally behind the paladium of the invaders. Two of the three great departments of our Government have already rejected petitioner's theory since September 25, 1945, the day when Commonwealth Act No. 682 took effect. By said act, creating the People's Court to try and decide all cases of crime against national security "committed between December 8, 1941 and September 2, 1945," (section 2), the legislative and executive departments have jointly declared that during the period above mentioned, including the time of Japanese occupation, all laws punishing crimes against national security, including article 114 of the Revised Penal Code, punishing treason, had remained in full effect and should be enforced. That no one raised a voice in protest against the enactment of said act and that no one, at the time the act was being considered by the Senate and the House of Representatives, ever dared to expose the uselessness of creating a People's Court to try crime which, as claimed by petitioner, could not have been committed as the laws punishing them have been suspended, is a historical fact of which the Supreme Court may take judicial notice. This fact shows universal and unanimous agreement of our people that the laws of the Commonwealth were not suspended and that the theory of suspended allegiance is just an afterthought provoked by a desperate effort to help quash the pending treason cases at any cost. Among the arguments adduced in favor of petitioner's theory is that it is based on generally accepted principles of international law, although this argument becomes futile by petitioner's admission that the theory is advantageous to strong powers but harmful to small and weak nations, thus hinting that the latter cannot accept it by heart. Suppose we accept at face value the premise that the theories, urged by petitioner, of suspended allegiance and suspended sovereignty are based on generally accepted principles of international law. As the latter forms part of our laws by virtue of the provisions of section 3 of Article II of the Constitution, it seems that there is no alternative but to accept the theory. But the theory has the effect of suspending the laws, especially those political in nature. There is no law more political in nature than the Constitution of the Philippines. The result is an inverted reproduction of the Greek

myth of Saturn devouring his own children. Here, under petitioner's theory, the offspring devours its parent. Can we conceive of an instance in which the Constitution was suspended even for a moment? There is conclusive evidence that the legislature, as policy-determining agency of government, even since the Pacific war started on December 7, 1941, intimated that it would not accept the idea that our laws should be suspended during enemy occupation. It must be remembered that in the middle of December, 1941, when Manila and other parts of the archipelago were under constant bombing by Japanese aircraft and enemy forces had already set foot somewhere in the Philippines, the Second National Assembly passed Commonwealth Act No. 671, which came into effect on December 16, 1941. When we approved said act, we started from the premise that all our laws shall continue in effect during the emergency, and in said act we even went to the extent of authorizing the President "to continue in force laws and appropriations which would lapse or otherwise become inoperative," (section 2, [d]), and also to "promulgate such rules and regulations as he may deem necessary to carry out the national policy," (section 2), that "the existence of war between the United States and other countries of Europe and Asia, which involves the Philippines, makes it necessary to invest the President with extraordinary powers in order to meet the resulting emergency." (Section 1.) To give emphasis to the intimation, we provided that the rules and regulations provided "shall be in force and effect until the Congress of the Philippines shall otherwise provide," foreseeing the possibility that Congress may not meet as scheduled as a result of the emergency, including invasion and occupation by the enemy. Everybody was then convinced that we did not have available the necessary means of repelling effectivity the enemy invasion. Maybe it is not out of place to consider that the acceptance of petitioner's theory of suspended allegiance will cause a great injustice to those who, although innocent, are now under indictment for treason and other crimes involving disloyalty to their country, because their cases will be dismissed without the opportunity for them to revindicate themselves. Having been acquitted upon a mere legal technicality which appears to us to be wrong, history will indiscriminality classify them with the other accused who were really traitors to their country. Our conscience revolts against the idea of allowing the innocent ones to go down in the memory of future generations with the infamous stigma of having betrayed their own people. They should not be deprived of the opportunity to show through the due process of law that they are free from all blame and that, if they were really patriots, they acted as such during the critical period of test. HILADO, J., concurring: I concur in the result reached in the majority opinion to the effect that during the socalled Japanese occupation of the Philippines (which was nothing more than the occupation of Manila and certain other specific regions of the Islands which constituted the minor area of the Archipelago) the allegiance of the citizens of this country to their legitimate government and to the United States was not suspended, as well as the ruling that during the same period there was no change of sovereignty here; but my reasons are different and I proceed to set them forth: I. SUSPENDED ALLEGIANCE.

(a) Before the horror and atrocities of World War I, which were multiplied more than a hundred-fold in World War II, the nations had evolved certain rules and principles which came to be known as International Law, governing their conduct with each other and toward their respective citizens and inhabitants, in the armed forces or civilian life, in time of peace or in time of war. During the ages which preceded that first world conflict the civilized governments had no realization of the potential excesses of which "men's inhumanity to man" could be capable. Up to that time war was, at least under certain conditions, considered as sufficiently justified, and the nations had not on that account, proscribed nor renounced it as an instrument of national policy, or as a means of settling international disputes. It is not for us now to dwell upon the reasons accounting for this historical fact. Suffice it to recognize its existence in history. But when in World War I civilized humanity saw that war could be, as it actually was, employed for entirely different reasons and from entirely different motives, compared to previous wars, and the instruments and methods of warfare had been so materially changed as not only to involve the contending armed forces on well defined battlefields or areas, on land, in the sea, and in the air, but to spread death and destruction to the innocent civilian populations and to their properties, not only in the countries engaged in the conflict but also in neutral ones, no less than 61 civilized nations and governments, among them Japan, had to formulate and solemnly subscribe to the now famous Briand-Kellogg Pact in the year 1928. As said by Justice Jackson of the United States Supreme Court, as chief counsel for the United States in the prosecution of "Axis war criminals," in his report to President Truman of June 7, 1945: International law is not capable of development by legislation, for there is no continuously sitting international legislature. Innovations and revisions in international law are brought about by the action of governments designed to meet a change circumstances. It grows, as did the common law, through decisions reached from time to time in adopting settled principles to new situations. xxx xxx xxx

Unless this Pact altered the legal status of wars of aggression, it has no meaning at all and comes close to being an act of deception. In 1932 Mr. Henry L. Stimson, as United States Secretary of State, gave voice to the American concept of its effect. He said, "war between nations was renounced by the signatories of the Briand-Kellogg Treaty. This means that it has become illegal throughout practically the entire world. It is no longer to be the source and subject of rights. It is no longer to be the principle around which the duties, the conduct, and the rights of nations revolve. It is an illegal thing. . . . By that very act we have made obsolete many legal precedents and have given the legal profession the task of re-examining many of its Codes and treaties. This Pact constitutes only one reversal of the viewpoint that all war is legal and has brought international law into harmony with the common sense of mankind that unjustifiable war is a crime. Without attempting an exhaustive catalogue, we may mention the Geneva Protocol of 1924 for the Pacific Settlement of International Disputes, signed by the representatives of forty-eight governments, which declared that "a war of aggression constitutes .. an International crime. . . . The Eight Assembly of the League of Nations in 1927, on unanimous resolution of the representatives of forty-eight member-nations, including Germany, declared that a war of aggression constitutes an international crime. At the Sixth Pan-American Conference of 1928, the twenty-one American Republics unanimously adopted a resolution stating that "war of aggression constitutes an international crime against the human species." xxx xxx xxx

After the shock to civilization of the war of 1914-1918, however, a marked reversion to the earlier and sounder doctrines of international law took place. By the time the Nazis came to power it was thoroughly established that launching an aggressive war or the institution of war by treachery was illegal and that the defense of legitimate warfare was no longer available to those who engaged in such an enterprise. It is high time that we act on the juridical principle that aggressive war-making is illegal and criminal. The re-establishment of the principle of justifiable war is traceable in many steps. One of the most significant is the Briand-Kellogg Pact of 1928 by which Germany, Italy, and Japan, in common with the United States and practically all the nations of the world, renounced war as an instrument of national policy, bound themselves to seek the settlement of disputes only by pacific means, and condemned recourse to war for the solution of international controversies.

We therefore propose to change that a war of aggression is a crime, and that modern international law has abolished the defense that those who incite or wage it are engaged in legitimate business. Thus may the forces of the law be mobilized on the side of peace. ("U.S.A. An American Review," published by the United States Office of War Information, Vol. 2, No. 10; emphasis supplied.). When Justice Jackson speaks of "a marked reversion to the earlier and sounder doctrines of international law" and "the re-establishment of the principle of justifiable war," he has in mind no other than "the doctrine taught by Grotius, the father of international law, that there is a distinction between the just and the unjust war the war of defense and the war of aggression" to which he alludes in an earlier paragraph of the same report. In the paragraph of said report immediately preceding the one last above mentioned Justice Jackson says that "international law as taught in the 19th and the early part of the 20th century generally declared that war-making was not illegal and no crime at law." But, as he says in one of the paragraphs hereinabove quoted from that report, the Briand-Kellogg Pact constitutes a reversal of the view-point that all war is legal and has brought international law into harmony with the common sense of mankind that unjustifiable war is a crime. Then he mentions as other reversals of the same viewpoint, the Geneva Protocol of 1924 for the Pacific Settlement of International

Disputes, declaring that a war of aggression constitutes an international crime; the 8th assembly of the League of Nations in 1927, declaring that a war of aggression constitutes an international crime; and the 6th Pan-American conference of 1928, which unanimously adopted a resolution stating that war of aggression constitutes an international crime against the human species: which enumeration, he says, is not an attempt at an exhaustive catalogue. It is not disputed that the war started by Japan in the Pacific, first, against the United States, and later, in rapid succession, against other allied nations, was a war of aggression and utterly unjustifiable. More aggressive still, and more unjustifiable, as admitted on all sides, was its attack against the Philippines and its consequent invasion and occupation of certain areas thereof. Some of the rules and principles of international law which have been cited for petitioner herein in support of his theory of suspended allegiance, have been evolved and accepted during those periods of the history of nations when all war was considered legal, as stated by Justice Jackson, and the others have reference to military occupation in the course of really justifiable war. Japan in subscribing the Briand-Kellogg Pact thirteen years before she started the aggressive war which threw the entire Pacific area into a seething cauldron from the last month of 1941 of the first week of September, 1945, expressly agreed to outlaw, proscribe and renounce war as an instrument of national policy, and bound herself to seek the settlement of her disputes with other nations only by pacific means. Thus she expressly gave her consent to that modification of the then existing rules and principles of international law governing the matter. With the modification, all the signatories to the pact necessarily accepted and bound themselves to abide by all its implications, among them the outlawing, prescription and renunciation of military occupation of another nation's territory in the course of a war thus outlawed, proscribed and renounced. This is only one way of saving that the rules and principles of international law therefore existing on the subject of military occupation were automatically abrogated and rendered ineffective in all future cases of war coming under the ban and condemnation of the pact. If an unjustifiable war is a crime; if a war of aggression constitutes an international crime; if such a war is an international crime against the human species: a nation which occupies a foreign territory in the course of such a war cannot possibly, under any principle of natural or positive law, acquire or posses any legitimate power or right growing out or incident to such occupation. Concretely, Japan in criminally invading the Philippines and occupying certain portions of its territory during the Pacific war, could not have nor exercise, in the legal sense and only this sense should we speak here with respect to this country and its citizens, any more than could a burglar breaking through a man's house pretends to have or to exercise any legal power or right within that house with respect either to the person of the owner or to his property. To recognize in the first instance any legal power or right on the part of the invader, and in the second any legal power or right on the part of the burglar, the same as in case of a military occupant in the course of a justifiable war, would be nothing short of legalizing the crime itself. It would be the most monstrous and unpardonable contradiction to prosecute, condemn and hang the appropriately called war criminals of Germany, Italy, and Japan, and at the same time recognize any lawfulness in their occupation invaded. And let it not be forgotten that the Philippines is a member of the United Nations who have instituted and conducted the so-called war crimes trials. Neither should we lose sight of the further fact that this

government has a representative in the international commission currently trying the Japanese war criminals in Tokyo. These facts leave no room for doubt that this government is in entire accord with the other United Nations in considering the Pacific war started by Japan as a crime. Not only this, but this country had six years before the outbreak of the Pacific war already renounced war as an instrument of national policy (Constitution, Article II, section 2), thus in consequence adopting the doctrine of the Briand-Kellogg Pact. Consequently, it is submitted that it would be absolutely wrong and improper for this Court to apply to the occupation by Japan of certain areas of the Philippines during that war the rules and principles of international law which might be applicable to a military occupation occurring in the course of a justifiable war. How can this Court recognize any lawfulness or validity in that occupation when our own government has sent a representative to said international commission in Tokyo trying the Japanese "war criminals" precisely for the "crimes against humanity and peace" committed by them during World War II of which said occupation was but part and parcel? In such circumstances how could such occupation produce no less an effect than the suspension of the allegiance of our people to their country and government? (b) But even in the hypothesis and not more than a mere hypothesis that when Japan occupied the City of Manila and certain other areas of the Philippines she was engaged in a justifiable war, still the theory of suspended allegiance would not hold good. The continuance of the allegiance owed to a notion by its citizens is one of those high privileges of citizenship which the law of nations denies to the occupant the power to interfere with. . . . His (of occupant) rights are not, however, commensurate with his power. He is thus forbidden to take certain measures which he may be able to apply, and that irrespective of their efficacy. The restrictions imposed upon him are in theory designed to protect the individual in the enjoyment of some highly important privileges. These concern his allegiance to the de jure sovereign, his family honor and domestic relations, religious convictions, personal service, and connection with or residence in the occupied territory. The Hague Regulations declare that the occupant is forbidden to compel the inhabitants to swear allegiance to the hostile power. . . . (III Hyde, International Law, 2d revised ed., pp. 1898-1899.) . . . Nor may he (occupant) compel them (inhabitants) to take an oath of allegiance. Since the authority of the occupant is not sovereignty, the inhabitants owe no temporary allegiance to him. . . . (II Oppenheim, International Law, pp. 341-344.) The occupant's lack of the authority to exact an oath of allegiance from the inhabitants of the occupied territory is but a corollary of the continuance of their allegiance to their own lawful sovereign. This allegiance does not consist merely in obedience to the laws of the lawful sovereign, but more essentially consists in loyalty or fealty to him. In the same volume and pages of Oppenheim's work above cited, after the passage to the effect that the inhabitants of the occupied territory owe no temporary allegiance to the occupant it is said that "On the other hand, he may compel them to take an oath sometimes called an 'oath of neutrality' . . . willingly to submit to his 'legitimate commands.' Since, naturally, such "legitimate

commands" include the occupant's laws, it follows that said occupant, where the rule is applicable, has the right to compel the inhabitants to take an oath of obedience to his laws; and since according to the same rule, he cannot exact from the inhabitants an oath of obedience to his laws; and since, according to the same rule, he cannot exact from the inhabitants an oath of allegiance, it follows that obedience to his laws, which he can exact from them, does not constitute allegiance. (c) The theory of suspended allegiance is unpatriotic to the last degree. To say that when the one's country is unable to afford him in its protection, he ceases to be bound to it by the sacred ties of allegiance, is to advocate the doctrine that precisely when his country is in such distress, and therefore most needs his loyalty, he is absolved from the loyalty. Love of country should be something permanent and lasting, ending only in death; loyalty should be its worth offspring. The outward manifestation of one or the other may for a time be prevented or thwarted by the irresistible action of the occupant; but this should not in the least extinguish nor obliterate the invisible feelings, and promptings of the spirit. And beyond the unavoidable consequences of the enemy's irresistible pressure, those invisible feelings and promptings of the spirit of the people should never allow them to act, to speak, nor even to think a whit contrary to their love and loyalty to the Fatherland. For them, indicted, to face their country and say to it that, because when it was overrun and vanquished by the barbarous invader and, in consequence was disabled from affording them protection, they were released from their sacred obligation of allegiance and loyalty, and could therefore freely adhere to its enemy, giving him aid and comfort, incurring no criminal responsibility therefor, would only tend to aggravate their crime. II. CHANGE OF SOVEREIGNTY Article II, section 1, of the Constitution provides that "Sovereignty resides in the people and all government authority emanates from them." The Filipino people are the self-same people before and after Philippine Independence, proclaimed on July 4, 1946. During the life of the Commonwealth sovereignty resided in them under the Constitution; after the proclamation of independence that sovereignty remained with them under the very same fundamental law. Article XVIII of the said Constitution stipulates that the government established thereby shall be known as the Commonwealth of the Philippines; and that upon the final and complete withdrawal of the sovereignty of the United States and the proclamation of Philippine independence, "The Commonwealth of the Philippines shall thenceforth be known as the Republic of the Philippines." Under this provision the Government of the Philippines immediately prior to independence was essentially to be the identical government thereafter only the name of that government was to be changed. Both before and after the adoption of the Philippine Constitution the people of the Philippines were and are always the plaintiff in all criminal prosecutions, the case being entitled: "The People of the Philippines vs. (the defendant or defendants)." This was already true in prosecutions under the Revised Penal Code containing the law of treason. "The Government of the Philippines" spoken of in article 114 of said Code merely represents the people of the Philippines. Said code was continued, along with the other laws, by Article XVI, section 2, of the Constitution which constitutional provision further directs that "all references in such laws to the Government or officials of the Philippine Islands shall be construed, in so far as applicable, to refer to the Government and corresponding officials under this Constitution" of course, meaning the Commonwealth of the Philippines before, and the Republic of the

Philippines after, independence (Article XVIII). Under both governments sovereignty resided and resides in the people (Article II, section 1). Said sovereignty was never transferred from that people they are the same people who preserve it to this day. There has never been any change in its respect. If one committed treason againsts the People of the Philippines before July 4, 1946, he continues to be criminally liable for the crime to the same people now. And if, following the literal wording of the Revised Penal Code, as continued by the Constitution, that accused owed allegiance upon the commission of the crime to the "Government of the Philippines," in the textual words of the Constitution (Article XVI, section 2, and XVIII) that was the same government which after independence became known as the "Republic of the Philippines." The most that can be said is that the sovereignty of the people became complete and absolute after independence that they became, politically, fully of age, to use a metaphor. But if the responsibility for a crime against a minor is not extinguished by the mere fact of his becoming of age, why should the responsibility for the crime of treason committed against the Filipino people when they were not fully politically independent be extinguished after they acquire this status? The offended party continues to be the same only his status has changed. PARAS, J., dissenting: During the long period of Japanese occupation, all the political laws of the Philippines were suspended. This is full harmony with the generally accepted principles of the international law adopted by our Constitution(Article II, section 3) as a part of the law of the Nation. Accordingly, we have on more than one occasion already stated that "laws of a political nature or affecting political relations, . . . are considered as suspended or in abeyance during the military occupation" (Co Kim Cham vs. Valdez Tan Keh and Dizon, 75 Phil., 113, 124), and that the rule "that laws of political nature or affecting political relations are considered suspended or in abeyance during the military occupation, is intended for the governing of the civil inhabitants of the occupied territory." (Ruffy vs. Chief of Staff, Philippine Army, 75, Phil., 875, 881.) The principle is recognized by the United States of America, which admits that the occupant will naturally suspends all laws of a political nature and all laws which affect the welfare and safety of his command, such action to be made known to the inhabitants.(United States Rules of Land Welfare, 1940, Article 287.) As allegiance to the United States is an essential element in the crime of treason under article 114 of the Revised Penal Code, and in view of its position in our political structure prior to the independence of the Philippines, the rule as interpreted and practiced in the United States necessarily has a binding force and effect in the Philippines, to the exclusion of any other construction followed elsewhere, such as may be inferred, rightly or wrongly, from the isolated cases 1 brought to our attention, which, moreover, have entirely different factual bases. Corresponding notice was given by the Japanese occupying army, first, in the proclamation of its Commander in chief of January 2, 1942, to the effect that as a "result of the Japanese Military operations, the sovereignty of the United States of America over the Philippines has completely disappeared and the Army hereby proclaims the Military Administration under martial law over the district occupied by the Army;" secondly, in Order No. 3 of the said Commander in Chief of February 20, 1942, providing that "activities of the administrative organs and judicial courts in the Philippines shall be based upon the existing statutes, orders, ordinances and customs

until further orders provided that they are not inconsistent with the present circumstances under the Japanese Military Administration;" and, thirdly, in the explanation to Order No. 3 reminding that "all laws and regulations of the Philippines has been suspended since Japanese occupation," and excepting the application of "laws and regulations which are not proper act under the present situation of the Japanese Military Administration," especially those "provided with some political purposes." The suspension of the political law during enemy occupation is logical, wise and humane. The latter phase outweighs all other aspects of the principle aimed more or less at promoting the necessarily selfish motives and purposes of a military occupant. It thus consoling to note that the powers instrumental in the crystallization of the Hague Conventions of 1907 did not forget to declare that they were "animated by the desire to serve . . . the interest of the humanity and the over progressive needs of civilization," and that "in case not included in the Regulations adopted by them, the inhabitants and the belligerents remain under the protection and the rule of the principles of international law, as they result from the usages established among civilized peoples, from the laws of humanity, and the dictates of the public conscience." These saving statements come to the aid of the inhabitants in the occupied territory in a situation wherein, even before the belligerent occupant "takes a further step and by appropriate affirmative action undertakes to acquire the right of sovereignty for himself, . . . the occupant is likely to regard to himself as clothed with freedom to endeavor to impregnate the people who inhabit the area concerned with his own political ideology, and to make that endeavor successful by various forms of pressure exerted upon enemy officials who are permitted to retain the exercise of normal governmental functions." (Hyde, International Law, Vol. III, Second Revised Edition, 1945, p. 1879.) The inhabitants of the occupied territory should necessarily be bound to the sole authority of the invading power, whose interest and requirements are naturally in conflict with those of the displaced government, if it is legitimate for the military occupant to demand and enforce from the inhabitants such obedience as may be necessary for the security of his forces, for the maintenance of law and order, and for the proper administration of the country (United States Rules of Land Warfare, 1940, article 297), and to demand all kinds of services "of such a nature as not to involve the population in the obligation of taking part in military operations against their own country" (Hague Regulations, article 52);and if, as we have in effect said, by the surrender the inhabitants pass under a temporary allegiance to the government of the occupant and are bound by such laws, and such only, as it chooses to recognize and impose, and the belligerent occupant `is totally independent of the constitution and the laws of the territory, since occupation is an aim of warfare, and the maintenance and safety of his forces, and the purpose of war, stand in the foreground of his interest and must be promoted under all circumstances or conditions." (Peralta vs. Director of Prisons, 75 Phil., 285, 295), citing United States vs. Rice, 4 Wheaton, 246, and quoting Oppenheim, International Law, Vol. II. Sixth Edition, Revised, 1944,p. 432.) He would be a bigot who cannot or would refuse to see the cruel result if the people in an occupied territory were required to obey two antagonistic and opposite powers. To emphasize our point, we would adopt the argument, in a reverse order, of Mr. Justice Hilado in Peralta vs. Director of Prisons (75 Phil., 285, 358), contained in the following passage:

To have bound those of our people who constituted the great majority who never submitted to the Japanese oppressors, by the laws, regulations, processes and other acts of those two puppet governments, would not only have been utterly unjust and downright illegal, but would have placed them in the absurd and impossible condition of being simultaneously submitted to two mutually hostile governments, with their respective constitutional and legislative enactments and institutions on the one hand bound to continue owing allegiance to the United States and the Commonwealth Government, and, on the other, to owe allegiance, if only temporary, to Japan. The only sensible purpose of the treason law which is of political complexion and taken out of the territorial law and penalized as a new offense committed against the belligerent occupant, incident to a state of war and necessary for the control of the occupant (Alcantara vs. Director of Prisons, 75 Phil., 494), must be the preservation of the nation, certainly not its destruction or extermination. And yet the latter is unwittingly wished by those who are fond of the theory that what is suspended is merely the exercise of sovereignty by the de jure government or the latter's authority to impose penal sanctions or that, otherwise stated, the suspension refers only to the military occupant. If this were to be the only effect, the rule would be a meaningless and superfluous optical illusion, since it is obvious that the fleeing or displaced government cannot, even if it should want, physically assert its authority in a territory actually beyond its reach, and that the occupant, on the other hand, will not take the absurd step of prosecuting and punishing the inhabitants for adhering to and aiding it. If we were to believe the opponents of the rule in question, we have to accept the absurd proposition that the guerrillas can all be prosecuted with illegal possession of firearms. It should be borne in the mind that "the possession by the belligerent occupant of the right to control, maintain or modify the laws that are to obtain within the occupied area is an exclusive one. The territorial sovereign driven therefrom, can not compete with it on an even plane. Thus, if the latter attempt interference, its action is a mere manifestation of belligerent effort to weaken the enemy. It has no bearing upon the legal quality of what the occupant exacts, while it retains control. Thus, if the absent territorial sovereign, through some quasilegislative decree, forbids its nationals to comply with what the occupant has ordained obedience to such command within the occupied territory would not safeguard the individual from the prosecution by the occupant." (Hyde, International Law, Vol. III, Second Revised Edition, 1945, p. 1886.) As long as we have not outlawed the right of the belligerent occupant to prosecute and punish the inhabitants for "war treason" or "war crimes," as an incident of the state of war and necessity for the control of the occupied territory and the protection of the army of the occupant, against which prosecution and punishment such inhabitants cannot obviously be protected by their native sovereign, it is hard to understand how we can justly rule that they may at the same time be prosecuted and punished for an act penalized by the Revised Penal Code, but already taken out of the territorial law and penalized as a new offense committed against the belligerent occupant. In Peralta vs. Director of Prisons, 75 Phil., 285, 296), we held that "the Constitution of the Commonwealth Government was suspended during the occupation of the Philippines by the Japanese forces or the belligerent occupant at regular war with the United States," and the meaning of the term "suspended" is very plainly expressed in the following passage (page 298):

No objection can be set up to the legality of its provisions in the light of the precepts of our Commonwealth Constitution relating to the rights of the accused under that Constitution, because the latter was not in force during the period of the Japanese military occupation, as we have already stated. Nor may said Constitution be applied upon its revival at the time of the reoccupation of the Philippines by the virtue of the priciple of postliminium, because "a constitution should operate prospectively only, unless the words employed show a clear intention that it should have a retrospective effect," (Cooley's Constitutional Limitations, seventh edition, page 97, and a case quoted and cited in the foot-note), especially as regards laws of procedure applied to cases already terminated completely. In much the same way, we should hold that no treason could have been committed during the Japanese military occupation against the United States or the Commonwealth Government, because article 114 of the Revised Penal Code was not then in force. Nor may this penal provision be applied upon its revival at the time of the reoccupation of the Philippines by virtue of the principle of postliminium, because of the constitutional inhibition against any ex post facto law and because, under article 22 of the Revised Penal Code, criminal laws shall have a retroactive effect only in so far as they favor the accused. Why did we refuse to enforce the Constitution, more essential to sovereignty than article 114 of the Revised Penal Code in the aforesaid of Peralta vs. Director of Prisons if, as alleged by the majority, the suspension was good only as to the military occupant? The decision in the United States vs. Rice (4 Wheaton, 246), conclusively supports our position. As analyzed and described in United States vs. Reiter (27 Fed. Cas., 773), that case "was decided by the Supreme Court of the United States the court of highest human authority on that subject and as the decision was against the United States, and in favor of the authority of Great Britain, its enemy in the war, and was made shortly after the occurrence of the war out of which it grew; and while no department of this Government was inclined to magnify the rights of Great Britain or disparage those of its own government, there can be no suspicion of bias in the mind of the court in favor of the conclusion at which it arrived, and no doubt that the law seemed to the court to warrant and demand such a decision. That case grew out of the war of 1812, between the United States and Great Britain. It appeared that in September, 1814, the British forces had taken the port of Castine, in the State of Maine, and held it in military occupation; and that while it was so held, foreign goods, by the laws of the United States subject to duty, had been introduced into that port without paying duties to the United States. At the close of the war the place by treaty restored to the United States, and after that was done Government of the United States sought to recover from the persons so introducing the goods there while in possession of the British, the duties to which by the laws of the United States, they would have been liable. The claim of the United States was that its laws were properly in force there, although the place was at the time held by the British forces in hostility to the United States, and the laws, therefore, could not at the time be enforced there; and that a court of the United States (the power of that government there having since been restored) was bound so to decide. But this illusion of the prosecuting officer there was dispelled by the court in the most summary manner. Mr. Justice Story, that great luminary of the American bench, being the organ of the court in delivering its opinion, said: 'The single question is whether goods imported into Castine during its occupation by the enemy are liable to the duties imposed by the revenue laws upon goods imported into the United States.. We are all of opinion that the claim for duties cannot be sustained. . . . The sovereignty of the United States over the territory was, of course, suspended, and the laws of the United States could

no longer be rightfully enforced there, or be obligatory upon the inhabitants who remained and submitted to the conquerors. By the surrender the inhabitants passed under a temporary allegiance of the British Government, and were bound by such laws, and such only, as it chose to recognize and impose. From the nature of the case no other laws could be obligatory upon them. . . . Castine was therefore, during this period, as far as respected our revenue laws, to be deemed a foreign port, and goods imported into it by the inhabitants were subjects to such duties only as the British Government chose to require. Such goods were in no correct sense imported into the Unites States.' The court then proceeded to say, that the case is the same as if the port of Castine had been foreign territory, ceded by treaty to the United States, and the goods had been imported there previous to its cession. In this case they say there would be no pretense to say that American duties could be demanded; and upon principles of public or municipal law, the cases are not distinguishable. They add at the conclusion of the opinion: 'The authorities cited at the bar would, if there were any doubt, be decisive of the question. But we think it too clear to require any aid from authority.' Does this case leave room for a doubt whether a country held as this was in armed belligerents occupation, is to be governed by him who holds it, and by him alone? Does it not so decide in terms as plain as can be stated? It is asserted by the Supreme Court of the United States with entire unanimity, the great and venerated Marshall presiding, and the erudite and accomplished Story delivering the opinion of the court, that such is the law, and it is so adjudged in this case. Nay, more: it is even adjudged that no other laws could be obligatory; that such country, so held, is for the purpose of the application of the law off its former government to be deemed foreign territory, and that goods imported there (and by parity of reasoning other acts done there) are in no correct sense done within the territory of its former sovereign, the United States." But it is alleged by the majority that the sovereignty spoken of in the decision of the United States vs. Rice should be construed to refer to the exercise of sovereignty, and that, if sovereignty itself was meant, the doctrine has become obsolete after the adoption of the Hague Regulations in 1907. In answer, we may state that sovereignty can have any important significance only when it may be exercised; and, to our way of thinking, it is immaterial whether the thing held in abeyance is the sovereignty itself or its exercise, because the point cannot nullify, vary, or otherwise vitiate the plain meaning of the doctrinal words "the laws of the United States could no longer be rightfully enforced there, or be obligatory upon the inhabitants who remained and submitted to the conquerors." We cannot accept the theory of the majority, without in effect violating the rule of international law, hereinabove adverted to, that the possession by the belligerent occupant of the right to control, maintain or modify the laws that are to obtain within the occupied area is an exclusive one, and that the territorial sovereign driven therefrom cannot compete with it on an even plane. Neither may the doctrine in the United States vs. Rice be said to have become obsolete, without repudiating the actual rule prescribed and followed by the United States, allowing the military occupant to suspend all laws of a political nature and even require public officials and inhabitants to take an oath of fidelity (United States Rules of Land Warfare, 1940, article 309). In fact, it is a recognized doctrine of American Constitutional Law that mere conquest or military occupation of a territory of another State does not operate to annex such territory to occupying State, but that the inhabitants of the occupied district, no longer receiving the protection of their native State, for the time being owe no allegiance to it, and, being under the control and protection of the victorious power, owe to that power fealty and obedience. (Willoughby, The Fundamental Concepts of Public Law [1931], p.364.)

The majority have resorted to distinctions, more apparent than real, if not immaterial, in trying to argue that the law of treason was obligatory on the Filipinos during the Japanese occupation. Thus it is insisted that a citizen or subject owes not a qualified and temporary, but an absolute and permanent allegiance, and that "temporary allegiance" to the military occupant may be likened to the temporary allegiance which a foreigner owes to the government or sovereign to the territory wherein he resides in return for the protection he receives therefrom. The comparison is most unfortunate. Said foreigner is in the territory of a power not hostile to or in actual war with his own government; he is in the territory of a power which has not suspended, under the rules of international law, the laws of political nature of his own government; and the protections received by him from that friendly or neutral power is real, not the kind of protection which the inhabitants of an occupied territory can expect from a belligerent army. "It is but reasonable that States, when they concede to other States the right to exercise jurisdiction over such of their own nationals as are within the territorial limits of such other States, should insist that States should provide system of law and of courts, and in actual practice, so administer them, as to furnish substantial legal justice to alien residents. This does not mean that a State must or should extend to aliens within its borders all the civil, or much less, all the political rights or privileges which it grants to its own citizens; but it does mean that aliens must or should be given adequate opportunity to have such legal rights as are granted to them by the local law impartially and judicially determined, and, when thus determined, protected." (Willoughby, The Fundamental Concepts of Public Law [1931], p. 360.) When it is therefore said that a citizen of a sovereign may be prosecuted for and convicted of treason committed in a foreign country or, in the language of article 114 of the Revised Penal Code, "elsewhere," a territory other than one under belligerent occupation must have been contemplated. This would make sense, because treason is a crime "the direct or indirect purpose of which is the delivery, in whole or in part, of the country to a foreign power, or to pave the way for the enemy to obtain dominion over the national territory" (Albert, The Revised Penal Code, citing 3 Groizard, 14); and, very evidently, a territory already under occupation can no longer be "delivered." The majority likewise argue that the theory of suspended sovereignty or allegiance will enable the military occupant to legally recruit the inhabitants to fight against their own government, without said inhabitants being liable for treason. This argument is not correct, because the suspension does not exempt the occupant from complying with the Hague Regulations (article 52) that allows it to demand all kinds of services provided that they do not involve the population "in the obligation of taking part military operations against their own country." Neither does the suspension prevent the inhabitants from assuming a passive attitude, much less from dying and becoming heroes if compelled by the occupant to fight against their own country. Any imperfection in the present state of international law should be corrected by such world agency as the United Nations organizations. It is of common knowledge that even with the alleged cooperation imputed to the collaborators, an alarming number of Filipinos were killed or otherwise tortured by the ruthless, or we may say savage, Japanese Army. Which leads to the conclusion that if the Filipinos did not obey the Japanese commands and feign cooperation, there would not be any Filipino nation that could have been liberated. Assuming that the entire population could go to and live in the mountains, or otherwise fight as guerrillas after the formal surrender of our and the American regular fighting forces, they would have faced certain annihilation by the Japanese, considering that the latter's military strength at the time and the long period during which they were left military

unmolested by America. In this connection, we hate to make reference to the atomic bomb as a possible means of destruction. If a substantial number of guerrillas were able to survive and ultimately help in the liberation of the Philippines, it was because the feigned cooperation of their countrymen enabled them to get food and other aid necessary in the resistance movement. If they were able to survive, it was because they could camouflage themselves in the midst of the civilian population in cities and towns. It is easy to argue now that the people could have merely followed their ordinary pursuits of life or otherwise be indifferent to the occupant. The fundamental defect of this line of thought is that the Japanese assumed to be so stupid and dumb as not to notice any such attitude. During belligerent occupation, "the outstanding fact to be reckoned with is the sharp opposition between the inhabitants of the occupied areas and the hostile military force exercising control over them. At heart they remain at war with each other. Fear for their own safety may not serve to deter the inhabitants from taking advantage of opportunities to interfere with the safety and success of the occupant, and in so doing they may arouse its passions and cause to take vengeance in cruel fashion. Again, even when it is untainted by such conduct, the occupant as a means of attaining ultimate success in its major conflict may, under plea of military necessity, and regardless of conventional or customary prohibitions, proceed to utilize the inhabitants within its grip as a convenient means of military achievement." (Hyde, International Law, Vol. III, Second Revised Edition [1945], p. 1912.) It should be stressed that the Japanese occupation was not a matter of a few months; it extended over a little more than three years. Said occupation was a fact, in spite of the "presence of guerrilla bands in barrios and mountains, and even in towns of the Philippines whenever these towns were left by Japanese garrisons or by the detachments of troops sent on patrol to those places." (Co Kim Cham vs. Valdez Tan Keh and Dizon, 75 Phil., 371, 373.) The law of nations accepts belligerent occupation as a fact to be reckoned with, regardless of the merits of the occupant's cause. (Hyde, International Law, Second Revised Edition [1945], Vol. III, p. 1879.) Those who contend or fear that the doctrine herein adhere to will lead to an overproduction of traitors, have a wrong and low conception of the psychology and patriotism of their countrymen. Patriots are such after their birth in the first place, and no amount of laws or judicial decisions can make or unmake them. On the other hand, the Filipinos are not so base as to be insensitive to the thought that the real traitor is cursed everywhere and in all ages. Our patriots who fought and died during the last war, and the brave guerrillas who have survived, were undoubtedly motivated by their inborn love of country, and not by such a thing as the treason law. The Filipino people as a whole, passively opposed the Japanese regime, not out of fear of a treason statute but because they preferred and will prefer the democratic and civilized way of life and American altruism to Japanese barbaric and totalitarian designs. Of course, there are those who might at heart have been pro-Japanese; but they met and will unavoidably meet the necessary consequences. The regular soldiers faced the risks of warfare; the spies and informers subjected themselves to the perils of military operations, likely received summary liquidation or punishments from the guerrillas and the parties injured by their acts, and may be prosecuted as war spies by the military authorities of the returning sovereign; those who committed other common crimes, directly or through the Japanese army, may be prosecuted under the municipal law, and under this group even the spies and informers, Makapili or otherwise, are included, for they can be made answerable for any act offensive to person or property; the buy-and-sell opportunists have the war profits tax to reckon with. We cannot close our eyes to the conspicuous fact that, in the majority of cases, those responsible for the death of, or injury to, any Filipino or American at the hands

of the Japanese, were prompted more by personal motives than by a desire to levy war against the United States or to adhere to the occupant. The alleged spies and informers found in the Japanese occupation the royal road to vengeance against personal or political enemies. The recent amnesty granted to the guerrillas for acts, otherwise criminal, committed in the furtherance of their resistance movement has in a way legalized the penal sanctions imposed by them upon the real traitors. It is only from a realistic, practical and common-sense point of view, and by remembering that the obedience and cooperation of the Filipinos were effected while the Japanese were in complete control and occupation of the Philippines, when their mere physical presence implied force and pressure and not after the American forces of liberation had restored the Philippine Government that we will come to realize that, apart from any rule of international law, it was necessary to release the Filipinos temporarily from the old political tie in the sense indicated herein. Otherwise, one is prone to dismiss the reason for such cooperation and obedience. If there were those who did not in any wise cooperate or obey, they can be counted by the fingers, and let their names adorn the pages of Philippine history. Essentially, however, everybody who took advantage, to any extent and degree, of the peace and order prevailing during the occupation, for the safety and survival of himself and his family, gave aid and comfort to the enemy. Our great liberator himself, General Douglas MacArthur, had considered the laws of the Philippines ineffective during the occupation, and restored to their full vigor and force only after the liberation. Thus, in his proclamation of October 23, 1944, he ordained that "the laws now existing on the statute books of the Commonwealth of the Philippines . . . are in full force and effect and legally binding upon the people in areas of the Philippines free of enemy occupation and control," and that "all laws . . . of any other government in the Philippines than that of the said Commonwealth are null and void and without legal effect in areas of the Philippines free of enemy occupation and control." Repeating what we have said in Co Kim Cham vs. Valdez Tan Keh and Dizon (75 Phil., 113, 133), "it is to be presumed that General Douglas MacArthur, who was acting as an agent or a representative of the Government and the President of the United States, constitutional Commander-in-Chief of the United States Army, did not intend to act against the principles of the law of nations asserted by the Supreme Court of the United States from the early period of its existence, applied by the President of the United States, and later embodied in the Hague Conventions of 1907." The prohibition in the Hague Conventions (Article 45) against "any pressure on the population to take oath to the hostile power," was inserted for the moral protection and benefit of the inhabitants, and does not necessarily carry the implication that the latter continue to be bound to the political laws of the displaced government. The United States, a signatory to the Hague Conventions, has made the point clear, by admitting that the military occupant can suspend all the laws of a political nature and even require public officials and the inhabitants to take an oath of fidelity (United States Rules of Land Warfare, 1940, article 309), and as already stated, it is a doctrine of American Constitutional Law that the inhabitants, no longer receiving the protection of their native state, for the time being owe no allegiance to it, and, being under the control and protection of the victorious power, owe to that power fealty and obedience. Indeed, what is prohibited is the application of force by the occupant, from which it is fair to deduce that the Conventions do not altogether outlaw voluntary submission by the population. The only strong reason for this is undoubtedly the desire of the authors of the Conventions to give as much freedom and allowance to the inhabitants as are necessary for their survival. This is wise and humane, because

the people should be in a better position to know what will save them during the military occupation than any exile government. "Before he was appointed prosecutor, Justice Jackson made a speech in which he warned against the use of judicial process for non judicial ends, and attacked cynics who "see no reason why courts, just like other agencies, should not be policy weapons. If we want to shoot Germans as a matter of policy, let it be done as such, said he, but don't hide the deed behind a court. If you are determined to execute a man in any case there is no occasion for a trial; the word yields no respect for courts that are merely organized to convict." Mussoloni may have got his just desserts, but nobody supposes he got a fair trial. . . . Let us bear that in mind as we go about punishing criminals. There are enough laws on the books to convict guilty Nazis without risking the prestige of our legal system. It is far, far better that some guilty men escape than that the idea of law be endangered. In the long run the idea of law is our best defense against Nazism in all its forms." These passages were taken from the editorial appearing in the Life, May 28, 1945, page 34, and convey ideas worthy of some reflection. If the Filipinos in fact committed any errors in feigning cooperation and obedience during the Japanese military occupation, they were at most borrowing the famous and significant words of President Roxas errors of the mind and not of the heart. We advisedly said "feigning" not as an admission of the fallacy of the theory of suspended allegiance or sovereignty, but as an affirmation that the Filipinos, contrary to their outward attitude, had always remained loyal by feeling and conscience to their country. Assuming that article 114 of the Revised Penal Code was in force during the Japanese military occupation, the present Republic of the Philippines has no right to prosecute treason committed against the former sovereignty existing during the Commonwealth Government which was none other than the sovereignty of the United States. This court has already held that, upon a change of sovereignty, the provisions of the Penal Code having to do with such subjects as treason, rebellion and sedition are no longer in force (People vs. Perfecto, 43 Phil., 887). It is true that, as contended by the majority, section 1 of Article II of the Constitution of the Philippines provides that "sovereignty resides in the people," but this did not make the Commonwealth Government or the Filipino people sovereign, because said declaration of principle, prior to the independence of the Philippines, was subervient to and controlled by the Ordinance appended to the Constitution under which, in addition to its many provisions essentially destructive of the concept of sovereignty, it is expressly made clear that the sovereignty of the United States over the Philippines had not then been withdrawn. The framers of the Constitution had to make said declaration of principle because the document was ultimately intended for the independent Philippines. Otherwise, the Preamble should not have announced that one of the purposes of the Constitution is to secure to the Filipino people and their posterity the "blessings of independence." No one, we suppose, will dare allege that the Philippines was an independent country under the Commonwealth Government. The Commonwealth Government might have been more autonomous than that existing under the Jones Law, but its non-sovereign status nevertheless remained unaltered; and what was enjoyed was the exercise of sovereignty over the Philippines continued to be complete.

The exercise of Sovereignty May be Delegated. It has already been seen that the exercise of sovereignty is conceived of as delegated by a State to the various organs which, collectively, constitute the Government. For practical political reasons which can be easily appreciated, it is desirable that the public policies of a State should be formulated and executed by governmental agencies of its own creation and which are not subject to the control of other States. There is, however, nothing in a nature of sovereignty or of State life which prevents one State from entrusting the exercise of certain powers to the governmental agencies of another State. Theoretically, indeed, a sovereign State may go to any extent in the delegation of the exercise of its power to the governmental agencies of other States, those governmental agencies thus becoming quoad hoc parts of the governmental machinery of the State whose sovereignty is exercised. At the same time these agencies do not cease to be Instrumentalities for the expression of the will of the State by which they were originally created. By this allegation the agent State is authorized to express the will of the delegating State, and the legal hypothesis is that this State possesses the legal competence again to draw to itself the exercise, through organs of its own creation, of the powers it has granted. Thus, States may concede to colonies almost complete autonomy of government and reserve to themselves a right of control of so slight and so negative a character as to make its exercise a rare and improbable occurence; yet, so long as such right of control is recognized to exist, and the autonomy of the colonies is conceded to be founded upon a grant and the continuing consent of the mother countries the sovereignty of those mother countries over them is complete and they are to be considered as possessing only administrative autonomy and not political independence. Again, as will be more fully discussed in a later chapter, in the so-called Confederate or Composite State, the cooperating States may yield to the central Government the exercise of almost all of their powers of Government and yet retain their several sovereignties. Or, on the other hand, a State may, without parting with its sovereignty of lessening its territorial application, yield to the governing organs of particular areas such an amplitude of powers as to create of them bodies-politic endowed with almost all of the characteristics of independent States. In all States, indeed, when of any considerable size, efficiency of administration demands that certain autonomous powers of local selfgovernment be granted to particular districts. (Willoughby, The Fundamental Concepts of Public Law [1931], pp. 74, 75.). The majority have drawn an analogy between the Commonwealth Government and the States of the American Union which, it is alleged, preserve their own sovereignty although limited by the United States. This is not true for it has been authoritatively stated that the Constituent States have no sovereignty of their own, that such autonomous powers as they now possess are had and exercised by the express will or by the constitutional forbearance of the national sovereignty, and that the sovereignty of the United States and the non-sovereign status of the individual States is no longer contested. It is therefore plain that the constituent States have no sovereignty of their own, and that such autonomous powers as they now possess are had and exercised by the express will or by the constitutional forbearance of the national sovereignty. The Supreme Court of the United States has held that, even when selecting members for the national legislature, or electing the

President, or ratifying proposed amendments to the federal constitution, the States act, ad hoc, as agents of the National Government. (Willoughby, the Fundamental Concepts of Public Law [1931], p.250.) This is the situation at the present time. The sovereignty of the United States and the non-sovereign status of the individual States is no longer contested. (Willoughby, The Fundamental Concepts of Public Law [1931], pp. 251, 252.) Article XVIII of the Constitution provides that "The government established by this Constitution shall be known as the Commonwealth of the Philippines. Upon the final and complete withdrawal of the sovereignty of the United States and the proclamation of Philippine independence, the Commonwealth of the Philippines shall thenceforth be known as the Republic of the Philippines." From this, the deduction is made that the Government under the Republic of the Philippines and under the Commonwealth is the same. We cannot agree. While the Commonwealth Government possessed administrative autonomy and exercised the sovereignty delegated by the United States and did not cease to be an instrumentality of the latter (Willoughby, The Fundamental Concepts of Public Law [1931], pp. 74, 75), the Republic of the Philippines is an independent State not receiving its power or sovereignty from the United States. Treason committed against the United States or against its instrumentality, the Commonwealth Government, which exercised, but did not possess, sovereignty (id., p. 49), is therefore not treason against the sovereign and independent Republic of the Philippines. Article XVIII was inserted in order, merely, to make the Constitution applicable to the Republic. Reliance is also placed on section 2 of the Constitution which provides that all laws of the Philippines Islands shall remain operative, unless inconsistent therewith, until amended, altered, modified or repealed by the Congress of the Philippines, and on section 3 which is to the effect that all cases pending in courts shall be heard, tried, and determined under the laws then in force, thereby insinuating that these constitutional provisions authorize the Republic of the Philippines to enforce article 114 of the Revised Penal Code. The error is obvious. The latter article can remain operative under the present regime if it is not inconsistent with the Constitution. The fact remains, however, that said penal provision is fundamentally incompatible with the Constitution, in that those liable for treason thereunder should owe allegiance to the United States or the government of the Philippines, the latter being, as we have already pointed out, a mere instrumentality of the former, whereas under the Constitution of the present Republic, the citizens of the Philippines do not and are not required to owe allegiance to the United States. To contend that article 114 must be deemed to have been modified in the sense that allegiance to the United States is deleted, and, as thus modified, should be applied to prior acts, would be to sanction the enactment and application of an ex post facto law. In reply to the contention of the respondent that the Supreme Court of the United States has held in the case of Bradford vs. Chase National Bank (24 Fed. Supp., 38), that the Philippines had a sovereign status, though with restrictions, it is sufficient to state that said case must be taken in the light of a subsequent decision of the same court in Cincinnati Soap Co. vs. United States (301 U.S., 308), rendered in May, 1937, wherein it was affirmed that the sovereignty of the United States over the Philippines had not been withdrawn, with the result that the earlier case only be interpreted to refer to the exercise of sovereignty by the Philippines as delegated by the mother country, the United States.

No conclusiveness may be conceded to the statement of President Roosevelt on August 12, 1943, that "the United States in practice regards the Philippines as having now the status as a government of other independent nations--in fact all the attributes of complete and respected nationhood," since said statement was not meant as having accelerated the date, much less as a formal proclamation of, the Philippine Independence as contemplated in the Tydings-McDuffie Law, it appearing that (1) no less also than the President of the United States had to issue the proclamation of July 4, 1946, withdrawing the sovereignty of the United States and recognizing Philippine Independence; (2) it was General MacArthur, and not President Osmea who was with him, that proclaimed on October 23, 1944, the restoration of the Commonwealth Government; (3) the Philippines was not given official participation in the signing of the Japanese surrender; (4) the United States Congress, and not the Commonwealth Government, extended the tenure of office of the President and Vice-President of the Philippines. The suggestion that as treason may be committed against the Federal as well as against the State Government, in the same way treason may have been committed against the sovereignty of the United States as well as against the sovereignty of the Philippine Commonwealth, is immaterial because, as we have already explained, treason against either is not and cannot be treason against the new and different sovereignty of the Republic of the Philippines.

RUSTICO ABAY, JR. and REYNALDO DARILAG, Petitioners, - versus PEOPLE OF THE PHILIPPINES,

G.R. No. 165896 Present: QUISUMBING, J., Chairperson, CARPIO MORALES, TINGA, VELASCO, JR., and BRION, JJ. Promulgated: September 19, 2008

number PJD-599 as backup vehicle, accused with the use of the aforesaid handguns and bladed weapons with intent to gain and taking the passengers of the bus by surprise, did then and there wilfully, unlawfully and feloniously divest and take away personalties of the passengers and/or occupants therein, among them were: a) Thelma Andrade y Lorenzana, P3,500.00 cash; b) Gloria Tolentino y Pamatmat, P30,000.00 cash, $2,000.00 dollars and eyeglasses (Perare) worth P5,000.00; c) Lilian Ojeda y Canta, P120.00 cash; d) Paul Masilang y Reyes, assorted used clothes of undetermined amount; and by reason or on occasion of the said robbery, accused shot passenger Rogelio Ronillo y Lumboy, inflicting upon him gunshot wounds on the neck, thus, accused performed all the acts of execution that would produce the crime of homicide, but nevertheless, did not produce by reason of causes independent of the will of the accused, that is by the timely medical assistance rendered to Rogelio Ronillo y Lumboy, and to his damage and prejudice and to the damages and prejudices of the following: a) Thelma Andrade y Lorenzana in the sum of P3,500.00; b) Gloria Tolentino y Pamatmat in the sum of P30,000.00; c) Lilian Ojeda y Canta in the sum of P120.00 That the commission of the offense was attended with the aggravating circumstances of nighttime, by a band and with the use of motor vehicle. With the additional aggravating circumstance that accused Isagani Espeleta y Arguelles and Cesar Camacho y Deolazo, being prison guards, have taken advantage of their public position by bringing out prison inmates and equipped them with deadly weapons and were utilized in the commission of robbery: With the further additional accused/inmates, as follows: aggravating circumstance on the following

Respondent.

x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x DECISION QUISUMBING, J.: This petition for review assails the Decision[1] dated October 27, 2003 and the Resolution[2] dated October 14, 2004 of the Court of Appeals in CA G.R. CR No. 25212. The Court of Appeals had affirmed the Decision[3] of the Regional Trial Court (RTC) of San Pedro, Laguna, Branch 31, finding petitioners guilty of the crime of Highway Robbery in Criminal Case No. 9045-B. The facts are as follows: On January 13, 1995, an Information was filed charging Rustico Abay, Jr., Reynaldo Darilag, Ramoncito Aban, Ernesto Ricalde, Ramon Punzalan, Ariston Reyes, Isagani Espeleta, Cesar Camacho, Leonardo Perello and Danilo Pascual with the crime of Highway Robbery/Brigandage. Said information reads: xxxx That on or about 7:30 oclock in the evening of February 17, 1994, at the South Luzon Expressway, Municipality of Bian, Province of Laguna, and within the jurisdiction of this Honorable Court, accused Ramoncito Aban y Casiano, Ernesto Ricalde y Jovillano, Rustico Abay, Jr. y Serafico, Ramon Punzalan y Carpena, Reynaldo Darilag y Apolinario, Leonardo Perello y Esguerra and Danilo Pascual y Lagata, who are principals by direct participation, conspiring and confederating together with Ariston Reyes y Plaza, Isagani Espeleta y Arguelles and Cesar Camacho y Deolazo, who are principals by indispensable cooperation and mutually helping each other, form themselves as band of robbers and conveniently armed with handguns and deadly bladed weapons, and while on board a Kapalaran Bus Line with plate number DVT-527 bound for Sta. Cruz, Laguna and a semi stainless owner type jeep with plate

1) Ramoncito Aban y Casiano with prison number 121577 as recidivist, having been convicted by final judgment on June 15, 1984 by the RTC, Branch VI, Malolos, Bulacan, in Criminal Case No. 3874-M for Robbery with Homicide; 2) Ariston Reyes y Plaza with prison number 115906-P, as recidivist, having been convicted by final judgment on March 11, 1982 by the CFI, Manila in Criminal Case No. 82-3001 for Robbery; having been convicted by final judgment on September 2, 1987 by the RTC Branch 94, Quezon City, in Criminal Case No. 37432 for Robbery; and for Reiteracion or habituality for having served sentence for Homicide, convicted on March 25, 1991 by the RTC, Branch 34, Quezon City;

3) Reynaldo Darilag y Apolinario with prison number 129552-P for reiteracion or habituality for having been previously punished for an offense of murder in Criminal Case No. 039 by the RTC, Branch 5, Tuguegarao, Cagayan and as a recidivist for having been previously convicted by final judgment on July 8, 1987 by the same Court in Criminal Case No. 040 for Robbery; 4) Rustico Abay, Jr. y Serafico with prison number 132566-P as a recidivist for having been previously convicted by final judgment on August 31, 1988 by the RTC, Branch 163 Manila, in Criminal Case No. 71060 for Theft; 5) Ramon Punzalan y Carpena with prison number 113605-P as recidivist for having been previously convicted by final judgment by the RTC, Branch 111, San Pablo City on the following dates, to wit: January 8, 1981 in Criminal Case No. 2454-SP, for Robbery in Band; December 8, 1981, in Criminal Case No. 2549 for Theft; October 7, 1983 in Criminal Case No. 2550-SP for Carnapping; and Having been previously convicted by final judgment by the City Court of San Pablo City on March 30, 1981 in Criminal Case No. 17738 for simple theft; 6) Ernesto R[i]calde y Jov[i]llano with prison number N92P-2735, as a recidivist for having been previously convicted by final judgment on August 2, 1992 by the RTC, Branch 54, Lucena City in Criminal Case No. 91-679 for simple theft. CONTRARY TO LAW.[4] When arraigned, all the accused pleaded not guilty. However, upon motion filed by accused Ramoncito Aban, with the conformity of the public prosecutor and private complainants Thelma Andrade and Gloria Tolentino, he was allowed to withdraw his earlier plea of "not guilty". Thus, on September 11, 1997, Ramoncito Aban, with the assistance of his counsel, pleaded "guilty" to the crime of simple robbery and on even date, the trial court sentenced him. Meanwhile, trial proceeded with respect to the other accused. The prosecution presented the following witnesses: Thelma Andrade, Gloria Tolentino and Ramoncito Aban. Thelma Andrade, a conductress of the Kapalaran Bus Line, testified that in the evening of February 17, 1994, the bus she was on was held-up. She said that Ramoncito Aban took from her, at gunpoint, the fares she collected from the passengers of the bus. She also identified Rustico Abay, Jr. and Ernesto Ricalde as two of the other companions of Aban.[5] Gloria Tolentino, a passenger of the bus, testified that someone shouted "hold-up" and ordered them to bow their heads. She obeyed the order but once in a while she would raise her head. According to Tolentino, the man seated beside her, Ariston Reyes, took her money and pieces of jewelry and handed them over to Reynaldo

Darilag. She also identified Rustico Abay, Jr. as one of the companions of the robbers.[6] Ramoncito Aban, the last witness, testified that on February 22, 1994, Camacho and Espeleta, who were both prison guards of the New Bilibid Prison (NBP), took him and his companions, Ricalde, Abay, Jr., Punzalan, Darilag, Reyes, Perello and Pascual, on board the owner-type jeepney of Camacho to stage a hold-up. He said they held-up a Kapalaran bus and it was Punzalan and Darilag who took the money and other belongings of the passengers in the bus. He further testified that the February 22, 1994 hold-up was the fourth staged by their group. According to Aban, the other hold-ups were carried out on February 11, 13 and 17, and all four hold-ups were staged by the same persons.[7] The defense, for its part, presented the testimony of petitioners Rustico Abay, Jr., and Reynaldo Darilag, the other co-accused, and Genaro Alberto. All the accused denied participation in the robbery that happened on February 17, 1994. Abay, Jr., Darilag, Reyes and Ricalde, who were detention prisoners, testified that they were confined in the NBP at the time the incident happened.[8] Pascual and Perello, both civilians, testified that they were at home then.[9] Genaro Alberto, a prison guard at the Bureau of Corrections, testified that during the headcount of the inmates conducted at 5:00 p.m. and 8:00 p.m. on February 17, 1994, no inmate was found to be missing.[10] In a Decision dated November 29, 2000, the RTC of San Pedro, Laguna, Branch 31 found petitioners Abay, Jr. and Darilag, as well as the other accused guilty of the crime charged. The trial court decreed as follows: WHEREFORE, this Court hereby renders judgment convicting accused Ernesto Ricalde y Jovillano, Rustico Abay, Jr. y Serafico, Ramon Punzalan y Carpena, Reynaldo Darilag y Apolicario, Ariston Reyes y Plaza, Isagani Espeleta y Arguelles, Cesar Camacho y Deolazo, Leonardo Perello y Esguerra and Danilo Pascual y Lagata of the crime of highway robbery/holdup attended by the aggravating circumstance of a band only and hereby sentences each of them: 1) to suffer an indeterminate penalty of imprisonment [of] twelve (12) years and one (1) day as minimum to thirteen (13) years, nine (9) months and eleven (11) days as maximum, both of reclusion temporal in its minimum period; 2) to indemnify Thelma Andrade, the amount of P3,500 and Gloria Tolentino, the amount of P30,000 and US$2,000; and 3) to pay the costs. SO ORDERED.[11] The Court of Appeals on appeal acquitted Espeleta, Camacho and Punzalan of the crime charged but affirmed the conviction of petitioners Abay, Jr. and Darilag, Ricalde and Reyes. The dispositive portion of the Decision dated October 27, 2003 states:

WHEREFORE, the assailed decision of the Regional Trial Court of San Pedro, Laguna, Branch 31, in Criminal Case No. 9045-B, is REVERSED and SET ASIDE, but only insofar as accused-appellants Isagani Espeleta, Cesar Camacho and Ramon Punzalan, are concerned, for insufficiency of evidence. Isagani Espeleta, Cesar Camacho and Ramon Punzalan are hereby ACQUITTED. Unless held for any other charge/charges their immediate release is hereby ordered. With respect to accused-appellants Rustico Abay, Jr., Ernesto Ricalde, Reynaldo Darilag and Ariston Reyes, the said decision of the Regional Trial Court of San Pedro, Laguna, Branch 31, in Criminal Case No. 9045-B, finding them guilty beyond reasonable doubt of the crime of highway robbery/hold-up is hereby AFFIRMED IN TOTO. SO ORDERED.[12] Petitioners Abay, Jr. and Darilag moved for a reconsideration of the aforesaid decision, but their motion was denied. Hence, they filed the instant petition raising a single issue: WHETHER OR NOT PETITIONERS MAY BE CONVICTED ON THE BASIS OF THE TESTIMONIES OF RAMONCITO ABAN, THELMA ANDRADE AND GLORIA TOLENTINO.13 Stated simply, did the Court of Appeals err in affirming on the basis of the testimonies of said three witnesses the conviction of petitioners Abay, Jr. and Darilag? In their petition,[14] petitioners Abay, Jr. and Darilag assert that their guilt has not been proven beyond reasonable doubt. They argue that Ramoncito Aban is not a credible witness and that he testified on an incident which happened on February 22, 1994 and not on February 17, 1994 as alleged in the information. Petitioners also claim that no physical evidence linking petitioners to the crime was presented. They likewise point to a related case filed against them wherein they were acquitted. They fault the trial court and Court of Appeals for disregarding their defense of alibi and in giving credence to the testimonies of Andrade and Tolentino, contending that these testimonies were incredible and unsubstantiated. They likewise contend that the lower courts erred in relying on Abans extrajudicial confession which was coerced. The Office of the Solicitor General (OSG) challenges the petition on the ground that the petition raises a question of fact. It also maintains that Aban is a credible witness and that petitioners defense of alibi cannot prevail over the positive testimonies of the prosecution witnesses.[15] After a thorough examination of the evidence presented, we are in agreement that the appeal lacks merit. At the outset, we note that it was not Abans extrajudicial confession but his court testimony reiterating his declarations in his extrajudicial admission, pointing to petitioners as his co-participants, which was instrumental in convicting petitioners of the crime charged. Settled is the rule that when the extrajudicial admission of a conspirator is confirmed at the trial, it ceases to be hearsay. It becomes instead a judicial admission, being a testimony of an eyewitness admissible in evidence against those it implicates.[16] Here, the extrajudicial confession of Aban was affirmed by

him in open court during the trial. Thus, such confession already partook of judicial testimony which is admissible in evidence against the petitioners. We likewise agree in finding without merit the petitioners argument that, since Abans testimony is not credible as to Espeleta, Camacho and Punzalan who were acquitted, then it should also be held not credible as to them. But in our considered view, the petitioners are not similarly situated as their aforementioned co-accused. Other than the testimony of Aban, there were no other witnesses who testified on the participation of Espeleta, Camacho and Punzalan. In contrast, anent the herein petitioners participation in the crime, not only is their conviction based on the testimony of Aban, but it was also established by the eyewitness testimony of Andrade and Tolentino who identified positively the petitioners in open court. Petitioners further aver that Aban testified on a robbery which took place on February 22, 1994, not February 17, 1994. Granted that Ramoncito Aban in fact testified on the details of the robbery which happened on February 22, 1994. However, it is also worth stressing as part of the prosecution evidence that Aban testified that malefactors used the same route and strategy in the perpetration of the robberies which happened on four occasions -- February 11, 13, 17 and 22, 1994. What happened on February 22 was but a replication, so to speak, of the robbery scenarios earlier perpetrated by the same gang on three previous dates. It is very clear, however, that Aban, on the witness stand was testifying specifically also about the offense that took place on February 17 in the Expressway, Bian, Laguna. Petitioners claim that no physical evidence was presented by the prosecution linking the petitioners to the crime charged. But in this case, the alleged failure of the prosecution to present physical evidence does not adversely affect the over-all weight of the evidence actually presented. Physical evidence would be merely corroborative because there are credible witnesses who testified on the complicity of petitioners in the crime charged.[17] Further, petitioners assert that in a similar case filed against them, they were acquitted by the trial court of Imus, Cavite. As correctly observed by the OSG, there is no showing that the amount and quality of evidence in the present case and those in the case where petitioners were allegedly acquitted are the same. Indeed, if petitioners truly believed that the prosecution evidence is deficient to establish their guilt, their defense could have earlier filed a demurrer to evidence in this case. But, they did not.[18] Additionally, petitioners claim that the trial court and the Court of Appeals erred in disregarding their defense of alibi.[19] However, we are in agreement with the OSG that the defense of alibi cannot prevail over the positive identification of the accused in this case. Worth stressing, this Court has consistently ruled that the defense of alibi must be received with suspicion and caution, not only because it is inherently weak and unreliable, but also because it can be easily fabricated.[20] Alibi is a weak defense that becomes even weaker in the face of the positive identification of the accused. An alibi cannot prevail over the positive identification of the petitioners by credible witnesses who have no motive to testify falsely.[21]

In this case, petitioners defense of alibi rested solely upon their own self -serving testimonies. For their defense of alibi to prosper, it should have been clearly and indisputably demonstrated by them that it was physically impossible for them to have been at, or near, the scene of the crime at the time of its commission. But as the trial court correctly ruled, it was not impossible for the petitioners to be at the scene of the crime since petitioners place of detention is less than an hour ride from the crime scene. Moreover, no dubious reason or improper motive was established to render the testimonies of Andrade, Tolentino and Aban false and unbelievable. Absent the most compelling reason, it is highly inconceivable why Andrade, Tolentino and Aban would openly concoct a story that would send innocent men to jail.[22] Similarly, petitioners assert that the testimonies of Andrade and Tolentino are incredible and unsubstantiated. They question the failure of Tolentino to identify Punzalan in court, and stress that Andrade and Tolentino were not able to identify all the accused. The OSG, on the other hand, maintains that the testimonies of Andrade and Tolentino are credible since the facts testified to by them and Aban support each other. We find petitioners allegations untenable. The testimonies given by Andrade, Tolentino and Aban corroborate each other. Their testimonies agree on the essential facts and substantially corroborate a consistent and coherent whole. The failure of Tolentino to point to Punzalan in court does not dent her credibility as a witness. It must be noted that it took years before Tolentino was placed on the witness stand. As to the allegation that the testimony of Andrade and Tolentino are incredible because they were not able to identify all the accused deserves scant consideration. During the robbery, they were told to bow their heads and hence, they were only able to raise their heads from time to time. It is but logical that the witnesses would not be able to identify all of the accused. Considering the testimonies of witnesses and the evidence presented by the parties, we are in agreement that the crime of Highway Robbery/Brigandage was duly proven in this case. As defined under Section 2(e) of Presidential Decree No. 532,[23] Highway Robbery/Brigandage is the seizure of any person for ransom, extortion or other unlawful purposes, or the taking away of the property of another by means of violence against or intimidation of person or force upon things or other unlawful means, committed by any person on any Philippine highway. Also, as held in People v. Puno:[24] In fine, the purpose of brigandage is, inter alia, indiscriminate highway robbery. If the purpose is only a particular robbery, the crime is only robbery, or robbery in band if there are at least four armed participants Further, that Presidential Decree No. 532 punishes as highway robbery or brigandage only acts of robbery perpetrated by outlaws indiscriminately against any person or persons on Philippine highways as defined therein, and not acts of robbery committed against only a predetermined or particular victim[Emphasis supplied.] The elements of the crime of Highway Robbery/Brigandage have been clearly established in this case. First, the prosecution evidence demonstrated with clarity that the petitioners group was organized for the purpose of committing robbery in a highway. Next, there is no predetermined victim. The Kapalaran bus was chosen

indiscriminately by the accused upon reaching their agreed destination -- Alabang, Muntinlupa. All told, we rule that petitioners Rustico Abay, Jr. and Reynaldo Darilag are guilty beyond reasonable doubt of the crime of Highway Robbery/Brigandage. WHEREFORE, the Decision dated October 27, 2003 and the Resolution dated October 14, 2004 of the Court of Appeals in CA G.R. CR No. 25212, affirming the Decision dated November 29, 2000 of the Regional Trial Court of San Pedro, Laguna, Branch 31 in Criminal Case No. 9045-B, are hereby AFFIRMED. No pronouncement as to costs. SO ORDERED.

G.R. No. L-37007

July 20, 1987

RAMON S. MILO, in his capacity as Assistant Provincial Fiscal of Pangasinan, and ARMANDO VALDEZ, petitioners, vs. ANGELITO C. SALANGA, in his capacity as Judge of the Court of First Instance of Pangasinan (Branch IV), and JUAN TUVERA, SR., respondents. GANCAYCO, J.: This is a petition for review on certiorari of an order of the Court of First Instance of Pangasinan, Third Judicial District, in Criminal Case No. D-529 entitled "The People of the Philippines versus Juan Tuvera, Sr., et al.," granting the motion to quash the information filed by accused Juan Tuvera, Sr., herein respondent. The issue is whether a barrio captain can be charged of arbitrary detention. The facts are as follows:

On April 4, 1973, Tuvera filed a motion to quash the information on the ground that the facts charged do not constitute an offense and that the proofs adduced at the investigation are not sufficient to support the filing of the information. Petitioner Assistant Provincial Fiscal Ramon S. Milo filed an opposition thereto. Finding that respondent Juan Tuvera, Sr. was not a public officer who can be charged with Arbitrary Detention, respondent Judge Angelito C. Salanga granted the motion to quash in an order dated April 25, 1973. Hence, this petition. Arbitrary Detention is committed by a public officer who, without legal grounds, detains a person.1 The elements of this crime are the following: 1. That the offender is a public officer or employee. 2. That he detains a person.

On October 12, 1972, an information for Arbitrary Detention was filed against Juan Tuvera, Sr., Tomas Mendoza and Rodolfo Mangsat, in the Court of First Instance of Pangasinan, which reads as follows: The undersigned Assistant Provincial Fiscal accuses Juan Tuvera, Sr., Tomas Mendoza and Rodolfo Mangsat alias Rudy, all of Manaoag, Pangasinan, of the crime of ARBITRARY DETENTION, committed as follows: That on or about the 21st day of April 1973, at around 10:00 o'clock in the evening, in barrio Baguinay, Manaoag, Pangasinan, Philippines and within the jurisdiction of this Honorable Court, accused Juan Tuvera, Sr., a barrio captain, with the aid of some other private persons, namely Juan Tuvera, Jr., Bertillo Bataoil and one Dianong, maltreated one Armando Valdez by hitting with butts of their guns and fists blows and immediately thereafter, without legal grounds, with deliberate intent to deprive said Armando Valdez of his constitutional liberty, accused Barrio captain Juan Tuvera, Sr., Cpl. Tomas Mendoza and Pat. Rodolfo Mangsat, members of the police force of Mangsat, Pangasinan conspiring, confederating and helping one another, did, then and there, willfully, unlawfully and feloniously, lodge and lock said Armando Valdez inside the municipal jail of Manaoag, Pangasinan for about eleven (11) hours. (Emphasis supplied.) CONTRARY TO ARTICLE 124 of the R.P.C. Dagupan City, October 12, 1972. (SGD.) VICENTE Assistant Provincial Fiscal C. CALDONA

3. That the detention is without legal grounds.2 The ground relied upon by private respondent Tuvera for his motion to quash the information which was sustained by respondent Judge, is that the facts charged do not constitute an offense,3 that is, that the facts alleged in the information do not constitute the elements of Arbitrary Detention. The Information charges Tuvera, a barrio captain, to have conspired with Cpl. Mendoza and Pat. Mangsat, who are members of the police force of Manaoag, Pangasinan in detaining petitioner Valdez for about eleven (11) hours in the municipal jail without legal ground. No doubt the last two elements of the crime are present. The only question is whether or not Tuvera, Sr., a barrio captain is a public officer who can be liable for the crime of Arbitrary Detention. The public officers liable for Arbitrary Detention must be vested with authority to detain or order the detention of persons accused of a crime. Such public officers are the policemen and other agents of the law, the judges or mayors.4 Respondent Judge Salanga did not consider private respondent Tuvera as such public officer when the former made this finding in the questioned order: Apparently, if Armando Valdez was ever jailed and detained more than six (6) hours, Juan Tuvera, Sr., has nothing to do with the same because he is not in any way connected with the Police Force of Manaoag, Pangasinan. Granting that it was Tuvera, Sr., who ordered Valdez arrested, it was not he who detained and jailed him because he has no such authority vested in him as a mere Barrio Captain of Barrio Baguinay, Manaoag, Pangasinan. 5 In line with the above finding of respondent Judge Salanga, private respondent Tuvera asserts that the motion to quash was properly sustained for the following

All the accused, including respondent Juan Tuvera, Sr., were arraigned and pleaded not guilty.

reasons: (1) That he did not have the authority to make arrest, nor jail and detain petitioner Valdez as a mere barrio captain;6 (2) That he is neither a peace officer nor a policeman,7 (3) That he was not a public official;8 (4) That he had nothing to do with the detention of petitioner Valdez;9 (5) That he is not connected directly or indirectly in the administration of the Manaoag Police Force;10 (6) That barrio captains on April 21, 1972 were not yet considered as persons in authority and that it was only upon the promulgation of Presidential Decree No. 299 that Barrio Captain and Heads of Barangays were decreed among those who are persons in authority;11 and that the proper charge was Illegal Detention and Not Arbitrary Detention.12 We disagree. Long before Presidential Decree 299 was signed into law, barrio lieutenants (who were later named barrio captains and now barangay captains) were recognized as persons in authority. In various cases, this Court deemed them as persons in authority, and convicted them of Arbitrary Detention. In U.S. vs. Braganza,13 Martin Salibio, a barrio lieutenant, and Hilario Braganza, a municipal councilor, arrested Father Feliciano Gomez while he was in his church. They made him pass through the door of the vestry and afterwards took him to the municipal building. There, they told him that he was under arrest. The priest had not committed any crime. The two public officials were convicted of Arbitrary Detention.14 In U.S. vs. Gellada,15 Geronimo Gellada, a barrio lieutenant, with the help of Filoteo Soliman, bound and tied his houseboy Sixto Gentugas with a rope at around 6:00 p.m. and delivered him to the justice of the peace. Sixto was detained during the whole night and until 9:00 a.m. of the next day when he was ordered released by the justice of the peace because he had not committed any crime, Gellada was convicted of Arbitrary Detention.16 Under Republic Act No. 3590, otherwise known as The Revised Barrio Charter, the powers and duties of a barrio captain include the following: to look after the maintenance of public order in the barrio and to assist the municipal mayor and the municipal councilor in charge of the district in the performance of their duties in such barrio;17 to look after the general welfare of the barrio;18 to enforce all laws and ordinances which are operative within the barrio;19 and to organize and lead an emergency group whenever the same may be necessary for the maintenance of peace and order within the barrio.20 In his treatise on Barrio Government Law and Administration, Professor Jose M. Aruego has this to say about the above-mentioned powers and duties of a Barrio Captain, to wit: "Upon the barrio captain depends in the main the maintenance of public order in the barrio. For public disorder therein, inevitably people blame him. "In the event that there be a disturbing act to said public order or a threat to disturb public order, what can the barrio captain do? Understandably, he first resorts to peaceful measures. He may take preventive measures like placing the offenders under surveillance and persuading them, where possible, to behave well, but when necessary, he may subject them to the full force of law.

"He is a peace officer in the barrio considered under the law as a person in authority. As such, he may make arrest and detain persons within legal limits.21 (Emphasis supplied.) One need not be a police officer to be chargeable with Arbitrary Detention. It is accepted that other public officers like judges and mayors, who act with abuse of their functions, may be guilty of this crime.22 A perusal of the powers and function vested in mayors would show that they are similar to those of a barrio captain23 except that in the case of the latter, his territorial jurisdiction is smaller. Having the same duty of maintaining peace and order, both must be and are given the authority to detain or order detention. Noteworthy is the fact that even private respondent Tuvera himself admitted that with the aid of his rural police, he as a barrio captain, could have led the arrest of petitioner Valdez.24 From the foregoing, there is no doubt that a barrio captain, like private respondent Tuvera, Sr., can be held liable for Arbitrary Detention. Next, private respondent Tuvera, Sr. contends that the motion to quash was validly granted as the facts and evidence on record show that there was no crime of Arbitrary Detention;25 that he only sought the aid and assistance of the Manaoag Police Force;26 and that he only accompanied petitioner Valdez to town for the latter's personal safety.27 Suffice it to say that the above allegations can only be raised as a defense at the trial as they traverse what is alleged in the Information. We have repeatedly held that Courts, in resolving a motion to quash, cannot consider facts contrary to those alleged in the information or which do not appear on the face of the information. This is because a motion to quash is a hypothetical admission of the facts alleged in the information.28 Matters of defense cannot be proved during the hearing of such a motion, except where the Rules expressly permit, such as extinction of criminal liability, prescription, and former jeopardy.29 In the case of U.S. vs. Perez,30 this Court held that a motion to quash on the ground that the facts charged do not constitute an offense cannot allege new facts not only different but diametrically opposed to those alleged in the complaint. This rule admits of only one exception and that is when such facts are admitted by the prosecution.31lawphi1 Lastly, private respondent claims that by the lower court's granting of the motion to quash jeopardy has already attached in his favor32 on the ground that here, the case was dismissed or otherwise terminated without his express consent. Respondent's contention holds no water. An order granting a motion to quash, unlike one of denial, is a final order. It is not merely interlocutory and is therefore immediately appealable. The accused cannot claim double jeopardy as the dismissal was secured not only with his consent but at his instance.33 WHEREFORE, in view of the foregoing, the Petition for certiorari is GRANTED. The questioned Order of April 25, 1973 in Criminal Case No. D-529 is hereby set aside. Let this case be remanded to the appropriate trial court for further proceedings. No pronouncement as to costs. SO ORDERED.

G.R. Nos. 172070-72

June 1, 2007

The Facts Petitioner in G.R. No. 175013, Crispin B. Beltran (Beltran), and petitioners in G.R. Nos. 172074-76, Liza L. Maza (Maza), Joel G. Virador (Virador), Saturnino C. Ocampo (Ocampo), Teodoro A. Casio (Casio), and Rafael V. Mariano (Mariano),1 are members of the House of Representatives representing various party-list groups.2 Petitioners in G.R. Nos. 172070-72 are private individuals. Petitioners all face charges for Rebellion under Article 134 in relation to Article 135 of the Revised Penal Code in two criminal cases pending with the RTC Makati. G.R. No. 175013 (The Beltran Petition) Following the issuance by President Gloria Macapagal-Arroyo of Presidential Proclamation No. 1017 on 24 February 2006 declaring a "State of National Emergency," police officers3 arrested Beltran on 25 February 2006, while he was en route to Marilao, Bulacan, and detained him in Camp Crame, Quezon City. Beltran was arrested without a warrant and the arresting officers did not inform Beltran of the crime for which he was arrested. On that evening, Beltran was subjected to an inquest at the Quezon City Hall of Justice for Inciting to Sedition under Article 142 of the Revised Penal Code based on a speech Beltran allegedly gave during a rally in Quezon City on 24 February 2006, on the occasion of the 20 th anniversary of the EDSA Revolution. The inquest was based on the joint affidavit of Beltrans arresting officers who claimed to have been present at the rally. The inquest prosecutor 4 indicted Beltran and filed the corresponding Information with the Metropolitan Trial Court of Quezon City (MeTC).5 The authorities brought back Beltran to Camp Crame where, on 27 February 2006, he was subjected to a second inquest, with 1st Lt. Lawrence San Juan (San Juan), this time for Rebellion. A panel of State prosecutors6 from the DOJ conducted this second inquest. The inquest was based on two letters, both dated 27 February 2006, of Yolanda Tanigue (Tanigue) and of Rodolfo Mendoza (Mendoza). Tanigue is the Acting Executive Officer of the Criminal Investigation and Detection Group (CIDG), Philippine National Police (PNP), while Mendoza is the Acting Deputy Director of the CIDG. The letters referred to the DOJ for appropriate action the results of the CIDGs investigation implicating Beltran, the petitioners in G.R. Nos. 172074-76, San Juan, and several others as "leaders and promoters" of an alleged foiled plot to overthrow the Arroyo government. The plot was supposed to be carried out jointly by members of the Communist Party of the Philippines (CPP) and the Makabayang Kawal ng Pilipinas (MKP), which have formed a "tactical alliance." On 27 February 2006, the DOJ panel of prosecutors issued a Resolution finding probable cause to indict Beltran and San Juan as "leaders/promoters" of Rebellion. The panel then filed an Information with the RTC Makati. The Information alleged that Beltran, San Juan, and other individuals "conspiring and confederating with each other, x x x, did then and there willfully, unlawfully, and feloniously form a tactical alliance between the CPP/NPA, renamed as Partidong Komunista ng Pilipinas (PKP) and its armed regular members as Katipunan ng Anak ng Bayan (KAB) with the Makabayang Kawal ng Pilipinas (MKP) and thereby rise publicly and take up arms against the duly constituted government, x x x."7 The Information, docketed as Criminal Case No. 06-452, was raffled to Branch 137 under Presiding Judge Jenny Lind R. Aldecoa-Delorino (Judge Delorino).

VICENTE P. LADLAD, NATHANAEL S. SANTIAGO, RANDALL B. ECHANIS, and REY CLARO C. CASAMBRE, Petitioners, vs. SENIOR STATE PROSECUTOR EMMANUEL Y. VELASCO, SENIOR STATE PROSECUTOR JOSELITA C. MENDOZA, SENIOR STATE PROSECUTOR AILEEN MARIE S. GUTIERREZ, STATE PROSECUTOR IRWIN A. MARAYA, and STATE PROSECUTOR MERBA A. WAGA, in their capacity as members of the Department of Justice panel of prosecutors investigating I.S. Nos. 2006-225, 2006-226 and 2006-234, JUSTICE SECRETARY RAUL M. GONZALEZ, DIRECTOR GENERAL ARTURO C. LOMIBAO, in his capacity as Chief, Philippine National Police, P/CSUPT. RODOLFO B. MENDOZA, JR., and P/SUPT. YOLANDA G. TANIGUE, Respondents. x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x G.R. Nos. 172074-76 June 1, 2007

LIZA L. MAZA, JOEL G. VIRADOR, SATURNINO C. OCAMPO, TEODORO A. CASIO, CRISPIN B. BELTRAN, and RAFAEL V. MARIANO, Petitioners, vs. RAUL M. GONZALEZ, in his capacity as Secretary of the Department of Justice, JOVENCITO R. ZUO, in his capacity as Chief State Prosecutor, the Panel of Investigating Prosecutors composed of EMMANUEL Y. VELASCO, JOSELITA C. MENDOZA, AILEEN MARIE S. GUTIERREZ, IRWIN A. MARAYA and MERBA A. WAGA (Panel), RODOLFO B. MENDOZA, in his capacity as Acting Deputy Director, Directorate for Investigation and Detective Management (DIDM), YOLANDA G. TANIGUE, in her capacity as Acting Executive Officer of DIDM, the DEPARTMENT OF JUSTICE (DOJ), and the PHILIPPINE NATIONAL POLICE (PNP), Respondents. x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x G.R. No. 175013 June 1, 2007

CRISPIN B. BELTRAN, Petitioner, vs. PEOPLE OF THE PHILIPPINES, SECRETARY RAUL M. GONZALEZ, in his capacity as the Secretary of Justice and overall superior of the Public Prosecutors, HONORABLE ENCARNACION JAJA G. MOYA, in her capacity as Presiding Judge of Regional Trial Court of Makati City, Branch 146, and HONORABLE ELMO M. ALAMEDA, in his capacity as Presiding Judge of Regional Trial Court of Makati City, Branch 150, Respondents. CARPIO, J.: The Case These are consolidated petitions for the writs of prohibition and certiorari to enjoin petitioners prosecution for Rebellion and to set aside the rulings of the Department of Justice (DOJ) and the Regional Trial Court of Makati City (RTC Makati) on the investigation and prosecution of petitioners cases.

Beltran moved that Branch 137 make a judicial determination of probable cause against him.8 Before the motion could be resolved, Judge Delorino recused herself from the case which was re-raffled to Branch 146 under Judge Encarnacion Jaja-Moya (Judge Moya). In its Order dated 31 May 2006, Branch 146 sustained the finding of probable cause against Beltran.9 Beltran sought reconsideration but Judge Moya also inhibited herself from the case without resolving Beltrans motion. Judge Elmo M. Alameda of Branch 150, to whom the case was re-raffled, issued an Order on 29 August 2006 denying Beltrans motion. Hence, the petition in G.R. No. 175013 to set aside the Orders dated 31 May 2006 and 29 August 2006 and to enjoin Beltrans prosecution. In his Comment to the petition, the Solicitor General claims that Beltrans inquest for Rebellion was valid and that the RTC Makati correctly found probable cause to try Beltran for such felony. G.R. Nos. 172070-72 and 172074-76 (The Maza and Ladlad Petitions) Based on Tanigue and Mendozas letters, the DOJ sent subpoenas to petitioners on 6 March 2006 requiring them to appear at the DOJ Office on 13 March 2006 "to get copies of the complaint and its attachment." Prior to their receipt of the subpoenas, petitioners had quartered themselves inside the House of Representatives building for fear of being subjected to warrantless arrest. During the preliminary investigation on 13 March 2006, the counsel for the CIDG presented a masked man, later identified as Jaime Fuentes (Fuentes), who claimed to be an eyewitness against petitioners. Fuentes subscribed to his affidavit before respondent prosecutor Emmanuel Velasco who then gave copies of the affidavit to media members present during the proceedings. The panel of prosecutors10 gave petitioners 10 days within which to file their counter-affidavits. Petitioners were furnished the complete copies of documents supporting the CIDGs letters only on 17 March 2006. Petitioners moved for the inhibition of the members of the prosecution panel for lack of impartiality and independence, considering the political milieu under which petitioners were investigated, the statements that the President and the Secretary of Justice made to the media regarding petitioners case,11 and the manner in which the prosecution panel conducted the preliminary investigation. The DOJ panel of prosecutors denied petitioners motion on 22 March 2006. Petitioners sought reconsideration and additionally prayed for the dismissal of the cases. However, the panel of prosecutors denied petitioners motions on 4 April 2006. Petitioners now seek the nullification of the DOJ Orders of 22 March 2006 and 4 April 2006. Acting on petitioners prayer for the issuance of an injunctive writ, the Court issued a status quo order on 5 June 2006. Prior to this, however, the panel of prosecutors, on 21 April 2006, issued a Resolution finding probable cause to charge petitioners and 46 others with Rebellion. The prosecutors filed the corresponding Information with

Branch 57 of the RTC Makati, docketed as Criminal Case No. 06-944 (later consolidated with Criminal Case No. 06-452 in Branch 146), charging petitioners and their co-accused as "principals, masterminds, [or] heads" of a Rebellion.12 Consequently, the petitioners in G.R. Nos. 172070-72 filed a supplemental petition to enjoin the prosecution of Criminal Case No. 06-944. In his separate Comment to the Maza petition, the Solicitor General submits that the preliminary investigation of petitioners was not tainted with irregularities. The Solicitor General also claims that the filing of Criminal Case No. 06-944 has mooted the Maza petition. The Issues The petitions raise the following issues: 1. In G.R. No. 175013, (a) whether the inquest proceeding against Beltran for Rebellion was valid and (b) whether there is probable cause to indict Beltran for Rebellion; and 2. In G.R. Nos. 172070-72 and 172074-76, whether respondent prosecutors should be enjoined from continuing with the prosecution of Criminal Case No. 06-944.13 The Ruling of the Court We find the petitions meritorious. On the Beltran Petition The Inquest Proceeding against Beltran for Rebellion is Void. Inquest proceedings are proper only when the accused has been lawfully arrested without warrant.14 Section 5, Rule 113 of the Revised Rules of Criminal Procedure provides the instances when such warrantless arrest may be effected, thus: Arrest without warrant; when lawful. A peace officer or a private person may, without a warrant, arrest a person: (a) When, in his presence, the person to be arrested has committed, is actually committing, or is attempting to commit an offense; (b) When an offense has just been committed and he has probable cause to believe based on personal knowledge of facts or circumstances that the person to be arrested has committed it; and xxxx In cases falling under paragraphs (a) and (b) above, the person arrested without a warrant shall be forthwith delivered to the nearest police station or jail and shall be proceeded against in accordance with section 7 of Rule 112.

The joint affidavit of Beltrans arresting officers15 states that the officers arrested Beltran, without a warrant,16 for Inciting to Sedition, and not for Rebellion. Thus, the inquest prosecutor could only have conducted as he did conduct an inquest for Inciting to Sedition and no other. Consequently, when another group of prosecutors subjected Beltran to a second inquest proceeding for Rebellion, they overstepped their authority rendering the second inquest void. None of Beltrans arresting officers saw Beltran commit, in their presence, the crime of Rebellion. Nor did they have personal knowledge of facts and circumstances that Beltran had just committed Rebellion, sufficient to form probable cause to believe that he had committed Rebellion. What these arresting officers alleged in their affidavit is that they saw and heard Beltran make an allegedly seditious speech on 24 February 2006.17 Indeed, under DOJ Circular No. 61, dated 21 September 1993, the initial duty of the inquest officer is to determine if the arrest of the detained person was made "in accordance with the provisions of paragraphs (a) and (b) of Section 5, Rule 113." 18 If the arrest was not properly effected, the inquest officer should proceed under Section 9 of Circular No. 61 which provides: Where Arrest Not Properly Effected. Should the Inquest Officer find that the arrest was not made in accordance with the Rules, he shall: a) recommend the release of the person arrested or detained; b) note down the disposition on the referral document; c) prepare a brief memorandum indicating the reasons for the action taken; and d) forward the same, together with the record of the case, to the City or Provincial Prosecutor for appropriate action. Where the recommendation for the release of the detained person is approved by the City or Provincial Prosecutor but the evidence on hand warrant the conduct of a regular preliminary investigation, the order of release shall be served on the officer having custody of said detainee and shall direct the said officer to serve upon the detainee the subpoena or notice of preliminary investigation, together with the copies of the charge sheet or complaint, affidavit or sworn statements of the complainant and his witnesses and other supporting evidence. (Emphasis supplied) For the failure of Beltrans panel of inquest prosecutors to comply with Section 7, Rule 112 in relation to Section 5, Rule 113 and DOJ Circular No. 61, we declare Beltrans inquest void.19 Beltran would have been entitled to a preliminary investigation had he not asked the trial court to make a judicial determination of probable cause, which effectively took the place of such proceeding. There is No Probable Cause to Indict Beltran for Rebellion.

Probable cause is the "existence of such facts and circumstances as would excite the belief in a reasonable mind, acting on the facts within the knowledge of the prosecutor, that the person charged was guilty of the crime for which he was prosecuted."20 To accord respect to the discretion granted to the prosecutor and for reasons of practicality, this Court, as a rule, does not interfere with the prosecutors determination of probable cause for otherwise, courts would be swamped with petitions to review the prosecutors findings in such investigations.21 However, in the few exceptional cases where the prosecutor abused his discretion by ignoring a clear insufficiency of evidence to support a finding of probable cause, thus denying the accused his right to substantive and procedural due process, we have not hesitated to intervene and exercise our review power under Rule 65 to overturn the prosecutors findings.22 This exception holds true here. Rebellion under Article 134 of the Revised Penal Code is committed [B]y rising publicly and taking arms against the Government for the purpose of removing from the allegiance to said Government or its laws, the territory of the Republic of the Philippines or any part thereof, or any body of land, naval, or other armed forces or depriving the Chief Executive or the Legislature, wholly or partially, of any of their powers or prerogatives. The elements of the offense are: 1. That there be a (a) public uprising and (b) taking arms against the Government; and 2. That the purpose of the uprising or movement is either (a) to remove from the allegiance to said Government or its laws: (1) the territory of the Philippines or any part thereof; or (2) any body of land, naval, or other armed forces; or (b) to deprive the Chief Executive or Congress, wholly or partially, of any of their powers and prerogatives.23 Thus, by its nature, rebellion is a crime of the masses or multitudes involving crowd action done in furtherance of a political end.24 The evidence before the panel of prosecutors who conducted the inquest of Beltran for Rebellion consisted of the affidavits and other documents25 attached to the CIDG letters. We have gone over these documents and find merit in Beltrans contention that the same are insufficient to show probable cause to indict him for Rebellion. The bulk of the documents consists of affidavits, some of which were sworn before a notary public, executed by members of the military and some civilians. Except for two affidavits, executed by a certain Ruel Escala (Escala), dated 20 Febuary 2006,26 and Raul Cachuela (Cachuela), dated 23 February 2006,27 none of the affidavits mentions Beltran.28 In his affidavit, Escala recounted that in the afternoon of 20 February 2006, he saw Beltran, Ocampo, Casio, Maza, Mariano, Virador, and other individuals on

board a vehicle which entered a chicken farm in Bucal, Padre Garcia, Batangas and that after the passengers alighted, they were met by another individual who looked like San Juan. For his part, Cachuela stated that he was a former member of the CPP and that (1) he attended the CPPs "10th Plenum" in 1992 where he saw Beltran; (2) he took part in criminal activities; and (3) the arms he and the other CPP members used were purchased partly from contributions by Congressional members, like Beltran, who represent party-list groups affiliated with the CPP. The allegations in these affidavits are far from the proof needed to indict Beltran for taking part in an armed public uprising against the government. What these documents prove, at best, is that Beltran was in Bucal, Padre Garcia, Batangas on 20 February 2006 and that 14 years earlier, he was present during the 1992 CPP Plenum. None of the affidavits stated that Beltran committed specific acts of promoting, maintaining, or heading a rebellion as found in the DOJ Resolution of 27 February 2006. None of the affidavits alleged that Beltran is a leader of a rebellion. Beltrans alleged presence during the 1992 CPP Plenum does not automatically make him a leader of a rebellion. In fact, Cachuelas affidavit stated that Beltran attended the 1992 CPP Plenum as "Chairman, Kilusang Mayo Uno (KMU)." Assuming that Beltran is a member of the CPP, which Beltran does not acknowledge, mere membership in the CPP does not constitute rebellion.29 As for the alleged funding of the CPPs military equipment from Beltrans congressional funds, Cachuelas affidavit merely contained a general conclusion without any specific act showing such funding. Cachuela merely alleged that "ang mga ibang mga pondo namin ay galing sa mga party list na naihalal sa Kongreso tulad ng BAYAN MUNA pimumunuan nila SATUR OCAMPO at CRISPIN BELTRAN, x x x."30 Such a general conclusion does not establish probable cause. In his Comment to Beltrans petition, the Solicitor General points to Fuentes affidavit, dated 25 February 2006,31 as basis for the finding of probable cause against Beltran as Fuentes provided details in his statement regarding meetings Beltran and the other petitioners attended in 2005 and 2006 in which plans to overthrow violently the Arroyo government were allegedly discussed, among others. The claim is untenable. Fuentes affidavit was not part of the attachments the CIDG referred to the DOJ on 27 February 2006. Thus, the panel of inquest prosecutors did not have Fuentes affidavit in their possession when they conducted the Rebellion inquest against Beltran on that day. Indeed, although this affidavit is dated 25 February 2006, the CIDG first presented it only during the preliminary investigation of the other petitioners on 13 March 2006 during which Fuentes subscribed to his statement before respondent prosecutor Velasco. Respondent prosecutors later tried to remedy this fatal defect by motu proprio submitting to Branch 137 of the RTC Makati Fuentes affidavit as part of their Comment to Beltrans motion for judicial determination of probable cause. Such belated submission, a tacit admission of the dearth of evidence against Beltran during the inquest, does not improve the prosecutions case. Assuming them to be true, what the allegations in Fuentes affidavit make out is a case for Conspiracy to Commit Rebellion, punishable under Article 136 of the Revised Penal Code, not Rebellion under Article 134. Attendance in meetings to discuss, among others, plans to bring down a government is a mere preparatory step to commit the acts constituting Rebellion under Article 134. Even the prosecution acknowledged this, since the felony charged in the Information against Beltran and San Juan in Criminal Case No. 06-452

is Conspiracy to Commit Rebellion and not Rebellion. The Information merely alleged that Beltran, San Juan, and others conspired to form a "tactical alliance" to commit Rebellion. Thus, the RTC Makati erred when it nevertheless found probable cause to try Beltran for Rebellion based on the evidence before it. The minutes32 of the 20 February 2006 alleged meeting in Batangas between members of MKP and CPP, including Beltran, also do not detract from our finding.1a\^/phi1.net Nowhere in the minutes was Beltran implicated. While the minutes state that a certain "Cris" attended the alleged meeting, there is no other evidence on record indicating that "Cris" is Beltran. San Juan, from whom the "flash drive" containing the so-called minutes was allegedly taken, denies knowing Beltran. To repeat, none of the affidavits alleges that Beltran is promoting, maintaining, or heading a Rebellion. The Information in Criminal Case No. 06-452 itself does not make such allegation. Thus, even assuming that the Information validly charges Beltran for taking part in a Rebellion, he is entitled to bail as a matter of right since there is no allegation in the Information that he is a leader or promoter of the Rebellion.33 However, the Information in fact merely charges Beltran for "conspiring and confederating" with others in forming a "tactical alliance" to commit rebellion. As worded, the Information does not charge Beltran with Rebellion but with Conspiracy to Commit Rebellion, a bailable offense.34 On the Ladlad and Maza Petitions The Preliminary Investigation was Tainted With Irregularities. As in the determination of probable cause, this Court is similarly loath to enjoin the prosecution of offenses, a practice rooted on public interest as the speedy closure of criminal investigations fosters public safety.35 However, such relief in equity may be granted if, among others, the same is necessary (a) to prevent the use of the strong arm of the law in an oppressive and vindictive manner 36 or (b) to afford adequate protection to constitutional rights.37 The case of the petitioners in G.R. Nos. 17207072 and 172074-76 falls under these exceptions. The procedure for preliminary investigation of offenses punishable by at least four years, two months and one day is outlined in Section 3, Rule 112 of the Revised Rules of Criminal Procedure, thus: Procedure.The preliminary investigation shall be conducted in the following manner: (a) The complaint shall state the address of the respondent and shall be accompanied by the affidavits of the complainant and his witnesses, as well as other supporting documents to establish probable cause. They shall be in such number of copies as there are respondents, plus two (2) copies for the official file. The affidavits shall be subscribed and sworn to before any prosecutor or government official authorized to administer oath, or, in their absence or unavailability, before a notary public, each of whom must certify

that he personally examined the affiants and that he is satisfied that they voluntarily executed and understood their affidavits. (b) Within ten (10) days after the filing of the complaint, the investigating officer shall either dismiss it if he finds no ground to continue with the investigation, or issue a subpoena to the respondent attaching to it a copy of the complaint and its supporting affidavits and documents. The respondent shall have the right to examine the evidence submitted by the complainant which he may not have been furnished and to copy them at his expense. If the evidence is voluminous, the complainant may be required to specify those which he intends to present against the respondent, and these shall be made available for examination or copying by the respondent at his expense. Objects as evidence need not be furnished a party but shall be made available for examination, copying, or photographing at the expense of the requesting party. (c) Within ten (10) days from receipt of the subpoena with the complaint and supporting affidavits and documents, the respondent shall submit his counter-affidavit and that of his witnesses and other supporting documents relied upon for his defense. The counter-affidavits shall be subscribed and sworn to and certified as provided in paragraph (a) of this section, with copies thereof furnished by him to the complainant. The respondent shall not be allowed to file a motion to dismiss in lieu of a counter-affidavit. (d) If the respondent cannot be subpoenaed, or if subpoenaed, does not submit counter-affidavits within the ten (10) day period, the investigating officer shall resolve the complaint based on the evidence presented by the complainant. (e) The investigating officer may set a hearing if there are facts and issues to be clarified from a party or a witness. The parties can be present at the hearing but without the right to examine or cross-examine. They may, however, submit to the investigating officer questions which may be asked to the party or witness concerned. The hearing shall be held within ten (10) days from submission of the counter-affidavits and other documents or from the expiration of the period for their submission. It shall be terminated within five (5) days. (f) Within ten (10) days after the investigation, the investigating officer shall determine whether or not there is sufficient ground to hold the respondent for trial. (Emphasis supplied) Instead of following this procedure scrupulously, as what this Court had mandated in an earlier ruling, "so that the constitutional right to liberty of a potential accused can be protected from any material damage,"38 respondent prosecutors nonchalantly disregarded it. Respondent prosecutors failed to comply with Section 3(a) of Rule 112 which provides that the complaint (which, with its attachment, must be of such

number as there are respondents) be accompanied by the affidavits of the complainant and his witnesses, subscribed and sworn to before any prosecutor or government official authorized to administer oath, or, in their absence or unavailability, before a notary public. Respondent prosecutors treated the unsubscribed letters of Tanigue and Mendoza of the CIDG, PNP as complaints39 and accepted the affidavits attached to the letters even though some of them were notarized by a notary public without any showing that a prosecutor or qualified government official was unavailable as required by Section 3(a) of Rule 112. Further, Section 3(b) of Rule 112 mandates that the prosecutor, after receiving the complaint, must determine if there are grounds to continue with the investigation. If there is none, he shall dismiss the case, otherwise he shall "issue a subpoena to the respondents." Here, after receiving the CIDG letters, respondent prosecutors peremptorily issued subpoenas to petitioners requiring them to appear at the DOJ office on 13 March 2006 "to secure copies of the complaints and its attachments." During the investigation, respondent prosecutors allowed the CIDG to present a masked Fuentes who subscribed to an affidavit before respondent prosecutor Velasco. Velasco proceeded to distribute copies of Fuentes affidavit not to petitioners or their counsels but to members of the media who covered the proceedings. Respondent prosecutors then required petitioners to submit their counter-affidavits in 10 days. It was only four days later, on 17 March 2006, that petitioners received the complete copy of the attachments to the CIDG letters.1a\^/phi1.net These uncontroverted facts belie respondent prosecutors statement in the Order of 22 March 2006 that the preliminary investigation "was done in accordance with the Revised Rules o[f] Criminal Procedure."40 Indeed, by peremptorily issuing the subpoenas to petitioners, tolerating the complainants antics during the investigation, and distributing copies of a witness affidavit to members of the media knowing that petitioners have not had the opportunity to examine the charges against them, respondent prosecutors not only trivialized the investigation but also lent credence to petitioners claim that the entire proceeding was a sham. A preliminary investigation is the crucial sieve in the criminal justice system which spells for an individual the difference between months if not years of agonizing trial and possibly jail term, on the one hand, and peace of mind and liberty, on the other hand. Thus, we have characterized the right to a preliminary investigation as not "a mere formal or technical right" but a "substantive" one, forming part of due process in criminal justice.41 This especially holds true here where the offense charged is punishable by reclusion perpetua and may be non-bailable for those accused as principals. Contrary to the submission of the Solicitor General, respondent prosecutors filing of the Information against petitioners on 21 April 2006 with Branch 57 of the RTC Makati does not moot the petitions in G.R. Nos. 172070-72 and 172074-76. Our power to enjoin prosecutions cannot be frustrated by the simple filing of the Information with the trial court.1a\^/phi1.net On Respondent Prosecutors Lack of Impartiality We find merit in petitioners doubt on respondent prosecutors impartiality. Respondent Secretary of Justice, who exercises supervision and control over the panel of prosecutors, stated in an interview on 13 March 2006, the day of the preliminary

investigation, that, "We [the DOJ] will just declare probable cause, then its up to the [C]ourt to decide x x x."42 Petitioners raised this issue in their petition,43 but respondents never disputed the veracity of this statement. This clearly shows prejudgment, a determination to file the Information even in the absence of probable cause. A Final Word The obvious involvement of political considerations in the actuations of respondent Secretary of Justice and respondent prosecutors brings to mind an observation we made in another equally politically charged case. We reiterate what we stated then, if only to emphasize the importance of maintaining the integrity of criminal prosecutions in general and preliminary investigations in particular, thus: [W]e cannot emphasize too strongly that prosecutors should not allow, and should avoid, giving the impression that their noble office is being used or prostituted, wittingly or unwittingly, for political ends, or other purposes alien to, or subversive of, the basic and fundamental objective of observing the interest of justice evenhandedly, without fear or favor to any and all litigants alike, whether rich or poor, weak or strong, powerless or mighty. Only by strict adherence to the established procedure may be publics perception of the impartiality of the prosecutor be enhanced.44 1a\^/phi1.net WHEREFORE, we GRANT the petitions. In G.R. No. 175013, we SET ASIDE the Order dated 31 May 2006 of the Regional Trial Court, Makati City, Branch 146 and the Order dated 29 August 2006 of the Regional Trial Court, Makati City, Branch 150. In G.R. Nos. 172070-72 and 172074-76, we SET ASIDE the Orders dated 22 March 2006 and 4 April 2006 issued by respondent prosecutors. We ORDER the Regional Trial Court, Makati City, Branch 150 to DISMISS Criminal Case Nos. 06-452 and 06-944. SO ORDERED.

G.R. No. 142675. July 22, 2005 VICENTE AGOTE Y MATOL, Petitioners, vs. HON. MANUEL F. LORENZO, Presiding Judge, RTC, Branch 43, Manila and PEOPLE OF THE PHILIPPINES, Respondents. GARCIA, J.: In this appeal by way of a petition for review on certiorari under Rule 45 of the Rules of Court, petitioner Vicente Agote y Matol seeks to annul and set aside the following resolutions of the Court of Appeals in CA-G.R. SP No. 2991-UDK, to wit: 1. Resolution dated September 14, 1999,1 dismissing the Petition for Certiorari with Prayer for the Issuance of a Temporary Restraining Order filed by the petitioner against the Honorable Manuel F. Lorenzo, Presiding Judge, Regional Trial Court, Manila, Branch 43 for refusing to retroactively apply in his favor Republic Act No. 82942; and, 2. Resolution dated reconsideration. February 8, 2000,3 denying petitioners motion for

CONTRARY TO LAW. On arraignment, petitioner pleaded "Not Guilty" to both charges. Thereafter, the two (2) cases were tried jointly. Eventually, in a decision dated May 18, 1999, the trial court rendered a judgment of conviction in both cases, separately sentencing petitioner to an indeterminate penalty of ten (10) years and one (1) day of prision mayor, as minimum, to eighteen (18) years eight (8) months and one (1) day of reclusion temporal, as maximum, in accordance with PD. No. 1866 in Crim. Case No. 96-149820 (illegal possession of firearm), and to a prison term of one (1) year in Crim. Case No. 96-149821 (violation of the COMELEC Resolution on gun ban). Meanwhile, on June 6, 1997, Republic Act No. 82946 was approved into law. Pointing out, among others, that the penalty for illegal possession of firearms under P.D. No. 1866 has already been reduced by the subsequent enactment of Rep. Act No. 8294, hence, the latter law, being favorable to him, should be the one applied in determining his penalty for illegal possession of firearms, petitioner moved for a reconsideration of the May 18, 1999 decision of the trial court. In its order dated July 15, 1999,7 however, the trial court denied petitioners motion, saying: While the law (R.A. 8294) is indeed favorable to the accused and therefore should be made retroactive we are also guided by Art. 4 of the Civil Code which states that laws shall have no retroactive effect, unless the contrary is provided. Republic Act 8294 did not so provide that it shall have a retroactive effect. The Supreme Court likewise in the case of Padilla vs. CA declared: The trial court and the respondent court are bound to apply the governing law at the time of the appellants commission of the offense for it is a rule that laws are repealed only by subsequent ones. Indeed, it is the duty of judicial officers to respect and apply the law as it stands. Therefrom, petitioner went to the Court of Appeals on a petition for certiorari with prayer for a temporary restraining order, thereat docketed as CA-G.R. SP No. 2991UDK. In the herein assailed resolution dated September 14, 1999,8 the appellate court dismissed petitioners recourse on two (2) grounds, to wit: (a) the remedy of certiorari availed of by petitioner is improper since he should have appealed from the July 15, 1999 order of the trial court; and (b) lack of jurisdiction, as the issue involved is a pure question of law cognizable by the Supreme Court. With his motion for reconsideration having been denied by the appellate court in its subsequent resolution of February 8, 2000,9 petitioner is now with us, submitting for resolution the following issues: (1) whether the Court of Appeals erred in dismissing his petition for certiorari; and (2) whether the courts below erred in not giving Rep. Act No. 8294 a retroactive application. The petition is partly meritorious.

As culled from the pleadings on record, the following are the undisputed factual antecedents: Petitioner Vicente Agote y Matol was earlier charged before the sala of respondent judge with Illegal Possession of Firearms under Presidential Decree No. 1866 4 and violation of COMELEC Resolution No. 28265 (Gun Ban), docketed as Criminal Cases No. 96-149820 and 96-149821, respectively, allegedly committed, as follows: CRIMINAL CASE NO. 96-149820 That on or about April 27, 1996 in the City of Manila, Philippines, the said accused did then and there willfully, unlawfully, knowingly have in possession and under his custody and control, One (1) .38 cal. Rev. without serial no. with four (4) live bullets. Without first having secured from the proper authorities the necessary license therefor. CONTRARY TO LAW. CRIMINAL CASE NO. 96-149821 That on or about April 27, 1996, in the City of Manila, Philippines, the said accused did then and there, willfully, unlawfully and knowingly have in his possession and under his custody and control one (1) .38 cal. Rev. without serial number, with four (4) live ammunition/bullets in the chamber, by then and there carrying the same along V. Mapa Ext. Sta. Mesa, this City, which is a public place on the aforesaid date which is covered by an election period, without first securing the written authority from the COMELEC, as provided for by the COMELEC Resolution No. 2828, in relation to RA No. 7166 (Gun Ban).

At the outset, it must be stressed that petitioner never put in issue the factual findings of the trial court. What he questions is said courts legal conclusion that Rep. Act No. 8294 cannot be retroactively applied to him. Unquestionably, the issue raised is one purely of law. As we have said in Macawiwili Gold Mining and Development Co., Inc. v. Court of Appeals:10 For a question to be one of law, the same must not involve an examination of the probative value of the evidence presented by the litigants or any one of them. And the distinction is well-known: there is a question of law in a given case when the doubt or difference arises as to what the law is on a certain state of facts; there is a question of fact when the doubt or difference arises as to the truth or the falsehood of the facts alleged. Considering that "judgments of regional trial courts in the exercise of their original jurisdiction are to be elevated to the Court of Appeals in cases when appellant raises questions of fact or mixed questions of fact and law", while "appeals from judgments of the [same courts] in the exercise of their original jurisdiction must be brought directly to the Supreme Court in cases where the appellant raises only questions of law"11, petitioner should have appealed the trial courts ruling to this Court by way of a petition for review on certiorari in accordance with Rule 45 of the 1997 Rules of Civil Procedure, as amended,12 pursuant to Rule 41, Section 2 (c) of the same Rules, viz: SEC. 2. Modes of appeal. (a) xxx xxx xxx (b) xxx xxx xxx (c) Appeal by certiorari. In all cases where only questions of law are raised or involved, the appeal shall be to the Supreme Court by petition for review on certiorari in accordance with Rule 45. By reason, then, of the availability to petitioner of the remedy of a petition for review under Rule 45, his right to resort to a petition for certiorari under Rule 65 was effectively foreclosed, precisely because one of the requirements for the availment of the latter remedy is that "there should be no appeal, or any plain, speedy and adequate remedy in the ordinary course of law",13 the remedies of appeal and certiorari being mutually exclusive and not alternative or successive.14 As correctly observed by the Court of Appeals, what petitioner should have done was to take an appeal from the trial courts order of July 15, 1999 which denied his motion for reconsideration of the May 18, 1999 judgment of conviction. Petitioners case is worse compounded by the fact that even his period for appeal had already prescribed when he filed with the Court of Appeals his certiorari petition in CA-G.R. SP No. 2991-UDK. The Rollo of said case reveals that petitioner received his copy of the trial courts order denying his motion for reconsideration on July 20, 1999. As the same Rollo shows, it was only on August 23, 1999, or after more than fifteen (15) days when petitioner filed his wrong remedy of certiorari with the appellate court.

Be that as it may, the Court feels that it must squarely address the issue raised in this case regarding the retroactivity of Rep. Act No. 8294, what with the reality that the provisions thereof are undoubtedly favorable to petitioner. For this purpose, then, we shall exercise our prerogative to set aside technicalities in the Rules and "hold the bull by its horns", so to speak. After all, the power of this Court to suspend its own rules whenever the interest of justice requires is not without legal authority or precedent. In Solicitor General, et. al. vs. The Metropolitan Manila Authority,15 we held: Unquestionably, the Court has the power to suspend procedural rules in the exercise of its inherent power, as expressly recognized in the Constitution, to promulgate rules concerning pleading, practice and procedure in all courts. In proper cases, procedural rules may be relaxed or suspended in the interest of substantial justice, which otherwise may be miscarried because of a rigid and formalistic adherence to such rules. xxx xxx xxx xxx We have made similar rulings in other cases, thus: Be it remembered that rules of procedure are but mere tools designed to facilitate the attainment of justice. Their strict and rigid application, which would result in technicalities that tend to frustrate rather than promote substantial justice, must always be avoided. xxx Time and again, this Court has suspended its own rules and excepted a particular case from their operation whenever the higher interests of justice so require. We shall now proceed to determine whether the provisions of Rep. Act No. 8294 amending P.D. No. 1866 can be retroactively applied to this case. Here, the two (2) crimes for which petitioner was convicted by the trial court, i.e., (1) illegal possession of firearms under P.D. No. 1866 and (2) violation of COMELEC Resolution No. 2826 on gun ban, were both committed by the petitioner on April 27, 1996. For the crime of illegal possession of firearms in Crim. Case No. 96-149820, he was sentenced to suffer a prison term ranging from ten (10) years and one (1) day of prision mayor, as minimum, to (18) eighteen years, eight (8) months and one (1) day of reclusion temporal, as maximum, in accordance with P.D. No. 1866, Section 1 of which reads: SECTION 1. Unlawful Manufacture, Sale, Acquisition, Disposition or Possession of Firearms or Ammunition or Instruments Used or Intended to be Used in the Manufacture of Firearms of Ammunition. The penalty of reclusion temporal in its maximum period to reclusion perpetua shall be imposed upon any person who shall unlawfully manufacture, deal in, acquire, dispose, or possess any firearm, part of firearm, ammunition or machinery, tool or instrument used or intended to be used in the manufacture of any firearm or ammunition. (Emphasis supplied) When Rep. Act No. 8294 took effect on July 6, 1997,16 the penalty for illegal possession of firearms was lowered, depending on the class of firearm possessed, viz: SECTION 1. Section 1 of Presidential Decree No. 1866, as amended, is hereby further amended to read as follows:

SECTION 1. Unlawful Manufacture, Sale, Acquisition, Disposition or Possession of Firearms or Ammunition or Instruments Used or Intended to be Used in the Manufacture of Firearms or Ammunition. The penalty of prision correccional in its maximum period and a fine of not less than Fifteen thousand pesos (P15,000) shall be imposed upon any person who shall unlawfully manufacture, deal in, acquire, dispose, or possess any low powered firearm, such as rimfire handgun, .380 or .32 and other firearm of similar firepower, part of firearm, ammunition, or machinery, tool or instrument used or intended to be used in the manufacture of any firearm or ammunition: Provided, That no other crime was committed. The penalty of prision mayor in its minimum period and a fine of Thirty thousand pesos (P30,000) shall be imposed if the firearm is classified as high powered firearm which includes those with bores bigger in diameter than .38 caliber and 9 millimeter such as caliber .40, .41, .44, .45 and also lesser calibered firearms but considered powerful such as caliber .357 and caliber .22 center-fire magnum and other firearms with firing capability of full automatic and by burst of two or three: Provided, however, That no other crime was committed by the person arrested. (Emphasis supplied) Based on the foregoing, petitioner contends that the reduced penalty under Rep. Act No. 8294 should be the one imposed on him. Significantly, in its Manifestation In Lieu of Comment,17 the Office of the Solicitor General agrees with the petitioner, positing further that the statement made by this Court in People vs. Jayson18 to the effect that the provisions for a lighter penalty under Rep. Act No. 8294 does not apply if another crime has been committed, should not be applied to this case because the proviso in Section 1 of said law that "no other crime was committed" must refer only to those crimes committed with the use of an unlicensed firearm and not when the other crime is not related to the use thereof or where the law violated merely criminalizes the possession of the same, like in the case of election gun ban, as here. As early as August 1997, the month after Rep. Act No. 8294 took effect,19 this Court has pronounced in Gonzales vs. Court of Appeals20 that said law must be given retroactive effect in favor of those accused under P.D. No. 1866. Since then, this Court had consistently adhered to the Gonzales ruling.21 For sure, in People vs. Valdez,22 where the accused was charged with the complex crime of multiple murder with double frustrated murder and illegal possession of firearms and ammunitions under two separate informations, this Court even took a bolder stance by applying Rep. Act No. 8294 retroactively so that the accused therein may not be convicted of the separate crime of illegal possession of firearms, but refused to apply the same retroactively so as to aggravate the crime of murder. The Valdez ruling had been applied in a host of subsequent cases.23 Yet, in other cases,24 although the Court had given Rep. Act No. 8294 retroactive effect so as to prevent the conviction of an accused of the separate crime of illegal possession of firearm when the said unlicensed firearm was "used" to commit the crime of murder or homicide, the Court did not appreciate this "use" of such unlicensed firearm as an aggravating circumstance as provided therein, when the "use" of an unlicensed firearm was not specifically alleged in the information, as required by the Rules on Criminal Procedure.

In the light of the existing rulings and jurisprudence on the matter, the present case takes center stage presenting, this time, another twist, so to speak. Petitioner, who was charged of illegal possession of firearms was also charged of another offense: Violation of COMELEC Resolution No. 2826 (Gun Ban), but the unlicensed firearm was not "used" or discharged in this case. The question then which appears to be of first impression, is whether or not the unlicensed firearm should be actually "used" and discharged in the course of committing the other crime in order that Sec. 1, Rep. Act No. 8294 will apply so that no separate crime of illegal possession of firearms may be charged. Let us take a look at the jurisprudence once again. In Cupcupin vs. People,25 the accused was charged and convicted for two (2) separate crimes of illegal possession of firearms, and illegal possession of prohibited drugs. In the more recent case of People vs. Almeida,26 however, although the accused was acquitted of the separate charge of illegal possession of firearm for lack of evidence, the Court nevertheless made the following clear pronouncement: Furthermore, in any event, the Court has ruled in previous cases that in view of the enactment of Republic Act No. 8294, there can be no separate offense of illegal possession of firearms and ammunition if there is another crime committed such as, in this case, that of illegal possession of dangerous drugs. (Emphasis supplied) In Almeida, it should be noted that the unlicensed firearm was merely found lying around, together with the prohibited drugs, and therefore, was not being "used" in the commission of an offense. Given this Courts aforequoted pronouncement in Almeida, can the accused in the present case still be separately convicted of two (2) offenses of illegal possession of firearms and violation of gun ban, more so because as in Almeida, the unlicensed firearm was not actually "used" or discharged in committing the other offense? In People vs. Walpan M. Ladjaalam,27 this Court, interpreting the subject proviso in Section 1 of Rep. Act No. 8294, applied the basic principles in criminal law, and categorically held: xxx A simple reading thereof shows that if an unlicensed firearm is used in the commission of any crime, there can be no separate offense of simple illegal possession of firearms. Hence, if the other crime is murder or homicide, illegal possession of firearms becomes merely an aggravating circumstance, not a separate offense. Since direct assault with multiple attempted homicide was committed in this case, appellant can no longer be held liable for illegal possession of firearms. Moreover, penal laws are construed liberally in favor of the accused. In this case, the plain meaning of RA 8294s simple language is most favorable to herein appellant. Verily, no other interpretation is justified, for the language of the new law demonstrates the legislative intent to favor the accused. Accordingly, appellant cannot be convicted of two separate offenses of illegal possession of firearms and direct assault with attempted homicide. xxx xxx xxx xxx

xxx The law is clear: the accused can be convicted of simple illegal possession of firearms, provided that no other crime was committed by the person arrested. If the intention of the law in the second paragraph were to refer only to homicide and murder, it should have expressly said so, as it did in the third paragraph. Verily, where the law does not distinguish, neither should we.(Emphasis supplied). The aforementioned ruling was reiterated and applied in the subsequent cases of People vs. Garcia,28 where the judgment of conviction of the accused-appellants for illegal possession of firearms was set aside there being another crime kidnapping for ransom which they were perpetrating at the same time; People vs. Bernal,29 where the Court retroactively applied Rep. Act No. 8294 in accused-appellants favor because it would mean his acquittal from the separate offense of illegal possession of firearms; and People vs. Bustamante,30 where, in refusing to convict the accusedappellant of the separate offense of illegal possession of firearms, the Court declared that insofar as it is favorable to the appellant, the provisions of Rep. Act No. 8294 should be applied liberally and retroactively in that appellant must be acquitted of the charge of illegal possession of firearms. Guided by the foregoing, the Court cannot but set aside petitioners conviction in Criminal Case No. 96-149820 for illegal possession of firearm since another crime was committed at the same time, i.e., violation of COMELEC Resolution No. 2826 or the Gun Ban. Admittedly, this ruling is not without misgivings considering that it would mean petitioners acquittal of the more serious offense of illegal possession of firearms which carries a much heavier penalty than violation of the COMELEC gun-ban resolution. However, as we have rationalized in Ladjaalam:31 xxx Indeed, the accused may evade conviction for illegal possession of firearms by using such weapons in committing an even lighter offense, like alarm and scandal or slight physical injuries, both of which are punishable by arresto menor. This consequence, however, necessarily arises from the language of RA 8294, whose wisdom is not subject to the Courts review. Any perception that the result reached here appears unwise should be addressed to Congress. Indeed, the Court has no discretion to give statutes a new meaning detached from the manifest intendment and language of the legislature. Our task is constitutionally confined only to applying the law and jurisprudence to the proven facts, and we have done so in this case. The solemn power and duty of the Court to interpret and apply the law does not include the power to correct by reading into the law what is not written therein. While we understand respondent Peoples contention that the "use" of the firearm seemed to have been the main consideration during the deliberations of the subject provision of Rep. Act No. 8294, the fact remains that the word "use" never found its way into the final version of the bill which eventually became Rep. Act No. 8294. The Courts hands are now tied and it cannot supply the perceived deficiency in the final version without contravening the most basic principles in the interpretation of penal laws which had always leaned in favor of the accused. Under our system of government where powers are allocated to the three (3) great branches, only the Legislature can remedy such deficiency, if any, by proper amendment of Sec. 1 of Rep. Act No. 8294.

As written, Sec. 1, Rep. Act No. 8294 restrains the Court from convicting petitioner of the separate crime of illegal possession of firearm despite the fact that, as in Almeida, the unlicensed firearm was not actually "used". For sure, there is, in this case, closer relation between possession of unlicensed firearm and violation of the COMELEC gunban than the illegal possession of unlicensed firearm to the crime of illegal possession of prohibited drugs in Almeida. WHEREFORE, Criminal Case No. 96-149820 for illegal possession of firearms is hereby DISMISSED while the judgment of conviction in Criminal Case No. 96-149821 for violation of COMELEC Resolution No. 2826 in relation to Rep. Act No. 7166 (Gun Ban), is AFFIRMED. Since petitioner has already served more than the penalty imposed upon him by the trial court in Criminal Case No. 96-149821, his immediate release from custody is hereby ORDERED unless detained for some other lawful cause. SO ORDERED.

G.R. No. 170562

June 29, 2007

x if he was also charged of having committed another crime of [sic] violating the Comelec gun ban under the same set of facts x x x."9 By Order of July 29, 2004,10 the trial court denied the Motion to Quash on the basis of this Courts11 affirmation in Margarejo v. Hon. Escoses12 of therein respondent judges denial of a similar motion to quash on the ground that "the other offense charged x x x is not one of those enumerated under R.A. 8294 x x x." 13 Petitioners Motion for Reconsideration was likewise denied by September 22, 2004 Resolution,14 hence, petitioner filed a Petition for Certiorari15 before the Court of Appeals. By Decision dated April 18, 2005,16 the appellate court affirmed the trial courts denial of the Motion to Quash. Petitioners May 9, 2005 Motion for Reconsideration17 having been denied by Resolution of September 26, 2005,18 petitioner filed the present petition. The petition fails. Petitioners remedy to challenge the appellate courts decision and resolution was to file a petition for review on certiorari under Rule 45 on or before October 20, 2005 or 15 days after he received a copy of the appellate court's resolution on October 5, 200519 denying his motion for reconsideration. Instead, petitioner chose to file the present petition under Rule 65 only on December 2, 2005,20 a good 58 days after he received the said resolution. Certiorari cannot be used as a substitute for lost appeal. Certiorari lies only when there is no appeal nor any plain, speedy, and adequate remedy in the ordinary course of law. Why the question being raised by petitioner, i.e., whether the appellate court committed grave abuse of discretion, could not have been raised on appeal, no reason therefor has been advanced.21 While this Court, in accordance with the liberal spirit pervading the Rules of Court and in the interest of justice, has the discretion to treat a petition for certiorari as having been filed under Rule 45, especially if filed within the reglementary period under said Rule, it finds nothing in the present case to warrant a liberal application of the Rules, no justification having been proffered, as just stated, why the petition was filed beyond the reglementary period,22 especially considering that it is substantially just a replication of the petition earlier filed before the appellate court. Technicality aside, the petition fails just the same. The relevant provision of R.A. 8294 reads: SECTION 1. Section 1 of Presidential Decree No. 1866, as amended, is hereby further amended to read as follows: "SECTION 1. Unlawful Manufacture, Sale, Acquisition, Disposition or Possession of Firearms or Ammunition or Instruments Used or Intended to be Used in the Manufacture of Firearms or Ammunition. x x x.

ANGEL CELINO, SR., petitioner, vs. COURT OF APPEALS, CEBU CITY, HON. DELANO F. VILLARUZ, Presiding Judge, Branch 16, Regional Trial Court, Capiz, Roxas City, and PEOPLE OF THE PHILIPPINES, respondents. CARPIO MORALES, J.: This petition for certiorari under Rule 65 of the Rules of Court assails the Court of Appeals Decision dated April 18, 20051 affirming the trial courts denial of petitioner Angel Celino, Sr.s Motion to Quash; and Resolution dated September 26, 20052 denying petitioners Motion for Reconsideration of the said Decision. The following facts are not disputed: Two separate informations were filed before the Regional Trial Court of Roxas City charging petitioner with violation of Section 2(a) of COMELEC Resolution No. 6446 (gun ban),3 and Section 1, Paragraph 2 of Republic Act No. (R.A.) 8294 4 (illegal possession of firearm), as follows: Criminal Case No. C-137-04 That on or about the 12th day of May, 2004, in the City of Roxas, Philippines, and within the jurisdiction of this Honorable Court, the said accused, did then and there willfully, unlawfully and knowingly carry outside of his residence an armalite rifle colt M16 with serial number 3210606 with two (2) long magazines each loaded with thirty (30) live ammunitions of the same caliber during the election period December 15, 2005 to June 9, 2004 without first having obtained the proper authority in writing from the Commission on Elections, Manila, Philippines. CONTRARY TO LAW.
5

Criminal Case No. C-138-04 That on or about the 12th day of May, 2004, in the City of Roxas, Philippines, and within the jurisdiction of this Honorable Court, the said accused, did then and there willfully, unlawfully and knowingly have in his possession and control one (1) armalite rifle colt M16 with serial number 3210606 with two (2) long magazines each loaded with thirty (30) live ammunitions of the same caliber without first having obtained the proper license or necessary permit to possess the said firearm. CONTRARY TO LAW.6 Upon arraignment in Criminal Case No. C-138-04, petitioner pleaded not guilty to the gun ban violation charge.7 Prior to his arraignment in Criminal Case No. C-137-04, petitioner filed a Motion to Quash8 contending that he "cannot be prosecuted for illegal possession of firearms x x

"The penalty of prision mayor in its minimum period and a fine of Thirty thousand pesos (P30,000) shall be imposed if the firearm is classified as high powered firearm which includes those with bores bigger in diameter than .38 caliber and 9 millimeter such as caliber .40, .41, .44, .45 and also lesser calibered firearms but considered powerful such as caliber .357 and caliber .22 center-fire magnum and other firearms with firing capability of full automatic and by burst of two or three: Provided, however, That no other crime was committed by the person arrested. "If homicide or murder is committed with the use of an unlicensed firearm, such use of an unlicensed firearm shall be considered as an aggravating circumstance. "If the violation of this Section is in furtherance of or incident to, or in connection with the crime of rebellion or insurrection, sedition, or attempted coup d'etat, such violation shall be absorbed as an element of the crime of rebellion, or insurrection, sedition, or attempted coup d'etat. xxxx (Underscoring supplied) The crux of the controversy lies in the interpretation of the underscored proviso. Petitioner, citing Agote v. Lorenzo,23 People v. Ladjaalam,24 and other similar cases,25 contends that the mere filing of an information for gun ban violation against him necessarily bars his prosecution for illegal possession of firearm. The Solicitor General contends otherwise on the basis of Margarejo v. Hon. Escoses 26 and People v. Valdez.27 In Agote,28 this Court affirmed the accuseds conviction for gun ban violation but exonerated him of the illegal possession of firearm charge because it "cannot but set aside petitioners conviction in Criminal Case No. 96-149820 for illegal possession of firearm since another crime was committed at the same time, i.e., violation of COMELEC Resolution No. 2826 or the Gun Ban."29 Agote is based on Ladjaalam30 where this Court held: x x x A simple reading [of RA 8294] shows that if an unlicensed firearm is used in the commission of any crime, there can be no separate offense of simple illegal possession of firearms. Hence, if the "other crime" is murder or homicide, illegal possession of firearms becomes merely an aggravating circumstance, not a separate offense. Since direct assault with multiple attempted homicide was committed in this case, appellant can no longer be held liable for illegal possession of firearms. Moreover, penal laws are construed liberally in favor of the accused. In this case, the plain meaning of RA 8294's simple language is most favorable to herein appellant. Verily, no other interpretation is justified, for the language of the new law demonstrates the legislative intent to favor the accused. Accordingly, appellant cannot be convicted of two separate offenses of illegal possession of firearms and direct assault with attempted homicide. x x x xxxx

x x x The law is clear: the accused can be convicted of simple illegal possession of firearms, provided that "no other crime was committed by the person arrested." If the intention of the law in the second paragraph were to refer only to homicide and murder, it should have expressly said so, as it did in the third paragraph. Verily, where the law does not distinguish, neither should we.31 The law is indeed clear. The accused can be convicted of illegal possession of firearms, provided no other crime was committed by the person arrested. The word "committed" taken in its ordinary sense, and in light of the Constitutional presumption of innocence,32 necessarily implies a prior determination of guilt by final conviction resulting from successful prosecution or voluntary admission.33 Petitioners reliance on Agote, Ladjaalam, Evangelista, Garcia, Pangilinan, Almeida, and Bernal is, therefore, misplaced. In each one of these cases, the accused were exonerated of illegal possession of firearms because of their commission, as shown by their conviction, of some other crime.34 In the present case, however, petitioner has only been accused of committing a violation of the COMELEC gun ban. As accusation is not synonymous with guilt, there is yet no showing that petitioner did in fact commit the other crime charged.35 Consequently, the proviso does not yet apply. More applicable is Margarejo36 where, as stated earlier, this Court affirmed the denial of a motion to quash an information for illegal possession of firearm on the ground that "the other offense charged [i.e., violation of gun ban] x x x is not one of those enumerated under R.A. 8294 x x x."37 in consonance with the earlier pronouncement in Valdez38 that "all pending cases involving illegal possession of firearm should continue to be prosecuted and tried if no other crimes expressly indicated in Republic Act No. 8294 are involved x x x."39 In sum, when the other offense involved is one of those enumerated under R.A. 8294, any information for illegal possession of firearm should be quashed because the illegal possession of firearm would have to be tried together with such other offense, either considered as an aggravating circumstance in murder or homicide,40 or absorbed as an element of rebellion, insurrection, sedition or attempted coup detat.41 Conversely, when the other offense involved is not one of those enumerated under R.A. 8294, then the separate case for illegal possession of firearm should continue to be prosecuted. Finally, as a general rule, the remedy of an accused from the denial of his motion to quash is for him to go to trial on the merits, and if an adverse decision is rendered, to appeal therefrom in the manner authorized by law.42 Although the special civil action for certiorari may be availed of in case there is a grave abuse of discretion, 43 the appellate court correctly dismissed the petition as that vitiating error is not attendant in the present case. WHEREFORE, the petition is DISMISSED. SO ORDERED.

G.R. No. 159703

March 3, 2008

IT IS SO ORDERED.6 On appeal, the Regional Trial Court (RTC), Bais City issued a Decision dated March 14, 2003, affirming the conviction of petitioner but lowering his penalty as follows: WHEREFORE, premises considered, the Judgment dated August 2, 2002 rendered by the Municipal Trial Court in Cities, Bais City in Criminal Case No. 99-001 is hereby affirmed in all respects subject only to the modification with respect to the penalty imposed by the trial court. The herein accusedappellant is hereby sentenced to the indeterminate penalty of four (4) months of arresto mayor as maximum [sic] to two (2) years, four (4) months and one (1) day of prision correccional as maximum [sic]. SO ORDERED.7 Petitioner filed with the CA a Petition for Review but the same was denied in the May 23, 2003 CA Resolution assailed herein. Petitioner's Motion for Reconsideration8 was also denied by the CA in its August 7, 2003 Resolution. Hence, the present Petition raising the following issues: I Whether the lower court erred in convicting the petitioner for violation of P.D. 1866, as amended by RA 8294, despite the latter's proof of authority to possess the subject firearm. II Whether the prosecution's evidence proved the petitioner's guilt beyond reasonable doubt.9 As summarized by the RTC and MTCC, the evidence for the prosecution consisted of the following: EVIDENCE OF THE PROSECUTION The first prosecution witness in the person of PO3 Mariano Labe testified on January 17, 2002. He declared that on or about 3:35 in the afternoon of January 3, 1999, while they were at the Police Station, they received a telephone call from a concerned citizen from Tavera Street, Bais City, informing them that one unidentified person was inside Abueva's Repair Shop located at Tavera Street, tucking a handgun on his waist. They immediately went to the aforementioned place, and upon their arrival thereat, they saw one unidentified person tucking a handgun on his right side waistline. They approached the unidentified person and asked him if he had a license to possess said firearm, but the answer was in the negative. At this juncture, they immediately effected the arrest, and confiscated from his possession and custody a Caliber 9MM marked "SIGSAUER P299" with 14 live ammunitions with Serial No. AE 25171. The

CEDRIC SAYCO y VILLANUEVA, petitioner, vs. PEOPLE OF THE PHILIPPINES, respondent. AUSTRIA-MARTINEZ, J.: Before this Court is a Petition for Review on Certiorari under Rule 45 of the Rules of Court assailing the May 23, 2003 Resolution1 of the Court Appeals (CA) which affirmed the conviction of Cedric Sayco y Villanueva2 (petitioner) for violation of Section 1, Presidential Decree (P.D.) No. 1866, as amended by Republic Act (R.A.) No. 8294; as well as the August 7, 2003 CA Resolution3 which denied his Motion for Reconsideration. The facts are not disputed. Petitioner was charged before the Municipal Trial Court in Cities (MTCC), Bais City with illegal possession of firearms under an Information which reads: The undersigned Prosecutor II hereby accuses ZEDRIC SAYCO Y VILLANUEVA of the crime of Illegal Possession of Firearm and Ammunitions penalized and defined under Section 1 of Presidential Decree Number 1866 as amended by Republic Act Number 8294, committed as follows: That on or about January 3, 1999, at Bais City, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, did, then and there willfully, unlawfully and feloniously possess and carry away one (1) caliber 9MM marked "SIGSAUER P229" with fourteen (14) live ammunitions and with Serial Number AE 25171, without first having obtained the proper license or authority to possess the same. An act contrary.4 Upon arraignment, petitioner entered a plea of "Not Guilty".5 On August 2, 2002, the MTCC rendered a Decision, the dispositive portion of which reads: WHEREFORE, premises considered, the Court finds that the evidence presented has sufficiently established the guilt of the accused beyond reasonable doubt. The accused Zedric V. Sayco is convicted for violation of Section 1 of Presidential Decree No. 1866, as amended by Republic Act No. 8294. There being no modifying circumstances, and applying the Indeterminate Sentence Law, the Court sentences the accused to a prison term ranging from THREE YEARS, SIX MONTHS AND TWENTY DAYS of Prision Correccional Medium as minimum, to FIVE YEARS, FOUR MONTHS and TWENTY DAYS of Prision Correccional Maximum as maximum, and to pay a fine of FIFTEEN THOUSAND PESOS. The firearm (Exhibit A) and the ammunitions (Exhibit B) are forfeited in favor of the government, to be disposed of in accordance with law.

arrested person was identified as Zedric Sayco y Villanueva, a resident of Binalbagan, Negros Occidental. SPO2 VALENTINO ZAMORA, member of the PNP Bais City, testified on February 26, 2002. He was presented to corroborate the testimony of Mariano Labe. He further declared that during the incident, they talked to the accused in Cebuano, but they found out then that the latter is an Ilonggo, so they spoke to him in English. SPO2 VICENTE DORADO also testified on February 26, 2002. He corroborated the testimony of SPO2 Valentino Zamora and PO2 Mariano Labe. The following exhibits were admitted as part of the evidence of the prosecution: Exhibit A - one (1) 9 mm pistol with serial no. 25171. Exhibit B - fourteen (14) pieces live ammunition and one (1) magazine placed in a black plastic bag. Exhibit C - Joint Affidavit of the police officers.10 (Emphasis supplied) For his defense, petitioner does not deny that he was in possession of the subject firearm and ammunitions when he was apprehended on January 3, 1999 in Bais City, but he insists that he had the requisite permits to carry the same, specifically: 1) Memorandum Receipt for Equipment (Non-expendable Property), which reads: Hqs Field Station 743, 7ISU, ISG, PA, Camp Montelibano Sr., Bacolod City, Philippines, 01 January 1999. I acknowledge to have received from MAJOR RICARDO B. BAYHON (INF) PA, Commanding Officer, FS743, 7ISU, ISG, PA the following property for which I am responsible, subject to the provision of the accounting law and which will be used in the office of FS 7431. QTY 1 2 24 UNIT ea ea ea NAME OF DESCRIPTION Cal 9mm SN: AE 25171 (SIG CLASSI FICATION SAUER) Pistol UNIT PRICE

Basis: For use of subject EP in connection with his official duties/mission in the AOR. NOTED BY: Nolasco B. James SSg (Inf) FS Supply NCO APPROVED BY: (SGD) RICARDO B BAYHON PA Major (INF) Commanding Officer CA Zedric V. Zayco Confidential Agent;11 and 2) Mission Order dated January 1, 1999, thus: Mission Orders Number: FS743-A-241 TO: CA Cedric V. Zayco I. DESTINATION Negros Island II. PURPOSE C O N F I D E N T I A L III. DURATION 01 January 1999 to 31 March 1999 IV. AUTHORIZED ATTIRE/UNIFORM GOA ( ) BDA ( ) Civilian (x) V. AUTHORIZED TO CARRY FIREARMS: (x) Yes ( ) No. Caliber 9mm Make Sig Sauer Kind Pistol Serial Nr AE25171 MR/License Nr ISG Prop (SGD) PA (SGD)

TOTAL VI. SPECIFIC INSTRUCTIONS: a. For personnel in uniform, the firearms shall be placed in holster securely attached to the belt. Personnel in uniform without holster and personnel in civilian attire will ensure that their firearms are concealed unless in actual and lawful use. xxxx

Mags for Cal 9mm pistol Ctgs for 9mm Ammo

x-x-x-x-x-x-x-x-x-x-x-x-x-x-x-x-x-x- NOTHING FOLLOWS -x-x-x-xx-x-x-x-x-x-x-x-x-x-x-x-x-x

RICARDO B. Major FS 743 Commander12

(INF)

BAYHON

(SGD) PA

firearms license,23 and an accused who relies on said documents cannot invoke good faith as a defense against a prosecution for illegal possession of firearms, as this is a malum prohibitum.24 Petitioner interposed no new argument that would convince this Court to abandon a deep-rooted jurisprudence. However, rather than outrightly dismiss the present petition in the light of existing jurisprudence, this Court finds it opportune to examine the rules governing the issuance of memorandum receipts and mission orders covering government-owned firearms to special and confidential civilian agents, in order to pave the way for a more effective regulation of the proliferation of such firearms and the abatement of crimes, such as extra-judicial killings, attendant to such phenomenon. In 1901, the United States Philippine Commission enacted Act No. 175, providing for the organization of an Insular Constabulary. Section 6 vested in the Chief of the Insular Constabulary the following authority over the distribution of firearms: Section 6. The Insular Chief shall prescribe for the Insular Constabulary suitable arms, uniform, and equipment and shall report to the Commission, through the Civil Governor, his action in this regard, together with a statement of the cost, to the end that appropriation may be made to defray the cost thereof. The guns, revolvers, and ammunitions needed to equip the insular and municipal police shall be purchased by the Insular Purchasing Agent on the order of the Chief of Insular Constabulary, by whom they shall be distributed to the provinces and municipalities as they may be needed. The Chief of the Insular Constabulary shall keep a record of the guns and revolvers distributed, by their numbers, to municipalities and provinces x x x. (Emphasis supplied) Firearms owned by the government may therefore be distributed by the Chief of the Insular Constabulary to the members of the insular and municipal police, with merely a record of the distribution being required. Shortly, the Philippine Commission enacted Act No. 178025 regulating possession of firearms: Section 1. It shall be unlawful for any person, firm, or corporation, for purposes of sale, to import, buy or otherwise acquire, dispose of, possess, or have the custody of any rifle, musket, carbine, shotgun, revolver, pistol, or air rifle, except air rifles of small caliber and limited range used as toys, or any other deadly weapon x x x unless and until such person, firm, or corporation shall secure a license, pay the license fee, and execute a bond and otherwise comply with the requirements of this Act and the rules and regulations issued in executive orders by the Governor-General pursuant to the provisions of this Act x x x. (Emphasis supplied) but exempted therefrom the following government-owned firearms: Section 16. The foregoing provisions of this Act shall not apply to firearms and ammunition therefor regularly and lawfully issued to officers, soldiers, sailors, or marines of the United States Army and Navy, the Constabulary, guards in the employ of the Bureau of Prisons, the

The RTC and MTCC gave no significance to the foregoing documents. The MTCC held that the Memorandum Receipt and Mission Order do not constitute the license required by law because "they were not issued by the Philippine National Police (PNP) Firearms and Explosives Unit, but by the Commanding Officer of the Philippine Army who is not authorized by law to issue licenses to civilians to possess firearms and ammunitions."13 The RTC added that, as held in Pastrano v. Court of Appeals14and Belga v. Buban,15 said documents cannot take the place of the requisite license.16 The CA wholly concurred with both courts. In the present Petition, petitioner insists that he is a confidential agent of the Armed Forces of the Philippines (AFP), and it was in that capacity that he received the subject firearm and ammunitions from the AFP. As said firearm and ammunitions are government property duly licensed to the Intelligence Security Group (ISG) of the AFP, the same could not be licensed under his name;17instead, what he obtained were a Memorandum Receipt and a Mission Order whereby ISG entrusted to him the subject firearm and ammunitions and authorized him to carry the same around Bacolod City. Petitioner further argues that he merely acted in good faith when he relied on the Memorandum Receipt and Mission Order for authority to carry said firearm and ammunitions; thus, it would be a grave injustice if he were to be punished for the deficiency of said documents.18 The Solicitor General filed his Comment,19pointing out that good faith is not a valid defense in the crime of illegal possession of firearms.20 The arguments of petitioner are not tenable. The corpus delicti in the crime of illegal possession of firearms is the accused's lack of license or permit to possess or carry the firearm, as possession itself is not prohibited by law.21 To establish the corpus delicti, the prosecution has the burden of proving that the firearm exists and that the accused who owned or possessed it does not have the corresponding license or permit to possess or carry the same.22 There is no dispute over these key facts: first, that the subject firearm and ammunitions exist; second, that petitioner had possession thereof at the time of his apprehension; third, that petitioner is a confidential agent of the ISG-AFP; fourth, that petitioner lacks a license issued by the Firearms and Explosives Unit of the PNP; and fifth, that petitioner holds a Memorandum Receipt and Mission Order covering the subject firearm and ammunitions. Thus, the issue to be resolved is confined to whether petitioner's Memorandum Receipt and Mission Order constitute sufficient authority for him to possess the subject firearm and ammunitions and carry the same outside of his residence, without violating P.D. No. 1866, as amended by R.A. No. 8294. As correctly cited by the Solicitor General, it is a settled jurisprudence that a memorandum receipt and mission order cannot take the place of a duly issued

police force of the City of Manila, provincial prisoners and jails when such firearms are in possession of such officials and public servants for use in the performance of their official duties. (Emphasis supplied) The 1917 Revised Administrative Code26retained the foregoing exemption: Section 879. Exemption as to firearms and ammunition used by military and naval forces or by peace officers. - This article shall not apply to firearms and ammunition regularly and lawfully issued to officers, soldiers, sailors, or marines of the Unites States Army and Navy, the Philippine Constabulary, guards in the employment of the Bureau of Prisons, municipal police, provincial governors, lieutenant governors, provincial treasurers, municipal police, provincial governors, lieutenant governors, provincial treasurers, municipal treasurers, municipal presidents, and guards of provincial prisoners and jails , when such firearms are in possession of such officials and public servants for use in the performance of their official duties. (Emphasis supplied) In People of the Philippines v. Macarandang,27 we interpreted Section 879 of the 1917 Revised Administrative Code as applicable to a secret agent appointed by a governor as said agent holds a position equivalent to that of peace officer or member of the municipal police. We reiterated this ruling in People of the Philippines v. Licera.28 In People v. Asa,29 we acquitted a civilian guard from a charge of illegal possession of firearms on the ground that he acted in good faith in bearing the firearms issued to him by his superior. Two years later, in People v. Mapa,30the Court, speaking through Justice Fernando, overhauled its interpretation of Section 879, thus: The law is explicit that except as thereafter specially allowed, "it shall be unlawful for any person to x x x possess any firearm, detached parts of firearms or ammunition therefor, or any instrument or implement used or intended to be used in the manufacture of firearms, parts of firearms, or ammunition." The next section provides that "firearms and ammunition regularly and lawfully issued to officers, soldiers, sailors, or marines [of the Armed Forces of the Philippines], the Philippine Constabulary, guards in the employment of the Bureau of Prisons, municipal police, provincial governors, lieutenant governors, provincial treasurers, municipal treasurers, municipal mayors, and guards of provincial prisoners and jails," are not covered "when such firearms are in possession of such officials and public servants for use in the performance of their official duties." The law cannot be any clearer. No provision is made for a secret agent. As such he is not exempt. Our task is equally clear. The first and fundamental duty of courts is to apply the law. "Construction and interpretation come only after it has been demonstrated that application is impossible or inadequate without them." The conviction of the accused must stand. It cannot be set aside.

Accused however would rely on People v. Macarandang, where a secret agent was acquitted on appeal on the assumption that the appointment "of the accused as a secret agent to assist in the maintenance of peace and order campaigns and detection of crimes, sufficiently put him within the category of a "peace officer" equivalent even to a member of the municipal police expressly covered by section 879." Such reliance is misplaced. It is not within the power of this Court to set aside the clear and explicit mandate of a statutory provision. To the extent therefore that this decision conflicts with what was held in People v. Macarandang, it no longer speaks with authority.31 (Emphasis supplied) We also abandoned the view that good faith is a defense against a prosecution for illegal possession of firearms.32 On June 29, 1983, P.D. No. 1866 was issued, imposing stiffer penalties on illegal possession of firearms. It also added the following separate requirement for carrying firearms: Section 1. Unlawful manufacture, sale, acquisition, disposition or possession of firearms and ammunition or implements used or intended to be used in the manufacture of firearms or ammunition. - x x x The penalty of prision mayor shall be imposed upon any person who shall carry any licensed firearm outside his residence without legal authority therefor. xxxx Section 7. Unauthorized issuance of authority to carry firearms and/or ammunition outside of residence. - The penalty of prision correccional shall be imposed upon any person, civilian or military, who shall issue authority to carry firearm and/or ammunition outside of residence without authority therefor. P.D. No. 1866 was later amended by R.A. No. 8294,33 which lowered the imposable penalties for illegal possession of firearm when no other crime is committed. However, neither law amended or repealed Section 879 of the 1917 Revised Administrative Code. Even Executive Order No. 292, otherwise known as the 1987 Administrative Code,34 left Section 879 untouched. As matters stand, therefore, Section 879, as construed by this Court in Mapa and Neri, and reinforced by paragraph 6, Section 1 of P.D. No. 1866, as amended by R.A. No. 8294, is still the basic law on the issuance, possession and carrying of government-owned firearms. In exercise of its rule-making authority under Section 835of P.D. No. 1866, the Chief of the Philippine Constabulary issued The Implementing Rules and Regulations of P.D. No. 1866, which includes the following provisions salient to the issuance, possession and carrying of government-owned firearms: Section 1. Definition of terms. - For purposes of Presidential Decree No. 1866, the following terms shall mean and be interpreted as hereinafter defined:

xxxx d. "Mission Order" - is a written directive or order issued by government authority as enumerated in Section 5 hereof to persons who are under his supervision and control for a definite purpose or objective during a specified period and to such place or places as therein mentioned which may entitle the bearer thereof to carry his duly issued or licensed firearm outside of his residence when so specified therein. e. "Permit to Carry Firearm Outside of Residence" - is a written authority issued to any person by the Chief of Constabulary which entitles such person to carry his licensed or lawfully issued firearms outside of residence for the duration and purpose specified therein. f. "Residence" - refers to that place where the firearm and ammunition are being permanently kept. It includes the office or house where they are kept and the premises of the house enclosed by walls and gates separating said premises from adjacent properties. For firearms covered by a regular license or special permit, their residence shall be that specified in the license or permit; and those covered by a Certificate of Registration or a Memorandum Receipt, their residence in the office/station to which the grantee belongs. xxxx Section 5. Authority to issue mission order involving the carrying of firearm. - The following are authorized to issue mission orders with provisions which may entitle the bearer thereof to carry his issued/licensed firearm and ammunition for the duration of such mission: a. For officers, men and regular civilian agents of the Ministry of National Defense (MOND)/Armed Forces of the Philippines (AFP) including members of the ICHDF: xxxx (8) Provincial commanders, METRODISCOM commanders, company commanders and their equivalent in the Philippine Air Force and Philippine Navy. xxxx Section 6. Specific guidelines in the carrying of firearms outside of residence. - The following specific guidelines shall be strictly observed in the carrying of firearm outside of residence: a. Lawful Holders of Firearm Lawful holders of firearm (regular licenses, special permit, certificate of registration or M/R) are prohibited from carrying their firearms outside of residence except when they have been issued by the Chief of Constabulary a permit to carry firearm outside of their

residence as provided for in Section hereof or in actual performance of duty or official mission under Section 4 and 5 hereof. (Emphasis supplied.) Section 6 (a) of the Implementing Rules and Regulations was later amended to read as follows: a-1. Mission Order. - x x x No Mission Order shall be issued to any civilian agent authorizing the same to carry firearms outside of residence unless he/she is included in the regular plantilla of the government agency involved in law enforcement and is receiving regular compensation for the services he/she is rendering in the agency. Further, the civilian agent must be included in a specific law enforcement/police/intelligence project proposal or special project which specifically requires the use of firearm(s) to insure its accomplishment and that the project is duly approved at the PC Regional Command level or its equivalent level in other major services of the AFP, INP and NBI, or at higher level of command. (Emphasis supplied) The Ministry of Justice also issued Memorandum Circular No. 8 dated October 16, 1986, further strengthening the foregoing Implementing Rules and Regulations, to wit: x x x It is unlawful for any person or office to issue a mission order authorizing the carrying of firearms by any person unless the following conditions are met: 1. That the AFP officer is authorized by the law to issue the mission order. 2. That the recipient or addressee of the mission order is also authorized by the law to have a mission order, i.e., he must be an organic member of the command/unit of the AFP officer issuing the mission order.If mission orders are issued to civilians (not members of the uniformed service), they must be civilian agents included in the regular plantilla of the government agency involved in law enforcement and are receiving regular compensation for services they are rendering. (Emphasis supplied) Earlier, a Letter Directive dated May 19, 198436 was issued to the Chief of Staff of the AFP, prohibiting the issuance of government-owned firearms to civilians, viz: 4. The Implementing Rules and Regulations of P.D. 1866 which codifies all the laws on firearms and explosives clarify the following: xxxx b. Section 5 identifies the officials/officers of the MOND/AFP who are authorized to issue Mission Orders to enable AFP officers, men and regular civilian agents carry their firearms in the performance of their duties. Regular civilian agents are those who are covered by Permanent or Temporary Civil Service attested appointments in the plantilla of civilian employees. Special or confidential civilian agents or the like are not

regular civilian agents and are therefore violating the law when they carry firearms (personal-owned or government-issued) with Mission Orders. c. There are no other laws or AFP regulations authorizing the loan of AFPowned firearms to private firms and individuals. (Emphasis supplied) It is noted that the Implementing Rules and Regulations of P.D. No. 1866, as amended, allude to "memorandum receipts" covering government-owned firearms. While said rules do not define the term, we can derive its meaning from Section 492 of the Government Auditing and Accounting Manual (Volume I: Government Auditing Rules and Regulations)37 to wit: Section 492. Issues of equipment to officers and employees. - Equipment issued by the property officer for official use of officials and employees shall be covered by Memorandum Receipt for Equipment (MR) which shall be renewed every January of the third year after issue. MRs not renewed after three years shall not be considered in making physical count of the equipment. (Emphasis supplied) From the foregoing discussion, therefore, the rules governing memorandum receipts and mission orders covering the issuance to and the possession and/or carrying of government-owned firearms by special or confidential civilian agents may be synthesized as follows: First, special or confidential civilian agents who are not included in the regular plantilla of any government agency involved in law enforcement or receiving regular compensation for services rendered are not exempt from the requirements under P.D. No. 1866, as amended by R.A. No. 8294, of a regular license to possess firearms and a permit to carry the same outside of residence; Second, said special or confidential civilian agents are not qualified to receive, obtain and possess government-owned firearms. Their ineligibility will not be cured by the issuance of a memorandum receipt for equipment covering said government-owned firearms. Neither will they qualify for exemption from the requirements of a regular firearms license and a permit to carry firearms by the mere issuance to them of a government-owned firearms covered by a memorandum receipt; and Third, said special or confidential civilian agents do not qualify for mission orders to carry firearms (whether private-owned or government-owned) outside of their residence. The foregoing rules do not apply to special or confidential civilian agents in possession of or bearing private-owned firearms that are duly licensed and covered by permits to carry the same outside of residence. Set against the foregoing rules, it is clear that petitioner is not authorized to possess and carry the subject firearm and ammunition, notwithstanding the memorandum receipt and mission order which were illegally issued to him. Petitioner is a planter 38 who was recruited to assist in the counter-insurgency campaign of the AFP.39 However, as he offered no evidence that he is in the regular plantilla of the AFP or

that he is receiving regular compensation from said agency, he cannot be considered a regular civilian agent but a mere confidential civilian agent as defined under Section 6(a) of the Implementing Rules and Regulations of P.D. No. 1866. As such, he was not authorized to receive the subject government-owned firearm and ammunitions. The memorandum receipt he signed to account for said government properties did not legitimize his possession thereof. Neither was petitioner authorized to bear the subject firearm and ammunitions outside of his residence. The mission order issued to petitioner was illegal, given that he is not a regular civilian agent but a mere confidential civilian agent. Worse, petitioner was not even acting as such confidential civilian agent at the time he was carrying the subject firearm and ammunitions. Petitioner testified that at that time, he was not on an official mission in Bais City but had merely visited the place to attend to a family emergency.40 While this Court sustains the conviction of petitioner for illegal possession of firearms, we re-examine the imprisonment term to which petitioner was sentenced by the RTC, as affirmed by the CA. The MTCC imposed on petitioner the penalty of imprisonment for three (3) years, six (6) months and twenty (20) days of prision correccional medium as minimum, to five (5) years, four (4) months and twenty (20) days of prision correccional maximum as maximum.41 Applying the Indeterminate Sentence Law, the RTC lowered the penalty to four (4) months of arresto mayor as minimum, to two (2) years, four (4) months and one (1) day of prision correccional as maximum.42 The CA affirmed the RTC. A further revision of the penalty is warranted in view of the special provision in the Indeterminate Sentence Law applicable to crimes penalized by a special law, to wit: Section 1. Hereafter, in imposing a prison sentence for an offense punished by the Revised Penal Code, or its amendments, the court shall sentence the accused to an indeterminate sentence the maximum term of which shall be that which, in view of the attending circumstances, could be properly imposed under the rules of the said Code, and the minimum which shall be within the range of the penalty next lower to that prescribed by the Code for the offense; and if the offense is punished by any other law, the court shall sentence the accused to an indeterminate sentence, the maximum term of which shall not exceed the maximum fixed by said law and the minimum shall not be less than the minimum term prescribed by the same. (Emphasis supplied) P.D. No. 1866 imposed the penalty of reclusion temporal in its maximum period to reclusion perpetua for illegal possession of firearms. R.A. No. 8294 lowered the penalty, as follows: Section 1. Section 1 of Presidential Decree No. 1866, as amended, is hereby further amended to read as follows: Section 1. Unlawful Manufacture, Sale, Acquisition, Disposition or Possession of Firearms or Ammunition or Instruments Used or Intended to be Used in the Manufacture of Firearms or Ammunition. - The penalty of prision correccional in its maximum period and a

fine of not less than Fifteen thousand pesos (P15,000) shall be imposed upon any person who shall unlawfully manufacture, deal in, acquire, dispose, or possess any low powered firearm, such as rimfire handgun, .380 or .32 and other firearm of similar firepower, part of firearm, ammunition, or machinery, tool or instrument used or intended to be used in the manufacture of any firearm or ammunition: Provided, That no other crime was committed. (Emphasis supplied.) Under Article 27 of the Revised Penal Code, prision correccional in its maximum period ranges from four (4) years, two (2) months and one (1) day, to six (6) years. As prescribed under Section 1 of the Indeterminate Sentence Law, the appropriate penalty that can be imposed on petitioner should keep within said range. Thus, there being no attendant mitigating or aggravating circumstance, and considering that petitioner accepted the subject firearm and ammunitions from the government under the erroneous notion that the memorandum receipt and mission order issued to him legitimized his possession thereof, the appropriate indeterminate penalty is four (4) years, two (2) months and one (1) day as minimum to five (5) years, four (4) months and twenty-one (21) days as maximum. WHEREFORE, the petition is DENIED. However, for reasons stated in the text of herein Decision, the Resolutions dated May 23, 2003 and August 7, 2003 of the Court of Appeals in CA-G.R. SP No. 27228 together with the Decision dated March 14, 2003 of the Regional Trial Court of Bais City are MODIFIED insofar only as the penalty of imprisonment is concerned. Petitioner Cedric Sayco y Villanueva is sentenced to serve an indeterminate penalty of four (4) years, two (2) months and one (1) day of prision correccional as minimum, to five (5) years, four (4) months and twenty-one (21) days of prision correccional as maximum. SO ORDERED.

G.R. No. 190779

March 26, 2010

ATTY. REYNANTE B. ORCEO, Petitioner, vs. COMMISSION ON ELECTIONS, Respondent. PERALTA, J.: This is a petition for certiorari1 questioning the validity of Resolution No. 8714 insofar as it provides that the term "firearm" includes airsoft guns and their replicas/imitations, which results in their coverage by the gun ban during the election period this year. Resolution No. 8714 is entitled Rules and Regulations on the: (1) Bearing, Carrying or Transporting of Firearms or other Deadly Weapons; and (2) Employment, Availment or Engagement of the Services of Security Personnel or Bodyguards, During the Election Period for the May 10, 2010 National and Local Elections. The Resolution was promulgated by the Commission on Elections (COMELEC) on December 16, 2009, and took effect on December 25, 2009. Resolution No. 8714 contains the implementing rules and regulations of Sec. 32 (Who May Bear Firearms) and Section 33 (Security Personnel and Bodyguards) of Republic Act (R.A.) No. 7166, entitled An Act Providing for Synchronized National and Local Elections and for Electoral Reforms, Authorizing Appropriations Therefor, and for Other Purposes. Section 1 of Resolution No. 8714 prohibits an unauthorized person from bearing, carrying or transporting firearms or other deadly weapons in public places, including all public buildings, streets, parks, and private vehicles or public conveyances, even if licensed to possess or carry the same, during the election period. Under Section 2 (b) of Resolution No. 8714, the term "firearm" includes "airgun, airsoft guns, and their replica/imitation in whatever form that can cause an ordinary person to believe that they are real." Hence, airsoft guns and their replicas/imitations are included in the gun ban during the election period from January 10, 2010 to June 9, 2010. Petitioner claims that he is a real party-in-interest, because he has been playing airsoft since the year 2000. The continuing implementation of Resolution No. 8714 will put him in danger of sustaining direct injury or make him liable for an election offense2 if caught in possession of an airsoft gun and its replica/imitation in going to and from the game site and playing the sport during the election period. Petitioner contends that the COMELEC gravely abused its discretion amounting to lack or excess of jurisdiction in including "airsoft guns and their replicas/imitations" in the definition of "firearm" in Resolution No. 8714, since there is nothing in R.A. No. 7166 that mentions "airsoft guns and their replicas/imitations." He asserts that the intendment of R.A. No. 7166 is that the term "firearm" refers to real firearm in its common and ordinary usage. In support of this assertion, he cites the Senate deliberation on the bill,3 which later became R.A. No. 7166, where it was clarified that an unauthorized person caught carrying a firearm during the election period is guilty of an election offense under Section 261 (q) of the Omnibus Election Code.

Further, petitioner alleges that there is no law that covers airsoft guns. By including airsoft guns in the definition of "firearm," Resolution No. 8714, in effect, criminalizes the sport, since the possession of an airsoft gun or its replica/imitation is now an election offense, although there is still no law that governs the use thereof. Petitioner prays that the Court render a decision as follows: (1) Annulling Resolution No. 8714 insofar as it includes airsoft guns and their replicas/imitations within the meaning of "firearm," and declaring the Resolution as invalid; (2) ordering the COMELEC to desist from further implementing Resolution No. 8714 insofar as airsoft guns and their replicas/imitations are concerned; (3) ordering the COMELEC to amend Resolution No. 8714 by removing airsoft guns and their replicas/imitations within the meaning of "firearm"; and (4) ordering the COMELEC to issue a Resolution directing the Armed Forces of the Philippines, Philippine National Police and other law enforcement agencies deputized by the COMELEC to desist from further enforcing Resolution No. 8714 insofar as airsoft guns and their replicas/imitations are concerned. The main issue is whether or not the COMELEC gravely abused its discretion in including airsoft guns and their replicas/imitations in the term "firearm" in Section 2 (b) of R.A. No. 8714. The Court finds that the COMELEC did not commit grave abuse of discretion in this case. R.A. No. 7166 (An Act Providing for Synchronized National and Local Elections and for Electoral Reforms, Authorizing Appropriations Therefor, and for Other Purposes)4 provides: SEC. 32. Who May Bear Firearms. During the election period, no person shall bear, carry or transport firearms or other deadly weapons in public places, including any building, street, park, private vehicle or public conveyance, even if licensed to possess or carry the same, unless authorized in writing by the Commission. The issuance of firearms licenses shall be suspended during the election period. Only regular members or officers of the Philippine National Police, the Armed Forces of the Philippines and other law enforcement agencies of the Government who are duly deputized in writing by the Commission for election duty may be authorized to carry and possess firearms during the election period: Provided, That, when in the possession of firearms, the deputized law enforcement officer must be: (a) in full uniform showing clearly and legibly his name, rank and serial number, which shall remain visible at all times; and (b) in the actual performance of his election duty in the specific area designated by the Commission. xxxx SEC. 35. Rules and Regulations. The Commission shall issue rules and regulations to implement this Act. Said rules shall be published in at least two (2) national newspapers of general circulation.

Pursuant to Section 35 of R.A. No. 7166, the COMELEC promulgated Resolution No. 8714, which contains the implementing rules and regulations of Sections 32 and 33 of R.A. No. 7166. The pertinent portion of the Resolution states: NOW, THEREFORE, pursuant to the powers vested in it by the Constitution of the Republic of the Philippines, the Omnibus Election Code (B.P. Blg. 881), Republic Acts Nos. 6646, 7166, 8189, 8436, 9189, 9369 and other elections laws, the Commission RESOLVED, as it hereby RESOLVES, to promulgate the following rules and regulations to implement Sections 32 and 33 of Republic Act No. 7166 in connection with the conduct of the May 10, 2010 national and local elections: SECTION 1. General Guiding Principles. During the election period: (a) no person shall bear, carry or transport firearms or other deadly weapons in public places, including all public buildings, streets, parks, and private vehicles or public conveyances, even if licensed to possess or carry the same; and (b) no candidate for public office, including incumbent public officers seeking election to any public office, shall employ, avail himself of or engage the services of security personnel or bodyguards, whether or not such bodyguards are regular members or officers of the Philippine National Police (PNP), the Armed Forces of the Philippines (AFP) or other law enforcement agency of the Government. The transport of firearms of those who are engaged in the manufacture, importation, exportation, purchase, sale of firearms, explosives and their spare parts or those involving the transportation of firearms, explosives and their spare parts, may, with prior notice to the Commission, be authorized by the Director General of the PNP provided that the firearms, explosives and their spare parts are immediately transported to the Firearms and Explosives Division, CSG, PNP. SEC. 2. Definition of Terms. As used in this Resolution: (a) Election Period refers to the election period prescribed in Comelec Resolution No. 8646 dated 14 July 2009 which is from 10 January 2010 to 09 June 2010; (b) Firearm shall refer to the "firearm" as defined in existing laws, rules and regulations. The term also includes airgun, airsoft guns, and their replica/imitation in whatever form that can cause an ordinary person to believe that they are real; (c) Deadly weapon includes bladed instrument, handgrenades or other explosives, except pyrotechnics. xxxx SEC. 4. Who May Bear Firearms. Only the following persons who are in the regular plantilla of the PNP or AFP or other law enforcement agencies are authorized to bear, carry or transport firearms or other deadly weapons during the election period: (a) Regular member or officer of the PNP, the AFP and other law enforcement agencies of the Government, provided that when in the possession of firearm, he is: (1) in the regular plantilla of the said agencies and is receiving regular compensation

for the services rendered in said agencies; and (2) in the agency-prescribed uniform showing clearly and legibly his name, rank and serial number or, in case rank and serial number are inapplicable, his agency-issued identification card showing clearly his name and position, which identification card shall remain visible at all times; (3) duly licensed to possess firearm and to carry the same outside of residence by means of a valid mission order or letter order; and (4) in the actual performance of official law enforcement duty, or in going to or returning from his residence/barracks or official station. xxxx (b) Member of privately owned or operated security, investigative, protective or intelligence agencies duly authorized by the PNP, provided that when in the possession of firearm, he is: (1) in the agency-prescribed uniform with his agencyissued identification card prominently displayed and visible at all times, showing clearly his name and position; and (2) in the actual performance of duty at his specified place/area of duty. xxxx SEC. 8. Enforcement. Any person who, not wearing the authorized uniform mentioned herein, bears, carries or transports firearm or other deadly weapon, shall be presumed unauthorized to carry firearms and subject to arrest.5 Petitioner contends that under R.A. No. 7166, the term "firearm" connotes real firearm. Moreover, R.A. No. 7166 does not mention airsoft guns and their replicas/imitations. Hence, its implementing rules and regulations contained in Resolution No. 8714 should not include airsoft guns and their replicas/imitations in the definition of the term "firearm." The Court is not persuaded. Holy Spirit Homeowners Association, Inc. v. Defensor6 held: Where a rule or regulation has a provision not expressly stated or contained in the statute being implemented, that provision does not necessarily contradict the statute. A legislative rule is in the nature of subordinate legislation, designed to implement a primary legislation by providing the details thereof. All that is required is that the regulation should be germane to the objects and purposes of the law; that the regulation be not in contradiction to, but in conformity with, the standards prescribed by the law.7 Evidently, the COMELEC had the authority to promulgate Resolution No. 8714 pursuant to Section 35 of R.A. No. 7166. It was granted the power to issue the implementing rules and regulations of Sections 32 and 33 of R.A. No. 7166. Under this broad power, the COMELEC was mandated to provide the details of who may bear, carry or transport firearms or other deadly weapons, as well as the definition of "firearms," among others. These details are left to the discretion of the COMELEC, which is a constitutional body that possesses special knowledge and expertise on election matters, with the objective of ensuring the holding of free, orderly, honest, peaceful and credible elections.

In its Comment,8 the COMELEC, represented by the Office of the Solicitor General, states that the COMELECs intent in the inclusion of airsoft guns in the term "firearm" and their resultant coverage by the election gun ban is to avoid the possible use of recreational guns in sowing fear, intimidation or terror during the election period. An ordinary citizen may not be able to distinguish between a real gun and an airsoft gun. It is fear subverting the will of a voter, whether brought about by the use of a real gun or a recreational gun, which is sought to be averted. Ultimately, the objective is to ensure the holding of free, orderly, honest, peaceful and credible elections this year. Contrary to petitioners allegation, there is a regulation that governs the possession and carriage of airsoft rifles/pistols, namely, Philippine National Police (PNP) Circular No. 11 dated December 4, 2007, entitled Revised Rules and Regulations Governing the Manufacture, Importation, Exportation, Sale, Possession, Carrying of Airsoft Rifles/Pistols and Operation of Airsoft Game Sites and Airsoft Teams. The Circular defines an airsoft gun as follows: Airsoft Rifle/Pistol x x x includes "battery operated, spring and gas type powered rifles/pistols which discharge plastic or rubber pellets only as bullets or ammunition. This differs from replica as the latter does not fire plastic or rubber pellet. PNP Circular No. 11 classifies the airsoft rifle/pistol as a special type of air gun, which is restricted in its use only to sporting activities, such as war game simulation.9 Any person who desires to possess an airsoft rifle/pistol needs a license from the PNP, and he shall file his application in accordance with PNP Standard Operating Procedure No. 13, which prescribes the procedure to be followed in the licensing of firearms.10 The minimum age limit of the applicant is 18 years old.11 The Circular also requires a Permit to Transport an airsoft rifle/pistol from the place of residence to any game or exhibition site.12 A license to possess an airsoft gun, just like ordinary licenses in other regulated fields, does not confer an absolute right, but only a personal privilege to be exercised under existing restrictions, and such as may thereafter be reasonably imposed.13 The inclusion of airsoft guns and airguns in the term "firearm" in Resolution No. 8714 for purposes of the gun ban during the election period is a reasonable restriction, the objective of which is to ensure the holding of free, orderly, honest, peaceful and credible elections.1avvphi1 However, the Court excludes the replicas and imitations of airsoft guns and airguns from the term "firearm" under Resolution No. 8714, because they are not subject to any regulation, unlike airsoft guns. Petitioner further contends that Resolution No. 8714 is not in accordance with the State policies in these constitutional provisions: Art. II, Sec. 12. The State recognizes the sanctity of family life and shall protect and strengthen the family as a basic autonomous social institution. x x x

Art. XV, Sec. 1. The State recognizes the Filipino family as the foundation of the nation. Accordingly, it shall strengthen its solidarity and actively promote its total development. Art. II, Sec. 17. The State shall give priority to x x x sports to foster patriotism and nationalism, accelerate social progress, and promote total human liberation and development. Petitioner asserts that playing airsoft provides bonding moments among family members. Families are entitled to protection by the society and the State under the Universal Declaration of Human Rights. They are free to choose and enjoy their recreational activities. These liberties, petitioner contends, cannot be abridged by the COMELEC. In its Comment, the COMELEC, through the Solicitor General, states that it adheres to the aforementioned state policies, but even constitutional freedoms are not absolute, and they may be abridged to some extent to serve appropriate and important interests. As a long-time player of the airsoft sport, it is presumed that petitioner has a license to possess an airsoft gun. As a lawyer, petitioner is aware that a licensee of an airsoft gun is subject to the restrictions imposed upon him by PNP Circular No. 11 and other valid restrictions, such as Resolution No. 8714. These restrictions exist in spite of the aforementioned State policies, which do not directly uphold a licensees absolute right to possess or carry an airsoft gun under any circumstance. Petitioners allegation of grave abuse of discretion by respondent COMELEC implies such capricious and whimsical exercise of judgment as is equivalent to lack of jurisdiction or, in other words, the exercise of power in an arbitrary manner by reason of passion, prejudice or personal hostility, and it must be so patent or gross as to amount to an evasion of a positive duty or to a virtual refusal to perform the duty enjoined or to act at all in contemplation of law.14 The Court holds that the COMELEC did not gravely abuse its discretion in including airsoft guns and airguns in the term "firearm" in Resolution No. 8714 for purposes of the gun ban during the election period, with the apparent objective of ensuring free, honest, peaceful and credible elections this year. However, the replicas and imitations of airsoft guns and airguns are excluded from the term "firearm" in Resolution No. 8714. WHEREFORE, the petition is PARTLY GRANTED insofar as the exclusion of replicas and imitations of airsoft guns from the term "firearm" is concerned. Replicas and imitations of airsoft guns and airguns are hereby declared excluded from the term "firearm" in Resolution No. 8714. The petition is DISMISSED in regard to the exclusion of airsoft guns from the term "firearm" in Resolution No. 8714. Airsoft guns and airguns are covered by the gun ban during the election period. No costs. SO ORDERED.

G.R. No. 172840

June 7, 2007

private respondents certificate of candidacy was not material to his eligibility as a candidate and could not be a ground for his prosecution. However, upon motion of petitioners, the COMELEC En Banc by Resolution dated 5 October 2005 ordered the Law Department to file an information against private respondent for violation of Section 262 in relation to Section 74 of B.P. 881. In reversing the resolution of the Law Department, the COMELEC En Banc ruled that Romualdez-Marcos and Salcedo were disqualification cases not applicable to the case of private respondent who is sought to be prosecuted for an election offense. As such, the misrepresentation made by private respondent need not be material to his eligibility as a candidate in order to hold him liable under Section 262. The COMELEC En Banc further ruled that election offenses are mala prohibita, in which case no proof of criminal intent is required and good faith, ignorance, or lack of malice are not valid defenses. On 18 October 2005, private respondent moved for reconsideration. The Ruling of the COMELEC On 1 February 2006, the COMELEC En Banc reconsidered its earlier Resolution, explaining thus: After a careful evaluation x x x [w]e rule to grant the motion for reconsideration. Criminal intent is not absolutely disregarded in election offense cases. A good example is the provision of Section 261(y)(17) of [B.P. 881], which requires malicious intent in order that a person may be charged for omitting, tampering, or transferring to another list the name of a registered voter from the official list of voters posted outside the polling place. In relation thereto, the fact that an offense is malum prohibitum does not exempt the same from the coverage of the general principles of criminal law. In this case, the provisions of Section 261 of [B.P. 881] must not be taken independent of the concepts and theories of criminal law. The offense allegedly committed by the respondent is for failure to disclose his true occupation as required under Section 74 of [B.P. 881]. Apparently, respondent misrepresented himself as a CPA when in fact he is not. The misrepresentation having been established, the next issue posited by the parties is whether or not the misrepresentation should be material before it can be considered as an election offense. We answer in the affirmative. Violation of Section 74 is a species of perjury, which is the act of knowingly making untruthful statements under oath. Settled is the rule that for perjury to be committed, it must be made with regard to a material matter. Clearly, the principle of materiality remains to be a crucial test in determining whether a person can be charged with violating Section 74 of [B.P. 881] in relation to Section 262 thereof.

NELSON T. LLUZ and CATALINO C. ALDEOSA, petitioners, vs. COMMISSION ON ELECTIONS and CAESAR O. VICENCIO, respondents. CARPIO, J.: The Case This petition for certiorari1 seeks to annul the Resolutions of the Commission on Elections (COMELEC) En Banc dated 1 February 2006 and 25 May 2006 in E.O. Case No. 04-5. The 1 February 2006 resolution ruled that no probable cause exists to charge private respondent Caesar O. Vicencio with violation of Section 262 in relation to Section 74 of Batas Pambansa Blg. 881 (B.P. 881), otherwise known as the Omnibus Election Code. The 25 May 2006 resolution denied petitioners Nelson T. Lluz and Catalino C. Aldeosas motion for reconsideration of the 1 February 2006 resolution. The Facts Private respondent was a candidate for the post of punong barangay of Barangay 2, Poblacion, Catubig, Samar in the 15 July 2002 Synchronized Barangay and Sangguniang Kabataan Elections. In his certificate of candidacy, private respondent stated his profession or occupation as a certified public accountant (CPA). Private respondent won in the elections. Sometime after private respondents proclamation, petitioners charged him before the Law Department of the COMELEC (Law Department) with violation of Section 262 in relation to Section 74 of B.P. 881. Petitioners claimed they had proof that private respondent misrepresented himself as a CPA. Attached to petitioners complaint was a Certification signed by Jose Ariola, Director II, Regulations Office of the Professional Regulation Commission (PRC), stating that private respondents name does not appear in the book of the Board of Accountancy. The book contains the names of those duly authorized to practice accountancy in the Philippines. In his Answer, private respondent maintained that he was a CPA and alleged that he passed the CPA Board Examinations in 1993 with a rating of 76%. Private respondent argued that he could not be held liable for an election offense because his alleged misrepresentation of profession was not material to his eligibility as a candidate. On 21 September 2004, the Law Department through its Director Alioden D. Dalaig issued a subpoena requiring the Chief of the PRCs Records Section to appear before it and settle the controversy on whether private respondent was indeed a CPA. On 6 October 2004, PRC Records Section Officer-in-Charge Emma T. Francisco appeared before the Law Department and produced a Certification showing that private respondent had taken the 3 October 1993 CPA Board Examinations and obtained a failing mark of 40.71%. Nevertheless, the Law Department recommended the dismissal of petitioners complaint. Citing the rulings of this Court in Romualdez-Marcos v. COMELEC2 and Salcedo II v. COMELEC,3 the Law Department held that the misrepresentation in

The case of [Salcedo] sheds light as to what matters are deemed material with respect to the certificate of candidacy, to wit: citizenship, residency and other qualifications that may be imposed. The nature of a candidates occupation is definitely not a material matter. To be sure, we do not elect a candidate on the basis of his occupation.4 Petitioners filed a motion for reconsideration, which the COMELEC En Banc denied in the assailed Resolution dated 25 May 2006. The COMELEC declared that while it "condemn[ed] in the strongest possible terms" private respondents "morally appalling, devious, calculating, [and] deceitful" act, it could not prosecute private respondent for an election offense, but possibly only for an administrative or criminal offense. Hence, this petition. The Issues Petitioners argue that: 1. The assailed resolutions failed to consider that a violation of Section 262 in relation to Section 74 of B.P. 881 is malum prohibitum; 2. The ruling in Salcedo is not applicable to petitioners complaint, that is, a fact misrepresented in a certificate of candidacy need not be material in order to constitute a violation of Section 262 in relation to Section 74 of B.P. 881; and 3. Assuming arguendo that materiality of a misrepresentation is required to constitute a violation of Section 262 in relation to Section 74 of B.P. 881, the assailed resolutions should have held material private respondents misrepresentation because it increased his chances of winning in the elections. The Ruling of the Court Petitioners come to us on a single question of law: is an alleged misrepresentation of profession or occupation on a certificate of candidacy punishable as an election offense under Section 262 in relation to Section 74 of B.P. 881? We rule in the negative. In urging the Court to order the COMELEC to file the necessary information against private respondent, petitioners invoke Sections 262 and 74 of B.P. 881, which we reproduce below: Section 262. Other election offenses.Violation of the provisions, or pertinent portions, of the following sections of this Code shall constitute election offenses: Sections 9, 18, 74, 75, 76, 80, 81, 82, 83, 84, 85, 86, 87, 88, 89, 95, 96,

97, 98, 99, 100, 101, 102, 103, 104, 105, 106, 107, 108, 109, 110, 111, 123, 127, 128, 129, 132, 134, 135, 145, 148, 150, 152, 172, 173, 174, 182, 184, 185, 186, 189, 190, 191, 192, 194, 195, 196, 197, 198, 202, 205, 206, 207, 208, 209, 210, 211, 212, 213, 214, 215, 216, 217, 218, 223, 229, 230, 231, 233, 234, 235, 236, 239 and 240. (Emphasis supplied)

112, 178, 203, 219,

122, 180, 204, 220,

Section 74. Contents of certificate of candidacy.The certificate of candidacy shall state that the person filing it is announcing his candidacy for the office stated therein and that he is eligible for said office; if for Member of the Batasang Pambansa, the province, including its component cities, highly urbanized city or district or sector which he seeks to represent; the political party to which he belongs; civil status; his date of birth; residence; his post office address for all election purposes; his profession or occupation; that he will support and defend the Constitution of the Philippines and will maintain true faith and allegiance thereto; that he will obey the laws, legal orders, and decrees promulgated by the duly constituted authorities; that he is not a permanent resident or immigrant to a foreign country; that the obligation imposed by his oath is assumed voluntarily, without mental reservation or purpose of evasion; and that the facts stated in the certificate of candidacy are true to the best of his knowledge. Unless a candidate has officially changed his name through a court approved proceeding, a candidate shall use in a certificate of candidacy the name by which he has been baptized, or he has not been baptized in any church or religion, the name registered in the office of the local civil registrar or any other name allowed under the provisions of existing law or, in the case [of] a Muslim, his Hadji name after performing the prescribed religious pilgrimage: Provided, That when there are two or more candidates for an office with the same name and surname, each candidate, upon being made aware or such fact, shall state his paternal and maternal surname, except the incumbent who may continue to use the name and surname stated in his certificate of candidacy when he was elected. He may also include one nickname or stage name by which he is generally or popularly known in the locality. The person filing a certificate of candidacy shall also affix his latest photograph, passport size; a statement in duplicate containing his bio-data and program of government not exceeding one hundred words, if he so desires. (Emphasis supplied) The penal coverage of Section 262 is limited. From a cursory reading of Sections 262 and 74 of B.P. 881, one may possibly conclude that an act or omission in violation of any of the provisions of Section 74 ipso facto constitutes an election offense. Indeed, petitioners point out that private respondents misrepresentation of profession having been proved before the COMELEC, the latter is compelled to prosecute him for violation of Section 262. Petitioners argue that such a violation being an election offense, it is malum prohibitum and immediately gives rise to criminal liability upon proof of commission. Petitioners stance assumes that Section 262 penalizes without qualification the violation of the sections it enumerates. This assumption is uncalled for in view of the wording of Section 262. The listing of sections in Section 262 is introduced by the clause: "Violation of the provisions, or pertinent portions, of the following sections shall constitute election

offenses: x x x." The phraseology of this introductory clause alerts us that Section 262 itself possibly limits its coverage to only pertinent portions of Section 74. That such a possibility exists must not be taken lightly for two reasons. First, were the phrase not necessary, the laws framers would have instead directly declared that violation of "the provisions" or "any provision" of the enumerated sections without any qualification would constitute an election offense. It is a settled principle in statutory construction that whenever possible, a legal provision, phrase, or word must not be so construed as to be meaningless and a useless surplusage in the sense of adding nothing to the law or having no effect on it.5 Second, equally well-settled is the rule that a statute imposing criminal liability should be construed narrowly in its coverage such that only those offenses clearly included, beyond reasonable doubt, will be considered within the operation of the statute.6 A return to Section 74 is thus imperative. Section 74 enumerates all information which a person running for public office must supply the COMELEC in a sworn certificate of candidacy. Section 74 specifies that a certificate of candidacy shall contain, among others, a statement that the person is announcing his or her candidacy for the office and is eligible for such office, the unit of government which the person seeks to represent, his or her political party, civil status, date of birth, residence, and profession or occupation. Section 74 further requires that the person make several declarations: "that he will support and defend the Constitution of the Philippines and will maintain true faith and allegiance" to it, "that he will obey the laws, legal orders, and decrees promulgated by the duly constituted authorities," "that he is not a permanent resident or immigrant to a foreign country," "that the obligation imposed by his oath is assumed voluntarily," and "that the facts stated in the certificate of candidacy are true to the best of his knowledge." Section 74 does not expressly mention which portion in its provisions is pertinent to Section 262, or which among its provisions when violated is punishable as an election offense. Nothing in Section 74 partakes unmistakably of a penal clause or a positive prohibition comparable to those found in other sections7 also mentioned in Section 262 that use the words "shall not." The Court is then left to interpret the meaning of Section 74 to determine which of its provisions are penalized under Section 262, and particularly if disclosure of profession or occupation is among such provisions. Our rulings in Abella v. Larrazabal and Salcedo clarify the concept of misrepresentation under B.P. 881. The issue in this case is novel, yet the facts and provisions of law now before us call to mind the cases of Abella v. Larrazabal8 and Salcedo, perhaps the closest this case has to a relevant precedent. Abella dwelt on the issue of misrepresentation of residence in a certificate of candidacy. Petitioner Abella had filed a case against private respondent Larrazabal before the COMELEC on the ground that the latter falsely claimed to be a resident of Kananga, Leyte in her certificate of candidacy. In the course of the hearing, Larrazabal moved for clarification of the nature of the proceedings, asking the COMELEC to determine under what law her qualifications were being challenged. The

COMELEC, by process of elimination, determined that the proceeding was not (1) intended against a nuisance candidate under Section 69 of B.P. 881, as Larrazabal was obviously a bona fide candidate; (2) a petition for quo warranto under Section 253 which could be filed only after Larrazabals proclamation, as Larrazabal had not yet been proclaimed; (3) a petition to deny due course to Larrazabals certificate of candidacy under Section 78, as Abellas petition did not contain such prayer and was not filed in the manner required by the COMELEC Rules of Procedure; or (4) a petition for disqualification under Section 68, as Larrazabal was not being charged with the commission of any election offense mentioned under the section. The COMELEC concluded that "the subject of the petition, to wit, misrepresentation in the certificate of candidacy, was actually a violation of Section 74" and must be prosecuted as an election offense under Section 262. The COMELEC dismissed the petition and referred the case to its Law Department for prosecution. We held that the dismissal was improper. There we reasoned that the issue of residence having been squarely raised before the COMELEC x x x it should not have been shunted aside to the Law Department for a roundabout investigation of [Larrazabals] qualification through the filing of a criminal prosecution, if found to be warranted, with resultant disqualification of the accused in case of conviction. The COMELEC should have opted for a more direct and speedy process available under the law, considering the vital public interest involved and the necessity of resolving the question at the earliest possible time for the benefit of the inhabitants of Leyte.9 By "direct and speedy process," the Court referred to Section 78 of B.P. 881, which states: Section 78. Petition to deny due course to or cancel a certificate of candidacy. A verified petition seeking to deny due course or to cancel a certificate of candidacy may be filed by the person exclusively on the ground that any material representation contained therein as required under Section 74 hereof is false. The petition may be filed at any time not later than twenty-five days from the time of the filing of the certificate of candidacy and shall be decided, after due notice and hearing, not later than fifteen days before the election. (Emphasis supplied) Thus, upon considering the facts and seeing that Larrazabals misrepresentation of her residence put her qualification as a candidate at issue,10 the Court found that the case fell squarely within the provisions of Section 78 and directed the COMELEC to determine the residence qualification of Larrazabal. Notably, the Court did not make a finding that Abella had no cause of action under Section 262, but only characterized the criminal case as involving a "roundabout investigation" seeking an end Larrazabals disqualification that could be achieved more speedily through an administrative proceeding under Section 78. The ruling in Abella recognized that Larrazabals act of misrepresenting her residence, a fact required to be stated in her certificate of candidacy under Section 74 and which was also a qualification for all elective local officials, gave rise to two causes of action against her under B.P. 881: one, a criminal complaint under Section 262; and second, a petition to deny due course to or cancel a certificate of candidacy under Section 78. The case of Salcedo six years after Abella tested the limits of Section 78 on the specific question of what constitutes a material misrepresentation. In Salcedo,

petitioner Victorino Salcedo prayed for the disqualification of private respondent Emelita Salcedo (Emelita) from the mayoralty race in Sara, Iloilo on the basis of the use of her surname. Petitioner alleged that Emelitas marriage to Neptali Salcedo (Neptali) was void and therefore Emelitas use of Neptalis surname constituted a material misrepresentation. The COMELEC ruled in favor of Emelita, finding that she committed no misrepresentation. On appeal by petitioner, the Court held: In case there is a material misrepresentation in the certificate of candidacy, the Comelec is authorized to deny due course to or cancel such certificate upon the filing of a petition by any person pursuant to Section 78 x x x. xxxx As stated in the law, in order to justify the cancellation of the certificate of candidacy under Section 78, it is essential that the false representation mentioned therein pertain[s] to a material matter for the sanction imposed by this provision would affect the substantive rights of a candidate the right to run for the elective post for which he filed the certificate of candidacy. Although the law does not specify what would be considered as a "material representation," the Court has interpreted this phrase in a line of decisions applying Section 78 of [B.P. 881]. xxxx Therefore, it may be concluded that the material misrepresentation contemplated by Section 78 of the Code refer[s] to qualifications for elective office. This conclusion is strengthened by the fact that the consequences imposed upon a candidate guilty of having made a false representation in [the] certificate of candidacy are grave to prevent the candidate from running or, if elected, from serving, or to prosecute him for violation of the election laws. It could not have been the intention of the law to deprive a person of such a basic and substantive political right to be voted for a public office upon just any innocuous mistake. xxxx

canceled by the COMELEC, the fact misrepresented must pertain to a qualification for the office sought by the candidate. Profession or occupation is not a qualification for elective office, and therefore not a material fact in a certificate of candidacy. No elective office, not even the office of the President of the Republic of the Philippines, requires a certain profession or occupation as a qualification. For local elective offices including that of punong barangay, Republic Act No. 7160 (R.A. 7160) or the Local Government Code of 1991 prescribes only qualifications pertaining to citizenship, registration as a voter, residence, and language. Section 39 of R.A. 7160 states: Section 39. Qualifications. (a) An elective local official must be a citizen of the Philippines; a registered voter in the barangay, municipality, city, or province or, in the case of a member of the sangguniang panlalawigan, sangguniang panlungsod, or sangguniang bayan, the district where he intends to be elected; a resident therein for at least one (1) year immediately preceding the day of the election; and able to read and write Filipino or any other local language or dialect. xxxx Profession or occupation not being a qualification for elective office, misrepresentation of such does not constitute a material misrepresentation. Certainly, in a situation where a candidate misrepresents his or her profession or occupation in the certificate of candidacy, the candidate may not be disqualified from running for office under Section 78 as his or her certificate of candidacy cannot be denied due course or canceled on such ground. In interpreting a law, the Court must avoid

Aside from the requirement of materiality, a false representation under Section 78 must consist of a "deliberate attempt to mislead, misinform, or hide a fact which would otherwise render a candidate ineligible." In other words, it must be made with an intention to deceive the electorate as to ones qualifications for public office. x x x11 (Emphasis supplied) From these two cases several conclusions follow. First, a misrepresentation in a certificate of candidacy is material when it refers to a qualification for elective office and affects the candidates eligibility. Second, when a candidate commits a material misrepresentation, he or she may be proceeded against through a petition to deny due course to or cancel a certificate of candidacy under Section 78, or through criminal prosecution under Section 262 for violation of Section 74. Third, a misrepresentation of a non-material fact, or a non-material misrepresentation, is not a ground to deny due course to or cancel a certificate of candidacy under Section 78. In other words, for a candidates certificate of candidacy to be denied due course or

an unreasonable or unjust construction. Were we to follow petitioners line of thought, for misrepresentation of a non-material fact, private respondent could be prosecuted for an election offense and, if found guilty, penalized with imprisonment and other accessory penalties. B.P. 881 prescribes a uniform penalty for all election offenses under it to cover those defined in Sections 262 and 261, to wit: Section 264. Penalties. Any person found guilty of any election offense under this Code shall be punished with imprisonment of not less than one year but not more than six years and shall not be subject to probation. In addition, the guilty party shall be sentenced to suffer disqualification to hold public office and deprivation of the right of suffrage. If he is a foreigner, he shall be sentenced to deportation which shall be enforced after the prison term has been served. Any political party found guilty shall

be sentenced to pay a fine of not less than ten thousand pesos, which shall be imposed upon such party after criminal action has been instituted in which their corresponding officials have been found guilty. The position taken by petitioners merely highlights for us the absurdity of not applying here the reasons given by the Court in Salcedo, a mere disqualification case. In the present case, private respondent not only could be disqualified from holding public office and from voting but could also be deprived of his liberty were the COMELEC to pursue a criminal case against him. If in Salcedo the Court could not conceive the law to have intended that a person be deprived "of such a basic and substantive political right to be voted for a public office upon just any innocuous mistake" on the certificate of candidacy, weightier considerations here demand that materiality of the misrepresentation also be held an essential element of any violation of Section 74. Otherwise, every detail or piece of information within the four corners of the certificate of candidacy, even that which has no actual bearing upon the candidates eligibility, could be used as basis for the candidates criminal prosecution. Further compelling us to dismiss this petition is the consideration that any complaint against private respondent for perjury under the Revised Penal Code would necessarily have to allege the element of materiality. The pertinent section of the Revised Penal Code states: Art. 183. False testimony in other cases and perjury in solemn affirmation. The penalty of arresto mayor in its maximum period to prision correccional in its minimum period shall be imposed upon any person who, knowingly making untruthful statements and not being included in the provision of the next preceding articles, shall testify under oath, or make an affidavit, upon any material matter before a competent person authorized to administer an oath in cases in which the law so requires. (Emphasis supplied) The basis of the crime of perjury is the willful assertion of a falsehood under oath upon a material matter. Although the term "material matter" under Article 183 takes on a fairly general meaning, that is, it refers to the main fact which is the subject of inquiry,12 in terms of being an element in the execution of a statement under oath it must be understood as referring to a fact which has an effect on the outcome of the proceeding for which the statement is being executed.13 Thus, in the case of a certificate of candidacy, a material matter is a fact relevant to the validity of the certificate and which could serve as basis to grant or deny due course to the certificate in case it is assailed under Section 78. Of course, such material matter would then refer only to the qualifications for elective office required to be stated in the certificate of candidacy. Perjury under Article 183 of the Revised Penal Code carries the penalty of arresto mayor in its maximum period to prision correccional in its minimum period and translates to imprisonment for four months and one day up to two years and four months. The duration of this imprisonment is a far cry from that meted by Section 264 of B.P. 881, which is a minimum of one year up to a maximum of six years. With the gravity of the punishment provided by B.P. 881 for violation of election offenses, we glean the intention of the law to limit culpability under Section 262 for violation of Section 74 only to a material misrepresentation. We thus adhere to the more reasonable construction of the term "pertinent portions" found in Section 262, in particular reference to Section 74, to mean only those portions of Section 74 which prescribe qualification requirements of a candidate.

WHEREFORE, we DISMISS the petition. We AFFIRM the En Banc Resolutions of the Commission on Elections dated 1 February 2006 and 25 May 2006. SO ORDERED.

G.R. No. 162187 November 18, 2005 CRISTE B. VILLANUEVA, Petitioner, vs. THE HON. SECRETARY OF JUSTICE and HORST-KESSLER VON SPRENGEISEN, Respondents. CALLEJO, SR., J.: Before the Court is a petition for review on certiorari of the Decision1 of the Court of Appeals (CA) in CA-G.R. SP No. 76999 dismissing the petition for certiorari assailing the finding of the Secretary of Justice that no probable cause exists against private respondent Horst-Kessler Von Sprengeisen for perjury. The Antecedents On April 2, 1996, the Refractories Corporation of the Philippines (RCP) filed a protest before the Special Committee on Anti-Dumping of the Department of Finance against certain importations of Hamburg Trading Corporation (HTC), a corporation duly organized and existing under the laws of the Philippines. The matter involved 151.070 tons of magnesite-based refractory bricks from Germany.2 The case was docketed as Anti-Dumping Case No. I-98. The protest was referred to the Bureau of Import Services (BIS) of the Department of Trade and Industry, to determine if there was a prima facie case for violation of Republic Act (R.A.) No. 7843, the Anti-Dumping Law. Sometime in February 1997, the BIS submitted its report to the Tariff Commission, declaring that a prima facie case existed and that continued importation of refractory bricks from Germany would harm the local industry. It adopted the amount of DM 1,200 per metric ton as the normal value of the imported goods.3 The HTC received a copy of the said report on February 14, 1997. However, before it could respond, the chairman of the Tariff Commission prodded the parties to settle the matter amicably. A conference ensued between RCP Senior Vice President and Assistant General Manager Criste Villanueva and Jesus Borgonia, on the one hand, and HTC President and General Manager Horst-Kessler Von Sprengeisen and Sales Manager Dennis Gonzales, on the other. During the conference, the parties agreed that the refractory bricks were imported by the HTC at a price less than its normal value of DM 1,200, and that such importation was likely to injure the local industry. The parties also agreed to settle the case to avoid expenses and protracted litigation. HTC was required to reform its price policy/structure of its importation and sale of refractory bricks from Germany to conform to the provisions of R.A. No. 7843 and its rules and regulations. Jesus Borgonio thereafter prepared and signed a compromise agreement containing the terms agreed upon which Villanueva and Borgonia signed.4 Bienvenido Flores, an Office Clerk of RCP, delivered the agreement to HTC at the 9th Floor of Ramon Magsaysay Center Building, 1680 Roxas Boulevard, Manila by Von Sprengeisens approval.5 However, Von Sprengeisen did not sign the agreement. Borgonia revised the agreement by inserting the phrase "based on the findings of the BIS" in paragraph 1 thereof. Villanueva and Borgonia signed the agreement and had the same delivered to the office of HTC on April 22, 1997 by Lino M. Gutierrez, a technical assistant of RCP. Gonzales received the agreement and delivered the same to Von Sprengeisen. After 20 minutes, Gonzales returned, with the agreement already signed by Von

Sprengeisen.6 Gonzales, who had also signed, then gave it to Gutierrez. On the same day, Notary Public Zenaida P. De Zuiga notarized the agreement.7 Gonzales delivered a copy of the notarized Agreement to HTC.8 RCP submitted the compromise agreement to the Tariff Commission. During the May 9, 1997 hearing before the Commission for the approval of the agreement, a representative of HTC appeared. He offered no objection to the Agreement. The Commission submitted its report to the Special Committee which rendered a decision declaring that, based on the findings of the BIS, the normal value of the imported refractory bricks was DM 1,200 per metric ton. HTC received a copy of the decision on March 4, 1998. Neither RCP nor HTC appealed the decision to the Court of Tax Appeals. In the meantime, HTC imported refractory bricks from Germany anew and noted that the normal value of the said importation under the decision of the Special Committee based on the BIS report was DM 1,200 per metric ton. On July 28, 1998, the HTC filed an Urgent Motion to Set Aside and/or Vacate Judgment with the Special Committee on Anti-Dumping, praying that such decision be declared null and void on the following grounds: 1. THE FRAUD HAD BEEN COMMITTED BY THE PROTESTANT DURING THE NEGOTIATION FOR THE PREPARATION OF THE COMPROMISE AGREEMENT. 2. THAT INSERTIONS AND/OR SUBSTITUTION OF THE FACTS NOT AGREED UPON WAS DELIBERATELY AND SURREPTITIOUSLY MADE BY THE PROTESTANT IN THE COMPROMISE AGREEMENT WITHOUT THE KNOWLEDGE AND CONSENT OF THE PROTESTEE.9 The motion was verified by Von Sprengeisen. The HTC averred therein that Villanueva violated Article 172 of the Revised Penal Code when he surreptitiously inserted the phrase "based on the findings of the BIS" in the agreement without the knowledge and consent of Von Sprengeisen and despite their agreement to put behind them the findings of the BIS. Appended to the motion was an Affidavit of Merit executed by Von Sprengeisen in which he alleged, inter alia, that sometime in February 1997, the BIS came out with its Report declaring that the normal value of the magnesite-based refractory bricks was DM 1,200 per metric ton; before HTC could respond to the report, Villanueva invited him to a conference for the purpose of finding the best solution to the pending case before the Commission; he and Gonzales attended the meeting during which it was agreed, by way of a compromise, that the parties will accept the amount of DM 1,050 per metric ton as the normal value for all magnesite-based refractory bricks from Germany; when he received the draft of the compromise agreement prepared by Villanueva, he approved the same; subsequently, Villanueva transmitted a compromise agreement already signed by him to Von Sprengeisen for his review, approval and signature; believing that the compromise agreement reproduced the contents of the first compromise agreement, he signed the second agreement without reading it; when he received, on March 4, 1998, a copy of the decision of the Tariff Commission based on the compromise agreement of the parties wherein the committee adopted the findings and recommendations of the BIS (that the normal value of the shipment was DM 1,200 per metric ton), he was shocked because he never agreed to the use of such findings for the reformation of its price policies; there was, in fact, an agreement between him and Villanueva to put behind them the findings of the BIS; he called up Villanueva at his office but failed to contact him despite several attempts; suspecting

that something amiss happened, he had the draft of the first compromise agreement retrieved but his secretary failed to locate the same; it was only sometime later that his secretary found the folder-file containing the draft and was appalled to discover that Villanueva had substantially altered the first draft of the compromise agreement; this made him conclude and confirm his suspicion that Villanueva, thru deceit and fraud, induced him to sign the compromise agreement to the prejudice of the HTC.10 The RCP opposed the motion. But, in a parallel move, Villanueva, in his capacity as Senior Vice President and Assistant General Manager of RCP, filed a criminal complaint for perjury against Von Sprengeisen in the Office of the City Prosecutor of Manila. Appended thereto was a complaint-affidavit executed by Villanueva wherein he declared, inter alia, that Von Sprengeisen made the following false statements in the Urgent Motion, thus: a. [Complainant] was the one who called up his office, inviting him to a meeting for the purpose of finding the best and most equitable solution to the case (p. 3, Urgent Motion); b. RCP and Hamburg Trading agreed to put behind them the findings and recommendations of the Bureau of Import Services (BIS) with respect to the antidumping protest filed by RCP (p. 3, Urgent Motion); c. The original version of the Compromise Agreement sent to him was merely a draft (p. 3, Urgent Motion); d. The phrase "based on the findings of the Bureau of Import Services" was inserted in paragraph 1 of the final Compromise Agreement without his knowledge and consent (p. 3, Urgent Motion); and e. [Complainant] was the one who surreptitiously inserted the aforesaid phrase (p. 3, Urgent Motion).11 Villanueva also alleged that Von Sprengeisen made the following false statements in his Affidavit of Merit: a. [Complainant] invited him to a conference for the purpose of finding the best solution to the case; b. [Complainant and he] agreed to put behind [them] the recommendation of the BIS submitted to the Secretary of Finance; findings and

In his Counter-Affidavit, Von Sprengeisen averred that whoever called the other for a conference was not a material matter. Since the first draft of the Compromise Agreement transmitted to him was by fax, he asked the complainant to send to him the hard copy of the Agreement for his signature. He further narrated that when he received the hard copy of the compromise agreement, he did not bother to review since he assumed that it contained the same provisions in the faxed copy. He did not suggest that the phrase "based on the findings of the BIS" be inserted in the hard copy of the agreement because he and Villanueva were at odds on the BIS finding the normal price of the goods was DM 1,200 per metric ton. He insisted that it would have been senseless of him to agree to such insertion; as such, he did not make any willful and deliberate assertion of any falsehood as to any material fact.13 Investigating Prosecutor Francisco G. Supnet found no probable cause for perjury against the private respondent and recommended the dismissal of the complaint. Second Assistant City Prosecutor Leoncia Dimagiba reviewed the resolution of Prosecutor Supnet and found probable cause for perjury against the private respondent for alleging in his Affidavit of Merit that he was induced to sign the compromise agreement through fraud and deceit. According to the Second Assistant City Prosecutor, the allegation of the private respondent "thru deceit and fraud to sign the final Compromise Agreement" was a deliberate assertion of a falsehood, designed as it was merely to give the BIS the impression that private respondent was misled into agreeing to the compromise agreement. She further opined that the allegation was perjurious, considering that the private respondent had sufficient time to pass upon the Compromise Agreement and could have availed the services of legal minds who could review the terms and conditions thereof before signing the same;14 hence, she recommended the reversal of Prosecutor Supnets resolution and the filing of the information. The City Prosecutor approved the recommendation of the Second Assistant City Prosecutor. Accordingly, an Information for perjury was filed against the private respondent with the Metropolitan Trial Court of Manila. The private respondent appealed the resolution to the Secretary of Justice, who reversed the resolution of the City Prosecutor on September 20, 2002. According to the Justice Secretary, the complainant failed to establish the materiality of the alleged false assertions and that the said assertions were willful and deliberate. Moreover, the allegations in the Affidavit of Merit are not altogether false since the intention of the parties in executing the compromise agreement was precisely to put behind the ruling of the BIS, despite which the complainant inserted the condition that the parties would be bound by such findings and recommendations.15 The decretal portion of the resolution reads: WHEREFORE, the appealed resolution of the City Prosecutor of Manila is hereby REVERSED. The City Prosecutor is directed to withdraw the information for perjury against respondent Horst-Kessler von Sprengeisen and to report the action taken within ten (10) days from receipt hereof. SO ORDERED.16

c. We agreed to the amount of DM 1,050/ton as the normal value for all magnesitebased refractory bricks from Germany; d. The original version of the Compromise Agreement sent to him was merely a draft; and e. Through deceit and fraud, [complainant] induced [respondent] to sign the final Compromise Agreement.12

Villanueva then filed a petition for certiorari with the CA assailing the resolution of the Justice Secretary, alleging therein that grave abuse of discretion, amounting to excess or lack of jurisdiction, was committed in issuing the said resolution.17 The private respondent, for his part, sought the dismissal of the petition alleging that, as found by the Justice Secretary, there was no probable cause against him for perjury.18

On February 13, 2004, the CA dismissed the petition and affirmed the resolution of the Justice Secretary.19 The CA declared that, as posited by the Office of the Solicitor General in its comment on the petition, the parties had agreed to put behind them the findings and recommendations of the BIS with respect to the anti-dumping protest. The appellate court stated that its finding is buttressed by the fact that the amount of DM 1,050 was not mentioned in the first compromise agreement and that, under such agreement, the HTC obliged itself "to reform its pricing policy and structure with respect to refractory products being imported to and sold in the Philippines in accordance with the provisions of R.A. No. 7843 and its implementing rules and requirements." The CA emphasized that it was inclined to believe that there was no meeting of the minds of the parties when the petitioner inserted the phrase "based on the findings of the BIS" in the revised compromise agreement; hence, there could not have been perjury when the private respondent executed the Affidavit of Merit and the Urgent Motion to Set Aside and/or Vacate Judgment. The CA also agreed with the findings of the Secretary of Justice that the insertion of the condition in the compromise agreement that the parties would be bound by the BIS findings and recommendation gave the private respondent reason to believe that he was deceived by the petitioner into signing the Agreement; as such, the private respondents allegation in his Affidavit of Merit, that he was induced to signing the Compromise Agreement through fraud and deceit, was not altogether false. Consequently, the CA ruled, the private respondent did not make any willful and deliberate assertion of a falsehood.20 The appellate court conformed to the disquisitions of the Secretary of Justice in the assailed resolution and concluded that the private respondent did not, in the Affidavit of Merit, make a willful and deliberate assertion of a falsehood.21 Aggrieved, the petitioner filed a petition for review on certiorari with this Court against private respondent Von Sprengeisen and the Secretary of Justice, insisting that the CA committed grave abuse of discretion amounting to excess or lack of jurisdiction in dismissing the petition and affirming the assailed resolution. The petitioner maintains that, during the preliminary investigation, he adduced substantial evidence to prove probable cause for perjury against the private respondent. He maintains that probable cause does not mean actual and positive causes; nor does it import absolute certainty. It is merely based on opinion and reasonable belief. It is enough that it is believed that the act or omission complained of constitutes the offense charged. He avers that, contrary to the claim of the private respondent in his Affidavit of Merit, the meeting between him and Jesus Borgonio, on the one hand, and the private respondent and HTC Sales Manager Dennis Gonzales, on the other, was arranged by the latter and not by him. As gleaned from the draft and final copies of the compromise agreement, the parties made express reference to the prima facie findings of the BIS that the actual export price of HTC was below the fair market value. By agreeing that such findings of the BIS be included in the Compromise Agreement, the said private respondent impliedly agreed to such findings as basis of the price for which HTC would sell the German-made magnesitebased refractory bricks in the Philippines. The petitioner avers that the fact that the amount of DM 1,050 per metric ton was not specifically mentioned in the compromise agreement was of no importance, considering the parties acceptance of such findings is based on R.A. No. 7843. He points out that the private respondent could not have failed to notice the difference between the first draft and the final copy of the agreement before signing it because, as alleged by Lino Gutierrez in his reply affidavit, it took the private respondent twenty minutes or so after receiving the

agreement to review the final draft before signing it. Moreover, the Urgent Motion to Set Aside and/or Vacate Judgment signed by the private respondent was filed more than 15 months from the execution of the compromise agreement and after four months from the Tariff Commissions approval thereof. The petitioner argues that it is incredible that during the interregnum of 19 months, the private respondent failed to discover the revisions/insertions in the final draft of the compromise agreement. Considering the premises, the petitioner submits, the private respondents filing of the Urgent Motion for and in behalf of HTC was merely an afterthought, to enable the latter to escape compliance with the terms and conditions of the Agreement. The petitioner further insists that the insertion of the contested phrase in the final draft of the compromise agreement was necessary although it may not be in the best interest of HTC. He posits that the falsehoods made by the private respondent in his Urgent Motion and Affidavit of Merit were material to the proceedings in the AntiDumping Office of the Tariff Commission because these were used to set aside the compromise agreement executed by the parties. In his Comment on the petition, the private respondent avers that the issues raised by the petitioner are factual, hence, improper in a petition for review on certiorari under Rule 45 of the Rules of Court. The determination of the existence of a probable cause is primarily an administrative sanction of the Secretary of Justice. He insists that the findings of the Justice Secretary should be accorded great respect, especially since the same were upheld by the CA. He asserts that the petitioner failed to establish in the CA and in this Court that the Justice Secretary committed a grave abuse of discretion amounting to excess or lack of jurisdiction in her resolution. The petition has no merit. The pivotal issue in this case is factual whether or not, based on the records, there was probable cause for the private respondents indictment for perjury. Rule 45 of the Rules of Court provides that only questions of fact may be raised in a petition for review on certiorari. Findings of facts of a quasi-judicial agency, as affirmed by the CA, are generally conclusive on the Court, unless cogent facts and circumstances of such a nature warranting the modification or reversal of the assailed decision were ignored, misunderstood or misinterpreted. Thus, the Court may delve into and resolve factual issues in exceptional cases. The petitioner has failed to establish that any such circumstance is present in the case at bar.22 The Court finds that the public respondent did not commit any grave abuse of discretion amounting to excess or lack of jurisdiction in issuing the assailed resolution, and that the CA did not commit any reversible error in its assailed decision and resolution. If at all the public respondent erred in issuing the assailed resolution, such is merely an error in the exercise of jurisdiction, reversible by a petition for review under Rule 43 of the Rules of Court especially so where, as in this case, the issues before the CA were factual and not legal. The absence or existence of probable cause in a given case involves a calibration and a reexamination of the evidence adduced by the parties before the Office of the City Prosecutor of Manila and the

probative weight thereof. The CA thus ruled correctly when it dismissed the petition before it. Probable cause, for purposes of filing a criminal information, has been defined as such facts as are sufficient to engender a well-founded belief that a crime has been committed and that the private respondent is probably guilty thereof. It is such a state of facts in the mind of the prosecutor as would lead a person of ordinary caution and prudence to believe or entertain an honest or strong suspicion that a thing is so. The term does not mean "actual or positive cause;" nor does it import absolute certainty. It is merely based on opinion and reasonable belief. Thus, a finding of probable cause does not require an inquiry into whether there is sufficient evidence to procure a conviction. It is enough that it is believed that the act or omission complained of constitutes the offense charged. Precisely, there is a trial for the reception of evidence of the prosecution in support of the charge."23 The determination of its existence lies within the discretion of the prosecuting officers after conducting a preliminary investigation upon complaint of an offended party.24 The Resolution of the Secretary of Justice declaring the absence or existence of a probable cause affirmed by the CA is accorded high respect. However, such finding may be nullified where grave abuse of discretion amounting to excess or lack of jurisdiction is established.25 Perjury is defined and penalized in Article 183 of the Revised Penal Code, thus: Art. 183. False testimony in other cases and perjury in solemn affirmation. The penalty of arresto mayor in its maximum period to prision correccional in its minimum period shall be imposed upon any person who, knowingly making untruthful statements and not being included in the provisions of the next preceding articles, shall testify under oath or make an affidavit upon any material matter before a competent person authorized to administer an oath in cases in which the law so requires. Any person who, in case of a solemn affirmation made in lieu of an oath, shall commit any of the falsehoods mentioned in this and the three preceding articles of this section shall suffer the respective penalties provided therein. Perjury is an obstruction of justice; its perpetration may affect the earnest concerns of the parties before a tribunal. The felony is consummated when the false statement is made.26 The seminal modern treatment of the history of perjury concludes that one consideration of policy overshadows all others the measures taken against the offense must not be so severe as to discourage aggrieved parties from lodging complaints or testifying.27 As quoted by Dean Wigmore, a leading 19th Century Commentator, noted that English law, "throws every fence round a person accused of perjury, for the obligation of protecting witnesses from oppression or annoyance, by charges, or threats of charges, of having made false testimony is far paramount to that of giving even perjury its deserts."28 Perjury is the willful and corrupt assertion of a falsehood under oath or affirmation administered by authority of law on a material matter.29 The elements of the felony are:

(a) That the accused made a statement under oath or executed an affidavit upon a material matter. (b) That the statement or affidavit was made before a competent officer, authorized to receive and administer oath. (c) That in that statement or affidavit, the accused made a willful and deliberate assertion of a falsehood. (d) That the sworn statement or affidavit containing the falsity is required by law or made for a legal purpose.30 A mere assertion of a false objective fact, a falsehood, is not enough. The assertion must be deliberate and willful.31 Perjury being a felony by dolo, there must be malice on the part of the accused.32 Willfully means intentionally; with evil intent and legal malice, with the consciousness that the alleged perjurious statement is false with the intent that it should be received as a statement of what was true in fact. It is equivalent to "knowingly." "Deliberately" implies meditated as distinguished from inadvertent acts.33 It must appear that the accused knows his statement to be false or as consciously ignorant of its truth.34 Perjury cannot be willful where the oath is according to belief or conviction as to its truth. A false statement of a belief is not perjury. Bona fide belief in the truth of a statement is an adequate defense.35 A false statement which is obviously the result of an honest mistake is not perjury. There are two essential elements of proof for perjury: (1) the statement made by the defendants must be proven false; and (2) it must be proven that the defendant did not believe those statements to be true.36 Knowledge by the accused of the falsity of his statement is an internal act. It may be proved by his admissions or by circumstantial evidence. The state of mind of the accused may be determined by the things he says and does, from proof of a motive to lie and of the objective falsity itself, and from other facts tending to show that the accused really knew the things he claimed not to know.37 A conviction for perjury cannot be sustained merely upon the contradictory sworn statements of the accused. The prosecution must prove which of the two statements is false and must show the statement to be false by other evidence than the contradicting statement.38 The rationale of this principle is thus: Proof that accused has given contradictory testimony under oath at a different time will not be sufficient to establish the falsity of testimony charged as perjury, for this would leave simply one oath of the defendant as against another, and it would not appear that the testimony charged was false rather than the testimony contradictory thereof. The two statements will simply neutralize each other; there must be some corroboration of the contradictory testimony. Such corroboration, however, may be furnished by evidence aliunde tending to show perjury independently of the declarations of testimony of the accused.39

The term "material matter" is the main fact subject of the inquiry, or any circumstance which tends to prove that fact, or any fact or circumstance which tends to corroborate or strengthen the testimony related to the subject of the inquiry, or which legitimately affects the credence of any witness who testified. In this case, a matter is material if it has a material effect or tendency to influence the Commission in resolving the motion of HTC one way or the other. The effects of the statement are weighed in terms of potentiality rather than probability.40 The prosecution need not prove that the false testimony actually influenced the Commission.41 The private respondent did err when he declared, in the motion of the HTC and his affidavit, that it was the petitioner who invited him to a conference. The truth of the matter is that it was Gonzales who did so. Nonetheless, the issue of who called for a conference is of de minimis importance because, after all, the parties agreed to meet after having been prodded by the Chairman of the Commission to settle the case instead of going through the tribulations and expenses of a protracted litigation. No adverse inference (related to the merits of their respective contention in this case) can be ascribed as to whoever called the conference. After all, parties are even urged to settle cases amicably. Besides, as correctly declared by the Second Assistant City Prosecutor in her resolution: The allegation that it was complainant who invited respondent to the meeting may not be a deliberate lie. Respondent may not have known who arranged the meeting, but as he was able to talk to complainant, he presumed that it was complainant who extended the invitation. Moreover, the identity of the one who initiated the meeting is not material considering that there was a meeting of the minds of the Parties.42 The Court also agrees with the contention of the private respondent that the copy of the first agreement transmitted to him was a fax copy of the draft, and that, contrary to the allegations of the private respondent, such agreement was prepared by Borgonia and not by the petitioner. As gleaned from page two of the agreement, the particulars of the residence certificates of the petitioner and the private respondent were not typewritten, hence, cannot as yet be notarized. As claimed by the private respondent, a copy was transmitted to him for his personal review, and if he found it to be in order, the petitioner and Borgonia would prepare and sign the agreement and give it back to him for review and signature, with the particulars of his community tax certificate indicated in the final copy. Undeniably, the identity of the person who prepared or caused to prepare the compromise agreement subsequently signed by the petitioner and the private respondent was of prime importance because only such person should be charged for perjury. The private respondent erroneously stated in his Affidavit of Merit and Urgent Motion that it was the petitioner who prepared the agreement that was signed by the parties. It turned out that it was Borgonia who prepared the first and the second copies. However, the private respondent cannot be held liable for perjury since it was Borgonia who prepared the agreement and not the petitioner. The Court agrees with the following contention of the private respondent in his counter-affidavit: 4.6 While complainant claims that it was not he but Mr. Borgonia who made the insertions, there is no doubt that, indeed, the insertions were made into the document. Since complainant is the signatory to the Compromise Agreement, it is but

natural for one to presume that he had made the insertions. At the same time, I can not be expected to know that it was Mr. Borgonia, as claimed by complainant, who made such insertions.43 Indeed, Borgonia was merely the Manager of the Management Information Group of RCP, whereas the petitioner was no less than its Senior Vice President and Assistant General Manager, Borgonias superior. Unless and until approved by the petitioner, any agreement prepared by Borgonia was merely a piece of paper, barren of any legal effect. In this case, the compromise agreement prepared by Borgonia had the petitioners imprimatur. Borgonia was merely a witness to the agreement. For all legal intents and purposes, the petitioner had the compromise agreement prepared under his supervision and control. It cannot thus be concluded that the private respondent made a deliberate falsehood when he alleged that the agreement was prepared by the petitioner. The Court is not persuaded by the petitioners claim that, during the conference, he and the private respondent agreed that, based on the BIS report, the normal value of the imported refractory bricks per metric ton was DM 1,200, and that such report would be used as basis for the revision of the price policy and structure of HTC. It bears stressing that, during the conference, the petitioner and the private respondent had agreed on three aspects of the case: (1) based on the prima facie findings of the BIS, the normal value of the goods per meter ton was DM 1,200 and that the actual export price of HTC was below the fair market value; (2) to terminate the case, HTC will have to adjust and revise its price policy and structure for imported refractory bricks to conform to R.A. No. 7843 and rules and regulations implementing the law; and (3) if HTC fails or refuses to comply with its undertaking, RCP will be entitled to a writ of execution without need of demand. However, the petitioner and the private respondent could not have agreed on such base price; the petitioner insisted on the amount recommended by the BIS (DM 1,200) while the private respondent insisted on DM 950. There was an impasse. By way of a compromise, the parties agreed to do away with the BIS recommended base value and agreed for HTC to base the normal value of the importation per metric ton under R.A. No. 7843 and the rules issued implementing the law. This is gleaned from the affidavit of Borgonia: 13. During the meeting, Mr. von Sprengeisen suggested that the value of DM 1,050/ton be applied as the price at which Hamburg Trading would sell German-made magnesite-based refractory bricks in the Philippines. Mr. Villanueva did not agree to the suggested value, as we considered it low. In the end, both parties decided to base the determination of the price on the provisions of Republic Act No. 7843 and its implementing rules and regulations. 44 Borgonia prepared the first compromise agreement and incorporated therein the agreement of the petitioner and the private respondent arrived at during the conference, thus: 1. For the purpose of buying peace and by way of concession in order to end litigation, the SECOND PARTY undertakes and commits to reform its pricing policy and structure with respect to refractory products being imported interest sold in the

Philippines in accordance with the provisions of Republic Act 7843 and its implementing rules and regulations.45 If, as claimed by the petitioner in his Affidavit-Complaint, he and the private respondent had agreed that HTC will use as basis for its price policy and structural revision, the BIS report, for sure, Borgonia would have incorporated the said agreement in the first compromise agreement. He did not, and Borgonia has not offered any explanation for such failure. The petitioner signed the draft of the agreement without any plaint or revision. It was only in the second compromise agreement that was later signed by the petitioner and the private respondent that Borgonia incorporated the phrase "based on the findings of the BIS." Borgonia and the petitioner made the insertion on their own, without the a priori consent of the private respondent. The Court is not convinced by the petitioners contention (and that of Borgonia in his Affidavit) that the petitioner and the private respondent had agreed to leave the final determination of the base value or price of importation per metric ton to a third party (BIS). The private respondent could not have agreed to the use of the BIS report because, as mentioned, he had strenuously objected to its use as basis for the revision of its price policy and structure. For HTC to admit that the BIS finding of DM 1,200 per metric ton was the normal value of the refractory bricks from Germany for the purpose of resolving the anti-dumping case is one thing; but for HTC to agree to be bound by the BIS recommendation for the purpose of revising its price policy and structure is completely a different matter. With the petitioner and the private respondents admission of the prima facie findings of the BIS, the Commission can prepare its recommendation to the Special Committee on the protest of the RCP to the HTC importation subject of the case. Thereafter: D. The Special Committee shall, within fifteen (15) days after receipt of the report of the Commission, decide whether the article in question is being imported in violation of this section and shall give due notice of such decision. In case the decision of dumping is in the affirmative, the special committee shall direct the Commissioner of Customs to cause the dumping duty, to be levied, collected and paid, as prescribed in this section, in addition to any other duties, taxes and charges imposed by law on such article, and on the articles of the same specific kind or class subsequently imported under similar circumstances coming from the specific country. In the event that the Special Committee fails to decide within the period prescribed herein, the recommendation of the Commission shall be deemed approved and shall be final and executory.46 On the matter of the revision or adjustment of the price policy and structure of HTC, the parties had agreed to accomplish the same in due time. It goes without saying that the RCP retained the right to object to or protest to the price policy and structure revision of HTC. The agreement of the petitioner and the private respondent not to be bound by the base value in the BIS report for the revision of its price policy and structure is not unexpected because: (1) the findings of the BIS are only prima facie, meaning to say, not conclusive, and HTC was accorded a chance to base its price policy and structure on evidence and informations other than those contained in the BIS report; (2) the

normal value of the imported refractory bricks may fluctuate from time to time, hence, the need for any importer to revise its price policy and structure from time to time; and (3) the base value to be used by HTC in revising its price policy would be scrutinized and resolved initially by the Commission, by the Special Committee and by the Court of Tax Appeals on appeal. The process agreed upon by the petitioner and the private respondent was not only practical and fair, but in accord with law as well. In fine, the private respondent did not commit any falsehood in the Urgent Motion and his Affidavit of Merit when he declared that he and the petitioner put behind them the BIS report, and agreed to use R.A. No. 7843 and the rules and regulations implementing the same to determine the base price for the revision of the price policy and structure of HTC. Admittedly, the respondent did not object to the offending phrase before and after signing the agreement and for a considerable stretch period until HTC filed its motion. However, we do not agree with the contention of the petitioner that such failure of the respondent to object to the offending phrase for such period of time amounted to an admission that, indeed, the private respondent was aware of the offending phrase in the Agreement, and to his agreement thereto; and estopped the private respondent from alleging that he was deceived by the petitioner into signing the Compromise Agreement. In his appeal to the DOJ, the private respondent declared that: 3.9 True, respondent-appellant may have been remiss and lacking in circumspect in failing to review the hard copy Compromise Agreement and notice the insertion. Being in the trading business, respondent-appellant personally handles hundreds of documents daily and is on the telephone for most of the day communicating with suppliers and customers. And he had no reason to believe that either complainantappellee or Mr. Borgonia would make such an insertion, especially after respondentappellant had accepted the fax Compromise Agreement wording and conveyed such acceptance to complainant-appellees office. Respondent-appellant also had to reason to even think that such a surreptitious insertion would be made; after all, he had a very warm and friendly meeting with complainant-appellee and Mr. Borgonia and came out of it with a feeling that he could trust complainant-appellee (p. 4, Annex "C"). 3.10 Hence, when respondent-appellant alleges that he was induced to sign the hard copy Compromise Agreement through fraud and deceit, respondent-appellant honestly believes that he was misled into signing it. He was misled by the fact that he had been sent the fax Compromise Agreement by complainant-appellee, that he had conveyed its acceptability to complainant-appellee and now requested for the hard copy for execution, that he had been led to trust that the findings and recommendation of the BIS were being put behind them and that complainantappellee had agreed to such a compromise. The transmittal of the hard copy Compromise Agreement, without any notice or mention by complainant-appellee or complainant-appellees office that it contained insertions or wording different from the fax Compromise Agreement, and on respondent-appellants understanding that the wording of the hard copy Compromise Agreement would be exactly the same as the fax Compromise Agreement, constitutes the fraud or deceit allegedly by respondent-appellant.47

In his rejoinder-affidavit, the private respondent explained that: 2. Again, contrary to the allegations in the Reply-Affidavits, I was unable to review the Compromise Agreement delivered by Mr. Gutierrez on 22 April 1997 as I was busy with numerous calls and business at the time it was delivered. Also, I had been led to believe in our meetings with Mr. Villanueva and Mr. Borgonia that I could trust them. So, after having seen the fax Compromise Agreement and being amenable to it, I trusted that they would send a genuine hard copy. As it turned out, I was mistaken.48 Moreover, even before filing the Urgent Motion and signing the Affidavit of Merit, the private respondent tried for several times to contact the petitioner, but the latter failed to return his calls. This reinforced the suspicion of the private respondent that the insertion of the offending phrase was not, after all, inadvertent but deliberate, calculated to deceive him to the prejudice of HTC. The private respondent may be blamed for putting too much trust and confidence on the petitioner, but he certainly cannot be indicted for perjury for lack of probable cause. The petitioner failed to append to his petition records of the Commission that the private respondent appeared for HTC, on May 9, 1997, before the Commission for the hearing on the Compromise Agreement; and showing that the private respondent did not object thereto. IN LIGHT OF ALL THE FOREGOING, the petition is DENIED for lack of merit. The assailed Decision of the Court of Appeals in CA-G.R. SP No. 76999 is AFFIRMED. Costs against the petitioner. SO ORDERED.

G.R. No. 169141 December 6, 2006 [Formerly G.R. Nos. 159854-56] PEOPLE OF THE PHILIPPINES, appellee, vs. ROMEO DEL MUNDO y STA. MARIA, appellant. TINGA, J.: Romeo del Mundo y Sta. Maria (appellant) was charged before the Regional Trial Court (RTC) of Makati, Branch 135, for violation of Sections 5 and 11, Article II of Republic Act (R.A.) No. 9165 in two (2) Informations that read: CRIMINAL CASE No. 02-3038 That on or about the 18 of October 2002, in the City of Makati, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, without the corresponding license or prescription, did then and there willfully, unlawfully and feloniously sell, give away, distribute and transport Methylamphetamine Hydrochloride (shabu), a regulated drug, weighing ZERO POINT ZERO THREE GRAM (0.03 gram) contained in one heat-sealed transparent plastic sachet. CONTRARY TO LAW.1 CRIMINAL CASE No. 02-3039 That on or about the 18th day of October 2002, in the City of Makati, Philippines and within the jurisdiction of this Honorable Court, the abovenamed accused, not being lawfully authorized to possess or otherwise use any dangerous drug and without corresponding license or prescription, did then and there willfully, unlawfully and feloniously have in his possession, direct custody and control zero point zero three (0.03) gram of Methylamphetamine Hydrochloride (shabu), which is a dangerous drug in violation of the above cited law. CONTRARY TO LAW.2 Upon arraignment, appellant pleaded not guilty to the charges.3 Trial ensued. After trial, his co-accused Susan Pugal was acquitted from a separate charge for violation of Section 11, Article II, R.A. No. 9165. However, in a Decision4 dated 8 September 2003, the RTC found appellant guilty beyond reasonable doubt of the crime charged. The RTC disposed as follows: WHEREFORE, it appearing that the guilt of the accused ROMEO DEL MUNDO y STA. MARIA was proven beyond reasonable doubt for violation of Sections 5 and 11, Article II of R.A. [No.] 9165, as principal, with no mitigating or aggravating circumstances, accused is hereby sentenced: 1. In Criminal Case No. 02-3038, to suffer life imprisonment and to pay a fine of P500,000.00;
th

2. In Criminal Case No. 02-3039, to suffer imprisonment for a period of twelve [12] years and one [1] day, as minimum, to twenty [20] years and a fine of P300,000.00; and 3. To pay the costs. It appearing that the guilt of accused SUSAN PUGAL y PINGOL in Criminal Case No. 02-3040 was not proven beyond reasonable doubt, she is hereby acquitted of the crime of violation of Section 11 of RA [No.] 9165. Let the zero point zero nine [0.09] gram of Methylamphetamine Hydrochloride be turned over to the PDEA for proper disposition. SO ORDERED.5 Culled from the records and decisions of the courts below, the antecedents follow. The office of Cluster 2 of the Makati Anti-Drug Abuse Council (MADAC) received a report from a confidential informant that a certain Romy, later identified as appellant, was engaged in the selling of prohibited drugs, particularly shabu. Proceeding from this information, the head of MADAC Cluster 2 formed a team to conduct a buy-bust operation and designated MADAC agent Norman A. Bilason (Bilason) as the poseurbuyer, to be provided with two (2) marked P100 bills.67 On 18 October 2002, at around 5:00 o'clock in the afternoon, the informant accompanied Bilason to the place where appellant was reported to be plying his trade. Meantime, the rest of the MADAC and Drug Enforcement Unit (DEU) operatives positioned themselves at a strategic place to monitor the transaction.8 Bilason and the informant approached appellant who was then standing at the corner of Pasong Tirad and Ponte Streets in Tejeros, Makati and talking to his female companion, later identified as Pugal and allegedly a 'scorer' according to the informant. The informant introduced Bilason to appellant as a buyer of shabu. Appellant asked Bilason how much he intended to buy. Bilason replied, "Dos lang, panggamit lang." Then, appellant received the P200.00 marked money from Bilason while handing the latter one (1) plastic sachet9 of shabu which came from the left pocket of his pants. Next, Bilason gave the pre-arranged signal. The rest of the team closed in. Bilason introduced himself as a member of MADAC and, with the team, placed appellant and Pugal under arrest. Two (2) plastic sachets10 and the marked money were recovered from appellant while one (1) plastic sachet11 was confiscated from Pugal. Appellant and Pugal were duly apprised of the nature of their arrest and their constitutional rights.12 Afterwards, appellant and Pugal were brought to the DEU office for proper disposition. Tests conducted on the plastic sachet yielded positive results for Methylamphetamine Hydrochloride.13 The parties stipulated that the physical science report14 was duly accomplished after the specimens of shabu had been subjected to laboratory tests. Hence, the prosecution dispensed with the presentation of the Forensic Chemist. The parties likewise stipulated that: (1) MADAC agent Diomedes Camporaso confiscated from

Pugal one [1] plastic sachet suspected to contain shabu; and (2) SPO2 Wilmer Antonio was the team leader of the buy-bust operation wherein he assisted in the arrest of appellant.15 Appellant, a 63-year old jobless resident of Tejeros, Makati, interposed the defense of denial. He claimed that there was never a time in his life that he sold shabu. He alleged that in the afternoon of 18 October 2002, he was inside his house lying down with his grandchild. He was awakened from sleep when police officers kicked the door open and entered the house. The police officers forced him to reveal the whereabouts of the shabu and the money. Appellant replied that he does not sell shabu. Then, the police officers searched the house but were not able to find anything. Subsequently, appellant was asked to go out of the house and board the police officers' service vehicle for allegedly selling shabu. Appellant entrusted his grandchild to his wife's sibling.16 At the DEU office, appellant was told to escape but he did not as he claimed not to have done anything wrong. Ten (10) minutes after, Pugal arrived. Appellant came to know of the charges against him on the day he was arrested. Allegedly, these are false charges but appellant failed to file any complaint against the arresting officer for lack of money.17 Appellant was found guilty as charged and the judgment of conviction was elevated to the Court for automatic review. In a Resolution18 dated 6 September 2004 of the Court in G.R. Nos. 159854-56,19 the cases were transferred to the Court of Appeals pursuant to the Court's ruling in People v. Mateo.20 Before the Court of Appeals, appellant argued that the trial court erred in: (1) according greater weight to the evidence adduced by the prosecution and disregarding the defense of denial interposed by appellant; and (2) finding appellant guilty beyond reasonable doubt of the offenses charged.21 The Court of Appeals in a Decision22 dated 27 June 2005, in CA-G.R. CR No. 00232, affirmed with modifications the decision of the trial court. The dispositive portion of the decision reads: WHEREFORE, the appealed Decision is AFFIRMED with MODIFICATION. Appellant Romeo del Mundo y Sta. Maria is hereby ACQUITTED in Crim. Case No. 02-3039. His conviction in Crim. Case No. 02-3038 for violation of Section 5, Article II of RA No. 9165 and all other aspects of the Decision are maintained. SO ORDERED.23 The Court of Appeals held that in Criminal Case No. 02-3038, the details of the sale of shabu between appellant and the MADAC operatives have been clearly and sufficiently shown.24 However, the appellate court entertained doubts with respect to appellant's culpability in Criminal Case No. 02-3039 resulting to his acquittal therein. The appellate court observed that the prosecution did not produce evidence to show that appellant was actually in possession of the second sachet supposedly containing 'shabu.'25

Appellant is now before the Court submitting for resolution the same matters argued before the Court of Appeals, though this time he questions only his conviction in Criminal Case No. 02-3038, for the illegal sale of shabu, as he was acquitted of the charge in Criminal Case No. 02-3039 by the appellate court. Through his Manifestation (In Lieu of Supplemental Brief)26 dated 14 November 2005, appellant stated that will not file a Supplemental Brief and in lieu thereof, he will adopt the Appellant's Brief he had filed before the appellate court. The Office of the Solicitor General likewise manifested that it is no longer filing a supplemental brief.27 Appellant principally contends that the non-presentation before the trial court of the informant and witnesses other than MADAC agents Bilason and Camporaso militates against the trustworthiness of the prosecution's theory.28 The Court is not persuaded. The pertinent provision of Article II of R.A. 916529 reads as follows: SEC. 5. Sale, Trading, Administration, Dispensation, Delivery, Distribution and Transportation of Dangerous Drugs and/or Controlled Precursors and Essential Chemicals.- The penalty of life imprisonment to death and a fine ranging from Five hundred thousand pesos (P500,000.00) to Ten Million Pesos (P10,000,000.000) shall be imposed upon any person, who, unless authorized by law, shall sell, trade, administer, dispense, deliver, give away to another, distribute, dispatch in transit or transport any dangerous drug, including any and all species of opium poppy regardless of the quantity and purity involved, or shall act as a broker in any of such transactions. The elements necessary in every prosecution for the illegal sale of 'shabu' are: (1) the identity of the buyer and the seller, the object and the consideration; and (2) the delivery of the thing sold and the payment therefor.30 What is material is the proof that the transaction or sale transpired, coupled with the presentation in court of the corpus delicti. Corpus delicti is the body or substance of the crime, and establishes the fact that a crime has been actually committed. It has two elements, namely: (1) proof of the occurrence of a certain event; and (2) some person's criminal responsibility for the act.31 MADAC agent Bilason, the poseur-buyer, clearly established that an illegal sale of shabu actually took place and that appellant was the author thereof. He testified as follows: Fiscal Moreno to witness: Q: How did you come to know the accused in this case? A: On October 18, 2002, we arrested both accused Romeo del Mundo and Susan Pugal. Q: For what particular offense? A: For violation of Sections 5 and 11.

Q: Did you conduct a buy-bust operation against said accused? A: Yes, sir. Q: Was the buy bust operation successful? A: Yes, sir. Q: In connection with the buy-bust operation that you conducted against the accused, do you recall having executed a Joint Affidavit of Arrest? A: Yes, sir. Q: If that affidavit will be shown to you, will you be able to identify the same? A: Yes, sir. Q: I am showing to you a Pinagsanib Na Sinumpaang Salaysay. Please go over this and tell the Court if this is the same affidavit that you executed? A: Yes, sir. Fiscal Moreno: This was previously marked as Exhibits A and A-1. xxxx Fiscal Moreno: For purposes of expediency and to save the material time of the Honorable Court, we propose for stipulation with the defense that this Pinagsanib na Sinumpaang Salaylay (sic) will form part as the direct testimony of the witness. Atty. Quiambao: We agree, your Honor. xxxx
32

allegedly conducted his transactions. After introductions were made, Bilason handed the marked money to appellant while the latter in turn handed him one (1) plastic sachet containing shabu. Appellant was thereafter immediately arrested.34 The result of the laboratory examination conducted on the white crystalline substance confiscated from appellant and forwarded to the crime laboratory of the Philippine National Police confirms the testimony that indeed, what was sold by appellant was shabu. The results of the examination states: FINDINGS: Qualitative examination conducted on the above-stated specimens gave POSITIVE result to the tests for the presence of Methylamphetamine hydrochloride, a dangerous drugs. x x x x CONCLUSION: Specimens A to C contains Methylamphetamine hydrochloride, a dangerous drugs. x x x x35 Moreover, Bilason was able to present and identify in court the confiscated drugs and the marked money, which are corroborating pieces of evidence of the corpus delicti, thus: Fiscal Moreno: Q: You likewise stated in your Affidavit that you were able to buy shabu from the accused and confiscated another plastic sachets (sic) containing shabu. If those items will be shown to you, will you be able to identify the same? A: Yes, sir. Q: I am showing to you a white envelope, do you know the contents of this envelope? A: Yes, sir. Three plastic sachets. Q: Will you go over these plastic sachets and tell us which of these plastic sachets you were able to buy from accused Del Mundo? A: This one with marking "RDMS." Fiscal Moreno:

In the Pinagsanib na Sinumpaang Salaysay, Bilason together with SPO2 Wilmer Antonio and MADAC Agent Camporaso narrated in detail the sale of shabu made by appellant to Bilason. Based on a tip from a confidential informant, a team composed of MADAC and DEU agents was formed to conduct a buy-bust operation. The team proceeded to the place wherein, according to the confidential informant, appellant

33

We request that this white envelope be marked as Exhibit "E" and this plastic sachet with marking "RDMS" be marked as E[x]hibit "E1."36

xxxx Fiscal Moreno: Q: You said in your Pinagsanib na Sinumpaang Salaysay that in conducting the buy bust operation against the accused, you used buy bust money consisting of two pieces of One Hundred Peso bills. If that two pieces of One Hundred Peso bills will be shown to you, will you be able to identify the same? A: Yes, sir. Q: I am showing to you two pieces of One Hundred Peso bills, will you please tell us if these are the same buy bust money which you used in conducting the buy bust operation against the accused? A: This is the photocopy of the buy bust money we used in the operation. x x x x37 A buy-bust operation is a form of entrapment whereby ways and means are resorted to for the purpose of trapping and capturing the lawbreakers in the execution of their criminal plan.38 The delivery of the contraband to the poseur-buyer and the receipt by the seller of the marked money successfully consummates the buy-bust transaction between the entrapping officers and the accused.39 Unless there is clear and convincing evidence that the members of the buy-bust team were inspired by any improper motive or were not properly performing their duty, their testimony on the operation deserves full faith and credit.40 It is very clear from the testimony of Bilason and the other members of the team bear that their narration of events was positive, probable and in accord with human experience. It bears the badges of truth, such that it is difficult for a rational mind not to find it credible. Thus, we find no reason to deviate from the findings of the trial court and the appellate court. In addition, the presumption of regularity in the performance of official duties has not been controverted; hence, the Court is bound to uphold it. Appellant failed to prove that in testifying against him, Bilason and the other members of the team were motivated by reasons other than the duty to curb the sale of dangerous drugs. There is no proof of any ill motive or odious intent on the part of the police authorities to impute falsely such a serious crime to appellant.41 On the non-presentation of the informant, the rule is that his presentation in an illegal drugs case is not essential for the conviction nor is it indispensable for a successful prosecution because his testimony would merely be corroborative and cumulative. Informants are generally not presented in court because of the need to hide their identity and preserve their invaluable service to the police. Here, the agents directly testified regarding the entrapment, and the testimony of the informant would merely have been corroborative.

Appellant's defenses of denial and alibi are unavailing. It bears emphasis that appellant was caught in flagrante delicto in a legitimate entrapment operation conducted by the MADAC and DEU agents. Hence, his identity as the person who sold the dangerous drug to Bilason cannot be doubted anymore. Such positive identification prevails over his weak defenses of denial and alibi. In People v. Isnani,42 we ruled that: The defenses of denial and alibi have been invariably viewed by us with disfavor for it can easily be concocted but difficult to prove, and they are common and standard defense ploys in most prosecutions arising from violations of the Dangerous Drugs Act.43 Appellant's contention that the police authorities intruded his house and that he only failed to file charges against them due to lack of money could neither be believed. Appellant did not bother to present any evidence to support this contention. It likewise bears stressing that the police authorities are presumed to have performed their duty in a regular manner.44 In fine, the trial court and the appellate court correctly held that appellant is guilty of the crime of illegal sale of shabu.' WHEREFORE, the Decision dated 27 June 2005 of the Eighth Division of the Court of Appeals in CA G.R. CR No. 00232 finding appellant Romeo del Mundo y Sta. Maria guilty beyond reasonable doubt of the crime charged in Criminal Case No. 02-3038 for violation of Section 5, Article II of R.A. No. 9165 is AFFIRMED. SO ORDERED.