Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. 93177
August 2, 1991
B/GEN. JOSE COMENDADOR, B/GEN, MARIELO BLANDO, CAPT. DANILO PIZARRO, CAPT.
MANUEL ISON, COL. LUISITO SANCHEZ, LTC. ROMELINO GOJO, LTC. ARSENIO TECSON,
LTC. RAFAEL GALVEZ, LTC. TIBURCIO FUSILLERO, LTC. ERICSON AURELIO, LTC.
JACINTO LIGOT LTC. FRANKLIN BRAWNER, MAJ. ALFREDO OLIVEROS, MAJ. CESAR DE
LA PERA, MAJ. LEUVINO VALENCIA, CAPT. FLORENCIO FLORES, CAPT. JAIME JUNIO,
CAPT. DANILO LIM, CAPT. ELMER AMON, CAPT. VERGEL NACINO, and LT. JOEY
SARROZA, petitioners,
vs.
GEN. RENATO S. DE VILLA, CHIEF OF STAFF, AFP, THE PTI INVESTIGATING PANEL
COMPOSED OF: COL. MANUEL S. MENDIOLA, COL. VIRTUD NORBERTO L. DAGZA MAJ.
FELIX V. BALDONADO and MAJ. ESTELITO L. PORNEA and GENERAL COURT-MARTIAL
NO. 14 COMPOSED OF: B/GEN. DEMETRIO CAMUA COL. HERMINIO A. MENDOZA, COL.
ERNESTO B. YU, COL. ROMEO ODI, COL. WILLY FLORENDO, COL. DIONY A. VENTURA
and CAPT. FRANCISCO T. MALLILLIN, respondents.
No. 95020
August 2, 1991
B/GEN. DEMETRIO CAMUA, COL. HERMIMO A. MENDOZA, COL. ERNESTO B. YU, COL.
ROMEO ODI, COL. WILLY FLORENDO, COL. DIONY A. VENTURA, and CAPT. FRANCISCO T.
MALLILLIN, petitioners,
vs.
HON. MIANO C. ASUNCION, Presiding Judge, Branch 104, REGIONAL TRIAL COURT, Q.C.,
LTC. JACINTO LIGOT PA., respondents.
No. 96948
August 2, 1991
B/GEN. JOSE COMENDADOR, B/GEN. MARCELO BLANDO, CAPT. DANILO PIZARRO PN,
CAPT. MANUEL ISON PN, LTC. ROMELINO GOJO PN (M), LTC. ARSENIO TECSON PA, LTC.
RAFAEL GALVEZ PA, LTC. TIBURCIO FUSILLERO PA, LTC. ERICSON AURELIO PA, LTC.
JACINTO LIGOT PA, LTC. FRANKLIN BRAWNER PA, MAJ. ALFREDO OLIVEROS PA, MAJ.
CESAR DE LA PENA PN (M): MAJ. LEUVINO VALENCIA PA, CAPT. FLORENCIO FLORES PA,
CAPT. JAIME JUNIO PA, CAPT. DANILO LIM PA, CAPT. ELMER AMON PAF CAPT. VERGEL

NACINO, and LT. JOEY SARROZA, petitioners,

vs.
B/GEN. DEMETRIO CAMUA COL. HERMINIO A. MENDOZA, COL. ERNESTO B. YU, COL.
ROMEO ODI COL. WILLY FLORENDO, COL. DIONY A. VENTURA, and CAPT. FRANCISCO T.
MALLILLIN PRESIDENT AND MEMBERS OF GENERAL COURT-MARTIAL NO. 14,
respondents.
No. 97454
August 2, 1991
AFP CHIEF OF STAFF LT. GEN. RODOLFO BIAZON, DEPUTY CHIEF OF STAFF MAJOR
GEN. ALEXANDER AGUIRRE, PNP DIRECTOR GENERAL MAJOR GEN. CESAR NAZARENO
and LT. COL. ALBERTO OLARIO, Commanding Officer of the PNP/INP Detention Center/Jail,
petitioners,
vs.
HON. ANTONIO P. SOLANO, Presiding Judge, Regional Trial Court, Quezon City, Branch 86,
CAPTAIN REYNALDO S. RAFAEL, 1 LT SERVANDO A. BAOANAN PN(M), 1 LT. WILFREDO
JIMENEZ PAF 1 LT. ATANACIO T. MACALAN JR PMM 2LT ELISEO T. RASCO PC, 2LT JONAS
CALLEJA PC, 2LT JAIRUS JS GELVEZON III PMM 2LT JOSELITO CABREROS PMM 2LT
MEMEL ROJAS PN(M) and 2LT HERMINIO L. CANTACO PC, respondents.
Armando M. Marcelo and Rainier L. Madrid for petitioners Luisito Sanchez, Tiburcio Fusillero,
Ericson Aurelio, Levino Valencia, Danilo Arnon Vergel Nacino, Florencio Flores, Benigno Junio
and Joey Sarroza.
Manuel Q. Malvar for Rafael Galvez and Danny Lim.
Manuel E. Valenzuela for Arsenio Tecson
Mariano R. Santiago for Alfredo Oliveros.
Ricardo J.M. Rivera for Manuel Ison.
Castillo, Laman, Tan and Pantaleon for Danilo Pizarro.
Alfredo Lazaro for Romelino Gojo.
Manuel A. Barcelona, Jr. for Jose Comendador.
Jonathan B.S. Rebong and Efren C. Carag for Marcelo Blando.
Pablito V. Sanidad for Franklin Brawner and Ericson Aurelio.
Efren C. Moncupa for All Tecson.
M.M. Lazaro & Associates for respondents Ligot and Ison .
Baldomero S.P. Gatbonton, Jr. for Jacinto Ligot.
Salvador B. Britanico for Cesar de la Pena.
Gilbert R.T. Reyes for Danilo Pizarro.
Ponce Enrile, Cayetano, Reyes & Manalastas for petitioners in G.R. No. 93177.
The Solicitor General for respondents.
CRUZ, J.:p
These four cases have been consolidated because they involve practically the same parties and
related issues arising from the same incident.
The petitioners in G.R. Nos. 93177 and 96948 and the private respondents in G.R. Nos. 95020
and 97454 are officers of the Armed Forces of the Philippines facing prosecution for their alleged
participation in the failed coup d' etat that took place on December 1 to 9, 1989.
The charges against them are violation of Articles of War (AW) 67 (Mutiny), AW 96 (Conduct
Unbecoming an Officer and a Gentleman) and AW 94 (Various Crimes) in relation to Article 248 of

the Revised Penal Code (Murder).

In G.R. No. 93177, which is a petition for certiorari, prohibition and mandamus, they are
questioning the conduct of the Pre-Trial Investigation PTI Panel constituted to investigate the
charges against them and the creation of the General Court Martial GCM convened to try them.
In G.R. No. 96948, the petitioners, besides challenging the legality of GCM No. 14, seek certiorari
against its ruling denying them the right to peremptory challenge as granted by Article 18 of Com.
Act No. 408.
In G.R. No. 95020, the orders of the respondent judge of the Regional Trial Court of Quezon City
are assailed on certiorari on the ground that he has no jurisdiction over GCM No. 14 and no
authority either to set aside its ruling denying bail to the private respondents.
In G.R. No. 97454, certiorari is also sought against the decision of the Regional Trial Court of
Quezon City in a petition for habeas corpus directing the release of the private respondents.
Jurisdictional objections are likewise raised as in G.R. No. 95020.
I
Before the charges were referred to GCM No. 14, a Pre-Trial Investigation PTI Panel had been
constituted pursuant to Office Order No. 16 dated January 14, 1990, to investigate the petitioners
in G.R. Nos. 93177 and 96948. The PTI Panel issued a uniform subpoena dated January 30,
1990, individually addressed to the petitioners, to wit:
You are hereby directed to appear in person before the undersigned Pre-Trial Investigating
Officers on 12 Feb 90 9:00 a.m. at Kiangan Hall, Camp Crame Quezon City, then and there to
submit your counter-affidavit and the affidavits of your witnesses, if any, in the pre-trial
investigation of the charge/charges against you for violence of AWs _______________. DO NOT
SUBMIT A MOTION TO DISMISS.
Failure to submit the aforementioned counter-affidavits on the date above specified shall be
deemed a waiver of your right to submit controverting evidence.
On the same date, the petitioners acknowledged receipt of a copy of the charge sheet, sworn
statements of witnesses, and death and medical certificates of victims of the rebellion.
At the first scheduled hearing, the petitioners challenged the proceedings on various grounds,
prompting the PTI Panel to grant them 10 days within which to file their objections in writing This
was done through a Motion for Summary Dismissal dated February 21, 1990.
In a resolution dated February 27,1990, the PTI Panel denied the motion and gave the petitioners
5 days from notice to submit their respective counter-affidavits and the affidavits of their witnesses.
On March 7, 1990, the petitioners verbally moved for reconsideration of the foregoing denial and
the PTI Panel gave them 7 days within which to reduce their motion to writing. This was done on
March 14,1990.
The petitioners now claim that there was no pre-trial investigation of the charges as mandated by
Article of War 71, which provides:
Art. 71. Charges Action upon. Charges and specifications must be signed by a person subject
to military law, and under the oath either that he has personal knowledge of, or has investigated,
the matters set forth therein and that the same are true in fact, to the best of his knowledge and
belief.
No charge will be referred to a general court-martial for trial until after a thorough and impartial
investigation thereof shall have been made. This investigation will include inquiries as to the truth
of the matter set forth in said charges, form of charges, and what disposition of the case should be
made in the interest of justice and discipline. At such investigation full opportunity shall be given to
the accused to cross-examine witnesses against him if they are available and to present anything

he may desire in his own behalf, either in defense or mitigation, and the investigating officer shall
examine available witnesses requested by the accused. If the charges are forwarded after such
investigation, they shall be accompanied by a statement of the substance of the testimony taken
on both sides. (Emphasis supplied.)
They also allege that the initial hearing of the charges consisted merely of a roll call and that no
prosecution witnesses were presented to reaffirm their affidavits. while the motion for summary
dismissal was denied, the motion for reconsideration remains unresolved to date and they have
not been able to submit their counter-affidavits.
At the hearing of May 15, 1990, the petitioners in G.R. No. 96948 manifested that they were
exercising their right to raise peremptory challenges against the president and members of GCM
No.14. They invoked Article 18 of Com. Act No. 408 for this purpose. GCM No. 14 ruled, however,
that peremptory challenges had been discontinued under P.D. No. 39.
In G.R. No. 95020, Ltc Jacinto Ligot applied for bail on June 5, 1990, but the application was
denied by GCM No.14. He thereupon filed with the Regional Trial Court of Quezon City a petition
for certiorari and mandamus with prayer for provisional liberty and a writ of preliminary injunction.
After considering the petition and the answer thereto filed by the president and members of GCM
No.14, Judge Maximiano C. Asuncion issued an order granting provisional liberty to Ligot.
On July 28, 1990, Ligot filed an urgent omnibus motion to enforce the order for his release and to
declare in contempt the commanding officer of the PC/INP Jail for disobey 'ng the said order. He
later also complained that Generals De Villa and Aguirre had refused to release him "pending final
resolution of the appeal to be taken" to this Court.
After hearing, the trial court reiterated its order for the provisional liberty of Ligot, as well as of
intervenors Ltc Franklin Brawner, Lt/Col. Arsenio Tecson and Maj. Alfredo Oliveros, and later of
additional intervenors Ltc Romelino Gojo and Capt. Manuel Ison.
On August 22, 1990, the trial court rendered judgment inter alia:
(a)
Declaring, that Section 13, Article III of the Constitution granting the right to bail to all
persons with the defined exception is applicable and covers all military men facing court-martial
proceedings. Accordingly, the assailed orders of General Court- Martial No. 14 denying bail to
petitioner and intervenors on the mistaken assumption that bail does not apply to military men
facing court-martial proceedings on the ground that there is no precedent, are hereby set aside
and declared null and void. Respondent General Court-Martial No. 14 is hereby directed to
conduct proceedings on the applications of bail of the petitioner, intervenors and which may as
well include other persons facing charges before General Court-Martial No. 14.
Pending the proceedings on the applications for bail before General Court-Martial No. 14, this
Court reiterates its orders of release on the provisional liberty of petitioner Jacinto Ligot as well as
intervenors Franklin Brawner and Arsenio Tecson.
On February 18, 1991, the private respondents in G.R. No. 97454 filed with this Court a petition for
habeas corpuson the ground that they were being detained in Camp Crame without charges. The
petition was referred to the Regional Trial Court of Quezon City, where it was raffled to respondent
Judge Antonio P. Solano. Finding after hearing that no formal charges had been filed against the
petitioners after more than a year after their arrest, the trial court ordered their release.
II
The Court has examined the records of this case and rules as follows.
It appears that the petitioners in G.R. Nos. 93177 and 96948 were given several opportunities to
present their side at the pre-trial investigation, first at the scheduled hearing of February 12, 1990,
and then again after the denial of their motion of February 21, 1990, when they were given until

March 7, 1990, to submit their counter-affidavits. On that date, they filed instead a verbal motion
for reconsideration which they were again asked to submit in writing. This they did on March 13,
1990. The motion was in effect denied when the PTI Panel resolved to recommend that the
charges be referred to the General Court Martial for trial.
The said petitioners cannot now claim they have been denied due process because the
investigation was resolved against them owing to their own failure to submit their counteraffidavits. They had been expressly warned In the subpoena sent them that "failure to submit the
aforementioned counter-affidavits on the date above specified shall be deemed a waiver of (their)
right to submit controverting evidence." They chose not to heed the warning. As their motions
appeared to be dilatory, the PTI Panel was justified in referring the charges to GCM No. 14 without
waiting for the petitioners to submit their defense.
Due process is satisfied as long as the party is accorded an opportunity to be heard. If it is not
availed of, it is deemed waived or forfeited without violation of the Bill of Rights.
There was in our view substantial compliance with Article of War 71 by the PTI Panel. Moreover, it
is now settled that "even a failure to conduct a pre-trial investigation does not deprive a general
1

court- martial of jurisdiction." We so held in Arula v. Espino, thus:

xxx
xxx
xxx
But even a failure to conduct a pre-trial investigation does not deprive a general court-martial of
jurisdiction.
The better accepted concept of pre-trial investigation is that it is directory, not mandatory, and in no
way affects the jurisdiction of a court-martial. In Humphrey v. Smith, 336 U.S. 695, 93 L ed 986
(1949), the Court said:
We do not think that the pre-trial investigation procedure by Article 70 (The Philippine counter-part
is article of war 71, Commonwealth Act 408) can properly be construed as an indispensable prerequisite to the exercise of the Army General court martial jurisdiction.. The Article does serve
important functions in the administration of court-martial procedures and does provide safeguards
to an accused. Its language is clearly such that a defendant could object to trial in the absence of
the required investigation. In that event the court-martial could itself postpone trial pending the
investigation. And the military reviewing authorities could consider the same contention, reversing
a court- martial conviction where failure to comply with Article 70 has substantially injured an
accused. But we are not persuaded that Congress intended to make otherwise valid court-martial
judgments wholly void because pre-trial investigations fall short of the standards prescribed by
Article 70. That Congress has not required analogous pre-trial procedure for Navy court-martial is
an indication that the investigatory plan was not intended to be exalted to the jurisdictional level.
xxx
xxx
xxx
Shortly after enactment of Article 70 in 1920 the Judge Advocate General of the Army did hold that
where there had been no pre-trial investigation, court-martial proceedings were void ab initio. But
this holding has been expressly repudiated in later holdings of the Judge Advocate General. This
later interpretation has been that the pre-trial requirements of Article 70 are directory, not
mandatory, and in no way effect the jurisdiction of a court-martial. The War Department's
interpretation was pointedly called to the attention of Congress in 1947 after which Congress
amended Article 70 but left unchanged the language here under consideration. compensable prerequisite to the exercise of Army general court-martial jurisdiction
A trial before a general court-martial convened without any pretrial investigation under article of
war 71 would of course be altogether irregular but the court-martial might nevertheless have

jurisdiction. Significantly, this rule is similar to the one obtaining in criminal procedure in the civil
courts to the effect that absence of preliminary investigation does not go into the jurisdiction of the
court but merely to the regularity of the proceedings.
As to what law should govern the conduct of the preliminary investigation, that issue was resolved
2

more than two years ago in Kapunan v. De Villa, where we declared:

The Court finds that, contrary to the contention of petitioners, there was substantial compliance
with the requirements of law as provided in the Articles of War and P.D. No. 77, as amended by
P.D. No. 911. The amended charge sheets, charging petitioners and their co-respondents with
mutiny and conduct unbecoming an officer, were signed by Maj. Antonio Ruiz, a person subject to
military law, after he had investigated the matter through an evaluation of the pertinent records,
including the reports of respondent AFP Board of Officers, and was convinced of the truth of the
testimonies on record. The charge sheets were sworn to by Maj. Ruiz, the "accuser," in
accordance with and in the manner provided under Art. 71 of the Articles of War. Considering that
P.D. No. 77, as amended by P.D. No. 911, is only of suppletory application, the fact that the charge
sheets were not certified in the manner provided under said decrees, i.e., that the officer
administering the oath has personally examined the affiant and that he is satisfied that they
voluntarily executed and understood its affidavit, does not invalidate said charge sheets.
Thereafter, a "pretrial investigation" was conducted by respondent Maj. Baldonado, wherein,
pursuant to P.D. No. 77, as amended by P.D. No. 911, petitioners were subpoenaed and required
to file their counter-affidavit. However, instead of doing so, they filed an untitled pleading seeking
the dismissal of the charges against them. That petitioners were not able to confront the witnesses
against them was their own doing, for they never even asked Maj. Baldonado to subpoena said
witnesses so that they may be made to answer clarificatory questions in accordance with P. D, No.
77, as amended by P.D. No. 911.
The petitioners also allege that GCM No. 14 has not been constitute in accordance with Article 8 of
the Articles of War because General Order No. M-6, which supposedly convened the body, was
not signed by Gen. Renato de Villa as Chief of Staff.
Article of War No. 8 reads:
Art. 8. General Courts-Martial. The President of the Philippines, the Chief of Staff of the
Armed Forces of the Philippines, the Chief of Constabulary and, when empowered by the
President, the commanding officer of a major command or task force, the commanding officer of a
division, the commanding officer of a military area, the superintendent of the Military Academy, the
commanding officer of a separate brigade or body of troops may appoint general courts-martial;
but when any such commander is the accuser or the prosecutor of the person or persons to be
tried, the court shall be appointed by superior competent authority. ...
While it is true that General Order No. M-6 was not signed by Gen. De Villa, there is no doubt that
he authorized it because the order itself said it was issued "By Command of General De Villa" and
it has not been shown to be spurious. As observed by the Solicitor General, the Summary
Disposition Form showed that Gen. De Villa, as Chief of Staff, AFP, actually constituted GCM No.
14 and appointed its president and members. It is significant that General De Villa has not
disauthorized or revoked or in any way disowned the said order, as he would certainly have done if
his authority had been improperly invoked. On the contrary, as the principal respondent in G.R.
No. 93177, he sustained General Order No. M 6 in the Comment filed for him and the other
respondents by the Solicitor General.
Coming now to the right to peremptory challenge, we note that this was originally provided for

under Article 18 of Com. Act No. 408 (Articles of War), as amended by Rep. Act No. 242, on June
12, 1948, to wit:
Art. 18. Challenges. Members of general or special courts-martial may be challenged by the
accused or the trial judge advocate for cause stated to the court. The court shall determine the
relevancy and validity thereof, and shall not receive a challenge to more than one member at a
time. Challenges by the trial judge advocate shall ordinarily be presented and decided before
those by the accused are offered. Each side shall be entitled to the peremptory challenge, but the
law member of the court shall not be challenged except for cause.
3

The history of peremptory challenge was traced in Martelino v. Alejandro, thus:

In the early formative years of the infant Philippine Army, after the passage in 1935 of
Commonwealth Act No. 1 (otherwise known as the National Defense Act), except for a handful of
Philippine Scout officers and graduates of the United States military and naval academies who
were on duty with the Philippine Army, there was a complete dearth of officers learned in military
law, its aside from the fact that the officer corps of the developing army was numerically made
equate for the demands of the strictly military aspects of the national defense program. Because of
these considerations it was then felt that peremptory challenges should not in the meanwhile be
permitted and that only challenges for cause, in any number, would be allowed. Thus Article 18 of
the Articles of War (Commonwealth Act No. 408), as worded on September 14, 1938, the date of
the approval of the Act, made no mention or reference to any peremptory challenge by either the
trial judge advocate of a court- martial or by the accused. After December 17,1958, when the
Manual for Courts-Martial of the Philippine Army became effective, the Judge Advocate General's
Service of the Philippine Army conducted a continuing and intensive program of training and
education in military law, encompassing the length and breadth of the Philippines. This program
was pursued until the outbreak of World War 11 in the Pacific on December 7, 1941. After the
formal surrender of Japan to the allies in 1945, the officer corps of the Armed Forces of the
Philippines had expanded to a very large number, and a great many of the officers had been
indoctrinated in military law. It was in these environmental circumstances that Article of War 18
was amended on June 12,1948 to entitle "each side" to one peremptory challenge, with the sole
proviso that "the law member of court shall not be challenged except for cause.
On September 27,1972, President Marcos issued General Order No. 8, empowering the Chief of
Staff of the Armed Forces to create military tribunals "to try and decide cases of military personnel
and such other cases as may be referred to them.
On November 7,1972, he promulgated P.D. No. 39 (Governing the Creation, Composition,
Jurisdiction, Procedure, and other matters relevant to military Tribunals). This decree disallowed
the peremptory challenge, thus:
No peremptory challenge shall be allowed. Challenges for cause may be entertained to insure
impartiality and good faith. Challenges shall immediately be heard and determined by a majority of
the members excluding the challenged member. A tie vote does not disqualify the challenged
member. A successfully challenged member shall be immediately replaced.
On June 11, 1978, President Marcos promulgated P.D. No. 1498, or the National Security Code,
which was a compilation and codification of decrees, general orders, LOI and policies intended "to
meet the continuing threats to the existence, security and stability of the State." The modified rule
on challenges under P.D. No. 39 was embodied in this decree.
On January 17,1981, President Marcos issued Proc. No. 2045 proclaiming the termination of the
state of martial law throughout the Philippines. The proclamation revoked General Order No. 8 and

declared the dissolution of the military tribunals created pursuant thereto upon final determination
of the cases pending therein.
P.D. No. 39 was issued to implement General Order No. 8 and the other general orders mentioned
therein. With the termination of martial law and the dissolution of the military tribunals created
thereunder, the reason for the existence of P.D. No. 39 ceased automatically.
It is a basic canon of statutory construction that when the reason of the law ceases, the law itself
ceases. Cessante ratione legis, cessat ipsa lex. This principle is also expressed in the maxim ratio
legis est anima: the reason of law is its soul.
Applying these rules, we hold that the withdrawal of the right to peremptory challenge in L P.D. No.
39 became ineffective when the apparatus of martial law was dismantled with the issuance of
Proclamation No. 2045, As a result, the old rule embodied in Article 18 of Com. Act No. 408 was
automatically revived and now again allows the right to peremptory challenge.
We do not agree with the respondents in G.R. No. 96948 that the right to peremptory challenge
remains withdrawn under P.D. No. 39. To repeat for emphasis, this decree was itself withdrawn
when martial law was lifted on January 17, 1981. Indeed, even if not so withdrawn, it could still be
considered no longer operative, having been cast out under the new dispensation as, in the words
of the Freedom Constitution, one of the "iniquitous vestiges of the previous regime.
The military tribunal was one of the most oppressive instruments of martial law. It is curious that
the present government should invoke the rules of that discredited body to justify its action against
the accused officers.
The Court realizes that the recognition of the right to peremptory challenge may be exploited by a
respondent in a court-martial trial to delay the proceedings and defer his deserved Punishment. It
is hoped that the accused officers in the cases at bar will not be so motivated. At any rate, the
wisdom of Com. Act No. 408, in the light of present circumstances, is a matter addressed to the
law-makers and not to this Court. The judiciary can only interpret and apply the laws without
regard to its own misgivings on their adverse effects. This is a problem only the political
departments can resolve.
The petitioners in G.R. Nos. 95020 and 97454 question the propriety of the petition for certiorari
and mandamus and the petition for habeas corpus filed by the private respondents with the
Regional Trial Courts of Quezon City. It is argued that since the private respondents are officers of
the Armed Forces accused of violations of the Articles of War, the respondent courts have no
authority to order their release and otherwise interfere with the court-martial proceedings.
The petitioners further contend that under Sec. 9(3) of BP 1 29, the Court of Appeals is vested with
"exclusive appellate jurisdiction over all final judgments, decisions, resolutions, orders, or awards
of Regional Trial Courts and quasi-judicial agencies, instrumentalities, boards or commissions."
4

Rather irrelevantly, the petitioners also cite the case of Yang v. Court of Appeals where this Court
held that "appeals from the Professional Regulation Commission are now exclusively cognizable by the
Court of Appeals.
It should be noted that the aforecited provision and the case cited refer to ordinary appeals and
not to the remedies employed by the accused officers before the respondent courts.
In Martelino, we observed as follows:
It is true that civil courts as a rule exercise no supervision or correcting power over the
proceedings of courts-martial, and that mere errors in their proceedings are not open to
consideration. The single inquiry, the test, is jurisdiction. But it is equally true that in the exercise of
their undoubted discretion, courts-martial may commit such an abuse of discretion what in the

language of Rule 65 is referred to as "grave abuse of discretion" as to give rise to a defect in

their jurisdiction. This is precisely the point at issue in this action suggested by its nature as one
for certiorari and prohibition ... .
The Regional Trial Court has concurrent jurisdiction with the Court of Appeals and the Supreme
Court over petitions for certiorari, prohibition or mandamus against inferior courts and other bodies
5

and on petitions for habeas corpusand quo warranto. In the absence of a law providing that the
decisions, orders and ruling of a court-martial or the Office of the Chief of Staff can be questioned only
before the Court of Appeals and the Supreme Court, we hold that the Regional Trial Court can exercise
similar jurisdiction.
We find that the right to bail invoked by the private respondents in G.R. Nos. 95020 has
traditionally not been recognized and is not available in the military, as an exception to the general
rule embodied in the Bill of Rights. This much was suggested in Arula, where we observed that
"the right to a speedy trial is given more emphasis in the military where the right to bail does not
exist.
The justification for this exception was well explained by the Solicitor General as follows:
The unique structure of the military should be enough reason to exempt military men from the
constitutional coverage on the right to bail.
Aside from structural peculiarity, it is vital to note that mutinous soldiers operate within the
framework of democratic system, are allowed the fiduciary use of firearms by the government for
the discharge of their duties and responsibilities and are paid out of revenues collected from the
people. All other insurgent elements carry out their activities outside of and against the existing
political system.
xxx
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xxx
National security considerations should also impress upon this Honorable Court that release on
bail of respondents constitutes a damaging precedent. Imagine a scenario of say 1,000 putschists
roaming the streets of the Metropolis on bail, or if the assailed July 25,1990 Order were sustained,
on "provisional" bail. The sheer number alone is already discomforting. But, the truly disquieting
thought is that they could freely resume their heinous activity which could very well result in the
overthrow of duly constituted authorities, including this Honorable Court, and replace the same
with a system consonant with their own concept of government and justice.
The argument that denial from the military of the right to bail would violate the equal protection
clause is not acceptable. This guaranty requires equal treatment only of persons or things similarly
situated and does not apply where the subject of the treatment is substantially different from
others. The accused officers can complain if they are denied bail and other members of the
military are not. But they cannot say they have been discriminated against because they are not
allowed the same right that is extended to civilians.
On the contention of the private respondents in G.R. No. 97454 that they had not been charged
after more than one year from their arrest, our finding is that there was substantial compliance with
the requirements of due process and the right to a speedy trial.
The petition for habeas corpus was directly filed with this Court on February 18, 1991, and was
referred to the Regional Trial Court of Quezon City for raffle, hearing and decision. It was heard on
February 26, 1991, by the respondent court, where the petitioners submitted the charge
memorandum and specifications against the private respondents dated January 30, 1991. On
February 12, 1991, pursuant to Office Order No. 31-91, the PTI panel was created and initial
investigation was scheduled on March 12, 1991 at 2:00 p.m. On March 20, 1991, the private

respondents received the copies of the charges, charge sheets and specifications and were
required to submit their counter-affidavits on or before April 11, 1991. There was indeed a delay of
more than one year in the investigation and preparation of the charges against the private
respondents. However, this was explained by the Solicitor General thus:
... The AFP Special Investigating Committee was able to complete it pre-charge investigation only
after one (1) year because hundreds of officers and thousands of enlisted men were involved in
the failed coup. All of them, as well as other witnesses, had to be interviewed or investigated, and
these inevitably took months to finish. The pre-charge investigation was rendered doubly difficult
by the fact that those involved were dispersed and scattered throughout the Philippines. In some
cases, command units, such as the Scout Rangers, have already been disbanded. After the
charges were completed, the same still had to pass review and approval by the AFP Chief of Staff.
While accepting this explanation, the Court nevertheless must reiterate the following admonition:
This Court as protector of the rights of the people, must stress the point that if the participation of
petitioner in several coup attempts for which he is confined on orders of Adjutant General Jorge
Agcaoili cannot be established and no charges can be filed against him or the existence of a
prima facie case warranting trial before a military commission is wanting, it behooves respondent
then Major General Rodolfo Biazon (now General) to release petitioner. Respondents must also
be reminded that even if a military officer is arrested pursuant to Article 70 of then Articles of War,
indefinite confinement is not sanctioned, as Article 71 thereof mandates that immediate steps must
be taken to try the person accused or to dissmiss the charge and release him. Any officer who is
responsible for unnecessary delay in investigating or carrying the case to a final conclusion may
6

even be punished as a court martial may direct.

It should be noted, finally, that after the decision was rendered by Judge Solano on February 26,
1991, the government filed a notice of appeal ad cautelam and a motion for reconsideration, the
latter was ultimately denied, after hearing, on March 4, 1991. The 48- hour period for appeal under
Rule 41, Section 18, of the Rules of Court did not run until after notice of such denial was received
by the petitioners on March 12, 1991. Contrary to the private respondents' contention, therefore,
the decision had not yet become final and executory when the special civil action in G.R. No.
97454 was filed with this Court on March 12, 1991.
III
Regarding the propriety of the petitions at bar, it is well to reiterate the following observations of
the Court in Arula:
The referral of charges to a court-martial involves the exercise of judgment and discretion (AW
71). A petition for certiorari, in order to prosper, must be based on jurisdictional grounds because,
as long as the respondent acted with jurisdiction, any error committed by him or it in the exercise
thereof will amount to nothing more than an error of judgment which may be reviewed or corrected
only by appeal. Even an abuse of discretion is not sufficient by itself to justify the issuance of a writ
of certiorari.
As in that case, we find that the respondents in G.R. No. 93177 have not acted with grave abuse
of discretion or without or in excess of jurisdiction to justify the intervention of the Court and the
reversal of the acts complained of by the petitioners. Such action is indicated, however, in G.R.
No. 96948, where we find that the right to peremptory challenge should not have been denied, and
in G.R. Nos. 95020 and 97454, where the private respondents should not have been ordered
released.
ACCORDINGLY, in G.R. No. 93177, the petition is DISMISSED for lack of merit. In G.R. No.

96948, the petition is GRANTED, and the respondents are DIRECTED to allow the petitioners to
exercise the right of peremptory challenge under Article 18 of the Articles of War. In G.R. Nos.
95020 and 97454, the petitions are also GRANTED, and the orders of the respondent courts for
the release of the private respondents are hereby REVERSED and SET ASIDE. No costs.
SO ORDERED.
Fernan, C.J., Narvasa, Melencio-Herrera, Gutierrez, Jr., Paras, Feliciano, Gancayco, Padilla,
Bidin, Grio-Aquino, Medialdea, Regalado and Davide, Jr., JJ., concur.

Separate Opinions
SARMIENTO, J., concurring:
I concur with the ponencia of my esteemed colleague, Mr. Justice Cruz, but I dissent insofar as he
would deny bail to accused military personnel.
The Constitution explicitly grants the right to bail to "all persons" before conviction, with the only
exception of "those charged with offenses punishable by reclusion perpetua when evidence of guilt
is strong."

The Charter also states that "[T]he right to bail shall not be impaired even if the writ of
2

habeas corpus is suspended." To deny the military officers here concerned of the right to bail is to
circumscribe the inclusive meaning of "all persons" the coverage of the right.

I believe that military officers fall within "persons".

The picture conjured up by the Solicitor General of "a scenario of say 1,000 putschists roaming the
streets of the Metropolis on bail, or if the assailed July 25, 1990 Order were sustained, on
"provisional" bail [t]he sheer number alone is already discomforting . . . [b]ut, the truly disquieting
thought is that they could freely resume their heinous activity which could very well result in the
overthrow of duly constituted authorities, including this Honorable Court, and replace the same
3

with a system consonant with their own concept of government and justice." But would a scenario
of 1,000 murderers or drug pushers roaming the streets of the metropolis justify a denial of the right to
bail? Would not that dark picture painted by the Solicitor General be reproduced by 1,000 "equally
dangerous" elements of society?
We gave bail Senator Enrile and General Brawner. I find no reason why the petitioners should not
be granted the same right.
The majority would point to tradition, supposed to be firmly settled, as an argument to deny bail. I
submit, however, that tradition is no argument. First, the Constitution does not say it. Second, we
are a government of laws, not tradition.
If there are precedents that attest to the contrary, I submit that a reexamination is in order.

Separate Opinions
SARMIENTO, J., concurring:
I concur with the ponencia of my esteemed colleague, Mr. Justice Cruz, but I dissent insofar as he
would deny bail to accused military personnel.
The Constitution explicitly grants the right to bail to "all persons" before conviction, with the only
exception of "those charged with offenses punishable by reclusion perpetua when evidence of guilt
is strong."

The Charter also states that "[T]he right to bail shall not be impaired even if the writ of

habeas corpus is suspended." To deny the military officers here concerned of the right to bail is to
circumscribe the inclusive meaning of "all persons" the coverage of the right.

I believe that military officers fall within "persons".

The picture conjured up by the Solicitor General of "a scenario of say 1,000 putschists roaming the
streets of the Metropolis on bail, or if the assailed July 25, 1990 Order were sustained, on
"provisional" bail [t]he sheer number alone is already discomforting . . . [b]ut, the truly disquieting
thought is that they could freely resume their heinous activity which could very well result in the
overthrow of duly constituted authorities, including this Honorable Court, and replace the same
3

with a system consonant with their own concept of government and justice." But would a scenario
of 1,000 murderers or drug pushers roaming the streets of the metropolis justify a denial of the right to
bail? Would not that dark picture painted by the Solicitor General be reproduced by 1,000 "equally
dangerous" elements of society?
We gave bail Senator Enrile and General Brawner. I find no reason why the petitioners should not
be granted the same right.
The majority would point to tradition, supposed to be firmly settled, as an argument to deny bail. I
submit, however, that tradition is no argument. First, the Constitution does not say it. Second, we
are a government of laws, not tradition.
If there are precedents that attest to the contrary, I submit that a reexamination is in order.
The Lawphil Project - Arellano Law Foundati

Today is Wednesday, August 03, 2016

G.R. No. 134203

Republic of the Philippines

SUPREME COURT
Manila
EN BANC
May 27, 2004

PEOPLE OF THE PHILIPPINES, appellee,

vs.
ELVIE EJANDRA @ ELVIES EJANDRA @ BEBOT EJANDRA @ ALEJANDRO EJANDRA @
BEBOT OCAY SUANGCO, MAGDALENA CALUNOD y MAGANOY @ MAGDALENA SALIOTSUANGCO, ANTONIO HUERA y RANDA, ROEL REVILLA CERON, and EDWIN TAMPOS y
AMPARO (All detained at Quezon City Jail, Quezon City), appellants.
DECISION
PER CURIAM:
1

This is a review on automatic appeal of the Decision of the Quezon City Regional Trial
Court, Branch 219, convicting appellants Elvie Ejandra, Magdalena Calunod, Edwin Tampos
and Roel Revilla of kidnapping for ransom, and sentencing them to suffer the death penalty.
The Indictment
The accused were charged of kidnapping for ransom in an Information filed in the Regional
Trial Court which reads:
That on or about July 2, 1997, in Quezon City, and within the jurisdiction of this Honorable
Court, above-named accused, while confederating, conniving, conspiring, and helping each
and one another, did then and there with the use of force, threat and intimidation, take and
carry away, a nine-year-old minor child, Ed Henderson Tan, against the will and consent of
the latter nor any of his natural and legal parents or guardian, to an unknown destination,
detain, hold and control Ed Henderson Tan depriving him of his liberty, and during their
control and custody of Ed Henderson Tan, call, demand and negotiate the payment of
ransom money from Eddie Tan, the father of Ed Henderson Tan, for the safe release and
return of the victim Ed Henderson, otherwise, the victim would be harmed or killed, the
victims father Eddie Tan actually paid the accused the amount of P548,000.00 as ransom
money, for the safe release of the victim to the damage and prejudice of the victim Ed
Henderson Tan and his father Eddie Tan.
2

CONTRARY TO LAW.
The accused, assisted by counsel, were arraigned for the crime charged on November 11,
1997, and entered their respective pleas of not guilty.
The Evidence for the Prosecution
Ed Henderson Tan, the nine-year old son of the spouses Eddie and Marileen Tan, was a
Grade III student at the Philippine Institute of Quezon City, located at Kitanlad, Quezon
3

City. At about 4:00 p.m. on July 2, 1997, Ed Henderson was dismissed from his classes
4

and proceeded to the nearby house of his tutor in Chinese language, Huang Lao Shih. Ed
Henderson and his father, Eddie Tan, had earlier agreed that after the tutorial classes ended
at 7:00 p.m., Ed Henderson would phone his father, who would then fetch him from his
5

mentors house. The tutorial classes ended at 7:00 p.m., as scheduled, and Ed Henderson
then proceeded to the store near the gate of the school to have his periodic test papers
6

photocopied. He left the store and was on his way back to the house of his tutor to wait for
his father.
7

Suddenly, Ed Tampos, armed with a revolver (de bola),

8

chased and overtook Ed

Henderson at the Royalty canteen near the school. Tampos ordered the boy to proceed to

a motorcyle parked nearby and warned the latter that if he refused, he would be shot.
Petrified, Ed Henderson approached the motorcycle where appellants Elvie Ejandra and
Roel Revilla were waiting. Ejandra had no legs (pilay), while Revilla had curly hair. There
was no lamp post outside the school premises but the lights inside the school were still
9

on. Ejandra covered Ed Hendersons mouth with his hand, pointed his gun at the boy

10

11

and warned the latter not to shout. Revilla boarded the motorcycle and took the drivers
seat. Ejandra sat behind him, and Tampos sat behind Ejandra. Tampos ordered Ed
Henderson to board the motorcyle, or else, he would be shot.
to sit behind Tampos.

12

The boy was then ordered

13
14

Ed was brought to a one-storey house with cemented flooring and white-colored walls.
Once inside, he saw a man who was drinking, who turned out to be Antonio Huera, and a
15

16

female, who turned out to be Magdalena Calunod. Ed Henderson also saw a cell phone.
The was ordered to write down his fathers telephone number, as well as that of their house
17

and their store. Ed Henderson did as he was told, and wrote down the number 737-61-77
the telephone number of his father, Eddie Tan. It appeared to the boy that Ejandra was the
leader of his abductors because it was he who gave orders to the others.
In the meantime, Eddie went to fetch his son at 7:00 p.m. at his tutors house, but the boy
18

was nowhere to be found. Frantic, Eddie contacted his friends and relatives and asked if
they knew where his son was, to no avail. He even called up hospitals, inquiring if a boy
19

named Ed Henderson had been admitted as a patient.

Shortly after midnight, Eddie
received a call from his house that someone had called earlier up his mother, Benita Tan,
with the information that his son had been kidnapped

20

and that the kidnappers wanted to

21

talk to the parents. Eddie rushed back home.

At 12:30 a.m., Eddie received a call through his home phone, informing him that his son
22

had been kidnapped. The caller demanded P10,000,000 for the safe release of his son.
When Eddie informed the caller that he did not have P10,000,000, the latter hung up the
23

phone.
In the meantime, as ordered by Ejandra, Ed Henderson called up his father, through the
24

kidnappers cell phone, to urge his father to pay the ransom money.
Thereafter, Eddie received several calls threatening him that if he refused to pay the
ransom they demanded, the kidnappers would cut Ed Hendersons ear and finger, and
thereafter kill the boy and dump his body in an isolated place. Eddie pleaded for mercy but
25

the caller would simply hang up the telephone.

Eddie and his family were terrified of the callers threats that they could hardly sleep. They
lost their appetite just thinking of what Ed Henderson would suffer in the hands of his
kidnappers.

26

At 6:00 p.m. on July 3, 1997, a Sunday, Eddie received another call informing
27

him that the kidnappers had agreed to reduce the ransom to P5,000,000. Eddie told the
caller that he did not have P5,000,000 and pleaded that the ransom be reduced. However,

the caller merely repeated his threat that the kidnappers would cut Ed Hendersons fingers
28

and ears, and dump the boy in an isolated place.

Meanwhile, Eddie began borrowing money from his relatives and friends. He received
another call reiterating the demand for ransom. He told the caller that he would try to raise
P585,000 but the caller told Eddie to raise P600,000. Eddie was finally able to borrow
P548,000 from his relatives and friends. When the caller called anew, Eddie revealed that he
was able to raise only P548,000 and reiterated that he could no longer borrow any
29

additional amount.
At 10:00 a.m. the next day, July 4, 1997, another call from the kidnappers came through,
and Eddie reiterated that he could no longer raise any additional amount. The caller hung
up, but called again and informed Eddie that the kidnappers had agreed to accept a ransom
30

of P548,000.00. At about noon, the caller contacted Eddie and instructed him to place the
money in a newspaper and to bring the money to the parking lot in front of the Sto.
Domingo Church in Quezon City within ten minutes. The caller further instructed Eddie to
open the doors and windows of his car upon arriving at the designated spot. Eddie was
also told that a man would approach him and call him "Eddie."
Eddie did as he was told.

31

He placed the money in a newspaper and placed it in a Shoe

32

Mart (SM) plastic bag. He then proceeded to the designated place on board his Besta van.
He parked the van in the parking lot in front of the convent adjacent to the Sto. Domingo
33

Church. He opened the doors and windows, then alighted from the car. Momentarily,
appellant Calunod approached Eddie and called out, "EddieaEddie." Eddie noted that
Calunod had a scar on her right temple. Eddie was taken aback because he was expecting
a man to approach him. Nevertheless, when he heard Calunod say "Eddie," he handed over
34

35

the plastic bag which contained the money. He asked her how his son was, she told him
not to worry because she would bring the boy home. Calunod then walked to the gate of
36

the Santo Domingo Church. Eddie went home to wait for his sons return. Shortly after his
arrival at their house, Eddie received two telephone calls from a male and a female,
respectively, who informed him of his sons impending release.
Between 3:20 to 3:30 p.m. of July 4, 1997, Ed Henderson was told that he would be brought
37

back home. The boy then called up his mother and told her that he would be back soon.
Tampos and Calunod boarded Ed Henderson in a taxi. Calunod ordered the boy to pretend
that she was his aunt.

38

Ed recalled that it was also Calunod who took care of him and gave
39

him food in the house where he was detained.

The taxi stopped near the Imperial
Drugstore at E. Rodriguez Avenue, where Calunod instructed Ed Henderson to get down.
She gave the boy P50.00 for his fare back home. The boy took a taxi and was soon reunited
with his waiting family.
On July 7, 1997, Ed Henderson gave a sworn statement to PO3 Terencio Claudio of the
40

Criminal Investigation Division in Camp Crame, Quezon City. He was shown photographs
of suspects of kidnappings and he identified, from the pictures shown to him, Elvie Ejandra
alias Alejandro Ejandra and Magdalena Calunod

41

as two of his kidnappers.

The Case for the Accused

Edwin Tampos denied any involvement in the kidnapping of Ed Henderson, and invoked
alibi as an additional defense. He claimed that the first time he met Elvie Ejandra and
Magdalena Calunod was in Camp Crame, Quezon City, after he was arrested, with Roel
Revilla, on board the latters tricycle at 10:00 p.m. on August 13, 1997. He knew Antonio
Huera, who lived in the same place and solicited bets for "ending." He also knew Roel
Revilla, who was a tricycle driver. Tampos claimed that he was arrested without any warrant
therefor, and that he was handcuffed, mauled and blindfolded. He was asked if he was a
kidnapper, denied that he was one and was forced to sign a piece of paper. He testified that
he eked out a living as a butcher of pigs at Villa Beatriz, Old Balara, Quezon City. He sold
the butchered pigs three times a week within the neighborhood. His aunt, Biba Oray,
42

43

financed his business. Tampos also averred that he owned three fighting cocks.
Tampos claimed that on July 2, 1997, he was so tired of butchering pigs and opted to stay
home the whole day and night. At 10:00 p.m., he went out of his house and bought
44

45

cigarettes. He returned home immediately thereafter and slept. He and his aunt made
plans to buy pigs to be butchered. He was also at home the following day, July 4, 1997,
46

tending to his three fighting cocks.

Roel Revilla, likewise, denied any involvement in the kidnapping of Ed Henderson and also
interposed an alibi. He testified that he arrived from Sogus, Southern Leyte on August 5,
1997 and stayed in the house of Antonio Huera, his brothers friend at Villa Beatriz, Old
Balara, Quezon City. Huera worked at the Tarpark and promised that he would help Revilla
47

get a job there. He was arrested on August 13, 1998 by the Presidential Anti-Crime
Commission (PACC) agents, along with Huera and Tampos. They were brought to Camp
Crame, Quezon City, where they were blindfolded, mauled and tortured. He was asked if he
was a kidnapper, but he denied any involvement in the incident. He averred that he did not
know of any reason why Ed Henderson would implicate him in the kidnapping.
Magdalena Calunod denied any involvement in the crime charged. She testified that she
was thirty-five-year-old businesswoman from Iligan City. She had a stall in Manggahan in
1994, but the same was demolished in 1995. She returned to Iligan City and tended fighting
48

cocks from 1995 to 1997. In August 1997, she was residing in a rented house at Bidasari,
Lagro Subdivision, Quezon City. Sometime on August 14, 1998, she and Ejandra were on
their way to Nueva Ecija when policemen blocked their vehicle. She, at first, thought that
the men were hold-uppers because they were divested of their money, pieces of jewelry
and clothes. The policemen were not armed with any warrant of arrest. She admitted that
she had been charged of kidnapping in another case in the Regional Trial Court of Quezon
City on August 10, 1997.
Elvie Ejandra also denied any involvement in the kidnapping of Henderson. Like the other
accused, he interposed the defense of alibi. He testified that he and Magdalena Calunod
49

were married. Since 1994, he had been engaged in the business of onions and ready-towear clothes which they sold in Baclaran and Divisoria. They also had a stall in Manggahan
where they sold onions.
51

50

When their stall was demolished in 1994, they went back to Iligan

City. On July 2, 1993, he and Calunod were in Iligan City tending fighting cocks. They

52

returned to Quezon City from Iligan City only on July 9 or July 10, 1997.
They were
arrested on August 14, 1997 by policemen while they were on their way to Sicsican, Nueva
Ecija. When he was arrested, he had a drivers license in the name of Bebot Suangco.

53

He

54

averred that he did not have any cell phone, but had a car with plate no. 413.
Antonio Huera also denied the charge and interposed the defense of alibi. He testified that
55

he was employed by the Car Parts Manufacturing as a power press operator. However,
when his employment was terminated on June 25, 1997, he became a collector of bets for
56

"ending." On July 27, 1997, he was in the house of his uncle, which was a stones throw
away from his own house at No. 7, Don Fabian Street, Villa Beatriz Subdivision, Old Balara,
57

His grandfather died that day in Southern Leyte

59

Roel Revilla spent the night in his house when he arrived from Southern

Quezon City.

July 3, 1997.
Leyte.

60

58

and was later buried on

Huera also admitted that Elvie Ejandra was his classmate in high school, who
61

visited him on August 5, 1997. He was arrested at 5:30 a.m. of August 14, 1997 at his
house, on the mere suspicion that he was a kidnapper. He and two others were brought to
Camp Crame, Quezon City, where he was beaten and maltreated.
On June 4, 1998, the trial court rendered judgment convicting the accused of kidnapping
for ransom defined and penalized in Article 268 of the Revised Penal Code, and sentenced
each of them to suffer the death penalty. Antonio Huera, was acquitted for insufficiency of
evidence, The decretal portion of the decision reads:
WHEREFORE, finding accused Edwin Tampos, Elvie Ejandra, Magdalena Calunod, and Roel
Revilla GUILTY beyond reasonable doubt of the crime of Kidnapping for ransom, the court
hereby sentences each of them to suffer the penalty of DEATH; to pay the victim, Ed
Henderson Tan and his family, the amount of P548,000.00 as actual damages with legal
interest until fully paid, and P1,000,000.00 as moral damages; and to pay the costs.
Accused Antonio Huera is hereby ACQUITTED for insufficiency of evidence. The Warden of
Quezon City Jail is hereby ordered to release him from custody unless he is being detained
for another charge or unlawful case.
SO ORDERED.

62

The Present Appeal

Appellants Ejandra and Calunod do not dispute that they kidnapped Ed Henderson. They
merely assert that the prosecution failed to prove that they had a cellular phone, implying
that they could not have used it to demand ransom for the victims release. It was their
daughter, Sherry Mae Saliot who was the subscriber to telephone number 490-55-95. They
63

also assert that they were arrested without any warrant therefor.
For their part, appellants Tampos and Revilla contend that the trial court erred in not
64

acquitting them of the crime charged on reasonable doubt. They aver that Ed Henderson
could not have recognized them as two of those who kidnapped him at 7:00 p.m. on July 2,
1997 in the vicinity of the Philippine Institute of Quezon City, because the place was dark.
They assert that it was physically impossible for four people to ride on a motorcycle. The
appellants aver that Ed Hendersons testimony is unreliable, as police officers coached him

and taught him what to say during a confrontation between him and the suspects in Camp
Crame, Quezon City.
Appellant Revilla posits that the boy could have mistaken him for Tito Lozada with whom
the appellants were when they were arrested. He argues that he merely stayed in the house
of Huera and since the latter was acquitted, he should also be acquitted. Appellant Revilla
insists that his extrajudicial confession is not admissible in evidence against him because
he was forced by policemen into signing the same. He argues that the trial court erred in
not considering his alibi, that on July 7, 1997 he was in Sogus, Southern Leyte. Appellant
Tampos further alleges that it was unlikely that he would be involved in the kidnapping
because he was engaged in the lucrative business of being a butcher and meat vendor. He
asserted that he was forced into signing a piece of paper in Camp Crame; hence, the said
paper is inadmissible in evidence against him.
For its part, the Office of the Solicitor General submits that in failing to assail any
irregularity in their arrest before they were arraigned for the crime charged on November
11, 1993, the appellants thereby waived their right to do so. The appellants even failed to
file their respective counter-affidavits during the preliminary investigation of the charge
against them at the Department of Justice. Moreover, the prosecution adduced
overwhelming evidence to prove the crime charged that the appellants were the
perpetrators of the said crime.
The contentions of the appellants do not persuade. Ed Henderson positively and in a
straightforward manner testified that appellant Tampos was the one who chased and
grabbed him near his school, and that it was appellant Revilla who drove the motorcycle
from the school to the house where he was detained. Ed Henderson was able to recognize
the two appellants because the lights inside the Philippine Institute illuminated the place
where he was chased and grabbed by appellant Tampos. The victim even noticed that
appellant Revilla, who drove the motorcycle, had curly hair. Appellant Tampos was so close
to Ed Henderson, as it was he who poked the gun at the boy, and even warned the latter
that he would be shot if he refused to board the motorcycle. The testimony of Ed
Henderson pointing to appellants Tampos and Revilla as two of his kidnappers near the
Philippine Institute of Quezon City, reads:
ATTY. CHUA:
Q What were you doing when you were kidnapped?
A I have something xeroxed, sir.
Q Can you tell this court how you were "nahuli"?
A When I finished xeroxing something, I was running and then
somebody chased me, sir.
Q Who was the one chasing you?
A "Yung humuli sa akin."
Q If he is in court, will you please step down from the witness stand and point him to us?
A Yes, sir.
INTERPRETER:
Witness stepping down from the witness stand and proceed to a man wearing yellow Tshirt who when asked to identify himself he gave his name as Edwin Tampos.
ATTY. CHUA:
Q After this man whom you pointed to, caught you, what did you do?
A He showed me a gun, sir.

Q After he showed you a gun, what did you do?

A He told me "sakay."
Q Where?
65

A In a motorcycle, sir.

ATTY. ROUS:
Q Mr. Witness, who was the one driving the motorcycle?
A The person with curly hair, sir.
Q Where were you seated when you were boarded
ATTY. CHUA:
At what point in time because he rode the motorcycle twice, Your Honor.
ATTY. ROUS:
Q When you were taken from your school, who was the person driving?
A The person with curly hair, sir.
Q When you were taken from your school, where were you seated in the motorcycle?
A I was positioned "sa pangatlo" sir.
Q What do you mean by "pangatlo"?
A The first one in the motorcycle was the driver, the curly hair, the second one is Edwin
Tampos and I was on the third part.
Q What was the color of this motorcycle?
66

A Red, sir.
Moreover, Ed Henderson was with appellants Revilla and Tampos when they reached the
house where the boy was detained. The lights inside the house were on and Ed Henderson,
saw the appellants Revilla and Tampos at close range. The victim, likewise, identified
appellant Tampos when the latter and Calunod boarded him in a motorcycle in broad
daylight in the afternoon of July 4, 1997. Tampos and Calunod brought the boy to the
Imperial Drugstore at E. Rodriguez Avenue where he boarded a taxicab that brought him
home. Ed Hendersons testimony on this matter is quoted, viz:
Q You said you were able to go home. Do you recall what date they released you?
A Yes, sir.
Q What date was that?
A July 4, 1997, sir.
Q Around what time were you released?
A In the afternoon, sir.
Q How were you able to go home?
A At first they load me in a motorcycle and they hailed me a taxicab, sir.
Q Who were with you in the motorcycle?
A Edwin Tampos and the female, sir.
Q What happened after the female called the taxicab?
67

A She told me to pretend that she is my aunt and afterwards, she gave me P50.00.
Finally, appellants Revilla and Tampos were identified by Ed Henderson in open court,
pointing to both of them as two of his kidnappers.
It bears stressing that Ed Henderson was only nine years old and in Grade III when he was
kidnapped. In People vs. Bisda, et al.,

68

the kidnap victim Angela was barely six years old

when she testified. We held that, considering her tender years, innocent and guileless, it is
incredible that she would testify falsely that the appellants took her from the school
through threats and detained her in the "dirty house" for five days. Thus, testimonies of
child victims are given full weight and credit.
The testimony of children of sound mind is likewise to be more correct and truthful than
69

70

that of older persons. In People vs. Alba, this Court ruled that children of sound mind
are likely to be more observant of incidents which take place within their view than older
persons, and their testimonies are likely more correct in detail than that of older persons.
In the case at bar, the trial court found the testimony of Ed Henderson credible and entitled
to full probative weight. Well settled is the rule that the findings of facts of the trial court, its
calibration of the testimonies of witnesses, its assessment of the credibility of the said
witnesses and its evidence based on the said findings are given high respect if not
conclusive effect by the appellate court, unless the trial court overlooked, misconstrued or
misinterpreted facts and circumstances of substance which, if considered, will alter the
71

outcome of the case. We have meticulously reviewed the records and find no justification
to deviate from the findings of facts of the trial court, its assessment of the credibility of Ed
Henderson and the veracity and probative weight of his testimony.
The appellants denials and alibi, which are merely self-serving evidence cannot prevail
over the positive, consistent and straightforward testimony of Ed Henderson.

72

Alibi is an

73

inherently weak defense because it is easy to fabricate and highly unreliable. To merit
approbation, the accused must adduce clear and convincing evidence that he was in a
place other than the situs criminis at the time the crime was committed, such that it was
physically impossible for him to have been at the scene of the crime when it was
74

committed. Appellants Revilla and Tampos failed to prove their alibi. They relied merely
and solely on their bare and dubious testimonies to prove their defense. Appellant Revilla,
likewise, failed to adduce any documentary evidence to prove exactly when he left Sogus,
Southern Leyte, via a domestic vessel and the time and date of his arrival in Manila.
The acquittal of Huera on reasonable doubt is not a ground for the acquittal of appellant
Revilla. As gleaned from the trial courts decision, Huera was acquitted on reasonable
doubt because the only evidence against him was the testimony of Ed Henderson, that
when he and his kidnappers arrived in the house where the latter was thereafter detained,
he saw Huera drinking. There is no evidence against Huera relating to the boys detention
and his release on July 4, 1997. There is even no evidence that Huera was in the house
when Ed Henderson was detained on July 3 and 4, 1997.
Contrary to the assertion of the appellants, it is not physically impossible for four people to
ride on a motorcycle, taking into account the sizes and weights of the riders. Ed Henderson
was, after all, only nine years old at that time.
The Court also rejects appellant Tampos plea that the Court take discretionary judicial
notice that the business of butchering pigs and selling their meat is, by nature, a lucrative
business. The appellant was burdened to prove his claim that he was so affluent that it was
incredible for him to indulge in kidnapping for ransom. The appellant failed to do so, and
merely relied on his bare testimony. There is no evidence how much the appellant earned
from the business he was allegedly engaged in. In contrast, the appellants collected

P548,000.00 by way of ransom from Eddie Tan for the kidnapping of his son.
The fact that the cell phone used by the kidnappers to demand ransom was owned by
Sherry Mae Saliot, the daughter of appellants Ejandra and Calunod, does not constitute
evidence that the said appellants could not have used the said cell phone to demand
ransom from Eddie Tan. Sherry Mae Saliot could have just given the cell phone to her
parents for their use, while she paid for the charges thereon.
We agree with the Office of the Solicitor General that the appellants Ejandra and Calunod
waived any irregularities relating to their warrantless arrest when they failed to file a motion
to quash the Information on that ground, or to object to any irregularity in their arrest
before they were arraigned. They are now estopped from questioning the legality of their
arrest.

75
76

In People vs. Bisda, we had the occasion to state:

In People v. Pagalasan, this Court held that conspiracy need not be proven by direct
evidence. It may be inferred from the conduct of the accused before, during and after the
commission of the crime, showing that they had acted with a common purpose and design.
Conspiracy may be implied if it is proved that two or more persons aimed by their acts
towards the accomplishment of the same unlawful object, each doing a part so that their
combined acts, though apparently independent of each other were, in fact, connected and
cooperative, indicating a closeness of personal association and a concurrence of
sentiment. Conspiracy once found, continues until the object of it has been accomplished
unless abandoned or broken up. To hold accused guilty as a co-principal by reason of
conspiracy, he must be shown to have performed an overt act in pursuance or furtherance
of the complicity. There must be intentional participation in the transaction with a view to
the furtherance of the common design and purpose.
Conspirators are held to have intended the consequences of their acts and by purposely
engaging in conspiracy which necessarily and directly produces a prohibited result, they
are, in contemplation of law, chargeable with intending that result. Conspirators are
necessarily liable for the acts of another conspirator unless such act differs radically and
substantively from that which they intended to commit. As Judge Learned Hand put it in
United States v. Andolscheck, "when a conspirator embarks upon a criminal venture of
indefinite outline, he takes his chances as to its content and membership, so be it that they
fall within the common purposes as he understands them.
In the case at bar, the overt acts of the appellants were so coordinated to attain a common
purpose: that of kidnapping and detaining Ed Henderson for ransom. Appellants Ejandra,
Tampos and Revilla abducted the victim. Appellant Revilla drove the motorcycle from the
place of abduction to the house where the victim was detained. Appellant Calunod guarded
the victim during the latters detention, and later brought the victim to E. Rodriguez Avenue
in Quezon City prior to his release, along with appellant Tampos. Appellant Calunod also
collected the ransom from the victims father. All the foregoing facts indubitably show that
the appellants conspired to kidnap the victim for ransom.
Article 267 of the Revised Penal Code as amended by Republic Act No. 7659 reads:
ART. 267. Kidnapping and serious illegal detention.Any private individual who shall
kidnap or detain another, or in any other manner deprive him of his liberty, shall suffer the
penalty of reclusion perpetua to death.
1. If the kidnapping or detention shall have lasted more than three days.

2. If it shall have committed simulating public authority.

3. If any serious physical injuries shall have been inflicted upon the person kidnapped or
detained, or if threats to kill him shall have been made.
4. If the person kidnapped or detained shall be a minor, except when the accused is any of
the parents, female or a public officer.
The penalty shall be death where the kidnapping or detention was committed for the
purpose of extorting ransom from the victim or any other person, even if none of the
circumstances above-mentioned were present in the commission of the offense.
When the victim is killed or dies as a consequence of the detention or is raped, or is
77

subjected to torture dehumanizing acts, the maximum penalty shall be imposed.

For the accused to be convicted of kidnapping or serious illegal detention, the prosecution
is burdened to prove beyond reasonable doubt all the elements of the crime, namely, (1) the
offender is a private individual; (2) he kidnaps or detains another, or in any manner
deprives the latter of h is liberty; (3) the act of detention or kidnapping must be illegal; and
(4) in the commission of the offense any of the following circumstances is present: (a) the
kidnapping or detention lasts for more than three days; (b) it is committed by simulating
public authority; (c) any serious physical injuries are inflicted upon the person kidnapped
or detained or threats to kill him are made; or (d) the person kidnapped and serious illegal
detention is a minor, the duration of his detention is immaterial. Likewise, if the victim is
kidnapped and illegally detained for the purpose of extorting ransom, the duration of his
78

detention is immaterial.
To warrant an imposition of the death penalty for the crime of kidnapping and serious
illegal detention for ransom, the prosecution must prove the following beyond reasonable
doubt: (a) intent on the part of the accused to deprive the victim of his liberty; (b) actual
deprivation of the victim of his liberty; and, (c) motive of the accused, which is ransom for
the victim or other person for the release of the victim. The purpose of the offender in
extorting ransom is a qualifying circumstance which may be proven by his words and overt
acts before, during and after the kidnapping and detention of the victim.

79

Neither actual
80

demand for nor actual payment of ransom is necessary for the crime to be committed.
Ransom as employed in the law is so used in its common or ordinary sense; meaning, a
sum of money or other thing of value, price, or consideration paid or demanded for
81

redemption of a kidnapped or detained person, a payment that releases from captivity. It

may include benefits not necessarily pecuniary which may accrue to the kidnapper as a
82

condition for the victims release.

In this case, the appellants not only demanded but also received ransom for the release of
the victim. The trial court correctly sentenced the appellants to death. However, the trial
court erred in failing to order the appellants to pay, jointly and severally, to Ed Henderson,
his parents Eddie and Marileen Tan the amount of P485,000.00 as actual damages and the
amount of P1,000,000.00 as moral damages. Under Article 110 of the Revised Penal Code,
the principals are jointly and severally liable for the civil liabilities arising from the delict.
Three Justices of the Court maintain their position that Rep. Act No. 7659 is
unconstitutional insofar as it prescribes the death penalty; nevertheless, they submit to the
ruling of the majority that the law is constitutional, and that the death penalty can be

lawfully imposed in the case at bar.

IN LIGHT OF ALL THE FOREGOING, the Decision of the Regional Trial Court of Quezon City,
Branch 219, convicting appellants Elvie Ejandra alias Elvies Ejandra alias Bebot Ejandra
alias Bebot Ocay Suangco, Magdalena Calunod y Maganoy alias Magdalena SaliotSuangco, Roel Ceron Revilla and Edwin Tampos y Amparo of kidnapping for ransom under
Article 267 of the Revised Penal Code, as amended, sentencing each of them to suffer the
death penalty is AFFIRMED with MODIFICATION. The aforementioned appellants are
ORDERED to pay, jointly and severally, to the victim Ed Henderson Tan and his parents
P350,000 as moral damages, and to pay, jointly and severally, to the Spouses Eddie and
Marileen Tan, the amount of P485,000 as actual damages.
In accordance with Section 25 of Rep. Act No. 7659 amending Section 83 of the Revised
Penal Code, let the records of this case be forthwith forwarded, upon finality of this
Decision, to the Office of the President for possible exercise of the pardoning power.
SO ORDERED.

THIRD DIVISION
[G.R. Nos. 138859-60. February 22, 2001]

ALVAREZ ARO YUSOP, petitioner, vs. The Honorable SANDIGANBAYAN

(First Division), respondent.
DECISION
PANGANIBAN, J.:

The right of a person to preliminary investigation is recognized by the law and is governed
by the Rules of Court. However, the failure to accord this right does not ipso facto result in
the dismissal of the information; the case is merely suspended, and the prosecutor directed
to conduct the proper investigation.
The Case

Before us is a Petition for Certiorari under Rule 65 of the Rules of Court, assailing two
[1]

[2]

Orders of the Sandiganbayan, both dated February 15, 1999. The first Order rejected
the attempt of petitioner to stop his arraignment in Criminal Case Nos. 24524-25, on the
ground that he had been denied the right to a preliminary investigation. In the assailed
second Order, the Sandiganbayan directed that a plea of not guilty be entered for all the
accused, including herein petitioner.
The Facts

Acting on an Affidavit-Complaint

[3]

filed by a certain Erlinda Fadri, the Office of the

[4]

Ombudsman-Mindanao issued an Order dated September 19, 1995, naming the following
as respondents: Benjamin Arao, Frederick Winters, Pelaez Pantaran, Eduardo Dablo, Efren
Sissay and the city jail warden of Pagadian City. The Order also required respondents,
within ten days from receipt thereof to submit their counter-affidavits and other pieces of
controverting evidence.

[5]

The Office of the Ombudsman for Mindanao issued a Resolution dated January 15, 1998,
recommending the prosecution of the aforenamed respondents for violation of Article 269 of
the Revised Penal Code and Section 3-a in relation to Section 3-e of Republic Act No. 3019
as amended. Significantly, the name of Petitioner Alvarez A. Yusop was included as one of
the persons to be prosecuted, although he was not one of the original respondents
mentioned in the Order of September 19, 1995. Ombudsman Aniano A. Desierto approved
the recommendation.
Accordingly, two Informations were filed with the Sandiganbayan. They were docketed as
Criminal Case Nos. 24524 (violation of Section 3-a of RA 3019) and 24525 (unlawful arrest
under Article 269 of the Revised Penal Code).
On April 16, 1998, an Order of Arrest was issued by the Sandiganbayan in Criminal Case
No. 24524. Petitioner, however, posted a bail bond before the Regional Trial Court of
Dipolog City on May 20 of the same year. On the same day, he filed a Motion To Remand
Case To The Ombudsman - Mindanao For Preliminary Investigation.
In a Resolution dated June 8, 1998, the Sandiganbayan denied the Motion of petitioner for
his alleged failure to submit himself to the jurisdiction of the anti-graft court.
On August 8, 1998, petitioner filed a Motion to Dismiss, grounded again on the lack of
preliminary investigation. In an Order dated September 22, 1998, the Sandiganbayan
resolved not to take action on the Motion, because petitioner had not yet submitted himself
to its jurisdiction insofar as Criminal Case No. 24525 was concerned.
On the scheduled arraignment on February 15, 1999, petitioner reiterated his claim that he
had not been accorded preliminary investigation. In its two assailed Orders, the
Sandiganbayan rejected his claim and proceeded with the arraignment.
Hence, this recourse.

[6]
Ruling of the Sandiganbayan

The Sandiganbayan rejected petitioners plea for preliminary investigation in this wise:
This morning, the accused herein appeared for arraignment duly represented by their
counsel. Before proceeding, Atty. Omar A. Rivera appearing in behalf of accused Yusop
informed this court of his reservations about proceeding with the arraignment this
morning, primarily on the ground that accused Yusop did not undergo preliminary
investigation, with the additional claim that he had not been furnished any notice nor was
he informed of the proceedings before the Ombudsman with respect to these cases. It
would appear that one of the reasons [therefor] is that the accused despite notice of the
existence of the accusation against him in Criminal Case No. 24525, had not given any
timely notice nor any statement of any alleged inadequacy of the proceeding regarding the
filing of the Information herein; thus, the Court is not persuaded that the claim of the
accused Yusop with regard to the inadequacy of the proceedings as against him could still
be validly entertained at this time. This is more particularly significant under Section 27 of
Republic Act 6770 and x x x Criminal Cases 24524 and 24525 refer to the same incident
although the prosecution, for its part, has filed Informations under different statutes
covering the same incident. Thus, the claim of accused Yusop that he was not notified with

respect to one of the cases on an identical set of facts herein is not [of] particular
significance since this would be indulging in a superfluity.

xxxxxxxxx
Thus, in view of all the following, the Court will now proceed to the arraignment of the
accused herein.
The Issue

Although the parties did not specify the issue in this case, it is clear from their submissions
that they are asking this Court to resolve this question: Whether the Sandiganbayan, despite
being informed of the lack of preliminary investigation with respect to petitioner, in
Criminal Case No. 24524, committed grave abuse of discretion in proceeding with his
arraignment.
The Courts Ruling

The Petition is meritorious in part. While petitioner is entitled to preliminary investigation,

the case against him should not be dismissed.
Main Issue:
Preliminary Investigation

Preliminary investigation is an inquiry or proceeding to determine whether there is

sufficient ground to engender a well-founded belief that a crime has been committed and
[7]

the respondent is probably guilty thereof, and should be held for trial.
The Court
explained that the rationale of a preliminary investigation is to protect the accused from the
inconvenience, expense and burden of defending himself in a formal trial unless the
reasonable probability of his guilt shall have been first ascertained in a fairly summary
[8]

proceeding by a competent officer.

The Rules of Court requires such investigation before an information for an offense
[9]

punishable by at least four years, two months and one day may be filed in court. The old
Rules, on the other hand, mandates preliminary investigation of an offense cognizable by
[10]

the regional trial court.

Petitioner is charged in Criminal Case No. 24524 with violation of Section 3-a of RA 3019.
Such offense is punishable with, among other penalties, imprisonment of six years and one
[11]

month to fifteen years.

Under the aforecited Rules, whether in the old or the revised
version, he is entitled to a preliminary investigation.
It is undisputed, however, that before the Information against petitioner was filed, no
preliminary investigation had been conducted. In fact, the Office of the Ombudsman
[12]

admitted that petitioner was denied of his right to preliminary investigation.

We find no basis for the Sandiganbayans ruling that petitioner had not given timely notice
nor any statement of the alleged inadequacy of the proceeding regarding the filing of the
Information.
First, there was no showing that petitioner was notified of the charges filed by Erlinda

Fadri. As earlier noted, he had not been named as a respondent in the September 19, 1995
Order of the Office of the Ombudsman in Mindanao. His name did not even appear in the
[13]

caption of its January 15, 1998 Resolution,

which recommended the filing of charges
against the accused. Indeed, in his Compliance with the August 26, 1998 Sandiganbayan
[14]

Resolution,
Special Prosecution Officer Diosdado V. Calonge manifested that petitioner
was not notified of the proceedings of the preliminary investigation and was accordingly not
[15]

given the opportunity to be heard thereon.

After learning of the filing of the Information against him when he was served a Warrant of
Arrest, petitioner did not dally. He immediately informed the Sandiganbayan that no
preliminary investigation had been conducted in regard to him. Several months later,
moments before his arraignment, he reiterated his prayer that the preliminary investigation
be conducted. In this light, the Sandiganbayan erred in saying that he had not given the
court timely notice of this deficiency.
Even assuming that prior to the filing of the Information, petitioner had known that the
proceedings and the investigation against his co-accused were pending, he cannot be
expected to know of the investigators subsequent act of charging him. Precisely, he had not
been previously included therein and, consequently, he had not been notified thereof.
[16]

In Go v. Court of Appeals,
this Court held that the right to preliminary investigation is
waived when the accused fails to invoke it before or at the time of entering a plea at
arraignment. Conversely, if the accused does invoke it before arraignment, as the petitioner
did in this case, the right is not waived.
Neither did the filing of a bail bond constitute a waiver of petitioners right to preliminary
investigation. Under Section 26, Rule 114 of the Revised Rules of Criminal Procedure, [a]n
application for or admission to bail shall not bar the accused from challenging the validity
of his arrest or the legality of the warrant issued therefor, or from assailing the regularity or
questioning the absence of a preliminary investigation of the charge against him, provided
that he raises them before entering his plea. x x x.
We stress that the right to preliminary investigation is substantive, not merely formal or
technical. To deny it to petitioner would deprive him of the full measure of his right to due
process.

[17]

Hence, preliminary investigation with regard to him must be conducted.

[18]

We disagree with the Sandiganbayans reliance on Section 27 of Republic Act 6770.

This
provision cannot justify the evasion of the requirement set forth in the Rules of Court for
conducting preliminary investigation. The law does not sanction such interpretation, for it
deals merely with the finality of orders, directives and decisions of the Office of the
Ombudsman -- not the deprivation of the substantive right to a preliminary investigation.
Moreover, petitioner cannot be bound by the Ombudsmans January 15, 1998 Resolution,
which recommended the filing of charges. He was not a party to the case and was not

accorded any right to present evidence on his behalf.

In any event, even the Ombudsman agrees that petitioner was deprived of this right and
believes that the former has the duty x x x to see to it that the basic rudiments of due process
[19]

are complied with. For its part, the Sandiganbayan opted to remain silent when asked by
this Court to comment on the Petition.
Dismissal of the Charges
Not Justified

Petitioner also prays that the cases against him be dismissed for lack of preliminary
[20]

investigation.
We disagree. In the first place, nowhere in the Revised Rules of Criminal
Procedure, or even the old Rules, is there any mention that this lack is a ground for a
[21]

motion to quash.
Furthermore, it has been held that responsibility for the absence of a
preliminary investigation does not go to the jurisdiction of the court but merely to the
regularity of the proceedings.
Gomez:

[22]

We reiterate the following ruling of the Court in People v.

If there were no preliminary investigations and the defendants, before entering their plea,
invite the attention of the court to their absence, the court, instead of dismissing the
information, should conduct such investigation, order the fiscal to conduct it or remand the
case to the inferior court so that the preliminary investigation may be conducted.

[23]

In sum, Criminal Case No. 24524 must be suspended with respect to petitioner even if the
case is already undergoing trial, because [t]o reach any other conclusion here, that is, to
hold that petitioners rights to a preliminary investigation and to bail were effectively
obliterated by evidence subsequently admitted into the record would be to legitimize the
deprivation of due process and to permit the government to benefit from its own wrong or
culpable omission and effectively to dilute important rights of accused persons well-nigh to
[24]

the vanishing point.

WHEREFORE, the Petition is partially GRANTED. The assailed Orders are REVERSED,
and the Office of the Ombudsman is hereby ORDERED to conduct forthwith a preliminary
investigation of the charge of violation of Section 3-a of RA 3019 against Petitioner Alvarez
Aro Yusop. The trial on the merits of Criminal Case No. 24524 shall be SUSPENDED in
regard to petitioner until the conclusion of the preliminary investigation. No
pronouncement as to costs.
SO ORDERED.
Melo, (Chairman), Vitug, Gonzaga-Reyes, and Sandoval-Gutierrez, JJ., concur.