Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-20569 October 29, 1923
THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellee,
vs.
J. J. KOTTINGER, defendant-appellant.
Fisher, Dewitt, Perkins and Brady for appellant.
Attorney-General Villa-Real for appellee.
MALCOLM, J.:
The question to be here decided is whether or not pictures portraying the
inhabitants of the country in native dress and as they appear and can be
seen in the regions in which they live, are absence or indecent.
Surprising as it may seem, the question is one of first impression not
alone in the Philippine Islands, but in the United States, Great Britain,
and elsewhere. This will explain why a case which otherwise would be
heard and voted in Division has been submitted to the court in banc for
decision.
On November 24, 1922, detective Juan Tolentino raided the premises
known as Camera Supply Co. at 110 Escolta, Manila. He found and
confiscated the post-cards which subsequently were used as evidence
against J. J. Kottinger, the manager of the company.
Out of these facts arose the criminal prosecution of J. J. Kottinger in the
Court of First Instance of Manila. The information filed in court charged
him with having kept for sale in the store of the Camera Supply Co.,
obscene and indecedent pictures, in violation of section 12 of Act No.
277. To this information, the defendant interposed a demurrer based
upon the ground that the facts alleged therein did not constitute an
offense and were not contrary to law; but trial court overruled the
demurrer and the defendant duly excepted thereto. Following the
presentation of evidence by the Government and the defense, judgment
was rendered finding the defendant guilty of the offense charged and
sentencing him to pay a fine of P50 with subsidiary imprisonment in
case of insolvency, and the costs.
The five errors assigned by defendant-appellant in this court divide
themselves into two general issues. The first point sustained by counsel
for the appellant is in nature a technical objection, growing out of the
defendant's demurrer. The second point, in reality the decesive issue, is
as suggested in the beginning of the decision. We will take upon the
assignments of errors as thus classified in order.
Act No. 277 is the Philippine Libel Law. But included therein is a
section, No. 12, making obscene or indecent publications
misdemeanors. Said section 12 which, it is contended by the
Government, has here been violated, and which, appellant argues, does
not apply to the information and the facts, reads as follow:
Any person who writes, composes, stereotypes, prints, publishes, sells,
or keeps for sale, distributes, or exhibits any obscene or indecent
writing, paper, book, or other matter, or who designs, copies, draws,
engraves, paints, or otherwise prepares any obscene picture or print, or
who moulds, cuts, casts, or otherwise makes any obscene or indecent
figure, or who writes, composes, or prints any notice or advertisement of
any such writing, paper, book, print, or figure shall be guilty of a
misdemeanor and punished by a fine of not exceeding one thousand
dollars or by imprisonment not exceeding one year, or both.
Counsel has gone to the trouble to make a careful analysis of section 12
of the Libel Law which is intended to bear out his thesis, first, that
section 12 does not prohibit the taking, selling, and publishing of
1
alleged obscene and indecent pictures and prints, and second, that the
information in this case charges no offense prohibited by section 12.
Recall, however, that the law provides punishment, among other things,
for any person who keeps for sale or exhibits any absence or indecent
writing, paper, book, or other matter, and that the information charges
the defendant, among other things, with having wilfully and feloniously
kept for sale, distribution, or exhibition, obscene and indecent pictures.
The phrase in the law "or other matter", was apparently added as a sort
of "catch-all." While limited to that which is of the same kind as its
antecedent, it is intended to cover kindred subjects. The rule of ejusdem
generis invoked by counsel is by no means a rule of universal
application and should be made to carry out, not to defeat, the legislative
intent. Even if the phrase "or other matter" be cobstrued to mean "or
other matter of like kind," pictures and postcards are not so far unrelated
to writings, papers, and books, as not to be covered by the general words
(Commonwealth vs. Dejardin [1878], 126 Mass., 46; 30 Am. Rep., 652;
Brown vs. Corbin [1889], 40 Minn., 508).
The line of argumentation is more refined that practical. Once conceded
that section 12 of Act No. 277 does not cover the present case, there yet
remain for application article 571, No. 2, of the penal code, and section
730 of the Revised Ordinances of the City of Manila. The section of the
Revised Ordinances cited is most specific when it provides in part that
no person shall "exhibit, circulate, distribute, sell, offer or expose for
sale, or give or deliver to another, or cause the same to be done, any
lewd, indecent, or absence book, picture, pamphlet, card, print, paper,
writing, mould, cast, figure, or any other thing."
While admittedly the information is lacking in precision and while the
content of section 12 of the Libel Law is not as inclusive as it might be,
we yet conclude that the information is not fatally defective, and that
said section 12 covers the alleged facts.
We come now to decide the main issue. We repeat that our own
researches have confirmed the statement of counsel that no one parrallel
case be found. We must perforce reason from the general to the specific
and from universal principle to actual fact.
The pictures which it is argued offend against the law on account of
being obscene and indecent, disclose six different postures of non-
Christian inhabitants of the Philippines. Exhibit A carries the legend
"Philippines, Bontoc Woman." Exhibit A-1 is a picture of five young
boys and carries the legend "Greetings from the Philippines." Exhibit A-
2 has the legend "Ifugao Belle, Philippines. Greetings from the
Philippines." Exhibit A-3 has the legend "Igorot Girl, Rice Field
Costume." Exhibit A-4 has the legend "Kalinga Girls, Philippines.
Exhibit A-5 has the legend "Moros Philippines."
The prosecution produced no evidence proving the postcards obscene
and indecent because it thought the post-cards themselves the best
evidence of that fact. The fiscal admitted in open court "that those
pictures represented the natives (non-Christians) in their native dress."
The defendant, on the other hand, attempted to show that the pictures as
true to life. Dr. H. Otley Beyer, Professor in the University of the
Philippines, corroborated by other witnesses, testified from his studies
in various parts of the Islands, such as the Mountain Province, Abra,
Palawan, and Mindanao and Sulu, that none of the pictures represented
poses which he had not observed on various occasions, and that the
costumes worn by the people in the pictures are the true costumes
regularly worn by them. Are such pictures obscene or indecent?
The word "obscene" ands the term "obscenity" may be defined as
meaning something offensive to chastify, decency, or delicacy.
"Indeceny" is an act against behavior and a just delicacy. The test
ordinarily followed by the courts in determining whether a particular
publication or other thing is obscene within the meaning of the statutes,
is whether the tendency of the matter charged as obscene, is to deprave
or corrupt those whose minds are open to such immoral influences and
into whose hands a publication or other article charged as being obscene
may fall. Another test of obscenity is that which shocks the ordinary and
common sense of men as an indecency, (29 Cyc., 1315; 8 R. C. L., 312.)
2

The Philippine statute does not attempt to define obscene or indecent
pictures, writings, papers, or books. But the words "obscene or
indecent" are themselves descriptive. They are words in common used
and every person of average intelligence understand their meaning.
Indeed, beyond the evidence furnished by the pictures themselves, there
is but little scope for proof bearing on the issue of obscenity or
indecency. Whether a picture is obscene or indecent must depend upon
the circumstances of the case. (People vs. Muller [1884], 96 N. Y., 408;
48 Am. Rep., 635.)
Considerable light can be thrown on the subject by turning to the
Federal Laws prohibiting the use of the mails for obscene matter and
prohibiting the importation into the Philippine Islands of articles, etc., of
obscene or indecent character. (U. S. Rev. Stat., art. 3893; 36 stat. at L.,
135; 7 Fed. Stat. Ann., 1194, sec. 3[b].)
"Obscene," as used in the Federal Statutes making it a criminal offense
to place in the mails any obscene, lewd, or lascivious publication,
according to the united States Supreme Court and lesser Federal courts,
signifies that form of immorality which has relation to sexual impurity,
and has the same meaning as is given at common law in prosecutions
for obscene libel. (Swearingen vs. U. S. [1896], 161 U. S., 446; U. S. vs.
Males [1892], 51 Fed., 41; 6 Words and Phrases, 4888, 4889.)
The case of United States vs. Harmon ([189], 45 Fed., 414), grew out of
an indictment for despositing an obscene publication in a United States
post-office in violator of the Postal Law. Judge Philips said:
The statute does not undertake to define the meaning of the terms
"obscene," etc., further than may be implied by the succeeding phrase,
"or other publication of an indecent character." On the well-organized
canon of construction these words are presumed to have been employed
by the law-maker in their ordinary acceptation and use.
As they cannot be said to have acquired any technical significance as
applied to some particular matter, calling, or profession, but are terms of
popular use, the court might perhaps with propriety leave their import to
the presumed intelligence of the jury. A standard dictionary says that
"obscene" mean "offensive to chastity and decency; expressing or
presenting to the mind or view something which delicacy, purity, and
decency forbid to be exposed." This mere dictionary definition may be
extended or amplified by the courts in actual practice, preserving,
however, its essential though, and having always due regard to the
popular and proper sense in which the legislature employed the term.
Chief Justice Cockburn, in Rex vs. Hicklin (L. R. 3 Q. B., 360), said:
"The test of obscenity is this: Where the tendency of the matter charged
as obscene is to deprave and corrupt those whose minds are open to
such immoral influences, and into whose hands a publication of this sort
may fall;" and where "it who suggest to the minds of the young of either
sex, or even to persons of more advanced years, thoughts of the most
impure and libidinous character." So, also, it has been held that a book is
obscene which is offensive to decency or chastity, which is immodest,
which is indelicate, impure, causing lewd thoughts of an immoral
tendency." U. S. vs. Bennet, 16 Blatchf., 338. Judge Thayer, in U. S. vs.
Clarke, 38 Fed. Rep., 732, observed:
"The word "obscene" ordinarily means something which is offensive to
chastity; something that is foul or filthy, and for that reason is offensive
to pure-minded persons. That is the meaning of the word in the
concrete; but when used, as in the statute, to describe the character of a
book, pamphlet, or paper, it means containing immodest and indecent
matter, the reading whereof would have a tendency to deprave and
corrupt the minds of those into whose hands the publication might fall
whose minds are open to such immoral influences."
Laws of this character are made for society in the aggregate, and not in
particular. So, while there may be individuals and societies of men and
women of peculiar motions are idiosyncrasies, whose moral sense
would neither be depraved nor offended by the publication now under
consideration, yet the exceptional sensibility, or want of sensibility, of
such cannot be allowed as a standard by which its obscenity or
3
indecency is to be tested. Rather is the test, what is the judgment of the
aggregate sense of the community reached by it? What is its probable,
reasonable effect on the sense of decency, purity, and chastity of society,
extending to the family, made up of men and women, young boys and
girls, — the family, which is the common nursery of mankind, the
foundation rock upon which the state reposes?
. . . To the pure all things are pure, is too poetical for the actualities of
practical life. There is in the popular conception and heart such a thing
as modesty. It was born in the Garden of Eden. After Adam and Eve ate
of the fruit of the tree of knowledge they passed from the condition of
perfectibility which some people nowadays aspire to, and, their eyes
being opened, they discerned that there was both good and evil; "and
they knew that they were naked; and they sewed fig leaves together, and
made themselves aprons." From that day to this civilized man has
carried with him the sense of shame, — the feeling that there were some
things on which the eye — the mind — should not look; and where men
and women become so depraved by the use, or so insensate from
perverted education, that they will not evil their eyes, nor hold their
tongues, the government should perform the office for them in
protection of the social compact and the body politic.
As above intimated, the Federal statue prohibits the importation or
shipment into the Philippine Islands of the following: "Articles, books,
pamphlets, printed matter, manuscripts, typewritten matter, paintings,
illustrations, figures or objects of obscene or indecent character or
subversive of public order." There are, however, in the record, copies of
reputable magazines which circulate freely thruout the United States and
other countries, and which are admitted into Philippines without
question, containing illustrations identical in nature to those forming the
basis of the prosecution at bar. Publications of the Philippine
Government have also been offered in evidence such as Barton's "Ifugao
Law," the "Philippine Journal of Science" for October, 1906, and the
Reports of the Philippine Commission for 1903, 1912, and 1913, in
which are found illustrations either exactly the same or nearly akin to
those which are now impugned.
It appears therefore that a national standard has been set up by the
Congress of the United States. Tested by that standard, it would be
extremely doubtful if the pictures here challenged would be held
obscene or indecent by any state of Federal court. It would be
particularly unwise to sanction a different type of censorship in the
Philippines that in the United States, or for that matter in the rest of the
world.
The pictures in question merely depict persons as they actually live,
without attempted presentation of persons in unusual postures or dress.
The aggregate judgment of the Philippine community, the moral sense
of all the people in the Philippines, would not be shocked by
photographs of this type. We are convicted that the post-card pictures in
this case cannot be characterized as offensive to chastity, or foul, or
filthy.
We readily understand the laudable motives which moved the
Government to initiate this prosecution. We fully appreciate the
sentiments of colleagues who take a different view of the case. We
would be the last to offend the sensibilities of the Filipino people and
the sanction anything which would hold them up to ridicule in the eyes
of mankind. But we emphasize that we are not deciding a question in
political theory or in social ethics. We are dealing with a legal question
predicated on a legal fact, and on this question and fact, we reach the
conclusion that there has not been proved a violation of section 12 of the
Libel Law. When other cases predicated on other states of facts are
brought to our attention, we will decide them as they arise.
We seem to recall the statement of counsel that the proprietor of the
photographic concern whom he represents would on his own initiative
place suitable and explicit inscriptions on the pictures so that no one
may be misled as to them. Indeed, he might even go further and out of
consideration for the natural sensibilities of his customers, withdraw
from sale certain pictures which can be pointed out to him.
4
We hold that pictures portraying the inhabitants of the country in native
dress and as they appear and can be seen in the regions in which they
live, are not obscene or indecent within the meaning of the Libel Law.
Disagreeing therefore with the appellant on his technical argument but
agreeing with him on his main contention, it becomes our duty to order
the dismissal of the information. 1awph!l.net
pictures were exhibited, in the same fashion as these pictures are.
It is alleged that these pictures were taken from nature in non-Christian
regions. We agree that in said regions they are not, perhaps, regarded as
offensive to modesty, and, therefore, are accidentally not indecent there.
But in the City of Manila where they were exhibited, no doubt they are.

Judgment is reversed, the information is dismissed, and the defendant- And the law prohibits the exhibition not only of obscene pictures, but of
appellant is acquitted with all costs de oficio. So ordered. indecent as well. (Sec. 12, Act No. 277.)

Johnson, Street, Avanceña, Villamor and Johns, JJ., concur. I understand that the judgment appealed from should have been
affirmed.
Mr. Chief Justice Manuel Araullo was present at the time this case was
voted and then voted with Mr. Justice Romualdez. (Sgd.) E. FINLEY Araullo, C.J., concurs.
JOHNSON.

Separate Opinions

ROMUALDEZ, J., dissenting:

I do not agree with the view taken by the majority as to the nature of the
photographic pictures in question. While said pictures cannot, strictly,
be termed obscene, they must, however, be regarded as indecent, for
they are so.

Such pictures offend modesty and refinement, and for this reason, they
are indecent. This is shown by common sense. No woman claiming to
be decent would dare to stand before the public in Manila, where said

5
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-7295 June 28, 1957
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
MARINA PADAN Y ALOVA, COSME ESPINOSA, ERNESTO
REYES and JOSE FAJARDO, defendants.
MARINA PADAN Y ALOVA and JOSE FAJARDO, defendants-
appellants.
Augusto Revilla for appellant Jose Fajardo.
W. M. Bayhon for appellant Marina Padan y Alova.
Office of the Solicitor General Ambrosio Padilla and Solicitor Jose P.
Alejandro for appellee.
MONTEMAYOR, J.:
In the Court of First Instance of Manila, Marina Padan, Jose Fajardo y
Garcia, Cosme Espinosa, and Ernesto Reyes were charged with a
violation of Article 201 of the Revised Penal Code, said to have been
committed as follows:
That on or about the 13th day of September, 1953, in the city of Manila,
Philippines, the said accused conspiring and confederating together and
mutually helping one another, did then and there willfully, unlawfully
and feloniously exhibit or cause to be exhibited inside a building at the
corner of Camba Ext. and Morga Ext., Tondo, this City, immoral scenes
and acts, to wit: the said accused Jose Fajador y Garcia, being then the
manager and Ernesto Reyes y Yabut, as ticket collector and or exhibitor,
willfully ,unlawfully and feloniously hired their co-accused Marina
Palan y Alova and Cosme Espinosa y Abordo to act as performers or
exhibitionists to perform and in fact performed sexual intercourse in the
presence of many spectators, thereby exhibiting or performing highly
immoral and indecent acts or shows thereat.
Upon arraignment, all pleaded not guilty. Later, however, Marina Padan,
with the assistance of her counsel de parte and counsel de oficio, asked
for permission to withdraw her former plea of not guilty, which was
granted, and upon rearraignment, she pleaded guilty to the charge. In a
decision dated October 12, 1953, Marina Padan was found guilty as
charged and sentenced to six months and one day of prision correccional
and a fine of P200, with subsidiary imprisonment in case of insolvency,
not to exceed one-third of the principal penalty, with the accessory
penalties prescribed by the law, and to pay the proportionate costs. After
trial of the three remaining accused, they were all found guilty; Cosme
Espinosa and Ernesto Reyes were sentenced each to not less than six
months and one day of prision correccional and not more than one year,
one month and eleven days of prision correccional, to pay a fine of
P500, with subsidiary imprisonment in case of insolvency, not to exceed
one-third of the principal penalty, and to pay the proportionate costs.
Jose Fajardo was sentenced to not less than one year, one month and ten
days of prision correccional and not more than one year eight months
and twenty days, also of prision correccional, to pay a fine of P1,000,
with subsidiary imprisonment in case of insolvency, not to exceed one-
third of the principal penalty and to pay the proportionate costs. The
army steel bed, the army woolen blanket, the pillow, the ladies' panties,
and the men's underwear, described in Exhibit C, were declared
confiscated.
The four accused appealed in the decision, the appeal having been sent
to us. Appellants Espinosa and Reyes failed to file their briefs within the
period prescribed by law and their appeal was dismissed by resolution
of this Court of November 25, 1955, and the decision as to them became
final and executory on January 7, 1956, as appears from the entry of
judgment.
Because of her plea of guilty in the lower court, appellant Marina in her
6
appeal do not question her conviction; she merely urges the reduction of
the penalty by eliminating the prison sentence. We do not feel warranted
in interfering with the exercise of discretion in this matter, made by the
lower court presided by Judge Magno S. Gatmaitan. According to his
decision of October 12, 1953, in imposing the sentence, he already
considered Marina's plea of leniency, and so despite the
recommendation of the fiscal that she be fined P600.00 in addition to
the prison sentence of six months and one day, his honor reduced the
fine to only P200.
We believe that the penalty imposed fits the crime, considering its
seriousness. As far as we know, this is the first time that the courts in
this jurisdiction, at least this Tribunal, have been called upon to take
cognizance of an offense against morals and decency of this kind. We
have had occasion to consider offenses like the exhibition of still
moving pictures of women in the nude, which we have condemned for
obscenity and as offensive to morals. In those cases, one might yet claim
that there was involved the element of art; that connoisseurs of the
same, and painters and sculptors might find inspiration in the showing
of pictures in the nude, or the human body exhibited in sheer nakedness,
as models in tableaux vivants. But an actual exhibition of the sexual act,
preceded by acts of lasciviousness, can have no redeeming feature. In it,
there is no room for art. One can see nothing in it but clear and
unmitigated obscenity, indecency, and an offense to public morals,
inspiring and causing as it does, nothing but lust and lewdness, and
exerting a corrupting influence specially on the youth of the land. We
repeat that because of all this, the penalty imposed by the trial court on
Marina, despite her plea of guilty, is neither excessive nor unreasonable.
Going to the appeal of Jose Fajardo y Garcia, while he does not deny the
fact of the commission of the offense charged, he in its that he was not
the manager or the person incharge of the show or proceedings on the
night of September 13, 1953; that his participation, if he participate at
all, was to play the role of an innocent bystander, but that because of his
popularity in the neighborhood, being popularly known as a "siga-siga"
character, he was requested by the spectators to select the man and the
woman to engage or indulge in the actual act of coitus before the
spectators; that after making the selection, he did not even care to
witness the act but left the scene and returned to it only when he heard a
commotion produced by the raid conducted by the police.
The evidence on his active participation and that he was the manager
and one in charge of the show is however ample, even conclusive. We
have carefully examined such evidence, and we are satisfied that they
fully support the findings of the trial court. Such facts may be briefly
stated as follows: At the corner of Morga Extension and Camba
Extension, Tondo, Manila, was a one story building which judging from
the picture exhibited is nothing but a shed, with a floor space of eight by
fifteen meters which was mainly used for playing ping-pong. A ping-
pong table must have been placed in the center and on two sides were
built benches in tiers, so that the spectators seated on them could look
down and see the game. On September 13, 1953, however, the building
was used for a different purpose. It was to be the scene of what was said
to be an exhibition of human "fighting fish", the actual act of coitus or
copulation. It must have been advertised by word of mouth; tickets
therefor were sold at P3 each, and the show was supposed to begin at
8:00 o'clock in the evening. About that time of the night, there was
already a crowd around the building, but the people were not admitted
into it until about an hour later, and the show did not begin until about
9:15. The Manila Police Department must have gotten wind of the
affair; it bought tickets and provided several of its members who later
attended the show, but in plain clothes, and after the show conducted a
raid and made arrests. At the trial, said policemen testified as to what
actually took place inside the building. About two civilians who
attended the affair gave testimony as to what they saw.
The customers not provided with tickets actually paid P3 at the entrance
to defendant Ernesto Reyes. He also collected tickets. In all, there were
about ninety paying customers, while about sixteen were allowed to
enter free, presumably friends of the management. Jose Fajardo y Garcia
was clearly the manager of the show. He was at the door to see to it that
the customers either were provided with tickets or paid P3.00 entrance
7
fee. He even asked them from whom they had bought the tickets. He Time : 8:00 o'clock sharp,
ordered that an army steel bed be placed at the center of the floor,
covered with an army blanket and provided with a pillow. Once the and superimposed on the same is the rubber stamped name "Pepe
spectators, about 106 in number, were crowded inside that small Fajardo," which defendant Fajardo admits to be his name. Considering
building, the show started. Fajardo evidently to arouse more interest all the above circumstances, we agree with the trial court that Jose
among the customers, asked them to select among two girls presented Fajardo is the most guilty of the four, for he was the one who conducted
who was to be one of the principal actors. By pointing to or holding his the show and presumably derived the most profit or gain from the same.
hand over the head of each of the two women one after the other, and
judging by the shouts of approval emitted by the spectators, he decided As regards the penalty imposed by the trial court on appellant Fajardo,
that defendant Marina Padan was the subject of popular approval, and we agree with the Solicitor General that the same is correct, except the
he selected her. After her selection, the other woman named Concha, minimum thereof which is beyond the legal range, and which should be
left. Without much ado, Fajardo selected Cosme Espinosa to be Marina's reduced from one year, one month, and ten days of prision correccional
partner. Thereafter, Cosme and Marina proceeded to disrobe while to only six months of arresto mayor.
standing around the bed. When completely naked, they turned around to
exhibit their bodies to the spectators. Then they indulged in lascivious With the modification above-mentioned, the decision appealed from by
acts, consisting of petting, kissing, and touching the private parts of each Marina Padan and Jose Fajardo are hereby affirmed, with costs against
other. When sufficiently aroused, they lay on the bed and proceeded to both.
consummate the act of coitus in three different positions which we deem
unnecessary to describe. The four or five witnesses who testified for the Paras, C.J., Padilla, Reyes, A., Bautista Angelo, Labrador, Concepcion,
Government when asked about their reaction to what they saw, frankly Reyes, J.B.L., Endencia and Felix, JJ., concur.
admitted that they were excited beyond description. Then the police
who were among the spectators and who were previously provided with
a search warrant made the raid, arrested the four defendants herein, and
took pictures of Marina and Cosme still naked and of the army bed,
which pictures were presented as exhibits during the trial. From all this,
there can be no doubt that Jose Fajardo y Garcia contrary to what he
claims, was the person in charge of the show. Besides, as found by the
trial court and as shown by some of the tickets collected from the
spectators, submitted as exhibits, said tickets while bearing on one side
printed matter regarding an excursion to Balara to be held on August 30,
1953 from 7:00 a.m. to 5:00 p.m., sponsored by a certain club, on the
other side appears the following typewritten form, reading:

P3.00 Admit one

PLEASURE SHOW
Place: P. Morga Ext. and Camba Ext.

8
Republic of the Philippines
SUPREME COURT
Manila
THIRD DIVISION
G.R. No. 159751 December 6, 2006
GAUDENCIO E. FERNANDO and RUDY ESTORNINOS,
petitioners,
vs.
COURT OF APPEALS, respondent.
DECISION
QUISUMBING, J.:
This petition for review on certiorari assails the Decision1 dated March
21, 2003 and the Resolution dated September 2, 2003, of the Court of
Appeals in CA-G.R. CR No. 25796, which affirmed the Decision of the
Regional Trial Court of Manila (RTC), Branch 21, in Criminal Case No.
99-176582.
The RTC convicted Gaudencio E. Fernando and Rudy Estorninos for
violation of Article 2012 of the Revised Penal Code, as amended by
Presidential Decree Nos. 960 and 969, and sentenced each to
imprisonment of four (4) years and one (1) day to six (6) years of
prision correccional, and to pay the fine of P6,000 and cost of suit.
The facts as culled from the records are as follows.
Acting on reports of sale and distribution of pornographic materials,
officers of the Philippine National Police Criminal Investigation and
Detection Group in the National Capital Region (PNP-CIDG NCR)
conducted police surveillance on the store bearing the name of
Gaudencio E. Fernando Music Fair (Music Fair). On May 5, 1999,
Judge Perfecto Laguio of the Regional Trial Court of Manila, Branch
19, issued Search Warrant No. 99-1216 for violation of Article 201 of
the Revised Penal Code against petitioner Gaudencio E. Fernando and a
certain Warren Tingchuy. The warrant ordered the search of Gaudencio
E. Fernando Music Fair at 564 Quezon Blvd., corner Zigay Street,
Quiapo, Manila, and the seizure of the following items:
a. Copies of New Rave Magazines with nude obscene pictures;
b. Copies of IOU Penthouse Magazine with nude obscene pictures;
c. Copies of Hustler International Magazine with nude obscene pictures;
and
d. Copies of VHS tapes containing pornographic shows.3
On the same day, police officers of the PNP-CIDG NCR served the
warrant on Rudy Estorninos, who, according to the prosecution,
introduced himself as the store attendant of Music Fair. The police
searched the premises and confiscated twenty-five (25) VHS tapes and
ten (10) different magazines, which they deemed pornographic.
On September 13, 1999, petitioners with Warren Tingchuy, were
charged in an Information which reads as follows:
That on or about May 5, 1999, in the City of Manila, Philippines, the
said accused, did then and there willfully, unlawfully, feloniously,
publicly and jointly exhibit indecent or immoral acts, scenes or shows at
Music Fair, located at 564 Quezon Blvd., corner Zigay [S]t., Quiapo[,]
this City[,] by then and there selling and exhibiting obscene copies of x-
rated VHS Tapes, lewd films depicting men and women having sexual
intercourse[,] lewd photographs of nude men and women in explicating
(sic) positions which acts serve no other purpose but to satisfy the
market for lust or pornography to public view.
Contrary to law.4
9

When arraigned, petitioners and Tingchuy pleaded not guilty to the
offense charged. Thereafter, trial ensued.
The prosecution offered the confiscated materials in evidence and
presented the following witnesses: Police Inspector Rodolfo L. Tababan,
SPO4 Rolando Buenaventura and Barangay Chairperson Socorro
Lipana, who were all present during the raid. After the prosecution
presented its evidence, the counsel for the accused moved for leave of
court to file a demurrer to evidence, which the court granted. On
October 5, 2000, the RTC however denied the demurrer to evidence and
scheduled the reception of evidence for the accused. A motion for
reconsideration was likewise denied.
Thereafter, the accused waived their right to present evidence and
instead submitted the case for decision.5
The RTC acquitted Tingchuy for lack of evidence to prove his guilt, but
convicted herein petitioners as follows:
WHEREFORE, premises considered, the Court finds accused
GAUDENCIO FERNANDO and RUDY ESTORNINOS GUILTY
beyond reasonable doubt of the crime charged and are hereby sentenced
to suffer the indeterminate penalty of FOUR (4) YEARS and ONE (1)
DAY as minimum to SIX (6) YEARS of prision correccional as
maximum, to pay fine of P6,000.00 each and to pay the cost.
For failure of the prosecution to prove the guilt of accused WARREN
TINGCHUY beyond reasonable doubt, he is hereby ACQUITTED of
the crime charged.
The VHS tapes and the nine (9) magazines utilized as evidence in this
case are hereby confiscated in favor of the government.
SO ORDERED.6
Petitioners appealed to the Court of Appeals. But the appellate
courtlatter affirmed in toto the decision of the trial court, as follows,
WHEREFORE, finding no reversible error on the part of the trial court,
the decision appealed from is AFFIRMED IN TOTO.
Costs against accused-appellants.
SO ORDERED.7
Hence the instant petition assigning the following errors:
I. Respondent court erred in convicting petitioner Fernando even if he
was not present at the time of the raid
II. Respondent erred in convicting petitioner Estorninos who was not
doing anything illegal at the time of the raid.8
Simply, the issue in this case is whether the appellate court erred in
affirming the petitioners’ conviction.
Petitioners contend that the prosecution failed to prove that at the time
of the search, they were selling pornographic materials. Fernando
contends that since he was not charged as the owner of an establishment
selling obscene materials, the prosecution must prove that he was
present during the raid and that he was selling the said materials.
Moreover, he contends that the appellate court’s reason for convicting
him, on a presumption of continuing ownership shown by an expired
mayor’s permit, has no sufficient basis since the prosecution failed to
prove his ownership of the establishment. Estorninos, on the other hand,
insists that he was not an attendant in Music Fair, nor did he introduce
himself so.9
The Solicitor General counters that owners of establishments selling
obscene publications are expressly held liable under Article 201, and
petitioner Fernando’s ownership was sufficiently proven. As the owner,
10
according to the Solicitor General, Fernando was naturally a seller of the
prohibited materials and liable under the Information. The Solicitor
General also maintains that Estorninos was identified by Barangay
Chairperson Socorro Lipana as the store attendant, thus he was likewise
liable.10
At the outset, we note that the trial court gave petitionersthem the
opportunity to adduce present their evidence to disprove refute the
prosecution’s evidence.11 . Instead, they waived their right to present
evidence and opted to submitted the case for decision.a1 12 The trial
court therefore resolved the case on the basis of prosecution’s evidence
against the petitioners.
As obscenity is an unprotected speech which the State has the right to
regulate, the State in pursuing its mandate to protect, as parens patriae,
the public from obscene, immoral and indecent materials must justify
the regulation or limitation.
One such regulation is Article 201 of the Revised Penal Code. To be
held liable, the prosecution must prove that (a) the materials,
publication, picture or literature are obscene; and (b) the offender sold,
exhibited, published or gave away such materials.13 Necessarily, that
the confiscated materials are obscene must be proved.
Almost a century has passed since the Court first attempted to define
obscenity in People v. Kottinger.14 There the Court defined obscenity as
something which is offensive to chastity, decency or delicacy. The test
to determine the existence of obscenity is, whether the tendency of the
matter charged as obscene, is to deprave or corrupt those whose minds
are open to such immoral influences and into whose hands a publication
or other article charged as being obscene may fall.15 Another test
according to Kottinger is "that which shocks the ordinary and common
sense of men as an indecency."16 But, Kottinger hastened to say that
whether a picture is obscene or indecent must depend upon the
circumstances of the case, and that ultimately, the question is to be
decided by the judgment of the aggregate sense of the community
reached by it.17
Thereafter, the Court in People v. Go Pin18 and People v. Padan y
Alova, et al.,19 involving a prosecution under Article 201 of the Revised
Penal Code, laid the tests which did little to clearly draw the fine lines
of obscenity.
In People v. Go Pin, the Court said:
If such pictures, sculptures and paintings are shown in art exhibits and
art galleries for the cause of art, to be viewed and appreciated by people
interested in art, there would be no offense committed. However, the
pictures here in question were used not exactly for art’s sake but rather
for commercial purposes. In other words, the supposed artistic qualities
of said pictures were being commercialized so that the cause of art was
of secondary or minor importance. Gain and profit would appear to have
been the main, if not the exclusive consideration in their exhibition; and
it would not be surprising if the persons who went to see those pictures
and paid entrance fees for the privilege of doing so, were not exactly
artists and persons interested in art and who generally go to art
exhibitions and galleries to satisfy and improve their artistic tastes, but
rather people desirous of satisfying their morbid curiosity and taste, and
lust, and for love [of] excitement, including the youth who because of
their immaturity are not in a position to resist and shield themselves
from the ill and perverting effects of these pictures.20
People v. Padan y Alova, et al. in a way reaffirmed the standards set in
Go Pin but with its own test of "redeeming feature." The Court therein
said that:
[A]n actual exhibition of the sexual act, preceded by acts of
lasciviousness, can have no redeeming feature. In it, there is no room for
art. One can see nothing in it but clear and unmitigated obscenity,
indecency, and an offense to public morals, inspiring and causing as it
does, nothing but lust and lewdness, and exerting a corrupting influence
specially on the youth of the land.21
11

Notably, the Court in the later case of Gonzales v. Kalaw Katigbak,22
involving motion pictures, still applied the "contemporary community
standards" of Kottinger but departed from the rulings of Kottinger, Go
Pin and Padan y Alova in that the Court measures obscenity in terms of
the "dominant theme" of the material taken as a "whole" rather than in
isolated passages.
Later, in Pita v. Court of Appeals, concerning alleged pornographic
publications, the Court recognized that Kottinger failed to afford a
conclusive definition of obscenity, and that both Go Pin and Padan y
Alova raised more questions than answers such as, whether the absence
or presence of artists and persons interested in art and who generally go
to art exhibitions and galleries to satisfy and improve their artistic tastes,
determine what art is; or that if they find inspiration in the exhibitions,
whether such exhibitions cease to be obscene.23 Go Pin and Padan y
Alova gave too much latitude for judicial arbitrament, which has
permitted ad lib of ideas and "two-cents worths" among judges as to
what is obscene or what is art.24
The Court in Pita also emphasized the difficulty of the question and
pointed out how hazy jurisprudence is on obscenity and how
jurisprudence actually failed to settle questions on the matter.
Significantly, the dynamism of human civilization does not help at all. It
is evident that individual tastes develop, adapt to wide-ranging
influences, and keep in step with the rapid advance of civilization.25 It
seems futile at this point to formulate a perfect definition of obscenity
that shall apply in all cases.
There is no perfect definition of "obscenity" but the latest word is that of
Miller v. California which established basic guidelines, to wit: (a)
whether to the average person, applying contemporary standards would
find the work, taken as a whole, appeals to the prurient interest; (b)
whether the work depicts or describes, in a patently offensive way,
sexual conduct specifically defined by the applicable state law; and (c)
whether the work, taken as a whole, lacks serious literary, artistic,
political, or scientific value.26 But, it would be a serious misreading of
Miller to conclude that the trier of facts has the unbridled discretion in
determining what is "patently offensive."27 No one will be subject to
prosecution for the sale or exposure of obscene materials unless these
materials depict or describe patently offensive "hard core" sexual
conduct.28 Examples included (a) patently offensive representations or
descriptions of ultimate sexual acts, normal or perverted, actual or
simulated; and (b) patently offensive representations or descriptions of
masturbation, excretory functions, and lewd exhibition of the genitals.29
What remains clear is that obscenity is an issue proper for judicial
determination and should be treated on a case to case basis and on the
judge’s sound discretion.
In this case, the trial court found the confiscated materials obscene and
the Court of Appeals affirmed such findings. The trial court in ruling
that the confiscated materials are obscene, reasoned as follows:
Are the magazines and VHS tapes confiscated by the raiding team
obscene or offensive to morals? . . .
Pictures of men and women in the nude doing the sexual act appearing
in the nine (9) confiscated magazines namely Dalaga, Penthouse,
Swank, Erotic, Rave, Playhouse, Gallery and two (2) issues of QUI are
offensive to morals and are made and shown not for the sake of art but
rather for commercial purposes, that is gain and profit as the exclusive
consideration in their exhibition. The pictures in the magazine exhibited
indecent and immoral scenes and acts…The exhibition of the sexual act
in their magazines is but a clear and unmitigated obscenity, indecency
and an offense to public morals, inspiring…lust and lewdness, exerting
a corrupting influence especially on the youth. (Citations omitted)
The VHS tapes also [exhibit] nude men and women doing the sexual
intercourse. The tape entitled "Kahit sa Pangarap Lang" with Myra
Manibog as the actress shows the naked body of the actress. The tape
exhibited indecent and immoral scenes and acts. Her dancing
movements excited the sexual instinct of her male audience. The motive
12
may be innocent, but the performance was revolting and shocking to
good minds...
In one (1) case the Supreme Court ruled:
Since the persons who went to see those pictures and paid entrance fees
were usually not artists or persons interested in art to satisfy and inspire
their artistic tastes but persons who are desirous of satisfying their
morbid curiosity, taste and lust and for [love] of excitement, including
the youth who because of their immaturity are not in a position to resist
and shield themselves from the ill and perverting effects of the pictures,
the display of such pictures for commercial purposes is a violation of
Art. 201. If those pictures were shown in art exhibits and art galleries
for the cause of art, to be viewed and appreciated by people interested in
art, there would be no offense committed (People vs. Go Pin, 97 Phil
418).
[B]ut this is not so in this case.30
Findings of fact of the Court of Appeals affirming that of the trial court
are accorded great respect, even by this Court, unless such findings are
patently unsupported by the evidence on record or the judgment itself is
based on misapprehension of facts.31 In this case, petitioners neither
presented contrary evidence nor questioned the trial court’s findings.
There is also no showing that the trial court, in finding the materials
obscene, was arbitrary.
Did petitioners participate in the distribution and exhibition of obscene
materials?
We emphasize that mere possession of obscene materials, without
intention to sell, exhibit, or give them away, is not punishable under
Article 201, considering the purpose of the law is to prohibit the
dissemination of obscene materials to the public. The offense in any of
the forms under Article 201 is committed only when there is publicity.32
The law does not require that a person be caught in the act of selling,
giving away or exhibiting obscene materials to be liable, for as long as
the said materials are offered for sale, displayed or exhibited to the
public. In the present case, we find that petitioners are engaged in
selling and exhibiting obscene materials.
Notably, the subject premises of the search warrant was the Gaudencio
E. Fernando Music Fair, named after petitioner Fernando.33 The
mayor’s permit was under his name. Even his bail bond shows that Hhe
lives in the same place.34 Moreover, the mayor’s permit dated August 8,
1996, shows that he is the owner/operator of the store.35 While the
mayor’s permit had already expired, it does not negate the fact that
Fernando owned and operated the establishment. It would be absurd to
make his failure to renew his business permit and illegal operation a
shield from prosecution of an unlawful act. Furthermore, when he
preferred not to present contrary evidence, the things which he
possessed were presumptively his.36
Petitioner Estorninos is likewise liable as the store attendant actively
engaged in selling and exhibiting the obscene materials. Prosecution
witness Police Inspector Tababan, who led the PNP-CIDG NCR that
conducted the search, identified him as the store attendant upon whom
the search warrant was served.37 Tababan had no motive for testifying
falsely against Estorninos and we uphold the presumption of regularity
in the performance of his duties. Lastly, this Court accords great respect
to and treats with finality the findings of the trial court on the matter of
credibility of witnesses, absent any palpable error or arbitrariness in
their findings.38 In our view, no reversible error was committed by the
appellate court as well as the trial court in finding the herein petitioners
guilty as charged.
WHEREFORE, the Decision dated March 21, 2003 and the Resolution
dated September 2, 2003, of the Court of Appeals affirming the
Decision of the Regional Trial Court of Manila, Branch 21, in Criminal
Case No. 99-176582 are hereby AFFIRMED.
SO ORDERED.
13
Carpio, Carpio Morales, Tinga, and Velasco, Jr., JJ., concur.

14
Republic of the Philippines
SUPREME COURT
Manila
THIRD DIVISION
G.R. No. 159751 December 6, 2006
GAUDENCIO E. FERNANDO and RUDY ESTORNINOS,
petitioners,
vs.
COURT OF APPEALS, respondent.
DECISION
QUISUMBING, J.:
This petition for review on certiorari assails the Decision1 dated March
21, 2003 and the Resolution dated September 2, 2003, of the Court of
Appeals in CA-G.R. CR No. 25796, which affirmed the Decision of the
Regional Trial Court of Manila (RTC), Branch 21, in Criminal Case No.
99-176582.
The RTC convicted Gaudencio E. Fernando and Rudy Estorninos for
violation of Article 2012 of the Revised Penal Code, as amended by
Presidential Decree Nos. 960 and 969, and sentenced each to
imprisonment of four (4) years and one (1) day to six (6) years of
prision correccional, and to pay the fine of P6,000 and cost of suit.
The facts as culled from the records are as follows.
Acting on reports of sale and distribution of pornographic materials,
officers of the Philippine National Police Criminal Investigation and
Detection Group in the National Capital Region (PNP-CIDG NCR)
conducted police surveillance on the store bearing the name of
Gaudencio E. Fernando Music Fair (Music Fair). On May 5, 1999,
Judge Perfecto Laguio of the Regional Trial Court of Manila, Branch
19, issued Search Warrant No. 99-1216 for violation of Article 201 of
the Revised Penal Code against petitioner Gaudencio E. Fernando and a
certain Warren Tingchuy. The warrant ordered the search of Gaudencio
E. Fernando Music Fair at 564 Quezon Blvd., corner Zigay Street,
Quiapo, Manila, and the seizure of the following items:
a. Copies of New Rave Magazines with nude obscene pictures;
b. Copies of IOU Penthouse Magazine with nude obscene pictures;
c. Copies of Hustler International Magazine with nude obscene pictures;
and
d. Copies of VHS tapes containing pornographic shows.3
On the same day, police officers of the PNP-CIDG NCR served the
warrant on Rudy Estorninos, who, according to the prosecution,
introduced himself as the store attendant of Music Fair. The police
searched the premises and confiscated twenty-five (25) VHS tapes and
ten (10) different magazines, which they deemed pornographic.
On September 13, 1999, petitioners with Warren Tingchuy, were
charged in an Information which reads as follows:
That on or about May 5, 1999, in the City of Manila, Philippines, the
said accused, did then and there willfully, unlawfully, feloniously,
publicly and jointly exhibit indecent or immoral acts, scenes or shows at
Music Fair, located at 564 Quezon Blvd., corner Zigay [S]t., Quiapo[,]
this City[,] by then and there selling and exhibiting obscene copies of x-
rated VHS Tapes, lewd films depicting men and women having sexual
intercourse[,] lewd photographs of nude men and women in explicating
(sic) positions which acts serve no other purpose but to satisfy the
market for lust or pornography to public view.
Contrary to law.4
15

When arraigned, petitioners and Tingchuy pleaded not guilty to the
offense charged. Thereafter, trial ensued.
The prosecution offered the confiscated materials in evidence and
presented the following witnesses: Police Inspector Rodolfo L. Tababan,
SPO4 Rolando Buenaventura and Barangay Chairperson Socorro
Lipana, who were all present during the raid. After the prosecution
presented its evidence, the counsel for the accused moved for leave of
court to file a demurrer to evidence, which the court granted. On
October 5, 2000, the RTC however denied the demurrer to evidence and
scheduled the reception of evidence for the accused. A motion for
reconsideration was likewise denied.
Thereafter, the accused waived their right to present evidence and
instead submitted the case for decision.5
The RTC acquitted Tingchuy for lack of evidence to prove his guilt, but
convicted herein petitioners as follows:
WHEREFORE, premises considered, the Court finds accused
GAUDENCIO FERNANDO and RUDY ESTORNINOS GUILTY
beyond reasonable doubt of the crime charged and are hereby sentenced
to suffer the indeterminate penalty of FOUR (4) YEARS and ONE (1)
DAY as minimum to SIX (6) YEARS of prision correccional as
maximum, to pay fine of P6,000.00 each and to pay the cost.
For failure of the prosecution to prove the guilt of accused WARREN
TINGCHUY beyond reasonable doubt, he is hereby ACQUITTED of
the crime charged.
The VHS tapes and the nine (9) magazines utilized as evidence in this
case are hereby confiscated in favor of the government.
SO ORDERED.6
Petitioners appealed to the Court of Appeals. But the appellate
courtlatter affirmed in toto the decision of the trial court, as follows,
WHEREFORE, finding no reversible error on the part of the trial court,
the decision appealed from is AFFIRMED IN TOTO.
Costs against accused-appellants.
SO ORDERED.7
Hence the instant petition assigning the following errors:
I. Respondent court erred in convicting petitioner Fernando even if he
was not present at the time of the raid
II. Respondent erred in convicting petitioner Estorninos who was not
doing anything illegal at the time of the raid.8
Simply, the issue in this case is whether the appellate court erred in
affirming the petitioners’ conviction.
Petitioners contend that the prosecution failed to prove that at the time
of the search, they were selling pornographic materials. Fernando
contends that since he was not charged as the owner of an establishment
selling obscene materials, the prosecution must prove that he was
present during the raid and that he was selling the said materials.
Moreover, he contends that the appellate court’s reason for convicting
him, on a presumption of continuing ownership shown by an expired
mayor’s permit, has no sufficient basis since the prosecution failed to
prove his ownership of the establishment. Estorninos, on the other hand,
insists that he was not an attendant in Music Fair, nor did he introduce
himself so.9
The Solicitor General counters that owners of establishments selling
obscene publications are expressly held liable under Article 201, and
petitioner Fernando’s ownership was sufficiently proven. As the owner,
16
according to the Solicitor General, Fernando was naturally a seller of the
prohibited materials and liable under the Information. The Solicitor
General also maintains that Estorninos was identified by Barangay
Chairperson Socorro Lipana as the store attendant, thus he was likewise
liable.10
At the outset, we note that the trial court gave petitionersthem the
opportunity to adduce present their evidence to disprove refute the
prosecution’s evidence.11 . Instead, they waived their right to present
evidence and opted to submitted the case for decision.a1 12 The trial
court therefore resolved the case on the basis of prosecution’s evidence
against the petitioners.
As obscenity is an unprotected speech which the State has the right to
regulate, the State in pursuing its mandate to protect, as parens patriae,
the public from obscene, immoral and indecent materials must justify
the regulation or limitation.
One such regulation is Article 201 of the Revised Penal Code. To be
held liable, the prosecution must prove that (a) the materials,
publication, picture or literature are obscene; and (b) the offender sold,
exhibited, published or gave away such materials.13 Necessarily, that
the confiscated materials are obscene must be proved.
Almost a century has passed since the Court first attempted to define
obscenity in People v. Kottinger.14 There the Court defined obscenity as
something which is offensive to chastity, decency or delicacy. The test
to determine the existence of obscenity is, whether the tendency of the
matter charged as obscene, is to deprave or corrupt those whose minds
are open to such immoral influences and into whose hands a publication
or other article charged as being obscene may fall.15 Another test
according to Kottinger is "that which shocks the ordinary and common
sense of men as an indecency."16 But, Kottinger hastened to say that
whether a picture is obscene or indecent must depend upon the
circumstances of the case, and that ultimately, the question is to be
decided by the judgment of the aggregate sense of the community
reached by it.17
Thereafter, the Court in People v. Go Pin18 and People v. Padan y
Alova, et al.,19 involving a prosecution under Article 201 of the Revised
Penal Code, laid the tests which did little to clearly draw the fine lines
of obscenity.
In People v. Go Pin, the Court said:
If such pictures, sculptures and paintings are shown in art exhibits and
art galleries for the cause of art, to be viewed and appreciated by people
interested in art, there would be no offense committed. However, the
pictures here in question were used not exactly for art’s sake but rather
for commercial purposes. In other words, the supposed artistic qualities
of said pictures were being commercialized so that the cause of art was
of secondary or minor importance. Gain and profit would appear to have
been the main, if not the exclusive consideration in their exhibition; and
it would not be surprising if the persons who went to see those pictures
and paid entrance fees for the privilege of doing so, were not exactly
artists and persons interested in art and who generally go to art
exhibitions and galleries to satisfy and improve their artistic tastes, but
rather people desirous of satisfying their morbid curiosity and taste, and
lust, and for love [of] excitement, including the youth who because of
their immaturity are not in a position to resist and shield themselves
from the ill and perverting effects of these pictures.20
People v. Padan y Alova, et al. in a way reaffirmed the standards set in
Go Pin but with its own test of "redeeming feature." The Court therein
said that:
[A]n actual exhibition of the sexual act, preceded by acts of
lasciviousness, can have no redeeming feature. In it, there is no room for
art. One can see nothing in it but clear and unmitigated obscenity,
indecency, and an offense to public morals, inspiring and causing as it
does, nothing but lust and lewdness, and exerting a corrupting influence
specially on the youth of the land.21
17

Notably, the Court in the later case of Gonzales v. Kalaw Katigbak,22
involving motion pictures, still applied the "contemporary community
standards" of Kottinger but departed from the rulings of Kottinger, Go
Pin and Padan y Alova in that the Court measures obscenity in terms of
the "dominant theme" of the material taken as a "whole" rather than in
isolated passages.
Later, in Pita v. Court of Appeals, concerning alleged pornographic
publications, the Court recognized that Kottinger failed to afford a
conclusive definition of obscenity, and that both Go Pin and Padan y
Alova raised more questions than answers such as, whether the absence
or presence of artists and persons interested in art and who generally go
to art exhibitions and galleries to satisfy and improve their artistic tastes,
determine what art is; or that if they find inspiration in the exhibitions,
whether such exhibitions cease to be obscene.23 Go Pin and Padan y
Alova gave too much latitude for judicial arbitrament, which has
permitted ad lib of ideas and "two-cents worths" among judges as to
what is obscene or what is art.24
The Court in Pita also emphasized the difficulty of the question and
pointed out how hazy jurisprudence is on obscenity and how
jurisprudence actually failed to settle questions on the matter.
Significantly, the dynamism of human civilization does not help at all. It
is evident that individual tastes develop, adapt to wide-ranging
influences, and keep in step with the rapid advance of civilization.25 It
seems futile at this point to formulate a perfect definition of obscenity
that shall apply in all cases.
There is no perfect definition of "obscenity" but the latest word is that of
Miller v. California which established basic guidelines, to wit: (a)
whether to the average person, applying contemporary standards would
find the work, taken as a whole, appeals to the prurient interest; (b)
whether the work depicts or describes, in a patently offensive way,
sexual conduct specifically defined by the applicable state law; and (c)
whether the work, taken as a whole, lacks serious literary, artistic,
political, or scientific value.26 But, it would be a serious misreading of
Miller to conclude that the trier of facts has the unbridled discretion in
determining what is "patently offensive."27 No one will be subject to
prosecution for the sale or exposure of obscene materials unless these
materials depict or describe patently offensive "hard core" sexual
conduct.28 Examples included (a) patently offensive representations or
descriptions of ultimate sexual acts, normal or perverted, actual or
simulated; and (b) patently offensive representations or descriptions of
masturbation, excretory functions, and lewd exhibition of the genitals.29
What remains clear is that obscenity is an issue proper for judicial
determination and should be treated on a case to case basis and on the
judge’s sound discretion.
In this case, the trial court found the confiscated materials obscene and
the Court of Appeals affirmed such findings. The trial court in ruling
that the confiscated materials are obscene, reasoned as follows:
Are the magazines and VHS tapes confiscated by the raiding team
obscene or offensive to morals? . . .
Pictures of men and women in the nude doing the sexual act appearing
in the nine (9) confiscated magazines namely Dalaga, Penthouse,
Swank, Erotic, Rave, Playhouse, Gallery and two (2) issues of QUI are
offensive to morals and are made and shown not for the sake of art but
rather for commercial purposes, that is gain and profit as the exclusive
consideration in their exhibition. The pictures in the magazine exhibited
indecent and immoral scenes and acts…The exhibition of the sexual act
in their magazines is but a clear and unmitigated obscenity, indecency
and an offense to public morals, inspiring…lust and lewdness, exerting
a corrupting influence especially on the youth. (Citations omitted)
The VHS tapes also [exhibit] nude men and women doing the sexual
intercourse. The tape entitled "Kahit sa Pangarap Lang" with Myra
Manibog as the actress shows the naked body of the actress. The tape
exhibited indecent and immoral scenes and acts. Her dancing
movements excited the sexual instinct of her male audience. The motive
18
may be innocent, but the performance was revolting and shocking to
good minds...
In one (1) case the Supreme Court ruled:
Since the persons who went to see those pictures and paid entrance fees
were usually not artists or persons interested in art to satisfy and inspire
their artistic tastes but persons who are desirous of satisfying their
morbid curiosity, taste and lust and for [love] of excitement, including
the youth who because of their immaturity are not in a position to resist
and shield themselves from the ill and perverting effects of the pictures,
the display of such pictures for commercial purposes is a violation of
Art. 201. If those pictures were shown in art exhibits and art galleries
for the cause of art, to be viewed and appreciated by people interested in
art, there would be no offense committed (People vs. Go Pin, 97 Phil
418).
[B]ut this is not so in this case.30
Findings of fact of the Court of Appeals affirming that of the trial court
are accorded great respect, even by this Court, unless such findings are
patently unsupported by the evidence on record or the judgment itself is
based on misapprehension of facts.31 In this case, petitioners neither
presented contrary evidence nor questioned the trial court’s findings.
There is also no showing that the trial court, in finding the materials
obscene, was arbitrary.
Did petitioners participate in the distribution and exhibition of obscene
materials?
We emphasize that mere possession of obscene materials, without
intention to sell, exhibit, or give them away, is not punishable under
Article 201, considering the purpose of the law is to prohibit the
dissemination of obscene materials to the public. The offense in any of
the forms under Article 201 is committed only when there is publicity.32
The law does not require that a person be caught in the act of selling,
giving away or exhibiting obscene materials to be liable, for as long as
the said materials are offered for sale, displayed or exhibited to the
public. In the present case, we find that petitioners are engaged in
selling and exhibiting obscene materials.
Notably, the subject premises of the search warrant was the Gaudencio
E. Fernando Music Fair, named after petitioner Fernando.33 The
mayor’s permit was under his name. Even his bail bond shows that Hhe
lives in the same place.34 Moreover, the mayor’s permit dated August 8,
1996, shows that he is the owner/operator of the store.35 While the
mayor’s permit had already expired, it does not negate the fact that
Fernando owned and operated the establishment. It would be absurd to
make his failure to renew his business permit and illegal operation a
shield from prosecution of an unlawful act. Furthermore, when he
preferred not to present contrary evidence, the things which he
possessed were presumptively his.36
Petitioner Estorninos is likewise liable as the store attendant actively
engaged in selling and exhibiting the obscene materials. Prosecution
witness Police Inspector Tababan, who led the PNP-CIDG NCR that
conducted the search, identified him as the store attendant upon whom
the search warrant was served.37 Tababan had no motive for testifying
falsely against Estorninos and we uphold the presumption of regularity
in the performance of his duties. Lastly, this Court accords great respect
to and treats with finality the findings of the trial court on the matter of
credibility of witnesses, absent any palpable error or arbitrariness in
their findings.38 In our view, no reversible error was committed by the
appellate court as well as the trial court in finding the herein petitioners
guilty as charged.
WHEREFORE, the Decision dated March 21, 2003 and the Resolution
dated September 2, 2003, of the Court of Appeals affirming the
Decision of the Regional Trial Court of Manila, Branch 21, in Criminal
Case No. 99-176582 are hereby AFFIRMED.
SO ORDERED.
19
Carpio, Carpio Morales, Tinga, and Velasco, Jr., JJ., concur.

20
Republic of the Philippines
SUPREME COURT
Manila
SECOND DIVISION
G.R. No. 211465 December 3, 2014
PEOPLE OF THE :PHILIPPINES, Plaintiff-appellee,
vs.
SHIRLEY A. CASIO, Accused-appellant.
DECISION
LEONEN, J.:
"Chicks mo dong?"1
With this sadly familiar question being used on the streets of many of
our cities, the fate of many desperate women is sealed and their futures
vanquished. This case resulted in the rescue of two minors from this
pernicious practice. Hopefully, there will be more rescues. Trafficking in
persons is a deplorable crime. It is committed even though the minor
knew about or consented to the act of trafficking.
This case involves Republic Act No. 9208,2 otherwise known as the
"Anti-Trafficking in Persons Act of 2003."3
Accused Shirley A. Casio was charged for the violation of Republic Act
No. 9208, Section 4(a), qualified by Section 6(a). The information
against accused, dated May 5, 2008, states:
That on or about the 3rd day of May 2008, at about 1:00 o’clock A.M.,
in the City of Cebu, Philippines, and within the jurisdiction of this
Honorable Court, the said accused, with deliberate intent, with intent to
gain, did then and there hire and/or recruit AAA, a minor, 17 years old
and BBB for the purpose of prostitution and sexual exploitation, by
acting as their procurer for different customers, for money, profit or any
other consideration, in Violation of Sec. 4, Par. (a), Qualified by Sec. 6,
Par. (a), of R.A. 9208 (Qualified Trafficking in Persons).
CONTRARY TO LAW.4
The facts, as found by the trial court and the Court of Appeals, are as
follows:
On May 2, 2008, International Justice Mission (IJM),5 a
nongovernmental organization, coordinated with the police in order to
entrap persons engaged in human trafficking in Cebu City.6
Chief PSI George Ylanan, SPO1 Felomino Mendaros, SPO1 Fe Altubar,
PO1 Albert Luardo, and PO1 Roy Carlo Veloso composed the team of
police operatives.7 PO1 Luardo and PO1 Veloso were designated as
decoys, pretending to be tour guides looking for girls to entertain their
guests.8 IJM provided them with marked money, which was recorded in
the police blotter.9
The team went to Queensland Motel and rented Rooms 24 and 25.
These rooms were adjacent to each other. Room 24 was designated for
the transaction while Room 25 was for the rest of the police team.10
PO1 Luardo and PO1 Veloso proceeded to D. Jakosalem Street in
Barangay Kamagayan, Cebu City’s red light district. Accused noticed
them and called their attention by saying "Chicks mo dong?" (Do you
like girls, guys?).11
During trial, PO1 Luardo and PO1 Veloso testified that their
conversation with accused went as follows:
Accused: Chicks mo dong?(Do you like girls, guys?)
PO1 Luardo: Unya mga bag-o? Kanang batan-on kay naa mi guests
21
naghulat sa motel. (Are they new? They must be young because we have
guests waiting at the motel.)
Accused: Naa, hulat kay magkuha ko. (Yes, just wait and I’ll get
them.)12
At that point, PO1 Luardo sent a text message to PSI Ylanan that they
found a prospective subject.13
After a few minutes, accused returned with AAA and BBB, private
complainants in this case.14 Accused: Kining duha kauyon mo ani?
(Are you satisfied with these two?)
PO1 Veloso: Maayo man kaha na sila modala ug kayat? (Well, are they
good in sex?)15 Accused gave the assurance that the girls were good in
sex. PO1 Luardo inquired how much their serviceswould cost. Accused
replied, "Tag kinientos" (P500.00).16
PO1 Veloso and PO1 Luardo convinced accused to come with them to
Queensland Motel. Upon proceeding toRoom 24, PO1 Veloso handed
the marked money to accused.17
As accused counted the money, PO1 Veloso gave PSI Ylanan a missed
call. This was their pre-arranged signal. The rest of the team proceeded
to Room 24, arrested accused, and informed her of her constitutional
rights. The police confiscated the marked money from accused.18
Meanwhile, AAA and BBB "were brought to Room 25 and placed in the
custody of the representatives from the IJM and the DSWD."19
During trial, AAA testified that she was born on January 27, 1991. This
statement was supported by a copy of her certificate of live birth.20
AAA narrated that in 2007, she worked as a house helper in Mandaue
City. In March 2008 she stopped working as a house helper and
transferred to Cebu City. She stayed with her cousin, but she
subsequently moved to a boarding house. It was there where she met her
friend, Gee Ann. AAA knew that Gee Ann worked in a disco club. When
Gee Ann found out that AAA was no longer a virgin, she offered AAA
work. AAA agreed because she needed the money in order to helpher
father. AAA recalled that she had sex with her first customer. She was
paid P200.00 and given an additional P500.00 as tip. For the first few
weeks, Gee Ann provided customers for AAA. Eventually, Gee Ann
brought her to Barangay Kamagayan, telling her that there were more
customers in that area.21
AAA stated that she knew accused was a pimp because AAA would
usually see her pimping girls to customers in Barangay Kamagayan.22
AAA further testified that on May 2, 2008, accused solicited her
services for a customer. That was the first time that she was pimped by
accused.23 Accused brought her, BBB, and a certain Jocelyn to
Queensland Motel.24
AAA testified that Jocelyn stayed inthe taxi, while she and BBB went to
Room 24. It was in Room 24 where the customer paid Shirley. The
police rushed in and toldAAA and BBB to go to the other room. AAA
was then met by the Department of Social Welfare and Development
personnel who informed her that she was rescued and not arrested.25
AAA described that her job as a prostitute required her to display
herself, along with other girls, between 7 p.m. to 8 p.m. She received
P400.00 for every customer who selected her.26
The prosecution also presented the police operatives during trial. PSI
Ylanan, SPO1 Mendaros, and SPO1 Altubar testified that after PO1
Veloso had made the missed call to PSI Ylanan, they "rushed to Room
24 and arrested the accused."27 SPO1 Altubar retrieved the marked
money worth P1,000.00 from accused’s right hand "and upon instruction
from PCINSP Ylanan recorded the same at the ‘police blotter prior
operation’. . . ."28
The trial court noted that AAA requested assistance from the IJM "in
conducting the operation against the accused."29
22
Version of the accused
In defense, accused testified thatshe worked as a laundry woman. On the
evening of May 2, 2008, she went out to buy supper. While walking, she
was stopped by two men on board a blue car. The two men asked her if
she knew someone named Bingbing. She replied that she only knew
Gingging but not Bingbing. The men informed her that they were
actually looking for Gingging, gave her a piece of paper witha number
written on it, and told her to tell Gingging to bring companions. When
accused arrived home, she contacted Gingging. Gingging convinced her
to come because allegedly, she would be given money by the two
males.30 Ruling of the trial court
The Regional Trial Court, Branch 14 in Cebu City found accused guilty
beyond reasonable doubt and held31 that:
Accused had consummated the act of trafficking of person[s] . . . as
defined under paragraph (a), Section 3 of R.A. 9208 for the purpose of
letting her engage in prostitution asdefined under paragraph [c] of the
same Section; the act of "sexual intercourse" need not have been
consummated for the mere "transaction" i.e. the ‘solicitation’ for sex and
the handing over of the "bust money" of Php1,000.00 already
consummated the said act.
....
WHEREFORE, the Court finds accused, SHIRLEY A. CASIO,
GUILTY beyond reasonable doubt of trafficking in persons under
paragraph (a), Section 4 as qualified under paragraph (a), Section 6 of
R.A. 9208 and sentenced to suffer imprisonment of TWENTY (20)
YEARS and to pay a fine of ONE MILLION (Php1,000,000.00).
Finally, accused is ordered to pay the costs of these proceedings.
SO ORDERED[.]32
Ruling of the Court of Appeals
The Court of Appeals affirmed the findings of the trial court but
modified the fine and awarded moral damages. The dispositive portion
of the decision33 reads:
WHEREFORE, in view of the foregoing premises, the instant appeal is
hereby DENIED. The assailed Decision dated 10 August 2010
promulgated by the Regional Trial Court, Branch 14 in Cebu City in
Crim. Case No. CBU-83122 is AFFIRMED WITH MODIFICATIONS.
The accused-appellant is accordingly sentenced to suffer the penalty of
life imprisonment and a fine of Php2,000,000 and is ordered to pay each
of the private complainants Php150,000 as moral damages.
SO ORDERED.34
Accused filed a notice of appeal35 on August 28, 2013, which the Court
of Appeals noted and gavedue course in its resolution36 dated January
6, 2014. The case records of CA-G.R. CEB-CR No. 01490 were
received by this court on March 17, 2014.37
In the resolution38 dated April 29, 2014, this court resolved to notify the
parties that they may file their respective supplemental briefs within 30
days from notice. This court also required the Superintendent of the
Correctional Institution for Women to confirm the confinement of
accused.39
Counsel for accused40 and the Office of the Solicitor General41 filed
their respective manifestations, stating that they would no longer file
supplemental briefs considering that all issues had been discussed in the
appellant’s brief and appellee’s brief filed before the Court of Appeals.
Through a letter42 dated June 17, 2014, Superintendent IV Rachel D.
Ruelo confirmed accused’s confinement at the Correctional Institution
for Women since October 27, 2010.
23
The sole issue raised by accused iswhether the prosecution was able to
prove her guilt beyond reasonable doubt.
However, based on the arguments raised in accused’s brief, the sole
issue may be dissected into the following:
(1) Whether the entrapment operation conducted by the police was
valid, considering that there was no prior surveillance and the police did
not know the subject of the operation;43
(2) Whether the prosecution was able to prove accused’s guilt beyond
reasonable doubt even though there was no evidence presented to show
that accused has a history of engaging in human trafficking;44 and
(3) Whether accused was properly convicted of trafficking in persons,
considering that AAA admitted that she works as a prostitute.45
Arguments of accused
Accused argues that there was no valid entrapment. Instead, she was
instigated into committing the crime.46 The police did not conduct prior
surveillance and did not evenknow who their subject was.47 Neither did
the police know the identities of the alleged victims.
Accused further argues that under the subjective test, she should be
acquitted because the prosecution did notpresent evidence that would
prove she had a history of engaging in human trafficking or any other
offense. She denied being a pimp and asserted that she was a laundry
woman.48 In addition, AAA admitted that she worked as a prostitute.
Thus, it was her decision to display herself to solicit customers.49
Arguments of the plaintiff-appellee
The Office of the Solicitor General, counsel for plaintiff-appellee People
of the Philippines, argued that the trial court did not err in convicting
accused because witnesses positively identified her as the person who
solicited customers and received money for AAA and BBB.50
Entrapment operations are valid and have been recognized by courts.51
Likewise, her arrest in flagrante delicto is valid.52 Hence, the trial court
was correct in stating that accused had "fully consummated the act of
trafficking of persons. . ."53
We affirm accused Shirley A. Casio’s conviction.
I.
Background of Republic Act No. 9208
The United Nations Convention against Transnational Organized Crime
(UN CTOC) was "adopted and opened for signature, ratification and
accession"54 on November 15, 2000. The UN CTOC is supplemented
by three protocols: (1) the Protocol to Prevent, Suppress and Punish
Trafficking in Persons, Especially Women and Children; (2) the
Protocol against the Smuggling of Migrants by Land, Sea and Air; and,
(3) the Protocol against the Illicit Manufacturing of and Trafficking in
Firearms, their Parts and Components and Ammunition.55
On December 14, 2000, the Philippines signed the United Nations
"Protocol to Prevent, Suppress and Punish Trafficking in Persons,
Especially Women and Children" (Trafficking Protocol).56 This was
ratified by the Philippine Senate on September 30, 2001.57 The
Trafficking Protocol’s entry into force was on December 25, 2003.58
In the Trafficking Protocol, human trafficking is defined as:
Article 3 Use of terms For the purposes of this Protocol:
(a) "Trafficking in persons" shall mean the recruitment, transportation,
transfer, harbouring or receipt of persons, by means of the threat or use
of force or other forms of coercion, of abduction, of fraud, of deception,
of the abuse of power or of a position of vulnerability or of the giving or
receiving of payments or benefits to achieve the consent of a person
24
having control over another person, for the purpose of exploitation.
Exploitation shall include, at a minimum, the exploitation of the
prostitution of others or other forms of sexual exploitation, forced
labour or services, slavery or practices similar to slavery, servitude or
the removal of organs;
(b) The consent of a victim of trafficking in persons to the intended
exploitation set forth in subparagraph (a) of this article shall be
irrelevant where any of the means set forth in subparagraph (a) have
been used;
(c) The recruitment, transportation, transfer, harbouring or receipt of a
child for the purpose of exploitation shall be considered "trafficking in
persons" even if this does not involve any of the means set forth in
subparagraph (a) of this article;
(d) "Child" shall mean any person under eighteen years of age.
Senator Loren Legarda, in her sponsorship speech, stated that the "Anti-
Trafficking Act will serve as the enabling law of the country’s
commitment to [the] protocol."59
Senator Luisa Ejercito Estrada also delivered a sponsorship speech and
described trafficking in persons as follows:
Trafficking in human beings, if only to emphasize the gravity of its
hideousness, is tantamount to modern-day slavery at work. It is a
manifestation of one of the most flagrant forms of violence against
human beings. Its victims suffer the brunt of this insidious form of
violence. It is exploitation, coercion, deception, abduction, rape,
physical, mental and other forms of abuse, prostitution, forced labor,
and indentured servitude.
....
As of this time, we have signed the following: the Convention on the
Elimination of all Forms of Discrimination Against Women; the 1995
Convention on the Rights of the Child; the United Nations Convention
on the Protection of Migrant Workers and their Families; and the United
Nations’ Resolution on Trafficking in Women and Girls, among others.
Moreover, we have also expressed our support for the United Nations’
Convention Against Organized Crime, including the Trafficking
Protocol in October last year.
At first glance, it appears thatwe are very responsive to the problem. So
it seems.
Despite these international agreements, we have yet to come up with a
law that shall squarely address human trafficking.60
During the interpellation of Republic Act No. 9208, then numbered as
Senate Bill No. 2444, Senator Teresa Aquino-Oreta asked if there was a
necessity for an anti-trafficking law when other laws exist that cover
trafficking.61
Senator Luisa Ejercito Estrada explained:
At present, Mr. President, the relevant laws to the trafficking issue are
the Revised Penal Code, Republic Act No. 8042 or the Migrant Workers
and Overseas Filipino Act, R[epublic] A[ct] No. 6955 or the Mail-Order
Bride Act, and Republic Act No. 8239 or the Philippine Passport Act.
These laws address issues such as illegal recruitment, prostitution,
falsification of public documents and the mail-order bride scheme.
These laws do not respond to the issue of recruiting, harboring or
transporting persons resulting in prostitution, forced labor, slavery and
slavery-like practices. They only address to one or some elements of
trafficking independent of their results or consequence.62 (Emphasis
supplied)
Thus, Republic Act No. 9208 was enacted in order to fully address the
issue of human trafficking. Republic Act No. 9208 was passed on May
25
12, 2003, and approved on May 26, 2003.
II.
Elements of trafficking in persons
The elements of trafficking inpersons can be derived from its definition
under Section 3(a) of Republic Act No. 9208, thus:
(1) The actof "recruitment, transportation, transfer or harbouring, or
receipt of persons with or without the victim’s consent or knowledge,
within or across national borders."
(2) The means used which include "threat or use of force, or other forms
of coercion, abduction, fraud, deception, abuse of power or of position,
taking advantage of the vulnerability of the person, or, the giving or
receiving of payments or benefits to achieve the consent of a person
having control over another; and
(3) The purpose of trafficking is exploitation which includes
"exploitation or the prostitution of others or other forms of sexual
exploitation, forced labor or services, slavery, servitude or the removal
or sale of organs."63
On January 28, 2013,Republic Act No. 1036464 was approved,
otherwise known as the "Expanded Anti-Trafficking in Persons Act of
2012." Section 3(a) of Republic Act No. 9208 was amended by Republic
Act No. 10364 as follows:
SEC. 3. Section 3 of Republic Act No. 9208 is hereby amended to read
as follows:
"SEC. 3. Definition of Terms. – As used in this Act:
"(a) Trafficking in Persons – refers to the recruitment, obtaining, hiring,
providing, offering, transportation, transfer, maintaining, harboring, or
receipt of persons with or without the victim’s consent or knowledge,
within or across national borders by means of threat, or use of force, or
other forms of coercion, abduction, fraud, deception, abuse of power or
of position, taking advantage of the vulnerability of the person, or, the
giving or receiving of payments or benefits to achieve the consent of a
person having control over another person for the purpose of
exploitation which includes at a minimum, the exploitation or the
prostitution of others or other forms of sexual exploitation, forced labor
or services, slavery, servitude or the removal or sale of organs.
"The recruitment, transportation, transfer, harboring, adoption or receipt
of a child for the purpose of exploitation or when the adoption is
induced by any form of consideration for exploitative purposes shall
also be considered as ‘trafficking in persons’ even if it does not involve
any of the means set forth in the preceding paragraph. (Emphasis
supplied)
Under Republic Act No. 10364, the elements of trafficking in persons
have been expanded to include the following acts:
(1) The act of "recruitment, obtaining, hiring, providing, offering,
transportation, transfer, maintaining, harboring, or receipt of persons
with or without the victim’s consent or knowledge, within or across
national borders;"
(2) The means used include "by means of threat, or use of force, or other
forms of coercion, abduction, fraud, deception, abuse of power or of
position, taking advantage of the vulnerability of the person, or, the
giving or receiving of payments or benefits to achieve the consent of a
person having control over another person"
(3) The purpose of trafficking includes "the exploitation or the
prostitution of others or other forms of sexual exploitation, forced labor
or services, slavery, servitude or the removal or sale of organs"
(Emphasis supplied)
26
The Court of Appeals found thatAAA and BBB were recruited by
accused when their services were peddled to the police who acted as
decoys.65 AAA was a child at the time that accused peddled her
services.66 AAA also stated that she agreed to work as a prostitute
because she needed money.67 Accused took advantage of AAA’s
vulnerability as a child and as one who need money, as proven by the
testimonies of the witnesses.68
III.
Knowledge or consent of the minor is not a defense under Republic Act
No. 9208.
Accused claims that AAA admitted engaging in prostitution even before
May 2, 2008. She concludes that AAA was predisposed to having sex
with "customers" for money.69 For liability under our law, this
argument is irrelevant. As defined under Section 3(a) of Republic Act
No. 9208, trafficking in persons can still becommitted even if the victim
gives consent.
SEC. 3. Definition of Terms.— As used in this Act:
a. Trafficking in Persons - refers to the recruitment, transportation,
transfer or harboring, or receipt of persons with or without the victim's
consent or knowledge, within or across national borders by means of
threat or use of force, or other forms of coercion, abduction, fraud,
deception, abuse of power or of position, taking advantage of the
vulnerability of the persons, or, the giving or receiving of payments or
benefits to achieve the consent of a person having control over another
person for the purpose of exploitation which includes ata minimum, the
exploitation or the prostitution of others or other forms of sexual
exploitation, forced labor or services, slavery, servitude or the removal
or sale of organs.
The recruitment transportation, transfer, harboring or receipt of a child
for the purpose of exploitation shall also be considered as "trafficking in
persons" even if it does not involve any of the means set forth in the
preceding paragraph.70 (Emphasis supplied)
The victim’s consent is rendered meaningless due to the coercive,
abusive, or deceptive means employed by perpetrators of human
trafficking.71 Even without the use of coercive, abusive, or deceptive
means, a minor’s consent is not given outof his or her own free will.
Section 4 of Republic Act No. 9208 enumerates the different acts of
trafficking in persons. Accused was charged under Section 4(a), which
states:
SEC. 4. Acts of Trafficking in Persons.— It shall be unlawful for any
person, natural or judicial, to commit any of the following acts.
a. To recruit, transport, transfer, harbor, provide, or receive a person by
any means, including those done under the pretext of domestic or
overseas employment or training or apprenticeship, for the purpose of
prostitution, pornography, sexual exploitation, forced labor, slavery,
involuntary servitude or debt bondage;72
Republic Act No. 9208 further enumerates the instances when the crime
of trafficking in persons is qualified.
SEC. 6. Qualified Trafficking in Persons.— The following are
considered as qualified trafficking: a. When the trafficked person is a
child;
b. When the adoption is effected through Republic Act No. 8043,
otherwise known as the "Inter-Country Adoption Act of 1995" and said
adoption is for the purpose of prostitution, pornography, sexual
exploitation,forced labor, slavery, involuntary servitude or debt
bondage;
c. When the crime is committed by a syndicate, or in large scale.
Trafficking is deemed committed by a syndicate if carried out by a
27
group of three (3) or more persons conspiring or confederating with one
another. It is deemed committed in large scale if committed against three
(3) or more persons, individually or as a group;
d. When the offender is an ascendant, parent, sibling, guardian or a
person who exercise authority over the trafficked person or when the
offense is committed by a public officer or employee;
e. When the trafficked person is recruited to engage in prostitution with
any member of the military or law enforcement agencies;
f. When the offender is a member of the military or law enforcement
agencies; and
g. When by reason or on occasion of the act of trafficking in persons,
the offended party dies, becomes insane, suffers mutilation or is afflicted
with Human Immunod eficiency Virus (HIV) or the Acquired Immune
Deficiency Syndrome (AIDS). (Emphasis supplied)73
Section 3 (b) of Republic Act No. 9208 defines "child" as:
SEC. 3. Definition of Terms.— As used in this Act:
....
b. Child- refers to a person below eighteen (18) years of age or one who
is over eighteen (18) but isunable to fully take care of or protect
himself/herself from abuse, neglect, cruelty, exploitation, or
discrimination because of a physical or mental disability or condition.74
Based on the definition of trafficking in persons and the enumeration of
acts of trafficking in persons, accused performed all the elements in the
commission of the offense when she peddled AAA and BBB and offered
their services to decoys PO1 Veloso and PO1 Luardo in exchange for
money. The offense was also qualified because the trafficked persons
were minors.
Here, AAA testified as to how accused solicited her services for the
customers waiting at Queensland Motel. AAA also testified that she was
only 17 years old when accused peddled her. Her certificate of live birth
was presented as evidence to show that she was born on January 27,
1991.
The prosecution was able to prove beyond reasonable doubt that
accused committed the offense of trafficking in persons, qualified by the
fact that one of the victims was a child. As held by the trial court:
[T]he act of "sexual intercourse" need not have been consummated for
the mere "transaction" i.e. that ‘solicitation’ for sex and the handing over
of the "bust money" of Php.1,000.00 already consummated the said
act.75
IV.
Validity of the entrapment operation
In People v. Doria,76 this court discussed the objective test and the
subjective test to determine whether there was a valid entrapment
operation:
. . . American federal courts and a majority of state courts use the
"subjective" or "origin of intent" test laid down in Sorrells v. United
States to determine whether entrapment actually occurred. The focus of
the inquiry is on the accused's predisposition to commit the offense
charged, his state of mind and inclination before his initial exposure to
government agents. All relevant facts such as the accused's mental and
character traits, his past offenses, activities, his eagerness in committing
the crime, his reputation, etc., are considered to assess his state of mind
before the crime. The predisposition test emphasizes the accused's
propensity to commit the offense rather than the officer's misconduct
and reflects an attempt to draw a line between a "trap for the unwary
innocent and the trap for the unwary criminal." If the accused was found
28
to have been ready and willing to commit the offense at any favorable
opportunity, the entrapment defense will fail even if a police agent
usedan unduly persuasive inducement.
Some states, however, have adopted the "objective" test. . . . Here, the
court considers the nature of the police activity involved and the
propriety of police conduct. The inquiry is focused on the inducements
used by government agents, on police conduct, not on the accused and
his predisposition to commit the crime.For the goal of the defense is to
deter unlawful police conduct. The test of entrapment is whether the
conduct of the law enforcement agent was likely to induce a normally
law-abiding person, other than one who is ready and willing, to commit
the offense; for purposes of this test, it is presumed that a law-abiding
person would normally resist the temptation to commit a crime that is
presented by the simple opportunity to act unlawfully. (Emphasis
supplied, citations omitted)77
Accused argued that in our jurisprudence, courts usually apply the
objective test in determining the whether there was an entrapment
operation or an instigation.78 However, the use of the objective test
should not preclude courts from also applying the subjective test. She
pointed out that:
Applying the "subjective"test it is worth invoking that accusedappellant
procures income from being a laundry woman. The prosecution had not
shown any proof evidencing accused-appellant’s history in human
trafficking or engagement in any offense. She is not even familiar to the
team who had has [sic] been apprehending human traffickers for quite
some time.79 (Citations omitted)
Accused further argued that the police should have conducted a prior
surveillance before the entrapment operation.
Time and again, this court has discussed the difference between
entrapment and instigation. In Chang v. People,80 this court explained
that:
There is entrapment when law officers employ ruses and schemes to
ensure the apprehension of the criminal while in the actual commission
of the crime. There is instigation when the accused is induced to commit
the crime. The difference in the nature of the two lies in the origin of the
criminal intent. In entrapment, the mens reaoriginates from the mind of
the criminal. The idea and the resolve to commit the crime comes from
him. In instigation, the law officer conceives the commission of the
crime and suggests to the accused who adopts the idea and carries it into
execution.81
Accused contends that using the subjective test, she was clearly
instigated by the police to commit the offense. She denied being a pimp
and claimed that she earned her living as a laundrywoman. On this
argument, we agree with the finding of the Court of Appeals:
[I]t was the accused-appellant who commenced the transaction with
PO1 Luardo and PO1 Veloso by calling their attention on whether they
wanted girls for that evening, and when the officers responded, it was
the accused-appellant who told them to wait while she would fetch the
girls for their perusal.82
This shows that accused was predisposed to commit the offense because
she initiated the transaction. As testified by PO1 Veloso and PO1
Luardo, accused called out their attention by saying "Chicks mo dong?"
If accused had no predisposition to commit the offense, then she most
likely would not have asked PO1 Veloso and PO1 Luardo if they wanted
girls.
The entrapment would still be valid using the objective test. The police
merely proceeded to D. Jakosalem Street in Barangay Kamagayan. It
was accused who asked them whether they wanted girls. There was no
illicit inducement on the part of the police for the accused to commit the
crime.
When accused was arrested, she was informed of her constitutional
29
rights.83 The marked money retrieved from her was recorded in the
police blotter prior to the entrapment operation and was presented in
court as evidence.84
On accused’s alibi thatshe was merely out to buy her supper that night,
the Court of Appeals noted that accused never presented Gingging in
court. Thus, her alibi was unsubstantiated and cannot be given
credence.85
With regard to the lack of prior surveillance, prior surveillance is not a
condition for an entrapment operation’s validity.86 In People v. Padua87
this court underscored the value of flexibility in police operations:
A prior surveillance is not a prerequisite for the validity of an
entrapment or buy-bust operation, the conduct of which has no rigid or
textbook method. Flexibility is a trait of good police work. However the
police carry out its entrapment operations, for as long as the rights of the
accused have not been violated in the process, the courts will not pass
on the wisdom thereof. The police officers may decide that time is of the
essence and dispense with the need for prior surveillance.88 (Citations
omitted)
This flexibility is even more important in cases involving trafficking of
persons. The urgency of rescuing the victims may at times require
immediate but deliberate action on the part of the law enforcers.
V.
Imposition of fine and award of damages
The Court of Appeals properly imposed the amount of 2,000,000.00.
Section 10 (b) of Republic Act No. 9208 provides that:
SEC. 10. Penalties and Sanctions.— The following penalties and
sanctions are hereby established for the offenses enumerated in this Act:
....
c. Any person found guilty of qualified trafficking under Section 6 shall
suffer the penalty of life imprisonment and a fine of not less than Two
million pesos (P2,000,000.00) but not more than Five million pesos
(P5,000,000.00);
However, we modify by raising the award of moral damages from
P150,000.0089 to P500,000.00. We also award exemplary damages in
the amount of P100,000.00. These amounts are in accordance with the
ruling in People v. Lalli90 where this court held that:
The payment of P500,000 as moral damages and P100,000 as exemplary
damages for the crime of Trafficking in Persons as a Prostitute finds
basis in Article 2219 of the Civil Code, which states:
Art. 2219. Moral damages may be recovered in the following and
analogous cases:
(1) A criminal offense resulting in physical injuries;
(2) Quasi-delicts causing physical injuries;
(3) Seduction, abduction, rape, or other lascivious acts;
(4) Adultery or concubinage;
(5) Illegal or arbitrary detention or arrest;
(6) Illegal search;
(7) Libel, slander or any other form of defamation;
(8) Malicious prosecution;
(9) Acts mentioned in Article 309;
30

(10) Acts and actions referred to in Articles 21, 26, 27, 28, 29, 30, 32,
34, and 35.
....
The criminal case of Trafficking in Persons as a Prostitute is an
analogous case to the crimes of seduction, abduction, rape, or other
lascivious acts. In fact, it is worse. To be trafficked as a prostitute
without one’s consent and to be sexually violated four to five times a
day by different strangers is horrendous and atrocious. There is no doubt
that Lolita experienced physical suffering, mental anguish, fright,
serious anxiety, besmirched reputation, wounded feelings, moral shock,
and social humiliation when she was trafficked as a prostitute in
Malaysia. Since the crime of Trafficking in Persons was aggravated,
being committed by a syndicate, the award of exemplary damages is
likewise justified.91
Human trafficking indicts the society that tolerates the kind of poverty
and its accompanying desperation that compels our women to endure
indignities. It reflects the weaknesses of that society even as it convicts
those who deviantly thrive in such hopelessness. We should continue to
strive for the best of our world, where our choices of human intimacies
are real choices, and not the last resort taken just to survive. Human
intimacies enhance our best and closest relationships. It serves as a
foundation for two human beings to face life’s joys and challenges while
continually growing together with many shared experiences. The quality
of our human relationships defines the world that we create also for
others.
Regardless of the willingness of AAA and BBB, therefore, to be
trafficked, we affirm the text and spirit of our laws. Minors should
spend their adolescence moulding their character in environments free
of the vilest motives and the worse of other human beings. The evidence
and the law compel us to affirm the conviction of accused in this case.
But this is not all that we have done. By fulfilling our duties, we also
express the hope that our people and our government unite against
everything inhuman. We contribute to a commitment to finally stamp
out slavery and human trafficking.
There are more AAA's and BBBs out there. They, too, deserve to be
rescued. They, too, need to be shown that in spite of what their lives
have been, there is still much good in our world.
WHEREFORE, premises considered, we AFFIRM the decision of the
Court of Appeals dated June 27, 2013, finding accused Shirley A. Casio
guilty beyond reasonable doubt of violating Section 4(a), qualified by
Section 6(a) of Republic Act No. 9208, and sentencing her to suffer the
penalty of life imprisonment and a fine of P2,000,000.00, with the
MODIFICATION that accused-appellant shall not be eligible for parole
under Act No. 4103 (Indeterminate Sentence Law) in accordance with
Section 3 of Republic Act No. 9346.92
The award of damages is likewise MODIFIED as follows:
Accused is ordered to pay each of the private complainants:
(1) P500,000.00 as moral damages; and
(2) P100,000.00 as exemplary damages.
SO ORDERED.
31
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-58889 July 31, 1986
NATHANIEL S. MANIPON, JR., petitioner,
vs.
SANDIGANBAYAN, Second Division composed of HON.
BERNARDO P. FERNANDEZ as Acting Presiding Justice and
HON. BUENAVENTURA J. GUERRERO and HON. MOISES C.
KALLOS, as Associate Justices, respondents.
Guillermo B. Bandonill for petitioner.
The Solicitor General for respondents.
FERNAN, J.:
This is a case of direct bribery penalized under Article 210 of the
Revised Penal Code.
In its decision dated September 30, 1981, the Sandiganbayan found
accused Nathaniel S. Manipon, Jr., 31, guilty of direct bribery, sentenced
him to four months and twenty days of arresto mayor with temporary
special disqualification for eight years and one day and a fine of
P2,000.00 with subsidiary imprisonment in case of insolvency and to
pay the costs.
Manipon came to this Court on petition for review on certiorari seeking
the reversal of the judgment of conviction. The Court dismissed the
petition, "the question raised being factual and for lack of merit." 1
However, upon motion for reconsideration, the Court reconsidered its
resolution and gave due course to the petition. 2
The facts of this case are as follows:
Nathaniel S. Manipon, Jr., a deputy sheriff of the Court of First Instance
of Baguio City and Benguet, Branch IV, was assigned to enforce an
order of the Minister of Labor dated October 31, 1979 directing the
Sheriff of Baguio City or his deputy to execute the decision of the labor
arbiter in NLRC Case No. RB-1-C-1428-79 entitled "Longog Tabek, et
al vs. Harry Dominguez et al" and to make a return within thirty (30)
days from said date. 3 The labor arbiter's decision ordered Harry
Dominguez, a building contractor and the then municipal mayor of
Tadian, to pay Longog Tabek and the other judgment creditors the
amount of P2,720.00 with interest, as the balance of their work contract.
4
Pursuant to that assignment, Manipon on November 9, 1979 sent a
notice to the Commercial Bank and Trust branch [Comtrust] in Baguio
City garnishing the bank accounts of Dominguez. 5 The bank agreed to
hold the accounts. For one reason or another, Manipon did not inform
the labor arbiter of the garnishment nor did he exert efforts to
immediately satisfy the judgment under execution.
On November 12, 1979, Dominguez sought Manipon's help in the
withdrawal of the garnished account. Manipon told Dominguez that the
money could not be withdrawn.
However, on December 27, 1979 when the two met again at the Office
of the National Intelligence and Security Authority [NISA] in Baguio
City, Manipon told Dominguez that he "can remedy the withdrawal so
they will have something for the New Year." 6 Dominguez interpreted
this to mean that Manipon would withdraw the garnished amount for a
consideration. Dominguez agreed and they arranged to meet at the bank
later in the afternoon. After Manipon left, Dominguez confided the offer
to NISA Sub-Station Commander Luisito Sanchez. They then hatched
32
up a plan to entrap Manipon by paying him with marked money the next
day. Col. Sanchez and a Col. Aguana were able to put up P700.00 in
fifty-peso bills which were then authenticated, xeroxed and dusted with
fluorescent powder. 7
Thus, at about 4:00 o'clock in the afternoon of December 28, 1979,
Dominguez went to Comtrust as planned. Manipon showed up with two
companions, named Deputy Sheriff Crisanto Flora and Baltazar Pacis.
Manipon delivered his letter to the bank lifting the garnishment. 8 Then
Dominguez prepared a withdrawal slip for P2,500.00. 9 As soon as
Dominguez received the money from the teller, he took out P300.00
therefrom added it to the P 700.00 in marked bills and handed the total
amount of P l,000.00 to Manipon. Then they all left the bank.
Dominguez walked over to his car and drove off. Manipon and his two
companions walked down Session Road. Moments later, PC and NISA
operatives accosted them, seized the P1,000.00 from the left breast
pocket of Manipon and thereafter brought them to Camp Dangwa for
questioning. Manipon was subjected to an ultraviolet light test and
found positive for fluorescent powder. However, after executing a
certification relative to the money recovered, he refused to give any
statement. 10 He filed his sheriff's return unsatisfied on February 20,
1980 or after 114 days. 11
Originally, Manipon was charged with violation of Presidential Decree
No. 46 for having demanded and received P l,000.00 from Dominguez,
a private individual, for a favor extended by him to the latter, i.e., by not
enforcing the garnishment order issued to Comtrust which was his
official duty. However, in an amended information dated February 16,
1981, the charge was changed to direct bribery under the Revised Penal
Code. 12
Manipon was released on bail. When arraigned, he pleaded not guilty.
13
In his brief, Manipon contends that the Sandiganbayan erred in
convicting him of direct bribery, in not giving credence to the defense
theory that there was novation of the money judgment and in admitting
illegally-obtained evidence.
The crime of direct bribery as defined in Article 210 of the Revised
Penal Code consists of the following elements: (1) that the accused is a
public officer; (2) that he received directly or through another some gift
or present, offer or promise; (3) that such gift, present or promise has
been given in consideration of his commission of some crime, or any act
not constituting a crime, or to refrain from doing something which it is
his official duty to do, and (4) that the crime or act relates to the exercise
of his functions as a public officer. 14 The promise of a public officer to
perform an act or to refrain from doing it may be express or implied. 15
It is not disputed that at the time of the commission of the crime
Manipon was the deputy sheriff of the Court of First Instance of
Benguet and Baguio assigned to implement the execution order issued
in NLRC Case No. RB-1-C-1428-79. It is also not disputed that
Manipon garnished the bank accounts of Dominguez at Comtrust and
that he lifted the same on December 28, 1979 after which he received P
l,000.00 from Dominguez.
It is the theory of the defense that the P1,000.00 Manipon collected from
Dominguez on December 28, 1979 was not a bribe but a payment in
partial satisfaction of the judgment under execution to which the
judgment creditors headed by Longog Tabek had agreed.
Manipon narrates that during his meeting with Dominguez at the NISA
office on December 27, 1979, Dominguez requested Manipon to convey
to the creditors that he was only willing to pay for the time being a
partial amount of P1,000.00, the balance of P 1,720. 00 to be paid after
the New Year. 16 So he visited Longog Tabek who was the "lead man."
Tabek, an illiterate, consented to the lesser amount because he needed
money badly. 17 His arrangements with Tabek and Dominguez were all
verbal. At that time he found no reason to have some written
memorandum for his own protection.
33
At Comtrust after Dominguez had given him the P1,000.00 Manipon
made a move to hand him a temporary receipt but Dominguez brushed it
aside and said he was in a
hurry. 18
Manipon maintains that Dominguez had framed him up because of a
grudge. He said that in 1978 he and Flora had levied execution against
several vehicles owned by Dominguez, an act which the latter had
openly resented. 19
The defense theory is so incredible that it leaves no doubt whatsoever in
the Court's mind that Manipon is guilty of the crime charged.
It is very strange indeed that for such an important agreement that would
modify a final judgment, no one took the bother of putting it down on
paper. Of course Manipon would have us believe that there was no need
for it because he trusted Dominguez and Tabek. And yet did he not also
claim that Dominguez had framed him up because of a grudge? And if
there was really an agreement to alter the judgment, why did he not
inform the labor arbiter about it considering that it was the labor arbiter
who had issued the order of execution? Manipon could not give
satisfactory explanations because there was no such agreement in the
first place.
The temporary receipt 20 adduced by Manipon, as correctly pointed out
by the Solicitor General, is a last-minute fabrication to provide proof of
the alleged agreement for the trial payment of the judgment debt.
Contrary to Manipon's claim, it is hard to believe that Dominguez was
not interested in getting said temporary receipt because precisely that
was the proof he needed to show that he had partially complied with his
legal obligation.
The testimonies of Crisanto Flora and Longog Tabek are of no help
either to the defense. Flora is Manipon's co-sheriff and is therefore
biased. On the other hand, Tabek, on several occasions on the witness
stand, answered with obvious hesitation, betraying himself to be a
rehearsed witness. While he claimed that he was the supposed headman
of the other creditors, he could not present any authority that would
allow him to speak for them, let alone agree to receive a lesser amount
in their behalf. He even admitted that he did not know their names. 21
Indeed, Manipon's behavior at the very outset, had been marked with
irregularities. As early as November 9, 1979, he had already garnished
the bank accounts of Dominguez at Comtrust, but he did not notify the
labor arbiter so that the corresponding order for the payment by the bank
of the garnished amount could be made and the sum withdrawn
immediately to satisfy the judgment under execution. His lame excuse
was that he was very busy in the sheriff's office, attending to
voluminous exhibits and court proceedings. That was also the same
excuse he gave for not informing the labor arbiter of the novation. In
fact he candidly admitted that he never communicated with the NLRC
concerning the garnishment. He returned the writ unsatisfied only on
February 20, 1980 although by its express terms, it was returnable
within thirty days from October 29, 1979. 22 Clearly, Manipon had
planned to get Dominguez to acquiesce to a consideration for lifting the
garnishment order.
Manipon was also asked about the affidavit he executed during the
preliminary investigation. 23 That affidavit contained two annexes but
the temporary receipt which he allegedly prepared on December 28,
1979 was not included. He said he misplaced it in his office and found it
only several weeks after he had made the affidavit. 24 This leads us to
strongly suspect there was actually no temporary receipt at all at the
time of payment on December 28 and that it was concocted by the
defense as a last-ditch effort to make the authorities believe that what
had transpired was not a payoff but a legitimate partial satisfaction of a
judgment debt.
In the final analysis, it all boils down to credibility. In this regard, the
prosecution witnesses have acquitted themselves welt The
Sandiganbayan did not err in giving weight and credence to their
version instead of Manipon's. Indeed, Manipon's guilt for the crime of
34
direct bribery has been proved beyond reasonable doubt.
Dwelling on one last point, Manipon has pointed out that the P1,000.00
was illegally seized because there was no valid March warrant and
therefore inadmissible.
The argument is untenable. The rule that searches and seizures must be
supported by a valid warrant is not an absolute rule. There are at least
three exceptions to the rule recognized in this jurisdiction. These are: 1)
search incidental to an arrest, 2) search of a moving vehicle, and 3)
seizure of evidence in plain view. 25
In the case at bar, the records show that at about 2:00 p.m. on December
28,1979, NISA Sub-Station Commander Colonel Luisito Sanchez held a
final briefing among his men and some operatives from the Benguet
Philippine Constabulary concerning the planned entrapment. He had
earlier received word from Dominguez that the lifting of the
garnishment would be effected that afternoon and he informed them that
Manipon was asking money from Dominguez. 26 As Colonel Sanchez
earlier testified, part of the money to be withdrawn after lifting the
garnishment was to be given to the accused 27 for agreeing to lift the
order of garnishment. After the briefing which lasted from ten to fifteen
minutes, they an headed for the Comtrust bank.
NISA Agent Caesar Murla stationed himself near the door of the bank so
that he could observe what transpired inside the bank. 28 He testified
that he saw Dominguez give the marked money to Manipon which the
latter accepted and counted. Upon seeing Manipon take the money from
Dominguez, Agent Murla gave a signal to some of the agents positioned
nearby by placing his right hand on his head to indicate that the money
had changed hands. Immediately thereafter, Dominguez left the bank,
Manipon placed the money in his left breast pocket and followed suit.
As Manipon walked past Murla on his way out, the latter gave another
signal by putting his hand on his left breast to indicate that Manipon had
placed the money in his left breast pocket. 29
Upon noticing the second signal, the NISA agents and the PC operatives
approached Manipon and his two companions. After Identifying
themselves as peace officers, they retrieved the P l,000.00 from
Manipon. Through it all, Manipon remained amazingly silent and
voiced no protest. 30
The search and seizure of the P1,000.00 from Manipon would therefore
fall within the first exception. The search was made as an incident to a
lawful arrest, in accordance with our pronouncement in Moreno v. Ago
Chi 12 Phil. 439, reiterated in Alvero v. Dizon 76 Phil. 637, to wit:
An officer making an arrest may take from the person arrested any
money or property found upon his person which was used in the
commission of the crime or was the fruit of the crime or which might
furnish the prisoner with the means of committing violence or escaping,
or which may be used in evidence in the trial of the case.
The evident purpose of this exception is both to protect the arresting
officer against physical harm from the person being arrested who might
be armed with a concealed weapon and also to prevent the person
arrested from destroying evidence within his
reach. 31
Since the other issues raised by Manipon are factual they need not be
discuss here.
WHEREFORE, in view of the foregoing, the instant petition is denied
for lack of merit, with costs against petitioner-accused Nathaniel
Manipon, Jr. The decision of the Sandiganbayan dated September 30,
1981 is affirmed.
SO ORDERED.
35
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-18428 August 30, 1962
MARIANO G. ALMEDA, SR., and VALERIANA F. ALMEDA,
petitioners,
vs.
THE HON. JESUS Y. PEREZ, Judge of the Court of First Instance
of Manila,
and the REPUBLIC OF THE PHILIPPINES, respondents.
Salonga, Ordoñez and Associates for petitioners.
Office of the Solicitor General for respondents.
LABRADOR, J.:
This is a petition for prohibition and certiorari, with preliminary
injunction, filed by petitioners seeking to set aside and declare null and
void the orders, dated March 15, 1961 and May 8, 1961, of the
respondent Judge Jesus Y. Perez of the Court of First Instance of Manila,
in Civil Case No. 44693 of said court. The first order allowed the filing
of an amended petition for forfeiture against petitioners; the second
denied a motion for the reconsideration thereof and for the dismissal of
the amended petition for forfeiture.
In October, 1961, Epifanio T. Villegas and Jesus A. Mendoza, filed a
complaint with the Secretary of Justice, charging Mariano G. Almeda,
Sr. with having acquired, during his incumbency as government
employee, cash and properties from unknown sources in the total
amount of P121,407.98 which acquisitions, according to the complaint,
were manifestly out of proportion to the salary and other lawful income
of said Mariano G. Almeda, Sr., and, therefore, in violation of the
provisions of Republic Act No. 1379, otherwise known as the Anti-Graft
Law. Pursuant to the provisions of said Act, a preliminary investigation
was conducted by a committee of investigators designated by the
Secretary of Justice. In a resolution of said investigators, dated
November 4, 1960, it was certified that there is reasonable ground to
believe that from 1950 to 1959, Mariano G. Almeda, Sr. acquired
properties manifestly out of proportion to his salary as Assistant
Director of the National Bureau of Investigation, and to his other lawful
income.
On the basis of the findings of the investigators, the Solicitor General,
representing the Republic of the Philippines as petitioner, filed on
November 12, 1960, with, Court of First Instance of Manila, a petition
for forfeiture against Mariano G. Almeda, Sr., docketed as Civil Case
No. 44693. It charges him with having committed while engaged in the
performance of his official and, in consequence of said graft, had
acquired properties and made cash disbursements from 1950 to 1959
grossly disproportionate to his lawful income. His wife was included as
a co-respondent in her capacity as wife of Mariano G. Almeda, Sr. and
as co-owner of their conjugal properties.
Petitioners herein filed their answer on December 1960 and thereafter
the case was set for hearing, but February 15, 1961, the Solicitor
General filed a "Motion for Leave to Amend Petition for Forfeiture".
The judge granted the motion but rejected the inclusion of Mariano F.
Almeda, Jr. as party respondent. On March 25, 196 the Solicitor General
filed the amended petition for forfeiture, adding other counts and items
of alleged unlawful acquisitions and disbursements thus increasing the
alleged cash from unexplained sources received by the respondent from
the years 1950-59 to P208,682.45, as against respondent's salary and
other lawful income of only P59,860.97. Respondents, petitioners
herein, objected to the amendment on the ground that the new counts or
charges already been investigated and dismissed after investigation, and
respondents had not been given a new preliminary investigation with
respect to the new counts or charges that the proceeding under Republic
Act No. 1379 being criminal in nature, the petition may not be amended
36
as substance without respondents' consent. It is also claim that the
amendments were presented only to delay the proceedings to the
prejudice of the respondents, and that the new counts or charges could
not be included because one year had already elapsed after a general
election in violation of the provisions of Republic Act No. 1379. After
the filing of memoranda by the parties the respondent judge issued the
order sought to be reviewed, authorizing the presentation of the second
amended petition but without including therein Mariano F. Almeda, Jr.
as a party respondent. The court ruled as follows:
The Court finds no merit to the contention that the amended petition
seeks to include new counts which were previously dismissed by the
investigating Fiscals because no such dismissal appears in the resolution
of said investigating fiscal and moreover, the only function of the
investigating fiscals in the preliminary investigation was to determine
whether or not there is probable cause that respondents have acquired
properties beyond their means. The items of receipts and disbursements
or acquisitions referred to as new counts by the respondents are but
allegations in detail respecting the main allegation that respondents
unlawfully acquired the properties described in the amended petition.
The new allegations of receipts and disbursements embodied in the
amended petition objected to by the respondents merely supplement or
amplify the facts of unlawful acquisition originally alleged in the
original petition. These amendments hence relate back to the date of the
filing of the original petition so that the prohibition contained in Rep.
Act 1379 that no petition shall be filed within one year before a general
election cannot apply with respect to the new items of receipts and
disbursements. The Court finds no merit in the respondents' contention
that the amended petition should not be admitted on the allegation that
this proceeding is penal in nature and no amendment as to matters of
substance can be admitted after the respondents have filed their answer
because this is a civil case and the rules respecting amendments in civil
cases and not of informations in criminal cases should govern the
admission of amendments in this case. The mere fact that a preliminary
investigation is required to be held in a proceeding of this nature does
not make the same a criminal proceeding. Hence, the rule that
amendments of pleadings are favored and should be liberally allowed in
the furtherance of justice should be applied.
With reference to the objection that no preliminary investigation was
conducted insofar as the new respondent Mariano P. Almeda is
concerned, the Court finds said objection to be well-founded because no
preliminary investigation was in fact conducted insofar as said new
respondent is concerned in violation of Sec. 2 of Rep. Act 1379.
WHEREFORE, the Court hereby orders the petitioner to file, within ten
days, a second amended petition without including therein, Mariano F.
Almeda as party respondent or make reference therein with respect to
said person.
SO ORDERED.
The principal contention of the petitioners herein, respondents in the
court below, is that Republic Act No. 1379 is penal in substance and
effect, hence the presentation of the amended petition without the
benefit of a previous preliminary investigation under the Act cannot be
allowed; that the amendment would have the effect of presenting charge
(under Republic Act No. 1379) within one year from the date of a
general election; and lastly that amendment may not be made on a
matter of substance after the defendants had pleaded.
A study of the provisions of Republic Act No. 1379 readily discloses
that the proceeding for forfeiture is in nature and not criminal, as
claimed by the petitioners. A test has been suggested to determine
whether the proceeding for forfeiture is civil or criminal, thus:
. . . Forfeiture proceedings may be either civil or criminal in nature, and
may be in rem or in personam. If they are under a statute such that if an
indictment is presented forfeiture can be included in the criminal case
they are in nature, although they may be civil in form; and where it must
be gathered from the statute that the action is meant to be criminal in its
nature it cannot be considered as civil. If however, the proceeding does
37
not involve the conviction of wrongdoer for the offense charged the need of another investigation. It also follows that amendments setting
proceeding is of a civil nature; and under statutes which specifically so forth newly discovered acquisitions may be in the petition without
provision where the act or omission for which the forfeiture is imposed obtaining the consent of the respondent.
is not also a misdemeanor, such forfeiture may be sued for recovered in
a civil action. (37 CJS, Forfeitures, Sec. 5, pp. 15-16). WHEREFORE, the petition should be, as it is hereby, denied, with
costs. So ordered.
In the first place a proceedings under the Act (Rep. Act No. 1379) does,
not terminate in the imposition of penalty but merely in the forfeiture of
the properties illegally acquired in favor of the state. (Sec. 6) In the
second place the procedure outlined in the law leading to forfeiture is
that provided for in a civil action. Thus there is a petition (Sec. 3), then
an answer (Sec. 4), and lastly, a hearing. The preliminary investigation
which is require prior to the filing of the petition, in accordance with
Sec. 2 of the Act, is provided expressly to be one similar to a
preliminary investigation in a criminal in a criminal case. If the
investigation is only similar to that in a criminal case, but other steps in
the proceedings are those for civil proceedings, it stands to reason that
the proceeding is not criminal. Had it been a criminal proceeding there
would been, after a preliminary investigation, a reading of information,
a plea of guilty or not guilty, and a trial thereafter, with the publication
of the judgement in the presence of the defendant. But these proceedings
as above set forth, are not provided for in the law.1äwphï1.ñët

Section 12 of the law provides a penalty to the public officer, but said
penalty is against the employee or officer for the transfer or conveyance
of any unlawfully acquired properties. The law therefore penalizes an
officer for transferring or conveying properties unlawfully acquired but
does not do so for making the unlawful acquisition; it merely imposes
the penalty of forfeiture of the properties unlawfully acquired.

As the proceeding for forfeiture, as pointed out and as provided for in

the law, is not a penal proceeding but a civil one for the forfeiture of the
properties illegally acquired, and as the procedure outlined in the law is
that which is followed in civil actions, amendment of the charges or the
petition for forfeiture may be made as in ordinary civil actions; i.e., the
amendments may be made before trial or in the course of trial without

38
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-56170 January 31, 1984
HILARIO JARAVATA petitioner,
vs.
THE HON. SANDIGANBAYAN and THE PEOPLE OF THE
PHILIPPINES, respondents.
Franco L. Loyola and Sabas Cacananta for petitioner.
The Solicitor General for respondents.
ABAD SANTOS, J.:
This is a petition to review the decision of the Sandiganbayan in
Criminal Case No. 873.
Hilario Jaravata was accused of violating Section 3(b) of Republic Act
No. 3019, as amended, said to have been committed in the following
manner:
That on or about the period from April 30, 1979 to May 25, 1979, in the
Municipality of Tubao, Province of La Union, Philippines, and within
the jurisdiction of this Honorable Court, the abovenamed accused, being
then the Assistant Principal of the Leones Tubao, La Union Barangay
High School and with the use of his influence as such public official and
taking advantage of his moral and official ascendancy over his
classroom teachers, with deliberate intent did then and there wilfully,
unlawfully and feloniously made demand and actually received
payments from other classroom teachers, ROMEO DACAYANAN,
DOMINGO LOPEZ, MARCELA BAUTISTA, and FRANCISCO
DULAY various sums of money, namely: P118.00, P100.00, P50.00 and
P70.00 out of their salary differentials, in consideration of accused
having officially intervened in the release of the salary differentials of
the six classroom teachers, to the prejudice and damage of the said
classroom teachers, in the total amount of THREE HUNDRED THIRTY
EIGHT (P338.00) PESOS, Philippine Currency. (Decision, p.1-2.)
After trial, the Sandiganbayan rendered the following judgment:
WHEREFORE, accused is hereby found guilty beyond reasonable doubt
for Violation of Section 3(b), Republic Act No. 3019, as amended, and
he is hereby sentenced to suffer an indeterminate imprisonment ranging
from ONE (1) YEAR, is minimum, to FOUR (4) YEARS, as maximum,
to further suffer perpetual special disqualification from public office and
to pay the costs.
No pronouncement as to the civil liability it appearing that the money
given to the accused was already refunded by him. (Id. pp, 16-17.)
The petition raises factual and legal issues but for obvious reasons Our
decision shall deal with the legal issue only.
The Sandiganbayan states in its decision the following:
A perusal of the conflicting versions of the prosecution and the defense
shows that there is no dispute that [complainants] Ramos, Lloren,
Lopez, Dacayanan, Dulay and Bautista are classroom teachers of the
Leones Barangay High School with accused as their assistant principal
and [Conrado Baltazar as the administrator; that on January 5, 1979,
accused informed the classroom teachers of the approval of the release
of their salary differentials for 1978 and to facilitate its payment accused
and the classroom teachers agreed that accused follow-up the papers in
Manila with the obligation on the part of the classroom teachers to
reimburse the accused of his expenses; that accused incurred expenses
39
in the total amount of P220.00 and there being six classroom teachers,
he divided said amount by six or at the rate of P36.00 each; that the
classroom teachers actually received their salary differentials and
pursuant to said agreement, they, with the exception of Lloren and
Ramos, gave the accused varying amounts but as Baltazar did not
approve it, he ordered the accused to return the money given to him by
Lopez, Dacayanan, Dulay and Bautista, and accused complied (Pp. 7-8.)
The decision also recites that "the evidence is overwhelming to show
that accused received more than the rightful contribution of P36.00 from
four classroom teachers, namely: Lopez, Dulay, Dacayanan and
Bautista. Lopez categorically declared that he gave the accused P100.00
(TSN, p. 5, August 21, 1980 hearing) after he received his salary
differential or an excess of P64.00. So with Dulay, that he gave P70.00
to the accused (TSN, p. 16, supra) or an excess of P34.00; Dacayanan,
that he gave to the accused P118.00 (TSN, p. 26, supra) or an excess of
P82.00, and Bautista, that he gave to the accused P50.00 (TSN, p. 38,
supra) or an excess of P14.00. In short, the total amount received by the
accused in excess of the share of the classroom teachers in the
reimbursement of his expenses is P194.00. " (P. 9.)
Republic Act No. 3019, otherwise known as the Anti-Graft and Corrupt
Practices Act provides, inter alia the following:
Sec. 3. Corrupt practices of public officers. — In addition to acts or
omissions of public officers already penalized by existing law, the
following shall constitute corrupt practices of any public officer and are
hereby declared to be unlawful:
xxx xxx xxx
(b) Directly or indirectly requesting or receiving any gift, present, share,
percentage, or benefit, for himself or for any other person in connection
with any contract or transaction between the Government and any other
party, wherein the public officer in his official capacity has to intervene
under the law.
xxx xxx xxx
The legal issue is whether or not, under the facts stated, petitioner
Jaravata violated the above-quoted provision of the statute.
A simple reading of the provision has to yield a negative answer.
There is no question that Jaravata at the time material to the case was a
"public officer" as defined by Section 2 of R.A. No. 3019, i.e. "elective
and appointive officials and employees, permanent or temporary,
whether in the classified or unclassified or exempt service receiving
compensation, even normal from the government." It may also be said
that any amount which Jaravata received in excess of P36.00 from each
of the complainants was in the concept of a gift or benefit. The pivotal
question, however, is whether Jaravata, an assistant principal of a high
school in the boondocks of Tubao, La Union, "in his official capacity
has to intervene under the law" in the payment of the salary differentials
for 1978 of the complainants. It should be noted that the arrangement
was "to facilitate its [salary differential] payment accused and the
classroom teachers agreed that accused follow-up the papers in Manila
with the obligation on the part of the classroom teachers to reimburse
the accused of his expenses.
In Our opinion, Sec. 3(b) of R.A. No. 3019, refers to a public officer
whose official intervention is required by law in a contract or
transaction.
There is no law which invests the petitioner with the power to intervene
in the payment of the salary differentials of the complainants or anyone
for that matter. Far from exercising any power, the petitioner played the
humble role of a supplicant whose mission was to expedite payment of
the salary differentials. In his official capacity as assistant principal he is
not required by law to intervene in the payment of the salary
differentials. Accordingly, he cannot be said to have violated the law
afore-cited although he exerted efforts to facilitate the payment of the
40
salary differentials.

WHEREFORE, the petition is hereby granted and the judgment of the

Sandiganbayan convicting the petitioner is set aside. Costs de oficio.

SO ORDERED.

41
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 70332-43 November 13, 1986
GENEROSO TRIESTE, SR., petitioner,
vs.
SANDIGANBAYAN (SECOND DIVISION), respondent.
Arturo M. de Castro for petitioner.
The Solicitor General for respondent.
ALAMPAY, J.:
The present case relates to an appeal by way of a Petition for Review of
the decision promulgated on November 6, 1984, by the Sandiganbayan
convicting the herein petitioner, Generoso Trieste, Sr., of twelve (12)
separate violations of Section 3 paragraph (h) of Republic Act 3019,
otherwise known as the Anti-Graft and Corrupt Practices - Act, which
petitioner were accused of in Criminal Cases Nos. 6856-6867 of said
Court. Petitioner's motion for reconsideration and/or new trial was
denied by the respondent Sandiganbayan under its Resolution of March
11, 1985.
The twelve (12) separate Informations filed by the Tanodbayan against
the herein petitioner for violation of Section 3 (h) of the Anti-Graft Law
are all similarly worded as the information presented in Criminal Case
No. 6856 which is hereunder quoted:
That on or about the month of July, 1980 and some time subsequent
thereto, in the municipality of Numancia, Aklan, Philippines, and within
the jurisdiction of this Honorable Court, the abovenamed accused, being
then the Municipal Mayor and member of the Committee on Award of
the Municipality of Numancia, Aklan and as such, had administrative
control of the funds of the municipality and whose approval is required
in the disbursements of municipal funds, did then and there wilfully and
unlawfully have financial or pecuniary interest in a business, contract or
transaction in connection with which said accused intervened or took
part in his official capacity and in which he is prohibited by law from
having any interest, to wit the purchases of construction materials by the
Municipality of Numancia, Aklan from Trigen Agro-Industrial
Development Corporation, of which the accused is the president,
incorporator, director and major stockholder paid under Municipal
Voucher No. 211-90-10-174 in the amount of P558.80 by then and there
awarding the supply and delivery of said materials to Trigen Agro-
Industrial Development Corporation and approving payment thereof to
said corporation in violation of the Anti-Graft and corrupt Practices Act.
except only as to the dates of the commission of the offense, voucher
numbers, and amounts involved.
Criminal Cases Nos. 6856, 6857, 6858, 6859, 6860. 6861, and 6862
were allegedly committed in July, 1980; Criminal Cases Nos. 6863 and
6864, in August, 1980; and Criminal Cases Nos. C-865, 6866 and 6867
in October, 1980. The separate vouchers involved in the twelve (12)
cases are said to be the following:
Crim. Case #6856, Vchr #211-90-10-174 at P558.80
Crim. Case #6857, Vchr #211-80-10-187 at 943.60
Crim. Case #6858, Vchr #211-80-10-189 at 144.00
Crim. Case #6859, Vchr #211-80-10-190 at 071.30
Crim. Case #6860, Vchr #211-80-10-191 at 270.00
42

Crim. Case #6861, Vchr #211-80-10-232 at 1,820.00
Crim. Case #6862, Vchr #211-80-10-239 at 1,085.80
Crim. Case #6863, Vchr #211-80-10-407 at 150.00
Crim. Case #6864, Vchr #211-80-12-494 at 500.00
Crim. Case #6865, Vchr #211-81-04-61 at 840.00
Crim. Case #6866, Vchr #211-81-04-62 at 787.00
Crim. Case #6867, Vchr #211-81-04-63 at 560.00
T o t a l - - - - P7,730.50
(Consolidated Comment, pg. 4; Rollo, 325)
After trial, the Sandiganbayan rendered the challenged decision dated
November 6, 1984, convicting the petitioner in all the twelve (12)
criminal cases, (Rollo, pp. 324-325) and in each case he was
sentenced,"...to suffer the indeterminate penalty of imprisonment
ranging from THREE (3) YEARS and ONE (1) DAY as the minimum,
to SIX (6) YEARS and ONE (1) DAY as the maximum, to further suffer
perpetual disqualification from the public office, and to pay the cost of
the action." (pp. 37-40, Decision; Rollo, 322).
After the petition for review was filed in this case and pending the
submission by respondent of its comment to the petition, herein
petitioner presented to this Court on June 7, 1985, an urgent petition to
lift the order of the Sandiganbayan dated September 12, 1983,
suspending him from Office as the elected Municipal Mayor of
Numancia, Aklan. His term was to expire in 1986. No objection to the
petition for the lifting of the suspension order was interposed by the
Solicitor General. Accordingly, and pursuant to the resolution of this
Court dated October 1, 1985, petitioner's preventive suspension was
lifted and his reinstatement as Municipal Mayor of Numancia, Aklan
was ordered to take effect immediately.
A supplemental petition, dated October 10, 1985, was later filed by
petitioner's new counsel in collaboration with the original counsel on
record of petitioner. In this supplemental pleading, it was vigorously
stressed that the petitioner did not, in any way, intervene in making the
awards and payment of the purchases in question as he signed the
voucher only after all the purchases had already been made, delivered
and paid for by the Municipal Treasurer. It was further pointed out that
there was no bidding at all as erroneously adverted to in the twelve
informations filed against herein petitioner because the transactions
involved were emergency direct purchases by personal canvass.
Upon leave of the Court given, the former Solicitor General filed a
consolidated comment dated November 4, 1984, to the original petition
filed in this case dated April 30, 1985 as well as on the supplemental
petition dated October 10, 1985. He argued the dismissal of the petition
on the ground that the same raise factual issues which are, therefore,
non-reviewable (Consolidated Comment, pg. 20; Rollo, 341). The
submission made by the Office of the Solicitor General in the
Consolidated Comment dated November 4, 1986, are hereunder quoted:
xxx xxx xxx
The impugned decision convicted petitioner for violation of Section 3
(h), paragraph (h) of the Anti-Graft and Corrupt Practices Act which
reads as follows:
SEC. 3. Corrupt Practices of Public Officers. - In addition to acts or
omissions of public officers already penalized by existing laws, the
following shall constitute corrupt practices of any public officer and are
hereby declared to be unlawful:
xxx xxx xxx
43

(h) Directly or indirectly having financial or pecuniary interest in any
business, contract or transaction in connection with which he intervenes
or takes part in his official capacity, or in which he is prohibited by the
Constitution or by any law from having any interest.
The elements essential in the commission of the crime are:
a) The public officer has financial or pecuniary interest in a business,
contract or transaction;
b) In connection with which he intervenes in his official capacity.
Concurrence of both elements is necessary as the absence of one will
not warrant conviction. (Rollo, pp. 338-339).
The earlier view taken by the Solicitor General's Office was that
petitioner's evidence of divestment of interest in Trigen 'Corporation,
which is said to have been effected on February 25, 1980, before the
petitioner assumed the Mayorship, should have been presented at the
earliest opportunity before the Tanodbayan and because this was not
done by him the resolution of the Tanodbayan finding a prima facie case
against petitioner should be sustained. Furthermore, petitioner was
faulted because the transfer of his interest in the corporate stock of
Trigen Corporation should have been recorded in the Securities and
Exchange Commission but no evidence of this sort, was presented. The
consolidated comment also played up the advertisement of Trigen
Corporation in the program of the Rotary Club of Kalibo, Aklan,
showing the printed name of petitioner as the President-Manager of the
said corporation. (Consolidated Comment; Rollo, pp. 340-341)
Petitioner filed a Reply controverting the allegations and arguments
recited in the aforestated Consolidated Comment of the Solicitor
General.
After considering the pleadings filed and deliberating on the issues
raised in the petition and supplemental petition for review on certiorari
of the decision of the Sandiganbayan, as well as the consolidated
comment and the reply thereto filed by petitioner's counsel, the Court in
its resolution of January 16, 1986, gave due course to the petition and
required the parties to file their respective briefs.
Petitioner's exhaustive and well-reasoned out Brief which was filed with
the Court on April 14, 1986, raised the following legal questions.
xxx xxx xxx
From the foregoing recital of facts, the following legal questions arise:
1. Does the mere signing by a Municipal Mayor of municipal vouchers
and other supporting papers covering purchases of materials previously
ordered by the Municipal Treasurer without the knowledge and consent
of the former, subsequently delivered by the supplier, and, thereafter
paid by the same Municipal Treasurer also without the knowledge and
consent of the Municipal Mayor, constitute a violation of the provisions
of Section 3 (h) of Rep. Act No. 3019 otherwise known as the Anti-
Graft and Corrupt Practices Act?
2. Does the mere signing of the mere documents above constitute the
kind of intervention of taking part in (his) official capacity within the
context of the above-mentioned law?
3. Was damage or prejudice, as an element of the offense under Section
3 (h) of the said law, caused to the Government or the Municipality of
Numancia as a result of the contracts in question and as a corollary
thereto, was undue advantage and gained by the transacting corporation?
4. Was there divestment on the part of the herein petitioner of his shares
in Trigen Agro-Industrial Development Corporation long before the
questioned transactions? (Appellant's Brief, page 15)
It was then discus and argued by the petitioner that the prosecution
44
failed to establish the presence of all the elements of the offense, and
more particularly to adduce proof that petitioner has, directly or
indirectly, a financial or pecuniary interest in the imputed business
contracts or transactions.
Discussion of petitioner's arguments in this regard will not however, be
recited anymore as this was obviated when a new Solicitor General,
after seeking and obtaining several extensions of time to file its Brief in
this case at bar, filed on October 7, 1986, a "Manifestation For
Acquittal" (in lieu of the People's Brief). Rollo, 293).
The new Solicitor General's Office after adopting the statement of facts
recited in the consolidated comment of the former Solicitor General's
Office moved for the acquittal of the petitioner, upon acknowledging
and concluding that:
xxx xxx xxx
Petitioner has divested his interest with Trigen
Petitioner sought to establish that before he assumed office as mayor on
March 3, 1980, he had already sold his shares with Trigen to his sister
Mrs. Rosene Trieste-Tuason. The sale was made by corresponding
indorsements to her stock certificate which was duly recorded in the
stock and transfer book of the corporation.
Respondent Sandiganbayan however doubts the sale because the same
was not reported to the SEC. SEC records, as the prosecution evidence
show, do not reflect the sale and petitioner still appears as the firm's
President.
The prosecution's evidence to establish non-divestment of petitioner's
interest with Trigen is weak. Anyway, Trigen has not updated its reports
to the SEC since 1976. It have not even submitted its financial annual
report ever since. Absence of the sales report in the SEC does not mean
that the sale did not take place. Reporting the sale is not a mandatory
requirement.
Sales of stocks need not be reported to SEC
In any event, the law only requires submission of annual financial
reports, not sales or disposal of stocks (Section 141, Corporation Code
of the Philippines).
Upholding the evidence of petitioner's divestment of his interest with
Trigen would necessarily allow him to act freely in his official capacity
in the municipality's dealings or transactions with Trigen. That in itself
is sufficient to acquit him of the crimes charged. (Rollo, pp. 299-300).
In the matter of the alleged intervention of petitioner, the Office of the
Solicitor General itself subscribes to and on its own volition place on
record the following observations:
Prosecution failed to prove charges; evidence discloses absence of
bidding and award
The prosecution's lone witness, Treasurer Aniceto Vega, testified that
there never was a public bidding conducted because all the transactions
were made by direct purchases from Trigen.
Q. In other words, in all these transactions there never really was any
public bidding?
A. Yes, Sir. There was no public bidding.
Q. And these purchases were made by direct purchases from the
establishment of Trigen?
A. Yes, Sir. (pp. 36-37, Tsn., Oct. 26, 1983)
In the absence of a public bidding and as emphatically declared by the
prosecution's sole witness Vega that all the transactions were on direct
45
purchases from Trigen, how can one ever imagine that petitioner has
awarded the supply and delivery of construction materials to Trigen as
specifically charged in the twelve (12) informations? The charges are of
course baseless and even contradict the evidence of the prosecution
itself.
Even the respondent Court finally found that petitioner did not intervene
during the bidding and award, which of course is a false assumption
because of Vega's testimony that there was no public bidding at all.
Respondent Court said:
. . . . In short, accused's intervention may not be present during the
bidding and award, but his liability may also come in when he took part
in said transactions such as signing the vouchers under certifications 1, 2
and 3 thereof, to make it appear that the transactions were regular and
proper. (Resolution dated March 11, 1985 denying petitioner's motion
for reconsideration/new trial, page 7).
No evidence to prove petitioner approved payment
Now, did petitioner intervene by approving payments to Trigen as also
charged in the information? Can there be intervention after payment.
Vega testified that petitioner signed the twelve (12) municipal vouchers
(Exhibits A to L) for the purchase and payment of construction
materials. It was sometime after delivery of the construction materials
that he (Vega) signed and paid the twelve (12) -municipal vouchers
(pages 5 to 7), decision of respondent Sandiganbayan dated November
2, 1984). The prosecution has not presented evidence to show as to
when petitioner signed the twelve (12) municipal vouchers. But it can
safely be assumed as a matter of procedure that petitioner had signed the
voucher after Treasurer Vega signed and paid them., (Rello, pp. 301-
303)
xxx xxx xxx
Testimonial and documentary evidence confirms that petitioner signed
vouchers after payment
Additional facts which respondent Court failed to consider and which
could have altered the outcome of the case in the following
uncontroverted testimony of Josue Maravilla:
Q. When these municipal vouchers were prepared by the municipal
treasurer, as you said, and then presented to Mayor Trieste for his
signature, were the purchases in question already paid?
A. They had already been paid for, sir.
Q. Previously, prior to the signature of Mayor Trieste?
A. Yes, sir.
A.J. ESCAREAL:
Q. Under what authority were they paid?
A. Under official receipt issued by Trigen.
Q. Who authorized the payment?
A. The municipal treasurer who paid the materials.
ATTY. CONSULTA:
Q. You said they had already been paid for. Do you know of any receipts
issued by Trigen to indicate that at the time these municipal vouchers
were signed by Mayor Trieste, the materials had already been delivered
and paid by the municipality to Trigen?
xxx xxx xxx
46
A. Yes, sir
Q. Now, what exhibits particularly do you know were issued
by Trigen to indicate that payments were made prior to the signing of
the municipal vouchers by Mayor Trieste?
A. Exhibits A, G, B, F, C, D, Exhibit I and Exhibit H.
xxx xxx xxx
Q. Now, Mr. Maravilla, aside from these prosecution's exhibits which
are Trigen receipts showing payments long before the municipal
vouchers were prepared, what can you say about the other municipal
vouchers in this case in reference to payments made by Trigen to the
municipality?
ESCAREAL:
Payment made by Trigen?
ATTY. CONSULTA:
I am sorry, Your Honor, made to Trigen by the municipality?
A. Official receipts issued by Trigen also indicate that when municipal
vouchers marked Exhibits E, B, C, D, F, G, H, I were prepared, they had
already been delivered and the amounts indicated therein were already
prepared by the municipal treasurer.
Q. Did you say already made by the municipal treasurer-the amounts
were already paid by the municipal treasurer?
A. Already paid.
Q. Who disbursed the funds evidenced by the Trigen official receipts?
A. The municipal treasurer, then Mr. Vega.
Q. Now, do you know why Mr. Vega asked that those municipal
vouchers be nevertheless signed in spite of the fact that he knew that the
amounts had already been disbursed and paid by him to Trigen?
A. He said that the municipal vouchers for record purposes is necessary
to be signed by the mayor. (Tsn., Mar. 5, 1984, pp. 19-49).
Inasmuch as Treasurer Vega signed and paid the vouchers after the
materials were delivered, petitioner's signature on the vouchers after
payment is not, we submit the kind of intervention contemplated under
Section 3(h) of the Anti-Graft Law.
xxx xxx xxx
What is contemplated in Section 3(h) of the anti-graft law is the actual
intervention in the transaction in which one has financial or pecuniary
interest in order that liability may attach. (Opinion No. 306, Series 1961
and Opinion No. 94, Series 1972 of the Secretary of Justice). The
official need not dispose his shares in the corporation as long as he does
not do anything for the firm in its contract with the office. For the law
aims to prevent the don-tenant use of influence, authority and power
(Deliberation on Senate Bill 293, May 6, 1959, Congressional Record,
Vol. 11, page 603).
There is absolutely no evidence that petitioner had, in his capacity as
Mayor, used his influence, power, and authority in having the
transactions given to Trigen. He didn't ask anyone-neither Treasurer
Vega nor Secretary Maravilla for that matter, to get the construction
materials from Trigen.
Trigen did not gain any undue advantage in the transaction
Petitioner should not be faulted for Trigen's transaction with the
municipality, which by the way, has been dealing with it even before
47
petitioner had assumed the mayorship on March 3, 1980. Personal
canvasses conducted found that Trigen's offer was the lowest, most
reasonable, and advantageous to the municipality. . . . (Rollo, pp. 307-
308; Emphasis supplied).

It is also an acknowledged fact that there was no complaint for non-

delivery, underdelivery or overpricing regarding any of the transactions.

Considering the correct facts now brought to the attention of this Court
by the Solicitor General and in view of the reassessment made by that
Office of the issues and the evidence and the law involved, the Court
takes a similar view that the affirmance of the decision appealed from
cannot be rightfully sustained. The conscientious study and thorough
analysis made by the Office of the Solicitor General in this case truly
reflects its consciousness of its role as the People's Advocate in the
administration of justice to the end that the innocent be equally
defended and set free just as it has the task of having the guilty
punished. This Court will do no less and, therefore, accepts the
submitted recommendation that the decision and resolution in question
of the respondent Sandiganbayan be reversed and that as a matter of
justice, the herein petitioner be entitled to a judgment of acquittal.

WHEREFORE, the decision rendered by the Sandiganbayan, dated

November 2, 1984, in Criminal Cases Nos. 6856 to 6867, finding the
herein petitioner, Generoso Trieste, Sr. guilty of the violations of Section
3 paragraph (h) of Republic Act 3019, as amended, is hereby set aside
and reversing the appealed judgment, a new judgment is now rendered
ACQUITTING Generoso Trieste, Sr., of said offenses charged against
him with costs de oficio.

SO ORDERED.

48
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. Nos. L-51065-72 June 30, 1987
ARTURO A. MEJORADA, petitioner,
vs.
THE HONORABLE SANDIGANBAYAN and THE PEOPLE OF
THE PHILIPPINES, respondents.
CORTES, J.:
This petition for certiorari seeks to reverse the May 23, 1979 decision of
the Sandiganbayan finding the accused Arturo A. Mejorada in Criminal
Cases Nos. 002-009 guilty beyond reasonable doubt of violating Section
3(E) of Republic Act No. 3019, otherwise known as the Anti-Graft and
Corrupt Practices Act.
Eight informations were filed by the Provincial Fiscal against the
petitioner and jointly tried before the Sandiganbayan. The eight
informations substantially allege the same set of circumstances
constituting the offense charged, Criminal Case No. 002 reads as
follows:
That in (sic) or about and during the period comprised from October
1977 to February 1978, in the municipality of Pasig, Metro Manila,
Philippines and within the jurisdiction of this Honorable Court, the
above-named accused, being employed in the Office of the Highway
District Engineer, Pasig, Metro Manila, as Right-of-Way-Agent
conspiring and confederating together with two (2) other John Does
whose true Identities and present whereabouts are still unknown, with
evident bad faith, and for personal gain, did then and there wilfully,
unlawfully and feloniously, directly intervene, work for, and facilitate
the approval of one Isagani de Leon's claim for the payment in the
removal and reconstruction of his house and a part of his land
expropriated by the government having been affected by the proposed
Pasig-Sta Cruz-Calamba Road. 2nd IBRD Project at Binangonan, Rizal,
while the accused, Arturo A. Mejorada is in the discharge of his official
and/or administrative functions and after said claim was approved and
the corresponding PNB Check No. SN 5625748 was issued and
encashed in the amount of P7,200.00 given only P1,000.00 to claimant
(Isagani de Leon), appropriating, applying and converting to themselves
the amount of P6,200.00, thereby causing damage and prejudice to
Isagani de Leon and the government in the aforementioned amount of
P6,200.00.
Contrary to law.
Except for the date of the commission of the offense, the name of the
aggrieved private party, the PNB Check number, the amount involved
and the number or John Does, the seven other informations are verbatim
repetitions of the above.
The facts are found by the respondent Sandiganbayan are as follows:
Arturo A. Mejorada was a public officer who was first employed as a
temporary skilled laborer in the Bureau of Public Works on March 16,
1947, and then as right-of-way agent in the Office of the Highway
District Engineer, Pasig, Metro Manila, from February, 1974 up to
December 31, 1978. As a right-of-way agent, his main duty was to
negotiate with property owners affected by highway constructions or
improvements for the purpose of compensating them for the damages
incurred by said owners.
Among those whose lots and improvements were affected by the
widening of the proposed Pasig-Sta. Cruz-Calamba Road. 2nd IBRD
Project, at Binangonan, Rizal were Isagani de Leon, Isaac Carlos,
49
Napoleon Maybituin, Dominga Villaroza, Florentino de la Cruz,
Cipriano Aran, Celestina S. Mallari and Rodolfo Rivera, all residents of
Mambog, Binangonan, Rizal.
Sometime in October or November 1977, petitioner contacted the
aforenamed persons and informed them that he could work out their
claims for payment of the values of their lots and/or improvements
affected by the widening of said highway. In the process, Mejorada
required the claimants to sign blank copies of the "Sworn Statement on
the Correct and Fair Market Value of Real Properties" and "Agreement
to Demolish, Remove and Reconstruct improvements" pertinent to their
claims. The claimants complied without bothering to find out what the
documents were all about as they were only interested in the payment of
damages.
In said "Sworn Statements" and "Agreements to Demolish", the value of
the respective properties of the claimants were made to appear very
much higher than the actual value claimed by them. Likewise, the said
"Agreements to Demolish" reflected the value of the improvements as
per assessor" which on the average was only P2,000.00 lower than the
value declared by the owners in their sworn statements. The value as per
assessor was, in turn, supported by the Declarations of Real Property in
the names of the claimants containing an assessed value exactly the
same as that stated in the Agreements to Demolish "as per assessor",
except the claims of De la Cruz and Aran where there is only a
difference of P400.00 and P200.00, respectively. It turned out, however,
that said Declarations of Property are not really intended for the
claimants as they were registered in the names of other persons, thus
showing that they were all falsified.
A few months after processing the claims, accused accompanied the
claimants to the Office of the Highway District Engineer at the
provincial capitol of Pasig, Metro Manila, to receive payments and
personally assisted the claimants in signing the vouchers and encashing
the checks by certifying as to their Identities and guaranteeing payment.
Right after the claimants had received the proceeds of their checks,
accused accompanied them to his car which was parked nearby where
they were divested of the amounts paid to them leaving only the sum of
P1,000.00 to each, except Isaac Carlos to whom P5,000.00 was left,
explaining to them that there were many who would share in said
amounts. All the claimants were helpless to complaint because they
were afraid of the accused and his armed companion.
The claimants, through the assistance of counsel, filed their complaints
with the Provincial Fiscal's Office of Pasig, Metro Manila, narrating in
their supporting sworn statements what they later testified to in court.
Five issues are raised in this petition to review the decision of the
Sandiganbayan:
I. Whether or not the essential elements constituting the offense
penalized by section 3(e) of Republic Act No. 3019, otherwise known as
the Anti-Graft and Corrupt Practices Act have been clearly and
convincingly proven by the prosecution;
II. Whether or not the Sandiganbayan is a court of competent
jurisdiction duly constituted in accordance with Pres. Dec. No. 1606;
III. Whether or not the penalty imposed upon the petitioner is excessive
and contrary to the three-fold rule as provided for by Article 70 of the
Revised Penal Code;
IV. Whether or not there is a variance between the offense charged in the
information and the offense proved;
V. Whether or not the conclusion drawn from the record of the
Sandiganbayan in arriving at a verdict of conviction of petitioner is
correct is a question of law which this Honorable Court is authorized to
pass upon.
I. Petitioner contends that the eight informations filed against him
50
before the Sandiganbayan are fatally defective in that it failed to allege
the essential ingredients or elements constituting the offense penalized
by Section 3(e) of Rep. Act No. 3019.
The section under which the accused-petitioner was charged provides:
Sec. 3. Corrupt practices of public officers. In addition to acts or
omissions of public officers already penalized by existing law, the
following shall constitute corrupt practices of any public officer and are
hereby declared to be unlawful.
xxx xxx xxx
(e) Causing any undue injury to any party, including the Government, or
giving any private party any unwarranted benefits, advantage or
preference in the discharge of his official administrative or judicial
functions through manifest partiality, evident bad faith or gross
inexcusable negligence. This provision shall apply to officers and
employees of offices or government corporations charged with the grant
of licenses or permits or other concessions.
Petitioner enumerated three elements which, in his opinion, constitute a
violation of Section 3(e).
First, that the accused must be a public officer charged with the duty of
granting licenses or permits or other concessions. Petitioner contends
that inasmuch as he is not charged with the duty of granting licenses,
permits or other concessions, then he is not the officer contemplated by
Section 3 (e).
Section 3 cited above enumerates in eleven subsections the corrupt
practices of any public officers declared unlawful. Its reference to "any
public officer" is without distinction or qualification and it specifies the
acts declared unlawful. We agree with the view adopted by the Solicitor
General that the last sentence of paragraph (e) is intended to make clear
the inclusion of officers and employees of officers or government
corporations which, under the ordinary concept of "public officers" may
not come within the term. It is a strained construction of the provision to
read it as applying exclusively to public officers charged with the duty
of granting licenses or permits or other concessions.
The first element, therefore, of Section 3 (e) is that the accused must be
a public officer. This, the informations did not fail to allege.
Second, that such public officer caused undue injury to any party,
including the Government, or gave any private party unwarranted
benefits, advantage or preference in the discharge of his official
administrative or judicial functions.
Petitioner denies that there was injury or damage caused the
Government because the payments were allegedly made on the basis of
a document solely made by the Highway District Engineer to which
petitioner had no hand in preparing. The fact, however, is that the
government suffered undue injury as a result of the petitioner's having
inflated the true claims of complainants which became the basis of the
report submitted by the Highway District Engineer to the Regional
Director of the Department of Highways and which eventually became
the basis of payment. His contention that he had no participation is
belied by the fact that as a right-of-way-agent, his duty was precisely to
negotiate with property owners who are affected by highway
constructions for the purpose of compensating them.
On the part of the complainants, the injury caused to them consists in
their being divested of a large proportion of their claims and receiving
payment in an amount even lower than the actual damage they incurred.
They were deprived of the just compensation to which they are entitled.
Third, the injury to any party, or giving any private party any
unwarranted benefits, advantage or preference was done through
manifest, partiality, evident bad faith or gross inexcusable negligence.
Petitioner argues that for the third element to be present, the alleged
51
injury or damage to the complainants and the government must have
been caused by the public officer in the discharge of his official,
administrative or judicial functions and inasmuch as when the damage
was caused to the complainants, he was no longer discharging his
official administrative functions, therefore, he is not liable for the
offense charged.
The argument is devoid of merit. The Sandiganbayan established the
fact that the petitioner took advantage of his position as a right-of-way-
agent by making the claimants sign the aforementioned agreements to
demolish and sworn statements which contained falsified declarations of
the value of the improvements and lots. There was evident bad faith on
the part of the petitioner when he inflated the values of the true claims
and when he divested the claimants of a large share of the amounts due
them.
In view of the above holding. We also dispose of the fourth issue which
relates to the allegation that petitioner cannot be convicted for a
violation of the Anti-Graft Law because the evidence adduced by the
prosecution is not the violation of Section 3 (e) but the crime of robbery.
Contrary to the petitioner averment. We find no variance between the
offense charged in the information and the offense proved. The
prosecution was able to establish through the corroborating testimonies
of the witnesses presented how through evident bad faith, petitioner
caused damage to the claimants and the Government. The manner by
which the petitioner divested the private parties of the compensation
they received was part of' the scheme which commenced when the
petitioner approached the claimants and informed them that he could
work out their claims for payment of the values of their lots and/or
improvements affected by the widening of the Pasig-Sta. Cruz-Calamba
Road. The evidence presented by the prosecution clearly establish a
violation of Section 3(e).
II. The petitioner also assails the competency of the Sandiganbayan to
hear and decide this case. He argues that before the Sandiganbayan
could legally function as a judicial body, at least two (2) divisions, or
majority of the justices shall have been duly constituted and appointed.
We previously ruled on this matter in the case of De Guzman v. People
(G.R. No. 54288, December 15, 1982, 119 SCRA 337). In that case, the
petitioner De Guzman questioned the authority of the Sandiganbayan to
hear and decide his case on the same ground that herein petitioner
assails its jurisdiction. The Court upheld the authority of the
Sandiganbayan saying that:
Although the Sandiganbayan is composed of a Presiding Justice, and
eight Associate Justices, it does not mean that it cannot validly function
without all of the Divisions constituted. Section 3 of P.D. 1606 provides
that the "Sandiganbayan shall sit in three divisions of three justices
each" while Section 5 thereof provides that the unanimous vote of three
justices of a division shall be necessary for the pronouncement of a
judgment.
Thus the Sandiganbayan functions in Divisions of three Justices each
and each Division functions independently of the other. As long as a
division has been duly constituted it is a judicial body whose
pronouncements are binding as judgments of the Sandiganbayan.
The judgment convicting petitioner was a unanimous Decision of the
First Division duly constituted. It thus met the requirement for the
pronouncement of a judgment as required by Section 5 of P.D. 1606
supra.
III. The third issue raised by the petitioner concerns the penalty imposed
by the Sandiganbayan which totals fifty-six (56) years and eight (8)
days of imprisonment. Petitioner impugns this as contrary to the three-
fold rule and insists that the duration of the aggregate penalties should
not exceed forty (40) years.
Petitioner is mistaken in his application of the three-fold rule as set forth
in Article 70 of the Revised Penal Code. This article is to be taken into
account not in the imposition of the penalty but in connection with the
52
service of the sentence imposed (People v. Escares, 102 Phil. 677
[1957]). Article 70 speaks of "service" of sentence, "duration" of penalty
and penalty "to be inflicted". Nowhere in the article is anything
mentioned about the "imposition of penalty". It merely provides that the
prisoner cannot be made to serve more than three times the most severe
of these penalties the maximum of which is forty years.

The Sandiganbayan, therefore, did not commit any error in imposing

eight penalties for the eight informations filed against the accused-
petitioner. As We pointed out in the case of People v. Peralta, (No. L-
19069, October 29, 1968, 25 SCRA 759, 783-784):

... Even without the authority provided by Article 70, courts can still
impose as many penalties as there are separate and distinct offenses
committed, since for every individual crime committed, a corresponding
penalty is prescribed by law. Each single crime is an outrage against the
State for which the latter, thru the courts of justice, has the power to
impose the appropriate penal sanctions.

In the light of the above reasons, petitioner cannot assail the penalty
imposed upon him as harsh, cruel and unusual (See Veniegas v. People,
G.R. No. 57601-06 July 20, 1982, 115 SCRA 790, 792).

We deem it unnecessary to pass upon the fifth issue raised in view of the
foregoing discussion.

WHEREFORE, the petition is denied for lack of merit.

SO ORDERED.

Teehankee, C.J., Yap, Fernan, Narvasa, Melencio-Herrera, Gutierrez, Jr.,

Cruz, Paras, Feliciano, Gancayco, Padilla, Bidin and Sarmiento, JJ.,
concur.

53
Republic of the Philippines
SUPREME COURT
Manila
THIRD DIVISION
G.R. No. 206357 November 12, 2014
PRESIDENTIAL COMMISISON ON GOOD GOVERNMENT
(PCGG), Petitioner,
vs.
THE HONORABLE OMBUDSMAN Conchita CarpioMorales,
GREGORIO S. LICAROS, GAUDENCIO BEDUYA, JOSE R.
TENGCO, JR., JOSE S. ESTEVES, PLACIDO T. MAP A, JR.,
JULIO V. MACUJA, VICENTE PATERNO, RAFAEL A. SISON,
ROBERTO V. ONGPIN, ALICIA LL. REYES, Former Members of
the Board of Governors of the Development Bank of the Philippines
(DBP), RODOLFO M. CUENCA, EDILBERTO M. CUENCA,
JOSE Y. VILLONGCO, RODOLFO B. SANTIAGO, AURELIO Y.
BAUTISTA, GENOVEVA L. BUENO, BIENVENIDO D. CRUZ,
ROMEO R. ECHAUZ, JORGE W. JOSE, LEONILO M.
OCAMPO, ANTONIO P. SAN JUAN, JR., CLARENCIO S.
YUJIOCO, All Officers of Resorts Hotels Corporation,
Respondents.
DECISION
VELASCO, JR., J.:
The Case
This is a Petition for Certiorari under Rule 65 of the Rules of Court
seeking the annulment and setting aside of the Orders dated July 19,
2011 and March 8, 2012, rendered by the Office of the Ombudsman in
OMB-CC-03-0008-A, entitled "Presidential Commission on Good
Government (PCGG) v. Rodolfo Cuenca, et al."
The Facts
On October 18, 1992, then President Fidel V. Ramos issued
Administrative Order No. 13 creating a Presidential Ad-Hoc Fact-
Finding Committee on Behest Loans (Ad Hoc Committee). A few
months later, President Ramos issued Memorandum Order No. 61
prescribing certain criteria to be used by the Ad Hoc Committee as a
guide ininvestigating and studying loans granted by government
financing institutions that amount to behest loans.
One of the loan accounts referred to the Ad Hoc Committee for
investigation was that of Resorts Hotel Corporation (RHC).
Incorporated in 1968 with a paid-up capital of P1.0 million, RHC was
37.2% owned by Rodolfo Cuenca, a known Marcos business associate.
In 1969, RHC obtained a total of 9.7 million from DBP, allegedly to pay
the balance of the purchase price of Baguio Pines Hotel and to construct
an 8-storey building. In 1973, the loan was restructured and DBP
granted a direct loan of P14.4 million and guaranteed another P11.2
million. In 1974, an additional loan of P8.9 million was granted to RHC
for the expansion of its hotel project, and P3.6 million for the cost of 10
luxury buses. In 1975, an additional loan of P27.8 million was again
granted to RHC for another expansion project, and in 1977, it again
obtained P11.3 million to refinance its unpaid obligations and partly to
finance Taal Vista.
To secure the loans totaling P86.9 million, RHC offered as collaterals
the assets that were acquired by these loans which included the Baguio
Pines Hotel, Taal Vista Lodge, Hotel Mindanao and the luxury buses.
In 1980, 40% of the amount wereconverted into DBP’s common
shareholding in RHC, and the balance of P58.4 million was restructured.
The properties were foreclosed in 1983 with arrearages of P11.97
million.
54
On the basis of the foregoing,the Ad Hoc Committee found that DBP’s
total exposure as of 1986 amounted to P99.1 million.1
Based on the above, the Ad Hoc Committee, on January 4, 1993,
submitted a report to the President where it concluded thatthe RHC
account qualifies as behest in character anchored on the following
grounds:
a) The loans are under collateralized;
b) The borrower corporation is undercapitalized, for its paid-up capital
amounted only to P10.3 million upon the approval of the loans which
totaled to P99,133,765.14 in 1986;
c) Stockholders and officers of the borrower corporation are identified
as Marcos cronies; and
d) As revealed by the marginal notes based on Hawaii documents on file
with PCGG, it was found out that thenPresident Marcos owned 20% of
the shares of stocks in RHC.
Agreeing that the said loans bear the characteristics of a behest loan on
the basis of the said Committee Report, the Republic of the Philippines,
represented by the PCGG, filed an Affidavit-Complaint on January 6,
2003 with the Office of the Ombudsman, against respondent directors
and officers of RHC and the directors of DBP for violation of Sections
3(e) and 3 (g) of Republic Act (RA) No. 3019 or the Anti-Graft and
Corrupt Practices Act.2
Later, or on June 4, 2004, petitioner filed a Supplemental
ComplaintAffidavit.3
In the questioned July 19, 2011 Order, the Ombudsman dismissed
petitioner’s Affidavit-Complaint for lack of jurisdiction. The falloof the
Order reads:
PREMISES CONSIDERED, this complaint is DISMISSEDfor lack of
jurisdiction inasmuch as onlyPrivate (sic) parties are charged due to the
refusal of theDevelopment (sic) Bank of the Philippines to furnish the
[p]ertinent documents that will identify the public respondentsInvolved
(sic).
Petitioner moved for reconsideration,arguing, among others, that the
Ombudsman erred in dismissing its Affidavit-Complaint since its
Supplemental Complaint-Affidavit enumerates the directors of DBP
who conspired with herein private respondents in granting the behest
loans subject of the case.
Acting on the motion, the Ombudsman,on March 8, 2012, issued the
second assailed Order dismissing the complaint on the ground of
prescription, effectively denying the motion for reconsideration.
In the said Order, the Ombudsman stated that:
In as much as the record indicates that the instant complaint was filed
with this office only on 6 January 2003, or more than ten (10) years
from the time the crimes were discovered on 4 January 1993, the
offenses charged herein had already prescribed. This office, therefore
has no other recourse but to DISMISS the instant complaint.
In light of the foregoing discussion, this Office sees no need to dispose
of the other issues complainant raised in its Motion for Reconsideration.
WHEREFORE, on account of prescription of the offenses charged, the
criminal complaint for violation of Section 3 (e) and (g) of (sic) R.A.
3019 against respondents is hereby DISMISSED. SO ORDERED.
Aggrieved, petitioner seeks recoursefrom this Court, arguing that
contrary to the decision of the Ombudsman, the offense has not yet
prescribed. Petitioner insists that the prescriptive period should only
commence to run on January 6, 2003 when it filed the Affidavit-
Complaint with the Office of the Ombudsman, and not on January 4,
55
1993 when the crimes were discovered. This argument,according to
petitioner, is based on Section 2 of Act No. 33264 which states that
"[p]rescription shall begin to run from the day of the commission of the
violation of the law, and if the same be not known at the time, from the
discovery thereof and the institution of judicial proceedings for its
investigation and punishment." Moreover, Section 11 of RA 3019 sets
the prescription of offenses under said law at fifteen (15) years,5 not ten
(10) as held by the Ombudsman.
The Issue
Based on the above backdrop, the issue submitted for this Court’s
resolution is whether or not respondent Ombudsman committed grave
abuse of discretion in dismissing the Affidavit-Complaint dated January
6, 2003 on the ground of prescription.
Our Ruling
The petition is without merit. RA 3019, Section 11 provides that all
offenses punishable under said law shall prescribe in ten (10) years.This
period was later increased to fifteen (15) years with the passage ofBatas
Pambansa (BP) Blg. 195, which took effect on March 16, 1982. This
does not mean, however, that the longer prescriptive period shall apply
to all violations of RA 3019. Following Our pronouncements in People
v. Pacificador,6 the rule is that "in the interpretation of the law on
prescription of crimes, that which is more favorable to the accused is
tobe adopted." As such, the longer prescriptive period of 15 years
pursuant to BP Blg. 195 cannot be applied to crimes committed prior to
the effectivityof the said amending law on March 16, 1982. Considering
that the crimes werecommitted in 1969, 1970, 1973, 1975, and 1977, the
applicable prescriptive period thereon is the ten-year period set in RA
3019, the law in force at that time. What is, then, left for Our
determination is the reckoning point for the 10-year period.
Notably, RA 3019 is silent as to when the period of prescription shall
begin to run. This void, however, is remedied by Act No. 3326,7 Section
2 of which provides in part:
Sec. 2. Prescription shall begin to run from the day of the commission of
the violation of the law, and if the same be not known at the time, from
the discovery thereof and the institution of judicial proceeding for its
investigation and punishment. xxx.
Based on the above, there are two reckoning points for the counting of
the prescription of an offense: 1) the day of the commission of the
violation of the law; and 2) if the day whenthe violation was committed
be not known, then it shall begin to run from the discovery of said
violation and the institution of judicial proceedingsfor investigation and
punishment.
The first mode being self-explanatory, We proceed with Our
construction of the second mode.
In interpreting the meaning of the phrase "if the same be not known at
the time, from the discovery thereof and the institution of judicial
proceeding for its investigation," this Court has, as early as 1992 in
People v. Duque,8 held that in cases where the illegality of the activity
is not known to the complainant at the time of its commission, Act No.
3326, Section 2 requires that prescription, in such a case, would begin to
run only from the discovery thereof, i.e. discovery of the unlawful
nature of the constitutive act or acts.9
It is also in Duque10 where this Court espoused the raison d’être for the
second mode. We said, "[i]n the nature of things, acts made criminal by
special laws are frequently not immoral or obviously criminal in
themselves; for this reason, the applicable statute requires that if the
violation of the special law is not known at the time, the prescription
begins to run only from the discovery thereof, i.e., discovery of the
unlawful nature of the constitutive act or acts."11 Further clarifying the
meaning ofthe second mode, the Court, in Duque,12 held that Section 2
should be readas "[p]rescription shall begin to run from the day of the
commission of the violation of the law, and if the same be not known at
56
the time,from the discovery thereof and untilthe institution of judicial
proceedings for its investigation and punishment."13 Explaining the
reason therefor, this Court held that a contrary interpretation would
create the absurd situation where "the prescription period would both
begin and be interrupted by the same occurrence; the net effect would be
that the prescription period would not have effectively begun, having
been rendered academic by the simultaneous interruption of that same
period."14 Additionally, this interpretation is consistent with the second
paragraph of the same provision which states that "prescription shall be
interrupted when proceedings are instituted against the guilty person,
[and shall] begin to run again if the proceedings are dismissed for
reasons not constituting jeopardy." Applying the same principle, We
have consistently held in a number of cases, some of which likewise
involvebehest loans contracted during the Marcos regime, that the
prescriptive period for the crimes therein involved generally commences
from the discovery thereof, and not on the date of its actual commission.
In the 199915 and 201116 cases of Presidential Ad Hoc Fact-Finding
Committee on Behest Loans v. Desierto, the Court, in said separate
instances, reversed the ruling of the Ombudsman that the prescriptive
period therein began to run at the time the behest loans were transacted
and instead, it should be counted from the dateof the discovery thereof.
In the 1999 case, We recognized the impossibility for the State, the
aggrieved party, to haveknown the violation of RA 3019 at the time the
questioned transactions were made inview of the fact that the public
officials concerned connived or conspired with the "beneficiaries of the
loans." There, We agreedwith the contention of the Presidential Ad Hoc
Fact-Finding Committee that the prescriptive period should be
computed from the discovery of the commission thereof and not from
the day of such commission. It was also in the same case where We
clarified that the phrase "if the same be not known" in Section 2 of Act
No. 3326 does not mean "lack of knowledge" but that the crime "is not
reasonably knowable" is unacceptable. Furthermore, in this1999 case,
We intimated that the determination of the date ofthe discovery of the
offense is a question of fact which necessitates the reception of evidence
for its determination.
Similarly, in the 2011 Desiertocase, We ruled that the "blameless
ignorance" doctrine applies considering that the plaintiff therein had no
reasonable means of knowing the existence of a cause of action.17 In
this particular instance, We pinned the running of the prescriptive period
to the completion by the Presidential Ad Hoc Fact-Finding Committee
of an exhaustive investigation on the loans. We elucidated that the first
mode under Section 2 of Act No. 3326 would not apply since during the
Marcos regime, no person would have dared to question the legality of
these transactions.18
Prior to the 2011 Desierto case came Our 2006 Resolution19 in
Romualdez v. Marcelo,20 which involved a violation of Section 7 of RA
3019. In resolving the issue of whether or not the offenses charged in
the said cases have already prescribed, We applied the same principle
enunciated in Duque21 and ruled that the prescriptive period for the
offenses therein committed began to run from the discovery thereof on
the day former Solicitor General Francisco I. Chavez filed the complaint
with the PCGG.
This was reiterated in Disini v. Sandiganbayan22 where We counted the
running of the prescriptive period insaid case from the date of discovery
of the violation after the PCGG’s exhaustive investigation despite the
highly publicized and well-known nature of the Philippine Nuclear
Power Plant Project therein involved, recognizing the fact that the
discovery of the crime necessitated the prior exhaustive investigation
and completion thereof by the PCGG.
In Republic v. Cojuangco, Jr.,23 however, We held that not all violations
of RA 3019 require the application of the second mode for computing
the prescription of the offense.1avvphi1 There, this Court held that the
second element for the second mode to apply, i.e. that the action could
not have been instituted during the prescriptive period because of
martial law, is absent. This is so since information about the questioned
investment therein was not suppressed from the discerning eye of the
57
public nor has the Office of the Solicitor General made any allegation to
that effect. This Court likewise faulted therein petitioner for having
remained dormant during the remainder of the period of prescription
despite knowing ofthe investment for a sufficiently long period of time.
An evaluation of the foregoing jurisprudence24 on the matter reveals the
following guidelines in the determination of the reckoning point for the
period of prescription of violations of RA 3019, viz:
1. As a general rule, prescription begins to run from the date of the
commission of the offense.
RHC’s loans. This being the case, the filing by the PCGG of its
Affidavit-Complaint before the Office of the Ombudsman on January
6,2003, a little over ten (10) years from the date of discovery of the
crimes, is clearly belated. Undoubtedly, the ten-year period within
which to institute the action has already lapsed, making it proper for the
Ombudsman to dismiss petitioner’s complaint on the ground of
prescription.
Simply put, and as correctly held by the Ombudsman, prescription has
already set in when petitioner PCGG filed the Affidavit-Complaint on
January 6, 2003.

2. If the date of the commission of the violation is not known, it shall be WHEREFORE, the instant petition is hereby DISMISSED. The Orders
counted form the dateof discovery thereof.1âwphi1 dated July 19, 2011 and March 8, 2012 rendered by the Office of the
Ombudsman in OMB-C-C-03-0008-A, entitled Presidential
3. In determining whether it is the general rule or the exception that Commission on Good Government (PCGG) v. Rodolfo Cuenca, et al.,
should apply in a particular case, the availability or suppression of the a:e hereby AFFIRMED.
information relative to the crime should first be determined.
SO ORDERED.
If the necessary information, data, or records based on which the crime
could be discovered is readily available to the public, the general rule
applies. Prescription shall, therefore, run from the date of the
commission of the crime.

Otherwise, should martial law prevent the filing thereof or should

information about the violation be suppressed, possibly through
connivance, then the exception applies and the period of prescription
shall be reckoned from the date of discovery thereof.

In the case at bar, involving as it does the grant of behest loans which
We have recognized as a violation that, by their nature, could be
concealed from the public eye by the simple expedient of suppressing
their documentation,25 the second mode applies. We, therefore, count
the running of the prescriptive period from the dateof discovery thereof
on January 4, 1993, when the Presidential Ad Hoc Fact-Finding
Committee reported to the President its findings and conclusions anent

58
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 71581 March 21, 1990
CARMEN LABATAGOS, petitioner,
vs.
HON. SANDIGANBAYAN and PEOPLE OF THE PHILIPPINES,
respondents.
Guerrero, Carmelo, De Silva, Lagmay & Lazo Law Office and Pedro R.
Lazo for petitioner.
PADILLA, J.:
This is a petition for review on certiorari of the decision of the
Sandiganbayan (Third Division) * in Criminal Case No. 4799, finding
the petitioner guilty beyond reasonable doubt as principal of the crime
of malversation of public funds defined and penalized under Article 217,
par. 4 of the Revised Penal Code.
From January 1978 to December 1980, petitioner Carmen Labatagos
was the cashier and collecting officer of the Mindanao State University
MSU General Santos City. She filed a leave of absence for the months
of March, April and May 1978 and did not discharge her duties for the
said period.
On 1 October 1980, Francisco T. Rivera, under Commission on Audit
(COA) General Order No. 8022-117 (Exh. C) was designated leader of a
team to conduct the examination of the cash and accounts of the
petitioner. When the team conducted the examination, the petitioner did
not have any cash in her posssession, so she was asked to produce all
her records, books of collection, copies of official receipts and
remittance advices and her monthly reports of collections.
Based on the official receipts and the record of remittances for the
period from January to August 1978, the audit examination disclosed
that the petitioner collected the total amount of P113,205.58 (Exhs. A-1
and A-2) and made a total remittance to the Development Bank of the
Philippines (DBP), the depository bank of the university, in the amount
of P78,868.69, leaving an unremitted amount of P34,336.19.
On the basis of similar official receipts and record of remittances, the
audit examination further disclosed that for the period from January
1979 to June 6, 1980, the petitioner made a total collection of
P327,982.00 (Exhs. B, B-1, and B-1-a) and remitted to the DBP the total
amount of P256,606.25 (Exhs. B-2 and B-2-a) incurring a shortage of
P71,365.75.
The petitioner signed without exception both Reports of Examination
(Exhs. A and B) as well as their supporting summaries.
Thereafter, Francisco T. Rivera submitted his report on the examination
to the Chairman, Commission on Audit, through the Regional Director,
COA, Region IX (Exhs. A-4 and B-4).
Subsequently, Rivera prepared the letters of demand corresponding to
the two (2) audit reports (Exhs. A-3 and B-3) and served them
personally on the petitioner who signed both letters. Despite the demand
letters, the petitioner did not submit any explanation of her shortages.
Hence, on 27 October 1981, the Tanodbayan filed with the
Sandiganbayan an information charging petitioner with the crime of
Malversation of Public Funds, committed as follows:
That between the periods January 1978 to August 17, 1978, and January
1, 1979 to June 6, 1980, in General Santos City, Philippines, the said
59
accused a public officer being then the Cashier and Collecting Officer of
the Mindanao State University, General Santos Unit, General Santos
City, who, by reason of the duties of her office was charged with the
duty of collecting school dues and tuition fees of the students of said
school, and of remitting to, or depositing with, the school's depository
bank, the Development Bank of the Philippines, General Santos City
branch, all money collections by way of school dues and tuition fees she
collected as Cashier and Collecting Officer, was responsible and
accountable for the funds collected and received by her, by reason of her
position as Collecting Officer, did wilfully, unlawfully, feloniously and
fraudulently, and with grave abuse of confidence, misappropriate, and
embezzle the total sum of ONE HUNDRED FIVE THOUSAND
SEVEN HUNDRED ELEVEN AND 94/100 P105,711.94), Philippine
Currency, out of her collection of P441,187.58, during the aforesaid
period, which sum of P105,711.94 she appropriated and converted to her
own personal use and benefit, to the damage and prejudice of the
Republic of the Philippines in said amount. 1
During the trial, petitioner in her defense claimed that she signed the
audit reports on the understanding that her shortage would amount to
only P2,000.00; that she could not be held accountable for the
collections for March, April and May 1978 because she was on
maternity leave; and that several disbursements in the total amount of
P49,417.12 were not credited in her favor by the auditors. She claimed
further that she should not be held accountable for the alleged
misappropriations between the months of January 1978 and August
1978 in the amount of P34,336.19 because those who appropriated the
amounts were her superiors and that the amounts taken were properly
receipted but that the receipts were lost.
Respondent Sandiganbayan, however, did not give weight nor credence
to her defense. Hence, as previously stated, petitioner was found guilty
beyond reasonable doubt of the crime of malversation of public funds.
The petitioner then filed the instant petition, and alleged the following
reasons why the petition should be granted; (1) that respondent court
made manifestly mistaken inferences and misapprehended the
significance of the evidence which resulted in the erroneous decision
rendered in the case; and (2) that respondent court erred in finding the
petitioner guilty of the crime charged when there is ample evidence
submitted showing that she did not put the missing funds to her personal
use.
The petition is devoid of merit.
The only issue to be resolved in this case is whether or not the guilt of
the petitioner has been proved beyond reasonable doubt.
The established facts show that respondent court did not err in
convicting petitioner for the crime of malversation. As held by said
court:
There is no merit in the accused's defense. Her claim that she signed the
audit report and statement of collections and deposits prepared by the
audit team of Francisco Rivera on the understanding that her shortage
was only P2,000.00 is belied by the figures clearly reflected on the said
documents. Exhibit A, the audit report which she signed without
exception, shows that she incurred a shortage of P34,336.19 for the
period from January to August 1978; while Exhibit A-1, the statement of
her collections and deposits for the same period which she certified as
correct, indicates the same amount of P34,336.19 as her shortage.
Mrs. Ester Guanzon, the prosecution's rebuttal witness, confirmed that
she assisted the accused in the collection of fees; that the accused filed
application for maternity leave in March 1978 but continued reporting
for work during that month; that the accused did not report for work in
April 1978; and that she (Guanzon) was the one assigned to collect the
fees in her stead. Miss Guanzon, however, explained that she turned
over all her collections to the accused during all the times that she was
assisting her in collecting the fees; and that even in April 1978 when the
accused was physically absent from office, she also turned over her
collections to the accused ill the latters house with the duplicate copies
60
of the receipts she issued which the accused signed after satisfying them (Exhs. 12-A, 12-D, 12-E and 12-I) were not valid disbursements.
herself that the amounts I turned over tallied with the receipts. Granting that the amounts reflected in the chits were really secured by
the persons who signed them, the responsibility to account for them still
There is color of truth to Mrs. Guanzon's explanation. All the collections rests in the accused accountable officer. Malversation consists not only
for the months of March and April 1978 are fully accounted for they are ill misappropriation or converting public funds or property to one's
itemized in the reports of collection, (Exhs. F and G) and shown to have personal use but also by knowingly allowing others to make use of or
been duly remitted in the remittance advices for those months. (Exhs. F- misappropriate them. 2
1 to F-5; G-1 and G-2).
WHEREFORE, there being no reversible error in the questioned
The auditor was correct in refusing to credit the accused with the three decision of respondent court and the issues raised in this petition being
(3) different amounts mentioned in her letter of October 22, 1980. (Exh. essentially factual, the petition for review is DENIED and the appealed
5) The first sum, P7,140.20, purporting to be refunds of tuition fees to decision is AFFIRMED.
students granted tuition privilages is hot supported by any official
authorization for such refunds by the University authorities. Besides, the SO ORDERED.
supposed list of students who were recipients of the refunds (Exh. 10) is
incompetent evidence being a mere xerox copy uncertified as a true Fernan, C.J., Narvasa, Melencio-Herrera, Gutierrez, Jr., Cruz, Paras,
copy of an existing original. Feliciano, Gancayco, Bidin, Sarmiento, Cortes, Griño-Aquino,
Medialdea and Regalado, JJ., concur.
The second sum, P4,494.80 was purportedly spent for the cost of
uniforms of the school and basketball balls. P2,100.00 in all (Exhs. 6
and 6-A), and the balance taken by Alikhan Marohombsar and Auditor
Casan, (Exh. 6-B). The third amount, P6,702.12, was supposedly
covered by vouchers submitted to the Auditor's office through Rosa
Cabiguin. (Exh. 12-K) Again, the auditor did not err in not crediting the
aforesaid sums to the accused's accountability. The P2,100.00 cost of
uniforms and balls, unsupported by a duly accomplished and approved
voucher, was not a valid disbursement. And since the alleged vouchers
for P6,792.12 were not presented in evidence nor was any effort exerted
to compel their production in court by subpoena duces tecum, the same
was properly refused to be deduced from the incurred shortage of the
accused.

All the other sums allegedly taken from the accused by Director Osop,
Alikhan Marohombsar and Auditor Casan totalling P31,070.00. (Exhs.
12, 12-A, etc., 13-A and 14-A), supported as they are by mere pieces of
paper, despite the admission by Director Osop of having signed some of

61
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-59670 February 15, 1990
LEONARDO N. ESTEPA, petitioner,
vs.
SANDIGANBAYAN and THE PEOPLE OF THE PHILIPPINES,
respondents.
Braulio R.G. Tansinsin for petitioner.
FELICIANO, J.:
Petitioner Leonardo N. Estepa seeks to set aside the decision of the
Sandiganbayan in Case No. 3658 convicting him of the crime of
malversation of public funds through negligence and sentencing him 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.
Petitioner Leonardo N. Estepa was charged in an information which
read:
That on or about January 24, 1980, in the City of Manila, Metro Manila,
Philippines, and within the jurisdiction of this Court, said accused, being
then Senior Paymaster, Treasurer's Office, City Hall, Manila, and as
such is a public officer accountable for the funds received by him by
reason of his said position and charged with the duty of diligently
safeguarding or looking after the funds placed under his custody, did
then and there with great carelessness and unjustifiable negligence, fail
to exercise that duty without counting the money during the individual
distribution and segregation of said funds at the General Cashier's
Room, before assuming total physical control thereof thereby allowing
and permitting an unknown man to take, steal, misappropriate and
embezzle to his personal use and benefit the amount of FIFTY
THOUSAND (P50,000.00) PESOS, Philippine Currency, from the said
cashier's room, as in fact that unknown person did take, steal,
misappropriate, and embezzle the said amount to the damage and
prejudice of the government in the aforesaid sum.
CONTRARY TO LAW. 1
Upon arraignment, Estepa pleaded not guilty. After trial, the
Sandiganbayan rendered a decision convicting Estepa of the crime
charged, the dispositive portion of which read:
WHEREFORE, the Court finds Leonardo N. Estepa guilty beyond
reasonable doubt as principal of malversation, defined and penalized
under paragraph 4, Article 217 of the Revised Penal Code, and there
being no aggravating nor mitigating circumstance in the commission of
the offense, he is hereby sentenced to suffer 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; to pay a fine of Fifty Thousand (P50,000.00)
Pesos, without subsidiary imprisonment in case of insolvency; to suffer
the penalty of perpetual special disqualification, to indemnify the City
of Manila/National Government the amount of Fifty Thousand
(P50,000.00) Pesos and to pay the costs.
His motion for reconsideration having been denied, Estepa filed the
present Petition for Review. The Petition was given due course and the
parties required to file briefs. In his brief, 2 petitioner Estepa assigns the
following errors:
I. Respondent court gravely erred in convicting petitioner of the came of
malversation through negligence although the facts charged in the
62
information do not constitute an offense or crime.
II. Respondent court gravely erred in convicting petitioner to the crime
of malversation through negligence although the prosecution has never
proven beyond doubt that he possessed the allegedly lost money of
P50,000.00 which is the material ingredient of the crime charged.
III. Respondent court gravely erred in convicting petitioner of the crime
of malversation through negligence by citing his other alleged negligent
acts which were not alleged in the information, contrary to the due
process clause of the 1973 Constitution.
IV. Respondent court gravely erred in convicting petitioner of the crime
of malversation instead of filing malversation charges against his
superiors whose gross negligence really caused the loss of that amount.
V. Respondent court gravely erred in convicting petitioner, because
Justice Guerrero decided the criminal case against him contrary to
Section 2 of Rule V of the Rules of Sandiganbayan, which prohibits the
preparation of a decision by a court member who has never attended any
session thereof as long as the other members are still with said court.
From the record, the facts of the case may be collated as follows:
In the morning of 24 January 1980, Leonardo N. Estepa, then a senior
paymaster of the Cash Division of the City Treasurer's Office of the City
of Manila, together with nine (9) other paymasters and Cesar R.
Marcelo, their Supervising Paymaster, went to the Philippine National
Bank ("PNB") to encash checks amounting to P7,640,000.00
representing the cash advances then being requisitioned by the ten (10)
Paymasters. It turned out, however, that the cash value of those checks
was not available at the PNB. Hence, the personnel from the City
Treasurer's Office, among them Estepa, accompanied by some officials
of the PNB, proceeded to the Central Bank. In the presence of Marcelo,
and the ten (10) paymasters, P7,640,000.00 in cash was counted out 3
and placed inside two (2) duffel bags which, after being properly sealed,
were loaded inside an armored car and immediately transported to and
deposited in the central vault of the City Treasurer's Office of the City of
Manila.
Mr. Marcelo testified that there was a power "brownout" at about 1:00
to 2:00 p.m. on that day and the central vault, where they customarily
distribute the cash advances was dark; that he decided with the
concurrence of Atty. Kempis, the head of the Cash Division, to
distribute the cash to the paymasters at the latter's Kempis room which
was well-lighted by the rays of the sun coming in through a side
window. 4 Marcelo stated that in order to deter third persons from
entering that room during the distribution, the door was closed and a
guard was posted outside the room by the door. 5 In the presence of
Atty. Kempis and the ten (10) paymasters, Marcelo opened the two (2)
duffel bags and again counted out the amount of P7,640,000.00. 6 The
bills were segregated and bundled in denominations of P100.00s,
P50.00s, P20.00s and P10.00s up to the last coin, and placed on a big
chaise lounge and on a table inside Atty. Kempis' room. Some of the
paymasters were assigned to take charge of the bundles of money, one
paymaster for each denomination; however, Estepa was not one of those
so assigned. As each paymaster was called, each paymaster in charge of
a denomination handed to the requisitioner the number of bundles of
that denomination corresponding to the amount being requisitioned.
Thus, one at a time, the paymasters were called and given the amounts
they had requisitioned. When Estepa's turn came, Mr. Marcelo asked the
paymasters in charge of the bundles of differing denominations to hand
to Estepa the amount of P850,000.00. After all the ten (10) paymasters
had gotten their money and while all of them were still inside that room,
Mr. Marcelo, as was his usual practice, in a loud voice asked them in
Pilipino if everything was fine. No complaint or protest was made by
anyone of them, including Estepa, and all left the room uneventfully. 7
However, ten (10) minutes later, Estepa reported to Mr. Marcelo that the
amount of P50,000.00 was missing from his cash advance. The latter
immediately summoned back all ten (10) paymasters and with the help
of the Assistant Cashier, counted once again the money just delivered to
63
each of the ten (1) paymasters. It turned out that the amount received by
each of them, except Estepa, was correct.
Pacita Sison, an examiner from the Commission on Audit testified that
on 25 January 1980? she had examined Estepa's cash and accounts
which showed that the latter's account was short by P50,000.00.
Thereupon, she reduced her finding into writing which document was
signed by Estepa. 8
Estepa, upon receipt of a formal letter from the City of Manila
demanding the amount of P50,000.00, submitted a written explanation
denying his liability therefor. He alleged that he had only received the
total amount of P800,000.00 — and that the loss of the amount of
P50,000.00 occurred before that sum was delivered to him. Estepa also
executed on 5 February 1980 a sworn statement to that effect.
Unconvinced, the Legal Office of the City of Manila filed a complaint
against Estepa with the Tanodbayan. In turn, the Tanodbayan, after
conducting a preliminary investigation, filed an information in the
Sandiganbayan charging petitioner with the crime of malversation
through negligence.
Petitioner's first contention is that the facts alleged in the information
did not constitute an offense since there can be no crime of malversation
of public funds through mere failure to count the money. His second
contention is that the prosecution had not established that he had in fact
received the total amount of P850,000.00 and that therefore he should
not be answerable for the loss of the P50,000.00. Lastly, he claims that
he had not been negligent.
We consider petitioner's first argument to be without merit. We think
that petitioner's view of the information is a very narrow and carping
one. It will be seen that the information charged him with having
carelessly and negligently allowed an unknown person to steal or
misappropriate the amount of P50,000.00; that he had failed to exercise
his duty as a public officer accountable for public funds received by him
and that he had failed to count the money turned over to him at the
General Cashier's Room. The crime of malversation of public funds is
defined under Article 217 of the Revised Penal Code in the following
terms:
ART. 217. Malversation of public funds or property. — Presumption of
malversation. — Any public officer who, by reason of the duties of his
office, is accountable for public funds or property, shall appropriate the
same, or shall take or misappropriate or shall consent, or through
abandonment or negligence, shall permit any other person to take such
public funds or property, wholly or partially, or shall otherwise be guilty
of the misappropriation or malversation of such funds or property, shall
suffer:
1. The penalty of prision correccional in its medium and maximum
periods, if the amount involved in the misappropriation or malversation
does not exceed two hundred pesos.
2. The penalty of prision mayor in its minimum and medium periods, if
the amount involved is more than two hundred pesos but does not
exceed six thousand pesos.
3. The penalty of prision mayor in its maximum period to reclusion
temporal in its minimum period, if the amount involved is more than six
thousand pesos but is less than twelve thousand pesos.
4. The penalty of reclusion temporal in its medium and maximum
periods, if the amount involved is more than twelve thousand pesos but
is less than twenty-two thousand pesos. If the amount exceed the latter,
the penalty shall be reclusion temporal in its maximum period to
reclusion perpetua.
In all cases, persons guilty of malversation shall also suffer the penalty
of perpetual special disqualification and a fine equal to the amount of
the funds malversed or equal to the total value of the property
embezzled.
64

The failure of a public officer to have duly forthcoming any public
funds or property with which he is chargeable, upon demand by any
duly authorized officer, shall be prima facie evidence that he has put
such missing funds or property to personal use. (As amended by RA
1060.)
Turning to the second contention of Estepa, we consider that it was
proven beyond reasonable doubt that the amount of P850,000.00 had in
fact been distributed to petitioner Estepa. The total amount of
P7,640,000.00 was counted out by Mr. Marcelo, Supervising Paymaster,
before the actual distribution to the ten (10) paymasters of the amounts
respectively requisitioned by them. After petitioner Estepa had reported
that P50,000.00 was lost or missing from the cash advance, Mr. Marcelo
rounded up all the ten (10) paymasters and counted once again the
money distributed to and held by each of the ten (10) paymasters. This
recount showed that none of the nine (9) other paymasters had received
an amount in excess of the amount requisitioned by each. In other
words, in the recount after Estapa had reported his loss, the total amount
of P7,590,000.00 was accounted for (P7,640,000 - P50,000.00). The
loss reported by Estepa occurred after turnover to him of the entire
amount of P850,000.00.
The explanation offered by Estepa of the loss of P50,000.00 was
summarized by the Sandiganbayan in the following terms:
In exculpation, accused narrated, inter alia, what transpired inside the
room of Atty. Kempis during the partitioning of the money to the ten
paymasters. According to him, the room of Atty. Kempis was closed to
the public. Together with the other paymasters, accused witnessed the
opening of the two duffel bags and counting of the money by Mr.
Marcelo. There was no complaint of shortage. He placed them on one
side of a sofa which was three meters away. Because some of the
paymasters were already going out and accused was afraid that the
public might enter the office of Atty. Kempis, accused decided to bring
the money with smaller denominations to the table of Pangilinan which
was three to four meters away leaving the bigger denomination at the
sofa. He did this because accused could not carry the whole amount. By
then, there were some people inside the office of Atty. Kempis and the
latter was seated at his table. Thereupon, he brought the bundles of
bigger denominations (P100s and P50s) directly to his cage and then
returned for the bundles of smaller denominations. After counting the
money inside his cage, he discovered that one bundle of P50.00 bills
worth P50,000.00 was missing. He searched inside his cage looking at
the floor where the bundle could have dropped because it was dark.
After about ten minutes of futile search he reported the loss to Atty.
Kempis.
The Sandiganbayan, addressing the question of whether or not petitioner
Estepa had been negligent in the handling of the money that he, along
with the other nine (9) paymasters had received from the Supervising
Paymaster, analyzed the foregoing explanation of petitioner Estepa in
the following manner:
There is no gainsaying that accused was present when the money which
were to be withdrawn from the depository bank, was counted at the
Central Bank. There was no shortage. Before his eyes, the entire amount
was placed inside two duffel bags which were sealed and subsequently
deposited in the central vault of the City Treasurer's Office, Manila.
When these two duffel bags were opened, accused as well as the other
requisitioning paymasters were present. Again, Mr. Marcelo counted the
money. No shortage. Thereupon, each paymaster received the amount he
requisitioned. In the case of the accused, the total sum corresponding to
his name was P850,000.00. It was at this moment when Mr. Marcelo
asked the paymasters if they had received the correct amount by
directing the question, "Ayos na ba kayo diyan?" No one answered
including accused. This is one phase of his negligence. If he had not yet
fully counted the money he received, accused should have voiced
himself out. Instead, he let the occasion pass in silence giving the
impression that the money he had received was in accordance with the
amount due him.
65
His fault is not only limited to such inaction. By his own account,
people were starting to enter the room of Atty. Kempis. Yet, he left the
bundles of bigger denominations at the sofa without even asking
somebody to watch for them and proceeded to the table of Mr.
Pangilinan where he left the money of smaller denominations.
From the sketch (see Exh. E) of the City Treasurer's Office submitted by
the accused, it is clear that the table of Mr. Pangilinan was outside the
room of Atty. Kempis. The danger to the money left at the sofa was real.
Again, he left the same bundles this time at Ms cage with nobody to
watch them when he returned for the bundles of smaller denominations
at the table of Mr. Pangilinan. Accused admitted that at that time,
Eufrocinio Mendoza who shared the same cage with him, was not inside
the cage. Prudence should have cautioned accused to wait for Mendoza
before returning for the smaller denominations. Certainly, it was
foolhardy to leave bundles of money of high denominations of Pl00 or
P50 with no one to guard for them even only for a fleeting moment. In
short, accused's inexcusable negligence consisted of the following: (1)
failure to check-and re-check the denominations by him before the
paymasters dispersed, (2) not sounding off that he was not absolutely
certain of the amount received when Mr. Marcelo asked the paymasters,
"Ayos na ba kayo diyan?" (3) failure to ask Atty. Kempis or any other
person to watch over the money of bigger denominations at his cage
before he returned to the table of Mr. Pangilinan for the smaller
denominations. Had he not been remiss on these, there would have been
no opportunity for an unknown hand to surreptitiously get hold of the
money. (Emphasis supplied)
After careful examination of the records of this case, including the
detailed testimony of the witnesses, we find no reason to depart from the
conclusion reached by the Sandiganbayan that petitioner had indeed
been negligent in the handling of the funds which had been turned over
to him.
In the crime of malversation, all that is necessary for conviction is proof
that the accountable officer had received the public funds and that he did
not have them in his possession when demand therefore was made and
he could not satisfactorily explain his failure so to account. An
accountable public officer may be convicted for malversation even if
there is no direct evidence of personal misappropriation, where he has
not been able to explain satisfactorily the absence of the public funds
involved. 9
Under Article 217 of the Revised Penal Code, there is prima facie
evidence of malversation where the accountable public officer fails to
have duly forthcoming any public funds with which he is chargeable
upon demand by duly authorized officer. As this Court has pointed out,
this presumption juris tantum is founded upon human experience. 10
In the present case, petitioner was neither able to produce the missing
amount of P50,000.00 nor adequately to explain his failure to produce
that amount. Petitioner's explanation leaves one thoroughly dissatisfied.
If one took petitioner's explanation seriously and literally, the
mysterious, unseen third person could have picked up the missing
bundle of P50.00 bills either (1) from the sofa inside the room of Atty.
Kempis where he had left the bundles of large denomination bills,
without asking anyone to keep an eye on them while he left the room; or
(2) from petitioner's cage outside Atty. Kempis' room where he left the
bundles of large denomination bills, again without anyone being left in
charge thereof, while he went back to Mr. Pangilinan's desk (also
outside Atty. Kempis' room) to retrieve the bundles of small
denomination bills he had previously deposited on top of said desk
without, once more, getting some one to watch those bundles.
Petitioner's self-confessed coming and going from — sofa to
Pangilinan's desk; back to sofa and then to his cage; and back to
Pangilinan's desk and finally to his cage — created at least two (2) clear
opportunities for the invisible third person to pick up the missing
P50,000.00. Clearly, petitioner was very relaxed and casual in the
handling of the bundles of money entrusted to him.
Petitioner in fact tried to exculpate himself by suggesting that it was his
superiors — Atty. Kempis and Mr. Marcelo who had been negligent and
66
whose negligence had really caused the loss of P50,000.00. We are Sandiganbayan for any reason whatsoever in which case any Justice
unable to take seriously petitioner's claim that because the superiors had chosen to fill the vacancy in accordance with the manner provided in
not waited for restoration of electric power in the office of the City Section 2, Rule III, of these Rules shall participate in the consideration
Treasurer of Manila before proceeding with the distribution of the and adjudication of said case; Provided, lastly that the Sandiganbayan
P7,640,000.00, his superiors should be held responsible for the loss. en banc may, for special or compelling reasons, transfer cases from one
Concededly, it had not been customary to distribute funds in a room division thereof to another. (Emphasis supplied.)
other than the central vault. However, the distribution was done in the
room of Atty. Kempis which, petitioner Estepa had admitted, was Under the foregoing Section, any member of a Division of the
sufficiently lighted by sunlight coming through one of the windows. Sandiganbayan who is such at the time a case is submitted for decision
Moreover, as already pointed out, except for Mr. Marcelo, Atty. Kempis, may take part in the consideration and adjudication of that case.
and the ten (10) paymasters and the person guarding the entrance of the
room, no other persons had been allowed to enter the room until after all In the instant case, we therefore agree with the Solicitor General that
the ten (10) paymasters had received the correct amount requisitioned since Justice Guerrero was a member of the First Division of the
by them. Finally, since no one had asserted otherwise when Mr. Marcelo Sandiganbayan at the time the case was submitted for decision, there
had asked the group if everyone had been served, as it were, he had no was no legal objection to his writing the decision for the Division.
reason to suppose that petitioner then had not yet ascertained (as he now
claims) whether he had received the frill P850,000.00. WHEREFORE, the Petition for Review is DENIED for lack of merit
and the Decision of the First Division of the Sandiganbayan dated 15
Finally, petitioner argues that the ponente, Associate Justice December 1981 is hereby AFFIRMED.
Buenaventura J. Guerrero had no authority to write the decision in Case
No. 3658 because he was not a member of the First Division of the SO ORDERED.
Sandiganbayan when that case was heard.
Fernan, C.J., Narvasa, Melencio-Herrera, Gutierrez, Jr., Cruz, Paras,
Section 3, Rule V of the Sandiganbayan reads: Gancayco, Padilla, Bidin, Sarmiento, Cortes, Griño-Aquino, Medialdea
and Regalado, JJ., concur.
Sec. 3. Assignment of Cases Permanent. — Cases assigned to a division
of the Sandiganbayan in accordance with these rules shall remain with
said division notwithstanding changes in the composition thereof and all
matters raised therein shall be deemed to be submitted for consideration
and adjudication by any and all of the Justices who are members of the
division aforesaid at the time said matters are taken up, irrespective of
whether they were or were not members of the division at the time the
case was first assigned thereto; Provided, however, that only such
Justices who are members of the division at the time a case is submitted
for decision shall take part in the consideration and adjudication of said
case, unless any such member thereafter ceases to be a member of the

67
Republic of the Philippines Posts in Cagayan de Oro City from July, 1978 to January, 1986. He
SUPREME COURT likewise performed the task of accepting payments, making collections
Manila and effecting disbursement as there was no cashier employed during the
period of his incumbency. He was adept at this work because, before his
EN BANC designation as Acting Postmaster he was, as a matter of fact, a duly-
appointed cashier.

On September 19, 1983, Commission on Audit Auditors Robin S. Aban

G.R. No. 102356 February 9, 1993 and Alfonso A. Gala conducted an examination of the cash and accounts
of petitioner covering the period from September 8, 1983 to September
CALINICO B. ILOGON, petitioner, 13, 1988. The examination showed that the petitioner incurred a
vs. shortage in his accounts amounting to P118,871.29 itemized in the
SANDIGANBAYAN and PEOPLE OF THE PHILIPPINES, following manner:
respondents.
Accountability:
Florecita V. Bilbes for petitioner.
Balance shown by your
The Solicitor General for public respondents. cashbook on September 12, 1983
certified correct by you
and verified by us P171,999.42

CAMPOS, JR., J.: Credits to Accountability:

This is a petition for review on certiorari of the Decision * of the Deduct:

Sandiganbayan in Criminal Case No. 9776 entitled "People of the
Philippines vs. Calinico B. Ilogon", dated May 14, 1991 finding Cash, checks, and treasury
petitioner guilty of the crime of Malversation of Public Funds as defined warrants P 40,116.13
and penalized under Article 217 of the Revised Penal Code and cash items
sentencing him to the indeterminate penalty of from ten (10) years of allowed 13,012.00 P 53,128.13
prision mayor, as minimum, to fourteen (14) years of reclusion
temporal, as maximum, with the accessory penalties of the law; to suffer ————— —————
the penalty of perpetual special disqualification; and to pay a fine in the
sum of P118,003.10, an amount equal to the amount malversed, with Shortage P 118,871.29 1
costs.
=========
Petitioner Calinico B. Ilogon was the acting Postmaster of the Bureau of

68
The amount of shortage was later reduced to P118,003.10. This shortage That on or about September 13, 1983 or prior and subsequent thereto, in
represents the following: Cagayan de Oro City, Philippines, and within the jurisdiction of this
Honorable Tribunal, the said accused, a public officer, being the Acting
1. Vales P 8,846.00 Postmaster of the Bureau of Posts of the said City, and as such
accountable for the public funds collected and received by reason of his
2. Cash shortage (paid vouchers) position, did then and there, wilfully, unlawfully and feloniously, and
already reimbursed and/or paid and with grave abuse of confidence misappropriate, misapply and embezzle
received by you P 48,028.58 for his own personal use and benefit from the said funds, the total sum
of ONE HUNDRED EIGHTEEN THOUSAND AND THREE PESOS
3. Cash items disallowed (paid AND TEN CENTAVOS (P118,003.10) Philippine Currency, to the
vouchers) already reimbursed and/or damage and prejudice of the government.
paid and received by individual
creditors P 5,787.97 CONTRARY TO LAW.

4. Cash items disallowed (paid Before the Sandiganbayan, herein petitioner put up the following
vouchers) amount disallowed by the defense:
Regional Office P 31,036.85
1. In respect to the shortage of P8,846.00, Item 1 in the auditor's letter of
5. Cash items disallowed (paid demand, the amount represents vales (cash advances) granted to postal
vouchers) amount still payable employees of Cagayan de Oro City in payment of salaries or wages
non-budgetry expenses as which the accused paid out to them, even before the period for which
certified by the accountant P 19,555.84 they were supposed to be paid. He received reimbursement checks on
the 20th or 25th September, 1983 in payment thereof, but he remitted
6. Actual shortage P 4,747.86 these payments to the Land Bank of the Philippines only on October 17,
1983, per Official Receipt Number 312164. . . .
—————
2. As regards that category of shortage amounting to P48,028.58, the
P 118,003.10 2 accused claims that this amount represents the aggregate of the cash
advances to salaries of the Regional Director, Postal Inspector, and
========= postal employees of Davao, Iloilo and other places who were assigned
in Cagayan de Oro City. The accused did not have these amounts on
On November 27, 1984, petitioner was charged with the crime of hand when his cash and account were audited on September 13, 1983,
Malversation of Public Funds as defined and penalized under Article because the reimbursements for the said cash advances were not yet in
217 of the Revised Penal Code in an Information 3 which reads as his possession. If they were, the amounts given were less than the
follows: amounts stated in the voucher, consisting, therefore, of partial
liquidations. In case of a partial liquidation, he would simply annotate

69
the partial payment in the voucher. He would not enter partial payments
in the cash book.
3. Respecting that category of shortage amounting to P5,787.97, the
accused explained that this shortage constituted cash advances to postal
employees. While reimbursement checks had already been paid to the
employees involved by the Regional Office of the Bureau of Posts, these
employees had negotiated or encashed their reimbursement checks
without turning over the proceeds thereof to the accused Acting
Postmaster.
The accused claims that the shortage had later been paid through a
remittance he made in the Sum of P20,438.60, Exhibit "14", and in the
amount of P65,000.00, Exhibit "10"
xxx xxx xxx
Finally, as regards the cash shortage of P4,747.86, the accused admitted
the fact that he did not actually have this amount of cash when, during
the audit, he was told to present all his cash on hand. It is his claim that
all the while, this amount had in fact been in the possession of his teller.
While he forgot to tell the auditors that the cash was actually with the
teller, he remitted this amount to the Land Bank on September 19, 1983,
as evidenced by Official Receipt No. 31176, Exhibit "11". 4
After trial, the respondent Sandiganbayan found petitioner guilty
beyond reasonable doubt of the crime charged. Hence, this appeal.
Petitioner would try to evade the application of Article 217 of the
Revised Penal Code by arguing that he never misappropriated the
amount of P118,003.10 for his own personal use as the bulk of it was
given as cash advances to his co-employees. He pleads:
. . . the act of petitioner in giving out vales and/or cash advances should
not be condemned or be considered as a criminal act but should instead
be lauded not only because the same was done purely for humanitarian
reasons and that is to alleviate the plight of his co-employees during
those hard times when the salaries of lowly government employees were
very much below the ordinary level of subsistence and his desire to see
to it that the public interest will not be jeopardized, . . ., but also because
this has been the undisturbed practice in their office since time
immemorial, even before the accused's incumbency . . . . 5
Petitioner's argument fails to persuade Us.
In the crime of malversation, all that is necessary for conviction is proof
that the accountable officer had received public funds and that he did
not have them in his possession when demand therefor was made. There
is even no need of direct evidence of personal misappropriation as long
as there is a shortage in his account and petitioner cannot satisfactorily
explain the same. 6
In this case, petitioner was the official custodian of the missing funds.
He himself admitted the shortage of P118,003.10 in his cash and
accounts as Acting Postmaster but could not give a satisfactory
explanation for the same. he would invoke what he calls "humanitarian
reasons" as the justification for the said shortage. But, like the accused
Cabello v. Sandiganbayan, 7 petitioner herein knows that his granting of
"chits" and "vales" which constituted the bulk of the shortage was a
violation of the postal rules and regulations. Such practice, it was held in
Cabello, is also prohibited by Memoramdum Circular No. 570, dated
June 29, 1968, of the General Auditing Office. This Court went further
to state that "giving vales" is proscribed under Presidential Decree No.
1445, otherwise known as the Government Auditing Code of the
Philippines, specifically Section 69 thereof, which provides that
postmasters are only allowed to use their collections to pay money
orders, telegraphic transfers and withdrawals from the proper depository
bank whenever their cash advances for the purpose are exhausted." 8
The fact that petitioner did not personally use the missing funds is not a
valid defense and will not exculpate him from his criminal liability. And
as aptly found by respondent Sandiganbayan, "the fact that (the)
70
immediate superiors of the accused (petitioner herein) have acquiesced
to the practice of giving out cash advances for convenience did not
legalize the disbursements".

The fact also that petitioner fully settled the amount of P188,003.10
later is of no moment. The return of funds malversed is not a defense. It
is neither an exempting circumstance nor a ground for extinguishing the
accused's criminal liability. At best, it is a mitigating circumstance. 9

In the light of the above finding and under the plain language of the
applicable laws, We hold that the evidence was sufficient to sustain the
verdict finding the petitioner guilty of the crime charged. The judgment
of the Sandiganbayan is hereby AFFIRMED and the petition is
DISMISSED.

SO ORDERED.

71
THIRD DIVISION
[G.R. No. 116033. February 26, 1997]
ALFREDO L. AZARCON, petitioner, vs. SANDIGANBAYAN,
PEOPLE OF THE PHILIPPINES and JOSE C. BATAUSA,
respondents.
DECISION
PANGANIBAN, J.:
Does the Sandiganbayan have jurisdiction over a private individual who
is charged with malversation of public funds as a principal after the said
individual had been designated by the Bureau of Internal Revenue as a
custodian of distrained property? Did such accused become a public
officer and therefore subject to the graft courts jurisdiction as a
consequence of such designation by the BIR?
These are the main questions in the instant petition for review of
respondent Sandiganbayans Decision[1] in Criminal Case No. 14260
promulgated on March 8, 1994, convicting petitioner of malversation of
public funds and property, and Resolution[2] dated June 20, 1994,
denying his motion for new trial or reconsideration thereof.
The Facts
Petitioner Alfredo Azarcon owned and operated an earth-moving
business, hauling dirt and ore.[3] His services were contracted by the
Paper Industries Corporation of the Philippines (PICOP) at its
concession in Mangagoy, Surigao del Sur. Occasionally, he engaged the
services of sub-contractors like Jaime Ancla whose trucks were left at
the formers premises.[4] From this set of circumstances arose the
present controversy.
x x x It appears that on May 25, 1983, a Warrant of Distraint of Personal
Property was issued by the Main Office of the Bureau of Internal
Revenue (BIR) addressed to the Regional Director (Jose Batausa) or his
authorized representative of Revenue Region 10, Butuan City
commanding the latter to distraint the goods, chattels or effects and
other personal property of Jaime Ancla, a sub-contractor of accused
Azarcon and, a delinquent taxpayer. The Warrant of Garnishment was
issued to accused Alfredo Azarcon ordering him to transfer, surrender,
transmit and/or remit to BIR the property in his possession owned by
taxpayer Ancla. The Warrant of Garnishment was received by accused
Azarcon on June 17, 1985.[5]
Petitioner Azarcon, in signing the Receipt for Goods, Articles, and
Things Seized Under Authority of the National Internal Revenue,
assumed the undertakings specified in the receipt the contents of which
are reproduced as follows:
(I), the undersigned, hereby acknowledge to have received from
Amadeo V. San Diego, an Internal Revenue Officer, Bureau of Internal
Revenue of the Philippines, the following described goods, articles, and
things:
Kind of property
---
Isuzu dump truck
Motor number
---
E120-229598
72
 keep, preserve, and, to the best of (my) ability, protect said goods,
Chassis No. articles, and things seized from defacement, demarcation, leakage, loss,
or destruction in any manner; that (I) will neither alter nor remove, nor
permit others to alter or remove or dispose of the same in any manner
--- without the express authority of the Commissioner of Internal Revenue;
and that (I) will produce and deliver all of said goods, articles, and
things upon the order of any court of the Philippines, or upon demand of
SPZU50-1772440 the Commissioner of Internal Revenue or any authorized officer or
agent of the Bureau of Internal Revenue.[6]
Number of CXL
Subsequently, Alfredo Azarcon wrote a letter dated November 21, 1985
to the BIRs Regional Director for Revenue Region 10 B, Butuan City
--- stating that

x x x while I have made representations to retain possession of the

6 property and signed a receipt of the same, it appears now that Mr. Jaime
Ancla intends to cease his operations with us. This is evidenced by the
Color fact that sometime in August, 1985 he surreptitiously withdrew his
equipment from my custody. x x x In this connection, may I therefore
formally inform you that it is my desire to immediately relinquish
--- whatever responsibilities I have over the above-mentioned property by
virtue of the receipt I have signed. This cancellation shall take effect
immediately. x x x .[7]
Blue
Incidentally, the petitioner reported the taking of the truck to the security
Owned By manager of PICOP, Mr. Delfin Panelo, and requested him to prevent this
truck from being taken out of the PICOP concession. By the time the
order to bar the trucks exit was given, however, it was too late.[8]
---
Regional Director Batausa responded in a letter dated May 27, 1986, to
wit:
Mr. Jaime Ancla
An analysis of the documents executed by you reveals that while you
the same having been this day seized and left in (my) possession are (sic) in possession of the dump truck owned by JAIME ANCLA,
pending investigation by the Commissioner of Internal Revenue or his you voluntarily assumed the liabilities of safekeeping and preserving the
duly authorized representative. (I) further promise that (I) will faithfully unit in behalf of the Bureau of Internal Revenue. This is clearly

73
indicated in the provisions of the Warrant of Garnishment which you
have signed, obliged and committed to surrender and transfer to this
office. Your failure therefore, to observe said provisions does not relieve
you of your responsibility.[9]
Thereafter, the Sandiganbayan found that
On 11 June 1986, Mrs. Marilyn T. Calo, Revenue Document Processor
of Revenue Region 10 B, Butuan City, sent a progress report to the
Chief of the Collection Branch of the surreptitious taking of the dump
truck and that Ancla was renting out the truck to a certain contractor by
the name of Oscar Cueva at PICOP (Paper Industries Corporation of the
Philippines, the same company which engaged petitioners earth moving
services), Mangagoy, Surigao del Sur. She also suggested that if the
report were true, a warrant of garnishment be reissued against Mr.
Cueva for whatever amount of rental is due from Ancla until such time
as the latters tax liabilities shall be deemed satisfied. x x x However,
instead of doing so, Director Batausa filed a letter-complaint against the
(herein Petitioner) and Ancla on 22 January 1988, or after more than one
year had elapsed from the time of Mrs. Calos report.[10]
Provincial Fiscal Pretextato Montenegro forwarded the records of the
complaint x x x to the Office of the Tanodbayan on May 18, 1988. He
was deputized Tanodbayan prosecutor and granted authority to conduct
preliminary investigation on August 22, 1988, in a letter by Special
Prosecutor Raul Gonzales approved by Ombudsman (Tanodbayan)
Conrado Vasquez.[11]
Along with his co-accused Jaime Ancla, petitioner Azarcon was charged
before the Sandiganbayan with the crime of malversation of public
funds or property under Article 217 in relation to Article 222 of the
Revised Penal Code (RPC) in the following Information[12]filed on
January 12, 1990, by Special Prosecution Officer Victor Pascual:
That on or about June 17, 1985, in the Municipality of Bislig, Province
of Surigao del Sur, Philippines, and within the jurisdiction of this
Honorable Court, accused Alfredo L. Azarcon, a private individual but
who, in his capacity as depository/administrator of property seized or
deposited by the Bureau of Internal Revenue, having voluntarily offered
himself to act as custodian of one Isuzu Dumptruck (sic) with Motor
No. E120-22958, Chasis No. SPZU 50-1772440, and number CXL-6
and was authorized to be such under the authority of the Bureau of
Internal Revenue, has become a responsible and accountable officer and
said motor vehicle having been seized from Jaime C. Ancla in
satisfaction of his tax liability in the total sum of EIGHTY THOUSAND
EIGHT HUNDRED THIRTY ONE PESOS and 59/100 (P80,831.59)
became a public property and the value thereof as public fund, with
grave abuse of confidence and conspiring and confederating with said
Jaime C. Ancla, likewise, a private individual, did then and there
wilfully, (sic) unlawfully and feloniously misappropriate, misapply and
convert to his personal use and benefit the aforementioned motor
vehicle or the value thereof in the aforestated amount, by then and there
allowing accused Jaime C. Ancla to remove, retrieve, withdraw and tow
away the said Isuzu Dumptruck (sic) with the authority, consent and
knowledge of the Bureau of Internal Revenue, Butuan City, to the
damage and prejudice of the government in the amount of P80,831.59 in
a form of unsatisfied tax liability.
CONTRARY TO LAW.
The petitioner filed a motion for reinvestigation before the
Sandiganbayan on May 14, 1991, alleging that: (1) the petitioner never
appeared in the preliminary investigation; and (2) the petitioner was not
a public officer, hence a doubt exists as to why he was being charged
with malversation under Article 217 of the Revised Penal Code.[13] The
Sandiganbayan granted the motion for reinvestigation on May 22, 1991.
[14] After the reinvestigation, Special Prosecution Officer Roger
Berbano, Sr., recommended the withdrawal of the information[15] but
was overruled by the Ombudsman.[16]
A motion to dismiss was filed by petitioner on March 25, 1992 on the
ground that the Sandiganbayan did not have jurisdiction over the person
74
of the petitioner since he was not a public officer.[17] On May 18, 1992,
the Sandiganbayan denied the motion.[18]
When the prosecution finished presenting its evidence, the petitioner
then filed a motion for leave to file demurrer to evidence which was
denied on November 16, 1992, for being without merit.[19] The
petitioner then commenced and finished presenting his evidence on
February 15, 1993.
The Respondent Courts Decision
On March 8, 1994, respondent Sandiganbayan[20] rendered a Decision,
[21] the dispositive portion of which reads:
WHEREFORE, the Court finds accused Alfredo Azarcon y Leva
GUILTY beyond reasonable doubt as principal of Malversation of
Public Funds defined and penalized under Article 217 in relation to
Article 222 of the Revised Penal Code and, applying the Indeterminate
Sentence Law, and in view of the mitigating circumstance of voluntary
surrender, the Court hereby sentences the accused to suffer the penalty
of imprisonment ranging from TEN (10) YEARS and ONE (1) DAY of
prision mayor in its maximum period to SEVENTEEN (17) YEARS,
FOUR (4) MONTHS and ONE (1) DAY of Reclusion Temporal. To
indemnify the Bureau of Internal Revenue the amount of P80,831.59; to
pay a fine in the same amount without subsidiary imprisonment in case
of insolvency; to suffer special perpetual disqualification; and, to pay
the costs.
Considering that accused Jaime Ancla has not yet been brought within
the jurisdiction of this Court up to this date, let this case be archived as
against him without prejudice to its revival in the event of his arrest or
voluntary submission to the jurisdiction of this Court.
SO ORDERED.
Petitioner, through new counsel,[22] filed a motion for new trial or
reconsideration on March 23, 1994, which was denied by the
Sandiganbayan in its Resolution[23] dated December 2, 1994.
Hence, this petition.
The Issues
The petitioner submits the following reasons for the reversal of the
Sandiganbayans assailed Decision and Resolution:
I. The Sandiganbayan does not have jurisdiction over crimes committed
solely by private individuals.
II. In any event, even assuming arguendo that the appointment of a
private individual as a custodian or a depositary of distrained property is
sufficient to convert such individual into a public officer, the petitioner
cannot still be considered a public officer because:
[A]
There is no provision in the National Internal Revenue Code which
authorizes the Bureau of Internal Revenue to constitute private
individuals as depositaries of distrained properties.
[B]
His appointment as a depositary was not by virtue of a direct provision
of law, or by election or by appointment by a competent authority.
III. No proof was presented during trial to prove that the distrained
vehicle was actually owned by the accused Jaime Ancla; consequently,
the governments right to the subject property has not been established.
IV. The procedure provided for in the National Internal Revenue Code
concerning the disposition of distrained property was not followed by
the B.I.R., hence the distraint of personal property belonging to Jaime C.
75
Ancla and found allegedly to be in the possession of the petitioner is
therefore invalid.
V. The B.I.R. has only itself to blame for not promptly selling the
distrained property of accused Jaime C. Ancla in order to realize the
amount of back taxes owed by Jaime C. Ancla to the Bureau.[24]
In fine, the fundamental issue is whether the Sandiganbayan had
jurisdiction over the subject matter of the controversy. Corollary to this
is the question of whether petitioner can be considered a public officer
by reason of his being designated by the Bureau of Internal Revenue as
a depositary of distrained property.
The Courts Ruling
The petition is meritorious.
Jurisdiction of the Sandiganbayan
It is hornbook doctrine that in order (to) ascertain whether a court has
jurisdiction or not, the provisions of the law should be inquired into.[25]
Furthermore, the jurisdiction of the court must appear clearly from the
statute law or it will not be held to exist. It cannot be presumed or
implied.[26] And for this purpose in criminal cases, the jurisdiction of a
court is determined by the law at the time of commencement of the
action.[27]
In this case, the action was instituted with the filing of this information
on January 12, 1990; hence, the applicable statutory provisions are those
of P.D. No. 1606, as amended by P.D. No. 1861 on March 23, 1983, but
prior to their amendment by R.A. No. 7975 on May 16, 1995. At that
time, Section 4 of P.D. No. 1606 provided that:
SEC. 4. Jurisdiction. -- The Sandiganbayan shall exercise:
(a) Exclusive original jurisdiction in all cases involving:
(1) Violations of Republic Act No. 3019, as amended, otherwise known
as the Anti-Graft and Corrupt Practices Act, Republic Act No. 1379, and
Chapter II, Section 2, Title VII of the Revised Penal Code;
(2) Other offenses or felonies committed by public officers and
employees in relation to their office, including those employed in
government-owned or controlled corporations, whether simple or
complexed with other crimes, where the penalty prescribed by law is
higher than prision correccional or imprisonment for six (6) years, or a
fine of P6,000.00: PROVIDED, HOWEVER, that offenses or felonies
mentioned in this paragraph where the penalty prescribed by law does
not exceed prision correccional or imprisonment for six (6) years or a
fine of P6,000.00 shall be tried by the proper Regional Trial Court,
Metropolitan Trial Court, Municipal Trial Court and Municipal Circuit
Trial Court.
xxxxxxxxx
In case private individuals are charged as co-principals, accomplices or
accessories with the public officers or employees, including those
employed in government-owned or controlled corporations, they shall
be tried jointly with said public officers and employees.
x x x x x x x x x.
The foregoing provisions unequivocally specify the only instances when
the Sandiganbayan will have jurisdiction over a private individual, i.e.
when the complaint charges the private individual either as a co-
principal, accomplice or accessory of a public officer or employee who
has been charged with a crime within its jurisdiction.
Azarcon: A Public Officer or A Private Individual?
The Information does not charge petitioner Azarcon of being a co-
principal, accomplice or accessory to a public officer committing an
76
offense under the Sandiganbayans jurisdiction. Thus, unless petitioner
be proven a public officer, the Sandiganbayan will have no jurisdiction
over the crime charged. Article 203 of the RPC determines who are
public officers:
Who are public officers. -- For the purpose of applying the provisions of
this and the preceding titles of the book, any person who, by direct
provision of the law, popular election, popular election or appointment
by competent authority, shall take part in the performance of public
functions in the Government of the Philippine Islands, or shall perform
in said Government or in any of its branches public duties as an
employee, agent, or subordinate official, of any rank or classes, shall be
deemed to be a public officer.
Thus,
(to) be a public officer, one must be --
(1) Taking part in the performance of public functions in the
government, or
Performing in said Government or any of its branches public duties as
an employee, agent, or subordinate official, of any rank or class; and
(2) That his authority to take part in the performance of public functions
or to perform public duties must be --
a. by direct provision of the law, or
b. by popular election, or
c. by appointment by competent authority.[28]
Granting arguendo that the petitioner, in signing the receipt for the truck
constructively distrained by the BIR, commenced to take part in an
activity constituting public functions, he obviously may not be deemed
authorized by popular election. The next logical query is whether
petitioners designation by the BIR as a custodian of distrained property
qualifies as appointment by direct provision of law, or by competent
authority.[29] We answer in the negative.
The Solicitor General contends that the BIR, in effecting constructive
distraint over the truck allegedly owned by Jaime Ancla, and in
requiring the petitioner Alfredo Azarcon who was in possession thereof
to sign a pro forma receipt for it, effectively designated petitioner a
depositary and, hence, citing U.S. vs. Rastrollo,[30] a public officer.[31]
This is based on the theory that
(t)he power to designate a private person who has actual possession of a
distrained property as a depository of distrained property is necessarily
implied in the BIRs power to place the property of a delinquent tax
payer (sic) in distraint as provided for under Sections 206, 207 and 208
(formerly Sections 303, 304 and 305) of the National Internal Revenue
Code, (NIRC) x x x.[32]
We disagree. The case of U.S. vs. Rastrollo is not applicable to the case
before us simply because the facts therein are not identical, similar or
analogous to those obtaining here. While the cited case involved a
judicial deposit of the proceeds of the sale of attached property in the
hands of the debtor, the case at bench dealt with the BIRs administrative
act of effecting constructive distraint over alleged property of taxpayer
Ancla in relation to his back taxes, property which was received by
petitioner Azarcon. In the cited case, it was clearly within the scope of
that courts jurisdiction and judicial power to constitute the judicial
deposit and give the depositary a character equivalent to that of a public
official.[33] However, in the instant case, while the BIR had authority to
require petitioner Azarcon to sign a receipt for the distrained truck, the
NIRC did not grant it power to appoint Azarcon a public officer.
It is axiomatic in our constitutional framework, which mandates a
limited government, that its branches and administrative agencies
exercise only that power delegated to them as defined either in the
77
Constitution or in legislation or in both.[34] Thus, although the
appointing power is the exclusive prerogative of the President, x x x[35]
the quantum of powers possessed by an administrative agency forming
part of the executive branch will still be limited to that conferred
expressly or by necessary or fair implication in its enabling act. Hence,
(a)n administrative officer, it has been held, has only such powers as are
expressly granted to him and those necessarily implied in the exercise
thereof.[36] Corollarily, implied powers are those which are necessarily
included in, and are therefore of lesser degree than the power granted. It
cannot extend to other matters not embraced therein, nor are not
incidental thereto.[37] For to so extend the statutory grant of power
would be an encroachment on powers expressly lodged in Congress by
our Constitution.[38] It is true that Sec. 206 of the NIRC, as pointed out
by the prosecution, authorizes the BIR to effect a constructive distraint
by requiring any person to preserve a distrained property, thus:
xxxxxxxxx
The constructive distraint of personal property shall be effected by
requiring the taxpayer or any person having possession or control of
such property to sign a receipt covering the property distrained and
obligate himself to preserve the same intact and unaltered and not to
dispose of the same in any manner whatever without the express
authority of the Commissioner.
xxxxxxxxx
However, we find no provision in the NIRC constituting such person a
public officer by reason of such requirement. The BIRs power
authorizing a private individual to act as a depositary cannot be
stretched to include the power to appoint him as a public officer. The
prosecution argues that Article 222 of the Revised Penal Code x x x
defines the individuals covered by the term officers under Article
217[39] x x x of the same Code.[40] And accordingly, since Azarcon
became a depository of the truck seized by the BIR he also became a
public officer who can be prosecuted under Article 217 x x x.[41]
The Court is not persuaded. Article 222 of the RPC reads:
Officers included in the preceding provisions. -- The provisions of this
chapter shall apply to private individuals who, in any capacity whatever,
have charge of any insular, provincial or municipal funds, revenues, or
property and to any administrator or depository of funds or property
attached, seized or deposited by public authority, even if such property
belongs to a private individual.
Legislative intent is determined principally from the language of a
statute. Where the language of a statute is clear and unambiguous, the
law is applied according to its express terms, and interpretation would
be resorted to only where a literal interpretation would be either
impossible or absurd or would lead to an injustice.[42] This is
particularly observed in the interpretation of penal statutes which must
be construed with such strictness as to carefully safeguard the rights of
the defendant x x x.[43] The language of the foregoing provision is
clear. A private individual who has in his charge any of the public funds
or property enumerated therein and commits any of the acts defined in
any of the provisions of Chapter Four, Title Seven of the RPC, should
likewise be penalized with the same penalty meted to erring public
officers. Nowhere in this provision is it expressed or implied that a
private individual falling under said Article 222 is to be deemed a public
officer.
After a thorough review of the case at bench, the Court thus finds
petitioner Alfredo Azarcon and his co-accused Jaime Ancla to be both
private individuals erroneously charged before and convicted by
Respondent Sandiganbayan which had no jurisdiction over them. The
Sandiganbayans taking cognizance of this case is of no moment since
(j)urisdiction cannot be conferred by x x x erroneous belief of the court
that it had jurisdiction.[44] As aptly and correctly stated by the
petitioner in his memorandum:
From the foregoing discussion, it is evident that the petitioner did not
78
cease to be a private individual when he agreed to act as depositary of
the garnished dump truck. Therefore, when the information charged him
and Jaime Ancla before the Sandiganbayan for malversation of public
funds or property, the prosecution was in fact charging two private
individuals without any public officer being similarly charged as a co-
conspirator. Consequently, the Sandiganbayan had no jurisdiction over
the controversy and therefore all the proceedings taken below as well as
the Decision rendered by Respondent Sandiganbayan, are null and void
for lack of jurisdiction.[45]

WHEREFORE, the questioned Resolution and Decision of the

Sandiganbayan are hereby SET ASIDE and declared NULL and VOID
for lack of jurisdiction. No costs.

SO ORDERED.

Narvasa, C.J., (Chairman), Davide, Jr., Melo, and Francisco, JJ., concur.

79
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-58652 May 20, 1988
ALFREDO RODILLAS Y BONDOC, petitioner
vs.
THE HONORABLE SANDIGANBAYAN and THE PEOPLE OF
THE PHILIPPINES, respondents.
Santiago R. Robinol for petitioner.
The Solicitor General for respondents.
GUTIERREZ, JR., J.:
This is a petition brought by Alfredo Rodillas y Bondoc asking for the
reversal of a decision of the Sandiganbayan which found him guilty
beyond reasonable doubt of the crime of Infidelity in the Custody of
Prisoner Thru Negligence (Art. 224, RPC). The dispositive portion of
the decision reads:
WHEREFORE, judgment is hereby rendered finding accused Alfredo
Rodillas y Bondoc GUILTY beyond reasonable doubt as principal in the
crime of Evasion through Negligence, as defined and penalized under
Article 224 of the Revised Penal Code, and there being no modifying
circumstance to consider, hereby sentences him to suffer the straight
penalty of FOUR (4) MONTHS and ONE (1) DAY of arresto mayor, to
suffer eight (8) years and one (1) day of temporary special
disqualification and to pay the costs of this action.
SO ORDERED. (Rollo, p. 30)
Petitioner Rodillas was charged with having committed the said crime in
an information which reads as follows:
That on or about the 27th day of March, 1980, in the City of Caloocan,
Philippines, and within the jurisdiction of this Honorable Court, said
accused, being then a policeman duly appointed and qualified as such,
hence a public officer, specially charged with the duty of keeping under
his custody and vigilance and of conducting and delivery from the City
Jail, Caloocan City to the Court of First Instance, Branch XXXIV,
Caloocan City and return, one Zenaida Sacris Andres, a detention
prisoner being tried for violation of Section 4, R.A. No. 6425, otherwise
known as the Dangerous Drugs Act of 1972, under Crim. Case No. C-
12888, did then and there with great carelessness and unjustifiable
negligence, allow and permit said Zenaida Sacris Andres to have snacks
and enter the comfort room at the second floor of the Genato Building,
Rizal Avenue, Caloocan City after the hearing of said case, v,,ithout first
ascertaining for himself whether said comfort room is safe and without
any egress by which the said detention prisoner could escape, thereby
enabling said Zenaida Sacris Andres, to run away and escape thru the
window inside the comfort room, as in fact she did run away and escape
from the custody of said accused.
CONTRARY TO LAW. (Rollo, p. 6)
The prosecution's evidence upon which the court based its finding of
guilt is summarized as follows:
... accused herein is a Patrolman of the Integrated National Police Force
of Caloocan City and assigned with the jail section thereof. On March
27, 1980, when he reported for work, he was directed by his superior,
Corporal Victor Victoriano, officer-in-charge in assigning police officers
to escort prisoners, to escort Zenaida Sacris deadline Andres, a detention
prisoner, before the sala of Judge Bernardo Pardo of the Court of First
Instance, Br.XXXIV, located at the Genato Building, Caloocan City, to
80
face trial for an alleged Violation of the Dangerous Drugs Act of 1972,
as the policewoman officer who was supposed to escort the said
detainee was then sick. He and the detainee proceeded to the court
building and arrived thereat between 8:30 and 9:00 o'clock in the
morning. while waiting for the arrival of the judge at the courtroom, Pat.
Orlando Andres, who happened to be in the court and a relative of the
husband of said detention prisoner Zenaida, approached the accused and
requested the latter if he could permit Zenaida to talk to her husband.
The accused consented and Zenaida Andres had a short talk with her
husband. After a short while, the presiding judge deferred the decision
against her because of a new Presidential Decree revising some
provisions regarding violations of the Dangerous Drugs Act.
After the court had already adjourned, the husband of Zenaida requested
the accused to allow them to have lunch as they were already very
hungry. He consented to the request and they proceeded to the canteen
located at the mezzanine floor of the court building (Exhibit 1).<äre||
anº•1àw> He took a seat beside Zenaida and Pat. Andres while the
relatives of said detainee were seated at a separate table. While eating,
the husband of Zenaida asked him if he could accompany his wife to the
comfort room as she was not feeling well and felt like defecating. The
accused accompanied Zenaida and a lady companion to the ladies'
comfort room located at the second floor of the building (Exibit 2).
Zenaida and her lady companion entered the comfort room, while he
stood guard along the alley near the ladies' comfort room facing the
door thereof (Exhibit 5). Not long after, the lady companion of Zenaida
came out of the comfort room and told him that she was going to buy
sanitary napkins for Zenaida as the latter was then bleeding and had a
menstruation and could not go out of the comfort room.
After ten minutes elapsed without the lady companion of Zenaida
coming back, the accused became suspicious and entered the comfort
room. To his surprise, he found Zenaida no longer inside the comfort
room. He noticed that the window of said comfort room was not
provided with window grills. He tried to peep out of the window by
stepping on the flush tank which is just about 3 feet from the window
and noticed that outside of the window there was a concrete eave
extending down to the ground floor of the building which he presumed
that Zenaida might have used as a passage in escaping (Exhibits 2-A, 3
and 4 to 4-C). He immediately went out to look for the escapee inside
the building with the help of Pat. Andres but they were not able to see
her. Pat. Andres advised him to go to Zenaida's house as she might be
there, which home is located at Bagong Barrio, Caloocan City. Pat.
Andres having told him that the husband of the escapee is from Rizal,
Nueva Ecija, the accused borrowed the car of his brother-in-law and
proceeded to said town. Upon arrival thereat, they contacted the
relatives of Zenaida and asked for information as to her whereabouts,
but they answered in the negative. They went back to Caloocan City and
went again directly to Bagong Barrio to the house of Zenaida, arriving
thereat at around 8:00 o'clock in the evening. While at the residence of
Zenaida, Cpl. Victoriano arrived and the accused related to him about
the escape of Zenaida. He formally reported the matter of his superior
officer at the City Jail Capt. Leonardo Zamora. The accused declared
further that as a jailer, he never had any training nor lecture by his
superiors regarding the manner of delivering prisoners. However, he
admitted that he did not inspect first the comfort room before he allowed
Zenaida to enter because there were many females going in and out of
said comfort room, and that he did not promptly report the escape earlier
because they were then pressed for time to intercept Zenaida at the
highway. (Rollo, pp. 18-21).
The petitioner assigns the following errors:
I
WHETHER PETITIONER'S CONVICTION BY THE
SANDIGANBAYAN BASED ONLY ON HIS ADMISSIONS
WITHOUT THE PROSECUTION HAVING PRESENTED
EVIDENCE TO PROVE HIS NEGLIGENCE WILL LIE.
II
81
WHETHER THE ACTS OF PETITIONER COULD BE QUALIFIED
AS DEFINITE LAXITY AMOUNTING TO DELIBERATE NON-
PERFORMANCE OF DUTY TO SUSTAIN HIS CONVICTION. (Brief
for the petitioner, p. 5)
In essence, the sole question to be resolved in the case at bar is whether,
under the foregoing facts and circumstances, the respondent
Sandiganbayan committed a reversible error in holding the petitioner
guilty of infidelity in the custody of a prisoner through negligence
penalized under Art. 224 of the Revised Penal Code.
The petitioner specifically alleges that his conviction by the
Sandiganbayan was based merely on his admissions without the
prosecution presenting evidence to prove his negligence.
Sec. 22, Rule 130 of the Rules of Court states that "the act, declaration,
or omission of a party as to a relevant fact may be given in evidence
against him. The admissions and declarations in open court of a person
charged with a crime are admissible against him. (See U.S. v. Ching Po,
23 Phil. 578).
The records show that the elements of the crime for which the petitioner
was convicted are present. Article 224 of the Revised Penal Code states:
ART. 224. Evasion through negligence. If the evasion of the prisoner
shall have taken place through the negligence of the officer charged with
the conveyance or custody of the escaping prisoner, said officer shall
suffer the penalties of arresto mayor in its maximum period to prision
correccional in its minimum period and temporary special
disqualification.
The elements of the crime under the abovementioned article are: a) that
the offender is a public officer; b) that he is charged with the
conveyance or custody of a prisoner, either detention prisoner or
prisoner by final judgment; and c) that such prisoner escapes through his
negligence (See Reyes, L.B., Revised Penal Code, Book II, 1977 ed., p.
407).
There is no question that the petitioner is a public officer. Neither is
there any dispute as to the fact that he was charged with the custody of a
prisoner who was being tried for a violation of the Dangerous Drugs Act
of 1972.
The only disputed issue is the petitioner's negligence resulting in the
escape of detention prisoner Zenaida Andres. The negligence referred to
in the Revised Penal Code is such definite laxity as all but amounts to a
deliberate non-performance of duty on the part of the guard (Id., p. 408).
It is evident from the records that the petitioner acted negligently and
beyond the scope of his authority when he permitted his charge to create
the situation which led to her escape. The petitioner contends that
human considerations compelled him to grant Zenaida Andres requests
to take lunch and to go to the comfort room to relieve herself.
As a police officer who was charged with the duty to return the prisoner
directly to jail, the deviation from his duty was clearly a violation of the
regulations.
In the first place, it was improper for the petitioner to take lunch with
the prisoner and her family when he was supposed to bring his charge to
the jail. He even allowed the prisoner and her husband to talk to each
other at the request of a co-officer.
It is the duty of any police officer having custody of a prisoner to take
necessary precautions to assure the absence of any means of escape. A
failure to undertake these precautions will make his act one of definite
laxity or negligence amounting to deliberate non-performance of duty.
His tolerance of arrangements whereby the prisoner and her companions
could plan and make good her escape should have aroused the suspicion
of a person of ordinary prudence.
The request for lunch and the consequent delay was an opportunity for
82
the prisoner to learn of a plan or to carry out an earlier plan by which
she could escape. The plan was in fact carried out with the help of the
lady who accompanied his prisoner inside the comfort room. The use of
a toilet is one of the most familiar and common place methods of
escape. It is inconceivable that a police officer should fall for this trick.
The arrangement with a lady friend should have aroused the petitioner's
suspicion because the only pretext given by the petitioner was that she
was going to answer the call of nature. It was, therefore, unnecessary for
her to be accompanied by anyone especially by someone who was not
urgently in need of a toilet if the purpose was merely to relieve herself.
Despite this, the petitioner allowed the two to enter the comfort room
without first establishing for himself that there was no window or door
allowing the possibility of escape. He even allowed the prisoner's
companion to leave the premises with the excuse that the prisoner was
having her monthly period and that there was a need to buy sanitary
napkins. And he patiently waited for more than ten minutes for the
companion to return. This was patent negligence and incredible naivette
on the part of the police officer.
Contrary to what the petitioner claims, the escape was not a confluence
of facts and,circumstances which were not foreseen and were not
unnatural in the course of things. Not only should they have been
foreseen but they should have been guarded against.
Considering that the city jail was only a kilometer away and it was only
11:30 a.m., it would not have been inhuman for the petitioner to deny
the prisoner's request to first take lunch. Neither would it have been
inhuman if he cleared the toilet of female occupants and checked all
possible exists first and if he did not allow the lady companion to go
with Zenaida Andres to the comfort room. These human considerations,
however, are immaterial because the fact remains that as a police officer,
he should have exercised utmost diligence in the performance of his
duty.
The supposed confluence of facts does not alter his liability. That he was
not trained in escorting women prisoners is likewise unacceptable as
there are no hard and fast rules of conduct under all conceivable
situations for police officers acting as guards. However, they are
expected to use prudence, diligence, and common sense. That Judge
Pardo did not immediately pronounce judgment so the petitioner could
have immediately brought Zenaida back to jail is inconsequential. In the
first place, the escape would not have materialized had he immediately
escorted her back to jail after the hearing. That he cannot follow the
prisoner inside the comfort room because it would create a commotion,
he being a male, is a lame excuse. There is nothing wrong in asking the
ladies for permission so he could check the comfort room first to insure
that the prisoner cannot escape. The fact that the building is made of
concrete and the outside windows covered with grills should not make a
police officer complacent especially because well-planned escapes are
not uncommon. Escapes are, in fact, even presumed so much so that two
(2) guards are usually assigned to a prisoner. (Tsn, August 4, 1981, p.
40)
There appears to have been no genuine effort on the part of the
petitioner to recapture the escapee. Instead of promptly reporting the
matter so that an alarm could immediately be sent out to all police
agencies and expert procedures followed, he allegedly tried to look for
her in the latter's house in Caloocan and failing in this, proceeded to
Nueva Ecija. It was only later in the evening that he formally reported
the matter to his superior. This even gave the escapee greater
opportunity to make good her escape because the chances of her being
recaptured became much less. Such action requires concerted police
effort, not a one-man job which petitioner should have been or was
probably aware of.
The petitioner further contends that he cannot be convicted because
there was no connivance between him and the prisoner. In support of his
claim, he cites the case of Alberto v. dela Cruz, (98 SCRA 406). The
citation, however, is erroneous. It creates the impression that for one to
be held liable under Art. 224, there must be a showing that he first
connived with the prisoner. This was not the ruling in said case.
Conniving or consenting to evasion is a distinct crime under Art. 223 of
83
the Revised Penal Code.

The petitioner here is not being charged with conniving under Art. 223
but for evasion through negligence under Art. 224 of the same Code. It
is, therefore, not necessary that connivance be proven to hold him liable
for the crime of infidelity in the custody of prisoners.

We quote the Solicitor General that the Sandiganbayan's observation

regarding escaped prisoners is relevant and timely. The Court stated:

It is high time that the courts should take strict measures against law
officers to whom have been entrusted the custody and detention of
prisoners, whether detention prisoners or prisoners serving sentence.
Laxity and negligence in the performance of their duties resulting in the
mysterious escapes of notorious criminals have become common news
items, involving as it does the suspicion that monetary considerations
may have entered into the arrangements which led to the successful
escape of such notorious criminals even from military custody. No
quarters should be extended to such kind of law officers who,
deliberately or otherwise, fail to live up to the standard required of their
duties, thus directly contributing not only to the clogging of judicial
dockets but also to the inevitable deterioration of peace and order. (Brief
for Respondents, pp. 17-18)

WHEREFORE, the petition is hereby DISMISSED. The questioned

decision of the Sandiganbayan is AFFIRMED.

SO ORDERED.

Yap, C.J., Fernan, Narvasa, Melencio-Herrera, Cruz, Paras, Feliciano,

Gancayco, Padilla, Bidin, Sarmiento, Cortes, and Griño-Aquino, JJ.,
concur.

84
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-19052 December 29, 1962
MANUEL F. CABAL, petitioner,
vs.
HON. RUPERTO KAPUNAN, JR., and THE CITY FISCAL OF
MANILA, respondents.
Francisco Carreon for petitioner.
Assistant City Fiscal Manuel T. Reyes for respondent City of Manila.
CONCEPCION, J.:
This is an original petition for certiorari and prohibition with
preliminary injunction, to restrain the Hon. Ruperto Kapunan, Jr., as
Judge of the Court of First Instance of Manila, from further proceeding
in Criminal Case No. 60111 of said court, and to set aside an order of
said respondent, as well as the whole proceedings in said criminal case. .
On or about August 1961, Col. Jose C. Maristela of the Philippine Army
filed with the Secretary of Nation Defense a letter-complaint charging
petitioner Manuel Cabal, then Chief of Staff of the Armed Forces of the
Philippines, with "graft, corrupt practices, unexplained wealth, conduct
unbecoming of an officer and gentleman dictatorial tendencies, giving
false statements of his as sets and liabilities in 1958 and other equally
reprehensible acts". On September 6, 1961, the President of the
Philippines created a committee of five (5) members, consisting of
former Justice Marceliana R. Montemayor, as Chairman, former Justices
Buenaventura Ocampo and Sotero Cabahug, and Generals Basilio J.
Valdez and Guillermo B. Francisco, to investigate the charge of
unexplained wealth contained in said letter-complaint and submit its
report and recommendations as soon as possible. At the beginning of the
investigation, on September 15, 1961, the Committee, upon request of
complainant Col. Maristela, or considered petitioner herein to take the
witness stand and be sworn to as witness for Maristela, in support of his
aforementioned charge of unexplained wealth. Thereupon, petitioner
objected, personally and through counsel, to said request of Col.
Maristela and to the aforementioned order of the Committee, invoking
his constitutional right against self-incrimination. The Committee
insisted that petitioner take the witness stand and be sworn to, subject to
his right to refuse to answer such questions as may be incriminatory.
This notwithstanding, petitioner respectfully refused to be sworn to as a
witness to take the witness stand. Hence, in a communication dated
September 18, 1961, the Committee referred the matter to respondent
City Fiscal of Manila, for such action as he may deem proper. On
September 28, 1961, the City Fiscal filed with the Court of First
Instance of Manila a "charge" reading as follows:
The undersigned hereby charges Manuel F. Cabal with contempt under
section 580 of the Revised Administrative Code in relation to sections I
and 7, Rule 64 of the Rules of Court, committed as follows:
That on or about September 15, 1961, in the investigation conducted at
the U.P. Little Theater:, Padre Faura, Manila, by the Presidential
Committee, which was created by the President of the Republic of the
Philippines in accordance with law to investigate the charges of alleged
acquisition by respondent of unexplained wealth and composed of
Justice Marceliano Montemayor, as Chairman, and Justices
Buenaventura Ocampo and Sotero Cabahug and Generals Basilio Valdez
and Guillermo Francisco, as members, with the power, among others, to
compel the attendance of witnesses and take their testimony under oath,
respondent who was personally present at the time before the
Committee in compliance with a subpoena duly issued to him, did then
and there willfully, unlawfully, and contumaciously, without any
justifiable cause or reason refusal and fail and still refuses and fails to
obey the lawful order of the Committee to take the witness stand, be
sworn and testify as witness in said investigation, in utter disregard of
85
the lawful authority of the Committee and thereby obstructing and
degrading the proceedings before said body.
Wherefore, it is respectfully prayed that respondent be summarily
adjudged guilty of contempt of the Presidential Committee and
accordingly disciplined as in contempt of court imprisonment until such
time as he shall obey the subject order of said committee.
This charge, docketed as Criminal Case No. 60111 of said court, was
assigned to Branch XVIII thereof, presided over by respondent Judge.
On October 2, 1961, the latter issued an order requiring petitioner to
show cause and/or answer the charge filed against him within ten (10)
days. Soon thereafter, or on October 4, 1961, petitioner filed with
respondent Judge a motion to quash the charge and/or order to show
cause, upon the ground: (1) that the City Fiscal has neither authority nor
personality to file said char and the same is null and void, for, if
criminal, the charge has been filed without a preliminary investigation,
and, civil, the City Fiscal may not file it, his authority in respect of civil
cases being limited to representing the City of Manila; (2) that the facts
charged constitute no offense for section 580 of the Revised
Administrative Code, upon which the charge is based, violates due
process, in that it is vague and uncertain as regards the offense therein
defined and the fine imposable therefor and that it fail to specify
whether said offense shall be treated also contempt of an inferior court
or of a superior court (3) that more than one offense is charged, for the
contempt imputed to petitioner is sought to be punished as contempt of
an inferior court, as contempt of a superior court an as contempt under
section 7 of Rule 64 of the Rules Court; (4) that the Committee had no
power to order an require petitioner to take the witness stand and be
sworn to, upon the request of Col. Maristela, as witness for the latter,
inasmuch as said order violates petitioner's constitutional right against
self-incrimination.
By resolution dated October 14, 1961. respondent Judge denied said
motion to quash. Thereupon, or on October 20, 1961, petitioner began
the present action for the purpose adverted to above, alleging that,
unless restrained by this court, respondent Judge may summarily punish
him for contempt, and that such action would not be appealable.
In their answer, respondents herein allege, inter alia, that the
investigation being conducted by the Committee above referred to is
administrative, not criminal, in nature; that the legal provision relied
upon by petitioner in relation to preliminary investigations (Section '08-
C, Republic Act No. 409, as amended by Republic Act No. 1201) is
inapplicable to contempt proceedings; that, under section 580 of the
Revised Administrative Code. contempt against an administrative
officer is to be dealt with as contempt of a superior court; that petitioner
herein is charged with only one offense; and that, tinder the
constitutional guarantee against self-incrimination, petitioner herein
may refuse, not to take the witness stand, but to answer incriminatory
questions.
At the outset, it is not disputed that the accused in a criminal case may
refuse, not only to answer incriminatory questions, but, also, to take the
witness stand (3 Wharton's Criminal Evidence, pp. 1959-1960; 98
C.J.S., p. 264). Hence, the issue before us boils down to whether or not
the proceedings before the aforementioned Committee is civil or
criminal in character.
In this connection, it should be noted that, although said Committee was
created to investigate the administrative charge of unexplained wealth,
there seems to be no question that Col. Maristela does not seek the
removal of petitioner herein as Chief of Staff of the Armed Forces of the
Philippines. As a matter of fact he no longer holds such office. It seems,
likewise conceded that the purpose of the charge against petitioner is to
apply the provisions of Republic Act No. 1379, as amended, otherwise
known as the Anti-Graft Law, which authorizes the forfeiture to the
State of property of a public officer or employee which is manifestly out
of proportion to his salary as such public officer or employee and his
other lawful income and the income from legitimately acquired
property. Such for forfeiture has been held, however, to partake of the
nature of a penalty.
86

In a strict signification, a forfeiture is a divestiture property without
compensation, in consequence of a default an offense, and the term is
used in such a sense in this article. A forfeiture, as thus defined, is
imposed by way of punishment not by the mere convention of the
parties, but by the lawmaking power, to insure a prescribed course of
conduct. It is a method deemed necessary by the legislature to restrain
the commission of an offense and to aid in the prevention of such a
offense. The effect of such a forfeiture is to transfer the title to the
specific thing from the owner to the sovereign power (23 Am. Jur. 599)
(Emphasis ours.)
In Black's Law Dictionary a "forfeiture" is defined to be "the incurring
of a liability to pay a definite sum of money as the consequence of
violating the provisions of some statute or refusal to comply with some
requirement of law." It may be said to be a penalty imposed for
misconduct or breach of duty. (Com. vs. French, 114 S.W. 255.)
As a consequence, proceedings for forfeiture of proper are deemed
criminal or penal, and, hence, the exemption of defendants in criminal
case from the obligation to be witnesses against themselves are
applicable thereto.
Generally speaking, informations for the forfeiture of goods that seek no
judgment of fine or imprisonment against any person are deemed to be
civil proceedings in rem. Such proceedings are criminal in nature to the
extent that where the person using the res illegally is the owner or
rightful possessor of it, the forfeiture proceeding is in the nature of a
punishment. They have been held to be so far in the nature criminal
proceedings that a general verdict on several count in an information is
upheld if one count is good. According to the authorities such
proceedings, where the owner of the property appears, are so far
considered as quasi-criminal proceeding as to relieve the owner from
being a witness against himself and to prevent the compulsory
production of his books and papers. ... (23 Am. Jur. 612; emphasis ours.)
Although the contrary view formerly obtained, the late decisions are to
the effect that suits for forfeitures incurred by the commission of
offenses against the law are so far of quasi-criminal nature as to be
within the reason of criminal proceedings for all purposes of ... that
portion of the Fifth Amendment which declares that no person shall be
compelled in any criminal case to be a witness against himself. .... It has
frequently been held upon constitutional grounds under the various State
Constitution, that a witness or party called as witness cannot be made to
testify against himself as to matters which would subject his property to
forfeiture. At early common law no person could be compelled to testify
against himself or to answer any question which would have had a
tendency to expose his property to a forfeiture or to form a link in a
chain of evidence for that purpose, as well as to incriminate him. Under
this common-law doctrine of protection against compulsory disclosures
which would tend to subject the witness to forfeiture, such protection
was claimed and availed of in some early American cases without
placing the basis of the protection upon constitutional grounds. (23 Am.
Jur., 616; emphasis ours.)
Proceedings for forfeitures are generally considered to be civil and in
the nature of proceedings in rem. The statute providing that no judgment
or other proceedings in civil cases shall be arrested or reversed for any
defect or want of form is applicable to them. In some aspects, however,
suits for penalties and forfeitures are of quasi-criminal nature and within
the reason of criminal proceedings for all the purposes of ... that portion
of the Fifth Amendment which declares, that no person shall be
compelled in any criminal case to be a witness against himself. The
proceeding is one against the owner, as well as against the goods; for it
is his breach of the laws which has to be proved to establish the
forfeiture and his property is sought to be forfeited. (15 Am. Jur., Sec.
104, p. 368; emphasis ours.)lawphil.net
The rule protecting a person from being compelled to furnish evidence
which would incriminate him exists not only when he is liable
criminally to prosecution and punishment, but also when his answer
would tend to expose him to a ... forfeiture .... (58 Am. Jur., See. 43, p.
87
48; emphasis ours.)
As already observed, the various constitutions provide that no person
shall be compelled in any criminal case to be a witness against himself.
This prohibition against compelling a person to take the stand as a
witness against himself applied only to criminal, quasi-criminal, and
penal proceedings, including a proceeding civil in form for forfeiture of
property by reason of the commission of an offense, but not a
proceeding in which the penalty recoverable is civil or remedial in
nature, .... (58 Am. Jur., Sec. 44, p. 49: emphasis ours.)
The privilege of a witness not to incriminate himself is not infringed by
merely asking the witness a question which he refuses to answer. The
privilege is simply an option of refusal, and not a prohibition of inquiry.
A question is not improper merely because the answer may tend to
incriminate but, where a witness exercises his constitutional right not to
answer, a question by counsel as to whether the reason for refusing to
answer is because the answer may tend to incriminate the witness is
improper.
The possibility that the examination of the witness will be pursued to the
extent of requiring self-incrimination will not justify the refusal to
answer questions. However, where the position of the witness is
virtually that of an accused on trial, it would appear that he may invoke
the privilege in support of a blanket refusal to answer any and all
questions. (C.J.S., p. 252; emphasis ours.)
A person may not be compelled to testify in an action against him for a
penalty or to answer any question as a witness which would subject him
to a penalty or forfeiture, where the penalty or forfeiture is imposed as a
vindication of the public justice of the state.
In general, both at common law and under a constitution provision
against compulsory self-incrimination, a person may not be compelled
to answer any question as a witness which would subject him to a
penalty or forfeiture, or testify in action against him for a penalty.
The privilege applies where the penalty or forfeiture recoverable, or is
imposed in vindication of the public justice the state as a statutory fine
or penalty, or a fine or penalty for violation of a municipal ordinance,
even though the action or proceeding for its enforcement is not brought
in a criminal court but is prosecuted through the modes of procedure
applicable to ordinary civil remedy. (98 C. J. S., pp. 275-6.)
Thus, in Boyd vs. U.S. (116 U.S. 616, 29 L. ed. 746), it was held that
the information, in a proceeding to declaration a forfeiture of certain
property because of the evasion of a certain revenue law, "though
technically a civil proceeding is in substance and effect a criminal one",
and that suits for penalties and forfeitures are within the reason criminal
proceedings for the purposes of that portion the Fifth Amendment of the
Constitution of the U.S. which declares that no person shall be
compelled in a criminal case to be a witness against himself. Similarly, a
proceeding for the removal of an officer was held, in Thurston vs. Clark
(107 Cal. 285, 40 pp. 435, 437), to be in substance criminal, for said
portion of the Fifth Amendment applies "to all cases in which the action
prosecution is not to establish, recover or redress private and civil rights,
but to try and punish persons charged with the commission of public
offenses" and "a criminal case is a action, suit or cause instituted to
punish an infraction the criminal laws, and, with this object in view, it
matters not in what form a statute may clothe it; it is still a criminal case
...". This view was, in effect confirmed in Lees vs. U.S. (37 L. ed. 1150-
1151). Hence, the Lawyer Reports Annotated (Vol. 29, p. 8), after an
extensive examination of pertinent cases, concludes that said
constitutional provision applies whenever the proceeding is not "purely
remedial", or intended "as a redress for a private grievance", but
primarily to punish "a violation of duty or a public wrong and to deter
others from offending in likewise manner. ...".
We are unmindful of the doctrine laid down in Almeda vs. Perez, L-
18428 (August 30, 1962) in which the theory that, after the filing of
respondents' answer to a petition for forfeiture under Republic Act No.
1379, said petition may not be amended as to substance pursuant to our
88
rules of criminal procedure, was rejected by this Court upon the ground
that said forfeiture proceeding in civil in nature. This doctrine refers,
however, to the purely procedural aspect of said proceeding, and has no
bearing the substantial rights of the respondents therein, particularly
their constitutional right against self-incrimination.

WHEREFORE, the writ prayed for is granted and respondent Judge

hereby enjoined permanently from proceeding further in Criminal Case
No. 60111 of the Court of First Instance of Manila. It is so ordered.

Padilla, Bautista Angelo, Labrador, Reyes, J.B.L., Barrera, Paredes,

Dizon, Regala and Makalintal, JJ., concur.
Bengzon, C.J., is on leave.

89
[G. R. No. 102508. January 30, 2002] (Napolcom), P148,032.24; the Central Bank, P834,700.00; and the Law
Firm of San Juan, Africa, Gonzales, and San Agustin, P490,000.00. He
REPUBLIC OF THE PHILIPPINES, petitioner, vs. also derived substantial income from the investments and properties he
SANDIGANBAYAN, Third Division, and JOLLY R. BUGARIN, and his wife acquired before he became a Director of the NBI.
respondents.
During the trial, respondent Bugarin presented fifteen witnesses,
DECISION including himself, as well as documentary evidence marked as Exhibits
1 to 48. A summary of his property acquisitions follows:
DAVIDE, JR., C.J.:*
REAL PROPERTY YEAR ACQUIRED ACQUISITION C0ST
Persistent in its efforts to recover the alleged unexplained wealth
amassed by private respondent Jolly R. Bugarin, a government official 1.Residential lot in Dasmarias 1968 P91,140
during the Marcos regime, petitioner Republic of the Philippines
implores this Court to reverse and set aside the 13 August 1991 Decision Village, Makati [5]
of the Sandiganbayan[1] dismissing, for insufficiency of evidence, its
petition for forfeiture of properties filed pursuant to Republic Act No. 2.Nine (9) Residential lots, 1968 9,340
1379,[2] as amended.
Tagaytay City[6]
In its petition[3] filed with the Sandiganbayan on 3 August 1987,
petitioner, represented by the Presidential Committee on Good 3. Residential House
Government (PCGG), averred that respondent Bugarin acquired during
his incumbency as Director of the National Bureau of Investigation Dasmarias Village, 1969 175,900
(NBI) real and personal properties enumerated in paragraph 5 thereof
whose aggregate fair market value at the time of their acquisition was Makati[7]
P6,313,632.56. Allegedly, those properties were manifestly in excess or
out of proportion to his salaries, allowances, and other emoluments from 4. Residential Lot, 1973 87,288
1 July 1967 to 15 March 1986 totalling P743, 243.65 only.
Greenhills, San Juan, Metro Manila[8]
In his Answer with Explanation,[4] Bugarin claimed that some of the
properties enumerated in paragraph 5 of the petition were acquired by 5. Residential Lot, Capitol District 1972 72,750
him and his wife before he became a Director of the NBI. The
acquisition cost of the properties he acquired during his incumbency Quezon City[9]
was P2,793,141.26 only. He likewise alleged that apart from the
P743,243.65 he received for the entire period of his service as NBI 6. Condominium Unit, Montepino 1973 100,000
Director, he also received allowances from the Dangerous Drugs Board
(DDB) totalling P74,500.00; the National Police Commission Condominium, Baguio City[10]

90
7. Residential Lot 1976 263,165 4. Admiral Development Corp. 3,200

Valle Verde, Pasig, M.M.[11] 5. Far East Bank & Trust Co.[18] 1971-1972 19,030

8. Residential House 1978 250,000 6. Lakeview Industrial Corp. 1973 10,000

Valle Verde, Pasig, M.M.[12] 7. Phil. Banking Corporation[19] 1970 4,000

9. Residential Lot 1978 5,000 1983 5,200

Calapan, Oriental Mindoro[13] 8. Mabuhay Airways Phils., Inc 1974 10,000

10. Orchard & Cocoland 1978 1,000 9. Menzi Development Corp. 1974 5, 000

Puerto Galera, Oriental Mindoro[14] 10. LRW Realty & Development 1975 300,000

11. Residential House 1980 650,000 11. Astra Financing Corporation[20] 1981 25,000

Greenhills, San Juan [15] 12. J.R. Garments Corporation[21] 1982 300,000

____________ 1983 150,000

TOTAL P1,705,583 13. Manila Hilton 1,400

BUSINESS INVESTMENTS YEAR AMOUNT ____________

1. Philippine Commercial and 1968-1970; 1980 P24,800 TOTAL P891,690

Industrial Bank[16] OTHER INVESTMENTS

2. Social Studies Publication[17] 1971 10,000 1. Philippine Columbian Club 1968-1975 P24,750

3. Admiral Investment & 1965-1981 24,060 2. Makati Sports Club 1975 25,000

Financing Corp. 3. Manila Polo Club 1978 32,000

91
 as veteran at P220 per month from July
4. Baguio Country Club 1985 60,000
1967 to March 1986 P49,000.00
____________
Professional Fee received from the China
TOTAL P141,750
Bank and Africa Law office[24] P55,000.00
To recapitulate, the total cost of the properties, business investments and
other investments acquired by Bugarin during his incumbency as NBI Outstanding balance as of 28 February 1989 of
Director is as follows:
GSIS loan obtained in 1983[25] P775,073.38
Real Property P1,705,583
Pension from the United States Government
Business Investments 891,690
as World War I veteran $8,512.00
Other Investments 141,750
Rental income from the lease of his houses in
_______________
Dasmarias Village, Makati; Valle Verde, Pasig;
TOTAL P2,739,023
and Greenhills, San Juan, from 1981 to 1986 P1,748,640
As to his income, he attempted to prove that aside from those mentioned
in his Answer, he also earned the following amounts: In its 71-page decision, the Sandiganbayan excluded the allowances
from the DDB, Napolcom and Central Bank on the ground that they
Proceeds from the sale of a were given to Bugarin in the nature of reimbursement, which would
imply that they had been spent for the purpose for which they were
parcel of land in Iloilo City in 1968[22] P15,000.00 earmarked and could not have therefore been used in purchasing the
subject properties. Anent the professional fees, the Sandiganbayan held
Proceeds from the sale of his that while the same may be considered as unlawful income, forfeiture
thereof or of the properties equivalent to said amount is not part of the
real property in Quezon City in 1984[23] P300,000.00 subject matter of the petition. As to the amount of P63,862.50 alleged to
have been his profits from stock transactions, the same turned out to be
Profits in stock transaction in 1983 P63,862.00 the tax paid on the gains realized by him in stock transactions in 1983
and, hence, not allowable as part of his income. Also excluded from his
Pensions from the Philippine Government disposable funds were the alleged pensions from the U.S. and Philippine
governments, since the evidence presented were merely checks dated 1

92
February 1990 in the amount of $38[26] and 31 January 1990 in the
amount of P220,[27] respectively, albeit payable to Bugarin. It then
summarized respondents lawful income and disposable funds, thus:
Source of Income Amount
1. Salary, allowances and other emoluments of respondent as
NBI Director (not disputed by the petitioner) P743,243.65
2. Proceeds from sale of Quezon City lot
(Exhs. 35, 35-A and 36) .. . P300,000.00
3. Proceeds from sale of Iloilo City lot
(Exh. 3-B)... P15,000.00
4. Rental Income earned by respondent from the lease of his houses in
Dasmarias Village, Makati; Valle Verde, Pasig; and San Juan
(Exhs.39-A, 40-A, 41-A, 43-A and 44-A)..................P1,748,640.00
______________
Total lawful income earned by respondent from
1967 1986 P2,806,883.65
Outstanding loan balance re:
GSIS loan obtained by respondent in 1983,
representing additional disposable funds by him
(Exh. 2) ......... P775,073.38
------------------
Respondents total lawful income and additional
disposable funds P3,581,957.03[28]
Respondents real property acquisitions and investments were
summarized by the Sandiganbayan as follows:
Real property acquisitions / Investments Amount
1. Real properties P1,705,583
2. Business investments 906,690
3. Other investments 141,750
___________
Total P2,754,023
Apart from the amounts necessary for funding his property acquisitions
and business investments, the Sandiganbayan declared as chargeable
against his lawful income and disposable funds the amount of P497,094
representing tax payments made by the respondent from 1981 to 1986,
as well as P310,000 representing family and personal expenses, using as
basis therefor his Statement of Assets and Liabilities for the period
ending 31 December 1969, which states that his family and personal
expenses for the years 1967 and 1968 were P15,000 and P16,000,
respectively. Hence, from 1967 to 1986, respondents total cash outflow
amounted to P3,561,117. The Sandiganbayan then concluded in this
wise:
All things considered, it can be clearly seen that while respondent
93
earned a total lawful income of P2,806,883.65 from 1967 to 1986, and
had additional funds of P775, 073.38 sourced through a loan from GSIS,
thereby accounting for total funds of P3,581,957.03, he bought real
properties and engaged in business and other investments having a total
worth of P2,754,023.00 during the same period. At the same time, he
made tax payments of P497,094.00 and incurred an estimated family
and personal expenses from 1967 to 1986 of P310,000.00. Summed up,
respondent Bugarins total cash outflow from 1967 to 1986 amounted to
P3,561,117.00 out of his lawful income and source of funds (or a total
cash inflow) valued at P3,581,957.03. We therefore reach the inevitable
conclusion that respondent Bugarin funded his real property acquisitions
and business and other investments out of his lawful income as NBI
Director and other legitimate sources of financing. Respondent Bugarin
was able to explain to the satisfaction of this Court that aside from his
income as NBI Director, he also earned substantial amounts from the
sale by his wife of two parcels of land, and rental income from the lease
of his three residential houses in Makati, Pasig, and San Juan. He also
obtained a loan from the GSIS. These fund, all lawfully acquired, were
utilized by him in financing his various acquisitions and business
undertakings.[29]
Based on these findings, the Sandiganbayan dismissed the petition for
forfeiture on the ground of insufficiency of evidence.
Hence, this petition wherein petitioner maintains that the Sandiganbayan
seriously erred in holding that
WHILE THE AMOUNTS OF P490,000.00 (PROFESSIONAL FEES
FROM THE SAN JUAN, AFRICA, GONZALES AND SAN
AGUSTIN LAW OFFICE) AND P55,000.00 (PROFESSIONAL FEES
CONTAINED IN THE STATEMENT OF ASSETS AND LIABILITIES
AS OF DECEMBER 31, 1969) MAY BE CONSIDERED AS
UNLAWFUL INCOME, FORFEITURE THEREOF OR OF
RESPONDENTS PROPERTIES EQUIVALENT TO SAID AMOUNT
NOT BEING PART OF THE SUBJECT MATTER OF THE PETITION
CANNOT BE GRANTED.
RESPONDENTS OUTSTANDING LOAN BALANCE TO GSIS
AMOUNTING TO P775,073.38 AS OF FEBRUARY 28, 1989, WHILE
NOT TO BE CONSIDERED AS PART OF HIS INCOME,
CONSTITUTES PART OF THE AGGREGATE OF FUNDS USED BY
HIM IN CAPITALIZING HIS PROPERTY ACQUISITIONS AND
BUSINESS INVESTMENTS.
RESPONDENTS TOTAL INCOME OF P1,748,640.00 FROM THE
LEASE OF HIS HOUSES IN DASMARIAS VILLAGE, MAKATI,
VALLE VERDE, PASIG, AND SAN JUAN SHOULD BE
CONSIDERED AS PART OF HIS LAWFUL INCOME.
IT IS THE ACQUISITION COST OF THE PROPERTY OR
BUSINESS INVESTMENT PURCHASED OR ACQUIRED AND
NOT THE FAIR MARKET VALUE THEREOF AT THE TIME OF
ACQUISITION WHICH SHOULD BE MADE THE BASIS IN
DETERMINING THE VALUE OF RESPONDENTS TOTAL
ACQUISITION DURING THE PERIOD CONSIDERED.
RESPONDENTS TOTAL FAMILY AND PERSONAL EXPENSES
PER YEAR WOULD AMOUNT TO P15,500.00 ONLY.
RESPONDENT BUGARIN FUNDED HIS REAL PROPERTY
ACQUISITION AND BUSINESS AND OTHER INVESTMENTS
OUT OF HIS LAWFUL INCOME AS NBI DIRECTOR AND OTHER
LEGITIMATE SOURCES OF FINANCING. [30]
It is well-settled that the appellate jurisdiction of the Supreme Court
over decisions or final orders of the Sandiganbayan is limited only to
questions of law.[31] A question of law exists when the doubt or
controversy concerns the correct application of law or jurisprudence to a
certain set of facts; or when the issue does not call for an examination of
the probative value of the evidence presented, the truth or falsehood of
facts being admitted.[32] A question of fact exists when the doubt or
difference arises as to the truth or falsehood of facts or when the query
94
invites calibration of the whole evidence considering mainly the
credibility of the witnesses, the existence and relevancy of specific
surrounding circumstances as well as their relation to each other and to
the whole, and the probability of the situation.[33]
The Supreme Court is not a trier of facts. It is not the Courts function to
examine and weigh all over again the evidence presented in the
proceedings below.[34] Thus, it is the policy of the Court to sustain the
factual findings of the trial court, such as the Sandiganbayan, on the
reasonable presumption that the latter court is in a better position to
assess the evidence before it.
While the petitioner concedes that the Sandiganbayans findings of facts
are conclusive upon this Court, it invokes the exceptions laid down in
Dischoso v. Court of Appeals,[35] to wit: (1) when the conclusion is a
finding grounded entirely on speculation, surmise, and conjectures; (2)
when the inference made is manifestly absurd, mistaken, or impossible;
(3) xxx; (4) when the judgment is premised on a misapprehension of
facts; (5) xxx.
A plain reading of the Sandiganbayans decision exposed manifest errors
and misapprehension of facts, which impelled us to pore over the
evidence extant from the records. After a careful perusal thereof and of
the arguments of the parties, we have come up with the following
conclusions.
I. Income from Private Practice of Profession.
We agree with the respondent that the professional fee he received from
the law firm of San Juan, Africa, Gonzales and San Agustin from 1978
to 1986 in the amount of P70,000 per annum, as well as that in the
amount of P55,000 reflected in his Statement of Assets and Liabilities
for the period ending 31 December 1969, should not be excluded as part
of his lawful income or disposable funds.
Section 12, Rule XVIII of Civil Service Rules provides:
Sec 12. No officer or employee shall engage directly in any private
business, vocation, or profession or be connected with any commercial,
credit, agricultural, or industrial undertaking without a written
permission from the head of the Department: Provided, That this
prohibition will be absolute in the case of those officers and employees
whose duties and responsibilities require that their entire time be at the
disposal of the Government: Provided, further, That if an employee is
granted permission to engage in outside activities, the time so devoted
outside of office hours should be fixed by the chief of the agency to the
end that it will not impair in any way the efficiency of the officer or
employee: and provided, finally, that no permission is necessary in the
case of investments, made by an officer or employee, which do not
involve any real or apparent conflict between his private interests and
public duties or in any way influence him in the discharge of his duties,
and he shall not take part in the management of the enterprise or become
an officer or member of the board of directors. (Underscoring supplied).
Respondent was engaged as a consultant on handwriting, document
examination and evaluation, ballistics, fingerprinting and other
specialized projects.[36] He claimed that he rendered his services as
such outside of office hours, which services did not conflict with his
official functions as NBI Director. He was given permission by his
superior to act as a consultant, but he could not find among his files the
written permission allegedly given to him in 1967. At any rate, he did
not conceal his consultancy services and the corresponding fees he
received; in fact, he stated them in the Statement of Assets and
Liabilities he submitted to the Office of the Secretary of Justice, as well
as in his Income Tax Returns.
Even assuming that he had no prior written authority to act as a
consultant of a private entity, respondents violation of the Rule -- lack of
prior permission -- was a technical one.[37] At most, it would subject
him to the administrative penalty provided in the Civil Service Rules
had the proper charge been filed against him. Such violation did not
amount to a crime or graft and corrupt practice as defined by law.[38]
95
Hence, we are of the opinion that his professional fees should be
included in the computation of his lawful income.
II. Outstanding Balance of his Loan from the GSIS
It is unquestionable that the outstanding loan balance of respondents
obligation to the GSIS in the amount of P775,073.38 as of 28 February
1989 did not constitute as respondents income in the strict sense of the
word. The same, however, formed part of the disposable funds used by
him in capitalizing his property acquisition and business investments.
In Republic v. Intermediate Appellate Court, which was also a case for
forfeiture of unexplained wealth,[39] this Court gave weight to the
evidence adduced by the respondents therein indicating that the
purchase by them of real properties and the construction of a house were
partly financed through personal loans, and loans from the GSIS and the
Development Bank of the Philippines.
In the present case, however, the loan from the GSIS in the sum of
P995,000.00 was granted only on 20 May 1983. We cannot, therefore,
sustain respondents claim that it was his source of fund in the
construction of his house in Greenhills, San Juan, which was undertaken
in 1980, there being no competent evidence that he obtained other loans
to initially finance such construction and that the GSIS loan proceeds
were in fact used by him in repaying such loans. These loan proceeds
could have been, at most, part of the funds he utilized in acquiring
properties in 1983 or thereafter.
III. Rental Income from the Lease of his houses in Dasmarias Village,
Makati; Valle Verde, Pasig; and Greenhills, San Juan
It bears emphasis that, as borne out by his own summary of property
acquisitions, most of his assets were acquired in 1980 and in the
preceding years. The rental income of P1,748,640, which the
Sandiganbayan included as part of his disposable funds, were for the
period from 1981 to 1986. Thus, such income could not have been used
by respondent in financing the purchase of his real properties and
shareholdings in various companies prior to 1981. Besides, as will be
shown later, there exists an unshakable doubt on the legality of this
income, considering that the properties from which such income was
derived were not wholly funded by lawful income.
IV. Basis for Determining the Value of Respondents Assets
In ascertaining the value of respondents properties and shareholdings, it
is not the fair market value, as claimed by the petitioner, that should be
made as basis thereof. Rather, as correctly held by the Sandiganbayan, it
is the acquisition cost thereof, since it was the actual amount of money
shelled out by respondent in acquiring them. It is the acquisition cost
that must be charged against respondents lawful income and funds.
Neither can we sustain petitioners bare allegation that the cost or
consideration of the subject properties stated in the contracts were
understated for tax evasion purposes. Absent any evidence to support it,
such claim deserves a short shrift for being merely speculative or
conjectural.
V. Family and Personal Expenses
In coming out with the figure P310,000 representing his personal and
family expenses during his tenure as NBI Director, respondent court
adopted as basis those supplied by private respondent in his Statement
of Assets and Liabilities for the period ending 31 December 1969, which
were P15,000 for 1967 and P16,000 for 1968. It proceeded to
extrapolate the total figure for the entire period material to the forfeiture
proceeding by multiplying the resulting annual average of P15,500 by
20 years.
Owing to the inflation and consequent decline of the purchasing power
of the Philippine peso throughout the period in question, Bugarins total
family and personal expenses, as conceded by the Sandiganbayan, was
extremely a conservative one. But, just like the Sandiganbayan, we can
96
neither come up with a greater amount in the absence of any other
evidence in support thereof. Indeed, the determination thereof cannot be
left to conjecture or guesswork.
VI. Sufficiency of Respondents Explanation of His Property
Acquisitions
Section 2 of R.A. No. 1379 provides that whenever any public officer or
employee has acquired during his incumbency property which is
manifestly out of proportion to his salary as such public officer or
employee and to his other lawful income and income from legitimately
acquired property, the said property shall be presumed prima facie to
have been unlawfully acquired. Section 5 thereof provides for a hearing
during which the respondent is given an ample opportunity to explain, to
the satisfaction of the court, how he has acquired the property in
question. It is only when the respondent is unable to show that his asset
acquisitions were lawfully made that such property shall be forfeited in
favor of the State.
From the summary of Bugarins assets, it can readily be seen that all of
his real properties were purchased or constructed, as the case may be,
from 1968 to 1980. The total acquisition cost thereof was P1,705,583.
With the exception of those that had been liquidated, those acquired
from 1981 onward, and those whose year of acquisition could not be
determined, his shareholdings in various corporations and other
investments amounted to P464,580. Hence, for the period from 1968 to
1980, he amassed wealth in the amount of P2,170,163.
On the other hand, his total income from 1967 to 1980 amounted only to
P766,548, broken down as follows:
Professional fees reflected in his Statement
of Assets and Liabilities for 31 December 1969 P55,000
Professional fees from the Law Firm of San Juan,
Africa, Gonzales, and San Agustin from 1978 to
1980 at the rate of P70,000 per annum P210,000
Proceeds from the sale of his lot in Iloilo City in 1968 P15,000
Salaries and Allowances from the NBI
as reflected in his Income Statement
(assuming that this is accurate) [40] P486,548
_______________
Total P766,548
It bears repeating that the proceeds of the loan granted to him by the
GSIS in 1983 and the rental income from 1981 to 1986, as well as the
proceeds of the sale of his real property in 1984, could not have been
utilized by him as his funds for the real properties and investments he
acquired in 1980 and in the preceding years. His lawful income for the
said period being only P766,548, the same was grossly insufficient to
finance the acquisition of his assets for the said period whose aggregate
cost was P2,170,163. This gross disparity would all the more be
emphasized had there been evidence of his actual family and personal
expenses and tax payments.
Premises considered, respondents properties acquired from 1968 to
1980 which were out of proportion to his lawful income for the said
period should be forfeited in favor of the government for failure of the
respondent to show, to the Courts satisfaction, that the same were
lawfully acquired.
WHEREFORE, the appealed decision of the Sandiganbayan is hereby
REVERSED and SET ASIDE. The petition is GRANTED, and the
97
properties of respondent JOLLY BUGARIN acquired from 1968 to 1980
which were disproportionate to his lawful income during the said period
are ordered forfeited in favor of petitioner Republic of the Philippines.
Let this case be REMANDED to the Sandiganbayan for proper
determination of properties to be forfeited in petitioners favor.

98
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-20387 January 31, 1968
JESUS P. MORFE, plaintiff-appellee,
vs.
AMELITO R. MUTUC, as Executive Secretary, ET AL.,
defendants-appellants.
Jesus P. Morfe for and his own behalf as plaintiff-appellee.
Office of the Solicitor General for defendants-appellants.
FERNANDO, J.:
Congress in 1960 enacted the Anti-Graft and Corrupt Practices Act 1 to
deter public officials and employees from committing acts of dishonesty
and improve the tone of morality in public service. It was declared to be
the state policy "in line with the principle that a public office is a public
trust, to repress certain acts of public officers and private persons alike
which constitute graft or corrupt practices or which may lead thereto." 2
Nor was it the first statute of its kind to deal with such a grave problem
in the public service that unfortunately has afflicted the Philippines in
the post-war era. An earlier statute decrees the forfeiture in favor of the
State of any property found to have been unlawfully acquired by any
public officer or employee. 3
One of the specific provisions of the Anti-Graft and Corrupt Practices
Act of 1960 is that every public officer, either within thirty (30) days
after its approval or after his assumption of office "and within the month
of January of every other year thereafter", as well as upon the
termination of his position, shall prepare and file with the head of the
office to which he belongs, "a true detailed and sworn statement of
assets and liabilities, including a statement of the amounts and sources
of his income, the amounts of his personal and family expenses and the
amount of income taxes paid for the next preceding calendar: . . ." 4
In this declaratory relief proceeding, the periodical submission "within
the month of January of every other year thereafter" of such sworn
statement of assets and liabilities after an officer or employee had once
bared his financial condition upon assumption of office was challenged
for being violative of due process as an oppressive exercise of police
power and as an unlawful invasion of the constitutional right to privacy,
implicit in the ban against unreasonable search and seizure construed
together with the prohibition against self-incrimination. The lower court
in the decision appealed from sustained plaintiff, then as well as now, a
judge of repute of a court of first instance. For it, such requirement of
periodical submission of such sworn statement of assets and liabilities
exceeds the permissible limit of the police power and is thus offensive
to the due process clause.
We do not view the matter thus and accordingly reverse the lower court.
1. The reversal could be predicated on the absence of evidence to rebut
the presumption of validity. For in this action for declaratory relief filed
with the Court of First Instance of Pangasinan on January 31, 1962,
plaintiff, after asserting his belief "that it was a reasonable requirement
for employment that a public officer make of record his assets and
liabilities upon assumption of office and thereby make it possible
thereafter to determine whether, after assuming his position in the public
service, he accumulated assets grossly disproportionate to his reported
incomes, the herein plaintiff [having] filed within the period of time
fixed in the aforesaid Administrative Order No. 334 the prescribed
sworn statement of financial condition, assets, income and
liabilities, . . ." 5 maintained that the provision on the "periodical filing
of sworn statement of financial condition, assets, income and liabilities
after an officer or employee had once bared his financial condition,
upon assumption of office, is oppressive and unconstitutional." 6
99
As earlier noted, both the protection of due process and the assurance of
the privacy of the individual as may be inferred from the prohibition
against unreasonable search and seizure and self-incrimination were
relied upon. There was also the allegation that the above requirement
amounts to "an insult to the personal integrity and official dignity" of
public officials, premised as it is "on the unwarranted and derogatory
assumption" that they are "corrupt at heart" and unless thus restrained
by this periodical submission of the statements of "their financial
condition, income, and expenses, they cannot be trusted to desist from
committing the corrupt practices defined. . . ." 7 It was further asserted
that there was no need for such a provision as "the income tax law and
the tax census law also require statements which can serve to determine
whether an officer or employee in this Republic has enriched himself
out of proportion to his reported income." 8
Then on February 14, 1962, came an Answer of the then Executive
Secretary and the then Secretary of Justice as defendants, where after
practically admitting the facts alleged, they denied the erroneous
conclusion of law and as one of the special affirmative defenses set
forth: "1. That when a government official, like plaintiff, accepts a
public position, he is deemed to have voluntarily assumed the obligation
to give information about his personal affair, not only at the time of his
assumption of office but during the time he continues to discharge
public trust. The private life of an employee cannot be segregated from
his public life. . . ." 9 The answer likewise denied that there was a
violation of his constitutional rights against self-incrimination as well as
unreasonable search and seizure and maintained that "the provision of
law in question cannot be attacked on the ground that it impairs
plaintiff's normal and legitimate enjoyment of his life and liberty
because said provision merely seeks to adopt a reasonable measure of
insuring the interest or general welfare in honest and clean public
service and is therefore a legitimate exercise of the police power." 10
On February 27, 1962, plaintiff filed a Motion for judgment on the
pleadings as in his opinion all his material allegations were admitted.
Then on March 10, 1962, an order was issued giving the parties thirty
days within which to submit memoranda, but with or without them, the
case was deemed submitted for decision the lower court being of the
belief that "there is no question of facts, . . . the defendants [having
admitted] all the material allegations of the complaint." 11
The decision, now on appeal, came on July 19, 1962, the lower court
declaring "unconstitutional, null and void Section 7, Republic Act No.
3019, insofar as it required periodical submittal of sworn statements of
financial conditions, assets and liabilities of an official or employee of
the government after he had once submitted such a sworn statement
upon assuming office; . . . ." 12
In Ermita-Malate Hotel and Motel Operators Association v. The Mayor
of Manila, 13 it was the holding of this Court that in the absence of a
factual foundation, the lower court deciding the matter purely "on the
pleadings and the stipulation of facts, the presumption of validity must
prevail." In the present case likewise there was no factual foundation on
which the nullification of this section of the statute could be based.
Hence as noted the decision of the lower court could be reversed on that
ground.
A more extended consideration is not inappropriate however, for as
likewise made clear in the above Ermita-Malate Hotel case: "What
cannot be stressed sufficiently is that if the liberty involved were
freedom of the mind or the person, the standard for the validity of
governmental acts is much more rigorous and exacting, but where the
liberty curtailed affects at the most rights of property, the permissible
scope of regulatory measure is wider."
Moreover, in the Resolution denying the Motion for Reconsideration in
the above case, we expressly affirmed: "This is not to discount the
possibility of a situation where the nullity of a statute, executive order,
or ordinance may not be readily apparent but the threat to constitutional
rights, especially those involving the freedom of the mind, present and
ominous." 14 In such an event therefore, "there should not be a rigid
insistence on the requirement that evidence be presented." Also, in the
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same Resolution, Professor Freund was quoted thus: "In short, when
freedom of the mind is imperiled by law, it is freedom that commands a
momentum of respect; when property is imperiled, it is the lawmakers'
judgment that commands respect. This dual standard may not precisely
reverse the presumption of constitutionality in civil liberties cases, but
obviously it does set up a hierarchy of values within the due process
clause. 15
2. We inquire first whether or not by virtue of the above requirement for
a periodical submission of sworn statement of assets and liabilities,
there is an invasion of liberty protected by the due process clause.
Under the Anti-Graft Act of 1960, after the statement of policy, 16 and
definition of terms, 17 there is an enumeration of corrupt practices
declared unlawful in addition to acts or omissions of public officers
already penalized by existing law. They include persuading, inducing, or
influencing another public officer to perform an act constituting a
violation of rules and regulations duly promulgated by competent
authority or an offense in connection with the official duties of the latter,
or allowing himself to be persuaded, induced, or influenced to commit
such violation or offense; requesting or receiving directly or indirectly
any gift, present, share, percentage, or benefit, for himself, or for any
other person, in connection with any contract or transaction between the
government and any other party, wherein the public officer in his
official capacity, has to intervene under the law; requesting or receiving
directly or indirectly any gift, present, or other pecuniary or material
benefit, for himself or for another, from any person for whom the public
officer, in any manner or capacity, has secured or obtained, or will
secure or obtain, any Government permit or license, in consideration for
the help given or to be given; accepting or having any member of his
family accept employment in a private enterprise which has pending
official business with him during the pendency thereof or within one
year after its termination; causing any undue injury to any party,
including the Government, or giving any private party any unwarranted
benefits, advantage or preference in the discharge of his official
administrative or judicial functions through manifest partiality, evident
bad faith or gross inexcusable negligence; neglecting or refusing, after
due demand or request, without sufficient justification, to act within a
reasonable time on any matter pending before him for the purpose of
obtaining, directly or indirectly, from any person interested in the matter
some pecuniary or material benefit or advantage, or for the purpose of
favoring his own interest or giving undue advantage in favor of or
discriminating against any other interested party; entering, on behalf of
the Government, into any contract or transaction manifestly and grossly
disadvantageous to the same, whether or not the public officer profited
or will profit thereby; having directly or indirectly financial or pecuniary
interest in any business, contract or transaction in connection with
which he intervenes or takes part in his official capacity or in which he
is prohibited by the Constitution or by any law from having any
interests; becoming interested directly or indirectly, for personal gain, or
having a material interest in any transaction or act requiring the
approval of a board, panel or group of which he is a member, and which
exercises discretion in such approval, even if he votes against the same
or does not participate in such action; approving or granting knowingly
any license, permit, privilege or benefit in favor of any person not
qualified for or not legally entitled to such license, permit, privilege or
advantage, or of a mere representative or dummy of one who is not so
qualified or entitled and divulging valuable information of a confidential
character, acquired by his office or by him on account of his official
position to unauthorized persons, or releasing such information in
advance of its authorized release date. 18
After which come the prohibition on private individuals, 19 prohibition
on certain relatives, 20 and prohibition on Members of Congress. 21
Then there is this requirement of a statement of assets and liabilities,
that portion requiring periodical submission being challenged here. 22
The other sections of the Act deal with dismissal due to unexplained
wealth, reference being made to the previous statute, 23 penalties for
violation, 24 the vesting of original jurisdiction in the Court of First
Instance as the competent court, 25 the prescription of offenses, 26 the
prohibition against any resignation or retirement pending investigation,
criminal or administrative or pending a prosecution, 27 suspension and
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loss of benefits, 28 exception of unsolicited gifts or presents of small or
insignificant value as well as recognition of legitimate practice of one's
profession or trade or occupation, 29 the separability clause, 30 and its
effectivity. 31
Nothing can be clearer therefore than that the Anti-Graft Act of 1960
like the earlier statute 32 was precisely aimed at curtailing and
minimizing the opportunities for official corruption and maintaining a
standard of honesty in the public service. It is intended to further
promote morality in public administration. A public office must indeed
be a public trust. Nobody can cavil at its objective; the goal to be
pursued commands the assent of all. The conditions then prevailing
called for norms of such character. The times demanded such a remedial
device.
The statute was framed with that end in view. It is comprehensive in
character, sufficiently detailed and explicit to make clear to all and
sundry what practices were prohibited and penalized. More than that, an
effort was made, so evident from even a cursory perusal thereof, to
avoid evasions and plug loopholes. One such feature is the challenged
section. Thereby it becomes much more difficult by those disposed to
take advantage of their positions to commit acts of graft and corruption.
While in the attainment of such public good, no infringement of
constitutional rights is permissible, there must be a showing, clear,
categorical, and undeniable, that what the Constitution condemns, the
statute allows. More specifically, since that is the only question raised, is
that portion of the statute requiring periodical submission of assets and
liabilities, after an officer or employee had previously done so upon
assuming office, so infected with infirmity that it cannot be upheld as
valid?
Or, in traditional terminology, is this requirement a valid exercise of the
police power? In the aforesaid Ermita-Malate Hotel decision, 33 there is
a reaffirmation of its nature and scope as embracing the power to
prescribe regulations to promote the health, morals, education, good
order, safety, or the general welfare of the people. It has been negatively
put forth by Justice Malcolm as "that inherent and plenary power in the
state which enables it to prohibit all things hurtful to the comfort, safety
and welfare of society." 34
Earlier Philippine cases refer to police power as the power to promote
the general welfare and public interest; 35 to enact such laws in relation
to persons and property as may promote public health, public morals,
public safety and the general welfare of each inhabitant; 36 to preserve
public order and to prevent offenses against the state and to establish for
the intercourse of citizen with citizen those rules of good manners and
good neighborhood calculated to prevent conflict of rights. 37 In his
work on due process, Mott 38 stated that the term police power was first
used by Chief Justice Marshall. 39
As currently in use both in Philippine and American decisions then,
police power legislation usually has reference to regulatory measures
restraining either the rights to property or liberty of private individuals.
It is undeniable however that one of its earliest definitions, valid then as
well as now, given by Marshall's successor, Chief Justice Taney does not
limit its scope to curtailment of rights whether of liberty or property of
private individuals. Thus: "But what are the police powers of a State?
They are nothing more or less than the powers of government inherent
in every sovereignty to the extent of its dominions. And whether a State
passes a quarantine law, or a law to punish offenses, or to establish
courts of justice, or requiring certain instruments to be recorded, or to
regulate commerce within its own limits, in every case it exercises the
same power; that is to say, the power of sovereignty, the power to
govern men and things within the limits of its domain." 40 Text writers
like Cooley and Burdick were of a similar mind. 41
What is under consideration is a statute enacted under the police power
of the state to promote morality in public service necessarily limited in
scope to officialdom. May a public official claiming to be adversely
affected rely on the due process clause to annul such statute or any
portion thereof? The answer must be in the affirmative. If the police
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power extends to regulatory action affecting persons in public or private
life, then anyone with an alleged grievance can invoke the protection of
due process which permits deprivation of property or liberty as long as
such requirement is observed.
While the soundness of the assertion that a public office is a public trust
and as such not amounting to property in its usual sense cannot be
denied, there can be no disputing the proposition that from the
standpoint of the security of tenure guaranteed by the Constitution the
mantle of protection afforded by due process could rightfully be
invoked. It was so implicitly held in Lacson v. Romero, 42 in line with
the then pertinent statutory provisions 43 that procedural due process in
the form of an investigation at which he must be given a fair hearing and
an opportunity to defend himself must be observed before a civil service
officer or employee may be removed. There was a reaffirmation of the
view in even stronger language when this Court through Justice Tuason
in Lacson v. Roque 44 declared that even without express provision of
law, "it is established by the great weight of authority that the power of
removal or suspension for cause can not, except by clear statutory
authority, be exercised without notice and hearing." Such is likewise the
import of a statement from the then Justice, now Chief Justice,
Concepcion, speaking for the Court in Meneses v. Lacson; 45 "At any
rate, the reinstatement directed in the decision appealed from does not
bar such appropriate administrative action as the behaviour of
petitioners herein may warrant, upon compliance with the requirements
of due process."
To the same effect is the holding of this Court extending the mantle of
the security of tenure provision to employees of government-owned or
controlled corporations entrusted with governmental functions when
through Justice Padilla in Tabora v. Montelibano, 46 it stressed: "That
safeguard, guarantee, or feeling of security that they would hold their
office or employment during good behavior and would not be dismissed
without justifiable cause to be determined in an investigation, where an
opportunity to be heard and defend themselves in person or by counsel
is afforded them, would bring about such a desirable condition."
Reference was there made to promoting honesty and efficiency through
an assurance of stability in their employment relation. It was to be
expected then that through Justice Labrador in Unabia v. City Mayor, 47
this Court could categorically affirm: "As the removal of petitioner was
made without investigation and without cause, said removal is null and
void. . . ."
It was but logical therefore to expect an explicit holding of the
applicability of due process guaranty to be forthcoming. It did in
Cammayo v. Viña, 48 where the opinion of Justice Endencia for the
Court contained the following unmistakable language: "Evidently,
having these facts in view, it cannot be pretended that the constitutional
provision of due process of law for the removal of the petitioner has not
been complied with."
Then came this restatement of the principle from the pen of Justice
J.B.L. Reyes "We are thus compelled to conclude that the positions
formerly held by appellees were not primarily confidential in nature so
as to make their terms of office co-terminal with the confidence reposed
in them. The inevitable corollary is that respondents-appellees, Leon
Piñero, et al., were not subject to dismissal or removal, except for cause
specified by law and within due process. . . ." 49 In a still later decision,
Abaya v. Subido, 50 this Court, through Justice Sanchez, emphasized
"that the vitality of the constitutional principle of due process cannot be
allowed to weaken by sanctioning cancellation" of an employee's
eligibility or "of his dismissal from service — without hearing — upon
a doubtful assumption that he has admitted his guilt for an offense
against Civil Service rules." Equally emphatic is this observation from
the same case: "A civil service employee should be heard before he is
condemned. Jurisprudence has clung to this rule with such unrelenting
grasp that by now it would appear trite to make citations thereof."
If as is so clearly and unequivocally held by this Court, due process may
be relied upon by public official to protect the security of tenure which
in that limited sense is analogous to property, could he not likewise avail
himself of such constitutional guarantee to strike down what he
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considers to be an infringement of his liberty? Both on principle, reason
and authority, the answer must be in the affirmative. Even a public
official has certain rights to freedom the government must respect. To
the extent then, that there is a curtailment thereof, it could only be
permissible if the due process mandate is not disregarded.
Since under the constitutional scheme, liberty is the rule and restraint
the exception, the question raised cannot just be brushed aside. In a
leading Philippine case, Rubi v. Provincial Board, 51 liberty as
guaranteed by the Constitution was defined by Justice Malcolm to
include "the right to exist and the right to be free from arbitrary personal
restraint or servitude. The term cannot be dwarfed into mere freedom
from physical restraint of the person of the citizen, but is deemed to
embrace the right of man to enjoy the facilities with which he has been
endowed by his Creator, subject only to such restraint as are necessary
for the common welfare." In accordance with this case therefore, the
rights of the citizens to be free to use his faculties in all lawful ways; to
live and work where he will; to earn his livelihood by any lawful
calling; to pursue any avocation, are all deemed embraced in the concept
of liberty. This Court in the same case, however, gave the warning that
liberty as understood in democracies, is not license. Implied in the term
is restraint by law for the good of the individual and for the greater
good, the peace and order of society and the general well-being. No one
can do exactly as he pleases. Every man must renounce unbridled
license. In the words of Mabini as quoted by Justice Malcolm, "liberty is
freedom to do right and never wrong; it is ever guided by reason and the
upright and honorable conscience of the individual."
The liberty to be safeguarded is, as pointed out by Chief Justice Hughes,
liberty in a social organization, 52 implying the absence of arbitrary
restraint not immunity from reasonable regulations and prohibitions
imposed in the interest of the community. 53 It was Linton's view that
"to belong to a society is to sacrifice some measure of individual liberty,
no matter how slight the restraints which the society consciously
imposes." 54 The above statement from Linton however, should be
understood in the sense that liberty, in the interest of public health,
public order or safety, of general welfare, in other words through the
proper exercise of the police power, may be regulated. The individual
thought, as Justice Cardozo pointed out, has still left a "domain of free
activity that cannot be touched by government or law at all, whether the
command is specially against him or generally against him and others."
55
Is this provision for a periodical submission of sworn statement of assets
and liabilities after he had filed one upon assumption of office beyond
the power of government to impose? Admittedly without the challenged
provision, a public officer would be free from such a requirement. To
the extent then that there is a compulsion to act in a certain way, his
liberty is affected. It cannot be denied however that under the
Constitution, such a restriction is allowable as long as due process is
observed.
The more crucial question therefore is whether there is an observance of
due process. That leads us to an inquiry into its significance. "There is
no controlling and precise definition of due process. It furnishes though
a standard to which governmental action should conform in order that
deprivation of life, liberty or property, in each appropriate case, be valid.
What then is the standard of due process which must exist both as a
procedural and as substantive requisite to free the challenged ordinance,
or any action for that matter, from the imputation of legal infirmity
sufficient to spell its doom? It is responsiveness to the supremacy of
reason, obedience to the dictates of justice. Negatively put, arbitrariness
is ruled out and unfairness avoided. To satisfy the due process
requirement, official action, to paraphrase Cardozo, must not outrun the
bounds of reason and result in sheer oppression. Due process is thus
hostile to any official action marred by lack of reasonableness. Correctly
has it been identified as freedom from arbitrariness. It is the
embodiment of the sporting idea of fair play. It exacts fealty 'to those
strivings for justice' and judges the act of officialdom of whatever
branch 'in the light of reason drawn from considerations of fairness that
reflect [democratic] traditions of legal and political thought.' It is not a
narrow or 'technical conception with fixed content unrelated to time,
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place and circumstances,' decisions based on such a clause requiring a
'close and perceptive inquiry into fundamental principles of our society.'
Questions of due process are not to be treated narrowly or pedantically
in slavery to form or phrases." 56
It would be to dwell in the realm of abstractions and to ignore the harsh
and compelling realities of public service with its ever-present
temptation to heed the call of greed and avarice to condemn as arbitrary
and oppressive a requirement as that imposed on public officials and
employees to file such sworn statement of assets and liabilities every
two years after having done so upon assuming office. The due process
clause is not susceptible to such a reproach. There was therefore no
unconstitutional exercise of police power.
4. The due process question touching on an alleged deprivation of
liberty as thus resolved goes a long way in disposing of the objections
raised by plaintiff that the provision on the periodical submission of a
sworn statement of assets and liabilities is violative of the constitutional
right to privacy. There is much to be said for this view of Justice
Douglas: "Liberty in the constitutional sense must mean more than
freedom from unlawful governmental restraint; it must include privacy
as well, if it is to be a repository of freedom. The right to be let alone is
indeed the beginning of all freedom." 57 As a matter of fact, this right to
be let alone is, to quote from Mr. Justice Brandeis "the most
comprehensive of rights and the right most valued by civilized men." 58
The concept of liberty would be emasculated if it does not likewise
compel respect for his personality as a unique individual whose claim to
privacy and interference demands respect. As Laski so very aptly stated:
"Man is one among many, obstinately refusing reduction to unity. His
separateness, his isolation, are indefeasible; indeed, they are so
fundamental that they are the basis on which his civic obligations are
built. He cannot abandon the consequences of his isolation, which are,
broadly speaking, that his experience is private, and the will built out of
that experience personal to himself. If he surrenders his will to others,
he surrenders his personality. If his will is set by the will of others, he
ceases to be master of himself. I cannot believe that a man no longer
master of himself is in any real sense free." 59
Nonetheless, in view of the fact that there is an express recognition of
privacy, specifically that of communication and correspondence which
"shall be inviolable except upon lawful order of Court or when public
safety and order" 60 may otherwise require, and implicitly in the search
and seizure clause, 61 and the liberty of abode 62 the alleged
repugnancy of such statutory requirement of further periodical
submission of a sworn statement of assets and liabilities deserves to be
further looked into.
In that respect the question is one of first impression, no previous
decision having been rendered by this Court. It is not so in the United
States where, in the leading case of Griswold v. Connecticut, 63 Justice
Douglas, speaking for five members of the Court, stated: "Various
guarantees create zones of privacy. The right of association contained in
the penumbra of the First Amendment is one, as we have seen. The
Third Amendment in its prohibition against the quartering of soldiers 'in
any house' in time of peace without the consent of the owner is another
facet of that privacy. The Fourth Amendment explicitly affirms the 'right
of the people to be secure in their persons, houses, papers, and effects,
against unreasonable searches and seizures.' The Fifth Amendment in its
Self-Incrimination Clause enables the citizen to create a zone of privacy
which government may not force him to surrender to his detriment. The
Ninth Amendment provides: 'The enumeration in the Constitution, of
certain rights, shall not be construed to deny or disparage others retained
by the people." After referring to various American Supreme Court
decisions, 64 Justice Douglas continued: "These cases bear witness that
the right of privacy which presses for recognition is a legitimate one."
The Griswold case invalidated a Connecticut statute which made the use
of contraceptives a criminal offense on the ground of its amounting to
an unconstitutional invasion of the right of privacy of married persons;
rightfully it stressed "a relationship lying within the zone of privacy
created by several fundamental constitutional guarantees." 65 It has
105
wider implications though. The constitutional right to privacy has come
into its own.1äwphï1.ñët
So it is likewise in our jurisdiction. The right to privacy as such is
accorded recognition independently of its identification with liberty; in
itself, it is fully deserving of constitutional protection. The language of
Prof. Emerson is particularly apt: "The concept of limited government
has always included the idea that governmental powers stop short of
certain intrusions into the personal life of the citizen. This is indeed one
of the basic distinctions between absolute and limited government.
Ultimate and pervasive control of the individual, in all aspects of his
life, is the hallmark of the absolute state. In contrast, a system of limited
government, safeguards a private sector, which belongs to the
individual, firmly distinguishing it from the public sector, which the
state can control. Protection of this private sector — protection, in other
words, of the dignity and integrity of the individual — has become
increasingly important as modern society has developed. All the forces
of a technological age — industrialization, urbanization, and
organization — operate to narrow the area of privacy and facilitate
intrusion into it. In modern terms, the capacity to maintain and support
this enclave of private life marks the difference between a democratic
and a totalitarian society." 66
Even with due recognition of such a view, it cannot be said that the
challenged statutory provision calls for disclosure of information which
infringes on the right of a person to privacy. It cannot be denied that the
rational relationship such a requirement possesses with the objective of
a valid statute goes very far in precluding assent to an objection of such
character. This is not to say that a public officer, by virtue of a position
he holds, is bereft of constitutional protection; it is only to emphasize
that in subjecting him to such a further compulsory revelation of his
assets and liabilities, including the statement of the amounts and sources
of income, the amounts of personal and family expenses, and the
amount of income taxes paid for the next preceding calendar year, there
is no unconstitutional intrusion into what otherwise would be a private
sphere.
5. Could it be said, however, as plaintiff contends, that insofar as the
challenged provision requires the periodical filing of a sworn statement
of financial condition, it would be violative of the guarantees against
unreasonable search and seizure and against self-incrimination?
His complaint cited on this point Davis v. United States. 67 In that case,
petitioner Davis was convicted under an information charging him with
unlawfully having in his possession a number of gasoline ration coupons
representing so many gallons of gasoline, an offense penalized under a
1940 statute. 68 He was convicted both in the lower court and in the
Circuit Court of Appeals over the objection that there was an unlawful
search which resulted in the seizure of the coupons and that their use at
the trial was in violation of Supreme Court decisions. 69 In the District
Court, there was a finding that he consented to the search and seizure.
The Circuit Court of Appeals did not disturb that finding although
expressed doubt concerning it, affirming however under the view that
such seized coupons were properly introduced in evidence, the search
and seizure being incidental to an arrest, and therefore reasonable
regardless of petitioner's consent.
In affirming the conviction the United States Supreme Court, through
Justice Douglas emphasized that the Court was dealing in this case "not
with private papers or documents, but with gasoline ration coupons
which never became the private property of the holder but remained at
all times the property of the government and subject to inspection and
recall by it." 70 He made it clear that the opinion was not to be
understood as suggesting "that officers seeking to reclaim government
property may proceed lawlessly and subject to no restraints. Nor [does
it] suggest that the right to inspect under the regulations subjects a
dealer to a general search of his papers for the purpose of learning
whether he has any coupons subject to inspection and seizure. The
nature of the coupons is important here merely as indicating that the
officers did not exceed the permissible limits of persuasion in obtaining
them." 71
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True, there was a strong dissenting opinion by Justice Frankfurter in
which Justice Murphy joined, critical of what it considered "a process of
devitalizing interpretation" which in this particular case gave approval
"to what was done by arresting officers" and expressing the regret that
the Court might be "in danger of forgetting what the Bill of Rights
reflects experience with police excesses."
Even this opinion, however, concerned that the constitutional guarantee
against unreasonable search and seizure "does not give freedom from
testimonial compulsion. Subject to familiar qualifications every man is
under obligation to give testimony. But that obligation can be exacted
only under judicial sanctions which are deemed precious to Anglo-
American civilization. Merely because there may be the duty to make
documents available for litigation does not mean that police officers
may forcibly or fraudulently obtain them. This protection of the right to
be let alone except under responsible judicial compulsion is precisely
what the Fourth Amendment meant to express and to safeguard." 72
It would appear then that a reliance on that case for an allegation that
this statutory provision offends against the unreasonable search and
seizure clause would be futile and unavailing. This is the more so in the
light of the latest decision of this Court in Stonehill v. Diokno, 73 where
this Court, through Chief Justice Concepcion, after stressing that the
constitutional requirements must be strictly complied with, and that it
would be "a legal heresy of the highest order" to convict anybody of a
violation of certain statutes without reference to any of its determinate
provisions delimited its scope as "one of the most fundamental rights
guaranteed in our Constitution," safeguarding "the sanctity, of the
domicile and the privacy of communication and correspondence. . . ."
Such is precisely the evil sought to be remedied by the constitutional
provision above quoted — to outlaw the so-called general warrants.
It thus appears clear that no violation of the guarantee against
unreasonable search and seizure has been shown to exist by such
requirement of further periodical submission of one's financial condition
as set forth in the Anti-Graft Act of 1960.
Nor does the contention of plaintiff gain greater plausibility, much less
elicit acceptance, by his invocation of the non-incrimination clause.
According to the Constitution: "No person shall be compelled to be a
witness against himself." 74 This constitutional provision gives the
accused immunity from any attempt by the prosecution to make easier
its task by coercing or intimidating him to furnish the evidence
necessary to convict. He may confess, but only if he voluntarily wills it.
He may admit certain facts but only if he freely chooses to.75 Or he
could remain silent, and the prosecution is powerless to compel him to
talk. 76 Proof is not solely testimonial in character. It may be
documentary. Neither then could the accused be ordered to write, when
what comes from his pen may constitute evidence of guilt or innocence.
77 Moreover, there can be no search or seizure of his house, papers or
effects for the purpose of locating incriminatory matter. 78
In a declaratory action proceeding then, the objection based on the
guaranty against self-incrimination is far from decisive. It is well to note
what Justice Tuason stated: "What the above inhibition seeks to
[prevent] is compulsory disclosure of incriminating facts." 79
Necessarily then, the protection it affords will have to await, in the
language of Justice J. B. L. Reyes, the existence of actual cases, "be
they criminal, civil or administrative." 80 Prior to such a stage, there is
no pressing need to pass upon the validity of the fear sincerely voiced
that there is an infringement of the non-incrimination clause. What was
said in an American State decision is of relevance. In that case, a
statutory provision requiring any person operating a motor vehicle, who
knows that injury has been caused a person or property, to stop and give
his name, residence, and his license number to the injured party or to a
police officer was sustained against the contention that the information
thus exacted may be used as evidence to establish his connection with
the injury and therefore compels him to incriminate himself. As was
stated in the opinion: "If the law which exacts this information is
invalid, because such information, although in itself no evidence of
guilt, might possibly lead to a charge of crime against the informant,
then all police regulations which involve identification may be
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questioned on the same ground. We are not aware of any constitutional on the validity of the challenged provision likewise insofar as there may
provision designed to protect a man's conduct from judicial inquiry or be objections, even if valid and cogent on its wisdom cannot be
aid him in fleeing from justice. But, even if a constitutional right be sustained.
involved, it is not necessary to invalidate the statute to secure its
protection. If, in this particular case, the constitutional privilege justified WHEREFORE, the decision of the lower court of July 19, 1962
the refusal to give the information exacted by the statute, that question "declaring unconstitutional, null and void Section 7, Republic Act No.
can be raised in the defense to the pending prosecution. Whether it 3019, insofar as it requires periodical submittal of sworn statements of
would avail, we are not called upon to decide in this proceeding." 81 financial conditions, assets and liabilities of an official or employee of
the government after he had once submitted such a sworn statement . . .
6. Nor could such a provision be nullified on the allegation that it is reversed." Without costs.
constitutes "an insult to the personal integrity and official dignity" of
public officials. On its face, it cannot thus be stigmatized. As to its being Concepcion, C.J., Reyes, J.B.L., Makalintal, Bengzon, J.P., Zaldivar and
unnecessary, it is well to remember that this Court, in the language of Angeles, JJ., concur.
Justice Laurel, "does not pass upon questions of wisdom, justice or Sanchez, J., reserves his vote.
expediency of legislation." 82 As expressed by Justice Tuason: "It is not Castro, J., concurs in the result.
the province of the courts to supervise legislation and keep it within the
bounds of propriety and common sense. That is primarily and
exclusively a legislative concern." 83 There can be no possible objection
then to the observation of Justice Montemayor: "As long as laws do not
violate any Constitutional provision, the Courts merely interpret and
apply them regardless of whether or not they are wise or salutary." 84
For they, according to Justice Labrador, "are not supposed to override
legitimate policy and . . . never inquire into the wisdom of the law." 85

It is thus settled, to paraphrase Chief Justice Concepcion in Gonzales v.

Commission on Elections, 86 that only congressional power or
competence, not the wisdom of the action taken may be the basis for
declaring a statute invalid. This is as it ought to be. The principle of
separation of powers has in the main wisely allocated the respective
authority of each department and confined its jurisdiction to such a
sphere. There would then be intrusion not allowable under the
Constitution if on a matter left to the discretion of a coordinate branch,
the judiciary would substitute its own. If there be adherence to the rule
of law, as there ought to be, the last offender should be courts of justice,
to which rightly litigants submit their controversy precisely to maintain
unimpaired the supremacy of legal norms and prescriptions. The attack

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