Republic of the Philippines

SUPREME COURT
Manila

SECOND DIVISION

G.R. No. 119619 December 13, 1996

RICHARD HIZON, SILVERIO GARGAR, ERNESTO ANDAYA, NEMESIO GABO, RODRIGO ABRERA,
CHEUNG TAI FOOK, SHEK CHOR LUK, EFREN DELA PENA, JONEL AURELIO, GODOFREDO VILLAVERDE,
ANGELITO DUMAYBAG, DEOMEDES ROSIL, AMADO VILLANUEVA, FRANCISCO ESTREMOS, ANGEL
VILLAVERDE, NEMESIO CASAMPOL, RICHARD ESTREMOS, JORNIE DELA PENA, JESUS MACTAN,
MARLON CAMPORAZO, FERNANDO BIRING, MENDRITO CARPO, LUIS DUARTE, JOSEPH AURELIO,
RONNIE JUEZAN, BERNARDO VILLACARLOS, RICARDO SALES, MARLON ABELLA, TEODORO DELOS
REYES, IGNACIO ABELLA, JOSEPH MAYONADO, JANAIRO LANGUYOD, DODONG DELOS REYES, JOLLY
CABALLERO and ROPLANDO ARCENAS, petitioners,
vs.
HONORABLE COURT OF APPEALS and THE PEOPLE OF THE PHILIPPINES, respondents.

PUNO, J.:p

This is a petition for review on certiorari of the decision of the Court of Appeals in CA-G.R. CR No. 15417 affirming the decision of the Regional Trial
Court, Branch 52, Palawan in Criminal Case No. 10429 convicting petitioners of the offense of illegal fishing with the use of obnoxious or poisonous substance
penalized under Presidential Decree (P.D.) No. 704, the Fisheries Decree of 1975.

In an Information dated October 15, 1992, petitioners were charged with a violation of P.D. 704 committed as
follows:

That on or about the 30th day of September 1992, at Brgy. San Rafael, Puerto Princesa City,
Philippines and within the jurisdiction of this Honorable Court, the above-named accused crew
members and fishermen of F/B Robinson owned by First Fishermen Fishing Industries, Inc.,
represented by Richard Hizon, a domestic corporation duly organized under the laws of the
Philippines, being then the owner, crew members and fishermen of F/B Robinson and with the use
of said fishing boat, did then and there wilfully, unlawfully and feloniously the said accused
conspiring and confederating together and mutually helping one another catch, take or gather or
cause to be caught, taken or gathered fish or fishery aquatic products in the coastal waters of Puerto
Princess City, Palawan, with the use of obnoxious or poisonous substance (sodium cyanide), of
more or less one (1) ton of assorted live fishes which were illegally caught thru the use of
obnoxious/poisonous substance (sodium cyanide). 1

The following facts were established by the prosecution: In September 1992, the Philippine National Police
(PNP) Maritime Command of Puerto Princesa City, Palawan received reports of illegal fishing operations in the
coastal waters of the city. In response to these reports, the city mayor organized Task Force Bantay Dagat to assist
the police in the detection and apprehension of violators of the laws on fishing.

On September 30, 1992 at about 2:00 in the afternoon, the Task Force Bantay Dagat reported to the PNP
Maritime Command that a boat and several small crafts were fishing by "muro ami" within the shoreline of Barangay
San Rafael of Puerto Princesa. The police, headed by SPO3 Romulo Enriquez, and members of the Task Force
Bantay Dagat, headed by Benito Marcelo, Jr., immediately proceeded to the area and found several men fishing in
motorized sampans and a big fishing boat identified as F/B Robinson within the seven-kilometer shoreline of the
city. They boarded the F/B Robinson and inspected the boat with the acquiescence of the boat captain, Silverio
Gargar. In the course of their inspection, the police saw two foreigners in the captain's deck. SP03 Enriquez
examined their passports and found them to be mere photocopies. The police also discovered a large aquarium full
of live lapu-lapu and assorted fish weighing approximately one ton at the bottom of the boat. 2 They checked the
license of the boat and its fishermen and found them to be in order. Nonetheless, SP03 Enriquez brought the boat
captain, the crew and the fishermen to Puerto Princesa for further investigation.

At the city harbor, members of the Maritime Command were ordered by SP03 Enriquez to guard the F/B
Robinson. The boat captain and the two foreigners were again interrogated at the PNP Maritime Command office.
Thereafter, an Inspection/Apprehension Report was prepared and the boat, its crew and fishermen were charged
with the following violations:

1. Conducting fishing operations within Puerto Princesa coastal waters without mayor's
permit;

2. Employing excess fishermen on board (Authorized — 26; On board — 36);

3. Two (2) Hongkong nationals on board without original passports. 3

The following day, October 1, 1992, SPO3 Enriquez directed the boat captain to get random samples of fish
from the fish cage of F/B Robinson for laboratory examination. As instructed, the boat engineer, petitioner Ernesto
Andaya, delivered to the Maritime Office four (4) live lapu-lapu fish inside a plastic shopping bag filled with water.
SPO3 Enriquez received the fish and in the presence of the boat engineer and captain, placed them inside a large
transparent plastic bag without water. He sealed the plastic with heat from a lighter. 4

The specimens were brought to the National Bureau of Investigation (NBI) sub-office in the city for
examination "to determine the method of catching the same for record or evidentiary purposes." 5 They were
received at the NBI office at 8:00 in the evening of the same day. The receiving clerk, Edna Capicio, noted that the
fish were dead and she placed the plastic bag with the fish inside the office freezer to preserve them. Two days
later, on October 3, 1992, the chief of the NBI sub-office, Onos Mangotara, certified the specimens for laboratory
examination at the NBI Head Office in Manila. The fish samples were to be personally transported by Edna Capicio
who was then scheduled to leave for Manila for her board examination in Criminology. 6 On October 4, 1992, Ms.
Capicio, in the presence of her chief, took the plastic with the specimens from the freezer and placed them inside
two shopping bags and sealed them with masking tape. She proceeded to her ship where she placed the specimens
in the ship's freezer.

Capicio arrived in Manila the following day, October 5, 1992 and immediately brought the specimens to the
NBI Head Office. On October 7, 1992, NBI Forensic Chemist Emilia Rosaldes conducted two tests on the fish
samples and found that they contained sodium cyanide, thus:

FINDINGS:

Weight of Specimen. . . . . . 1.870 kilograms

Examinations made on the above-mentioned
specimen gave POSITIVE RESULTS to the
test for the presence of SODIUM CYANIDE. . . .

REMARKS:

Sodium Cyanide is a violent poison. 7

In light of these findings, the PNP Maritime Command of Puerto Princesa City filed the complaint at bar
against the owner and operator of the F/B Robinson, the First Fishermen Fishing Industries, Inc., represented by
herein petitioner Richard Hizon, the boat captain, Silverio Gargar, the boat engineer, Ernesto Andaya, two other
crew members, the two Hongkong nationals and 28 fishermen of the said boat.

Petitioners were arraigned and they pled not guilty to the charge. As defense, they claimed that they are
legitimate fishermen of the First Fishermen Industries, Inc., a domestic corporation licensed to engage in fishing.
They alleged that they catch fish by the hook and line method and that they had used this method for one month
and a half in the waters of Cuyo Island. They related that on September 30, 1992 at about 7:00 A.M., they anchored
the F/B Robinson in the east of Podiado Island in Puerto Princesa City. The boat captain and the fishermen took out
and boarded their sampans to fish for their food. They were still fishing in their sampans at 4:00 P.M. when a rubber
boat containing members of the PNP Maritime Command and the Task Force Bantay Dagat approached them and
boarded the F/B Robinson. The policemen were in uniform while the Bantay Dagat personnel were in civilian
clothes. They were all armed with guns. One of the Bantay Dagat personnel introduced himself as Commander Jun
Marcelo and he inspected the boat and the boat's documents. Marcelo saw the two foreigners and asked for their
passports. As their passports were photocopies, Marcelo demanded for their original. The captain explained that the
original passports were with the company's head office in Manila. Marcelo angrily insisted for the originals and
threatened to arrest everybody. He then ordered the captain, his crew and the fishermen to follow him to Puerto
Princesa. He held the magazine of his gun and warned the captain "Sige, huwag kang tatakas, kung hindi babarilin
ko kayo!" 8 The captain herded all his men into the boat and followed Marcelo and the police to Puerto Princesa.

They arrived at the city harbor at 7:45 in the evening and were met by members of the media. As instructed
by Marcelo, the members of the media interviewed and took pictures of the boat and the fishermen. 9

The following day, October 1, 1992, at 8:00 in the morning, Amado Villanueva, one of the fishermen at the
F/B Robinson, was instructed by a policeman guarding the boat to get five (5) fish samples from the fish cage and
bring them to the pier. Villanueva inquired whether the captain knew about the order but the guard replied he was
taking responsibility for it. Villanueva scooped five pieces of lapu-lapu, placed them inside a plastic bag filled with
water and brought the bag to the pier. The boat engineer, Ernesto Andaya, received the fish and delivered them to
the PNP Maritime Office. Nobody was in the office and Andaya waited for the apprehending officers and the boat
captain. Later, one of the policemen in the office instructed him to leave the bag and hang it on a nail in the wall.
Andaya did as he was told and returned to the boat at 10:00 A.M. 10

In the afternoon of the same day, the boat captain arrived at the Maritime office. He brought along a
representative from their head office in Manila who showed the police and the Bantay Dagat personnel the original
passports of the Hongkong nationals and other pertinent documents of the F/B Robinson and its crew. Finding the
documents in order, Marcelo approached the captain and whispered to him "Tandaan mo ito, kapitan, kung
makakaalis ka dito, magkikita pa rin uli tayo sa dagat, kung hindi kayo lulubog ay palulutangin ko kayo!" It was then
that SP03 Enriquez informed the captain that some members of the Maritime Command, acting under his
instructions, had just taken five (5) pieces of lapu-lapu from the boat. SP03 Enriquez showed the captain the fish
samples. Although the captain saw only four (4) pieces of lapu-lapu, he did not utter a word of protest. 11 Under
Marcelo's threat, he signed the "Certification" that he received only four (4) pieces of the fish. 12

Two weeks later, the information was filed against petitioners. The case was prosecuted against thirty-one
(31) of the thirty-five (35) accused. Richard Hizon remained at large while the whereabouts of Richard Estremos,
Marlon Camporazo and Joseph Aurelio were unknown.

On July 9, 1993, the trial court found the thirty one (31) petitioners guilty and sentenced them to
imprisonment for a minimum of eight (8) years and one (1) day to a maximum of nine (9) years and four (4) months.
The court also ordered the confiscation and forfeiture of the F/B Robinson, the 28 sampans and the ton of assorted
live fishes as instruments and proceeds of the offense, thus:

WHEREFORE, premises considered, judgment is hereby rendered finding the accused

SILVERIO GARGAR, ERNESTO ANDAYA, NEMESIO GABO, RODRIGO ABRERA, CHEUNG TAI
FOOK, SHEK CHOR LUK, EFREN DELA PENA, JONEL AURELIO, GODOFREDO VILLAVERDE,
ANGELITO DUMAYBAG, DEOMEDES ROSIL, AMADO VILLANUEVA, FRANCISCO ESTREMOS,
ARNEL VILLAVERDE, NEMESIO CASAMPOL, JORNIE DELA CRUZ, JESUS MACTAN,
FERNANDO BIRING, MENDRITO CARPO, LUIS DUARTE, RONNIE JUEZAN, BERNARDO
VLLLACARLOS, RICARDO SALES, MARLON ABELLA, TEODORO DELOS REYES, IGNACIO
ABELLA, JOSEPH MAYONADO, JANAIRO LANGUYOD, DODONG DELOS REYES, ROLANDO
ARCENAS and JOLLY CABALLERO guilty beyond reasonable doubt of the crime of Illegal Fishing
with the use of obnoxious or poisonous substance commonly known as sodium cyanide, committed
in violation of section 33 and penalized in section 38 of Presidential Decree No. 704, as amended,
and there being neither mitigating nor aggravating circumstances appreciated and applying the
provisions of the Indeterminate Sentence Law, each of the aforenamed accused is sentenced to an
indeterminate penalty of imprisonment ranging from a minimum of EIGHT (8) YEARS and ONE (1)
DAY to a maximum of NINE (9) YEARS and FOUR (4) MONTHS and to pay the costs.
 Pursuant to the provisions of Article 45, in relation to the second sentence of Article 10 of the Revised Penal
Code, as amended:

a) Fishing Boat (F/B) Robinson;

b) The 28 motorized fiberglass sampans; and

c) The live fishes in the fish cages installed in the F/B Robinson, all of which have been
respectively shown to be tools or instruments and proceeds of the offense, are hereby ordered
confiscated and declared forfeited in favor of the government.

SO ORDERED. 13

On appeal, the Court of Appeals affirmed the decision of the trial court. Hence, this petition.

Petitioners contend that:

THE HONORABLE COURT OF APPEALS ERRED IN HOLDING THAT THE MERE

"POSITIVE RESULTS TO THE TEST FOR THE PRESENCE OF SODIUM CYANIDE" IN THE FISH
SPECIMEN, ALBEIT ILLEGALLY SEIZED ON THE OCCASION OF A WARRANTLESS SEARCH
AND ARREST, IS ADMISSIBLE AND SUFFICIENT BASIS FOR THE PETITIONERS' CONVICTION
OF THE CRIME OF ILLEGAL FISHING.

II

THE HONORABLE COURT OF APPEALS ERRED IN NOT HOLDING THAT THE

STATUTORY PRESUMPTION OF GUILT UNDER SEC. 33 OF PRESIDENTIAL DECREE NO. 704
CANNOT PREVAIL AGAINST THE CONSTITUTIONAL PRESUMPTION OF INNOCENCE, SUCH
THAT THE GRAVAMEN OF THE OFFENSE OF ILLEGAL FISHING MUST STILL BE PROVED
BEYOND REASONABLE DOUBT.

III

THE HONORABLE COURT OF APPEALS ERRED IN NOT REVERSING THE JUDGMENT

OF THE TRIAL COURT AND ACQUITTING THE PETITIONERS. 14

The Solicitor General submitted a "Manifestation in Lieu of Comment" praying for petitioners' acquittal. 15

The petitioners, with the concurrence of the Solicitor General, primarily question the admissibility of the
evidence against petitioners in view of the warrantless search of the fishing boat and the subsequent arrest of
petitioners. More concretely, they contend that the NBI finding of sodium cyanide in the fish specimens should not
have been admitted and considered by the trial court because the fish samples were seized from the F/B Robinson
without a search warrant.

Our Constitution proscribes search and seizure and the arrest of persons without a judicial warrant. 16 As a
general rule, any evidence obtained without a judicial warrant is inadmissible for any purpose in any proceeding.
The rule is, however, subject to certain exceptions. Some of these are: 17 (1) a search incident to a lawful of
arrest; 18 (2) seizure of evidence in plain view; (3) search of a moving motor vehicle; 19 and (4) search in violation of
customs laws. 20

Search and seizure without search warrant of vessels and aircrafts for violations of customs laws have been
the traditional exception to the constitutional requirement of a search warrant. It is rooted on the recognition that a
vessel and an aircraft, like motor vehicles, can be quickly moved out of the locality or jurisdiction in which the search
warrant must be sought and secured. Yielding to this reality, judicial authorities have not required a search warrant
of vessels and aircrafts before their search and seizure can be constitutionally effected. 21
 The same exception ought to apply to seizures of fishing vessels and boats breaching our fishery laws.
These vessels are normally powered by high-speed motors that enable them to elude arresting ships of the
Philippine Navy, the Coast Guard and other government authorities enforcing our fishery laws. 22

We thus hold as valid the warrantless search on the F/B Robinson, a fishing boat suspected of having
engaged in illegal fishing. The fish and other evidence seized in the course of the search were properly admitted by
the trial court. Moreover, petitioners failed to raise the issue during trial and hence, waived
their right to question any irregularity that may have attended the said search and seizure. 23

Given the evidence admitted by the trial court, the next question now is whether petitioners are guilty of the
offense of illegal fishing with the use of poisonous substances. Again, the petitioners, joined by the Solicitor General,
submit that the prosecution evidence cannot convict them.

We agree.

Petitioners were charged with illegal fishing penalized under sections 33 and 38 of P.D. 704 24 which provide
as follows:

Sec. 33. Illegal fishing, illegal possession of explosives intended for illegal fishing; dealing in
illegally caught fish or fishery/aquatic products.— It shall be unlawful for any person to catch, take or
gather or cause to be caught, taken or gathered fish or fishery/aquatic products in Philippine waters
with the use of explosives, obnoxious or poisonous substance, or by the use of electricity as defined
in paragraphs (l), (m) and (d), respectively, of section 3 hereof: Provided, That mere possession of
such explosives with intent to use the same for illegal fishing as herein defined shall be punishable
as hereinafter provided: Provided, That the Secretary may, upon recommendation of the Director
and subject to such safeguards and conditions he deems necessary, allow for research, educational
or scientific purposes only, the use of explosives, obnoxious or poisonous substance or electricity to
catch, take or gather fish or fishery/aquatic products in the specified area: Provided, further, That the
use of chemicals to eradicate predators in fishponds in accordance with accepted scientific fishery
practices without causing deleterious effects in neighboring waters shall not be construed as the use
of obnoxious or poisonous substance within the meaning of this section: Provided, finally, That the
use of mechanical bombs for killing whales, crocodiles, sharks or other large dangerous fishes, may
be allowed, subject to the approval of the Secretary.

It shall, likewise, be unlawful for any person knowingly to possess, deal in, sell or in any
manner dispose of, for profit, any fish or fishery/aquatic products which have been illegally caught,
taken or gathered.

The discovery of dynamite, other explosives and chemical compounds containing combustible
elements, or obnoxious or poisonous substance, or equipment or device for electric fishing in any
fishing boat or in the possession of a fisherman shall constitute a presumption that the same were
used for fishing in violation of this Decree, and the discovery in any fishing boat of fish caught or
killed by the use of explosives, obnoxious or poisonous substance or by electricity shall constitute a
presumption that the owner, operator or fisherman were fishing with the use of explosives,
obnoxious or poisonous substance or electricity. xxx xxx xxx

Sec. 38. Penalties. — (a) For illegal fishing and dealing in illegally caught fish or
fishery/aquatic products. — Violation of Section 33 hereof shall be punished as follows:

xxx xxx xxx

(2) By imprisonment from eight (8) to ten (10) years, if obnoxious or poisonous substances
are used: Provided, That if the use of such substances results 1) in physical injury to any person, the
penalty shall be imprisonment from ten (10) to twelve (12) years, or 2) in the loss of human life, then
the penalty shall be imprisonment from twenty (20) years to life or death;

xxx xxx xxx 25

 The offense of illegal fishing is committed when a person catches, takes or gathers or causes to be
caught, taken or gathered fish, fishery or aquatic products in Philippine waters with the use of explosives,
electricity, obnoxious or poisonous substances. The law creates a presumption that illegal fishing has been
committed when: (a) explosives, obnoxious or poisonous substances or equipment or device for electric
fishing are found in a fishing boat or in the possession of a fisherman; or (b) when fish caught or killed with
the use of explosives, obnoxious or poisonous substances or by electricity are found in a fishing boat. Under
these instances, the boat owner, operator or fishermen are presumed to have engaged in illegal fishing.

Petitioners contend that this presumption of guilt under the Fisheries Decree violates the presumption of
innocence guaranteed by the Constitution. 26 As early as 1916, this Court has rejected this argument by holding
that: 27

In some States, as well as in England, there exist what are known as common law offenses.
In the Philippine Islands no act is a crime unless it is made so by statute. The state having the right
to declare what acts are criminal, within certain well-defined limitations, has the right to specify what
act or acts shall constitute a crime, as well as what proof shall constitute prima facie evidence of
guilt, and then to put upon the defendant the burden of showing that such act or acts are innocent
and are not committed with any criminal intent or intention. 28

The validity of laws establishing presumptions in criminal cases is a settled matter. It is generally
conceded that the legislature has the power to provide that proof of certain facts can constitute prima
facie evidence of the guilt of the accused and then shift the burden of proof to the accused provided there is
a rational connection between the facts proved and the ultimate fact presumed. 29 To avoid any constitutional
infirmity, the inference of one from proof of the other must not be arbitrary and unreasonable. 30 In fine, the
presumption must be based on facts and these facts must be part of the crime when committed. 31

The third paragraph of section 33 of P.D. 704 creates a presumption of guilt based on facts proved and
hence is not constitutionally impermissible. It makes the discovery of obnoxious or poisonous substances,
explosives, or devices for electric fishing, or of fish caught or killed with the use of obnoxious and poisonous
substances, explosives or electricity in any fishing boat or in the possession of a fisherman evidence that the owner
and operator of the fishing boat or the fisherman had used such substances in catching fish. The ultimate fact
presumed is that the owner and operator of the boat or the fisherman were engaged in illegal fishing and this
presumption was made to arise from the discovery of the substances and the contaminated fish in the possession of
the fisherman in the fishing boat. The fact presumed is a natural inference from the fact proved. 32

We stress, however, that the statutory presumption is merely prima

facie. 33 It can not, under the guise of regulating the presentation of evidence, operate to preclude the accused from
presenting his defense to rebut the main fact presumed. 34 At no instance can the accused be denied the right to
rebut the presumption. 35 thus:

The inference of guilt is one of fact and rests upon the common experience of men. But the
experience of men has taught them that an apparently guilty possession may be explained so as to
rebut such an inference and an accused person may therefore put witnesses on the stand or go on
the witness stand himself to explain his possession, and any reasonable explanation of his
possession, inconsistent with his guilty connection with the commission of the crime, will rebut the
inference as to his guilt which the prosecution seeks to have drawn from his guilty possession of the
stolen goods. 36

We now review the evidence to determine whether petitioners have successfully rebutted this presumption.
The facts show that on November 13, 1992, after the Information was filed in court and petitioners granted bail,
petitioners moved that the fish specimens taken from the F/B Robinson be reexamined. 3 7 The trial court granted
the motion. 38 As prayed for, a member of the PNP Maritime Command of Puerto Princesa, in the presence of
authorized representatives of the F/B Robinson, the NBI and the local Fisheries Office, took at random five (5) live
lapu-lapu from the fish cage of the boat. The specimens were packed in the usual manner of transporting live fish,
taken aboard a commercial flight and delivered by the same representatives to the NBI Head Office in Manila for
chemical analysis.
 On November 23, 1992, Salud Rosales, another forensic chemist of the NBI in Manila conducted three (3)
tests on the specimens and found the fish negative for the presence of sodium cyanide, 39 thus:

Gross weight of specimen = 3.849 kg.

Examinations made on the above-mentioned specimens gave NEGATIVE RESULTS to the

tests for the presence of SODIUM CYANIDE. 40

The Information charged petitioners with illegal fishing "with the use of obnoxious or poisonous substance
(sodium cyanide), of more or less one (1) ton of assorted live fishes" There was more or less one ton of fishes in the
F/B Robinson's fish cage. It was from this fish cage that the four dead specimens examined on October 7, 1992 and
the five specimens examined on November 23, 1992 were taken. Though all the specimens came from the same
source allegedly tainted with sodium cyanide, the two tests resulted in conflicting findings. We note that after its
apprehension, the F/B Robinson never left the custody of the PNP Maritime Command. The fishing boat was
anchored near the city harbor and was guarded by members of the Maritime Command. 41 It was later turned over to
the custody of the Philippine Coast Guard Commander of Puerto Princesa City. 42

The prosecution failed to explain the contradictory findings on the fish samples and this omission raises a
reasonable doubt that the one ton of fishes in the cage were caught with the use of sodium cyanide.

The absence of cyanide in the second set of fish specimens supports petitioners' claim that they did not use
the poison in fishing. According to them, they caught the fishes by the ordinary and legal way, i.e., by hook and line
on board their sampans. This claim is buttressed by the prosecution evidence itself. The apprehending officers saw
petitioners fishing by hook and line when they came upon them in the waters of Barangay San Rafael. One of the
apprehending officers, SPO1 Demetrio Saballuca, testified as follows:

ATTY. TORREFRANCA ON CROSS-EXAMINATION:

Q: I get your point therefore, that the illegal fishing supposedly conducted at San Rafael is a moro ami type of fishing
[that] occurred into your mind and that was made to understand by the Bantay Dagat personnel?

A: Yes, sir.

Q: Upon reaching the place, you and the pumpboat, together with the two Bantay Dagat personnel were SPO3
Romulo Enriquez and Mr. Benito Marcelo and SPO1 Marzan, you did not witness that kind of moro ami fishing,
correct?

A: None, sir.

Q: In other words, there was negative activity of moro ami type of fishing on September 30, 1992 at 4:00 in the
afternoon at San Rafael?

A: Yes, sir.

Q: And what you saw were 5 motorized sampans with fishermen each doing a hook and line fishing type?

A: Yes, sir. More or less they were five.

Q: And despite the fact you had negative knowledge of this moro ami type of fishing, SP03 Enriquez together with
Mr. Marcelo boarded the vessel just the same?

A: Yes, sir. xxx xxx xxx 43

The apprehending officers who boarded and searched the boat did not find any sodium cyanide nor any
poisonous or obnoxious substance. Neither did they find any trace of the poison in the possession of the fishermen
or in the fish cage itself. An Inventory was prepared by the apprehending officers and only the following items were
found on board the boat:

ITEMS QUANTITY REMARKS

F/B Robinson (1) unit operating

engine (1) unit ICE-900-BHP

sampans 28 units fiberglass

outboard motors 28 units operating

assorted fishes more or less 1 ton live

hooks and lines assorted

xxx xxx xxx 44

We cannot overlook the fact that the apprehending officers found in the boat assorted hooks and lines
for catching fish. 45 For this obvious reason, the Inspection/Apprehension Report prepared by the
apprehending officers immediately after the search did not charge petitioners with illegal fishing, much less
illegal fishing with the use of poison or any obnoxious substance. 46

The only basis for the charge of fishing with poisonous substance is the result of the first NBI laboratory test
on the four fish specimens. Under the circumstances of the case, however, this finding does not warrant the infallible
conclusion that the fishes in the F/B Robinson, or even the same four specimens, were caught with the use of
sodium cyanide.

Prosecution witness SPO1 Bernardino Visto testified that for the first laboratory test, boat engineer Ernesto
Andaya did not only get four (4) samples of fish but actually got five (5) from the fish cage of the F/B
Robinson. 4 7 The Certification that four (4) fish samples were taken from the boat shows on its face the number of
pieces as originally "five (5)" but this was erased with correction fluid and "four (4)" written over it. 48 The specimens
were taken, sealed inside the plastic bag and brought to Manila by the police authorities in the absence of
petitioners or their representative. SP02 Enriquez testified that the same plastic bag containing the four specimens
was merely sealed with heat from a lighter. 49 Emilia Rosales, the NBI forensic chemist who examined the samples,
testified that when she opened the package, she found the two ends of the same plastic bag knotted. 50 These
circumstances as well as the time interval from the taking of the fish samples and their actual examination 51 fail to
assure the impartial mind that the integrity of the specimens had been properly safeguarded.

Apparently, the members of the PNP Maritime Command and the Task Force Bantay Dagat were the ones
engaged in an illegal fishing expedition. As sharply observed by the Solicitor General, the report received by the
Task Force Bantay Dagat was that a fishing boat was fishing illegally through "muro ami" on the waters of San
Rafael. "Muro ami" according to SPO1 Saballuca is made with "the use of a big net with sinkers to make the net
submerge in the water with the fishermen surround[ing] the net." 52 This method of fishing needs approximately two
hundred (200) fishermen to execute. 53 What the apprehending officers instead discovered were twenty eight (28)
fishermen in their sampans fishing by hook and line. The authorities found nothing on the boat that would have
indicated any form of illegal fishing. All the documents of the boat and the fishermen were in order. It was only after
the fish specimens were tested, albeit under suspicious circumstances, that petitioners were charged with illegal
fishing with the use of poisonous substances.

IN VIEW WHEREOF, the petition is granted and the decision of the Court of Appeals in CA-G.R. CR No.
15417 is reversed and set aside. Petitioners are acquitted of the crime of illegal fishing with the use of poisonous
substances defined under Section 33 of Republic Act No. 704, the Fisheries Decree of 1975. No costs.

SO ORDERED.
Regalado, Romero, Mendoza and Torres, Jr., JJ., concur.

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. L-34105 February 4, 1983

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
TIMOTEO CABURAL, CIRIACO YANGYANG, BENJAMIN LASPONIA, and LEONIDE CABUAL,
accussed,TIMOTEO CABURAL and CIRIACO YANGYANG, defendants-appellants.

The Solicitor General for plaintiff-appellee.

Benjamin A. Gravino for private respondents.

Abdon A. Arriba counsel for defendant-appellants.

RELOVA, J.:

This is an appeal from the decision of the Court of First Instance of Lanao del Norte, dated June 4, 1970,
convicting Timoteo Cabural of the crime of Robbery with Rape and sentencing him to suffer the penalty of Reclusion
Perpetua; and, convicting Leonide Cabual, Benjamin Lasponia and Ciriaco Yangyang of the crime of Robbery and
sentencing each of them to suffer imprisonment of six (6) years and one (1) day of Prision Mayor, as minimum, to
ten (10) years of Prision Mayor, as maximum; to indemnify the offended party in the sum of P9,435.50, without
subsidiary imprisonment in case of insolvency and to pay proportionately the costs of the proceedings.

The statement of facts in the brief filed by the People of the Philippines is as follows:

... [A]t about 2:00 o'clock in the morning of September 14, 1960, three masked men entered the
building of the Kim San Milling in Palao City of Iligan thru an opening of the roof above the kitchen that was
being repaired and forced themselves inside a room where Pua Lim Pin Bebencio Palang, Sy Chua Tian
and Siao Chou were sleeping (tsn, pp. 78-82, May 31, 1965; tsn, pp. 141-148, June 13, 1961). The masked
men, at gunpoint, hogtied the four occupants of the room and commanding them to lie on the floor, face
down, were all covered with blankets (tsn, pp. 82-83, Ibid). The inmates of the room heard That the cabinets
were being ransacked (tsn, p. 82, Ibid). As this was going on, one of the men approached Pua Lim Pin to
ask him if he could open the safe to which he answered in the negative as he was a mere employee of the
firm (tsn, p. 83, May 31, 1961). An hour later, one of the men approached Sy Chua Tian (also See Chou
Kian tsn, p. 89, Ibid) and told him: 'now is 3:30, if by 4:00 the safe is not open we will kill you.' (tsn, p.
94, Ibid.)

As this was going on, another episode was taking place inside the next room where the maids were sleeping
(tsn, p. 91, May 31, 1961). Restituta Biosano Panchita Maghanoy and Agripina Maglangit have retired at about
10:00 o'clock in the evening of September 13, 1960, after their chores were performed (tsn, p. 91, Ibid, tsn, p. 10,
May 7,1961; tsn, p. 13, May 29,1961; tsn, p. 25, Ibid). At about 2:00 o'clock the following morning, they were
awakened by two persons, one holding a pistol and the other holding a hunting knife. Like the fate of the four
inmates of the other room, the maids were all hogtied, made to lie on the floor, face downward, and were all covered
with blankets (tsn, pp. 25-29, May 29, 1961). The two then left the room (tsn, p. 29, Ibid). After two hours later, one
1äw phï1.ñët
of the two men re-appeared in the room and after discovering that Agripina Maglangit had freed her hands, he
showed anger and remarked that he would separate her from the rest. With his pistol pointed at her, he took her
outside the building to a secluded place within the Kim San Compound (tsn, pp. 30-33, Ibid.). Here, with her hands
tied, she was made to lie down flat on the ground face upwards. He then raised her skirt, tied down her panties, and
had sexual intercourse with her. She was unable to resist him and fight back because at the time she had lost her
strength not to mention the fact that she was deprived of the use of her hands that were both tied together. The rape
having been consummated, he pulled her left arm so she could stand up. He then left her (tsn, pp. 33-35, Ibid.).

Agripina Maglangit recognized the features of the man that raped her. She Identified her
rapist to be the accused Timoteo Cabural (tsn, pp. 36-39, Ibid.).

At about four o'clock that morning (September 14, 1960) all the intruders must have left
because the four men that were hogtied in the other room noticed complete silence They each
struggled to free themselves which they succeeded. Maghanoy lost her Alosa 15-jewel watch
costing her P65.00 (tsn, p. 22, May 29, 1961); Sy Chua Tian (See Chou Kian lost his Omega
automatic wrist watch valued in the amount of P385.00 that was snatched from his wrist by one of
the robbers, besides his wallet containing P264.00 in paper currency (tsn, p. 85 and p. 95, May 31,
1961). After the robbers left, the inmates discovered the cash and some personal belongings in the
total amount of P9,435.50 were transported by the robbers (tsn, pp. 29-36, Oct. 23, 1961; tsn, pp.
120-125, June 13, 1961).

The accident having been reported, both the local police as well as the Philippine
Constabulary stationed in Iligan conducted their investigation. In the course of the investigation,
members of the Philippine Constabulary found a.30-caliber carbine with 4 magazines and a .45
caliber pistol well wrapped in a banca at the shore behind the house of the accused Benjamin
Lasponia This led to the investigation of Lasponia who subsequently admitted the crime and pointed
to his companions that night. On September 18, 1960, Benjamin Lasponia signed a confession
before Assistant Fiscal Leonardo Magsalin, Exhibits B, B-1, B-2, and B3 at the PC headquarters in
Iligan (pp. 1025-1028, Vol. III Rec.). He confessed to the last detail his participation in the crime. On
September 19, 1960, the accused Leonide Cabual subscribed to an affidavit before the same Fiscal
.Magsalin regarding his participation and that of -his co-accused in the robbery of Kim San Milling in
the early morning of September 14, 1960, Exhibits C, C-1, C-2, C3 and C5 (pp. 1029-1034, Vol. III,
Record (l). Ciriaco Yangyang followed. He subscribed his confession before Special Counsel
Dominador Padilla in the Office of the City Fiscal of Iligan on September 26, 960, Exhibits H, H-1
and H2 (pp. 1036-1038, Vol. III, Record, See complete testimony of Eustaquio Cabides, tsn, pp- 52-
72, July 17, 1969).

On September 21, 1960, (1) Timoteo Cabural, alias Romeo alias Tiyoy (2) Benjamin Lasponia; (3) Leonide
Cabual alias Eddie; (4) Ciriaco Yangyang; (5) William Tate alias Negro; (6) Fausto Dacera and, (7) Alfonso Caloy-on
alias Pablo, were charged before the Court of First Instance of Lanao del Norte of the crime of Robbery in Band with
Rape, in an information filed by the City Fiscal of Iligan City. The crime charged was allegedly committed as follows:

That on or about September 14, 1960 in the City of Iligan Philippines, and within the
jurisdiction of this Honorable Court, the said accused, in company with one Fred Ybañez alias
Godofredo Camisic and one John Doe, who are still-at-large, conspiring and confederating together
and mutually helping one another, and armed with deadly weapons, all unlicensed, to wit: carbines,
revolvers, tommy guns, garand rifles and knives, did then and there willfully, unlawfully and
feloniously, with intent of gain and by means of violence against and intimidation of persons, and
with the use of force upon things, to wit: by passing through an opening not intended for entrance or
egress, enter the main building and office of the Kim San Milling Company, an inhabited building,
and once inside, did then and there willfully, unlawfully and feloniously take, steal, rob and carry
away therefrom, the following personal properties, to wit:

Cashmoney......................................................... P5,972.00

Wrist watch 'Technos'...................................... 100.00

 Gold 20.00.
Ring............................................................

Sunglasses......................................................... 30.00

Four pieces of golden bracelets...................... 1,400.00

Chinese gold ring with dark blue stone......... 90.00

One gold ring with brilliant stone................... 400.00

One Chinese gold necklace with red stone... 150.00

One pair of earrings Chinese gold with.........

red stone....................................................... 60.00

Three pairs of earrings with pearls................ 120.00

Four Chinese gold rings with stones of........

different colors................................................. 140.00

Sweepstakes tickets......................................... 45.00

One American gold Lady's ring.....................

with dark pink stone........................... 30.00

Four men's rings............................................... 32.00

One and a half dozens handkerchiefs.......... 34.50

Lady's wrist watch.......................................... 30.00

Three ladies watches...................................... 69.00

One men's watch............................................. 60.00

One Chinese gold necklace........................... 58.00

One Lady's wrist watch.................................. 15.00

One Chinese gold necklace........................... 58.00

One Men's wrist watch................................... 60.00

One Men's wrist watch 'Tugaris'................... 65.00

Knife.................................................................. 12.00

One Men's wrist watch...................................

'Omega' Seamaster........................................... 385.00

with a total value of P9,435.50, belonging to the Kim San Milling Company, Bebencio Palang,
Agapito Tan, Restituta Boisano Panchita Maghanoy, Catalina Boisano Pua Lim Pin and Sy Chua
Tian to the damage and prejudice of the said owners in the said sum of P9,435.50, Philippine
currency; and that on the occasion or by reason of the said robbery, the above-named accused
except William Tate alias Negro, conspiring and confederating together and mutually helping one
 another, did then and there willfully, unlawfully and feloniously have carnal knowledge of one
Agripina Maglangit, a woman, by means of violence and intimidation and against her will.

Contrary to and in violation of Article 294 paragraph 2 of the Revised Penal Code as
amended by Republic Act No. 18 and Article 296 of the Revised Penal Code as amended by
Republic Act No. 12, Section 3, with the following aggravating circumstances, to wit: that the said
offense was committed during night time and by a band; that it was committed with the use of
disguise; and that it was committed with the use of a motor vehicle.

Upon arraignment, the defendants pleaded not guilty. However, during the course of the trial, three (3) of the
accused, namely: William Tate Fausto Dacera and Alfonso Caloy-on were dropped on petition of the City Fiscal and
trial proceeded against the four (4) remaining accused, namely: Timoteo Cabural, alias Romeo Cabural; Benjamin
Lasponia, Leonide Cabual and Ciriaco Yangyang. As aforesaid, Cabural, Lasponia, Cabual and Yangyang were
convicted. Benjamin Lasponia did not appeal; however, Cabural, Yangyang and Cabual did and claimed that the
trial court erred:

I.

IN HOLDING THAT THE AFFIDAVITS OR EXTRA-JUDICIAL CONFESSIONS OF

ACCUSED BENJAMIN LASPONIA, LEONIDE CABUAL, AND CIRIACO YANGYANG WHICH
WERE NOT OBTAINED THROUGH FORCE, VIOLENCE, INTIMIDATIONS AND THREATS AND
SERIOUS MALTREATMENTS ARE ADMISSIBLE AS EVIDENCE AND THEREFORE COULD BE A
LEGAL BASIS FOR THE CONVICTIONS OF ACCUSED.

II.

IN HOLDING THAT EVEN IF IN THE EXECUTION OF SAID AFFIDAVITS OF

CONFESSIONS BY THE THREE ACCUSED SOME PERSONAL INCONVENIENCE WERE MADE
BY THE PC SOLDIERS BUT BECAUSE THE CONTENTS OF SAID CONFESSIONS ARE TRUE
SAID EXTRA-JUDICIAL CONFESSIONS ARE ADMISSIBLE AS EVIDENCE AND COULD BE
MADE A LEGAL, BASIS FOR THE CONVICTIONS OF ALL ACCUSED.

III.

IN HOLDING THAT THE THREE EXTRA-JUDICIAL CONFESSIONS BY THREE ACCUSED

BEING INTERLOCKING CONFESSIONS IS ENOUGH AND SUFFICIENT TO SUSTAIN THEIR
CONVICTIONS ON PROOF BEYOND REASONABLE DOUBT;

IV.

IN HOLDING THAT THE THREE EXTRA-JUDICIAL CONFESSIONS OF THREE ACCUSED

INTERLOCKED WITH EACH OTHER EVEN IF INADMISSIBLE AS EVIDENCE BECAUSE
OBTAINED THROUGH FORCE, VIOLENCE, INTIMIDATION, ETC. IS ENOUGH TO SUSTAIN THE
CONVICTION OF ACCUSED TIMOTEO CABURAL BECAUSE HE WAS SUFFICIENTLY
IdENTIFIED BY VICTIM AGRIPINA MAGLANGIT AS HER RAPIST;

V.

IN HOLDING THAT THE PROSECUTION EVIDENCE FOR THE CONVICTIONS OF

ACCUSED REACHED THE LEGAL STANDARD OF PROOF BEYOND REASONABLE DOUBT AS
REQUIRED BY LAW.

On October 14, 1971, this Court granted the motion of Leonide Cabual to withdraw his appeal (p. 60, rollo).

Appellant Cabural declared that from 2:00 in the afternoon of September 13, 1960 to 3:00 in the early
morning of September 14, 1960, he was playing mahjong with Virginia Cruz Maruhom and one Gomer in the store
of Ason in Maigo, Lanao del Norte which is about 37 kilometers from Iligan City and would take about two (2) hours
by us or about one (1) hour by car to negotiate the distance between the two places; that he could not have been
present at complainant's place at 2:00 in the morning of September 14, 1960 when the robbery took place; that he
was brought to the Philippine Constabulary Headquarters in Iligan City by PC soldiers on September 15, 1960 and
was subjected to all kinds of torture; and that after he was severely maltreated, including the 7-Up treatment and
threatened with pistol, he was asked to sign an affidavit. Despite his insistence that he was innocent he was induced
to sign a statement after he was told: "if you obey us you may get free" and that "if you confess we will protect you."

Ciriaco Yangyang also denied participation in the commission of the crime considering that at that time he
was in Barrio Mentering attending the counting of votes for the muse of the barrio fiesta. He was reading the ballots
cast for each candidate at the microphone. It was only in the following morning of September 14, 1960 when he
returned to Maigo.

The Identity of appellant Timoteo Cabural as the rapist of Agripina Maglangit is established in the testimony
of the latter as follows:

Q After that man had told you that you would be separated from the rest, what
happened next, if any?

A I was brought outside.

Q What do you mean by 'outside?'

A I was brought outside of the office of the Kim San .

Q After you have been taken outside, what happened, if any?

A I was threatened and I was forced.

Q How were you threatened?

A He pointed to me his pistol and let me lie down.

Q This place where he threatened you and made you lie down outside, was
this place near to the place where you had slept?

A It is very far but it is within the compound of the Kim San

Q After he had threatened you and made you lie down, what, if any, did you
do?

A He raised my skirt.

Q At the time he was raising your skirt, what was your position?

A I was lying down with face upward.

Q After he had raised your skirt, what happened next, if any?

A When my skirt was raised and since I have no more strength because (as
demonstrated by the witness), her laps were numb, he took off my pantie.

Q How did your laps happen to be numb?

A Because my laps were pushed so that I cannot move.

Q What particular part of your body did he push to numbness?

 A My laps.

Q After he had taken off your pantie, what, if any, did he do?

A I feel that he had what he wants.

Q What do you mean by that?

A To disgrace my honor.

Q How did he disgrace your honor?

A He had sexual intercourse.

Q How long did he have that sexual intercourse with you?

A I do not remember how long because of my fear.

Q Did he finish having sexual intercourse with you?

A Yes, sir.

Q After he had that sexual intercourse with you, what happened next, if any?

A (As demonstrated by th witness, her left Arm was pulled to stand up)

Q Were you able to stand up?

A Yes, sir.

Q After you have stood up, that man where, if any, did he go?

A I did not notice where the man go but I went back to our room.

Q Upon your arrival to your quarters, what, if any, did you do?

A I told my companions.

Q Who were they?

A They were Restituta Biosano, Pena Maglangit, Catalina Biosano

Q That man who had sexual intercourse with you, is he here now in the
courtroom?

A Yes, sir.

Q Will you please point him out?

A (Witness went down from the stand and went to the accused seated in the
courtroom and pointed to the accused Timoteo Cabural). (tsn. pp. 32-35, May 29,
1961 hearing)

We agree with the lower court that Cabural alone was responsible for the rape on Agripina. There is no
evidence that his co-appellant Yangyang and the other malefactors made advances on her. Besides, the extra-
judicial confessions of Lasponia (Exhibits B, B-1, B-2 and B3 Leonide Cabual (Exhibits C, C-1 to C-5 and Ciriaco
Yangyang (Exhibits H, H-1 and H-2) point to appellant Cabural as the mastermind and the role each of them would
play (as in fact they did) in the commission of the crime. Their interlocking confessions indicate how they would go
to the scene of the crime, the manner by which they would enter into the premises of Kim San Milling Company and,
as aptly observed by the trial court, the details which only the participants could amply give.

Further, accused Cabual and Lasponia were sworn by Fiscal Leonardo Magsalin who instructed the PC
investigators to leave the room so that they (Cabual and Lasponia) would be able to speak their minds freely. Fiscal
Magsalin testified that said accused readily and without hesitation signed their respective extra-judicial confessions.

Finally, We find no merit in the alibis interposed by appellants Cabural and Yangyang. As pointed out by the
Solicitor General in his brief:

The fact that Cabural played mahjong with Virginia Cruz Maruhom and a certain Gomer at the
store of Ason in Barrio Maigo from 2:00 P.M. of September 13, 1960 to 3:00 A.M. of September 14,
1960 is no guarantee that he could not be at the scene of the crime (Kim San Milling Company,
situated in Palao a 37-kilometer stretch which could be negotiated in one hour by car (tsn., p. 8,
Sept. 20, 1966). Considering the confessions of Lasponia, Cabual and Yangyang all pointing to
Cabural as the one in control of the vehicle utilized in the commission of the crime, the conclusion is
not hard to reach that his presence at the scene of the crime is much likelier than at Maigo.

Otherwise stated, appellants failed to show the plausibility and verity of their alibis and the crime is
aggravated by dwelling and nighttime.

As aforesaid, the trial court convicted Timoteo Cabural of the crime of robbery with rape, which is penalized
by Article 294(2) of the Revised Penal Code, by reclusion temporal medium to reclusion perpetua. Effective August
15, 1975 (or subsequent to this date), Presidential Decree No. 767 imposes the penalty of reclusion perpetua to
death "when the robbery accompanied with rape is committed with the use of a deadly weapon or by two or more
persons.

In People vs. Perello, Jr., 111 SCRA 147, it was mentioned that "[t]he Chief Justice and the herein ponente
(Justice Ramon C. Aquino) are of the opinion that article 335 cannot be applied to robbery with rape and that that
offense should be penalized under article 294(2) in which case reclusion perpetua should be imposed. As the
accused was charged with a crime against property, he should not be convicted of a crime against chastity, a private
offense. (See People vs. Olden, L-27570-71, September 20, 1972, 47 SCRA 45)." However, also in the same case,
"Justices Teehankee, Barredo and Makasiar believe that article 335 should be applied to this case. (See People vs.
Carandang, L-310102, August 15, 1973, 52 SCRA 259, People vs. Mabag, L-38548, July 24, 1980, 98 SCRA 730;
People vs. Arias, L-40531, January 27, 1981, 102 SCRA 303; People vs. Boado, L- 44725, March 31, 1981, 103
SCRA 607; People vs. Canizares L- 32515, September 10, 1981; People vs. Pizarras L-35915, October 30, 1981).

The writer of this decision is of the opinion that in robbery with rape, the accused should be penalized under
Article 294(2) of the Revised Penal Code because it is a crime against property and not a crime against chastity a
private offense.

WHEREFORE, the decision appealed from is hereby AFFIRMED in toto. With costs against both appellants.

SO ORDERED.

Aquino, Concepcion, Jr., Abad Santos, De Castro, Escolin, Vasquez and Gutierrez, Jr., JJ., concur.

Makasiar, J., accused Cabural should be sentenced to death under Art. 335, R. P.C.

Melencio-Herrera, J., I vote for the application of Art. 335 of the Revised Penal Code and. the imposition of
the death penalty.

Plana, J., is on leave

 Separate Opinions

FERNANDO, C.J., concurring:

My concurrence in the opinion of the Court penned by Justice Relova is full, entire, and complete.
Nonetheless, I wish to express my gratification that this Court by a decisive vote 1 sustains the basic postulate in
both civil law and common law jurisdictions, expressed in the maximum Nullum crimen nulla poena sine lege. It is
undoubted, therefore, that unless there be a radical change in the thinking of the Court, it is Article 294(2) not Article
335 of the Revised Penal Code that calls for application in the crime of robbery with rape. 2 As noted in the opinion
of the Court penned by Justice Aquino in People v. Perello: 3 "Effective August 15, 1975 (or subsequent to this case)
Presidential Decree No. 767 imposes the penalty of reclusion perpetua to death 'when the robbery accompanied
with rape is committed with the use of a deadly weapon or by two or more persons.' That increased penalty cannot
be retroactively applied to this case. 4 As such offense of robbery was committed before that date, it is Article 294(2),
before its amendment, that supplies the governing rule. The applicable law then is clear and explicit. It defined the
offense and prescribed the penalty. The doctrine announced in Lizarraga Hermanos v. Yap Tico 5 by Justice
Moreland, in categorical language comes to mind. Thus: "The first and fundamental duty of courts, in our judgment,
is to apply the law. Construction and interpretation come only after it has been demonstrated that application is
impossible or inadequate without them." 6 There is relevance too to this excerpt from Kapisanan ng mga
Manggagawa sa Manila Railroad Company Credit Union Inc. v. Manila Railroad Company: 7 "The applicable
provision of Republic Act. No. 2023 quoted earlier, speaks for itself. There is no ambiguity. As thus worded, it was
so applied. Petitioner-appellant cannot therefore raise any valid objection. For the lower court to view it otherwise
would have been to alter the law. That cannot be done by the judiciary. That is a function that properly appertains to
the legislative branch. 8

Nothing more appropriately appertains to the legislative branch than the definition of a crime and the
prescription of the penalty to be imposed. That is not a doctrine of recent vintage. It is traceable to United States v.
Wiltberger, 9 an 1820 America. Supreme Court opinion. No less than the eminent Chief Justice Marshall spoke for
the Court. To quote his exact language: "The rule that penal laws are to be construed strictly is perhaps not much
less old than construction itself. It is founded on the tenderness of the law for the rights of individuals; and on the
plain principle that the power of punishment is vested in the legislative, not in the judicial department. It is the
legislature, not the court, which is to define a crime, and ordain its punishment." 10 That ruling was followed in the
Philippines in a 1906 decision, United States v. Almond. 11

So it has been in the Philippines since then. It was the same Justice Moreland who in United States v. Abad
Santos 12 promulgated in 1917, gave expression to a variation of such a fundamental postulate in this wise: "Criminal
statutes are to be strictly construed. No person should be brought within their terms who is not clearly within them,
nor should any act be pronounced criminal which is not clearly made so by the statute." 13 The same year, Justice
Carson in United States v. Estapia 14 in rejecting the contention that the application of a penal provision even if not
covered by its terms should be viewed by the judiciary as commendable, conducive as it is to the repression of a
reprehensible practice" pointed out: "To this it should be sufficient answer to say that neither the executive nor the
judicial authorities are authorized to impose fines and prison sentences in cases wherein such fines and prison
sentences are not clearly authorized by law, and this without regard to the end sought to be attained by the
enforcement of such unauthorized penalties."15

It is to be admitted that from the standpoint of logic alone, there is much to be said for the view that since
rape under certain circumstances is penalized with death, it is an affront to reason if robbery with rape carries with it
a lesser penalty. The latter offense is far more reprehensible, ergo it must be punished at least with equal if not
more severity. It is from that perspective that in People v. Carandang 16 while the penalty imposed is that of reclusion
perpetua there were two separate opinions one from Justice Teehankee and the other from the late Chief Justice,
then Justice, Castro. They would apply Article 335 of the Revised Penal Code. Retired Chief Justice Makalintal, now
Speaker of the Batasan Pambansa, then Acting Chief Justice, concurred in the separate opinion of the late Chief
Justice Castro. Less than a year before, however, in September of 1972, Carandang being a 1973 decision, he
penned the unanimous opinion in People v. Olden 17 affirming the joint judgment of a Court of First Instance of
Davao in two cases, one of which was robbery in band with multiple rape. It was not the death sentence that was
imposed but reclusion perpetua. 18 That case is certainly later than People v. Obtinalia 19 decided in April of 1971,
where, in a per curiam opinion, Article 335 of the Revised Penal Code was applied, although the offense for which
the accused were found guilty was robbery with rape. It is, therefore, re-assuring that with the decision of this case,
the uncertainty which has beclouded the issue of the appropriate imposable penalty has been removed.

One last word. The maximum Nullum crimen nulla poena sine lege has its roots in history. It is in accordance
with both centuries of civil law and common law tradition. Moreover, it is an indispensable coronary to a regime of
liberty enshrined in our Constitution. It is of the essence then that while anti-social acts should be penalized, there
must be a clear definition of the punishable offense as well as the penalty that may be imposed a penalty, to repeat,
that can be fixed by the legislative body, and the legislative body alone. So constitutionalism mandates, with its
stress on jurisdiction rather than guvernaculum.The judiciary as the dispenser of justice through law must be aware
of the limitation on its own power.

Such a concept calls for undiminished respect from the judiciary. For it is the department by which the other
branches are held to strict accountability. It sees to it, in propriate cases of course, that they are held within the
bounds of their authority. Certainly, the judiciary is not devoid of discretion., It can, to paraphrase Cardozo, fill in the
gap and clear the ambiguities. To that extent. it is free but, to recall Cardozo anew, it "is still not wholly free. [A
judge] is no to innovate at pleasure. He is not a knight-errant, roaming at will in pursuit of his own Ideal of beauty or
of goodness. He is to draw his inspiration from consecrated principles." 20

Tersely stated, the judiciary administers justice according to law. This is by no means to imply that in the case
at hand, justice according to law is at war with the concept of justice viewed from the layman's standpoint. The
system of criminal law followed in the Philippines, true to the ways of constitutionalism, has always leaned toward
the milder form of responsibility, whether as to the nature of the offense or the penalty to be incurred by the
wrongdoer. 21Where, as in this case, the law speaks in clear and categorical language, such a principle is impressed
with greater weight.

TEEHANKEE, J, concurring:

I concur with the judgment at bar which affirms the trial court's decision convicting the accused-appellant
Timoteo Cabural alone of the crime of robbery with rape and imposing upon him the proper penalty of reclusion
perpetua under Article 294, par. 2 of the the Revised Penal Code. The record and testimony of the victim of the rape
show quite clearly that Cabural alone was responsible for and committed the rape on the victim, so that his
companions were likewise properly sentenced for the crime of robbery alone. There is, therefore, no room for the
application of my separate opinions in the cited cases of Perello, Carandang, Mabag etc., that where robbery with
rape is committed but the rape is qualified by the use of a deadly weapon or is committed by two persons, either of
these two actors is singled out by the amendatory Act, R.A. 4111, as supplying the controlling qualification and
mandates he imposition of the death penalty for the crime of qualified rape under Art. 335 of the Penal Code (and
not the lesser penalty of perpetua under Art. 294 for the complex crime of robbery with rape).

Separate Opinions

FERNANDO, C.J., concurring:

My concurrence in the opinion of the Court penned by Justice Relova is full, entire, and complete.
Nonetheless, I wish to express my gratification that this Court by a decisive vote 1 sustains the basic postulate in
both civil law and common law jurisdictions, expressed in the maximum Nullum crimen nulla poena sine lege. It is
undoubted, therefore, that unless there be a radical change in the thinking of the Court, it is Article 294(2) not Article
335 of the Revised Penal Code that calls for application in the crime of robbery with rape. 2 As noted in the opinion
of the Court penned by Justice Aquino in People v. Perello: 3 "Effective August 15, 1975 (or subsequent to this case)
Presidential Decree No. 767 imposes the penalty of reclusion perpetua to death 'when the robbery accompanied
with rape is committed with the use of a deadly weapon or by two or more persons.' That increased penalty cannot
be retroactively applied to this case. 4 As such offense of robbery was committed before that date, it is Article 294(2),
before its amendment, that supplies the governing rule. The applicable law then is clear and explicit. It defined the
offense and prescribed the penalty. The doctrine announced in Lizarraga Hermanos v. Yap Tico 5 by Justice
Moreland, in categorical language comes to mind. Thus: "The first and fundamental duty of courts, in our judgment,
is to apply the law. Construction and interpretation come only after it has been demonstrated that application is
impossible or inadequate without them." 6 There is relevance too to this excerpt from Kapisanan ng mga
Manggagawa sa Manila Railroad Company Credit Union Inc. v. Manila Railroad Company: 7 "The applicable
provision of Republic Act. No. 2023 quoted earlier, speaks for itself. There is no ambiguity. As thus worded, it was
1äwphï1.ñët

so applied. Petitioner-appellant cannot therefore raise any valid objection. For the lower court to view it otherwise
would have been to alter the law. That cannot be done by the judiciary. That is a function that properly appertains to
the legislative branch. 8

Nothing more appropriately appertains to the legislative branch than the definition of a crime and the
prescription of the penalty to be imposed. That is not a doctrine of recent vintage. It is traceable to United States v.
Wiltberger, 9 an 1820 America. Supreme Court opinion. No less than the eminent Chief Justice Marshall spoke for
the Court. To quote his exact language: "The rule that penal laws are to be construed strictly is perhaps not much
less old than construction itself. It is founded on the tenderness of the law for the rights of individuals; and on the
plain principle that the power of punishment is vested in the legislative, not in the judicial department. It is the
legislature, not the court, which is to define a crime, and ordain its punishment." 10 That ruling was followed in the
Philippines in a 1906 decision, United States v. Almond. 11

So it has been in the Philippines since then. It was the same Justice Moreland who in United States v. Abad
Santos 12 promulgated in 1917, gave expression to a variation of such a fundamental postulate in this wise: "Criminal
statutes are to be strictly construed. No person should be brought within their terms who is not clearly within them,
nor should any act be pronounced criminal which is not clearly made so by the statute." 13 The same year, Justice
Carson in United States v. Estapia 14 in rejecting the contention that the application of a penal provision even if not
covered by its terms should be viewed by the judiciary as commendable, conducive as it is to the repression of a
reprehensible practice" pointed out: "To this it should be sufficient answer to say that neither the executive nor the
judicial authorities are authorized to impose fines and prison sentences in cases wherein such fines and prison
sentences are not clearly authorized by law, and this without regard to the end sought to be attained by the
enforcement of such unauthorized penalties."15

It is to be admitted that from the standpoint of logic alone, there is much to be said for the view that since
rape under certain circumstances is penalized with death, it is an affront to reason if robbery with rape carries with it
a lesser penalty. The latter offense is far more reprehensible, ergo it must be punished at least with equal if not
more severity. It is from that perspective that in People v. Carandang 16 while the penalty imposed is that of reclusion
perpetua there were two separate opinions one from Justice Teehankee and the other from the late Chief Justice,
then Justice, Castro. They would apply Article 335 of the Revised Penal Code. Retired Chief Justice Makalintal, now
Speaker of the Batasan Pambansa, then Acting Chief Justice, concurred in the separate opinion of the late Chief
Justice Castro. Less than a year before, however, in September of 1972, Carandang being a 1973 decision, he
penned the unanimous opinion in People v. Olden 17 affirming the joint judgment of a Court of First Instance of
Davao in two cases, one of which was robbery in band with multiple rape. It was not the death sentence that was
imposed but reclusion perpetua. 18 That case is certainly later than People v. Obtinalia 19 decided in April of 1971,
where, in a per curiam opinion, Article 335 of the Revised Penal Code was applied, although the offense for which
the accused were found guilty was robbery with rape. It is, therefore, re-assuring that with the decision of this case,
the uncertainty which has beclouded the issue of the appropriate imposable penalty has been removed.

One last word. The maximum Nullum crimen nulla poena sine lege has its roots in history. It is in accordance
with both centuries of civil law and common law tradition. Moreover, it is an indispensable coronary to a regime of
liberty enshrined in our Constitution. It is of the essence then that while anti-social acts should be penalized, there
must be a clear definition of the punishable offense as well as the penalty that may be imposed a penalty, to repeat,
that can be fixed by the legislative body, and the legislative body alone. So constitutionalism mandates, with its
stress on jurisdiction rather than guvernaculum.The judiciary as the dispenser of justice through law must be aware
of the limitation on its own power.

Such a concept calls for undiminished respect from the judiciary. For it is the department by which the other
branches are held to strict accountability. It sees to it, in propriate cases of course, that they are held within the
bounds of their authority. Certainly, the judiciary is not devoid of discretion., It can, to paraphrase Cardozo, fill in the
gap and clear the ambiguities. To that extent. it is free but, to recall Cardozo anew, it "is still not wholly free. [A
judge] is no to innovate at pleasure. He is not a knight-errant, roaming at will in pursuit of his own Ideal of beauty or
of goodness. He is to draw his inspiration from consecrated principles." 20

Tersely stated, the judiciary administers justice according to law. This is by no means to imply that in the case
at hand, justice according to law is at war with the concept of justice viewed from the layman's standpoint. The
system of criminal law followed in the Philippines, true to the ways of constitutionalism, has always leaned toward
the milder form of responsibility, whether as to the nature of the offense or the penalty to be incurred by the
wrongdoer. 21Where, as in this case, the law speaks in clear and categorical language, such a principle is impressed
with greater weight.

TEEHANKEE, J, concurring:

I concur with the judgment at bar which affirms the trial court's decision convicting the accused-appellant
Timoteo Cabural alone of the crime of robbery with rape and imposing upon him the proper penalty of reclusion
perpetua under Article 294, par. 2 of the the Revised Penal Code. The record and testimony of the victim of the rape
show quite clearly that Cabural alone was responsible for and committed the rape on the victim, so that his
companions were likewise properly sentenced for the crime of robbery alone. There is, therefore, no room for the
application of my separate opinions in the cited cases of Perello, Carandang, Mabag etc., that where robbery with
rape is committed but the rape is qualified by the use of a deadly weapon or is committed by two persons, either of
these two actors is singled out by the amendatory Act, R.A. 4111, as supplying the controlling qualification and
mandates he imposition of the death penalty for the crime of qualified rape under Art. 335 of the Penal Code (and
not the lesser penalty of perpetua under Art. 294 for the complex crime of robbery with rape).
 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. 1251 March 27, 1903

FRANK MEKIN, petitioner-appellee,

vs.
GEORGE N. WOLFE, Wardent of Bilibid Prison, respondent-appellant.

H. C. Carbaugh, for appellant.

Thomas D. Aitken, for appellee.

COOPER, J.:

On the 11th day of February, 1903, application was made by Frank Mekin to the Hon. B. S. Ambler, judge of
the Court of First Instance, for a writ of habeas corpus against George N. Wolfe, Warden of Bilibid Prison, for the
illegal imprisonment, detention, and confinement of petitioner by the respondent as warden of said prison, and
setting forth in substance the following facts:

That petitioner was a member of the Thirty-seventh Infantry, United States Volunteers, up to the date of his
discharge, which occurred on the ____ day of February, 1901; that after his discharge, to wit, the 13th day of July,
1901, the petitioner was tried by a military commission composed of officers of the United States Regular Army on
the charge of entering the service of the enemy in violation of the laws and was found guilty and sentenced by said
military commission to twenty years of hard labor in the Presidio of Manila, where he is at present confined. That the
military commission acted without jurisdiction in so trying and sentencing the petitioner for the reason that it had
neither jurisdiction of the person of the petitioner nor jurisdiction of the crime for which he was tried and sentenced;
that at the time of the trial the petitioner was a civilian, and is therefore entitled to the benefit of the amnesty
proclamation issued by the President of the United States on the 4th day of July, 1902.

The writ of habeas corpus was issued and was served upon the respondent, George N. Wolfe, who made
return: That he, as Warden of Bilibid, held said Frank Mekin imprisoned under authority of the United States of
America through the lawful orders of the commanding general, Division of the Philippines, issued by virtue of a
lawful sentence of a duly convened military commission, for an offense in violation of the laws of war and against the
United States of America, which conviction and sentence was duly approved by the convening authority on
September 23, 1901, and which sentence was lawfully commuted to imprisonment at hard labor for the term of
twenty years by the said commanding general of the Division of the Philippines, the record of which conviction and
sentence and the approval thereof of the said commuted sentence and order of confinement — in the Presidio of
Manila — was set forth in General Orders, No. 362, dated headquarters Division of the Philippines, Manila, P. I.,
November 30, 1901, copies of which said record and said order were attached to the return, and the respondent
also attached to his return the certificate of George W. Davis, major-general, United States Army, commanding the
Division of the Philippines, and made it a part of his return.

The respondent prayed for the dismissal of the writ of habeas corpus, assigning as a cause that the court
was without jurisdiction to issue the writ of habeas corpus for the reason that the said Frank Mekin was held as a
prisoner by virtue of the sentence of the said military commission, awarded prior to October 1, 1901, and that the
issuance of said writ was in contravention of the statute of the Philippine Commission, Act No. 272, entitled "An act
amending chapter 26, relating to proceedings in habeas corpus."

The certificate of George W. Davis, major-general, United States Army, commanding in the Philippines,
referred to in the return, is as follows:

Headquarters Division of the Philippines, Manila, P. I., February 18, 1903. To the Hon. B. S. Ambler,
judge of the Court of First Instance, Manila, P. I. Sir: I hereby certify that Frank Mekin is held by me as
commanding general, Division of the Philippines, in the Presidio of Manila, and at the expense of the United
 States, by virtue of a sentence of a military commission, published in General Orders, No. 362, dated
headquarters Division of the Philippines, Manila, P. I., November 20, 1901, (a copy of which order is
herewith submitted), as a prisoner duly sentenced prior to October 1, 1901, by said commission and duly
approved by the reviewing authority prior to said date, and which sentence was duly commuted by the
commanding general, Division of the Philippines, which commutation was duly published in said order, and
that the said Frank Mekin is a prisoner who was arrested and held for trial before October 15, 1901, for a
violation of the laws of war committed before that date, and is now held by George N. Wolfe, as Warden of
Bilibid Prison, as my agent. Very respectfully, (signed) Geo. W. Davis, General, United States Army,
commanding.

On February 18, 1903, a hearing of the habeas corpus proceedings was had, the Government being
represented by the Prosecuting Attorney and by the Judge-Advocate-General, Divsion of the Philippines, and on the
9th day of March, 1903, the judge of the Court of First Instance rendered his decision, in which it was determined
that the approval and commutation of the sentence under which the prisoner is now serving was promulgated on the
20th day of November, 1901; that the trial before the military commission not being disclosed by the evidence, the
sentence of the military commission had no other effect than to hold the prisoner awaiting the approval of the
commanding general; that the commanding general having seen fit to commute the sentence of twenty years'
imprisonment the conviction or sentence under which the petitioner is serving must be regarded as of date
November 20, 1901, and that the case does not come under the provisions of Act No. 272 of the Philippine
Commission.

After reviewing the questions as to the jurisdiction of the military commission, and apparently reaching the
conclusion that the military commission had no jurisdiction to try the petitioner, the judge found that the petitioner
came within the general amnesty proclamation and was entitled to its benefits, and directed that he be discharged
from custody upon his taking and subscribing the oath of allegiance provided for in the amnesty proclamation.

An appeal was taken by the Government from this decision.

Subsequent to the date of the filing of the application for habeas corpus, but prior to the date of the trial and
of the judgment in the case, the Philippine Commission promulgated Act No. 654, dated March 4, 1903, by the
provisions of which an appeal in habeas corpus proceedings may be taken from the judgment of the Court of First
Instance to this court, the decision of this court having previously been that no appeal would lie in such a case in the
absence of a statute authorizing it.

It is contended by counsel for this petitioner that Act No. 654 is in the nature of an ex post facto law, and
having been enacted subsequent to petitioner's right to the writ of habeas corpus this appeal should not be
entertained. This contention is unsupported by either precedent or principle. It is difficult to conceive any reason for
such a conclusion.

An ex post facto law has been defined as one —

(a) Which makes an action done before the passing of the law and which was innocent when done criminal,
and punishes such action; or

(b) Which aggravates a crime or makes it greater than it was when committed; or

(c) Which damages the punishment and inflicts a greater punishment than the law annexed to the crime when
it was committed; or

(d) Which alters the legal rules of evidence and receives less or different testimony than the law required at
the time of the commission of the offense in order to convict the defendant. (Black, Constitutional Law, 595.)

The case nearly does not come within this definition, nor can it be seen in what way the act in question alters
the situation of petitioner to his disadvantage. It gives him, as well as the Government, the benefit of the appeal, and
is intended as furnishing the means for the correction of errors. The possibility that the judge of the Court of First
Instance may commit error in his favor and wrongfully discharge him appears to be the only foundation for the claim.
 A person can have no vested right in such a possibility.

It would be a sufficient answer to the contention of the petitioner that Act No. 654, allowing an appeal, relates
to a habeas corpus proceeding. This character of proceeding is entirely distinct from the criminal proceedings under
which the prisoner has been tried and convicted. It is a new suit brought by petitioner to enforce a civil right which he
claims as against those who are holding him in custody under the criminal process. The proceeding is one instituted
by himself for his liberty and not by the Government to punish him for his crime. (Ex parte Tom Tong, 108 U. S.,
556.)

It is distinctly a civil proceeding, and as such is provided for and regulated in the Code of Civil Procedure.

The doctrine of ex post facto laws refers only to the criminal law.

This case must be determined under the provisions of Act No. 272, "An act amending chapter 26, relating to
proceedings of habeas corpus," enacted by the Philippine Commission on the 21st day of October, 1901. The
history of the legislation embodied in this act is too recent to require a review of the circumstances and conditions
under which it was enacted. Its purpose was to prevent a conflict of jurisdiction between the civil and military
branches of the Government. By the provisions of this act, when the commanding general or any general officer in
command of the department or district certifies in answer to a writ of habeas corpus directed a military officer or
soldier that the prisoner is held by him either —

(1) As a prisoner of war; or

(2) As a member of the Army, a civil employee thereof, or a camp follower subject to its discipline; or

(3) As a prisoner committed by a military court or commision prior to October 1, 1901; or

(4) As a prisoner arrested and held for trial before a military court or commission, before October 15, 1901,
for a violation of the laws of war committed before the same date; or

(5) As a person guilty of the violation of the laws of was committed in certain unpacified provinces and
territories named —

such certificate shall be a conclusive answer to a writ of habeas corpus against a military officer or soldier,
and a sufficient excuse for not producing the prisoner.

It is not disputed that the respondent holds the petitioner by and through the orders of the commanding
general Division of the Philippines, and that he is in the custody of the Unites States Government through the
respondent, the Warden of Bilibid, as the agent and representative of the military, such agency appears in the
certificate of the commanding general and also in the return of the respondent.

It is equally clear that the certificate of General Davis of date the 18th day of February, 1903, is in compliance
with Act No. 272, from which it appears distinctly that the petitioner is a prisoner committed by a military commission
prior to October 1, 1901; and further that he is a prisoner arrested and held for trial before October 15, 1901, for a
violation of the laws of war committed before the same date.

We think the certificate of the commanding general is in strict compliance with the provisions of the law, and
was a conclusive return to the writ of habeas corpus.

The power of the court to either issue the writ or discharge the prisoner is ended when such return has been
made and the proceedings must there end.

While the power conceded to the commanding general is of vital imprortance and an abuse of it would be
attended with great evil, still, the high position of those to whom it has been confided was doubtless believed to be a
sufficient guaranty that it would not be exercised except after careful investigation and with a due appreaciation of
the delicate nature of the power reposed in the commanding general by the legislative authority.
 In view of the disposition which the law requires us to make of the case it is unnecessary to discuss other
interesting questions raised by counsel for the petitioner.

The order and decision of the judge of the Court of First Instance of Manila ordering that the prisoner be
discharged from custody of the respondent must be reversed, the proceedings dismissed, and the prisoner
remanded to the custody of the respondent. It is so ordered and directed. Costs of proceedings will be adjudged
against the petitioner.

Torres, Willard, Mapa and Ladd, JJ., concur.

Arellano, C. J., Torres, did not sit in this case.

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. L-4221 August 30, 1952

MARCELO D. MONTENEGRO, petitioner-appellant,

vs.
GEN. MARIANO CASTAÑEDA, and COLONEL EULOGIO BALAO, respondents-appellees.

Felixberto M. Serrano and Honorio Ilagan for appellant.

Office of the Solicitor General Pompeyo Diaz and Solicitor Felix V. Makasiar for appellees.

BENGZON, J.:

The purpose of this appeal from the Court of First Instance of Quezon City is to test the validity of
Proclamation No. 210 suspending the privilege of the writ of habeas corpus.

A few months ago the same proclamation came up for discussion in connection with the request for bail of
some prisoners charged with rebellion.1 The divided opinion of this Court did not squarely pass on the validity of the
proclamation; but, assuming it was obligatory, both sides proceeds to determine its effect upon the right of which
prisoners to go on bail.

This decision will now consider the points debated regarding the aforesaid residential order.

The facts are few and simple: About five o'clock in the morning of October 18, 1950, Maximino Montenegro
was arrested with others at the Samanillo Bldg. Manila, by agents of the Military Intelligence Service of the Armed
Forces of the Philippines, for complicity with a communistic organization in the commission of acts of rebellion,
insurrection or sedition. So far as the record discloses, he is still under arrest in the custody by respondents. On
October 22, 1950, The President issued Proclamation No. 210 suspending the privilege of the writ of habeas
corpus. On October 21, 1950, Maximino's father, the petitioner, submitted this application for a writ of habeas
corpus seeking the release of his son.

Opposing the writ, respondents admitted having the body of Maximino, but questioned judicial authority to go
further in the matter, invoking the above-mentioned proclamation.

Petitioner replied that such proclamation was void, and that, anyway, it did not apply to his son, who had
been arrested before its promulgation. Heeding the suspension order, the court of first instance denied the release
prayed for. Hence this appeal, founded mainly on the petitioner's propositions:.

(a) The proclamation is unconstitutional "because it partakes of bill of attainder, or an ex post facto law; and
unlawfully includes sedition which under the Constitution is not a ground for suspension";
 (b) Supposing the proclamation is valid, no prima facie.

(c) "There is no state of invasion, insurrection or rebellion, or imminent danger thereof," the only situations
permitting discontinuance of the writ of habeas corpus; showing was made that the petitioner's son was included
within the terms thereof.

Proclamation No. 210 reads partly as follows:

WHEREAS, lawless elements of the country have committed overt acts of sedition, insurrection and
rebellion for the purpose of overthrowing the duly constituted authorities and in pursuance thereof, have
created a state of lawlessness and disorder affecting public safety and the security of the state;

WHEREAS, these acts of sedition, insurrection, and rebellion consisting of armed raids, sorties, and
ambushes and the wanton acts of murder, rape, spoilage, looting, arson, planned destruction of public and
private buildings, and attacks against police and constabulary detachments, as well as against civilian lives
and properties as reported by the Commanding General of the Armed Forces, have seriously endangered
and still continue to endanger the public safety;

WHEREAS, these acts of sedition, insurrection and rebellion have been perpetrated by various
groups well organized for concerted actions and well armed with machine guns, rifles, pistols and other
automatic weapons, by reason whereof there is actual danger of rebellion which may extend throughout the
country;

Whereas, 100 leading members of these lawless elements have been apprehended and the presently
under detentions, and strong and convincing evidence has been found in their possession to show that they
are engaged in the rebellious, seditious and otherwise subversive acts as above set forth; and

Whereas, public safety requires that immediate and effective action be taken to insure the peace and
security of the population and to maintain the authority of the government;

NOW, THEREFORE, I, ELPIDIO QUIRINO, President of the Philippines, by virtue of the powers
vested upon me by article VII, section 10, paragraph (2) of the Constitution, do hereby suspend the privilege
of the writ of habeas corpus for the persons presently detained, as well as all others who may be hereafter
similarly detained for the crimes of sedition, insurrection or rebellion, and or on the occasion thereof, or
incident thereto, or in connection therewith.

A. It is first argued that the proclamation is invalid because it "partakes" of a bill of attainder or an ex post
facto law, and violates the constitutional percept that no bill of attainder or ex post facto law shall be passed. The
argument is devoid of merit. The prohibition applies only to statutes. U.S. vs. Gen. El., 80 Fed. Supp. 989; De Pass
vs. Bidwell, 24 Fed., 615.2 A bill of attainder is a legislative act which inflicts punishment without judicial trial. (16
C.J.S. p. 902; U.S. vs. Lovett (1946) 328 U.S. 303). Anyway, if, as we find, the stay of the writ was ordered in
accordance with the powers expressly vested in the President by the Constitution, such order must be deemed an
exception to the general prohibition against ex post facto laws and bills of attainder — supposing there is a conflict
between the prohibition and the suspension.

On the other hand there is no doubt it was erroneous to include those accused of sedition among the persons
as to whom suspension of the writ is decreed. Under the Constitution the only grounds for suspension of the
privilege of the writ are "invasion, insurrection, rebellion or imminent danger thereof." Obviously, however, the
inclusion of sedition does not invalidate the entire proclamation; and it is immaterial in this case, inasmuch as the
petitioner's descendant is confined in jail not only for sedition, but for the graver offense of rebellion and insurrection.
Without doing violence to the presidential directive, but in obedience to the supreme law of the land, the word
"sedition" in Proclamation No. 210 should be deemed a mistake or surplusage that does not taint the decree as a
whole.

B. In his second proposition appellant insists there is no state of invasion, insurrection, rebellion or imminent
danger thereof. "There are" he admits "intermittent sorties and lightning attacks by organized bands in different
places"; but, he argues, "such sorties are occasional, localized and transitory. And the proclamation speaks no more
than of overt of insurrection and rebellion, not of cases of invasion, insurrection or rebellion or imminent danger
thereof." On this subject it is noted that the President concluded from the facts recited in the proclamation, and the
other connected therewith, that "there is actual danger rebellion which may extend throughout the country." Such
official declaration implying much more than imminent danger of rebellion amply justifies the suspension of the writ.

To the petitioner's unpracticed eye the repeated encounters between dissident elements and military troops
may seem sporadic, isolated, or casual. But the officers charged with the Nation's security, analyzed the extent and
pattern of such violent clashes and arrived at the conclusion that they are warp and woof of a general scheme to
overthrow his government vi et armis, by force and arms.

And we agree with the Solicitor General that in the light of the views of the United States Supreme Court thru,
Marshall, Taney and Story quoted with approval in Barcelon vs. Baker (5 Phil., 87, pp. 98 and 100) the authority to
decide whenever the exigency has arisen requiring the suspension belongs to the President and "his decision is
final and conclusive" upon the courts and upon all other persons.

Indeed as Justice Johnston said in that decision, whereas the Executive branch of the Government is
enabled thru its civil and military branches to obtain information about peace and order from every quarter and
corner of the nation, the judicial department, with its very limited machinery can not be in better position to ascertain
or evaluate the conditions prevailing in the Archipelago.

But even supposing the President's appraisal of the situation is merely prima facie, we see that petitioner in
this litigation has failed to overcome the presumption of correctness which the judiciary accords to acts of the
Executive and Legislative Departments of our Government.

C. The petitioner's last contention is that the respondents failed to establish that this son is included within the
terms of the proclamation.

On this topic, respondents' return officially informed the court that Maximino had been arrested and was
under custody for complicity in the commission of acts of rebellion, insurrection and sedition against the Republic of
the Philippines. Not having traversed that allegation in time, petitioner must be deemed to have conceded it.

. . . In the absence of a denial, or appropriate pleading avoiding their effect, averment of facts in the
return will be taken as true and conclusive, regardless of the allegations contained in the petition; and the
only question for determination is whether or not the facts stated in the return, as a matter of law, authorizes
the restraint under investigation. (39 C.J.S., 664-655.)

D. An interesting issue is posed by amici curiae. The Bill of Rights prohibits suspension of the privilege of the
writ of habeas corpus except when the public safety requires it, in cases of (1) invasion (2) insurrection or (3)
rebellion.

Article VII Section 10 authorizes the President to suspend the privilege, when public safety requires it, in
cases of (1) invasion (2) insurrection or (3) rebellion or (4) imminent danger thereof.

"Imminent danger," is no cause for suspension under the Bill of Rights. It is under Article VII. To complicate
matters, during the debates of the Constitutional Convention on the Bill of Rights, particularly the suspension of the
writ, the Convention voted down an amendment adding a fourth cause of suspension: imminent danger of invasion,
insurrection of rebellion.

Professor Aruego a member of the Convention, describes the incident as follows:

During the debates on the first draft, Delegate Francisco proposed as an amendment inserting, as a
fourth cause for the suspension of the writ of habeas corpus imminent danger of the three causes included
herein. When submitted to a vote for the first time, the amendment was carried.

After this motion for a reconsideration of the amendment was approved, Delegate Orense spoke
against the amendment alleging that it would be dangerous to make imminent danger a ground for the
suspension of the writ of habeas corpus. In part, he said:
 "Gentlemen, this phrase is too ambigous, and in the hands of a President who believes himself more
or less a dictator, it is extremely dangerous, it would be a sword with which he would behead us.".

In defense of the amendment, Delegate Francisco pointed out that it was intended to make this part
of the bill of rights conform to that part of the draft giving the President the power to suspend the writ
of habeas corpusalso in the case of an imminent danger of invasion or rebellion. When asked by Delegate
Rafols if the phrase, imminent danger, might not be struck out from this corresponding provisions under the
executive power instead, Delegate Francisco answered:

"Outright, it is possible to eliminate the phrase, imminent danger thereof, in the page I have
mentioned. But I say, going to the essence of referring exclusively to the necessity of including the words, of
imminent danger of one or the other, I wish to say the following: that it should not be necessary that there
exists a rebellion, insurrection or invasion in order that habeas corpus may be suspended. It should be
sufficient that there exists not a danger but an imminent danger, and the word, imminent, should be
maintained. When there exists an imminent danger, the State requires for its protection and for that of all the
citizens the suspension of habeas corpus."

When put to vote for the second time, the amendment was defeated with 72 votes against and 56
votes in favor of the same. (I Aruego's Framing of the Philippine Constitution, pp. 180-181)

Nevertheless when the President's specific powers under Article VII, were taken up there was no objection to
his authority to suspend in case of "imminent danger". (At least we are not informed of any debate thereon.) Now
then, what is the effect of the seeming discrepancy?

Is the prohibition of suspension in the bill of rights to be interpreted as limiting Legislative powers only — not
executive measures under section VII? Has article VII (sec. 10) pro tanto modified the bill of rights in the same
manner that a subsequent section of a statue modifies a previous one?

The difference between the two constitutional provisions would seem to be: whereas the bill of
rights impliedly denies suspension in case of imminent dangers of invasion etc., article VII sec. 10 expressly
authorizes the President to suspend when there is imminent danger of invasion etc.

The following statements in a footnote in Cooley's Constitutional limitations (8th Ed.) p. 129, appear to be
persuasive:

It is a general rule in the construction of writings, that, a general intent appearing, it shall control the
particular intent; but this rule must sometimes give way, and effect must be given to a particular intent plainly
expressed in one part of a constitution, though apparently opposed to a general intent deduced from other
parts. Warren V. Shuman, 5 Tex. 441. In Quick V. Whitewater Township, 7 Ind. 570, it was said that if two
provisions of a written constitutions are irreconcilably repugnant, that which is last in order of time and in
local position is to be preferred. In Gulf, C. & S. F. Ry. Co. v. Rambolt, 67 tex. 654, 4 S.W. 356, this rule was
recognized as a last resort, but if the last provision is more comprehensive and specific, it was held that it
should be given effect on that ground.

And in Hoag vs. Washington Oregon Corp. (1915) 147 Pac. Rep., 756 at p. 763 it was said:

It is a familiar rule of construction that, where two provisions of a written Constitution are repugnant to
each other, that which is last in order of time and in local position is to be preferred. Quick v. White Water
Township, 7 Ind., 570; G., C. & S.F. Ry. Co. v. Rambolt, 67 Tex. 654, 4 S.W. 356. So, even assuming the
two clauses discuss are repugnant, the latter must prevail.

Wherefore in the light of this precedents, the constitutional authority of the President to suspend in case of
imminent danger of invasion, insurrection or rebellion under article VII may not correctly be placed in doubt.

E. The petitioner insisted in the court below that the suspension should not apply to his son, because the
latter had been arrested and had filed the petition before the Executive proclamation. On this phase of the
controversy, it is our opinion that the order of suspension affects the power of the court's and operates immediately
on all petitions therein pending at the time of its promulgation.

A proclamation of the President suspending the writ of habeas corpus was held valid and efficient in
law to suspend all proceedings pending upon habeas corpus, which was issued and served prior to the date
of the proclamation. Matter of Dunn, D.C. N.Y. 1863, 25 How. Prac. 467, 8 Fed. Cas. 4,171.

F. Premises considered, the decision of the court a quo refusing to release the prisoner is affirmed, without
costs.

Paras, C.J., Pablo, Padilla, Montemayor, Bautista Angelo and Labrador, JJ., concur.

Footnotes

Hernandez vs. Montesa, G.R. No. L-4964, Nava vs. Gatmaitan, G.R. No. L-4855, Angeles vs.
1

Abaya, G.R. No. L-5102, October, 1951,(90 Phil. 172).

2 Cf. Calder vs. Bull, 3 Dall U. S. 386, 1 Law Ed. 648.

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. L-18208 February 14, 1922

THE UNITED STATES, plaintiff-appellee,

vs.
VICENTE DIAZ CONDE and APOLINARIA R. DE CONDE, defendants-appellants.

Araneta & Zaragoza for appellants.

Attorney-General Villareal for appellee.

JOHNSON, J.:

It appears from the record that on the 6th day of May, 1921, a complaint was presented in the Court of First
Instance of the city of Manila, charging the defendants with a violation of the Usury Law (Act No. 2655). Upon said
complaint they were each arrested, arraigned, and pleaded not guilty. The cause was finally brought on for trial on
the 1st day of September, 1921. At the close of the trial, and after a consideration of the evidence adduced, the
Honorable M. V. del Rosario, judge, found that the defendants were guilty of the crime charged in the complaint and
sentenced each of them to pay a fine of P120 and, in case of insolvency, to suffer subsidiary imprisonment in
accordance with the provisions of the law. From that sentence each of the defendants appealed to this court.

The appellants now contend: (a) That the contract upon which the alleged usurious interest was collected
was executed before Act No. 2655 was adopted; (b) that at the time said contract was made (December 30, 1915),
there was no usury law in force in the Philippine Islands; (c) that said Act No. 2655 did not become effective until the
1st day of May, 1916, or four months and a half after the contract in question was executed; (d) that said law could
have no retroactive effect or operation, and (e) that said law impairs the obligation of a contract, and that for all of
said reasons the judgment imposed by the lower court should be revoked; that the complaint should be dismissed,
and that they should each be discharged from the custody of the law.

The essential facts constituting the basis of the criminal action are not in dispute, and may be stated as
follows: (1) That on the 30th day of December, 1915, the alleged offended persons Bartolome Oliveros and
Engracia Lianco executed and delivered to the defendants a contract (Exhibit B) evidencing the fact that the former
had borrowed from the latter the sum of P300, and (2) that, by virtue of the terms of said contract, the said
Bartolome Oliveros and Engracia Lianco obligated themselves to pay to the defendants interest at the rate of five
per cent (5%) per month, payable within the first ten days of each and every month, the first payment to be made on
the 10th day of January, 1916. There were other terms in the contract which, however, are not important for the
decision in the present case.

The lower court, in the course of its opinion, stated that at the time of the execution and delivery of said
contract (Exhibit B), there was no law in force in the Philippine Islands punishing usury; but, inasmuch as the
defendants had collected a usurious rate of interest after the adoption of the Usury Law in the Philippine Islands (Act
No. 2655), they were guilty of a violation of that law and should be punished in accordance with its provisions.

The law, we think, is well established that when a contract contains an obligation to pay interest upon the
principal, the interest thereby becomes part of the principal and is included within the promise to pay. In other words,
the obligation to pay interest on money due under a contract, be it express or implied, is a part of the obligation of
the contract. Laws adopted after the execution of a contract, changing or altering the rate of interest, cannot be
made to apply to such contract without violating the provisions of the constitution which prohibit the adoption of a
law "impairing the obligation of contract." (8 Cyc., 996; 12 Corpus Juris, 1058-1059.)

The obligation of the contract is the law which binds the parties to perform their agreement if it is not contrary
to the law of the land, morals or public order. That law must govern and control the contract in every aspect in which
it is intended to bear upon it, whether it affect its validity, construction, or discharge. Any law which enlarges,
abridges, or in any manner changes the intention of the parties, necessarily impairs the contract itself. If a law
impairs the obligation of a contract, it is prohibited by the Jones Law, and is null and void. The laws in force in the
Philippine Islands prior to any legislation by the American sovereignty, prohibited the Legislature from giving to any
penal law a retroactive effect unless such law was favorable to the person accused. (Articles 21 and 22, Penal
Code.)

A law imposing a new penalty, or a new liability or disability, or giving a new right of action, must not be
construed as having a retroactive effect. It is an elementary rule of contract that the laws in force at the time the
contract was made must govern its interpretation and application. Laws must be construed prospectively and not
retrospectively. If a contract is legal at its inception, it cannot be rendered illegal by any subsequent legislation. If
that were permitted then the obligations of a contract might be impaired, which is prohibited by the organic law of the
Philippine Islands. (U.S. vs. Constantino Tan Quingco Chua, 39 Phil., 552; Aguilar vs. Rubiato and Gonzales Vila,
40 Phil., 570.)

Ex post facto laws, unless they are favorable to the defendant, are prohibited in this jurisdiction. Every law
that makes an action, done before the passage of the law, and which was innocent when done, criminal, and
punishes such action, is an ex post facto law. In the present case Act No. 2655 made an act which had been done
before the law was adopted, a criminal act, and to make said Act applicable to the act complained of would be to
give it an ex post facto operation. The Legislature is prohibited from adopting a law which will make an act done
before its adoption a crime. A law may be given a retroactive effect in civil action, providing it is curative in character,
but ex post facto laws are absolutely prohibited unless its retroactive effect is favorable to the defendant.

For the reason, therefore, that the acts complained of in the present case were legal at the time of their
occurrence, they cannot be made criminal by any subsequent or ex post facto legislation. What the courts may say,
considering the provisions of article 1255 of the Civil Code, when a civil action is brought upon said contract, cannot
now be determined. A contract may be annulled by the courts when it is shown that it is against morals or public
order.

For all of the foregoing reasons, we are of the opinion, and so decide, that the acts complained of by the
defendants did not constitute a crime at the time they were committed, and therefore the sentence of the lower court
should be, and is hereby, revoked; and it is hereby ordered and decreed that the complaint be dismissed, and that
the defendants be discharged from the custody of the law, with costs de oficio. So ordered.

Araullo, C.J., Street, Malcolm, Avanceña, Ostrand, Johns and Romualdez, JJ., concur.
 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. L-32485 October 22, 1970

IN THE MATTER OF THE PETITION FOR THE DECLARATION OF THE PETITIONER'S RIGHTS AND
DUTIES UNDER SEC. 8 OF R.A. No. 6132.

KAY VILLEGAS KAMI, INC., petitioner.

MAKASIAR, J.:.

This petition for declaratory relief was filed by Kay Villegas Kami, Inc., claiming to be a duly recognized and
existing non-stock and non-profit corporation created under the laws of the land, and praying for a determination of
the validity of Sec. 8 of R.A. No. 6132 and a declaration of petitioner's rights and duties thereunder. In paragraph 7
of its petition, petitioner avers that it has printed materials designed to propagate its ideology and program of
government, which materials include Annex B; and that in paragraph 11 of said petition, petitioner intends to pursue
its purposes by supporting delegates to the Constitutional Convention who will propagate its ideology.

Petitioner, in paragraph 7 of its petition, actually impugns because it quoted, only the first paragraph of Sec.
8(a) on the ground that it violates the due process clause, right of association, and freedom of expression and that it
is an ex post facto law.

The first three grounds were overruled by this Court when it held that the questioned provision is a valid
limitation on the due process, freedom of expression, freedom of association, freedom of assembly and equal
protection clauses; for the same is designed to prevent the clear and present danger of the twin substantive evils,
namely, the prostitution of electoral process and denial of the equal protection of the laws. Moreover, under the
balancing-of-interests test, the cleansing of the electoral process, the guarantee of equal change for all candidates,
and the independence of the delegates who must be "beholden to no one but to God, country and conscience," are
interests that should be accorded primacy.1

The petitioner should therefore be accordingly guided by the pronouncements in the cases of Imbong and
Gonzales.2

The claim of petitioner that the challenged provision constitutes an ex post facto law is likewise untenable.

An ex post facto law is one which:.

(1) makes criminal an act done before the passage of the law and which was innocent when
done, and punishes such an act;

(2) aggravates a crime, or makes it greater than it was, when committed;

(3) changes the punishment and inflicts a greater punishment than the law annexed to the
crime when committed;

(4) alters the legal rules of evidence, and authorizes conviction upon less or different
testimony than the law required at the time of the commission of the offense;
 (5) assuming to regulate civil rights and remedies only, in effect imposes penalty or
deprivation of a right for something which when done was lawful; and

(6) deprives a person accused of a crime of some lawful protection to which he has become
entitled, such as the protection of a former conviction or acquittal, or a proclamation of amnesty.3

From the aforesaid definition as well as classification of ex post facto laws, the constitutional inhibition refers only
to criminal laws which are given retroactive effect.4

While it is true that Sec. 18 penalizes a violation of any provision of R.A. No. 6132 including Sec. 8(a) thereof,
the penalty is imposed only for acts committed after the approval of the law and not those perpetrated prior thereto.
There is nothing in the law that remotely insinuates that Secs. 8(a) and 18, or any other provision thereof, shall
apply to acts carried out prior to its approval. On the contrary, See. 23 directs that the entire law shall be effective
upon its approval. It was approved on August 24, 1970.

WHEREFORE, the prayer of the petition is hereby denied and paragraph 1 of Sec. 8(a) of R.A. No. 6132 is
not unconstitutional. Without costs.

Reyes, J.B.L., Actg. C.J., Dizon, Makalintal and Castro, JJ., concur.

Zaldivar, J., reserves his vote.

Concepcion, C.J., is on leave.

Separate Opinions

FERNANDO, J., concurring and dissenting:

Concurs and dissents in accordance with his separate opinion in Imbong v. Comelec, L-32432 and Gonzales
v. Comelec, L-32443.

BARREDO, J., dissenting:

Reiterates his views in Gonzales and Imbong insofar as they are relevant to the issues in this case, dissents,
even as agrees that Republic Act 6132 is not ex post facto.

VILLAMOR, J., concurring:

Concurs in the sense that the law is declared not ex post facto law and dissents as to the rest.

TEEHANKEE, J., dissenting:

The Court's decision reaffirms its split-vote ruling last September 11, 1970 in Imbong vs. Ferrer and Gonzales
vs. Comelec1 upholding the constitutionality of the first paragraph of section 8(a) of Republic Act 6132. Inasmuch as I was
unable to participate in the said cases, 2 I have expressed my contrary view in my separate dissenting opinion in Badoy, Jr. vs. Ferrer 3 that the
challenged provision, together with the Act's other restrictions and strictures enumerated therein, "oppressively and
unreasonably straitjacket the candidates as well as the electorate and gravely violate the constitutional guaranties of
freedom of expression, freedom of the press and freedom of association, and, deny due process and the equal protection
of the laws."

I therefore dissent from the Court's decision at bar for the same reason and considerations stated in my
separate dissenting opinion in the case of Badoy.

I only wish to add a few words on the statements in the main opinion in Imbong-Gonzales that "(W)hile it may
be true that a party's support of a candidate is not wrong per se, it is equally true that Congress in the exercise of
the broad law-making authority can declare certain acts as mala prohibita when justified by the exigencies of the
times. One such act is the party or organization support prescribed in Sec. 8(a), which ban is a valid limitation on the
freedom of association as well as expression, for the reasons aforestated. Senator Tolentino emphasized that
'equality of chances may be better attained by banning all organization support.' "

I trust that said statements were not intended, and should not be construed, as endorsing the contention of
Senator Tolentino, the Act's sponsor, that "(T)he protection of the Constitution cannot be invoked for the right of
association when the purpose is a malum prohibitum because such purpose would be "contrary to law" " and
"(O)nce the ban (on party and organization support) is approved into law, the freedom of association cannot be
invoked against it" since the Constitution decrees only that "(T)he right to form associations or societies for purposes
not contrary to law shall not be abridged."4

Such a concept of malum prohibitum vis-a-vis the Constitutional guarantee of freedom of association which
has its root in the Malolos Constitution would render sterile and meaningless the Constitutional safeguard, should
Congress be conceded, in the exercise of its broad law-making authority, the power to strike down at any time
associations and societies by the simple expedient of declaring their purposes or certain activities, not wrong per
se as "contrary to law" or mala prohibita. I believe that such a concept begs the question. Obviously, the word "law"
in the qualifying clause "for purposes not contrary to law" does not mean that an enactment of the legislature
forecloses the question with finality and sounds the death-knell. Laws that would regulate the purposes for which
associations and societies may be formed or would declare their purposes mala prohibita must pass the usual
constitutional test of reasonableness and furthermore, must not abridge freedom of speech and press.5

# Separate Opinions

FERNANDO, J., concurring and dissenting:

Concurs and dissents in accordance with his separate opinion in Imbong v. Comelec, L-32432 and Gonzales
v. Comelec, L-32443.

BARREDO, J., dissenting:

Reiterates his views in Gonzales and Imbong insofar as they are relevant to the issues in this case, dissents,
even as agrees that Republic Act 6132 is not ex post facto.

VILLAMOR, J., concurring:

Concurs in the sense that the law is declared not ex post facto law and dissents as to the rest.

TEEHANKEE, J., dissenting:.

The Court's decision reaffirms its split-vote ruling last September 11, 1970 in Imbong vs. Ferrer and Gonzales
vs. Comelec1 upholding the constitutionality of the first paragraph of section 8(a) of Republic Act 6132. Inasmuch as I was
unable to participate in the said cases, 2 I have expressed my contrary view in my separate dissenting opinion in Badoy, Jr. vs. Ferrer 3 that the
challenged provision, together with the Act's other restrictions and strictures enumerated therein, "oppressively and
unreasonably straitjacket the candidates as well as the electorate and gravely violate the constitutional guaranties of
freedom of expression, freedom of the press and freedom of association, and, deny due process and the equal protection
of the laws."

I therefore dissent from the Court's decision at bar for the same reason and considerations stated in my
separate dissenting opinion in the case of Badoy.

I only wish to add a few words on the statements in the main opinion in Imbong-Gonzales that "(W)hile it may
be true that a party's support of a candidate is not wrong per se, it is equally true that Congress in the exercise of
the broad law-making authority can declare certain acts as mala prohibita when justified by the exigencies of the
times. One such act is the party or organization support prescribed in Sec. 8(a), which ban is a valid limitation on the
freedom of association as well as expression, for the reasons aforestated. Senator Tolentino emphasized that
'equality of chances may be better attained by banning all organization support.' "

I trust that said statements were not intended, and should not be construed, as endorsing the contention of
Senator Tolentino, the Act's sponsor, that "(T)he protection of the Constitution cannot be invoked for the right of
association when the purpose is a malum prohibitum because such purpose would be "contrary to law" " and
"(O)nce the ban (on party and organization support) is approved into law, the freedom of association cannot be
invoked against it" since the Constitution decrees only that "(T)he right to form associations or societies for purposes
not contrary to law shall not be abridged."4

Such a concept of malum prohibitum vis-a-vis the Constitutional guarantee of freedom of association which
has its root in the Malolos Constitution would render sterile and meaningless the Constitutional safeguard, should
Congress be conceded, in the exercise of its broad law-making authority, the power to strike down at any time
associations and societies by the simple expedient of declaring their purposes or certain activities, not wrong per
se as "contrary to law" or mala prohibita. I believe that such a concept begs the question. Obviously, the word "law"
in the qualifying clause "for purposes not contrary to law" does not mean that an enactment of the legislature
forecloses the question with finality and sounds the death-knell. Laws that would regulate the purposes for which
associations and societies may be formed or would declare their purposes mala prohibita must pass the usual
constitutional test of reasonableness and furthermore, must not abridge freedom of speech and press.5

# Footnotes.

1 Imbong vs. Comelec, L-32432 and Gonzales vs. Comelec, L-32443, September 11, 1970.

2 Ibid.

3 Calder vs. Bull, 3 Dall. 386, Mekin vs. Wolfe, 2 Phil. 74.

4 Fernandez vs. Oasan, L-9141, Sept. 25, 1956, 99 Phil. 934, 937.

TEEHANKEE, J., dissenting:

1 Nos. L-32432 and L-32443, jointly decided.

2 The writer hereof was then on official leave.

3 Nos. L-32456 and L-32551, October 17, 1970.

4 Sponsorship speech of Senator Arturo Tolentino of July 20, 1970, notes in parentheses
furnished; emphasis copied; cit, Art, III, Sec. 1(6), Philippine Constitution.

5 See 2 Tañada and Carreon, Political Law of the Philippines, 209.

 Republic of the Philippines
SUPREME COURT
Manila

SECOND DIVISION

G.R. Nos. 170542-43 December 13, 2010

ANTONIO A. ABOC, Petitioner,

vs.
METROPOLITAN BANK AND TRUST COMPANY, Respondent.

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

G.R. No. 176460

METROPOLITAN BANK AND TRUST COMPANY, Petitioner,

vs.
ANTONIO A. ABOC, Respondent.

DECISION

MENDOZA, J.:

Assailed in these consolidated petitions for review is the October 28, 2005 Decision1 of the Court of Appeals-
Cebu City (CA) disposing two consolidated cases, CA-G.R. SP. No. 80747 and CA-G.R. SP. No. 81363. The CA
Decision affirmed the Decision2 of the National Labor Relations Commission (NLRC) which reversed the
Decision3 of the Labor Arbiter (LA) finding Antonio A. Aboc (Aboc) to have been illegally dismissed by the
Metropolitan Bank and Trust Company (Metrobank).

These two cases stemmed from a complaint for illegal dismissal and damages filed by Aboc against
Metrobank on October 1, 1998.

In his position paper,4 Aboc, the Regional Operations Coordinator of Metrobank in Cebu City with a monthly
salary of ₱11,980.00, alleged that on August 29, 1988, he started working as a loans clerk. He was given merit
increases and awarded promotions during his employment because of his highly satisfactory performance. For nine
years, he maintained an unblemished employment record until he received an inter-office letter5 on January 29,
1998, requiring him to explain in writing the charges that he had actively participated in the lending activities of his
immediate supervisor, Wynster Y. Chua (Chua), the Branch Manager of Metrobank where he was assigned.

Aboc wrote a letter6 to Metrobank explaining that he had no interest whatsoever in the lending business of
Chua because it was solely owned by the latter. He admitted, however, that he did some acts for Chua in
connection with his lending activity. He did so because he could not say "no" to Chua because of the latter’s
influence and ascendancy over him and because of his "utang na loob" (debt of gratitude).7

His participation in the lending activity was limited to ministerial acts such as the preparation of deposit and
withdrawal slips and the typing of statement of accounts for some clients of Chua. In fact, Chua wrote a letter to
Metrobank absolving him of any responsibility and participation in his lending activities. Despite the same,
Metrobank still dismissed him on February 12, 1998.

Metrobank, on the other hand, replied that sometime in November 1995, Chua, Judith Eva Cabrido (assistant
manager), Arthur Arcepi (accountant), and Aboc organized a credit union known as Cebu North Road Investment
(CNRI). Said officers and employees used Metrobank’s premises, equipment and facilities in their lending business.
Apparently, its head office was not informed of the organization of CNRI. Had it been informed of the organization of
said credit union, it would not have tolerated or approved of it because the nature of its business would be in
conflict, inimical, and in competition with its banking business. Moreover, they did not register CNRI with the
Securities and Exchange Commission (SEC) and with the Department of Trade and Industry (DTI). The lending and
investment business of CNRI was confined not only to the employees of Metrobank but also to outsiders, including
clients of the bank.8

Metrobank also disclosed that on August 13, 1996, Aboc and his companions created another credit union,
the First Fund Access (FFA), which opened accounts with Metrobank under fictitious names. Again, it was not
informed of the existence of this credit union.

In September 1997, Chua and Aboc were observed to have openly convinced outsiders and clients of
Metrobank to patronize their lending and investment business. During the investigation conducted by Metrobank on
January 15, 1998, it was discovered that Aboc solicited investors including its clients for said credit union. He also
induced bank clients to withdraw their accounts and invest them in CNRI. He even signed as one of the signatories
in the trust receipts of some bank clients.1avv phi 1

During the administrative investigation, Metrobank likewise discovered that Aboc committed the following
acts:

1. Preparation of all necessary documents on deposits/placements and loans of said lending

activities.

2. Preparation of checks and acting as co-signatory of Chua in payment for matured

deposits/placements or proceeds of loans to the damage and prejudice of Metrobank.

Metrobank required Aboc to submit a written explanation why he should not be dismissed for cause and
attend a conference in the morning of February 10, 1998 at the Visayas Regional Office, Fuente Osmeña Center,
Cebu City, in which he was allowed to bring a counsel of his own choice. On February 6, 1998, he submitted his
written explanation. On February 10, 1998, he attended the conference.

Thereafter, Metrobank found that Aboc’s actions constituted serious misconduct and a breach of trust and
confidence. On February 12, 1998, Metrobank terminated his services.

Ruling of the Labor Arbiter

After the parties had submitted their respective position papers, the LA rendered her decision on July 12,
1999, finding that Aboc was illegally dismissed from the service by Metrobank. The dispositive portion of her
decision reads:

WHEREFORE, VIEWED FROM THE FOREGOING, judgment is hereby rendered declaring complainant
Antonio Aboc to have been illegally dismissed from the service by respondent Metropolitan Bank and Trust
Company (Metrobank). Consequently, same respondent Metrobank is hereby ordered to reinstate complainant Aboc
to his former position or to a substantially equivalent position without loss of seniority rights and other privileges, and
to pay said complainant the following, to wit:

1. Backwages

February 12, 1998 to July 12, 1999

₱11, 980.00 x 18 months …………………..₱215, 640.00

13th month = 1 yr ……….₱11, 980.00

5 mons ……₱ 4, 991.66
₱ 16, 971.66
Service Incentive Leave (₱11, 980.00 divided

by 26 = ₱460.76 x 5 ………………2,303.80 ₱19,275.46 ₱234, 915.46

2. 10% Attorney’s Fees……………………………………..₱ 23, 491.54
 GRAND TOTAL AWARD---------------------------------₱258, 407.009

The LA reasoned out that Metrobank failed to prove by clear and convincing evidence the charges of serious
misconduct, breach of trust and loss of confidence against Aboc. His lending activities were not foreign to
Metrobank in the sense that credit unions commonly existed in its other branches and that said credit unions were
handled by its high ranking employees.

The LA added that Aboc’s participation in the lending activities was due to "force of circumstance." He was an
"unwilling participant" in the business of his superior because he could not just say "no" to Chua in view of the
latter’s moral ascendancy over him. In fact, Chua vouched for his non-participation in the lending business.
According to the LA, to sanction the penalty of dismissal against Aboc would be unfair.10

Moreover, the LA ruled that Metrobank did not comply with the due process requirement in dismissing Aboc
because no hearing was conducted after he was required to explain. He was never informed that he was going to be
investigated in connection with the charges being leveled against him. The conference set up by Metrobank could
not be considered a substitute to the actual holding of a hearing.

Ruling of the National

Labor Relations Commission

On December 11, 2002, the NLRC set aside the decision of the LA but ordered Metrobank to pay Aboc
reinstatement wages from July 12, 1999 to September 16, 1999; salary increase from January 2000 to June 2001;
Christmas bonus for the year 2000; 13th month pay differential for the year 2000; and salary differential for July and
August 2001. The dispositive portion of the NLRC Decision reads:

WHEREFORE, premises considered, the decision of the Labor Arbiter is hereby set aside and vacated and a
new one entered dismissing the complaint. However, respondent Metropolitan Bank and Trust Company is hereby
ordered to pay the following amounts with respect to complainant’s reinstatement pending appeal:

1. Reinstatement Wages (July 12, 1999 to

September 16, 1999 at ₱11, 980.00) ₱23, 960.00

2. Salary Increase from January 2000 to

June 2001 at ₱1, 500.00/month 27, 000.00

3. Christmas Bonus CY 2000 18, 030.00

4. 13th Month Pay Differential for CY 2000 1, 500.00

5. Salary Diff’l for July & Aug. 2001 7, 200.00

Total ₱77, 690.00

SO ORDERED.11

The NLRC ruled that Aboc was guilty of serious misconduct and breach of trust and loss of confidence based
on the following overt acts:

1. Complainant (Aboc) was an organizer of both CNRI and FFA, business entities which directly
competed with the line of business of respondent (Metrobank);

2. Complainant was a responsible officer of both credit unions and actively participated in their
transactions, using the respondent bank’s office, facilities, and equipments.
 3. Complainant, as bank officer, had the serious responsibility of reporting to respondent the
establishment of CNRI and FFA but he deliberately failed to do so.

4. Petitioner admits having opened new accounts bearing fictitious names knowing fully well that it
was against bank policy.

The NLRC wrote that Aboc’s loyalty should be first and foremost to Metrobank. This consideration should be
over and above whatever personal debts of gratitude he owed Chua.

On due process, the NLRC ruled that Metrobank fully complied with the two-notice rule under the Labor
Code. It sent an inter-office letter dated July 16, 1998 to Aboc asking him to explain why his services should not be
terminated for cause. Subsequently, Aboc submitted a written explanation dated February 6, 1998. He was likewise
invited to a conference, which he attended on February 10, 1998, purposely to give him the chance to explain his
side and to adduce evidence in his behalf.

On the monetary awards, the NLRC explained that Aboc was entitled to receive them because he was
included in the payroll by Metrobank as he was ordered reinstated by the LA.

Both Aboc and Metrobank were not satisfied with the NLRC Decision. The former filed a motion for
reconsideration12 while the latter filed a motion for partial reconsideration13 on the monetary award.

On September 17, 2003, the NLRC issued a resolution14 affirming its finding of valid dismissal but modifying
the monetary award by directing Metrobank to pay Aboc his CBA benefits during his reinstatement pending appeal
and his salary during the period stated therein, thereby partially granting Aboc’s motion for reconsideration and
denying Metrobank’s motion for partial consideration.

Aggrieved, Metrobank challenged the grant of monetary award in a petition15 before the CA, docketed as CA-
G.R. SP. No. 80747, while Aboc questioned the validity of his dismissal in a petition,16 docketed as CA-G.R.SP. No.
81363. The two petitions were consolidated by the CA because they involved the same parties and intertwined
issues.

Ruling of the Court of Appeals

On October 28, 2005, the CA rendered its decision affirming the decision of the NLRC, the dispositive portion
of which reads:

WHEREFORE, judgment is hereby rendered as follows:

1. In CA-G.R. No. 807407, the petition is partially granted insofar as the finding of public respondent
on the validity and legality of the dismissal of private respondent Antonio A. Aboc.

2. In CA-G.R. No. 81363, the petition is partially granted insofar as the grant of the monetary award in
favor of petitioner Antonio A. Aboc.

No pronouncement as to costs.

SO ORDERED.17

The CA wrote that Aboc’s participation in the organization of two (2) credit unions operating inside Metrobank
without its knowledge and consent was inimical to the welfare of the bank. The lending and investment transactions
of the credit unions directly competed with the business of Metrobank. Aboc held a position that required loyalty and
exercise of sound judgment.

The CA also agreed with the NLRC that Aboc was duly afforded ample opportunity to defend himself during
the conference conducted on February 10, 1998 reasoning that a formal trial-type hearing was not, at all times,
essential to due process. Aboc was able to explain his side and submit evidence during the conference.
 On the monetary award, as Aboc was ordered reinstated as an employee of Metrobank pending appeal, the
CA held that he was entitled to receive his monetary claims.

Dissatisfied with the assailed CA Decision, both parties filed their respective petitions before this Court.
Aboc’s petition was docketed as G.R. No. 170542-43 and Metrobank’s petition as G.R. No. 176460. On June 4,
2007, this Court issued a resolution18 consolidating the two petitions because they have the same set of facts and
involve the same parties and issues.

ISSUES

1. Whether or not the Court of Appeals erred in ruling that Antonio A. Aboc was validly dismissed by
the Metropolitan Bank and Trust Company.

2. Whether or not the Court of Appeals erred in ruling that the Metropolitan Bank and Trust Company
was liable to pay the monetary award claimed by Antonio A. Aboc.

Position of Aboc

Aboc basically contends that:

1. Metrobank’s CA petition should have been dismissed for being filed out of time and for failing to
comply with the procedural requirements. Metrobank’s counsel of record, E.F. Rosello and Associates Law
Office, received a copy of the September 17, 2003 CA Resolution on September 26, 2003. Therefore, it had
until November 25, 2003 within which to file its petition. The petition, however, was filed after November 25,
2003 only because the Verification and Certification of Non-Forum Shopping therein was notarized only on
November 27, 2003. Moreover, the petition did not contain a Statement of Material Dates and Proof of
Service thereof on the opposing party.

2. He was illegally dismissed as he was not guilty of serious misconduct and breach of trust. Being
"an organizer" of credit unions like CNRI and FFA did not necessarily make him guilty of serious misconduct
or breach of trust and confidence because the operation of credit unions and cooperatives were not
prohibited or, at the very least, tolerated by Metrobank. In fact, all Metrobank branches practically
maintained credit unions of their own. Metrobank even "failed to present a single written rule or regulation
that suggested even remotely that credit unions were prohibited."19

3. He was effectively deprived of his rights to due process because the interrogation conducted by
Metrobank’s representatives at its head office in Manila clearly smacked of oppression, intimidation and
coercion. Metrobank exerted moral coercion, undue ascendancy and undue influence over him, a hapless
and helpless employee.

Position of Metrobank

Metrobank argues that:

1. The date of the filing of its petition should be reckoned from September 29, 2003, the date the law
firm of Rayala Alonso and Partners received the September 17, 2003 CA Resolution because said law firm
took active participation in the proceedings while the law office of E.F. Rosello and Associates had already
ceased taking active part.

2. Bank employees, as per Bank Policy, were prohibited from engaging in informal credit union
activities. Aboc engaged in an irregular activity for profit, which directly competed with Metrobank’s
business. The acts committed by Aboc - organizing and acting as auditor of the CNRI and FFA credit
unions; opening the accounts of CNRI and FFA with Metrobank under his name and his companions;
soliciting investors including the clients of Metrobank; opening accounts for the credit unions under fictitious
names to hide the lending and investment activities of said credit unions; and inducing a respondent bank’s
client to withdraw her account with Metrobank and to invest it instead with CNRI- constituted wrong and
improper conduct warranting dismissal for serious misconduct and loss of trust and confidence.
 3. The dispositive portion of the reversed decision of the LA merely made mention of reinstatement,
payment of backwages, 13th month pay, service incentive leave pay, and attorney’s fees. It was silent on
the salary increase from January 2000 to June 2001, salary increase differentials, 13th month pay, and
award of bonuses. Therefore, these should have been deleted and no other monetary awards should have
been given to Aboc.

4. The computation of Aboc’s backwages should be limited to the rate of wage at the time of his
separation from the service, excluding the salary increases and those under the collective bargaining
agreement. Since the salary increase from January 2000 to June 2001 would have the effect of increasing
Aboc’s base salary, it should not have been awarded. If he was not entitled to salary increases, he should
not be awarded salary increase differentials or wage differentials as well as 13th month pay differentials.

5. The granting of a bonus is a management prerogative. Aboc is not entitled to receive bonuses
because he participated in activities competing with Metrobank’s main business instead of remaining loyal to
it.

The Court’s Ruling

After an assiduous assessment of the records, the Count finds no cogent reason to disturb the subject
decision of the CA.

On the procedural issue raised by Aboc regarding Metrobank’s alleged belated filing of its petition before the
CA, the records show that all pleadings filed by Metrobank, since the filing of its Motion For Partial Reconsideration
dated January 15, 2003, was prepared and filed by Rayala Alonso and Partners. Aboc knew all along that
Metrobank was being represented by said firm since his counsel furnished the latter a copy of his motion for
reconsideration.

It appears that Rayala Alonso and Partners received a copy of the September 17, 2003 NLRC decision on
September 29, 2003. For said reason, Metrobank is correct in asserting that it timely filed its petition on November
7, 2004.

Nonetheless, granting that Metrobank belatedly filed its petition, a delay of just two (2) days should not be
fatal. Litigations should be decided on the merits of the case, not on mere technicalities.

The court has the discretion to dismiss or not to dismiss an appellant's appeal. It is a power conferred on the
court, not a duty. The discretion must be a sound one, to be exercised in accordance with the tenets of justice and
fair play, having in mind the circumstances obtaining in each case. Technicalities, however, must be avoided. The
law abhors technicalities that impede the cause of justice. The court's primary duty is to render or dispense justice.

Litigations must be decided on their merits and not on technicality. Every party litigant must be afforded the
amplest opportunity for the proper and just determination of his cause, free from the unacceptable plea of
technicalities. Thus, dismissal of appeals purely on technical grounds is frowned upon where the policy of the court
is to encourage hearings of appeals on their merits and the rules of procedure ought not to be applied in a very rigid,
technical sense; rules of procedure are used only to help secure, not override substantial justice. It is a far better
and more prudent course of action for the court to excuse a technical lapse and afford the parties a review of the
case on appeal to attain the ends of justice rather than dispose of the case on technicality and cause a grave
injustice to the parties, giving a false impression of speedy disposal of cases while actually resulting in more delay, if
not a miscarriage of justice.20

On Aboc’s termination, Article 282 of the Labor Code states:

ART. 282. TERMINATION BY EMPLOYER. - An employer may terminate an employment for any of the
following causes:

(a) Serious misconduct or willful disobedience by the employee of the lawful orders of his employer
or representative in connection with his work;
 (b) Gross and habitual neglect by the employee of his duties;

(c) Fraud or willful breach by the employee of the trust reposed in him by his employer or duly
authorized representative;

(d) Commission of a crime or offense by the employee against the person of his employer or any
immediate member of his family or his duly authorized representative; and

(e) Other causes analogous to the foregoing.

In termination cases, the burden of proof rests on the employer to show that the dismissal was for a just
cause or authorized cause. An employee's dismissal due to serious misconduct and loss of trust and confidence
must be supported by substantial evidence. Substantial evidence is that amount of relevant evidence as a
reasonable mind might accept as adequate to support a conclusion, even if other minds, equally reasonable, might
conceivably opine otherwise.21

In the case at bench, Metrobank’s evidence clearly shows that the acts of Aboc in helping Chua organize the
CNRI and FFA credit unions and in the operations thereof constituted serious misconduct or breach of trust and
confidence. In response to the inter-office letter22 sent by Metrobank on January 29, 1998, Aboc submitted his
Explanation23 dated February 6, 1998, admitting having committed said acts but claiming that he was only an
"unwilling participant" doing a ministerial job.

During the investigation conducted on January 15, 1998 at Metrobank’s head office in Makati City, however,
the following facts were established:

1. He was one of the organizers of the CNRI and FFA credit unions and acted as auditor of said credit
unions.

2. He and his co-organizers did not inform Metrobank about the existence of said credit unions.

3. CNRI and FFA opened an account with Metrobank under the names Wynster Chua, Judith Eva
Cabrido and Antonio Aboc.

4. He solicited investors including Metrobank clients for said credit unions, and signed as one of the
signatories in the Trust Certificate of Marlyn Belleza and Grace Lim.

5. He and Chua opened accounts for the said credit unions under the fictitious names of Vicente
Belocura and Romeo Gonzales, respectively.

6. He induced a certain Nerinilda Arcipe (Nerinilda), a non-employee of Metrobank, to withdraw her

UNISA account with Metrobank and invest it with CNRI.

7. The regional and local checks in the names of Belocura, John BK Chua, John AJ. Jazal, and
Wynster Chua, issued in connection with the business activities of CNRI and FFA were treated as bills
purchases and the proceeds thereof were immediately withdrawn without waiting for three (3) to five (5)
days clearing in violation of Metrobank’s control system.

Indeed, Aboc’s participation in the lending and investment activities of CNRI and FFA was highly irregular
and clearly in conflict with Metrobank’s business. The irregularity of his act was evident from the fact that he
deliberately failed to inform Metrobank about the existence of CNRI and FFA. Though he expressed apprehension
and was not pleased with the way Chua was running the lending business, he never informed or, at least, sought
advice from his employer. Instead of doing so, he actively participated in the business of Chua which competed
against that of Metrobank.

Moreover, Aboc knew about the subject credit union’s non-registration with the Central Bank or any proper
government institution. Being an experienced banker, he should have known that the lending activities of the subject
credit unions were questionable, if not, illegal, due to its non-registration. Again, Aboc chose not to inform his
employer about this and, instead, participated in the operations of the subject credit unions.

The fact that Aboc opened accounts for the subject credit unions under fictitious names can only mean that
the group had something to hide.

Under the above circumstances, the Court cannot subscribe to the assertion that he was just an "unwilling
participant" doing a "ministerial" job for the subject credit unions. Certainly, the acts of 1) opening an account under
fictitious names; 2) solicitation of Metrobank clients to invest in their credit union; 3) co-signing of trust receipts; and
4) inducement of an investor to withdraw her account and transfer it to the subject credit unions, were certainly not
"ministerial" tasks of an "unwilling participant." He was just not a runner doing errands for Chua; he was the auditor
for CNRI and FFA and actively participated in their lending activities.

Aboc cannot be saved by Chua’s letter24 dated February 17, 1998 explaining that Aboc had no participation
whatsoever in said lending activities. Metrobank was his employer, not Chua. Most important, Metrobank was
paying his salary and other benefits in exchange for his services. Therefore, Aboc’s loyalty should first and foremost
be to Metrobank. Ironically, Aboc did not return the favor. He chose his personal interest over that of Metrobank.

The Court cannot give weight to the argument that Metrobank was aware of the proliferation of credit unions
in practically all of its branches and did not prohibit the operation thereof. Contrary to Aboc’s position, Metrobank
issued notices to all its employees regarding the prohibition on the practice of borrowing and lending money among
its officers, employees, and bank clients. Metrobank’s notices were dated June 15, 198825 and August 30, 1995.26

Aboc’s highly irregular participation in the lending business of CNRI and FFA jeopardized the business of
Metrobank. CNRI and FFA were practically competing with the business of Metrobank by soliciting investors
including clients of the bank for their credit unions. Aboc admitted that he was able to induce Nerinilda, the widow of
a former branch accountant of Metrobank, to withdraw her UNISA account with Metrobank and invest it with their
credit union. This was confirmed by Nerinilda herself in her affidavit27 dated December 11, 1997.

To extricate himself, Aboc also argues that Metrobank failed to comply with the requirements of due process
in dismissing him because he was not properly investigated. According to him, the interrogation conducted by
Metrobank was done in an atmosphere of fear, oppression, intimidation, and coercion.

The Court is not persuaded.

The evidence shows that he was afforded due process. The essence of due process is an opportunity to be
heard or, as applied to administrative proceedings, an opportunity to explain one's side. A formal or trial-type
hearing is not essential.28 In this regard, the Court agrees with the CA when it wrote:

Regarding the procedural requirements of notice and hearing, records show Aboc was duly notified through
the letter dated 29 January 1998 asking him to explain why his services should not be terminated. In fact, Aboc
replied to the same by submitting a written explanation on 6 February 1998. We likewise find that he was duly
afforded ample opportunity to defend himself during the conference conducted on 10 February. Aboc’s contention
that the conference he attended cannot substitute the "hearing mandated by the Labor Code is bereft of merit. A
formal trial-type hearing is not at all times and in all instances essential to due process. It is enough that the parties
are given a fair and reasonable opportunity to explain their respective sides of the controversy and to present
supporting evidence on which a fair decision can be based.29

The Court, however, cannot also accommodate Metrobank.

The monetary award granted to Aboc was warranted under the law and jurisprudence. Article 223 of the
Labor Code reads, in part:

In any event, the decision of the Labor Arbiter reinstating a dismissed or separated employee, insofar as the
reinstatement aspect is concerned, shall immediately be executory, pending appeal. The employee shall either be
admitted back to work under the same terms and conditions prevailing prior to his dismissal or separation or, at the
option of the employer, merely reinstated in the payroll. The posting of a bond by the employer shall not stay the
execution for reinstatement provided herein.

In the case at bench, it cannot be denied that Metrobank opted to reinstate Aboc in its payroll. Since
Metrobank chose payroll reinstatement for Aboc, the Court agrees with the CA that he then became a reinstated
regular employee. This means that he was restored to his previous position as a regular employee without loss of
seniority rights and other privileges appurtenant thereto. His payroll reinstatement put him on equal footing with the
other regular Metrobank employees insofar as entitlement to the benefits given under the Collective Bargaining
Agreement is concerned.

The fact that the decision of the LA was reversed on appeal has no controlling significance. The rule is that
even if the order of reinstatement of the LA is reversed on appeal, it is obligatory on the part of the employer
to reinstateand pay the wages of the dismissed employee during the period of appeal until final reversal by the
higher court.30

WHEREFORE, the October 28, 2005 Decision of the Court of Appeals is AFFIRMED.

SO ORDERED.

JOSE CATRAL MENDOZA

Associate Justice

WE CONCUR:

ANTONIO T. CARPIO
Associate Justice
Chairperson

ANTONIO EDUARDO B. NACHURA DIOSDADO M. PERALTA

Associate Justice Associate Justice

ROBERTO A. ABAD
Associate Justice

ATTESTATION

I attest that the conclusions in the above Decision had been reached in consultation before the case was
assigned to the writer of the opinion of the Court’s Division.

ANTONIO T. CARPIO
Associate Justice
Chairperson, Second Division

CERTIFICATION

Pursuant to Section 13, Article VIII of the Constitution and the Division Chairperson’s Attestation, I certify that
the conclusions in the above Decision had been reached in consultation before the case was assigned to the writer
of the opinion of the Court’s Division.

RENATO C. CORONA
Chief Justice