Republic of the Philippines (petitioner) and Jovy Calderon (Calderon) with the crime of theft.
On
SUPREME COURT
Manila
EN BANC
G. R. No. 160188 June 21, 2007
ARISTOTEL VALENZUELA y NATIVIDAD, petitioner,
vs.
PEOPLE OF THE PHILIPPINES and HON. COURT OF APPEALS
NACHURA, respondents.
DECISION
TINGA, J.:
This case aims for prime space in the firmament of our criminal law
jurisprudence. Petitioner effectively concedes having performed the
felonious acts imputed against him, but instead insists that as a result,
he should be adjudged guilty of frustrated theft only, not the felony in
its consummated stage of which he was convicted. The proposition
rests on a common theory expounded in two well-known
decisions1 rendered decades ago by the Court of Appeals, upholding
the existence of frustrated theft of which the accused in both cases
were found guilty. However, the rationale behind the rulings has never
been affirmed by this Court.
As far as can be told,2 the last time this Court extensively considered
whether an accused was guilty of frustrated or consummated theft
was in 1918, in People v. Adiao.3 A more cursory
treatment of the question was followed in 1929, in People v.
Sobrevilla,4 and in 1984, in Empelis v. IAC.5 This petition now gives
occasion for us to finally and fully measure if or how frustrated theft is
susceptible to commission under the Revised Penal Code.
I.
The basic facts are no longer disputed before us. The case stems
from an Information6 charging petitioner Aristotel Valenzuela
19 May 1994, at around 4:30 p.m., petitioner and Calderon were
sighted outside the Super Sale Club, a supermarket within the
ShoeMart (SM) complex along North EDSA, by Lorenzo Lago (Lago),
a security guard who was then manning his post at the open parking
area of the supermarket. Lago saw petitioner, who was wearing an
identification card with the mark "Receiving Dispatching Unit (RDU),"
hauling a push cart with cases of detergent of the well-known "Tide"
brand. Petitioner unloaded these cases in an open parking space,
where Calderon was waiting. Petitioner then returned inside the
supermarket, and after five (5) minutes, emerged with more cartons of
Tide Ultramatic and again unloaded these boxes to the same area in
the open parking space.7
Thereafter, petitioner left the parking area and haled a taxi. He
boarded the cab and directed it towards the parking space where
Calderon was waiting. Calderon loaded the cartons of Tide Ultramatic
inside the taxi, then boarded the vehicle. All these acts were eyed by
Lago, who proceeded to stop the taxi as it was leaving the open
parking area. When Lago asked petitioner for a receipt of the
merchandise, petitioner and Calderon reacted by fleeing on foot, but
Lago fired a warning shot to alert his fellow security guards of the
incident. Petitioner and Calderon were apprehended at the scene, and
the stolen merchandise recovered.8 The filched items seized from the
duo were four (4) cases of Tide Ultramatic, one (1) case of Ultra 25
grams, and three (3) additional cases of detergent, the goods with an
aggregate value of ₱12,090.00.9
Petitioner and Calderon were first brought to the SM security office
before they were transferred on the same day to the Baler Station II of
the Philippine National Police, Quezon City, for investigation. It
appears from the police investigation records that apart from petitioner
and Calderon, four (4) other persons were apprehended by the
security guards at the scene and delivered to police custody at the
Baler PNP Station in connection with the incident. However, after the
matter was referred to the Office of the Quezon City Prosecutor, only
petitioner and Calderon were charged with theft by the Assistant City
Prosecutor, in Informations prepared on 20 May 1994, the day after
the incident.10
After pleading not guilty on arraignment, at the trial, petitioner and
Calderon both claimed having been innocent bystanders within the
vicinity of the Super Sale Club on the afternoon of 19 May 1994 when
they were haled by Lago and his fellow security guards after a
commotion and brought to the Baler PNP Station. Calderon alleged
that on the afternoon of the incident, he was at the Super Sale Club to
withdraw from his ATM account, accompanied by his neighbor,
Leoncio Rosulada.11 As the queue for the ATM was long, Calderon
and Rosulada decided to buy snacks inside the supermarket. It was
while they were eating that they heard the gunshot fired by Lago,
leading them to head out of the building to check what was
transpiring. As they were outside, they were suddenly "grabbed" by a
security guard, thus commencing their detention.12 Meanwhile,
petitioner testified during trial that he and his cousin, a Gregorio
Valenzuela,13 had been at the parking lot, walking beside the nearby
BLISS complex and headed to ride a tricycle going to Pag-asa, when
they saw the security guard Lago fire a shot. The gunshot caused him
and the other people at the scene to start running, at which point he
was apprehended by Lago and brought to the security office.
Petitioner claimed he was detained at the security office until around
9:00 p.m., at which time he and the others were brought to the Baler
Police Station. At the station, petitioner denied having stolen the
cartons of detergent, but he was detained overnight, and eventually
brought to the prosecutor’s office where he was charged with
theft.14 During petitioner’s cross-examination, he admitted that he had
been employed as a "bundler" of GMS Marketing, "assigned at the
supermarket" though not at SM.15
In a Decision16 promulgated on 1 February 2000, the Regional Trial
Court (RTC) of Quezon City, Branch 90, convicted both petitioner and
Calderon of the crime of consummated theft. They were sentenced to
an indeterminate prison term of two (2) years of prision correccional
as minimum to seven (7) years of prision mayor as maximum.17 The
RTC found credible the testimonies of the prosecution witnesses and
established the convictions on the positive identification of the
accused as perpetrators of the crime.
Both accused filed their respective Notices of Appeal,18 but only
petitioner filed a brief19 with the Court of Appeals, causing the
appellate court to deem Calderon’s appeal as abandoned and
consequently dismissed. Before the Court of Appeals, petitioner
argued that he should only be convicted of frustrated theft since at the
time he was apprehended, he was never placed in a position to freely
dispose of the articles stolen.20 However, in its Decision dated 19
June 2003,21 the Court of Appeals rejected this contention and
affirmed petitioner’s conviction.22 Hence the present Petition for
Review,23 which expressly seeks that petitioner’s conviction "be
modified to only of Frustrated Theft."24
Even in his appeal before the Court of Appeals, petitioner effectively
conceded both his felonious intent and his actual participation in the
theft of several cases of detergent with a total value of ₱12,090.00 of
which he was charged.25 As such, there is no cause for the Court to
consider a factual scenario other than that presented by the
prosecution, as affirmed by the RTC and the Court of Appeals. The
only question to consider is whether under the given facts, the theft
should be deemed as consummated or merely frustrated.
II.
In arguing that he should only be convicted of frustrated theft,
petitioner cites26 two decisions rendered many years ago by the Court
of Appeals: People v. Diño27 and People v. Flores.28 Both decisions
elicit the interest of this Court, as they modified trial court convictions
from consummated to frustrated theft and involve a factual milieu that
bears similarity to the present case. Petitioner invoked the same
rulings in his appeal to the Court of Appeals, yet the appellate court
did not expressly consider the import of the rulings when it affirmed
the conviction.
It is not necessary to fault the Court of Appeals for giving short shrift
to the Diño and Flores rulings since they have not yet been expressly
adopted as precedents by this Court. For whatever reasons,
the occasion to define or debunk the crime of frustrated theft has not
come to pass before us. Yet despite the silence on our part, Diño and
Flores have attained a level of renown reached by very few other
appellate court rulings. They are comprehensively discussed in the
most popular of our criminal law annotations,29 and studied in criminal
law classes as textbook examples of frustrated crimes or even as
definitive of frustrated theft.
More critically, the factual milieu in those cases is hardly akin to the
fanciful scenarios that populate criminal law exams more than they
actually occur in real life. Indeed, if we finally say that Diño and Flores
are doctrinal, such conclusion could profoundly influence a multitude
of routine theft prosecutions, including commonplace shoplifting. Any
scenario that involves the thief having to exit with the stolen property
through a supervised egress, such as a supermarket checkout
counter or a parking area pay booth, may easily call for the application
of Diño and Flores. The fact that lower courts have not hesitated to lay
down convictions for frustrated theft further validates that Diño and
Flores and the theories offered therein on frustrated theft have borne
some weight in our jurisprudential system. The time is thus ripe for us
to examine whether those theories are correct and should continue to
influence prosecutors and judges in the future.
III.
To delve into any extended analysis of Diño and Flores, as well as the
specific issues relative to "frustrated theft," it is necessary to first refer
to the basic rules on the three stages of crimes under our Revised
Penal Code.30
Article 6 defines those three stages, namely the consummated,
frustrated and attempted felonies. A felony is consummated "when all
the elements necessary for its execution and accomplishment are
present." It is frustrated "when the offender performs all the acts of
execution which would produce the felony as a consequence but
which, nevertheless, do not produce it by reason of causes
independent of the will of the perpetrator." Finally, it is attempted
"when the offender commences the commission of a felony directly by
overt acts, and does not perform all the acts of execution which
should produce the felony by reason of some cause or accident other
than his own spontaneous desistance."
Each felony under the Revised Penal Code has a "subjective phase,"
or that portion of the acts constituting the crime included between the
act which begins the commission of the crime and the last act
performed by the offender which, with prior acts, should result in the
consummated crime.31 After that point has been breached, the
subjective phase ends and the objective phase begins.32 It has been
held that if the offender never passes the subjective phase of the
offense, the crime is merely attempted.33 On the other hand, the
subjective phase is completely passed in case of frustrated crimes, for
in such instances, "[s]ubjectively the crime is complete."34
Truly, an easy distinction lies between consummated and frustrated
felonies on one hand, and attempted felonies on the other. So long as
the offender fails to complete all the acts of execution despite
commencing the commission of a felony, the crime is undoubtedly in
the attempted stage. Since the specific acts of execution that define
each crime under the Revised Penal Code are generally enumerated
in the code itself, the task of ascertaining whether a crime is
attempted only would need to compare the acts actually performed by
the accused as against the acts that constitute the felony under the
Revised Penal Code.
In contrast, the determination of whether a crime is frustrated or
consummated necessitates an initial concession that all of the acts of
execution have been performed by the offender. The critical
distinction instead is whether the felony itself was actually produced
by the acts of execution. The determination of whether the felony was
"produced" after all the acts of execution had been performed hinges
on the particular statutory definition of the felony. It is the statutory
definition that generally furnishes the elements of each crime under
the Revised Penal Code, while the elements in turn unravel the
particular requisite acts of execution and accompanying criminal
intent.
The long-standing Latin maxim "actus non facit reum, nisi mens sit
rea" supplies an important characteristic of a crime, that "ordinarily,
evil intent must unite with an unlawful act for there to be a crime," and
accordingly, there can be no crime when the criminal mind is
wanting.35 Accepted in this jurisdiction as material in crimes mala in
se,36mens rea has been defined before as "a guilty mind, a guilty or
wrongful purpose or criminal intent,"37 and "essential for criminal
liability."38 It follows that the statutory definition of our mala in se
crimes must be able to supply what the mens rea of the crime is, and
indeed the U.S. Supreme Court has comfortably held that "a criminal
law that contains no mens rea requirement infringes on
constitutionally protected rights."39 The criminal statute must also
provide for the overt acts that constitute the crime. For a crime to exist
in our legal law, it is not enough that mens rea be shown; there must
also be an actus reus.40
It is from the actus reus and the mens rea, as they find expression in
the criminal statute, that the felony is produced. As a postulate in the
craftsmanship of constitutionally sound laws, it is extremely preferable
that the language of the law expressly provide when the felony is
produced. Without such provision, disputes would inevitably ensue on
the elemental question whether or not a crime was committed,
thereby presaging the undesirable and legally dubious set-up under
which the judiciary is assigned the legislative role of defining crimes.
Fortunately, our Revised Penal Code does not suffer from such
infirmity. From the statutory definition of any felony, a decisive
passage or term is embedded which attests when the felony is
produced by the acts of execution. For example, the statutory
definition of murder or homicide expressly uses the phrase "shall kill
another," thus making it clear that the felony is produced by the death
of the victim, and conversely, it is not produced if the victim survives.
We next turn to the statutory definition of theft. Under Article 308 of
the Revised Penal Code, its elements are spelled out as follows:
Art. 308. Who are liable for theft.— Theft is committed by any person
who, with intent to gain but without violence against or intimidation of
persons nor force upon things, shall take personal property of another
without the latter’s consent.
Theft is likewise committed by:
1. Any person who, having found lost property, shall fail to deliver the
same to the local authorities or to its owner;
2. Any person who, after having maliciously damaged the property of
another, shall remove or make use of the fruits or object of the
damage caused by him; and
3. Any person who shall enter an inclosed estate or a field where
trespass is forbidden or which belongs to another and without the
consent of its owner, shall hunt or fish upon the same or shall gather
cereals, or other forest or farm products.
Article 308 provides for a general definition of theft, and three
alternative and highly idiosyncratic means by which theft may be
committed.41 In the present discussion, we need to concern ourselves
only with the general definition since it was under it that the
prosecution of the accused was undertaken and sustained. On the
face of the definition, there is only one operative act of execution by
the actor involved in theft ─ the taking of personal property of another.
It is also clear from the provision that in order that such taking may be
qualified as theft, there must further be present the descriptive
circumstances that the taking was with intent to gain; without force
upon things or violence against or intimidation of persons; and it was
without the consent of the owner of the property.
Indeed, we have long recognized the following elements of theft as
provided for in Article 308 of the Revised Penal Code, namely: (1) that
there be taking of personal property; (2) that said property belongs to
another; (3) that the taking be done with intent to gain; (4) that the
taking be done without the consent of the owner; and (5) that the
taking be accomplished without the use of violence against or
intimidation of persons or force upon things.42
In his commentaries, Judge Guevarra traces the history of the
definition of theft, which under early Roman law as defined by Gaius,
was so broad enough as to encompass "any kind of physical handling
of property belonging to another against the will of the owner,"43 a
definition similar to that by Paulus that a thief "handles (touches,
moves) the property of another."44 However, with the Institutes of
Justinian, the idea had taken hold that more than mere physical
handling, there must further be an intent of acquiring gain from the
object, thus: "[f]urtum est contrectatio rei fraudulosa, lucri faciendi
causa vel ipsius rei, vel etiam usus ejus possessinisve."45 This
requirement of animo lucrandi, or intent to gain, was maintained in
both the Spanish and Filipino penal laws, even as it has since been
abandoned in Great Britain.46
In Spanish law, animo lucrandi was compounded with apoderamiento,
or "unlawful taking," to characterize theft. Justice Regalado notes that
the concept of apoderamiento once had a controversial interpretation
and application. Spanish law had already discounted the belief that
mere physical taking was constitutive of apoderamiento, finding that it
had to be coupled with "the intent to appropriate the object in order to
constitute apoderamiento; and to appropriate means to deprive the
lawful owner of the thing."47 However, a conflicting line of cases
decided by the Court of Appeals ruled, alternatively, that there must
be permanency in the taking48 or an intent to permanently deprive the
owner of the stolen property;49 or that there was no need for
permanency in the taking or in its intent, as the mere temporary
possession by the offender or disturbance of the proprietary rights of
the owner already constituted apoderamiento.50 Ultimately, as Justice
Regalado notes, the Court adopted the latter thought that there was
no need of an intent to permanently deprive the owner of his property
to constitute an unlawful taking.51
So long as the "descriptive" circumstances that qualify the taking are
present, including animo lucrandi and apoderamiento, the completion
of the operative act that is the taking of personal property of another
establishes, at least, that the transgression went beyond the
attempted stage. As applied to the present case, the moment
petitioner obtained physical possession of the cases of detergent and
loaded them in the pushcart, such seizure motivated by intent to gain,
completed without need to inflict violence or intimidation against
persons nor force upon things, and accomplished without the consent
of the SM Super Sales Club, petitioner forfeited the extenuating
benefit a conviction for only attempted theft would have afforded him.
On the critical question of whether it was consummated or frustrated
theft, we are obliged to apply Article 6 of the Revised Penal Code to
ascertain the answer. Following that provision, the theft would have
been frustrated only, once the acts committed by petitioner, if
ordinarily sufficient to produce theft as a consequence, "do not
produce [such theft] by reason of causes independent of the will of the
perpetrator." There are clearly two determinative factors to consider:
that the felony is not "produced," and that such failure is due to
causes independent of the will of the perpetrator. The second factor
ultimately depends on the evidence at hand in each particular case.
The first, however, relies primarily on a doctrinal definition attaching to
the individual felonies in the Revised Penal Code52 as to when a
particular felony is "not produced," despite the commission of all the
acts of execution.
So, in order to ascertain whether the theft is consummated or
frustrated, it is necessary to inquire as to how exactly is the felony of
theft "produced." Parsing through the statutory definition of theft under
Article 308, there is one apparent answer provided in the language of
the law — that theft is already "produced" upon the "tak[ing of]
personal property of another without the latter’s consent."
U.S. v. Adiao53 apparently supports that notion. Therein, a customs
inspector was charged with theft after he abstracted a leather belt
from the baggage of a foreign national and secreted the item in his
desk at the Custom House. At no time was the accused able to "get
the merchandise out of the Custom House," and it appears that he
"was under observation during the entire transaction."54 Based
apparently on those two circumstances, the trial court had found him
guilty, instead, of frustrated theft. The Court reversed, saying that
neither circumstance was decisive, and holding instead that the
accused was guilty of consummated theft, finding that "all the
elements of the completed crime of theft are present."55 In support of
its conclusion that the theft was consummated, the Court cited three
(3) decisions of the Supreme Court of Spain, the discussion of which
we replicate below:
The defendant was charged with the theft of some fruit from the land
of another. As he was in the act of taking the fruit[,] he was seen by a
policeman, yet it did not appear that he was at that moment caught by
the policeman but sometime later. The court said: "[x x x] The trial
court did not err [x x x ] in considering the crime as that of
consummated theft instead of frustrated theft inasmuch as nothing
appears in the record showing that the policemen who saw the
accused take the fruit from the adjoining land arrested him in the act
and thus prevented him from taking full possession of the thing stolen
and even its utilization by him for an interval of time." (Decision of the
Supreme Court of Spain, October 14, 1898.)
Defendant picked the pocket of the offended party while the latter was
hearing mass in a church. The latter on account of the solemnity of
the act, although noticing the theft, did not do anything to prevent it.
Subsequently, however, while the defendant was still inside the
church, the offended party got back the money from the defendant.
The court said that the defendant had performed all the acts of
execution and considered the theft as consummated. (Decision of the
Supreme Court of Spain, December 1, 1897.)
The defendant penetrated into a room of a certain house and by
means of a key opened up a case, and from the case took a small
box, which was also opened with a key, from which in turn he took a
purse containing 461 reales and 20 centimos, and then he placed the
money over the cover of the case; just at this moment he was caught
by two guards who were stationed in another room near-by. The court
considered this as consummated robbery, and said: "[x x x] The
accused [x x x] having materially taken possession of the money from
the moment he took it from the place where it had been, and having
taken it with his hands with intent to appropriate the same, he
executed all the acts necessary to constitute the crime which was
thereby produced; only the act of making use of the thing having been
frustrated, which, however, does not go to make the elements of the
consummated crime." (Decision of the Supreme Court of Spain, June
13, 1882.)56
It is clear from the facts of Adiao itself, and the three (3) Spanish
decisions cited therein, that the criminal actors in all these cases had
been able to obtain full possession of the personal property prior to
their apprehension. The interval between the commission of the acts
of theft and the apprehension of the thieves did vary, from "sometime
later" in the 1898 decision; to the very moment the thief had just
extracted the money in a purse which had been stored as it was in the
1882 decision; and before the thief had been able to spirit the item
stolen from the building where the theft took place, as had happened
in Adiao and the 1897 decision. Still, such intervals proved of no
consequence in those cases, as it was ruled that the thefts in each of
those cases was consummated by the actual possession of the
property belonging to another.
In 1929, the Court was again confronted by a claim that an accused
was guilty only of frustrated rather than consummated theft. The case
is People v. Sobrevilla,57 where the accused, while in the midst of a
crowd in a public market, was already able to abstract a pocketbook
from the trousers of the victim when the latter, perceiving the theft,
"caught hold of the [accused]’s shirt-front, at the same time shouting
for a policeman; after a struggle, he recovered his pocket-book and let
go of the defendant, who was afterwards caught by a policeman."58 In
rejecting the contention that only frustrated theft was established, the
Court simply said, without further comment or elaboration:
We believe that such a contention is groundless. The [accused]
succeeded in taking the pocket-book, and that determines the crime
of theft. If the pocket-book was afterwards recovered, such recovery
does not affect the [accused’s] criminal liability, which arose from the
[accused] having succeeded in taking the pocket-book.59
If anything, Sobrevilla is consistent with Adiao and the Spanish
Supreme Court cases cited in the latter, in that the fact that the
offender was able to succeed in obtaining physical possession of the
stolen item, no matter how momentary, was able to consummate the
theft.
Adiao, Sobrevilla and the Spanish Supreme Court decisions cited
therein contradict the position of petitioner in this case. Yet to simply
affirm without further comment would be disingenuous, as there is
another school of thought on when theft is consummated, as reflected
in the Diño and Flores decisions.
Diño was decided by the Court of Appeals in 1949, some 31 years
after Adiao and 15 years before Flores. The accused therein, a driver
employed by the United States Army, had driven his truck into the port
area of the South Harbor, to unload a truckload of materials to waiting
U.S. Army personnel. After he had finished unloading, accused drove
away his truck from the Port, but as he was approaching a checkpoint
of the Military Police, he was stopped by an M.P. who inspected the
truck and found therein three boxes of army rifles. The accused later
contended that he had been stopped by four men who had loaded the
boxes with the agreement that they were to meet him and retrieve the
rifles after he had passed the checkpoint. The trial court convicted
accused of consummated theft, but the Court of Appeals modified the
conviction, holding instead that only frustrated theft had been
committed.
In doing so, the appellate court pointed out that the evident intent of
the accused was to let the boxes of rifles "pass through the
checkpoint, perhaps in the belief that as the truck had already
unloaded its cargo inside the depot, it would be allowed to pass
through the check point without further investigation or
checking."60 This point was deemed material and indicative that the
theft had not been fully produced, for the Court of Appeals
pronounced that "the fact determinative of consummation is the ability
of the thief to dispose freely of the articles stolen, even if it were more
or less momentary."61 Support for this proposition was drawn from a
decision of the Supreme Court of Spain dated 24 January 1888 (1888
decision), which was quoted as follows:
Considerando que para que el apoderamiento de la cosa sustraida
sea determinate de la consumacion del delito de hurto es preciso que
so haga en circunstancias tales que permitan al sustractor la libre
disposicion de aquella, siquiera sea mas o menos
momentaneamente, pues de otra suerte, dado el concepto del delito
de hurto, no puede decirse en realidad que se haya producido en
toda su extension, sin materializar demasiado el acto de tomar la
cosa ajena.62
Integrating these considerations, the Court of Appeals then
concluded:
This court is of the opinion that in the case at bar, in order to make the
booty subject to the control and disposal of the culprits, the articles
stolen must first be passed through the M.P. check point, but since
the offense was opportunely discovered and the articles seized after
all the acts of execution had been performed, but before the loot came
under the final control and disposal of the looters, the offense can not
be said to have been fully consummated, as it was frustrated by the
timely intervention of the guard. The offense committed, therefore, is
that of frustrated theft.63
Diño thus laid down the theory that the ability of the actor to freely
dispose of the items stolen at the time of apprehension is
determinative as to whether the theft is consummated or frustrated.
This theory was applied again by the Court of Appeals some 15 years
later, in Flores, a case which according to the division of the court that
decided it, bore "no substantial variance between the circumstances
[herein] and in [Diño]."64 Such conclusion is borne out by the facts in
Flores. The accused therein, a checker employed by the Luzon
Stevedoring Company, issued a delivery receipt for one empty sea
van to the truck driver who had loaded the purportedly empty sea van
onto his truck at the terminal of the stevedoring company. The truck
driver proceeded to show the delivery receipt to the guard on duty at
the gate of the terminal. However, the guards insisted on inspecting
the van, and discovered that the "empty" sea van had actually
contained other merchandise as well.65 The accused was prosecuted
for theft qualified by abuse of confidence, and found himself convicted
of the consummated crime. Before the Court of Appeals, accused
argued in the alternative that he was guilty only of attempted theft, but
the appellate court pointed out that there was no intervening act of
spontaneous desistance on the part of the accused that "literally
frustrated the theft." However, the Court of Appeals, explicitly relying
on Diño, did find that the accused was guilty only of frustrated, and
not consummated, theft.
As noted earlier, the appellate court admitted it found "no substantial
variance" between Diño and Flores then before it. The prosecution
in Flores had sought to distinguish that case from Diño, citing a
"traditional ruling" which unfortunately was not identified in the
decision itself. However, the Court of Appeals pointed out that the
said "traditional ruling" was qualified by the words "is placed in a
situation where [the actor] could dispose of its contents at
once."66 Pouncing on this qualification, the appellate court noted that
"[o]bviously, while the truck and the van were still within the
compound, the petitioner could not have disposed of the goods ‘at
once’." At the same time, the Court of Appeals conceded that "[t]his is
entirely different from the case where a much less bulk and more
common thing as money was the object of the crime, where freedom
to dispose of or make use of it is palpably less restricted,"67 though no
further qualification was offered what the effect would have been had
that alternative circumstance been present instead.
Synthesis of the Diño and Flores rulings is in order. The determinative
characteristic as to whether the crime of theft was produced is the
ability of the actor "to freely dispose of the articles stolen, even if it
were only momentary." Such conclusion was drawn from an 1888
decision of the Supreme Court of Spain which had pronounced that in
determining whether theft had been consummated, "es preciso que so
haga en circunstancias tales que permitan al sustractor de aquella,
siquiera sea mas o menos momentaneamente." The qualifier "siquiera
sea mas o menos momentaneamente" proves another important
consideration, as it implies that if the actor was in a capacity to freely
dispose of the stolen items before apprehension, then the theft could
be deemed consummated. Such circumstance was not present in
either Diño or Flores, as the stolen items in both cases were retrieved
from the actor before they could be physically extracted from the
guarded compounds from which the items were filched. However, as
implied in Flores, the character of the item stolen could lead to a
different conclusion as to whether there could have been "free
disposition," as in the case where the chattel involved was of "much
less bulk and more common x x x, [such] as money x x x."68
In his commentaries, Chief Justice Aquino makes the following
pointed observation on the import of the Diño ruling:
There is a ruling of the Court of Appeals that theft is consummated
when the thief is able to freely dispose of the stolen articles even if it
were more or less momentary. Or as stated in another case[69 ], theft
is consummated upon the voluntary and malicious taking of property
belonging to another which is realized by the material occupation of
the thing whereby the thief places it under his control and in such a
situation that he could dispose of it at once. This ruling seems to have
been based on Viada’s opinion that in order the theft may be
consummated, "es preciso que se haga en circumstancias x x x [70 ]"71
In the same commentaries, Chief Justice Aquino, concluding from
Adiao and other cases, also states that "[i]n theft or robbery the crime
is consummated after the accused had material possession of the
thing with intent to appropriate the same, although his act of making
use of the thing was frustrated."72
There are at least two other Court of Appeals rulings that are at
seeming variance with the Diño and Flores rulings. People v.
Batoon73 involved an accused who filled a container with gasoline
from a petrol pump within view of a police detective, who followed the
accused onto a passenger truck where the arrest was made. While
the trial court found the accused guilty of frustrated qualified theft, the
Court of Appeals held that the accused was guilty of consummated
qualified theft, finding that "[t]he facts of the cases of U.S. [v.] Adiao x
x x and U.S. v. Sobrevilla x x x indicate that actual taking with intent to
gain is enough to consummate the crime of theft."74
In People v. Espiritu,75 the accused had removed nine pieces of
hospital linen from a supply depot and loaded them onto a truck.
However, as the truck passed through the checkpoint, the stolen
items were discovered by the Military Police running the checkpoint.
Even though those facts clearly admit to similarity with those in Diño,
the Court of Appeals held that the accused were guilty of
consummated theft, as the accused "were able to take or get hold of
the hospital linen and that the only thing that was frustrated, which
does not constitute any element of theft, is the use or benefit that the
thieves expected from the commission of the offense."76
In pointing out the distinction between Diño and Espiritu, Reyes wryly
observes that "[w]hen the meaning of an element of a felony is
controversial, there is bound to arise different rulings as to the stage
of execution of that felony."77 Indeed, we can discern from this survey
of jurisprudence that the state of the law insofar as frustrated theft is
concerned is muddled. It fact, given the disputed foundational basis of
the concept of frustrated theft itself, the question can even be asked
whether there is really such a crime in the first place.
IV.
The Court in 1984 did finally rule directly that an accused was guilty of
frustrated, and not consummated, theft. As we undertake this inquiry,
we have to reckon with the import of this Court’s 1984 decision in
Empelis v. IAC.78
As narrated in Empelis, the owner of a coconut plantation had espied
four (4) persons in the premises of his plantation, in the act of
gathering and tying some coconuts. The accused were surprised by
the owner within the plantation as they were carrying with them the
coconuts they had gathered. The accused fled the scene, dropping
the coconuts they had seized, and were subsequently arrested after
the owner reported the incident to the police. After trial, the accused
were convicted of qualified theft, and the issue they raised on appeal
was that they were guilty only of simple theft. The Court affirmed that
the theft was qualified, following Article 310 of the Revised Penal
Code,79 but further held that the accused were guilty only of frustrated
qualified theft.
It does not appear from the Empelis decision that the issue of whether
the theft was consummated or frustrated was raised by any of the
parties. What does appear, though, is that the disposition of that issue
was contained in only two sentences, which we reproduce in full:
However, the crime committed is only frustrated qualified theft
because petitioners were not able to perform all the acts of execution
which should have produced the felony as a consequence. They were
not able to carry the coconuts away from the plantation due to the
timely arrival of the owner.80
No legal reference or citation was offered for this averment, whether
Diño, Flores or the Spanish authorities who may have bolstered the
conclusion. There are indeed evident problems with this formulation in
Empelis.
Empelis held that the crime was only frustrated because the actors
"were not able to perform all the acts of execution which should have
produced the felon as a consequence."81 However, per Article 6 of the
Revised Penal Code, the crime is frustrated "when the offender
performs all the acts of execution," though not producing the felony as
a result. If the offender was not able to perform all the acts of
execution, the crime is attempted, provided that the non-performance
was by reason of some cause or accident other than spontaneous
desistance. Empelis concludes that the crime was
frustrated because not all of the acts of execution were performed due
to the timely arrival of the owner. However, following Article 6 of the
Revised Penal Code, these facts should elicit the conclusion that the
crime was only attempted, especially given that the acts were not
performed because of the timely arrival of the owner, and not because
of spontaneous desistance by the offenders.
For these reasons, we cannot attribute weight to Empelis as we
consider the present petition. Even if the two sentences we had cited
actually aligned with the definitions provided in Article 6 of the
Revised Penal Code, such passage bears no reflection that it is the
product of the considered evaluation of the relevant legal or
jurisprudential thought. Instead, the passage is offered as if it were
sourced from an indubitable legal premise so settled it required no
further explication.
Notably, Empelis has not since been reaffirmed by the Court, or even
cited as authority on theft. Indeed, we cannot see how Empelis can
contribute to our present debate, except for the bare fact that it proves
that the Court had once deliberately found an accused guilty of
frustrated theft. Even if Empelis were considered as a precedent for
frustrated theft, its doctrinal value is extremely compromised by the
erroneous legal premises that inform it, and also by the fact that it has
not been entrenched by subsequent reliance.
Thus, Empelis does not compel us that it is an insurmountable given
that frustrated theft is viable in this jurisdiction. Considering the flawed
reasoning behind its conclusion of frustrated theft, it cannot present
any efficacious argument to persuade us in this case. Insofar as
Empelis may imply that convictions for frustrated theft are beyond
cavil in this jurisdiction, that decision is subject to reassessment.
V.
At the time our Revised Penal Code was enacted in 1930, the 1870
Codigo Penal de España was then in place. The definition of the
crime of theft, as provided then, read as follows:
Son reos de hurto:
1. Los que con ánimo de lucrarse, y sin volencia o intimidación en las
personas ni fuerza en las cosas, toman las cosas muebles ajenas sin
la voluntad de su dueño.
2. Los que encontrándose una cosa perdida y sabiendo quién es su
dueño se la apropriaren co intención de lucro.
3. Los dañadores que sustrajeren o utilizaren los frutos u objeto del
daño causado, salvo los casos previstos en los artίculos 606, núm.
1.0; 607, núms, 1.0, 2.0 y 3.0; 608, núm. 1.0; 611; 613; Segundo
párrafo del 617 y 618.
It was under the ambit of the 1870 Codigo Penal that the aforecited
Spanish Supreme Court decisions were handed down. However, the
said code would be revised again in 1932, and several times
thereafter. In fact, under the Codigo Penal Español de 1995, the crime
of theft is now simply defined as "[e]l que, con ánimo de lucro,
tomare las cosas muebles ajenas sin la voluntad de su dueño será
castigado"82
Notice that in the 1870 and 1995 definition of theft in the penal code of
Spain, "la libre disposicion" of the property is not an element or a
statutory characteristic of the crime. It does appear that the principle
originated and perhaps was fostered in the realm of Spanish
jurisprudence.
The oft-cited Salvador Viada adopted a question-answer form in his
1926 commentaries on the 1870 Codigo Penal de España. Therein,
he raised at least three questions for the reader whether the crime of
frustrated or consummated theft had occurred. The passage cited in
Diño was actually utilized by Viada to answer the question whether
frustrated or consummated theft was committed "[e]l que en el
momento mismo de apoderarse de la cosa ajena, viéndose
sorprendido, la arroja al suelo."83 Even as the answer was as stated in
Diño, and was indeed derived from the 1888 decision of the Supreme
Court of Spain, that decision’s factual predicate occasioning the
statement was apparently very different from Diño, for it appears that
the 1888 decision involved an accused who was surprised by the
employees of a haberdashery as he was abstracting a layer of
clothing off a mannequin, and who then proceeded to throw away the
garment as he fled.84
Nonetheless, Viada does not contest the notion of frustrated theft, and
willingly recites decisions of the Supreme Court of Spain that have
held to that effect.85 A few decades later, the esteemed Eugenio
Cuello Calón pointed out the inconsistent application by the Spanish
Supreme Court with respect to frustrated theft.
Hay frustración cuando los reos fueron sorprendidos por las guardias
cuando llevaban los sacos de harino del carro que los conducia a otro
que tenían preparado, 22 febrero 1913; cuando el resultado no tuvo
efecto por la intervención de la policia situada en el local donde se
realizó la sustracción que impidió pudieran los reos disponer de lo
sustraído, 30 de octubre 1950. Hay "por lo menos" frustración, si
existe apoderamiento, pero el culpale no llega a disponer de la cosa,
12 abril 1930; hay frustración "muy próxima" cuando el culpable es
detenido por el perjudicado acto seguido de cometer la sustracción,
28 febrero 1931. Algunos fallos han considerado la existencia de
frustración cuando, perseguido el culpable o sorprendido en el
momento de llevar los efectos hurtados, los abandona, 29 mayo
1889, 22 febrero 1913, 11 marzo 1921; esta doctrina no es
admissible, éstos, conforme a lo antes expuesto, son hurtos
consumados.86
Ultimately, Cuello Calón attacked the very idea that frustrated theft is
actually possible:
La doctrina hoy generalmente sustentada considera que el hurto se
consuma cuando la cosa queda de hecho a la disposición del agente.
Con este criterio coincide la doctrina sentada últimamente porla
jurisprudencia española que generalmente considera consumado el
hurto cuando el culpable coge o aprehende la cosa y ésta quede por
tiempo más o menos duradero bajo su poder. El hecho de que éste
pueda aprovecharse o no de lo hurtado es indiferente. El delito no
pierde su carácter de consumado aunque la cosa hurtada sea
devuelta por el culpable o fuere recuperada. No se concibe la
frustración, pues es muy dificil que el que hace cuanto es necesario
para la consumación del hurto no lo consume efectivamente, los raros
casos que nuestra jurisprudencia, muy vacilante, declara hurtos
frustrados son verdaderos delitos consumados.87 (Emphasis supplied)
Cuello Calón’s submissions cannot be lightly ignored. Unlike Viada,
who was content with replicating the Spanish Supreme Court
decisions on the matter, Cuello Calón actually set forth his own
thought that questioned whether theft could truly be frustrated, since
"pues es muy dificil que el que hace cuanto es necesario para la
consumación del hurto no lo consume efectivamente." Otherwise put,
it would be difficult to foresee how the execution of all the acts
necessary for the completion of the crime would not produce the
effect of theft.
This divergence of opinion convinces us, at least, that there is no
weighted force in scholarly thought that obliges us to accept frustrated
theft, as proposed in Diño and Flores. A final ruling by the Court that
there is no crime of frustrated theft in this jurisdiction will not lead to
scholastic pariah, for such a submission is hardly heretical in light of
Cuello Calón’s position.
Accordingly, it would not be intellectually disingenuous for the Court to
look at the question from a fresh perspective, as we are not bound by
the opinions of the respected Spanish commentators, conflicting as
they are, to accept that theft is capable of commission in its frustrated
stage. Further, if we ask the question whether there is a mandate of
statute or precedent that must compel us to adopt the Diño and Flores
doctrines, the answer has to be in the negative. If we did so, it would
arise not out of obeisance to an inexorably higher command, but from
the exercise of the function of statutory interpretation that comes as
part and parcel of judicial review, and a function that allows breathing
room for a variety of theorems in competition until one is ultimately
adopted by this Court.
V.
The foremost predicate that guides us as we explore the matter is that
it lies in the province of the legislature, through statute, to define what
constitutes a particular crime in this jurisdiction. It is the legislature, as
representatives of the sovereign people, which determines which acts
or combination of acts are criminal in nature. Judicial interpretation of
penal laws should be aligned with what was the evident legislative
intent, as expressed primarily in the language of the law as it defines
the crime. It is Congress, not the courts, which is to define a crime,
and ordain its punishment.88 The courts cannot arrogate the power to
introduce a new element of a crime which was unintended by the
legislature, or redefine a crime in a manner that does not hew to the
statutory language. Due respect for the prerogative of Congress in
defining crimes/felonies constrains the Court to refrain from a broad
interpretation of penal laws where a "narrow interpretation" is
appropriate. "The Court must take heed of language, legislative
history and purpose, in order to strictly determine the wrath and
breath of the conduct the law forbids."89
With that in mind, a problem clearly emerges with
the Diño/Flores dictum. The ability of the offender to freely dispose of
the property stolen is not a constitutive element of the crime of theft. It
finds no support or extension in Article 308, whether as a descriptive
or operative element of theft or as the mens rea or actus reus of the
felony. To restate what this Court has repeatedly held: the elements of
the crime of theft as provided for in Article 308 of the Revised Penal
Code are: (1) that there be taking of personal property; (2) that said
property belongs to another; (3) that the taking be done with intent to
gain; (4) that the taking be done without the consent of the owner; and
(5) that the taking be accomplished without the use of violence
against or intimidation of persons or force upon things.90
Such factor runs immaterial to the statutory definition of theft, which is
the taking, with intent to gain, of personal property of another without
the latter’s consent. While the Diño/Flores dictum is considerate to the
mindset of the offender, the statutory definition of theft considers only
the perspective of intent to gain on the part of the offender,
compounded by the deprivation of property on the part of the victim.
For the purpose of ascertaining whether theft is susceptible of
commission in the frustrated stage, the question is again, when is the
crime of theft produced? There would be all but certain unanimity in
the position that theft is produced when there is deprivation of
personal property due to its taking by one with intent to gain. Viewed
from that perspective, it is immaterial to the product of the felony that
the offender, once having committed all the acts of execution for theft,
is able or unable to freely dispose of the property stolen since the
deprivation from the owner alone has already ensued from such acts
of execution. This conclusion is reflected in Chief Justice Aquino’s
commentaries, as earlier cited, that "[i]n theft or robbery the crime is
consummated after the accused had material possession of the thing
with intent to appropriate the same, although his act of making use of
the thing was frustrated."91
It might be argued, that the ability of the offender to freely dispose of
the property stolen delves into the concept of "taking" itself, in that
there could be no true taking until the actor obtains such degree of
control over the stolen item. But even if this were correct, the effect
would be to downgrade the crime to its attempted, and not frustrated
stage, for it would mean that not all the acts of execution have not
been completed, the "taking not having been accomplished." Perhaps
this point could serve as fertile ground for future discussion, but our
concern now is whether there is indeed a crime of frustrated theft, and
such consideration proves ultimately immaterial to that question.
Moreover, such issue will not apply to the facts of this particular case.
We are satisfied beyond reasonable doubt that the taking by the
petitioner was completed in this case. With intent to gain, he acquired
physical possession of the stolen cases of detergent for a
considerable period of time that he was able to drop these off at a
spot in the parking lot, and long enough to load these onto a taxicab.
Indeed, we have, after all, held that unlawful taking, or
apoderamiento, is deemed complete from the moment the offender
gains possession of the thing, even if he has no opportunity to
dispose of the same.92 And long ago, we asserted in People v. Avila:93
x x x [T]he most fundamental notion in the crime of theft is the taking
of the thing to be appropriated into the physical power of the thief,
which idea is qualified by other conditions, such as that the taking
must be effected animo lucrandi and without the consent of the owner;
and it will be here noted that the definition does not require that the
taking should be effected against the will of the owner but merely that
it should be without his consent, a distinction of no slight importance.94
Insofar as we consider the present question, "unlawful taking" is most
material in this respect. Unlawful taking, which is the deprivation of
one’s personal property, is the element which produces the felony in
its consummated stage. At the same time, without unlawful taking as
an act of execution, the offense could only be attempted theft, if at all.
With these considerations, we can only conclude that under Article
308 of the Revised Penal Code, theft cannot have a frustrated stage.
Theft can only be attempted or consummated.
Neither Diño nor Flores can convince us otherwise. Both fail to
consider that once the offenders therein obtained possession over the
stolen items, the effect of the felony has been produced as there has
been deprivation of property. The presumed inability of the offenders
to freely dispose of the stolen property does not negate the fact that
the owners have already been deprived of their right to possession
upon the completion of the taking.
Moreover, as is evident in this case, the adoption of the rule —that the
inability of the offender to freely dispose of the stolen property
frustrates the theft — would introduce a convenient defense for the
accused which does not reflect any legislated intent,95 since the Court
would have carved a viable means for offenders to seek a mitigated
penalty under applied circumstances that do not admit of easy
classification. It is difficult to formulate definite standards as to when a
stolen item is susceptible to free disposal by the thief. Would this
depend on the psychological belief of the offender at the time of the
commission of the crime, as implied in Diño?
Or, more likely, the appreciation of several classes of factual
circumstances such as the size and weight of the property, the
location of the property, the number and identity of people present at
the scene of the crime, the number and identity of people whom the
offender is expected to encounter upon fleeing with the stolen
property, the manner in which the stolen item had been housed or
stored; and quite frankly, a whole lot more. Even the fungibility or
edibility of the stolen item would come into account, relevant as that
would be on whether such property is capable of free disposal at any
stage, even after the taking has been consummated.
All these complications will make us lose sight of the fact that beneath
all the colorful detail, the owner was indeed deprived of property by
one who intended to produce such deprivation for reasons of gain. For
such will remain the presumed fact if frustrated theft were recognized,
for therein, all of the acts of execution, including the taking, have been
completed. If the facts establish the non-completion of the taking due
to these peculiar circumstances, the effect could be to downgrade the
crime to the attempted stage, as not all of the acts of execution have
been performed. But once all these acts have been executed, the
taking has been completed, causing the unlawful deprivation of
property, and ultimately the consummation of the theft.
Maybe the Diño/Flores rulings are, in some degree, grounded in
common sense. Yet they do not align with the legislated framework of
the crime of theft. The Revised Penal Code provisions on theft have
not been designed in such fashion as to accommodate said rulings.
Again, there is no language in Article 308 that expressly or impliedly
allows that the "free disposition of the items stolen" is in any way
determinative of whether the crime of theft has been produced. Diño
itself did not rely on Philippine laws or jurisprudence to bolster its
conclusion, and the later Flores was ultimately content in relying on
Diño alone for legal support. These cases do not enjoy the weight of
stare decisis, and even if they did, their erroneous appreciation of our
law on theft leave them susceptible to reversal. The same holds true
of Empilis, a regrettably stray decision which has not since found
favor from this Court.
We thus conclude that under the Revised Penal Code, there is no
crime of frustrated theft. As petitioner has latched the success of his
appeal on our acceptance of the Diño and Flores rulings, his petition
must be denied, for we decline to adopt said rulings in our jurisdiction.
That it has taken all these years for us to recognize that there can be
no frustrated theft under the Revised Penal Code does not detract
from the correctness of this conclusion. It will take considerable
amendments to our Revised Penal Code in order that frustrated theft
may be recognized. Our deference to Viada yields to the higher
reverence for legislative intent.
WHEREFORE, the petition is DENIED. Costs against petitioner.
SO ORDERED.

Republic of the Philippines
SUPREME COURT
Manila
FIRST DIVISION
G.R. No. 88724 April 3, 1990
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
CEILITO ORITA alias "Lito," defendant-appellant.
The Office of the Solicitor General for plaintiff-appellee.
C. Manalo for defendant-appellant.
MEDIALDEA, J.:
The accused, Ceilito Orita alias Lito, was charged with the crime of
rape in Criminal Case No. 83-031-B before the Regional Trial Court,
Branch II, Borongan, Eastern Samar. The information filed in the said
case reads as follows (p. 47, Rollo):
The undersigned Second Assistant Provincial Fiscal upon prior
complaint under oath by the offended party, accuses CEILITO
ORITA alias LITO of the crime of Rape committed as follows:
That on March 20, 1983, at about 1:30 o'clock in the morning
inside a boarding house at Victoria St., Poblacion, Borongan,
Eastern Samar, Philippines, and within the jurisdiction of this
Honorable Court, above named accused with lewd designs
and by the use of a Batangas knife he conveniently provided
himself for the purpose and with threats and intimidation, did,
then and there wilfully, unlawfully and feloniously lay with and
succeeded in having sexual intercourse with Cristina S.
Abayan against her will and without her consent.
CONTRARY TO LAW.
Upon being arraigned, the accused entered the plea of not guilty to
the offense charged. After the witnesses for the People testified and
the exhibits were formally offered and admitted, the prosecution
rested its case. Thereafter, the defense opted not to present any
exculpatory evidence and instead filed a Motion to Dismiss. On
August 5, 1985, the trial court rendered its decision, the dispositive
portion of which reads (pp. 59-60, Rollo):
WHEREFORE. the Court being morally certain of the guilt of
accused CEILITO ORITA @ LITO, of the crime of Frustrated
Rape (Art. 335, RPC), beyond reasonable doubt, with the
aggravating circumstances of dwelling and nightime (sic) with
no mitigating circumstance to offset the same, and considering
the provisions of the Indeterminate Sentence Law, imposes on
accused an imprisonment of TEN (10) YEARS and ONE (1)
DAY,PRISION MAYOR, as minimum to TWELVE (12)
YEARS PRISION MAYOR, maximum; to indemnify CRISTINA
S. ABAYAN, the amount of Four Thousand (P4,000.00)
Pesos, without subsidiary imprisonment in case of insolvency,
and to pay costs.
SO ORDERED.
Not satisfied with the decision, the accused appealed to the Court of
Appeals. On December 29, 1988, the Court of Appeals rendered its
decision, the dispositive portion of which reads (p. 102, Rollo):
WHEREFORE, the trial court's judgment is hereby MODIFIED,
and the appellant found guilty of the crime of rape, and
consequently, sentenced to suffer imprisonment of reclusion
perpetua and to indemnify the victim in the amount of
P30,000.00.
SO ORDERED.
On January 11, 1989, the Court of Appeals issued a resolution setting
aside its December 29, 1988 decision and forwarded the case to this
Court, considering the provision of Section 9, paragraph 3 of Batas
Pambansa Blg. 129 in conjunction with Section 17, paragraph 3,
subparagraph 1 of the Judiciary Act of 1948.
The antecedent facts as summarized in the People's brief are as
follows (pp. 71-75, Rollo):
Complainant Cristina S. Abayan was a 19-year old freshman
student at the St. Joseph's College at Borongan, Eastern
Samar. Appellant was a Philippine Constabulary (PC) soldier.
In the early morning of March 20, 1983, complainant arrived at
her boarding house. Her classmates had just brought her
home from a party (p. 44, tsn, May 23, 1984). Shortly after her
classmates had left, she knocked at the door of her boarding
house (p. 5, ibid). All of a sudden, somebody held her and
poked a knife to her neck. She then recognized appellant who
was a frequent visitor of another boarder (pp. 8-9, ibid).
She pleaded with him to release her, but he ordered her to go
upstairs with him. Since the door which led to the first floor
was locked from the inside, appellant forced complainant to
use the back door leading to the second floor (p. 77, ibid). With
his left arm wrapped around her neck and his right hand
poking a "balisong" to her neck, appellant dragged
complainant up the stairs (p. 14, ibid). When they reached the
second floor, he commanded her to look for a room. With the
Batangas knife still poked to her neck, they entered
complainant's room.
Upon entering the room, appellant pushed complainant who hit
her head on the wall. With one hand holding the knife,
appellant undressed himself. He then ordered complainant to
take off her clothes. Scared, she took off her T-shirt. Then he
pulled off her bra, pants and panty (p. 20, ibid).
He ordered her to lie down on the floor and then mounted her.
He made her hold his penis and insert it in her vagina. She
followed his order as he continued to poke the knife to her. At
said position, however, appellant could not fully penetrate her.
Only a portion of his penis entered her as she kept on moving
(p. 23, ibid).
Appellant then lay down on his back and commanded her to
mount him. In this position, only a small part again of his penis
was inserted into her vagina. At this stage, appellant had both
his hands flat on the floor. Complainant thought of escaping (p.
20, ibid).
She dashed out to the next room and locked herself in.
Appellant pursued her and climbed the partition. When she
saw him inside the room, she ran to another room. Appellant
again chased her. She fled to another room and jumped out
through a window (p. 27, ibid).
Still naked, she darted to the municipal building, which was
about eighteen meters in front of the boarding house, and
knocked on the door. When there was no answer, she ran
around the building and knocked on the back door. When the
policemen who were inside the building opened the door, they
found complainant naked sitting on the stairs crying. Pat.
Donceras, the first policeman to see her, took off his jacket
and wrapped it around her. When they discovered what
happened, Pat. Donceras and two other policemen rushed to
the boarding house. They heard a sound at the second floor
and saw somebody running away. Due to darkness, they failed
to apprehend appellant.
Meanwhile, the policemen brought complainant to the Eastern
Samar Provincial Hospital where she was physically
examined.
Dr. Ma. Luisa Abude, the resident physician who examined
complainant, issued a Medical Certificate (Exhibit "A") which
states:
Physical Examination — Patient is fairly built, came in
with loose clothing with no under-clothes; appears in
state of shock, per unambulatory.
PE Findings — Pertinent Findings only.
Neck- — Circumscribed hematoma at Ant. neck.
 Breast — Well developed, conical in shape with
prominent nipples; linear abrasions below (L) breast.
Back — Multiple pinpoint marks.
Extremities — Abrasions at (R) and (L) knees.
Vulva — No visible abrasions or marks at the perineal
area or over the vulva, errythematous (sic) areas noted
surrounding vaginal orifice, tender, hymen intact; no
laceration fresh and old noted; examining finger can
barely enter and with difficulty; vaginal canal tight; no
discharges noted.
As aforementioned, the trial court convicted the accused of frustrated
rape.
In this appeal, the accused assigns the following errors:
1) The trial court erred in disregarding the substantial inconsistencies
in the testimonies of the witnesses; and
2) The trial court erred in declaring that the crime of frustrated rape
was committed by the accused.
The accused assails the testimonies of the victim and Pat. Donceras
because they "show remarkable and vital inconsistencies and its
incredibility amounting to fabrication and therefore casted doubt to its
candor, truth and validity." (p. 33, Rollo)
A close scrutiny of the alleged inconsistencies revealed that they refer
to trivial inconsistencies which are not sufficient to blur or cast doubt
on the witnesses' straightforward attestations. Far from being badges
of fabrication, the inconsistencies in their testimonies may in fact be
justifiably considered as manifestations of truthfulness on material
points. These little deviations also confirm that the witnesses had not
been rehearsed. The most candid witnesses may make mistakes
sometimes but such honest lapses do not necessarily impair their
intrinsic credibility (People v. Cabato, G.R. No. L-37400, April 15,
1988, 160 SCRA 98). Rather than discredit the testimonies of the
prosecution witnesses, discrepancies on minor details must be viewed
as adding credence and veracity to such spontaneous testimonies
(Aportadera et al. v. Court of Appeals, et al., G.R. No. L-41358, March
16, 1988, 158 SCRA 695). As a matter of fact, complete uniformity in
details would be a strong indication of untruthfulness and lack of
spontaneity (People v. Bazar, G.R. No. L-41829, June 27, 1988, 162
SCRA 609). However, one of the alleged inconsistencies deserves a
little discussion which is, the testimony of the victim that the accused
asked her to hold and guide his penis in order to have carnal
knowledge of her. According to the accused, this is strange because
"this is the only case where an aggressor's advances is being helped-
out by the victim in order that there will be a consumation of the act."
(p. 34, Rollo). The allegation would have been meritorious had the
testimony of the victim ended there. The victim testified further that
the accused was holding a Batangas knife during the aggression. This
is a material part of the victim's testimony which the accused
conveniently deleted.
We find no cogent reason to depart from the well-settled rule that the
findings of fact of the trial court on the credibility of witnesses should
be accorded the highest respect because it has the advantage of
observing the demeanor of witnesses and can discern if a witness is
telling the truth (People v. Samson, G.R. No. 55520, August 25,
1989). We quote with favor the trial court's finding regarding the
testimony of the victim (p 56, Rollo):
As correctly pointed out in the memorandum for the People,
there is not much to be desired as to the sincerity of the
offended party in her testimony before the court. Her answer to
every question profounded (sic), under all circumstances, are
plain and straightforward. To the Court she was a picture of
supplication hungry and thirsty for the immediate vindication of
the affront to her honor. It is inculcated into the mind of the
Court that the accused had wronged her; had traversed
illegally her honor.
When a woman testifies that she has been raped, she says in effect
all that is necessary to show that rape was committed provided her
testimony is clear and free from contradiction and her sincerity and
candor, free from suspicion (People v Alfonso, G.R. No. 72573,
August 31, 1987, 153 SCRA 487; People v. Alcid, G.R. Nos. 66387-
88, February 28, 1985, 135 SCRA 280; People v. Soterol G.R. No.
53498, December 16, 1985, 140 SCRA 400). The victim in this case
did not only state that she was raped but she testified convincingly on
how the rape was committed. The victim's testimony from the time she
knocked on the door of the municipal building up to the time she was
brought to the hospital was corroborated by Pat. Donceras.
Interpreting the findings as indicated in the medical certificate, Dr.
Reinerio Zamora (who was presented in view of the unavailability of
Dr. Abude) declared that the abrasions in the left and right knees,
linear abrasions below the left breast, multiple pinpoint marks,
circumscribed hematoma at the anterior neck, erythematous area
surrounding the vaginal orifice and tender vulva, are conclusive proof
of struggle against force and violence exerted on the victim (pp. 52-
53, Rollo). The trial court even inspected the boarding house and was
fully satisfied that the narration of the scene of the incident and the
conditions therein is true (p. 54, Rollo):
. . . The staircase leading to the first floor is in such a condition
safe enough to carry the weight of both accused and offended
party without the slightest difficulty, even in the manner as
narrated. The partitions of every room were of strong
materials, securedly nailed, and would not give way even by
hastily scaling the same.
A little insight into human nature is of utmost value in judging rape
complaints (People v. Torio, et al., G.R. No. L-48731, December 21,
1983, 126 SCRA 265). Thus, the trial court added (p. 55, Rollo):
. . . And the jump executed by the offended party from that
balcony (opening) to the ground which was correctly estimated
to be less than eight (8) meters, will perhaps occasion no
injury to a frightened individual being pursued. Common
experience will tell us that in occasion of conflagration
especially occuring (sic) in high buildings, many have been
saved by jumping from some considerable heights without
being injured. How much more for a frightened barrio girl, like
the offended party to whom honor appears to be more
valuable than her life or limbs? Besides, the exposure of her
private parts when she sought assistance from authorities, as
corroborated, is enough indication that something not ordinary
happened to her unless she is mentally deranged. Sadly,
nothing was adduced to show that she was out of her mind.
In a similar case (People v. Sambili G.R. No. L-44408, September 30,
1982, 117 SCRA 312), We ruled that:
What particularly imprints the badge of truth on her story is her
having been rendered entirely naked by appellant and that
even in her nudity, she had to run away from the latter and
managed to gain sanctuary in a house owned by spouses
hardly known to her. All these acts she would not have done
nor would these facts have occurred unless she was sexually
assaulted in the manner she narrated.
The accused questions also the failure of the prosecution to present
other witnesses to corroborate the allegations in the complaint and the
non-presentation of the medico-legal officer who actually examined
the victim. Suffice it to say that it is up to the prosecution to determine
who should be presented as witnesses on the basis of its own
assessment of their necessity (Tugbang v. Court of Appeals, et al.,
G.R. No. 56679, June 29, 1989; People v. Somera, G.R. No. 65589,
May 31, 1989). As for the non-presentation of the medico-legal officer
who actually examined the victim, the trial court stated that it was by
agreement of the parties that another physician testified inasmuch as
the medico-legal officer was no longer available. The accused did not
bother to contradict this statement.
Summing up, the arguments raised by the accused as regards the
first assignment of error fall flat on its face. Some were not even
substantiated and do not, therefore, merit consideration. We are
convinced that the accused is guilty of rape. However, We believe the
subject matter that really calls for discussion, is whether or not the
accused's conviction for frustrated rape is proper. The trial court was
of the belief that there is no conclusive evidence of penetration of the
genital organ of the victim and thus convicted the accused of
frustrated rape only.
The accused contends that there is no crime of frustrated rape. The
Solicitor General shares the same view.
Article 335 of the Revised Penal Code defines and enumerates the
elements of the crime of rape:
 Art. 335. When and how rape is committed. — Rape is
committed by having carnal knowledge of a woman under any
of the following circumstances:
1. By using force or intimidation;
2. When the woman is deprived of reason or otherwise
unconscious and
3. When the woman is under twelve years of age, even though
neither of the circumstances mentioned in the two next
preceding paragraphs shall be present.
xxx xxx xxx
Carnal knowledge is defined as the act of a man in having sexual
bodily connections with a woman (Black's Law Dictionary. Fifth
Edition, p. 193).
On the other hand, Article 6 of the same Code provides:
Art. 6. Consummated, frustrated, and attempted felonies. —
Consummated felonies as well as those which are frustrated
and attempted, are punishable.
A felony is consummated when all the elements necessary for
its execution and accomplishment are present; and it is
frustrated when the offender performs all the acts of execution
which would produce the felony as a consequence but which,
nevertheless, do not produce it by reason of causes
independent of the will of the perpetrator.
There is an attempt when the offender commences the
commission of a felony directly by overt acts, and does not
perform all the acts of execution which should produce the
felony by reason of some cause or accident other than his own
spontaneous desistance.
Correlating these two provisions, there is no debate that the
attempted and consummated stages apply to the crime of
rape.1âwphi1 Our concern now is whether or not the frustrated stage
applies to the crime of rape.
The requisites of a frustrated felony are: (1) that the offender has
performed all the acts of execution which would produce the felony
and (2) that the felony is not produced due to causes independent of
the perpetrator's will. In the leading case of United States v. Eduave,
36 Phil. 209, 212, Justice Moreland set a distinction between
attempted and frustrated felonies which is readily understood even by
law students:
. . . A crime cannot be held to be attempted unless the
offender, after beginning the commission of the crime by overt
acts, is prevented, against his will, by some outside cause
from performing all of the acts which should produce the
crime. In other words, to be an attempted crime the purpose of
the offender must be thwarted by a foreign force or agency
which intervenes and compels him to stop prior to the moment
when he has performed all of the acts which should produce
the crime as a consequence, which acts it is his intention to
perform. If he has performed all of the acts which should result
in the consummation of the crime and voluntarily desists from
proceeding further, it can not be an attempt. The essential
element which distinguishes attempted from frustrated felony
is that, in the latter, there is no intervention of a foreign or
extraneous cause or agency between the beginning of the
commission of the crime and the moment when all of the acts
have been performed which should result in the consummated
crime; while in the former there is such intervention and the
offender does not arrive at the point of performing all of the
acts which should produce the crime. He is stopped short of
that point by some cause apart from his voluntary desistance.
Clearly, in the crime of rape, from the moment the offender has carnal
knowledge of his victim he actually attains his purpose and, from that
moment also all the essential elements of the offense have been
accomplished. Nothing more is left to be done by the offender,
because he has performed the last act necessary to produce the
crime.Thus, the felony is consummated. In a long line of cases
(People v. Oscar, 48 Phil. 527; People v. Hernandez, 49 Phil. 980;
People v. Royeras, G.R. No. L-31886, April 29, 1974, 56 SCRA 666;
People v. Amores, G.R. No. L-32996, August 21, 1974, 58 SCRA
505), We have set the uniform rule that for the consummation of rape,
perfect penetration is not essential. Any penetration of the female
organ by the male organ is sufficient. Entry of the labia or lips of the
female organ, without rupture of the hymen or laceration of the vagina
is sufficient to warrant conviction. Necessarily, rape is attempted if
there is no penetration of the female organ (People v. Tayaba, 62
Phil. 559 People v. Rabadan et al., 53 Phil. 694; United States v.
Garcia: 9 Phil. 434) because not all acts of execution was
performed. The offender merely commenced the commission of a
felony directly by overt acts. Taking into account the nature, elements
and manner of execution of the crime of rape and jurisprudence on
the matter, it is hardly conceivable how the frustrated stage in rape
can ever be committed.
Of course, We are aware of our earlier pronouncement in the case of
People v. Eriña 50 Phil. 998 [1927] where We found the offender
guilty of frustrated rape there being no conclusive evidence of
penetration of the genital organ of the offended party. However, it
appears that this is a "stray" decision inasmuch as it has not been
reiterated in Our subsequent decisions. Likewise, We are aware of
Article 335 of the Revised Penal Code, as amended by Republic Act
No. 2632 (dated September 12, 1960) and Republic Act No. 4111
(dated March 29, 1965) which provides, in its penultimate paragraph,
for the penalty of death when the rape is attempted or frustrated and a
homicide is committed by reason or on the occasion thereof. We are
of the opinion that this particular provision on frustrated rape is a dead
provision. The Eriña case, supra, might have prompted the law-
making body to include the crime of frustrated rape in the
amendments introduced by said laws.
In concluding that there is no conclusive evidence of penetration of
the genital organ of the victim, the trial court relied on the testimony of
Dr. Zamora when he "categorically declared that the findings in the
vulva does not give a concrete disclosure of penetration. As a matter
of fact, he tossed back to the offended party the answer as to whether
or not there actually was penetration." (p. 53, Rollo) Furthermore, the
trial court stated (p. 57, Rollo):
. . . It cannot be insensible to the findings in the medical
certificate (Exhibit "A") as interpreted by Dr. Reinerio Zamora
and the equivocal declaration of the latter of uncertainty
whether there was penetration or not. It is true, and the Court
is not oblivious, that conviction for rape could proceed from the
uncorroborated testimony of the offended party and that a
medical certificate is not necessary (People v. Royeras People
v. Orteza, 6 SCRA 109, 113). But the citations the people
relied upon cannot be applicable to the instant case. The
testimony of the offended party is at variance with the medical
certificate. As such, a very disturbing doubt has surfaced in the
mind of the court. It should be stressed that in cases of rape
where there is a positive testimony and a medical certificate,
both should in all respect, compliment each other, for
otherwise to rely on the testimony alone in utter disregard of
the manifest variance in the medical certificate, would be
productive of mischievous results.
The alleged variance between the testimony of the victim and the
medical certificate does not exist. On the contrary, it is stated in the
medical certificate that the vulva was erythematous (which means
marked by abnormal redness of the skin due to capillary congestion,
as in inflammation) and tender. It bears emphasis that Dr. Zamora did
not rule out penetration of the genital organ of the victim. He merely
testified that there was uncertainty whether or not there was
penetration. Anent this testimony, the victim positively testified that
there was penetration, even if only partially (pp. 302, 304, t.s.n., May
23, 1984):
Q Was the penis inserted on your vagina?
A It entered but only a portion of it.
xxx xxx xxx
Q What do you mean when you said comply, or what act do
you referred (sic) to, when you said comply?
A I inserted his penis into my vagina.
Q And was it inserted?
A Yes only a little.
The fact is that in a prosecution for rape, the accused may be
convicted even on the sole basis of the victim's testimony if credible
(People v. Tabago, G.R. No. 69778, November 8, 1988, 167 SCRA
65; People v. Aragona, G.R. No. L-43752, September 19, 1985, 138
SCRA 569; People v. Taduyo, G.R. Nos. L-37928-29, September 29,
1987, 154 SCRA 349). Moreover, Dr. Zamora's testimony is merely
corroborative and is not an indispensable element in the prosecution
of this case (People v. Alfonso, supra).

Although the second assignment of error is meritorious, it will not tilt

the scale in favor of the accused because after a thorough review of
the records, We find the evidence sufficient to prove his guilt beyond
reasonable doubt of the crime of consummated rape.

Article 335, paragraph 3, of the Revised Penal Code provides that

whenever the crime of rape is committed with the use of a deadly
weapon, the penalty shall be reclusion perpetua to death. The trial
court appreciated the aggravating circumstances of dwelling and
nighttime. Thus, the proper imposable penalty is death. In view,
however, of Article 111, Section 19(1) of the 1987 Constitution and
Our ruling in People v. Millora, et al., G.R. Nos. L-38968-70, February
9, 1989, that the cited Constitutional provision did not declare the
abolition of the death penalty but merely prohibits the imposition of the
death penalty, the Court has since February 2, 1987 not imposed the
death penalty whenever it was called for under the Revised Penal
Code but instead reduced the same to reclusion perpetua (People v.
Solis, et al., G.R. Nos. 78732-33, February 14, 1990). Reclusion
perpetua, being a single indivisible penalty under Article 335,
paragraph 3, is imposed regardless of any mitigating or aggravating
circumstances (in relation to Article 63, paragraph 1, Revised Penal
Code; see People v. Arizala, G.R. No. 59713, March 15, 1982, 112
SCRA 615; People v. Manzano, G.R. No. L38449, November 25,
1982, 118 SCRA 705; People v. Ramirez, G.R. No. 70744, May 31,
1985, 136 SCRA 702).

ACCORDINGLY, the decision of the Regional Trial Court is hereby

MODIFIED. The accused Ceilito Orita is hereby found guilty beyond
reasonable doubt of the crime of rape and sentenced to reclusion
perpetua as well as to indemnify the victim in the amount of
P30,000.00.

SO ORDERED.
 Republic of the Philippines
SUPREME COURT
Manila
FIRST DIVISION
G.R. Nos. 86883-85 January 29, 1993
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
NORBERTO MANERO, JR., EDILBERTO MANERO, ELPIDIO
MANERO, SEVERINO LINES, RUDY LINES, EFREN PLEÑAGO,
ROGER BEDAÑO, RODRIGO ESPIA, ARSENIO VILLAMOR, JR.,
JOHN DOE and PETER DOE, accused.
SEVERINO LINES, RUDY LINES, EFREN PLEÑAGO and ROGER
BENDAÑO, accused-appellants.
The Solicitor General for plaintiff-appellee.
Romeo P. Jorge for accused-appellants.
BELLOSILLO, J.:
This was gruesome murder in a main thoroughfare an hour before
sundown. A hapless foreign religious minister was riddled with bullets,
his head shattered into bits and pieces amidst the revelling of his
executioners as they danced and laughed around their quarry,
chanting the tune "Mutya Ka Baleleng", a popular regional folk song,
kicking and scoffing at his prostrate, miserable, spiritless figure that
was gasping its last. Seemingly unsatiated with the ignominy of their
manslaughter, their leader picked up pieces of the splattered brain
and mockingly displayed them before horrified spectators. Some
accounts swear that acts of cannibalism ensued, although they were
not sufficiently demonstrated. However, for their outrageous feat, the
gangleader already earned the monicker "cannibal priest-killer" But,
what is indubitable is that Fr. Tulio Favali1 was senselessly killed for
no apparent reason than that he was one of the Italian Catholic
missionaries laboring in heir vineyard in the hinterlands of Mindanao.2
In the aftermath of the murder, police authorities launched a massive
manhunt which resulted in the capture of the perpetrators except
Arsenio Villamor, Jr., and two unidentified persons who eluded arrest
and still remain at large.
Informations for Murder,3 Attempted Murder4 and Arson5 were
accordingly filed against those responsible for the frenzied orgy of
violence that fateful day of 11 April 1985. As these cases arose from
the same occasion, they were all consolidated in Branch 17 of the
Regional Trial Court of Kidapawan, Cotabato.6
After trial, the court a quo held —
WHEREFORE . . . the Court finds the accused
Norberto Manero, Jr. alias Commander Bucay,
Edilberto Manero alias Edil, Elpidio Manero, Severino
Lines, Rudy Lines, Rodrigo Espia alias Rudy, Efren
Pleñago and Roger Bedaño GUILTY beyond
reasonable doubt of the offense of Murder, and with the
aggravating circumstances of superior strength and
treachery, hereby sentences each of them to a penalty
of imprisonment of reclusion perpetua; to pay the
Pontifical Institute of Foreign Mission (PIME) Brothers,
the congregation to which Father Tulio Favali
belonged, a civil indemnity of P12,000.00; attorney's
fees in the sum of P50,000.00 for each of the eight (8)
accused or a total sum of P400,000.00; court
appearance fee of P10,000.00 for every day the case
was set for trial; moral damages in the sum of
P100,000.00; and to pay proportionately the costs.
Further, the Court finds the accused Norberto Manero,
Jr. alias Commander Bucay GUILTY beyond
reasonable doubt of the offense of Arson and with the
application of the Indeterminate Sentence Law, hereby
sentences him to an indeterminate penalty of
imprisonment of not less than four (4) years, nine (9)
months, one (1) day of prision correccional, as
minimum, to six (6) years of prision correccional, as
 maximum, and to indemnify the Pontifical Institute of
Foreign Mission (PIME) Brothers, the congregation to
which Father Tulio Favali belonged, the sum of
P19,000.00 representing the value of the motorcycle
and to pay the costs.
Finally, the Court finds the accused Norberto Manero,
Jr., alias Commander Bucay, Edilberto Manero alias
Edil, Elpidio Manero, Severino Lines, Rudy Lines,
Rodrigo Espia alias Rudy, Efren Pleñago and Roger
Bedaño GUILTY beyond reasonable doubt of the
offense of Attempted Murder and with the application of
the Indeterminate Sentence Law, hereby sentences
each of them to an indeterminate penalty of
imprisonment of not less than two (2) years, four (4)
months and one (1) day of prision correccional, and
minimum, to eight (8) years and twenty (20) days
of prision mayor, as maximum, and to pay the
complainant Rufino Robles the sum of P20,000.00 as
attorney's fees and P2,000.00 as court appearance fee
for every day of trial and to pay proportionately the
costs.
The foregoing penalties shall be served by the said
accused successively in the order of their respective
severity in accordance with the provisions of Article 70
of the Revised Penal Code, as amended.7
From this judgment of conviction only accused Severino Lines, Rudy
Lines, Efren Pleñago and Roger Bedaño appealed with respect to the
cases for Murder and Attempted Murder. The Manero brothers as well
as Rodrigo Espia did not appeal; neither did Norberto Manero, Jr., in
the Arson case. Consequently, the decision as against them already
became final.
Culled from the records, the facts are: On 11 April 1985, around 10:00
o'clock in the morning, the Manero brothers Norberto Jr., Edilberto
and Elpidio, along with Rodrigo Espia, Severino Lines, Rudy Lines,
Efren Pleñago and Roger Bedaño, were inside the eatery of one
Reynaldo Diocades at Km. 125, La Esperanza, Tulunan, Cotabato.
They were conferring with Arsenio Villamor, Jr., private secretary to
the Municipal Mayor of Tulunan, Cotabato, and his two (2) unidentified
bodyguards. Plans to liquidate a number of suspected communist
sympathizers were discussed. Arsenio Villamor, Jr. scribbled on a
cigarette wrapper the following "NPA v. NPA, starring Fr. Peter,
Domingo Gomez, Bantil, Fred Gapate, Rene alias Tabagac and
Villaning." "Fr. Peter" is Fr. Peter Geremias, an Italian priest
suspected of having links with the communist movement; "Bantil" is
Rufino Robles, a Catholic lay leader who is the complaining witness in
the Attempted Murder; Domingo Gomez is another lay leader, while
the others are simply "messengers". On the same occasion, the
conspirators agreed to Edilberto Manero's proposal that should they
fail to kill Fr. Peter Geremias, another Italian priest would be killed in
his stead.8
At about 1:00 o'clock that afternoon, Elpidio Manero with two (2)
unidentified companions nailed a placard on a street-post beside the
eatery of Deocades. The placard bore the same inscriptions as those
found on the cigarette wrapper except for the additional phrase
"versus Bucay, Edil and Palo." Some two (2) hours later, Elpidio also
posted a wooden placard bearing the same message on a street
cross-sign close to the eatery.9
Later, at 4:00 o'clock, the Manero brothers, together with Espia and
the four (4) appellants, all with assorted firearms, proceeded to the
house of "Bantil", their first intended victim, which was also in the
vicinity of Deocades' carinderia. They were met by "Bantil" who
confronted them why his name was included in the placards. Edilberto
brushed aside the query; instead, he asked "Bantil" if he had any
qualms about it, and without any provocation, Edilberto drew his
revolver and fired at the forehead of "Bantil". "Bantil" was able to parry
the gun, albeit his right finger and the lower portion of his right ear
were hit. Then they grappled for its possession until "Bantil" was
extricated by his wife from the fray. But, as he was running away, he
was again fired upon by Edilberto. Only his trousers were hit. "Bantil"
however managed to seek refuge in the house of a certain Domingo
Gomez. 10 Norberto, Jr., ordered his men to surround the house and
not to allow any one to get out so that "Bantil" would die of
hemorrhage. Then Edilberto went back to the restaurant of Deocades
and pistol-whipped him on the face and accused him of being a
communist coddler, while appellants and their cohorts relished the
unfolding drama. 11
Moments later, while Deocades was feeding his swine, Edilberto
strewed him with a burst of gunfire from his M-14 Armalite. Deocades
cowered in fear as he knelt with both hands clenched at the back of
his head. This again drew boisterous laughter and ridicule from the
dreaded desperados.
At 5:00 o'clock, Fr. Tulio Favali arrived at Km. 125 on board his
motorcycle. He entered the house of Gomez. While inside, Norberto,
Jr., and his co-accused Pleñago towed the motorcycle outside to the
center of the highway. Norberto, Jr., opened the gasoline tank, spilled
some fuel, lit a fire and burned the motorcycle. As the vehicle was
ablaze, the felons raved and rejoiced. 12
Upon seeing his motorcycle on fire, Fr. Favali accosted Norberto, Jr.
But the latter simply stepped backwards and executed a thumbs-down
signal. At this point, Edilberto asked the priest: "Ano ang gusto mo,
padre (What is it you want, Father)? Gusto mo, Father, bukon ko ang
ulo mo (Do you want me, Father, to break your head)?" Thereafter, in
a flash, Edilberto fired at the head of the priest. As Fr. Favali dropped
to the ground, his hands clasped against his chest, Norberto, Jr.,
taunted Edilberto if that was the only way he knew to kill a priest.
Slighted over the remark, Edilberto jumped over the prostrate body
three (3) times, kicked it twice, and fired anew. The burst of gunfire
virtually shattered the head of Fr. Favali, causing his brain to scatter
on the road. As Norberto, Jr., flaunted the brain to the terrified
onlookers, his brothers danced and sang "Mutya Ka Baleleng" to the
delight of their comrades-in-arms who now took guarded positions to
isolate the victim from possible assistance. 13
In seeking exculpation from criminal liability, appellants Severino
Lines, Rudy Lines, Efren Pleñago and Roger Bedaño contend that the
trial court erred in disregarding their respective defenses of alibi
which, if properly appreciated, would tend to establish that there was
no prior agreement to kill; that the intended victim was Fr. Peter
Geremias, not Fr. Tulio Favali; that there was only one (1) gunman,
Edilberto; and, that there was absolutely no showing that appellants
cooperated in the shooting of the victim despite their proximity at the
time to Edilberto.
But the evidence on record does not agree with the arguments of
accused-appellants.
On their defense of alibi, accused brothers Severino and Rudy Lines
claim that they were harvesting palay the whole day of 11 April 1985
some one kilometer away from the crime scene. Accused Roger
Bedaño alleges that he was on an errand for the church to buy lumber
and nipa in M'lang, Cotabato, that morning of 11 April 1985, taking
along his wife and sick child for medical treatment and arrived in La
Esperanza, Tulunan, past noontime.
Interestingly, all appellants similarly contend that it was only after they
heard gunshots that they rushed to the house of Norberto Manero,
Sr., Barangay Captain of La Esperanza, where they were joined by
their fellow CHDF members and co-accused, and that it was only then
that they proceeded together to where the crime took place at Km.
125.
It is axiomatic that the accused interposing the defense of alibi must
not only be at some other place but that it must also be physically
impossible for him to be at the scene of the crime at the time of its
commission. 14
Considering the failure of appellants to prove the required physical
impossibility of being present at the crime scene, as can be readily
deduced from the proximity between the places where accused-
appellants were allegedly situated at the time of the commission of the
offenses and the locus criminis, 15 the defense of alibi is definitely
feeble. 16After all, it has been the consistent ruling of this Court that no
physical impossibility exists in instances where it would take the
accused only fifteen to twenty minutes by jeep or tricycle, or some
one-and-a-half hours by foot, to traverse the distance between the
place where he allegedly was at the time of commission of the offense
and the scene of the crime. 17 Recently, we ruled that there can be no
physical impossibility even if the distance between two places is
merely two (2) hours by bus. 18 More important, it is well-settled that
the defense of alibi cannot prevail over
the positive identification of the authors of the crime by the
prosecution witnesses. 19
In the case before Us, two (2) eyewitnesses, Reynaldo Deocades and
Manuel Bantolo, testified that they were both inside the eatery at
about 10:00 o'clock in the morning of 11 April 1985 when the Manero
brothers, together with appellants, first discussed their plan to kill
some communist sympathizers. The witnesses also testified that they
still saw the appellants in the company of the Manero brothers at 4:00
o'clock in the afternoon when Rufino Robles was shot. Further, at 5:00
o'clock that same afternoon, appellants were very much at the scene
of the crime, along with the Manero brothers, when Fr. Favali was
brutally murdered. 20 Indeed, in the face of such positive declarations
that appellants were at the locus criminis from 10:00 o'clock in the
morning up to about 5:00 o'clock in the afternoon, the alibi of
appellants that they were somewhere else, which is negative in
nature, cannot prevail. 21 The presence of appellants in the eatery at
Km. 125 having been positively established, all doubts that they were
not privy to the plot to liquidate alleged communist sympathizers are
therefore removed. There was direct proof to link them to the
conspiracy.
There is conspiracy when two or more persons come to an agreement
to commit a crime and decide to commit it. 22It is not essential that all
the accused commit together each and every act constitutive of the
offense. 23 It is enough that an accused participates in an act or deed
where there is singularity of purpose, and unity in its execution is
present. 24
The findings of the court a quo unmistakably show that there was
indeed a community of design as evidenced by the concerted acts of
all the accused. Thus —
The other six accused, 25 all armed with high powered
firearms, were positively identified with Norberto
Manero, Jr. and Edilberto Manero in the carinderia of
Reynaldo Deocades in La Esperanza, Tulunan,
Cotabato at 10:00 o'clock in the morning of 11 April
1985 morning . . . they were outside of the carinderia
by the window near the table where Edilberto Manero,
Norberto Manero, Jr., Jun Villamor, Elpidio Manero and
unidentified members of the airborne from Cotabato
were grouped together. Later that morning, they all
went to the cockhouse nearby to finish their plan and
drink tuba. They were seen again with Edilberto
Manero and Norberto Manero, Jr., at 4:00 o'clock in the
afternoon of that day near the house of Rufino Robles
(Bantil) when Edilberto Manero shot Robles. They
surrounded the house of Domingo Gomez where
Robles fled and hid, but later left when Edilberto
Manero told them to leave as Robles would die of
hemorrhage. They followed Fr. Favali to Domingo
Gomez' house, witnessed and enjoyed the burning of
the motorcycle of Fr. Favali and later stood guard with
their firearms ready on the road when Edilberto Manero
shot to death Fr. Favali. Finally, they joined Norberto
Manero, Jr. and Edilberto Manero in their enjoyment
and merriment on the death of the priest. 26
From the foregoing narration of the trial court, it is clear that
appellants were not merely innocent bystanders but were in fact vital
cogs in perpetrating the savage murder of Fr. Favali and the
attempted murder of Rufino Robles by the Manero brothers and their
militiamen. For sure, appellants all assumed a fighting stance to
discourage if not prevent any attempt to provide assistance to the
fallen priest. They surrounded the house of Domingo Gomez to stop
Robles and the other occupants from leaving so that the wounded
Robles may die of hemorrhage. 27Undoubtedly, these were overt acts
to ensure success of the commission of the crimes and in furtherance
of the aims of the conspiracy. The appellants acted in concert in the
murder of Fr. Favali and in the attempted murder of Rufino Robles.
While accused-appellants may not have delivered the fatal shots
themselves, their collective action showed a common intent to commit
the criminal acts.
While it may be true that Fr. Favali was not originally the intended
victim, as it was Fr. Peter Geremias whom the group targetted for the
kill, nevertheless, Fr. Favali was deemed a good substitute in the
murder as he was an Italian priest. On this, the conspirators expressly
agreed. As witness Manuel Bantolo explained 28 —
Q Aside from those persons listed in that
paper to be killed, were there other
persons who were to be liquidated?
A There were some others.
Q Who were they?
A They said that if they could not kill
those persons listed in that paper then
they will (sic) kill anyone so long as he is
 (sic) an Italian and if they could not kill
the persons they like to kill they will (sic)
make Reynaldo Deocades as their
sample.
That appellants and their co-accused reached a common
understanding to kill another Italian priest in the event that Fr. Peter
Geremias could not be spotted was elucidated by Bantolo thus 29 —
Q Who suggested that Fr. Peter be the
first to be killed?
A All of them in the group.
Q What was the reaction of Norberto
Manero with respect to the plan to kill Fr.
Peter?
A He laughed and even said, "amo ina"
meaning "yes, we will kill him ahead."
xxx xxx xxx
Q What about Severino Lines? What
was his reaction?
A He also laughed and so conformed
and agreed to it.
Q Rudy Lines.
A He also said "yes".
Q What do you mean "yes"?
A He also agreed and he was happy
and said "yes" we will kill him.
xxx xxx xxx
Q What about Efren Pleñago?
A He also agreed and even commented
laughing "go ahead".
Q Roger Bedaño, what was his reaction
to that suggestion that should they fail to
kill Fr. Peter, they will (sic) kill anybody
provided he is an Italian and if not, they
will (sic) make Reynaldo Deocades an
example?
A He also agreed laughing.
Conspiracy or action in concert to achieve a criminal design being
sufficiently shown, the act of one is the act of all the other
conspirators, and
the precise extent or modality of participation of each of them
becomes secondary. 30
The award of moral damages in the amount of P100,000.00 to the
congregation, the Pontifical Institute of Foreign Mission (PIME)
Brothers, is not proper. There is nothing on record which indicates
that the deceased effectively severed his civil relations with his family,
or that he disinherited any member thereof, when he joined his
religious congregation. As a matter of fact, Fr. Peter Geremias of the
same congregation, who was then a parish priest of Kidapawan,
testified that "the religious family belongs to the natural family of
origin." 31 Besides, as We already held, 32 a juridical person is not
entitled to moral damages because, not being a natural person, it
cannot experience physical suffering or such sentiments as wounded
feelings, serious anxiety, mental anguish or moral shock. It is only
when a juridical person has a good reputation that is debased,
resulting in social humiliation, that moral damages may be awarded.
Neither can We award moral damages to the heirs of the deceased
who may otherwise be lawfully entitled thereto pursuant to par. (3),
Art. 2206, of the Civil Code, 33 for the reason that the heirs never
presented any evidence showing that they suffered mental anguish;
much less did they take the witness stand. It has been held 34 that
moral damages and their causal relation to the defendant's acts
should be satisfactorily proved by the claimant. It is elementary that in
order that moral damages may be awarded there must be proof of
moral suffering. 35 However, considering that the brutal slaying of Fr.
Tulio Favali was attended with abuse of superior strength, cruelty and
ignominy by deliberately and inhumanly augmenting the pain and
anguish of the victim, outraging or scoffing at his person or corpse,
exemplary damages may be awarded to the lawful heirs, 36 even
though not proved nor expressly pleaded in the complaint, 37 and the
amount of P100,000.00 is considered reasonable.

With respect to the civil indemnity of P12,000.00 for the death of Fr.
Tulio Favali, the amount is increased to P50,000.00 in accordance
with existing jurisprudence, which should be paid to the lawful heirs,
not the PIME as the trial court ruled.

WHEREFORE, the judgment appealed from being in accord with law

and the evidence is AFFIRMED with the modification that the civil
indemnity which is increased from P12,000.00 to P50,000.00 is
awarded to the lawful heirs of the deceased plus exemplary damages
of P100,000.00; however, the award of moral damages is deleted.

Costs against accused-appellants.

SO ORDERED.
 Republic of the Philippines
SUPREME COURT
SECOND DIVISION
G.R. No. 132330 November 28, 2000
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
SPO1 JOSE BANGCADO1 and PO3 CESAR BANISA, accused-
appellants.
BELLOSILLO, J.:
SPO1 JOSE BANGCADO and PO3 CESAR BANISA appeal from the
decision of the Regional Trial Court of Baguio City convicting them of
two (2) counts of murder and two (2) counts of frustrated murder,
imposing upon them the corresponding prison terms, and to pay
damages plus costs.2
The facts: On 27 June 1993, at around 8:30 in the evening, Pacson
Cogasi, Julio Clemente, Leandro Adawan and Richard Lino were at
the Skyview Restaurant, Magsaysay Avenue, Baguio City, drinking
and listening to folksongs. Moments later, a group of five (5) arrived
and sat one table away from Pacson Cogasi and his friends. Among
the newcomers was a thin person wearing a blue long-sleeved jacket,
later identified as SPO1 Jose Bangcado, and a heavier one wearing a
t-shirt and maong pants, later identified as PO3 Cesar Banisa. The
rest of their group were not identified.
At that time, members of the police force of Baguio City were
conducting Operation Kapkap at the Skyview Restaurant. They
however exempted the table of PO3 Cesar Banisa as they knew him
to be a fellow policeman.
At around 9:00 o'clock that evening, Cogasi and his friends left the
restaurant to go home. They were residents of La Trinidad, Benguet.
As they went behind the restaurant where their Ford Fierra was
parked, they noticed SPO1 Jose Bangcado and PO3 Cesar Banisa
following them. Cogasi and his group recognized Bangcado and
Banisa to be customers at Skyview Restaurant. Bangcado and Banisa
approached them. First, Banisa asked Richard Lino for a light. Then
Bangcado and Banisa asked the group if they were willing to be
frisked. Since the two (2) police officers were armed with handguns
and smelled of liquor, the group agreed to be frisked. As Leandro
Adawan stepped aside to urinate, Bangcado slapped him and then
asked the group where they came from. Their answer was, from
Besao, Mt. Province, except Clemente who said that he came from
Balili, La Trinidad. Bangcado, with Banisa standing guard behind him
with a drawn gun, ordered Cogasi, Clemente, Adawan and Lino to
form a line against the Ford Fierra facing him in that order. Adawan
was only one meter away from Bangcado. Lino and Cogasi were
about 1-1 /2 meters away, while Clemente, four (4) meters away.
Without any warning, Bangcado suddenly fired his gun in quick
succession at the four (4) persons lined up against the Ford Fierra.
Cogasi saw Adawan and Lino fall down. Cogasi then felt he was hit on
the left side of his neck and he also fell down. He managed however
to crawl away and run to the Hilltop where he was able to ask for help
before falling unconscious.
Cogasi woke up to find himself confined at the Baguio General
Hospital together with Clemente. There Cogasi learned that Lino and
Adawan died from gunshot wounds in their heads. Cogasi himself
suffered a gunshot wound at the neck, at the junction of his left jaw
near the ear, while Clemente received two (2) gunshot wounds on his
right shoulder with one (1) of the bullets being lodged just below his
right eye.
After their release from the hospital, Cogasi and Clemente filed a
complaint with the NBI in Baguio City. On 8 July 1993, four (4) civilian
males were presented to Cogasi for identification by the NBI, but he
told them that the suspects were not among those present. Clemente
did not participate in the identification process because of his eye
injury.
In the morning of 10 July 1993 Bangcado and Banisa reported for
their regular rank inspection at the La Trinidad Police Station. The
policemen were told to remain in formation after the inspection.
Cogasi went around the formation four (4) or five (5) times before
pointing to Bangcado and then to Banisa. Clemente also went around
the formation but despite going around longer than Cogasi, Clemente
was unable to identify anybody. Clemente started to point to James
Tagle but withdrew his identification of him when some people then
present laughed and shouted "Hoy!" and "Sabali!" meaning "Wrong!"
or "Different!" Accused-appellants insist that Clemente could not have
made a reliable identification of them at the NBI and La Trinidad line
ups, nor even in open court, because his eye injury blurred his vision.
The rule is that positive identification of witnesses prevails over the
simple denial of the accused. It cannot be doubted that Clemente and
Cogasi had a good view of the faces of the accused. From the
testimonies of various witnesses, including PO3 Jimmy Baybay, one
of the policemen who conducted Operation Kapkap, the Skyview
Restaurant was well-lighted. Banisa himself testified that although the
lighting may be "somewhat dim," he could still recognize a person
from a distance of four (4) meters.3 This is relevant considering that
the two (2) groups were seated only one (1) table apart. Thus, Cogasi
and his friends were able to recognize their assailants as the persons
who came out from the Skyview Restaurant.
The crime scene was illuminated by two (2) streetlights and the lights
coming from the nearby Garden Inn and various sari-sari stores. The
fact that the policemen who responded to the report of the incident
had to use a flashlight in their investigation did not prove that the area
was so dark as to preclude the identification of the persons involved.
For one thing, the policemen had to be careful not to overlook any
piece of evidence, such as a spent bullet. For another, SPO4 Antonio
Naungayan of PNP Baguio City, who was part of the investigating
team, testified on cross-examination that even if the area was not
brightly lighted, one could still recognize people.4 According to
Clemente, he was only four (4) meters away from his attackers when
they fired upon him and his friends. Cogasi was only 1-1 /2 meters
away while Adawan and Lino, who died on the spot, were each only
about a meter away.
It cannot be doubted that Cogasi and Clemente had enough time to
take a good look at their assailants' faces who conversed with their
victims, ordered them to fall in line, frisked them one by one, and
asked them questions before shooting them. When Bangcado and
Banisa leaned over to frisk Cogasi and his friends, their faces must
have only been inches away from their victims; and when they
ordered their victims to line up against the vehicle, they stood only a
few meters away.
Although Clemente admitted to be suffering from blurred vision,
Cogasi's positive identification of appellants could be sufficient to
establish their identities. Indeed, there is no law that requires that the
testimony of a single witness must be corroborated except, of course,
when expressly mandated. Witnesses are to be weighed, not
numbered, in determining the credibility of witnesses and the value of
each piece of evidence. In fact, the testimony of a single witness, if
credible and positive, is sufficient to convict,5 and must be given full
faith and credence when no reason to falsely testify is shown.6
Assuming arguendo that Clemente was unable to identify accused-
appellants during the line-up in La Trinidad as his right eye was still
bandaged from his injuries, he was able to make a positive
identification in open court. Neither is it material now that Clemente
made some attempts to point to policeman James Tagle for it seems
clear that he withdrew his identification. Besides, Clemente admitted
candidly that he could not identify anyone in the line-up since his right
eye was still covered with a bandage and was still suffering from
blurred vision.
Further, the defense failed to shake Cogasi's certainty, either when he
declared that he recognized accused-appellants as being those who
were earlier in the Skyview Restaurant, or when he pointed to them in
the line-up at La Trinidad. The fact that he took some five (5) minutes
and had to go around the line-up four (4) or five (5) times did not
detract from his credibility. Rather, it is to his credit that he took time
to look closely into the faces of more than twenty-four (24) or so
similarly garbed men to make sure that he did not make a mistake in
identifying his assailants.
Neither should the defense attempt to mislead the Court by pointing
out that Cogasi was not able to identify Bangcado during the NBI line-
up since it is clear that that line-up did not include accused-appellants.
Instead, it was composed of four (4) civilians, none of whom he had
ever seen before. Since these four (4) had no connection with the
crime, there was no reason for Cogasi to implicate any of them in the
murder.
The defense also points out that the policemen who
conducted Operation Kapkap indicated in their joint affidavit that they
only saw Banisa present inside the Skyview Restaurant, along with
three (3) unidentified companions. According to the defense, this only
proves that Bangcado was not there since the policemen personally
knew Bangcado and thus should have included him in their joint
affidavit.
However, the theory of the trial court that the reason why they did not
see Bangcado with Banisa was because he went to the washroom or
elsewhere deserves credence. Considering that the Skyview
Restaurant had some thirty (30) to fifty (50) customers that night; that
the four (4) policemen were busy going around the tables
conducting Operation KapKap; that they did not approach the table of
Banisa to frisk him and his companions because they recognized him
as a policeman, then it is evident that their attention was elsewhere,
and that they did not bother to inquire whether Banisa had other fellow
officers with him. Further, the policemen testified that they were in the
restaurant for only a few minutes.
Further, PO Delfin Balan-eg, one of the policemen who
conducted Operation Kapkap, testified that he saw Bangcado and
Banisa drinking beer inside the restaurant. The defense tried to
destroy his credibility by establishing that he and the two (2) victims
as well as the two (2) complaining witnesses were related. However, it
must be stressed, that relationship, much less bias, cannot be
established by the fact that two (2) persons live in different barangays
that form part of the same town.
The defense insist that neither could Cogasi's testimony be given any
weight since his testimony in open court contradicted his sworn
affidavit executed immediately after the incident before the
investigating officer. While he testified that he saw the accused
emerge from the Skyview Restaurant, in his affidavit, he swore that
their attackers actually alighted from a red -colored car. The theory of
the defense is that if the gunmen alighted from a red or maroon
colored car immediately before the shooting, then they could not have
come from the Skyview Restaurant, and vice versa.
An affidavit taken ex parte is judicially considered to be almost
incomplete and often inaccurate, sometimes from partial suggestions
and sometimes from want of suggestions and inquiries, without the
aid of which the witness may be unable to recall the connected
circumstances necessary for his accurate recollection of the
incident.7 Further, an examination of Cogasi's sworn statement shows,
however, that there was actually no contradiction. His testimony was
as follows: "x x x I noticed a maroon car x x x I noticed also two
persons who were immediately following us went (sic) near the parked
maroon car and one of them opened the door at the driver's side but
immediately closed it."8 Quite obviously, the two (2) persons who
emerged from the Skyview Restaurant intended to board the parked
car but changed their minds and, instead, followed Cogasi and his
friends to the Ford Fierra that was parked.
The accused-appellants raise the defense of alibi which is inherently
weak. To prosper, alibi must be so convincing as to preclude any
doubt that the accused could not have been physically present at the
crime scene at the time of the incident.9 The alibis of the accused
clearly show upon examination that this could not have been so.
Bangcado testified that he stayed at home because he served his tour
of duty from 12:00 midnight to 8:00 a.m. the previous day. Thus, on
the day of the incident, he was at home where he slept, read the
newspapers, watched television and played with his one-year-and-
seven-month old daughter. After dinner, he took a nap until his
mother-in-law woke him up before 11:00 p.m. so he could report to
the police station before 12:00 midnight. As police officer assigned to
patrol his area of responsibility, his job was to ride in the police vehicle
going around La Trinidad.10 This was confirmed by Bangcado's
mother-in-law Angela Gondales when she testified for the accused.
Yet, Bangcado himself told the court that Central Pico, La Trinidad,
Benguet, where his mother-in-law's house stood, was only five (5)
kilometers away from Skyview Restaurant and could be negotiated in
thirty (30) minutes using a motor vehicle.11 The fact that La Trinidad
was only thirty (30) minutes away from Baguio City was corroborated
by Banisa himself.12 And Bangcado's house is near a national highway
where jeepneys pass by on their way to Baguio City, which means, it
was not impossible for Bangcado to have left the house earlier than
11:00 p.m. and be in Baguio City at the time of the incident.
The defense failed to establish with credible evidence that SPO1 Jose
Bangcado was on duty from 11:00 o'clock in the evening to 8:30 the
following morning. SPO4 Lilia Pascual, Records Custodian of the PNP
at La Trinidad, Benguet, testified that there was no record of the
attendance of PNP officers from June to December 1993. SPO4
Carlos Layagan, Bangcado's Patrol Section Supervisor, testified that
on that day, Bangcado was present for his regular tour of duty from
12:00 o'clock midnight to 8:00 o'clock the following morning and
conducted routine patrol by mobile,13 but the incident occurred at
around 9:00 o'clock in the evening according to the police who
responded when the crime was reported to them. Thus, Bangcado
had plenty of time to do what he did and still go on his tour of duty.
More damaging was the admission of Layagan in his cross-
examination that before 12:00 o'clock midnight of 27 June 1993 he
was not in the company of SPO1 Jose Bangcado.14
The alibi of PO3 Cesar Banisa was even more incredible. He admitted
being at the Skyview Restaurant when Cogasi and his friends were
there, but claimed that he left with his brother to eat mami and
siopao at the Baguio First Hotel, which is only about a hundred (100)
to a hundred and fifty (150) meters away from Skyview Restaurant
and could be reached in five (5) minutes of walking.15 He explained
however that "this bold admission x x x placing him within the vicinity
of the crime scene shows his clear conscience. For, if he was involved
in the crime, he would naturally put himself in other places."16 His
testimony was corroborated by Abelardo Lucas who testified that he,
along with Arsenio Palileng and Raymund Banisa, accused-
appellant's brother, was with Banisa that night.
While flight of an accused is competent evidence to establish prima
facie his guilt, there is no law or principle that non-flight per se is
proof, let alone conclusive proof, of innocence. Much like the defense
of alibi, non-flight cannot prevail against the weight of positive
identification of the accused.17 It is more credible to believe that
Banisa had no choice but to tell the truth regarding his presence at the
Skyview Restaurant because four (4) policemen who knew him well
saw him there while they were conducting Operation Kapkap.
PO3 Banisa further claims that his group stayed at the Baguio First
Hotel Restaurant for only ten (10) minutes and then went down the
road to the jeepney station where they boarded a jeepney at 9:00
o'clock in the evening bound for La Trinidad and got home after
twenty-five (25) to thirty-five (35) minutes. Yet he also testified that the
boarding station for jeepneys bound for La Trinidad was only across
the road from Skyview Restaurant.
SPO1 Jose Bangcado and PO3 Cesar Banisa could have accosted
their victims, gone back to Skyview Restaurant and joined their
companions who may have thought that they (Bangcado and Banisa)
just went to the comfort room or stepped out for some fresh air.
Abelardo Lucas himself testified that while they were at the Skyview
Restaurant his companions would frequently stand up and leave,
purportedly to go to the restroom.
The defense bewails the fact that nothing seemed to have been done
to the deformed slug found near the body of the deceased Richard
Lino, nor to the other slug extracted from Clemente, and that no
ballistics examination was conducted to determine from what caliber
they were fired and if the gun used was the same. Investigators did
not even cause the surrender of accused-appellant's firearms for
examination and comparison. Neither were accused-appellants
required to undergo a paraffin test.
Nonetheless, a ballistics examination is not indispensable, and even if
another weapon was in fact actually used in killing the victim, still the
accused cannot excape criminal liability therefor as he was already
positively identified.18Because credible witnesses had already
demonstrated accused-appellants' culpability, there was no need to
present further evidence linking them to the crime. There is no
requirement of a certain quantum of evidence before one may be
justly convicted of an offense except when specifically required by
law. The only requisite then is that the guilt of the accused is proved
beyond reasonable doubt.19
Accused-appellants insist that they had no motive to shoot the victims
and/or the complaining witnesses. However, even the absence of a
known motive, the time-honored rule is that motive is not essential to
convict when there is no doubt as to the identity of the culprit.20 Lack
of motive does not preclude conviction when the crime and the
participation of the accused therein are definitely shown,21 particularly
when we consider how nowadays, it is a matter of judicial knowledge
that persons have killed or committed serious offense for no reason at
all.22
The defense also tried, but failed, to establish that Cogasi and
Clemente knew beforehand that Bangcado and Banisa were
policemen as they all lived and worked together in the same
neighborhood. This allegation is not sufficient to prove that the
witnesses for the prosecution had any ill motive to testify against
accused-appellants. When there is no evidence to show any improper
motive on the part of the prosecution witnesses to testify falsely
against an accused or to falsely implicate him in the commission of a Q: What about the fat man at that time, was identified
crime, the logical conclusion is that no such improper motive exists as Cesar Banisa, what was he doing at that time?
and that the testimony is worthy of full faith and credit.23
A: He was also standing beside him and was holding
The defense also assails the conclusion reached by the trial court that his gun.
the accused were guilty because they remained silent when they were
pinpointed by Cogasi during the police line-up. The trial court asked, Q: Would you illustrate to this Court how Jose
"Is it not that 'Qui tacen concentire videtur,' meaning, 'Silence means Bangcado pointed a gun at Leandro Adawan?
consent'?"24
A: Witness stretch[ed] both his arms and clasped his
Although the Rules of Court provides that an act or declaration made hands together with the forefinger extended in front of him.
in the presence and within the hearing or observation of a party who
does or says nothing when the act or declaration is such as naturally Q: After you saw Jose Bangcado point a gun at
to call for action or comment if not true, and when proper and possible Leandro Adawan, what else transpired, Mr. Witness?
for him to do so, may be given in evidence against him,25 courts
should be cautious in interpreting silence against the accused. A: He suddenly fired his gun.
Further, the facts do not support the conclusion that the accused
remained silent. Both Bangcado and Banisa gave their individual Q: To whom Mr. Witness did he fire his gun?
reactions during the line-up but police discipline kept them from
breaking rank.26 As police officers, they are bound by the strict
A: He fired his gun to the four of us.
discipline of their profession, as well as an awareness of their rights to
remain silent and to avail of the services of counsel. These rights are
not diminished by the fact that they are policemen. Q: After firing his gun what else transpired, Mr.
Witness?
However, the trial court ruled, and correctly so, that at the time of the
police line-up, accused-appellants were not yet under the custody of A: I just felt that I fell down.
the police agencies. Their rights had not yet been restricted or
curtailed. The right to counsel attaches from the moment the Q: Why did you fall down?
investigation starts, i.e., when the investigating officer begins to ask
questions to elicit information and confessions or admissions from the A: Because I was shot.27
accused.
On cross-examination, Cogasi affirmed his sworn statement taken by
From the testimony of the victims as well as from the physical the investigating officer immediately after the incident wherein he
evidence, it seems that SPO1 Bangcado was the lone gunman, while referred to only one (1) gunman who did the shooting. He further
PO3 Banisa merely stood behind him with his gun drawn. In his testified that he heard four (4) successive shots when the gunman
testimony, Cogasi narrated how the shooting occured - started shooting, then heard more shots only after he had succeeded
in running away.
Q: You testified that the thin one who called himself
Jose Bangcado pointed a gun at Leandro Adawan, what type On his part, Clemente attested in his sworn statement that "the man in
of gun is (sic) that x x x x jacket then ordered us to line up. After we have formed a line, he
started shooting at us starting from the left. He shot first Leandro, then
A: It was black and short. Richard and followed by Pacson. After hearing the shots and seeing
my companions fall, I turned my back and held my nape with my two Q: So, you said on that date you were frisked and then
(2) hands and started to run but I got hit and fell. I got up and tried to later on lined-up and when you heard successive shots, you
run but I fell down again."28 fell down?

On the other hand, during his direct examination Clemente testified - A: When I heard the three (3) successive shots, I saw
one pointing the gun again at me, so, I turned around and
Q: Now, Mr. Witness, when these two (2) persons prepared to run, but I was hit, sir. When I turned my back and
followed you and your companions, what did you observe from started to run, I was hit, sir.
them that time?
Q: So, because you turned your back, you did not
A: They have (sic) guns, sir. really see who actually shot you?

Q: What kind of guns do (sic) they have? A: I saw the thin one point the gun at me and both
were armed with guns, sir x x x x
A: Short and black, sir.
Q: So, you want to tell the court that it was the thin one
Q: And were they holding their guns? who shot you because he was holding the gun that way, is that
correct?
A: They were holding their guns, sir x x x x
A: I do not know because both of them have (sic) guns,
Q: After you were made to fall in line, what happened sir. But I saw the thin one pointing a gun at me, sir.30
next?
Thus, as to the identity of the gunman, it is apparent that both
A: He pointed a gun, sir. witnesses were positive only as far as Bangcado was concerned.
However, it seems that they only concluded that Banisa participated in
Q: Who pointed the gun to whom? the shooting because he was also holding a gun. The failure of the
surviving victims to assert with confidence that Banisa also fired his
gun raises reasonable doubt as to whether he participated in the
A: The thin man pointed his gun at Leandro Adawan,
shooting.
sir.
Accused-appellants deny the existence of treachery, nighttime and
Q: What else transpired after that?
abuse of public position to aggravate the commission of the crimes. It
is settled that qualifying circumstances cannot be presumed but must
A: They fired their guns at us, sir. be established by clear and convincing evidence, as conclusively as
the killing itself.31 The defense alleges that there is no evidence that
Q: Who shot at who (sic)? accused-appellants made some preparation to kill the victim in such a
manner as to insure the execution of the crime or to make it
A: The two (2) of them, sir, because there were two of impossible or hard for the person attacked to defend himself. For
them.29 treachery to be considered, two (2) elements must concur: (a) the
employment of means of execution that gives the person attacked no
On cross examination, Clemente testified - opportunity to defend himself or retaliate; and, (b) the means of
execution were deliberately or consciously adopted.32 In this case,
treachery was not present. In a long line of cases, the Court held that
"the essence of treachery is the swift and unexpected attack on an
unarmed victim without the slightest provocation on his part."33
To ensure that he was not in any risk, accused-appellant Bangcado
frisked and searched Cogasi, Clemente, Adawan and Lino to see if
they were concealing any weapons. After making sure that the victims
were unarmed, Bangcado directed the victims to form a line against
the Ford Fierra to separate the victims from each other and so that the
latter could not rush to their friends' defense. Because Bangcado and
Banisa were holding handguns, Cogasi and his friends did as they
were told and were caught unaware when they were shot. In fact,
Adawan and Lino died of gunshot wounds in the head, while Cogasi
and Clemente only sustained head wounds that did not prove fatal.
In the absence of any previous plan or agreement to commit a crime,
the criminal responsibility arising from different acts directed against
one and the same person is individual and not collective, and that
each of the participants is liable only for his own acts.34 Consequently,
Banisa must be absolved from criminal responsibility for the assault
on the victims. It is clear that neither the victims nor Banisa could
have anticipated Bangcado's act of shooting the victims since the
attack was sudden and without any reason or purpose. Thus, the
criminal design of Bangcado had not yet been revealed prior to the
killings.
For public position to be appreciated as an aggravating circumstance,
the public official must use his influence, prestige and ascendancy
which his office gives him in realizing his purpose. If the accused
could have perpetrated the crime without occupying his position, then
there is no abuse of public position.35 Hence, that aggravating
circumstance cannot be appreciated here. While it may seem that
accused-appellants intended to assert their authority as policemen
and encourage in the victims' minds the belief that they were part
of Operation KapKap when they frisked the victims, both Cogasi and
Clemente testified that they never told the investigating officers that
their assailants might be policemen. In fact, because the assailants
were not in uniform, they believed the latter to be civilians.
The defense claims that the injuries of the surviving victims were not
serious enough to classify the attack under the frustrated stage,
therefore, they committed only attempted homicide. However, the
doctors who attended to the surviving victims testified that had they
not treated Cogasi and Clemente's injuries the latter would have
suffered from infection which could result in their death. It is clear that
only timely medical attention saved both victims from imminent death.
Accused-appellants deny that there was an offer to compromise when
their relatives visited Miguel Adawan, the 81-year old father of
Leandro Adawan. The old Adawan in tears testified that he came to
know of the accused Bangcado and Banisa through their relatives
when the latter came to his house in Besao, Mt. Province. Although
the incident occurred on 27 June 1993, the first visit was sometime in
April 1995 when Magdalena Mabiasan, the mother of Jose Banisa
came "for a possible settlement of the case."36 Again, sometime in
August or September 1996, Bangcado's wife and parents, along with
Banisa's mother Magdalena, visited him at Pico, La Trinidad.37
The defense claims that the only reason the relatives of accused-
appellant went to visit and talk to Miguel Adawan was to prevent him
from avenging his son's death on the families of accused-appellant, in
keeping with the tradition of the Igorot indigenous people. Therefore,
this cannot be interpreted as an implied admission of guilt. Moreover,
Sec. 27 of Rule 13038 contemplates an offer of compromise from the
accused himself. There is no showing that the visits were made with
the knowledge or upon the instructions of accused-appellants. Thus,
even if the purpose of the visit was to negotiate a settlement,
accused-appellants had nothing to do with it, since they were neither
participants nor initiators.39
The trial court believed in the testimony of Adawan, compared to that
of the relatives of accused-appellants who could be biased, partial
and, of course, hoping to save the two (2) accused from the serious
predicament they were in.40 It posited this question:
But why is it that during the first time that they approached the
77-year old man Adawan in Besao, Mountain Province, they
were already assured that the family of the deceased Adawan
would not take revenge and for the last three years, nothing
happened to the families of the accused, still they again went
to the residence of Miguel Adawan at Pico, La Trinidad,
Benguet. This would only show that they tried to amicably
settle the cases, but they were rebuffed.41
But an offer of compromise from an unauthorized person cannot
amount to an admission of the party himself.42Although the Court has
held in some cases that an attempt of the parents of the accused to
settle the case is an implied admission of guilt,43 we believe that the
better rule is that for a compromise to amount to an implied admission
of guilt, the accused should be present or at least had authorized the
compromise.
In People v. Macatana44 it was held: "No implied admission can be
drawn from the efforts to arrive at a settlement outside the courts,
primarily because appellant did not take part in any of the
negotiations. The efforts to settle the case x x x in accordance with
the established Muslim practices, customs and traditions were
initiated by acknowledged leaders x x x in an effort to prevent further
deterioration of the relations between the tribes."45
The general rule is that claims for actual damages should be
supported by actual receipts. However, it is undisputed that the
victims are members of the indigenous community and were buried
according to their customs and traditions. The relatives of the victims
attested that they incurred expenses for the cañao, the traditional
gathering of Igorots. The Court is not unaware that the informal
market system still governs the economic transactions of indigenous
communities. Thus, receipts and other documents do not play a large
role in their daily commercial transactions. In this case, wherein it is
clearly established that the claimants were indeed members of
indigenous communities, then the court should allow reasonable
claims for expenses incurred in relation to traditional burial practices.
The heirs are also entitled to damages for the loss of earning capacity
of the deceased Leandro Adawan. The fact that the prosecution did
not present documentary evidence to support its claim for damages
for loss of earning capacity of the deceased does not preclude
recovery of the damages.46 Testimonial evidence is sufficient to
establish a basis for which the court can make a fair and reasonable
estimate of the damages for the loss of earning capacity.47 Moreover,
in fixing the damages for loss of earning capacity of a deceased
victim, the Court can consider the nature of its occupation, his
educational attainment and the state of his health at the time of his
death.48 The testimony of Adawan's father sufficiently established the
basis for making such an award. It was shown that Adawan was thirty-
seven (37) years old at the time of his death in 1993 and earned
₱4,000.00 a month as a mechanic.
Hence, in accordance with the American Expectancy Table of
Mortality adopted by this Court in several cases,49 the loss of his
earning capacity is to be calculated as follows:
Net Earning Capacity (x) = Life Expectancy x Gross annual
income – living expenses (50% of gross annual income)
where life expectancy = 2/3 x (80 - age of deceased [37
years])
x = 2/3 x (80 - 37) x [(₱4000.00 x 12) - (₱4000.00 x
12)50%]
x = 2/3 x 43 x [₱48,000.00 - ₱24,000.00]
x = [2/3 x 43] x ₱24,000.00
x = 28.67 x ₱24,000.00
x = ₱688,080.00
Since Leandro Adawan was thirty-seven (37) years old at the time of
his death, his life expectancy was 28.67 years. Considering that his
average monthly income was ₱4,000.00, his gross annual income
would be ₱48,000.00. Using the above formula, the victim's unearned
income would thus be ₱688,080.00.
On the other hand, the Court has no basis to award damages for
Richard Lino loss of earning capacity because the prosecution failed
to introduce any evidence on this matter.
Civil indemnity in the amount of ₱50,000.00 (consistent with prevailing
jurisprudence) is automatically granted to the offended party, or
his/her heirs in case of the former's death, without need of further
evidence other than the fact of the commission of any of the
aforementioned crimes (murder, homicide, parricide and rape). Moral
and exemplary damages may be separately granted in addition to
indemnity. Moral damages can be awarded only upon sufficient proof
that the complainant is entitled thereto in accordance with Art. 2217 of
the Civil Code, while exemplary damages can be awarded if the crime
is committed with one or more aggravating circumstances duly
proved. The amounts thereof shall be at the discretion of the courts.50
Under present case law, the award of ₱50,000.00 for civil indemnity is
mandatory upon the finding of the fact of murder. Moral damages, vis-
a-vis compensatory damages or civil indemnity, are different from
each other and should thus be awarded separately.51 Thus, as
explained in People v. Victor,52 the indemnity authorized by our
criminal law as civil liability ex delicto for the offended party, in the
amount authorized by the prevailing judicial policy and aside from
other established actual damages, is itself equivalent to actual or
compensatory damages in civil law. It is not to be considered as moral
damages thereunder, the latter being based on different jural
foundations and assessed by the court in the exercise of sound
discretion.53
In People v. Victor the Court increased the civil indemnity for rape
committed or effectively qualified by any of the circumstances under
which the death penalty is authorized by the present amended law,
from ₱50,000.00 to ₱75,000.00. The Court held that "This is not only
a reaction to the apathetic societal perception of the penal law and the
financial fluctations over time, but also an expression of the
displeasure of the Court over the incidence of heinous crimes against
chastity."54 It is submitted that the heirs of victims of murder, which is
also a heinous crime, should not receive less than what victims of
rape receive as civil indemnity. If the civil indemnity is automatically
imposed upon the accused without need of proof other than the fact of
the commission of the offense, all the more reason should the same
minimum amount be imposed on those convicted of murder, as more
often than not the victims who are killed leave behind grieving families
who are depended upon them for support. Thus, indemnity of
₱75,000.00 should therefore be reckoned for each count of murder
committed by accused-appellant SPO1 Jose Bangcado.
Since the crime was committed on 27 June 1993, the penalty for
murder prescribed by Art. 248 of the Revised Penal Code, prior to its
amendment by RA 7659, which took effect only on 31 December
1993, should be applied in imposing the penalty for frustrated murder,
i.e., reclusion temporal maximum to death.
The penalty for frustrated murder is one (1) degree lower than that
prescribed by the Penal Code for the consummated offense, hence,
the imposable penalty for frustrated murder should be prision
mayor maximum to reclusion temporal medium. Applying
the Indeterminate Sentence Law, and there being no mitigating nor
aggravating circumstance present in the commission of the offense,
the penalty to be imposed for the frustrated murder shall be taken
from the range of prision correccional maximum to prision
mayor medium or four (4) years two (2) months and one (1) day to ten
(10) years as minimum, to the medium period of prision
mayor maximum to reclusion temporal or twelve (12) years five (5)
months and eleven (11) days to fourteen (14) years ten (10) months
and twenty (20) days as maximum. Hence, an indeterminate prison
term of eight (8) years two (2) months and ten (10) days of prision
mayor medium as minimum to fourteen (14) years four (4) months
and ten (10) days of reclusion temporal medium as maximum may be
considered reasonable for the frustrated murder under the facts of this
case.
WHEREFORE, the Decision of the court a quo in Crim. Cases Nos.
11619-R to 11622-R imposing reclusion perpetua for the two (2)
counts of murder and the indeterminate prison term of prision
mayor in its medium period to reclusion temporal in its medium period
for two (2) counts of frustrated murder on both accused-appellants
SPO1 Jose Bangcado and PO3 Cesar Banisa is MODIFIED as
follows:
1. In Crim. Case No. 11619-R, accused-appellant SPO1 Jose
Bangcado is found GUILTY of murder under Art. 248 of the Revised
Penal Code qualified by treachery, and is sentenced to reclusion
perpetua and to pay the heirs of the victim Richard Lino ₱75,000.00
as indemnity for his death, ₱59,300.00 as actual damages,
₱200,000.00 as moral damages, and to pay the costs;
2. In Crim. Case No. 11620-R, accused-appellant SPO1 Jose
Bangcado is found GUILTY of murder under Art. 248 of the Revised
Penal Code, qualified by treachery, and is sentenced to reclusion
perpetua and to pay the heirs of the victim Leandro Adawan
₱75,000.00 as indemnity for his death, ₱93,100.00 as actual
damages, ₱200,000.00 as moral damages, and to pay the costs;
3. In Crim. Case No. 11621-R, accused-appellant SPO1 Jose
Bangcado is found GUILTY of frustrated murder under Art. 248 in
relation to Art. 6 of the Revised Penal Code. Applying
the Indeterminate Sentence Law, and in the absence of modifying
circumstances, he is sentenced to an indeterminate prison term of
eight (8) years two (2) months and ten (10) days of prision
mayor medium, as minimum, to fourteen (14) years four (4) months
and ten (10) days reclusion temporal medium, as maximum, for the
frustrated murder of the victim Julio Clemente, and pay him
₱100,000.00 as moral damages, and to pay the costs; and,

4. In Crim. Case No. 11622-R, accused-appellant SPO1 Jose

Bangcado is found GUILTY of frustrated murder under Art. 248 in
relation to Art. 6 of the Revised Penal Code. Applying
the Indeterminate Sentence Law, and in the absence of modifying
circumstances, he is sentenced to an indeterminate prison term of of
eight (8) years two (2) months and ten (10) days of prision
mayor medium, as minimum, to fourteen (14) years four (4) months
and ten (10) days of reclusion temporal medium, as maximum, for the
frustrated murder of Pacson Cogasi, and pay him ₱100,000.00 as
moral damages, and to pay the costs.

There being no finding of conspiracy with accused-appellant SPO1

Jose Bangcado, PO3 Cesar Banisa is ACQUITTED of all the charges
against him and, consequently, is ordered released from custody in
connection with herein cases, unless he is held for other lawful
causes.

SO ORDERED.
 Republic of the Philippines motion for reconsideration3 dated November 7, 2012, of CA Associate
SUPREME COURT Justice Vicente S.E. Veloso.4
Manila
The petitioners are all Justices of the Court of Appeals. Justices
EN BANC Veloso and Fernando claim longevity pay for services rendered within
and outside the Judiciary as part of their compensation package .
A.M. No. 12-8-07-CA June 16, 2015 Justice Gacutan, who has recently retired, claims deficiency payment
of her longevity pay for the services she had rendered before she
Re: Letter· of Court of Appeals Justice Vicente S.E. Veloso for joined the Judiciary, as well as a re-computation of her retirement pay
Entitlement to Longevity Pay for His Services as Commission to include the claimed longevity pay.
Member III of the National Labor Relations Commission
Interest in the outcome of these consolidated cases goes beyond that
x-----------------------x of the petitioners; some incumbent justices and judges, before joining
the Judiciary, also served in the Executive Department and would like
A.M. No. 12-9-5-SC to see these previous services credited in the computation of their
longevity pay. Others who had also previously served with the
Re: Computation of Longevity Pay of Court of Appeals Justice Executive Department currently enjoy longevity pay credit for their
Angelita A. Gacutan executive service; they would like to see their mistakenly granted
longevity pay credits maintained.
x-----------------------x
Thus, the Court’s decision on these consolidated cases, whether to
find for or against the petitioners, will likewise affect the interests of
A.M. No. 13-02-07-SC
other judges and justices in similar circumstance, including several
members of this honorable court participating in these matters.
Re: Request of Court of Appeals Justice Remedios A. Salazar-
Fernando that Her Services as MTC Judge and as COMELEC
Antecedents
Commissioner be considered as Part of Her Judicial Service and
Included in the computation/adjustment of Her longevity pay
A. Letter-Request of Justice Salazar-Fernando
RESOLUTION
In her letter dated August 22, 2012,5 Justice Salazar-Fernando
requested that her services as Judge of the Municipal Trial Court (
BRION, J.:
MTC) of Sta. Rita, Pampanga, from February 15, 1983 to July 31,
1987, and as Commissioner of the Commission on Elections (
Prefatory Statement COMELEC ), from February 14, 1992 to February 14, 1998, be
considered as part of her judicial services "as in the case of Hon.
The Consolidated Cases Bernar do P. Pardo, Retired Associate Justice of the Supreme Court."
and the Affected Parties Accordingly, Justice Salazar-Fernando requested that her longevity
pay be adjusted "from the current 10% to 20% of [her] basic salary
For the Court’s consideration are the following: (1) letter-request effective May 25, 1999."
dated August 22, 2012, of Court of Appeals ( CA) Associate Justice
Remedios A. Salazar-Fernando;1 (2) letter-request dated September
11, 2012, of CA Associate Justice Angelita A. Gacutan;2 and (3)
We referred this letter-request to Atty. Eden T. Candelaria, Chief of
the Office of Administrative Services ( OAS ), for study and
recommendation.
In her February 18, 2013 Memorandum,6 Atty. Candelaria
recommended that Justice Salazar-Fernando’s services as MTC
Judge be credited as judicial service that can be added to her present
longevity pay. Atty. Candelaria, however, recommended the denial of
Justice Salazar-Fernando’srequest that her services at the COMELEC
be also credited for her present longevity pay. Nonetheless, she
recommended that Justice Salazar-Fernando’s services in the
COMELEC be included in the computation of her longevity pay upon
retirement "as in the case of Justice Pardo."
B. Letter-Request of Justice Gacutan
In her letter7 dated September 11, 2012, Justice Gacutan requested
that: (a) her services as Commissioner IV of the National Labor
Relations Commission (NLRC) , from March 3, 1998 to November5,
2009, be credited as judicial service for purposes of retirement; (b)
she be given a longevity pay equivalent to 10% of her basic salary;
and (c) an adjustment of her salary, allowances and benefits be made
from the time she assumed as CA Justice on November 6, 2009. In
the Court’s Resolution8 of November 13, 2012, we required the Fiscal
Management and Budget Office (FMBO ) to comment onJustice
Gacutan’s letter. In her Comment of January 4, 2013, Atty. Corazon
G. Ferrer-Flores, Deputy Clerk of Court and Chief of Office of the
FMBO, recommended that: (1) Justice Gacutan’s request for the
crediting of her services as Commissioner IV of the NLRC as judicial
service be granted, but only for purposes of her retirement benefits, to
take effect on her compulsory retirement on December 3, 2013;and
(2) Justice Gacutan’s request that her salary and allowances be
adjusted retroactive from her assumption of office in the CA on
November 6, 2009, be denied.9
C. Motion for Reconsideration of Justice Veloso
In his November 7, 2012 motion for reconsideration,10 Justice Veloso
assailed the Court’s October 23, 2012 Resolution11 that denied his
request for the crediting of his services as NLRC Commissioner as
judicial service for purposes of adjusting his salary and benefits,
specifically his longevity pay.
Justice Veloso claimed that Republic Act No. (RA) 9347 which
amended Article 216 of the Labor Code should be applied
retroactively since it is a curative statute. He maintained under this
view that he already had the rank of a CA Justice as NLRC
Commissioner before he was appointed to the appellate court on
February 4, 2004.
We referred Justice Veloso’s motion for reconsideration to the FMBO
for report and recommendation in our Resolution of November 27,
2012.12
In her Report and Recommendation dated February 15, 2013,13 Atty.
Ferrer-Flores recommended that Justice Veloso’s motion for
reconsideration be denied since the points he raised were a rehash of
his arguments in his July 30, 2012 letter-request.14
Our Rulings
I. Letter of Justice Salazar-Fernando in A.M. No. 13-02-07-SC
a. Services as MTC Judge
We grant the request of Justice Salazar-Fernando to credit as judicial
service her previous services as MTC Judge of Sta. Rita, Pampanga,
as judicial service in the computation of her longevity pay.
Section 42 of Batas Pambansa Bilang ( B.P. Blg.) 129 provides:
Section 42. Longevity pay. – A monthly longevity pay equivalent to 5%
of the monthly basic pay shall be paid to the Justices and Judges of
the courts herein created for each five years of continuous, efficient,
and meritorious service rendered in the judiciary; Provided, That in no
case shall the total salary of each Justice or Judge concerned, after
this longevity pay is added, exceed the salary of the Justice or Judge
next in rank. [Italics supplied; emphasis and underscoring ours]
We find it undisputed that Justice Salazar-Fernando served as MTC
Judge from February 15, 1983 to July 31, 1987. This service
constitutes continuous, efficient, and meritorious service rendered in
the Judiciary and, hence, should be included in the computation of her
longevity pay.
 b. Service as COMELEC Commissioner
We deny, however, the inclusion of Justice Salazar-Fernando’s
request to credit her services as COMELEC Commissioner, from
February 14, 1992 to February 14, 1998, as judicial service for
longevity pay purposes.
The only service recognized for purposes of longevity pay under
Section 42 of B.P. Blg. 129 is service in the Judiciary, not service in
any other branch of government. The CO MELEC is an agency
independent of the Judiciary; hence, service in this agency cannot be
considered as service rendered in the Judiciary.
We find Justice Salazar-Fernando’s invocation of the case of Justice
Pardo, to support her claim to longevity pay, misplaced.
b.1. Our Pardo Ruling
In In Re: Request of Justice Bernardo P. Pardo for Adjustment of His
Longevity Pay,15 we held that the inclusion of Justice Pardo’s service
in the COMELEC in the computation of his longevity pay upon his
retirement was predicated on the factual circumstances peculiar to
him: he was an incumbent CA Justice when he was appointed
COMELEC Chairman, and was appointed to the Supreme Court after
his service with the COMELEC, without any interruption in his service
. COMELEC would not have been appreciated in determining his
The Court ― based on its reading of Section 3 of B.P. Blg. 12916 ―
did not consider his intervening service in the COMELEC, an office
outside the Judiciary, as a disruption of his service in the Judiciary.
Notably, the Court in In Re: Justice Pardo liberally interpreted the
phrase "the Court" in Section 3 of BP 129 to mean the entire judiciary,
not just the Court of Appeals. The provision reads:
Any member who is reappointed to the Court after rendering service
in any other position in the government shall retain precedence to
which he was entitled under his original appointment, and his service
in the Court shall, for all intents and purposes , be considered as
continuous and uninterrupted. (emphases supplied)
This provision was an amendment to Section 3 of BP 129 which, as
originally worded, referred only to the organization of the CA, the
appointment process of its justices, and the means by which seniority
of rank is determined among the CA justices. Executive Order No. 33
added this phrase, and hence Section 3 now reads as:
Sec. 3. Organization. There is hereby created a Court of Appeals
which shall consist of a Presiding Justice and fifty Associate Justices
who shall be appointed by the President of the Philippines. The
Presiding Justice shall be so designated in hi s appointment, and the
Associate Justice shall have precedence according to the dates of
their respective appointments, or when the appointments of two or
more of them shall bear the same date, according to the order in
which their appointments were issued by the President. Any member
w ho is reappointed to the Court after rendering in any other position
in the government shall retain the precedence to which he was
entitled under his original appointment, and his service in the Court
shall, for all intents and purposes, be considered as continuous and
uninterrupted.
Thus, had the Court given a more literal interpretation of the phrase
added by EO No. 33,then it would have interpreted its application to
refer to an incumbent CA justice only. The phrase, after all, had been
added to Section 3 of BP 129, which referred to the organization of
the CA. Following this interpretation, Justice Pardo’s service in the
longevity pay, as he was reappointed not to the CA, but to the
Supreme Court.
Instead, the Court, taking a more liberal approach, interpreted the
phrase "the Court" to mean the entire judiciary. It noted that the
additional phrase in Section 3 used the generic word "Court" instead
of Court of Appeals, and that to apply the stricter application of
interpreting "Court" to mean "Court of Appeals" would "lead to
absurdity, contradiction, injustice, or would defeat the clear purpose of
the lawmakers."
Thus, following this more liberal approach, Justice Pardo’s one-time
service outside of the judiciary was considered part of his service in
the judiciary for purposes of determining hi s longevity pay. The same
may be applied, for instance, to a trial court judge who rendered
service outside the judiciary and then returned to being a member of
the bench.
Thus, the Court’s ruling in In Re: Justice Pardo is authority for
expanding EO No. 33’s amendment to Section 3 of BP 129 to all
members of the judiciary.
b.2. The liberal Pardo ruling cannot and should not be extended
to allow members of the judiciary to leave and return more than
once, without interrupting the continuity of their service.
The next question to be asked, then, refers to the frequency by which
members of the judiciary may be able to serve in other branches of
government without breaking their ‘continuo us and uninterrupted’
service. Did the ruling in Justice Pardo’s case allow members of the
judiciary to leave for other branches of government numerous times,
and still maintain continuous and uninterrupted service in the
judiciary? The answer to this question is a resounding no.
A critical aspect of Justice Pardo’s case was the absence of any gap
in his service from the time he was appointed as Caloocan City Judge
in 1974, until he retired as an Associate Justice of the Supreme Court
in 2002. He occupied the positions of District Judge, Court of First
Instance of Rizal, Branch 34, Caloocan City, from May 3, 1974 to
January 17, 1983; Regional Trial Court (RTC), Branch 43, Manila,
from January 18, 1983 to March 29, 1993; Associate Justice of the
CA, from March 30, 1993 to February 16,
1995; Chairman, COMELEC, from February 17, 1995 to October 6,
1998; and Associate Justice of the Supreme Court, from October 7,
1998 to February 10, 2002.
In these lights, Justice Pardo’s case has nothing to offer by way of
jurisprudential precedent in terms of determining whether Section 3 of
BP 129 allows judges and justices to leave the judiciary several times
without breaking their continuous service. There was no occasion to
rule on this issue, as Justice Pardo left the judiciary only once, to
serve in the COMELEC.
Proceeding from this conclusion, the next level of inquiry leads us to
examine whether Section 3 of BP 129 allows multiple breaks in
judicial office and considers these breaks as part of a continuous and
uninterrupted judicial service.
The amendment to Section 3, as worded and interpreted in In Re:
Justice Pardo , refers to the reappointment of a member of the
judiciary after serving in another branch of government. The judge
shall retain the precedence to which he was entitled under his original
appointment, and his judicial service shall be considered
uninterrupted.
This service outside the judiciary, however, should only occur once,
as in Justice Pardo’s case. Section 3 refers to an original appointment
, which is the first appointment by which a lawyer becomes a member
of the judiciary. As he progresses in the judiciary ― whether by
staying in his original post or by being appointed in other posts ― he
acquires seniority, which is especially applicable in determining his
retirement and longevity pay. Once he leaves the judiciary, however,
his original appointment is cut off; hence, Section 3 can only refer to
the judge’s return to the judiciary as a "reappointment." He needs to
get re-appointed back to the judiciary, as he is no longer part of it.
Section 3 works to bridge the gap between the time the judge left his
original appointment and his reappointment to the judiciary, provided
the gap in service was rendered in another branch of government.
Once reappointed to the judiciary, however, he can no longer avail of
Section 3, as Section 3 speaks of an original appointment. A second
reappointment, after another service in a different government
agency, would be succeeding the first reappointment, and not the
original appointment. Section 3 operates to bridge an original
appointment with a reappointment, and not to connect a
reappointment with a second appointment. Had the latter
interpretation been the intent behind the law, then it should and would
have made this situation clearer.
Further, the application of Section 3 appears to be limited to service in
a single position in government outside of the judiciary. Section 3
speaks of "any other position in the government," and thus uses a
singular noun. After this single service, the judge or justice invoking
the application of Section 3 must have returned to the judiciary in
order for his service to be deemed uninterrupted.
Additionally, it must not be lost on us that we have already given
Section 3 a liberal interpretation in In Re: Justice Pardo. To top this
exercise of liberality with another liberal interpretation of the same
provision, when the law is clear regarding its application, would
amount to judicial legislation that furthers the interests within our
ranks.
To recapitulate, Section 3 applies to any judge or justice, who left the
judiciary, served in a single non-judicial governmental post, and
returned to the judiciary. This was what happened in the case of
Justice Pardo, when after a long and continuous service in the
judiciary, he left to serve in the COMELEC and from there was
subsequently appointed to the Supreme Court.
b.3. Justice Fernando is not entitled to her request even under
the liberal Pardo ruling.
Justice Salazar-Fernando effectively asks us in her present case to
give her the benefit of our Pardo ruling although the attendant facts of
her case differ from those of Justice Pardo’s and do not approximate
the factual situation that Section 3 requires.
In the first place, her record shows that her services in between her
judicial services were not continuous and uninterrupted.
We find that after Justice Salazar-Fernando’s stint as MTC Judge in
July 1987, she was named Chairman of the Land Transportation
Franchising and Regulatory Board (LTFRB) where she served from
August 1987 to February 13, 1992. During this period, she
concurrently held directorship posts at the Light Rail Transit Authority
(LRTA) and at the Office of Transport Cooperatives (OTC). In the later
part of 1991,Justice Salazar-Fernando held the position of Officer-in-
Charge/Assistant Secretary of the Land Transportation Office.
It was only after Justice Salazar-Fernando’s stints at the LTFRB,
LRTA, and OTC all non-judicial offices that she was appointed as
Commissioner of the COMELEC on February 14, 1992, and served in
this capacity until February 15, 1998. Three (3) days later, or on
February 18, 1998, she started to serve as a consultant in the
COMELEC until October 6, 1998.
Parenthetically, her service as consultant is not a "position in
government" that should be considered a part of her government
service as she did not occupy any specific position in government.
Moreover, it was only five (5) months after her COMELEC
consultancy, or on March 25, 1999, that Justice Salazar-Fernando
was appointed as Associate Justice of the CA. Thus, significant gaps
in her judicial service intervened so that her situation did not comply
with the requirement in Section 3 that only a single non-judicial
position should intervene in her judicial service record.
Reduced to the bare essentials, the issue for us is whether we should
apply with liberality a ruling that had already been very liberally
interpreted by this Court, under facts that do not entitle Justice
Fernando to recognition of continuous service under the requirements
of Section 3.
Our brief and direct answer is that we cannot and must not allow the
crediting of Justice Salazar Fernando’ s COMELEC service for
longevity pay purposes. Acceding to her request will constitute an
outright judicial legislation that the Court cannot undertake under the
Constitution. As earlier noted, Justice Salazar-Fernando’s de tails do
not at all approximate the factual circumstances Section 3 of BP 129
that speaks of, nor the factual situation in In Re: Justice Pardo.
If we had been liberal in the past and this liberal ruling is now cited,
we should, at the very least, not go beyond the facts under which our
past liberality had been extended. If we further read liberally a Court
ruling that only came to being because of past liberality, we stand to
hear a re-echo of the charge that this Court selectively applies its
liberality in favor of its own . (In fact, a favorable ruling in these
consolidated cases may already raise eyebrows and questions as the
Court will be ruling on matters that will directly affect some of its
participating Members .)
To sum up, Justice Salazar-Fernando’s services as COMELEC
Commissioner cannot be included in the computation of her longevity
pay, now or upon her retirement .
II. Letter-Request of Justice Gacutan in A.M. No. 12-9-5-SC
a. Longevity Pay for Services as NLRC Commissioner
We deny Justice Gacutan’s request that her past services in the
NLRC be recognized for purposes of her longevity pay. She served as
a Commissioner IV of the NLRC from March 3, 1998 to November 5,
2009, or for a period of eleven years and eight months.
Section 42 of B.P. Blg. 129 is clear and explicit: a judge or justice
should have rendered five years of continuous, efficient and
meritorious service in the Judiciary in order to qualify for a monthly
longevity pay equivalent to 5% of the monthly basic pay.
We point out that the NLRC is an agency attached to the Department
of Labor and Employment – an adjunct of the Executive Department –
albeit for policy and program coordination only. Under the
circumstances, Justice Gacutan’s past service as NLRC
Commissioner cannot be credited as judicial service for longevity pay
purposes since she did not render such service while with the
Judiciary.
b. NLRC Services Considered in Retirement Pay
Nonetheless, Justice Gacutan’s service as NLRC Commissioner is
creditable as part of overall government service for retirement
purposes under RA 910, as amended. Section 1 of this law provides:
Section 1. When a Justice of the Supreme Court or of the Court of
Appeals who has rendered at least twenty years' service either in the
judiciary or in any other branch of the Government, or in both, (a)
retires for having attained the age of seventy y ears, or (b) resigns by
reason of his incapacity to discharge the duties of his office, he shall
receive during the residue of his natural life, in the manner hereinafter
provided, the salary which he was receiving at the time of his
retirement or resignation. And when a Justice of the Supreme Court or
of the Court of Appeals has attained the age of fifty-seven years and
has rendered at least twenty years' service in the Government, ten or
more of which have been continuously rendered as such Justice or as
judge of a court of record, he shall be likewise entitled to retire and
receive during the residue of his natural life, in the manner also
hereinafter prescribed, the salary which he was then receiving. It is a
condition of the pension provided for herein that no retiring Justice
during the time that he is receiving said pension shall appear as
counsel before any court in any civil case wherein the Government or
any subdivision or instrumentality thereof is the adverse party, or in
any criminal case wherein an officer or employee of the Government
is accused of an offense committed in relation to his office, or collect
any fee for his appearance in any administrative proceedings to
maintain an interest adverse to the Government, insular, provincial or
municipal, or to any of its legally constituted officers.
Considering the express wordings of RA 910, which include service
"in all other branches of the Government" as creditable service in the
computation of the retirement benefits of a justice or judge, Justice
Gacutan’s service as NL RC Commissioner should be credited as part
of her government service for retirement purposes under RA 910, as
amended.
III. Motion for Reconsideration of Justice Veloso in A.M. No. 12-8-07-
CA
a. Background.
The chairman and members of the NLRC were entitled to receive an
annual salary at least equivalent to the allowances and benefits of the
Presiding Justice and Associate Justices of the CA, respectively, prior
to the amendment of Article 216 of the Labor Code by RA 9347 .
Under RA 9347 (which took effect on August 26, 2006),17 NLRC
commissioners were given the equivalent rank of a CA Justice. The
Labor Code, as now amended by Section 4 of RA 9347, reads:
Article 216. Salaries, Benefits and Emoluments. The Chairman and
members of the Commission shall have the same rank , receive an
annual salary equivalent to, and be entitled to the same allowances,
retirement and benefits as those of the Presiding and Associate
Justices of the Court of Appeals, respectively. [italics supplied,
emphasis ours]
In his present motion, Justice Veloso claims that RA 9347 should be
given a retroactive application. With the equivalent rank of a CA
Justice from the time RA 9347 was amended, his service as NLRC
Commissioner should be considered as judicial service for purposes
of his longevity pay.
b. Our ruling and the reasons therefore
 b.1. RA 9347 does not provide for retroactivity.
We disagree with Justice Veloso’s position and thus deny his motion.
First, nothing in the language of RA 9347 expressly indicates the
intention to give it retroactive effect. We emphasize that statutes, as a
rule, apply prospectively, unless the legislative intention to give them
retrospective effect is expressly declared or is necessarily implied
from the language used.18 In "case of doubt, the doubt must be
resolved against the retroactive effect."19
Nor is retroactivity discernible, even by implication, from the
provisions of RA 9347. It is not implied from the law’s legislative
intent, nor from the deliberations in Senate Bill No. 2035 (which
became RA 9347).20
In Re: Request of Retired Deputy Court Administrator Bernardo T.
Ponferrada for Automatic Adjustment of His Retirement Benefits to
Include Special Allowance Under R.A. 9227,21 the Court refused to
extend the benefits provided by RA 9227 to official s of the Judiciary
who retired prior to the passage of this law. RA 9227 granted a
special allowance to justices, judges, and all other positions in the
Judiciary with the equivalent rank of justices of the CA or judges of the
RTC. Since the position of Deputy Court Administrator (DCA) carries
the same rank as an Associate Justice of the CA,22 retired DCA
Ponferrada asked for the inclusion of the RA 9227 special allowance
in his retirement pay.
The Court denied the request, noting that RA 9227 did not expressly
provide for retroactivity so that those who had retired at the time of its
enactment would be covered. Although the grant was extended to
retired SC and CA justices, this was justified under Section 3-A of RA
910, as amended, which states:
SEC. 3-A. In case the salary of Justices of the Supreme Court or of
the Court Appeals is increased or decreased, salary shall, for the
purpose of this Act, be deemed to be the salary or the retirement
pension which a Justice x x x who retired was receiving at the time of
his cessation in the office: Provided, That any benefits that have
already accrued prior to such increase or decrease shall not be
affected thereby.23 [underscore ours]
According to the Court, parity in rank and salary does not
automatically mean parity in retirement benefits under Section 3-A of
RA 910. Notably, the automatic adjustment of retirement benefits was
expressly extended by RA 910, as amended, but only to Justices of
the SC and the CA, not to judicial officials with the equivalent rank.
Additionally, since he retired prior to the passage of RA 9227, DCA
Ponferrada could not even invoke the automatic adjustment of his
retirement pay under Section 3-A of RA No. 910, as amended, to
support his request.24
In the same way, RA 9347 was en acted into law only on July 27,
2006. Justice Veloso had, by then (on February 4, 2004) left his post
as NLRC Commissioner to assume the position of Associate Justice
of the Court of Appeals. In the absence of any clear intent to give RA
9347 any retroactive effect, Justice Veloso cannot validly claim that he
held the rank of a CA justice during his stint as NLRC Commissioner
from 1989 to 2004.
b.2. RA 9347 is not a curative statute.
"A curative statute is enacted to cure defects in a prior law or to
validate legal proceedings, instruments or acts of public authorities[,]
which would otherwise be void for want of conformity with certain
existing legal requirements."25Simply put, curative laws are enacted to
validate acts done that otherwise would be invalid under existing laws.
RA 9347 is not a curative statute since it was not intended to supply
deficiencies, abridge superfluities in existing laws, or curb evils; the
insertion of the word "rank" in Article 216 was merely to emphasize
the increase in salaries and benefits of the NLRC Commissioners and
labor arbiters.
b.3. Grant of Equivalent Rank is not Service in the Judiciary
At any rate, even if we recognize retroactivity as requested, the
conferment of the rank of a CA Justice to Justice Veloso during his
tenure as NLRC Commissioner would not entitle him to longevity pay.
Section 42 of B.P. Blg. 129 is clear: a judge or justice shall be paid a
monthly longevity pay equivalent to 5% of the monthly basic pay for
each five years of continuous, efficient, and meritorious service
rendered in the Judiciary. Service in the NLRC, even with the rank of
a CA Justice, is not service with the Judiciary for purposes of
longevity pay. Justice Veloso’s service in the NLRC, however, m ay
be credited as part of his government service for retirement purposes
under RA 910, as in the case of Justice Gacutan .
IV. General Discussions
With each of the consolidated petitions directly ruled upon, the
following discussions are submitted to expound on the conclusions
reached and to generally comment on the issues the Dissents raised.
At the core of the issues raised is the question: should the past
service of incumbent justices and judges, rendered at the Executive
Department, be recognized under Section 42 of BP 129 ( the longevity
pay provision ) on the ground that their previous executive positions
now carry the rank, salary, and benefits of their counterparts in the
Judiciary?
The law governing this issue is of course the longevity pay provision,
heretofore quoted,26 whose salient points are summarized below:
1. The longevity pay is a monthly pay equivalent to 5% of
monthly basic pay;
2. Recipients are the Justices and Judges of courts;
3. For each five years of continuous, efficient and meritorious
service;
4. The service is to be rendered in the Judiciary;
5. In no case shall the total salary of each Justice or Judge,
after his longevity pay is added, exceed the salary of the
Justice or Judge next in rank.
What would otherwise be a simple stand-alone provision is
complicated by subsequent laws that grant the same ranks, salaries
and benefits.
- "as those of" their counterpart judge or justice (for the
National Prosecution Service), or
- "as those of the Presiding Justice and Associate Justices of
the Court of Appeals (for the National Labor Relations
Commission), and
- the [ "rank, prerogatives, salaries, allowances, benefits and
privileges"] as their counterpart Justice or Judge (for the Office
of the Solicitor General).
These new levels of rank and salary are essentially what the present
petitioners and the incumbent justices and judges cite as basis for the
grant or increase of their longevity pay.
Another complicating factor involves the past rulings of this Court
where past executive service had been recognized, not only for
retirement pay purposes, but for longevity pay purposes upon
retirement. Interestingly, no in-depth look appears to have been made
in these past rulings, although their results cannot be in doubt ― the
Court recognized past executive services for longevity pay purposes.
Interestingly, the Dissents, led by Justice De Castro, take a multi-
pronged critique of the ponencia generally chastising it for being
overly strict in its reading of Section 42.
Among others, she posits that the ponencia disregards long
established rulings of the Court on longevity pay without a clear
finding of the legal error made, and disregards as well the liberal
interpretation the Court has applied in these rulings; that the ponencia
disregards too the intent of the relevant laws (referring to the
subsequent laws that grants ranks, salaries and benefits similar to
those of their counterparts in the Judiciary), the legal presumption of
legislative awareness, and consideration of prior laws and
jurisprudence in enacting a statute; and claims that the
contemporaneous construction given by the Department of Justice
and other Executive branch officers, which disc loses a similar
treatment of the longevity pay provision of Section 42, de serves the
court’s respect. Last but not the least, Justice De Castro analyzes
Section 42 and concludes that longevity pay is not a mere benefit but
is a component of the salary that should not be withheld from
executive officers with the same rank, salary and benefits as their
counterparts in the Judiciary.
For his part, Justice Velasco essentially joins the Dissent of Justice
De Castro and questions the ponencia’s proposal to "freeze" the
longevity pay grants for justices and judges who have been credited
with their past service in the Executive Department. He posits too that
"what matters is their receiving, for purposes of computing longevity
pay, the salary of a Justice of the CA at the time they served as NLRC
Commissioners." If this is the case, Justice Veloso claims they should
be credited with their service with the NLRC for purposes of their
longevity pay.
Faced with these complications and dissents, the Court should not
forget that our duty, first and foremost, is to correctly interpret the law
as written, not to stick to our past rulings at all costs nor to consider
our personal interests. In doing this, we must also be reminded that at
the center of the dispute is Section 42 of BP 129 – the provision on
longevity pay that we must consider with a fresh eye.
The consolidated cases, too, do not embody claims by executive
officers against their own Department for the enforcement of what the
law involving their Department provides. These cases involve claims
by CA justices – members of the Judiciary – who look up to laws
involving the Executive Department to secure, maintain or increase
the longevity pay that provides benefit for judges and justices. Our
primary focus, however, must be the interpretation of our own law ―
BP 129 and its Section 42.
A. Statutory Construction & Interpretation Perspectives
a. First rule of statutory construction: the plain meaning rule.
The primary rule in addressing any problem relating to the
understanding or interpretation of a law (in this case, the provision
granting longevity pay) is to examine the law itself to see what it
plainly says. This is the plain meaning rule of statutory construction.27
The first aspect that offers itself in the examination of the law is its
title, which gives us a direct indicator of the exact subject matter of the
law. In the present cases, the law under which the disputed longevity
provision can be found is B.P. Blg. 129, An Act Reorganizing the
Judiciary, Appropriating Funds Therefore and For Other Purposes
(simplified as BP 129 or the Judiciary Reorganization Act of 1980).
This title alone already suggests that its provisions specifically relate
to members of the judiciary, unless an express contrary intent is made
by the legislature. No such exception clause is evident under the
terms of BP 129 or in any of the other related laws (specifically, in R.
A. 9347, 9417, and 10071) discussed in this ponencia .
As discussed more extensively below, these other general laws do not
specifically mention at all the longevity provision under BP 129, a
specific grant made only to the judges and justices in the Judiciary.
Section 42 of this law has heretofore been quoted, but for
convenience is again quoted below –
Section 42. Longevity pay . – A monthly longevity pay equivalent to
5% of the monthly basic pay shall be paid to the Justices and Judges
of the courts herein created for each five years of continuous,
efficient, and meritorious service rendered in the judiciary ; Provided ,
That in no case shall the total salary of each Justice or Judge
concerned, after this longevity pay is added, exceed the salary of the
Justice or Judge next in rank. [italics supplied; emphasis and
underscore ours ]
As written, the language and terms of this provision are very clear and
unequivocal: longevity pay is granted to a judge or justice (and to
none other) who has rendered five years of continuous, efficient and
meritorious service in the Judiciary. The granted monthly longevity
pay is equivalent to 5% of the monthly basic pay.
The plain reading of Section 42 shows that longevity pay is not
available even to a judicial officer who is not a judge or justice. It is
likewise not available, for greater reason, to an officer in the Executive
simply because he or she is not serving as a judge or justice. It cannot
also be available t o a judge or justice for past services he or she did
not render within the Judiciary as services rendered outside the
Judiciary for purposes of longevity pay is not contemplated by law.
Significantly, the Court has had occasion to speak about the purpose
of longevity pay. In In Re: Request of Justice Bernardo P. Pardo for
Adjustment of His Longevity Pay,28 the Court categorically declared
that the purpose of the law in granting longevity pay to judges and
justices is to recompense them for each five y ears of continuous,
efficient, and meritorious service rendered in the Judiciary; it is the
long service in the Judiciary - from the lowest to the highest court of
the land – and not in any other branch of government, that is
rewarded,29
In the case of the judge or justice now asking for the tacking of his/her
past executive service, the reason for the denial is simple and needs
no intricate or complicated exercise in interpretation: these past
services were undertaken outside the Judiciary and are not the
services the law contemplates. The tacking, to put it bluntly, violates
the clear purpose and wording of Section 42 of BP 129.
To look at Section 42 from another perspective, if indeed (as some
would argue) the intent is to grant executive officers longevity pay
pursuant to their respective grants of benefits similar to that provided
under Section 42 of BP 129, this presumed grant should be
understood to be limited to the executive officer’s continued, efficient
and meritorious service in the Executive Department, to be given
while the executive officer is still with that department.
When the public officer with equivalent rank, salary and benefits
transfers to the Judiciary , the longevity pay to which he may have
been entitled under the law applicable to his previous Executive
Department position, and which he may have been receiving because
of his continued service in that department, will simply have to be
disregarded and discontinued.
At the point of transfer, Section 42 of BP 129 will now apply and
operate, and will require five (5) years of continued and efficient
service in the Judiciary before it can start to be earned. This
application may sound hard and illiberal, but this is the logical
consequence of the combined effect of the Judiciary’s BP 129
longevity provision and the laws granting parity to benefits applicable
to the Judiciary.
To reiterate for emphasis, for a transferring public official, now a new
justice or judge, to be entitled to longevity pay under the terms of
Section 42, he must first render continued, efficient and meritorious
service in the Judiciary for at least five years; his prior continued
service in his previous department will not and should not be counted.
b. The general laws that the Dissents cite cannot prevail over a
specific law.
General laws (such as Republic Act Nos. [RA] 9347, 9417, and
10071) that generally grant the same ranks, salaries and benefits to
public officers in the Executive Department as those of their specified
counterparts in the Judiciary, cannot prevail over a special law such
as BP 129 that specifically grants longevity pay solely to justices and
judges who have rendered five (5) years of continuous, efficient, and
meritorious service rendered in the Judiciary.
A basic principle of statutory construction is that a special law prevails
over a general law.30 A later enactment like RA 9347 and RA 10071
cannot override BP 129 because the latter, as a special law, must
prevail regardless of the dates of the enactment of these other laws.31
As we held in Hon. Bagatsing v. Judge Ramirez,32 a general provision
must give way to a particular provision. As a special provision on the
grant of longevity pay, Section 42 of BP 129 governs and is
controlling; to hold otherwise, as the dissent suggests, is to violate its
clear mandate.
Following the rule on general and special laws, the general laws
granting the same salaries and benefits cannot apply to the longevity
pay provision that, by its specific and express terms, is solely for the
benefit of judges and justices who have shown loyal service to the
Judiciary; it is not for those who have been granted similar ranks,
salaries and benefits as those of their counterpart judges and justices.
That they cannot be beneficiaries of longevity pay is clinched by its
purpose – the reward is intended for those with loyal service to the
Judiciary.
c. Is there room for liberality in reading and interpreting Section
42?
As a general rule and contrary to the Dissent’s view, no room or
occasion exists for any liberal construction or interpretation; only the
application of the letter of the law is required by basic statutory
construction principles.
We should not forget that liberality is not a magic wand that can ward
off the clear terms and import of express legal provisions; it has a
place only when, between two positions that the law can both
accommodate, the Court chooses the more expansive or more
generous option. It has no place where no choice is available at all
because the terms of the law are clear and do not at all leave room for
discretion.
In terms of the longevity pay’s purpose, liberality has no place where
service is not to the Judiciary, as the element of loyalty – the virtue
that longevity pay rewards – is not at all present.
We cannot overemphasize too that the policy of liberal construction
cannot and should not be to the point of engaging in judicial legislation
– an act that the Constitution absolutely forbids this Court to do. We
may not, in the guise of interpretation, enlarge the scope of a statute
or include, under its terms, situations that were not provided nor
intended by the lawmakers. We cannot rewrite the law to conform to
what we think should be the law.
In the present case, where the law is clear, we should likewise be
clear and decisive in its application lest we be accused of favoritism or
accommodating former colleagues, or indirectly, ourselves, who will
all inevitably retire from our judicial posts.
d. Administrative construction is merely advisory and is not
binding upon the courts.
We take exception to the Dissent’s invocation of the doctrine of
contemporaneous construction to support its expansive reading of RA
9347 in relation with Section 42 of BP 129.
The Dissent conveniently fails to mention that contemporaneous
constructions of administrative or executive agencies are merely at
best advisory and not binding on the courts, for by the Constitution
and the law, the courts are given the task of finally determining what
the law means.33
We do so under our authority to state what the law is34 and deference
to an agency’s statutory interpretation should be withheld whenever it
conflicts with the language of the statute, as in the present case.
In Peralta v. Civil Service Commission,35 the Court had occasion to
state and held:
Administrative construction, if we may repeat, is not necessarily
binding upon the courts. Action of an administrative agency may be
disturbed or set aside by the judicial department if there is an error of
law, or abuse of power or lack of jurisdiction or grave abuse of
discretion clearly conflicting with either the letter or the spirit of a
legislative enactment.
Thus, while the Executive possesses discretion in the implementation
of laws, we should not forget the reason for the Judiciary’s existence.
We are the interpreters of the law and the Constitution, not the
Executive, and when a legal error exists, we must step in and
intervene, however long and hard the Executive’s previous
implementation of the law had been.
e. The question of Judicial Legislation
Judicial legislation, in simplest terms, happens when the Court adds
to what the law provides and does so in the guise of interpretation, as
the present dissents now want to do by seeking to tack and to credit,
for longevity pay purposes, the past services that justices and judges
rendered in the Executive Department.
In fact, in their discussions, the Dissents take the view that the
ponencia has engaged in judicial legislation because it restricts the
concept of salary merely to the "basic pay."
This Resolution does, in fact, reflect the views imputed to it and it has
not been shy or hesitant from the very start in taking this position. But
rather than being narrow and illiberal in doing this, we believe that our
position hews to the letter of the law so that our stance cannot be the
basis for the charge of judicial legislation.
Judicial legislation in fact transpires when the Court reads into the law
an interpretation that the four corners of that law cannot b ear. This
expansive interpretation – i.e., that the term "salary" under Section 42
includes longevity pay so that equivalency of "salary" translates to the
mandatory recognition of longevity pay – is unfortunately what the
dissents espouse, driven perhaps by thoughts of what the law ought
to be.
What "ought to be" as a matter of policy is not within the jurisdiction of
this Court to decide upon. The Court eloquently spoke in Canet v.
Mayor Decena about this judicial limit, albeit in the context of
discussing the maxim expression unius est exclusio alterius (literally,
what is expressed puts an end to what is implied). The Court said:36
In other words, it is a basic precept of statutory construction that the
express mention of one person, thing, act, or consequence excludes
all others, as expressed in the oft-repeated maxim expressio unius est
exlusio alterius. Elsewise stated, expressium facit cessare tacitum –
what is expressed puts an end to what is implied. The rule proceeds
from the premise that the legislative body would not have made
specific enumerations in a statute, if it had the intention not to restrict
its meaning and confine its terms to those expressly mentioned.
Even on the assumption that there is in fact a legislative gap caused
by such an omission, neither could the Court presume otherwise and
supply the details thereof, because a legislative lacuna cannot be
filled by judicial fiat. Indeed, courts may not, in the guise of
interpretation, enlarge the scope of a statute and include therein
situations not provided nor intended by the lawmakers. An omission at
the time of the enactment, whether careless or calculated, cannot be
judicially supplied however after later wisdom may recommend the
inclusion. Courts are not authorized to insert into the law what they
think should be in it or to supply what they think the legislature would
have supplied if its attention has been called to the omission.
Courts should not, by construction, revise even the most arbitrary and
unfair action of the legislature, nor rewrite the law to conform with
what they think should be the law. Nor may they interpret into the law
a requirement which the law does not prescribe. Where a statute
contains no limitations in its operation or scope, courts should not
engraft any. And where a provision of law expressly limits its
application to certain transactions, it cannot be extended to other
transactions by interpretation. To do any of such things would be to do
violence to the language of the law and to invade the legislative
sphere. [emphases ours]
Applied to the present consolidated cases, we cannot go beyond the
terms of Section 42 by expanding its terms to what it does not include:
when the law speaks of service "in the Judiciary," it means what it
says and cannot include service outside the Judiciary. To relate this to
the statutory construction rule discussed above give n the express
and clear terms of the law, the basic rule to apply is: "legislative intent
is to be determined from the language employed, and where there is
no ambiguity in the words, there is no room for construction."37
B. The Grant of Rank, Benefits and their Implications
a. Judicial Rank and Executive Rank.
The grant of a "rank" equivalent to (or even "the same as" ) "those of
the" grantee’s counterpart judge or justice is a matter that has not
been the subject of extensive jurisprudential c overage. Hence, the
subject of this Resolution proceeds on a path that so far remains
untrodden. The novelty of the issue posed need not deter us as the
matters before us call for resolution and should be written about if only
to serve as guides for the future.
The Judiciary recognizes the ranks that the law accords to judges and
justices. These judicial ranks wholly pertain to the Judiciary as an
independent, separate and co-equal branch of government. Under our
current constitutional set-up, no legislative or executive grant, fiat or
recognition of rank can make the grantee, who is not a judge or
justice, a judicial officer, without violating the constitutional principles
of separation of powers and independence of the Judiciary.
As a consequence, the grant of rank at the same level as the
grantees’ counterpart judges or justices is not and cannot be a
conferment of "judicial rank" and does not thereby accord the
grantees recognition as members of the Judiciary. For incumbent
judges and justices who had previous government service outside the
Judiciary , it follows that the grant of rank to them under their old
executive positions does not render their service in these previous
positions equivalent to and creditable as judicial service, unless
Congress by law says otherwise and only for purposes of entitlement
to salaries and benefits.
To be sure, Congress can create and recognize ranks outside of the
Judiciary that are equivalent to the ranks it has created for the
Judiciary, but again, this recognition doe s not thereby create "judicial
ranks" outside of the Judiciary, nor constitute the grantees of these
ranks as judges and justices. Technically, what Congress creates or
grants are executive ranks that are equivalent to judicial ranks.
Notably, even for those within the Judiciary itself, the recognition of
"judicial rank" in favor of those who are not justices or judges does not
thereby make the grantee a justice or a judge who is entitled to this
formal title; the grantee may be entitled to the benefits of the rank but
he/she remains an administrative official in the Judiciary, separate
and distinct from the justices and judges who directly exercise judicial
power, singly or collegially.
b. Commonalities and Divergence of Terms and Conditions of
Government Service.
The principle of separation of powers between the Executive,
Legislative, and Judicial branches of government ordains that each of
these three (3) great branches of government has exclusive
cognizance of, and is supreme in matters falling within its own
constitutionally allocated sphere.38
Each branch cannot invade the domain of the others.39 This principle
presupposes mutual respect by and between the Executive,
Legislative, and Judicial departments and entitles them to be left
alone to discharge their assigned duties as they see fit.40
We generally draw attention to this constitutional principle to
emphasize that while all officials in the three branches of government
are government officials, vast differences may exist in the terms and
conditions of their government service; these are ultimately traceable
to the separation of power principle.
Government officials perform specifically assigned functions peculiar
to their respective departments and these functions justify their
differing terms and conditions of government service. In the context of
the present consolidated cases, distinctions must necessarily exist
between one who is appointed to the position of a judge or justice,
(which position carries law-defined salaries, benefits, and conditions
specific to judges and justices), and one who is appointed to an
executive position with the equivalent rank, salary or benefits of a
justice or judge in the Judiciary.
The extent to which those with equivalent executive and judicial ranks
have commonalities or diverge in their salaries and benefits is a
matter that the Constitution leaves, within limits, to the discretion of
the Legislature as a matter of policy. What is important to recognize is
the legal reality that the divergence of salaries and benefits across
government, even among those with equivalent ranks, is not at all
unusual because these positions belong to different branches of
government and undertake functions peculiar to their departments.
A convenient example to cite is the allowance benefit that members of
the Office of the Solicitor General are given as peculiarly their own –
honoraria and allowances from client departments, agencies and
instrumentalities.41 Members of the Judiciary do not enjoy these same
benefits.
On the part of the Judiciary, the disputed longevity pay also serves as
a good example. By its terms, longevity pay is peculiar to the Judiciary
as discussed above. Significantly, in all the cited laws that grant
similarity of ranks, salaries, and benefits between executive officials
and their counterparts in the Judiciary, no mention at all is made of
longevity pay and its enjoyment outside the Judiciary. Longevity pay,
of course, is not unique as a feature of judicial life that is wholly the
Judiciary’s own; there are other benefits that the Judiciary enjoys – by
law, by rule or by practice – that are not replicated in the executive
agencies, in the same manner that there are benefits in executive
agencies that the Judiciary does not share.
In this sense, it approximates the absurd to claim that the grant of the
"same" benefits to executive officials with the "same" rank should
encompass all the benefits that the comparator judge or justice
enjoys.
b.1. The Question of Fairness.
A tempting question to raise when comparisons are made across
branches of government and when equivalency of salaries and
benefits comes into focus, is the essential fairness, or lack of it, that
results or should result.
The Judiciary, for example, may raise the point – if we are the
comparators and all our benefits should be enjoyed by the Solicitors,
is there no resulting unfairness because no la w grants the Judiciary
the same privilege of enjoying the benefits that the Office of the
Solicitor General enjoys?
To be sure, unfairness may factually result, but this is not a matter for
the Judiciary to examine in the absence of a case where this factual
issue is raised and is relevant. Nor is there any indefensible inequality
as a matter of law viewed from the prism of the legal measuring
standard ― the equal protection clause. Notably, the Judiciary and
the Executive Department belong to different branches of government
whose roles and functions in government differ as pointed out above.
Thus, ground/s for distinctions may exist that render any seeming
unfairness not legally objectionable.
If the issue of unfairness will surface at all, this would transpire when
the terms of the longevity provision under BP 129 would be
disregarded, i.e., if longevity pay would be recognized in favor of the
NLRC, the prosecutors and the solicitors under the terms of their
respective laws, when longevity pay – by the express terms fashioned
out by Congress – should be granted only to those who have served
continuous, efficient, and meritorious service in the judiciary.
Similarly unfair would be the tacking of previous services outside of
the Judiciary rendered by judges and justices, incumbent or retired,
for purposes of longevity pay under Section 42. Of course, the main
issue in this situation would be legality, but this situation, to our mind,
is one that is both illegal and unfair. Unfairness comes in because of
the grant of what is not legally due.
D. The Salary and Longevity Pay
a. The Applicable Law on Salary
An examination of BP 129 shows that its Section 41 treats of
"salaries" of judges, while Section 42 provides for longevity pay.
Under Section 41, the "salaries" or compensation (and allowances)
that judges shall receive shall be the amount that the President may
authorize following the guidelines set fort h in Letter of Implementation
(LOI) No. 93, pursuant to Presidential Decree (PD) No. 985, as
amended by PD 1597.
PD 985, as amended by PD 1597, implemented a position
classification and compensation standardization scheme (Scheme) :
(1) under which positions are classified by occupational
groups, series and classes according to the similarities or
differences in duties, responsibilities, and qualification
requirements; and
(2) by which the rates of pay for each of the positions and
employee groups/classes are determined according to the
salary and wage schedules fixed by the Decree to be uniformly
app lied to all belonging to a particular position.
Under Section 4 of PD 985, this position classification and
compensation standardization scheme shall apply to all positions in
the national government, that under PD 1597’s amendment now
includes the justices and judges in the Judiciary.
Section 11 of PD 985 provides for the "Salary Schedule " under the
compensation system for positions pa id on annual or monthly basis.
The Schedule consists of twenty-eight grades with each grade having
eight prescribed steps. Each grade represents a level of work difficulty
and responsibility that distinguishes it from the other grades in the
Schedule. Each class of position in the Position Classification System
is assigned a "salary grade" and determines the position’s salary
rate.42
Under the Scheme, every covered position receives a "salary" or
compensation corresponding to the position’s "salary grade" under the
"Salary Schedule." Otherwise stated, all covered positions or
employees belonging to a particular "salary grade," regardless of the
department, bureau, office, etc., to which they belong, shall receive
the same "salary rate," expressed as annual, in pesos, as fixed under
the "Salary Schedule" (subject to certain salary rate increments for
each step within each salary grade). In short, a particular "salary
grade" equates to a specific, fixed "salary rate."
Prior to its amendment by PD 1597, Section 4 of PD 985 exempted
from the position classification and compensation standardization
scheme the following positions or group of government officials and
employees: (1) elected officers and those whose compensation is
fixed by the Constitution; (2) heads of executive departments and
officials of equivalent rank: (3) chiefs of diplomatic missions, ministers,
and Foreign Service officers; (4) Justices and Judges of the Judicial
Department; (5) members of the armed forces; (6) heads and
assistant heads of GOCCs, including the senior management and
technical positions; (7) heads of state universities and colleges; (8)
positions in the career executive service; and (9) provincial, city,
municipal and other local government officials and employees. The
salaries or compensation and allowances of these exempted positions
are those to be authorized by the President.
Pursuant to PD 985’s mandate, then President Ferdinand E. Marcos
issued Letter of Implementation (L OI 93) adopting an integrated
compensation scheme for positions in the Judiciary. In almost the
same fashion as PD 985, Para graph 3.0 of LOI 93 enumerated the
various positions in the Judicial Component of the Judiciary, i.e.,
Justices and Judges of the Supreme Court, Court of Appeals,
Sandiganbayan, Court of Tax Appeals, Court of Agrarian Relations,
the First and Second Level Courts, the Clerks of Court of the
Supreme Court and Court of Appeals, and the corresponding "salary
rates" for each position, expressed as annual, in pesos.
With PD 1597’s amendment, those previously exempted positions,
i.e., Justices and Judges of the Judicial Department, are now included
in the coverage of Section 4 of PD 985. PD 985, as amended by PD
1597, now limits the exemptions to elected officers; to those whose
compensation is fixed by the Constitution; and to local government
officials and employees.
Note that Section 11 of PD 985, as amended by PD 1597, and even
Paragraph 3.0 of LOI 93, provided for fixed "salary rates" for each
"salary grade" expressed as annual, in pesos. As matters now stand,
the "salary" or compensation that an employee or a position in the
government will receive is the prevailing "salary rate," fixed under the
"Salary Schedule," that corresponds to the employee or position’s
"salary grade."
The "salary rate" as expressed in annual fixed rates, based on the
"salary grade" referred to under LOI 93 pursuant to PD 985, as
amended by PD 1597 is the "salary" referred to in Section 41 of BP
129, i.e., an amount or salary rate fixed as annual, in pesos, that is
based on the recipient’s salary grading.
b. Longevity Pay under Section 42.
Section 42 of BP 129 provides for the payment and the manner of
computing longevity pay, i.e., to be paid monthly, based on the
recipient’s monthly basic pay at the rate of 5% for each five years of
continuous, efficient and meritorious service rendered in the judiciary.
Note that the amount of longevity pay to which a recipient shall be
entitled is not a fixed amount, in contrast with the "salary" under
Section 41; it is a percentage of the recipient’s monthly basic pay
which, at the least, is equivalent to 5%.
Also, the payment of longevity pay is premised on a continued,
efficient, and meritorious service: (1) in the Judiciary; and (2) of at
least five years. Long and continued service in the Judiciary is the
basis and reason for the payment of longevity pay; it rewards the loyal
and efficient service of the recipient in the Judiciary.
From these perspectives, longevity pay is both a branch specific (i.e.,
to the judges and justices of the Judiciary) and conditional (i.e., due
only upon the fulfillment of certain conditions) grant. In negative terms,
it is not an absolute grant that is easily transferrable to other
departments of government.
b.1. Salary and Longevity Pay compared.
In contrast with longevity pay, the "salary" under Section 41 entitles
the official or employee to its receipt from day one (or the first day of
the first month) of his service. Its basis or reason for payment is the
actual performance of service or assigned duties, without regard to
the months or years the recipient has been rendering the service.
Note, too, that the service contemplated under Section 42 for
entitlement to longevity pay is service in the judiciary. This intent is
clear not only from Section 42’s explicit use of the word "judiciary" to
qualify "service," but also from the title of the statute to which this
specific provision belongs, i.e., "The Judiciary Reorganization Act of
1980." In these lights, the "same salary" that Article 216 of the Labor
Code speaks of and to which the NLRC Commissioners shall be
entitled, should be read and understood as the salary under Section
41 or the "salary rate," as provided under the "Salary Schedule" that
corresponds to the "salary grade" of their counterpart justice or judge.
Other laws that grant other public officers in the executive department
with the "same salary" as their counterpart justice or judge (i.e., RA
Nos. 9417 and 10071) should likewise be read and understood in this
way.
b.2. Nature of Longevity Pay.
Based on these considerations, longevity pay should be treated as a
benefit or an "add-on" and not a part, let alone an integral component
of "salary," contrary to the Dissents’ position.
This consequence necessarily results as "salary" and longevity pay:
(1) are treated under different sections of BP 129; (2) have different
bases for determination or computation; and (3) have different
reasons for the payment or grant.
In addition, Section 42 of BP 129 does not categorically state that the
monthly longevity pay shall form part of the "salary" or is an integral or
inseparable component of “salary.” Even the most liberal
interpretation of Section 42 does not reveal any intention to treat
longevity pay in this manner ― as part, or as an integral component,
of “salary.”
On the contrary, Section 42 makes it clear that the "salary," which the
Dissents submit serve as basis of the "salary" of executive officers
with the same rank of a justice or judge, is that referred to or
contemplated in Section 41.
b.3. Section 42 Analyzed.
Note in this regard that the last clause of Section 42 which states that:
"in no case shall the total salary of each Justice or Judge concerned,
after this longevity pay is added , exceed the salary of the Justice or
Judge next in rank."
The use of the term "total salary" under the first portion of Section 42’s
last clause, presupposes an addition of components, and should be
understood to refer to the total compensation received . This "total
salary" is the "salary" (or the salary rate fixed under the "Salary
Schedule" as the recipient’s monthly compensation corresponding to
his "salary grade") plus the "add-on" longevity pay (or that portion or
percentage of the "salary" as fixed under the Salary Schedule)
equivalent to at least 5% of the monthly salary.
In formula form, this should read –
Section 41 Salary + Section 42 Longevity Pay = Total Salary
Where:
Salary = monthly salary rate of position per the Salary Schedule
Longevity Pay = monthly salary rate x 5%.
That the word "total" was added to "salary" under the first portion of
Section 42’s last clause, in no way signifies that longevity pay is an
integral part of the "salary" which a Justice or Judge will receive each
month by virtue of his position/rank/salary grade.
The word "total" was added simply to qualify "salary" (the recipient’s
"salary" fixed under the "Salary Schedule") plus any longevity pay to
which he may be entitled. This treatment, to be sure, does not make
the longevity pay a part of the "salary."
In short, "total" simply modified "s alary," and in effect denotes that
amount received or to be received as total compensation, and
distinguishes this resulting amount from the "salary" received each
month by virtue of the position/salary grade.
Note, too, the word "salary" under the last portion of Section 42’s last
clause which is not qualified or modified by the word "total," in contrast
with the "total salary" under the first portion.
The last portion states: the salary of the Justice or Judge next in rank:
this "salary" of the Justice or Judge next in rank should not be
exceeded by the "total salary" (or total compensation) of the recipient.
The "salary" under the last phrase, when read together with the "total
salary" under the first phrase, shows that "salary" is distinct, and to be
pa id separately from longevity pay, so that the latter cannot be an
integral part of "salary."
To sum up, the "same salary" to be received by the public officials in
the Executive Department, with the same rank of justice or judge, is
the "salary" of the justice or judge under Section 41. The "salary"
referred to in Section 41, in turn, and as explained above, is the
"salary rate" fixed under the "Salary Schedule" corresponding to the
position’s "salary grade."
Notably, Justice De Castro’s proposition that the term "salary"
constitutes the basic monthly salary plus the longevity pay when the
Congress enacted RA Nos. 9417, 9347, and 10071 is not reflected in
any of the congressional deliberations. What the deliberations clearly
reveal is simply the intention to increase the "salaries" of the covered
public officers in the Executive Department to the level of the
"salaries" received by or granted to their counterpart in the Judiciary.
This "salary" cannot but refer to the fixed sum that the system of
"salary rate," "Salary Schedule," and "salary grade" speaks of. It
cannot refer to the variable amount of "total salary" that the dissent
refers to, as the basis or comparator cannot be a variable amount that
reflects the seniority that a judge or justice has attained after years in
the service.
Ironically, Justice De Castro’s cited case – Re Longevity pay of
Justices of the Sandiganbayan, appearing at page 42 of this ponencia
– best illustrates how the "salary" and "total salary" concepts operate.
E. The complete parity that the dissent advocates is a policy matter
that Congress has not so far expressed.
The legislative history and record of the laws (that grant the same
ranks, salaries, and benefits to officers in the Executive department
equivalent to their specified counterparts in the Judiciary) do not
support the Dissent’s view that these laws grant full parity in rank,
salaries, and benefits or equal treatment between the executive
officers/grantees and the comparator judges and justices whose
longevity pay arises from BP 129.
In fact, the legislative history and record of these statutes positively
show that Congress has not yet gone as far as the Dissents would
want them to go―to recognize full parity that includes the grant of
longevity pay under BP 129 to executive officers in the Executive
Department.
As the discussions below will show, the Dissent, without delving deep
into legislative history and record of the statutes it cited as bases, took
the easy route of resorting to hasty generalizations to support its
tenuous theory that these laws operate under the principle of " equal
in qualifications and equal in rank, equal in salaries and benefits
received."
This interpretative route may be easy but is a very dangerous one in
its implications, as Congress has not in any way shown that it has
intended officers with the same rank and qualifications across
government to receive equal pay and equal benefits.
For this kind of "equalization" to prevail, the government must be
ready to embark on a comparison, not only of rank and qualifications,
but on the quantification of job content and valuation of jobs of equal
value, involving similar or allied activities undertaken across
government.
This is the requirement that the "equal pay for equal work" principle
established in jurisdictions with more advanced social legislation than
the Philippines.43 To be sure, this is a serious policy matter that, under
the terms of the Constitution, is not for this Court but for Congress to
establish .
To fully support these contentions, we embark on a brief look into the
laws that the Dissent itself cited.
a. RA 934744 affecting the NLRC.
RA 9347 lapsed into law on July 27, 2006. This law was passed to
address the then urgent need to improve the administrative and
operational efficiency of the National Labor Relations Commission
(NLRC), particularly its rate of disposition of pending cases and the
reduction of its ballooning backlog of labor cases.45 In dealing with
these issues, Congress then focused on measures that would
encourage productivity and efficiency and boost the morale of NLRC
officials.
The congressional measures Congress passed included the increase
in the number of commissioner-members of the NLRC, the creation of
positions for commission attorneys who would assist the NLRC
commissioners in deciding the labor cases, and a provision for
retirement benefits to NLRC commissioners and labor arbiters
equivalent to the retirement benefits of justices of the CA and judges
of the RTCs, respectively.
In appreciating RA 9347, note that as early as Presidential Decree
No. (PD) 442, the commissioners of the NLRC were already given the
same salary and benefits as justices of the CA . As the old Article 216
of the Labor Code provided, before the amendment:
Article 216. Salaries, benefits and other emoluments. The Chairman
and members of the Commission shall receive an annual salary at
least equivalent to, and be entitled to the same allowances and
benefits as those of the Presiding Justice and Associate Justices of
the Court of Appeals, respectively. The Executive Labor Arbiters shall
receive an annual salary at least equivalent to that of an Assistant
Regional Director of the Department of Labor and Employment and
shall be entitled to the same allowances and benefits as that of a
Regional Director of said Department. The Labor Arbiters shall
receive an annual salary at least equivalent to, and be entitled to the
same allowances and benefits as that of an Assistant Regional
Director of the Department of Labor and Employment. In no case,
however, shall the provision of this Article result in the diminution of
existing salaries, allowances and benefits of the aforementioned
officials. (As amended by Section 8, Republic Act No. 6715, March
21, 1989)46
This old provision did not include retirement benefits in its wording.
Thus, as enumerated, entitlement to equivalence was limited to
salaries, allowances and benefits. To address the perceived
legislative gap, the amendatory RA 9347 expressly included the word
retirement in the enumeration. This grant applied to both
commissioners and labor arbiters of the NLRC.
Aside from this observation, note too that the old Article 216 of the
Labor Code did not give labor arbiters the salary, allowances and
benefits equivalent to those of the Regional Trial Court (RTC ) judges.
Apart from addressing the issue on retirement benefits, RA 9347 also
sought to deal with the then situation of labor arbiters in terms of their
salaries and emoluments.
Thus, the congressional intent in RA 9347 was to deal with two gaps
in PD 442 with respect to the salaries, benefits, and emoluments of
the members of the NLRC.
The first was the grant of salaries and benefits to labor arbiters
equivalent to those of RTC judges, and the second was the express
inclusion of the retirement benefits of the labor arbiters and NLRC
commissioners at the levels equivalent to those of RTC judges and
CA justices, respectively.
In the discussions and exchanges among the members of Congress –
among them, the explanatory note of Senator Ramon Revilla Jr. in
Senate Bill No. 120447 and the sponsorship speech of Senator
Jinggoy Ejercito Estrada of Senate Bill No. 2035 (the senate bill that
led to RA 9347)48 – nowhere did they deal with the issue of longevity
pay as a benefit that should be accorded to labor arbiters and
commissioners of the NLRC.
In this light, we believe that to make the hasty generalization that the
word benefit as enumerated in Article 216 of the Labor Code should
include longevity pay would run counter to the intention of the law.
Note that had it been the intent of Congress to give the labor arbiters
and commissioners of the NLRC all the benefits enjoyed by the
members of the Judiciary as provided in BP 129 and in other laws
specifically applicable to members of the Judiciary, then it should not
have amended Article 216 of the Labor Code by including "retirement
benefits" in the enumeration. Congress should have left the provision
as it is since it already provides for the general term benefit.
Parenthetically, retirement pay is a specific form of allowance under
the general term benefits. Congress had to include this item as an
express benefit precisely because the use of the general word benefit
in the old Article 216 of the Labor Code did not include all the benefits
then being enjoyed by judges and justices of the Judiciary.
In providing for retirement benefits, Congress significantly did not
simply state that the NLRC shall enjoy the terms and benefits of
judges and justices under their retirement law, RA 910, where
longevity pay is a special and specific provision. Congress contented
itself with the plain insertion of "retirement pay" and stopped there.
Thus, as matters now stand, NLRC officials retire under the retirement
law applicable to executive officials, with parity of the terms of this
retirement law with those of their counterparts in the Judiciary.
Retirement benefits specific to the Judiciary, however, were not and
should not be interpreted to be wholly included.
b. RA 941749 affecting the OSG.
RA 9417 passed into law on March 30, 2007. As in the case of RA
9347, this law was passed to address the plight of the members of the
Office of the Solicitor General ( OSG ) by upgrading their salaries and
benefits to improve their efficiency as the Republic’s counsel.
In the sponsorship speech of Senator Juan Ponce Enrile regarding
Senate Bill No. 2249, the predecessor Senate Bill of RA 9417,
Senator Enrile pointed out that the Senate’s Committee on Justice
and Human Rights, in crafting Senate Bill 2249, aimed to address the
following issues regarding the OSG:
1. Increase the number of staff of the OSG and upgrade their
positions;
2. Increase the existing 15 legal divisions of the OSG to 30;
3. Provide health care services, insurance coverage and
scholarship and other benefits to all OSG employees subject
to the availability of funds;
4. Grant franking privileges to the OSG;
5. Establish a provident fund within the OSG; and
6. Grant retirement benefits to qualified employees.50
As in the case of the NLRC, it must again be noted that this
enumeration is specific with respect to the benefits granted to
members of the OSG: it particularly referred to the benefits to be
granted. Although Section 3 of RA 941751 provides that the Solicitor
General shall have the same qualifications for appointment, rank,
prerogatives, salaries, allowances, benefits and privileges as the
Presiding Justice of the CA (and an Assistant Solicitor General as that
of a CA Associate Justice), RA 9417 still allocated express provisions
for the other benefits to be enjoyed by the members of the OSG.
These provisions are the following:
Section 4- Compensation52
Section 5- Benefits and Privileges53
Section 6- Seminar and Other Professional Fees54
Section 7- Transportation Benefits55
Section 8- Other Benefits56
Section 10- Grant of Special Allowances57
Had Congress really intended to grant the benefit of longevity pay to
the members of the OSG, then it should have also included in the list
of benefits granted under RA 9417 a provision pertaining to longevity
pay. This provision is glaringly missing and thus cannot be included
via this Court’s decision without running afoul of the rule that prohibits
judicial legislation. Nor can this Court recognize the past service
rendered by a current judge or justice in the OSG for purposes of
longevity pay.
A closer examination of this law shows that what Congress did was to
grant benefits that were applicable to the type of service that the OSG
provides.
For example, OSG lawyers are entitle d to honoraria and allowances
from client departments, agencies and instrumentalities of the
Government.58
This benefit is only proper as the main function of the OSG is to act as
the counsel of the Government and its officers acting in their official
capacity. On the other hand, this benefit is not applicable to member s
of the Judiciary as they do not act as advocates but rather as impartial
judges of the cases before them, for which they are not entitled to
honoraria and allowances on a per case basis.
Another indicator that should be considered from the congressional
handling of RA 9417 is that Congress did not intend to introduce a
strict one-to-one correspondence between the grant of the same
salaries and benefits to members of the executive department and of
the Judiciary. The congressional approach apparently was for laws
granting benefits to be of specific application that pertains to the
different departments according to their personnel’s needs and
activities. No equalization or standardization of benefits was ever
intended on a generalized or across-the-board basis.
F. The structure of the laws providing for the salaries and benefits of
members of the Judiciary, prosecutors, and public officers in the OSG
and the NLRC further negate the Dissent’s view that these laws
intended equal treatment among them.
We cannot also agree with the Dissent’s position that the laws
providing for the salaries and benefits of members of the Judiciary,
the prosecution service, the OSG solicitors , and the members of the
NLRC aim to provide equality among these public officers in their
salaries and benefits.
In terms of salaries, their rationalization has been addressed through
Position Classification and Compensation System of the government
under PD 985, PD 1597 and LOI 93, heretofore discussed. It is
through the amendments of these legislative enactments that parity
and equity can both be achieved in government.
On the other hand, a look at the structure of the laws affecting the
Judiciary, the prosecutors, the OSG, and the NLRC shows that there
could be no equal treatment among them. Notably, under Section 16,
par. 6 of RA 10071,59 only the prosecutors would have an automatic
increase in salaries and benefits in case the salaries and benefits in
the Judiciary increase. This provision, by itself, shows that Congress
did not intend full parity, because increases in the salaries and
benefits of prosecutors would not lead to an automatic increase in the
salaries and benefits of members of the Judiciary.
Extending our judicial lens even further, the laws increasing the
salaries and benefits of executive officers in the OSG and the NLRC
do not also provide for an automatic increase should there be
increases in the salaries and benefits of the Judiciary; neither do
these laws increase the salaries and benefits of the members of the
Judiciary should the salaries and benefits of these public officers
increase.
Had Congress really intended full parity between the Judiciary and
other public officers in the executive department, it would have
provided for reciprocity in the automatic increase of salaries, benefits
and allowances, and the upgrading of the grades or levels of the
emoluments of these public officers.
Instead, the laws, as currently worded, allow for a situation where an
increase in the salaries and benefits of prosecutors would not result in
the increase in the salaries of members of the Judiciary, the OSG and
NLRC. Thus, instead of equalization, the prosecutors (who were
merely granted a rank at par with their named counterparts in the
Judiciary) would be in a better position than the actual judges and
justices themselves, in the absence of a similar provision of law giving
the same benefits to justices and judges in the event additional
emoluments would be given to these prosecutors.
The inevitable conclusion from all these is that Congress, in
increasing the salaries and benefits of these officers, merely used the
salary levels and benefits in the Judiciary as a yardstick to make their
salaries and benefits comparable to fellow government employees
engaged in the administration of justice.
At the risk of endlessly belaboring a point, we cannot, without
engaging in the prohibited act of judicial legislation, construe that the
Dissent’s cited laws fully intend and recognize full parity in rank,
salaries, benefits, and other emoluments among the public officers
mentioned.
G. The Dissent’s cited cases of Santiago, Gancayco, Dela Fuente and
Guevara-Salonga are not controlling in the present case, as they are
a strained and erroneous application of Section 42 of BP 129 that
should be abandoned.
The dissent’s invocation of the cases of Judge Santiago and Justices
Gancayco, Dela Fuente, and Guevara-Salonga cannot be applied to
the present case as they are erroneous applications of Section 42 of
BP 129 in relation with RA 910 or the Judiciary’s retirement law.
Nor can these cases be cited to support the position that these past
rulings already established that the past services in the Executive
Department of incumbent and retired justices and judges, should be
given credit for purposes of longevity pa y under Section 42 of BP
129.
a. The Guevarra-Salonga & Dela Fuente Cases
The grants of longevity pay to Justice Guevara-Salonga and Justice
Dela Fuente, in particular, were based on a misinterpretation and
misunderstanding of the Judiciary’s retirement law ― RA 910, read in
relation to Section 42 of BP 129 ― and its interaction with RA 10071,
which granted prosecutors the same rank and benefits (including
retirement benefits) of their counterparts in the Judiciary.
Although RA 910 recognized, for purposes of retirement pay, past
services in the Judiciary or in any other branch of the Government,
the longevity pay provision under Section 42 of BP 129 recognizes
only services in the Judiciary in determining the longevity pay of 5% of
the basic salary (given for each five years of service) that is carried
over into retirement from the service.
In considering the longevity pay in the cases of Justices Guevarra-
Salonga and Dela Fuente, the Court mistakenly recognized their
services as prosecutors to be services in the Judiciary, because RA
1007160 granted prosecutors the same rank and benefits (including
retirement benefits) as their counterparts in the Judiciary.
The Court failed to fully appreciate that the longevity pay provision
under RA 910, in relation with Section 42 of BP 129, is unique to the
Judiciary and can be enjoyed only for services actually rendered, and
by those who retired, in this branch of government. Thus, services at
the Department of Justice, i.e., outside of the Judiciary, should not
have been recognized as additional judicial service for purposes of
longevity pay on retirement.
Notably, the Court did not comprehensively discuss in these cited
rulings the nature of service required for the longevity provision to
apply, nor the purpose, reason and history of the longevity pay
provision under BP 129, for the Dissents to conclude that the Court
already treated the past service in the Executive Department to be
equivalent to service in the Judiciary.
As we earlier discussed, under our system of Government, the
Judiciary is separate from, serves a purpose and functions, and has
powers, duties and prerogatives distinct from those of the Executive
Department. Hence, the Court, in these Resolutions, could not have
regarded service in the Executive as unqualifiedly equivalent to
service in the Judiciary.
It should be considered, too, that an acceptance of past service in the
Executive as service in the Judiciary may have no basis. The
qualification for the grant by the Judiciary should be its determination
that there had been continuous, efficient, and meritorious service. No
such determination can be done by the Judiciary if it will simply
recognize longevity pay based solely on service in a position under
the Executive Department with rank, salaries, and benefits equivalent
to specified positions in the Judiciary.
To reiterate, for clarity and emphasis, if the Judiciary would recognize
past service in the Executive simply because of the equivalency of
rank, salaries and benefits, the situation would be legally problematic
as it would have no way of knowing for itself if the grantee would
qualify (based on efficient and meritorious service) since the past
service would be with the Executive, not with the Judiciary. Of course,
for this Court to simply recognize that past executive service w ill be
credited under Section 42 of BP 129 constitutes prohibited judicial
legislation for going beyond the requirement that service should be in
the Judiciary.
b. The cited Sandiganbayan case.
Re: Longevity Pay of the Associate Justices of the Sandiganbayan
(Sandiganbayan case)61 is a very interesting case that Justice De
Castro uses as part of her argument on the liberal stance the Court
has taken on longevity pay.
Significantly, this case did not treat the longevity pay under Section 42
as an integral component of the salary of the recipient, to be given to
and applied in equal degree and force, and under absolute
circumstances to public officials in the Executive Department granted
the "same salary" as their counterpart in the Judiciary.
The Sandiganbayan ruling, in fact, does not apply to the factual
situation of the present case; it solely involves Justices of the
Sandiganbayan ― members of the Judiciary. Note the following
pronouncement in that case:
x x x longevity pay once earned and enjoyed becomes a vested right
and forms part of the salary of the recipient thereof which may not be
reduced despite the subsequent appointment of a justice or judge
next higher in rank who is not entitled to longevity pay for being new
and not having acquired any longevity in the government service.
Furthermore, diminution or decrease of the salary of an incumbent
justice or judge is prohibited by Section 10 of Article X of the
Constitution; hence, such recipient continue to earn and receive
addition l longevity pay as may be warranted by subsequent services
in the judiciary, because the purpose of the Longevity Pay Law is to
reward justices and judges for their long and dedicated service as
such. The provision of the law that the total salary of each justice or
judge concerned, after adding his longevity pay, should not exceed
the salary plus longevity pay of the justice or judge next higher in
rank, refers only to the initial implementation of the law and does not
proscribe a justice or judge who is already entitled to longevity pay,
from continuing to earn and receive longevity pay for services
rendered in the judiciary subsequent to such implementation, by the
mere accident of a newcomer being appointed to the position next
higher in rank.
These pronouncements reveal the Court’s recognition of a situation
where a Justice or Judge who has rendered service in the Judiciary
for a considerable length of time and who will receive a total
compensation that far exceeds the "salary" that a newly appointed
Justice or Judge, who has not rendered any prior service in the
Judiciary, will earn or receive based simply on his "salary grade." The
former, the "long-serving" Justice or Judge, will earn far more than the
latter, the "newly-serving" Justice or Judge, because of the "add-on"
longevity pay that he (the long-serving Justice or Judge) will receive
for his continued long service in the Judiciary, aside from the "salary"
to which the latter (the newly-serving Justice or Judge) shall only be
entitled.
The Court realized this scenario as problematic and the obvious
inequity it may bring if it were to cons true strictly the words of Section
42. It is iniquitous for the "long-serving" Justice or Judge if the "add-
on" pay (longevity pay) that he earned under the law for his long and
dedicated service in the Judiciary would be reduced or eliminated
altogether simply because of a new Justice or Judge w ho will not be
entitle d to any "add-on" pay for lack of the required long and
dedicated service in the Judiciary, and who will thus receive lesser
total compensation.
The Court met the case head on and declared that the limitation refers
only to the "initial implementation of the law and does not proscribe a
justice or judge, who is already entitled to longevity pay, from
continuing to earn and receive longevity pay for services rendered in
the judiciary subsequent to such implementation, by the mere
accident of a newcomer being appointed to the position next higher in
rank." This case assumes importance in the present consolidated
cases as it stresses the purpose of longevity pay as discussed and
interpreted in these pronouncements: " to reward justices and judges
for their long and dedicated service as such, " i.e., as justices or
judges.
It highlights, too, that " salary" and the "longevity pay" are separate
components of a judge’s or justice’s total compensation , and that
such total compensation can be variable because seniority or years in
the service is a factor taken into account.
Most importantly, this case is an example of the Court’s prompt
decisive action to act with liberality when such action is called for.
c. Moving On
Construing Section 42 as we do in this Resolution does not and will
not negate the applicable laws, contrary to Justice De Castro’s
Dissent. Rather, the interpretation that the term "salary" does not
include longevity pay will rectify the error that the Court’s past rulings
have created on this subject.
To recapitulate, the Court’s prior rulings treated longevity pay as part
of the "salary" – a ruling that, as explained, runs counter to the
express and implied intent of BP 129. They are erroneous because
they introduced and included in the definition and composition of
"salary" under Section 41 an element that the law did not intend to Trial Court of Sta. Rita, Pampanga be included in the
include, either expressly or impliedly. computation of her longevity pay;

Hence, the most compelling reason now exists to abandon the above-
cited cases: they were clear and grossly erroneous application of the
law. In jurisdictional terms, they involved an interpretation not within
the contemplation of words expressed by the statute; hence, they
were gravely abusive interpretation62 that did not and cannot confer
any vested right protected by the due process clause. The worst
approach the Court can take now is to compound the problem by
perpetuating our past mistakes and simply burying our heads in the
sand of past-established rulings.
(3) DENY the request of Associate Justice Remedios A.
Salazar-Femando that her services as COMELEC
Commissioner be included in the computation of her longevity
pay;
(4) DENY the request of Associate Justice Angelita Gacutan
that her services as NLRC Commissioner be included in the
computation. of her longevity pay from the time she started her
judicial service;

The first decisive move for the Court is to declare, as it hereby
declares, the abandonment of our rulings on longevity pay in the
cases of Santiago, Gancayco, Dela Fuente, and Guevara-Salonga
and to strike them out of our ruling case law, without, however,
withdrawing the grants to those who have benefitted from the Court’s
misplaced final rulings.
Along these lines, the Court also hereby expressly declares that it
does not disavow the longevity pay previously granted to the retired
justices and judicial officials for services rendered outside the
Judiciary. They may continue enjoying their granted benefits as their
withdrawal now will be inequitable.
(5) DENY with finality the motion for reconsideration of
Associate Justice Vicente S.E. Veloso for lack of merit; and
(6) DIRECT the Clerk of this Court to proceed with the
handling of granted longevity pay benefits under Section 42 of
Batas Pambansa Blg. 129, pursuant to the guidelines and
declarations outlined in the Moving On portion of this
Resolution.
SO ORDERED.

With the same objective, those still in the service who are now
enjoying past longevity pay grants due to past services outside the
Judiciary, shall likewise continue with the grants already made, but
their grants will have to be frozen at their current levels until their
services outside the Judiciary are compensated for by their present
and future judicial service.

WHEREFORE, premises considered, we resolve to:

(1) NOT the Memorandum dated February 18, 2013 of Atty.

Eden T. Candelaria and the Report and Recommendation
dated February 15, 2013 of Atty. Corazon G. Ferrer-Flores;

(2) GRANT the request of Associate Justice Remedios A.

Salazar-Fernando that her services as Judge of the Municipal