EN BANC

[ G.R. NO. 174340, October 17, 2006 ]

IN THE MATTER OF THE PETITION FOR ISSUANCE OF WRIT OF
HABEAS CORPUS OF CAMILO L. SABIO, PETITIONER, J. ERMIN
ERNEST LOUIE R. MIGUEL, PETITIONER-RELATOR, VS. HONORABLE
SENATOR RICHARD GORDON, IN HIS CAPACITY AS CHAIRMAN, AND
THE HONORABLE MEMBERS OF THE COMMITTEE ON GOVERNMENT
CORPORATIONS AND PUBLIC ENTERPRISES AND THE COMMITTEE
ON PUBLIC SERVICES OF THE SENATE, HONORABLE SENATOR JUAN
PONCE-ENRILE, IN HIS OFFICIAL CAPACITY AS MEMBER,
HONORABLE MANUEL VILLAR, SENATE PRESIDENT, SENATE
SERGEANT-AT-ARMS, AND THE SENATE OF THE PHILIPPINES,
RESPONDENTS.

[G.R. NO. 174318]

PRESIDENTIAL COMMISSION ON GOOD GOVERNMENT (PCGG) AND

CAMILO L. SABIO, CHAIRMAN, NARCISO S. NARIO, RICARDO M.
ABCEDE, TERESO L. JAVIER AND NICASIO A. CONTI,
COMMISSIONERS, MANUEL ANDAL AND JULIO JALANDONI, PCGG
NOMINEES TO PHILCOMSAT HOLDINGS CORPORATION,
PETITIONERS, VS. RICHARD GORDON, IN HIS CAPACITY AS
CHAIRMAN, AND MEMBERS OF THE COMMITTEE ON GOVERNMENT
CORPORATIONS AND PUBLIC ENTERPRISES, MEMBERS OF THE
COMMITTEE ON PUBLIC SERVICES, SENATOR JUAN PONCE-ENRILE,
IN HIS CAPACITY AS MEMBER OF BOTH SAID COMMITTEES, MANUEL
VILLAR, SENATE PRESIDENT, THE SENATE SERGEANT-AT-ARMS, AND
SENATE OF THE PHILIPPINES, RESPONDENTS.

[G.R. NO. 174177]

PHILCOMSAT HOLDINGS CORPORATIONS, PHILIP G. BRODETT, LUIS

K. LOKIN, JR., ROBERTO V. SAN JOSE, DELFIN P. ANGCAO, ROBERTO
L. ABAD, ALMA KRISTINA ALOBBA, AND JOHNNY TAN, PETITIONERS,
VS. SENATE COMMITTEE ON GOVERNMENT CORPORATIONS AND
PUBLIC ENTERPRISES, ITS MEMBERS AND CHAIRMAN, THE
HONORABLE SENATOR RICHARD GORDON AND SENATE
COMMITTEE ON PUBLIC SERVICES, ITS MEMBERS AND CHAIRMAN,
THE HONORABLE SENATOR JOKER P. ARROYO, RESPONDENTS.
 DECISION

SANDOVAL-GUTIERREZ, J.:

Two decades ago, on February 28, 1986, former President Corazon C. Aquino installed
her regime by issuing Executive Order (E.O.) No. 1,[1] creating the Presidential
Commission on Good Government (PCGG).  She entrusted upon this Commission the
herculean task of recovering the ill-gotten wealth accumulated by the deposed President
Ferdinand E. Marcos, his family, relatives, subordinates and close associates. [2] Section 4
(b) of E.O. No. 1 provides that: "No member or staff of the Commission shall be
required to testify or produce evidence in any judicial, legislative or administrative
proceeding concerning matters within its official cognizance." Apparently, the
purpose is to ensure PCGG's unhampered performance of its task. [3]

Today, the constitutionality of Section 4(b) is being questioned on the ground that it
tramples upon the Senate's power to conduct legislative inquiry under Article VI, Section
21 of the 1987 Constitution, which reads:
The Senate or the House of Representatives or any of its respective committees may
conduct inquiries in aid of legislation in accordance with its duly published rules of
procedure. The rights of persons appearing in or affected by such inquiries shall be
respected.
The facts are undisputed.

On February 20, 2006, Senator Miriam Defensor Santiago introduced Philippine Senate
Resolution No. 455 (Senate Res. No. 455),[4] "directing an inquiry in aid of legislation on
the anomalous losses incurred by the Philippines Overseas Telecommunications
Corporation (POTC), Philippine Communications Satellite Corporation
(PHILCOMSAT), and PHILCOMSAT Holdings Corporation (PHC) due to the alleged
improprieties in their operations by their respective Board of Directors."

The pertinent portions of the Resolution read:

WHEREAS, in the last quarter of 2005, the representation and entertainment expense of
the PHC skyrocketed to P4.3 million, as compared to the previous year's mere P106
thousand;

WHEREAS, some board members established wholly owned PHC subsidiary called
Telecommunications Center, Inc. (TCI), where PHC funds are allegedly siphoned; in 18
months, over P73 million had been allegedly advanced to TCI without any accountability
report given to PHC and PHILCOMSAT;

WHEREAS, the Philippine Star, in its 12 February 2002 issue reported that the executive
committee of Philcomsat has precipitately released P265 million and granted P125
million loan to a relative of an executive committee member; to date there have been no
payments given, subjecting the company to an estimated interest income loss of P11.25
million in 2004;

WHEREAS, there is an urgent need to protect the interest of the Republic of the
Philippines in the PHC, PHILCOMSAT, and POTC from any anomalous transaction, and
to conserve or salvage any remaining value of the government's equity position in these
corporations from any abuses of power done by their respective board of directors;

WHEREFORE, be it resolved that the proper Senate Committee shall conduct an

inquiry in aid of legislation, on the anomalous losses incurred by the Philippine
Overseas Telecommunications Corporation (POTC), Philippine Communications
Satellite Corporation (PHILCOMSAT), and Philcomsat Holdings Corporations
(PHC) due to the alleged improprieties in the operations by their respective board of
directors.

Adopted.

(Sgd)  MIRIAM DEFENSOR SANTIAGO

On the same date, February 20, 2006, Senate Res. No. 455 was submitted to the Senate
and referred to the Committee on Accountability of Public Officers and
Investigations and Committee on Public Services.  However, on March 28, 2006, upon
motion of Senator Francis N. Pangilinan, it was transferred to the Committee on
Government Corporations and Public Enterprises.[5]

On May 8, 2006, Chief of Staff  Rio C. Inocencio, under the authority of Senator Richard
J. Gordon, wrote Chairman Camilo L. Sabio of the PCGG, one of the herein petitioners,
inviting him to be one of the resource persons in the public meeting jointly conducted by
the Committee on Government Corporations and Public Enterprises and Committee on
Public Services.  The purpose of the public meeting was to deliberate on Senate Res. No.
455.[6]

On May 9, 2006, Chairman Sabio declined the invitation because of prior commitment.
[7]
 At the same time, he invoked Section 4(b) of E.O. No. 1 earlier quoted.

On August 10, 2006, Senator Gordon issued a Subpoena Ad Testificandum,[8] approved

by Senate President Manuel Villar, requiring Chairman Sabio and PCGG
Commissioners Ricardo Abcede, Nicasio Conti, Tereso Javier and Narciso Nario to
appear in the public hearing scheduled on August 23, 2006 and testify on what they know
relative to the matters specified in Senate Res. No. 455.  Similar subpoenae were issued
against the directors and officers of Philcomsat Holdings Corporation, namely:  Benito V.
Araneta, Philip J. Brodett, Enrique  L. Locsin, Manuel D. Andal, Roberto L. Abad, Luis
K. Lokin, Jr., Julio J. Jalandoni, Roberto V. San Jose, Delfin P. Angcao, Alma Kristina
Alloba and Johnny Tan.[9]

Again, Chairman Sabio refused to appear.   In his letter to Senator Gordon dated August
18, 2006, he reiterated his earlier position, invoking Section 4(b) of E.O. No. 1.  On the
other hand, the directors and officers of Philcomsat Holdings Corporation relied on the
position paper they previously filed, which raised issues on the propriety of legislative
inquiry.

Thereafter, Chief of Staff Ma. Carissa O. Coscolluela, under the authority of Senator
Gordon, sent another notice[10] to Chairman Sabio requiring him to appear and testify on
the same subject matter set on September 6, 2006.  The  notice  was issued "under the
same authority of the Subpoena Ad Testificandum previously served upon (him) last 16
August 2006."

Once more, Chairman Sabio did not comply with the notice.  He sent a letter[11] dated
September 4, 2006 to Senator Gordon reiterating his reason for declining to appear in the
public hearing.

This prompted Senator Gordon to issue an Order dated September 7, 2006 requiring
Chairman Sabio and Commissioners Abcede, Conti, Javier and Nario to show cause why
they should not be cited in contempt of the Senate.   On September 11, 2006, they
submitted to the Senate their Compliance and Explanation,[12] which partly reads:
Doubtless, there are laudable intentions of the subject inquiry in aid of
legislation. But the rule of law requires that even the best intentions must be carried out
within the parameters of the Constitution and the law. Verily, laudable purposes must be
carried out by legal methods. (Brillantes, Jr., et al. v. Commission on Elections, En
Banc [G.R. No. 163193, June 15, 2004])

On this score, Section 4(b) of E.O. No. 1 should not be ignored as it explicitly provides:
No member or staff of the Commission shall be required to testify or produce
evidence in any judicial legislative or administrative proceeding concerning matters
within its official cognizance.
With all due respect, Section 4(b) of E.O. No. 1 constitutes a limitation on the power of
legislative inquiry, and a recognition by the State of the need to provide protection to the
PCGG in order to ensure the unhampered performance of its duties under its charter. 
E.O. No. 1 is a law, Section 4(b) of which had not been amended, repealed or revised in
any way.

To say the least, it would require both Houses of Congress and Presidential fiat to amend
or repeal the provision in controversy.  Until then, it stands to be respected as part of the
legal system in this jurisdiction. (As held in People v. Veneracion, G.R. Nos. 119987-88,
October 12, 1995:  Obedience to the rule of law forms the bedrock of our system of
justice.  If judges, under the guise of religious or political beliefs were allowed to roam
unrestricted beyond boundaries within which they are required by law to exercise the
duties of their office, then law becomes meaningless.  A government of laws, not of men
excludes the exercise of broad discretionary powers by those acting under its authority. 
Under this system, judges are guided by the Rule of Law, and ought to 'protect and
enforce it without fear or favor,' 4 [Act of Athens (1955)] resist encroachments by
governments, political parties,  or even the interference of their own personal beliefs.)
x    x     x                                                        x      x      x
Relevantly, Chairman Sabio's letter to Sen. Gordon dated August 19, 2006 pointed out
that the anomalous transactions referred to in the P.S. Resolution No. 455 are subject of
pending cases before the regular courts, the Sandiganbayan and the Supreme Court 
(Pending cases include:  a. Samuel Divina v. Manuel Nieto, Jr., et al., CA-G.R. No.
89102; b. Philippine Communications Satellite Corporation v. Manuel Nieto, et al.;
c. Philippine Communications Satellite Corporation v. Manuel D. Andal, Civil Case No.
06-095, RTC, Branch 61, Makati City; d. Philippine  Communications Satellite
Corporation v. PHILCOMSAT Holdings Corporation, et al., Civil Case No. 04-1049) for
which reason they may not be able to testify thereon under the principle of sub judice. 
The laudable objectives of the PCGG's functions, recognized in several cases decided by
the Supreme Court, of the PCGG will be put to naught if its recovery efforts will be
unduly impeded by a legislative investigation of cases that are already pending before the
Sandiganbayan and trial courts.

In Bengzon v. Senate Blue Ribbon Committee, (203 SCRA 767, 784 [1991]) the
Honorable Supreme Court held:
"...[T]he issues sought to be investigated by the respondent Committee is one over which
jurisdiction had been acquired by the Sandiganbayan.  In short, the issue has been pre-
empted by that court.  To allow the respondent Committee to conduct its own
investigation of an issue already before the Sandigabayan would not only pose the
possibility of conflicting judgments between a legislative committee and a judicial
tribunal, but if the Committee's judgment were to be reached before that of the
Sandiganbayan, the possibility of its influence being made to bear on the ultimate
judgment of the Sandiganbayan can not be discounted.
x    x    x                                                                  x     x     x

IT IS IN VIEW OF THE FOREGOING CONSIDERATIONS that the Commission

decided not to attend the Senate inquiry to testify and produce evidence thereat.
Unconvinced with the above Compliance and Explanation, the Committee on
Government Corporations and Public Enterprises and the Committee on Public
Services issued an Order[13] directing Major General Jose Balajadia (Ret.), Senate
Sergeant-At-Arms, to place Chairman Sabio and his Commissioners under arrest for
contempt of the Senate. The Order bears the approval of Senate President Villar and
the majority of the Committees' members.
On September 12, 2006, at around 10:45 a.m., Major General Balajadia arrested
Chairman Sabio in his office at IRC Building, No. 82 EDSA, Mandaluyong City and
brought him to the Senate premises where he was detained.

Hence, Chairman Sabio filed with this Court a petition for habeas corpus against the
Senate Committee on Government Corporations and Public Enterprises and Committee
on Public Services, their Chairmen, Senators Richard Gordon and Joker P. Arroyo and
Members.  The case was docketed as G.R. No. 174340.

Chairman Sabio, Commissioners Abcede,  Conti,  Nario, and  Javier, and the PCGG�s
nominees to Philcomsat Holdings Corporation, Manuel Andal and Julio Jalandoni,
likewise filed a petition for certiorari and prohibition against the same respondents, and
also against Senate President Manuel Villar, Senator Juan Ponce Enrile, the Sergeant-at-
Arms, and the entire Senate.  The case was docketed as G.R. No. 174318.

Meanwhile, Philcomsat Holdings Corporation and its officers and directors, namely:
Philip G. Brodett, Luis K. Lokin, Jr., Roberto V. San Jose, Delfin P. Angcao, Roberto L.
Abad, Alma Kristina Alobba and Johnny Tan filed a petition for certiorari and prohibition
against the Senate Committees on Government Corporations and Public
Enterprises and Public Services, their Chairmen, Senators Gordon and Arroyo, and
Members.  The case was docketed as G.R. No. 174177.

In G.R. No. 174340 (for habeas corpus) and G.R. No. 174318 (for certiorari and
prohibition) Chairman Sabio, Commissioners Abcede, Conti,  Nario, and Javier; and the
PCGG's nominees Andal and Jalandoni alleged: first, respondent Senate Committees
disregarded Section 4(b) of E.O. No. 1 without any justifiable reason; second, the
inquiries conducted by respondent Senate Committees are  not in aid of legislation; third,
the inquiries were conducted in the absence of duly published Senate Rules of Procedure
Governing Inquiries in Aid of Legislation; and fourth, respondent Senate Committees are
not vested with the power of contempt.

In G.R. No. 174177, petitioners Philcomsat Holdings Corporation and its directors and
officers alleged: first, respondent Senate Committees have no jurisdiction over the subject
matter stated in Senate Res. No. 455; second, the same inquiry is not in accordance with
the Senate's Rules of Procedure Governing Inquiries in Aid of Legislation; third, the
subpoenae against the individual petitioners are void for having been issued without
authority;  fourth, the conduct of legislative inquiry pursuant to Senate Res. No. 455
constitutes undue encroachment by respondents into justiciable controversies over which
several courts and tribunals have already acquired jurisdiction; and fifth, the subpoenae
violated petitioners' rights to privacy and against self-incrimination.

In their Consolidated Comment, the above-named respondents countered: first, the issues

raised in the petitions involve political questions over which this Court has no
jurisdiction; second, Section 4(b) has been repealed by the Constitution; third, respondent
Senate Committees are vested with contempt power; fourth,  Senate's Rules of Procedure
Governing Inquiries in Aid of Legislation have been duly published;  fifth, respondents
have not violated any civil right of the individual petitioners, such as their (a) right to
privacy; and (b) right against self-incrimination; and sixth, the inquiry does not constitute
undue encroachment into justiciable controversies.

During the oral arguments held on September 21, 2006, the parties were directed to
submit simultaneously their respective memoranda within a non-extendible period of
fifteen (15) days from date.  In the meantime, per agreement of the parties, petitioner
Chairman Sabio was allowed to go home.  Thus, his petition for habeas corpus has
become moot.  The parties also agreed that the service of the arrest warrants issued
against all petitioners and the proceedings before the respondent Senate Committees are
suspended during the pendency of the instant cases.[14]

Crucial to the resolution of the present petitions is the fundamental issue of

whether Section 4(b) of E.O. No. 1 is repealed by the 1987 Constitution.  On this lone
issue hinges the merit of the contention of Chairman Sabio and his Commissioners that
their refusal to appear before respondent Senate Committees is justified.  With the
resolution of this issue, all the other issues raised by the parties have become
inconsequential.

Perched on one arm of the scale of justice is Article VI, Section 21 of the 1987
Constitution granting respondent Senate Committees the power of legislative inquiry. It
reads:
The Senate or the House of Representatives or any of its respective committees may
conduct inquiries in aid of legislation in accordance with its duly published rules of
procedure. The rights of persons appearing in or affected by such inquiries shall be
respected.
On the other arm of the scale is Section 4(b) of E.O. No.1 limiting such power of
legislative inquiry by exempting all PCGG members or staff from testifying in any
judicial, legislative or administrative proceeding, thus:
No member or staff of the Commission shall be required to testify or produce
evidence in any judicial, legislative or administrative proceeding concerning matters
within its official cognizance.
To determine whether there exists a clear and unequivocal repugnancy between the two
quoted provisions that warrants a declaration that Section 4(b) has been repealed by the
1987 Constitution, a brief consideration of the Congress' power of inquiry is imperative.

The Congress' power of inquiry has been recognized in foreign jurisdictions long before
it reached our shores through McGrain v. Daugherty,[15] cited in Arnault v. Nazareno.[16] 
In those earlier days, American courts considered the power of inquiry as inherent in the
power to legislate. The 1864 case of Briggs v. MacKellar[17] explains the breath and basis
of the power, thus:
Where no constitutional limitation or restriction exists, it is competent for either of the
two bodies composing the legislature to do, in their separate capacity, whatever may
be essential to enable them to legislate....It is well-established principle of this
parliamentary law, that either house may institute any investigation having reference to
its own organization, the conduct or qualification of its members, its proceedings, rights,
or privileges or any matter affecting the public interest upon which it may be
important that it should have exact information, and in respect to which it would be
competent for it to legislate.  The right to pass laws, necessarily implies the right to
obtain information upon any matter which may become the subject of a law.  It is
essential to the full and intelligent exercise of the legislative function....In American
legislatures the investigation of public matters before committees, preliminary to
legislation, or with the view of advising the house appointing the committee is, as a
parliamentary usage, well established as it is in England, and the right of either house
to compel witnesses to appear and testify before its committee, and to punish for
disobedience has been frequently enforced....The right of inquiry, I think, extends to
other matters, in respect to which it may be necessary, or may be deemed advisable
to apply for legislative aid.
Remarkably, in Arnault, this Court adhered to a similar theory.  Citing McGrain, it
recognized that the power of inquiry is "an essential and appropriate auxiliary to the
legislative function," thus:
Although there is no provision in the "Constitution expressly investing either House of
Congress with power to make investigations and exact testimony to the end that it may
exercise its legislative functions advisedly and effectively, such power is so far incidental
to the legislative function as to be implied.  In other words, the power of inquiry - with
process to enforce it - is an essential and appropriate auxiliary to the legislative
function.  A legislative body cannot legislate wisely or effectively in the absence of
information respecting the conditions which the legislation is intended to affect or
change; and where the legislation body does not itself possess the requisite
information - which is not infrequently true - recourse must be had to others who
possess it."
Dispelling any doubt as to the Philippine Congress' power of inquiry, provisions on such
power made their maiden appearance in Article VIII, Section 12 of the 1973 Constitution.
[18]
  Then came the 1987 Constitution incorporating the present Article VI, Section 12.
What was therefore implicit under the 1935 Constitution, as influenced by American
jurisprudence, became explicit under the 1973 and 1987 Constitutions.[19]

Notably, the 1987 Constitution recognizes the power of investigation, not just of
Congress, but also of "any of its committee."  This is significant because it constitutes
a direct conferral of investigatory power upon the committees and it means that the
mechanisms which the Houses can take in order to effectively perform its investigative
function are also available to the committees.[20]
It can be said that the Congress' power of inquiry has gained more solid existence and
expansive construal.  The Court's high  regard  to  such power is rendered more evident
in Senate v. Ermita,[21] where it categorically ruled that  "the power of inquiry is broad
enough to cover officials of the executive branch."  Verily, the Court reinforced the
doctrine in Arnault that "the operation of government, being a legitimate subject for
legislation,  is a proper subject for investigation" and  that "the power of inquiry is
co-extensive with the power to legislate."

Considering these jurisprudential instructions, we find Section 4(b) directly repugnant

with Article VI, Section 21. Section 4(b) exempts the PCGG members and staff from
the Congress' power of inquiry.  This cannot be countenanced.  Nowhere in the
Constitution is any provision granting such exemption.   The Congress' power of inquiry,
being broad,  encompasses everything that concerns the administration of existing laws as
well as proposed or possibly needed statutes.[22]  It even extends "to government
agencies created by Congress and officers whose positions are within the power of
Congress to regulate or even abolish."[23]  PCGG belongs to this class.

Certainly, a mere provision of law cannot pose a limitation to the broad power of
Congress, in the absence of any constitutional basis.

Furthermore, Section 4(b) is also inconsistent with Article XI, Section 1 of the
Constitution stating that: "Public office is a public trust. Public officers and employees
must at all times be accountable to the people, serve them with utmost responsibility,
integrity, loyalty, and efficiency, act with patriotism and justice, and lead modest lives."

The provision presupposes that since an incumbent of a public office is invested with
certain powers and charged with certain duties pertinent to sovereignty, the powers so
delegated to the officer are held in trust for the people and are to be exercised in
behalf of the government or of all citizens who may need the intervention of the
officers. Such trust extends to all matters within the range of duties pertaining to the
office. In other words, public officers are but the servants of the people, and not
their rulers.[24]

Section 4(b), being in the nature of an immunity, is inconsistent with the principle of
public accountability.   It places the PCGG members and staff beyond the reach of
courts, Congress and other administrative bodies.  Instead of encouraging public
accountability, the same provision only institutionalizes irresponsibility and non-
accountability.  In Presidential Commission on Good Government v. Peña,[25] Justice
Florentino P. Feliciano characterized as "obiter" the portion of the majority opinion
barring, on the basis of Sections 4(a) and (b) of E.O. No. 1, a civil case for damages filed
against the PCGG and its Commissioners. He eloquently opined:
The above underscored portions are, it is respectfully submitted, clearly obiter. It is
important to make clear that the Court is not here interpreting, much less
upholding as valid and constitutional, the literal terms of Section 4 (a), (b) of
Executive Order No.1. If Section 4 (a) were given its literal import as immunizing the
PCGG or any member thereof from civil liability "for anything done or omitted in the
discharge of the task contemplated by this Order," the constitutionality of Section 4 (a)
would, in my submission, be open to most serious doubt. For so viewed, Section 4 (a)
would institutionalize the irresponsibility and non-accountability of members and staff of
the PCGG, a notion that is clearly repugnant to both the 1973 and 1987 Constitution and
a privileged status not claimed by any other official of the Republic under the 1987
Constitution. x  x  x.
x   x    x

It would seem constitutionally offensive to suppose that a member or staff member

of the PCGG could not be required to testify before the Sandiganbayan or that such
members were exempted from complying with orders of this Court.
Chavez v. Sandiganbayan[26] reiterates the same view.  Indeed, Section 4(b) has been
frowned upon by this Court even before the filing of the present petitions.

Corollarily, Section 4(b) also runs counter to the following constitutional provisions
ensuring the people's access to information:
Article II, Section 28

Subject to reasonable conditions prescribed by law, the State adopts and implements a
policy of full public disclosure of all its transactions involving public interest.

Article III, Section 7

The right of the people to information on matters of public concern shall be recognized.
Access to official records, and to documents, and papers pertaining to official acts,
transactions, or decisions, as well as to government research data used as basis for policy
development, shall be afforded the citizen, subject to such limitations as may be provided
by law.
These twin provisions of the Constitution seek to promote transparency in policy-making
and in the operations of the government, as well as provide the people sufficient
information to enable them to exercise effectively their constitutional rights. Armed with
the right information, citizens can participate in public discussions leading to the
formulation of government policies and their effective implementation.  In Valmonte v.
Belmonte, Jr.[27] the Court explained that an informed citizenry is essential to the
existence and proper functioning of any democracy, thus:
An essential element of these freedoms is to keep open a continuing dialogue or process
of communication between the government and the people.  It is in the interest of the
State that the channels for free political discussion be maintained to the end that the
government may perceive and be responsive to the people's will.   Yet, this open dialogue
can be effective only to the extent that the citizenry is informed and thus able to
formulate its will intelligently.  Only when the participants in the discussion are aware of
the issues and have access to information relating thereto can such bear fruit.
Consequently, the conduct of inquiries in aid of legislation is not only intended to benefit
Congress but also the citizenry.  The people are equally concerned with this proceeding
and have the right to participate therein in order to protect their interests.  The extent of
their participation will largely depend on the information gathered and made known to
them.  In other words, the right to information really goes hand-in-hand with the
constitutional policies of full public disclosure and honesty in the public service.  It is
meant to enhance the widening role of the citizenry in governmental decision-making as
well as in checking abuse in the government.[28]  The cases of Tañada v.
Tuvera[29] and Legaspi v. Civil Service Commission[30] have recognized a citizen's interest
and personality to enforce a public duty and to bring an action to compel public officials
and employees to perform that duty.

Section 4(b) limits or obstructs the power of Congress to secure from PCGG members
and staff information and other data in aid of its power to legislate.  Again, this must not
be countenanced.   In Senate v. Ermita,[31] this Court stressed:
To the extent that investigations in aid of legislation are generally conducted in
public, however, any executive issuance tending to unduly limit disclosures of
information in such investigations necessarily deprives the people of information
which, being presumed to be in aid of legislation, is presumed to be a matter of
public concern. The citizens are thereby denied access to information which they can use
in formulating their own opinions on the matter before Congress - opinions which they
can then communicate to their representatives and other government officials through the
various legal means allowed by their freedom of expression.
A statute may be declared unconstitutional because it is not within the legislative power
to enact; or it creates or establishes methods or forms that infringe constitutional
principles; or its purpose or effect violates the Constitution or its basic principles.
[32]
 As shown in the above discussion, Section 4(b) is inconsistent with Article VI,
Section 21 (Congress' power of inquiry), Article XI, Section 1 (principle of public
accountability), Article II, Section 28 (policy of full disclosure) and Article III, Section
7 (right to public information).

Significantly, Article XVIII, Section 3 of the Constitution provides:

All existing laws, decrees, executive orders, proclamations, letters of instructions, and
other executive issuances not inconsistent with this Constitution shall remain operative
until amended, repealed, or revoked.
The clear import of this provision is that all existing laws, executive orders,
proclamations, letters of instructions and other executive issuances inconsistent or
repugnant to the Constitution are repealed.
Jurisprudence is replete with decisions invalidating laws, decrees, executive orders,
proclamations, letters of instructions and other executive issuances inconsistent with the
Constitution.  In Pelaez v. Auditor General,[33] the Court considered repealed Section 68
of the Revised Administrative Code of 1917 authorizing the Executive to change the seat
of the government of any subdivision of local governments, upon the approval of the
1935 Constitution. Section 68 was adjudged incompatible and inconsistent with the
Constitutional grant of limited executive supervision over local governments.   In Islamic
Da'wah Council of the Philippines, Inc., v. Office of the Executive Secretary,[34] the Court
declared Executive Order No. 46, entitled "Authorizing the Office on Muslim Affairs to
Undertake Philippine Halal Certification," void for encroaching on the religious freedom
of Muslims.  In The Province of Batangas v. Romulo,[35]  the Court declared some
provisions of the General Appropriations Acts of 1999, 2000 and 2001 unconstitutional
for violating the Constitutional precept on local autonomy.  And in Ople v. Torres,[36] the
Court likewise declared unconstitutional Administrative Order No. 308, entitled
"Adoption of a National Computerized Identification Reference System," for being
violative of the right to privacy protected by the Constitution.

These Decisions, and many others, highlight that the Constitution is the highest law of the
land.  It is "the basic and paramount law to which all other laws must conform and
to which all persons, including the highest officials of the land, must defer. No act
shall be valid, however noble its intentions, if it conflicts with the
Constitution."[37]   Consequently, this Court has no recourse but to declare Section 4(b)
of E.O. No. 1 repealed by the 1987 Constitution.

Significantly, during the oral arguments on September 21, 2006, Chairman Sabio
admitted that should this Court rule that Section 4(b) is unconstitutional or that it does not
apply to the Senate, he will answer the questions of the Senators, thus:
CHIEF JUSTICE PANGANIBAN:

Okay.  Now, if the Supreme Court rules that Sec. 4(b) is unconstitutional or that it does
not apply to the Senate, will you answer the questions of the Senators?

CHAIRMAN SABIO:

Your Honor, my father was a judge, died being a judge. I was here in the Supreme Court
as Chief of Staff of Justice Feria. I would definitely honor the Supreme Court and the rule
of law.

CHIEF JUSTICE PANGANIBAN:

You will answer the questions of the Senators if we say that?

CHAIRMAN SABIO:
Yes, Your Honor.  That is the law already as far as I am concerned.
With his admission, Chairman Sabio is not fully convinced that he and his
Commissioners are shielded from testifying before respondent Senate Committees by
Section 4(b) of E.O. No. 1.  In effect, his argument that the said provision exempts him
and his co-respondent Commissioners from testifying before respondent Senate
Committees concerning Senate Res. No. 455 utterly lacks merit.

Incidentally, an argument repeated by Chairman Sabio is that respondent Senate

Committees have no power to punish him and his Commissioners for contempt of the
Senate.

The argument is misleading.

Article VI, Section 21 provides:

The Senate or the House of Representatives or any of its respective committees may
conduct inquiries in aid of legislation in accordance with its duly published rules of
procedure. The rights of persons appearing in or affected by such inquiries shall be
respected.
It must be stressed that the Order of Arrest for "contempt of Senate Committees and the
Philippine Senate" was approved by Senate President Villar and signed by fifteen (15)
Senators. From this, it can be concluded that the Order is under the authority, not only of
the respondent Senate Committees, but of the entire Senate.

At any rate, Article VI, Section 21 grants the power of inquiry not only to the Senate and
the House of Representatives, but also to any of their respective committees.  Clearly,
there is a direct conferral of power to the committees. Father Bernas, in his
Commentary on the 1987 Constitution, correctly pointed out its significance:
It should also be noted that the Constitution explicitly recognizes the power of
investigation not just of Congress but also of "any of its committees."  This is significant
because it constitutes a direct conferral of investigatory power upon the committees
and it means that the means which the Houses can take in order to effectively
perform its investigative function are also available to the Committees.[38]
This is a reasonable conclusion. The conferral of the legislative power of inquiry upon
any committee of Congress must carry with it all powers necessary and proper for its
effective discharge.  Otherwise, Article VI, Section 21 will be meaningless. The
indispensability and usefulness of the power of contempt in a legislative inquiry is
underscored in a catena of cases, foreign and local.

In the 1821 case of Anderson v. Dunn,[39]  the function of the Houses of Congress with
respect  to the contempt power was likened to that of a court, thus:
...But the court in its reasoning goes beyond this, and though the grounds of the decision
are not very clearly stated, we take them to be: that there is in some cases a power in
each House of Congress to punish for contempt; that this power is analogous to that
exercised by courts of justice, and that it being the well established doctrine that
when it appears that a prisoner is held under the order of a court of general
jurisdiction for a contempt of its authority, no other court will discharge the
prisoner or make further inquiry into the cause of his commitment.  That this is the
general rule...as regards the relation of one court to another must be conceded.
In McGrain,[40] the U.S. Supreme Court held: "Experience has shown that mere
requests for such information are often unavailing, and also that information which
is volunteered is not always accurate or complete; so some means of compulsion is
essential to obtain what is needed."  The Court, in Arnault v. Nazareno,[41] sustained the
Congress' power of contempt on the basis of this observation.

In Arnault v. Balagtas,[42] the Court further explained that the contempt power of

Congress is founded upon reason and policy and that the power of inquiry will not be
complete if for every contumacious act, Congress has to resort to judicial interference,
thus:
The principle that Congress or any of its bodies has the power to punish recalcitrant
witnesses is founded upon reason and policy.  Said power must be considered implied or
incidental to the exercise of legislative power.  How could a legislative body obtain the
knowledge and information on which to base intended legislation if it cannot require
and compel the disclosure of such knowledge and information if it is impotent to
punish a defiance of its power and authority? When the framers of the Constitution
adopted the principle of separation of powers, making each branch supreme within
the realm of its respective authority, it must have intended each department's
authority to be full and complete, independently of the other's authority or power. 
And how could the authority and power become complete if for every act of refusal,
every act of defiance, every act of contumacy against it, the legislative body must
resort to the judicial department for the appropriate remedy, because it is impotent
by itself to punish or deal therewith, with the affronts committed against its
authority or dignity.[43]
In Negros Oriental II Electric Cooperative, Inc. v. Sangguniang Panlungsod of
Dumaguete,[44]  the Court characterized contempt power as a matter of self-preservation,
thus:
The exercise by the legislature of the contempt power is a matter of self-preservation as
that branch of the government vested with the legislative power, independently of the
judicial branch, asserts its authority and punishes contempts thereof.  The contempt
power of the legislature is, therefore, sui generis  x  x  x.
Meanwhile, with respect to G.R. No. 174177, the petition of Philcomsat Holdings
Corporation and its directors and officers, this Court holds that the respondent Senate
Committees' inquiry does not violate their right to privacy and right against self-
incrimination.

One important limitation on the Congress' power of inquiry is that "the rights of persons
appearing in or affected by such inquiries shall be respected."  This is just another
way of saying that the power of inquiry must be "subject to the limitations placed by the
Constitution on government action." As held in Barenblatt v. United States,[45] "the
Congress, in common with all the other branches of the Government, must exercise
its powers subject to the limitations placed by the Constitution on governmental
action, more particularly in the context of this case, the relevant limitations of the
Bill of Rights."

First is the right to privacy.

Zones of privacy are recognized and protected in our laws.[46]  Within these zones, any
form of intrusion is impermissible unless excused by law and in accordance with
customary legal process. The meticulous regard we accord to these zones arises not only
from our conviction that the right to privacy is a "constitutional right" and "the right most
valued by civilized men,"[47] but also from our adherence to the Universal Declaration of
Human Rights which mandates that, "no one shall be subjected to arbitrary interference
with his privacy" and "everyone has the right to the protection of the law against such
interference or attacks."[48]

Our Bill of Rights, enshrined in Article III of the Constitution, provides at least two
guarantees that explicitly create zones of privacy. It highlights a person's "right to be let
alone" or the "right to determine what, how much, to whom and when information about
himself shall be disclosed."[49] Section 2  guarantees  "the  right  of  the  people  to be
secure in their persons,  houses,  papers and effects against unreasonable searches
and seizures of whatever nature and for any purpose." Section 3 renders  inviolable 
the  "privacy  of  communication and correspondence" and  further  cautions  that 
"any evidence obtained in violation of this or the preceding section shall be
inadmissible for any purpose in any proceeding."

In evaluating a claim for violation of the right to privacy, a court must determine whether
a person has exhibited a reasonable expectation of privacy and, if so, whether that
expectation has been violated by unreasonable government intrusion.[50]  Applying this
determination to these cases, the important inquiries are: first, did the directors and
officers of Philcomsat Holdings Corporation exhibit a reasonable expectation of
privacy?; and second, did the government  violate  such  expectation?

The answers are in the negative. Petitioners were invited in the Senate's public hearing to
deliberate on Senate Res. No. 455, particularly "on the anomalous losses incurred by
the Philippine Overseas Telecommunications Corporation (POTC), Philippine
Communications Satellite Corporation (PHILCOMSAT), and Philcomsat Holdings
Corporations (PHC) due to the alleged improprieties in the operations by their
respective board of directors."  Obviously, the inquiry focus on petitioners' acts
committed in the discharge of their duties as officers and directors of the said
corporations, particularly Philcomsat Holdings Corporation.  Consequently, they have
no reasonable expectation of privacy over matters involving their offices in a
corporation where the government has interest. Certainly, such matters are of
public concern and over which the people have the right to information.

This goes to show that the right to privacy is not absolute where there is an
overriding compelling state interest.   In Morfe v. Mutuc,[51] the Court, in line
with Whalen v. Roe,[52] employed the rational basis relationship test when it held that
there was no infringement of the individual's right to privacy as the requirement to
disclosure information is for a valid purpose, i.e., to curtail and minimize the
opportunities for official corruption, maintain a standard of honesty in public service, and
promote morality in public administration.[53] In Valmonte v. Belmonte,[54] the Court
remarked that as public figures, the Members of the  former Batasang Pambansa enjoy a
more limited right to privacy as compared to ordinary individuals, and their actions are
subject to closer scrutiny.  Taking this into consideration, the Court ruled that the right of
the people to access information on matters of public concern prevails over the right to
privacy of financial transactions.

Under the present circumstances, the alleged anomalies in the PHILCOMSAT, PHC and
POTC, ranging in millions of pesos, and the conspiratorial participation of the PCGG and
its officials are compelling reasons for the Senate to exact vital information from the
directors and officers of Philcomsat Holdings Corporations, as well as from Chairman
Sabio and his Commissioners to aid it in crafting the necessary legislation to prevent
corruption and formulate remedial measures and policy determination regarding PCGG's
efficacy.  There being no reasonable expectation of privacy on the part of those directors
and officers over the subject covered by Senate Res. No. 455, it follows that their right to
privacy has not been violated by respondent Senate Committees.

Anent the right against self-incrimination, it must be emphasized that this right maybe
invoked by the said directors and officers of Philcomsat Holdings Corporation only when
the incriminating question is being asked, since they have no way of knowing in 
advance the nature or effect of the questions to be asked of them."[55]  That this right
may possibly be violated or abused is no ground for denying respondent Senate
Committees their power of inquiry.  The consolation is that when this power is abused,
such issue may be presented before the courts. At this juncture, what is important is that
respondent Senate Committees have sufficient Rules to guide them when the right against
self-incrimination is invoked.   Sec. 19 reads:
Sec. 19. Privilege Against Self-Incrimination

A witness can invoke his right against self-incrimination only when a question tends to
elicit an answer that will incriminate him is propounded to him. However, he may offer
to answer any question in an executive session.

No person can refuse to testify or be placed under oath or affirmation or answer questions
before an incriminatory question is asked. His invocation of such right does not by itself
excuse him from his duty to give testimony.

In such a case, the Committee, by a majority vote of the members present there being a
quorum, shall determine whether the right has been properly invoked. If the Committee
decides otherwise, it shall resume its investigation and the question or questions
previously refused to be answered shall be repeated to the witness. If the latter continues
to refuse to answer the question, the Committee may punish him for contempt for
contumacious conduct.
The same directors and officers contend that the Senate is barred from inquiring into the
same issues being litigated before the Court of Appeals and the Sandiganbayan.  Suffice
it to state that the Senate Rules of Procedure Governing Inquiries in Aid of Legislation
provide that the filing or pendency of any prosecution of criminal or administrative action
should not stop or abate any inquiry to carry out a legislative purpose.

Let it be stressed at this point that so  long as the constitutional rights of witnesses, like
Chairman Sabio and his Commissioners,  will be respected by respondent Senate
Committees, it their duty to cooperate with them in their efforts to obtain the facts needed
for intelligent legislative action. The unremitting obligation of every citizen is to respond
to subpoenae, to respect the dignity of the Congress and its Committees, and to testify
fully with respect to matters within the realm of proper investigation.

In fine, PCGG Chairman Camilo Sabio and Commissioners Ricardo Abcede, Narciso
Nario, Nicasio Conti, and Tereso Javier; and Manuel Andal and Julio Jalandoni, PCGG's
nominees to Philcomsat Holdings Corporation, as well as its directors and officers, must
comply with the Subpoenae Ad Testificandum issued by respondent Senate Committees
directing them to appear and testify in public hearings relative to Senate Resolution No.
455.

WHEREFORE, the petition in G.R. No. 174340 for habeas corpus is DISMISSED, for

being moot.  The petitions in G.R Nos. 174318 and 174177 are likewise DISMISSED.

Section 4(b) of E.O. No. 1 is declared REPEALED by the 1987 Constitution. 

Respondent Senate Committees' power of inquiry relative to Senate Resolution 455 is
upheld.  PCGG Chairman Camilo L. Sabio and Commissioners Ricardo Abcede, Narciso
Nario, Nicasio Conti and Tereso Javier; and Manuel Andal and Julio Jalandoni, PCGG's
nominees to Philcomsat Holdings Corporation, as well as its directors and officers,
petitioners in G.R. No. 174177, are ordered to comply with the Subpoenae Ad
Testificandum issued by respondent Senate Committees directing them to appear and
testify in public hearings relative to Senate Resolution No. 455.

S
 EN BANC
[ G.R. No. 157870, November 03, 2008 ]
SOCIAL JUSTICE SOCIETY (SJS), PETITIONER, VS. DANGEROUS
DRUGS BOARD AND PHILIPPINE DRUG ENFORCEMENT AGENCY
(PDEA), RESPONDENTS.

[G.R. No. 158633]

ATTY. MANUEL J. LASERNA, JR., PETITIONER, VS. DANGEROUS

DRUGS BOARD AND PHILIPPINE DRUG ENFORCEMENT AGENCY,
RESPONDENTS.

[G.R. No. 161658]

AQUILINO Q. PIMENTEL, JR., PETITIONER, VS. COMMISSION ON

ELECTIONS, RESPONDENT.

DECISION

VELASCO JR., J.:

In these kindred petitions, the constitutionality of Section 36 of Republic Act No. (RA)
9165, otherwise known as the Comprehensive Dangerous Drugs Act of 2002, insofar as it
requires mandatory drug testing of candidates for public office, students of secondary and
tertiary schools, officers and employees of public and private offices, and persons
charged before the prosecutor's office with certain offenses, among other personalities, is
put in issue.

As far as pertinent, the challenged section reads as follows:

SEC. 36. Authorized Drug Testing.—Authorized drug testing shall be done by any
government forensic laboratories or by any of the drug testing laboratories accredited and
monitored by the DOH to safeguard the quality of the test results.  x x x The drug testing
shall employ, among others, two (2) testing methods, the screening test which will
determine the positive result as well as the type of drug used and the confirmatory test
which will confirm a positive screening test.  x x x  The following shall be subjected to
undergo drug testing:

xxxx
(c) Students of secondary and tertiary schools.—Students of secondary and tertiary
schools shall, pursuant to the related rules and regulations as contained in the school's
student handbook and with notice to the parents, undergo a random drug testing x x x;

(d) Officers and employees of public and private offices.—Officers and employees of
public and private offices, whether domestic or overseas, shall be subjected to undergo a
random drug test as contained in the company's work rules and regulations, x x x for
purposes of reducing the risk in the workplace.  Any officer or employee found positive
for use of dangerous drugs shall be dealt with administratively which shall be a ground
for suspension or termination, subject to the provisions of Article 282 of the Labor Code
and pertinent provisions of the Civil Service Law;

xxxx

(f) All persons charged before the prosecutor's office with a criminal offense having an
imposable penalty of imprisonment of not less than six (6) years and one (1) day shall
undergo a mandatory drug test;

(g) All candidates for public office whether appointed or elected both in the national or
local government shall undergo a mandatory drug test.

In addition to the above stated penalties in this Section, those found to be positive for
dangerous drugs use shall be subject to the provisions of Section 15 of this Act.
G.R. No. 161658 (Aquilino Q. Pimentel, Jr. v. Commission on Elections)

On December 23, 2003, the Commission on Elections (COMELEC) issued Resolution

No. 6486, prescribing the rules and regulations on the mandatory drug testing of
candidates for public office in connection with the May 10, 2004 synchronized national
and local elections. The pertinent portions of the said resolution read as follows:
WHEREAS, Section 36 (g) of Republic Act No. 9165 provides:

SEC. 36. Authorized Drug Testing.—x x x

xxxx

(g) All candidates for public office x x x both in the national or local government shall
undergo a mandatory drug test.

WHEREAS, Section 1, Article XI of the 1987 Constitution provides that public officers
and employees must at all times be accountable to the people, serve them with utmost
responsibility, integrity, loyalty and efficiency;

WHEREAS, by requiring candidates to undergo mandatory drug test, the public will
know the quality of candidates they are electing and they will be assured that only those
who can serve with utmost responsibility, integrity, loyalty, and efficiency would be
elected x x x.

NOW THEREFORE, The [COMELEC], pursuant to the authority vested in it under the
Constitution, Batas Pambansa Blg. 881 (Omnibus Election Code), [RA] 9165 and other
election laws, RESOLVED to promulgate, as it hereby promulgates, the following rules
and regulations on the conduct of mandatory drug testing to candidates for public
office[:]

SECTION 1. Coverage.—All candidates for public office, both national and local, in
the May 10, 2004 Synchronized National and Local Elections shall undergo
mandatory drug test in government forensic laboratories or any drug testing laboratories
monitored and accredited by the Department of Health.

SEC. 3.  x x x

On March 25, 2004, in addition to the drug certificates filed with their respective offices,
the Comelec Offices and employees concerned shall submit to the Law Department two
(2) separate lists of candidates. The first list shall consist of those candidates who
complied with the mandatory drug test while the second list shall consist of those
candidates who failed to comply x x x.

SEC. 4. Preparation and publication of names of candidates.—Before the start of the

campaign period, the [COMELEC] shall prepare two separate lists of candidates. The
first list shall consist of those candidates who complied with the mandatory drug test
while the second list shall consist of those candidates who failed to comply with said
drug test. x x x

SEC. 5. Effect of failure to undergo mandatory drug test and file drug test certificate.—
No person elected to any public office shall enter upon the duties of his office until he has
undergone mandatory drug test and filed with the offices enumerated under Section 2
hereof the drug test certificate herein required.  (Emphasis supplied.)
Petitioner Aquilino Q. Pimentel, Jr., a senator of the Republic and a candidate for re-
election in the May 10, 2004 elections,[1] filed a Petition for Certiorari and Prohibition
under Rule 65.  In it, he seeks (1) to nullify Sec. 36(g) of RA 9165 and COMELEC
Resolution No. 6486 dated December 23, 2003 for being unconstitutional in that they
impose a qualification for candidates for senators in addition to those already provided
for in the 1987 Constitution; and (2) to enjoin the COMELEC from implementing
Resolution No. 6486.

Pimentel invokes as legal basis for his petition Sec. 3, Article VI of the Constitution,
which states:
SECTION 3. No person shall be a Senator unless he is a natural-born citizen of the
Philippines, and, on the day of the election, is at least thirty-five years of age, able to read
and write, a registered voter, and a resident of the Philippines for not less than two years
immediately preceding the day of the election.
According to Pimentel, the Constitution only prescribes a maximum of five (5)
qualifications for one to be a candidate for, elected to, and be a member of the Senate. 
He says that both the Congress and COMELEC, by requiring, via RA 9165 and
Resolution No. 6486, a senatorial aspirant, among other candidates, to undergo a
mandatory drug test, create an additional qualification that all candidates for senator must
first be certified as drug free. He adds that there is no provision in the Constitution
authorizing the Congress or COMELEC to expand the qualification requirements of
candidates for senator.

G.R. No. 157870 (Social Justice Society v. Dangerous

Drugs Board and Philippine Drug Enforcement Agency)

In its Petition for Prohibition under Rule 65, petitioner Social Justice Society (SJS), a 
registered political party, seeks to prohibit the Dangerous Drugs Board (DDB) and the
Philippine Drug Enforcement Agency (PDEA) from enforcing paragraphs (c), (d), (f),
and (g) of Sec. 36 of RA 9165 on the ground that they are constitutionally infirm. For
one, the provisions constitute undue delegation of legislative power when they give
unbridled discretion to schools and employers to determine the manner of drug testing. 
For another, the provisions trench in the equal protection clause inasmuch as they can be
used to harass a student or an employee deemed undesirable.  And for a third, a person's
constitutional right against unreasonable searches is also breached by said provisions.

G.R. No. 158633 (Atty. Manuel J. Laserna, Jr. v. Dangerous

Drugs Board and Philippine Drug Enforcement Agency)

Petitioner Atty. Manuel J. Laserna, Jr., as citizen and taxpayer, also seeks in his Petition
for Certiorari and Prohibition under Rule 65 that Sec. 36(c), (d), (f), and (g) of RA 9165
be struck down as unconstitutional for infringing on the constitutional right to privacy,
the right against unreasonable search and seizure, and the right against self-incrimination,
and for being contrary to the due process and equal protection guarantees.

The Issue on Locus Standi

First off, we shall address the justiciability of the cases at bench and the matter of the
standing of petitioners SJS and Laserna to sue. As respondents DDB and PDEA assert,
SJS and Laserna failed to allege any incident amounting to a violation of the
constitutional rights mentioned in their separate petitions.[2]

It is basic that the power of judicial review can only be exercised in connection with
a bona fide controversy which involves the statute sought to be reviewed.[3]  But even
with the presence of an actual case or controversy, the Court may refuse to exercise
judicial review unless the constitutional question is brought before it by a party having
the requisite standing to challenge it.[4]  To have standing, one must establish that he or
she has suffered some actual or threatened injury as a result of the allegedly illegal
conduct of the government; the injury is fairly traceable to the challenged action; and the
injury is likely to be redressed by a favorable action.[5]

The rule on standing, however, is a matter of procedure; hence, it can be relaxed for non-
traditional plaintiffs, like ordinary citizens, taxpayers, and legislators when the public
interest so requires, such as when the matter is of transcendental importance, of
overarching significance to society, or of paramount public interest.[6]  There is no doubt
that Pimentel, as senator of the Philippines and candidate for the May 10, 2004 elections,
possesses the requisite standing since he has substantial interests in the subject matter of
the petition, among other preliminary considerations.  Regarding SJS and Laserna, this
Court is wont to relax the rule on locus standi owing primarily to the transcendental
importance and the paramount public interest involved in the enforcement of Sec. 36 of
RA 9165.

The Consolidated Issues

The principal issues before us are as follows:

(1) Do Sec. 36(g) of RA 9165 and COMELEC Resolution No. 6486 impose an additional
qualification for candidates for senator? Corollarily, can Congress enact a law prescribing
qualifications for candidates for senator in addition to those laid down by the
Constitution? and

(2) Are paragraphs (c), (d), (f), and (g) of Sec. 36, RA 9165 unconstitutional?
Specifically, do these paragraphs violate the right to privacy, the right against
unreasonable searches and seizure, and the equal protection clause? Or do they constitute
undue delegation of legislative power?

Pimentel Petition
(Constitutionality of Sec. 36[g] of RA 9165 and
COMELEC Resolution No. 6486)

In essence, Pimentel claims that Sec. 36(g) of RA 9165 and COMELEC Resolution No.
6486 illegally impose an additional qualification on candidates for senator. He points out
that, subject to the provisions on nuisance candidates, a candidate for senator needs only
to meet the qualifications laid down in Sec. 3, Art. VI of the Constitution, to wit: (1)
citizenship, (2) voter registration, (3) literacy, (4) age, and (5) residency.  Beyond these
stated qualification requirements, candidates for senator need not possess any other
qualification to run for senator and be voted upon and elected as member of the Senate.
The Congress cannot validly amend or otherwise modify these qualification standards, as
it cannot disregard, evade, or weaken the force of a constitutional mandate, [7] or alter or
enlarge the Constitution.

Pimentel's contention is well-taken.  Accordingly, Sec. 36(g) of RA 9165 should be, as it

is hereby declared as, unconstitutional. It is basic that if a law or an administrative rule
violates any norm of the Constitution, that issuance is null and void and has no effect.
The Constitution is the basic law to which all laws must conform; no act shall be valid if
it conflicts with the Constitution.[8] In the discharge of their defined functions, the three
departments of government have no choice but to yield obedience to the commands of the
Constitution.  Whatever limits it imposes must be observed.[9]    

Congress' inherent legislative powers, broad as they may be, are subject to certain
limitations.  As early as 1927, in Government v. Springer, the Court has defined, in the
abstract, the limits on legislative power in the following wise:
Someone has said that the powers of the legislative department of the Government, like
the boundaries of the ocean, are unlimited. In constitutional governments, however, as
well as governments acting under delegated authority, the powers of each of the
departments x x x are limited and confined within the four walls of the constitution or the
charter, and each department can only exercise such powers as are necessarily implied
from the given powers.  The Constitution is the shore of legislative authority against
which the waves of legislative enactment may dash, but over which it cannot leap. [10]
Thus, legislative power remains limited in the sense that it is subject to substantive and
constitutional limitations which circumscribe both the exercise of the power itself and the
allowable subjects of legislation.[11]  The substantive constitutional limitations are chiefly
found in the Bill of Rights[12] and other provisions, such as Sec. 3, Art. VI of the
Constitution prescribing the qualifications of candidates for senators.

In the same vein, the COMELEC cannot, in the guise of enforcing and administering
election laws or promulgating rules and regulations to implement Sec. 36(g), validly
impose qualifications on candidates for senator in addition to what the Constitution
prescribes. If Congress cannot require a candidate for senator to meet such additional
qualification, the COMELEC, to be sure, is also without such power. The right of a
citizen in the democratic process of election should not be defeated by unwarranted
impositions of requirement not otherwise specified in the Constitution.[13]

Sec. 36(g) of RA 9165, as sought to be implemented by the assailed COMELEC

resolution, effectively enlarges the qualification requirements enumerated in the Sec. 3,
Art. VI of the Constitution.  As couched, said Sec. 36(g) unmistakably requires a
candidate for senator to be certified illegal-drug clean, obviously as a pre-condition to the
validity of a certificate of candidacy for senator or, with like effect, a condition sine qua
non to be voted upon and, if proper, be proclaimed as senator-elect. The COMELEC
resolution completes the chain with the proviso that "[n]o person elected to any public
office shall enter upon the duties of his office until he has undergone mandatory drug
test."  Viewed, therefore, in its proper context, Sec. 36(g) of RA 9165 and the
implementing COMELEC Resolution add another qualification layer to what the 1987
Constitution, at the minimum, requires for membership in the Senate. Whether or not the
drug-free bar set up under the challenged provision is to be hurdled before or after
election is really of no moment, as getting elected would be of little value if one cannot
assume office for non-compliance with the drug-testing requirement.

It may of course be argued, in defense of the validity of Sec. 36(g) of RA 9165, that the
provision does not expressly state that non-compliance with the drug test imposition is a
disqualifying factor or would work to nullify a certificate of candidacy. This argument
may be accorded plausibility if the drug test requirement is optional. But the particular
section of the law, without exception, made drug-testing on those covered mandatory,
necessarily suggesting that the obstinate ones shall have to suffer the adverse
consequences for not adhering to the statutory command. And since the provision deals
with candidates for public office, it stands to reason that the adverse consequence
adverted to can only refer to and revolve around the election and the assumption of public
office of the candidates. Any other construal would reduce the mandatory nature of Sec.
36(g) of RA 9165 into a pure jargon without meaning and effect whatsoever.

While it is anti-climactic to state it at this juncture, COMELEC Resolution No. 6486 is

no longer enforceable, for by its terms, it was intended to cover only the May 10, 2004
synchronized elections and the candidates running in that electoral event. Nonetheless, to
obviate repetition, the Court deems it appropriate to review and rule, as it hereby rules, on
its validity as an implementing issuance.

It ought to be made abundantly clear, however, that the unconstitutionality of Sec. 36(g)
of RA 9165 is rooted on its having infringed the constitutional provision defining the
qualification or eligibility requirements for one aspiring to run for and serve as senator.

SJS Petition
(Constitutionality of Sec. 36[c], [d], [f], and [g] of RA 9165)

The drug test prescribed under Sec. 36(c), (d), and (f) of RA 9165 for secondary and
tertiary level students and public and private employees, while mandatory, is a random
and suspicionless arrangement. The objective is to stamp out illegal drug and safeguard in
the process "the well being of [the] citizenry, particularly the youth, from the harmful
effects of dangerous drugs."  This statutory purpose, per the policy-declaration portion of
the law, can be achieved via the pursuit by the state of "an intensive and unrelenting
campaign against the trafficking and use of dangerous drugs x x x through an integrated
system of planning, implementation and enforcement of anti-drug abuse policies,
programs and projects."[14]  The primary legislative intent is not criminal prosecution, as
those found positive for illegal drug use as a result of this random testing are not
necessarily treated as criminals. They may even be exempt from criminal liability should
the illegal drug user consent to undergo rehabilitation.  Secs. 54 and 55 of RA 9165 are
clear on this point:
Sec. 54. Voluntary Submission of a Drug Dependent to Confinement, Treatment and
Rehabilitation.—A drug dependent or any person who violates Section 15 of this Act
may, by himself/herself or through his/her parent, [close relatives] x x x apply to the
Board x x x for treatment and rehabilitation of the drug dependency.  Upon such
application, the Board shall bring forth the matter to the Court which shall order that the
applicant be examined for drug dependency.  If the examination x x x results in the
certification that the applicant is a drug dependent, he/she shall be ordered by the Court to
undergo treatment and rehabilitation in a Center designated by the Board x x x.

xxxx

Sec. 55. Exemption from the Criminal Liability Under the Voluntary Submission
Program.—A drug dependent under the voluntary submission program, who is finally
discharged from confinement, shall be exempt from the criminal liability under Section
15 of this Act subject to the following conditions:

xxxx
School children, the US Supreme Court noted, are most vulnerable to the physical,
psychological, and addictive effects of drugs. Maturing nervous systems of the young are
more critically impaired by intoxicants and are more inclined to drug dependency. Their
recovery is also at a depressingly low rate.[15]

The right to privacy has been accorded recognition in this jurisdiction as a facet of the
right protected by the guarantee against unreasonable search and seizure [16] under Sec. 2,
Art. III[17] of the Constitution. But while the right to privacy has long come into its own,
this case appears to be the first time that the validity of a state-decreed search or intrusion
through the medium of mandatory random drug testing among students and employees is,
in this jurisdiction, made the focal point.  Thus, the issue tendered in these proceedings is
veritably one of first impression.

US jurisprudence is, however, a rich source of persuasive jurisprudence. With respect to

random drug testing among school children, we turn to the teachings of Vernonia School
District 47J v. Acton (Vernonia) and Board of Education of Independent School District
No. 92 of Pottawatomie County, et al. v. Earls, et al. (Board of Education),[18] both fairly
pertinent US Supreme Court-decided cases involving the constitutionality of
governmental search.

In Vernonia, school administrators in Vernonia, Oregon wanted to address the drug

menace in their respective institutions following the discovery of frequent drug use by
school athletes.  After consultation with the parents, they required random urinalysis drug
testing for the school's athletes.  James Acton, a high school student, was denied
participation in the football program after he refused to undertake the urinalysis drug
testing. Acton forthwith sued, claiming that the school's drug testing policy
violated, inter alia, the Fourth Amendment[19]  of the US Constitution.

The US Supreme Court, in fashioning a solution to the issues raised in Vernonia,

considered the following: (1) schools stand in loco parentis over their students; (2) school
children, while not shedding their constitutional rights at the school gate, have less
privacy rights; (3) athletes have less privacy rights than non-athletes since the former
observe communal undress before and after sports events; (4) by joining the sports
activity, the athletes voluntarily subjected themselves to a higher degree of school
supervision and regulation; (5) requiring urine samples does not invade a student's
privacy since a student need not undress for this kind of drug testing; and (6) there is
need for the drug testing because of the dangerous effects of illegal drugs on the young. 
The US Supreme Court held that the policy constituted reasonable search under the
Fourth[20] and 14th Amendments and declared the random drug-testing policy
constitutional.

In Board of Education, the Board of Education of a school in Tecumseh, Oklahoma

required a drug test for high school students desiring to join extra-curricular activities. 
Lindsay Earls, a member of the show choir, marching band, and academic team declined
to undergo a drug test and averred that the drug-testing policy made to apply to non-
athletes violated the Fourth and 14th Amendments. As Earls argued, unlike athletes who
routinely undergo physical examinations and undress before their peers in locker rooms,
non-athletes are entitled to more privacy.

The US Supreme Court, citing Vernonia, upheld the constitutionality of drug testing even
among non-athletes on the basis of the school's custodial responsibility and authority.  In
so ruling, said court made no distinction between a non-athlete and an athlete.  It
ratiocinated that schools and teachers act in place of the parents with a similar interest
and duty of safeguarding the health of the students. And in holding that the school could
implement its random drug-testing policy, the Court hinted that such a test was a kind of
search in which even a reasonable parent might need to engage.

In sum, what can reasonably be deduced from the above two cases and applied to this
jurisdiction are: (1) schools and their administrators stand in loco parentis with respect to
their students; (2) minor students have contextually fewer rights than an adult, and are
subject to the custody and supervision of their parents, guardians, and schools; (3)
schools, acting in loco parentis, have a duty to safeguard the health and well-being of
their students and may adopt such measures as may reasonably be necessary to discharge
such duty; and (4) schools have the right to impose conditions on applicants for
admission that are fair, just, and non-discriminatory.
Guided by Vernonia and Board of Education, the Court is of the view and so holds that
the provisions of RA 9165 requiring mandatory, random, and suspicionless drug testing
of students are constitutional. Indeed, it is within the prerogative of educational
institutions to require, as a condition for admission, compliance with reasonable school
rules and regulations and policies.  To be sure, the right to enroll is not absolute; it is
subject to fair, reasonable, and equitable requirements.

The Court can take judicial notice of the proliferation of prohibited drugs in the country
that threatens the well-being of the people,[21] particularly the youth and school children
who usually end up as victims. Accordingly, and until a more effective method is
conceptualized and put in motion, a random drug testing of students in secondary and
tertiary schools is not only acceptable but may even be necessary if the safety and interest
of the student population, doubtless a legitimate concern of the government,  are to be
promoted and protected.  To borrow from Vernonia, "[d]eterring drug use by our Nation's
schoolchildren is as important as enhancing efficient enforcement of the Nation's laws
against the importation of drugs"; the necessity for the State to act is magnified by the
fact that the effects of a drug-infested school are visited not just upon the users, but upon
the entire student body and faculty.[22]  Needless to stress, the random testing scheme
provided under the law argues against the idea that the testing aims to incriminate
unsuspecting individual students.

Just as in the case of secondary and tertiary level students, the mandatory but random
drug test prescribed by Sec. 36 of RA 9165 for officers and employees of public and
private offices is justifiable, albeit not exactly for the same reason. The Court notes in
this regard that petitioner SJS, other than saying that "subjecting almost everybody to
drug testing, without probable cause, is unreasonable, an unwarranted intrusion of the
individual right to privacy,"[23] has failed to show how the mandatory, random, and
suspicionless drug testing under Sec. 36(c) and (d) of RA 9165 violates the right to
privacy and constitutes unlawful and/or unconsented search under Art. III, Secs. 1 and 2
of the Constitution.[24] Petitioner Laserna's lament is just as simplistic, sweeping, and
gratuitous and does not merit serious consideration. Consider what he wrote without
elaboration:
The US Supreme Court and US Circuit Courts of Appeals have made various rulings on
the constitutionality of mandatory drug tests in the school and the workplaces. The US
courts have been consistent in their rulings that the mandatory drug tests violate a
citizen's constitutional right to privacy and right against unreasonable search and seizure.
They are quoted extensively hereinbelow.[25]
The essence of privacy is the right to be left alone.[26] In context, the right to privacy
means the right to be free from unwarranted exploitation of one's person or from intrusion
into one's private activities in such a way as to cause humiliation to a person's ordinary
sensibilities.[27]  And while there has been general agreement as to the basic function of
the guarantee against unwarranted search, "translation of the abstract prohibition against
`unreasonable searches and seizures' into workable broad guidelines for the decision of
particular cases is a difficult task," to borrow from C. Camara v. Municipal Court.[28] 
Authorities are agreed though that the right to privacy   yields to certain paramount rights
of the public and defers to the state's exercise of police power. [29]

As the warrantless clause of Sec. 2, Art III of the Constitution is couched and as has been
held, "reasonableness" is the touchstone of the validity of a government search or
intrusion.[30] And whether a search at issue hews to the reasonableness standard is judged
by the balancing of the government-mandated intrusion on the individual's privacy
interest against the promotion of some compelling state interest.[31] In the criminal
context, reasonableness requires showing of probable cause to be personally determined
by a judge. Given that the drug-testing policy for employees—and students for that
matter—under RA 9165 is in the nature of administrative search needing what was
referred to in Vernonia as "swift and informal disciplinary procedures," the probable-
cause standard is not required or even practicable. Be that as it may, the review should
focus on the reasonableness of the challenged administrative search in question.

The first factor to consider in the matter of reasonableness is the nature of the privacy
interest upon which the drug testing, which effects a search within the meaning of Sec. 2,
Art. III of the Constitution, intrudes. In this case, the office or workplace serves as the
backdrop for the analysis of the privacy expectation of the employees and the
reasonableness of drug testing requirement. The employees' privacy interest in an office
is to a large extent circumscribed by the company's work policies, the collective
bargaining agreement, if any, entered into by management and the bargaining unit, and
the inherent right of the employer to maintain discipline and efficiency in the workplace.
Their privacy expectation in a regulated office environment is, in fine, reduced; and a
degree of impingement upon such privacy has been upheld.

Just as defining as the first factor is the character of the intrusion authorized by the
challenged law. Reduced to a question form, is the scope of the search or intrusion clearly
set forth, or, as formulated in Ople v. Torres, is the enabling law authorizing a search
"narrowly drawn" or "narrowly focused"?[32]

The poser should be answered in the affirmative. For one, Sec. 36 of RA 9165 and its
implementing rules and regulations (IRR), as couched, contain provisions specifically
directed towards preventing a situation that would unduly embarrass the employees or
place them under a humiliating experience. While every officer and employee in a private
establishment is under the law deemed forewarned that he or she may be a possible
subject of a drug test, nobody is really singled out in advance for drug testing. The goal is
to discourage drug use by not telling in advance anyone when and who is to be tested.
And as may be observed, Sec. 36(d) of RA 9165 itself prescribes what, in Ople, is a
narrowing ingredient by providing that the employees concerned shall be subjected to
"random drug test as contained in the company's work rules and regulations x x x for
purposes of reducing the risk in the work place."

For another, the random drug testing shall be undertaken under conditions calculated to
protect as much as possible the employee's privacy and dignity. As to the mechanics of
the test, the law specifies that the procedure shall employ two testing methods, i.e., the
screening test and the confirmatory test, doubtless to ensure as much as possible the
trustworthiness of the results. But the more important consideration lies in the fact that
the test shall be conducted by trained professionals in access-controlled laboratories
monitored by the Department of Health (DOH) to safeguard against results tampering and
to ensure an accurate chain of custody.[33] In addition, the IRR issued by the DOH
provides that access to the drug results shall be on the "need to know" basis;[34] that the
"drug test result and the records shall be [kept] confidential subject to the usual accepted
practices to protect the confidentiality of the test results."[35]  Notably, RA 9165 does not
oblige the employer concerned to report to the prosecuting agencies any information or
evidence relating to the violation of the Comprehensive Dangerous Drugs Act received as
a result of the operation of the drug testing. All told, therefore, the intrusion into the
employees' privacy, under RA 9165, is accompanied by proper safeguards, particularly
against embarrassing leakages of test results, and is relatively minimal.

To reiterate, RA 9165 was enacted as a measure to stamp out illegal drug in the country
and thus protect the well-being of the citizens, especially the youth, from the deleterious
effects of dangerous drugs. The law intends to achieve this through the medium, among
others, of promoting and resolutely pursuing a national drug abuse policy in the
workplace via a mandatory random drug test.[36]  To the Court, the need for drug testing to
at least minimize illegal drug use is substantial enough to override the individual's
privacy interest under the premises.  The Court can consider that the illegal drug menace
cuts across gender, age group, and social- economic lines. And it may not be amiss to
state that the sale, manufacture, or trafficking of illegal drugs, with their ready market,
would be an investor's dream were it not for the illegal and immoral components of any
of such  activities.  The drug problem has hardly abated since the martial law public
execution of a notorious drug trafficker. The state can no longer assume a laid back
stance with respect to this modern-day scourge.  Drug enforcement agencies perceive a
mandatory random drug test to be an effective way of preventing and deterring drug use
among employees in private offices, the threat of detection by random testing being
higher than other modes. The Court holds that the chosen method is a reasonable and
enough means to lick the problem.

Taking into account the foregoing factors, i.e., the reduced expectation of privacy on the
part of the employees, the compelling state concern likely to be met by the search, and
the well-defined limits set forth in the law to properly guide authorities in the conduct of
the random testing, we hold that the challenged drug test requirement is, under the limited
context of the case, reasonable and, ergo, constitutional.
Like their counterparts in the private sector, government officials and employees also
labor under reasonable supervision and restrictions imposed by the Civil Service law and
other laws on public officers, all enacted to promote a high standard of ethics in the
public service.[37]  And if RA 9165 passes the norm of reasonableness for private
employees, the more reason that it should pass the test for civil servants, who, by
constitutional command, are required to be accountable at all times to the people and to
serve them with utmost responsibility and efficiency.[38]

Petitioner SJS' next posture that Sec. 36 of RA 9165 is objectionable on the ground of
undue delegation of power hardly commends itself for concurrence.  Contrary to its
position, the provision in question is not so extensively drawn as to give unbridled
options to schools and employers to determine the manner of drug testing.  Sec. 36
expressly provides how drug testing for students of secondary and tertiary schools and
officers/employees of public/private offices should be conducted.  It enumerates the
persons who shall undergo drug testing. In the case of students, the testing shall be in
accordance with the school rules as contained in the student handbook and with notice to
parents. On the part of officers/employees, the testing shall take into account the
company's work rules. In either case, the random procedure shall be observed, meaning
that the persons to be subjected to drug test shall be picked by chance or in an unplanned
way. And in all cases, safeguards against misusing and compromising the confidentiality
of the test results are established.

Lest it be overlooked, Sec. 94 of RA 9165 charges the DDB to issue, in consultation with
the DOH, Department of the Interior and Local Government, Department of Education,
and Department of Labor and Employment, among other agencies, the IRR necessary to
enforce the law.  In net effect then, the participation of schools and offices in the drug
testing scheme shall always be subject to the IRR of RA 9165.  It is, therefore, incorrect
to say that schools and employers have unchecked discretion to determine how often,
under what conditions, and where the drug tests shall be conducted.

The validity of delegating legislative power is now a quiet area in the constitutional
landscape.[39]  In the face of the increasing complexity of the task of the government and
the increasing inability of the legislature to cope directly with the many problems
demanding its attention, resort to delegation of power, or entrusting to administrative
agencies the power of subordinate legislation, has become imperative, as here.

Laserna Petition (Constitutionality of Sec. 36[c], [d],

[f], and [g] of RA 9165)

Unlike the situation covered by Sec. 36(c) and (d) of RA 9165, the Court finds no valid
justification for mandatory drug testing for persons accused of crimes. In the case of
students, the constitutional viability of the mandatory, random, and suspicionless drug
testing for students emanates primarily from the waiver by the students of their right to
privacy when they seek entry to the school, and from their voluntarily submitting their
persons to the parental authority of school authorities. In the case of private and public
employees, the constitutional soundness of the mandatory, random, and suspicionless
drug testing proceeds from the reasonableness of the drug test policy and requirement.

We find the situation entirely different in the case of persons charged before the public
prosecutor's office with criminal offenses punishable with six (6) years and one (1) day
imprisonment.  The operative concepts in the mandatory drug testing are "randomness"
and "suspicionless."  In the case of persons charged with a crime before the prosecutor's
office, a mandatory drug testing can never be random or suspicionless.  The ideas of
randomness and being suspicionless are antithetical to their being made defendants in a
criminal complaint.  They are not randomly picked; neither are they beyond suspicion. 
When persons suspected of committing a crime are charged, they are singled out and are
impleaded against their will.  The persons thus charged, by the bare fact of being haled
before the prosecutor's office and peaceably submitting themselves to drug testing, if that
be the case, do not necessarily consent to the procedure, let alone waive their right to
privacy.[40]  To impose mandatory drug testing on the accused is a blatant attempt to
harness a medical test as a tool for criminal prosecution, contrary to the stated objectives
of RA 9165.  Drug testing in this case would violate a persons' right to privacy
guaranteed under Sec. 2, Art. III of the Constitution. Worse still, the accused persons are
veritably forced to incriminate themselves.

WHEREFORE, the Court resolves to GRANT the petition in G.R. No. 161658 and
declares Sec. 36(g) of RA 9165 and COMELEC Resolution No.
6486 as UNCONSTITUTIONAL; and to PARTIALLY GRANT the petition in G.R.
Nos. 157870 and 158633 by declaring Sec. 36(c) and (d) of RA
9165 CONSTITUTIONAL, but declaring its Sec. 36(f) UNCONSTITUTIONAL.  All
concerned agencies are, accordingly, permanently enjoined from implementing Sec. 36(f)
and (g) of RA 9165.  No costs.

SO ORDERED.

EN BANC
[ G.R. No. 182555, February 08, 2011 ]
LENIDO LUMANOG AND AUGUSTO SANTOS, PETITIONERS, VS.
PEOPLE OF THE PHILIPPINES, RESPONDENT.

[G.R.NO. 185123]

CESAR FORTUNA, PETITIONER, VS. PEOPLE OF THE PHILIPPINES,

 RESPONDENT.

[G.R.NO. 187745]

PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, VS. SPO2 CESAR

FORTUNA Y ABUDO, RAMESES DE JESUS Y CALMA, LENIDO
LUMANOG Y LUISTRO, JOEL DE JESUS Y VALDEZ AND AUGUSTO
SANTOS Y GALANG, ACCUSED, RAMESES DE JESUS Y CALMA AND
JOEL DE JESUS Y VALDEZ, ACCUSED-APPELLANTS.

RESOLUTION

VILLARAMA, JR., J.:

This resolves the motions for reconsideration separately filed by Lenido Lumanog
and Augusto Santos, Cesar Fortuna and Rameses de Jesus assailing our Decision dated
September 7, 2010 convicting them of the crime of murder, the dispositive portion of
which reads:

WHEREFORE, the consolidated petitions and appeal are hereby DISMISSED. The
Decision dated April 1, 2008 of the Court of Appeals in CA-G.R. CR-HC No. 00667 is
hereby AFFIRMED with MODIFICATIONS in that the civil indemnity for the death of Col.
Rolando N. Abadilla is hereby increased to P75,000.00, and the amounts of moral and
exemplary damages awarded to his heirs are reduced to P75,000.00 and P30,000.00,
respectively.

With costs against the accused-appellants. SO ORDERED. [1]

Lumanog and Augusto Santos seek the reversal of their conviction on the following
grounds:

The Honorable Supreme Court erred in:

I. Setting out in the facts of the case and the contents of inadmissible extrajudicial
confessions;

II. Not including the extrajudicial confession of Lorenzo delos Santos as excluded
evidence;
 III. Applying the ruling in People v. Rivera "that the testimony of a sole eyewitness is
sufficient to support a conviction so long as it is clear, straightforward and worthy
of credence by the trial court";

IV. According finality to the evaluation made by the lower court of the testimony of
Freddie Alejo;

V. Ruling that there was positive identification;

VI. Finding "none of the danger signals enumerated by Patrick M. Wall" when 3, 7,
10, 11, 12 in said enumeration are present;

VII. Dismissing the mismatch between the prior description given by the witness and
the actual appearances of the accused;

VIII. Relying on the ocular inspection conducted at a time when a material condition is
significantly altered;

IX. Ruling that the inconsistencies in Alejo's earlier statement and his in-court
testimony have been explained;

X. Not discrediting Alejo's testimony despite acceptance of benefits from the

Abadilla family;

XI. Holding that the acquittal of Lorenzo delos Santos does not necessarily benefit
the appellants;

XII. Ruling that the ballistic and fingerprint examination results are inconclusive and
not indispensable;

XIII. Not considering the totality of evidence presented by the defense as against the
alleged "positive identification" of the accused.

XIV. Allowing Justice Jose Catral Mendoza to take  part in the deliberation and the
voting;

XV. Dismissing the evidence presented by Augusto Santos;

XVI. Ruling that the silence of accused Lumanog amounts to a quasi- confession;

XVII. Holding that the delay of (4) four years during which the caseremained pending
with the CA and this Court was not unreasonable, arbitrary or oppressive. [2]
Rameses de Jesus raised the following grounds in his motion:

I.

THE HONORABLE SUPREME COURT GRAVELY ERRED IN HEAVILY RELYING ON THE LONE
ALLEGED EYEWITNESS SECURITY GUARD (SG) FREDDIE ALEJO'S TESTIMONY, WHICH WAS
CHARACTERIZED BY MATERIAL OMISSIONS, PATENT INCREDIBILITY, CONTRADICTIONS
AND DISCREPANCIES.

II.

THE HONORABLE SUPREME COURT GROSSLY MISAPPRECIATED THE FIRST SWORN

STATEMENT GIVEN BY SG FREDDIE ALEJO, WHEREIN HE STATED THAT THERE WERE
FOUR (4) SUSPECTS WHO PERPETRATED THE CRIME CONTRARY TO HIS SUBSEQUENT
TESTIMONY IN OPEN COURT.

III.

THE HONORABLE SUPREME COURT FAILED TO APPRECIATE THE PERSONAL

CIRCUMSTANCES OF THE ACCUSED-APPELLANTS, WHICH WOULD SHOW AS HIGHLY
UNLIKELY THEIR ALLEGED COLLECTIVE GUILT AND CONSPIRACY.

IV.

THE HONORABLE SUPREME COURT FAILED TO GIVE WEIGHT TO PHYSICAL EVIDENCE,

PARTICULARLY THE EXCULPATORY BALLISTICS  AND  DACTYLOSCOPY EVIDENCE,  AND 
EXPERT TESTIMONY PRESENTED BY THE DEFENSE.[3]

On his part, Cesar Fortuna argues that:

THE LONE, CONTRADICTED AND INCREDIBLE TESTIMONY OF S/G ALEJO IS NOT

SUFFICIENT TO PROVE THE GUILT OF THE ACCUSED BEYOND REASONABLE DOUBT [4]

At the inception, let it be emphasized that the filing of a motion for reconsideration
does not impose on us the obligation to discuss and rule again on the grounds relied
upon by the movant which are mere reiteration of the issues previously raised and
thoroughly determined and evaluated in our Decision being questioned. [5] In particular,
the Court need not dwell again on the extrajudicial confessions of Joel de Jesus and
Lorenzo delos Santos which we have held inadmissible, the delay in the resolution of the
appeals before the CA and this Court which under the circumstances cannot be deemed
unreasonable or arbitrary, the inconclusive ballistic and fingerprint examination results,
and the effect of Lorenzo delos Santos' acquittal to the rest of appellants.  These matters
have been passed upon and adequately discussed in our Decision.

In fine, the accused-movants strongly assail the weight and credence accorded to the
identification of the accused by the lone eyewitness presented by the prosecution,
security guard Freddie Alejo. It was pointed out, among others, that: (1) in his statement
given to the police investigators immediately after the incident, Alejo mentioned only
four suspects, contrary to his subsequent testimony in court; it was impossible for him
not to mention the two men he had seen walking back and forth before the shooting;
(2) Alejo accepted financial support and benefits from the Abadilla family which could
have colored his testimony against the accused; (3) his in-court identification of the six
accused is questionable and unreliable considering that it referred to them only by
numbers and he had given prior description of only two suspects; and (4) the ocular
inspection conducted by the trial court to confirm Alejo's observations was likewise
unreliable because it was made at a time when a material condition is significantly
altered, i.e., it was held from 10:00 a.m. onwards whereas the incident occurred
between 8:30 and 9:00 a.m. when the glare of the morning sun directly hits the guard
post where Alejo was stationed.

Fortuna submitted an Affidavit dated November 12, 2009 executed by a certain Orencio
G. Jurado, Jr. who claims to be one of the police officers initially assigned to investigate
the case.  Fortuna contends that said belated statement would certainly cast doubt on
the procedures undertaken by the police authorities in the apprehension of the likely
perpetrators.

We find the motions bereft of merit.

While it is true that Alejo mentioned only four and not six suspects in his June 13, 1996
sworn statement, this did not impair his testimony as an eyewitness. Alejo was simply
responding to specific questions as to what he had witnessed during the shooting
incident. Herein quoted is an excerpt from the questioning by SPO1 Edilberto S. Nicanor
of the Criminal Investigation Division (CID) at Camp Karingal (PNP-NCR) and Alejo's
answers thereto:
 
Habang ikaw ay naka-duty bilang guwardiya sa 211 Katipunan Road, Quezon City,
8. - itong araw na ito, may napansin ka bang hindi pangkaraniwang pangyayari?
Mayroon, Sir.
-
Anoiyon?
9. -
May binaril na sakay ng kotse sa harap ng puwesto ko sir.
-
Anong oras ito nangyari?
0.  -
8:40 ng umaga kanina sir, more or less (13 June 1996)
-
Tan Sino ba itong binaril na tinutukoy mo, kung kilala mo?
1. ong :
Sag Isang hindi ko kilala na lalaki sir.
ot   :
Sino naman ang bumaril sa biktima na ito, kung kilala mo?
2. -

x x x x [6] (Emphasis supplied.)

The foregoing shows that Alejo merely gave the responsive answer to the question as to
those persons whom he saw actually shoot the victim who was in his car.  As the
question was phrased, Alejo was not being asked about the persons who had
participation or involvement in the crime, but only those who actually fired at the
victim.  Hence, he replied that there were four (4) armed men who suddenly fired shots
at the victim. What followed was Alejo's narration of what the gunmen further did to
the already wounded victim, to those people within the vicinity — including himself who
was ordered at gunpoint to lie down and not interfere — and until the firing stopped as
the suspects ran away.  Clearly, it was not a fatal omission on the part of Alejo not to
include in his first affidavit the two other suspects who were acting as lookouts.  During
his testimony in court, Alejo was able to fully recount the details and state that there
were two men walking back and forth before the shooting. It is settled that
contradictions between the contents of an affiant's affidavit and his testimony in the
witness stand do not always militate against the witness' credibility.  This is so because
affidavits, which are usually taken ex parte, are often incomplete and inaccurate. [7]

There is likewise nothing irregular in Alejo's manner of testifying in court, initially

referring to the accused by numbers, to indicate their relative positions as he
remembered them, and the individual participation of each in the violent ambush of
Abadilla.  As already explained in our decision, Alejo's elevated position from the
guardhouse gave him such a clear and unobstructed view of the incident that he was
able to recognize the faces and physical features of the accused at the time.  When two
of the accused actually poked a gun at him, it gave him more opportunity to see the
faces of the accused who had briefly turned their eyes on him. Furthermore, experience
dictates, precisely because of the unusual acts of violence committed right before
witnesses' eyes, that they remember with a high degree of reliability the identity of
criminals.[8]  Indeed, Alejos' recollection is not of "superhuman" level as accused now
make it appear, considering that he was a trained security guard, whose job demands
extra perceptiveness and vigilance at all times especially during emergency or critical
situations. Keen scrutiny of the physical appearance and behavior of persons is a routine
part of a security guard's work duties.

Movants likewise fault this Court for giving considerable weight to the observations
made by the trial judge during the ocular inspection, arguing that the timing of said
ocular inspection did not coincide with the precise hour in the morning when the
shooting incident happened.  Because the shooting took place between 8:30 to 9:00
when the glare of the morning sun directly hits the guard post of Alejo, the latter
supposedly cannot be said to have had such clear vantage point as found by the trial
judge when he positioned himself at the said guard post at a later time, which is already
past 10:00 in the morning.

We are not persuaded.

Movants are raising the issue for the first time before this Court and long after trial and
rendition of judgment.  We have perused the transcript of stenographic notes taken
during the ocular inspection conducted by the trial court on September 26, 1996, and
found no objection or comment made by the defense counsel regarding the timing of
the inspection and its relevance to the evaluation of Alejo's testimony.  Neither did the
accused complain of any irregularity in the conduct of the said ocular inspection before
the appellate court.  If indeed, the accused found the timing of the ocular inspection
crucial to their defense that Alejo was not really an eyewitness as he could not have
clearly seen the faces of all the accused from his guard post, they could have made a
proper manifestation or objection before the trial judge.  They could have even staged a
reenactment to demonstrate to the trial court the alleged glare of the morning sun at
the time of the commission of the crime, which could have affected Alejo's perception
of the incident.  But they did not.  It is now too late in the day for the accused to assail
as irregular the ocular inspection which was done with the conformity and in the
presence of their counsel.

It is an admitted fact that Alejo and his family were sheltered and given financial support
by the victim's family, presumably out of gratitude and sympathy considering that Alejo
lost his job after the incident. Such benevolence of the Abadilla family, however, is not
sufficient basis for the conclusion that Alejo would falsely accuse movants as the
perpetrators of the crime.  As we have stressed, Alejo did not waver in his identification
of the accused despite a grueling cross-examination by the defense lawyers. Both the
trial and appellate courts found Alejo's testimony as credible, categorical and
straightforward.  After a painstaking review of the records, we find no cogent reason to
deviate from their findings on the issue of credibility of the prosecution's lone
eyewitness.

As to the affidavit of Orencio G. Jurado, Jr. submitted by Fortuna, the said affiant
claimed that he had a heated argument with Inspector Roger Castillo during one of the
hearings before the trial court because Inspector Castillo was urging him (Jurado) "to
confirm that those arrested by the joint team of CID and PARAK-DILG were exactly the
same people/suspects described by the guards to which [he] firmly declined". Jurado
alleged that he was surprised to see the faces of the suspects flashed on TV several days
after Herbas and Alejo gave their statements at Camp Karingal because they did not fit
the description given by witnesses Herbas and Alejo. Jurado was also allegedly
prevented earlier by an unidentified policeman — as per instruction of then DILG
Secretary Robert Barbers — from interviewing the suspects arrested by the operatives
of the CID and PARAK-DILG.[9]

Evidently, Fortuna seeks the introduction of additional evidence to support the defense
argument that there was no positive identification of Abadilla's killers.  To justify a new
trial or setting aside of the judgment of
conviction on the basis of such evidence, it must be shown that the evidence was
"newly discovered" pursuant to Section 2, [10] Rule 121 of the Revised Rules of Criminal
Procedure, as amended.

Evidence, to be considered newly discovered, must be one that could not, by the
exercise of due diligence, have been discovered before the trial in the court below.
[11]
 Movant failed to show that the defense exerted efforts during the trial to secure
testimonies from police officers like Jurado, or other persons involved in the
investigation, who questioned or objected to the apprehension of the accused in this
case.  Hence, the belatedly executed affidavit of Jurado does not qualify as newly
discovered evidence that will justify re-opening of the trial and/or vacating the
judgment.  In any case, we have ruled that whatever flaw that may have initially
attended the out-of-court identification of the accused, the same was cured when all
the accused-appellants were positively identified by the prosecution eyewitness during
the trial.

Finally, we must make it clear that Justice Jose Catral Mendoza, who, as then presiding
judge at the trial court, heard the prosecution and defense witnesses, never took part in
the deliberations and voting by the Court in this case.  The absence of notation in
the ponencia that Justice Mendoza had "no part" in the deliberations and voting in this
case was purely an oversight and inadvertent omission.  The Clerk of Court, Atty.
Enriqueta Esguerra-Vidal, had already rectified such error in the Revised Page 75 of our
Decision dated September 7, 2010.

IN VIEW OF THE FOREGOING, the motions for reconsideration filed by Lenido Lumanog
and Augusto Santos, Rameses de Jesus and Cesar Fortuna are hereby DENIED WITH
FINALITY.

Let entry of judgment be made in due course.

SO ORDERED.

FIRST DIVISION
 [ G.R. No. 200748, July 23, 2014 ]
JAIME D. DELA CRUZ, PETITIONER, VS. PEOPLE OF THE PHILIPPINES,
RESPONDENT.

DECISION

SERENO, C.J.:

This is a Petition for Review on Certiorari, filed by petitioner Jaime D. dela Cruz,

from the Decision[1] dated 22 June 2011 issued by the Twentieth Division of the Court of
Appeals (CA) and Resolution[2] dated 2 February 2012 issued by the Former Twentieth
Division of the CA in CA- G.R. C.R. No. 00670.

THE ANTECEDENT FACTS

Petitioner Jaime D. dela Cruz was charged with violation of Section 15, Article II of
Republic Act No. (R.A.) 9165, or The Comprehensive Dangerous Drugs Act of 2002, by
the Graft Investigation and Prosecution Officer of the Office of the Ombudsman –
Visayas, in an Information[3] dated 14 February 2006, which reads:

That on or about the 31st day of January 2006, at Cebu City, Philippines, and
within the jurisdiction of this Honorable Court, the above-named  accused, JAIME D. DE
LA CRUZ, a public officer, having been duly appointed and qualified to such public
position as Police Officer 2 of the Philippine National Police (PNP) assigned in the
Security Service Group of the Cebu City Police Office, after having been arrested by
agents of the National Bureau of Investigation (NBI) in an entrapment operation, was
found positive for use of METHAMPHETAMINE HYDROCHLORIDE commonly known
as “Shabu”, the dangerous drug after a confirmatory test conducted on said accused.

CONTRARY TO LAW.

When arraigned, petitioner, assisted by counsel de parte, pleaded not guilty to the
charge. The records do not reveal whether De la Cruz was likewise charged for
extortion.
 VERSION OF THE PROSECUTION

The evidence of the prosecution reveals that at 8:00 a.m. of 31 January 2006, the agents
and special investigators of the National Bureau of Investigation, Central Visayas
Regional Office (NBI-CEVRO) or simply NBI, received a Complaint from Corazon Absin
(Corazon) and Charito Escobido (Charito). The complainants claimed that at 1:00 a.m. of
that same day, Ariel Escobido (Ariel), the live-in partner of Corazon and son of Charito,
was picked up by several unknown male persons believed to be police officers for
allegedly selling drugs. An errand boy gave a number to the complainants, and when the
latter gave the number a ring, they were instructed to proceed to the Gorordo Police
Office located along Gorordo Avenue, Cebu City. In the said police office, they met
“James” who demanded from them ?100,000, later lowered to ?40,000, in exchange for
the release of Ariel. After the meeting, the complainants proceeded to the NBI-CEVRO
to file a complaint and narrate the circumstances of the meeting to the authorities.
While at the NBI-CEVRO, Charito even received calls supposedly from “James”
instructing her to bring the money as soon as possible.

The special investigators at the NBI-CEVRO verified the text messages received by the
complainants. A team was immediately formed to implement an entrapment operation,
which took place inside a Jollibee branch at the corner of Gen. Maxilom and Gorordo
Avenues, Cebu City. The officers were able to nab Jaime dela Cruz by using a pre-marked
?500 bill dusted with fluorescent powder, which was made part of the amount
demanded by “James” and handed by Corazon. Petitioner was later brought to the
forensic laboratory of the NBI-CEVRO where forensic examination was done by forensic
chemist Rommel Paglinawan. Petitioner was required to submit his urine for drug
testing. It later yielded a positive result for presence of dangerous drugs as indicated in
the confirmatory test result labeled as Toxicology (Dangerous Drugs) Report No. 2006-
TDD-2402 dated 16 February 2006.

VERSION OF THE DEFENSE

The defense presented petitioner as the lone witness. He denied the charges and
testified that while eating at the said Jollibee branch, he was arrested allegedly for
extortion by NBI agents. When he was at the NBI Office, he was required to extract urine
for drug examination, but he refused saying he wanted it to be done by the Philippine
National Police (PNP) Crime Laboratory and not by the NBI. His request was, however,
denied. He also requested to be allowed to call his lawyer prior to the taking of his urine
sample, to no avail.

THE RULING OF THE RTC

The Regional Trial Court (RTC) Branch 58 of Cebu City, in its Decision [4] dated 6 June
2007, found the accused guilty beyond reasonable doubt of violating Section 15, Article
II of R.A. 9165 and sentenced him to suffer the penalty of compulsory rehabilitation for
a period of not less than six (6) months at the Cebu Center for the Ultimate
Rehabilitation of Drug Dependents located at Salinas, Lahug, Cebu City. [5]

Petitioner filed an appeal assigning as error the RTC’s validation of the result of the
urine test despite its dubiousness having been admitted in spite of the lack of legal basis
for its admission. First, he alleges that the forensic laboratory examination was
conducted despite the fact that he was not assisted by counsel, in clear violation of his
constitutional right. Secondly, he was allegedly held guilty beyond reasonable doubt
notwithstanding the lack of sufficient basis to convict him.

THE RULING OF THE CA

The CA found the appeal devoid of merit and affirmed the ruling of the RTC.

Petitioner filed a timely Motion for Reconsideration. He argued that the CA overlooked
prevailing jurisprudence, which states that drug testing conducted under circumstances
similar to his would violate a person’s right to privacy. The appellate court nevertheless
denied the motion.

Petitioner thus filed the present Petition for Review on certiorari. He assigns as errors
the use of hearsay evidence as basis for his conviction and the questionable
circumstances surrounding his arrest and drug test.

Respondent, through the Office of the Solicitor General, filed its Comment, [6] saying that
“petitioner’s arguments cannot be the subject of a petition for review
on certiorari under Rule 45, as they  involve questions of facts which may not be the
subject thereof; after his arraignment, he can no longer contest the validity of his arrest,
less so at this stage of the proceedings; his guilt has been adequately established by
direct evidence; and the manner in which the laboratory examination was conducted
was grounded on a valid and existing law.

THE ISSUE

We deem it proper to give due course to this Petition by confronting head-on the issue
of whether or not the drug test conducted upon the petitioner is legal.

OUR RULING

We declare that the drug test conducted upon petitioner is not grounded upon any
existing law or jurisprudence.

We gloss over petitioner’s non-compliance with the Resolution [7] ordering him to submit
clearly legible duplicate originals or certified true copies of the assailed Decision and
Resolution.

Petitioner was charged with use of dangerous drugs in violation of the law, the pertinent
provision of which reads:

Section 15. Use of Dangerous Drugs. – A person apprehended or arrested, who is

found to be positive for use of any dangerous drug, after a confirmatory test, shall be
imposed a penalty of a minimum of six (6) months rehabilitation in a government center
for the first offense, subject to the provisions of Article VIII of this Act. If apprehended
using any dangerous drug for the second time, he/she shall suffer the penalty of
imprisonment ranging from six (6) years and one (1) day to twelve (12) years and a fine
ranging from Fifty thousand pesos (?50,000.00) to Two hundred thousand pesos (?
200,000.00): Provided, That this Section shall not be applicable where the person tested
is also found to have in his/her possession such quantity of any dangerous drug
provided for under Section 11 of this Act, in which case the provisions stated therein
shall apply.[8]

The RTC subsequently convicted petitioner, ruling that the following elements of Section
15 were established: (1) the accused was arrested; (2) the accused was subjected to
drug test; and (3) the confirmatory test shows that he used a dangerous drug.
Disregarding petitioner’s objection regarding the admissibility of the evidence, the lower
court also reasoned that “a suspect cannot invoke his right to counsel when he is
required to extract urine because, while he is already in custody, he is not compelled to
make a statement or testimony against himself. Extracting urine from one’s body is
merely a mechanical act, hence, falling outside the concept of a custodial investigation.”

We find the ruling and reasoning of the trial court, as well as the subsequent affirmation
by the CA, erroneous on three counts.

The drug test in Section 15 does not cover

persons apprehended or arrested for any
unlawful act, but only for unlawful acts
listed under Article II of R.A. 9165.

First, “[a] person apprehended or arrested” cannot literally mean any person
apprehended or arrested for any crime. The phrase must be read in context and
understood in consonance with R.A. 9165. Section 15 comprehends persons arrested or
apprehended for unlawful acts listed under Article II of the law.

Hence, a drug test can be made upon persons who are apprehended or arrested for,
among others, the “importation,” [9] “sale, trading, administration, dispensation, delivery,
distribution and transportation”,[10] “manufacture”[11] and “possession”[12] of dangerous
drugs and/or controlled precursors and essential chemicals; possession thereof “during
parties, social gatherings or meetings”[13]; being “employees and visitors of a den, dive
or  resort”;[14] “maintenance of a den, dive or resort”; [15] “illegal chemical diversion of
controlled precursors and essential chemicals” [16]; “manufacture or delivery”[17] or
“possession”[18] of equipment, instrument, apparatus, and other paraphernalia for
dangerous drugs and/or controlled precursors and essential chemicals; possession of
dangerous drugs “during parties, social gatherings or meetings” [19]; “unnecessary”[20] or
“unlawful”[21] prescription thereof; “cultivation or culture of plants classified as
dangerous drugs or are sources thereof”; [22]and “maintenance and keeping of original
records of transactions on dangerous drugs and/or controlled precursors and essential
chemicals.”[23]To make the provision applicable to all persons arrested or apprehended
for any crime not listed under Article II is tantamount to unduly expanding its meaning.
Note that accused appellant here was arrested in the alleged act of extortion.
A charge for violation of Section 15 of R.A. 9165 is seen as expressive of the intent of the
law to rehabilitate persons apprehended or arrested for the unlawful acts enumerated
above instead of charging and convicting them of other crimes with heavier penalties.
The essence of the provision is more clearly illustrated in People v. Martinez[24]as
follows:

On a final note, this Court takes the opportunity to be instructive on Sec. 11

(Possession of Dangerous Drugs) and Sec. 15 (Use of Dangerous Drugs) of R.A. No. 9165,
with regard to the charges that are filed by law enforcers. This Court notes the practice
of law enforcers of filing charges under Sec. 11 in cases where the presence of
dangerous drugs as basis for possession is only and solely in the form of residue, being
subsumed under the last paragraph of Sec. 11.  Although not incorrect, it would be
more in keeping with the intent of the law to file charges under Sec. 15 instead in
order to rehabilitate first time offenders of drug use, provided that there is a positive
confirmatory test result as required under Sec. 15. The minimum penalty under the last
paragraph of Sec. 11 for the possession of residue is imprisonment of twelve years and
one day, while the penalty under Sec. 15 for first time offenders of drug use is a
minimum of six months rehabilitation in a government center. To file charges under Sec.
11 on the basis of residue alone would frustrate the objective of the law to rehabilitate
drug users and provide them with an opportunity to recover for a second chance at life.

In the case at bench, the presence of dangerous drugs was only in the form of residue
on the drug paraphernalia, and the accused were found positive for use of dangerous
drugs.  Granting that the arrest was legal, the evidence obtained admissible, and the
chain of custody intact, the law enforcers should have filed charges under Sec. 15, R.A.
No. 9165 or for use of dangerous drugs and, if there was no residue at all, they should
have been charged under Sec. 14 (Possession of Equipment, Instrument, Apparatus and
Other Paraphernalia for Dangerous Drugs During Parties, Social Gatherings or Meetings).
Sec. 14 provides that the maximum penalty under Sec. 12(Possession of Equipment,
Instrument, Apparatus and Other Paraphernalia for Dangerous Drugs) shall be imposed
on any person who shall possess any equipment, instrument, apparatus and other
paraphernalia for dangerous drugs. Under Sec. 12, the maximum penalty is
imprisonment of four years and a fine of P50,000.00.  In fact, under the same section,
the possession of such equipment, apparatus or other paraphernalia is prima
facie evidence that the possessor has used a dangerous drug and shall be presumed to
have violated Sec. 15.

In order to effectively fulfill the intent of the law to rehabilitate drug users, this Court
thus calls on law enforcers and prosecutors in dangerous drugs cases to exercise
proper discretion in filing charges when the presence of dangerous drugs is only and
solely in the form of residue and the confirmatory test required under Sec. 15 is
positive for use of dangerous drugs. In such cases, to afford the accused a chance to be
rehabilitated, the filing of charges for or involving possession of dangerous drugs should
only be done when another separate quantity of dangerous drugs, other than mere
residue, is found in the possession of the accused as provided for in Sec. 15. (Emphasis
supplied)

Furthermore, making the phrase “a person apprehended or arrested” in Section 15

applicable to all persons arrested or apprehended for unlawful acts, not only under R.A.
9165 but for all other crimes, is tantamount to a mandatory drug testing of all persons
apprehended or arrested for any crime. To overextend the application of this provision
would run counter to our pronouncement in Social Justice Society v. Dangerous Drugs
Board and Philippine Drug Enforcement Agency,[25]to wit:

x x x [M]andatory drug testing can never be random and suspicionless. The ideas
of randomness and being suspicionless are antithetical to their being made defendants
in a criminal complaint. They are not randomly picked; neither are they beyond
suspicion. When persons suspected of committing a crime are charged, they are singled
out and are impleaded against their will. The persons thus charged, by the bare fact of
being haled before the prosecutor’s office and peaceably submitting themselves to drug
testing, if that be the case, do not necessarily consent to the procedure, let alone waive
their right to privacy. To impose mandatory drug testing on the accused is a blatant
attempt to harness a medical test as a tool for criminal prosecution, contrary to the
stated objectives of RA 6195. Drug testing in this case would violate a person’s right to
privacy guaranteed under Sec. 2, Art. III of the Constitution. Worse still, the accused
persons are veritably forced to incriminate themselves. (Emphasis supplied)

The drug test is not covered by

allowable non-testimonial
compulsion.
We find that petitioner never raised the alleged irregularity of his arrest before his
arraignment and raises the issue only now before this tribunal; hence, he is deemed to
have waived his right to question the validity of his arrest curing whatever defect may
have attended his arrest.[26] However, “a waiver of an illegal warrantless arrest does not
mean a waiver of the inadmissibility of evidence seized during an illegal warrantless
arrest.”[27]

We are aware of the prohibition against testimonial compulsion and the allowable
exceptions to such proscription. Cases where non-testimonial compulsion has been
allowed reveal, however, that the pieces of evidence obtained were all material to the
principal cause of the arrest.

The constitutional right of an accused against self-incrimination proscribes the

use of physical or moral compulsion to extort communications from the accused and
not the inclusion of his body in evidence when it may be material. Purely mechanical
acts are not included in the prohibition as the accused does not thereby speak his guilt,
hence the assistance and guiding hand of counsel is not required. (People vs. Olvis, 238
Phil. 513 [1987]) The essence of the right against self-incrimination is testimonial
compulsion, that is, the giving of evidence against himself through a testimonial act.
(People vs. Casinillo, 213 SCRA 777 [1992]; People vs. Tranca, 235 SCRA 455 [1994];
People vs. Rondero, 378 Phil. 123 [1999]) Hence, it has been held that a woman charged
with adultery may be compelled to submit to physical examination to determine her
pregnancy; (Villaflor vs. Summers, 41 Phil. 62 [1920]) and an accused may be compelled
to submit to physical examination and to have a substance taken from his body for
medical determination as to whether he was suffering from gonorrhea which was
contracted by his victim;(U.S. vs. Tan Teng, 23 Phil. 145 [1912]) to expel morphine from
his mouth; (U.S. vs. Ong Siu Hong, 36 Phil. 735 [1917]) to have the outline of his foot
traced to determine its identity with bloody footprints; (U.S. vs. Salas, 25 Phil. 337
[1913]; U.S. vs. Zara, 42 Phil. 308 [1921]) and to be photographed or measured, or his
garments or shoes removed or replaced, or to move his body to enable the foregoing
things to be done.(People vs. Otadora, 86 Phil. 244 [1950]) [28]  (Emphasis supplied)

In the instant case, we fail to see how a urine sample could be material to the charge of
extortion. The RTC and the CA, therefore, both erred when they held that the extraction
of petitioner’s urine for purposes of drug testing was “merely a mechanical act, hence,
falling outside the concept of a custodial investigation.”
We note a case where a urine sample was considered as admissible. In Gutang v.
People,[29] the petitioner therein and his companions were arrested in connection with
the enforcement of a search warrant in his residence. A PNP-NARCOM team found and
confiscated shabu materials and paraphernalias. The petitioner and his companions in
that case were also asked to give urine samples, which yielded positive results. Later,
the petitioner therein was found guilty of the crime of illegal possession and use of
prohibited drugs. Gutang claimed that the latter’s urine sample was inadmissible in
evidence, since it was derived in effect from an uncounselled extrajudicial confession.

In the Gutang et al. case, the Court clarified that “what the Constitution prohibits is the
use of physical or moral compulsion to extort communication from the accused, but not
an inclusion of his body in evidence, when it may be material.” The situation
in Gutang was categorized as falling among the exemptions under the freedom from
testimonial compulsion since what was sought to be examined came from the body of
the accused. The Court said:

This was a mechanical act the accused was made to undergo which was not
meant to unearth undisclosed facts but to ascertain physical attributes determinable by
simple observation. In fact, the record shows that petitioner and his co-accused were
not compelled to give samples of their urine but they in fact voluntarily gave the same
when they were requested to undergo a drug test.

Assuming arguendo that the urine samples taken from the petitioner are inadmissible in
evidence, we agree with the trial court that the record is replete with other pieces of
credible evidence including the testimonial evidence of the prosecution which point to
the culpability of the petitioner for the crimes charged.

We emphasize that the circumstances in Gutang are clearly different from the

circumstances of petitioner in the instant case.  First, Gutang was arrested in relation to
a drug case. Second, he volunteered to give his urine. Third, there were other pieces of
evidence that point to his culpability for the crimes charged. In the present case,
though, petitioner was arrested for extortion; he resisted having his urine sample taken;
and finally, his urine sample was the only available evidence that was used as basis for
his conviction for the use of illegal drugs.
The drug test was a violation of
petitioner’s right to privacy and
right against self-incrimination. 

It is incontrovertible that petitioner refused to have his urine extracted and tested for
drugs. He also asked for a lawyer prior to his urine test. He was adamant in exercising
his rights, but all of his efforts proved futile, because he was still compelled to submit his
urine for drug testing under those circumstances.

The pertinent provisions in Article III of the Constitution are clear:

Section 2. The right of the people to be secure in their persons, houses, papers,
and effects against unreasonable searches and seizures of whatever nature and for any
purpose shall be inviolable, and no search warrant or warrant of arrest shall issue except
upon probable cause to be determined personally by the judge after examination under
oath or affirmation of the complainant and the witnesses he may produce, and
particularly describing the place to be searched and the persons or things to be seized.

Section 17. No person shall be compelled to be a witness against himself.

In the face of these constitutional guarantees, we cannot condone drug testing of all
arrested persons regardless of the crime or offense for which the arrest is being made .

While we express our commendation of law enforcement agents as they vigorously

track down offenders in their laudable effort to curb the pervasive and deleterious
effects of dangerous drugs on our society, they must, however, be constantly mindful of
the reasonable limits of their authority, because it is not unlikely that in their clear
intent to purge society of its lawless elements, they may be knowingly or unknowingly
transgressing the protected rights of its citizens including even members of its own
police force.

WHEREFORE, premises considered, the assailed Decision dated  22 June 2011 issued by
the Twentieth Division, and the Resolution dated   2 February 2012 issued by the former
Twentieth Division of the Court of Appeals, in CA-G.R. C.R. No. 00670 are SET ASIDE.
Petitioner is hereby ACQUITTED.
SO ORDERED.

SECOND DIVISION
[ G.R. No. 196005, October 01, 2014 ]
PEOPLE OF THE PHILIPPINES, APPELLEE, VS. CHARLIE FIELDAD,
RYAN CORNISTA, AND EDGAR PIMENTEL, APPELLANTS.

DECISION

CARPIO, ACTING C.J.:

The Case

On appeal is the Decision[1] dated 22 October 2010 of the Court of Appeals in CA-G.R.

CR-H.C. No. 03943, affirming with modification the Joint Decision[2] dated 3 November
2008 of the Regional Trial Court of Urdaneta City, Pangasinan (trial court) in Criminal
Case Nos. U-10053, U-10054, and U-10055.

The Facts

Appellants Charlie Fieldad (Fieldad), Ryan Cornista (Cornista) and Edgar Pimentel
(Pimentel) were charged in conspiracy with others for the murder of two jail guards and
for carnapping.

The Information in Criminal Case No. U-10053 reads:

The undersigned accuses JULIUS CHAN, CHARLIE FIELDAD, MIGUEL BUCCAT,

JESUS GELIDO, FLORANTE LEAL, RYAN CORNISTA, EDGAR PIMENTEL,
FEDERICO DELIM, JEFFREY ADVIENTO, GIL ESPEJO, RUBEN PASCUA, and
ELMO MEJIA of the crime of Murder with the use of unlicensed firearm committed as
follows:
That on or about March 9, 1999 in the morning inside the BJMP Compound, Anonas,
Urdaneta City, and within the jurisdiction of this Honorable Court, the above-named
accused being detention prisoners armed with an unlicensed firearm, with intent to kill,
treachery, evident premeditation and taking advantage of superior strength, conspiring
with one another did then and there wil[l]fully, unlawfully and feloniously grab, hold and
shoot with said unlicensed firearm JO2 Reynaldo Gamboa inflicting upon him multiple
fatal gunshot wounds which caused his instant death, thereafter, accused escaped from
their detention, to the damage and prejudice of the heirs of said JO2 Reynaldo Gamboa.
CONTRARY to Article 248, Revised Penal Code, as amended by R.A. 7956 and R.A.
8294.[3]

The Information in Criminal Case No. U-10054 reads:

The undersigned accuses JULIUS CHAN, CHARLIE FIELDAD, MIGUEL BUCCAT,

JESUS GELIDO, FLORANTE LEAL, RYAN CORNISTA, EDGAR PIMENTEL,
FEDERICO DELIM, JEFFREY ADVIENTO, GIL ESPEJO, RUBEN a.k.a. Joven, and
ELMO MEJIA of the crime of Murder with the use of unlicensed firearm committed as
follows:
That on or about March 9, 1999 in the morning inside the BJMP Compound, Anonas,
Urdaneta City, and within the jurisdiction of this Honorable Court, the above-named
accused being detention prisoners armed with an unlicensed firearm, with intent to kill,
treachery, evident premeditation and taking advantage of superior strength, conspiring
with one another did then and there willfully, unlawfully and feloniously shoot with said
unlicensed firearm JO1 JUAN BACOLOR, Jr. inflicting upon him multiple fatal gunshot
wounds which caused his instant death, thereafter, accused escaped from their detention,
to the damage and prejudice of the heirs of said JO1 Juan Bacolor, Jr.
CONTRARY to Article 248, Revised Penal Code, as amended by R.A. 7956 and R.A.
8294.[4]

The Information in Criminal Case No. U-10055 reads:

The undersigned accuses JULIUS CHAN, CHARLIE FIELDAD, FLORANTE LEAL,

RYAN CORNISTA, EDGAR PIMENTEL, and FEDERICO DELIM of the crime of
carnapping committed as follows:
That on or about March 9, 1999 at Brgy. Anonas, Urdaneta City and within the
jurisdiction of this Honorable Court, the above-named accused, having just escaped from
the BJMP Compound, Anonas Urdaneta, in order to expedite their escape armed with
unlicensed firearm with intent to gain, conspiring with one another, did then and there
wil[l]fully, unlawfully and feloniously take, steal, and carry away one (1) Tamaraw Jeep
with Plate No. CDY-255 belonging to Benjamin J. Bau[z]on without the latter’s
knowledge and consent, which accused used as a get away vehicle.

CONTRARY to R.A. 6539, as amended.[5]

Upon arraignment, appellants pled not guilty.

Version of the Prosecution

The prosecution presented the testimonies of Jail Officer (JO) 2 Marlon Niturada, Dr.
Constante Parayno, Dr. Ramon Gonzales, Jr., Senior Police Officer (SPO) 4 Ernesto
Ganceña, Dionisio Badua, Police Senior Inspector Philip Campti Pucay, PO3 Jimmy
Garcia, PO3 Roberto Reyes, SPO1 Joselito Sagles, Pitz Dela Cruz, PO2 Danny Torres,
Police Inspector Pamfilo Regis, Police Inspector Reyland Malenab, Theresa Bacolor,
Julie Gamboa, Benjamin Bauzon, JO1 Victor A. Sidayen, Warden Romeo Jacaban, SPO4
Cirilo Lagmay and Col. Theresa Ann B. Cid.

The prosecution established that at around 7:00 a.m. on 9 March 1999, JO2 Reynaldo
Gamboa (JO2 Gamboa), JO1 Juan Bacolor, Jr. (JO1 Bacolor) and JO2 Marlon Niturada
(JO2 Niturada) were inside the nipa hut searching area near the main gate of the district
jail. JO2 Gamboa summoned inmate Dionisio Badua (Badua). JO2 Gamboa gave Badua
the keys to the prison cells and instructed the latter to open all the cells for the routine
headcount.

Julius Chan (Chan) went to the nipa hut to ask JO2 Gamboa regarding the time of his
hearing scheduled for that day. While JO2 Gamboa and Chan were conversing, the
telephone in the administration building rang. JO2 Niturada ran from the nipa hut to the
administration building to answer the phone.

After the phone call, JO2 Niturada proceeded towards the basketball court. On his way
there, he turned his head towards the nipa hut and saw Chan place an arm on the shoulder
of JO2 Gamboa, who was seated, and shoot the latter with a short firearm. JO2 Gamboa
fell.

Meanwhile, Fieldad and Cornista grappled with JO1 Bacolor for the possession of an
armalite. Cornista struck JO1 Bacolor at the back of the head, which caused the latter to
fall down. Fieldad, armed with JO2 Gamboa’s gun, shot JO1 Bacolor twice. Florante
Leal (Leal) took the armalite from JO1 Bacolor and shot at JO2 Niturada. JO2 Niturada
returned fire with his .38 caliber handgun.

Cornista opened the main gate with keys taken from JO2 Gamboa. Twelve inmates went
out the main gate. After seeing the inmates run out, Badua padlocked the main gate and
returned to his cell.

Once outside the jail compound, Fieldad, Leal, Cornista, and Pimentel boarded a parked
Tamaraw jeep with plate number CDY-255 belonging to Benjamin Bauzon, without the
latter’s knowledge and consent. They picked up Federico Delim (Delim) and Chan along
the way. Before they reached Asingan, Pangasinan, the group alighted from the Tamaraw
jeep and transferred to a Mazda pick-up truck. When they reached San Miguel, Tarlac,
the Mazda pick-up truck turned turtle. The group abandoned the vehicle and ran towards
a cane field. Police authorities surrounded the cane field and arrested appellants and their
companions.
Dr. Constante Parayno conducted an autopsy on the body of JO1 Bacolor, and concluded
that the death was caused by shock and hemorrhage due to gunshot wound of the right
lung. Dr. Parayno also testified that based on the injuries sustained by JO1 Bacolor, it
was possible that the shooting was preceded by a fight between the shooter and the
victim.

Dr. Ramon Gonzales, Jr. conducted an autopsy on the body of JO2 Gamboa, and
concluded that the death was caused by cardiac tamponade due to the gunshot wound that
damaged the heart.

Versions of Appellants

Appellants denied any criminal liability.

Fieldad’s Testimony

At around 6:00 in the morning on 9 March 1999, JO2 Gamboa brought Fieldad out of his
cell and ordered him to clean the administrative offices. After cleaning the offices, he was
told to fix a vehicle parked inside the jail compound. He needed to prop the vehicle on a
jack, but he could not find the jack handle. He went back to JO2 Gamboa, who was in the
nipa hut with JO2 Niturada and JO1 Bacolor. JO2 Gamboa told him to look for Badua.
When he came back with Badua, JO2 Gamboa handed Badua the key of the jail
compound. Badua went out of the compound, while Fieldad continued to look for the
jack handle.

While JO2 Niturada talked to him regarding the vehicle, Fieldad noticed Elmo Mejia
(Mejia) and the other inmates playing basketball. The ball rolled towards the nipa hut and
Mejia went to retrieve it.

Then Fieldad heard gunshots from the direction of the nipa hut. JO2 Niturada got his gun
and fired towards the nipa hut. Fieldad got nervous and took cover in the outpost. He
peeped through the windows and saw Mejia pointing a firearm toward JO2 Niturada. He
hid again when he heard the exchange of fire between Mejia and JO2 Niturada. He went
out of the outpost when he heard people calling for help to push the parked vehicle. The
vehicle did not start, and the people pushing it dispersed. Intending to return to his cell,
he followed JO2 Niturada, who was proceeding towards the main building. However,
JO2 Niturada pointed a gun towards him, so Fieldad ran away and took cover.

While still inside the jail compound, Leal told Fieldad that he needed the latter to go with
him. Fieldad, along with other inmates, left the jail compound. He followed Leal to a
Tamaraw jeep parked outside. Leal pointed a long firearm toward Fieldad, and ordered
the latter to drive the vehicle. Frightened, Fieldad drove the vehicle. On their way, they
picked up Delim and Chan.
Pimentel’s Testimony

At around 7:30 in the morning of 9 March 1999, Pimentel was allowed to go out of his
cell. He proceeded to the basketball court for the headcount. He heard two or three
gunshots, but did not immediately mind it because he was used to the guards firing their
guns in the morning. When he saw Leal with an armalite, running after and shooting at
JO2 Niturada, Pimentel ran to a house outside the jail compound. He was afraid to go
back to his cell because of the exchange of fire. Inmates were running in different
directions.

Leal arrived at the place where Pimentel was hiding, and motioned to the latter by
pointing his armalite downward several times. Pimentel approached Leal, who ordered
him to remove the stone blocking the tire of the jeep parked near the house. Pimentel
obliged. Pimentel boarded the jeep because Leal told him at gun point to do so. Fieldad
drove the jeep. He did not notice who their other companions were. Along the way, they
passed a parked vehicle. Leal ordered everyone to alight from the jeep, and to board the
other vehicle. The vehicle turned turtle in Tarlac.

Cornista’s Testimony

Cornista was 17 years old on 9 March 1999. Between 6:00 and 6:45 that morning, he was
cleaning the jail compound. He was shocked and confused when he heard three rapid
gunfires followed by consecutive gunfires coming from the direction of the nipa hut. JO2
Gamboa, JO1 Bacolor, Leal and Mejia were at the nipa hut. Leal was chasing JO2
Niturada, both of them armed. Then he saw the jail guards lying down. Out of fear, he ran
towards the already opened main gate.

Cornista hid in a Tamaraw jeep parked behind the jail compound. Then he saw Leal,
Fieldad and Pimentel board the jeep. He tried to alight but Leal threatened to shoot him if
he did. Fieldad drove the Tamaraw jeep. Delim flagged the jeep down and boarded. Chan
also joined them along the way. Upon seeing a parked Mazda pick up, Leal ordered
Fieldad to stop the jeep and the inmates to transfer to the other vehicle. Fieldad also
drove the Mazda pick up until it turned turtle in Tarlac.

The Ruling of the Trial Court

The dispositive portion of the trial court’s Joint Decision reads:

WHEREFORE, in consideration of the foregoing, judgment is hereby rendered as

follows:
 1. In Criminal Case No. U-10053, accused Julius Chan, Charlie Fieldad and Ryan
Cornista are declared GUILTY beyond reasonable doubt of the crime of
MURDER and each is sentenced to suffer the penalty of RECLUSION
PERPETUA. They are also ordered to pay the heirs of the deceased the amounts
of Php75,000.00 as civil indemnity, Php50,000.00 as moral damages,
Php25,000.00 as exemplary damages, Php47,845.00 as actual damages and
Php153,028.00 for loss of earning capacity.

Accused Jesus Gelido, Edgar Pimentel, Federico Delim, Jeffrey Adviento, Miguel
Buccat and Ruben Pascua are ACQUITTED for failure of the prosecution to prove
their guilt.

2. In Criminal Case No. U-10054, accused Julius Chan, Charlie Fieldad and Ryan
Cornista are declared GUILTY beyond reasonable doubt of the crime of
MURDER and each is sentenced to suffer the penalty of RECLUSION
PERPETUA. They are also ordered to pay the heirs of the deceased the amounts
of Php75,000.00 as civil indemnity, Php50,000.00 as moral damages,
Php25,000.00 as exemplary damages, Php87,349.45 for the actual damages, and
Php178,500.00 for the loss of earning capacity.

Accused Jesus Gelido, Edgar Pimentel, Federico Delim, Jeffrey Adviento, Miguel
Buccat and Ruben Pascua are ACQUITTED for failure of the prosecution to prove
their guilt.

3. In Criminal Case No. U-10055, accused Charlie Fieldad, Edgar Pimentel and Ryan
Cornista are declared GUILTY beyond reasonable doubt of the crime of
CARNAPPING and each is sentenced to suffer imprisonment from FOURTEEN
YEARS AND EIGHT MONTHS to SIXTEEN YEARS AND TWO MONTHS,
and to pay nominal damages of Php15,000.00 and moral damages of
Php25,000.00.

For insufficiency of evidence, accused Julius Chan and Federico Delim are
ACQUITTED.

xxxx

SO ORDERED.[6]

Appeal was interposed only by Fieldad, Cornista and Pimentel since  Chan had died.
[7]
 They assigned the following errors:

I
THE COURT A QUO GRAVELY ERRED IN CONVICTING THE ACCUSED-
APPELLANTS DESPITE THE PROSECUTION’S FAILURE TO PROVE THEIR
GUILT BEYOND REASONABLE DOUBT.

II

THE COURT A QUO GRAVELY ERRED IN APPRECIATING CONSPIRACY AND

TREACHERY IN THE ALLEGED KILLINGS OF JO2 REYNALDO GAMBOA AND
JO1 JUAN BACOLOR, JR.

III

THE COURT A QUO GRAVELY ERRED IN FAILING TO APPRECIATE THE

MINORITY OF THE ACCUSED RYAN CORNISTA AT THE TIME THE ALLEGED
CRIMES WERE COMMITTED.

IV

THE COURT A QUO GRAVELY ERRED IN DISREGARDING THE ACCUSED-

APPELLANTS’ TESTIMONIES.[8]

The Ruling of the Court of Appeals

The Court of Appeals modified the decision of the trial court only with respect to the
penalties imposed upon Cornista in Criminal Case Nos. U-10053 and U-10054, taking
into account the privileged mitigating circumstance of minority. The dispositive portion
reads:

WHEREFORE, the Joint Decision of the trial court is AFFIRMED WITH

MODIFICATION as to the penalties of imprisonment imposed on Ryan Cornista in
Criminal Case Nos. U-10053 and U-10054. Accordingly the penalties of reclusion
perpetua imposed on him are reduced to eight (8) years and one (1) day of prision
mayor as minimum to fourteen (14) years, eight (8) months and one (1) day of reclusion
temporal, as maximum, per each information.

IT IS SO ORDERED.[9]

The appellate court  held that “it is manifest that Cornista acted with discernment, being
able to distinguish between right and wrong and knowing fully well the consequences of
his acts.”[10] The Court of Appeals enumerated the following acts of Cornista that clearly
establish discernment:
x x x. His act of grappling for possession of an armalite with Bacolor and hitting the
latter’s head clearly demonstrated his discernment. He took advantage of the situation
where Fieldad was also grappling with JO1 Bacolor by striking the head of JO1 Bacolor
which he obviously knew would weaken the latter’s defenses. Moreover, his act of
getting the keys from JO2 Gamboa which he used in opening the main gate clearly
demonstrates the idea of escape and thus established discernment on his part. Cornista,
having acted with discernment may not be excused from criminal liability.[11]

Fieldad, Cornista and Pimentel appealed from the Court of Appeals’ decision. In the
interim, Cornista filed a Motion to Withdraw Appeal[12] dated 15 June 2011, which the
Court granted in a Resolution[13] dated 15 August 2011. The case became final and
executory as to Cornista on 5 October 2011.[14] The instant appeal thus pertains to Fieldad
and Pimentel only.

Appellants and appellee adopted their respective briefs[15] filed before the Court of
Appeals as their supplemental briefs in this case.[16]

The Court’s Ruling

The appeal is unmeritorious.

Nature of the Killings

Fieldad argues that there can be no treachery since “the jail guards were all issued with
firearms to protect themselves from danger and to maintain peace and order within the
compound.”[17] This argument is untenable.

There is treachery when the offender commits any of the crimes against the person,
employing means, methods, or forms in the execution thereof which tend directly and
specially to insure its execution, without risk to himself arising from the defense which
the offended party might take.[18]

In People v. Escote, Jr.,[19] where an armed off-duty police officer was killed, we held:

x x x. There is treachery when the following essential elements are present, viz: (a) at the
time of the attack, the victim was not in a position to defend himself; and (b) the accused
consciously and deliberately adopted the particular means, method or form of attack
employed by him. The essence of treachery is the sudden and unexpected attack by an
aggressor on the unsuspecting victim, depriving the latter of any chance to defend himself
and thereby ensuring its commission withour risk of himself. Treachery may also be
appreciated even if the victim was warned of the danger to his life where he was
defenseless and unable to flee at the time of the infliction of the coup de grace. In the
case at bar, the victim suffered six wounds, one on the mouth, another on the right ear,
one on the shoulder, another on the right breast, one on the upper right cornea of the
sternum and one above the right iliac crest. Juan and Victor were armed with handguns.
They first disarmed SPO1 Manio, Jr. and then shot him even as he pleaded for dear life.
When the victim was shot, he was defenseless. He was shot at close range, thus insuring
his death.[20] (Boldfacing and underscoring supplied)

In the case of People v. Tabaco,[21] treachery was appreciated in the killing of three peace
officers, one of whom was armed and assigned to maintain the peace and order. They
were attending an event where many armed peace officers were present to maintain peace
and order. In that case, the victims were completely taken by surprise and had no means
of defending themselves against the sudden attack.

In the instant case, despite being armed, the jail officers were not afforded any chance of
defending themselves. Without warning, Fieldad and his cohorts disabled the defenses of
the jail officers. Chan held the shoulder of JO2 Gamboa as he shot the latter. Meanwhile,
Fieldad teamed-up with Cornista to divest JO1 Bacolor of his armalite, and to knock him
down. Then Fieldad took JO2 Gamboa’s gun and shot JO1 Bacolor.

Fieldad’s Identity was Established

According to Fieldad, since JO2 Niturada did not identify him as a participant in the
killings of JO1 Bacolor and JO2 Gamboa, his identity and complicity in the killings were
not established. However, contrary to his contention, Fieldad’s identity in Criminal Case
Nos. U-10053 and U-10054 was proven by the prosecution. Fieldad disregarded the
testimony of Badua, who categorically identified Fieldad and recounted in detail his
participation in the incident:

Q What happened when you bring (sic) water to the kubo?

A At the time when I brought water to the place where (sic) the guards used to take a bath
there were persons grappling possession of the armalite, sir.
Q With whom?
A Charlie and Cornista, sir.
Q You were told to fetch water, then you returned and brought the water to the place
where (sic) the guards used to take a bath and you saw Charlie and Cornista
grappling with whom?
A Bacolor, sir.
PROSECUTOR AMBROSIO
You are referring to Jail Guard Bacolor?
A Yes, sir.
Q Is this Charlie inside the courtroom right now?
A Yes, sir.
Q Will you please point to him, you step down?
A This one, sir. (Witness pointed (sic) and shaked (sic) hand (sic) with accused and who
when asked his name he answered Felmer Fieldad).
Q Is he the same Charlie you are referring to?
A Yes, sir.
COURT
Do you know Charlie?
A Yes, sir.
Q Is he in the courtroom?
A Yes, sir.
Q You go to him, where is Charlie there?
A This one, sir. (Witness is pointing to the accused, Charlie Fieldad).
COURT
Warden what is the name?
BJMP WARDEN JACABAN
Felmer Fieldad and the nickname is Charlie, Your Honor.
PROSECUTOR AMBROSIO
How about Cornista is he inside the courtroom?
A Yes, sir.
Q Will you please point to him?
A (The witness is pointing to one of the accused who when asked his name he answered
Ryan Cornista).
Q What happened next when you saw Charlie and Cornista grappling possession of the
armalite of Jail Guard Bacolor?
A They struck the back of the head of Bacolor, sir.
Q Who struck the back head (sic) of Bacolor?
A Cornista, sir.
Q What happened to Bacolor when Cornista struck the back of his head?
A Bacolor fell down, sir.
xxxx
Q What happened when Gamboa was shot by Julius?
A He fell down, sir.
Q What else happened when Gamboa fell down?
A They got his gun, sir.
Q Who got the gun of Gamboa?
A Charlie, sir.
COURT
What kind of firearm?
A 9 MM, sir.
PROSECUTOR AMBROSIO
What did Charlie do with the gun taken from Gamboa?
A Charlie shot Bacolor, sir.
Q How many times did Charlie shoot Bacolor?
A Two (2) times, sir.[22] (Emphasis supplied)

It is a settled rule that the evaluation of the credibility of witnesses and their testimonies
is a matter best undertaken by the trial court because of its unique opportunity to observe
the witnesses firsthand and to note their demeanor, conduct and attitude under grilling
examination.[23] Positive identification of the accused is entitled to greater weight than the
bare denial and explanation by the accused.[24]

In light of the positive testimony of Badua, Fieldad’s self-serving defense of denial and
alibi must fail. Alibi is the weakest of all defenses, as it is easy to contrive and difficult to
disprove.[25] True, the conviction of an accused must rest not on the weakness of the
defense but on the strength of the prosecution evidence. Hence, when the prosecution
evidence has firmly established the guilt of accused beyond reasonable doubt, conviction
is in order.

Sufficiency of the Prosecution Evidence

Moreover, the positive identification of Fieldad by Badua is corroborated by

circumstantial evidence. A careful examination of the record reveals that the following
evidence establish Fieldad’s active participation in the conspiracy to kill the jail guards:

1. Badua testified that Fieldad, together with Cornista, grappled with JO1 Bacolor for
the possession of the latter’s armalite gun, and JO1 Bacolor finally fell when
Cornista struck him at back of the head;[26]

2. Badua also testified that after Chan shot JO2 Gamboa, Fieldad took JO2
Gamboa’s gun and used it to shoot JO1 Bacolor;[27]

3. Dr. Constante F. Parayno, the medical doctor who conducted the autopsy on JO1
Bacolor, testified that because of the abrasions, the shooting of the victim may
have been preceded by a fight between the victim and the shooter;[28]

4. JO2 Niturada testified that he saw Fieldad confederating with Leal and Chan by
the nipa hut before heading out the main gate;[29]

5. JO Sidayen testified that he saw Fieldad with Leal, Chan and Cornista at the nipa
hut but moments before the gun shots rang;[30]

6. P/Insp. Pamfilo Regis testified that he took the paraffin casts[31] of the hands of
Fieldad;[32] and

7. Forensic chemist Theresa Ann Bugayong-Cid testified that the paraffin test done
on Fieldad’s hands was positive for the presence of gun powder nitrates, [33] as
contained in her report.[34]

In addition, Fieldad failed to controvert the paraffin evidence. We note that Fieldad’s
counsel manifested during trial that the paraffin casting was performed without the
assistance of counsel, contrary to the right of the accused. [35] However, all the exhibits
offered by the prosecution, including the paraffin casts and test results, were admitted in
the Order dated 3 March 2000.[36]

To be sure, the taking of paraffin casts does not violate the right of the accused against
self incrimination. In People v. Gamboa,[37] we held:

As to the paraffin test to which the appellant was subjected to he raises the question,
under the sixth assigned error, that it was not conducted in the presence of his lawyer.
This right is afforded to any person under investigation for the commission of an offense
whose confession or admission may not be taken unless he is informed of his right to
remain silent and to have competent and independent counsel of his own choice. His
right against self incrimination is not violated by the taking of the paraffin test of his
hands. This constitutional right extends only to testimonial compulsion and not
when the body of the accused is proposed to be examined as in this case. Indeed, the
paraffin test proved positively that he just recently fired a gun. Again, this kind of
evidence buttresses the case of the prosecution.[38] (Emphasis supplied)

Conspiracy in the Killings

A conspiracy exists when two or more persons come to an agreement concerning the
commission of a felony and decide to commit it.[39] Conspiracy can be inferred from and
established by the acts of the accused themselves when said acts point to a joint purpose
and design, concerted action and community of interest.[40] Once conspiracy is shown the
act of one is the act of all the conspirators.

Contrary to his contentions, the acts of Fieldad before, during and after the attacks on JOs
Bacolor, Jr. and Gamboa disclose his agreement with the joint purpose and design in the
commission of  the felonies. The positive testimony of Badua is corroborated by a web of
circumstantial evidence that points to no other conclusion than that Fieldad was complicit
in the conspiracy to murder the jail guards.

Penalty and Damages for Murder

Since treachery qualified the killings to murder and there being no aggravating nor
mitigating circumstances, the penalty of reclusion perpetua was properly imposed.
However, it must be stated that Fieldad is not eligible for parole pursuant to Section 3 of
Republic Act No. 9346 or the Act Prohibiting the Imposition of Death Penalty.

Consistent with prevailing jurisprudence, the trial court correctly ordered appellant to pay
to the heirs of each deceased the amounts of P75,000.00 as civil indemnity and
P50,000.00 as moral damages; however, the amount of exemplary damages must be
increased to P30,000.00.[41] Exemplary damages are recoverable due to the presence of
the qualifying aggravating circumstance of treachery in the commission of the crimes. [42]
The award of actual damages for the expenses incurred in connection with the funerals of
JO2 Gamboa and JO1 Bacolor in the amounts of P47,845.00 and P87,349.45,
respectively, are supported by receipts and are in order.

The trial court awarded the amounts of P153,028.00 and P178,500.00 to the heirs of JO2
Gamboa and JO1 Bacolor, respectively, for loss of earning capacity, applying the formula

Net earning capacity = {2/3 x [80 – age at the time of death] x [gross annual income –
reasonable and necessary living expenses]}[43]

However, instead of using the annual income, the trial court computed the net earning
capacity using the monthly income. Hence, we multiply the amounts by twelve in order to
arrive at the amounts of P1,836,336.00 for JO2 Gamboa and P2,142,000.00 for JO1
Bacolor.

Elements of Carnapping

Carnapping is the taking, with intent to gain, of a motor vehicle belonging to another
without consent, or by means of violence against or intimidation of persons, or by using
force upon things.[44] The elements of the crime of carnapping are that: (1) there is an
actual taking of the vehicle; (2) the offender intends to gain from the taking of the
vehicle; (3) the vehicle belongs to a person other than the offender himself; and (4) the
taking is without the consent of the owner thereof, or it was committed by means of
violence against or intimidation of persons, or by using force upon things.[45]

All the elements of carnapping are present in this case. Both appellants admitted that they
boarded the Tamaraw jeep and drove away in it. The owner of the vehicle, Benjamin
Bauzon, testified that he did not consent to the taking of his vehicle by appellants.

Appellants argue that the testimony of the vehicle owner, Benjamin Bauzon, cannot be
considered for being hearsay because he was merely informed that his Tamaraw jeep was
missing.

Appellants’ argument is misplaced. Bauzon had personal knowledge that when he arrived
home, his Tamaraw jeep was no longer at the place where he parked it, and that he had to
retrieve it from Bactad:

PROSECUTOR AMBROSIO
When you arrived in your house where a tamaraw jeep was parked what did you
do?
A The tamaraw is no longer there, sir.
xxxx
COURT
What is the description of your tamaraw?
A Old fashioned tamaraw, sir.
PROSECUTOR AMBROSIO
What is the color of your tamaraw jeep?
A Red, sir.
Q Plate number?
A CDY 255, sir.
Q In whose name was that tamaraw jeep registered?
A In my name, sir.
Q What did you do when you learned that your tamaraw jeep was in Bactad?
A Somebody told me that the tank was emptied so I went to buy gas and then I went
to Bactad, sir.
COURT
Did you leave the key?
A Yes, sir, at the ignition.
Q Is it visible?
A Yes, sir.
xxxx
COURT
Did you find your tamaraw jeep at Bactad?
A Yes, sir.[46] (Emphasis supplied)

As for intent to gain, we held in People v. Bustinera:[47]

Intent to gain or animus lucrandi is an internal act, presumed from the unlawful taking of
the motor vehicle. Actual gain is irrelevant as the important consideration is the intent to
gain. The term “gain” is not merely limited to pecuniary benefit but also includes the
benefit which in any other sense may be derived or expected from the act which is
performed. Thus, the mere use of the thing which was taken without the owner’s consent
constitutes gain.[48]

Defense of Uncontrollable Fear

To escape liability for the crime of carnapping, appellants claim that Leal forced them to
take the Tamaraw jeep to facilitate his flight from jail.

Under Article 12 of the Revised Penal Code, a person is exempt from criminal liability if
he acts under the impulse of an uncontrollable fear of an equal or greater injury. [49] For
such defense to prosper the duress, force, fear or intimidation must be present, imminent
and impending, and of such a nature as to induce a well-grounded apprehension of death
or serious bodily harm if the act be done.[50] A person invoking uncontrollable fear must
show that the compulsion was such that it reduced him to a mere instrument acting not
only without will but against his will as well.[51] It is necessary that the compulsion be of
such a character as to leave no opportunity to escape or self-defense in equal combat. [52]

In this case, appellants had ample opportunity to escape. In the first place, Leal was
already armed when Fieldad voluntarily followed him to the place where the Tamaraw
jeep was parked. The vehicle stopped three times: to board Delim; to board Chan; and
when they stopped to transfer vehicles. In addition, according to appellants’ testimonies,
only Leal was armed. The following discussion of the Court of Appeals is quoted with
approval:

x x x. Considering, however, that there were five of them who boarded the Tamaraw
jeep, they could have easily overpowered Leal, who was then alone, had they wanted to.
Thus, there could not have been any appreciable imminent danger to their lives. In fact,
they had every opportunity to escape individually. By not availing of this chance to
escape, accused-appellants’ allegation of fear or duress becomes untenable. [53]

To be believed, testimony must not only proceed from the mouth of a credible witness; it
must be credible in itself such as the common experience and observation of mankind can
approve as probable under the circumstance.[54] The circumstances under which
appellants participated in the commission of the carnapping would not justify in any way
their claim that they acted under an uncontrollable fear of being killed by their fellow
carnapper. Rather, the circumstances establish the fact that appellants, in their flight from
jail, consciously concurred with the other malefactors to take the Tamaraw jeep without
the consent of its owner.

Penalty and Damages for Carnapping

The penalty for carnapping is provided in Section 14 of Republic Act No. 6539:

SECTION 14. Penalty for Carnapping. — Any person who is found guilty of carnapping,
as this term is defined in Section Two of this Act, shall, irrespective of the value of motor
vehicle taken, be punished by imprisonment for not less than fourteen years and eight
months and not more than seventeen years and four months, when the carnapping
is committed without violence or intimidation of persons, or force upon things; and
by imprisonment for not less than seventeen years and four months and not more than
thirty years, when the carnapping is committed by means of violence against or
intimidation of any person, or force upon things; and the penalty of reclusion perpetua to
death shall be imposed when the owner, driver or occupant of the carnapped motor
vehicle is killed or raped in the course of the commission of the carnapping or on the
occasion thereof. (Emphasis supplied)

In this case, the imposable penalty is imprisonment for not less than fourteen years and
eight months and not more than seventeen years and four months. Under the
Indeterminate Sentence Law, as applied to an offense punishable by a special law, the
court shall sentence the accused to an indeterminate sentence expressed at a range whose
maximum term shall not exceed the maximum fixed by the special law, and the minimum
term not be less than the minimum prescribed.[55] Hence, the penalty imposed by the trial
court of imprisonment from fourteen years and eight months to sixteen years and two
months is in order.

The trial court awarded nominal damages in the amount of P15,000.00 and moral
damages in the amount of P25,000.00 to the owner of the vehicle.

No proof of pecuniary loss is necessary in order that nominal or moral damages may be
adjudicated.[56] Nominal damages are adjudicated in order that a right of the plaintiff,
which has been violated or invaded by the defendant, may be vindicated or recognized,
and not for the purpose of indemnifying the plaintiff for any loss suffered by him.
[57]
 Moral damages include physical suffering, mental anguish, fright, serious anxiety,
besmirched reputation, wounded feelings, moral shock, social humiliation, and similar
injury.[58]

The trial court’s award of nominal damages is in order. However, we delete the award of
moral damages since there was no showing that Benjamin Bauzon experienced any 
physical suffering, mental anguish, fright, serious anxiety, besmirched reputation,
wounded feelings, moral shock, social humiliation, or any similar injury.

Finally, in addition to the damages awarded in the murder cases and in the carnapping
case, we also impose on all the amounts of damages an interest at the legal rate of 6% per
annum from the date of finality of this judgment until fully paid.[59]

WHEREFORE, we DISMISS the appeal. The Decision dated 22 October 2010 of the

Court of Appeals in CA-G.R. CR-H.C. No. 03943, affirming with modification the 3
November 2008 Joint Decision of the Regional Trial Court of Urdaneta City, Pangasinan
is AFFIRMED with the following MODIFICATIONS:

1. Fieldad is sentenced to suffer the penalty of reclusion perpetua without eligibility

for parole in Criminal Case Nos. U-10053 and U-10054;

2. The award of exemplary damages in Criminal Case No. U-10053 is increased to

P30,000.00;

3. The award of exemplary damages in Criminal Case No. U-10054 is increased to

P30,000.00;

4. The amount of P153,028.00 for loss of earning capacity awarded to the heirs of
JO2 Gamboa in Criminal Case No. U-10053 is increased to P1,836,336.00;

5. The amount of P178,500.00 for loss of earning capacity awarded to the heirs of
JO1 Bacolor in Criminal Case No. U-10054 is increased to P2,142,000.00;

6. The award of moral damages in Criminal Case No. U-10055 is deleted; and
 7. Interest is imposed on all the damages awarded at the legal rate of 6% per
annum from the finality of this judgment until fully paid.

SO ORDERED.

FIRST DIVISION
[ G.R. No. 171672, February 02, 2015 ]
MARIETA DE CASTRO, PETITIONER, VS. PEOPLE OF THE
PHILIPPINES, RESPONDENT.

DECISION

BERSAMIN, J.:

The court should prescribe the correct penalties in complex crimes in strict
observance of Article 48 of the Revised Penal Code. In estafa through falsification of
commercial documents, the court should impose the penalty for the graver offense in
the maximum period. Otherwise, the penalty prescribed is invalid, and will not attain
finality.

Antecedents

The petitioner, a bank teller of the BPI Family Savings Bank (BPI Family) at its branch in
Malibay, Pasay City, appeals the affirmance of her conviction for four counts
of estafa through falsification of a commercial document committed on separate
occasions in October and November 1993 by forging the signatures of bank depositors
Amparo Matuguina and Milagrosa Cornejo in withdrawal slips, thereby enabling herself
to withdraw a total of P65,000.00 and P2,000.00 from the respective savings accounts of
Matuguina and Cornejo.

The antecedent facts were summarized in the assailed decision of the Court of Appeals
(CA),[1] as follows:
 As culled from the evidence, Matuguina and Cornejo left their savings account
passbooks with the accused within the space of a week in October – November 1993
when they went to the bank’s Malibay branch to transact on their accounts.  Matuguina,
in particular, withdrew the sum of P500 on October 29 and left her passbook with the
accused upon the latter’s instruction.  She had to return two more times before the
branch manager Cynthia Zialcita sensed that something wrong was going on.  Learning
of Matuguina’s problem, Zialcita told the accused to return the passbook to her on
November 8.  On this day, the accused came up with the convenient excuse that she
had already returned the passbook.  Skeptical, Zialcita reviewed Matuguina’s account
and found three withdrawal slips dated October 19, 29 and November 4, 1993
containing signatures radically different from the specimen signatures of the depositor
and covering a total of P65,000.  It was apparent that the accused had intervened in the
posting and verification of the slips because her initials were affixed thereto.  Zialcita
instructed her assistant manager Benjamin Misa to pay a visit to Matuguina, a move
that led to the immediate exposure of the accused.  Matuguina was aghast to see the
signatures in the slips and denied that the accused returned the passbook to her.  When
she went back to the bank worried about the unauthorized withdrawals from her
account, she met with the accused in the presence of the bank manager.  She insisted
that the signatures in the slips were not her, forcing the accused to admit that the
passbook was still with her and kept in her house.

Zialcita also summoned Juanita Ebora, the teller who posted and released the
November 4 withdrawal.  When she was asked why she processed the transaction,
Ebora readily pointed to the accused as the person who gave to her the slip.  Since she
saw the accused’s initials on it attesting to having verified the signature of the depositor,
she presumed that the withdrawal was genuine.  She posted and released the money to
the accused.

On the same day, November 8, Zialcita instructed Misa to visit another depositor,
Milagrosa Cornejo, whom they feared was also victimized by the accused.  Their worst
expectations were confirmed.  According to Cornejo, on November 3, she went to the
bank to deposit a check and because there were many people there at the time, she left
her passbook with the accused.  She returned days later to get it back, but the accused
told her that she left it at home.  Misa now showed to her a withdrawal slip dated
November 4, 1993 in which a signature purporting to be hers appeared.  Cornejo denied
that it was her signature.  As with the slips affecting Matuguina, the initials of the
accused were unquestionably affixed to the paper.

Zialcita reported her findings posthaste to her superiors.  The accused initially denied
the claims against her but when she was asked to write her statement down, she
confessed to her guilt.  She started crying and locked herself inside the bathroom.  She
came out only when another superior Fed Cortez arrived to ask her some questions. 
Since then, she executed three more statements in response to the investigation
conducted by the bank’s internal auditors.  She also gave a list of the depositors’
accounts from which she drew cash and which were listed methodically in her diary.

The employment of the accused was ultimately terminated.  The bank paid Matuguina
P65,000, while Cornejo got her refund directly from the accused.  In the course of her
testimony on the witness stand, the accused made these further admissions:

(a) She signed the withdrawal slips Exhibits B, C, D and H which contained the fake
signatures of Matuguina and Cornejo;

(b) She wrote and signed the confession letter Exhibit K;

(c) She wrote the answers to the questions of the branch cluster head Fred Cortez
Exhibit L, and to the auditors’ questions in Exhibit M, N and O;

(d) Despite demand, she did not pay the bank. [2]

Judgment of the RTC

On July 13, 1998, the Regional Trial Court in Pasay City (RTC) rendered its judgment,
[3]
 finding the petitioner guilty as charged, and sentencing her to suffer as follows:

In Criminal Case No. 94-5524, involving the withdrawal of P20,000.00 from the account of
a) Matuguina, the indeterminate sentence of two years, 11 months and 10 days of  prison
correccional, as minimum, to six years, eight months and 20 days of prision mayor, as maximum,
and to pay BPI Family P20,000.00 and the costs of suit;
In Criminal Case No. 94-5525, involving the withdrawal of P2,000.00 from Cornejo’s
b) account, the indeterminate sentence of three months of arresto mayor, as minimum, to one year
and eight months of  prision correccional,  as maximum, and to pay BPI Family P2,000.00 and the
 costs of suit;
In Criminal Case No. 94-5526, involving the withdrawal of P10,000.00 from the account of
c) Matuguina, the indeterminate sentence of four months and 20 days of  arresto mayor, as
minimum, to two years, 11 months and 10 days of prision correccional, as maximum, and to pay
BPI Family P10,000.00 and the costs of suit; and
In Criminal Case No. 94-5527, involving the withdrawal of P35,000 from Matuguina’s
d) account, the indeterminate sentence of two years, 11 months and 10 days of prision
correccional, as minimum, to eight years of  prision mayor,  as maximum, and to pay BPI Family
P35,000.00 and the costs of suit.

Decision of the CA

On appeal, the petitioner contended in the CA that: (1) her conviction should be set
aside because the evidence presented against her had been obtained in violation of her
constitutional right against self-incrimination; (2) her rights to due process and to
counsel had been infringed; and (3) the evidence against her should be inadmissible for
being obtained by illegal or unconstitutional means rendering the evidence as the fruit
of the poisonous tree.

On August 18, 2005, the CA promulgated its decision[4] affirming the judgment of the
RTC, to wit:

In summary, we find no grounds to disturb the findings of the lower court, except
the provision of the dispositive portion in case 94-5525 requiring the accused to pay BPI
Family P2,000. This must be deleted because the accused had already paid the amount
to the depositor.

IN VIEW OF THE FOREGOING, the decision appealed from is AFFIRMED, with the
modification that the award of P2,000 to the complainant in case 94-5525 be deleted.

SO ORDERED.

Issues

In this appeal, the petitioner still insists that her conviction was invalid because her
constitutional rights against self-incrimination, to due process and to counsel were
denied. In behalf of the State, the Office of the Solicitor General counters that she could
invoke her rights to remain silent and to counsel only if she had been under custodial
investigation, which she was not; and that the acts of her counsel whom she had herself
engaged to represent her and whom she had the full authority to replace at any time
were binding against her.

Ruling of the Court

The appeal lacks merit.

We first note that the petitioner has accepted the findings of fact about the transactions
that gave rise to the accusations in court against her for four counts of estafa through
falsification of a commercial document.  She raised no challenges against such findings
of fact here and in the CA, being content with limiting herself to the supposed denial of
her rights to due process and to counsel, and to the inadmissibility of the evidence
presented against her. In the CA, her main objection focused on the denial of her right
against self-incrimination and to counsel, which denial resulted, according to her, in the
invalidation of the evidence of her guilt.

Debunking the petitioner’s challenges, the CA stressed that the rights against self-
incrimination and to counsel guaranteed under the Constitution applied only during the
custodial interrogation of a suspect. In her case, she was not subjected to any
investigation by the police or other law enforcement agents. Instead, she underwent an
administrative investigation as an employee of the BPI Family Savings Bank, the
investigation being conducted by her superiors. She was not coerced to give evidence
against herself, or to admit to any crime, but she simply broke down bank when
depositors Matuguina and Cornejo confronted her about her crimes. We quote with
approval the relevant portions of the decision of the CA, viz:

The accused comes to Us on appeal to nullify her conviction on the ground that
the evidence presented against her was obtained in violation of her constitutional right
against self-incrimination.  She also contends that her rights to due process and counsel
were infringed.  Without referring to its name, she enlists one of the most famous
metaphors of constitutional law to demonize and exclude what she believes were
evidence obtained against her by illegal or unconstitutional means – evidence
constituting the fruit of the poisonous tree.  We hold, however, that in the particular
setting in which she was investigated, the revered constitutional rights of an accused to
counsel and against self-incrimination are not apposite.

The reason is elementary. These cherished rights are peculiarly rights in the context of
an official proceeding for the investigation and prosecution for crime.  The right against
self-incrimination, when applied to a criminal trial, is contained in this terse injunction
– no person shall be compelled to be a witness against himself.  In other words, he may
not be required to take the witness stand. He can sit mute throughout the proceedings.
His right to counsel is expressed in the same laconic style: he shall enjoy the right to be
heard by himself and counsel. This means inversely that the criminal prosecution cannot
proceed without having a counsel by his side. These are the traditional rights of the
accused in a criminal case. They exist and may be invoked when he faces a formal
indictment and trial for a criminal offense.  But since Miranda vs Arizona 384 US 436, the
law has come to recognize that an accused needs the same protections even before he
is brought to trial.  They arise at the very inception of the criminal process – when a
person is taken into custody to answer to a criminal offense. For what a person says or
does during custodial investigation will eventually be used as evidence against him at
the trial and, more often than not, will be the lynchpin of his eventual conviction. His
trial becomes a parody if he cannot enjoy from the start the right against self-
incrimination and to counsel. This is the logic behind what we now call as the Miranda
doctrine.

The US Supreme Court in Miranda spells out in precise words the occasion for the
exercise of the new right and the protections that it calls for. The occasion is when an
individual is subjected to police interrogation while in custody at the station or otherwise
deprived of his freedom in a significant way. It is when custodial investigation is
underway that the certain procedural safeguards takes over – the person must be
warned prior to any questioning that he has the right to remain silent, that anything he
says can be used against him in a court of law, that he has the right to the presence of
an attorney, and that if he cannot afford an attorney one will be appointed for him prior
to any questioning.

We must, therefore, be careful to note what the Miranda doctrine does not say. It was
never intended to hamper the traditional law-enforcement function to investigate crime
involving persons not under restraint.  The general questioning of citizens in the fact-
finding process, as the US Supreme Court recognizes, which is not preceded by any
restraint on the freedom of the person investigated, is not affected by the holding, since
the compelling atmosphere inherent in in-custody interrogation is not present.

The holding in Miranda is explicitly considered the source of a provision in our 1987 bill
of rights that any person under investigation for the commission of an offense shall have
the right to be informed of his right to remain silent and to have competent and
independent counsel, a provision identical in language and spirit to the earlier Section
20, Article IV of the 1973 Constitution. People vs. Caguioa 95 SCRA 2.  As we can see,
they speak of the companion rights of a person under investigation to remain silent and
to counsel, to ensure which the fruit of the poisonous tree doctrine had also to be
institutionalized by declaring that any confession or admission obtained in violation of
these rights is inadmissible.  But to what extent must the rights to remain silent and to
counsel be enforced in an investigation for the commission of an offense?  The answer
has been settled by rulings of our Supreme Court in Caguoia and in the much later case
of Navallo vs Sandiganbayan 234 SCRA 175 incorporating in toto the Miranda doctrine
into the above-cited provisions of our bill of rights.  Thus, the right to remain silent and
to counsel can be invoked only in the context in which the Miranda doctrine applies –
when the official proceeding is conducted under the coercive atmosphere of a custodial
interrogation. There are no cases extending them to a non-coercive setting. 
In Navallo, the Supreme Court said very clearly that the rights are invocable only when
the accused is under custodial investigation. A person undergoing a normal audit
examination is not under custodial investigation and, hence, the audit examiner may not
be considered the law enforcement officer contemplated by the rule.

By a fair analogy, the accused in the case before us may not be said to be under
custodial investigation. She was not even being investigated by any police or law
enforcement officer.  She was under administrative investigation by her superiors in a
private firm and in purely voluntary manner. She was not restrained of her freedom in
any manner. She was free to stay or go.  There was no evidence that she was forced or
pressured to say anything. It was an act of conscience that compelled her to speak, a
true mental and moral catharsis that religion and psychology recognize to have salutary
effects on the soul.  In this setting, the invocation of the right to remain silent or to
counsel is simply irrelevant.

The accused makes a final argument against her conviction by contending that she did
not get effective legal representation from her former counsel who was already old and
feeble when the case was being heard.  In fact, the records show, her counsel died
during the pendency of the case, an octogenarian at that. One can truly make a case
from one’s lack of a competent and independent counsel, but we are not prepared to
say that the accused was so poorly represented that it affected her fundamental right to
due process. Except for the several postponements incurred by her counsel, there is
really no showing that he committed any serious blunder during the trial. We have read
the transcripts of the trial and failed to get this impression. The evidence against the
accused was simply too overwhelming. We may take note that once, the trial court
admonished the accused to replace her counsel due to his absences, but she did not. 
She must live by that.[5]

Considering that the foregoing explanation by the CA was justly supported by the
records, and that her investigation as a bank employee by her employer did not come
under the coverage of the Constitutionally-protected right against self-incrimination,
right to counsel and right to due process, we find no reversible error committed by the
CA in affirming the conviction of the petitioner by the RTC.

The guilt of the petitioner for four counts of estafa through falsification of a commercial
document was established beyond reasonable doubt. As a bank teller, she took
advantage of the bank depositors who had trusted in her enough to leave their
passbooks with her upon her instruction. Without their knowledge, however, she filled
out withdrawal slips that she signed, and misrepresented to her fellow bank employees
that the signatures had been verified in due course. Her misrepresentation to her co-
employees enabled her to receive the amounts stated in the withdrawal slips. She
thereby committed two crimes, namely: estafa, by defrauding BPI Family Savings, her
employer, in the various sums withdrawn from the bank accounts of Matuguina and
Cornejo; and falsification of a commercial document, by forging the signatures of
Matuguina and Cornejo in the withdrawal slips to make it appear that the depositor
concerned had signed the respective slips in order to enable her to withdraw the
amounts. Such offenses were complex crimes, because the estafa would not have been
consummated without the falsification of the withdrawal slips.

Nonetheless, there is a need to clarify the penalties imposable.

According to Article 48 of the Revised Penal Code,[6] the penalty for a complex crime is
that corresponding to the most serious crime, the same to be applied in its maximum
period. Otherwise, the penalty will be void and ineffectual, and will not attain finality.

In the four criminal cases involved in this appeal, the falsification of commercial
documents is punished with prision correccional in its medium and maximum periods
(i.e., two years, four months and one day to six years) and a fine of P5,000.00.[7]  In
contrast, the estafa is punished according to the value of the defraudation, as follows:
with the penalty of prision correccional in its maximum period to prision mayor in its
minimum period (i.e., four years, two months and one day to eight years) if the amount
of the fraud is over P12,000.00 but does not exceed P22,000.00, and if such amount
exceeds P22,000.00, the penalty is imposed in the maximum period, adding one year for
each additional P10,000.00, but the total shall not exceed 20 years, in which case the
penalty shall be termed prision mayor or reclusion temporal, as the case may be, in
connection with the accessory penalties that may be imposed and for the purpose of
the other provisions of the Revised Penal Code; with the penalty of prision
correccional in its minimum and medium periods (i.e., six months and one day to four
years and two months) if the amount of the fraud is over P6,000.00 but does not exceed
P12,000.00; with the penalty of arresto mayor in its maximum period to prision
correccional in its minimum period (i.e., four months and one day to two years and four
months) if the amount of the fraud is over P200.00 but does not exceed P6,000.00; and
with the penalty of arresto mayor in its medium and maximum periods (i.e., two months
and one day to six months) if the amount of the fraud does not exceed P200.00. [8]

In Criminal Case No. 94-5524, estafa was the graver felony because  the amount of the
fraud was P20,000.00; hence, the penalty for estafa is to be imposed in its maximum
period. However, the RTC and the CA fixed the indeterminate sentence of two years, 11
months and 10 days of prison correccional, as minimum, to six years, eight months and
20 days of prision mayor, as maximum. Such maximum of the indeterminate penalty
was short by one day, the maximum period of the penalty being six years, eight
months and 21 days to eight years. Thus, the indeterminate sentence is corrected
to three years of prison correccional, as minimum, to six years, eight months and 21
days of prision mayor, as maximum.

In Criminal Case No. 94-5525, involving P2,000.00, the estafa is punished with four
months and one day of arresto mayor in its maximum period to two years and four
months of prision correccional in its minimum period. The falsification of commercial
document is penalized with prision correccional in its medium and maximum periods
(i.e., two years, four months and one day to six years) and a fine of P5,000.00.  The latter
offense is the graver felony, and its penalty is to be imposed in the maximum period,
which is from four years, nine months and 11 days to six years plus fine of P5,000.00.
The penalty next lower in degree is arresto mayor in its maximum period to  prision
correccional in its minimum period (i.e., four months and one day to two years and four
months). Thus, the indeterminate sentence of three months of arresto mayor, as
minimum, to one year and eight months of prision correccional, as maximum that both
the RTC and the CA fixed was erroneous. We rectify the error by prescribing in lieu
thereof the indeterminate sentence of two years of prision correccional, as minimum,
to four years, nine months and 11 days of prision correccional plus fine of P5,000.00,
as maximum.

In Criminal Case No. 94-5526, involving P10,000.00, the RTC and the CA imposed the
indeterminate sentence of four months and 20 days of arresto mayor, as minimum, to
two years, 11 months and 10 days of prision correccional, as maximum. However, the
penalty for the falsification of commercial documents is higher than that for the estafa.
To accord with Article 48 of the Revised Penal Code, the penalty for falsification of
commercial documents (i.e., prision correccional in its medium and maximum periods
and a fine of P5,000.00) should be imposed in the maximum period. Accordingly, we
revise the indeterminate sentence so that its minimum is two years and four months
of prision correccional, and its maximum is five years of prision correccional plus fine of
P5,000.00.

In Criminal Case No. 94-5527, where the amount of the fraud was P35,000.00, the
penalty for estafa (i.e., prision correccional in its maximum period to prision mayor in its
minimum period, or four years, two months and one day to eight years) is higher than
that for falsification of commercial documents. The indeterminate sentence of two
years, 11 months and 10 days of prision correccional, as minimum, to eight years
of prision mayor, as maximum, was prescribed.  Considering that the maximum period
ranged from six years, eight months and 21 days to eight years, the CA should have
clarified whether or not the maximum of eight years of prision mayor already included
the incremental penalty of one year for every P10,000.00 in excess of P22,000.00.
Absent the clarification, we can presume that the incremental penalty was not yet
included. Thus, in order to make the penalty clear and specific, the indeterminate
sentence is hereby fixed at four years of prision correccional, as minimum, to six years,
eight months and 21 days of prision mayor, as maximum, plus one year incremental
penalty. In other words, the maximum of the indeterminate sentence is seven years,
eight months and 21 days of prision mayor.

The CA deleted the order for the restitution of the P2,000.00 involved in Criminal Case
No. 94-5525 on the ground that such amount had already been paid to the complainant,
Milagrosa Cornejo. There being no issue as to this, the Court affirms the deletion.

The Court adds that the petitioner is liable to BPI Family for interest of 6% per annum on
the remaining unpaid sums reckoned from the finality of this judgment. This liability for
interest is only fair and just.

WHEREFORE, the Court AFFIRMS the decision promulgated by the Court of Appeals on

August 18, 2005, subject to the following MODIFICATIONS, to wit:

In Criminal Case No. 94-5524, the petitioner shall suffer the indeterminate penalty of three
1) years of prison correccional, as minimum, to six years, eight months and 21 days of prision mayor,
as maximum;
In Criminal Case No. 94-5525, the petitioner shall suffer the indeterminate penalty of two
2) years of prision correccional, as minimum, to four years, nine months and 11 days of prision
correccional plus fine of P5,000.00, as maximum;
In Criminal Case No. 94-5526, the petitioner shall suffer the indeterminate penalty of two
3) years and four months of prision correccional, as the minimum, to five years of prision
correccional plus fine of P5,000.00, as the maximum; and
In Criminal Case No. 94-5527, the petitioner shall suffer the indeterminate penalty of four
4) years of prision correccional, as minimum, to seven years, eight months and 21 days of prision
mayor, as maximum.

The Court ORDERS the petitioner to pay to BPI Family Saving  Bank interest of 6% per
annum on the aggregate amount of P65,000.00 to be reckoned from the finality of this
judgment until full payment.

The petitioner shall pay the costs of suit.

SO ORDERED.

SECOND DIVISION
[ G.R. NO. 224623, September 05, 2018 ]
PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, VERSUS
PHILIPPE MARCELO Y ANICETO AND BEBS REYES, ACCUSED,
PHILIPPE MARCELO Y ANICETO, ACCUSED-APPELLANT.

Sirs/Mesdames:

Please take notice that the Court, Second Division, issued a Resolution dated  05
September 2018  which reads as follows:

"G.R. NO. 224623 - PEOPLE OF THE PHILIPPINES,  plaintiff-appellee, versus    PHILIPPE  

MARCELO   y   ANICETO   and   BEBS   REYES, accused, PHILIPPE MARCELO y
ANICETO, accused-appellant.

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

After a careful review of the records of the case as against the applicable law and
jurisprudence, the Court finds the appeal to have no merit and that the Court of Appeals
(CA) did not commit any reversible error in the assailed Decision. [1] The facts and the
evidence presented by the prosecution support the conviction of accused-appellant
Philippe Marcelo y Aniceto (Marcelo) of the crime of Rape with Homicide. The issues
and matters raised before the Court, the same ones as those raised in the CA, there
being no supplemental briefs filed, were sufficiently addressed and correctly ruled upon
by the latter court.

Marcelo's claim that the Regional Trial Court (RTC) should have excluded the evidence
taken during the custodial investigation is bereft of merit.

The right against self-incrimination pertains to testimonial compulsion. This right, as put
by Mr. Justice Holmes in Holt v. United States, [2] is a prohibition of the use of physical or
moral compulsion, to extort communications from him. It was held early in Philippine
jurisprudence that what is prohibited by the constitutional guarantee is the use of
physical or moral compulsion to extort communication from the witness, not an
inclusion of his body in evidence, when it may be material.[3] In the case of United States
v. Tan Teng,[4] substance emitting from the body of the defendant was received as
evidence in a prosecution for acts of lasciviousness. Morphine forced out of the mouth
of the accused was received in evidence.[5] An order by the judge for the witness to put
on a pair of pants for size was allowed.[6] And since, according to the Court, the "kernel
of the privilege" was the prohibition of "testimonial compulsion," the Court was willing
to compel a woman accused of adultery to submit to the indignity of being tested for
pregnancy.[7] Similarly, the taking of pictures of an accused even without the assistance
of counsel, being a purely mechanical act, is not violation of his constitutional right
against self-incrimination.[8]

Thus, the CA correctly upheld the RTC's finding that Marcelo's right against self-
incrimination was not violated by the police in obtaining the results of his urine test,
fingerprints test and Marcelo's sandal.

In line with prevailing jurisprudence, [9] the Court increases the amount of moral
damages awarded to the heirs of AAA[10] from P75,000.00 to P100,000.00. Furthermore,
all damages as well as the civil indemnity shall be subject to interest at the legal rate of
6% per annum from the date of finality of this Resolution until fully paid.

WHEREFORE, the Court RESOLVES to ADOPT the findings of fact and conclusions of law
in the Decision dated November 19, 2014 of the Court of Appeals in CA-GR. CR-HC No.
05521. The Decision finding accused-appellant Philippe Marcelo y Aniceto guilty of Rape
with Homicide is AFFIRMED with MODIFICATIONS. The penalty imposed upon accused-
appellant Philippe Marcelo y Aniceto is hereby reduced to reclusion perpetua, without
eligibility for parole, and the amount of moral damages is increased from F75,OOO.OO
to PI00,000.00 each. The accused-appellant is further ordered to pay the civil indemnity
and all damages payable to the heirs of AAA, subject to interest at the rate of 6% per
annum from the date of finality of this Resolution until fully paid.

S
 FIRST DIVISION
[ G.R. No. 239823, September 25, 2019 ]
ANGELICA ANZIA FAJARDO, PETITIONER, V. PEOPLE OF THE
PHILIPPINES, RESPONDENT.

DECISION

PERLAS-BERNABE,* J.:

Assailed in this petition[1] for review on certiorari are the Decision[2] dated March

5, 2018 and the Resolution[3] dated April 18, 2018 of the Sandiganbayan (SB) in SB-17-
A/R-0032, which affirmed with modification the Decision [4] dated February 17, 2017 of
the Regional Trial Court of Quezon City, Branch 224 (RTC) in Crim. Case No. Q-11-
170801, finding petitioner Angelica Anzia Fajardo (Fajardo) guilty beyond reasonable
doubt of the crime of Malversation of Public Funds, defined and penalized under Article
217[5] of the Revised Penal Code (RPC), as amended, and sentencing her to suffer the
indeterminate penalty of six (6) years and one (1) day of prision mayor, as minimum, to
ten (10) years and one (1) day of prision mayor, as maximum, and to pay a fine of
P1,877,450.00 representing the amount misappropriated.

The Facts

On June 21, 2011, Fajardo was charged with Malversation of Public Funds in an
Information[6] which reads:

That on or about November 13, 2008, and sometime prior or subsequent thereto, in
Quezon City, Philippines, and within the jurisdiction of this Honorable Court, the above-
named accused, a public officer, being the Cashier V and designated OIC, Division Chief
III, Prize Payment (Teller) Division, Treasury Department of the Philippines (sic) Charity
Sweepstakes Office while in the performance of her official duties, committing the
offense in relation thereto and taking advantage of her official position, as an accountable
officer of PCSO's funds, did then and there willfully, unlawfully and feloniously
appropriate, take and/or misappropriate public funds in the following manner, to wit:
accused received Php3,000,000.00 as cash advance for the payment of sweepstakes and
lotto low-tier prizes and for the prize seed fund of the Pacific Online System Corporation
Scratch IT Project, but upon two spot audits conducted by the Internal Audit Department
of the PCSO on November 13, 2008 and on January 8, 2009, the total amount of Php
1,877,450.00 were missing, and when given several opportunities to explain the missing
funds, she cannot explain nor give proof as to the whereabouts of the funds she is
accountable for, to the damage and prejudice of public interest.

CONTRARY TO LAW.

At the time material to this case, Fajardo was the Cashier V and designated Officer-in-
Charge (OIC), Division Chief III, Prize Payment (Teller) Division, Treasury Department
of the Philippine Charity Sweepstakes Office (PCSO). As such, she exercised direct
supervision and control over paying tellers and other employees assigned in the division,
instituted procedures in actual payment of prizes, conducted periodic check-up and/or
actual count of paid winning tickets, and requisitioned cash from the Assistant
Department Manager for distribution to paying tellers.[7]

By virtue of her position, Fajardo was likewise authorized to draw a cash advance in the
amount of P3,000,000.00 (P3M), from which P2,000,000.00 (P2M) was intended as
payment of sweepstakes and lotto low-tier prizes, while P1,000,000.00 (P1M) was
devoted for the PCSO-Pacific Online Systems Corporation (POSC) Scratch IT Project. [8]

On the basis of two (2) letter-complaints from Crispina Doria, Division Chief of the Sales
Department and Gina V. Abo-Hamda of the POSC protesting the inability of the Prize
Payment Division of the Treasury Department to pay the winning Scratch IT tickets on
time, as well as the delay in the replenishment of the Teller and Provincial District
Office's prize fund, a spot cash audit on the account of Fajardo was ordered by Betsy B.
Paruginog (Paruginog), Assistant General Manager for Finance of PCSO. Thus, on
November 13, 2008, the Internal Audit Department (IAD) of the PCSO conducted a cash
examination of Fajardo's account and, after a reconciliation of all the documents, checks,
winning tickets, issuances, and vouchers against Fajardo's cash on hand, discovered that
there was a shortage of P218,461.00[9] from the total accountability of P3M. Fajardo was
furnished a copy of the certified cash count sheet reflecting the said shortage. The result
of the spot audit was then forwarded to the Legal Department of the PCSO for a fact-
finding investigation.[10]

The following day, or on November 14, 2008, Fajardo did not report for work.
Thereafter, or on November 17, 2008, after discovering that someone went to the
Treasury Department on November 16, 2008, a Sunday, and occupied Fajardo's
workstation with the lights out, Paruginog directed the audit team to seal Fajardo's vault.
[11]

Fajardo reported back to work on January 8, 2009. Mr. Mario Coral, head of the Treasury
Department, informed her that the audit team will open her vault to conduct a spot cash
count in her presence and in the presence of Paruginog, as well as representatives from
the Commission on Audit (COA) and the Treasury and Legal Departments of the PCSO.
The audit revealed a much bigger shortage in the amount of P1,877,450.00. [12] Moreover,
the audit team found that the P1,621,476.00 worth of cash and P37,513.00 worth of
checks presented during the first audit on November 13, 2008 [13] were all missing.
Thereafter, Fajardo turned over the remaining cash in the amount of P20,000.00 inside
her vault. The IAD then furnished Paruginog a copy of the Certified Cash Count Sheet
indicating the increased shortage of P1,877,450.00. [14] Thereafter, the findings were
referred to the PCSO Legal Department.[15]

On January 13, 2009, the audit team issued a demand letter to Fajardo requiring her to
return the missing funds and to explain within seventy-two (72) hours from receipt
thereof the reasons why the shortage occurred.[16]

On January 15, 2009, Fajardo wrote a reply[17] requesting for more time to explain and
expressing her willingness to settle the matter as she had no intentions of evading the
same. On January 27, 2009, Fajardo wrote another letter [18] to the PCSO Legal
Department acknowledging her mistake and admitting her liability for the missing funds
and offering to settle her accountability by waiving her monetary benefits. Eventually, the
PCSO Legal Department issued a Resolution [19] dated February 17, 2009 finding a prima
facie case against Fajardo and recommending that she be formally charged with Serious
Dishonesty, Grave Misconduct, Gross Neglect of Duty, and Conduct Prejudicial to the
Best Interest of the Service, [20] without prejudice to the filing of the present charge against
her for Malversation of Public Funds.[21]

In defense,[22] Fajardo claimed that on November 13, 2008, the audit team proceeded to
her workstation and announced that they will conduct a spot cash examination. They
counted the cash in her possession without giving her the opportunity to balance her
accounts and when all the cash items were produced, they did not include the same in the
audit. Thereafter, she was forced to sign two (2) Cash Examination Count
Sheets[23] indicating two (2) different figures, one stating a shortage in the amount of
P734,421.00[24] and the other indicating the amount of P218,461.00.[25] She did not report
for work the following day and extended her leave of absence until January 7, 2009 due
to health problems. However, she learned that during her absence, her safe and vault were
sealed by the auditors on November 17, 2008 or on the same day that a certain Ms.
Josefina Sarabia assumed her duties. Further, she contended that it was one Carlos
Lector[26] (Lector), a co-employee, who was seen in her workstation opening the vault
with the lights off and was consequently administratively charged. She claimed that the
sealing of her vault was directed in order to pass the blame on her despite the shortage
having occurred as a result of pilferage, robbery or theft.[27]

As regards her letters dated January 15 and 27, 2009, she claimed that she was merely
tricked into writing them, as she was then confused, helpless, and vulnerable after being
confronted with the audit results. Finally, she insisted that the spot cash audits were
attended with serious irregularities and that the sealing of her vault four (4) days after the
first audit did not conform with prescribed COA guidelines. She maintained that the audit
was incomplete as the auditors did not include the vale sheets, unreplenished winning
tickets and other cash items, and she was likewise not given the opportunity to balance
and close her books before the cash examination.[28]

The RTC Ruling

In a Decision[29] dated February 17, 2017, the RTC found Fajardo guilty beyond
reasonable doubt of the crime of Malversation of Public Funds, and accordingly,
sentenced her to suffer the penalty of imprisonment for an indeterminate period of
thirteen (13) years and four (4) months, as minimum, to nineteen (19) years and four (4)
months, as maximum, of reclusion temporal, with perpetual special disqualification and
to pay a fine in the sum of P1,877,450.00 representing the amount misappropriated.[30]

The RTC found that all the elements of the crime charged have been established, to wit:
(a) that the offender is a public officer; (b) that she had custody or control of the funds or
property by reason of the duties of her office; (c) that those funds or property were public
funds or property for which she was accountable; and, (d) that she appropriated, took,
misappropriated or consented or, through abandonment or negligence, permitted another
person to take them. Fajardo was a public officer, being the Cashier V and OIC, Division
Chief III, Prize Payment (Teller) Division, Treasury Department of the PC SO, and she
had custody of the cash advances in the total amount of P3M by reason of her position.
The cash advances were clearly public funds, and when a deficiency in the said amount
was discovered during the audit, which Fajardo failed to explain or account for, the RTC
concluded that she misappropriated the said funds.[31]

The RTC also found that the letter dated January 27, 2009 where Fajardo admitted to
having taken the missing funds was voluntarily written. As regards the alleged
irregularities which attended the conduct of the audit, the RTC posited that it was not the
proper forum to resolve the issue; instead, Fajardo should have brought the matter before
the appropriate government agency after the conduct of the audit. There being no direct
proof that the audit conducted was illegal, the RTC therefore deemed the same valid,
proper, and in accordance with proper audit procedure.[32]

Aggrieved, Fajardo appealed[33] to the SB.

The SB Ruling
In a Decision[34] dated March 5, 2018, the SB affirmed Fajardo's conviction, with the
modification that the penalty of imprisonment to be imposed should be for an
indeterminate period of six (6) years and one (1) day of prision mayor, as minimum, to
ten (10) years and one (1) day of prision mayor, as maximum, in accordance with the
provisions of Republic Act No. (RA) 10951,[35] particularly Section 40[36] thereof, and
taking into account the presence of the mitigating circumstance of voluntary surrender.
[37]
 Affirming the RTC, the SB found that the elements of the crime charged were
established and that Fajardo's failure to adequately explain the whereabouts of the
missing funds in order to rebut the presumption that she had misappropriated the same
was conclusive of her guilt of the crime charged.[38]

Likewise, the SB rejected Fajardo's contention that her letter dated January 27, 2009 was
involuntarily given and in violation of her rights against self-incrimination and to
counsel, as she voluntarily submitted the letter during the fact-finding investigation of the
PCSO Legal Department; therefore, the said rights do not come into play. With respect to
the alleged irregularities in the cash count and/or audit conducted by the IAD, the SB
found that Fajardo neither challenged nor questioned the manner through which the audit
was conducted; in fact, she appeared to have acknowledged the amount of the missing
funds through her letters dated January 15 and 27, 2009, which contained no objection or
reservation with respect to the regularity of the spot audits. [39] In any case, the SB found
that the IAD was able to sufficiently explain the two (2) different figures appearing on
the two (2) Cash Count Examination Sheets both dated November 13, 2008, i.e.,
P734,421.00 and P218,461.00. Ma. Theresa Chua, an auditor of the IAD, clarified that
the second Cash Examination Count Sheet[40] dated November 13, 2008 was issued after
Fajardo recalled that she issued cash to her tellers in the amount of P515,960.00, which
amount was then deducted from P734,421.00. Hence, the reduced amount of
P218,461.00.[41]

Finally, the SB rejected Fajardo's contention that the loss of the amounts of
P1,621,476.00 in cash and P37,513.00 worth of checks was due to pilferage or theft
committed by Lector, a co-employee who was found occupying Fajardo's workstation on
November 16, 2008, a Sunday. The SB held that there was no evidence showing that
Lector committed the same; besides, Fajardo does not appear to have filed a complaint
against him.[42]

Fajardo's motion for reconsideration[43] was denied in a Resolution[44] dated April 18,

2018; hence, this petition.

The Issue Before the Court

The issue for the Court's resolution is whether or not the CA correctly upheld Fajardo's
conviction for the crime charged.

The Court's Ruling

The petition is bereft of merit.

Malversation of Public Funds is defined and penalized under Article 217 of the RPC, as
amended, as follows:

Art. 217. Malversation of public funds or property — Presumption of Malversation. —

Any public officer who, by reason of the duties of his office, is accountable for public
funds or property, shall appropriate the same, or shall take or misappropriate or shall
consent, or through abandonment or neglect, shall permit any other person to take such
public funds or property, wholly or partially, or shall otherwise be guilty of
misappropriation or malversation of such funds or property x x x.

xxxx

The failure of a public officer to have duly forthcoming any public funds or property with
which he is chargeable, upon demand by any duly authorized officer, shall be prima
facie evidence that he has put such funds or property to personal uses. (Emphasis
supplied)

The elements of the crime are as follows: (a) the offender is a public officer; (b) he has
custody or control of funds or property by reason of the duties of his office; (c) the funds
or property are public funds or public property for which he was accountable; and (d) he
appropriated, took, misappropriated or consented, or through abandonment or negligence,
permitted another person to take them.[45] After a judicious perusal of the case, the Court
finds the confluence of the foregoing elements to uphold Fajardo's conviction.

As the records show, Fajardo was a public officer, being the Cashier V and OIC, Division
Chief III, Prize Payment (Teller) Division of the Treasury Department of PCSO. Her
duties as such required her to handle cash, [46] as in fact, at the time material to this case,
Fajardo was authorized to draw a cash advance in the amount of P3M intended as
payments for sweepstakes and lotto low-tier prizes and the PCSO - POSC Scratch IT
Project. By reason thereof, Fajardo had in her custody public funds in the total amount of
P3M for which she was clearly accountable.

Unfortunately, part of the said funds went missing while in her custody. After the conduct
of two (2) spot audits on her account, a total deficit in the amount of P1,877,450.00 was
discovered, which she failed to explain or produce upon demand. Her failure to account
for the said moneys thereby gave rise to the presumption that she had converted the funds
to her personal use, which presumption she failed to rebut with competent evidence.
[47]
 Accordingly, her conviction for the crime charged stands.

Fajardo insists that the SB should not have taken into consideration her letters dated
January 15 and 27, 2009, having been used in violation of her rights to counsel and
against self-incrimination. Further, she claimed that not only were the letters
involuntarily written, but she had also retracted the same in the proceedings before the
Office of the Ombudsman (Ombudsman); hence, the same should not have been used
against her.

The Court is not persuaded.

The right to counsel vis-à-vis administrative inquiries or investigations has already been

succinctly explained in Carbonel v. Civil Service Commission,[48] where the Court
declared that "a party in an administrative inquiry may or may not be assisted by
counsel":

However, it must be remembered that the right to counsel under Section 12 of the Bill of
Rights is meant to protect a suspect during custodial investigation. Thus, the exclusionary
rule under paragraph (2), Section 12 of the Bill of Rights  applies only to admissions
made in a criminal investigation but not to those made in an administrative investigation.

While investigations conducted by an administrative body may at times be akin to a

criminal proceeding, the fact remains that, under existing laws, a party in an
administrative inquiry may or may not be assisted by counsel, irrespective of the nature
of the charges and of petitioner's capacity to represent herself, and no duty rests on such
body to furnish the person being investigated with counsel. The right to counsel is not
always imperative in administrative investigations because such inquiries are conducted
merely to determine whether there are facts that merit the imposition of disciplinary
measures against erring public officers and employees, with the purpose of maintaining
the dignity of government service.[49] (Emphases and underscoring supplied)

Meanwhile, a person's right against self-incrimination is enshrined in Section 17,

[50]
 Article III of the Constitution. "The right against self-incrimination is accorded to
every person who gives evidence, whether voluntary or under compulsion of subpoena, in
any civil, criminal or administrative proceeding. The right is not to be compelled to be a
witness against himself. It secures to a witness, whether he be a party or not, the right to
refuse to answer any particular incriminatory question, i.e., one the answer to which has a
tendency to incriminate him for some crime." [51] The essence of the right against self-
incrimination is testimonial compulsion, that is, the giving of evidence against himself
through a testimonial act.[52]

"However, the right can be claimed only when the specific question, incriminatory in
character, is actually put to the witness. It cannot be claimed at any other time. It does not
give a witness the right to disregard a subpoena, decline to appear before the court at the
time appointed, or to refuse to testify altogether. The witness receiving a subpoena must
obey it, appear as required, take the stand, be sworn and answer questions. It is only when
a particular question is addressed to which may incriminate himself for some offense that
he may refuse to answer on the strength of the constitutional guaranty."[53]
With the foregoing constitutional precepts in mind, the Court finds that Fajardo's
contentions that (a) she was denied her right to counsel during the investigation
conducted by the PCSO Legal Department and (b) her letters dated January 15 and 27,
2009 were made in violation of her right against self-incrimination are grossly misplaced.
To stress, the right to counsel is not imperative in an administrative investigation.
Further, and as the SB aptly pointed out, there was no compulsion coming from the
PCSO nor any question propounded to Fajardo during the investigation that was
incriminatory in character or has a tendency to incriminate her for the crime charged;
neither has it been shown that she was in any manner compelled or forced to write the
letters dated January 15 and 17, 2009. On the contrary, the letters appear to have been
voluntarily and spontaneously written.

That petitioner subsequently retracted the said letters in her counter-affidavit before the
Ombudsman will not exculpate her. Courts look upon retractions with considerable
disfavor because they are generally unreliable,[54] as there is always the probability that it
will later be repudiated.[55] At most the retraction is an afterthought which should not be
given probative value.[56] Only when there exist special circumstances in the case which
when coupled with the retraction raise doubts as to the truth of the testimony or statement
given, can retractions be considered and upheld,[57] which does not obtain in this case.

Viewed in this light, any objections or reservations with regard to the conduct of the spot
audits conducted on Fajardo's account should have been reflected on the said letters. As it
is, Fajardo did not challenge the conduct of the audit nor did she point out any
irregularity therein. Instead, she requested for more time to respond to the allegations and
later, acknowledged her infractions and offered ways to restitute the missing amount.
Further, and as aptly pointed out [58] by the respondent People of the Philippines through
the Ombudsman, the fact that the spot audits were conducted pursuant to the IAD's
authority to do so raises the presumption of regularity in the performance of official duty.
Besides, this issue does not detract from or diminish the fact that Fajardo failed to
produce the missing funds upon demand.

Finally, Fajardo's argument that it is the prosecution, not her, who had the burden of
proving the loss of the money in the amount of P1,621,476.00 and checks worth
P37,513.00 at the time of the second spot audit on January 8, 2009 deserves little weight.
Having established that the total amount of P3M was in her custody by reason of her
public position, it was incumbent upon her to produce the same upon demand or explain
its whereabouts; failing in which, the presumption of misappropriation arises as there is
no competent evidence to rebut the same, the presumption stands and her conviction
consequently upheld.

WHEREFORE, the petition is DENIED. The Decision dated March 5, 2018 and the
Resolution dated April 18, 2018 of the Sandiganbayan in SB-17-A/R-0032 are
hereby AFFIRMED.
SO ORDERED.

[ G.R. No. L-25018, May 26, 1969 ]

ARSENIO PASCUAL, JR., PETITIONER-APPELLEE, VS. BOARD OF
MEDICAL EXAMINERS, RESPONDENT-APPELLANT, SALVADOR
GATBONTON AND ENRIQUETA GATBONTON, INTERVENORS-
APPELLANTS.

DECISION

FERNANDO, J.:

The broad, all-embracing sweep of the self-incrimination clause,  whenever appropriately

[1]

invoked, has been accorded due recognition by this Court ever since the adoption of the
Constitution.  Bermudez v. Castillo,  decided in 1937, was quite categorical.  As we
[2] [3]

there stated: "This Court is of the opinion that in order that the constitutional provision
under consideration may prove to be a real protection and not a dead letter, it must be
given a liberal and broad interpretation favorable to the person invoking it." As phrased
by Justice Laurel in his concurring opinion: "The provision, as doubtless it was designed,
would be construed with the utmost liberality in favor of the right of the individual
intended to be served." [4]

Even more relevant, considering the precise point at issue, is the recent case of Cabal
v. Kapunan,  where it was held that a respondent in an administrative proceeding under
[5]

the Anti-Graft Law  cannot be required to take the witness stand at the instance of the
[6]

complainant.  So it must be in this case, where petitioner was sustained by the lower court
in his plea that he could not be compelled to be the first witness of the complainants,
he being the party proceeded against in an administrative charge for malpractice.  That
was a correct decision; we affirm it on appeal.

Arsenio Pascual, Jr., petitioner-appellee, filed on February 1, 1965 with the Court of First
Instance of Manila an action for prohibition with prayer for preliminary injunction
against the Board of Medical Examiners, now respondent-appellant.  It was alleged
therein that at the initial hearing of an administrative case  for alleged immorality,
[7]

counsel for complainants announced that he would present as his first witness herein peti-
tioner-appellee, who was the respondent in such malpractice charge.  Thereupon,
petitioner-appellee, through counsel, made of record his objection, relying on the
constitutional right to be exempt from being a witness against himself.  Respondent-
appellant, the Board of Examiners, took note of such a plea, at the same time stating that
at the next scheduled hearing, on February 12, 1965, petitioner-appellee would be called
upon to testify as such witness, unless in the meantime he could secure a restraining order
from a competent authority.

Petitioner-appellee then alleged that in thus ruling to compel him to take the witness
stand, the Board of Examiners was guilty, at the very least, of grave abuse of discretion
for failure to respect the constitutional right against self-incrimination, the administrative
proceeding against him, which could result in forfeiture or loss of a privilege, being
quasi-criminal in character.  With his assertion that he was entitled to the relief demanded
consisting of perpetually restraining the respondent Board from compelling him to
testify as witness for his adversary and his readiness or his willingness to put a bond, he
prayed for a writ of preliminary injunction and after a hearing or trial, for a writ of
prohibition.

On February 9, 1965, the lower court ordered that a writ of preliminary injunction issue
against the respondent Board commanding it to refrain from hearing or further
proceeding with such an administrative case, to await the judicial disposition of the
matter upon petitioner-appellee posting a bond in the amount of P500.00.

The answer of respondent Board, while admitting the facts stressed that it could call
petitioner-appellee to the witness stand and interrogate him, the right against self-
incrimination being available only when a question calling for an incriminating answer is
asked of a witness.  It further elaborated the matter in the affirmative defenses interposed,
stating that petitioner-appellee's remedy is to object once he is in the witness stand, for
respondent "a plain, speedy and adequate remedy in the ordinary course of law,"
precluding the issuance of the relief sought.  Respondent Board, therefore, denied that it
acted with grave abuse of discretion.

There was a motion for intervention by Salvador Gatbonton and Enriqueta Gatbonton, the

complainants in the administrative case for malpractice against petitioner-appellee,
asking that they be allowed to file an answer as intervenors.  Such a motion was granted
and an answer in intervention was duly filed by them on March 23, 1965 sustaining the
power of respondent Board, which for them is limited to compelling the witness to take
the stand, to be distinguished, in their opinion, from the power to compel a witness to
incriminate himself.  They likewise alleged that the right against self-incrimination
cannot he availed of in an administrative hearing.

A decision was rendered by the lower court on August 2, 1965, finding the claim of
petitioner-appellee to be well-founded and prohibiting respondent Board "from
compelling the petitioner to act and testify as a witness for the complainant in said
investigation without his consent and against himself." Hence this appeal both by
respondent Board and intervenors, the Gatbonton.  As noted at the outset, we find for the
petitioner-appellee.
1.  We affirm the lower court decision on appeal as it does manifest fealty to the principle
announced by us in Cabal v. Kapunan.    In that proceeding for certiorari and prohibition
[8]

to annul an order of Judge Kapunan, it appeared that an administrative charge for

unexplained wealth having been filed against petitioner under the Anti-Graft Act,  the
[9]

complainant requested the investigating committee that petitioner be ordered to take the
witness stand, which request was granted.  Upon petitioner's refusal to be sworn as such
witness, a charge for contempt was filed against him in the sala of respondent Judge.  He
filed a motion to quash and upon its denial, he initiated this proceeding.  We found for
the petitioner in accordance with the well-settled principle that "the accused in a criminal
case may refuse, not only to answer incriminatory questions, but, also, to take the witness
stand."

It was noted in the opinion penned by the present Chief Justice that while the matter
referred to an administrative charge of unexplained wealth, with the Anti-Graft Act
authorizing the forfeiture of whatever property a public officer or employee may acquire,
manifestly out of proportion to his salary and his other lawful income, there is clearly the
imposition of a penalty.  The proceeding for forfeiture while administrative in character
thus possesses a criminal or penal aspect.  The case before us is not dissimilar; petitioner
would be similarly disadvantaged.  He could suffer not the forfeiture of property but the
revocation of his license as a medical practitioner, for some an even greater deprivation.

To the argument that Cabal v. Kapunan could thus be distinguished, it suffices to refer to

an American Supreme Court opinion highly persuasive in character.  In the language of
[10]

Justice Douglas: "We conclude * * * that the Self-Incrimination Clause of the Fifth
Amendment has been absorbed in the Fourteenth, that it extends its protection to lawyers
as well as to other individuals, and that it should not be watered down by imposing the
dishonor of disbarment and the deprivation of a livelihood as a price for asserting it." We
reiterate that such a principle is equally applicable to a proceeding that could possibly
result in the loss of the privilege to practice the medical profession.

2.  The appeal apparently proceeds on the mistaken assumption by respondent Board

and intervenors-appellants that the constitutional guarantee against self-incrimination
should be limited to allowing a witness to object to questions the answers to which could
lead to a penal liability being subsequently incurred.  It is true that one aspect of
such a right, to follow the language of another American decision,  is the protection
[11]

against "any disclosures which the witness may reasonably apprehend could be used in a
criminal prosecution or which could lead to other evidence that might be so used." If that
were all there is then it becomes diluted.

The constitutional guarantee protects as well the right to silence.  As far back as 1905, we
had occasion to declare: "The accused has a perfect right to remain silent and his silence
cannot be used as a presumption of his guilt.”  Only last year, in Chavez v. Court of
[12]

Appeals,  speaking through Justice Sanchez, we reaffirmed the doctrine anew that is the
[13]
right of a defendant "to forego testimony, to remain silent, unless he chooses to take the
witness stand - with undiluted, unfettered exercise of his own free genuine will."

Why it should be thus is not difficult to discern.  The constitutional guarantee, along with
other rights granted an accused, stands for a belief that while crime should not go
unpunished and that the truth must be revealed, such desirable objectives should not be
accomplished according to means or methods offensive to the high sense of respect
accorded the human personality.  More and more in line with the democratic creed, the
deference accorded an individual even those suspected of the most heinous crimes is
given due weight.  To quote from Chief Justice Warren, "the constitutional foundation
underlying the privilege is the respect a government * * * must accord to the dignity and
integrity of its citizens."
[14]

It is likewise of interest to note that while earlier decisions stressed the principle of
humanity on which this right is predicated, precluding as it does all resort to force or
compulsion, whether physical or mental, current judicial opinion places equal emphasis
on its identification with the right to privacy.  Thus according to Justice Douglas: "The
Fifth Amendment in its Self-Incrimination clause enables the citizen to create a zone of
privacy which government may not force to surrender to his detriment."  So also with
[15]

the observation of the late Judge Frank who spoke of "a right to a private enclave where
he may lead a private life.  That right is the hallmark of our democracy." [16]

In the light of the above, it could thus clearly appear that no possible objection could be
legitimately raised against the correctness of the decision now on appeal.  We hold that in
an administrative hearing against a medical practitioner for alleged malpractice,
respondent Board of Medical Examiners cannot, consistently with the self-incrimination
clause, compel the person proceeded against to take the witness stand without his
consent.

WHEREFORE, the decision of the lower court of August 2, 1965 is affirmed.  Without

pronouncement as to costs.

G.R. Nos. 71208-09 August 30, 1985

SATURNINA GALMAN AND REYNALDO GALMAN, petitioners,
vs.
THE HONORABLE PRESIDING JUSTICE MANUEL PAMARAN AND ASSOCIATE JUSTICES AUGUSTO
AMORES AND BIENVENIDO VERA CRUZ OF THE SANDIGANBAYAN, THE HONORABLE BERNARDO
FERNANDEZ, TANODBAYAN, GENERAL FABIAN C. VER, MAJOR GENERAL PROSPERO OLIVAS, SGT.
PABLO MARTINEZ, SGT. TOMAS FERNANDEZ, SGT. LEONARDO MOJICA SGT. PEPITO TORIO, SGT.
PROSPERO BONA AND AlC ANICETO ACUPIDO, respondents.
G.R. Nos. 71212-13 August 30, 1985
PEOPLE OF THE PHILIPPINES, represented by the TANODBAYAN (OMBUDSMAN), petitioner,
vs.
THE SANDIGANBAYAN, GENERAL FABIAN C. VER, MAJOR GEN. PROSPERO OLIVAS, SGT. PABLO
MARTINEZ, SGT. TOMAS FERNANDEZ, SGT. LEONARDO MOJICA, SGT. PEPITO TORIO, SGT. PROSPERO
BONA AND AIC ANICETO ACUPIDO, respondents.

CUEVAS, JR.,  J.:

On August 21, 1983, a crime unparalleled in repercussions and ramifications was committed
inside the premises of the Manila International Airport (MIA) in Pasay City. Former Senator Benigno S.
Aquino, Jr., an opposition stalwart who was returning to the country after a long-sojourn abroad, was
gunned down to death. The assassination rippled shock-waves throughout the entire country which
reverberated beyond the territorial confines of this Republic. The after-shocks stunned the nation even
more as this ramified to all aspects of Philippine political, economic and social life.
To determine the facts and circumstances surrounding the killing and to allow a free, unlimited
and exhaustive investigation of all aspects of the tragedy, 1 P.D. 1886 was promulgated creating an ad
hoc Fact Finding Board which later became more popularly known as the Agrava Board. 2 Pursuant to
the powers vested in it by P.D. 1886, the Board conducted public hearings wherein various witnesses
appeared and testified and/or produced documentary and other evidence either in obedience to a
subpoena or in response to an invitation issued by the Board Among the witnesses who appeared,
testified and produced evidence before the Board were the herein private respondents General Fabian
C. Ver, Major General Prospero Olivas, 3 Sgt. Pablo Martinez, Sgt. Tomas Fernandez, Sgt. Leonardo
Mojica, Sgt. Pepito Torio, Sgt. Prospero Bona and AIC Aniceto Acupido. 4
UPON termination of the investigation, two (2) reports were submitted to His Excellency,
President Ferdinand E. Marcos. One, by its Chairman, the Hon. Justice Corazon Juliano Agrava; and
another one, jointly authored by the other members of the Board — namely: Hon. Luciano Salazar, Hon.
Amado Dizon, Hon. Dante Santos and Hon. Ernesto Herrera. 'the reports were thereafter referred and
turned over to the TANODBAYAN for appropriate action. After conducting the necessary preliminary
investigation, the TANODBAYAN 5 filed with the SANDIGANBAYAN two (2) Informations for MURDER-one
for the killing of Sen. Benigno S. Aquino which was docketed as Criminal Case No. 10010 and another,
criminal Case No. 10011, for the killing of Rolando Galman, who was found dead on the airport tarmac
not far from the prostrate body of Sen. Aquino on that same fateful day. In both criminal cases, private
respondents were charged as accessories, along with several principals, and one accomplice.
Upon arraignment, all the accused, including the herein private ate Respondents pleaded NOT
GUILTY.
In the course of the joint trial of the two (2) aforementioned cases, the Prosecution represented
by the Office of the petition TANODBAYAN, marked and thereafter offered as part of its evidence, the
individual testimonies of private respondents before the Agrava Board. 6 Private respondents, through
their respective counsel objected to the admission of said exhibits. Private respondent Gen. Ver filed a
formal "Motion to Exclude Testimonies of Gen. Fabian C. Ver before the Fact Finding Board as Evidence
against him in the above-entitled cases" 7 contending that its admission will be in derogation of his
constitutional right against self-incrimination and violative of the immunity granted by P.D. 1886. He
prayed that his aforesaid testimony be rejected as evidence for the prosecution. Major Gen. Olivas and
the rest of the other private respondents likewise filed separate motions to exclude their respective
individual testimonies invoking the same ground. 8 Petitioner TANODBAYAN opposed said motions
contending that the immunity relied upon by the private respondents in support of their motions to
exclude their respective testimonies, was not available to them because of their failure to invoke their
right against self-incrimination before the ad hoc Fact Finding Board. 9 Respondent SANDIGANBAYAN
ordered the TANODBAYAN and the private respondents to submit their respective memorandum on the
issue after which said motions will be considered submitted for resolution. 10
On May 30, 1985, petitioner having no further witnesses to present and having been required to
make its offer of evidence in writing, respondent SANDIGANBAYAN, without the pending motions for
exclusion being resolved, issued a Resolution directing that by agreement of the parties, the pending
motions for exclusion and the opposition thereto, together with the memorandum in support thereof,
as well as the legal issues and arguments, raised therein are to be considered jointly in the Court's
Resolution on the prosecution's formal offer of exhibits and other documentary evidences. 11 On June 3,
1985, the prosecution made a written "Formal Offer of Evidence" which includes, among others, the
testimonies of private respondents and other evidences produced by them before the Board, all of
which have been previously marked in the course of the trial. 12
All the private respondents objected to the prosecution's formal offer of evidence on the same
ground relied upon by them in their respective motion for exclusion.
On June 13, 1985, respondent SANDIGANBAYAN issued a Resolution, now assailed in these two
(2) petitions, admitting all the evidences offered by the prosecution except the testimonies and/or other
evidence produced by the private respondents in view of the immunity granted by P.D. 1886. 13
Petitioners' motion for the reconsideration of the said Resolution having been DENIED, they now
come before Us by way of certiorari 14 praying for the amendment and/or setting aside of the challenged
Resolution on the ground that it was issued without jurisdiction and/or with grave abuse of discretion
amounting to lack of jurisdiction. Private prosecutor below, as counsel for the mother of deceased
Rolando Galman, also filed a separate petition for certiorari 15 on the same ground. Having arisen from
the same factual beginnings and raising practically Identical issues, the two (2) petitioners were
consolidated and will therefore be jointly dealt with and resolved in this Decision.
The crux of the instant controversy is the admissibility in evidence of the testimonies given by
the eight (8) private respondents who did not invoke their rights against self-incrimination before the
Agrava Board.
It is the submission of the prosecution, now represented by the petitioner TANODBAYAN, that
said testimonies are admissible against the private respondents, respectively, because of the latter's
failure to invoke before the Agrava Board the immunity granted by P.D. 1886. Since private respondents
did not invoke said privilege, the immunity did not attach. Petitioners went further by contending that
such failure to claim said constitutional privilege amounts to a waiver thereof. 16 The private
respondents, on the other hand, claim that notwithstanding failure to set up the privilege against self-
incrimination before the Agrava Board, said evidences cannot be used against them as mandated by
Section 5 of the said P.D. 1886. They contend that without the immunity provided for by the second
clause of Section 5, P.D. 1886, the legal compulsion imposed by the first clause of the same Section
would suffer from constitutional infirmity for being violative of the witness' right against self-
incrimination. 17 Thus, the protagonists are locked in horns on the effect and legal significance of failure
to set up the privilege against self-incrimination.
 The question presented before Us is a novel one. Heretofore, this Court has not been previously
called upon to rule on issues involving immunity statutes. The relative novelty of the question coupled
with the extraordinary circumstance that had precipitated the same did nothing to ease the burden of
laying down the criteria upon which this Court will henceforth build future jurisprudence on a
heretofore unexplored area of judicial inquiry. In carrying out this monumental task, however, We shall
be guided, as always, by the constitution and existing laws.
The Agrava Board, 18 came into existence in response to a popular public clamor that an
impartial and independent body, instead of any ordinary police agency, be charged with the task of
conducting the investigation. The then early distortions and exaggerations, both in foreign and local
media, relative to the probable motive behind the assassination and the person or persons responsible
for or involved in the assassination hastened its creation and heavily contributed to its early
formation. 19
Although referred to and designated as a mere Fact Finding Board, the Board is in truth and in
fact, and to all legal intents and purposes, an entity charged, not only with the function of determining
the facts and circumstances surrounding the killing, but more importantly, the determination of the
person or persons criminally responsible therefor so that they may be brought before the bar of justice.
For indeed, what good will it be to the entire nation and the more than 50 million Filipinos to know the
facts and circumstances of the killing if the culprit or culprits will nevertheless not be dealt with
criminally? This purpose is implicit from Section 12 of the said Presidential Decree, the pertinent portion
of which provides —
SECTION 12. The findings of the Board shall be made public. Should the findings warrant the
prosecution of any person, the Board may initiate the filing of proper complaint with the appropriate got
government agency. ... (Emphasis supplied)
The investigation therefor is also geared, as any other similar investigation of its sort, to the
ascertainment and/or determination of the culprit or culprits, their consequent prosecution and
ultimately, their conviction. And as safeguard, the P.D. guarantees "any person called to testify before
the Board the right to counsel at any stage of the proceedings." 20 Considering the foregoing
environmental settings, it cannot be denied that in the course of receiving evidence, persons summoned
to testify will include not merely plain witnesses but also those suspected as authors and co-participants
in the tragic killing. And when suspects are summoned and called to testify and/or produce evidence,
the situation is one where the person testifying or producing evidence is undergoing investigation for
the commission of an offense and not merely in order to shed light on the facts and surrounding
circumstances of the assassination, but more importantly, to determine the character and extent of his
participation therein.
Among this class of witnesses were the herein private respondents, suspects in the said
assassination, all of whom except Generals Ver and Olivas, were detained (under technical arrest) at the
time they were summoned and gave their testimonies before the Agrava Board. This notwithstanding,
Presidential Decree No. 1886 denied them the right to remain silent. They were compelled to testify or
be witnesses against themselves. Section 5 of P.D. 1886 leave them no choice. They have to take the
witness stand, testify or produce evidence, under pain of contempt if they failed or refused to do
so. 21 The jeopardy of being placed behind prison bars even before conviction dangled before their very
eyes. Similarly, they cannot invoke the right not to be a witness against themselves, both of which are
sacrosantly enshrined and protected by our fundamental law. 21-a Both these constitutional rights (to
remain silent and not to be compelled to be a witness against himself) were right away totally
foreclosed by P.D. 1886. And yet when they so testified and produced evidence as ordered, they were
not immune from prosecution by reason of the testimony given by them.
Of course, it may be argued is not the right to remain silent available only to a person
undergoing custodial interrogation? We find no categorical statement in the constitutional provision on
the matter which reads:
... Any person under investigation for the commission of an offense shall have the right to
remain and to counsel, and to be informed of such right. ... 22 (Emphasis supplied)
Since the effectivity of the 1973 Constitution, we now have a mass of jurisprudence  23 on this
specific portion of the subject provision. In all these cases, it has been categorically declared that a
person detained for the commission of an offense undergoing investigation has a right to be informed of
his right to remain silent, to counsel, and to an admonition that any and all statements to be given by
him may be used against him. Significantly however, there has been no pronouncement in any of these
cases nor in any other that a person similarly undergoing investigation for the commission of an offense,
if not detained, is not entitled to the constitutional admonition mandated by said Section 20, Art. IV of
the Bill of Rights.
The fact that the framers of our Constitution did not choose to use the term "custodial" by
having it inserted between the words "under" and investigation", as in fact the sentence opens with the
phrase "any person " goes to prove that they did not adopt in toto the entire fabric of the Miranda
doctrine. 24 Neither are we impressed by petitioners' contention that the use of the word "confession" in
the last sentence of said Section 20, Article 4 connotes the Idea that it applies only to police
investigation, for although the word "confession" is used, the protection covers not only "confessions"
but also "admissions" made in violation of this section. They are inadmissible against the source of the
confession or admission and against third person. 25
It is true a person in custody undergoing investigation labors under a more formidable ordeal
and graver trying conditions than one who is at liberty while being investigated. But the common
denominator in both which is sought to be avoided is the evil of extorting from the very mouth of the
person undergoing interrogation for the commission of an offense, the very evidence with which to
prosecute and thereafter convict him. This is the lamentable situation we have at hand.
All the private respondents, except Generals Ver and Olivas, are members of the military
contingent that escorted Sen. Aquino while disembarking from the plane that brought him home to
Manila on that fateful day. Being at the scene of the crime as such, they were among the first line of
suspects in the subject assassination. General Ver on the other hand, being the highest military
authority of his co-petitioners labored under the same suspicion and so with General Olivas, the first
designated investigator of the tragedy, but whom others suspected, felt and believed to have bungled
the case. The papers, especially the foreign media, and rumors from uglywagging tongues, all point to
them as having, in one way or another participated or have something to do, in the alleged conspiracy
that brought about the assassination. Could there still be any doubt then that their being asked to
testify, was to determine whether they were really conspirators and if so, the extent of their
participation in the said conspiracy? It is too taxing upon one's credulity to believe that private
respondents' being called to the witness stand was merely to elicit from them facts and circumstances
surrounding the tragedy, which was already so abundantly supplied by other ordinary witnesses who
had testified earlier. In fact, the records show that Generals Ver and Olivas were among the last
witnesses called by the Agrava Board. The subject matter dealt with and the line of questioning as
shown by the transcript of their testimonies before the Agrava Board, indubitably evinced purposes
other than merely eliciting and determining the so-called surrounding facts and circumstances of the
assassination. In the light of the examination reflected by the record, it is not far-fetched to conclude
that they were called to the stand to determine their probable involvement in the crime being
investigated. Yet they have not been informed or at the very least even warned while so testifying, even
at that particular stage of their testimonies, of their right to remain silent and that any statement given
by them may be used against them. If the investigation was conducted, say by the PC, NBI or by other
police agency, all the herein private respondents could not have been compelled to give any statement
whether incriminatory or exculpatory. Not only that. They are also entitled to be admonished of their
constitutional right to remain silent, to counsel, and be informed that any and all statements given by
them may be used against them. Did they lose their aforesaid constitutional rights simply because the
investigation was by the Agrava Board and not by any police investigator, officer or agency? True, they
continued testifying. May that be construed as a waiver of their rights to remain silent and not to be
compelled to be a witness against themselves? The answer is yes, if they have the option to do so. But in
the light of the first portion of Section 5 of P.D. 1886 and the awesome contempt power of the Board to
punish any refusal to testify or produce evidence, We are not persuaded that when they testified, they
voluntarily waived their constitutional rights not to be compelled to be a witness against themselves
much less their right to remain silent.
Compulsion as it is understood here does not necessarily connote the use of violence; it may be
the product of unintentional statements. Pressure which operates to overbear his will, disable him from
making a free and rational choice, or impair his capacity for rational judgment would in our opinion be
sufficient. So is moral coercion 'tending to force testimony from the unwilling lips of the defendant. 26
Similarly, in the case of Louis J. Lefkowitz v. Russel 27 Turley" citing Garrity vs. New Jersey" where
certain police officers summoned to an inquiry being conducted by the Attorney General involving the
fixing of traffic tickets were asked questions following a warning that if they did not answer they would
be removed from office and that anything they said might be used against them in any criminal
proceeding, and the questions were answered, the answers given cannot over their objection be later
used in their prosecutions for conspiracy. The United States Supreme Court went further in holding that:
the protection of the individuals under the Fourteenth Amendment against coerced statements
prohibits use in subsequent proceedings of statements obtained under threat or removal from office,
and that it extends to all, whether they are policemen or other members of the body politic. 385 US at
500, 17 L Ed. 562. The Court also held that in the context of threats of removal from office the act of
responding to interrogation was not voluntary and was not an effective waiver of the privilege against
self- incrimination.
To buttress their precarious stand and breathe life into a seemingly hopeless cause, petitioners
and amicus curiae (Ex-Senator Ambrosio Padilla) assert that the "right not to be compelled to be a
witness against himself" applies only in favor of an accused in a criminal case. Hence, it may not be
invoked by any of the herein private respondents before the Agrava Board. The Cabal vs.
Kapunan 28 doctrine militates very heavily against this theory. Said case is not a criminal case as its title
very clearly indicates. It is not People vs. Cabal nor a prosecution for a criminal offense. And yet, when
Cabal refused to take the stand, to be sworn and to testify upon being called as a witness for
complainant Col. Maristela in a forfeiture of illegally acquired assets, this Court sustained Cabal's plea
that for him to be compelled to testify will be in violation of his right against self- incrimination. We did
not therein state that since he is not an accused and the case is not a criminal case, Cabal cannot refuse
to take the witness stand and testify, and that he can invoke his right against self-incrimination only
when a question which tends to elicit an answer that will incriminate him is profounded to him. Clearly
then, it is not the character of the suit involved but the nature of the proceedings that controls. The
privilege has consistently been held to extend to all proceedings sanctioned by law and to all cases in
which punishment is sought to be visited upon a witness, whether a party or not.  29 If in a mere
forfeiture case where only property rights were involved, "the right not to be compelled to be a witness
against himself" is secured in favor of the defendant, then with more reason it cannot be denied to a
person facing investigation before a Fact Finding Board where his life and liberty, by reason of the
statements to be given by him, hang on the balance. Further enlightenment on the subject can be found
in the historical background of this constitutional provision against self- incrimination. The privilege
against self- incrimination is guaranteed in the Fifth Amendment to the Federal Constitution. In the
Philippines, the same principle obtains as a direct result of American influence. At first, the provision in
our organic laws were similar to the Constitution of the United States and was as follows:
That no person shall be ... compelled in a criminal case to be a witness against himself. 30
As now worded, Section 20 of Article IV reads:
No person shall be compelled to be a witness against himself.
The deletion of the phrase "in a criminal case" connotes no other import except to make said
provision also applicable to cases other than criminal. Decidedly then, the right "not to be compelled to
testify against himself" applies to the herein private respondents notwithstanding that the proceedings
before the Agrava Board is not, in its strictest sense, a criminal case
No doubt, the private respondents were not merely denied the afore-discussed sacred
constitutional rights, but also the right to "due process" which is fundamental fairness. 31 Quoting the
highly-respected eminent constitutionalist that once graced this Court, the former Chief Justice Enrique
M. Fernando, due process —
... is responsiveness to the supremacy of reason, obedience to the dictates of justice. Negatively
put, arbitrariness is ruled out and unfairness avoided. To satisfy the due process requirement, official
action, to paraphrase Cardozo, must not outrun the bounds of reason and result in sheer oppression.
Due process is thus hostile to any official action marred by lack of reasonableness. Correctly, it has been
Identified as freedom from arbitrariness. It is the embodiment of the sporting Idea of fair
play  (Frankfurter, Mr. Justice Holmes and the Supreme Court, 1983, pp. 32-33). It exacts fealty "to those
strivings for justice and judges the act of officialdom of whatever branch "in the light of reason drawn
from considerations of fairness that reflect (democratic) traditions of legal and political
thought." (Frankfurter, Hannah v. Larche 1960, 363 US 20, at 487). It is not a narrow or '"echnical
conception with fixed content unrelated to time, place and circumstances."(Cafeteria Workers v. McElroy
1961, 367 US 1230) Decisions based on such a clause requiring a 'close and perceptive inquiry into
fundamental principles of our society. (Bartkus vs. Illinois, 1959, 359 US 121). Questions of due process
are not to be treated narrowly or pedantically in slavery to form or phrases. (Pearson v. McGraw, 1939,
308 US 313).
Our review of the pleadings and their annexes, together with the oral arguments,
manifestations and admissions of both counsel, failed to reveal adherence to and compliance with due
process. The manner in which the testimonies were taken from private respondents fall short of the
constitutional standards both under the DUE PROCESS CLAUSE and under the EXCLUSIONARY RULE in
Section 20, Article IV. In the face of such grave constitutional infirmities, the individual testimonies of
private respondents cannot be admitted against them in ally criminal proceeding. This is true regardless
of absence of claim of constitutional privilege or of the presence of a grant of immunity by law.
Nevertheless, We shall rule on the effect of such absence of claim to the availability to private
respondents of the immunity provided for in Section 5, P.D. 1886 which issue was squarely raised and
extensively discussed in the pleadings and oral arguments of the parties.
Immunity statutes may be generally classified into two: one, which grants "use immunity"; and
the other, which grants what is known as "transactional immunity." The distinction between the two is
as follows: "Use immunity" prohibits use of witness' compelled testimony and its fruits in any manner in
connection with the criminal prosecution of the witness. On the other hand, "transactional immunity"
grants immunity to the witness from prosecution for an offense to which his compelled testimony
relates." 32 Examining Presidential Decree 1886, more specifically Section 5 thereof, which reads:
SEC. 5. No person shall be excused from attending and testifying or from producing books,
records, correspondence, documents, or other evidence in obedience to a subpoena issued by the Board
on the ground that his testimony or the evidence required of him may tend to incriminate him or subject
him to penalty or forfeiture; but his testimony or any evidence produced by him shall not be used
against him in connection with any transaction, matter or thing concerning which he is compelled, after
having invoked his privilege against self-incrimination, to testify or produce evidence, except that such
individual so testifying shall not be exempt from prosecution and punishment for perjury committed in
so testifying, nor shall he be exempt from demotion or removal from office. (Emphasis supplied)
it is beyond dispute that said law belongs to the first type of immunity statutes. It grants merely
immunity from use of any statement given before the Board, but not immunity from prosecution by
reason or on the basis thereof. Merely testifying and/or producing evidence do not render the witness
immuned from prosecution notwithstanding his invocation of the right against self- incrimination. He is
merely saved from the use against him of such statement and nothing more. Stated otherwise ... he still
runs the risk of being prosecuted even if he sets up his right against self- incrimination. The dictates of
fair play, which is the hallmark of due process, demands that private respondents should have been
informed of their rights to remain silent and warned that any and all statements to be given by them
may be used against them. This, they were denied, under the pretense that they are not entitled to it
and that the Board has no obligation to so inform them.
It is for this reason that we cannot subscribe to the view adopted and urged upon Us by the
petitioners that the right against self-incrimination must be invoked before the Board in order to
prevent use of any given statement against the testifying witness in a subsequent criminal prosecution.
A literal interpretation fashioned upon Us is repugnant to Article IV, Section 20 of the Constitution,
which is the first test of admissibility. It reads:
 No person shall be compelled to be a witness against himself. Any person under investigation
for the commission of an offense shall have the right to remain silent and to counsel, and to be informed
of such right. No force, violence, threat, intimidation, or any other means which vitiates the free will
shall be used against him. Any confession obtained in violation of this section shall be inadmissible in
evidence. (Emphasis supplied)
The aforequoted provision renders inadmissible any confession obtained in violation thereof. As
herein earlier discussed, this exclusionary rule applies not only to confessions but also to
admissions, 33 whether made by a witness in any proceeding or by an accused in a criminal proceeding or
any person under investigation for the commission of an offense. Any interpretation of a statute which
will give it a meaning in conflict with the Constitution must be avoided. So much so that if two or more
constructions or interpretations could possibly be resorted to, then that one which will avoid
unconstitutionality must be adopted even though it may be necessary for this purpose to disregard the
more usual and apparent import of the language used. 34 To save the statute from a declaration of
unconstitutionality it must be given a reasonable construction that will bring it within the fundamental
law. 35 Apparent conflict between two clauses should be harmonized. 36
But a literal application of a requirement of a claim of the privilege against self- incrimination as
a condition sine qua non to the grant of immunity presupposes that from a layman's point of view, he
has the option to refuse to answer questions and therefore, to make such claim. P.D. 1886, however,
forecloses such option of refusal by imposing sanctions upon its exercise, thus:
SEC. 4. The Board may hold any person in direct or indirect contempt, and impose appropriate
penalties therefor. A person guilty of .... including ... refusal to be sworn or to answer as a witness or to
subscribe to an affidavit or deposition when lawfully required to do so may be summarily adjudged in
direct contempt by the Board. ...
Such threat of punishment for making a claim of the privilege leaves the witness no choice but
to answer and thereby forfeit the immunity purportedly granted by Sec. 5. The absurdity of such
application is apparent Sec. 5 requires a claim which it, however, forecloses under threat of contempt
proceedings against anyone who makes such claim. But the strong testimonial compulsion imposed by
Section 5 of P.D. 1886 viewed in the light of the sanctions provided in Section 4,infringes upon the
witness' right against self-incrimination. As a rule, such infringement of the constitutional right renders
inoperative the testimonial compulsion, meaning, the witness cannot be compelled to answer UNLESS a
co-extensive protection in the form of IMMUNITY is offered. 37 Hence, under the oppressive compulsion
of P.D. 1886, immunity must in fact be offered to the witness before he can be required to answer, so as
to safeguard his sacred constitutional right. But in this case, the compulsion has already produced its
desired results the private respondents had all testified without offer of immunity. Their constitutional
rights are therefore, in jeopardy. The only way to cure the law of its unconstitutional effects is to
construe it in the manner as if IMMUNITY had in fact been offered. We hold, therefore, that in view of
the potent sanctions imposed on the refusal to testify or to answer questions under Sec. 4 of P.D. 1886,
the testimonies compelled thereby are deemed immunized under Section 5 of the same law. The
applicability of the immunity granted by P.D. 1886 cannot be made to depend on a claim of the privilege
against self-incrimination which the same law practically strips away from the witness.
With the stand we take on the issue before Us, and considering the temper of the times, we run
the risk of being consigned to unpopularity. Conscious as we are of, but undaunted by, the frightening
consequences that hover before Us, we have strictly adhered to the Constitution in upholding the rule of
law finding solace in the view very aptly articulated by that well-known civil libertarian and admired
defender of human rights of this Court, Mr. Justice Claudio Teehankee, in the case of  People vs.
Manalang 38 and we quote:
I am completely conscious of the need for a balancing of the interests of society with the rights
and freedoms of the individuals. I have advocated the balancing-of-interests rule in an situations which
call for an appraisal of the interplay of conflicting interests of consequential dimensions. But I reject any
proposition that would blindly uphold the interests of society at the sacrifice of the dignity of any human
being. (Emphasis supplied)
Lest we be misunderstood, let it be known that we are not by this disposition passing upon the
guilt or innocence of the herein private respondents an issue which is before the Sandiganbayan. We are
merely resolving a question of law and the pronouncement herein made applies to all similarly situated,
irrespective of one's rank and status in society.
IN VIEW OF THE FOREGOING CONSIDERATIONS and finding the instant petitions without merit,
same are DISMISSED. No pronouncement as to costs.
SO ORDERED.

FIRST DIVISION

G.R. No. 85215 July 7, 1989

THE PEOPLE OF THE PHILIPPINES, petitioner,

vs.
HON. JUDGE RUBEN AYSON, Presiding over Branch 6, Regional Trial Court, First Judicial
Region, Baguio City, and FELIPE RAMOS, respondents.

Nelson Lidua for private respondent.

NARVASA, J.:

What has given rise to the controversy at bar is the equation by the respondent Judge of the right of
an individual not to "be compelled to be a witness against himself" accorded by Section 20, Article III
of the Constitution, with the right of any person "under investigation for the commission of an offense
. . . to remain silent and to counsel, and to be informed of such right," granted by the same provision.
The relevant facts are not disputed.

Private respondent Felipe Ramos was a ticket freight clerk of the Philippine Airlines (PAL), assigned
at its Baguio City station. It having allegedly come to light that he was involved in irregularities in the
sales of plane tickets,   the PAL management notified him of an investigation to be conducted into
1

the matter of February 9, 1986. That investigation was scheduled in accordance with PAL's Code of
Conduct and Discipline, and the Collective Bargaining Agreement signed by it with the Philippine
Airlines Employees' Association (PALEA) to which Ramos pertained. 2

On the day before the investigation, February 8,1986, Ramos gave to his superiors a handwritten
notes   reading as follows:
3
 2-8-86

TO WHOM IT MAY CONCERN:

THE UNDERSIGNED WOULD LIKE TO STATE THAT HE IS WILLING TO SETTLE

IRREGULARITIES ALLEGEDLY CHARGED VS. HIM IN THE AMT. OF P 76,000
(APPROX.) SUBJECT TO CONDITIONS AS MAY BE IMPOSED BY PAL ON OR
BEFORE 1700/9 FEB 86.

(s)
Felipe
Ramos

(Printed
) F.
Ramos

At the investigation of February 9, 1986, conducted by the PAL Branch Manager in Baguio City,
Edgardo R. Cruz, in the presence of Station Agent Antonio Ocampo, Ticket Freight Clerk Rodolfo
Quitasol, and PALEA Shop Steward Cristeta Domingo, Felipe Ramos was informed "of the finding of
the Audit Team." Thereafter, his answers in response to questions by Cruz, were taken down in
writing. Ramos' answers were to the effect inter alia that he had not indeed made disclosure of the
tickets mentioned in the Audit Team's findings, that the proceeds had been "misused" by him, that
although he had planned on paying back the money, he had been prevented from doing so,
"perhaps (by) shame," that he was still willing to settle his obligation, and proferred a "compromise x
x to pay on staggered basis, (and) the amount would be known in the next investigation;" that he
desired the next investigation to be at the same place, "Baguio CTO," and that he should be
represented therein by "Shop stewardees ITR Nieves Blanco;" and that he was willing to sign his
statement (as he in fact afterwards did).   How the investigation turned out is not dealt with the
4

parties at all; but it would seem that no compromise agreement was reached much less
consummated.

About two (2) months later, an information was filed against Felipe Ramos charging him with the
crime of estafa allegedly committed in Baguio City during the period from March 12, 1986 to January
29, 1987. In that place and during that time, according to the indictment,   he (Ramos) —
5

.. with unfaithfulness and/or abuse of confidence, did then and there willfully ...
defraud the Philippine Airlines, Inc., Baguio Branch, ... in the following manner, to wit:
said accused ... having been entrusted with and received in trust fare tickets of
passengers for one-way trip and round-trip in the total amount of P76,700.65, with
the express obligation to remit all the proceeds of the sale, account for it and/or to
return those unsold, ... once in possession thereof and instead of complying with his
obligation, with intent to defraud, did then and there ... misappropriate, misapply and
convert the value of the tickets in the sum of P76,700.65 and in spite of repeated
demands, ... failed and refused to make good his obligation, to the damage and
prejudice of the offended party .. .

On arraignment on this charge, Felipe Ramos entered a plea of "Not Guilty," and trial thereafter
ensued. The prosecution of the case was undertaken by lawyers of PAL under the direction and
supervision of the Fiscal.
At the close of the people's case, the private prosecutors made a written offer of evidence dated
June 21, 1988,  which included "the (above mentioned) statement of accused Felipe J. Ramos taken
6

on February 9, 1986 at PAL Baguio City Ticket Office," which had been marked as Exhibit A, as well
as his "handwritten admission x x given on February 8, 1986," also above referred to, which had
been marked as Exhibit K.

The defendant's attorneys filed "Objections/Comments to Plaintiff s Evidence."  Particularly as

7

regards the peoples' Exhibit A, the objection was that "said document, which appears to be a
confession, was taken without the accused being represented by a lawyer." Exhibit K was objected
to "for the same reasons interposed under Exhibits 'A' and 'J.'

By Order dated August 9, 1988,   the respondent judge admitted all the exhibits "as part of the
8

testimony of the witnesses who testified in connection therewith and for whatever they are worth,"
except Exhibits A and K, which it rejected. His Honor declared Exhibit A "inadmissible in evidence, it
appearing that it is the statement of accused Felipe Ramos taken on February 9, 1986 at PAL
Baguio City Ticket Office, in an investigation conducted by the Branch Manager x x since it does not
appear that the accused was reminded of this constitutional rights to remain silent and to have
counsel, and that when he waived the same and gave his statement, it was with the assistance
actually of a counsel." He also declared inadmissible "Exhibit K, the handwritten admission made by
accused Felipe J. Ramos, given on February 8, 1986 x x for the same reason stated in the exclusion
of Exhibit 'A' since it does not appear that the accused was assisted by counsel when he made said
admission."

The private prosecutors filed a motion for reconsideration.   It was denied, by Order dated
9

September 14, 1988.   In justification of said Order, respondent Judge invoked this Court's rulings
10

in Morales, Jr. v. Juan Ponce Enrile, et al., 121 SCRA 538, People v. Galit, 135 SCRA 467, People.
v. Sison, 142 SCRA 219, and People v. Decierdo, 149 SCRA 496, among others, to the effect that
"in custodial investigations the right to counsel may be waived but the waiver shall not be valid
unless made with the assistance of counsel," and the explicit precept in the present Constitution that
the rights in custodial investigation "cannot be waived except in writing and in the presence of
counsel." He pointed out that the investigation of Felipe Ramos at the PAL Baguio Station was one
"for the offense of allegedly misappropriating the proceeds of the tickets issued to him' and therefore
clearly fell "within the coverage of the constitutional provisions;" and the fact that Ramos was not
detained at the time, or the investigation was administrative in character could not operate to except
the case "from the ambit of the constitutional provision cited."

These Orders, of August 9, 1988 and September 14, 1988 are now assailed in the petition for
certiorari and prohibition at bar, filed in this Court by the private prosecutors in the name of the
People of the Philippines. By Resolution dated October 26, 1988, the Court required Judge Ayson
and Felipe Ramos to comment on the petition, and directed issuance of a "TEMPORARY
RESTRAINING ORDER . . . ENJOINING the respondents from proceeding further with the trial
and/or hearing of Criminal Case No. 3488-R (People ... vs. Felipe Ramos), including the issuance of
any order, decision or judgment in the aforesaid case or on any matter in relation to the same case,
now pending before the Regional Trial Court of Baguio City, Br. 6, First Judicial Region." The Court
also subsequently required the Solicitor General to comment on the petition. The comments of
Judge Ayson, Felipe Ramos, and the Solicitor General have all been filed. The Solicitor General has
made common cause with the petitioner and prays "that the petition be given due course and
thereafter judgment be rendered setting aside respondent Judge's Orders . . . and ordering him to
admit Exhibits 'A' and 'K' of the prosecution." The Solicitor General has thereby removed whatever
impropriety might have attended the institution of the instant action in the name of the People of the
Philippines by lawyers de parte of the offended party in the criminal action in question.
The Court deems that there has been full ventilation of the issue — of whether or not it was grave
abuse of discretion for respondent Judge to have excluded the People's Exhibits A and K. It will now
proceed to resolve it.

At the core of the controversy is Section 20, Article IV of the 1973 Constitution,   to which
11

respondent Judge has given a construction that is disputed by the People. The section reads as
follows:

SEC. 20. No person shall be compelled to be a witness against himself Any person
under investigation for the commission of an offense shall have the right to remain
silent and to counsel, and to be informed of such right. No force, violence, threat,
intimidation, or any other means which vitiates the free will shall be used against him.
Any confession obtained in violation of this section shall be inadmissible in evidence.

It should at once be apparent that there are two (2) rights, or sets of rights, dealt with in the section,
namely:

1) the right against self-incrimination — i.e., the right of a person not to be compelled
to be a witness against himself — set out in the first sentence, which is a verbatim
reproduction of Section 18, Article III of the 1935 Constitution, and is similar to that
accorded by the Fifth Amendment of the American Constitution,   and 12

2) the rights of a person in custodial interrogation, i.e., the rights of every suspect
"under investigation for the commission of an offense."

Parenthetically, the 1987 Constitution indicates much more clearly the individuality and
disparateness of these rights. It has placed the rights in separate sections. The right against self-
incrimination, "No person shall be compelled to be a witness against himself," is now embodied in
Section 17, Article III of the 1987 Constitution. The lights of a person in custodial interrogation, which
have been made more explicit, are now contained in Section 12 of the same Article III. 13

Right Against Self-Incrimination

The first right, against self-incrimination, mentioned in Section 20, Article IV of the 1973 Constitution,
is accorded to every person who gives evidence, whether voluntarily or under compulsion of
subpoena, in any civil, criminal, or administrative proceeding.   The right is NOT to "be compelled to
14

be a witness against himself"

The precept set out in that first sentence has a settled meaning.   It prescribes an "option of refusal
15

to answer incriminating questions and not a prohibition of inquiry."   It simply secures to a witness,
16

whether he be a party or not, the right to refue to answer any particular incriminatory question, i.e.,
one the answer to which has a tendency to incriminate him for some crime. However, the right can
be claimed only when the specific question, incriminatory in character, is actually put to the witness.
It cannot be claimed at any other time. It does not give a witness the right to disregard a subpoena,
to decline to appear before the court at the time appointed, or to refuse to testify altogether. The
witness receiving a subpoena must obey it, appear as required, take the stand, be sworn and
answer questions. It is only when a particular question is addressed to him, the answer to which may
incriminate him for some offense, that he may refuse to answer on the strength of the constitutional
guaranty.
That first sentence of Section 20, Article IV of the 1973 Constitution does not impose on the judge,
or other officer presiding over a trial, hearing or investigation, any affirmative obligation to advise a
witness of his right against self-incrimination. It is a right that a witness knows or should know, in
accordance with the well known axiom that every one is presumed to know the law, that ignorance of
the law excuses no one. Furthermore, in the very nature of things, neither the judge nor the witness
can be expected to know in advance the character or effect of a question to be put to the latter.  17

The right against self-incrimination is not self- executing or automatically operational. It must be
claimed. If not claimed by or in behalf of the witness, the protection does not come into play. It
follows that the right may be waived, expressly, or impliedly, as by a failure to claim it at the
appropriate time. 18

Rights in Custodial Interrogation

Section 20, Article IV of the 1973 Constitution also treats of a second right, or better said, group of
rights. These rights apply to persons "under investigation for the commission of an offense," i.e.,
"suspects" under investigation by police authorities; and this is what makes these rights different
from that embodied in the first sentence, that against self-incrimination which, as aforestated,
indiscriminately applies to any person testifying in any proceeding, civil, criminal, or administrative.

This provision granting explicit rights to persons under investigation for an offense was not in the
1935 Constitution. It is avowedly derived from the decision of the U.S. Supreme Court in Miranda v.
Arizona,   a decision described as an "earthquake in the world of law enforcement." 
19 20

Section 20 states that whenever any person is "under investigation for the commission of an
offense"--

1) he shall have the right to remain silent and to counsel, and to be informed of such
right, 21

2) nor force, violence, threat, intimidation, or any other means which vitiates the free
will shall be used against him;   and
22

3) any confession obtained in violation of x x (these rights shall be inadmissible in

evidence.  23

In Miranda, Chief Justice Warren summarized the procedural safeguards laid down for a person in
police custody, "in-custody interrogation" being regarded as the commencement of an adversary
proceeding against the suspect.  24

He must be warned prior to any questioning that he has the right to remain silent, that anything he
says can be used against him in a court of law, that he has the right to the presence of an attorney,
and that if he cannot afford an attorney one will be appointed for him prior to any questioning if he so
desires. Opportunity to exercise those rights must be afforded to him throughout the interrogation.
After such warnings have been given, such opportunity afforded him, the individual may knowingly
and intelligently waive these rights and agree to answer or make a statement. But unless and until
such warnings and waivers are demonstrated by the prosecution at the trial, no evidence obtained
as a result of interrogation can be used against him.

The objective is to prohibit "incommunicado interrogation of individuals in a police-dominated

atmosphere, resulting in self-incriminating statement without full warnings of constitutional rights."  25
The rights above specified, to repeat, exist only in "custodial interrogations," or "in-custody
interrogation of accused persons."   And, as this Court has already stated, by custodial interrogation
26

is meant "questioning initiated by law enforcement officers after a person has been taken into
custody or otherwise deprived of his freedom of action in any significant way."   The situation
27

contemplated has also been more precisely described by this Court."  28

.. . After a person is arrested and his custodial investigation begins a confrontation

arises which at best may be tanned unequal. The detainee is brought to an army
camp or police headquarters and there questioned and "cross-examined" not only by
one but as many investigators as may be necessary to break down his morale. He
finds himself in strange and unfamiliar surroundings, and every person he meets he
considers hostile to him. The investigators are well-trained and seasoned in their
work. They employ all the methods and means that experience and study have
taught them to extract the truth, or what may pass for it, out of the detainee. Most
detainees are unlettered and are not aware of their constitutional rights. And even if
they were, the intimidating and coercive presence of the officers of the law in such an
atmosphere overwhelms them into silence. Section 20 of the Bill of Rights seeks to
remedy this imbalance.

Not every statement made to the police by a person involved in some crime is within the scope of
the constitutional protection. If not made "under custodial interrogation," or "under investigation for
the commission of an offense," the statement is not protected. Thus, in one case,   where a person
29

went to a police precinct and before any sort of investigation could be initiated, declared that he was
giving himself up for the killing of an old woman because she was threatening to kill him by barang,
or witchcraft, this Court ruled that such a statement was admissible, compliance with the
constitutional procedure on custodial interrogation not being exigible under the circumstances.

Rights of Defendant in Criminal Case

As Regards Giving of Testimony

It is pertinent at this point to inquire whether the rights just discussed, i.e., (1) that against self-
incrimination and (2) those during custodial interrogation apply to persons under preliminary
investigation or already charged in court for a crime.

It seems quite evident that a defendant on trial or under preliminary investigation is not under
custodial interrogation. His interrogation by the police, if any there had been would already have
been ended at the time of the filing of the criminal case in court (or the public prosecutors' office).
Hence, with respect to a defendant in a criminal case already pending in court (or the public
prosecutor's office), there is no occasion to speak of his right while under "custodial interrogation"
laid down by the second and subsequent sentences of Section 20, Article IV of the 1973
Constitution, for the obvious reason that he is no longer under "custodial interrogation."

But unquestionably, the accused in court (or undergoing preliminary investigation before the public
prosecutor), in common with all other persons, possesses the right against self- incrimination set out
in the first sentence of Section 20 Article IV of the 1973 Constitution, i.e., the right to refuse to
answer a specific incriminatory question at the time that it is put to him.  30

Additionally, the accused in a criminal case in court has other rights in the matter of giving testimony
or refusing to do so. An accused "occupies a different tier of protection from an ordinary witness."
Under the Rules of Court, in all criminal prosecutions the defendant is entitled among others-
1) to be exempt from being a witness against himself,   and 2) to testify as witness in his own behalf;
31

but if he offers himself as a witness he may be cross-examined as any other witness; however, his
neglect or refusal to be a witness shall not in any manner prejudice or be used against him.  32

The right of the defendant in a criminal case "to be exempt from being a witness against himself'
signifies that he cannot be compelled to testify or produce evidence in the criminal case in which he
is the accused, or one of the accused. He cannot be compelled to do so even by subpoena or other
process or order of the Court. He cannot be required to be a witness either for the prosecution, or for
a co-accused, or even for himself.   In other words — unlike an ordinary witness (or a party in a civil
33

action) who may be compelled to testify by subpoena, having only the right to refuse to answer a
particular incriminatory question at the time it is put to him-the defendant in a criminal action can
refuse to testify altogether. He can refuse to take the witness stand, be sworn, answer any
question.   And, as the law categorically states, "his neglect or refusal to be a witness shall not in
34

any manner prejudice or be used against him."  35

If he should wish to testify in his own behalf, however, he may do so. This is his right. But if he does
testify, then he "may be cross- examined as any other witness." He may be cross-examined as to
any matters stated in his direct examination, or connected therewith .   He may not on cross-
36

examination refuse to answer any question on the ground that the answer that he will give, or the
evidence he will produce, would have a tendency to incriminate him for the crime with which he is
charged.

It must however be made clear that if the defendant in a criminal action be asked a question which
might incriminate him, not for the crime with which he is charged, but for some other crime, distinct
from that of which he is accused, he may decline to answer that specific question, on the strength of
the right against self-incrimination granted by the first sentence of Section 20, Article IV of the 1973
Constitution (now Section 17 of the 1987 Constitution). Thus, assuming that in a prosecution for
murder, the accused should testify in his behalf, he may not on cross-examination refuse to answer
any question on the ground that he might be implicated in that crime of murder; but he may decline
to answer any particular question which might implicate him for a different and distinct offense, say,
estafa.

In fine, a person suspected of having committed a crime and subsequently charged with its
commission in court, has the following rights in the matter of his testifying or producing evidence, to
wit:

1) BEFORE THE CASE IS FILED IN COURT (or with the public prosecutor, for
preliminary investigation), but after having been taken into custody or otherwise
deprived of his liberty in some significant way, and on being interrogated by the
police: the continuing right to remain silent and to counsel, and to be informed
thereof, not to be subjected to force, violence, threat, intimidation or any other means
which vitiates the free will; and to have evidence obtained in violation of these rights
rejected; and

2) AFTER THE CASE IS FILED IN COURT —  37

a) to refuse to be a witness;

b) not to have any prejudice whatsoever result to him by such refusal;

c) to testify in his own behalf, subject to cross-examination by the

prosecution;
 d) WHILE TESTIFYING, to refuse to answer a specific question
which tends to incriminate him for some crime other than that for
which he is then prosecuted.

It should by now be abundantly apparent that respondent Judge has misapprehended the nature
and import of the disparate rights set forth in Section 20, Article IV of the 1973 Constitution. He has
taken them as applying to the same juridical situation, equating one with the other. In so doing, he
has grossly erred. To be sure, His Honor sought to substantiate his thesis by arguments he took to
be cogent and logical. The thesis was however so far divorced from the actual and correct state of
the constitutional and legal principles involved as to make application of said thesis to the case
before him tantamount to totally unfounded, whimsical or capricious exercise of power. His Orders
were thus rendered with grave abuse of discretion. They should be as they are hereby, annulled and
set aside.

It is clear from the undisputed facts of this case that Felipe Ramos was not in any sense under
custodial interrogation, as the term should be properly understood, prior to and during the
administrative inquiry into the discovered irregularities in ticket sales in which he appeared to have
had a hand. The constitutional rights of a person under custodial interrogation under Section 20,
Article IV of the 1973 Constitution did not therefore come into play, were of no relevance to the
inquiry. It is also clear, too, that Ramos had voluntarily answered questions posed to him on the first
day of the administrative investigation, February 9, 1986 and agreed that the proceedings should be
recorded, the record having thereafter been marked during the trial of the criminal action
subsequently filed against him as Exhibit A, just as it is obvious that the note (later marked as Exhibit
K) that he sent to his superiors on February 8,1986, the day before the investigation, offering to
compromise his liability in the alleged irregularities, was a free and even spontaneous act on his
part. They may not be excluded on the ground that the so-called "Miranda rights" had not been
accorded to Ramos.

His Honor adverts to what he perceives to be the "greater danger x x (of) the violation of the right of
any person against self-incrimination when the investigation is conducted by the complaining parties,
complaining companies, or complaining employers because being interested parties, unlike the
police agencies who have no propriety or pecuniary interest to protect, they may in their over-
eagerness or zealousness bear heavily on their hapless suspects, whether employees or not, to give
statements under an atmosphere of moral coercion, undue ascendancy and undue influence." It
suffices to draw attention to the specific and peremptory requirement of the law that disciplinary
sanctions may not be imposed on any employee by his employer until and unless the employee has
been accorded due process, by which is meant that the latter must be informed of the offenses
ascribed to him and afforded adequate time and opportunity to explain his side. The requirement
entails the making of statements, oral or written, by the employee under such administrative
investigation in his defense, with opportunity to solicit the assistance of counsel, or his colleagues
and friends. The employee may, of course, refuse to submit any statement at the investigation, that
is his privilege. But if he should opt to do so, in his defense to the accusation against him, it would be
absurd to reject his statements, whether at the administrative investigation, or at a subsequent
criminal action brought against him, because he had not been accorded, prior to his making and
presenting them, his "Miranda rights" (to silence and to counsel and to be informed thereof, etc.)
which, to repeat, are relevant only in custodial investigations. Indeed, it is self-evident that the
employee's statements, whether called "position paper," "answer," etc., are submitted by him
precisely so that they may be admitted and duly considered by the investigating officer or committee,
in negation or mitigation of his liability.

Of course the possibility cannot be discounted that in certain instances the judge's expressed
apprehensions may be realized, that violence or intimidation, undue pressure or influence be
brought to bear on an employee under investigation — or for that matter, on a person being
interrogated by another whom he has supposedly offended. In such an event, any admission or
confession wrung from the person under interrogation would be inadmissible in evidence, on proof of
the vice or defect vitiating consent, not because of a violation of Section 20, Article IV of the 1973
Constitution, but simply on the general, incontestable proposition that involuntary or coerced
statements may not in justice be received against the makers thereof, and really should not be
accorded any evidentiary value at all.

WHEREFORE, the writ of certiorari is granted annulling and setting aside the Orders of the
respondent Judge in Criminal Case No. 3488-R, dated August 9, 1988 and September 14, 1988,
and he is hereby ordered to admit in evidence Exhibits "A" and "K" of the prosecution in said
Criminal Case No. 3488-R, and thereafter proceed with the trial and adjudgment thereof. The
temporary restraining

Baguio

EN BANC

G.R. No. 100295 April 26, 1994

PLACIDO L. MAPA, JR., and J. LORENZO VERGARA, petitioners,

vs.
SANDIGANBAYAN, respondent.

Estelito P. Mendoza for Placido L. Mapa, Jr.

Filemon Flores for J. Lorenzo Vergara.

PUNO, J.:

The denial of the right to be free from further prosecution of a cooperative witness who has been
granted immunity is the core issue posed in this petition. On balance are important rights in conflict:
the right of an individual who has surrendered his constitutional prerogative to be silent to the State
to be exempt from further prosecution; the right of the State to prosecute all persons who appear to
have committed a crime and its prerogative to revoke the immunity it has granted to an accused for
breach of agreement; and the extent of the jurisdiction of the Sandiganbayan as an impartial tribunal
to review the grant of immunity extended by the PCGG to an accused.

First, the facts.

On January 20, 1987, petitioners Placido L. Mapa and Lorenzo Vergara, together with Gregorio Ma.
Araneta III, Fernando Balatbat, Ramon Aviado, Jr., Dominador Lopez, Jr., Fernando Maramag, Jr.,
and Jose Crisanto, Jr., were charged with violation of the Anti-Graft and Corrupt Practices Act (R.A.
3019) as amended, docketed as Case No. 11960 in the respondent court, as follows:

That on or about and during the period from March 1985 and March 1986, in Metro
Manila, Philippines, and within the jurisdiction of the Honorable Sandiganbayan,
 accused Placido L. Mapa, Jr., J. Lorenzo Vergara, Ramon F. Aviado, Jr., Dominador
Lopez, Jr., Fernando Maramag, Jr., Jose C. Crisanto, Jr., acting in various capacities
as management officials of the Philippine National Bank (PNB), National Investment
and Development Corporation (NIDC) and/or Pantranco North Express Inc. (PNEI),
all government-owned and controlled corporations, as well as Dolores Potenciano of
BLTB, acting in concert in the performance of their duties, in utter neglect of their
fiduciary responsibilities, and with intent to gain, conspiring and confederating with
one another and with accused Gregorio Ma. Araneta III, son-in-law of former
President Ferdinand E. Marcos and therefore related to the deposed President by
affinity within the third degree, and Fernando Balatbat, did then and there, willfully
and unlawfully, with manifest partiality and evident bad faith, without proper board
resolution and in disregard of better offers, promote and facilitate the sale of a major
portion of the public utility assets of the Pantranco Express, Inc., for a consideration
of SEVEN HUNDRED SEVENTY-FIVE MILLION (P775,000,000.00) PESOS,
Philippine Currency, to the North Express Transport, Inc. (NETI), which the accused
knew to be a newly organized paper corporation with a purported paid-up capital of
only FIVE MILLION (P5,000,000.00) PESOS and owned and controlled by accused
Gregorio Ma. Araneta III, by misleading, inducing and/or unduly influencing the Board
of Directors of PNB, NIDC and PNEI into approving a Memorandum of Agreement
and later a Purchase Agreement with manifestly and grossly disadvantageous terms
and conditions which made possible the premature delivery of said PNEI assets to
NETI without any down payment, and which, inter alia, allowed NETI to operate
PNEI's franchises and utilize, even before the execution of the said Purchase
Agreement, not only the PNEI assets subject of the proposed sale, but also other
utility buses and properties of PNEI not covered by the sale, thereby allowing NETI to
derive an income from said operation between the period of actual delivery and
execution of the Purchase Agreement of the sum of EIGHTY-FIVE MILLION SIX
HUNDRED EIGHTY-NINE THOUSAND, ONE HUNDRED EIGHTY (P85,689,180.00)
PESOS before the actual payment of the agreed FIFTY-FIVE MILLION
(P55,000,000.00) PESOS down payment, thereby giving accused Gregorio Ma.
Araneta III unwarranted benefits, advantages and/or preferences and causing undue
injury to the damage and prejudice of the Government in the amount of FOUR
HUNDRED MILLION (P400,000,000.00) PESOS, and such other amounts as may
be awarded by the Court.

CONTRARY TO LAW.

Except for petitioner Araneta, all the accused in Criminal Case

No. 11960 were arraigned. Their trial started on September 20, 1988.

In the interim, the late President Ferdinand E. Marcos and Mrs. Imelda R. Marcos were charged in
New York with violations of the Racketeer Influenced and Corrupt Organization Act (RICO) by
transporting to the United States and concealing the investment of money through cronies and
offshore organizations. To insure the conviction of the Marcoses, the prosecution solicited the
testimonies of witnesses. Among these witnesses were petitioners Vergara and Mapa. Petitioner
Vergara was interviewed in 1987 by PCGG lawyers Kendall and Severina Rivera and by United
States Prosecutor Charles La Bella. Petitioner Mapa was interviewed on November 14, 1988 and
August 11, 1989 also by Prosecutor La Bella at the behest of former Secretary of Justice Sedfrey
Ordonez and former PCGG Chairman Mateo Caparas. After their interviews, petitioners were
requested to testify in the said RICO cases against the former First Couple. They were promised
immunity from further criminal prosecution. They agreed.
On May 16, 1990, the Philippine Government through the PCGG, and the petitioners formalized their
separate agreements in writing. The agreement with petitioner Mapa provided:

WHEREAS, REPUBLIC has requested MAPA to make himself available as a witness

in the case entitled "United States of America vs. Ferdinand E. Marcos, et al.," more
particularly in the on-going trial of the case;

WHEREAS, MAPA is a defendant or respondent in several civil and criminal cases

which the REPUBLIC has filed or intends to file in relation to this participation in
various contracts that are alleged to have resulted in the accumulation of ill-gotten
wealth by Ferdinand and Imelda Marcos in violation of Philippine laws, rules and
regulations;

WHEREAS, on the basis of MAPA's express intent to make himself available as

witness in the case entitled "United States of America vs. Ferdinand E. Marcos, et
al.," and in light of REPUBLIC's re-appraisal of the civil and criminal cases which it
has filed or intends to file against MAPA under the terms and conditions herein below
set forth.

NOW, THEREFORE, for and in consideration of the foregoing premises, the parties
agree as follows:

1. MAPA shall make himself available as a witness in the case entitled "United States
of America vs. Ferdinand E. Marcos, et al."

2. In consideration of the same, REPUBLIC grants MAPA immunity from

investigation, prosecution and punishment for any offense with reference to which his
testimony and information are given, including any offense and commission of which
any information, directly or indirectly derived from such testimony or other information
is used as basis thereof, except a prosecution for perjury and/or giving false
testimony.

3. Likewise, in consideration of such cooperation, and in light of REPUBLIC’s review

of the cases both civil and criminal which it has filed or intends to file against MAPA
within the purview of Executive Orders Nos. 1, 2, 14 and 14-A, the REPUBLIC shall
cause the dismissal or exclusion of MAPA as party defendant or respondent in all
PCGG initiated civil cases and criminal proceeding or investigation.

4. The immunity has been granted by the REPUBLIC to MAPA on the basis of and
relying on MAPA's promise of cooperation as described herein. In case of breach of
his commitment to fully cooperate and make himself available as a witness in the
case entitled "United States of America vs. Ferdinand E. Marcos, et al.", the
immunity herein granted shall forthwith be deemed revoked, and of no force and
effect.

5. The parties agree that the grant of immunity from criminal prosecution to MAPA
and his exclusion from PCGG initiated civil cases and criminal proceeding or
investigations has been undertaken in the exercise of the PCGG's authority under
Executive Order Nos. 1, 2, 14 and 14-A. Accordingly, nothing herein shall be
construed as an admission by MAPA of any criminal or civil liability.
The agreement with petitioner Vergara stated:

WHEREAS, REPUBLIC has requested VERGARA to make himself available as a

witness in the case entitled "United States of America vs. Ferdinand E. Marcos, et
al.," more particularly in the on-going trial of the case;

WHEREAS, Vergara is a defendant in Criminal Case No. 11960 entitled "People vs.
Gregorio Ma. Araneta, et al.", now pending before the Sandiganbayan, Second
Division;

WHEREAS, on the basis of VERGARA’s express intent to make himself available as

witness in the case entitled "United States of America vs. Ferdinand E. Marcos, et
al.," and in the light of REPUBLIC's re-appraisal of VERGARA's participation in
Criminal Case No. 11960, the REPUBLIC approved to grant immunity to VERGARA
under the terms and conditions hereinbelow set forth.

NOW, THEREFORE, for and in consideration of the foregoing premises, the parties
agree as follows:

1. VERGARA shall make himself available as a witness in the case entitled "United
States of America vs. Ferdinand E. Marcos, et al."

2. In consideration of the same, REPUBLIC grants VERGARA immunity from

investigation, prosecution and punishment for any offense with reference to which his
testimony and information are given, including any offense and commission of which
any information, directly or indirectly derived from such testimony or other information
is used as basis thereof, except a prosecution for perjury and/or giving false
testimony.

3. Likewise, in consideration of such cooperation, and in light of REPUBLIC’s review

of VERGARA’s participation in Criminal Case No. 11960, the REPUBLIC shall cause
the dismissal of VERGARA from Criminal Case No. 11960.

4. The immunity has been granted by the REPUBLIC to VERGARA on the basis of
and relying on VERGARA's promise of cooperation as described herein. In case of
breach of h is commitment to fully cooperate and make himself available as a
witness in the case entitled "United States of America vs. Ferdinand E. Marcos, et
al.", the immunity herein granted shall forthwith be deemed revoked, and of no force
and effect.

5. The parties agree that the grant of immunity from civil and criminal prosecution to
VERGARA and his exclusion from Criminal Case No. 11960 has been undertaken in
the exercise of the PCGG's authority under Executive Orders Nos. 1, 2, 14 and 14-A.
Accordingly, nothing herein shall be construed as a admission by VERGARA of any
criminal liability.

On the same day, May 16, 1990, former PCGG Chairman Mateo Caparas wrote to petitioner Mapa
the following letter:

Dear Sir:
 With reference to the agreement executed between yourself and the Republic of the
Philippines on May 16, 1990, we would like to confirm
that among the criminal cases which the Republic agrees to cause the dismissal of
the case entitled "People of the Philippines vs. Mr. Gregorio Ma. Araneta III, et. al., "
Criminal Case No. 11960 of the Sandiganbayan. We understand that in that case the
prosecution is in the process of closing its evidence with the submission of its offer of
documentary evidence and that it is your intention thereupon to submit a Motion to
Dismiss for failure of the prosecution to prove its case. We affirm that if, because of
the situation of the case, it would not be possible for the Republic to file the
necessary motion to cause the dismissal thereof, then we shall upon submission of
your Motion to Dismiss offer no objection to its favorable consideration by the court in
relation to you.

We also affirm our understanding that we shall arrange with the U.S. prosecutors the
grant of immunity in your favor no less broad or extensive than that granted to Mr.
Jaime C. Laya.

Very
truly
yours,

(SGD.) M.A.T. Caparas

A similar letter was sent to petitioner Vergara.

The petitioners complied with their respective undertaking. They travelled to New York to testify
against the Marcoses. Their travel fare and hotel accommodations were even furnished by the
PCGG. But despite their availability and willingness to testify, the US prosecutors decided not to call
them to the witness stand. The result was a debacle for the US prosecutors and the PCGG.
Mrs.Imelda Marcos was acquitted by the jury. Earlier, former President Marcos was delisted as an
accused as he died in the course of the proceedings.

The legal struggle shifted back to the prosecution of petitioners in Criminal Case No. 11960 before
the respondent court. On the basis of the immunity granted to them, petitioners filed a Joint Motion
to Dismiss on October 22, 1990. Deputized PCGG prosecutors Vivencio B. Dionido and Angel J.
Parazo filed a Manifestation interposing no objection to petitioners' Motion, viz:

That herein accused Placido L. Mapa, Jr. and J. Lorenzo Vergara were granted
immunity by the Presidential Commission on Good Government from criminal liability
arising from cases which PCGG had or intends to file against them;

The PCGG, therefore, interposes no objection to the Joint Motion to Dismiss filed by
accused Placido L. Mapa, Jr. and J. Lorenzo Vergara in Criminal Case No. 11960-
PCGG by reason of the immunity aforestated.

Despite PCGG's concurrence, the respondent court denied the Joint Motion to Dismiss, by a vote of
4-1.   Petitioners were undaunted. On April 8, 1991, they filed a Motion for Reconsideration. This
1

was followed on May 23, 1991, by a Supplement to the Motion for Reconsideration. The deputized
prosecutors again filed a Manifestation reiterating PCGG's acquiescence to petitioners' Motion for
Reconsideration. Respondent court, however, refused to budge from its prior position. It denied
petitioners' motions.
Hence, this recourse where petitioners charge the respondent court with grave abuse of discretion in
denying their Motion to Dismiss and Motion for Reconsideration. They pose the following issues:

2.00.a. Does the fact that the information provided by petitioners to the Presidential
Commission on Good Government (PCGG) did not refer to Criminal Case No. 11960
make the immunity granted to them inapplicable to Criminal Case No. 11960?

2.00.b. Is it necessary that information furnished the PCGG, which would become
basis of the grant of immunity, be submitted to the Sandiganbayan in order that it
may determine whether such information is necessary to ascertain or prove the guilt
or liability of a respondent, defendant or an accused in an action involving the
recovery of ill-gotten wealth?

2.00.c. Does the fact that the prosecution in the RICO cases did not actually present
petitioners as witnesses abrogate the immunity granted to them?

2.00.d. Was the immunity granted to petitioners too late considering that when it was
granted, the prosecution in Criminal Case
No. 11960 had already rested its case?"

The proceedings before us took a new wrinkle with the appointment of Atty. David Castro as
Chairman of PCGG. In its Comment dated January 6, 1992, the PCGG somersaulted from its stance
supporting the petitioners. Its Comment states:

1. The Presidential Commission on Good Government has indeed granted Messrs.

Placido L. Mapa, Jr., and Jesus Lorenzo Vergara immunity from investigation,
prosecution and punishment for any offense for which civil and criminal cases have
been or to be filed against them within the purview of Executive Orders Nos. 1, 2, 14
and 14-A but such immunity is conditional.

2. The conditions for giving such immunity is the cooperation said petitioners shall
give to said Commission by way of information and testimony in cases now pending
or to be filed before the Sandiganbayan against other defendants therein to prove the
latter's acquisition or accumulation of property or properties in violation of existing
laws.

3. Failure on the part of petitioners Placido Mapa, Jr. and Jesus Vergara to testify in
favor of the government and against other defendants on matters referred to in
the immediately preceding paragraph nullifies the immunity granted to both
defendants (emphasis supplied).

It reiterated its breakaway from petitioners in its Comment to the Reply of petitioners dated June 10,
1992, where it adopted the respondent Sandiganbayan's questioned Resolution and Concurring
Opinions dated
March 6, 1991. It further stressed that "[T]he granting of 'Immunity' from criminal liability and/or
prosecution is a matter subject to the court's judicious determination and approval, after applying the
test of compliance and the standard of reasonableness with the rigid requirements for such grant
under Section 5 of Executive Order No. 14-A, as amended." The Solicitor General defended the
stance of the PCGG and the respondent court.

We find merit in the petition.

The practice of granting government, its officials, and some accused or respondents immunity from
suits, has a long history.

We begin with the Constitution which expressly grants some of these immunities. Article XVI, section
3 provides that "the State may not be sued without its consent." The classic justification for the non-
suability of the State is that provided by Mr. Justice Oliver Wendell Holmes: ". . . there can be no
legal right against the authority which makes the law on which the right depends."   Article VI, section
2

11 of the Constitution also grants parliamentary immunities, viz: "A Senator or Member of the House
of Representatives shall, in all offenses punishable by not more than six years imprisonment, be
privileged from arrest while the Congress is in session. No member shall be questioned nor be held
liable in any other place for any speech or debate in the Congress or in
any committee thereof." Mr. Justice Isagani A. Cruz explains the rationale for this immunity in the
following manners: ". . . The first is intended to ensure representation of the constituents of the
member of the Congress by preventing attempts to keep him from attending its sessions. The
second enables the legislator to express views bearing upon the public interest without fear of
accountability outside the halls of the legislature for his inability to support his statements with the
usual evidence required in the court of justice. In other words, he is given more leeway than the
ordinary citizen in the ventilation of matters that ought to be divulged for the public good."  The
3

President was also immunized from suit during his tenure in the 1973 Constitution.

Aside from the Constitution, Congress has enacted laws giving immunity to witnesses to facilitate the
solution of crimes with high political, social and economic impact against the people. Some of these
statutory grants are related in the impugned Resolution. Thus, PD 749 provides:

Section 1. Any person who voluntarily gives information about any violation of
Articles 210, 211, 212 of the Revised Penal Code, Republic Act No. 3019, as
amended; Section 345 of the Internal Revenue Code and Section 3604 of the Tariff
and Customs Code and other provisions of the said codes penalizing abuse or
dishonesty on the part of the public officials concerned; and other laws, rules and
regulations punishing acts of graft, corruption and other forms of official abuse; and
who willingly testified, such violator shall be exempt from prosecution or punishment
for the offense with reference to which his information and testimony were given, and
may plead or prove the giving of such information and testimony in bar of such
prosecution: Provided, That this immunity may be enjoyed even in cases where the
information and the testimony are given against a person who is not a public official
but who is a principal or accomplice, or accessory in the commission of any of the
above-mentioned violations: Provided, further, That this immunity may be enjoyed by
such informant or witness notwithstanding that he offered or gave bribe or gift to the
public official or is an accomplice for such gift or bribe-giving; And, Provided, finally,
That the following conditions concur:

1. The information must refer to consummated violations of any of the above-

mentioned provisions of law, rules and regulations;

2. The information and testimony are necessary for the conviction of the accused
public officer;

3. Such information and testimony are not yet in the possession of the State;

4. Such information and testimony can be corroborated on its material points; and
 5. The informant or witness has not been previously convicted of a crime involving
moral turpitude.

Likewise, under PD No. 1886, the Agrava Fact Finding Board, created to conduct a fact-finding
inquiry in the Aquino-Galman double murder case, was given the power to compel testimony of a
witness. In exchange for his testimony, such a witness was extended transactional immunity from
later prosecution. Section 5 of said PD No. 1886 states:

No person shall be excused from attending and testifying or from producing books,
records, correspondence, documents, or other evidence in obedience to a subpoena
issued by the Board on the ground that his testimony or the evidence required of him
may tend to incriminate him or subject him to penalty or forfeiture; but his testimony
or any evidence produced by him shall not be used against him in connection with
any transaction, matter or thing concerning which he is compelled, after having
invoked his privilege against self-incrimination to testify or produce evidence, except
that such individual so testifying shall not be exempt from prosecution and
punishment for perjury committed in so testifying, nor shall he be exempt from
prosecution and punishment for perjury committed in so testifying, nor shall he be
exempt from demotion or removal from office.

Indeed, as early as April 16, 1951, R.A. 602, establishing a minimum wage law, extended
transactional immunity to persons who testify or produce books, papers or other records and
documents before the Secretary of Labor or a Wage Board. A similar but not identical power is given
to the prosecution under section 9, Rule 119 of the 1985 Rules on Criminal Procedure to discharge
an accused to be utilized as a state witness.

Our immunity statutes are of American origin. In the United States, there are two types of statutory
immunity granted to a witness. They are the transactional immunity and the used-and-derivative-use
immunity. Transactional immunity is broader in the scope of its protection. By its grant, a witness can
no longer be prosecuted for any offense whatsoever arising out of the act or transaction.   In
4

contrast, by the grant of use-and-derivative-use immunity,

a witness is only assured that his or her particular testimony and
evidence derived from it will not be used against him or her in a subsequent
prosecution.   In Kastigar vs. US,   the rationale of these immunity grants is well explained, viz:
5 6

The power of government to compel persons to testify in court or before grand juries
and other governmental agencies is firmly established in Anglo-American
jurisprudence . . . The power to compel testimony, and the corresponding duty to
testify, are recognized in the Sixth Amendment requirements that an accused be
confronted with the witnesses against him, and have compulsory process for
obtaining witnesses in his favor. . .

xxx xxx xxx

But the power to compel testimony is not absolute. There are a number of
exemptions from the testimonial duty, the most important
of which is the Fifth Amendment privilege against compulsory
self-incrimination. The privilege reflects a complex of our fundamental values and
aspirations, and marks an important advance in the development of our liberty. It can
be asserted in any proceeding, civil or criminal, administrative or judicial,
investigatory or adjudicatory; and it protects against any disclosures that the witness
reasonably believes could be used in a criminal prosecution or could lead to other
 evidence that might be so used. This Court has been zealous to safeguard the
values that underlie the privilege.

Immunity statutes, which have historical roots deep in Anglo-American jurisprudence,

are not incompatible with these values. Rather, they seek a rational accommodation
between the imperatives of the privilege and the legitimate demands of government
to compel citizens to testify. The existence of these statutes reflects the importance
of testimony, and the fact that many offenses are of such a character that the only
persons capable of giving useful testimony are those implicated in the crime. Indeed,
their origins were in the context of such offenses, and their primary use has been to
investigate such offenses . . . (E)very State in the Union, as well as the District of
Columbia and Puerto Rico, has one of more such statutes. The commentators, and
this Court on several occasions, have characterized immunity statutes as essential to
the effective enforcement of various criminal statutes. . .

We shall now examine the powers granted to PCGG by Executive Order No. 14, as amended, to
grant immunity from criminal prosecution. The pertinent sections provide:

xxx xxx xxx

Sec. 2. Section 4 of Executive Order No. 14 dated May 7, 1986 is hereby amended
to read as follows:

Sec. 4. A witness may refuse on the basis of his privilege against self-incrimination,
to testify or provide other information in a proceeding before the Sandiganbayan if
the witness believes that such testimony or provision of information would tend to
incriminate him or subject him to prosecution. Upon such refusal, the Sandiganbayan
may order the witness to testify or provide information.

The witness may not refuse to comply with the order on the basis of his privilege
against self-incrimination; but no testimony or other information compelled under the
order (or any information directly or indirectly derived from such testimony, or other
information) may be used against the witness in any criminal case, except a
prosecution for perjury, giving a false statement, or otherwise failing to comply with
the other.'

Sec. 3. Section 5 of Executive Order No. 14 dated May 7, 1986 is hereby amended
to read as follows:

Sec. 5. The Presidential Commission on Good Government is authorized to grant

immunity from criminal prosecution to any person who provides information or
testifies in any investigation conducted by such Commission to establish the unlawful
manner in which any respondent, defendant or accused has acquired or
accumulated the property or properties in question in any case where such
information or testimony is necessary to ascertain or prove the latter's guilt or his civil
liability. The immunity thereby granted shall be continued to protect the witness who
repeats such testimony before the Sandiganbayan when required to do so by the
latter or by the Commission.

There are obvious differences between the powers granted to the PCGG under sections 4 and 5.
Section 4 deals with the power which PCGG can use to compel an unwilling witness to testify. On
the other hand, section 5 speaks of the power which PCGG can wield to secure information from
a friendly witness. Under section 4, the hostile witness compelled to testify is not immunized from
prosecution. He can still be prosecuted but "no testimony or other information compelled under the
order (or any information directly or indirectly derived from such testimony or other information) may
be used against the witness in any criminal case . . . ." In contrast, under section 5, the friendly
witness is completely immunized from prosecution.

The case at bench involves an exercise of power by PCGG under

section 5, supra. Petitioners are not hostile but friendly witnesses. It is not disputed that they
furnished information to the PCGG during their interviews conducted by PCGG lawyers and US
prosecutor La Bella. Due to their cooperation, they were extended immunity from prosecution by the
PCGG. In return, they flew to New York to testify in the RICO trial of Imelda Marcos. As they were
witnesses for the prosecution, their expenses were shouldered by the PCGG itself. At the last
minute, however, US prosecutor La Bella decided to dispense with their testimony. The rest is
history. The prosecution failed to convict Mrs. Marcos.

The first issue is whether the respondent court has jurisdiction to review the immunity granted by
PCGG in favor of the petitioners. We sustain the jurisdiction of the respondent court. To be sure, we
have grappled with this once slippery issue in the case of Republic vs. Sandiganbayan, 173 SCRA
76, 80-81, and we held:

We first ascertain whether or not the Sandiganbayan has jurisdiction to look into the
validity of the immunity granted by the PCGG to Jose Y. Campos which was
extended to his son, petitioner-intervenor herein,
Jose Campos, Jr.

xxx xxx xxx

The powers of the PCGG are not unlimited. Its jurisdiction over cases involving ill-
gotten wealth must be within the parameters stated in Executive Order No. 14.
Necessarily, the jurisdiction of the Sandiganbayan which is tasked to handle the ill-
gotten wealth cases must include the jurisdiction to determine whether or not the
PCGG exceeded its power to grant immunity pursuant to the provisions of Executive
Order No.14.

It should also be noted that the respondent court has already acquired jurisdiction to try and decide
Case No. 11960 where petitioners stand accused of violating RA 3019. It has started receiving the
evidence of the prosecution against the petitioners. Petitioners, with the conformity of PCGG, then
claimed their immunity via a motion to dismiss addressed to the respondent court. The motion to
dismiss is thus a mere incident well within the jurisdiction of the respondent court to resolve.

The next issue is a finer and more difficult one, i.e., gauging the range of the power of the
respondent court to review the exercise of discretion of the PCGG granting immunity to petitioners
pursuant to section 5 of E.O. No. 14, as amended.

Respondent court, thru the Solicitor General, pushes the proposition that said power of review is
plenary in reach. It is urged that its plenitude and panoply empower the respondent court to reverse
the grant of immunity made by the PCGG by supplanting the latter's judgment. The submission will
warrant the respondent court in examining the intrinsic quality of the given information or testimony,
i.e., whether it truly establishes the "unlawful manner" in which the respondent, defendant or
accused has acquired or accumulated the property or properties in question. Likewise, it will give a
warrant to the respondent court to change the judgment made by the PCGG that the witness'
information or testimony is "necessary" to ascertain or prove the guilt or civil liability of the
respondent, defendant or accused.

We are not prepared to concede the correctness of this proposition. Neither the text nor the texture
of E.O. No. 14, as amended, lends color to the suggested interpretation. Section 5 of E.O. No. 14, as
amended, vests no such role in respondent court. In instances, where the intent is to endow courts
of justice with the power to review and reverse tactical moves of the prosecution, the law confers the
power in clear and certain language. Thus, under section 9 of Rule 119, the prosecution in the
exercise of its discretion may tactically decide to discharge an accused to be a state witness but its
decision is made subject to the approval of the court trying the case. It has to file a proper motion
and the motion may be denied by the court if the prosecution fails to prove that it has satisfied the
requirements of the rule on discharge of a witness. The rule is crafted as to leave no iota of doubt on
the power of the court to interfere with the discretion of the prosecution on the matter. In the case at
bench, E.O. 14, as amended, is eloquently silent with regard to the range and depth of the power of
the respondent court to review the exercise of discretion by the PCGG granting a section 5
immunity. This silence argues against the thesis that the respondent court has full and unlimited
power to reverse PCGG's exercise of discretion granting a section 5 immunity. Legitimate power can
not arise from a vacuum.

We observe that in contrast to our other laws on immunity, section 5 of E.O. No. 14, as amended,
confers on the PCGG the power to grant immunity alone and on its own authority. The exercise of
the power is not shared with any other authority. Nor is its exercise subject to the approval or
disapproval of another agency of government. The basic reason for vesting the power exclusively on
the PCGG lies in the principles of separation of power. The decision to grant immunity from
prosecution forms a constituent part of the prosecution process. It is essentially a tactical decision to
forego prosecution of a person for government to achieve a higher objective. It is a deliberate
renunciation of the right of the State to prosecute all who appear to be guilty of having committed a
crime. Its justification lies in the particular need of the State to obtain the conviction of the more guilty
criminals who, otherwise, will probably elude the long arm of the law. Whether or not the delicate
power should be exercised, who should be extended the privilege, the timing of its grant, are
questions addressed solely to the sound judgment of the prosecution. The power to prosecute
includes the right to determine who shall be prosecuted and the corollary right to decide whom not to
prosecute. In reviewing the exercise of prosecutorial discretion in these areas, the jurisdiction of the
respondent court is limited. For the business of a court of justice is to be an impartial tribunal, and
not to get involved with the success or failure of the prosecution to prosecute. Every now and then,
the prosecution may err in the selection of its strategies, but such errors are not for neutral courts to
rectify, any more than courts should correct the blunders of the defense. For fairness demands that
courts keep the scales of justice at equipoise between and among all litigants. Due process
demands that courts should strive to maintain the legal playing field perfectly even and perpetually
level.

Prescinding from these baseline propositions, we hold that in reviewing the grant of a section 5
immunity made by the PCGG to the petitioners, the power of the respondents court can go no further
than to pass upon its procedural regularity. The respondent court should only ascertain: (a) whether
the person claiming immunity has provided information or testimony in any investigation conducted
by the PCGG in the discharge of its functions;
(b) whether in the bona fide judgment of the PCGG, the information or testimony given would
establish the unlawful manner in which the respondent, defendant or accused has acquired or
accumulated the property or properties in question; and (c) whether in the bona fide judgment of the
PCGG, such information or testimony is necessary to ascertain or prove the guilt or civil liability of
the respondent, defendant or accused. Respondent court cannot substitute its judgment to the
discretion of the PCGG without involving itself in prosecution and without ceasing to be a court
catering untilted justice.
Applying this standard, we hold that the respondent court committed grave abuse of discretion when
it denied petitioners' motion to dismiss based on a claim of immunity granted by the PCGG under
section 5 of E.O. 14, as amended.

The records show that petitioners provided information to the PCGG relating to the prosecution of
the RICO cases against the Marcoses in New York. They gave the information in the course of
interviews conducted by PCGG lawyers Kendall and Severina Rivera and US prosecutor Charles
La Bella. They collaborated with the prosecution.

Sec. 5 requires that the information should relate to "any case" which PCGG can prosecute as
mandated by the Constitution and E.O. Nos. 1, 2, 14 and 14-A. It does not limit said information to
be given only in a case where the informant is himself an accused or a respondent. Such a reading
adopted by the respondent court is unduly restrictive of the intendment of section 5 of E.O.
No. 14, as amended, even as it is clearly in contravention of its plain language.

It is also fairly established that the pieces of information given by the petitioners would in the
judgment of the PCGG, establish the "unlawful manner" with which the Marcoses acquired or
accumulated their properties and were "necessary" to prove their guilt. The totality of the
circumstances of the case established this element. Thus, after their interview, the PCGG was
obviously convinced of the evidentiary value of the information given by the petitioners. It forthwith
signed and sealed an agreement with petitioners extending them immunity from prosecution. In the
case of petitioner Mapa, "the Republic shall cause the dismissal or exclusion of MAPA as party
defendant or respondent in all PCGG initiated civil cases and criminal proceeding or investigation."
In the case of petitioner Vergara, "the Republic shall cause the dismissal of Vergara from Criminal
Case No. 11960." This commitment was reiterated by former Chairman Mateo Caparas of PCGG in
his May 16, 1990 letters to the petitioners, as related above. The parties' agreements were then
implemented. Petitioners travelled to New York to testify in the RICO cases against the Marcoses. It
was even the PCGG that shouldered their expenses. All these circumstances prove the judgment of
the PCGG that the pieces of information given by petitioners would establish the "unlawful manner"
with which the Marcoses acquired their wealth.

Contrary to the ruling of the respondent court, the failure of petitioners to testify in the RICO cases
against the Marcoses in New York can not nullify their immunity. They have satisfied the
requirements both of the law and the parties' implementing agreements. Under section 5 of E.O. No.
14, as amended, their duty was to give information to the prosecution, and they did. Under their
Memorandum of Agreement, they promised to make themselves available as witnesses in the said
RICO cases, and they did. Petitioners were ready to testify but they were not called to testify by the
US prosecutors of the RICO case. Their failure to testify was not of their own making. It was brought
about by the decision of the US prosecutors who may have thought that their evidence was enough
to convict the Marcoses. Since petitioners' failure to testify was not of their own choosing nor was it
due to any fault of their own, justice and equity forbid that they be penalized by the withdrawal of
their immunity. Indeed, initially, the PCGG itself adopted the posture that the immunity of petitioners
stayed and should not be disturbed. It joined the motion to dismiss filed by petitioners in the
respondent court. When the respondent court denied the motion, PCGG stuck to its previous
position as it again joined the petitioners in their motion for reconsideration. It is only in this petition
for review on certiorari that PCGG, after a change of Chairman, flip-flopped in its position.

We also rule that there was nothing irregular when PCGG granted a section 5 immunity to
petitioners while they were already undergoing trial in Criminal Case No. 11960. Section 5 of E.O.
14, as amended, does not prohibit the PCGG from granting immunity to persons already charged in
court and undergoing trial. As long as the privilege of immunity so given will in the judgment of the
PCGG assist it in attaining its greater objectives, the PCGG is well within legal grounds to exercise
this power at any stage of the proceedings. This section 5 immunity frees and releases one from
liability, and as it inures to the benefit of an accused, it can be invoked at any time after its
acquisition and before his final conviction. Our regard for the rights of an accused dictates this result.
Thus, we have consistently held that laws that decriminalize an act or a grant of amnesty may be
given retroactive effect. They constitute a bar against the further prosecution of their beneficiaries'
regardless of the appearance of their guilt. To be sure, the guilt of the petitioners in Criminal Case
No. 11960 has yet to be established beyond doubt. The PCGG itself does not appear certain and
confident of the strength of its evidence against the petitioners in said criminal case. The records
show that petitioners Mapa was granted immunity not only because of the information he gave to the
prosecution but also ". . . in light of Republic's review of the cases both civil and criminal which it has
filed or intends to file against . . ." him. Similarly, petitioner Vergara was granted immunity ". . . in
light of Republic's review of Vergara's participation in Criminal Case No. 11960 . . . ." After reviewing
its evidence against the petitioners, PCGG appears to have sensed the sterility of its efforts of
continuing their prosecution. Its former chairman, M.A.T. Caparas, learned that petitioners would file
a Motion to Dismiss Criminal Case No. 11960 after PCGG rest its evidence, "for failure of the
prosecution to prove its case." In his May 16, 1990 letters to the petitioners, he assured them that
"we shall . . . offer no objection to its favorable consideration." This is a patent admission that
petitioners' Motion to Dismiss has merit and that the PCGG cannot prove its case against the
petitioners in Criminal Case No. 11960.

Finally, we reject respondent court's ruling that the grant of section 5 immunity must be strictly
construed against the petitioners. It simplistically characterized the grant as special privilege, as if it
was gifted by the government, ex gratia. In taking this posture, it misread the raison d'etre and the
long pedigree of the right against self-incrimination vis-a-vis immunity statutes.

The days of inquisitions brought about the most despicable abuses against human rights. Not the
least of these abuses is the expert use of coerced confessions to send to the guillotine even the
guiltless. To guard against the recurrence of this totalitarian method, the right against self-
incrimination was ensconced in the fundamental laws of all civilized countries. Over the years,
however, came the need to assist government in its task of containing crime for peace and order is a
necessary matrix of public welfare. To accommodate
the need, the right against self-incrimination was stripped of its absoluteness. Immunity statutes in
varying shapes were enacted which would allow government to compel a witness to testify despite
his plea of the right
against self-incrimination. To insulate these statutes from the virus of unconstitutionality, a witness is
given what has come to be known as transactional or a use-derivative-use immunity, as heretofore
discussed. Quite clearly, these immunity statutes are not a bonanza from government. Those given
the privilege of immunity paid a high price for it — the surrender of their precious right to be silent.
Our hierarchy of values demands that the right against self-incrimination and the right to be silent
should be accorded greater respect and protection. Laws that tend to erode the force of these
preeminent rights must necessarily be given a liberal interpretation in favor of the individual. The
government has a right to solve crimes but it must do it, rightly.

IN VIEW WHEREOF, the resolutions of the respondent court dated March 7, and June 3, 1991 are
annulled and set aside and the Amended Information against the petitioners in Criminal Case No.
11960 is ordered dismissed. No costs.

SO ORDERED.

G.R. Nos. 141675-96 November 25, 2005

JESUS T. TANCHANCO and ROMEO R. LACSON, Petitioners,
vs.
THE HONORABLE SANDI-GANBAYAN (Second Division), Respondent.

DECISION

Tinga, J.:

The Court’s duty to enforce the law takes on greater imperative when in so doing, it compels the
execution of commitments made by the State to its citizens. However the modality a right or privilege
is granted by the State to a person—whether under the Constitution, a statute or a mere contract—
recognition thereof is required by the government and, if need be, mandated by this Court.

Presently for consideration is what appears to be a broken covenant by the State, made particularly
by the Presidential Commission on Good Government (PCGG) to former National Food Authority
(NFA) Administrator Jesus Tanchanco (Tanchanco), one of the petitioners at bar. Granted, it is a
covenant that should not be lightly undertaken, involving as it does the grant of criminal immunity.
Notwithstanding, the legal order has never subscribed to the notion that promises are meant to be
broken.

We begin with the facts.

Tanchanco served as NFA Administrator from 1972 to 1986, during the presidency of Ferdinand
Marcos. His co-petitioner Romeo Lacson (Lacson) was the Deputy Administrator of the NFA when
he was the Administrator.

On 6 May 1988, Tanchanco and the PCGG entered into a Cooperation Agreement,1 occasioned by
the desire of Tanchanco to cooperate with the Philippine government in connection with the latter’s
efforts in the location and pursuit of government properties "purloined" by Ferdinand and Imelda
Marcos, their agents and others who hold property on their behalf. In the Cooperation Agreement,
the parties stipulated as follows:

NOW, THEREFORE, in consideration of the mutual covenants contained herein and intending to be
legally bound hereby, the parties agree as follows:

1. Tanchanco shall cooperate with any and all Philippine Government investigations or prosecutions
pursuant to Executive Order No. 1.

2. "Cooperation" means that Tanchanco shall provide complete, candid and absolutely truthful
disclosures, in response to any and all questions and inquiries that may be put to him/her in
connection with the Philippines’ investigations, civil actions, criminal prosecutions, or any other
proceedings whether in the Philippines, the United States or elsewhere. Further, upon the request of
the Philippines, Tanchanco will offer such cooperation in investigations and proceedings brought by
other governments, including but not limited to the United States and Switzerland.

Cooperation also means a disgorgement of assets, if any, acquired in violation of Philippine laws,
rules and regulations. Cooperation further means a full disclosure of assets and liabilities,
beneficially owned by Tanchanco. Any assets not therein listed as Tanchanco’s personal property,
and thereafter discovered to be in Tanchanco’s name or under his/her legal or beneficial control,
directly or indirectly, as of the date of this Agreement, shall become the property of the PCGG.
3. Should any of Tanchanco’s statements or testimonies be false, misleading or materially
incomplete, or should Tanchanco knowingly fail to act with total honesty and candor in any such
matters, the Philippines shall no longer be bound by any of its representations contained herein.
Immunities and other considerations granted in reliance thereof, shall be null and void.

In return for the above, the Philippines hereby represents and agrees as follows:

(1) At a time to be mutually agreed upon between Tanchanco and the Philippines, the
Philippines shall move to dismiss all actions that are presently pending against Tanchanco
before the Sandiganbayan and any such other courts;

(2) The Philippines shall lift any sequestration orders against Tanchanco’s properties, if any,
and rescind hold orders it may have issued against his/her actions;

(3) The Philippines shall not bring any additional civil or criminal charges against Tanchanco,
arising from:

(A) Service in or for the Marcos government;

(B) Any other actions revealed by Tanchanco pursuant to his/her cooperation as defined in
this Agreement.

Except as expressly set forth herein, there is no understanding or agreement of any kind between
the Philippines or its counsel, and Tanchanco, concerning the possible use(s) of his/her liability for
criminal or civil prosecution by the Philippines, or any other jurisdiction.

Nothing in this Agreement between the Philippines and Tanchanco is conditioned on the result of
any proceedings that might be brought or have been brought against Ferdinand or Imelda Marcos or
others in connection with the information provided or to be provided. Thus none of the obligations or
undertakings described above are in any way dependent upon a jury’s or court’s verdict at any trial,
or the success of any criminal or civil prosecution. 2

Significantly, Tanchanco was called upon as one of the witnesses for the prosecution in the case
filed against Imelda Marcos in New York for violation of the so-called RICO Act. It appears that his
testimony was elicited concerning the transfer of ₱10,000,000.00 rebate obtained by the NFA from
the Philippine National Lines to the Security Bank, as well as the matter of the use of discretionary
and/or intelligence funds by the Marcos administration involving the funds of the NFA during
Tanchanco’s administration.3

Nonetheless, a criminal case, docketed as Criminal Case No. 16950, was filed in 1991 against
Tanchanco with the Sandiganbayan for malversation of public funds in the amount of
₱10,000,000.00 from the Philippine National Bank. Tanchanco filed a Motion for Reinvestigation,
wherein he argued that the case should be dismissed as he had been granted immunity from the
said suit by the PCGG. Eventually, the Sandiganbayan First Division agreed with Tanchanco and in
a Resolution dated 27 October 2000, the case was ordered dismissed. 4

However, Criminal Case No. 16950 proved to be only just one of several attempts of the government
to prosecute Tanchanco. In 1997, a total of 22 Informations were filed with the Sandiganbayan
against Tanchanco. He was charged with 21 counts of Malversation of Public Funds under Article
217 of the Revised Penal Code, and one count of Failure of Accountable Officer to Render Accounts
under Article 218 of the same Code. 5 Lacson was charged as a co-defendant in four of the
informations for Malversation of Public Funds.6 These cases were consolidated and raffled to the
Sandiganbayan Second Division. On 2 September 1997, Tanchanco and Lacson pleaded not guilty
to all of the charges.7

On 26 November 1997, Tanchanco and Lacson filed a Motion to Quash and/or Dismiss all 22 cases,
citing as basis the Cooperation Agreement which was said to have granted immunity to Tanchanco
from criminal prosecution. They likewise presented an affidavit executed by former Vice-President
Emmanuel Pelaez, who was serving as Philippine Ambassador to the United States at the time of
the New York trial of Imelda Marcos. In his affidavit, Ambassador Pelaez relevantly stated:

2. During my incumbency as Ambassador, I had the privilege to assist the Philippine Government
thru the Presidential Commission on Good Government (PCGG) in obtaining the full cooperation of
Mr. Jesus Tanchanco relative to its investigation on the transfer of TEN MILLION PESOS
(₱10,000,000.00) rebate obtained by the National Food Authority (NFA) from the Philippine National
Lines (PNL) to the Security Bank. The scope of investigation also encompassed the controversial
use of discretionary and/or intelligence funds by the Marcos Administration particularly involving the
funds of NFA during the administratorship of Mr. Tanchanco.

3. In this regard, sometime May 1990, I invited Mr. Jesus Tanchanco, on behalf of PCGG, to my
office in Washington, D.C. to have an investigative meeting with Atty. Severina Rivera and Atty.
Labella, both of whom presented PCGG in cases against the Marcoses in the U.S. On this occasion,
it was explained to Mr. Tanchanco that his disclosure/testimony on the adverted P10M fund transfer
and the matter of discretionary and intelligence funds of the NFA were indispensable to the
Philippine Government’s case against the Marcoses. I urged him to cooperate with the Government
and he signified his willingness to do so.

4. After a time of reflection, Mr. Tanchanco obliged, and he thereafter had lengthy question and
answer sessions with Attys. Rivera and Labella on the aforesaid major and other collateral issues. 8

Still, the motion was denied by the Sandiganbayan Second Division in a Resolution dated 5 March
1999.9 The Sandiganbayan examined Section 5 of Executive Order (E.O.) No. 14, which empowered
the PCGG to grant immunity from criminal prosecution, and ruled that the grant of immunity by the
PCGG pertained only to offenses which may arise from the act of a person testifying or giving
information in connection with the recovery of supposed ill-gotten wealth.

Respondent court declared that the charges of malversation and failure to render an accounting
could not be considered as falling within the immunity granted to Tanchanco as the offenses were
not related or connected to the testimony or information furnished by Tanchanco in a proceeding
concerning the recovery of the purported ill-gotten wealth of the Marcoses. The Sandiganbayan
opined that the PCGG could not have intended the grant of immunity to extend to any other crime
which Tanchanco may have committed while serving the Marcos Administration, "such as bribery
and rape," since such was beyond the scope of the PCGG to bestow. To construe the grant of
immunity so broadly, held the Sandiganbayan, would violate the equal protection clause of the
Constitution, as well as the due process clause. 10

The Sandiganbayan likewise concluded that even assuming the immunity granted by
the Cooperation Agreement covered the offenses charged against Tanchanco, the same could not
benefit Lacson, as he was not a party to the immunity agreement. 11

A Motion for Reconsideration filed by Tanchanco and Lacson was denied in a Resolution dated 28

December 1998, the Sandiganbayan declaring therein that the crimes to which petitioners were
charged "are beyond the authority and mandate of the PCGG."12
Petitioners now argue before this Court that the grant of immunity under the Cooperation
Agreement encompassed the subject charges. They note that Tanchanco had given testimony in the
United States regarding the intelligence fund of the NFA, which was used by President Marcos for
his own personal benefit. Petitioners advert to the affidavit attesting to such testimony by
Ambassador Pelaez. It is argued that Tanchanco had complied with all his commitments made in
the Cooperation Agreement, and it would be the height of "gross distortion of justice and both moral
and legal outrage for the government now to welch on the said Agreement" after Tanchanco had
already testified against the Marcoses. Petitioners likewise cite the relevant jurisprudence
concerning the grant of immunity from criminal prosecution by the PCGG.

The Office of the Special Prosecutor, on behalf of the People of the Philippines, cites the comment
filed by the PCGG to the Motion to Quash and/or Dismiss before the Sandiganbayan, wherein it
alleged that contrary to the terms of the Cooperation Agreement, Tanchanco had not yet provided
the PCGG "a full disclosure of assets and liabilities beneficially owned by Tanchanco." 13 This claim is
countered by petitioners, who assert before this Court that he had already submitted such disclosure
to the PCGG even prior to the execution and signing of the Cooperation Agreement.14

The Office of the Solicitor General (OSG), representing respondent Sandiganbayan, provides a
different argument against petitioners. The OSG reiterates the position of the Sandiganbayan that
the 22 charges against Tanchanco were not covered by the immunity granted by the PCGG, which
pertained only to offenses which may arise from his act in testifying or giving information in
connection with the recovery of ill-gotten wealth. 15

Before delving into the merits, we make two preliminary qualifications. First, the general rule under
Rule 117 of the Rules of Criminal Procedure is that the accused may move to quash the complaint
or information at any time before entering his plea and the failure of the accused to assert any
ground of a motion to quash before he pleads to the complaint or information shall be deemed a
waiver of any objection.16 In this case, Tanchanco and Lacson had pleaded not guilty in all the
subject cases on 2 September 1997, two months before they filed the instant Motion to Quash
and/or Dismiss in November of 1997. Nonetheless, Section 9 of Rule 117 expressly qualifies that the
failure to timely raise the objection of lack of jurisdiction over the offense charged cannot be
waived,17 and may be raised or considered motu proprio by the court at any stage of the proceedings
or on appeal.18 Such objection could be raised through a motion to dismiss when it is no longer
timely to file a motion to quash.19 We have no doubt that a claim of immunity from prosecution arising
from an immunity statute or agreement is a jurisdictional question. A statutory grant of immunity
enjoins the prosecution of a criminal action and thus deprives the court of jurisdiction to proceed. 20

Accordingly, the invocation of immunity may have been the proper subject of petitioners’ instant
motion, and properly cognizable by the Sandiganbayan even after the plea had been entered. We
need not belabor this point further, especially since none of the parties, and certainly not the
Sandiganbayan, have either raised or considered this aspect of the case.

Second, we note that different circumstances obtain between Tanchanco and Lacson, the latter
being evidently not a party to any immunity agreement with the Philippine government. Thus, it is
proper to treat their cases separately. We first rule on Tanchanco’s claim of immunity.

The Plain Meaning of the

Cooperation Agreement

Our first point of reference understandably is the Cooperation Agreement. Therein, we note that the
grant of immunity to Tanchanco is deliberately broad. It is stipulated that the government "shall not
bring any additional civil or criminal charges against Tanchanco arising from: (a) service in or for the
Marcos government; and (b) any other actions revealed by Tanchanco pursuant to his/her (sic)
cooperation as defined in this Agreement." 21

The undertakings expressed by the Philippine government through the PCGG in the Cooperation
Agreement are quite clear-cut, even if broad in scope. Facially, it seemingly encompasses three
classes of actions committed by Tanchanco: those committed while he was in the service of the
Marcos government; those committed in behalf of the Marcos government; and any other act
revealed by him in the course of his cooperation with the PCGG.

Especially telling are the segregations made in the classification of the acts covered by the grant of
criminal immunity. First, the distinction is laid, as signified by the conjunctive "or", between those
acts committed by Tanchanco arising from service in the Marcos government and those committed
for or in behalf of the Marcos government. The difference between those two classes of acts is
crucial, for if the agreement is construed plainly, the immunity covers not only those acts committed
by Tanchanco for the benefit or under the instruction of the Marcoses, but even those acts of
Tanchanco which may not have been tinged with the involvement of Marcos or his government yet
which nevertheless occurred during Tanchanco’s term as NFA Administrator.

On the face of the document, we cannot simply say that the clause should be read as covering only
those acts of Tanchanco which he committed for the Marcos government while he was in service as
NFA Administrator. The use of the word "or" signifies the joinder of two distinct concepts: "service in"
and "service for", and it is our conclusion that the PCGG and Tanchanco, in forging the Cooperation
Agreement purposively intended to segregate acts arising from "service in" and acts arising from
"service for" the Marcos government.

The Cooperation Agreement also utilizes a distinction between these acts arising from "service in or
for the Marcos government", and "any other actions revealed by Tanchanco pursuant to [his]
cooperation as defined in the Agreement." This qualification is again crucial, as it is the contention of
the OSG that the scope of immunity is limited only to those offenses which may arise from his act in
testifying or giving information in connection with the recovery of ill-gotten wealth. Immunity from
criminal prosecution arising from those acts elicited from Tanchanco in the course of his cooperation
falls squarely within the second ground for immunity, "any other actions revealed by Tanchanco
pursuant to [his] cooperation." If indeed, as the OSG suggests, the scope of immunity is limited to
those offenses that arise from Tanchanco’s act in testifying or giving information, then why the
provision of the first ground of immunity under the Cooperation Agreement, for acts arising from
"service in or service for the Marcos government"? The provision is there to effectuate what it
declares.

Other provisions of the Cooperation Agreement likewise indicate that the intent of the PCGG, as
representative of the Philippine government, was to offer Tanchanco broad protection from criminal
prosecution. The Second Whereas Clause expresses that both Tanchanco and the PCGG "are
desirous of resolving their differences and settling all litigation between them". 22 Moreover, it is
stipulated that "none of the obligations or undertakings described [herein] are in any way dependent
upon a jury’s or court’s verdict at any trial, or the success of any criminal or civil prosecution." 23

We thus cannot accept the conclusion that the intent of the parties to the Cooperation
Agreement was to limit the scope of immunity to cover only offenses arising from the testimony or
information given by Tanchanco pursuant to his cooperation; or that said agreement pertains only to
those offenses committed by Tanchanco in behalf of the Marcos government. Such limited
construction is belied by the clear terms of the Cooperation Agreement.
The reasons or motives of the PCGG in agreeing to so broad an immunity agreement are not
evidently determinable, yet ultimately excluded from the scope of judicial inquiry. In Mapa v.
Sandiganbayan,24 the Court was asked to rule on the range and power of the courts to review the
exercise of discretion of the PCGG in granting immunity pursuant to Section 5 of E.O. No. 14. The
Court, speaking through now Senior Associate Justice Reynato S. Puno, ruled that such review "can
go no further than to pass upon [the immunity grant’s] procedural regularity", and is especially limited
to the questions of "(a) whether the person claiming immunity has provided information or testimony
in any investigation conducted by the PCGG in the discharge of its functions; (b) whether in the bona
fide judgment of the PCGG, the information or testimony given would establish the unlawful manner
in which the respondent, defendant or accused has acquired or accumulated the property or
properties in question; and (c) whether in the bona fide judgment of the PCGG, such information or
testimony is necessary to ascertain or prove the guilt or civil liability of the respondent, defendant or
accused."25

The ruling in Mapa, which was ignored by the Sandiganbayan, establishes several principles that
govern this case as seen in our subsequent discussion. But the first integral point which we now
invoke is that the reasons or motives of the PCGG in granting broad criminal immunity to Tanchanco
are beyond the scope of judicial review. The more appropriate legal question now lies as to whether
the PCGG, in entering into the Cooperation Agreement, acted within the scope of its statutory
authority to extend immunity in the first place? Does such authority encompass the broadly granted
immunity as so plainly expressed in the Cooperation Agreement?

Statutory Authority of PCGG

To Extend Criminal Immunity

Before we examine the particular statutory authority of the PCGG to extend criminal immunity, it is
useful to recall the unique nature and mandate of the PCGG itself. The seminal case of BASECO v.
PCGG26 explained the background behind the creation of the PCGG through E.O. No. 1.

The impugned executive orders are avowedly meant to carry out the explicit command of
the Provisional Constitution, ordained by Proclamation No. 3, that the President — in the exercise
of legislative power which she was authorized to continue to wield "(u)ntil a legislature is elected and
convened under a new Constitution" — "shall give priority to measures to achieve the mandate
of the people," among others to (r)ecover ill-gotten properties amassed by the leaders and
supporters of the previous regime and protect the interest of the people through orders of
sequestration or freezing of assets or accounts."

xxx

Executive Order No. 1 stresses the "urgent need to recover all ill-gotten wealth," and postulates
that "vast resources of the government have been amassed by former President Ferdinand E.
Marcos, his immediate family, relatives, and close associates both here and abroad." Upon
these premises, the Presidential Commission on Good Government was created, "charged
with the task of assisting the President in regard to . . . (certain specified) matters," among which
was precisely —

". . . The recovery of all ill-gotten wealth accumulated by former President Ferdinand E.
Marcos, his immediate family, relatives, subordinates and close associates, whether located
in the Philippines or abroad, including the takeover or sequestration of all business
enterprises and entities owned or controlled by them, during his administration, directly or
through nominees, by taking undue advantage of their public office and/or using their
powers, authority, influence, connections or relationship."

In relation to the takeover or sequestration that it was authorized to undertake in the fulfillment of its
mission, the PCGG was granted "power and authority" to do the following particular acts, to wit:

1. "To sequester or place or cause to be placed under its control or possession any building or office
wherein any ill-gotten wealth or properties may be found, and any records pertaining thereto, in
order to prevent their destruction, concealment or disappearance which would frustrate or hamper
the investigation or otherwise prevent the Commission from accomplishing its task."

"2. "To provisionally take over in the public interest or to prevent the disposal or dissipation, business
enterprises and properties taken over by the government of the Marcos Administration or by entities
or persons close to former President Marcos, until the transactions leading to such acquisition by the
latter can be disposed of by the appropriate authorities.

"3. "To enjoin or restrain any actual or threatened commission of acts by any person or entity that
may render moot and academic, or frustrate or otherwise make ineffectual the efforts of the
Commission to carry out its task under this order."

So that it might ascertain the facts germane to its objectives, it was granted power to conduct
investigations; require submission of evidence by subpoenae ad testificandum and duces tecum;
administer oaths; punish for contempt. It was given power also to promulgate such rules and
regulations as may be necessary to carry out the purposes of . . . (its creation.)."

xxx

Executive Order No. 2 gives additional and more specific data and directions respecting "the
recovery of ill-gotten properties amassed by the leaders and supporters of the previous regime." It
declares that:

1) ". . . the Government of the Philippines is in possession of evidence showing that there are assets
and properties purportedly pertaining to former Ferdinand E. Marcos, and/or his wife Mrs. Imelda
Romualdez Marcos, their close relatives, subordinates, business associates, dummies, agents or
nominees which had been or were acquired by them directly or indirectly, through or as a result of
the improper or illegal use of funds or properties owned by the government of the Philippines or any
of its branches, instrumentalities, enterprises, banks or financial institutions, or by taking undue
advantage of their office, authority, influence, connections or relationship, resulting in their unjust
enrichment and causing grave damage and prejudice to the Filipino people and the Republic of the
Philippines;" and

2) ". . . said assets and properties are in the form of bank accounts, deposits, trust accounts, shares
of stocks, buildings, shopping centers, condominiums, mansions, residences, estates, and other
kinds of real and personal properties in the Philippines and in various countries of the world."

xxx

A third executive order is relevant: Executive Order No. 14, by which the PCGG is empowered, "with
the assistance of the Office of the Solicitor General and other government agencies, . . . to file and
prosecute all cases investigated by it . . . as may be warranted by its findings." All such cases,
whether civil or criminal, are to be filed "with the Sandiganbayan, which shall have exclusive and
original jurisdiction thereof." Executive

Order No. 14 also pertinently provides that "(c)ivil suits for restitution, reparation of damages, or
indemnification for consequential damages, forfeiture proceedings provided for under Republic Act
No. 1379, or any other civil actions under the Civil Code or other existing laws, in connection with . . .
(said Executive Orders Numbered 1 and 2) may be filed separately from and proceed independently
of any criminal proceedings and may be proved by a preponderance of evidence;" and that,
moreover, the "technical rules of procedure and evidence shall not be strictly applied to . . . (said)
civil cases."27

Executive Order No. 14, as amended by E.O. No. 14-A, defines "the jurisdiction over cases involving
the ill-gotten wealth of former President Ferdinand E. Marcos, Mrs. Imelda R. Marcos, members of
their immediate family, close relatives, subordinates, close and/or business associates, dummies,
agents and nominees."28 It is Section 5 thereof, as amended, which authorizes the PCGG to grant
immunity from criminal prosecution, in the following manner:

Sec. 5. The Presidential Commission on Good Government is authorized to grant immunity

from criminal prosecution to any person who provides information or testifies in any
investigation conducted by such Commission to establish the unlawful manner in which any
respondent, defendant or accused has acquired or accumulated the property or properties in
question in any case where such information or testimony is necessary to ascertain or prove
the latter's guilt or his civil liability. The immunity thereby granted shall be continued to protect
the witness who repeats such testimony before the Sandiganbayan when required to do so by the
latter or by the Commission.29

From these premises, we can draw useful conclusions. Section 5 is worded in such a manner as it
does not provide any express limitations as to the scope of immunity from criminal prosecution that
the PCGG is authorized to grant. The qualifications that Section 5 do provide relate to the character
of the information or testimony before the PCGG of the grantee of immunity, namely, that it
"establish[es] the unlawful manner in which any respondent, defendant or accused has acquired or
accumulated the property or properties in question in any case where such information or testimony
is necessary to ascertain or prove the latter's guilt or his civil liability."

While there is no doubt that the information or testimony of the grantee must pertain to the manner
of acquisition of ill-gotten wealth by the Marcoses, their close relatives and associates, the question
now before us is whether the available immunity from criminal prosecution relates only to the
prosecution of the grantee in like minded cases. The Sandiganbayan opined in the affirmative,
declaring that "[t]he charges of malversation and failure to render an account cannot be considered
within the purview of the immunity granted to Tanchanco by the PCGG, since the offenses are not
related to or connected with the testimony or information furnished by Tanchanco in a proceeding
concerning the recovery of the purported ill-gotten wealth of the former President, his relatives and
associates."30 We are constrained to disagree.

The Court has been called upon before to construe Section 5 of E.O. No. 14-A. As earlier noted, the
Court in Mapa31 held that the power of the Sandiganbayan to review such grant of immunity by the
PCGG could "go no further than to pass upon its procedural regularity." In Chavez v. PCGG,32 the
Court reiterated that the conditions under which the PCGG may grant criminal immunity were: "(1)
the person to whom criminal immunity is granted provides information or testifies in an investigation
conducted by the Commission; (2) the information or testimony pertains to the unlawful manner in
which the respondent, defendant or accused acquired or accumulated ill-gotten property; and (3)
such information or testimony is necessary to ascertain or prove guilt or civil liability of such
individual."33

The Court in both cases adverted to the same characterization of criminal immunity under Section 5.
Notably, the Court did not affirm the belief that the scope of criminal immunity was limited to any
class of criminal acts, offenses, or cases–understandable considering that Section 5 does not make
any such qualification. Moreover, our ruling in Mapa went as far as to squarely characterize the
witness under Section 5 of E.O. No. 14-A as "completely immunized from prosecution."34 In the
same case, the Court even upheld the immunity granted to petitioners Mapa and Vergara despite
the fact that the PCGG subsequently reversed track and acceded to the prosecution of the said
petitioners.

To be certain, the Sandiganbayan’s conclusion in this case is not entirely off-base. We have
recognized in this jurisdiction that American common law generally recognizes two kinds of statutory
criminal immunity available to a witness: transactional immunity and the use-and-derivative-use
immunity.35 Transactional immunity is broader in the scope of its protection. By its grant, a witness
can no longer be prosecuted for any offense whatsoever arising out of the act or transaction to which
the testimony relates. In contrast, by the grant of use-and-derivative-use immunity, a witness is only
assured that his or her particular testimony and evidence derived from it will not be used against him
or her in a subsequent prosecution. 36

Applying the broader standard of "transactional immunity", it might be argued that the immunity
which the PCGG is authorized to grant to Tanchanco should pertain only to those acts or offenses
which are the subject of the information or testimony given by him. Considering though that the
applicable law at hand does not make such a qualification, the adoption of that view would force us
into a concession that the legislative authority to grant criminal immunity is limited to transactional or
use-and-derivative-use immunity. We cannot accept the proposition.

Transactional immunity derives from common-law tradition, which gives greater deference to the
weight of judicial precedents since the codification of laws by the legislature is atypical in practice. In
our jurisdiction though, the definition of crimes and provision of criminal penalties are ineluctably
within the sole province of the legislative branch of government. It thus follows that this prerogative
necessarily empowers the legislative to enact conditions under which a class of persons may be
immune from criminal or civil prosecution. Since the legislature possesses sole discretion to enact
statutes to such effect, it is not obliged to conform with judge-made standards, or even traditional
modalities concerning the grant of criminal immunity. The solitary limitation on legislative grant of
immunity, as with all other legislative acts, is adherence to the Constitution.

Another consideration impels us to sustain this broad application of immunity under Section 5 of
E.O. No. 14-A. We cannot ignore the special circumstances under which the PCGG was created,
and the extra-ordinary powers with which it was vested. The Freedom Constitution itself, under
which regime the body was created, recognized the need "to [r]ecover ill-gotten properties amassed
by the leaders and supporters of the [Marcos] regime". It has been acknowledged that the PCGG is
"charged with the herculean task of bailing the country out of the financial bankruptcy and morass of
the previous regime and returning to the people what is rightfully theirs." 37 For this reason, the PCGG
was granted quasi-judicial functions38 encompassing special investigatory and prosecutorial powers,
among them, the power to grant immunity.

In tracing and recovering the colossal sums of "ill-gotten wealth", the PCGG would inevitably collide
with powerful interests. Persons who would be able to assist in the prosecution of cases of ill-gotten
wealth may understandably be hesitant to cooperate with the PCGG without the assurance of some
protection, or perhaps corresponding benefit on their part. There may be some inherent unease with
the notion that persons may acquit themselves of their own criminal culpability by striking a deal with
the government, yet the process of compromise has long been allowed in our jurisdiction, and in the
jurisdiction of other states as well.39 This holds especially true in the prosecution of ill-gotten wealth
cases, which not only involve monumental amounts, but have also ineluctably acquired immense
symbolic value.

The overwhelming need to prosecute the ill-gotten wealth cases is entrenched in statute and public
policy. The stakes being as they are, the need is apparent for a highly conducive environment under
which witnesses may be induced to cooperate with the PCGG in the prosecution of the ill-gotten
wealth cases. The authorization of the PCGG to broadly extend criminal immunity, as is apparent in
the language of Section 5, is attuned to such aims. Certainly, Section 5 as constructed leads to a
reasonable conclusion that the scope of criminal immunity which the PCGG may offer need not be
limited to prosecution relating to the information or testimony offered by the witness. And it is
apparent on the face of the Cooperation Agreement with Tanchanco that the PCGG understood just
as well that it had the power to grant criminal immunity even over such acts which did not directly
bear on the information or testimony.

Our conclusion is also supported by the fact that based on the PCGG immunity agreements which
have come before this Court, the scope of offered immunity has proven variable. For example, the
grant of immunity accorded by the PCGG to Jose Yao Campos and his family was qualified only by
reference to Section 5 of E.O. No. 1440. On the other hand, the immunity received by Placido Mapa
and Lorenzo Vergara was limited over "any offense with reference to which [their] testimony and
information are given, including any offense and commission of which any information, directly or
indirectly derived from such testimony or other information is used as basis thereof, except a
prosecution for perjury and/or giving false testimony." 41 In Tanchanco’s case, his entitlement to
criminal immunity applies to three determinate circumstances: for acts committed while he was in the
service of the Marcos government; acts committed in behalf of the Marcos government; and any
other act revealed by him in the course of his cooperation with the PCGG.

These variances are indicative of the fact that the PCGG has the discretion to vest appropriate levels
of criminal immunity according to the particular witness. There are several factors that may affect
this choice, which may include the relative importance of the witness to the prosecution of ill-gotten
wealth cases, the degree of culpability of such cases, or even the conditions expressed by the
witness as sufficient to induce cooperation. Given the language of Section 5, we do not doubt the
latitude afforded to the PCGG in determining the extent of criminal immunity it can afford the
cooperative witness. Such is conformable to the unprecedented power of the PCGG to grant criminal
immunity. We made the following pertinent observations in Mapa:

We observe that in contrast to our other laws on immunity, section 5 of E.O. No. 14, as amended,
confers on the PCGG the power to grant immunity alone and on its own authority. The exercise of
the power is not shared with any other authority. Nor is its exercise subject to the approval or
disapproval of another agency of government. The basic reason for vesting the power exclusively on
the PCGG lies in the principles of separation of power. The decision to grant immunity from
prosecution forms a constituent part of the prosecution process. It is essentially a tactical decision to
forego prosecution of a person for government to achieve a higher objective. It is a deliberate
renunciation of the right of the State to prosecute all who appear to be guilty of having committed a
crime. Its justification lies in the particular need of the State to obtain the conviction of the more guilty
criminals who, otherwise, will probably elude the long arm of the law. Whether or not the delicate
power should be exercised, who should be extended the privilege, the timing of its grant, are
questions addressed solely to the sound judgment of the prosecution. The power to prosecute
includes the right to determine who shall be prosecuted and the corollary right to decide whom not to
prosecute. In reviewing the exercise of prosecutorial discretion in these areas, the jurisdiction of the
respondent court is limited. For the business of a court of justice is to be an impartial tribunal, and
not to get involved with the success or failure of the prosecution to prosecute. Every now and then,
the prosecution may err in the selection of its strategies, but such errors are not for neutral courts to
rectify, any more than courts should correct the blunders of the defense. For fairness demands that
courts keep the scales of justice at equipoise between and among all litigants. Due process
demands that courts should strive to maintain the legal playing field perfectly even and perpetually
level.42

Certainly, especially since nothing in Section 5 mandates a minimum standard of criminal immunity,
the PCGG was not obliged to grant Tanchanco so broad an exemption. Yet the extent to which it did
is permissible under E.O. No. 14-A, and we are wont to uphold the broad grant, especially as it
favors a criminal defendant. Ambiguities in immunity agreements must be construed against the
State,43 and any question of interpretation must be resolved in favor of the

defendant,44 following the underlying fundamental principle that all doubts must be resolved in favor
of the accused.

We are not in accord with the behavior of both the government and the Sandiganbayan in this case.
We have reviewed the pertinent memoranda prepared respectively by the Commission on Audit and
the Office of the Special Prosecutor which eventually served as the basis for the institution of the
cases. From these documents, it is clear that no consideration was given to the possible effects of
the Cooperation Agreement on the viability of prosecuting Tanchanco. The attitude of the
investigators and prosecutors appears to have been to pretend that the Cooperation Agreement did
not exist at all. This fact weakens the believability of belated claims, raised in opposition to the
instant motion to quash/dismiss, that Tanchanco had actually violated portions of the Cooperation
Agreement. The indications are that the prosecutors, prior to the institution of the case, had not
considered such agreement at all as a factor, despite the clear language therein.

If indeed the government had known as a fact that Tanchanco had violated his obligations under
the Cooperation Agreement, the very least it could have done was to notify him of such violations, or
of its intent to rescind the Cooperation Agreement. Vested rights were at stake which affected the
liberty of a person, and any deprivation or revocation therein could not be effected in so blithe a
fashion as that which occurred in this case.

Neither does it appear that the Sandiganbayan had given careful consideration to the Cooperation
Agreement when it ruled on the motion to quash/dismiss. It resorted to generalizations such as "the
offenses are not related to or connected with the testimony or information furnished by
Tanchanco"45 or "the subject matter of the informations are NFA funds and the records do not
indicate that they have any relation whatsoever to the ill-gotten wealth of the Marcoses or their
cronies."46

Yet from the results of the investigations that led to the institution of the charges, it is clear that the
cases against Tanchanco arose from the following acts or irregularities: (1) the transfer of NFA funds
either to Tanchanco’s personal account, the account of "Oplan

Wag-Wag", or a private institution; (2) the failure to account for several classes of funds received by
Tanchanco, including discretionary funds, amounts contributed to the Food Production and Nutrition
Fund, and other donations. From the Pelaez affidavit, it is clear that the PCGG had precisely
investigated the anomalous transfer of NFA funds during the Marcos Administration, particularly the
use of discretionary or intelligence funds of the NFA, and that Tanchanco had given information
relating to such investigation.
Faced with these facts, the conclusion of the Sandiganbayan that the subject informations bore no
relation either to the acquisition of ill-gotten wealth or the investigations of the PCGG is
questionable. It may be within the realm of possibility that at least some of the charges against
Tanchanco pertain to acts he performed for his own personal benefit, without regard to the scheme
implemented for the acquisition of ill-gotten wealth. Still, neither the Sandiganbayan nor the
prosecution appears to have seriously considered or laid down such a distinction. And besides, as
earlier stated, the scope of the Cooperation Agreement itself precludes the prosecution of
Tanchanco under the subject charges.

We should observe that the Sandiganbayan First Division, in a different case, had also considered
the application of the Cooperation Agreement in the criminal prosecution of Tanchanco. The
disposition of the instant motion to quash and/or dismiss of the Sandiganbayan Second Division
pales in comparison to the judicious deliberation of the First Division, through the late Presiding
Justice Francis Garchitorena. Particularly admirable was how the First Division had applied this
Court’s precedents on the authority of the PCGG to grant criminal immunity, especially Mapa. The
First Division cited the threefold test laid down in Mapa on the parameters under which the
Sandiganbayan could review the grant of immunity, and arrived at the following crucial conclusions,
namely: (i) that Tanchanco had cooperated with the PCGG in obtaining information on the Marcos
wealth; and (ii) that the PCGG exercised bona fide judgment in deciding to grant immunity to
Tanchanco. In contrast, the Sandiganbayan Second Division, without considering Mapa and other
relevant precedents, rashly concluded without palpable basis that the Cooperation Agreement did
not cover the subject charges.47

We thus hold that the Cooperation Agreement, validly undertaken between the PCGG and
Tanchanco as it was, precludes the prosecution of Tanchanco under the subject charges. The
Sandiganbayan acted with grave abuse of discretion in refusing to dismiss the charges despite its
lack of jurisdiction to continue hearing the cases against Tanchanco. The present petition, insofar as
it relates to Tanchanco, must be granted. It goes without saying though that this ruling does not
shield all grantees under Section 5 of E.O. No. 14-A from all kinds

of criminal prosecution. The extent of immunity available to each particular grantee depends on their
respective immunity agreements with the PCGG and the surrounding facts.

Lacson Not Entitled To Immunity

A different result must obtain for petitioner Lacson. There is no legal basis that would preclude his
prosecution under the subject informations. The reason is simple. There is no subsisting agreement
by virtue of which the State granted any kind of immunity from criminal prosecution to Lacson.
Certainly, Lacson could not inveigh that Tanchanco’s Cooperation Agreement also applies as to him
since he was not a party thereto. Nor is there, on the face of the Cooperation Agreement, any
evident intention on the part of the PCGG and Tanchanco to extend the grant of immunity to other
persons as well. Besides, even if there was such intent, it may be of doubtful validity since the
authority of the PCGG to grant immunity under Section 5-A of E.O. No. 14-A is limited to "person[s]
who provide information or testif[y] in any investigation conducted by [the PCGG]." 48

Criminal immunity must be specifically granted.49 We cannot uphold a grant of criminal immunity to a
person whom the State never intended to exempt from prosecution, or who performed no act to the
benefit of the State that may have served as basis for a possible grant of exemption. It should be
emphasized that the grant of immunity to Tanchanco did not have the effect of obviating all
consequential culpabilities arising from Tanchanco’s acts. Only Tanchanco’s own criminal liability
was extirpated, for the reason that the government saw a higher social value in eliciting information
from him rather than engaging in his prosecution. No correlative tradeoff occurred as to Lacson, so
we do not see any reason in law or in equity to exempt him as well.

It may seem unsettling to some that Lacson will have to endure criminal prosecution while
Tanchanco would be discharged, or that Tanchanco will need not answer for whatever culpable acts
of his during his service in the Marcos government. Yet the Court is not the guarantor of karmic
warrants, but only of legal ones. The Cooperation Agreement, entered into in the judgment of the
State that it would serve a higher end of justice, is a valid document, enforceable as to Tanchanco
before this Court and other courts of the land.

WHEREFORE, the petition is GRANTED IN PART. The Court hereby orders the DISMISSAL of the
SUBJECT CRIMINAL CASES INSOFAR AS PETITIONER JESUS TANCHANCO IS CONCERNED.
No pronouncement as to costs.

SO ORDERED.

.R. Nos. 71208-09 August 30, 1985

SATURNINA GALMAN AND REYNALDO GALMAN, petitioners,

vs.
THE HONORABLE PRESIDING JUSTICE MANUEL PAMARAN AND ASSOCIATE JUSTICES
AUGUSTO AMORES AND BIENVENIDO VERA CRUZ OF THE SANDIGANBAYAN, THE
HONORABLE BERNARDO FERNANDEZ, TANODBAYAN, GENERAL FABIAN C. VER, MAJOR
GENERAL PROSPERO OLIVAS, SGT. PABLO MARTINEZ, SGT. TOMAS FERNANDEZ, SGT.
LEONARDO MOJICA SGT. PEPITO TORIO, SGT. PROSPERO BONA AND AlC ANICETO
ACUPIDO, respondents.

G.R. Nos. 71212-13 August 30, 1985

PEOPLE OF THE PHILIPPINES, represented by the TANODBAYAN (OMBUDSMAN), petitioner,

vs.
THE SANDIGANBAYAN, GENERAL FABIAN C. VER, MAJOR GEN. PROSPERO OLIVAS, SGT.
PABLO MARTINEZ, SGT. TOMAS FERNANDEZ, SGT. LEONARDO MOJICA, SGT. PEPITO
TORIO, SGT. PROSPERO BONA AND AIC ANICETO ACUPIDO, respondents.

CUEVAS, JR., J.:

On August 21, 1983, a crime unparalleled in repercussions and ramifications was committed inside
the premises of the Manila International Airport (MIA) in Pasay City. Former Senator Benigno S.
Aquino, Jr., an opposition stalwart who was returning to the country after a long-sojourn abroad, was
gunned down to death. The assassination rippled shock-waves throughout the entire country which
reverberated beyond the territorial confines of this Republic. The after-shocks stunned the nation
even more as this ramified to all aspects of Philippine political, economic and social life.

To determine the facts and circumstances surrounding the killing and to allow a free, unlimited and
exhaustive investigation of all aspects of the tragedy,   P.D. 1886 was promulgated creating an ad
1

hoc Fact Finding Board which later became more popularly known as the Agrava Board.   Pursuant
2

to the powers vested in it by P.D. 1886, the Board conducted public hearings wherein various
witnesses appeared and testified and/or produced documentary and other evidence either in
obedience to a subpoena or in response to an invitation issued by the Board Among the witnesses
who appeared, testified and produced evidence before the Board were the herein private
respondents General Fabian C. Ver, Major General Prospero Olivas,   Sgt. Pablo Martinez, Sgt.
3

Tomas Fernandez, Sgt. Leonardo Mojica, Sgt. Pepito Torio, Sgt. Prospero Bona and AIC Aniceto
Acupido.  4

UPON termination of the investigation, two (2) reports were submitted to His Excellency, President
Ferdinand E. Marcos. One, by its Chairman, the Hon. Justice Corazon Juliano Agrava; and another
one, jointly authored by the other members of the Board — namely: Hon. Luciano Salazar, Hon.
Amado Dizon, Hon. Dante Santos and Hon. Ernesto Herrera. 'the reports were thereafter referred
and turned over to the TANODBAYAN for appropriate action. After conducting the necessary
preliminary investigation, the TANODBAYAN   filed with the SANDIGANBAYAN two (2) Informations
5

for MURDER-one for the killing of Sen. Benigno S. Aquino which was docketed as Criminal Case
No. 10010 and another, criminal Case No. 10011, for the killing of Rolando Galman, who was found
dead on the airport tarmac not far from the prostrate body of Sen. Aquino on that same fateful day.
In both criminal cases, private respondents were charged as accessories, along with several
principals, and one accomplice.

Upon arraignment, all the accused, including the herein private ate Respondents pleaded NOT
GUILTY.

In the course of the joint trial of the two (2) aforementioned cases, the Prosecution represented by
the Office of the petition TANODBAYAN, marked and thereafter offered as part of its evidence, the
individual testimonies of private respondents before the Agrava Board.   Private respondents,
6

through their respective counsel objected to the admission of said exhibits. Private respondent Gen.
Ver filed a formal "Motion to Exclude Testimonies of Gen. Fabian C. Ver before the Fact Finding
Board as Evidence against him in the above-entitled cases"   contending that its admission will be in
7

derogation of his constitutional right against self-incrimination and violative of the immunity granted
by P.D. 1886. He prayed that his aforesaid testimony be rejected as evidence for the prosecution.
Major Gen. Olivas and the rest of the other private respondents likewise filed separate motions to
exclude their respective individual testimonies invoking the same ground.   Petitioner TANODBAYAN
8

opposed said motions contending that the immunity relied upon by the private respondents in
support of their motions to exclude their respective testimonies, was not available to them because
of their failure to invoke their right against self-incrimination before the ad hoc Fact Finding
Board.   Respondent SANDIGANBAYAN ordered the TANODBAYAN and the private respondents to
9

submit their respective memorandum on the issue after which said motions will be considered
submitted for resolution. 
10

On May 30, 1985, petitioner having no further witnesses to present and having been required to
make its offer of evidence in writing, respondent SANDIGANBAYAN, without the pending motions for
exclusion being resolved, issued a Resolution directing that by agreement of the parties, the pending
motions for exclusion and the opposition thereto, together with the memorandum in support thereof,
as well as the legal issues and arguments, raised therein are to be considered jointly in the Court's
Resolution on the prosecution's formal offer of exhibits and other documentary evidences.  On June
11

3, 1985, the prosecution made a written "Formal Offer of Evidence" which includes, among others,
the testimonies of private respondents and other evidences produced by them before the Board, all
of which have been previously marked in the course of the trial. 12

All the private respondents objected to the prosecution's formal offer of evidence on the same
ground relied upon by them in their respective motion for exclusion.
On June 13, 1985, respondent SANDIGANBAYAN issued a Resolution, now assailed in these two
(2) petitions, admitting all the evidences offered by the prosecution except the testimonies and/or
other evidence produced by the private respondents in view of the immunity granted by P.D. 1886.  13

Petitioners' motion for the reconsideration of the said Resolution having been DENIED, they now
come before Us by way of certiorari   praying for the amendment and/or setting aside of the
14

challenged Resolution on the ground that it was issued without jurisdiction and/or with grave abuse
of discretion amounting to lack of jurisdiction. Private prosecutor below, as counsel for the mother of
deceased Rolando Galman, also filed a separate petition for certiorari   on the same ground. Having
15

arisen from the same factual beginnings and raising practically Identical issues, the two (2)
petitioners were consolidated and will therefore be jointly dealt with and resolved in this Decision.

The crux of the instant controversy is the admissibility in evidence of the testimonies given by the
eight (8) private respondents who did not invoke their rights against self-incrimination before the
Agrava Board.

It is the submission of the prosecution, now represented by the petitioner TANODBAYAN, that said
testimonies are admissible against the private respondents, respectively, because of the latter's
failure to invoke before the Agrava Board the immunity granted by P.D. 1886. Since private
respondents did not invoke said privilege, the immunity did not attach. Petitioners went further by
contending that such failure to claim said constitutional privilege amounts to a waiver thereof.   The
16

private respondents, on the other hand, claim that notwithstanding failure to set up the privilege
against self- incrimination before the Agrava Board, said evidences cannot be used against them as
mandated by Section 5 of the said P.D. 1886. They contend that without the immunity provided for
by the second clause of Section 5, P.D. 1886, the legal compulsion imposed by the first clause of the
same Section would suffer from constitutional infirmity for being violative of the witness' right against
self- incrimination.   Thus, the protagonists are locked in horns on the effect and legal significance of
17

failure to set up the privilege against self-incrimination.

The question presented before Us is a novel one. Heretofore, this Court has not been previously
called upon to rule on issues involving immunity statutes. The relative novelty of the question
coupled with the extraordinary circumstance that had precipitated the same did nothing to ease the
burden of laying down the criteria upon which this Court will henceforth build future jurisprudence on
a heretofore unexplored area of judicial inquiry. In carrying out this monumental task, however, We
shall be guided, as always, by the constitution and existing laws.

The Agrava Board,   came into existence in response to a popular public clamor that an impartial
18

and independent body, instead of any ordinary police agency, be charged with the task of
conducting the investigation. The then early distortions and exaggerations, both in foreign and local
media, relative to the probable motive behind the assassination and the person or persons
responsible for or involved in the assassination hastened its creation and heavily contributed to its
early formation. 
19

Although referred to and designated as a mere Fact Finding Board, the Board is in truth and in fact,
and to all legal intents and purposes, an entity charged, not only with the function of determining the
facts and circumstances surrounding the killing, but more importantly, the determination of the
person or persons criminally responsible therefor so that they may be brought before the bar of
justice. For indeed, what good will it be to the entire nation and the more than 50 million Filipinos to
know the facts and circumstances of the killing if the culprit or culprits will nevertheless not be dealt
with criminally? This purpose is implicit from Section 12 of the said Presidential Decree, the pertinent
portion of which provides —
 SECTION 12. The findings of the Board shall be made public. Should the findings
warrant the prosecution of any person, the Board may initiate the filing of proper
complaint with the appropriate got government agency. ... (Emphasis supplied)

The investigation therefor is also geared, as any other similar investigation of its sort, to the
ascertainment and/or determination of the culprit or culprits, their consequent prosecution and
ultimately, their conviction. And as safeguard, the P.D. guarantees "any person called to testify
before the Board the right to counsel at any stage of the proceedings."   Considering the foregoing
20

environmental settings, it cannot be denied that in the course of receiving evidence, persons
summoned to testify will include not merely plain witnesses but also those suspected as authors and
co-participants in the tragic killing. And when suspects are summoned and called to testify and/or
produce evidence, the situation is one where the person testifying or producing evidence is
undergoing investigation for the commission of an offense and not merely in order to shed light on
the facts and surrounding circumstances of the assassination, but more importantly, to determine the
character and extent of his participation therein.

Among this class of witnesses were the herein private respondents, suspects in the said
assassination, all of whom except Generals Ver and Olivas, were detained (under technical arrest)
at the time they were summoned and gave their testimonies before the Agrava Board. This
notwithstanding, Presidential Decree No. 1886 denied them the right to remain silent. They were
compelled to testify or be witnesses against themselves. Section 5 of P.D. 1886 leave them no
choice. They have to take the witness stand, testify or produce evidence, under pain of contempt if
they failed or refused to do so.   The jeopardy of being placed behind prison bars even before
21

conviction dangled before their very eyes. Similarly, they cannot invoke the right not to be a witness
against themselves, both of which are sacrosantly enshrined and protected by our fundamental
law.  -a Both these constitutional rights (to remain silent and not to be compelled to be a witness
21

against himself) were right away totally foreclosed by P.D. 1886. And yet when they so testified and
produced evidence as ordered, they were not immune from prosecution by reason of the testimony
given by them.

Of course, it may be argued is not the right to remain silent available only to a person undergoing
custodial interrogation? We find no categorical statement in the constitutional provision on the matter
which reads:

... Any person under investigation for the commission of an offense shall have the
right to remain and to counsel, and to be informed of such right. ...   (Emphasis
22

supplied)

Since the effectivity of the 1973 Constitution, we now have a mass of jurisprudence   on this specific
23

portion of the subject provision. In all these cases, it has been categorically declared that a person
detained for the commission of an offense undergoing investigation has a right to be informed of his
right to remain silent, to counsel, and to an admonition that any and all statements to be given by
him may be used against him. Significantly however, there has been no pronouncement in any of
these cases nor in any other that a person similarly undergoing investigation for the commission of
an offense, if not detained, is not entitled to the constitutional admonition mandated by said Section
20, Art. IV of the Bill of Rights.

The fact that the framers of our Constitution did not choose to use the term "custodial" by having it
inserted between the words "under" and investigation", as in fact the sentence opens with the phrase
"any person " goes to prove that they did not adopt in toto the entire fabric of the Miranda
doctrine.   Neither are we impressed by petitioners' contention that the use of the word "confession"
24

in the last sentence of said Section 20, Article 4 connotes the Idea that it applies only to police
investigation, for although the word "confession" is used, the protection covers not only
"confessions" but also "admissions" made in violation of this section. They are inadmissible against
the source of the confession or admission and against third person.  25

It is true a person in custody undergoing investigation labors under a more formidable ordeal and
graver trying conditions than one who is at liberty while being investigated. But the common
denominator in both which is sought to be avoided is the evil of extorting from the very mouth of the
person undergoing interrogation for the commission of an offense, the very evidence with which to
prosecute and thereafter convict him. This is the lamentable situation we have at hand.

All the private respondents, except Generals Ver and Olivas, are members of the military contingent
that escorted Sen. Aquino while disembarking from the plane that brought him home to Manila on
that fateful day. Being at the scene of the crime as such, they were among the first line of suspects
in the subject assassination. General Ver on the other hand, being the highest military authority of
his co-petitioners labored under the same suspicion and so with General Olivas, the first designated
investigator of the tragedy, but whom others suspected, felt and believed to have bungled the case.
The papers, especially the foreign media, and rumors from uglywagging tongues, all point to them as
having, in one way or another participated or have something to do, in the alleged conspiracy that
brought about the assassination. Could there still be any doubt then that their being asked to testify,
was to determine whether they were really conspirators and if so, the extent of their participation in
the said conspiracy? It is too taxing upon one's credulity to believe that private respondents' being
called to the witness stand was merely to elicit from them facts and circumstances surrounding the
tragedy, which was already so abundantly supplied by other ordinary witnesses who had testified
earlier. In fact, the records show that Generals Ver and Olivas were among the last witnesses called
by the Agrava Board. The subject matter dealt with and the line of questioning as shown by the
transcript of their testimonies before the Agrava Board, indubitably evinced purposes other than
merely eliciting and determining the so-called surrounding facts and circumstances of the
assassination. In the light of the examination reflected by the record, it is not far-fetched to conclude
that they were called to the stand to determine their probable involvement in the crime being
investigated. Yet they have not been informed or at the very least even warned while so testifying,
even at that particular stage of their testimonies, of their right to remain silent and that any statement
given by them may be used against them. If the investigation was conducted, say by the PC, NBI or
by other police agency, all the herein private respondents could not have been compelled to give
any statement whether incriminatory or exculpatory. Not only that. They are also entitled to be
admonished of their constitutional right to remain silent, to counsel, and be informed that any and all
statements given by them may be used against them. Did they lose their aforesaid constitutional
rights simply because the investigation was by the Agrava Board and not by any police investigator,
officer or agency? True, they continued testifying. May that be construed as a waiver of their rights to
remain silent and not to be compelled to be a witness against themselves? The answer is yes, if they
have the option to do so. But in the light of the first portion of Section 5 of P.D. 1886 and the
awesome contempt power of the Board to punish any refusal to testify or produce evidence, We are
not persuaded that when they testified, they voluntarily waived their constitutional rights not to be
compelled to be a witness against themselves much less their right to remain silent.

Compulsion as it is understood here does not necessarily connote the use of

violence; it may be the product of unintentional statements. Pressure which operates
to overbear his will, disable him from making a free and rational choice, or impair his
capacity for rational judgment would in our opinion be sufficient. So is moral coercion
'tending to force testimony from the unwilling lips of the defendant. 26

Similarly, in the case of Louis J. Lefkowitz v. Russel   Turley" citing Garrity vs. New Jersey" where
27

certain police officers summoned to an inquiry being conducted by the Attorney General involving
the fixing of traffic tickets were asked questions following a warning that if they did not answer they
would be removed from office and that anything they said might be used against them in any
criminal proceeding, and the questions were answered, the answers given cannot over their
objection be later used in their prosecutions for conspiracy. The United States Supreme Court went
further in holding that:

the protection of the individuals under the Fourteenth Amendment against coerced
statements prohibits use in subsequent proceedings of statements obtained under
threat or removal from office, and that it extends to all, whether they are policemen or
other members of the body politic. 385 US at 500, 17 L Ed. 562. The Court also held
that in the context of threats of removal from office the act of responding to
interrogation was not voluntary and was not an effective waiver of the privilege
against self- incrimination.

To buttress their precarious stand and breathe life into a seemingly hopeless cause, petitioners and
amicus curiae (Ex-Senator Ambrosio Padilla) assert that the "right not to be compelled to be a
witness against himself" applies only in favor of an accused in a criminal case. Hence, it may not be
invoked by any of the herein private respondents before the Agrava Board. The Cabal vs.
Kapunan   doctrine militates very heavily against this theory. Said case is not a criminal case as its
28

title very clearly indicates. It is not People vs. Cabal nor a prosecution for a criminal offense. And yet,
when Cabal refused to take the stand, to be sworn and to testify upon being called as a witness for
complainant Col. Maristela in a forfeiture of illegally acquired assets, this Court sustained Cabal's
plea that for him to be compelled to testify will be in violation of his right against self- incrimination.
We did not therein state that since he is not an accused and the case is not a criminal case, Cabal
cannot refuse to take the witness stand and testify, and that he can invoke his right against self-
incrimination only when a question which tends to elicit an answer that will incriminate him is
profounded to him. Clearly then, it is not the character of the suit involved but the nature of the
proceedings that controls. The privilege has consistently been held to extend to all proceedings
sanctioned by law and to all cases in which punishment is sought to be visited upon a witness,
whether a party or not.   If in a mere forfeiture case where only property rights were involved, "the
29

right not to be compelled to be a witness against himself" is secured in favor of the defendant, then
with more reason it cannot be denied to a person facing investigation before a Fact Finding Board
where his life and liberty, by reason of the statements to be given by him, hang on the balance.
Further enlightenment on the subject can be found in the historical background of this constitutional
provision against self- incrimination. The privilege against self- incrimination is guaranteed in the
Fifth Amendment to the Federal Constitution. In the Philippines, the same principle obtains as a
direct result of American influence. At first, the provision in our organic laws were similar to the
Constitution of the United States and was as follows:

That no person shall be ... compelled in a criminal case to be a witness against

himself. 30

As now worded, Section 20 of Article IV reads:

No person shall be compelled to be a witness against himself.

The deletion of the phrase "in a criminal case" connotes no other import except to make said
provision also applicable to cases other than criminal. Decidedly then, the right "not to be compelled
to testify against himself" applies to the herein private respondents notwithstanding that the
proceedings before the Agrava Board is not, in its strictest sense, a criminal case
No doubt, the private respondents were not merely denied the afore-discussed sacred constitutional
rights, but also the right to "due process" which is fundamental fairness.   Quoting the highly-
31

respected eminent constitutionalist that once graced this Court, the former Chief Justice Enrique M.
Fernando, due process —

... is responsiveness to the supremacy of reason, obedience to the dictates of justice.

Negatively put, arbitrariness is ruled out and unfairness avoided. To satisfy the due
process requirement, official action, to paraphrase Cardozo, must not outrun the
bounds of reason and result in sheer oppression. Due process is thus hostile to any
official action marred by lack of reasonableness. Correctly, it has been Identified as
freedom from arbitrariness. It is the embodiment of the sporting Idea of fair
play (Frankfurter, Mr. Justice Holmes and the Supreme Court, 1983, pp. 32-33). It
exacts fealty "to those strivings for justice and judges the act of officialdom of
whatever branch "in the light of reason drawn from considerations of fairness that
reflect (democratic) traditions of legal and political thought." (Frankfurter, Hannah v.
Larche 1960, 363 US 20, at 487). It is not a narrow or '"echnical conception with
fixed content unrelated to time, place and circumstances."(Cafeteria Workers v.
McElroy 1961, 367 US 1230) Decisions based on such a clause requiring a 'close
and perceptive inquiry into fundamental principles of our society. (Bartkus vs. Illinois,
1959, 359 US 121). Questions of due process are not to be treated narrowly or
pedantically in slavery to form or phrases. (Pearson v. McGraw, 1939, 308 US 313).

Our review of the pleadings and their annexes, together with the oral arguments, manifestations and
admissions of both counsel, failed to reveal adherence to and compliance with due process. The
manner in which the testimonies were taken from private respondents fall short of the constitutional
standards both under the DUE PROCESS CLAUSE and under the EXCLUSIONARY RULE in
Section 20, Article IV. In the face of such grave constitutional infirmities, the individual testimonies of
private respondents cannot be admitted against them in ally criminal proceeding. This is true
regardless of absence of claim of constitutional privilege or of the presence of a grant of immunity by
law. Nevertheless, We shall rule on the effect of such absence of claim to the availability to private
respondents of the immunity provided for in Section 5, P.D. 1886 which issue was squarely raised
and extensively discussed in the pleadings and oral arguments of the parties.

Immunity statutes may be generally classified into two: one, which grants "use immunity"; and the
other, which grants what is known as "transactional immunity." The distinction between the two is as
follows: "Use immunity" prohibits use of witness' compelled testimony and its fruits in any manner in
connection with the criminal prosecution of the witness. On the other hand, "transactional immunity"
grants immunity to the witness from prosecution for an offense to which his compelled testimony
relates."   Examining Presidential Decree 1886, more specifically Section 5 thereof, which reads:
32

SEC. 5. No person shall be excused from attending and testifying or from producing
books, records, correspondence, documents, or other evidence in obedience to a
subpoena issued by the Board on the ground that his testimony or the evidence
required of him may tend to incriminate him or subject him to penalty or forfeiture; but
his testimony or any evidence produced by him shall not be used against him in
connection with any transaction, matter or thing concerning which he is compelled,
after having invoked his privilege against self-incrimination, to testify or produce
evidence, except that such individual so testifying shall not be exempt from
prosecution and punishment for perjury committed in so testifying, nor shall he be
exempt from demotion or removal from office. (Emphasis supplied)
it is beyond dispute that said law belongs to the first type of immunity statutes. It grants merely
immunity from use of any statement given before the Board, but not immunity from prosecution by
reason or on the basis thereof. Merely testifying and/or producing evidence do not render the
witness immuned from prosecution notwithstanding his invocation of the right against self-
incrimination. He is merely saved from the use against him of such statement and nothing more.
Stated otherwise ... he still runs the risk of being prosecuted even if he sets up his right against self-
incrimination. The dictates of fair play, which is the hallmark of due process, demands that private
respondents should have been informed of their rights to remain silent and warned that any and all
statements to be given by them may be used against them. This, they were denied, under the
pretense that they are not entitled to it and that the Board has no obligation to so inform them.

It is for this reason that we cannot subscribe to the view adopted and urged upon Us by the
petitioners that the right against self-incrimination must be invoked before the Board in order to
prevent use of any given statement against the testifying witness in a subsequent criminal
prosecution. A literal interpretation fashioned upon Us is repugnant to Article IV, Section 20 of the
Constitution, which is the first test of admissibility. It reads:

No person shall be compelled to be a witness against himself. Any person under

investigation for the commission of an offense shall have the right to remain silent
and to counsel, and to be informed of such right. No force, violence, threat,
intimidation, or any other means which vitiates the free will shall be used against him.
Any confession obtained in violation of this section shall be inadmissible in evidence.
(Emphasis supplied)

The aforequoted provision renders inadmissible any confession obtained in violation thereof. As
herein earlier discussed, this exclusionary rule applies not only to confessions but also to
admissions,   whether made by a witness in any proceeding or by an accused in a criminal
33

proceeding or any person under investigation for the commission of an offense. Any interpretation of
a statute which will give it a meaning in conflict with the Constitution must be avoided. So much so
that if two or more constructions or interpretations could possibly be resorted to, then that one which
will avoid unconstitutionality must be adopted even though it may be necessary for this purpose to
disregard the more usual and apparent import of the language used.   To save the statute from a
34

declaration of unconstitutionality it must be given a reasonable construction that will bring it within
the fundamental law.   Apparent conflict between two clauses should be harmonized. 
35 36

But a literal application of a requirement of a claim of the privilege against self- incrimination as a
condition sine qua non to the grant of immunity presupposes that from a layman's point of view, he
has the option to refuse to answer questions and therefore, to make such claim. P.D. 1886,
however, forecloses such option of refusal by imposing sanctions upon its exercise, thus:

SEC. 4. The Board may hold any person in direct or indirect contempt, and impose
appropriate penalties therefor. A person guilty of .... including ... refusal to be sworn
or to answer as a witness or to subscribe to an affidavit or deposition when lawfully
required to do so may be summarily adjudged in direct contempt by the Board. ...

Such threat of punishment for making a claim of the privilege leaves the witness no choice but to
answer and thereby forfeit the immunity purportedly granted by Sec. 5. The absurdity of such
application is apparent Sec. 5 requires a claim which it, however, forecloses under threat of
contempt proceedings against anyone who makes such claim. But the strong testimonial compulsion
imposed by Section 5 of P.D. 1886 viewed in the light of the sanctions provided in Section
4,infringes upon the witness' right against self-incrimination. As a rule, such infringement of the
constitutional right renders inoperative the testimonial compulsion, meaning, the witness cannot be
compelled to answer UNLESS a co-extensive protection in the form of IMMUNITY is
offered.   Hence, under the oppressive compulsion of P.D. 1886, immunity must in fact be offered to
37

the witness before he can be required to answer, so as to safeguard his sacred constitutional right.
But in this case, the compulsion has already produced its desired results the private respondents
had all testified without offer of immunity. Their constitutional rights are therefore, in jeopardy. The
only way to cure the law of its unconstitutional effects is to construe it in the manner as if IMMUNITY
had in fact been offered. We hold, therefore, that in view of the potent sanctions imposed on the
refusal to testify or to answer questions under Sec. 4 of P.D. 1886, the testimonies compelled
thereby are deemed immunized under Section 5 of the same law. The applicability of the immunity
granted by P.D. 1886 cannot be made to depend on a claim of the privilege against self-incrimination
which the same law practically strips away from the witness.

With the stand we take on the issue before Us, and considering the temper of the times, we run the
risk of being consigned to unpopularity. Conscious as we are of, but undaunted by, the frightening
consequences that hover before Us, we have strictly adhered to the Constitution in upholding the
rule of law finding solace in the view very aptly articulated by that well-known civil libertarian and
admired defender of human rights of this Court, Mr. Justice Claudio Teehankee, in the case
of People vs. Manalang   and we quote:
38

I am completely conscious of the need for a balancing of the interests of society with
the rights and freedoms of the individuals. I have advocated the balancing-of-
interests rule in an situations which call for an appraisal of the interplay of conflicting
interests of consequential dimensions. But I reject any proposition that would blindly
uphold the interests of society at the sacrifice of the dignity of any human being.
(Emphasis supplied)

Lest we be misunderstood, let it be known that we are not by this disposition passing upon the guilt
or innocence of the herein private respondents an issue which is before the Sandiganbayan. We are
merely resolving a question of law and the pronouncement herein made applies to all similarly
situated, irrespective of one's rank and status in society.

IN VIEW OF THE FOREGOING CONSIDERATIONS and finding the instant petitions without merit,
same are DISMISSED. No pronouncement as to costs.

SO ORDERED.

G.R. No. L-29169           August 19, 1968

ROGER CHAVEZ, petitioner,
vs.
THE HONORABLE COURT OF APPEALS, THE PEOPLE OF THE PHILIPPINES and THE
WARDEN OF THE CITY JAIL OF MANILA, respondents.

Estanislao E. Fernandez and Fausto Arce for petitioner.

Office of the Solicitor General for respondents.

SANCHEZ, J.:

The thrust of petitioner's case presented in his original and supplementary petitions invoking
jurisdiction of this Court is that he is entitled, on habeas corpus, to be freed from imprisonment upon
the ground that in the trial which resulted in his conviction 1 he was denied his constitutional right not
to be compelled to testify against himself. There is his prayer, too, that, should he fail in this, he be
granted the alternative remedies of certiorari to strike down the two resolutions of the Court of
Appeals dismissing his appeal for failure to file brief, and of mandamus to direct the said court to
forward his appeal to this Court for the reason that he was raising purely questions of law.

The indictment in the court below — the third amended information — upon which the judgment of
conviction herein challenged was rendered, was for qualified theft of a motor vehicle, one (1)
Thunderbird car, Motor No. H9YH-143003, with Plate No. H-16648 Pasay City '62 together with its
accessories worth P22,200.00. Accused were the following: Petitioner herein, Roger Chavez,
Ricardo Sumilang alias "Romeo Vasquez", Edgardo P. Pascual alias "Ging" Pascual, Pedro Rebullo
alias "Pita", Luis Asistio alias "Baby" Asistio, Lorenzo Meneses alias "Lory" Meneses, Peter Doe,
Charlie Doe and Paul Doe.2

Averred in the aforesaid information was that on or about the 14th day of November, 1962, in
Quezon City, the accused conspired, with intent of gain, abuse of confidence and without the
consent of the owner thereof, Dy Sun Hiok y Lim, in asporting the motor vehicle above-described.

Upon arraignment, all the accused, except the three Does who have not been identified nor
apprehended, pleaded not guilty. 1äwphï1.ñët

On July 23, 1963, trial commenced before the judge presiding Branch IX of the Court of First
Instance of Rizal in Quezon City.

The trial opened with the following dialogue, which for the great bearing it has on this case, is here
reproduced:.

COURT:

The parties may proceed.

FISCAL GRECIA:

Our first witness is Roger Chavez [one of the accused].

ATTY. CARBON [Counsel for petitioner Chavez]:

I am quite taken by surprise, as counsel for the accused Roger Chavez, with this move of the
Fiscal in presenting him as his witness. I object.

COURT:

On what ground, counsel? .

ATTY. CARBON:

On the ground that I have to confer with my client. It is really surprising that at this stage,
without my being notified by the Fiscal, my client is being presented as witness for the
prosecution. I want to say in passing that it is only at this very moment that I come to know
about this strategy of the prosecution.

COURT (To the Fiscal):

You are not withdrawing the information against the accused Roger Chavez by making [him
a] state witness?.

FISCAL GRECIA:

I am not making him as state witness, Your Honor.

I am only presenting him as an ordinary witness.

ATTY. CARBON:

As a matter of right, because it will incriminate my client, I object.

COURT:

The Court will give counsel for Roger Chavez fifteen minutes within which to confer and
explain to his client about the giving of his testimony.

xxx     xxx     xxx

COURT: [after the recess]

Are the parties ready? .

FISCAL:

We are ready to call on our first witness, Roger Chavez.

ATTY. CARBON:

As per understanding, the proceeding was suspended in order to enable me to confer with
my client.

I conferred with my client and he assured me that he will not testify for the prosecution this
morning after I have explained to him the consequences of what will transpire.

COURT:

What he will testify to does not necessarily incriminate him, counsel.

And there is the right of the prosecution to ask anybody to act as witness on the witness-
stand including the accused.

If there should be any question that is incriminating then that is the time for counsel to
interpose his objection and the court will sustain him if and when the court feels that the
answer of this witness to the question would incriminate him.

Counsel has all the assurance that the court will not require the witness to answer questions
which would incriminate him.

But surely, counsel could not object to have the accused called on the witnessstand.
ATTY. CARBON:

I submit.

xxx     xxx     xxx

ATTY. CRUZ [Counsel for defendants Pascual and Meneses]: .

MAY IT PLEASE THE COURT:

This incident of the accused Roger Chavez being called to testify for the prosecution is
something so sudden that has come to the knowledge of this counsel.

This representation has been apprised of the witnesses embraced in the information.

For which reason I pray this court that I be given at least some days to meet whatever
testimony this witness will bring about. I therefore move for postponement of today's hearing.

COURT:

The court will give counsel time within which to prepare his cross-examination of this
witness.

ATTY. CRUZ:

I labored under the impression that the witnesses for the prosecution in this criminal case are
those only listed in the information.

I did not know until this morning that one of the accused will testify as witness for the
prosecution.

COURT:

That's the reason why the court will go along with counsels for the accused and will give
them time within which to prepare for their cross-examination of this witness.

The court will not defer the taking of the direct examination of the witness.

Call the witness to the witness stand.

EVIDENCE FOR THE PROSECUTION

ROGER CHAVEZ, 31 years old, single, buy and sell merchant, presently detained at the
Manila Police Department headquarters, after being duly sworn according to law, declared
as follows:

ATTY. IBASCO [Counsel for defendant Luis Asistio]:

WITH THE LEAVE OF THE COURT:

 This witness, Roger Chavez is one of the accused in this case No. Q-5311.

The information alleges conspiracy. Under Rule 123, Section 12, it states:

'The act or declaration of a conspirator relating to the conspiracy and during its existence,
may be given in evidence against the co-conspirator after the conspiracy is shown by
evidence other than such act or declaration.'

COURT:

That is premature, counsel. Neither the court nor counsels for the accused know what
the prosecution events to establish by calling this witness to the witness stand.

ATTY. IBASCO:

I submit.

COURT: The Fiscal may proceed.3

And so did the trial proceed. It began with the "direct examination" of Roger Chavez by "Fiscal
Grecia".

Came the judgment of February 1, 1965. The version of the prosecution as found by the court below
may be briefly narrated as follows:

A few days before November 12, 1962, Roger Chavez saw Johnson Lee, a Chinese, driving a
Thunderbird car. With Ricardo Sumilang (movie actor Romeo Vasquez) in mind, whom he knew was
in the market for such a car, Chavez asked Lee whether his car was for sale. Lee answered
affirmatively and left his address with Chavez. Then, on November 12, Chavez met Sumilang at a
barbershop informed him about the Thunderbird. But Sumilang said that he had changed his mind
about buying a new car. Instead, he told Chavez that he wanted to mortgage his Buick car for
P10,000.00 to cover an indebtedness in Pasay City. Upon the suggestion of Chavez, they went to
see Luis Asistio, who he knew was lending money on car mortgages and who, on one occasion,
already lent Romeo Vasquez P3,000.00 on the same Buick car. Asistio however told the two that he
had a better idea on how to raise the money. His plan was to capitalize on Romeo Vasquez'
reputation as a wealthy movie star, introduce him as a buyer to someone who was selling a car and,
after the deed of sale is signed, by trickery to run away with the car. Asistio would then register it,
sell it to a third person for a profit. Chavez known to be a car agent was included in the plan. He
furnished the name of Johnson Lee who was selling his Thunderbird.  1äwphï1.ñët

In the morning of November 14, Chavez telephoned Johnson Lee and arranged for an appointment.
Sometime in the afternoon. Chavez and Sumilang met Lee in his Thunderbird on Highway 54.
Sumilang was introduced as the interested buyer. Sumilang's driver inspected the car, took the
wheel for a while. After Sumilang and Lee agreed on the purchase price (P21.000.00), they went to
Binondo to Johnson Lee's cousin, Dy Sun Hiok, in whose name the car was registered. Thereafter,
they went to see a lawyer notary public in Quezon City, known to Chavez for the drafting of the deed
of sale. After the deed of sale was drawn up, it was signed by Sumilang as the vendee, Dy Sun Hiok
the vendor, and Sumilang's driver and Johnson Lee the witnesses thereto.
As payment was to be made at Eugene's restaurant in Quezon City, all of them then drove in the
Thunderbird car to that place. The deed of sale and other papers remained in the pockets of
Johnson Lee.

At Eugene's, a man approached Sumilang with a note which stated that the money was ready at the
Dalisay Theater. Sumilang then wrote on the same note that the money should be brought to the
restaurant. At the same time he requested Lee to exhibit the deed of sale of the car to the note
bearer.4

Then, the two Chinese were left alone in the restaurant. For Sumilang, who had left the table to pose
for pictures with some fans and come back, again left never to return. So did Chavez, who
disappeared after he left on the pretext of buying cigarettes. The two Chinese could not locate
Sumilang and Chavez. They went out to the place where the Thunderbird was parked, found that it
was gone. They then immediately reported its loss to the police. Much later, the NBI recovered the
already repainted car and impounded it.

Right after the meeting at Eugene's, Chavez, Sumilang and Asistio converged that same day at
Barrio Fiesta, a restaurant at Highway 54 near the Balintawak monument in Caloocan. There, Asistio
handed to Sumilang P1,000.00 cash and a golf set worth P800.00 as the latter's share in the
transaction. On the 14th of November, the registration of the car was transferred in the name of
Sumilang in Cavite City, and three days later, in the name of Asistio in Caloocan.

From the court's decision, Ricardo Sumilang's version, corroborated in part by Asistio, may be
condensed as follows:

In the last week of September, 1962, Sumilang saw Roger Chavez at a gas station. The latter
informed him that there was a Thunderbird from Clark Field for sale for a price between P20,000.00
and P22,000.00. Chavez said that it could be held for him with a down payment of P10,000.00.

To raise this sum, Sumilang and Chavez, on October 1, went to the house of a certain Nena
Hernaez de los Reyes who wrote out a check for P5,000.00 as a loan to Sumilang. That check was
exhibited in court. Sumilang and Chavez then went to Pasay City to see a certain Mario Baltazar, an
agent of the Pasay City Mayor, and Narsing Cailles, Chief of the Fire Department. Sumilang asked
the two for a P10,000-loan backed up by the P5,000.00-check aforesaid on condition that it should
not be cashed immediately as there were not enough funds therefor. Baltazar and Cailles agreed to
give the money the nextday as long as the check would be left with them and Sumilang would sign a
promissory note for P10,000.00. Baltazar later informed Sumilang that Chavez picked up the money
the next day. Four or five days afterwards, Chavez returned P4,000.00 to Sumilang because
P6,000.00 was enough for the deposit. And so, Sumilang gave back the P4,000.00 to Baltazar.

About the end of October or at the beginning of November, Chavez asked Sumilang for another
P3,000.00. Sumilang sent Chavez to Baltazar and Cailles, with a note requesting that they
accommodate him once more. He also sent a check, again without funds. Baltazar gave the money
after verifying the authenticity of the note.

On November 14, Chavez appeared at Sumilang's house with the news that the car was ready if
Sumilang was ready with the rest of the money. So Sumilang got P9,000.00 from his mother and
another P4,000.00 from his aparador. He immediately gave P6,000.00 to Chavez, intending to pay
out the balance upon the car's delivery. It was then that Chavez told Sumilang that the car was
already bought by a Chinese who would be the vendor.
The purchase price finally agreed upon between Sumilang and Johnson Lee was P21,000.00, plus
P500.00 agents commission at the expense of the buyer. Sumilang told Lee that he already paid
part of the price to Chavez.

At Eugene's, Chavez asked Sumilang for the balance. Sumilang accommodated. There, Sumilang,
also saw a friend, "Ging" Pascual. In the course of their conversation at the bar, Sumilang mentioned
the proposed transaction thru Chavez. Pascual warned that Chavez was a "smart" agent and
advised that Sumilang should have a receipt for his money. A certain Bimbo, a friend of Pascual,
offered to make out a receipt for Chavez to sign.

After Sumilang returned from posing for some photographs with some of his fans, Bimbo showed
him the receipt already signed by Chavez. Sumilang requested Pascual and Bimbo to sign the
receipt as witnesses. And they did. This receipt was offered as an exhibit by the prosecution and by
Sumilang.

When Sumilang was ready to leave Eugene's, Johnson Lee turned over to him the deed of sale, the
registration papers and the keys to the car. After shaking hands with Lee, Sumilang drove away in
the car with his driver at the wheel.

Two or three days afterwards, Sumilang dropped by the Barrio Fiesta on his way to a film shooting at
Bulacan. He saw Asistio with many companions. Asistio liked his Thunderbird parked outside.
Asistio offered to buy it from him for P22,500.00. As the offer was good, and knowing Asistio's and
his friends' reputation for always getting what they wanted, Sumilang consented to the sale. Asistio
tendered a down payment of P1,000.00; the balance he promised to pay the next day after
negotiating with some financing company. Before said balance could be paid, the car was
impounded.

The trial court gave evidence to Sumilang's averment, strengthened by Baltazar's and Cailles'
corroborations, that he paid good money for the car. Sumilang was thus cleared. So was Asistio
whom the trial court believed to be a mere buyer of the car. And so, the prosecution's theory of
conspiracy was discounted.

As to the other accused, the court found no case against Pedro Rebullo alias "Pita" and Lorenzo
Meneses alias "Lory". The accused "Ging" Pascual was also acquitted for in the first place he was
not identified by Johnson Lee in court.

As to Roger Chavez, however, the court had this to say: "Roger Chavez does not offer any
defense. As a matter of fact, his testimony as witness for the prosecution establishes his guilt
beyond reasonable doubt."5 The trial court branded him "a self-confessed culprit". 6 The court further
continued:

It is not improbable that true to the saying that misery loves company Roger Chavez tried to
drag his co-accused down with him by coloring his story with fabrications which he expected
would easily stick together what with the newspaper notoriety of one and the sensationalism
caused by the other. But Roger Chavez' accusations of Asistio's participation is utterly
uncorroborated. And coming, as it does, from a man who has had at least two convictions for
acts not very different from those charged in this information, the Court would be too
gullible if it were to give full credence to his words even if they concerned a man no less
notorious than himself.7

The trial court then came to the conclusion that if Johnson Lee was not paid for his car, he had no
one but Roger Chavez to blame.
The sum of all these is that the trial court freed all the accused except Roger Chavez who was found
guilty beyond reasonable doubt of the crime of qualified theft. He was accordingly sentenced to
suffer an indeterminate penalty of not less than ten (10) years, one (1) day, as minimum and not
more than fourteen (14) years, eight (8) months and one (1) day as maximum, to indemnify Dy Sun
Hiok and/or Johnson Lee in the sum of P21,000.00 without subsidiary imprisonment in case of
insolvency, to undergo the accessory penalties prescribed by law, and to pay the costs. The
Thunderbird car then in the custody of the NBI was ordered to be turned over to Ricardo Sumilang,
who was directed to return to Asistio the sum of P1,000.00 unless the latter chose to pay
P21,500.00, representing the balance of the contract price for the car.

The foregoing sentence was promulgated on March 8, 1965. Roger Chavez appealed to the Court of
Appeals.

On April 18, 1968, the Court of Appeals required Atty. Natividad Marquez, counsel for Roger
Chavez, to show cause within ten days from notice why Chavez' appeal should not be considered
abandoned and dismissed. Reason for this is that said lawyer received notice to file brief on
December 28, 1967 and the period for the filing thereof lapsed on January 27, 1968 without any brief
having been filed.

On May 13, 1968, Atty. Marquez registered a detailed written explanation. She also stated that if she
were allowed to file appellant's brief she would go along with the factual findings of the court below
but will show however that its conclusion is erroneous. 8

On May 14, 1968, the Court of Appeals, despite the foregoing explanation, resolved to dismiss the
appeal. A move to reconsider was unavailing. For, on June 21, 1968, the Court of Appeals, through
a per curiam resolution, disposed to maintain its May 14 resolution dismissing the appeal, directed
the City Warden of Manila where Chavez is confined by virtue of the warrant of arrest issued by the
Court of Appeals, to turn him over to Muntinlupa Bilibid Prisons pending execution of the judgment
below, and ordered remand of the case to the Quezon City court for execution of judgment.

It was at this stage that the present proceedings were commenced in this Court.

Upon the petitions, the return, and the reply, and after hearing on oral arguments, we now come to
grips with the main problem presented.

We concentrate attention on that phase of the issues which relates petitioner's assertion that he was
compelled to testify against himself. For indeed if this one question is resolved in the affirmative, we
need not reach the others; in which case, these should not be pursued here.

1. Petitioner's plea on this score rests upon his averment, with proof, of violation of his right —
constitutionally entrenched — against self-incrimination. He asks that the hand of this Court be made
to bear down upon his conviction; that he be relieved of the effects thereof. He asks us to consider
the constitutional injunction that "No person shall be compelled to be a witness against
himself,"9 fully echoed in Section 1, Rule 115, Rules of Court where, in all criminal prosecutions, the
defendant shall be entitled: "(e) To be exempt from being a witness against himself." .

It has been said that forcing a man to be a witness against himself is at war with "the fundamentals
of a republican government"; 10 that [i]t may suit the purposes of despotic power but it can not abide
the pure atmosphere of political liberty and personal freedom." 11 Mr. Justice Abad Santos recounts
the historical background of this constitutional inhibition, thus: " "The maxim Nemo tenetur seipsum
accusare had its origin in a protest against the inquisitorial and manifestly unjust methods of
interrogating accused persons, which has long obtained in the continental system, and, until the
expulsion of the Stuarts from the British throne in 1688, and the erection of additional barriers for the
protection of the people against the exercise of arbitrary power, was not uncommon even in
England. While the admissions of confessions of the prisoner, when voluntarily and freely made,
have always ranked high in the scale of incriminating evidence, if an accused person be asked to
explain his apparent connection with a crime under investigation, the ease with which the questions
put to him may assume an inquisitorial character, the temptation to press, the witness unduly, to
browbeat him if he be timid or reluctant, to push him into a corner, and to entrap him into fatal
contradictions, which is so painfully evident in many of the earlier state trials, notably in those of Sir
Nicholas Throckmorton, and Udal, the Puritan minister, made the system so odious as to give rise to
a demand for its total abolition. The change in the English criminal procedure in that particular
seems to be founded upon no statute and no judicial opinion, but upon a general and silent
acquiescence of the courts in a popular demand. But, however adopted, it has become firmly
embedded in English, as well as in American jurisprudence. So deeply did the iniquities of the
ancient system impress themselves upon the minds of the American colonists that the states, with
one accord, made a denial of the right to question an accused person a part of their fundamental
law, so that a maxim which in England was a mere rule of evidence, became clothed in this country
with the impregnability of a constitutional enactment." (Brown vs. Walker, 161 U.S., 591, 597; 40
Law. ed., 819, 821)." 12 Mr. Justice Malcolm, in expressive language, tells us that this maxim was
recognized in England in the early days "in a revolt against the thumbscrew and the rack." 13 An old
Philippine case [1904] 14 speaks of this constitutional injunction as "older than the Government of the
United States"; as having "its origin in a protest against the inquisitorial methods of interrogating the
accused person"; and as having been adopted in the Philippines "to wipe out such practices as
formerly prevailed in these Islands of requiring accused persons to submit to judicial examinations,
and to give testimony regarding the offenses with which they were charged."

So it is then that this right is "not merely a formal technical rule the enforcement of which is left to the
discretion of the court"; it is mandatory; it secures to a defendant a valuable and substantive
right; 15 it is fundamental to our scheme of justice. Just a few months ago, the Supreme Court of the
United States (January 29, 1968), speaking thru Mr. Justice Harlan warned that "[t]he constitutional
privilege was intended to shield the guilty and imprudent as well as the innocent and foresighted." 16

It is in this context that we say that the constitutional guarantee may not be treated with unconcern.
To repeat, it is mandatory; it secures to every defendant a valuable and substantive right. Tañada
and Fernando (Constitution of the Philippines, 4th ed., vol. I, pp. 583-584) take note of U.S. vs.
Navarro, supra, which reaffirms the rule that the constitutional proscription was established on broad
grounds of public policy and humanity; of policy because it would place the witness against the
strongest temptation to commit perjury, and of humanity because it would be to extort a confession
of truth by a kind of duress every species and degree of which the law abhors. 17

Therefore, the court may not extract from a defendant's own lips and against his will an admission of
his guilt. Nor may a court as much as resort to compulsory disclosure, directly or indirectly, of facts
usable against him as a confession of the crime or the tendency of which is to prove the commission
of a crime. Because, it is his right to forego testimony, to remain silent, unless he chooses to take
the witness stand — with undiluted, unfettered exercise of his own free, genuine will.

Compulsion as it is understood here does not necessarily connote the use of violence; it may be the
product of unintentional statements. Pressure which operates to overbear his will, disable him from
making a free and rational choice, or impair his capacity for rational judgment would in our opinion
be sufficient. So is moral coercion "tending to force testimony from the unwilling lips of the
defendant." 18
2. With the foregoing as guideposts, we now turn to the facts. Petitioner is a defendant in a criminal
case. He was called by the prosecution as the first witness in that case to testify for the People
during the first day of trial thereof. Petitioner objected and invoked the privilege of self-incrimination.
This he broadened by the clear cut statement that he will not testify. But petitioner's protestations
were met with the judge's emphatic statement that it "is the right of the prosecution to ask anybody
to act as witness on the witness stand including the accused," and that defense counsel "could not
object to have the accused called on the witness stand." The cumulative impact of all these is that
accused-petitioner had to take the stand. He was thus peremptorily asked to create evidence against
himself. The foregoing situation molds a solid case for petitioner, backed by the Constitution, the
law, and jurisprudence.

Petitioner, as accused, occupies a different tier of protection from an ordinary witness. Whereas an
ordinary witness may be compelled to take the witness stand and claim the privilege as each
question requiring an incriminating answer is shot at him, 19 and accused may altogether refuse to
take the witness stand and refuse to answer any and all questions. 20 For, in reality, the purpose of
calling an accused as a witness for the People would be to incriminate him. 21 The rule positively
intends to avoid and prohibit the certainly inhuman procedure of compelling a person "to furnish the
missing evidence necessary for his conviction." 22 This rule may apply even to a co-defendant in a
joint trial.23

And the guide in the interpretation of the constitutional precept that the accused shall not be
compelled to furnish evidence against himself "is not the probability of the evidence but it is
the capability of abuse." 24 Thus it is, that it was undoubtedly erroneous for the trial judge to placate
petitioner with these words:.

What he will testify to does not necessarily incriminate him, counsel.

And there is the right of the prosecution to ask anybody to act as witness on the witness-
stand including the accused.

If there should be any question that is incriminating then that is the time for counsel to
interpose his objection and the court will sustain him if and when the court feels that the
answer of this witness to the question would incriminate him.

Counsel has all the assurance that the court will not require the witness to answer questions
which would incriminate him.

But surely, counsel could not object to have the accused called on the witness stand.

Paraphrasing Chief Justice Marshall in Aaron Burr's Trial, Robertsons Rep. I, 208, 244, quoted in
VIII Wigmore, p. 355, 25 While a defendant's knowledge of the facts remains concealed within his
bosom, he is safe; but draw it from thence, and he is exposed" — to conviction.

The judge's words heretofore quoted — "But surely counsel could not object to have the accused
called on the witness stand" — wielded authority. By those words, petitioner was enveloped by a
coercive force; they deprived him of his will to resist; they foreclosed choice; the realities of human
nature tell us that as he took his oath to tell the truth, the whole truth and nothing but the truth, no
genuine consent underlay submission to take the witness stand. Constitutionally sound consent was
absent.
3. Prejudice to the accused for having been compelled over his objections to be a witness for the
People is at once apparent. The record discloses that by leading questions Chavez, the accused,
was made to affirm his statement given to the NBI agents on July 17, 1963 at 5:00 o'clock in the
afternoon. 26 And this statement detailed the plan and execution thereof by Sumilang (Vasquez),
Asistio and himself to deprive the Chinese of his Thunderbird car. And he himself proceeded to
narrate the same anew in open court. He identified the Thunderbird car involved in the case. 27

The decision convicting Roger Chavez was clearly of the view that the case for the People was built
primarily around the admissions of Chavez himself. The trial court described Chavez as the "star
witness for the prosecution". Indeed, the damaging facts forged in the decision were drawn directly
from the lips of Chavez as a prosecution witness and of course Ricardo Sumilang for the defense.
There are the unequivocal statements in the decision that "even accused Chavez" identified "the
very same Thunderbird that Johnson Lee had offered for sale"; that Chavez "testimony as witness
for the prosecution establishes his guilt beyond reasonable doubt and that Chavez is "a self-
confessed culprit". 1äwphï1.ñët

4. With all these, we have no hesitancy in saying that petitioner was forced to testify to incriminate
himself, in full breach of his constitutional right to remain silent. It cannot be said now that he has
waived his right. He did not volunteer to take the stand and in his own defense; he did not offer
himself as a witness; on the contrary, he claimed the right upon being called to testify. If petitioner
nevertheless answered the questions inspite of his fear of being accused of perjury or being put
under contempt, this circumstance cannot be counted against him. His testimony is not of his own
choice. To him it was a case of compelled submission. He was a cowed participant in proceedings
before a judge who possessed the power to put him under contempt had he chosen to remain silent.
Nor could he escape testifying. The court made it abundantly clear that his testimony at least on
direct examination would be taken right then and thereon the first day of the trial.

It matters not that, after all efforts to stave off petitioner's taking the stand became fruitless, no
objections to questions propounded to him were made. Here involve is not a mere question of self-
incrimination. It is a defendant's constitutional immunity from being called to testify against himself.
And the objection made at the beginning is a continuing one.  1äwphï1.ñët

There is therefore no waiver of the privilege. "To be effective, a waiver must be certain
and unequivocal, and intelligently, understandably, and willingly made; such waiver following only
where liberty of choice has been fully accorded. After a claim a witness cannot properly be held to
have waived his privilege on vague and uncertain evidence." 28 The teaching in Johnson vs.
Zerbst  29 is this: "It has been pointed out that "courts indulge every reasonable presumption against
waiver" of fundamental constitutional rights and that we "do not presume acquiescence in the loss of
fundamental rights." A waiver is ordinarily an intentional relinquishment or abandonment of a known
right or privilege." Renuntiatio non praesumitur.

The foregoing guidelines, juxtaposed with the circumstances of the case heretofore adverted to,
make waiver a shaky defense. It cannot stand. If, by his own admission, defendant proved his guilt,
still, his original claim remains valid. For the privilege, we say again, is a rampart that gives
protection - even to the guilty.  30

5. The course which petitioner takes is correct. Habeas corpus is a high prerogative writ. 31 It is
traditionally considered as an exceptional remedy to release a person whose liberty is illegally
restrained such as when the accused's constitutional rights are disregarded. 32 Such defect results in
the absence or loss of jurisdiction 33 and therefore invalidates the trial and the consequent conviction
of the accused whose fundamental right was violated. 34 That void judgment of conviction may be
challenged by collateral attack, which precisely is the function of habeas corpus. 35 This writ may
issue even if another remedy which is less effective may be availed of by the defendant. 36 Thus,
failure by the accused to perfect his appeal before the Court of Appeals does not preclude a
recourse to the writ. 37 The writ may be granted upon a judgment already final. 38 For, as explained
in Johnson vs. Zerbst, 39 the writ of habeas corpus as an extraordinary remedy must be liberally
given effect 40 so as to protect well a person whose liberty is at stake. The propriety of the writ was
given the nod in that case, involving a violation of another constitutional right, in this wise:

Since the Sixth Amendment constitutionally entitles one charged with crime to the assistance
of Counsel, compliance with this constitutional mandate is an essential jurisdictional
prerequisite to a Federal Court's authority. When this right is properly waived, the assistance
of Counsel is no longer a necessary element of the Court's jurisdiction to proceed to
conviction and sentence. If the accused, however, is not represented by Counsel and has
not competently and intelligently waived his constitutional right, the Sixth Amendment stands
as a jurisdictional bar to a valid conviction and sentence depriving him of his liberty. A court's
jurisdiction at the beginning of trial may be lost "in the course of the proceedings" due to
failure to complete the court — as the Sixth Amendment requires — by providing Counsel for
an accused who is unable to obtain Counsel, who has not intelligently waived this
constitutional guaranty, and whose life or liberty is at stake. If this requirement of the Sixth
Amendment is not complied with, the court no longer has jurisdiction to proceed. The
judgment of conviction pronounced by a court without jurisdiction is void, and
one imprisoned thereunder may obtain release of habeas corpus. 41

Under our own Rules of Court, to grant the remedy to the accused Roger Chavez whose case
presents a clear picture of disregard of a constitutional right is absolutely proper. Section 1 of Rule
102 extends the writ, unless otherwise expressly provided by law, "to all cases of illegal confinement
or detention by which any person is deprived of his liberty, or by which the rightful custody of any
person is withheld from the person entitled thereto.

Just as we are about to write finis to our task, we are prompted to restate that: "A void judgment is in
legal effect no judgment. By it no rights are divested. From it no rights can be obtained. Being
worthless in itself, all proceedings founded upon it are equally worthless. It neither binds nor bars
any one. All acts performed under it and all claims flowing out of it are void. The parties attempting to
enforce it may be responsible as trespassers. ... " 42

6. Respondents' return 43 shows that petitioner is still serving under a final and valid judgment of
conviction for another offense. We should guard against the improvident issuance of an order
discharging a petitioner from confinement. The position we take here is that petitioner herein is
entitled to liberty thru habeas corpus only with respect to Criminal Case Q-5311 of the Court of First
Instance of Rizal, Quezon City Branch, under which he was prosecuted and convicted.

Upon the view we take of this case, judgment is hereby rendered directing the respondent Warden
of the City Jail of Manila or the Director of Prisons or any other officer or person in custody of
petitioner Roger Chavez by reason of the judgment of the Court of First Instance of Rizal, Quezon
City Branch, in Criminal Case Q-5311, entitled "People of the Philippines, plaintiff, vs. Ricardo
Sumilang, et al., accused," to discharge said Roger Chavez from custody, unless he is held, kept in
custody or detained for any cause or reason other than the said judgment in said Criminal Case Q-
5311 of the Court of First Instance of Rizal, Quezon City Branch, in which event the discharge herein
directed shall be effected when such other cause or reason ceases to exist.

No costs. So ordered.