EN BANC

G.R. No. 166401 October 30, 2006

[Formerly G.R. Nos. 158660-67]

PEOPLE OF THE PHILIPPINES, appellee,

vs.
ALFREDO BON, appellant.

DECISION

TINGA, J.:

Two critical issues emerge in this case. The first relates to whether the Court should affirm the
conviction of appellant Alfredo Bon (appellant) for six counts of rape and two counts of attempted
rape, the victims being his then-minor nieces. On that score, we affirm. As a consequence though,
we are ultimately impelled to confront a question much broader in both scope and
import. While the Court had previously declined to acknowledge the constitutional abolition
of the death penalty through the 1987 Constitution,1 we now find it necessary to determine
whether the enactment of Republic Act No. 9346 resulted in the statutory interdiction of the death
penalty.

The second issue arises as we are compelled to review the maximum term of reclusion temporal in
the sentence imposed on appellant by the Court of Appeals for the two counts of attempted rape.
The sentence was prescribed by the appellate court prior to the enactment of Republic Act No. 9346
which ended the imposition of the death penalty in the Philippines. The proximate concern as to
appellant is whether his penalty for attempted qualified rape, which under the penal law should be
two degrees lower than that of consummated qualified rape, should be computed from death
or reclusion perpetua.

First, the antecedent facts.

I.

Eight (8) Informations2 were filed within the period from 21 August 2000 to 23 February 2001 by the
Assistant Provincial Prosecutor of Gumaca, Quezon against appellant, charging him with the rape of
AAA3 and BBB,4 the daughters of his older brother. Appellant was accused of raping AAA in Criminal
Case Nos. 6899-G, 6902-G, 6906-G, and 6908-G; while he was accused of raping BBB in Criminal
Case Nos. 6689-G, 6903-G, 6905-G, and 6907-G.5 All these cases were consolidated for trial. The
rapes were alleged to have been committed in several instances over a span of six (6) years.

Both AAA and BBB testified against appellant, their uncle, and both identified him as the man who
had raped them. During trial, their respective birth certificates and the medical certificates executed
by the doctor who physically examined them were entered as documentary evidence.

AAA testified that she was only six (6) years old when she was first molested in 1994 in the house
appellant had shared with her grandmother. 6 She recounted that the incident took place when she
and appellant were alone in the house. Appellant touched her thighs and vagina, removed her
clothes and inserted his penis into her vagina. Appellant threatened that she and her parents would
be killed should she disclose the incident to anyone. She thereafter stopped sleeping in the house of
her grandmother. It was only three (3) years after, in 1997, that she slept in the said house, yet again
she was sexually abused by appellant. She was then nine (9) years old. 7

AAA recounted that at age eleven (11) in 1999, she was raped by appellant for the third time, again
at the house of her grandmother.8 The following year, when she was twelve (12), she was abused for
the fourth time by appellant. This time, she was raped in an outdoor clearing 9 after having been
invited there by appellant to get some vegetables. While at the clearing, appellant forced her to lie
down on a grassy spot and tried to insert his penis in her vagina. As she cried in pain, appellant
allegedly stopped.10

It was only on 12 June 2000 that she decided to reveal to her mother, CCC, 11 the brutish acts
appellant had done to her.12 Her mother thus filed a complaint against her uncle. AAA identified
appellant in open court and presented as documentary evidence her birth certificate to prove that
she was born on 3 September 1988.13

BBB, on the other hand, testified that she was first raped by appellant in 1997 when she was ten
(10) years old, also at the house appellant shared with her grandmother. While alone in the house,
appellant poked a knife at her, removed her clothes and inserted his penis in her vagina. Despite the
pain she felt, she could not resist appellant as he was holding a knife. She did not report the rape to
her parents out of fear of appellant's threat that he would kill her. 14 BBB further testified that in 1998
and 1999, she was raped again by appellant on several occasions, the rapes occurring under threat
of a bladed weapon, and regardless of the time of day. 15

BBB stated that she was last raped by appellant on 15 January 2000. 16 On that night, she was
sleeping beside her sister AAA in the house of her grandmother when she felt appellant touching her
body. She pushed him away but appellant pulled her three (3) meters away from AAA towards the
door. As appellant was holding a knife, BBB could not make any noise to alert her sister. Appellant
ordered her to remove her clothes and forced her to lie down. After he took off his clothes, appellant
placed himself on top of BBB and stayed there for three (3) minutes "moving up and down."
Thereafter, she put on her clothes and returned to where her sister was. She added that although it
was dark, she knew it was appellant who had molested her as she was familiar with his smell. Since
then, she never slept in her grandmother's house again. 17

It was on 14 June 2000 that BBB disclosed her harrowing experience to her mother. Prior to that,
however, she had already revealed the sexual abuses she had underwent to her sister AAA. Upon
learning of the same, her mother brought her to the police station and her statement was taken.
Thereafter, she was brought to the hospital to be examined. Furthermore, BBB explained that she
only reported the abuses done to her on 14 June 2000 or five (5) months after the last rape because
she was afraid of appellant's threat of killing her and her family. 18

The third witness for the prosecution was the mother, CCC. She testified that she only knew of the
abuses done on her daughters on 15 June 2000. Five months earlier, CCC became concerned after
observing that BBB, on the pretext of preparing clothes for a game, was packing more than enough
clothes. She asked her other daughter, DDD, to dig into the matter and the latter told her that BBB
was planning to leave their house. Upon learning this, she sent somebody to retrieve BBB. However,
it was only five months after that incident that BBB confided to her mother that she was raped by
appellant. CCC lost no time in reporting the matter to the authorities and had BBB and AAA
examined in the hospital. After examination, it was confirmed that BBB was indeed sexually
molested.19

CCC initially did not tell her husband about what had happened to their daughters because she was
afraid that her husband might kill appellant. It was only after appellant was arrested that she
disclosed such fact to her husband. After the arrest of appellant, his relatives became angry at CCC,
and her mother-in-law avoided talking to her since then. 20

The physician who examined BBB and AAA also testified for the prosecution. Dr. Purita T. Tullas
(Dr. Tullas), medical officer of Gumaca District Hospital, testified that she was the one who
examined BBB and AAA, and thereafter, issued medical certificates for each child. These medical
certificates were presented in court. 21

The medical certificate of BBB revealed that at the time of examination, there were no external sign
of physical injury found on her body. However, Dr. Tullas found that the labia majora and minora of
BBB was slightly gaping, her vaginal orifice was admitting two fingers without resistance and there
were hymenal lacerations at "three (3) o'clock" and "eight (8) o'clock" which might have happened a
long time before her examination. Dr. Tullas concluded that there might have been sexual
penetration caused by a male sex organ for several times. 22

AAA's medical certificate stated that at the time of examination, there were no external physical
injuries apparent on her body. AAA's labia majora and minora were well coaptated and the hymen
was still intact. On direct examination, Dr. Tullas said that it could happen that the hymen would still
be intact despite sexual penetration with a person having an elastic hymen. On the other hand, when
asked on cross-examination, she stated that there was also the possibility that no foreign body
touched the labia of the pudendum of AAA. 23

Only appellant testified for his defense, offering denial and alibi as his defense. He averred in court
that from 1994 to 2000, he lived in the house of his parents which was about "thirty (30) arm
stretches" away from the house of BBB and AAA. He denied having raped BBB on 15 January 2000
because on said date he was at the house of his sister, two (2) kilometers away from the house of
his parents where the rape occurred, from 11:30 in the morning and stayed there until early morning
of the following day.24

He offered a general denial of the other charges against him by BBB and AAA. He claimed that he
seldom saw the two minors. He further asserted that prior to the institution of the criminal case
against him he had a smooth relationship with his nieces and the only reason the case was filed
against him was that CCC, his sister-in-law and the mother of his nieces, harbored ill-feelings
towards his deceased father, who would call CCC "lazy" within earshot of other family members. 25

The RTC convicted appellant on all eight (8) counts of rape. 26 The RTC pronounced appellant's
defense of denial and alibi as unconvincing, citing jurisprudence declaring denial and alibi as
intrinsically weak defenses. The RTC concluded that appellant failed to controvert the clear, candid
and straightforward testimonies of his nieces. It further considered the qualifying circumstances of
minority of the victims and the relationship of the victims and appellant, the latter being the former's
relative by consanguinity within the third degree.

As the penalty imposed consisted of eight (8) death sentences, the records of the case were
automatically elevated to this Court for review. However, in the aftermath of the pronouncement of
the Court in People v. Mateo27 the present case was transferred to the Court of Appeals for
appropriate action and disposition.

On 29 December 2004, the Court of Appeals agreed with the rulings of the RTC in regard to six (6)
of the eight (8) death sentences imposed on appellant. 28 The appellate court ratiocinated, thus:

We have painstakingly gone over the record of these cases and find no cogent reason to
deviate from the findings of the trial court except in at least two (2) cases. The prosecution's
case which was anchored mainly on the testimonies of private complainants [BBB] and
[AAA], deserve full faith and credit for being clear, precise and straightforward. Like the trial
court, We find no reason to disbelieve the private complainants. It was established with
certitude that the accused on several occasions sexually assaulted his nieces. The
perpetration of the crimes and its authorship were proved by the victims' candid and
unwavering testimonies both of whom had the misfortune of sharing the same fate in the
hands of their own uncle. The sincerity of [AAA] was made more evident when she cried on
the witness stand in obvious distress over what their uncle had done to her and her sister. 29

The Court of Appeals downgraded the convictions in Criminal Case Nos. 6906 and 6908 to
attempted rape. In these two (2) cases, it was alleged that appellant had raped AAA in 1999 and on
11 June 2000, respectively. According to the appellate court, it could not find evidence beyond
reasonable doubt in those two (2) cases that appellant had accomplished the slightest penetration of
AAA's vagina to make him liable for consummated rape. It stressed that there was not even moral
certainty that appellant's penis ever touched the labia of the pudendum, quoting portions of the
transcript of the stenographic notes where AAA was asked if appellant was then successful in
inserting his penis into her vagina and she answered in the negative. 30 Accordingly, the Court of
Appeals reduced the penalties attached to the two (2) counts of rape from death for consummated
qualified rape to an indeterminate penalty of ten (10) years of prision mayor, as minimum, to
seventeen (17) years and four (4) months of reclusion temporal, as maximum, for attempted rape.

Appellant, in his Supplemental Brief31 before this Court, assails the findings of the Court of Appeals.
He cites inconsistencies in the testimony of BBB as to what really transpired on 15 January 2000.
Particularly, appellant observes that BBB testified on 6 June 2001 as to her rape on 15 January
2000. BBB, her sister and appellant had been sleeping side by side. However, when BBB again
testified on 3 July 2002, this time she stated that on that night, as she and her sister AAA were
sleeping in their room at their parents' house (and not at her grandmother's), the accused passed
through a window, entered their room and raped her again. 32 Appellant also latches on the
inconsistencies in BBB's testimony as to the length of the duration of her rape on that day. In BBB's
testimony on 6 June 2001, she said that appellant was atop her for three (3) minutes while in the 3
July 2002 hearing, BBB stated that the rape lasted for only half a minute.

It must be observed though that BBB was at a tender age when she was raped in 2001. Moreover,
these inconsistencies, which the RTC and the Court of Appeals did not consider material, were
elicited while BBB was testifying in open court. Our observations in People v. Perez33 on the
appreciation of alleged inconsistencies in the testimony of rape victims who happen to be minors are
instructive, thus:
 We note that these alleged inconsistencies refer, at best, only to trivial, minor, and
insignificant details. They bear no materiality to the commission of the crime of rape of
which accused-appellant was convicted.[34] As pointed out by the Solicitor General in the
Appellee's Brief, the seeming inconsistencies were brought about by confusion and merely
represent minor lapses during the rape victim's direct examination and cannot possibly affect
her credibility. Minor lapses are to be expected when a person is recounting details of a
traumatic experience too painful to recall. The rape victim was testifying in open court, in the
presence of strangers, on an extremely intimate matter, which, more often than not, is talked
about in hushed tones. Under such circumstances, it is not surprising that her narration was
less than letter-perfect.[35] "Moreover, the inconsistency may be attributed to the well-known
fact that a courtroom atmosphere can affect the accuracy of testimony and the manner in
which a witness answers questions."[ 36]37

Further, the public prosecutor offered a convincing explanation on why BBB was confused on some
points of her two testimonies. Particularly in the Memorandum for the People38 filed with the RTC,
the public prosecutor creditably explained the inconsistencies, thus:

[BBB]'s testimony on July 3, 2002 might be contradictory to her first testimony on June 6,
2001, with respect to the last rape on January 15, 2000, as regards the place of
commission—house of her parents or house of accused; and the length of time he stayed on
her top – 3 minutes or half-minute. But she remained consistent in her declaration that on
January 15, 2000, her uncle inserted his penis into her vagina, and he was moving while on
her top then she felt something came out from him. He was able to rape her because he
threatened her with a knife or bladed weapon. Further, the first she took the witness stand on
June 6, 2001, she was made to recall the last rape, the first rape and many acts of sexual
abuses [sic] against her. She was even confused about her age when she was first raped by
her uncle. After she testified on November 14, 2001, for the separate charges of rapes in
1997, 1998 and 1999, she was able to recall more clearly the last rape on January 15, 2000,
which happened in her own house. These noted discrepancies as to the exact place of
commission – accused's house or victim's house – is not an essential element of the crime of
rape and both houses are situated in Brgy. Villa Padua Ilaya, Gumaca, Quezon, which is
within the territorial jurisdiction of this Honorable Court. x x x 39

In addition, we share the lower court's disbelief of appellant's proffered defenses of denial and alibi.
These two defenses are inherently the weakest as they are negative defenses. Mere denials of
involvement in a crime cannot take precedence over the positive testimony of the offended party. For
alibi to prosper, it is not enough for the defendant to prove that he was somewhere else when the
crime was committed; he must likewise demonstrate that it is physically impossible for him to have
been at the scene of the crime at the time.40

In the case at bar, appellant's alibi that he was at his sister's house barely two (2) kilometers away
when the rape took place on 15 January 2000 cannot be given credence by this Court. If we are to
thread this line of reasoning, appellant could have easily left his sister's house in the middle of the
night, raped BBB, and then returned to his sister's house without much difficulty and without anybody
noticing his absence.

Well-settled is the rule that a categorical and positive identification of an accused, without any
showing of ill-motive on the part of the eyewitness testifying on the matter, prevails over alibi and
denial.41 The defenses of denial and alibi deserve scant consideration when the prosecution has
strong, clear and convincing evidence identifying appellant as the perpetrator. 42 In this case, both
BBB and AAA, minors and relatives of appellant, positively identified him as their rapist in open
court. The lower courts found no issue detracting from the credibility of such identification.
It is worthy to note that the alibi presented by appellant is limited to the 15 January 2000 rape of
BBB. He offers nothing to counteract the accusations against him involving the seven (7) other
specific acts of rape other than the averment that he did not know anything about the allegations
propounded on him, an infinitesimal defense considering the evidence against him.

Appellant does claim that the present case was merely instituted because of the grudge of CCC
towards his deceased father. It is outrageous to even suggest that a mother will subject her
daughters to the humiliating experience of coming before the court and narrating their harrowing
experience just because she was tagged by her father-in-law as lazy. In addition, CCC's father-in-
law had died several years before the criminal charges against appellant were ever instituted. If CCC
truly wanted to retaliate and damage the reputation of her father-in-law, she could have done so
when the latter was still alive. No member of a rape victim's family would dare encourage the victim
to publicly expose the dishonor of the family, more specifically if such accusation is against a
member of the family, unless the crime was in fact committed. 43

Besides, no sane woman, least of all a child, would concoct a story of defloration, allow an
examination of her private parts and subject herself to public trial or ridicule if she has not in truth,
been a victim of rape and impelled to seek justice for the wrong done to her. Testimonies of child-
victims are normally given full weight and credit, since when a woman, more so if she is a minor,
says that she has been raped, she says in effect all that is necessary to show that rape has been
committed. Youth and immaturity are generally badges of truth and sincerity. 44 The weight of such
testimonies may be countered by physical evidence to the contrary, or indubitable proof that the
accused could not have committed the rape, but in the absence of such countervailing proof, these
testimonies shall be accorded utmost value.

The twin aggravating circumstances of minority and relationship were properly appreciated in this
case. The minority of the victims and their relationship with appellant were aptly established

in the lower court proceedings. Not only did the prosecution allege in the Informations the ages of
the victims when they were raped but the prosecution also presented the birth certificates of BBB
and AAA in court as documentary evidence to prove that they were both minors when appellant
raped them. Appellant, in open court, also admitted that that he was the uncle of both victims being
the brother of the victims' father, and thus, a relative of the victims within the third degree of
consanguinity.

Furthermore, the delay in reporting the repulsive acts of appellant to BBB and AAA is
understandably justified, considering that appellant repeatedly threatened to kill them and their
family should they disclose the incidents to anyone. It has been held time and again that delay in
revealing the commission of rape is not an indication of a fabricated charge. 45 Such intimidation must
be viewed in light of the victim's perception and judgment at the time of the commission of the crime
and not by any hard and fast rule. It is enough that the intimidation produces a fear that if the victim
does not yield to the perverse impulses of the accused, something would happen to her at the
moment, or even thereafter, as when she is threatened with death if she would report the incident. 46

At the same time, we agree with the Court of Appeals that the two counts of rape in Criminal Case
Nos. 6906-G and 6908-G were not proven beyond reasonable doubt, but only the two separate
incidents of attempted rape.

It is to be noted that there is an attempt to commit rape when the offender commences its
commission directly by overt acts but does not perform all acts of execution which should produce
the felony by reason of some cause or accident other than his own spontaneous desistance. 47 In
Criminal Case No. 6906-G, the records show that there was no penetration or any indication that the
penis of appellant touched the labia of the pudendum of AAA. This was evident in AAA's testimony
at the hearing on 17 October 2001, to wit:

Q – Do you remember of any unusual incident that happened to you when you were eleven
years old?

A – Yes, Mam. [sic]

Q – What was that?

A – He also touched my vagina and my other private parts and he inserted also his penis
(into) my vagina. [sic]

Q – Was he able to insert his penis into your vagina?

A – No, Mam. [sic]

Q – Why?

A – It was painful, Mam. [sic]

xxxx

Q – How many times did he try to insert his penis into your vagina?

A – Many times, Mam.48 [sic]

AAA also testified in the same vein in Criminal Case No. 6908-G.

Q – I am now through with Criminal Case No. 6906-G. In Criminal Case No. 6908-G, also for
Rape. When was the last time that this sexual abuse was committed by your Uncle?

A – June 11, Mam. [sic]

Q – What year?

A – June 11, 2000, Mam. [sic]

xxxx

Q – What did your Uncle do to you on June 11, 2000?

A – He also removed my clothes, Mam. [sic]

Q – And after removing your clothes, what did he do to you?

A – He was trying to insert his penis into my vagina, Mam. [sic]

xxxx
 Q – And what did you feel when he was trying to insert his penis in your vagina?

A – Painful, Mam. [sic]

Q – And what did you do when you feel painful?

A – I cried, Mam. [sic]

Q – When you cried, what did your Uncle do, if any?

A – He did not pursue what he was doing, Mam. [sic]

xxxx

Q – And your Uncle was not able to penetrate his penis to your vagina?

A – No, Mam.49 [sic]

In downgrading the offense committed and consequently decreasing the penalty, the CA declared:

It is carnal knowledge, not pain, that is the element to consummate rape. Indeed pain may
be deduced from the sexual act but accused cannot be convicted of rape by presuming
carnal knowledge out of pain. It is well-settled that complete penetration of the penis into the
vagina is not necessary to convict for consummated rape since the slightest penetration of
one into the other will suffice. However, in People v. Campuhan, the term "slightest
penetration" was clarified to mean that there must be sufficient and convincing proof of the
penis indeed touching at the very least the labias of the female organ. Mere epidermal
contact between the penis and the external layer of the victim's vagina (the stroking and the
grazing of the male organ upon the female organ or the mons pubis) categorizes the crime
as attempted rape or acts of lasciviousness. There must be positive proof of even the
slightest penetration, more accurately, the touching of the labias by the penis, before rape
could be deemed consummated. We, therefore, take exception to the finding of the trial court
that when the accused was trying to insert his penis into the child's vagina, the act proved
painful to [AAA,] which made the accused stop from further executing the act. From the
testimony of private complainant, [AAA] in the afore-numbered cases, the prosecution failed
to demonstrate beyond any shadow of doubt that accused-appellant's penis reached the
labia of the pudendum of AAA's vagina. There is no basis then to apply the rule that the
introduction of the penis into the aperture of the female organ (thereby touching the labia of
the pudendum) already consummates the case of rape. x x x 50

It should be added that under Article 6 of the Revised Penal Code, there is an attempt when the
offender commences the commission of a felony directly by overt acts, and does not perform all the
acts of execution which should produce the felony by reason of some cause or accident other than
his own spontaneous desistance. In the crime of rape, penetration is an essential act of execution to
produce the felony. Thus, for there to be an attempted rape, the accused must have commenced the
act of penetrating his sexual organ to the vagina of the victim but for some cause or accident other
than his own spontaneous desistance, the penetration, however slight, is not completed. 51

The Court thus affirms the conclusions of the Court of Appeals that it has been established beyond
reasonable doubt that appellant is guilty of six (6) counts of rape and two (2) counts of attempted
rape. However, in light of Rep. Act No. 9346, the appropriate penalties for both crimes should be
amended.

II.

We shall not dwell at length on the proper penalty imposable on appellant for the six (6) counts of
rape. The sentence of death imposed by the RTC and affirmed by the Court of Appeals can no
longer be affirmed in view of Rep. Act No. 9346, titled "An Act Prohibiting the Imposition of Death
Penalty in the Philippines." Section 2 of the law mandates that in lieu of the death penalty, the
penalty of reclusion perpetua shall be imposed. Correspondingly, the Court can no longer uphold the
death sentences imposed by lower courts, but must, if the

guilt of the accused is affirmed, impose instead the penalty of reclusion perpetua, or life
imprisonment when appropriate. Since the passage of Rep. Act No. 9346, the Court has had
occasion to effectuate such reduction in recent cases such as People v. Tubongbanua52 and People
v. Cabalquinto.53

III.

The question of what should be the appropriate penalty for the two (2) counts of attempted rape
proves to be the more challenging but interesting question facing the Court.

The Court of Appeals had sentenced appellant, for the attempted rape of AAA, to "an indeterminate
penalty of ten (10) years of prision mayor, as minimum, to seventeen (17) years and four (4) months
of reclusion temporal as maximum," for each count of attempted rape. There is no doubt as to the
validity of this sentence at the time it was meted prior to the enactment of Rep. Act No. 9346. Article
51 of the Revised Penal Code establishes the penalty to be imposed upon the principals of an
attempted felony:

ART. 51. xxx — A penalty lower by two degrees than that prescribed by law for the
consummated felony shall be imposed upon the principals in an attempt to commit a felony. 54

What is the penalty "lower by two degrees than that prescribed by law" for attempted rape? Article
266-B of the Revised Penal Code, which incorporates the amendments introduced by Rep. Act No.
8353, prescribes:

The death penalty shall also be imposed if the crime of rape is committed with any of the
following aggravating/qualifying circumstances:

1. When the victim is under eighteen (18) years of age and the offender is a parent,
ascendant, step-parent, guardian, relative by consanguinity or affinity within the third civil
degree, or the common law spouse of the parent of the victim. x x x 55

The prescribed penalty for the consummated rape of a victim duly proven to have been under
eighteen years of age and to have been raped by her uncle, is death under Article 266-B of the
Revised Penal Code. The determination of the penalty two degrees lower than the death penalty
entails the application of Articles 61 and 71 of the Revised Penal Code:

Art. 61. Rules of graduating penalties.—For the purpose of graduating the penalties which,
according to the provisions of Articles 50 to 57, inclusive, of this Code, are to be imposed
 upon persons guilty as principals of any frustrated or attempted felony, or as accomplices or
accessories, the following rules shall be observed:

1. When the penalty prescribed for the felony is single and indivisible, the penalty next lower
in degree shall be that immediately following that indivisible penalty in the respective
graduated scale prescribed in Article 71 of this Code. 56

xxxx

Article 71 of the Revised Penal Code (Article 71) warrants special attention, crucial as it is to our
disposition of this question. The provision reads:

Art. 71. Graduated scales. — In the case in which the law prescribes a penalty lower or
higher by one or more degrees than another given penalty, the rules prescribed in Article 61
shall be observed in graduating such penalty.

The lower or higher penalty shall be taken from the graduated scale in which is comprised
the given penalty:

The courts, in applying such lower or higher penalty, shall observe the following graduated
scales:

SCALE NO. 1

1. Death

2. Reclusion perpetua

3. Reclusion temporal

4. Prision mayor

5. Prision correctional

6. Arresto mayor

7. Destierro

8. Arresto menor

9. Public censure

10. Fine57

xxxx

Following the scale prescribed in Article 71, the penalty two degrees lower than death is reclusion
temporal, which was the maximum penalty imposed by the Court of Appeals on appellant for
attempted rape. Reclusion temporal is a penalty comprised of three divisible periods, a minimum, a
medium and a maximum.
At the same time, the Indeterminate Sentence Law prescribes that "the court shall sentence the
accused to an indeterminate sentence, the maximum term of which shall be that which, in view of
the attending circumstances, could be properly imposed under the rules of the said Code, and the
minimum which shall be within the range of the penalty next lower to that prescribed by the Code for
the offense." The purpose of the prescription of minimum and maximum periods under the
Indeterminate Sentence Law is to effect the privilege granted under the same law, for prisoners who
have served the minimum penalty to be eligible for parole per the discretion of the Board of
Indiscriminate Sentence.58 Thus, convicts sentenced to suffer death penalty or life-imprisonment are
ineligible under that law, as are persons sentenced to reclusion perpetua, an indivisible penalty
without minimum or maximum periods.59

Hence, the Court of Appeals sentenced appellant to suffer the penalty for attempted rape, with a
maximum penalty within the range of reclusion temporal, and a minimum penalty within the range of
the penalty next lower, or prision mayor. If Rep. Act No. 9346 had not been enacted, the Court would
have affirmed such sentence without complication. However, the enactment of the law has given rise
to the problem concerning the imposable penalty. Appellant was sentenced to a maximum term
within reclusion temporal since that is the penalty two degrees lower than death. With the elimination
of death as a penalty, does it follow that appellant should now be sentenced to a penalty two
degrees lower than reclusion perpetua, the highest remaining penalty with the enactment of Rep. Act
No. 9346? If it so followed, appellant would be sentenced to prision mayor in lieu of reclusion
temporal.

IV.

Obviously, our ruling on the appropriate penalty on appellant for attempted rape will affect not only
appellant, but several classes of convicts as well. Before we proceed with the discussion, the Court
finds it necessary to make the following qualification.

Prior to the enactment of Rep. Act No. 9346, the death penalty was imposable under two different
frames of reference. This was especially made clear with the 1993 amendments to the Revised
Penal Code through Rep. Act No. 7659, or the Death Penalty Law. Under the Revised Penal Code,
as amended, the death penalty was provided for in two ways, namely: as the maximum penalty for
"reclusion perpetua to death," and death itself as an automatic and exclusive penalty. Death as the
automatic penalty was mandated for the crimes of qualified bribery "if it is the public officer who asks
or demands such gift or present;"60 kidnapping or detention "for the purpose of extorting ransom from
the victim or any other person;"61 destructive

arson wherein "death results;"62 and rape qualified by any of the several circumstances enumerated
under the law.

On the other hand, the penalty of "reclusion perpetua to death" was imposable on several crimes,
including murder,63 qualified piracy,64 and treason.65 The imposition of the death penalty for crimes
punishable by "reclusion perpetua to death" depended on the appreciation of the aggravating and
mitigating circumstances generally outlined in Articles 13 and 14 of the Revised Penal Code.
Reference to those two provisions was unnecessary if the penalty imposed was death, as opposed
to "reclusion perpetua to death."

There is no need for now to discuss the effects of Rep. Act No. 9346 on the penalties for frustrated
and attempted felonies which were punishable by "reclusion perpetua to death" if consummated, or
on accomplices and accessories to such felonies. Such situations do not relate to the case of
appellant, who was convicted of two (2) counts of attempted rape, which, if consummated, of course
would have carried prior to the enactment of Rep. Act 9346 the penalty of death, and not "reclusion
perpetua to death."

The Court also recognizes that the graduation of penalties reckoned from "reclusion perpetua to
death" differs from that based on the exclusive penalty of death. For example, it has been held that
the penalty two degrees lower than "reclusion perpetua to death" is prision mayor.66 In contrast, the
Court has likewise held that for qualified rape in the attempted stage, "the penalty x x x two (2)
degrees lower than the imposable penalty of death for the offense charged x x x is reclusion
temporal."67 In People v. Tolentino,68 we ruled that the accused, who had been sentenced to die for
the rape of his nine (9)-year old stepdaughter, was guilty only of attempted rape. In explaining that
"reclusion temporal" was the proper penalty, the Court, through then Chief Justice Davide,
explained:

Under Article 51 of the Revised Penal Code, the penalty for an attempted felony is the
"penalty lower by two degrees than that prescribed by law for the consummated felony." In
this case, the penalty for the rape if it had been consummated would have been death,
pursuant to Article 335 of the Revised Penal Code, as amended by R.A. No. 7659, since
[RT69] was eight years old and TOLENTINO was the common-law spouse of [RT's] mother.
The last paragraph thereof provides:

The death penalty shall also be imposed if the crime of rape is committed with any of
the following attendant circumstances:

1. When the victim is under eighteen (18) years of age and the offender is a parent,
ascendant, step-parent, guardian, relative by consanguinity or affinity within the third
civil degree, or the common-law spouse of the parent of the victim.

xxxx

The penalty in this case should have been reclusion temporal, which is the penalty lower by
two degrees than death. However, with the application of the Indeterminate Sentence Law,
TOLENTINO may be sentenced to an indeterminate imprisonment penalty whose minimum
shall be within the range of prision mayor and whose maximum shall be within the range of
reclusion temporal in its medium period pursuant to Article 64 (1) of the Revised Penal
Code.70

This dichotomy results from the application of Article 61 of the Revised Penal Code. Both reclusion
perpetua and death are indivisible penalties. Under Article 61 (2) of the Revised Penal Code, "[w]hen
the penalty prescribed for the crime is composed of two indivisible penalties … the penalty next
lower in degree shall be that immediately following the lesser of the penalties prescribed in the
respective graduated scale." Hence, in passing sentence on those convicted of attempted felonies
which warranted the penalty of "reclusion perpetua to death" if consummated, the Court has
consistently held that penalty two degrees lower than "reclusion perpetua to death" is prision mayor.
In contrast, if the penalty for the consummated crime is the single indivisible penalty of death, as was
prescribed for several crimes under Rep. Act No. 7659, Article 61(1) of the Revised Penal Code
provides that "the penalty prescribed for the felony is single and indivisible, the penalty next lower in
degree shall be that immediately following that indivisible penalty in the respective graduated scale
prescribed in Article 71". Thus, the proper penalty two degrees lower than death is reclusion
temporal.

It is also for this reason that the controversy we are now addressing did not similarly arise after the
enactment of the 1987 Constitution, which prohibits the imposition of the death penalty subject to its
subsequent readoption at the choice of Congress. Generally, the highest penalty imposed under the
Revised Penal Code was "reclusion perpetua to death," a penalty composed of two indivisible
penalties. As a result, the Court had no occasion, after the passage of the 1987 Constitution, to
consider the effect of the charter on penalties downgraded from a single indivisible penalty. It was
under Rep. Act No. 7659, passed in 1993, that some commonly occurring crimes, such as qualified
rape and kidnapping for ransom, were penalized with the single indivisible penalty of death.

The discussion for purposes of this decision will only center on crimes, such as qualified rape as
defined in the Revised Penal Code, as amended, for which the imposable penalty was death alone.
Thus, our ruling will bear no direct effect on the sentencing of accomplices and accessories or
persons guilty of the attempted or frustrated stage of felonies for which the imposable penalty was
"reclusion perpetua to death."

Hence, it should be understood that any reference forthwith to the penalty of death does not
refer to the penalty of "reclusion perpetua to death."

V.

If there was a clear intent in Rep. Act No. 9346 to downgrade the penalties for convicts whose
sentences had been graduated beginning from death pursuant to Article 71, the Court would not
hesitate to enforce such downgrading based on clear statutory intent. However, nothing in Rep. Act
No. 9346 expressly refers to those penalties imposed on frustrated or attempted felonies, or on
accessories and accomplices.

Section 1 of Rep. Act No. 9346 bears examination:

Section 1. The imposition of the penalty of death is hereby prohibited. Accordingly, Republic
Act No. Eight Thousand One Hundred Seventy-Seven (R.A. No. 8177), otherwise known as
the Act Designating Death by Lethal Injection, is hereby repealed. Republic Act No. Seven
Thousand Six Hundred Fifty-Nine (R.A. No. 7659), otherwise known as the Death Penalty
Law, and all other laws, executive orders and decrees, insofar as they impose the death
penalty are hereby repealed or amended accordingly.

If the penalties for attempted rape of a minor,71 among others, were deemed to have been amended
by virtue of Rep. Act No. 9346, such amendment can be justified under the ambit of the repealing
clause, which reads, "all other laws, executive orders and decrees, insofar as they impose the death
penalty are hereby repealed or amended accordingly." While this clause may, given its breadth,
initially impress as the nature of a general repealing clause, it is in actuality an express repealing
clause. Section 1 specifically repeals all laws, executive orders and decrees insofar as they impose
the death penalty, and not merely such enactments which are inconsistent with Rep. Act No. 9346.

Section 1 arguably presents more problems in that regard with its utilization of the particular phrase
"insofar as they impose the death penalty." We can entertain two schools of thought in construing
this provision, both of them rooted in literalist interpretations. First, it can be claimed that the present
application of the penalties for attempted rape of a minor (among many examples) does not "impose
the death penalty," since none of the convicts concerned would face execution through the
application of the penalty for attempted rape. Hence, the statutory provisions enforced in determining
the penalty for attempted rape, or other crimes not punishable by death, are not amended by Rep.
Act No. 9346.

On the other hand, the operation of the provisions imposing the penalty for attempted rape of a
minor necessarily calls for the application, if not its literal imposition, of death as a penalty, in the
context of applying the graduated scale of penalties under Article 71 of the Revised Penal Code. If
we were to construe "impose" as to mean "apply," then it could be argued that Article 71 was indeed
amended by Rep. Act No. 9346. After all, the application of Article 71 to crimes such as attempted
rape of a minor call for the actual operation of the death penalty not only in theory, but as a means of
determining the proper graduated penalty.

On face value, the attractive worth of the firstly offered line of thinking is enhanced by its innate
conservatism, limiting as it would the effects of Rep. Act No. 9346. It also can be understood if
confronted with the option of employing either a liberal or a conservative construction, there is a
natural tendency to employ the conservative mode. Further, the reasoning is seemingly consistent
with that employed by the Court in People v. Muñoz,72 a decision which will be thoroughly analyzed
in the course of this discussion.

If the true intent of Rep. Act No. 9346 was to limit the extent of the "imposition" of the death penalty
to actual executions, this could have been accomplished with more clarity. For example, had Section
1 read instead "insofar as they sentence an accused to death," there would have been no room for
doubt that only those statutory provisions calling for actual executions would have been repealed or
amended. The inability of Congress to shape the repealing clause in so specific a fashion does leave
open the question whether Congress did actually intend to limit the operation of Rep. Act No. 9346
to actual executions only.

But let us for now test that premise by assuming for the nonce that the legislative intent of Rep. Act
No. 9346 was to limit the prohibition of the law to the physical imposition of the death penalty,
without extending any effect to the graduated scale of penalties under Article 71 of the Revised
Penal Code.

VI.

There are troubling results if we were to uphold, based on legislative intent, the interpretation of Rep.
Act No. 9346 that limits its effects only to matters relating to the physical imposition of the death
penalty.

Illustrations are necessary. The easy demonstration of iniquitous results is in the case of
accomplices. Under Article 267 of the Revised Penal Code, as amended, kidnapping for ransom was
punishable by death. Let us say X and Y were tried for the crime. X was charged as a principal for
having directly participated in the kidnapping. Y was charged as an accomplice for having allowed X
to use his house to detain the victim, even though Y was abroad at the time of the crime and
otherwise had no other participation therein. Both X and Y were convicted by final judgment. Since X
could no longer be meted the death penalty, he is sentenced instead to reclusion perpetua.
Ordinarily, Y as an accomplice should receive the penalty next lower in degree, or reclusion
temporal. Yet following the "conservative" interpretation of Rep. Act No. 9346, the graduation of
penalties remains unaffected with the enactment of the new law. Thus, under Article 71, which would
still take into account the death penalty within the graduated scale, Y, as an accomplice, would be
sentenced to reclusion perpetua, the same penalty as the principal.

It might be countered that part of the legislative intent of Rep. Act No. 9346, by retaining the
graduated scale of penalties under Article 71, was to equalize the penalties of principals and
accomplices for crimes previously punishable by death. We do not doubt that the legislature has the
theoretical capability to amend the penal law in such fashion. Yet given the drastic effects of
equalizing the penalties for principals and accomplices, a step that runs contrary to entrenched
thought in criminal law, one could reasonably assume that a legislature truly oriented to enact such
change would have been candid enough to have explicitly stated such intent in the law itself. Of
course, nothing in Rep. Act No. 9346, either in the caption or in the provisions, explicates the
intention to equalize the penalties for principals and accomplices in any crime at all.

Moreover, it cannot be denied that it would, at bare minimum, seem strange that the penalties for
principals and accomplices are equalized in some crimes, and not in others. Let us return to our
previous example of X and Y, but this time, assume that they were charged for simple kidnapping,
with no qualifying circumstance that would have resulted in the imposition of the death penalty.
Since the crime is not punishable by death, Rep. Act No. 9346 would have no effect in the imposition
of the penalty for simple kidnapping. Accordingly, X would have been sentenced to reclusion
perpetua as the principal, while Y would have been sentenced to reclusion temporal as an
accomplice.

Since simple kidnapping is a comparatively lighter crime than kidnapping for ransom, the lesser
penalties are justified. Since Y was merely an accomplice to the crime of simple kidnapping, the
imposition on him of a lighter penalty than X is in accord with the Revised Penal Code and
established juridical and legal thought. Less justifiable would be the notion that in kidnapping for
ransom, the principal and the accomplice would receive the same penalty, while in simple
kidnapping, the principal suffers a higher penalty than the accomplice. Frankly, there is no rational
explanation for such a disparity, and no legal justification other than the recognition that Congress
has the power to will it so.

Admittedly, the impact of Rep. Act No. 9346 is less dramatic in relation to frustrated and attempted
felonies which were punishable by death if consummated. The consummated felony previously
punishable by death would now be punishable by reclusion perpetua. At the same time, the same
felony in its frustrated stage would, under the foregoing premise in this section, be penalized one
degree lower from death, or also reclusion perpetua. It does not seem right, of course, that the same
penalty of reclusion perpetua would be imposed on both the consummated and frustrated felony.
However, the anomaly would be mainly in theory, as we recognize that those felonies previously
punishable by death are improbable of commission in their frustrated stage, unlike several felonies
punishable by "reclusion perpetua to death,"73 such as murder, which may be frustrated.

Still, it cannot be denied that these felonies previously punishable by death are capable of
commission in their attempted stages and that the Revised Penal Code provides that the penalty for
attempted felonies is "a penalty lower by two degrees than that prescribed by law for the
consummated felony." The Court has thus consistently imposed reclusion temporal, the penalty two
degrees lower than death, as the maximum term for attempted felonies which, if consummated,
would have warranted the death penalty.74 If it were to be insisted that Rep. Act No. 9346 did not
affect at all the penalties for attempted felonies, then those found guilty of the subject attempted
felonies would still be sentenced to reclusion temporal, even though the "penalty lower by two
degrees than that prescribed by law for the consummated felony" would now be prision mayor.

It should be pointed out that the interpretation of Rep. Act No. 9346 that would sanction a penalty for
some attempted felonies that is only one degree lower than the consummated crime would, again,
be disharmonious and inconsistent with the Revised Penal Code and established thought in criminal
law. Conceding again that the legislature has the discretion to designate the criminal penalties it
sees fit, a regime that foists a differential theoretical basis for the punishment of different attempted
felonies resulting in discriminatory penalties is not only irrational but also, to say the least, highly
suspect. Considering that physical liberties are at stake, it would be a most cruel joke if such
discriminatory effects ensued not from deliberate legislative will, but from oversight.

VII.
The implementation of Rep. Act No. 9346 in a way that leaves extant the penalties for accomplices,
accessories, frustrated and attempted felonies, clearly results in illogical, iniquitous and inconsistent
effects. In contrast, no similar flaws ensue should we construe Rep. Act No. 9346 instead as not
having barred the application of the death penalty even as a means of depreciating penalties other
than death. In particular, the operative amendment that would assure the integrity of penalties for
accomplices, accessories, frustrated and attempted felonies lies in Article 71, which ranks "death" at
the top of the scale for graduated penalties.

Simply put, the negation of the word "death" as previously inscribed in Article 71 will have the effect
of appropriately downgrading the proper penalties attaching to accomplices, accessories, frustrated
and attempted felonies to the level consistent with the rest of our penal laws. Returning to our
previous examples, Y, the convicted accomplice in kidnapping for ransom, would now bear the
penalty of reclusion temporal, the penalty one degree lower than that the principal X would bear
(reclusion perpetua). Such sentence would be consistent with Article 52 of the Revised Penal Code,
as well as Article 71, as amended, to remove the reference to "death." Moreover, the prospect of the
accomplice receiving the same sentence as the principal, an anomalous notion within our penal
laws, would be eliminated. Thus, the same standard would prevail in sentencing principals and
accomplices to the crime of kidnapping in ransom, as that prescribed to the crime of simple
kidnapping.

The harmonization that would result if Rep. Act No. 9346 were construed as having eliminated the
reference to "death" in Article 71 would run across the board in our penal laws. Consistent with
Article 51 of the Revised Penal Code, those convicted of attempted qualified rape would receive the
penalty two degrees lower than that prescribed by law, now Rep. Act No. 9346, for qualified rape.

There are principles in statutory construction that will sanction, even mandate, this "expansive"
interpretation of Rep. Act No. 9346. The maxim interpretare et concordare legibus est optimus
interpretandi embodies the principle that a statute should be so construed not only to be consistent
with itself, but also to harmonize with other laws on the same subject matter, as to form a complete,
coherent and intelligible system—a uniform system of jurisprudence.75 "Interpreting and harmonizing
laws with laws is the best method of interpretation. x x x x This manner of construction would provide
a complete, consistent and intelligible system to secure the rights of all persons affected by different
legislative and quasi-

legislative acts."76 There can be no harmony between Rep. Act No. 9346 and the Revised Penal
Code unless the later statute is construed as having downgraded those penalties attached to death
by reason of the graduated scale under Article 71. Only in that manner will a clear and consistent
rule emerge as to the application of penalties for frustrated and attempted felonies, and for
accessories and accomplices.

It is also a well-known rule of legal hermeneutics that penal or criminal laws are strictly construed
against the state and liberally in favor of the accused. 77 If the language of the law were ambiguous,
the court will lean more strongly in favor of the defendant than it would if the statute were remedial,
as a means of effecting substantial justice. 78 The law is tender in favor of the rights of an
individual.79 It is this philosophy of caution before the State may deprive a person of life or liberty that
animates one of the most fundamental principles in our Bill of Rights, that every person is presumed
innocent until proven guilty.

Resort to the aforementioned principles in statutory construction would not have been necessary
had Rep. Act No. 9346 ineluctably stated that the repeal of all laws imposing the death penalty did
not engender the corresponding modification of penalties other than death, dependent as these are
on "death" as a measure under the graduated scale of penalties under Article 71. Admittedly, if this
were indeed the intent of Congress, and such intent were unequivocally expressed in Rep. Act No.
9346, the resulting inequities and inconsistencies we had earlier pointed out would have remained. If
that were to be the case, we would have acknowledged, perhaps tacitly, that such inequities and
inconsistencies fell part of the legislative intent. It does not speak well of a Congress to be
deliberately inconsistent with, or ignorant of its own prior enactments. Yet ultimately, Section 1 of
Rep. Act No. 9346 is not expressive of such rash or injudicious notions, as it is susceptible to a
reading that would harmonize its effects with the precepts and practices that pervade our general
penal laws, and in a manner that does not defy the clear will of Congress.

VIII.

One who would like to advocate that Rep. Act No. 9346 did not correspondingly amend any of the
penalties other than death in our penal laws would most certainly invoke our ruling in People v.
Muñoz,80 decided in 1989. Therein, a divided Court ruled in that the constitutional bar on the
imposition of the death penalty did not enact "a corresponding modification in the other periods [in
penalties]", there being no expression of "such a requirement… in Article III, Section 19(1) of the
Constitution or indicat[ion] therein by at least

clear and unmistakable implication."81 In so concluding, the Court made the oft-cited pronouncement
that there was nothing in the 1987 Constitution "which expressly declares the abolition of the death
penalty."82

It is time to re-examine Muñoz and its continued viability in light of Rep. Act No. 9346. More
precisely, would Muñoz as precedent deter the Court from ruling that Rep. Act No. 9346
consequently downgraded penalties other than death?

It can be recalled that the accused in Muñoz were found guilty of murder, which under the Revised
Penal Code, carried the penalty of reclusion temporal in its maximum period to death. The subject
murders therein were not attended by any modifying circumstance, and thus penalized in the
penalty's medium term. Jurisprudence previous to Muñoz held that the proper penalty in such
instances should be "the higher half of reclusion temporal maximum," with reclusion
temporal maximum, divided into two halves for that purpose. Muñoz rejected this formulation,
holding instead that the penalty should be reclusion perpetua. Towards this conclusion, the Court
made the above-cited conclusions relating to the constitutional abolition of the death penalty, and the
charter's effects on the other periods. Six justices dissented from that ruling, and as recently as
1997, a member of the Court felt strongly enough to publish a view urging the reexamination
of Muñoz.83

It would be disingenuous to consider Muñoz as directly settling the question now befacing us, as the
legal premises behind Muñoz are different from those in this case. Most pertinently, Muñoz inquired
into the effects of the Constitution on the proper penalty for murder; while herein, we are
ascertaining the effects of Rep. Act No. 9346 on the proper penalty for attempted qualified
rape. Muñoz may have pronounced that the Constitution did not abolish the death penalty,
but that issue no longer falls into consideration herein, the correct query now being whether
Congress has banned the death penalty through Rep. Act No. 9346. Otherwise
framed, Muñoz does not preclude the Court from concluding that with the express prohibition
of the imposition of the death penalty Congress has unequivocally banned the same.

Muñoz made hay over the peculiar formulation of Section 19(1), Article III, which provided that
"[n]either shall death penalty be imposed, unless, for compelling reasons involving heinous crimes,
the Congress hereafter provides for it." Muñoz and its progenies, have interpreted that provision as
prohibiting the actual imposition of the death penalty, as opposed to enacting an amendatory law
that eliminates all references and applications of the death penalty in our statutes. It can also be
understood and appreciated that at the time Muñoz was decided, it would have been polemical to
foster an unequivocal pronouncement that Section 19(1), Article III abolished the death penalty,
since the very provision itself acknowledged that Congress may nonetheless subsequently provide
for the penalty "for compelling reasons involving heinous crimes," as Congress very well did just four
(4) years after Muñoz. No such language exists in Rep. Act No. 9346. Of course, the legislature has
the inherent and constitutional power to enact laws prescribing penalties for crimes, and the
Constitution will not prohibit Congress from reenacting the death penalty "for compelling reasons
involving heinous crimes." Yet it was that express stipulation in the Constitution that dissuaded the
Court from recognizing the constitutional abolition of the death penalty; and there is no similar
statutory expression in Rep. Act No. 9346, which could be construed as evocative of intent similar to
that of the Constitution.

The doctrine in Muñoz that the constitutional prohibition on the imposition of the death penalty did
not enact a corresponding modification of other penalties is similarly irrelevant to this case, which
calls for an examination as to whether such corresponding modifications of other penalties arose as
a consequence of Rep. Act No. 9346, and not the Constitution.

For purposes of legal hermeneutics, the critical question is whether Rep. Act No. 9346 intended to
delete the word "death" as expressly provided for in the graduated scale of penalties under Article
71. Muñoz did not engage in an analogous inquiry in relation to Article 71 and the Constitution, for
what was relevant therein was not the general graduated scale of penalties, but the range of the
penalties for murder. Herein, at bare minimum, no provision in Rep. Act No. 9346 provides a context
within which the concept of "death penalty" bears retentive legal effect, especially in relation to
Article 71. Unlike the Constitution, Rep. Act No. 9346 does expressly stipulate the amendment of
all extant laws insofar as they called for the imposition of the penalty of death.

The impression left by Muñoz was that the use of the word "imposition" in the Constitution evinced
the framer's intent to retain the operation of penalties under the Revised Penal Code. In the same
vein, one might try to construe the use of "imposition" in Rep. Act No. 9346 as a means employed by
Congress to ensure that the "death penalty", as applied in Article 71, remain extant. If the use of
"imposition" was implemented as a means of retaining "death" under Article 71, it would have been a
most curious, roundabout means indeed. The Court can tolerate to a certain degree the deliberate
vagueness sometimes employed in legislation, yet constitutional due process demands a higher
degree of clarity when infringements on life or liberty are intended. We have ruled, on due process
grounds, as arbitrary and oppressive a tax assessed on a standard characterized as "nothing but
blather in search of meaning."84 In the matter of statutes that deprive a person of physical liberty, the
demand for a clear standard in sentencing is even more exacting.

Yet in truth, there is no material difference between "imposition" and "application," for both terms
embody the operation in law of the death penalty. Since Article 71 denominates "death" as an
element in the graduated scale of penalties, there is no question that the operation of Article 71
involves the actual application of the death penalty as a means of determining the extent which a
person's liberty is to be deprived. Since Rep. Act No. 9346 unequivocally bars the application of the
death penalty, as well as expressly repeals all such statutory provisions requiring the application of
the death penalty, such effect necessarily extends to its relevance to the graduated scale of
penalties under Article 71.

We cannot find basis to conclude that Rep. Act No. 9346 intended to retain the operative effects of
the death penalty in the graduation of the other penalties in our penal laws. Munoz cannot enjoin us
to adopt such conclusion. Rep. Act No. 9346 is not swaddled in the same restraints appreciated
by Muñoz on Section 19(1), Article III. The very Congress empowered by the Constitution to
reinstate the imposition of the death penalty once thought it best to do so, through Rep. Act No.
7650. Within the same realm of constitutional discretion, Congress has reversed itself. It must be
asserted that today, the legal status of the suppression of the death penalty in the Philippines has
never been more secure than at any time in our political history as a nation.

Following Muñoz, the sovereign people, through the 1987 Constitution, might not have willed the
abolition of the death penalty and instead placed it under a suspensive condition. As such, we
affirmed the characterization of the death penalty during the interregnum between the 1987
Constitution and its reimposition through law as being "in a state of hibernation." 85 No longer. It
reawakened — then it died; because the sovereign people, through Rep. Act No. 9346, banned the
death penalty. Only by an Act of Congress can it be reborn. Before that day, the consideration of
death as a penalty is bereft of legal effect, whether as a means of depriving life, or as a means of
depriving liberty.

Despite our present pronouncement on the ban against of the death penalty, we do not acknowledge
that Muñoz lacked legal justification when it was decided; that its application as precedent prior to
Rep. Act No. 9346 was erroneous; or that previous sentences imposed on convicts on the basis
of Muñoz were wrong. Muñoz properly stood as the governing precedent in the matter of sentences
that passed finality prior to Rep. Act No. 9346; and the consistent reliance by the courts on its
doctrines entrenched its footing in criminal law jurisprudence.

IX.

Rep. Act No. 7659, in the course of reintroducing the death penalty in the Philippines, also effectively
classified the crimes listed therein as "heinous," within constitutional contemplation. Such
reclassification under Rep. Act No. 7659 was accompanied by certain legal effects other than the
imposition of the death penalty, such as the increase in imposable fines attached to certain heinous
crimes.86 The categorization of certain crimes as "heinous", constituting as it does official recognition
that some crimes are more odious than others, has also influenced this Court in adjudging the
proper pecuniary indemnities awarded to the victims of these crimes. Hence, a general inclination
persists in levying a greater amount of damages on accused found guilty of heinous crimes.

It should be understood that the debarring of the death penalty through Rep. Act No. 9346 did not
correspondingly declassify those crimes previously catalogued as "heinous". The amendatory effects
of Rep. Act No. 9346 extend only to the application of the death penalty but not to the definition or
classification of crimes. True, the penalties for heinous crimes have been downgraded under the
aegis of the new law. Still, what remains extant is the recognition by law that such crimes, by their
abhorrent nature, constitute a special category by themselves. Accordingly, Rep. Act No. 9346 does
not serve as basis for the reduction of civil indemnity and other damages that adhere to heinous
crimes.

X.

Having pronounced the statutory disallowance of the death penalty through Rep. Act No. 9346 and
the corresponding modification of penalties other than death through that statute, we now proceed to
discuss the effects of these rulings.

As to sentences not yet handed down, or affirmed with finality, the application is immediate.
Henceforth, "death," as utilized in Article 71 of the Revised Penal Code, shall no longer form part of
the equation in the graduation of penalties. For example, in the case of appellant, the determination
of his penalty for attempted rape shall be reckoned not from two degrees lower than death, but two
degrees lower than reclusion perpetua. Hence, the maximum term of his penalty shall no longer
be reclusion temporal, as ruled by the Court of Appeals, but instead, prision mayor.

There should be little complication if the crime committed was punishable by the free-standing
penalty of "death," as utilized in Rep. Act No. 7659, as opposed to the ranged penalty of "reclusion
perpetua to death," as often used in the Revised Penal Code and other penal laws. The facts of the
present case do not concern the latter penalty, hence our reluctance to avail of an extended
discussion thereof. However, we did earlier observe that both "reclusion perpetua" and death are
indivisible penalties. Under Article 61 (2) of the Revised Penal Code, "[w]hen the penalty prescribed
for the crime is composed of two indivisible penalties x x x x the penalty next lower in degree shall
be that immediately following the lesser of the penalties prescribed in the respective graduated
scale." Hence, as we earlier noted, our previous rulings that the penalty two degrees lower than
"reclusion perpetua to death" is prision mayor.

Then there is the matter of whether retroactive effect should be extended to this new ruling,
favorable as it is to persons previously convicted of crimes which, if consummated or participated in
as a principal, would have warranted the solitary penalty of death. We see no choice but to extend
the retroactive benefit. Article 22 of the Revised Penal Code states that "[p]enal laws shall have a
retroactive effect insofar as they favor the person guilty of a felony, who is not a habitual criminal[ 87] x
x x x although at the time of the publication of such laws a final sentence has been pronounced and
the convict is serving the same." Given that we have ruled that Rep. Act No. 9346 downgraded the
penalties for such crimes, the benefit of Article 22 has to apply, except as to those persons defined
as "habitual criminal[s]." Indeed, Rep. Act No. 9346 expressly recognized that its enactment would
have retroactive beneficial effects, referring as it did to "persons x x x whose sentences were
reduced to reclusion perpetua by reason of this Act."88

It cannot be discounted that by operation of Rep. Act No. 9346 and Article 22 of the Revised Penal
Code, there may be convicts presently serving their original sentences whose actual served terms
exceed their reduced sentences. It should be understood that this decision does not make
operative the release of such convicts, especially as there may be other reasons that exist for
their continued detention. There are remedies under law that could be employed to obtain the
release of such prisoners, if warranted. Offices such as the Public Attorney's Office and non-
governmental organizations that frequently assist detainees possess the capacity and acumen to
help implement the release of such prisoners who are so entitled by reason of this ruling.

XI.

We close by returning to the matter of appellant Alfredo Bon. By reason of Rep. Act No. 9346, he is
spared the death sentence, and entitled to the corresponding reduction of his penalty as a
consequence of the downgrading of his offense from two (2) counts consummated rape to two (2)
counts of attempted rape. For the six (6) counts of rape, we downgrade the penalty of death
to reclusion perpetua with no eligibility for parole, pursuant to Rep. Act No. 9346. For each of the two
(2) counts of attempted rape, we downgrade by one degree lower the penalty imposed by the Court
of Appeals. We hold that there being no mitigating or aggravating circumstances, the penalty of
prision mayor should be imposed in it medium period. Consequently, we impose the new penalty of
two (2) years, four (4) months and one (1) day of prision correccional as minimum, to eight (8) years
and one (1) day of prision mayor as maximum.

Lastly, as to damages, the Court awards AAA P30,000.00 as civil indemnity, P25,000.00 as moral
damages and P10,000.00 as exemplary damages for each count of attempted rape, it being the
prevailing rate of indemnity as pronounced in the recent case of People v. Miranda.89
Separately, the Court applies prevailing jurisprudence90 in awarding to BBB and AAA P75,000.00 as
civil indemnity, P75,000.00 as moral damages and P25,000.00 as exemplary damages, for each
count of consummated rape.

WHEREFORE, in light of the foregoing, the Decision of the Court of Appeals is hereby AFFIRMED
WITH MODIFICATION. The Court sentences appellant Alfredo J. Bon to the penalty of reclusion
perpetua with no possibility of parole for each of the six (6) counts of consummated rape committed
against AAA in Criminal Case Nos. 6699, 6902, and against BBB in Criminal Case Nos. 6689, 6903,
6905, and 6907. Appellant is further ORDERED to indemnify AAA and BBB for the crime of
consummated rape, in the amounts of P50,000.00 as civil indemnity, P50,000.00 as moral damages
and P25,000.00 as exemplary damages for each of them.

For the two (2) counts of attempted rape of AAA in Criminal Cases No. 6906 and 6908, appellant is
hereby SENTENCED to an indeterminate penalty of two (2) years, four (4) months and one (1) day
of prision correccional as minimum, to eight (8) years and one (1) of prision mayor as maximum for
each count of attempted rape. In addition, appellant is ORDERED to indemnify AAA for each of the
two (2) counts of attempted rape in the amounts of P30,000.00 as civil indemnity, P25,000.00 as
moral damages and P10,000.00 as exemplary damages.

SO ORDERED.
 Republic of the Philippines
SUPREME COURT
Manila

FIRST DIVISION

G.R. No. 181571 December 16, 2009

JUNO BATISTIS, Petitioner,

vs.
PEOPLE OF THE PHILIPPINES, Respondent.

DECISION

BERSAMIN, J.:

On January 23, 2006, the Regional Trial Court (RTC), Branch 24, in Manila convicted Juno Batistis
for violations of Section 155 (infringement of trademark) and Section 168 (unfair competition) of the
Intellectual Property Code (Republic Act No. 8293). 1

On September 13, 2007, the Court of Appeals (CA) affirmed the conviction for infringement of
trademark, but reversed the conviction for unfair competition for failure of the State to prove guilt
beyond reasonable doubt.2

Batistis now appeals via petition for review on certiorari to challenge the CA’s affirmance of his
conviction for infringement of trademark.

We affirm the conviction, but we modify the penalty by imposing an indeterminate sentence,
conformably with the Indeterminate Sentence Law and pertinent jurisprudence.

Antecedents

The Fundador trademark characterized the brandy products manufactured by Pedro Domecq, S.A.
of Cadiz, Spain.3 It was duly registered in the Principal Register of the Philippines Patent Office on
July 12, 1968 under Certificate of Registration No. 15987, 4 for a term of 20 years from November 5,
1970. The registration was renewed for another 20 years effective November 5, 1990. 5

Allied Domecq Philippines, Inc., a Philippine corporation exclusively authorized 6 to

distribute Fundador brandy products imported from Spain wholly in finished form,7 initiated this case
against Batistis. Upon its request, agents of the National Bureau of Investigation (NBI) conducted a
test-buy in the premises of Batistis, and thereby confirmed that he was actively engaged in the
manufacture, sale and distribution of counterfeit Fundador brandy products.8 Upon application of the
NBI agents based on the positive results of the test-buy,9 Judge Antonio M. Eugenio, Jr. of the
Manila RTC issued on December 20, 2001 Search Warrant No. 01-2576,10 authorizing the search of
the premises of Batistis located at No.1664 Onyx St., San Andres Bukid, Sta. Ana, Manila. The
search yielded 20 empty Carlos I bottles, 10 empty bottles of Black Label whiskey, two empty bottles
of Johnny Walker Swing, an empty bottle of Remy Martin XO, an empty bottle of Chabot, 241 empty
Fundador bottles, 163 boxes of Fundador, a half sack of Fundador plastic caps, two filled bottles of
Fundador brandy, and eight cartons of empty Jose Cuervo bottles.11
The Office of the City Prosecutor of Manila formally charged Batistis in the RTC in Manila with two
separate offenses, namely, infringement of trademark and unfair competition, through the following
information, to wit:

That on or about December 20, 2001, in the City of Manila, Philippines, the said accused, being then
in possession of two hundred forty one (241) empty Fundador bottles, one hundred sixty three
Fundador boxes, one half (1/2) sack of Fundador plastic caps, and two (2) Fundador bottles with
intention of deceiving and defrauding the public in general and Allied Domecq Spirits and Wines and
Allied Domecq Philippines, Inc. represented by Atty. Leonardo P. Salvador, a corporation duly
organized and existing under the laws of the Republic of the Philippines and engaged in
manufacturing of Fundador Brandy under license of Pedro Domecq, S.A. Cadiz, Spain, and/or
copyright owner of the said product, did then and there wilfully, unlawfully and feloniously reproduce,
sell and offer for sale, without prior authority and consent of said manufacturing company, the
accused giving their own low quality product the general appearance and other features of the
original Fundador Brandy of the said manufacturing company which would be likely induce the public
to believe that the said fake Fundador Brandy reproduced and/or sold are the real Fundador Brandy
produced or distributed by the Allied Domecq Spirits and Wines Limited, U.K. and Allied Domecq
Philippines, Inc. to the damage and prejudice of the latter and the public.

Contrary to law.12

With Batistis pleading not guilty on June 3, 2003, 13 the RTC proceeded to trial. On January 23, 2006,
the RTC found Batistis guilty beyond reasonable doubt of infringement of trademark and unfair
competition, viz:

ACCORDINGLY, this Court finds the accused JUNO BATISTIS Guilty Beyond Reasonable Doubt of
the crime of Violation of Section 155 of the Intellectual Property Code and hereby sentences him to
suffer the penalty of imprisonment of TWO (2) YEARS and to pay a fine of FIFTY THOUSAND
(P50,000.00) PESOS.

This Court likewise finds accused JUNO BATISTIS Guilty Beyond Reasonable Doubt of the crime of
Violation of Section 168 (sic) penalty of imprisonment of TWO (2) YEARS and to pay a fine of FIFTY
THOUSAND (Php50,000.00) PESOS.

Accused is further ordered to indemnify the private complainant the sum of TWENTY-FIVE
(Php25,000.00) PESOS as actual damages.

The following items recovered from the premises of the accused and subject of the case are hereby
ordered destroyed, pursuant to existing rules and regulations:

Twenty (20) empty Carlos 1 bottles

Ten (10) Black Label empty bottles

Two (2) empty bottles of Jhonny (sic) Walker Swing

One(1) empty bottle of Remy Martin XO

One (1) empty bottle of Chabot

Two hundred forty-one (241) empty Fundador bottles

 One hundred sixty-three (163) Fundador boxes

One half (1/2 sack of Fundador plastic caps, and

Two (2) filled Fundador bottles

Eight (8) boxes of empty Jose Cuervo bottles

WITH COSTS AGAINST ACCUSED

SO ORDERED.14

Batistis appealed to the CA, which, on September 13, 2007, affirmed his conviction for infringement
of trademark, but acquitted him of unfair competition, 15 disposing:

WHEREFORE, premises considered, the Appeal of Appellant JUNO BATISTIS is hereby

PARTIALLY GRANTED. The challenged Decision is AFFIRMED in so far as the charge against him
for Violation of Section 155 of the Intellectual Property Code is concerned.

However, for failure of the prosecution to prove to a moral certainty the guilt of the said Appellant, for
violation of Section 168 of the same code a judgment of ACQUITTAL is hereby rendered in his favor.

SO ORDERED.16

After the CA denied his motion for reconsideration, Batistis brought this appeal.

Issue

Batistis contends that:

THE REGIONAL TRIAL COURT ERRED IN CONVICTING THE ACCUSED ON THE BASIS OF
THE SELF-SERVING AFFIDAVITS AND TESTIMONIES OF THE POLICE OFFICERS WHO
CONDUCTED THE RAID ON THE HOUSE OF THE ACCUSED.

He submits that the only direct proofs of his guilt were the self-serving testimonies of the NBI raiding
team; that he was not present during the search; that one of the NBI raiding agents failed to
immediately identify him in court; and that aside from the two bottles of Fundador brandy, the rest of
the confiscated items were not found in his house.

Ruling

The petition for review has no merit.

1.

Appeal confined only to Questions of Law

Pursuant to Section 3,17 Rule 122, and Section 9,18 Rule 45, of the Rules of Court, the review on
appeal of a decision in a criminal case, wherein the CA imposes a penalty other than death,
reclusion perpetua, or life imprisonment, is by petition for review on certiorari.
A petition for review on certiorari raises only questions of law. Sec. 1, Rule 45, Rules of Court,
explicitly so provides, viz:

Section 1. Filing of petition with Supreme Court.—A party desiring to appeal by certiorari from a
judgment, final order or resolution of the Court of Appeals, the Sandiganbayan, the Court of Tax
Appeals, the Regional Trial Court or other courts, whenever authorized by law, may file with the
Supreme Court a verified petition for review on certiorari. The petition may include an application for
a writ of preliminary injunction or other provisional remedies and shall raise only questions of law,
which must be distinctly set forth. The petitioner may seek the same provisional remedies by verified
motion filed in the same action or proceeding at any time during its pendency.

Accordingly, we reject the appeal for the following reasons:

Firstly: The petition for review replicates Batistis’ appellant's brief filed in the CA, 19 a true indication
that the errors he submits for our review and reversal are those he had attributed to the RTC. He
thereby rests his appeal on his rehashed arguments that the CA already discarded. His appeal is,
therefore, improper, considering that his petition for review on certiorari should raise only the errors
committed by the CA as the appellate court, not the errors of the RTC.

Secondly: Batistis’ assigned errors stated in the petition for review on certiorari require a re-
appreciation and re-examination of the trial evidence. As such, they raise issues evidentiary and
factual in nature. The appeal is dismissible on that basis, because, one, the petition for review
thereby violates the limitation of the issues to only legal questions, and, two, the Court, not being a
trier of facts, will not disturb the factual findings of the CA, unless they were mistaken, absurd,
speculative, conflicting, tainted with grave abuse of discretion, or contrary to the findings reached by
the court of origin.20

Whether a question of law or a question of fact is involved is explained in Belgica v. Belgica: 21

xxx [t]here exists a question of law when there is doubt on what the law applicable to a certain set of
facts is. Questions of fact, on the other hand, arise when there is an issue regarding the truth or
falsity of the statement of facts. Questions on whether certain pieces of evidence should be
accorded probative value or whether the proofs presented by one party are clear, convincing and
adequate to establish a proposition are issues of fact. Such questions are not subject to review by
this Court. As a general rule, we review cases decided by the CA only if they involve questions of
law raised and distinctly set forth in the petition. 22

Thirdly: The factual findings of the RTC, its calibration of the testimonies of the witnesses, and its
assessment of their probative weight are given high respect, if not conclusive effect, unless cogent
facts and circumstances of substance, which if considered, would alter the outcome of the case,
were ignored, misconstrued or misinterpreted.23

To accord with the established doctrine of finality and bindingness of the trial court’s findings of fact,
we do not disturb such findings of fact of the RTC, particularly after their affirmance by the CA, for
Batistis, as appellant, did not sufficiently prove any extraordinary circumstance justifying a departure
from such doctrine.

2.

Findings of fact were even correct

A review of the decision of the CA, assuming that the appeal is permissible, even indicates that both
the RTC and the CA correctly appreciated the evidence against the accused, and correctly applied
the pertinent law to their findings of fact.

Article 155 of the Intellectual Property Code identifies the acts constituting infringement of
trademark, viz:

Section 155. Remedies; Infringement. — Any person who shall, without the consent of the owner of
the registered mark:

155.1. Use in commerce any reproduction, counterfeit, copy, or colorable imitation of a registered
mark or the same container or a dominant feature thereof in connection with the sale, offering for
sale, distribution, advertising of any goods or services including other preparatory steps necessary to
carry out the sale of any goods or services on or in connection with which such use is likely to cause
confusion, or to cause mistake, or to deceive; or

155.2. Reproduce, counterfeit, copy or colorably imitate a registered mark or a dominant feature
thereof and apply such reproduction, counterfeit, copy or colorable imitation to labels, signs, prints,
packages, wrappers, receptacles or advertisements intended to be used in commerce upon or in
connection with the sale, offering for sale, distribution, or advertising of goods or services on or in
connection with which such use is likely to cause confusion, or to cause mistake, or to deceive, shall
be liable in a civil action for infringement by the registrant for the remedies hereinafter set forth:
Provided, That the infringement takes place at the moment any of the acts stated in Subsection
155.1 or this subsection are committed regardless of whether there is actual sale of goods or
services using the infringing material.

Harvey Tan, Operations Manager of Pedro Domecq, S.A. whose task involved the detection of
counterfeit products in the Philippines, testified that the seized Fundador brandy, when compared
with the genuine product, revealed several characteristics of counterfeiting, namely: (a) the Bureau
of Internal Revenue (BIR) seal label attached to the confiscated products did not reflect the
word tunay when he flashed a black light against the BIR label; (b) the "tamper evident ring" on the
confiscated item did not contain the word Fundador; and (c) the word Fundador on the label was
printed flat with sharper edges, unlike the raised, actually embossed, and finely printed genuine
Fundador trademark.24

There is no question, therefore, that Batistis exerted the effort to make the counterfeit products look
genuine to deceive the unwary public into regarding the products as genuine. The buying public
would be easy to fall for the counterfeit products due to their having been given the appearance of
the genuine products, particularly with the difficulty of detecting whether the products were fake or
real if the buyers had no experience and the tools for detection, like black light. He thereby infringed
the registered Fundador trademark by the colorable imitation of it through applying the dominant
features of the trademark on the fake products, particularly the two bottles filled with Fundador
brandy.25 His acts constituted infringement of trademark as set forth in Section 155, supra.

3.

Penalty Imposed should be an

Indeterminate Penalty and Fine

Section 170 of the Intellectual Property Code provides the penalty for infringement of trademark, to
wit:
Section 170. Penalties. - Independent of the civil and administrative sanctions imposed by law, a
criminal penalty of imprisonment from two (2) years to five (5) years and a fine ranging from Fifty
thousand pesos (P50,000) to Two hundred thousand pesos(P200,000), shall be imposed on any
person who is found guilty of committing any of the acts mentioned in Section 155, Section 168 and
Subsection 169.1. (Arts. 188 and 189, Revised Penal Code).

The CA affirmed the decision of the RTC imposing the "the penalty of imprisonment of TWO (2)
YEARS and to pay a fine of FIFTY THOUSAND (₱50,000.00) PESOS."

We rule that the penalty thus fixed was contrary to the Indeterminate Sentence Law, 26 as amended
by Act No. 4225. We modify the penalty.

Section 1 of the Indeterminate Sentence Law, as amended, provides:

Section 1. Hereafter, in imposing a prison sentence for an offense punished by the Revised Penal
Code, or its amendments, the court shall sentence the accused to an indeterminate sentence the
maximum term of which shall be that which, in view of the attending circumstances, could be
properly imposed under the rules of the said Code, and the minimum which shall be within the range
of the penalty next lower to that prescribed by the Code for the offense; and if the offense is
punished by any other law, the court shall sentence the accused to an indeterminate sentence, the
maximum term of which shall not exceed the maximum fixed by said law and the minimum shall not
be less than the minimum term prescribed by the same.

The straight penalty the CA imposed was contrary to the Indeterminate Sentence Law, whose
Section 1 requires that the penalty of imprisonment should be an indeterminate sentence. According
to Spouses Bacar v. Judge de Guzman,Jr., 27 the imposition of an indeterminate sentence with
maximum and minimum periods in criminal cases not excepted from the coverage of the
Indeterminate Sentence Law pursuant to its Section 228 is mandatory, viz:

The need for specifying the minimum and maximum periods of the indeterminate sentence is to
prevent the unnecessary and excessive deprivation of liberty and to enhance the economic
usefulness of the accused, since he may be exempted from serving the entire sentence, depending
upon his behavior and his physical, mental, and moral record. The requirement of imposing an
indeterminate sentence in all criminal offenses whether punishable by the Revised Penal Code or by
special laws, with definite minimum and maximum terms, as the Court deems proper within the legal
range of the penalty specified by the law must, therefore, be deemed mandatory.

Indeed, the imposition of an indeterminate sentence is mandatory. For instance, in Argoncillo v.

Court of Appeals,29 three persons were prosecuted for and found guilty of illegal fishing (with the use
of explosives) as defined in Section 33, Presidential Decree No. 704, as amended by Presidential
Decree No. 1058, for which the prescribed penalty was imprisonment from 20 years to life
imprisonment. The trial court imposed on each of the accused a straight penalty of 20 years
imprisonment, and the CA affirmed the trial court. On appeal, however, this Court declared the
straight penalty to be erroneous, and modified it by imposing imprisonment ranging from 20 years,
as minimum, to 25 years, as maximum.

We are aware that an exception was enunciated in People v. Nang Kay,30 a prosecution for illegal
possession of firearms punished by a special law (that is, Section 2692, Revised Administrative
Code, as amended by Commonwealth Act 56 and Republic Act No. 4) with imprisonment of not less
than five years nor more than ten years. There, the Court sustained the straight penalty of five years
and one day imposed by the trial court (Court of First Instance of Rizal) because the application of
the Indeterminate Sentence Law would be unfavorable to the accused by lengthening his prison
sentence. Yet, we cannot apply the Nang Kay exception herein, even if this case was a prosecution
under a special law like that in Nang Kay. Firstly, the trial court in Nang Kay could well and lawfully
have given the accused the lowest prison sentence of five years because of the mitigating
circumstance of his voluntary plea of guilty, but, herein, both the trial court and the CA did not have a
similar circumstance to justify the lenity towards the accused. Secondly, the large number of
Fundador articles confiscated from his house (namely, 241 empty bottles of Fundador, 163
Fundador boxes, a half sack full of Fundador plastic caps, and two filled bottles of Fundador Brandy)
clearly demonstrated that Batistis had been committing a grave economic offense over a period of
time, thereby deserving for him the indeterminate, rather than the straight and lower, penalty.

ACCORDINGLY, we affirm the decision dated September 13, 2007 rendered in C.A.-G.R. CR No.
30392 entitled People of the Philippines v. Juno Batistis, but modify the penalty to imprisonment
ranging from two years, as minimum, to three years, as maximum, and a fine of ₱50,000.00.

The accused shall pay the costs of suit.

SO ORDERED.
 Republic of the Philippines
SUPREME COURT
Manila

THIRD DIVISION

G.R. No. 84850 June 29, 1989

RICARDO A. LLAMADO, petitioner,

vs.
HONORABLE COURT OF APPEALS and LEON GAW, respondents.

Ambrosio Padilla, Mempin & Reyes Law Offices for petitioner.

FELICIANO, J.:

Petitioner Ricardo A. Llamado was Treasurer of Pan Asia Finance Corporation. Together with
Jacinto N. Pascual, Sr., President of the same corporation, petitioner Llamado was prosecuted for
violation of Batas Pambansa Blg. 22 in Criminal Case No. 85-38653, Regional Trial Court of Manila,
Branch 49. The two (2) had co-signed a postdated check payable to private respondent Leon Gaw in
the amount of P186,500.00, which check was dishonored for lack of sufficient funds.

In a decision dated 10 March 1987, the trial court convicted the petitioner alone, since jurisdiction
over the person of Pascual, who had thoughtfully fled the country, had not been obtained. Petitioner
was sentenced to imprisonment for a period of one (1) year of prision correccional and to pay a fine
of P 200,000.00 with subsidiary imprisonment in case of insolvency. Petitioner was also required to
reimburse respondent Gaw the amount of P186,500.00 plus the cost of suit.

On 20 March 1987, after the decision of the trial court was read to him, petitioner through counsel
orally manifested that he was taking an appeal. Having been so notified, the trial court on the same
day ordered the forwarding of the records of the case to the Court of Appeals. On 9 July 1987,
petitioner through his counsel received from the Court of Appeals a notice to file his Appellant's Brief
within thirty (30) days. Petitioner managed to secure several extensions of time within which to file
his brief, the last extension expiring on 18 November 1987. 1

Petitioner Llamado, even while his Appellant's Brief was being finalized by his then counsel of
record, sought advice from another counselor. On 30 November 1987, petitioner, with the assistance
of his new counsel, filed in the Regional Trial Court a Petition for Probation invoking Presidential
Decree No. 968, as amended. The Petition was not, however, accepted by the lower court, since the
records of the case had already been forwarded to the Court of Appeals.

Petitioner then filed with the Court of Appeals Manifestation and Petition for Probation" dated 16
November 1987, enclosing a copy of the Petition for Probation that he had submitted to the trial
court. Petitioner asked the Court of Appeals to grant his Petition for Probation or, in the alternative,
to remand the Petition back to the trial court, together with the records of the criminal case, for
consideration and approval under P.D. No. 968, as amended. At the same time, petitioner prayed
that the running of the period for the filing of his Appellant's Brief be held in abeyance until after the
Court of Appeals shall have acted on his Petition for Probation.

In a "Manifestation and Motion" dated 3 March 1988 and filed with the Court of Appeals, petitioner
formally withdrew his appeal conditioned, however, on the approval of his Petition for Probation. 2
Complying with a Resolution of the Court of Appeals, the Office of the Solicitor General filed a
Comment stating that it had no objection to petitioner Llamado's application for probation. Private
respondent-complainant, upon the other hand, sought and obtained leave to file a Comment on
petitioner Llamado's application for probation, to which Comment, petitioner filed a Reply. Private
respondent then filed his "Comment" on the Office of the Solicitor General's Comment of 18 March
1988.

In a Resolution dated 17 June 1988, the Court of Appeals, through Mr. Justice Magsino, denied the
Petition for Probation. A dissenting opinion was filed by Mr. Justice Bellosillo while Mr. Justice
Santiago submitted a concurring opinion. Petitioner moved for reconsideration which Motion was
denied by the Court of Appeals on 23 August 1988, with another, briefer, dissenting opinion from Mr.
Justice Bellosillo.

Petitioner now asks this Court to review and reverse the opinion of the majority in the Court of
Appeals and, in effect, to accept and adopt the dissenting opinion as its own.

The issue to be resolved here is whether or not petitioner's application for probation which was filed
after a notice of appeal had been filed with the trial court, after the records of the case had been
forwarded to the Court of Appeals and the Court of Appeals had issued the notice to file Appellant's
Brief, after several extensions of time to file Appellant's Brief had been sought from and granted by
the Court of Appeals but before actual filing of such brief, is barred under P.D. No. 968, as amended.

P.D. No. 968, known as the Probation Law of 1976, was promulgated on 24 July 1976. Section 4 of
this statute provided as follows:

Sec. 4. Grant of Probation. Subject to the provisions of this Decree, the court
may, after it shall have convicted and sentenced a defendant and upon application at
any time of said defendant, suspend the execution of said sentence and place the
defendant on probation for such period and upon such terms and conditions as it
may deem best.

Probation may be granted whether the sentence imposes a term of imprisonment or

a fine only. An application for probation shall be filed with the trial court, with notice to
the appellate court if an appeal has been taken from the sentence of conviction.
The filing of the application shall be deemed a waiver of the right to appeal, or the
automatic withdrawal of a pending appeal.

An order granting or denying probation shall not be appealable. (Emphasis supplied)

It will be noted that under Section 4 of P.D. No. 968, the trial court could grant an application for
probation "at any time" "after it shall have convicted and sentenced a defendant" and certainly after
"an appeal has been taken from the sentence of conviction." Thus, the filing of the application for
probation was "deemed [to constitute] automatic withdrawal of a pending appeal."

On 1 December 1977, Section 4 of P.D. No. 968 was amended by P.D. No. 1257 so as to read as
follows:

Sec. 4. Grant of Probation. Subject to the provisions of this Decree, the court may,
senteafter it shall have convicted and sentenced a defendant but before he begins to
serve his sentence and upon his application, suspend the execution of said sentence
and place the defendant on probation for such period and upon such terms and
conditions as it may deem best.
The prosecuting officer concerned shall be notified by the court of the filing of the application for
probation and he may submit his comment on such application within ten days from receipt of the
notification.

Probation may be granted whether the sentence imposes a term of imprisonment or

a fine with subsidiary imprisonment in case of insolvency. An application for
probation shall be filed with the trial court, with notice to the appellate court if an
appeal has been taken from the sentence of conviction. The filing of the application
shall be deemed a waiver of the right to appeal, or the automatic withdrawal of a
pending appeal. In the latter case, however, if the application is filed on or after the
date of the judgment of the appellate court, said application shall be acted upon by
the trial court on the basis of the judgment of the appellate court. (Emphasis
supplied)

Examination of Section 4, after its amendment by P.D. No. 1257, reveals that it had established a
prolonged but definite period during which an application for probation may be granted by the trial
court. That period was: 'After [the trial court] shall have convicted and sentenced a defendant but
before he begins to serve his sentence." Clearly, the cut-off time-commencement of service of
sentence-takes place not only after an appeal has been taken from the sentence of conviction, but
even after judgement has been rendered by the appellate court and after judgment has become
final. Indeed, in this last situation, Section 4, as amended by P.D. No. 1257 provides that "the
application [for probation] shall be acted upon by the trial court on the basis of the judgment of the
appellate court"; for the appellate court might have increased or reduced the original penalty
imposed by the trial court. It would seem beyond dispute then that had the present case arisen while
Section 4 of the statute as amended by P.D. No. 1257 was still in effect, petitioner Llamado's
application for probation would have had to be granted. Mr. Llamado's application for probation was
filed well before the cut-off time established by Section 4 as then amended by P.D. No. 1257.

On 5 October 1985, however, Section 4 of the Probation Law of 1976 was once again amended.
This time by P.D. No. 1990. As so amended and in its present form, Section 4 reads as follows:

Sec. 4. Grant of Probation. Subject to the provisions of this Decree, the trial court
may, after it shall have convicted and sentenced a defendant, and upon
application by said defendant within the period for perfecting an appeal, suspend the
execution of the sentence and place the defendant on probation for such period and
upon such terms and conditions as it may deem best; Provided, That no application
for probation shall be entertained or granted if the defendant has perfected an appeal
from the judgment of conviction.

Probation may be granted whether the sentence imposes a term of imprisonment or

a fine only An application for probation shall be filed with the trial court. The filing of
the application shall be deemed a waiver of the right to appeal.

An order granting or denying probation shall not be appealable. (Emphasis supplied)

In sharp contrast with Section 4 as amended by PD No. 1257, in its present form, Section 4
establishes a much narrower period during which an application for probation may be filed with the
trial court: "after [the trial court] shall have convicted and sentenced a defendant and — within the
period for perfecting an appeal — ." As if to provide emphasis, a new proviso was appended to the
first paragraph of Section 4 that expressly prohibits the grant of an application for probation "if the
defendant has perfected an appeal from the judgment of conviction." It is worthy of note too that
Section 4 in its present form has dropped the phrase which said that the filing of an application for
probation means "the automatic withdrawal of a pending appeal". The deletion is quite logical since
an application for probation can no longer be filed once an appeal is perfected; there can, therefore,
be no pending appeal that would have to be withdrawn.

In applying Section 4 in the form it exists today (and at the time petitioner Llamado was convicted by
the trial court), to the instant case, we must then inquire whether petitioner Llamado had submitted
his application for probation "within the period for perfecting an appeal." Put a little differently, the
question is whether by the time petitioner Llamado's application was filed, he had already "perfected
an appeal" from the judgment of conviction of the Regional Trial Court of Manila.

The period for perfecting an appeal from a judgment rendered by the Regional Trial Court, under
Section 39 of Batas Pambansa Blg. 129, Section 19 of the Interim Rules and Guidelines for the
Implementation of B.P. Blg. 129 and under the 1985 Rules on Criminal Procedure, as amended, or
more specifically Section 5 of Rule 122 of the Revised Rules of Court, is fifteen (15) days from the
promulgation or notice of the judgment appealed from. It is also clear from Section 3 (a) of Rule 122
that such appeal is taken or perfected by simply filing a notice of appeal with the Regional Trial Court
which rendered the judgment appealed from and by serving a copy thereof upon the People of the
Philippines. As noted earlier, petitioner Llamado had manifested orally and in open court his
intention to appeal at the time of promulgation of the judgment of conviction, a manifestation at least
equivalent to a written notice of appeal and treated as such by the Regional Trial Court.

Petitioner urges, however, that the phrase "period for perfecting an appeal" and the clause "if the
defendant has perfected an appeal from the judgment of conviction" found in Section 4 in its current
form, should not be interpreted to refer to Rule 122 of the Revised Rules of Court; and that the
"whereas" or preambulatory clauses of P.D. No. 1990 did not specify a period of fifteen (15) days for
perfecting an appeal. 3 It is also urged that "the true legislative intent of the amendment (P.D. No.
1990) should not apply to petitioner who filed his Petition for probation at the earliest
opportunity then prevailing and withdrew his appeal." 4

Petitioner invokes the dissenting opinion rendered by Mr. Justice Bellosillo in the Court of Appeals.
Petitioner then asks us to have recourse to "the cardinal rule in statutory construction" that "penal
laws [should] be liberally construed in favor of the accused," and to avoid "a too literal and strict
application of the proviso in P.D. No. 1990" which would "defeat the manifest purpose or policy for
which the [probation law] was enacted-."

We find ourselves unable to accept the eloquently stated arguments of petitioner's counsel and the
dissenting opinion. We are unable to persuade ourselves that Section 4 as it now stands, in
authorizing the trial court to grant probation "upon application by [the] defendant within the period for
perfecting an appeal" and in reiterating in the proviso that

no application for probation shall be entertained or granted if the defendant has

perfected an appeal from the judgment of conviction.

did not really mean to refer to the fifteen-day period established, as indicated above, by B.P. Blg.
129, the Interim Rules and Guidelines Implementing B.P. Blg. 129 and the 1985 Rules on Criminal
Procedure, but rather to some vague and undefined time, i.e., "the earliest opportunity" to withdraw
the defendant's appeal. The whereas clauses invoked by petitioner did not, of course, refer to the
fifteen-day period. There was absolutely no reason why they should have so referred to that period
for the operative words of Section 4 already do refer, in our view, to such fifteen-day
period. Whereas clauses do not form part of a statute, strictly speaking; they are not part of
the operative language of the statute. 5 Nonetheless, whereas clauses may be helpful to the extent
they articulate the general purpose or reason underlying a new enactment, in the present case, an
enactment which drastically but clearly changed the substantive content of Section 4 existing before
the promulgation of P.D. No. 1990. Whereas clauses, however, cannot control the specific terms of
the statute; in the instant case, the whereas clauses of P.D. No. 1990 do not purport to control or
modify the terms of Section 4 as amended. Upon the other hand, the term "period for perfecting an
appeal" used in Section 4 may be seen to furnish specification for the loose language "first
opportunity" employed in the fourth whereas clause. "Perfection of an appeal" is, of course, a term of
art but it is a term of art widely understood by lawyers and judges and Section 4 of the Probation
Law addresses itself essentially to judges and lawyers. "Perfecting an appeal" has no sensible
meaning apart from the meaning given to those words in our procedural law and so the law-making
agency could only have intended to refer to the meaning of those words in the context of procedural
law.

Turning to petitioner's invocation of "liberal interpretation" of penal statutes, we note at the outset
that the Probation Law is not a penal statute. We, however, understand petitioner's argument to be
really that any statutory language that appears to favor the accused in a criminal case should be
given a "liberal interpretation." Courts, however, have no authority to invoke "liberal interpretation' or
"the spirit of the law" where the words of the statute themselves, and as illuminated by the history of
that statute, leave no room for doubt or interpretation. We do not believe that "the spirit of law" may
legitimately be invoked to set at naught words which have a clear and definite meaning imparted to
them by our procedural law. The "true legislative intent" must obviously be given effect by judges
and all others who are charged with the application and implementation of a statute. It is absolutely
essential to bear in mind, however, that the spirit of the law and the intent that is to be given effect
are to be derived from the words actually used by the law-maker, and not from some external,
mystical or metajuridical source independent of and transcending the words of the legislature.

The Court is not here to be understood as giving a "strict interpretation rather than a "liberal" one to
Section 4 of the Probation Law of 1976 as amended by P.D. No. 1990. "Strict" and "liberal" are
adjectives which too frequently impede a disciplined and principled search for the meaning which the
law-making authority projected when it promulgated the language which we must apply. That
meaning is clearly visible in the text of Section 4, as plain and unmistakable as the nose on a man's
face. The Court is simply reading Section 4 as it is in fact written. There is no need for the involved
process of construction that petitioner invites us to engage in, a process made necessary only
because petitioner rejects the conclusion or meaning which shines through the words of the statute.
The first duty of a judge is to take and apply a statute as he finds it, not as he would like it to be.
Otherwise, as this Court in Yangco v. Court of First Instance of Manila warned, confusion and
uncertainty in application will surely follow, making, we might add, stability and continuity in the law
much more difficult to achieve:

. . . [w]here language is plain, subtle refinements which tinge words so as to give

them the color of a particular judicial theory are not only unnecessary but decidedly
harmful. That which has caused so much confusion in the law, which has made it so
difficult for the public to understand and know what the law is with respect to a given
matter, is in considerable measure the unwarranted interference by judicial tribunals
with the English language as found in statutes and contracts, cutting the words here
and inserting them there, making them fit personal ideas of what the legislature ought
to have done or what parties should have agreed upon, giving them meanings which
they do not ordinarily have cutting, trimming, fitting, changing and coloring until
lawyers themselves are unable to advise their clients as to the meaning of a given
statute or contract until it has been submitted to some court for its interpretation and
construction. 6

The point in this warning may be expected to become sharper as our people's grasp of English is
steadily attenuated.
There is another and more fundamental reason why a judge must read a statute as the legislative
authority wrote it, not as he would prefer it to have been written. The words to be given meaning
whether they be found in the Constitution or in a statute, define and therefore limit the authority and
discretion of the judges who must apply those words. If judges may, under cover of seeking the "true
spirit" and "real intent" of the law, disregard the words in fact used by the law-giver, the judges will
effectively escape the constitutional and statutory limitations on their authority and discretion. Once a
judge goes beyond the clear and ordinary import of the words of the legislative authority, he is
essentially on uncharted seas. In a polity like ours which enshrines the fundamental notion of limiting
power through the separation and distribution of powers, judges have to be particularly careful lest
they substitute their conceptions or preferences of policy for that actually projected by the legislative
agency. Where a judge believes passionately that he knows what the legislative agency should have
said on the particular matter dealt with by a statute, it is easy enough for him to reach the conclusion
that therefore that was what the law-making authority was really saying or trying to say, if somewhat
ineptly As Mr. Justice Frankfurter explained:

Even within their area of choice the courts are not at large. They are confined by the
nature and scope of the judicial function in its particular exercise in the field of
interpretation. They are under the constraints imposed by the judicial function in our
democratic society. As a matter of verbal recognition certainly, no one will gainsay
that the function in construing a statute is to ascertain the meaning of words used by
the legislature. To go beyond it is to usurp a power which our democracy has lodged
in its elected legislature. The great judges have constantly admonished their brethren
of the need for discipline in observing the limitations A judge must not rewrite a
statute, neither to enlarge nor to contract it. Whatever temptations the statesmanship
of policy-making might wisely suggest, construction must eschew interpolation and
evisceration He must not read in by way of creation. He must not read out except to
avoid patent nonsense of internal contradictions. ... 7

Petitioner finally argues that since under Section 4 of Probation Law as amended has vested in the
trial court the authority to grant the application for probation, the Court of Appeals had no jurisdiction
to entertain the same and should have (as he had prayed in the alternative) remanded instead the
records to the lower court. Once more, we are not persuaded. The trial court lost jurisdiction over the
case when petitioner perfected his appeal. The Court of Appeals was not, therefore, in a position to
remand the case except for execution of judgment. Moreover, having invoked the jurisdiction of the
Court of Appeals, petitioner is not at liberty casually to attack that jurisdiction when exercised
adversely to him. In any case, the argument is mooted by the conclusion that we have reached, that
is, that petitioner's right to apply for probation was lost when he perfected his appeal from the
judgment of conviction.

WHEREFORE, the Decision of the Court of Appeals in CAGR No. 04678 is hereby AFFIRMED. No
pronouncement as to costs.

SO ORDERED.
 Republic of the Philippines
SUPREME COURT
Manila

FIRST DIVISION

G.R. No. 89606 August 30, 1990

AGUSTIN SALGADO, petitioner,

vs.
THE HON. COURT OF APPEALS, (Fourteenth Division) and HON. ANTONIO SOLANO, in his
capacity as Presiding Judge of the RTC-Quezon City (Branch 86) and FRANCISCO
LUKBAN, respondents.

Ernesto L. Pineda for petitioner.

Lukban, Vega, Lozada & Associates for private respondent.

MEDIALDEA, J.:

This petition for review on certiorari seeks to set aside the decision of the Court of Appeals in CA-G.R. SP No. 15493 entitled, "Agustin
Salgado v. Hon. Antonio P. Solano, et al.," which affirmed the Order dated December 22, 1987 of the Regional Trial Court of Quezon City
(Branch 86) sustaining its previous order dated November 18, 1987 directing the issuance of a writ of execution to enforce the civil liability of
herein petitioner in Criminal Case No. 0-33798.

The facts are as follows:

Petitioner was charged with the crime of serious physical injuries in Criminal Case No. 0-33798
entitled, "People of the Philippines v. Agustin Salgado," before the Regional Trial Court of Quezon
City (Branch 86). After trial, judgment was rendered on October 16, 1986 finding him guilty beyond
reasonable doubt of the crime charged. The dispositive portion of the decision, states:

WHEREFORE, the court finds the accused AGUSTIN P. SALGADO, JR., guilty
beyond reasonable doubt of the crime of serious physical injuries, defined and
penalized under paragraph 3 Article 263 of the Revised Penal Code, and
appreciating in his favor the following mitigating circumstances:

1) voluntary surrender; and

2) No intention to commit so grave a wrong hereby sentence (sic) said accused to

suffer imprisonment for a period of four (4) months and twenty (20) days, with the
accessories provided for by law, and to indemnify the victim, Francisco Lukban, Jr.,
in the sum of P126,633.50 as actual or compensatory damages, and the sum of
P50,000.00 as damages for the incapacity of Francisco Lukban to pursue and
engage in his poultry business.

SO ORDERED. (p. 19, Rollo)

On October 17, 1986, petitioner filed an application for probation with the trial court. The application
was granted in an Order dated April 15, 1987. The order contained, among others, the following
condition:

xxx xxx xxx

4. Indemnify the victim FRANCISCO LUKBAN, JR., in a monthly installment of

P2,000.00 (TWO THOUSAND PESOS) every month during the entire period of his
probation. (p. 15, Rollo)

For the months of May, June, July, August, September and October, 1987, petitioner complied with
the above condition by paying in checks the said sum of P2,000.00 monthly, through the City
Probation Officer, Perla Diaz Alonzo. Private respondent Francisco Lukban, Jr. voluntarily accepted
the checks and subsequently encashed them (p. 19, Rollo).

On September 19, 1987, private respondent Francisco Lukban, Jr. filed a motion for the issuance of
a writ of execution for the enforcement of the civil liability adjudged in his favor in the criminal case.
The motion was opposed by the petitioner.

On November 18, 1987, the trial court issued an order granting the motion for issuance of a writ of
execution. A motion for reconsideration was filed by petitioner but it was denied on December 22,
1987. After the denial of his motion for reconsideration, the petitioner filed directly with this Court a
petition for review of the trial court's order granting the motion for issuance of a writ of execution. We
referred the petition to the Court of Appeals in a resolution dated April 13, 1988 (p. 18, Rollo).

On March 16, 1989, respondent Court of Appeals rendered a decision affirming the order of the trial
court granting the motion for the issuance of a writ of execution. A motion for reconsideration was
filed by petitioner but respondent Court of Appeals denied the motion in a resolution dated August 3,
1989 (pp. 9-10, Rollo).

The petitioner went to this Court via a petition for review which was filed on September 26, 1989 and
raised the following assignment of errors:

ASSIGNMENT OF ERRORS

1. THE COURT OF APPEALS ERRED IN HOLDING THAT THE ORDER DATED

APRIL 15, 1987 HAS NOT MODIFIED THE DECISION OF OCTOBER 16, 1986 AS
FAR AS THE CIVIL ASPECT IS CONCERNED.

2. THE COURT OF APPEALS ERRED IN HOLDING THAT THE CONDITION IN

THE PROBATION ORDER MODIFYING OR ALTERING THE CIVIL LIABILITY OF
THE OFFENDER IS UNAUTHORIZED AND NOT SANCTIONED BY LAW. (p.
10, Rollo)

In its decision affirming the order of the trial court granting private respondent's motion for the
issuance of a writ of execution, respondent Court of Appeals advanced three (3) reasons: 1) that the
decision dated October 16, 1986 had become final and executory and the judge who rendered the
decision cannot lawfully alter or modify it; 2) that it is clear that the probation law provides only for
the suspension of sentence imposed on the accused; that it has absolutely no beating on his civil
liability and that none of the conditions listed under Section 10 of the Probation Law relates to civil
liability; and 3) that private respondent is not estopped because he had nothing to do with the filing
and the granting of the probation.

There is no question that the decision of October 16, 1986 in Criminal Case No. Q-33798 finding
petitioner guilty beyond reasonable doubt of the crime of serious physical injuries had become final
and executory because the filing by respondent of an application for probation is deemed a waiver of
his right to appeal (See Section 4 of P.D. 968). Likewise, the judgment finding petitioner liable to
private respondent for P126,633.50 as actual damages and P50,000.00 as consequential damages
had also become final because no appeal was taken therefrom. Hence, it is beyond the power of the
trial court to alter or modify. In the case of Samson v. Hon. Montejo, L-18605, October 31, 1963, 9
SCRA 419, 422-423 cited by respondent appellate court, it was held:

. . . , once a decision becomes final, even the court which rendered it cannot lawfully
alter or modify the same (Rili, et al. v. Chunaco, et al., G.R. No. L-6630, Feb. 29,
1956), especially, considering the fact that, as in the instant case, the alteration or
modification is material and substantial (Ablaza v. Sycip, et al., L-12125, Nov. 23,
1960). In the case of Behn, Meyer & Co., v. J. Mcmicking et al., 11 Phil. 276, (cited
by respondents), it was held that "where a final judgment of an executory character
had been rendered in a suit the mission of the court is limited to the execution and
enforcement of the said final judgment in all of its parts and in accordance with its
express orders." The judgment in question is clear, and with the amended writ of
execution, the liability of petitioner is greatly augmented, without the benefit of proper
proceeding. (Emphasis ours)

We do not believe, however, that the order dated April 15, 1987 granting the application for
probation and imposing some conditions therein altered or modified the decision dated October 16,
1986. The April 15, 1987 Order of the trial court granting the application for probation and providing
as one of the conditions therein that petitioner indemnify private respondent P2,000.00 monthly
during the period of probation did not increase or decrease the civil liability adjudged against
petitioner but merely provided for the manner of payment by the accused of his civil liability during
the period of probation.

It is the submission of private respondent that in the case of Budlong v. Apalisok, No. 60151, June
24, 1983, 122 SCRA 935. We already ruled that "(T)he 'conviction and sentence' clause of the
statutory definition clearly signifies that probation affects only the criminal aspect of the case."

The pronouncement in Apalisok that "probation affects only the criminal aspect of the case" should
not be given a literal meaning. Interpreting the phrase within the context of that case, it means that
although the execution of sentence is suspended by the grant of probation, it does not follow that the
civil liability of the offender, if any, is extinguished. This can be inferred from a reading of the text of
the Apalisok case where the issue that was involved therein was whether a grant of probation carries
with it the extinction of the civil liability of the offender. The reason for ruling that the grant of
probation does not extinguish the civil liability of the offender is clear, "(T)he extinction or survival of
civil liability are governed by Chapter III, Title V, Book I of the Revised Penal Code where under
Article 113 thereof provides that: '. . . , the offender shall continue to be obliged to satisfy the civil
liability resulting from the crime committed by him, notwithstanding the fact that he has served his
sentence consisting of deprivation of liberty or other lights, or has not been required to serve the
same by reason of amnesty, pardon, commutation of sentence, or any other reason.'" In the instant
case, the issue is not the survival or extinction of the civil liability of a probationer but, whether or not
the trial court may impose as a condition of probation the manner in which a probationer may settle
his civil liability against the offended party during the period of probation.
Respondent appellate court ruled that Section 10 of the Probation Law enumerates thirteen (13)
conditions of probation not one of which relates to the civil liability of the offender (p. 22, Rollo).

Section 4 of Presidential Decree No. 968 (Probation Law of 1976) provides:

Sec. 4. Grant of Probation. — Subject to the provisions of this Decree, the court may,
after it shall have convicted and sentenced a defendant but before he begins to serve
his sentence and upon his application, suspend the execution of said sentence
and place the defendant on probation for such period and upon such terms and
conditions as it may deem best.

In the case of Florentino L. Baclayon v. Hon. Pacito G. Mutia, et al., G.R. No. 59298, April 30, 1984,
129 SCRA 148, We ruled that the conditions listed under Section 10 of the Probation Law are not
exclusive. Courts are allowed to impose practically any term it chooses, the only limitation being that
it does not jeopardize the constitutional rights of the accused. Courts may impose conditions with the
end that these conditions would help the probationer develop into a law-abiding individual. Thus,

The conditions which trial courts may impose on a probationer may be classified into
general or mandatory and special or discretionary. The mandatory conditions,
enumerated in Section 10 of the Probation Law, require that probationer should a)
present himself to the probation officer designated to undertake his supervision at
such place as may be specified in the order within 72 hours from receipt of said
order, and b) report to the probation officer at least once a month at such time and
place as specified by said officer. Special or discretionary conditions are those
additional conditions, listed in the same Section 10 of the Probation Law, which the
courts may additionally impose on the probationer towards his correction and
rehabilitation outside of prison. The enumeration, however, is not inclusive. Probation
statutes are liberal in character and enable courts to designate practically any term it
chooses as long as the probationer's constitutional rights are not jeopardized. There
are innumerable conditions which may be relevant to the rehabilitation of the
probationer when viewed in their specific individual context. It should, however, be
borne in mind that the special or discretionary conditions of probation should be
realistic, purposive and geared to help the probationer develop into a law-abiding and
self-respecting individual. Conditions should be interpreted with flexibility in their
application, and each case should be judged on its own merits — on the basis of the
problems, needs and capacity of the probationer. . . . .

The primary consideration in granting probation is the reformation of the probationer. That is why,
under the law, a post sentence investigation, which is mandatory, has to be conducted before a
person can be granted probation to help the court in determining whether the ends of justice and the
best interest of the public as well as the defendant will be served by the granting of the probation
(Alvin Lee Koenig, Post Sentence Investigation, Its Importance and Utility, IBP Journal, Special
Issue on Probation, Vol. 5, No. 5, pp. 381-387). In the case of People v. Lippner, 219 Cal. 395, 26 p.
2d, 457, 458 (1933), among those which has to be ascertained is the financial condition and capacity
of the offender to meet his obligations:

. . . there can be no real reformation of a wrong-doer unless there is at least a

willingness on his part to right the wrong committed, and the effect of such an act
upon the individual is of inestimable value, and to a large extent, determines whether
there has been any real reformation. To be clearly consonant with such a purpose,
the post sentence investigation must include a financial examination of the offender's
capability in order to work out a system of payment which can effectively accomplish
 reimbursement without interfering with the defendant's family and other financial
responsibilities, according to U.S. Model Penal Code of the American Law Institute. .
. . (Sec. 301.1 Comments (Tentative Draft No. 2, 1954; Also 2 U.S. Dept. of Justice,
Attorney General's Survey of Release Procedures 38 (1939) cited in The Period and
Conditions of Probation by Sergio F. Go, IBP Journal Special Issue on Probation,
Vol. 5, No. 5, pp. 406-420). (Emphasis ours)

The trial court is given the discretion to impose conditions in the order granting probation "as it may
deem best." As already stated, it is not only limited to those listed under Section 10 of the Probation
Law. Thus, under Section 26, paragraph (d) of the Rules on Probation Methods and Procedures,
among the conditions which may be imposed in the order granting probation is:

Sec. 26. Other conditions of Probation. The Probation Order may also require the
probationer in appropriate cases, to:

xxx xxx xxx

(d) comply with a program of payment of civil liability to the victim or his heirs . . . .

However, this is not to say that the manner by which the probationer should satisfy the payment of
his civil liability in a criminal case during the probation period may be demanded at will by him. It is
necessary that the condition which provides for a program of payment of his civil liability will address
the offender's needs and capacity. Such need may be ascertained from the findings and
recommendations in the post-sentence investigation report submitted by the Probation Officer after
investigation of the financial capacity of the offender and that such condition is to the end that the
interest of the state and the reformation of the probationer is best served.

In the instant case, in the absence of any showing to the contrary, it is presumed that when the trial
court issued the order of April 15, 1987, the condition that the petitioner has to pay private
respondent P2,000.00 a month for the satisfaction of the civil liability adjudged against him was
recommended by the probation officer who prepared the post-sentence investigation and that such
condition is, in the judgment of the trial court, "deemed best" under the circumstances.

Counting from April 15, 1987, the date of issuance of the order granting probation which under the
law is also the date of its effectivity (Sec. 11, P.D. 968), the probation period must have lapsed by
now. Hence, the order for petitioner to indemnify the private respondent in the amount of P2,000.00
monthly during the period of probation must have also lapsed. If such were the case, there would
therefore, be no more obstacle for the private respondent to enforce the execution of the balance of
the civil liability of the petitioner. However, the records are bereft of allegations to this effect.

ACCORDINGLY, the petition is GRANTED. The decision dated March 16, 1989 of respondent Court
of Appeals affirming the order of the trial court granting the motion for the issuance of a writ of
execution as well as the resolution dated August 3, 1989 of the same court are hereby REVERSED
and SET ASIDE.

SO ORDERED.
 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. 108747 April 6, 1995

PABLO C. FRANCISCO, petitioner,

vs.
COURT OF APPEALS AND THE HONORABLE MAXIMO C. CONTRERAS, respondents.

BELLOSILLO, J.:

Probation is a special privilege granted by the state to a penitent qualified offender. It essentially
rejects appeals and encourages an otherwise eligible convict to immediately admit his liability and
save the state of time, effort and expenses to jettison an appeal. The law expressly requires that an
accused must not have appealed his conviction before he can avail of probation. This outlaws the
element of speculation on the part of the accused — to wager on the result of his appeal — that
when his conviction is finally affirmed on appeal, the moment of truth well-nigh at hand, and the
service of his sentence inevitable, he now applies for probation as an "escape hatch" thus rendering
nugatory the appellate court's affirmance of his conviction. Consequently, probation should be
availed of at the first opportunity by convicts who are willing to be reformed and rehabilitated, who
manifest spontaneity, contrition and remorse.

As conceptualized, is petitioner entitled to probation within the purview of P.D. 968, as amended by
P.D. 1257 and P.D. 1990?

Petitioner's woes started when as President and General Manager of ASPAC Trans. Company he
failed to control his outburst and blurted —

You employees in this office are all tanga, son of a bitches (sic), bullshit. Puro kayo
walang utak . . . . Mga anak ng puta . . . . Magkano ba kayo . . . God damn you all.

Thus for humiliating his employees he was accused of multiple grave oral defamation in five (5)
separate Informations instituted by five (5) of his employees, each Information charging him with
gravely maligning them on four different days, i.e., from 9 to 12 April 1980.

On 2 January 1990, after nearly ten (10) years, the Metropolitan Trial Court of Makati, Br. 61, found
petitioner guilty of grave oral defamation in four (4) of the five (5) cases filed against him, i.e., Crim.
Cases Nos. 105206, 105207, 105209 and 105210, sentenced him to a prison term of one (1) year
and one (l) day to one (1) year and eight (8) months of prision correccional "in each crime committed
on each date of each case, as alleqed in the information(s)," ordered him to indemnify each of the
offended parties, Victoria Gatchalian, Rowena Ruiz, Linda Marie Ayala Pigar and Marie Solis,
P10,000.00 as exemplary damages, and P5,000.00 for attorney's fees, plus costs of suit. 1 He was
however acquitted in Crim. Case No. 105208 for persistent failure of the offended party, Edgar
Colindres, to appear and testify.
Not satisfied with the Decision of the MeTC, and insisting on his innocence, petitioner elevated his
case to the Regional Trial Court.

On 5 August 1991 the Regional Trial Court of Makati, Br. 59, affirmed his conviction but appreciated
in his favor a mitigating circumstance analogous to passion or obfuscation. Thus —

. . . (he) was angry and shouting when he uttered the defamatory words complained
of . . . . he must have been angry and worried "about some missing documents . . .
as well as the letter of the Department of Tourism advising ASPAC about its
delinquent tax of P1.2 million . . . . " the said defamatory words must have been
uttered in the heat of anger which is a mitigating circumstance analogous to passion
or obfuscation.2

Accordingly, petitioner was sentenced "in each case to a STRAIGHT penalty of EIGHT (8) MONTHS
imprisonment . . . . "3 After he failed to interpose an appeal therefrom the decision.of the RTC
became final. The case was then set for execution of judgment by the MeTC which, as a
consequence, issued a warrant of arrest. But·before he could be arrested petitioner filed an
application for probation which the MeTC denied "in the light of the ruling of the Supreme Court
in Llamado v. Court of Appeals, G.R. No, 84850, 29 June 1989, 174 SCRA 566 . . . ."4

Forthwith he went to the Court of Appeals on certiorari which on 2 July 1992 dismissed his petition
on the following grounds —

Initially, the Court notes that the petitioner has failed to comply with the provisions of
Supreme Court Circular No. 28-91 of September 4, 1991. Violation of the circular is
sufficient cause for dismissal of the petition.

Secondly, the petitioner does not allege anywhere in the petition that he had asked
the respondent court to reconsider its above order; in fact, he had failed to give the
court an.opportunity to correct itself if it had, in fact, committed any error on the
matter. He is, however, required to move for reconsideration of the questioned
order before filing a petition for certiorari (Sy It v. Tiangco, 4 SCRA 436). This failure
is fatal to his cause. It is a ground for dismissal of his petition (Santos v. Vda. de
Cerdenola, 5 SCRA 823; Acquiao v. Estenso, 14 SCRA 18; Del Pilar Transit, Inc. v.
Public Service Commission, 31-SCRA 372).

Thirdly, it is obvious that respondent court did not commit any capricious, arbitrary,
despotic or whimsical exercise of power in denying the petitioner's application for
probation . . . .

Fourthly, the petition for probation was filed by the petitioner out of time . . . .

Fifthly, the Court notes that Section 4 of PD 968 allows the trial court to grant probation after
conviction, upon an application by the defendant within the period of appeal, upon terms and
conditions and period appropriate to each case, but expressly rules out probation where an appeal
has been taken . . . . 5

The motion for reconsideration was likewise denied.

In the present recourse, petitioner squirms out of each ground and seeks this Court's compassion in
dispensing with the minor technicalities which may militate against his petition as he now argues
before us that he has not yet lost his right to avail of probation notwithstanding his appeal from the
MeTC to the RTC since "[t]he reason for his appeal was precisely to enable him to avail himself of
the benefits of the Probation Law because the original Decision of the (Metropolitan) Trial Court was
such that he would not then be entitled to probation." 6 He contends that "he appealed from the
judgment of the trial court precisely for the purpose of reducing the penalties imposed upon him by
the said court to enable him to qualify for probation." 7

The central issue therefore is whether petitioneris still qualified to avail of probation even after
appealing his conviction to the RTC which affirmed the MeTC except with regard to the duration of
the penalties imposed.

Petitioner is no longer eligible for probation.

First. Probation is a mere privilege, not a right. 8 Its benefits cannot extend to those not expressly
included. Probation is not a right of an accused, but rather an act of grace and clemency or immunity
conferred by the state which may be granted by the court to a seemingly deserving defendant who
thereby escapes the extreme rigors of the penalty imposed by law for the offense of which he stands
convicted. 9 It is a special prerogative granted by law to a person or group of persons not enjoyed by
others or by all. Accordingly, the grant of probation rests solely upon the discretion of the court which
is to be exercised primarily for the benefit of organized society, and only incidentally for the benefit of
the accused.10 The Probation Law should not therefore be permitted to divest the state or its
government of any of the latter's prerogatives, rights or remedies, unless the intention of the
legislature to this end is clearly expressed, and no person should benefit from the terms of the law
who is not clearly within them.

Neither Sec. 4 of the Probation Law, as amended, which clearly mandates that "no application for
probation shall be entertained or granted if the defendant has perfected the appeal from the
judgment of conviction," nor Llamado v. Court of Appeals 11 which interprets the quoted provision,
offers any ambiguity or qualification. As such, the application of the law should not be subjected to
any to suit the case of petitioner. While the proposition that an appeal should not bar the accused
from applying for probation if the appealis solely to reduce the penalty to within the probationable
limit may be equitable, we are not yet prepared to accept this interpretation under existing law and
jurisprudence. Accordingly, we quote Mr. Justice Feliciano speaking for the Court en
banc in Llamado v. Court of Appeals—

. . . we note at the outset that Probation Law is not a penal statute. We, however,
understand petitioner's argument to be really that any statutory language that
appears to favor the accused in acriminal case should be given.a "liberal
interpretation." Courts . . . have no authority to invoke "liberal interpretation" or "the
spirit of the law" where the words of the statute themselves, and·as illuminated by the
history of that statute, leave no room for doubt or interpretation. We do not believe
that "the spirit of·the law" may legitimately be invoked to set at naught words which
have a clear and definite meaning imparted to them by our procedural law. The "true
legislative intent" must obviously be given effect by judges and all others who are
charged with the application and implementation of a statute. It is absolutely
essential to bear in mind, however, that the spirit of the law and the intent that is to
be given effect are derived from the words actually used by the law-maker, and not
from some external, mystical or metajuridical source independent of and
transcending the words of the legislature.

The Court is not here to be understood as giving a "strict interpretation" rather than a
"liberal" one to Section 4 of the Probation Law of 1976 as amended by P.D. No.
 1990. "Strict" and "liberal" are adjectives which too frequently impede a disciplined
and principled search for the meaning which the law-making authority projected
when it promulgated the language which we must apply. That meaning is clearly
visible in the text of Section 4, as plain and unmistakable as the nose on a man's
face. The Courtis simply·reading Section 4 as it is in fact written. There is no need for
the involved process of construction that petitioner invites us to engage in, a process
made necessary only because petitioner rejects the conclusion or meaning which
shines through the words of the statute. The first duty of the judge is to take and
apply a statute as he finds it, not as he would like·it to be. Otherwise, as this Court
in Yangco v. Court of First Instance warned, confusion and uncertainty will surely
follow, making, we might add, stability and continuity in the law much more difficult to
achieve:

. . . [w]here language is plain, subtle refinements which tinge words

as to give them the color of a particular judicial theory are not only
unnecessary but decidedly harmful. That which has caused so much
confusion in the law, which has made it so difficult for the public to
understand and know what the law is with respect to a given matter,
is in considerable measure the unwarranted interference by judicial
tribunals with the English language as found in statutes and
contracts, cutting the words here and inserting them there, making
them fit personal ideas of what the legislature ought to have done or
what parties should have agreed upon, giving them meanings which
they do not ordinarily have cutting, trimming, fitting, changing and
coloring until lawyers themselves are unable to advise their clients as
to the meaning of a given statute or contract until it has been
submitted to some court for its interpretation and construction.

The point in this warning may be expected to become sharper as our people's grasp
of English is steadily attenuated. 12

Therefore, that an appeal should not·bar the accused from applying for probation if the appeal is
taken solely to reduce the penalty is simply contrary to the clear and express mandate of Sec, 4 of
the Probation Law, as amended, which opens with a negativeclause, "no application for probation
shall be entertained or granted if the defendant has perfected the appeal from the judgment of
conviction." In Bersabal v. Salvador, 13 we said —

By its very language, the Rule is mandatory. Under the rule of statutory construction.
negative words and phrases are to be regarded as mandatory while those in the
affirmative are merely directory. . . . the use of the term "shall" further emphasizes its
mandatory character and means that it is imperative, operating to impose a duty
which may be enforced.

And where the law does not distinguish the courts should not distinguish; where the law does not
make exception the court should not except.

Second. At the outset, the penalties imposed by the MeTC were already probationable. Hence, there
was no need to appeal if only to reduce the penalties to within the probationable period. Multiple
prison terms imposed against an accused found guilty of several offenses in one decision are not,
and should not be, added up. And, the sum of the multiple prison terms imposed against an
applicant should not be determinative of his eligibility for, nay his disqualification from, probation.
The multiple prison terms are distinct from each other, and if none of the terms exceeds the limit set
out in the Probation Law,i.e., not more than six (6) years, then he is entitled to probation, unless he
is otherwise specifically disqualified. The number of offenses is immaterial as long as all the
penalties imposed, taken separately, are within the probationable period. For, Sec. 9, par. (a), P.D.
968, as amended, uses the word maximum not total when it says that "[t]he benefits of this Decree
shall not be extended to those . . . . sentenced to serve a maximum term of imprisonment of more
than six years." Evidently, the law does not intend to sum up the penalties imposed but to take each
penalty separately and distinctly with the others. Consequently, even if petitioner was supposed to
have served his prison term of one (1) year and one (1) day to one (1) year and eight (8) months
of prision correccional sixteen (16) times as he was sentenced to serve the prison term for "each
crime committed on each date of each case, as alleged in the information(s)," and in each of the four
(4) informations, he was charged with.having defamed the four (4) private complainants on four (4)
different, separate days, he was still·eligible for probation, as each prison term imposed on petitioner
was probationable.

Fixing the cut-off point at a maximum term of six (6) years imprisonment for probation is based on
the assumption that those sentenced to higher penalties pose too great a risk to society, not just
because of their demonstrated capability for serious wrong doing but because of the gravity and
serious consequences of the offense they might further commit. 14 The Probation Law, as amended,
disqualifies only those who have been convicted of grave felonies as defined in Art. 9 in relation to
Art. 25 of The Revised Penal Code, 15 and not necessarily those who have been convicted of multiple
offenses in a single proceeding who are deemed to be less perverse. Hence, the basis of the
disqualification is principally the gravity of the offense committed and the concomitant degree of
penalty imposed. Those sentenced to a maximum term not exceeding six (6) years are not generally
considered callous, hard core criminals, and thus may avail of probation.

To demonstrate the point, let ustake for instance one who is convicted in a single decision of, say,
thirteen (13) counts of grave oral defamation (for having defamed thirteen [13] individuals in one
outburst) and sentenced to a total prison term of thirteen (13) years, and another who has been
found guilty of mutilation and sentenced to six (6) years and one (l) day of prision mayor minimum as
minimum to twelve (l2) years and one (1) day of reclusion temporal minimum as maximuin.
Obviously, the latter offender is more perverse and is disqualified from availing of probation.

Petitioner thus proceeds on an erroneous assumption that under the MeTC Decision he could not
have availed of the benefits of probation. Since he could have, although he did not, his appeal now
precludes him from applying for probation.

And, even if we go along with the premise of petitioner, however erroneous it may be, that the
penalties imposed against him should be summed up, still he would not have qualified under the
Decision rendered by the RTC since if the "STRAIGHT penalty of EIGHT (8) MONTHS
imprisonment" imposed by the RTC is multiplied sixteen (16) times, the total imposable penalty
would be ten (10) years and eight (8) months, which is still way beyond the limit of not more than six
(6) years provided for in the Probation Law, as amended. To illustrate: 8 months multiplied by 16
cases = 128 months; 128 months divided by 12 months (in a year) = 10 years and 8 months, hence,
following his argument, petitioner cannot still be eligible for probation as the total of his penalties
exceeds six (6) years.

The assertion that the Decision of the RTC should be multiplied only four (4) times since there are
only four (4) Informations thereby allowing petitioner to qualify for probation, instead of sixteen (16)
times, is quite difficult to understand. The penalties imposed by the MeTC cannot be any clearer —
"one (1) year and one (1) day to one (1) year and eight (8) months of prision correccional, in each
crime committed on each date of each case, as alleged in the information(s). "Hence, petitioner
should suffer the imposed penalties sixteen (16) times. On the other hand, the RTC affirmed, the
judgment of conviction and merely reduced the duration of each penalty imposed by the MeTC "in
each case to a STRAIGHT penalty of EIGHT (8) MONTHS imprisonment" on account of a mitigating
circumstance for each case, count or incident of grave oral defamation·There is no valid reason
therefore why the penalties imposed by the RTC should be multiplied only four (4) times, and not
sixteen (16) times, considering that the RTC merely affirmed the MeTC as regards the culpability of
petitioner in each of the sixteen (16) cases and reducing only the duration of the penalties imposed
therein. Thus —

Premises considered, the judgment of conviction rendered by the trial court is

AFFIRMED with modification, as follows:

WHEREFORE, the Court hereby finds the accused Pablo C. Francisco GUILTY
beyond reasonable doubt in each of the above entitled cases and appreciating in his
favor the mitigating circumstance which is analogous to passion or obfuscation, the
Court hereby sentences the said accused in each case to a straight penalty of
EIGHT (8) MONTHS imprisonment, with the accessory penalties prescribed by law;
and to pay the costs. 16

Nowhere in the RTC Decision is it stated or even hinted at that the accused was acquitted or
absolved in any of the four (4) counts under each of the four (4) Informatfons, or that any part of
thejudgment of conviction was reversed, or that any of the cases, counts or incidents was dismissed.
Otherwise, we will have to account for the twelve (12) other penalties imposed by the MeTC. Can
we? What is clear is that the judgment of conviction rendered by the was affirmed with the sole
modification on the duration of the penalties.

In fine, considering that the multiple prison terms should not be summed up but taken separately as
the totality of all the penalties is not the test, petitioner should have immediately filed an application
for probation as he was already qualified after being convicted by the MeTC, if indeed thereafter he
felt humbled, was ready to unconditionally accept the verdict of the court and admit his liability.
Consequently, in appealing the Decision of the MeTC to the RTC, petitioner lost his right to
probation. For, plainly, the law considers appeal and probation mutually exclusive remedies. 17

Third. Petitioner appealed to the RTC not to reduce or even correct the penalties imposed by the
MeTC, but to assert his innocence. Nothing more. The cold fact is that petitioner appealed his
conviction to the RTC not for the sole purpose of reducing his penalties to make him eligible for
probation — since he was already qualified under the MeTC Decision — but rather to insist on his
innocence. The appeal record is wanting of any other purpose. Thus, in his Memorandum before the
RTC, he raised only three (3) statements of error purportedly committed by the MeTC all aimed at
his acquittal: (a) in finding that the guilt of the accused has been established because of his positive
identification by the witness for the prosecution; (b) in giving full faith and credence to the bare
statements of the private complainants despite the absence of corroborating testimonies; and, (c)in
not acquitting him in all the cases," 18 Consequently, petitioner insisted that the trial court committed
an error in relying on his positive identification considering that private complainants could not have
missed identifying him who was their President and General Manager with whom they worked for a
good number of years. Petitioner further argued that although the alleged defamatory words were
uttered in the presence of other persons, mostly private complainants, co-employees and clients, not
one of them was presented as a witness. Hence, according to petitioner, the trial court could not
have convicted him on the basis of the uncorroborative testimony of private complainants. 19

Certainly, the protestations of petitioner connote profession of guiltlessness, if not complete

innocence, and do not simply put in issue the propriety of the penalties imposed. For sure, the
accused never manifested that he was appealing only for the purpose of correcting a wrong penalty
— to reduce it to within the probationable range. Hence, upon interposing an appeal, more so after
asserting his innocence therein, petitioner should be precluded from seeking probation. By
perfecting his appeal, petitioner ipso facto relinquished his alternative remedy of availing of the
Probation Law the purpose of which is simply to prevent speculation or opportunism on the part of
an accused who although already eligible does not at once apply for probation, but doing so only
after failing in his appeal.

The fact that petitioner did not elevate the affirmance of his conviction by the RTC to the Court of
Appeals does not necessarily mean that his appeal to the RTC was solely to reduce his penalties.
Conversely, he was afraid that the Court of Appeals would increase his penalties, which could be
worse for him. Besides, the RTC Decision had already become final and executory because of the
negligence, according to him, of his former counsel who failed to seek possible remedies within the
period allowed by law.

Perhaps it should be mentioned that at the outset petitioner, in accordance with Sec 3, par. (e), Rule
117 of the Rules of Court, 20 should have moved to quash as each of the four (4) Informations filed
against him charged four (4) separate crimes of grave oral defamation, committed on four (4)
separate days. His failure to do so however may now be deemed a waiver under Sec. 8 of the same
Rule 21 and he can be validly convicted, as in the instant case, of as many crimes charged in the
Information.

Fourth. The application for probation was filed way beyond the period allowed by law. This is vital
way beyond the period allowed by law and crucial. From the records it is clear that the application for
probation was filed "only after a warrant for the arrest of petitioner had been issued . . . (and) almost
two months after (his) receipt of the Decision" 22 of the RTC. This is a significant fact which militates
against the instant petition. We quote with affirmance the well-written, albeit assailed, ponencia of
now Presiding Justice of the Court of Appeals Nathanael P. De Pano, Jr., on the specific issue —

. . . the petition for probation was filed by the petitioner out of time. The law in point,
Section 4 of P.D. 968, as amended, provides thus:

Sec. 4. Grant of Probation. — Subject to the provisions of this

Decree, the trial court may, after it shall have convicted and
sentenced a defendant, and upon application by said defendant
within the period for perfecting an appeal. . . . place the defendant on
probation . . . .

Going to the extreme, and assuming that an application for probation from one who
had appealed the trial court's judgment is allowed by law, the petitioner's plea for
probation was filed out of time. In the petition is a clear statement that the petitioner
was up for execution of judgment before he filed his application for probation. P.D.
No. 968 says that the application for probation must be filed "within the period for
perfecting an appeal;" but in this case, such period for appeal had passed, meaning
to say that the Regional Trial Court's decision had attained finality, and no appeal
therefrom was possible under the law. Even granting that an appeal from
the appellate court's judgment is contemplated by P.D. 968, in addition to the
judgment rendered by the trial court, that appellate judgment had become final and
was, in fact, up for actual execution before the application for probation was
attempted by the petitioner. The petitioner did not file his application for probation
before the finality of the said judgment; therefore, the petitioner's attempt at probation
was filed too late.
Our minds cannot simply rest easy on. the proposition that an application for probation may yet be
granted even if it was filed only after judgment has become final, the conviction already set for
execution and a warrant of arrest issued for service of sentence.

The argument that petitioner had to await the remand of the case to the MeTC, which necessarily
must be after the decision of the RTC had become final, for him to file the application for probation
with the trial court, is to stretch the law beyond comprehension. The law, simply, does not allow
probation after an appeal has been perfected.

Accordingly, considering that prevailing jurisprudence treats appeal and probation as mutually
exclusive remedies, and petitioner appealed from his conviction by the MeTC although the imposed
penalties were already probationable, and in his appeal, he asserted only his innocence and did not
even raise the issue of the propriety of the penalties imposed on him, and finally, he filed an
application for probation outside the period for perfecting an appeal granting he was otherwise
eligible for probation, the instant petition for review should be as it is hereby DENIED.

SO ORDERED.

Narvasa, C.J., Feliciano, Padilla, Bidin and Regalado, JJ., concur.

Separate Opinions

MENDOZA, J., dissenting:

I vote to reverse the judgment of the Court of Appeals in this case.

I.

The principal basis for the affirmance of the decision of the Court of Appeals denying probation is the
fact that petitioner had appealed his sentence before filing his application for probation. Reliance is
placed on the literal application of § 4 of the Probation Law of 1976 ,as amended, which provides as
follows:

Sec. 4. Grant of Probation. — Subject to the provisions of this Decree, the trial court
may, after it shall have convicted and sentenced a defendant, and upon application
by said defendant within the period for perfecting an appeal, suspend the execution
of the sentence and place the defendant on probation for such period and upon such
terms and conditions as it may deem best; Provided, That no application for
probation shall be entertained or granted if the defendant has perfected the appeal
from the judgment of conviction.
 Probation may be granted whether the sentence imposes a term of imprisonment or
a fine only probation shall be filed with the trial court application shall be deemed a
waiver of the right to appeal.

An order granting or denying probation shall not be appealable.

Thus, under § 4 the accused is given the choice of appealing his sentence or applying for probation.
If he appeals, he cannot later apply for probation. If he opts for probation, he can not appeal. Implicit
in the choice, however, is that the accused is not disqualified for probation under any of the cases
mentioned in § 9, to wit:

Sec. 9. Disqualified Offenders. — The benefits of this Decree shall not be extended
to those:

(a) sentenced to serve a maximum term of imprisonment of more than six years;

(b) convicted of subversion or any crime against the national security or the public
order;

(c) who have previously been convicted by final judgment of an offense punished by
imprisonment of not less than one month and one day and/or a fine of not less than
Two Hundred Pesos.

(d) who have been once on probation under the provisions of this Decree; and

(e) who are already serving sentence at the time the substantive provisions of this
Decree became applicable pursuant to Section 33 hereof.

Consequently, if under the sentence given to him an accused is not qualified for probation, as when
the penalty imposed on him by the court singly or in their totality exceeds six (6) years but on appeal
the sentence is modified so that he becomes qualified, I believe that the accused should not be
denied the benefit of probation.

Before its amendment by P.D. No. 1990, the law allowed — even encouraged — speculation on the
outcome of appeals by permitting the accused to apply for probation after he had appealed and
failed to obtain an acquittal. 1 It was to change this that § 4 was amended by P.D. No. 1990 by
expressly providing that "no application for probation shall be entertained or granted if the defendant
has perfected the appeal from the judgment of conviction." For an accused, despite the fact that he
is eligible for probation, may be tempted to appeal in the hope of obtaining an acquittal if he knows
he can any way apply for probation in the event his conviction is affirmed. 2

There is, however, nothing in the amendatory Decree to suggest that in limiting the accused to the
choice of either appealing from the decision of the trial court or applying for probation, the purpose is
to deny him the right to probation in cases like the one at bar where he becomes eligible for
probation only because on appeal his sentence is reduced. The purpose of the amendment, it bears
repeating, is simply to prevent speculation or opportunism on the part of an accused who; although
eligible for probation, does not at once apply for probation, doing so only after failing in his appeal.

In the case at bar, it cannot be said that in appealing the decision MeTC petitioner was principally
motivated by a desire to be acquitted. While acquittal might have been an alluring prospect for him,
what is clear is that he had a reason for appealing because under the sentence given to him he was
disqualified to apply for probation. The MeTC had originally sentenced him to 1 year and 1 day to 1
year and 8 months of prision correccional for "each crime committed on each date of each case, as
alleged in the information[s]." This meant, as the majority opinion points out, that petitioner had to
suffer the prison term of 1 year and 1 day to 1 year and 8 months sixteen times, since he was found
guilty of four crimes of grave oral defamation in each of four cases. The totality of the penalties
imposed on petitioner (26 years and 8 months) thus exceeded the limit of six (6) years of
imprisonment allowed by § 9(a) and disqualified him for probation. It was only after this penalty was
reduced on appeal to a straight penalty of eight months imprisonment in each case or to a total term
of 2 years and 8 months in the four cases that petitioner became eligible for probation. Then he did
not appeal further although he could have done so.

The Court of Appeals, while acknowledging that "there may be some space not covered by the
present law on probation . . . where in its original state, the petitioner was disqualified from applying
for probation under Sec. 9 of the Decree, becoming eligible for probation only under the terms of the
judgment on appeal," nevertheless felt bound by the letter of § 4: "No application for probation shall
be entertained or granted if the defendant has perfected the appeal from the judgment of conviction."
The majority opinion, affirming the ruling, states that to allow probation in this case would be to go
against the "clear and express mandate of sec. 4 of the Probation Law, as amended." (p. 9)

To regard probation, however, as a mere privilege, to be given to the accused only where it clearly
appears he comes within its letter is to disregard the teaching in many cases that the Probation Law
should be applied in favor of the accused not because it is a criminal law — it is not — but to achieve
its beneficent purpose. (Santos To v. Paño, 120 SCRA 8, 14 (1983)). The niggardly application of
the law would defeat its purpose to "help the probationer develop into a law-abiding and self-
respecting individual" (Baclayon v. Mutia, 129 SCRA 148, 149 (1984), per Teehankee, J.) or "afford
[him] a chance to reform and rehabilitate himself without the stigma of a prison record, to save
government funds that may otherwise be spent for his food and maintenance while incarcerated, and
to decongest the jails of the country." (Del Rosario v. Rosero, 126 SCRA 228, 232 (1983), per
Makasiar, J.)

The approach followed by the Court in Atienza v. Court of Appeals, 140 SCRA 391, 395 (1985)
instead commends itself to me:

Regarding this, it suffices to state that the Probation Law was never intended to limit
the right of an accused person to present all relevant evidence he can avail of in
order to secure a verdict of acquittal or a reduction of the penalty. Neither does the
law require a plea of guilty on the part of the accused to enable him to avail of the
benefits of probation. A contrary view would certainly negate the constitutional right
of an accused to be presumed innocent until the contrary is proved.

As already stated, petitioner did not appeal primarily to seek acquittal. Proof of this is that after the
penalty imposed on him by the MeTC had been reduced by the RTC so that he thereby became
qualified for probation, he did not appeal further. The majority says that this was because he was
afraid that if he did the penalty could be increased. That possibility, however, was also there when
he appealed from the MeTC to the RTC. For by appealing the sentence of the MeTC, petitioner took
as much risk that the penalty would be raised as the chance that he would he acquitted.

It is true that in appealing the sentence of the MeTC petitioner professed his innocence and not
simply questioned the propriety of his sentence, but no more so does an accused who, upon being
arraigned, pleads, "Not Guilty." And yet the latter cannot be denied probation if he is otherwise
eligible for probation.
It is argued that there is a difference because an accused who pleads "not guilty'' in the beginning,
later acknowledges his guilt and shows contrition after he is found guilty. So does an accused who
appeals a sentence because under it he is not qualified for probation, but after the penalty is
reduced, instead of appealing further, accepts the new sentence and applies for probation.

This case is thus distinguishable from Llamado v. Court of Appeals, 174 SCRA 566 (1989), in which
it was held that because the petitioner had appealed his sentence, he could not subsequently apply
for probation. For, unlike petitioner in the case at bar, the accused in that case could have applied
for probation as his original sentence of one year of prision correccional did not disqualify him for
probation. That case fell squarely within the ambit of the prohibition in § 4 that one who applies for
probation must not "have perfected an appeal from the judgment of conviction."

II.

It is contended that petitioner did not have to appeal because under the original sentence meted out
to him he was not disqualified for probation. The issue here is whether the multiple prison terms
imposed on petitioner are to be considered singly or in their totality for the purpose of § 9(a) which
disqualifies from probation those "sentenced to serve a maximum term of imprisonment of more than
six years."

I submit that they should be taken in their totality. As the sentence originally imposed on petitioner
was for "one (1) year and one (1) day to one (1) year and eight (8) months of prision correccional in
each crime committed on each date of each case" and as there are four offenses of grave oral
defamation against petitioner in each of the four cases, the total prison term which he would have to
serve was 26 years and 8 months. This is clearly beyond the probationable maximum allowed by
law.

It is said, however, that even if the totality of the prison terms is the test, the modified sentence
imposed by the RTC would not qualify the petitioner for probation because he has to suffer
imprisonment of eight months sixteen times. That is not so. The RTC only "sentence[d] the said
accused in each case to STRAIGHT penalty of EIGHT (8) MONTHS imprisonment." This means
eight (8) months times four (4), since there are four cases, or 32 months or 2 years and 8 months.

The policy of the law indeed appears to be to treat as only one multiple sentences imposed in cases
which are jointly tried and decided. For example, § 9(c) disqualifies from probation persons "who
have previously been convicted by final judgment of an offense punished by imprisonment of not
less than one month and one day and/or a fine of not less than Two Hundred Pesos. It was held
in Rura v. Lopena, 137 SCRA 121 (1985) that the accused, who had been found guilty of estafa in
five criminal cases, was qualified for probation because although the crimes had been committed on
different dates he was found guilty of each crime on the same day. As this Court noted, "Rura was
sentenced to a total prison term of seventeen (l7) months and twenty-five (25) days. In each criminal
case the sentence was three (3) months and fifteen (15) days.

That the duration of a convict's sentence is determined by considering the totality of several
penalties for different offenses committed is also implicit in the provisions of the Revised Penal Code
on the accumulation of penalties. (See e.g., arts. 48 and 70)

It is said that the basis of disqualification under § 9 is the gravity of the offense committed and the
penalty imposed. I agree. That is why I contend that a person who is convicted of multiple grave oral
defamation for which the total prison term is, say, 6 years and 8 months, is guilty of a graver offense
than another who is guilty of only offense of grave oral defamation and sentenced to a single penalty
of 1 year and 8 months. The relevant comparison is between an accused convicted of one offense of
grave oral defamation and another one convicted of the same offense, say four or more times. The
relevant comparison is not, as the majority says, between an accused found guilty of grave oral
defamation four or more times and another one found guilty of mutilation and sentenced to an
indeterminate term of 6 years and 1 day of prision mayor to 12 years and 1 day of reclusion
temporal.

III.

Finally, it is said that there is a more fundamental reason for denying probation in this case and that
is that petitioner applied for probation only after his case had been remanded to the MeTC for the
execution of its decision as modified. But that is because § 4 provides that "an application for
probation shall be filed with the trial court." In the circumstances of this case, petitioner had to await
the remand of the case to the MeTC, which necessarily must be after the decision of the RTC had
become final.

The decision of the Court of Appeals should be REVERSED and respondent judge of the
Metropolitan Trial Court of Makati, Metro Manila should be ORDERED to GRANT petitioner's
application for probation.

VITUG, J., concurring:

While I subscribe to the observation made by Mr. Justice Vicente V. Mendoza in his dissenting
opinion that an accused, who originally is not qualified for probation because the penalty imposed on
him by a court a quo exceeds six (6) years, should not be denied that benefit of probation if on
appeal the sentence is ultimately reduced to within the prescribed limit, I am unable, however, to
second the other proposition that multiple prison terms imposed by a court should be taken in their
totality for purposes of Section 9 (a), P.D. No. 968. In this respect, I concur with Mr. Justice Josue
Bellosillo in his ponencia that in determining the eligibility or disqualification of an applicant for
probation charged with, and sentenced to serve multiple prison terms for, several offenses, "the
number of offenses is immaterial as long as all the penalties imposed, taken separately, are within
the probationable period." The use of the word maximum instead of the word total in Section 9,
paragraph (a) of P.D. 968, as amended, should be enough to reveal that such has been the
legislative intent.

Thus, I still must vote for the denial of the petition.

Separate Opinions

MENDOZA, J., dissenting:

I vote to reverse the judgment of the Court of Appeals in this case.

I.

The principal basis for the affirmance of the decision of the Court of Appeals denying probation is the
fact that petitioner had appealed his sentence before filing his application for probation. Reliance is
placed on the literal application of § 4 of the Probation Law of 1976 ,as amended, which provides as
follows:

Sec. 4. Grant of Probation. — Subject to the provisions of this Decree, the trial court
may, after it shall have convicted and sentenced a defendant, and upon application
by said defendant within the period for perfecting an appeal, suspend the execution
of the sentence and place the defendant on probation for such period and upon such
terms and conditions as it may deem best; Provided, That no application for
probation shall be entertained or granted if the defendant has perfected the appeal
from the judgment of conviction.

Probation may be granted whether the sentence imposes a term of imprisonment or

a fine only probation shall be filed with the trial court application shall be deemed a
waiver of the right to appeal.

An order granting or denying probation shall not be appealable.

Thus, under § 4 the accused is given the choice of appealing his sentence or applying for probation.
If he appeals, he cannot later apply for probation. If he opts for probation, he can not appeal. Implicit
in the choice, however, is that the accused is not disqualified for probation under any of the cases
mentioned in § 9, to wit:

Sec. 9. Disqualified Offenders. — The benefits of this Decree shall not be extended
to those:

(a) sentenced to serve a maximum term of imprisonment of more than six years;

(b) convicted of subversion or any crime against the national security or the public
order;

(c) who have previously been convicted by final judgment of an offense punished by
imprisonment of not less than one month and one day and/or a fine of not less than
Two Hundred Pesos.

(d) who have been once on probation under the provisions of this Decree; and

(e) who are already serving sentence at the time the substantive provisions of this
Decree became applicable pursuant to Section 33 hereof.

Consequently, if under the sentence given to him an accused is not qualified for probation, as when
the penalty imposed on him by the court singly or in their totality exceeds six (6) years but on appeal
the sentence is modified so that he becomes qualified, I believe that the accused should not be
denied the benefit of probation.

Before its amendment by P.D. No. 1990, the law allowed — even encouraged — speculation on the
outcome of appeals by permitting the accused to apply for probation after he had appealed and
failed to obtain an acquittal. 1 It was to change this that § 4 was amended by P.D. No. 1990 by
expressly providing that "no application for probation shall be entertained or granted if the defendant
has perfected the appeal from the judgment of conviction." For an accused, despite the fact that he
is eligible for probation, may be tempted to appeal in the hope of obtaining an acquittal if he knows
he can any way apply for probation in the event his conviction is affirmed.2
There is, however, nothing in the amendatory Decree to suggest that in limiting the accused to the
choice of either appealing from the decision of the trial court or applying for probation, the purpose is
to deny him the right to probation in cases like the one at bar where he becomes eligible for
probation only because on appeal his sentence is reduced. The purpose of the amendment, it bears
repeating, is simply to prevent speculation or opportunism on the part of an accused who; although
eligible for probation, does not at once apply for probation, doing so only after failing in his appeal.

In the case at bar, it cannot be said that in appealing the decision MeTC petitioner was principally
motivated by a desire to be acquitted. While acquittal might have been an alluring prospect for him,
what is clear is that he had a reason for appealing because under the sentence given to him he was
disqualified to apply for probation. The MeTC had originally sentenced him to 1 year and 1 day to 1
year and 8 months of prision correccional for "each crime committed on each date of each case, as
alleged in the information[s]." This meant, as the majority opinion points out, that petitioner had to
suffer the prison term of 1 year and 1 day to 1 year and 8 months sixteen times, since he was found
guilty of four crimes of grave oral defamation in each of four cases. The totality of the penalties
imposed on petitioner (26 years and 8 months) thus exceeded the limit of six (6) years of
imprisonment allowed by § 9(a) and disqualified him for probation. It was only after this penalty was
reduced on appeal to a straight penalty of eight months imprisonment in each case or to a total term
of 2 years and 8 months in the four cases that petitioner became eligible for probation. Then he did
not appeal further although he could have done so.

The Court of Appeals, while acknowledging that "there may be some space not covered by the
present law on probation . . . where in its original state, the petitioner was disqualified from applying
for probation under Sec. 9 of the Decree, becoming eligible for probation only under the terms of the
judgment on appeal," nevertheless felt bound by the letter of § 4: "No application for probation shall
be entertained or granted if the defendant has perfected the appeal from the judgment of conviction."
The majority opinion, affirming the ruling, states that to allow probation in this case would be to go
against the "clear and express mandate of sec. 4 of the Probation Law, as amended." (p. 9)

To regard probation, however, as a mere privilege, to be given to the accused only where it clearly
appears he comes within its letter is to disregard the teaching in many cases that the Probation Law
should be applied in favor of the accused not because it is a criminal law — it is not — but to achieve
its beneficent purpose. (Santos To v. Paño, 120 SCRA 8, 14 (1983)). The niggardly application of
the law would defeat its purpose to "help the probationer develop into a law-abiding and self-
respecting individual" (Baclayon v. Mutia, 129 SCRA 148, 149 (1984), per Teehankee, J.) or "afford
[him] a chance to reform and rehabilitate himself without the stigma of a prison record, to save
government funds that may otherwise be spent for his food and maintenance while incarcerated, and
to decongest the jails of the country." (Del Rosario v. Rosero, 126 SCRA 228, 232 (1983), per
Makasiar, J.)

The approach followed by the Court in Atienza v. Court of Appeals, 140 SCRA 391, 395 (1985)
instead commends itself to me:

Regarding this, it suffices to state that the Probation Law was never intended to limit
the right of an accused person to present all relevant evidence he can avail of in
order to secure a verdict of acquittal or a reduction of the penalty. Neither does the
law require a plea of guilty on the part of the accused to enable him to avail of the
benefits of probation. A contrary view would certainly negate the constitutional right
of an accused to be presumed innocent until the contrary is proved.

As already stated, petitioner did not appeal primarily to seek acquittal. Proof of this is that after the
penalty imposed on him by the MeTC had been reduced by the RTC so that he thereby became
qualified for probation, he did not appeal further. The majority says that this was because he was
afraid that if he did the penalty could be increased. That possibility, however, was also there when
he appealed from the MeTC to the RTC. For by appealing the sentence of the MeTC, petitioner took
as much risk that the penalty would be raised as the chance that he would he acquitted.

It is true that in appealing the sentence of the MeTC petitioner professed his innocence and not
simply questioned the propriety of his sentence, but no more so does an accused who, upon being
arraigned, pleads, "Not Guilty." And yet the latter cannot be denied probation if he is otherwise
eligible for probation.

It is argued that there is a difference because an accused who pleads "not guilty'' in the beginning,
later acknowledges his guilt and shows contrition after he is found guilty. So does an accused who
appeals a sentence because under it he is not qualified for probation, but after the penalty is
reduced, instead of appealing further, accepts the new sentence and applies for probation.

This case is thus distinguishable from Llamado v. Court of Appeals, 174 SCRA 566 (1989), in which
it was held that because the petitioner had appealed his sentence, he could not subsequently apply
for probation. For, unlike petitioner in the case at bar, the accused in that case could have applied
for probation as his original sentence of one year of prision correccional did not disqualify him for
probation. That case fell squarely within the ambit of the prohibition in § 4 that one who applies for
probation must not "have perfected an appeal from the judgment of conviction."

II.

It is contended that petitioner did not have to appeal because under the original sentence meted out
to him he was not disqualified for probation. The issue here is whether the multiple prison terms
imposed on petitioner are to be considered singly or in their totality for the purpose of § 9(a) which
disqualifies from probation those "sentenced to serve a maximum term of imprisonment of more than
six years."

I submit that they should be taken in their totality. As the sentence originally imposed on petitioner
was for "one (1) year and one (1) day to one (1) year and eight (8) months of prision correccional in
each crime committed on each date of each case" and as there are four offenses of grave oral
defamation against petitioner in each of the four cases, the total prison term which he would have to
serve was 26 years and 8 months. This is clearly beyond the probationable maximum allowed by
law.

It is said, however, that even if the totality of the prison terms is the test, the modified sentence
imposed by the RTC would not qualify the petitioner for probation because he has to suffer
imprisonment of eight months sixteen times. That is not so. The RTC only "sentence[d] the said
accused in each case to STRAIGHT penalty of EIGHT (8) MONTHS imprisonment." This means
eight (8) months times four (4), since there are four cases, or 32 months or 2 years and 8 months.

The policy of the law indeed appears to be to treat as only one multiple sentences imposed in cases
which are jointly tried and decided. For example, § 9(c) disqualifies from probation persons "who
have previously been convicted by final judgment of an offense punished by imprisonment of not
less than one month and one day and/or a fine of not less than Two Hundred Pesos. It was held
in Rura v. Lopena, 137 SCRA 121 (1985) that the accused, who had been found guilty of estafa in
five criminal cases, was qualified for probation because although the crimes had been committed on
different dates he was found guilty of each crime on the same day. As this Court noted, "Rura was
sentenced to a total prison term of seventeen (l7) months and twenty-five (25) days. In each criminal
case the sentence was three (3) months and fifteen (15) days.
That the duration of a convict's sentence is determined by considering the totality of several
penalties for different offenses committed is also implicit in the provisions of the Revised Penal Code
on the accumulation of penalties. (See e.g., arts. 48 and 70)

It is said that the basis of disqualification under § 9 is the gravity of the offense committed and the
penalty imposed. I agree. That is why I contend that a person who is convicted of multiple grave oral
defamation for which the total prison term is, say, 6 years and 8 months, is guilty of a graver offense
than another who is guilty of only offense of grave oral defamation and sentenced to a single penalty
of 1 year and 8 months. The relevant comparison is between an accused convicted of one offense of
grave oral defamation and another one convicted of the same offense, say four or more times. The
relevant comparison is not, as the majority says, between an accused found guilty of grave oral
defamation four or more times and another one found guilty of mutilation and sentenced to an
indeterminate term of 6 years and 1 day of prision mayor to 12 years and 1 day of reclusion
temporal.

III.

Finally, it is said that there is a more fundamental reason for denying probation in this case and that
is that petitioner applied for probation only after his case had been remanded to the MeTC for the
execution of its decision as modified. But that is because § 4 provides that "an application for
probation shall be filed with the trial court." In the circumstances of this case, petitioner had to await
the remand of the case to the MeTC, which necessarily must be after the decision of the RTC had
become final.

The decision of the Court of Appeals should be REVERSED and respondent judge of the
Metropolitan Trial Court of Makati, Metro Manila should be ORDERED to GRANT petitioner's
application for probation.

VITUG, J., concurring:

While I subscribe to the observation made by Mr. Justice Vicente V. Mendoza in his dissenting
opinion that an accused, who originally is not qualified for probation because the penalty imposed on
him by a court a quo exceeds six (6) years, should not be denied that benefit of probation if on
appeal the sentence is ultimately reduced to within the prescribed limit, I am unable, however, to
second the other proposition that multiple prison terms imposed by a court should be taken in their
totality for purposes of Section 9 (a), P.D. No. 968. In this respect, I concur with Mr. Justice Josue
Bellosillo in his ponencia that in determining the eligibility or disqualification of an applicant for
probation charged with, and sentenced to serve multiple prison terms for, several offenses, "the
number of offenses is immaterial as long as all the penalties imposed, taken separately, are within
the probationable period." The use of the word maximum instead of the word total in Section 9,
paragraph (a) of P.D. 968, as amended, should be enough to reveal that such has been the
legislative intent.

Thus, I still must vote for the denial of the petition.

Footnotes

1 Decision penned by Judge Andres B. Reyes. Jr., pp. 13-14; Rollo, pp. 46-47.

2 Decision penned-by Judge Lucia V. Isnani, pp. 12-13; Rollo, pp. 59-60.
3 Ibid.

4 Order of Judge Maximo C. Contreras, Metropolitan Trial Court of Makati, Br.

61, Rollo, p. 67.

5 Decision of the Special Eleventh Division penned by then Associate Justice

Nathanael P. De Pano, Jr. (now Presiding Justice), concurred in by Associate
Justices Jesus M. Elbinias and Consuelo Y. Santiago.

6 Urgent Petition for Review, p, 15; Rollo, p, 16.

7 Id., p, 10; Rollo, p.11.

8 Baclayon v. Mutia, G.R. No. 59298, 30 April 1984, 129 SCRA 149; Amandy v.
People, G.R. No. 76258, 23 May 1988, 161 SCRA 436.

9 34 Words and Phrases 111.

10 Bala v. Martinez, G.R. No. 67301, 29 January 1990, 181 SCRA 459.

11 G.R. No. 84850, 29 June 1989, 174 SCRA 566.

12 See Note 11, pp. 577-578.

13 No. L - 35910, 21 July 1978, 84 SCRA 176, citing McGee v. Republic, 94 Phil.
820 (1954).

14 Bautista, E., Statutory Concept and Objectives, Coverage and Selection Criteria
for Probation. Lecture delivered during the 1977 Regional Seminar on Probation,
Philippine International Convention Center.

15 Art. 9 defines grave felonies as those to which the law attaches the capital
punishment or penalties which in any of their periods are afflictive, in accordance
with Art. 25. Art. 25 On the other hand lists death as capital punishment,
and reclusion perpetua, reclusion temporal, perpetual or temporary absolute
disqualification, perpetual or temporary special disqualification, and prision mayor as
afflictive penalties.

16 Decision of the RTC, p. 13; Rollo, p. 60.

17 Bernardo v. Balagot, G.R. No. 86561, 10 November 1992, 215 SCRA 526.

18 Decision of the RTC, p. 2; Rollo, p. 49.

19 Ibid.

20 Section 3, par. (e), Rule 117, Rules of Court, provides: "The accused may move
to quash the complaint or information on any of the following grounds: . . . that more
than one offense is charged . . . .
21 Section 8, Rule 117, Rules of Court, provides: "The failure of the accused to
assert any ground of a motion to quash before he pleads to the complaint or
information, either because he did not file a motion to quash or failed to alleged the
same in the said motion shall be deemed a waiver of the grounds of a motion to
quash . . . .

22 Urgent Petition for Review, p. 5; Rollo, P 6.

MENDOZA, J., dissenting:

1 As originally promulgated on July 24, 1976, P.D. No. 968, § 4 provided:

Sec. 4. Grant of Probation. — Subject to the provisions of this Decree, the court may,
after it shall have convicted and sentenced a defendant and upon application at any
time of said defendant, suspend the execution of said sentence and place the
defendant on probation for such period and upon such terms and conditions as it
may deem best.

Probation may be granted whether the sentence imposes a term of imprisonment or

a fine only. An application for probation shall be filed with the trial court, with notice to
the appellate court if an appeal has been taken from the sentence of conviction. The
filing of the application shall be deemed a waiver of the right to appeal, or the
automatic withdrawal of a pending appeal.

An order granting or denying probation shall not be appealable. (Emphasis added)

Thus, under the law as originally promulgated, any time after the trial court had
convicted and sentenced the accused and even if he had taken an appeal, the trial
court could grant him probation in the event he is convicted.

On December 1, 1977, § 4 of the law was again amended by P.D. No. 1257 so as to
read as follows:

Sec. 4. Grant of Probation. — Subject to the provisions of this Decree, the court may,
after it shall have convicted and sentenced a defendant but before he begins to serve
his sentence and upon his application, suspend the execution of said sentence and
place the defendant on probation for such period and upon such terms and
conditions as it may deem best.

The prosecuting officer concerned shall be notified by the court of the filing of the
application for probation and he may submit his comment on such application within
ten days from receipt of the notification.

Probation may be granted whether the sentence imposes a term of imprisonment or

a fine with subsidiary imprisonment in case of insolvency. An application for
probation shall be filed with the trial court, with notice to the appellate court if an
appeal has been taken from the sentence of conviction. The filing of the application
shall be deemed a waiver of the right to appeal, or the automatic withdrawal of a
pending appeal. In the latter case, however, if the application is filed on or after the
date of the judgment of the appellate court, said application shall be acted upon by
the trial court on the basis of the judgment of the appellate court.
An order granting or denying probation shall not be appealable. (Emphasis added)

This amendment limited the period for applying for probation to the point just "before
he begins to serve his sentence." This meant not only after an appeal had been
taken but even after a judgment had been rendered by the appellate court and after
the latter's judgment had become final. Hence the proviso that "the application [for
probation] shall be acted upon by the trial court on the basis of the judgment of the
appellate court."

On October 5, 1985, § 4 of the Probation Law was again amended to further limit the
period for applying for probation to the "period for perfecting an appeal." The purpose
was to confine the accused to the choice of either applying for probation or
appealing. While heretofore an accused could appeal and, after his appeal had
failed, apply for probation, under the amendatory Decree, this is no longer possible. If
he appeals he cannot later apply for probation. If he applies for probation he cannot
later appeal. As amended by P.D. No. 1990, § 4 reads:

Sec. 4. Grant of Probation. — Subject to the provisions of this Decree, the trial court
may, after it shall have convicted and sentenced a defendant, and upon application
by said defendant within the period for perfecting an appeal, suspend the execution
of the sentence and place the defendant on probation for such period and upon such
terms and conditions as it may deem best; Provided, That no application for
probation shall be entertained or granted if the defendant has perfected the appeal
from the judgment of conviction.

Probation may be granted whether the sentence imposes a term of imprisonment or

a fine only. An application for probation shall be filed with the trial court. The filing of
the application shall be deemed a waiver of the right to appeal.

An order granting or denying probation shall not be appealable. (Emphasis added)

2 The preamble of P.D. No. 1990 states:

WHEREAS, it has been the sad experience that persons who are convicted of
offenses and who may be entitled to probation still appeal the judgment of conviction
even up to the Supreme Court, only to pursue their application for probation when
their appeal is eventually dismissed;

WHEREAS, the process of criminal investigation, prosecution, conviction and appeal

entails too much time and effort, not to mention the huge expenses of litigation, on
the part of the State;

WHEREAS, the time, effort and expenses of the Government in investigating and
prosecuting accused persons from the lower courts up to the Supreme Court, are
often times rendered nugatory when, after the appellate court finally affirms the
judgment of conviction, the defendant applies for and is granted probation;

WHEREAS, probation was not intended as an escape hatch and should not be used
to obstruct and delay the administration of justice, but should be availed of at the first
opportunity by offenders who are willing to be reformed and rehabilitated; (Emphasis
added)
 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. 182748 December 13, 2011

ARNEL COLINARES, Petitioner,

vs.
PEOPLE OF THE PHILIPPINES, Respondent.

DECISION

ABAD, J.:

This case is about a) the need, when invoking self-defense, to prove all that it takes; b) what
distinguishes frustrated homicide from attempted homicide; and c) when an accused who appeals
may still apply for probation on remand of the case to the trial court.

The Facts and the Case

The public prosecutor of Camarines Sur charged the accused Arnel Colinares (Arnel) with frustrated
homicide before the Regional Trial Court (RTC) of San Jose, Camarines Sur, in Criminal Case T-
2213.1

Complainant Rufino P. Buena (Rufino) testified that at around 7:00 in the evening on June 25, 2000,
he and Jesus Paulite (Jesus) went out to buy cigarettes at a nearby store. On their way, Jesus took
a leak by the roadside with Rufino waiting nearby. From nowhere, Arnel sneaked behind and struck
Rufino twice on the head with a huge stone, about 15 ½ inches in diameter. Rufino fell unconscious
as Jesus fled.

Ananias Jallores (Ananias) testified that he was walking home when he saw Rufino lying by the
roadside. Ananias tried to help but someone struck him with something hard on the right temple,
knocking him out. He later learned that Arnel had hit him.

Paciano Alano (Paciano) testified that he saw the whole incident since he happened to be smoking
outside his house. He sought the help of a barangay tanod and they brought Rufino to the hospital.

Dr. Albert Belleza issued a Medico-Legal Certificate2 showing that Rufino suffered two lacerated
wounds on the forehead, along the hairline area. The doctor testified that these injuries were serious
and potentially fatal but Rufino chose to go home after initial treatment.

The defense presented Arnel and Diomedes Paulite (Diomedes). Arnel claimed self-defense. He
testified that he was on his way home that evening when he met Rufino, Jesus, and Ananias who
were all quite drunk. Arnel asked Rufino where he supposed the Mayor of Tigaon was but, rather
than reply, Rufino pushed him, causing his fall. Jesus and Ananias then boxed Arnel several times
on the back. Rufino tried to stab Arnel but missed. The latter picked up a stone and, defending
himself, struck Rufino on the head with it. When Ananias saw this, he charged towards Arnel and
tried to stab him with a gaff. Arnel was able to avoid the attack and hit Ananias with the same stone.
Arnel then fled and hid in his sister’s house. On September 4, 2000, he voluntarily surrendered at
the Tigaon Municipal Police Station.

Diomedes testified that he, Rufino, Jesus, and Ananias attended a pre-wedding party on the night of
the incident. His three companions were all drunk. On his way home, Diomedes saw the three
engaged in heated argument with Arnel.

On July 1, 2005 the RTC rendered judgment, finding Arnel guilty beyond reasonable doubt of
frustrated homicide and sentenced him to suffer imprisonment from two years and four months of
prision correccional, as minimum, to six years and one day of prision mayor, as maximum. Since the
maximum probationable imprisonment under the law was only up to six years, Arnel did not qualify
for probation.

Arnel appealed to the Court of Appeals (CA), invoking self-defense and, alternatively, seeking
conviction for the lesser crime of attempted homicide with the consequent reduction of the penalty
imposed on him. The CA entirely affirmed the RTC decision but deleted the award for lost income in
the absence of evidence to support it. 3 Not satisfied, Arnel comes to this Court on petition for review.

In the course of its deliberation on the case, the Court required Arnel and the Solicitor General to
submit their respective positions on whether or not, assuming Arnel committed only the lesser crime
of attempted homicide with its imposable penalty of imprisonment of four months of arresto mayor,
as minimum, to two years and four months of prision correccional, as maximum, he could still apply
for probation upon remand of the case to the trial court.

Both complied with Arnel taking the position that he should be entitled to apply for probation in case
the Court metes out a new penalty on him that makes his offense probationable. The language and
spirit of the probation law warrants such a stand. The Solicitor General, on the other hand, argues
that under the Probation Law no application for probation can be entertained once the accused has
perfected his appeal from the judgment of conviction.

The Issues Presented

The case essentially presents three issues:

1. Whether or not Arnel acted in self-defense when he struck Rufino on the head with a
stone;

2. Assuming he did not act in self-defense, whether or not Arnel is guilty of frustrated
homicide; and

3. Given a finding that Arnel is entitled to conviction for a lower offense and a reduced
probationable penalty, whether or not he may still apply for probation on remand of the case
to the trial court.

The Court’s Rulings

One. Arnel claims that Rufino, Jesus, and Ananias attacked him first and that he merely acted in
self-defense when he hit Rufino back with a stone.

When the accused invokes self-defense, he bears the burden of showing that he was legally justified
in killing the victim or inflicting injury to him. The accused must establish the elements of self-
defense by clear and convincing evidence. When successful, the otherwise felonious deed would be
excused, mainly predicated on the lack of criminal intent of the accused. 4

In homicide, whether consummated, frustrated, or attempted, self-defense requires (1) that the
person whom the offender killed or injured committed unlawful aggression; (2) that the offender
employed means that is reasonably necessary to prevent or repel the unlawful aggression; and (3)
that the person defending himself did not act with sufficient provocation. 5

If the victim did not commit unlawful aggression against the accused, the latter has nothing to
prevent or repel and the other two requisites of self-defense would have no basis for being
appreciated. Unlawful aggression contemplates an actual, sudden, and unexpected attack or an
imminent danger of such attack. A mere threatening or intimidating attitude is not enough. The victim
must attack the accused with actual physical force or with a weapon. 6

Here, the lower courts found that Arnel failed to prove the element of unlawful aggression. He alone
testified that Jesus and Ananias rained fist blows on him and that Rufino and Ananias tried to stab
him. No one corroborated Arnel’s testimony that it was Rufino who started it. Arnel’s only other
witness, Diomedes, merely testified that he saw those involved having a heated argument in the
middle of the street. Arnel did not submit any medical certificate to prove his point that he suffered
injuries in the hands of Rufino and his companions. 7

In contrast, the three witnesses—Jesus, Paciano, and Ananias—testified that Arnel was the
aggressor. Although their versions were mottled with inconsistencies, these do not detract from their
core story. The witnesses were one in what Arnel did and when and how he did it. Compared to
Arnel’s testimony, the prosecution’s version is more believable and consistent with reality, hence
deserving credence.8

Two. But given that Arnel, the accused, was indeed the aggressor, would he be liable for frustrated
homicide when the wounds he inflicted on Rufino, his victim, were not fatal and could not have
resulted in death as in fact it did not?

The main element of attempted or frustrated homicide is the accused’s intent to take his victim’s life.
The prosecution has to prove this clearly and convincingly to exclude every possible doubt regarding
homicidal intent.9 And the intent to kill is often inferred from, among other things, the means the
offender used and the nature, location, and number of wounds he inflicted on his victim.10

Here, Arnel struck Rufino on the head with a huge stone. The blow was so forceful that it knocked
Rufino out. Considering the great size of his weapon, the impact it produced, and the location of the
wounds that Arnel inflicted on his victim, the Court is convinced that he intended to kill him.

The Court is inclined, however, to hold Arnel guilty only of attempted, not frustrated, homicide. In
Palaganas v. People,11 we ruled that when the accused intended to kill his victim, as shown by his
use of a deadly weapon and the wounds he inflicted, but the victim did not die because of timely
medical assistance, the crime is frustrated murder or frustrated homicide. If the victim’s wounds are
not fatal, the crime is only attempted murder or attempted homicide.

Thus, the prosecution must establish with certainty the nature, extent, depth, and severity of the
victim’s wounds. While Dr. Belleza testified that "head injuries are always very serious," 12 he could
not categorically say that Rufino’s wounds in this case were "fatal." Thus:

Q: Doctor, all the injuries in the head are fatal?

A: No, all traumatic injuries are potentially treated.

Q: But in the case of the victim when you treated him the wounds actually are not fatal on
that very day?

A: I could not say, with the treatment we did, prevent from becoming fatal. But on that case
the patient preferred to go home at that time.

Q: The findings also indicated in the medical certificate only refers to the length of the wound
not the depth of the wound?

A: When you say lacerated wound, the entire length of the layer of scalp.

Q: So you could not find out any abrasion?

A: It is different laceration and abrasion so once the skin is broken up the label of the frontal
lo[b]e, we always call it lacerated wound, but in that kind of wound, we did not measure the
depth.13

Indeed, Rufino had two lacerations on his forehead but there was no indication that his skull incurred
fracture or that he bled internally as a result of the pounding of his head. The wounds were not so
deep, they merely required suturing, and were estimated to heal in seven or eight days. Dr. Belleza
further testified:

Q: So, in the medical certificate the wounds will not require surgery?

A: Yes, Madam.

Q: The injuries are slight?

A: 7 to 8 days long, what we are looking is not much, we give antibiotics and antit[e]tanus –
the problem the contusion that occurred in the brain.

xxxx

Q: What medical intervention that you undertake?

A: We give antibiotics, Your Honor, antit[e]tanus and suturing the wounds.

Q: For how many days did he stay in the hospital?

A: Head injury at least be observed within 24 hours, but some of them would rather go home
and then come back.

Q: So the patient did not stay 24 hours in the hospital?

A: No, Your Honor.

Q: Did he come back to you after 24 hours?

A: I am not sure when he came back for follow-up.14

Taken in its entirety, there is a dearth of medical evidence on record to support the prosecution’s
claim that Rufino would have died without timely medical intervention. Thus, the Court finds Arnel
liable only for attempted homicide and entitled to the mitigating circumstance of voluntary surrender.

Three. Ordinarily, Arnel would no longer be entitled to apply for probation, he having appealed from
the judgment of the RTC convicting him for frustrated homicide.

But, the Court finds Arnel guilty only of the lesser crime of attempted homicide and holds that the
maximum of the penalty imposed on him should be lowered to imprisonment of four months of
arresto mayor, as minimum, to two years and four months of prision correccional, as maximum. With
this new penalty, it would be but fair to allow him the right to apply for probation upon remand of the
case to the RTC.

Some in the Court disagrees. They contend that probation is a mere privilege granted by the state
only to qualified convicted offenders. Section 4 of the probation law (PD 968) provides: "That no
application for probation shall be entertained or granted if the defendant has perfected the appeal
from the judgment of conviction."15 Since Arnel appealed his conviction for frustrated homicide, he
should be deemed permanently disqualified from applying for probation.

But, firstly, while it is true that probation is a mere privilege, the point is not that Arnel has the right to
such privilege; he certainly does not have. What he has is the right to apply for that privilege. The
Court finds that his maximum jail term should only be 2 years and 4 months. If the Court allows him
to apply for probation because of the lowered penalty, it is still up to the trial judge to decide whether
or not to grant him the privilege of probation, taking into account the full circumstances of his case.

Secondly, it is true that under the probation law the accused who appeals "from the judgment of
conviction" is disqualified from availing himself of the benefits of probation. But, as it happens, two
judgments of conviction have been meted out to Arnel: one, a conviction for frustrated homicide by
the regional trial court, now set aside; and, two, a conviction for attempted homicide by the Supreme
Court.

If the Court chooses to go by the dissenting opinion’s hard position, it will apply the probation law on
Arnel based on the trial court’s annulled judgment against him. He will not be entitled to probation
because of the severe penalty that such judgment imposed on him. More, the Supreme Court’s
judgment of conviction for a lesser offense and a lighter penalty will also have to bend over to the
trial court’s judgment—even if this has been found in error. And, worse, Arnel will now also be made
to pay for the trial court’s erroneous judgment with the forfeiture of his right to apply for probation.
Ang kabayo ang nagkasala, ang hagupit ay sa kalabaw (the horse errs, the carabao gets the whip).
Where is justice there?

The dissenting opinion also expresses apprehension that allowing Arnel to apply for probation would
dilute the ruling of this Court in Francisco v. Court of Appeals 16 that the probation law requires that
an accused must not have appealed his conviction before he can avail himself of probation. But
there is a huge difference between Francisco and this case.

In Francisco, the Metropolitan Trial Court (MeTC) of Makati found the accused guilty of grave oral
defamation and sentenced him to a prison term of one year and one day to one year and eight
months of prision correccional, a clearly probationable penalty. Probation was his to ask! Still, he
chose to appeal, seeking an acquittal, hence clearly waiving his right to apply for probation. When
the acquittal did not come, he wanted probation. The Court would not of course let him. It served him
right that he wanted to save his cake and eat it too. He certainly could not have both appeal and
probation.

The Probation Law, said the Court in Francisco, requires that an accused must not have appealed
his conviction before he can avail himself of probation. This requirement "outlaws the element of
speculation on the part of the accused—to wager on the result of his appeal—that when his
conviction is finally affirmed on appeal, the moment of truth well-nigh at hand, and the service of his
sentence inevitable, he now applies for probation as an ‘escape hatch’ thus rendering nugatory the
appellate court’s affirmance of his conviction." 17

Here, however, Arnel did not appeal from a judgment that would have allowed him to apply for
probation. He did not have a choice between appeal and probation. He was not in a position to say,
"By taking this appeal, I choose not to apply for probation." The stiff penalty that the trial court
imposed on him denied him that choice. Thus, a ruling that would allow Arnel to now seek probation
under this Court’s greatly diminished penalty will not dilute the sound ruling in Francisco. It remains
that those who will appeal from judgments of conviction, when they have the option to try for
probation, forfeit their right to apply for that privilege.

Besides, in appealing his case, Arnel raised the issue of correctness of the penalty imposed on him.
He claimed that the evidence at best warranted his conviction only for attempted, not frustrated,
homicide, which crime called for a probationable penalty. In a way, therefore, Arnel sought from the
beginning to bring down the penalty to the level where the law would allow him to apply for
probation.

In a real sense, the Court’s finding that Arnel was guilty, not of frustrated homicide, but only of
attempted homicide, is an original conviction that for the first time imposes on him a probationable
penalty. Had the RTC done him right from the start, it would have found him guilty of the correct
offense and imposed on him the right penalty of two years and four months maximum. This would
la vvphil

have afforded Arnel the right to apply for probation.

The Probation Law never intended to deny an accused his right to probation through no fault of his.
The underlying philosophy of probation is one of liberality towards the accused. Such philosophy is
not served by a harsh and stringent interpretation of the statutory provisions. 18 As Justice Vicente V.
Mendoza said in his dissent in Francisco, the Probation Law must not be regarded as a mere
privilege to be given to the accused only where it clearly appears he comes within its letter; to do so
would be to disregard the teaching in many cases that the Probation Law should be applied in favor
of the accused not because it is a criminal law but to achieve its beneficent purpose. 19

One of those who dissent from this decision points out that allowing Arnel to apply for probation after
he appealed from the trial court’s judgment of conviction would not be consistent with the provision
of Section 2 that the probation law should be interpreted to "provide an opportunity for the
reformation of a penitent offender." An accused like Arnel who appeals from a judgment convicting
him, it is claimed, shows no penitence.

This may be true if the trial court meted out to Arnel a correct judgment of conviction. Here, however,
it convicted Arnel of the wrong crime, frustrated homicide, that carried a penalty in excess of 6 years.
How can the Court expect him to feel penitent over a crime, which as the Court now finds, he did not
commit? He only committed attempted homicide with its maximum penalty of 2 years and 4 months.

Ironically, if the Court denies Arnel the right to apply for probation under the reduced penalty, it
would be sending him straight behind bars. It would be robbing him of the chance to instead undergo
reformation as a penitent offender, defeating the very purpose of the probation law.
At any rate, what is clear is that, had the RTC done what was right and imposed on Arnel the correct
penalty of two years and four months maximum, he would have had the right to apply for probation.
No one could say with certainty that he would have availed himself of the right had the RTC done
right by him. The idea may not even have crossed his mind precisely since the penalty he got was
not probationable.

The question in this case is ultimately one of fairness. Is it fair to deny Arnel the right to apply for
probation when the new penalty that the Court imposes on him is, unlike the one erroneously
imposed by the trial court, subject to probation?

WHEREFORE, the Court PARTIALLY GRANTS the petition, MODIFIES the Decision dated July 31,
2007 of the Court of Appeals in CA-G.R. CR 29639, FINDS petitioner Arnel Colinares GUILTY
beyond reasonable doubt of attempted homicide, and SENTENCES him to suffer an indeterminate
penalty from four months of arresto mayor, as minimum, to two years and four months of prision
correccional, as maximum, and to pay Rufino P. Buena the amount of ₱20,000.00 as moral
damages, without prejudice to petitioner applying for probation within 15 days from notice that the
record of the case has been remanded for execution to the Regional Trial Court of San Jose,
Camarines Sur, in Criminal Case T-2213.

SO ORDERED.
 Republic of the Philippines
SUPREME COURT
Manila

SECOND DIVISION

G.R. No. L-67301 January 29, 1990

MANUEL V. BALA, petitioner,

vs.
THE HON. JUDGE ANTONIO M. MARTINEZ, THE PEOPLE OF THE PHILIPPINES, and PAUL
AYANG-ANG Probation Officer, Manila Probation Office No. 4, respondents.

Coronet Law Office for petitioner.

SARMIENTO, J.:

The petitioner by this Petition for Certiorari and Prohibition with Preliminary Injunction and/or
Temporary Restraining Order seeks the reversal of the order dated April 2, 1984 of the then Court of
First Instance (CFI), now Regional Trial Court (RTC), of Manila, Branch XX. 1 The decretal portion of
the assailed order reads:

WHEREFORE, for the reasons above-stated, the motion to dismiss and/or strike out motion
to revoke probation, filed by Manuel Bala, thru counsel, should be, as it is hereby DENIED,
for lack of merit.

Let the motion be set for continuation of hearing on April 25 & 27, at 8:30 o'clock in the
morning.

SO ORDERED.

The petitioner had been indicted for removing and substituting the picture of Maria Eloisa Criss
Diazen which had been attached to her United States of America passport, with that of Florencia
Notarte, in effect falsifying a genuine public or official document. On January 3, 1978, the trial court
adjudged petitioner Manuel Bala in Criminal Case No. 24443, guilty of the crime of falsification of a
public document. The dispositive portion of the judgment states:

WHEREFORE, in view of the foregoing, the Court finds the accused Manuel Bala y Valdellon
guilty beyond reasonable doubt of the crime of falsification of a public or official document
defined and penalized under article 172 of the Revised Penal Code, without any mitigating or
aggravating circumstances. Applying the Indeterminate Sentence Law, he is hereby
sentenced to an indeterminate penalty of not less than ONE (1) YEAR AND ONE (1) DAY
and not exceeding THREE (3) YEARS, SIX (6) MONTHS & TWENTY-ONE (21) DAYS of
prision correccional, to pay a fine of Pl,800.00 with subsidiary imprisonment in case of
insolvency at the rate of P8.00 for each day, and to pay the cost. He shall be credited with
the period of preventive imprisonment that he may have undergone in accordance with law.
The petitioner seasonably appealed, but the Court of Appeals, on April 9, 1980, affirmed in toto the
lower court's decision.

After the case had been remanded to the court of origin for execution of judgment, 2 the petitioner
applied for and was granted probation by the respondent judge in his order dated August 11, 1982.
The petitioner was then placed under probation for a period of one (1) year, subject to the terms and
conditions enumerated therein.

On September 23, 1982, the probationer (petitioner) asked his supervising probation officer for
permission to transfer his residence from BF Homes to Phil-Am Life Subdivision in Las Piñas
specifically 33 Jingco Street. The probation officer verbally granted the probationer's request as he
found nothing objectionable to it.

By the terms of the petitioner's probation, it should have expired on August 10, 1983, 3 one year after
the order granting the same was issued. But, the order of final discharge could not be issued
because the respondent probation officer had not yet submitted his final report on the conduct of his
charge.

On December 8, 1983, the respondent People of the Philippines, through Assistant City Fiscal Jose
D. Cajucom of Manila, filed a motion to revoke the probation of the petitioner before Branch XX of
the Regional Trial Court (RTC) of Manila, presided over by the respondent judge. 4

The motion alleged that the petitioner had violated the terms and conditions of his probation.

On January 4, 1984, the petitioner filed his opposition to the motion on the ground that he was no
longer under probation, 5 his probation period having terminated on August 10, 1983, as previously
adverted to. As such, no valid reason existed to revoke the same, he contended.

As if to confirm the Manila Assistant City Fiscal's motion to revoke the petitioner's probation, the
respondent probation officer filed on January 6, 1984, a motion to terminate Manuel Bala's
probation, at the same time attaching his progress report on supervision dated January 5,
1984. 6 The same motion, however, became the subject of a "Manifestation," dated January 10,
1984, which stated that the probation officer was not pursuing the motion to terminate dated January
6, 1984; instead, he was submitting a supplemental report 7 which recommended the revocation of
probation "in the light of new facts, information, and evidences."

Thereafter, the petitioner filed a motion to dismiss and/or strike out the motion to revoke probation,
questioning the jurisdiction of the court over his case inasmuch as his probation period had already
expired. Moreover, his change of residence automatically transferred the venue of the case from the
RTC of Manila to the Executive. Judge, of the RTC of Makati which latter court include under its
jurisdiction the Municipality of Las Piñas the probationer's place of residence, invoking Section 13,
P.D. No. 968, which provides

Sec. 13. Control and Supervision of Probationer. ...

Whenever a probationer is permitted to reside in a place under the jurisdiction of another

court, control over him shall be transferred to the Executive Judge of the, Court of First
Instance of that place, and in such a case a copy of the probation order the investigation
report and other pertinent records shall be furnished to said Executive Judge. Thereafter. the
Executive Judge to whom jurisdiction over the probationer is transferred shall have the
power with respect to him that was previously possessed by the court which granted the
probation.
As stated at the outset, the respondent judge denied the motion to dismiss for lack of merit.

Hence, this petition.

The present law on probation, Presidential Decree (P.D.) 1990, which amends section 4 of P.D. 968,
clearly states that "no application for probation shall be entertained or granted if the defendant has
perfected the appeal from the judgment of conviction."

However, in the case at bar, P.D. 1990 is inapplicable. P.D. 1990, which went in force on January
15, 1985 can not be given retroactive effect because it would be prejudicial to the accused.

It is worthy to note, that what was actually resolved and denied was the motion to dismiss and/or
strike out the motion to revoke probation which disposed of only the issue of the petitioner's transfer
of residence. The motion did not touch on the issue of the timeliness to revoke probation. The
respondent judge has not yet heard and received evidence, much less acted on the matter.
Accordingly, the Solicitor General submits that the present petition is premature.

The Court finds no merit in the petition. Probation is revocable before the final discharge of the
probationer by the court, contrary to the petitioner's submission.

Section 16 of PD 968 8 is clear on this score:

See. 16. Termination of Probation. — After the period of probation and upon consideration of
the report and recommendation of the probation officer, the court may order the final
discharge of the probationer upon finding that he has fulfilled the terms and conditions of his
probation and thereupon the case is deemed terminated.

Thus, the expiration of the probation period alone does not automatically terminate probation.
Nowhere is the ipso facto termination of probation found in the provisions of the probation law.
Probation is not coterminous with its period. There must first be issued by the court of an order of
final discharge based on the report and recommendation of the probation officer. Only from such
issuance can the case of the probationer be deemed terminated.

The period of probation may either be shortened or made longer, but not to exceed the period set in
the law. This is so because the period of probation, like the period of incarceration, is deemed the
appropriate period for the rehabilitation of the probationer. In the instant case, a review of the
records compels a revocation of the probation without the need of further proceedings in the trial
court which, after all, would only be an exercise in futility. If we render justice now, why should we
allow the petitioner to further delay it. Probationer Manuel Bala failed to reunite with responsible
society. Precisely he was granted probation in order to give him a chance to return to the main
stream, to give him hope — hope for self-respect and a better life. Unfortunately, he has continued
to shun the straight and narrow path. He thus wrecked his chance. He has not reformed.

A major role is played by the probation officer in the release of the probationer because he
(probation officer) is in the best position to report all information relative to the conduct and mental
and physical condition of the probationer in his environment, and the existing institutional and
community resources that he may avail himself of when necessary. Indeed, it is the probation officer
who primarily undertakes the supervision and reform of the probationer through a personalized,
individualized, and community-based rehabilitation program for a specific period of time. On the
basis of his final report, the court can determine whether or not the probationer may be released
from probation.
We find it reprehensible that the respondent probation officer had neglected to submit his report and
recommendation. For, as earlier discussed, without this report, the trial court could not issue the
order of final discharge of the probationer. And it is this order of final discharge which would restore
the probationer's suspended civil rights. In the absence of the order of final discharge, the probation
would still subsist, unless otherwise revoked for cause and that is precisely what we are going to do.
We are revoking his probation for cause.

The petitioner, by applying for probation and getting it, consented to be emancipated from the yoke if
not stigma of a prison sentence, pledging to faithfully comply with the conditions of his probation,
among which are:

xxx

4. To be gainfully employed and be a productive member of society;

xxx

6. To cooperate fully with his program of supervision and rehabilitation that will be prescribed
by the Probation Officer. 9

These conditions, as the records show, were not complied with. This non-compliance has defeated
the very purposes of the probation law, to wit:

(a) promote the correction and rehabilitation of an offender by providing him with
individualized treatment;

(b) provide an opportunity for the reformation of a penitent offender which might be less
probable if he were to serve a prison sentence; and

(c) prevent the commission of offenses. 10

By his actuations, probationer-petitioner Manuel V. Bala has ridiculed the probation program. Instead
of utilizing his temporary liberty to rehabilitate and reintegrate himself as a productive, law abiding,
and socially responsible member of society, he continued in his wayward ways — falsifying public or
official documents.

Specifically, on April 30, 1984, the Regional Trial Court of Manila, National Capital Judicial Region,
Branch XXX, convicted the petitioner, along with two other persons, Lorenzo Rolo y Punzalan and
Efren Faderanga y Fesalbon, for falsification of public and/or official documents (U.S. Passports),
under Article 172, in relation to Article 171, of the Revised Penal Code, in five separate informations,
in Criminal Cases Nos. 29100, 29101, 29102, 29103, and 29107. The trial court imposed upon each
of them in all five (5) cases a prison term of "two (2) years of prision correccional, as minimum, to
four (4) years also of prison correccional, as maximum, to pay a fine of P2,000, the accessory
penalties thereof, and to pay the costs." On appeal, the Court of Appeals affirmed the judgment of
the RTC with modification by granting restitution of the amounts they collected from the offended
private parties. The judgment has since become final. As a matter of fact, for failure of the petitioner
to appear for execution of judgment despite notice, the trial court ordered the arrest of Manuel Bala
on July 10, 1989. A warrant of arrest against Bala was issued on July 12, 1989 and this warrant has
not yet been implemented because Bala absconded. These facts are evident and constitute
violations of the conditions of his probation. Thus, the revocation of his probation is compelling.
 At any time during the probation, the court may issue a warrant for the arrest of a probationer
for violation of any of the conditions of probation. The probationer, once arrested and
detained, shall immediately be brought before the court for a hearing which may be informal
and summary, of the violation charged. ... If the violation is established, the court may revoke
or continue his probation and modify the conditions thereof. If revoked, the court shall order
the probationer to serve the sentence originally imposed. An order revoking the grant of
probation or modifying the terms and conditions thereof shall not be appealable. 11

(Emphasis supplied.)

The probation having been revoked, it is imperative that the probationer be arrested so that he can
serve the sentence originally imposed. The expiration of the probation period of one year is of no
moment, there being no order of final discharge as yet, as we stressed earlier. Neither can there be
a deduction of the one year probation period from the penalty of one year and one day to three
years, six months, and twenty-one days of imprisonment because an order placing the defendant on
"probation" is not a "sentence," but is in effect a suspension of the imposition of the sentence. 12 It is
not a final judgment but an "interlocutory judgment" in the nature of a conditional order placing the
convicted defendant under the supervision of the court for his reformation, to be followed by a final
judgment of discharge, if the conditions of the probation are complied with, or by a final judgment if
the conditions are violated." 13

Lastly, probation is a mere privilege. Privilege is a peculiar benefit or immunity conferred by law on a
person or group of persons, not enjoyed by others or by all; special enjoyment of a good or
exemption from an evil; it is a special prerogative granted by law to some persons. 14 Accordingly, the
grant of probation rests solely upon the discretion of the court. This discretion is to be exercised
primarily for the benefit of organized society, and only incidentally for the benefit of the accused. 15 If
the probationer has proven to be unrepentant, as in the case of the petitioner, the State is not barred
from revoking such a privilege. Otherwise, the seriousness of the offense is lessened if probation is
not revoked.

On the second assigned error, the petitioner argues that his transfer of residence automatically
transferred jurisdiction over his probation from the Manila Regional Trial Court to the same court in
his new address.

We disagree.

In criminal cases, venue is an element of jurisdiction. 16 Such being the case, the Manila RTC would
not be deprived of its ,jurisdiction over the probation case. To uphold the petitioner's contention
would mean a depreciation of the Manila court's power to grant probation in the first place. It is to be
remembered that when the petitioner-accused applied for probation in the then CFI of Manila, he
was a resident of Las Piñas as he is up to now, although in a different subdivision. As pointed out
earlier, he merely moved from BF Homes to Philam Life Subdivision 33 Jingco Street, also in Las
Piñas. 17 On the other hand, pursuing the petitioner's argument on this score to the limits of it logic
would mean that his probation was null and void in the place, because then the Manila CFI was
without jurisdiction to grant him probation as he was a resident of Las Piñas.

It is therefore incorrect to assume that the petitioner's change of abode compels change of venue,
and necessarily, control over the petitioner, to the Executive Judge of the RTC of his new residence.
Thus, in the apportionment of the regional trial courts under Batas Pambansa Blg. 129, otherwise
known as the Judiciary Reorganization Act of 1980, Las Piñas is one among the municipalities
included in the National Capital Judicial Region (Metro Manila) with a seat at Makati. 18 Needless to
say, the Regional Trial Court in Makati, like the Manila Regional Trial Court, forms part of the
Regional Trial Court of the National Capital Region. 19 Accordingly, the various branches of the
regional trial courts of Makati or Manila under the National Capital Region, are coordinate and co-
equal courts, the totality of which is only one Regional Trial Court. Jurisdiction is vested in the court,
not in the judges. In other words, the case does not attach to the branch or judge. 20 Therefore, in this
case, RTC Branch XX of Manila, which granted the probation, has not lost control and supervision
over the probation of the petitioner.

The petitioner also claims that he had verbally obtained permission to transfer residence from his
probation officer. This would not suffice the law is very explicit in its requirement of a prior court
1âwphi1

approval in writing. Section 10 of PD 968 categorically decrees that the probationer must

xxx

(j) reside at premises approved by it (court) and not to change his residence without its
prior written approval;

xxx

Further, such written approval is required by the 21

probation order of August 11, 1982 as one of the
conditions of probation, to wit:

(3) To reside in BF Homes, Las Piñas and not to change said address nor leave the territorial
jurisdiction of Metro Manila for more than twenty-four (24) hours without first securing prior
written approval of his Probation Officer.

In the light of all the foregoing and in the interest of the expeditious administration of justice, we
revoke the probation of the petitioner for violations of the conditions of his probation, instead of
remanding the case to the trial court and having the parties start all over again in needless
protracted proceedings. 22

WHEREFORE, the Petition is DISMISSED and the probation of the petitioner is hereby REVOKED.
Further, the trial court is ORDERED to issue a warrant for the arrest of the petitioner and for him to
serve the sentence originally imposed without any deduction. Costs against the petitioner.

SO ORDERED.
 Republic of the Philippines
SUPREME COURT
Manila

SECOND DIVISION

G.R. No. 182941 July 3, 2009

ROBERT SIERRA y CANEDA, Petitioner,

vs.
PEOPLE OF THE PHILIPPINES, Respondent.

DECISION

BRION, J.:

Before us is the petition of Robert Sierra y Caneda (petitioner) for the review on certiorari1 of the
Decision2 and Resolution3 of the Court of Appeals4 (CA) that affirmed with modification his conviction
for the crime of qualified rape rendered by the Regional Trial Court (RTC), Branch 159, Pasig City, in
its decision of April 5, 2006.

THE ANTECEDENT FACTS

In August 2000, thirteen-year-old AAA5 was playing with her friend BBB in the second floor of her
family’s house in Palatiw, Pasig. The petitioner arrived holding a knife and told AAA and BBB that he
wanted to play with them. The petitioner then undressed BBB and had sexual intercourse with her.
Afterwards, he turned to AAA, undressed her, and also had sexual intercourse with her by inserting
his male organ into hers. The petitioner warned AAA not to tell anybody of what they did.

AAA subsequently disclosed the incident to Elena Gallano (her teacher) and to Dolores Mangantula
(the parent of a classmate), who both accompanied AAA to the barangay office. AAA was later
subjected to physical examination that revealed a laceration on her hymen consistent with her claim
of sexual abuse. On the basis of the complaint and the physical findings, the petitioner was charged
with rape under the following Information:

On or about August 5, 2000, in Pasig City and within the jurisdiction of this Honorable Court, the
accused, a minor, 15 years old, with lewd designs and by means of force, violence and intimidation,
did then and there willfully, unlawfully and feloniously have sexual intercourse with his (accused)
sister, AAA, thirteen years of age, against the latter’s will and consent.

Contrary to law.6

The petitioner pleaded not guilty to the charge and raised the defenses of denial and alibi. He
claimed that he was selling cigarettes at the time of the alleged rape. He also claimed that AAA only
invented her story because she bore him a grudge for the beatings he gave her. The parties’ mother
(CCC) supported the petitioner’s story; she also stated that AAA was a troublemaker. Both CCC and
son testified that the petitioner was fifteen (15) years old when the alleged incident happened. 7

The defense also presented BBB who denied that the petitioner raped her; she confirmed the
petitioner’s claim that AAA bore her brother a grudge.
On April 5, 2006, the RTC convicted the petitioner of qualified rape as follows:

WHEREFORE, in view of the foregoing, this Court finds the accused ROBERT SIERRA y CANEDA
GUILTY beyond reasonable doubt of the crime of rape (Violation of R.A. 8353 in relation to SC A.M.
99-1-13) and hereby sentences the said juvenile in conflict with law to suffer the penalty of
imprisonment of reclusion perpetua; and to indemnify the victim the amount of ₱75,000 as civil
indemnity, ₱50,000 as moral damages, and ₱25,000 as exemplary damages.

SO ORDERED.8

The petitioner elevated this RTC decision to the CA by attacking AAA’s credibility. He also invoked
paragraph 1, Section 6 of R.A. No. 9344 (Juvenile Justice and Welfare Act of 2006) 9 to exempt him
from criminal liability considering that he was only 15 years old at the time the crime was committed.

The CA nevertheless affirmed the petitioner’s conviction with modification as to penalty as follows:

WHEREFORE, finding that the trial court did not err in convicting Robert Sierra, the assailed
Decision is hereby AFFIRMED with MODIFICATION that Robert Sierra has to suffer the penalty of
imprisonment of RECLUSION TEMPORAL MAXIMUM. The award of damages are likewise affirmed.

SO ORDERED.10

In ruling that the petitioner was not exempt from criminal liability, the CA held:

As to the penalty, We agree with the Office of the Solicitor General that Robert is not exempt from
liability. First, it was not clearly established and proved by the defense that Robert was 15 years old
or below at the time of the commission of the crime. It was incumbent for the defense to present
Robert’s birth certificate if it was to invoke Section 64 of Republic Act No. 9344. Neither is the
suspension of sentence available to Robert as the Supreme Court, in one case, clarified that:

We note that, in the meantime, Rep. Act No. 9344 took effect on May 20, 2006. Section 38 of the law
reads:

SEC. 38. Automatic Suspension of Sentence. – Once the child who is under eighteen (18) years of
age at the time of the commission of the offense is found guilty of the offense charged, the court
shall determine and ascertain any civil liability which may have resulted from the offense committed.
However, instead of pronouncing the judgment of conviction, the court shall place the child in conflict
with the law under suspended sentence, without need of application: Provided, however, That
suspension of sentence shall still be applied even if the juvenile is already eighteen (18) years of age
or more at the time of the pronouncement of his/her guilt.

Upon suspension of sentence and after considering the various circumstances of the child, the court
shall impose the appropriate disposition measures as provided in the Supreme Court on Juveniles in
Conflict with the Law.

The law merely amended Article 192 of P.D. No. 603, as amended by A.M. No. 02-1-18-SC, in that
the suspension of sentence shall be enjoyed by the juvenile even if he is already 18 years of age or
more at the time of the pronouncement of his/her guilt. The other disqualifications in Article 192 of
P.D. No. 603, as amended, and Section 32 of A.M. No. 02-1-18-SC have not been deleted from
Section 38 of Republic Act No. 9344. Evidently, the intention of Congress was to maintain the other
disqualifications as provided in Article 192 of P.D. No. 603, as amended, and Section 32 of A.M. No.
02-1-18-SC. Hence, juveniles who have been convicted of a crime the imposable penalty for which
is reclusion perpetua, life imprisonment or reclusion perpetua to death or death, are disqualified from
having their sentences suspended. 11

The CA denied the petitioner’s subsequent motion for reconsideration; hence, the present petition.

THE ISSUES

The petitioner no longer assails the prosecution’s evidence on his guilt of the crime charged; what he
now assails is the failure of the CA to apply paragraph 1, Section 612 of R.A. No. 9344 under the
following issues:

(1) Whether or not the CA erred in not applying the provisions of R.A. No. 9344 on the
petitioner’s exemption from criminal liability;

(2) Whether or not the CA erred in ruling that it was incumbent for the defense to present the
petitioner’s birth certificate to invoke Section 64 of R.A. No. 9344 when the burden of proving
his age lies with the prosecution by express provisions of R.A. No. 9344; and

(3) Whether or not the CA erred in applying the ruling in Declarador v. Hon.
Gubaton13 thereby denying the petitioner the benefit of exemption from criminal liability under
R.A. No. 9344.

The threshold issue in this case is the determination of who bears the burden of proof for purposes
of determining exemption from criminal liability based on the age of the petitioner at the time the
crime was committed.

The petitioner posits that the burden of proof should be on the prosecution as the party who stands
to lose the case if no evidence is presented to show that the petitioner was not a 15-year old minor
entitled to the exempting benefit provided under Section 6 of R.A. No. 9344. 14 He additionally claims
that Sections 3,15 7,16 and 6817 of the law also provide a presumption of minority in favor of a child in
conflict with the law, so that any doubt regarding his age should be resolved in his favor.

The petitioner further submits that the undisputed facts and evidence on record – specifically: the
allegation of the Information, the testimonies of the petitioner and CCC that the prosecution never
objected to, and the findings of the RTC – established that he was not more than 15 years old at the
time of the commission of the crime.

The People’s Comment, through the Office of the Solicitor General (OSG), counters that the burden
belongs to the petitioner who should have presented his birth certificate or other documentary
evidence proving that his age was 15 years or below. The OSG also stressed that while petitioner is
presumed to be a minor, he is disqualified to have his sentence suspended following the ruling in
Declarador v. Hon. Gubaton.18

THE COURT’S RULING

We grant the petition.

We examine at the outset the prosecution’s evidence and the findings of the lower courts on the
petitioner’s guilt, since the petition opens the whole case for review and the issues before us are
predicated on the petitioner’s guilt of the crime charged. A determination of guilt is likewise relevant
under the terms of R.A. No. 9344 since its exempting effect is only on the criminal, not on the civil,
liability.

We see no compelling reason, after examination of the CA decision and the records of the case, to
deviate from the lower courts’ findings of guilt. The records show that the prosecution established all
the elements of the crime charged through the credible testimony of AAA and the other corroborating
evidence; sexual intercourse did indeed take place as the information charged. 19 As against AAA’s
testimony, the petitioner could only raise the defenses of denial and alibi – defenses that, in a long
line of cases, we have held to be inherently weak unless supported by clear and convincing
evidence; the petitioner failed to present this required evidentiary support. 20 We have held, too, that
as negative defenses, denial and alibi cannot prevail over the credible and positive testimony of the
complainant.21 We sustain the lower courts on the issue of credibility, as we see no compelling
reason to doubt the validity of their conclusions in this regard.

While the defense, on appeal, raises a new ground – i.e., exemption from criminal liability under R.A.
No. 9344 – that implies an admission of guilt, this consideration in no way swayed the conclusion we
made above, as the defense is entitled to present all alternative defenses available to it, even
inconsistent ones. We note, too, that the defense’s claim of exemption from liability was made for the
first time in its appeal to the CA. While this may initially imply an essential change of theory that is
usually disallowed on appeal for reasons of fairness, 22 no essential change is really involved as the
claim for exemption from liability is not incompatible with the evidence submitted below and with the
lower courts’ conclusion that the petitioner is guilty of the crime charged. An exempting
circumstance, by its nature, admits that criminal and civil liabilities exist, but the accused is freed
from criminal liability; in other words, the accused committed a crime, but he cannot be held
criminally liable therefor because of an exemption granted by law. In admitting this type of defense
on appeal, we are not unmindful, too, that the appeal of a criminal case (even one made under Rule
45) opens the whole case for review, even on questions that the parties did not raise.23 By mandate
of the Constitution, no less, we are bound to look into every circumstance and resolve every doubt in
favor of the accused.24 It is with these considerations in mind and in obedience to the direct and
more specific commands of R.A. No. 9344 on how the cases of children in conflict with the law
should be handled that we rule in this Rule 45 petition.

We find a review of the facts of the present case and of the applicable law on exemption from liability
compelling because of the patent errors the CA committed in these regards. Specifically, the CA’s
findings of fact on the issues of age and minority, premised on the supposed absence of evidence,
are contradicted by the evidence on record; it also manifestly overlooked certain relevant facts not
disputed by the parties that, if properly considered, would justify a different conclusion. 25

In tackling the issues of age and minority, we stress at the outset that the ages of both the petitioner
and the complaining victim are material and are at issue. The age of the petitioner is critical for
purposes of his entitlement to exemption from criminal liability under R.A. No. 9344, while the age of
the latter is material in characterizing the crime committed and in considering the resulting civil
liability that R.A. No. 9344 does not remove.

Minority as an Exempting Circumstance

R.A. No. 9344 was enacted into law on April 28, 2006 and took effect on May 20, 2006. Its intent is
to promote and protect the rights of a child in conflict with the law or a child at risk by providing a
system that would ensure that children are dealt with in a manner appropriate to their well-being
through a variety of disposition measures such as care, guidance and supervision orders,
counseling, probation, foster care, education and vocational training programs and other alternatives
to institutional care.26 More importantly in the context of this case, this law modifies as well the
minimum age limit of criminal irresponsibility for minor offenders; it changed what paragraphs 2 and
3 of Article 12 of the Revised Penal Code (RPC), as amended, previously provided – i.e., from
"under nine years of age" and "above nine years of age and under fifteen" (who acted without
discernment) – to "fifteen years old or under" and "above fifteen but below 18" (who acted without
discernment) in determining exemption from criminal liability. In providing exemption, the new law –
as the old paragraphs 2 and 3, Article 12 of the RPC did – presumes that the minor offenders
completely lack the intelligence to distinguish right from wrong, so that their acts are deemed
involuntary ones for which they cannot be held accountable. 27 The current law also drew its changes
from the principle of restorative justice that it espouses; it considers the ages 9 to 15 years as
formative years and gives minors of these ages a chance to right their wrong through diversion and
intervention measures.28

In the present case, the petitioner claims total exemption from criminal liability because he was not
more than 15 years old at the time the rape took place. The CA disbelieved this claim for the
petitioner’s failure to present his birth certificate as required by Section 64 of R.A. No. 9344. 29 The
CA also found him disqualified to avail of a suspension of sentence because the imposable penalty
for the crime of rape is reclusion perpetua to death.

Burden of Proof

Burden of proof, under Section 1, Rule 131 of the Rules on Evidence, refers to the duty of a party to
present evidence on the facts in issue in order to establish his or her claim or defense. In a criminal
case, the burden of proof to establish the guilt of the accused falls upon the prosecution which has
the duty to prove all the essential ingredients of the crime. The prosecution completes its case as
soon as it has presented the evidence it believes is sufficient to prove the required elements. At this
point, the burden of evidence shifts to the defense to disprove what the prosecution has shown by
evidence, or to prove by evidence the circumstances showing that the accused did not commit the
crime charged or cannot otherwise be held liable therefor. In the present case, the prosecution
completed its evidence and had done everything that the law requires it to do. The burden of
evidence has now shifted to the defense which now claims, by an affirmative defense, that the
accused, even if guilty, should be exempt from criminal liability because of his age when he
committed the crime. The defense, therefore, not the prosecution, has the burden of showing by
evidence that the petitioner was 15 years old or less when he committed the rape charged. 30

This conclusion can also be reached by considering that minority and age are not elements of the
crime of rape; the prosecution therefore has no duty to prove these circumstances. To impose the
burden of proof on the prosecution would make minority and age integral elements of the crime
when clearly they are not. 31 If the prosecution has a burden related to age, this burden relates to
proof of the age of the victim as a circumstance that qualifies the crime of rape. 32

Testimonial Evidence is Competent Evidence

to Prove the Accused’s Minority and Age

The CA seriously erred when it rejected testimonial evidence showing that the petitioner was only 15
years old at the time he committed the crime. Section 7 of R.A. No. 9344 expressly states how the
age of a child in conflict with the law may be determined:

SEC. 7. Determination of Age. - x x x The age of a child may be determined from the child's birth
certificate, baptismal certificate or any other pertinent documents. In the absence of these
documents, age may be based on information from the child himself/herself, testimonies of other
persons, the physical appearance of the child and other relevant evidence. In case of doubt as to the
age of the child, it shall be resolved in his/her favor. [Emphasis supplied]
Rule 30-A of the Rules and Regulations Implementing R.A. No. 9344 provides the implementing
details of this provision by enumerating the measures that may be undertaken by a law enforcement
officer to ascertain the child’s age:

(1) Obtain documents that show proof of the child’s age, such as

(a) Child’s birth certificate;

(b) Child’s baptismal certificate ;or

(c) Any other pertinent documents such as but not limited to the child’s school
records, dental records, or travel papers.

(2) x x x

(3) When the above documents cannot be obtained or pending receipt of such documents,
the law enforcement officer shall exhaust other measures to determine age by:

(a) Interviewing the child and obtaining information that indicate age (e.g. date of
birthday, grade level in school);

(b) Interviewing persons who may have knowledge that indicate[s] age of the child
(e.g. relatives, neighbors, teachers, classmates);

(c) Evaluating the physical appearance (e.g. height, built) of the child; and

(d) Obtaining other relevant evidence of age.

xxx

Section 7, R.A. No. 9344, while a relatively new law (having been passed only in 2006), does not
depart from the jurisprudence existing at that time on the evidence that may be admitted as
satisfactory proof of the accused’s minority and age.

In the 1903 case of U.S. v. Bergantino, 33 we accepted testimonial evidence to prove the minority and
age of the accused in the absence of any document or other satisfactory evidence showing the date
of birth. This was followed by U.S. v. Roxas34 where the defendant’s statement about his age was
considered sufficient, even without corroborative evidence, to establish that he was a minor of 16
years at the time he committed the offense charged. Subsequently, in People v. Tismo, 35 the Court
appreciated the minority and age of the accused on the basis of his claim that he was 17 years old at
the time of the commission of the offense in the absence of any contradictory evidence or objection
on the part of the prosecution. Then, in People v. Villagracia,36 we found the testimony of the
accused that he was less than 15 years old sufficient to establish his minority. We reiterated these
dicta in the cases of People v. Morial37 and David v. Court of Appeals,38 and ruled that the allegations
of minority and age by the accused will be accepted as facts upon the prosecution’s failure to
disprove the claim by contrary evidence.

In these cases, we gave evidentiary weight to testimonial evidence on the accused’s minority and
age upon the concurrence of the following conditions: (1) the absence of any other satisfactory
evidence such as the birth certificate, baptismal certificate, or similar documents that would prove
the date of birth of the accused; (2) the presence of testimony from accused and/or a relative on the
age and minority of the accused at the time of the complained incident without any objection on the
part of the prosecution; and (3) lack of any contrary evidence showing that the accused’s and/or his
relatives’ testimonies are untrue.

All these conditions are present in this case. First, the petitioner and CCC both testified regarding his
minority and age when the rape was committed. 39 Second, the records before us show that these
pieces of testimonial evidence were never objected to by the prosecution. And lastly, the prosecution
did not present any contrary evidence to prove that the petitioner was above 15 years old when the
crime was committed.

We also stress that the last paragraph of Section 7 of R.A. No. 9344 provides that any doubt on the
age of the child must be resolved in his favor. 40 Hence, any doubt in this case regarding the
petitioner’s age at the time he committed the rape should be resolved in his favor. In other words,
the testimony that the petitioner as 15 years old when the crime took place should be read to mean
that he was not more than 15 years old as this is the more favorable reading that R.A. No. 9344
directs.

Given the express mandate of R.A. No. 9344, its implementing rules, and established jurisprudence
in accord with the latest statutory developments, the CA therefore cannot but be in error in not
appreciating and giving evidentiary value to the petitioner’s and CCC’s testimonies relating to the
former’s age.

Retroactive Application of R.A. No. 9344

That the petitioner committed the rape before R.A. No. 9344 took effect and that he is no longer a
minor (he was already 20 years old when he took the stand) will not bar him from enjoying the
benefit of total exemption that Section 6 of R.A. No. 9344 grants. 41 As we explained in discussing
Sections 64 and 68 of R.A. No. 934442 in the recent case of Ortega v. People:43

Section 64 of the law categorically provides that cases of children 15 years old and below, at the
time of the commission of the crime, shall immediately be dismissed and the child shall be referred
to the appropriate local social welfare and development officers (LSWDO). What is controlling,
therefore, with respect to the exemption from criminal liability of the CICL, is not the CICL’s age at
the time of the promulgation of judgment but the CICL’s age at the time of the commission of the
offense. In short, by virtue of R.A. No. 9344, the age of criminal irresponsibility has been raised from
9 to 15 years old. [Emphasis supplied]

The retroactive application of R.A. No. 9344 is also justified under Article 22 of the RPC, as
amended, which provides that penal laws are to be given retroactive effect insofar as they favor the
accused who is not found to be a habitual criminal. Nothing in the records of this case indicates that
the petitioner is a habitual criminal.

Civil Liability

The last paragraph of Section 6 of R.A. No. 9344 provides that the accused shall continue to be
civilly liable despite his exemption from criminal liability; hence, the petitioner is civilly liable to AAA
despite his exemption from criminal liability. The extent of his civil liability depends on the crime he
would have been liable for had he not been found to be exempt from criminal liability.

The RTC and CA found, based on item (1) of Article 266-B of the RPC, as amended, that the
petitioner is guilty of qualified rape because of his relationship with AAA within the second civil
degree of consanguinity and the latter’s minority. 44 Both courts accordingly imposed the civil liability
corresponding to qualified rape.

The relationship between the petitioner and AAA, as siblings, does not appear to be a disputed
matter. Their mother, CCC, declared in her testimony that AAA and the petitioner are her children.
The prosecution and the defense likewise stipulated in the proceedings below that the relationship
exists. We find, however, that AAA’s minority, though alleged in the Information, had not been
sufficiently proven.45 People v. Pruna46 laid down these guidelines in appreciating the age of the
complainant:

In order to remove any confusion that may be engendered by the foregoing cases, we hereby set the
following guidelines in appreciating age, either as an element of the crime or as a qualifying
circumstance.

1. The best evidence to prove the age of the offended party is an original or certified true
copy of the certificate of live birth of such party.

2. In the absence of a certificate of live birth, similar authentic documents such as baptismal
certificate and school records which show the date of birth of the victim would suffice to
prove age.

3. If the certificate of live birth or authentic document is shown to have been lost or destroyed
or otherwise unavailable, the testimony, if clear and credible, of the victim’s mother or a
member of the family either by affinity or consanguinity who is qualified to testify on matters
respecting pedigree such as the exact age or date of birth of the offended party pursuant to
Section 40, Rule 130 of the Rules on Evidence shall be sufficient under the following
circumstances:

a. If the victim is alleged to be below 3 years of age and what is sought to be proved
is that she is less than 7 years old;

b. If the victim is alleged to be below 7 years of age and what is sought to be proved
is that she is less than 12 years old;

c. If the victim is alleged to be below 12 years of age and what is sought to be proved
is that she is less than 18 years old.

4. In the absence of a certificate of live birth, authentic document, or the testimony of the
victim’s mother or relatives concerning the victim’s age, the complainant’s testimony will
suffice provided that it is expressly and clearly admitted by the accused.

5. It is the prosecution that has the burden of proving the age of the offended party. The
failure of the accused to object to the testimonial evidence regarding age shall not be taken
against him. [Emphasis supplied]

The records fail to show any evidence proving the age of AAA. They do not likewise show that the
petitioner ever expressly and clearly admitted AAA’s age at the time of the rape. Pursuant to Pruna,
neither can his failure to object to AAA’s testimony be taken against him.

Thus, the required concurrence of circumstances that would upgrade the crime to qualified rape –
i.e., relationship within the third degree of consanguinity and minority of the victim – does not exist.
The crime for which the petitioner should have been found criminally liable should therefore only be
simple rape pursuant to par. 1, Article 266-A of the RPC, not qualified rape. The civil liability that can
be imposed on the petitioner follows the characterization of the crime and the attendant
circumstances.

Accordingly, we uphold the grant of moral damages of ₱50,000.00 but increase the awarded
exemplary damages ₱30,000.00, both pursuant to prevailing jurisprudence. 47 Moral damages are
automatically awarded to rape victims without the necessity of proof; the law assumes that the victim
suffered moral injuries entitling her to this award. 48 Article 2230 of the Civil Code justifies the award
of exemplary damages because of the presence of the aggravating circumstances of relationship
between AAA and petitioner and dwelling. 49 As discussed above, the relationship (between the
parties) is not disputed. We appreciate dwelling as an aggravating circumstance based on AAA’s
testimony that the rape was committed in their house. 50 While dwelling as an aggravating
circumstance was not alleged in the Information, established jurisprudence holds that it may
nevertheless be appreciated as basis for the award of exemplary damages. 51 lavvphi1

We modify the awarded civil indemnity of ₱75,000.00 to ₱50,000.00, the latter being the civil
indemnity appropriate for simple rape52 on the finding that rape had been committed.53

In light of the above discussion and our conclusions, we see no need to discuss the petition’s third
assignment of error.

WHEREFORE, premises considered, the instant petition is GRANTED. The Decision dated
February 29, 2008 and Resolution dated May 22, 2008 of the Court of Appeals in CA-G.R.-CR.-H.C.
No. 02218 are REVERSED and SET ASIDE.

Pursuant to Section 64 of R.A. No. 9344, Criminal Case No. 120292-H for rape filed against
petitioner Robert Sierra y Caneda is hereby DISMISSED. Petitioner is REFERRED to the
appropriate local social welfare and development officer who shall proceed in accordance with the
provisions of R.A. No. 9344. Petitioner is ORDERED to pay the victim, AAA, ₱50,000.00 as civil
indemnity, ₱50,000.00 as moral damages, and ₱30,000.00 as exemplary damages.

Unless there are other valid causes for petitioner’s continued detention, we hereby ORDER his
IMMEDIATE RELEASE under the above terms.

Let a copy of this Decision be furnished the Director of the Bureau of Corrections in Muntinlupa City
for its immediate implementation. The Director of the Bureau of Corrections is directed to report to
this Court within five days from receipt of this Decision the action he has taken.

Let a copy of this Decision be likewise furnished the Juvenile Justice and Welfare Council.

SO ORDERED.
 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. 169641 September 10, 2009

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee,

vs.
RICHARD O. SARCIA, Accused-Appellant.

DECISION

LEONARDO-DE CASTRO, J.:

On automatic review is the decision1 dated July 14, 2005 of the Court of Appeals (CA) in CA-G.R.
CR-HC No. 00717 which affirmed, with modifications, an earlier decision2 of the Regional Trial Court
(RTC) of Ligao City, Branch 13, in Criminal Case No. 4134, finding herein accused-appellant
Richard O. Sarcia alias "Nogi" guilty beyond reasonable doubt of the crime of rape 3 committed
against AAA,4 and sentenced him to suffer the penalty of Reclusion Perpetua and to pay the amount
of ₱50,000.00 as civil indemnity, ₱50,000.00 as moral damages, and the cost of the suit. However,
the CA modified the penalties imposed by the RTC by imposing the death penalty, increasing the
award of civil indemnity to ₱75,000.00, and awarding ₱25,000.00 as exemplary damages, aside
from the ₱50,000.00 for moral damages.

The crime of rape was allegedly committed sometime in 1996 against AAA, a five (5) year old girl.
After almost four (4) years, AAA’s father filed a complaint5 for acts of lasciviousness against herein
accused-appellant on July 7, 2000. Upon review of the evidence, the Office of the Provincial
Prosecutor at Ligao, Albay upgraded the charge to rape.6 The Information7 dated September 5, 2000
reads:

That sometime in 1996 at Barangay Doña Tomasa, Municipality of Guinobatan, Province of Albay,
Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, with lewd
and unchaste design, and by means of force, threats and intimidation, did then and there willfully,
unlawfully and feloniously have sexual intercourse with [AAA], who was then 6 years of age, against
her will and consent, to her damage and prejudice.

ACTS CONTRARY TO LAW.

At his arraignment on October 25, 2000, accused-appellant, with the assistance of his counsel,
entered a plea of not guilty.8 Thereafter, trial on the merits ensued.

The prosecution presented the oral testimonies of the victim AAA; her minor cousin; her father; and
Dr. Joana Manatlao, the Municipal Health Officer of Guinobatan, Albay. The defense presented the
accused-appellant himself, who vehemently denied committing the crimes imputed to him and
Manuel Casimiro, Clerk of Court II of the Municipal Trial Court at Guinobatan, Albay.

On January 17, 2003, the trial court rendered its Decision9 finding the accused-appellant guilty of the
crime of rape and imposed the penalty mentioned above.
The record of this case was forwarded to this Court in view of the Notice of Appeal filed by the
accused- appellant.10

Accused-appellant filed his Appellant’s Brief11 on July 15, 2004, while the People, through the Office
of the Solicitor General, filed its Appellee’s Brief12 on December 15, 2004.

Pursuant to our pronouncement in People v. Mateo, 13 modifying the pertinent provisions of the
Revised Rules on Criminal Procedure insofar as they provide for direct appeals from the RTC to this
Court in cases in which the penalty imposed by the trial court is death, reclusion perpetua or life
imprisonment, and the Resolution dated September 19, 1995 in "Internal Rules of the Supreme
Court," the case was transferred, for appropriate action and disposition, to the CA where it was
docketed as CA-G.R. CR-H.C. No. 00717.

As stated at the beginning hereof, the CA, in its decision of July 14, 2005, in CA-G.R. CR-H.C. No.
000717, affirmed with modification the judgment of conviction pronounced by the trial court. We
quote the fallo of the CA decision:

WHEREFORE, the judgment of conviction is AFFIRMED. The accused, Richard Sarcia y Olivera, is
ordered to suffer the penalty of DEATH, and to pay the victim, [AAA], the amount of (1) ₱75,000.00
as civil indemnity; (2) ₱50,000.00 as moral damages, and (3) ₱25,000.00 as exemplary damages.

Let the entire records of this case be elevated to the Supreme Court for review, pursuant to A.M. No.
00-5-03-SC (Amendments to the Revised Rules of Criminal Procedure to Govern Death Penalty
Cases), which took effect on October 15, 2004.

SO ORDERED.

On September 30, 2005, the case was elevated to this Court for further review. 14

In our Resolution15 of November 15, 2005, we required the parties to simultaneously submit their
respective supplemental briefs. Accused-appellant filed his Supplemental Brief16 on April 7, 2006.
Having failed to submit one, the Office of the Solicitor General (OSG) was deemed to have waived
the filing of its supplemental brief.

In his Brief filed before the CA, accused-appellant raised the following assignment of errors:

THE LOWER COURT GRAVELY ERRED IN GIVING CREDENCE TO THE TESTIMONY OF [AAA],
[her cousin] and [her father].

II

THE LOWER COURT GLARINGLY ERRED IN REJECTING THE DEFENSE OF ALIBI

INTERPOSED BY THE ACCUSED WHICH IS MORE CREDIBLE.

III

THE LOWER COURT GRAVELY ERRED IN NOT ACQUITTING THE ACCUSED RICHARD
SARCIA.
The evidence for the prosecution is summarized by the OSG in the Appellee's Brief, as follows:

On December 16, 1996, five-year-old [AAA], together with her [cousin and two other playmates], was
playing in the yard of Saling Crisologo near a mango tree.

Suddenly, appellant appeared and invited [AAA] to go with him to the backyard of Saling Crisologo’s
house. She agreed. Unknown to appellant, [AAA’s cousin] followed them.

Upon reaching the place, appellant removed [AAA’s] shorts and underwear. He also removed his
trousers and brief. Thereafter, he ordered [AAA] to lie down on her back. Then, he lay on top of her
and inserted his penis into [AAA’s] private organ. Appellant made an up-and-down movement
("Nagdapadapa tabi"). [AAA] felt severe pain inside her private part and said "aray." She also felt an
intense pain inside her stomach.

[AAA’s cousin], who positioned herself around five (5) meters away from them, witnessed appellant’s
dastardly act. Horrified, [AAA’s cousin] instinctively rushed to the house of [AAA’s] mother, her aunt
Emily, and told the latter what she had seen. [AAA’s] mother answered that they (referring to {AAA
and her cousin} were still very young to be talking about such matters.

Meanwhile, after satisfying his lust, appellant stood up and ordered [AAA] to put on her clothes.
Appellant then left.

Perplexed, [AAA’s cousin] immediately returned to the backyard of Saling Crisologo where she
found [AAA] crying. Appellant, however, was gone. [AAA’s cousin] approached [AAA] and asked her
what appellant had done to her. When [AAA] did not answer, [her cousin] did not ask her any further
question and just accompanied her home.

At home, [AAA] did not tell her mother what appellant had done to her because she feared that her
mother might slap her. Later, when her mother washed her body, she felt a grating sensation in her
private part. Thereafter, [AAA] called for [her cousin]. [AAA’s cousin] came to their house and told
[AAA’s] mother again that appellant had earlier made an up-and-down movement on top of [AAA].
[AAA’s mother], however did not say anything. At that time, [AAA’s] father was working in Manila.

Dr. Joana Manatloa is the Municipal Health Officer of Guinobatan, Albay. She testified that: (1) it was
the rural health officer, Dr. Reantaso, who conducted a physical examination on [AAA]; (2) Dr.
Reantaso prepared and signed a medico-legal certificate containing the result of [AAA]’s
examination; (3) Dr. Reantaso, however, had already resigned as rural health officer of Guinobatan,
Albay; (4) as a medical doctor, she can interpret, the findings in said medico-legal certificate issued
to [AAA]; (5) [AAA]’s medical findings are as follows: "negative for introital vulvar laceration nor
scars, perforated hymen, complete, pinkish vaginal mucosa, vaginal admits little finger with
resistance; (6) the finding "negative for introital bulvar laceration nor scars" means, in layman’s
language, that there was no showing of any scar or wound, and (7) there is a complete perforation of
the hymen which means that it could have been subjected to a certain trauma or pressure such as
strenuous exercise or the entry of an object like a medical instrument or penis. 17

On the other hand, the trial court summarized the version of the defense as follows:

Richard Sarcia, 24 years old, single, student and a resident of Doña Tomasa, Guinobatan, Albay
denied he raped [AAA]. While he knows [AAA’s] parents, because sometimes they go to their house
looking for his father to borrow money, he does not know [AAA] herself. His father retired as a
fireman from Crispa in 1991 while his mother worked as an agriculturist in the Municipality of Teresa,
Antipolo, Rizal. As an agriculturist of the Department of Agriculture, his mother would bring seedlings
and attend seminars in Batangas and Baguio. They were residing in Cainta, Rizal when sometime in
1992 they transferred residence to Guinobatan, Albay. His father is from barangay Masarawag while
his mother is from barangay Doña Tomasa both of Guinobatan, Albay. After their transfer in
Guinobatan, his mother continued to be an agriculturist while his father tended to his 1-hectare
coconut land. Richard testified he was between fourteen (14) and fifteen (15) years old in 1992 when
they transferred to Guinobatan. Between 1992 and 1994 he was out of school. But from 1994 to
1998 he took his high school at Masarawag High School. His daily routine was at about 4:00 o’clock
in the afternoon after school before proceeding home he would usually play basketball at the
basketball court near the church in Doña Tomasa about 1 kilometer away from their house. When
her mother suffered a stroke in 1999 he and his father took turns taking care of his mother. Richard
denied molesting other girls ... and was most surprised when he was accused of raping [AAA]. He
knows Saling Crisologo and the latter’s place which is more than half kilometer to their house.
Richard claimed Salvacion Bobier, grandmother of Mae Christine Camu, whose death on May 7,
2000 was imputed to him and for which a case for Murder under Criminal Case No. 4087 was filed
against him with the docile cooperation of [AAA’s] parents who are related to Salvacion, concocted
and instigated [AAA’s] rape charge against him to make the case for Murder against him stronger
and life for him miserable. He was incarcerated on May 10, 2000 for the Murder charge and two (2)
months later while he already in detention, the rape case supposedly committed in 1996 was filed
against him in the Municipal Trial Court (MTC) of Guinobatan, Albay. He was to learn about it from
his sister, Marivic, on a Sunday afternoon sometime on July 20, 2000 when his sister visited him in
jail. He naturally got angry when he heard of this rape charge because he did not do such thing and
recalled telling his sister they can go to a doctor and have the child examine to prove he did not rape
her. Subsequently, from his sister again he was to learn that the rape case was ordered dismissed.

On cross-examination, Richard admitted [AAA’s] mother, is also related to his father, [AAA mother’s]
father, being a second cousin of his father. Richard is convinced it is not the lending of money by his
father to the AAA’s family as the motive for the latter to file the rape case against him but the
instigation of Salvacion Bobier.

Manuel A. Casimiro, Clerk of Court II of the Municipal Trial Court (MTC), Guinobatan, Albay, testified
on the records of Criminal Case No. 7078 filed in MTC Guinobatan, Albay against Richard Sarcia for
Rape in relation to RA 7610 relative to the alleged withdrawal of said rape case but the accused
through counsel failed to formally offer the marked exhibits relative to said case.18

Accused-appellant alleges that the trial court erred in convicting him, as the prosecution was not
able to prove his guilt beyond reasonable doubt. He assailed the credibility of the prosecution
witnesses, AAA, her cousin and her father on the following grounds: (1) the testimonies of AAA and
her cousin were inconsistent with each other; (2) the victim was confused as to the date and time of
the commission of the offense; (3) there was a four-year delay in filing the criminal case, and the
only reason why they filed the said case was "to help Salvacion Bobier get a conviction of this same
accused in a murder case filed by said Salvacion Bobier for the death of her granddaughter Mae
Christine Camu on May 7, 2000." Accused-appellant stressed that the same Salvacion Bobier
helped AAA’s father in filing the said case for rape. Accused-appellant also claimed that the
prosecution failed to prove that he employed force, threats or intimidation to achieve his end. Finally,
accused-appellant harped on the finding in the medical certificate issued by Dr. Reantaso and
interpreted by Dr. Joana Manatlao, stating "negative for introital bulvar laceration nor scar which
means that there was no showing of any scar or wound."

In his Appellee's Brief accused-appellant pointed out the inconsistencies between AAA’s and her
cousin’s testimonies as follows: (1) the cousin testified that she played with AAA at the time of the
incident, while AAA testified that she was doing nothing before accused-appellant invited her to the
back of the house of a certain Saling; (2) the cousin testified that when she saw accused-appellant
doing the push-and-pull motion while on top of AAA, the latter shouted in a loud voice contrary to
AAA’s testimony that when accused-appellant was inside her and started the up-and-down motion,
she said "aray"; (3) when the cousin returned to AAA after telling the latter’s mother what accused-
appellant had done to AAA, she found AAA crying. AAA however testified that, after putting on her
clothes, she invited the cousin to their house; and (4) the cousin testified that other children were
playing at the time of the incident, but AAA testified that there were only four of them who were
playing at that time.

As it is oft-repeated, inconsistencies in the testimonies of witnesses, which refer only to minor details
and collateral matters, do not affect the veracity and weight of their testimonies where there is
consistency in relating the principal occurrence and the positive identification of the accused. Slight
contradictions in fact even serve to strengthen the credibility of the witnesses and prove that their
testimonies are not rehearsed. Nor are such inconsistencies, and even improbabilities, unusual, for
there is no person with perfect faculties or senses. 19 The alleged inconsistencies in this case are too
inconsequential to overturn the findings of the court a quo. It is important that the two prosecution
witnesses were one in saying that it was accused-appellant who sexually abused AAA. Their
positive, candid and straightforward narrations of how AAA was sexually abused by accused-
appellant evidently deserve full faith and credence. When the rape incident happened, AAA was only
five (5) years old; and when she and her cousin testified, they were barely 9 and 11 years old,
respectively. This Court has had occasion to rule that the alleged inconsistencies in the testimonies
of the witnesses can be explained by their age and their inexperience with court proceedings, and
that even the most candid of witnesses commit mistakes and make confused and inconsistent
statements. This is especially true of young witnesses, who could be overwhelmed by the
atmosphere of the courtroom. Hence, there is more reason to accord them ample space for
inaccuracy.20

Accused-appellant capitalizes on AAA’s inability to recall the exact date when the incident in 1996
was committed. Failure to recall the exact date of the crime, however, is not an indication of false
testimony, for even discrepancies regarding exact dates of rapes are inconsequential and immaterial
and cannot discredit the credibility of the victim as a witness. 21 In People v. Purazo,22 We ruled:

We have ruled, time and again that the date is not an essential element of the crime of rape, for the
gravamen of the offense is carnal knowledge of a woman. As such, the time or place of commission
in rape cases need not be accurately stated. As early as 1908, we already held that where the time
or place or any other fact alleged is not an essential element of the crime charged, conviction may
be had on proof of the commission of the crime, even if it appears that the crime was not committed
at the precise time or place alleged, or if the proof fails to sustain the existence of some immaterial
fact set out in the complaint, provided it appears that the specific crime charged was in fact
committed prior to the date of the filing of the complaint or information within the period of the statute
of limitations and at a place within the jurisdiction of the court.

Also in People v. Salalima,23 the Court held:

Failure to specify the exact dates or time when the rapes occurred does not ipso facto make the
information defective on its face. The reason is obvious. The precise date or time when the victim
was raped is not an element of the offense. The gravamen of the crime is the fact of carnal
knowledge under any of the circumstances enumerated under Article 335 of the Revised Penal
Code. As long as it is alleged that the offense was committed at any time as near to the actual date
when the offense was committed an information is sufficient. In previous cases, we ruled that
allegations that rapes were committed "before and until October 15, 1994," "sometime in the year
1991 and the days thereafter," "sometime in November 1995 and some occasions prior and/or
subsequent thereto" and "on or about and sometime in the year 1988" constitute sufficient
compliance with Section 11, Rule 110 of the Revised Rules on Criminal Procedure.
In this case, AAA’s declaration that the rape incident took place on December 15, 1996 was
explained by the trial court, and we quote:

The rape took place in 1996. As earlier noted by the Court the date December 15, 1996 mentioned
by [AAA] may have been arbitrarily chosen by the latter due to the intense cross-examination she
was subjected but the Court believes it could have been in any month and date in the year 1996 as
in fact neither the information nor [AAA’s] sworn statement mention the month and date but only the
year.24

Likewise, witnesses’ credibility is not affected by the delay in the filing of the case against accused-
appellant. Neither does the delay bolster accused-appellant’s claim that the only reason why this
case was filed against him was "to help Salvacion Bobier get a conviction of this same accused-
appellant in the case of murder filed by Salvacion Bobier for the death of her granddaughter Mae
Christine Camu on May 7, 2000."

The rape victim’s delay or hesitation in reporting the crime does not destroy the truth of the charge
nor is it an indication of deceit. It is common for a rape victim to prefer silence for fear of her
aggressor and the lack of courage to face the public stigma of having been sexually abused. In
People v. Coloma25 we even considered an 8-year delay in reporting the long history of rape by the
victim’s father as understandable and not enough to render incredible the complaint of a 13-year-old
daughter. Thus, in the absence of other circumstances that show that the charge was a mere
concoction and impelled by some ill motive, delay in the filing of the complainant is not sufficient to
defeat the charge. Here, the failure of AAA’s parents to immediately file this case was sufficiently
justified by the complainant’s father in the latter’s testimony, thus:

Q But, did you not say, please correct me if I am wrong, you got angry when your wife told
you that something happened to Hazel way back in 1996?

A Yes, sir.

Q Yet, despite your anger you were telling us that you waited until June to file this case?

A After I heard about the incident, I and my wife had a talk for which reason that during that
time we had no money yet to use in filing the case, so we waited. When we were able to
save enough amounts, we filed the case. 26

Accused-appellant also contends that he could not be liable for rape because there is no proof that
he employed force, threats or intimidation in having carnal knowledge of AAA. Where the girl is
below 12 years old, as in this case, the only subject of inquiry is whether "carnal knowledge" took
place. Proof of force, intimidation or consent is unnecessary, since none of these is an element of
statutory rape. There is a conclusive presumption of absence of free consent when the rape victim is
below the age of twelve.27

Accused-appellant harps on the medical report, particularly the conclusion quoted as follows:
"negative for introital bulvar laceration nor scars, which means, in layman language, that there was
no showing of any scar or wound." The Court has consistently ruled that the presence of lacerations
in the victim’s sexual organ is not necessary to prove the crime of rape and its absence does not
negate the fact of rape. A medical report is not indispensable in a prosecution for rape. 28 What is
important is that AAA’s testimony meets the test of credibility, and that is sufficient to convict the
accused.
Accused-appellant’s defense of denial was properly rejected. Time and time again, we have ruled
that denial like alibi is the weakest of all defenses, because it is easy to concoct and difficult to
disprove. Furthermore, it cannot prevail over the positive and unequivocal identification of appellant
by the offended party and other witnesses. Categorical and consistent positive identification, absent
any showing of ill motive on the part of the eyewitness testifying on the matter, prevails over the
appellants’ defense of denial and alibi.29 The shallow hypothesis put forward by accused-appellant
that he was accused of raping AAA due to the instigation of Salvacion Bobier hardly convinces this
Court. On this score, the trial court aptly reached the following conclusion:

…True, Salvacion Bobier actively assisted AAA’s family file the instant case against the accused, but
the Court believes [AAA’s] parents finally decided to file the rape case because after they have come
to realize after what happened to Mae Christine Camu that what previously [AAA and her cousin]
told her mother and which the latter had continually ignored is after all true.

AAA was barely 9 years of age when she testified. It has been stressed often enough that the
testimony of rape victims who are young and immature deserve full credence. It is improbable for a
girl of complainant’s age to fabricate a charge so humiliating to herself and her family had she not
been truly subjected to the painful experience of sexual abuse. At any rate, a girl of tender years,
innocent and guileless, cannot be expected to brazenly impute a crime so serious as rape to any
man if it were not true.30 Parents would not sacrifice their own daughter, a child of tender years at
that, and subject her to the rigors and humiliation of public trial for rape, if they were not motivated by
an honest desire to have their daughter’s transgressor punished accordingly. 31 Hence, the logical
conclusion is that no such improper motive exists and that her testimony is worthy of full faith and
credence.

The guilt of accused-appellant having been established beyond reasonable doubt, we discuss now
the proper penalty to be imposed on him.

Article 335 of the Revised Penal Code, as amended by Republic Act No. 7659,32 was the governing
law at the time the accused-appellant committed the rape in question. Under the said law, the
penalty of death shall be imposed when the victim of rape is a child below seven years of age. In this
case, as the age of AAA, who was five (5) years old at the time the rape was committed, was alleged
in the information and proven during trial by the presentation of her birth certificate, which showed
her date of birth as January 16, 1991, the death penalty should be imposed.

However, this Court finds ground for modifying the penalty imposed by the CA. We cannot agree
with the CA’s conclusion that the accused-appellant cannot be deemed a minor at the time of the
commission of the offense to entitle him to the privileged mitigating circumstance of minority
pursuant to Article 68(2)33 of the Revised Penal Code. When accused appellant testified on March
14, 2002, he admitted that he was 24 years old, which means that in 1996, he was 18 years of age.
As found by the trial court, the rape incident could have taken place "in any month and date in the
year 1996." Since the prosecution was not able to prove the exact date and time when the rape was
committed, it is not certain that the crime of rape was committed on or after he reached 18 years of
age in 1996. In assessing the attendance of the mitigating circumstance of minority, all doubts
should be resolved in favor of the accused, it being more beneficial to the latter. In fact, in several
cases, this Court has appreciated this circumstance on the basis of a lone declaration of the
accused regarding his age.34

Under Article 68 of the Revised Penal Code, when the offender is a minor under 18 years, the
penalty next lower than that prescribed by law shall be imposed, but always in the proper period.
However, for purposes of determining the proper penalty because of the privileged mitigating
circumstance of minority, the penalty of death is still the penalty to be reckoned with. 35 Thus, the
proper imposable penalty for the accused-appellant is reclusion perpetua.

It is noted that the Court is granted discretion in awarding damages provided in the Civil Code, in
case a crime is committed. Specifically, Article 2204 of the Civil Code provides that "in crimes, the
damages to be adjudicated may be respectively increased or lessened according to the aggravating
or mitigating circumstances." The issue now is whether the award of damages should be reduced in
view of the presence here of the privileged mitigating circumstance of minority of the accused at the
time of the commission of the offense.

A review of the nature and purpose of the damages imposed on the convicted offender is in order.
Article 107 of the Revised Penal Code defines the term "indemnification," which is included in the
civil liability prescribed by Article 104 of the same Code, as follows:

Art. 107. Indemnification-What is included. – Indemnification for consequential damages shall

include not only those caused the injured party, but also those suffered by his family or by a third
person by reason of the crime.

Relative to civil indemnity, People v. Victor 36 ratiocinated as follows:

The lower court, however, erred in categorizing the award of ₱50,000.00 to the offended party as
being in the nature of moral damages. We have heretofore explained in People v. Gementiza
that the indemnity authorized by our criminal law as civil liability ex delicto for the offended party, in
the amount authorized by the prevailing judicial policy and aside from other proven actual
damages, is itself equivalent to actual or compensatory damages in civil law. It is not to be
considered as moral damages thereunder, the latter being based on different jural foundations and
assessed by the court in the exercise of sound discretion.

One other point of concern has to be addressed. Indictments for rape continue unabated and the
legislative response has been in the form of higher penalties. The Court believes that, on like
considerations, the jurisprudential path on the civil aspect should follow the same direction. Hence,
starting with the case at bar, if the crime of rape is committed or effectively qualified by any of the
circumstances under which the death penalty is authorized by the present amended law, the
indemnity for the victim shall be in the increased amount of not less than ₱75,000.00. This is not
only a reaction to the apathetic societal perception of the penal law, and the financial fluctuations
over time, but also an expression of the displeasure of the Court over the incidence of heinous
crimes against chastity. (Emphasis Supplied)

The Court has had the occasion to rule that moral damages are likewise compensatory in nature. In
San Andres v. Court of Appeals,37 we held:

x x x Moral damages, though incapable of pecuniary estimation, are in the category of an award
designed to compensate the claimant for actual injury suffered and not to impose a penalty on the
wrongdoer. (Emphasis Supplied)

In another case, this Court also explained:

What we call moral damages are treated in American jurisprudence as compensatory

damages awarded for mental pain and suffering or mental anguish resulting from a wrong (25 C.J.S.
815).38 (Emphasis Supplied)
Thus, according to law and jurisprudence, civil indemnity is in the nature of actual and compensatory
damages for the injury caused to the offended party and that suffered by her family, and moral
damages are likewise compensatory in nature. The fact of minority of the offender at the time of the
commission of the offense has no bearing on the gravity and extent of injury caused to the victim
and her family, particularly considering the circumstances attending this case. Here, the accused-
appelant could have been eighteen at the time of the commission of the rape. He was accorded the
benefit of the privileged mitigating circumstance of minority because of a lack of proof regarding his
actual age and the date of the rape rather than a moral or evidentiary certainty of his minority.

In any event, notwithstanding the presence of the privileged mitigating circumstance of minority,
which warrants the lowering of the public penalty by one degree, there is no justifiable ground to
depart from the jurisprudential trend in the award of damages in the case of qualified rape,
considering the compensatory nature of the award of civil indemnity and moral damages. This was
the same stance this Court took in People v. Candelario, 39 a case decided on July 28, 1999, which
did not reduce the award of damages. At that time, the damages amounted to ₱75,000.00 for civil
indemnity and ₱50,000.00 for moral damages, even if the public penalty imposed on the accused
was lowered by one degree, because of the presence of the privileged mitigating circumstance of
minority.

The principal consideration for the award of damages, under the ruling in People v. Salome 40 and
People v. Quiachon41 is the penalty provided by law or imposable for the offense because of its
heinousness, not the public penalty actually imposed on the offender.

Regarding the civil indemnity and moral damages, People v. Salome explained the basis for
increasing the amount of said civil damages as follows:

The Court, likewise, affirms the civil indemnity awarded by the Court of Appeals to Sally in
accordance with the ruling in People v. Sambrano which states:

"As to damages, we have held that if the rape is perpetrated with any of the attending qualifying
circumstances that require the imposition of the death penalty, the civil indemnity for the victim shall
₱75,000.00 … Also, in rape cases, moral damages are awarded without the need proof other than
the fact of rape because it is assumed that the victim has suffered moral injuries entitling her to such
an award. However, the trial court’s award of ₱50,000.00 as moral damages should also be
increased to ₱75,000 pursuant to current jurisprudence on qualified rape."

It should be noted that while the new law prohibits the imposition of the death penalty, the penalty
provided for by law for a heinous offense is still death and the offense is still heinous. Consequently,
the civil indemnity for the victim is still ₱75,000.00.

People v. Quiachon also ratiocinates as follows:

With respect to the award of damages, the appellate court, following prevailing jurisprudence,
correctly awarded the following amounts; ₱75,000.00 as civil indemnity which is awarded if the crime
is qualified by circumstances warranting the imposition of the death penalty; ₱75,000.00.00 as moral
damages because the victim is assumed to have suffered moral injuries, hence, entitling her to an
award of moral damages even without proof thereof, x x x

Even if the penalty of death is not to be imposed on the appellant because of the prohibition in R.A.
No. 9346, the civil indemnity of ₱75,000.00 is still proper because, following the ratiocination in
People v. Victor, the said award is not dependent on the actual imposition of the death penalty but
on the fact that qualifying circumstances warranting the imposition of the death penalty attended the
commission of the offense. The Court declared that the award of ₱75,000.00 shows "not only a
reaction to the apathetic societal perception of the penal law and the financial fluctuations over time
but also the expression of the displeasure of the court of the incidence of heinous crimes against
chastity."

The litmus test therefore, in the determination of the civil indemnity is the heinous character of the
crime committed, which would have warranted the imposition of the death penalty, regardless of
whether the penalty actually imposed is reduced to reclusion perpetua.

As to the award of exemplary damages, Article 2229 of the Civil Code provides that exemplary or
corrective damages are imposed in addition to the moral, temperate, liquidated or compensatory
damages. Exemplary damages are not recoverable as a matter of right. The requirements of an
award of exemplary damagees are: (1) they may be imposed by way of example in addition to
compensatory damages, and only after the claimant’s right to them has been established; (2) they
cannot be recovered as a matter of right, their determination depending upon the amount of
compensatory damages that may be awarded to the claimant; (3) the act must be accompanied by
bad faith or done in a wanton, fraudulent, oppressive or malevolent manner. 42 Since the
compensatory damages, such as the civil indemnity and moral damages, are increased when
qualified rape is committed, the exemplary damages should likewise be increased in accordance
with prevailing jurisprudence.43

In sum, the increased amount of ₱75,000.00 each as civil indemnity and moral damages should be
maintained. It is also proper and appropriate that the award of exemplary damages be likewise
increased to the amount of ₱30,000.00 based on the latest jurisprudence on the award of damages
on qualified rape. Thus, the CA correctly awarded ₱75,000.00 as civil indemnity. However the award
of ₱50,000.00 as moral damages is increased to ₱75,000.0044 and that of ₱25,000.00 as exemplary
damages is likewise increased to ₱30,000.00. 45

Meanwhile, when accused-appellant was detained at the New Bilibid Prison pending the outcome of
his appeal before this Court, Republic Act (R.A.) No. 9344, the Juvenile Justice and Welfare Act of
2006 took effect on May 20, 2006. The RTC decision and CA decision were promulgated on January
17, 2003 and July 14, 2005, respectively. The promulgation of the sentence of conviction of
accused-appellant handed down by the RTC was not suspended as he was about 25 years of age at
that time, in accordance with Article 192 of Presidential Decree (P.D.) No. 603, The Child and Youth
Welfare Code46 and Section 32 of A.M. No. 02-1-18-SC, the Rule on Juveniles in Conflict with the
Law.47 Accused-appellant is now approximately 31 years of age. He was previously detained at the
Albay Provincial Jail at Legaspi City and transferred to the New Bilibid Prison, Muntinlupa City on
October 13, 2003.

R.A. No. 9344 provides for its retroactive application as follows:

Sec. 68. Children Who Have Been Convicted and are Serving Sentence. – Persons who have been
convicted and are serving sentence at the time of the effectivity of this Act, and who were below the
age of eighteen (18) years at the time of the commission of the offense for which they were
convicted and are serving sentence, shall likewise benefit from the retroactive application of this Act.
xxx

The aforequoted provision allows the retroactive application of the Act to those who have been
convicted and are serving sentence at the time of the effectivity of this said Act, and who were below
the age of 18 years at the time of the commission of the offense. With more reason, the Act should
apply to this case wherein the conviction by the lower court is still under review. Hence, it is
necessary to examine which provisions of R.A. No. 9344 shall apply to accused-appellant, who was
below 18 years old at the time of the commission of the offense.

Sec. 38 of R.A. No. 9344 provides for the automatic suspension of sentence of a child in conflict with
the law, even if he/she is already 18 years of age or more at the time he/she is found guilty of the
offense charged. It reads:

Sec. 38. Automatic Suspension of Sentence. – Once the child who is under eighteen (18) years of
age at the time of the commission of the offense is found guilty of the offense charged, the court
shall determine and ascertain any civil liability which may have resulted from the offense committed.
However, instead of pronouncing the judgment of conviction, the court shall place the child in conflict
with the law under suspended sentence, without need of application: Provided, however, That
suspension of sentence shall still be applied even if the juvenile is already eighteen (18) of age or
more at the time of the pronouncement of his/her guilt.

Upon suspension of sentence and after considering the various circumstances of the child, the court
shall impose the appropriate disposition measures as provided in the Supreme Court on Juvenile in
Conflict with the Law.

The above-quoted provision makes no distinction as to the nature of the offense committed by the
child in conflict with the law, unlike P.D. No. 603 and A.M. No. 02-1-18-SC.48 The said P.D. and
Supreme Court (SC) Rule provide that the benefit of suspended sentence would not apply to a child
in conflict with the law if, among others, he/she has been convicted of an offense punishable by
death, reclusion perpetua or life imprisonment. In construing Sec. 38 of R.A. No. 9344, the Court is
guided by the basic principle of statutory construction that when the law does not distinguish, we
should not distinguish.49 Since R.A. No. 9344 does not distinguish between a minor who has been
convicted of a capital offense and another who has been convicted of a lesser offense, the Court
should also not distinguish and should apply the automatic suspension of sentence to a child in
conflict with the law who has been found guilty of a heinous crime.

Moreover, the legislative intent, to apply to heinous crimes the automatic suspension of sentence of
a child in conflict with the law can be gleaned from the Senate deliberations 50 on Senate Bill No.
1402 (Juvenile Justice and Delinquency Prevention Act of 2005), the pertinent portion of which is
quoted below:

If a mature minor, maybe 16 years old to below 18 years old is charged, accused with, or may have
committed a serious offense, and may have acted with discernment, then the child could be
recommended by the Department of Social Welfare and Development (DSWD), by the Local Council
for the Protection of Children (LCPC), or by my proposed Office of Juvenile Welfare and Restoration
to go through a judicial proceeding; but the welfare, best interests, and restoration of the child should
still be a primordial or primary consideration. Even in heinous crimes, the intention should still be the
child’s restoration, rehabilitation and reintegration. xxx (Italics supplied)
1avvphi1

Nonetheless, while Sec. 38 of R.A. No. 9344 provides that suspension of sentence can still be
applied even if the child in conflict with the law is already eighteen (18) years of age or more at the
time of the pronouncement of his/her guilt, Sec. 40 of the same law limits the said suspension of
sentence until the said child reaches the maximum age of 21, thus:

Sec. 40. Return of the Child in Conflict with the Law to Court. – If the court finds that the objective of
the disposition measures imposed upon the child in conflict with the law have not been fulfilled, or if
the child in conflict with the law has willfully failed to comply with the condition of his/her disposition
or rehabilitation program, the child in conflict with the law shall be brought before the court for
execution of judgment.

If said child in conflict with the law has reached eighteen (18) years of age while under suspended
sentence, the court shall determine whether to discharge the child in accordance with this Act, to
order execution of sentence, or to extend the suspended sentence for a certain specified period or
until the child reaches the maximum age of twenty-one (21) years. (emphasis ours)

To date, accused-appellant is about 31 years of age, and the judgment of the RTC had been
promulgated, even before the effectivity of R.A. No. 9344. Thus, the application of Secs. 38 and 40
to the suspension of sentence is now moot and academic. 51 However, accused-appellant shall be
entitled to appropriate disposition under Sec. 51 of R.A. No. 9344, which provides for the
confinement of convicted children as follows:

Sec. 51. Confinement of Convicted Children in Agricultural Camps and Other Training Facilities. – A
child in conflict with the law may, after conviction and upon order of the court, be made to serve
his/her sentence, in lieu of confinement in a regular penal institution, in an agricultural camp and
other training facilities that may be established, maintained, supervised and controlled by the
BUCOR, in coordination with the DSWD.

The civil liability resulting from the commission of the offense is not affected by the appropriate
disposition measures and shall be enforced in accordance with law. 52

WHEREFORE, the decision of the CA dated July 14, 2005 in CA-G.R. CR-H.C. No. 00717 is hereby
AFFIRMED with the following MODIFICATIONS: (1) the penalty of death imposed on accused-
appellant is reduced to reclusion perpetua; 53 and (2) accused-appellant is ordered to pay the victim
the amount of ₱75,000.00 and ₱30,000.00 as moral damages and exemplary damages,
respectively. The award of civil indemnity in the amount of ₱75,000.00 is maintained. However, the
case shall be REMANDED to the court a quo for appropriate disposition in accordance with Sec. 51
of R.A. 9344.

SO ORDERED.
 Republic of the Philippines
SUPREME COURT
Manila

FIRST DIVISION

G.R. No. 182239 March 16, 2011

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee,

vs.
HERMIE M. JACINTO, Accused-Appellant.

DECISION

PEREZ, J.:

Once again, we recite the time-honored principle that the defense of alibi cannot prevail over the
victim’s positive identification of the accused as the perpetrator of the crime. 1 For it to prosper, the
court must be convinced that there was physical impossibility on the part of the accused to have
been at the locus criminis at the time of the commission of the crime.2

Nevertheless, a child in conflict with the law, whose judgment of conviction has become final and
executory only after his disqualification from availing of the benefits of suspended sentence on the
ground that he/she has exceeded the age limit of twenty-one (21) years, shall still be entitled to the
right to restoration, rehabilitation, and reintegration in accordance with Republic Act No. 9344,
otherwise known as "An Act Establishing a Comprehensive Juvenile Justice and Welfare System,
Creating the Juvenile Justice and Welfare Council under the Department of Justice, Appropriating
Funds Therefor and for Other Purposes."

Convicted for the rape of five-year-old AAA,3 appellant Hermie M. Jacinto seeks before this Court the
reversal of the judgment of his conviction. 4

The Facts

In an Information dated 20 March 20035 filed with the Regional Trial Court and docketed as Criminal
Case No. 1679-13-141[1],6 appellant was accused of the crime of RAPE allegedly committed as
follows:

That on or about the 28th day of January, 2003 at about 7:00 o’clock in the evening more or less, at
barangay xxx, municipality of xxx, province of xxx and within the jurisdiction of this Honorable Court,
[Hermie M. Jacinto], with lewd design did then and there willfully, unlawfully and feloniously had
carnal knowledge with one AAA, a five-year old minor child.

CONTRARY TO LAW, with the qualifying/aggravating circumstance of minority, the victim being only
five years old.7

On 15 July 2003, appellant entered a plea of not guilty. 8 During pre-trial,9 the defense admitted the
existence of the following documents: (1) birth certificate of AAA, showing that she was born on 3
December 1997; (2) police blotter entry on the rape incident; and (3) medical certificate, upon
presentation of the original or upon identification thereof by the physician.
Trial ensued with the prosecution and the defense presenting witnesses to prove their respective
versions of the story.

Evidence for the Prosecution

The testimonies of AAA,10 her father FFF,11 and rebuttal witness Julito Apiki [Julito]12 may be
summarized in the following manner:

FFF and appellant have been neighbors since they were born. FFF’s house is along the road. That
of appellant lies at the back approximately 80 meters from FFF. To access the road, appellant has to
pass by FFF’s house, the frequency of which the latter describes to be "every minute [and] every
hour." Also, appellant often visits FFF because they were close friends. He bore no grudge against
appellant prior to the incident.13

AAA likewise knows appellant well. She usually calls him kuya. She sees him all the time – playing
at the basketball court near her house, fetching water, and passing by her house on his way to the
road. She and appellant used to be friends until the incident. 14

At about past 6 o’clock in the evening of 28 January 2003, FFF sent his eight-year-old daughter
CCC to the store of Rudy Hatague to buy cigarettes. AAA followed CCC. When CCC returned
without AAA, FFF was not alarmed. He thought she was watching television at the house of her aunt
Rita Lingcay [Rita].15

Julito went to the same store at around 6:20 in the evening to buy a bottle of Tanduay Rum. 16 At the
store, he saw appellant place AAA on his lap. 17 He was wearing sleeveless shirt and a pair of short
pants.18 All of them left the store at the same time.19 Julito proceeded to the house of Rita to watch
television, while appellant, who held the hand of AAA, went towards the direction of the "lower area
or place."20

AAA recalled that appellant was wearing a chaleko (sando) and a pair of short pants21 when he held
her hand while on the road near the store.22 They walked towards the rice field near the house of
spouses Alejandro and Gloria Perocho [the Perochos]. 23 There he made her lie down on harrowed
ground, removed her panty and boxed her on the chest. 24 Already half-naked from waist down,25 he
mounted her, and, while her legs were pushed apart, pushed his penis into her vagina and made a
push and pull movement.26 She felt pain and cried.27 Afterwards, appellant left and proceeded to the
Perochos.28 She, in turn, went straight home crying. 29

FFF heard AAA crying and calling his name from downstairs.30 She was without slippers.31 He found
her face greasy.32 There was mud on her head and blood was oozing from the back of her
head.33 He checked for any injury and found on her neck a contusion that was already turning
black.34 She had no underwear on and he saw white substance and mud on her vagina. 35 AAA told
him that appellant brought her from the store36 to the grassy area at the back of the house of the
Perochos;37 that he threw away her pair of slippers, removed her panty, choked her and boxed her
breast;38 and that he proceeded thereafter to the Perochos. 39

True enough, FFF found appellant at the house of the Perochos. 40 He asked the appellant what he
did to AAA.41 Appellant replied that he was asked to buy rum at the store and that AAA followed
him.42 FFF went home to check on his daughter, 43 afterwhich, he went back to appellant, asked
again,44 and boxed him.45

Meanwhile, at around 7:45 in the evening of even date, Julito was still watching television at the
house of Rita.46 AAA and her mother MMM arrived.47 AAA was crying.48 Julito pitied her, embraced
her, and asked what happened to her, to which she replied that appellant raped her. 49 Julito left and
found appellant at the Perochos.50 Julito asked appellant, "Bads, did you really rape the child, the
daughter of [MMM]?" but the latter ignored his question. 51 Appellant’s aunt, Gloria, told appellant that
the policemen were coming to which the appellant responded, "Wait a minute because I will wash
the dirt of my elbow (sic) and my knees." 52 Julito did found the elbows and knees of appellant with
dirt.53

On that same evening, FFF and AAA proceeded to the police station to have the incident
blottered.54 FFF also had AAA undergo a physical check up at the municipal health center. 55 Dr.
Bernardita M. Gaspar, M.D., Rural Health Physician, issued a medical certificate 56 dated 29 January
2003. It reads:

Injuries seen are as follows:

1. Multiple abrasions with erythema along the neck area.

2. Petechial hemorrhages on both per-orbital areas.

3. Hematoma over the left upper arm, lateral area

4. Hematoma over the upper anterior chest wall, midclavicular line

5. Abrasion over the posterior trunk, paravertebral area

6. Genital and peri-anal area soiled with debris and whitish mucoid-like material

7. Introitus is erythematous with minimal bleeding

8. Hymenal lacerations at the 5 o’clock and 9 o’clock position

Impression

MULTIPLE SOFT TISSUE INJURIES

HYMENAL LACERATIONS

Upon the recommendation of Dr. Gaspar,57 AAA submitted herself to another examination at the
provincial hospital on the following day. Dr. Christine Ruth B. Micabalo, Medical Officer III of the
provincial hospital, attended to her and issued a medico-legal certificate dated 29 January
2003,58 the pertinent portion of which reads:

P.E. = Findings is consistent with Dr. Bernardita M. Gaspar findings except No. 6 and 7 there is no
bleeding in this time of examination. (sic) 59

Evidence for the Defense

Interposing the defense of alibi, appellant gave a different version of the story. To corroborate his
testimony, Luzvilla Balucan [Luzvilla] and his aunt Gloria took the witness stand to affirm that he was
at the Perochos at the time of the commission of the crime. 60 Luzvilla even went further to state that
she actually saw Julito, not appellant, pick up AAA on the road.61 In addition, Antonia Perocho
[Antonia], sister-in-law of appellant’s aunt, Gloria,62 testified on the behavior of Julito after the rape
incident was revealed.63

Appellant claimed that he lives with his aunt, not with his parents whose house stands at the back of
FFF’s house.64 He denied that there was a need to pass by the house of FFF in order to access the
road or to fetch water.65 He, however, admitted that he occasionally worked for FFF,66 and whenever
he was asked to buy something from the store, AAA always approached him. 67

At about 8 o’clock in the morning of 28 January 2003, appellant went to the Perochos to attend a
birthday party. At 6:08 in the evening, while the visitors, including appellant and his uncle Alejandro
Perocho [Alejandro], were gathered together in a drinking session, appellant’s uncle sent him to the
store to buy Tanduay Rum. Since the store is only about 20 meters from the house, he was able to
return after three (3) minutes. He was certain of the time because he had a watch . 68

Appellant’s aunt, Gloria, the lady of the house, confirmed that he was in her house attending the
birthday party; and that appellant went out between 6 and 7 in the evening to buy a bottle of
Tanduay from the store. She recalled that appellant was back around five (5) minutes later. She also
observed that appellant’s white shorts and white sleeveless shirt were clean. 69

At 6:30 in the evening,70 Luzvilla, who was also at the party, saw appellant at the kitchen having a
drink with his uncle Alejandro and the rest of the visitors.71 She went out to relieve herself at the side
of the tree beside the road next to the house of the Perochos. 72 From where she was, she saw Julito,
who was wearing black short pants and black T-shirt, carry AAA.73 AAA’s face was covered and she
was wiggling.74 This did not alarm her because she thought it was just a game. 75 Meanwhile,
appellant was still in the kitchen when she returned. 76 Around three (3) minutes later, Luzvilla saw
Julito, now in a white T-shirt,77 running towards the house of Rita. 78 AAA was slowly following
behind.79 Luzvilla followed them.80 Just outside the house, Julito embraced AAA and asked what the
appellant did to her.81 The child did not answer.82

Luzvilla also followed FFF to the Perochos. She witnessed the punching incident and testified that
appellant was twice boxed by FFF. According to her, FFF tapped the left shoulder of the appellant,
boxed him, and left. FFF came in the second time and again boxed appellant. This time, he had a
bolo pointed at appellant. Appellant’s uncle Alejandro, a barangay councilor, and another Civilian
Voluntary Organization (CVO) member admonished FFF. 83

On sur-rebuttal, Antonia testified that, at 7 o’clock in the evening, she was watching the television
along with other people at the house of Rita. Around 7:10, Julito, who was wearing only a pair of
black short pants without a shirt on, entered the house drunk. He paced back and forth. After 10
minutes, AAA came in crying. Julito tightly embraced AAA and asked her what happened. AAA did
not answer. Upon Antonia’s advice, Julito released her and went out of the house. 84

Appellant further testified that at past 7 o’clock in the evening, FFF arrived, pointed a finger at him,
brandished a bolo, and accused him of molesting AAA. FFF left but returned at around 8 o’clock in
the evening. This time, he boxed appellant and asked again why he molested his daughter. 85

On 26 March 2004, the Regional Trial Court rendered its decision, 86 the dispositive portion of which
reads:

WHEREFORE, finding accused Hermie M. Jacinto guilty beyond reasonable doubt of rape
committed upon a 5-year old girl, the court sentences him to death and orders him to pay [AAA]
P75,000.000 as rape indemnity and P50,000.00 as moral damages. With costs 87
The defense moved to reopen trial for reception of newly discovered evidence stating that appellant
was apparently born on 1 March 1985 and that he was only seventeen (17) years old when the
crime was committed on 28 January 2003. 88 The trial court appreciated the evidence and reduced
the penalty from death to reclusion perpetua.89 Thus:

WHEREFORE, the judgment of the court imposing the death penalty upon the accused is amended
in order to consider the privileged mitigating circumstance of minority. The penalty impos[a]ble upon
the accused, therefore[,] is reduced to reclusion perpetua. xxx

Appealed to this Court, the case was transferred to the Court of Appeals for its disposition in view of
the ruling in People v. Mateo and the Internal Rules of the Supreme Court allowing an intermediate
review by the Court of Appeals of cases where the penalty imposed is death, reclusion perpetua, or
life imprisonment.90

On 29 August 2007, the Court of Appeals AFFIRMED the decision of the trial court with the following
MODIFICATIONS:

xxx that Hermie M. Jacinto should suffer the Indeterminate penalty of from six (6) years and one (1)
day to twelve (12) years of prision mayor, as minimum, to seventeen (17) and four (4) months
of reclusion temporal, as maximum. Appellant Hermie M. Jacinto is ordered to indemnify the victim in
the sum of P75,000.00 as civil indemnity, P75,000.00 as moral damages, and P25,000.00 as
exemplary damages and to pay the costs.91

On 19 November 2007, the Court of Appeals gave due course to the appellant’s Notice of
Appeal.92 This Court required the parties to simultaneously file their respective supplemental
briefs.93 Both parties manifested that they have exhaustively discussed their positions in their
respective briefs and would no longer file any supplement.94

Before the Court of Appeals, appellant argued that "THE COURT A QUO GRAVELY ERRED IN
CONVICTING HEREIN ACCUSED-APPELLANT GUILTY BEYOND REASONABLE DOUBT OF
RAPE"95 by invoking the principle that "if the inculpatory facts and circumstances are capable of two
or more reasonable explanations, one of which is consistent with the innocence of the accused and
the other with his guilt, then the evidence does not pass the test of moral certainty and will not
suffice to support a conviction."96

Our Ruling

We sustain the judgment of conviction.

In the determination of the innocence or guilt of a person accused of rape, we consider the three
well-entrenched principles:

(1) an accusation for rape can be made with facility; it is difficult to prove but more difficult for the
accused, though innocent, to disprove; (2) in view of the intrinsic nature of the crime of rape in which
only two persons are usually involved, the testimony of the complainant must be scrutinized with
extreme caution; and (3) the evidence for the prosecution must stand or fall on its own merits, and
cannot be allowed to draw strength from the weakness of the evidence for the defense. 97

Necessarily, the credible, natural, and convincing testimony of the victim may be sufficient to convict
the accused.98 More so, when the testimony is supported by the medico-legal findings of the
examining physician.99
Further, the defense of alibi cannot prevail over the victim’s positive identification of the perpetrator
of the crime,100 except when it is established that it was physically impossible for the accused to have
been at the locus criminis at the time of the commission of the crime.101

A man commits rape by having carnal knowledge of a child under twelve (12) years of age even in
the absence of any of the following circumstances: (a) through force, threat or intimidation; (b) when
the offended party is deprived of reason or otherwise unconscious; or (c) by means of fraudulent
machination or grave abuse of authority. 102

That the crime of rape has been committed is certain. The vivid narration of the acts culminating in
the insertion of appellant’s organ into the vagina of five-year-old AAA and the medical findings of the
physicians sufficiently proved such fact.

AAA testified:

PROS. OMANDAM:

xxxx

Q You said Hermie laid you on the ground, removed your panty and boxed you, what else
did he do to you?

A He mounted me.

Q When Hermie mounted you, was he facing you?

A Yes.

Q When he mounted you what did he do, did he move?

A He moved his ass, he made a push and pull movement.

Q When he made a push and pull movement, how were your legs positioned?

A They were apart.

Q Who pushed them apart?

A Hermie.

Q Did Hermie push anything at you?

A Yes.

Q What was that?

A His penis.
 Q Where did he push his penis?

A To my vagina.

Q Was it painful?

A Yes.

Q What was painful?

A My vagina.

Q Did you cry?

A Yes.103

The straightforward and consistent answers to the questions, which were phrased and re-phrased in
order to test that AAA well understood the information elicited from her, said it all – she had been
raped. When a woman, more so a minor, says so, she says in effect all that is essential to show that
rape was committed.104 Significantly, youth and immaturity are normally badges of truth and
honesty.105

Further, the medical findings and the testimony of Dr. Micabalo 106 revealed that the hymenal
lacerations at 5 o’clock and 9 o’clock positions could have been caused by the penetration of an
object; that the redness of the introitus could have been "the result of the repeated battering of the
object;" and that such object could have been an erect male organ.107

The credible testimony of AAA corroborated by the physician’s finding of penetration conclusively
established the essential requisite of carnal knowledge.108

II

The real identity of the assailant and the whereabouts of the appellant at the time of the commission
of the crime are now in dispute.

The defense would want us to believe that it was Julito who defiled AAA, and that appellant was
elsewhere when the crime was committed. 109

We should not, however, overlook the fact that a victim of rape could readily identify her
assailant, especially when he is not a stranger to her, considering that she could have a good look at
him during the commission of the crime.110 AAA had known appellant all her life. Moreover, appellant
and AAA even walked together from the road near the store to the situs criminus111 that it would be
impossible for the child not to recognize the man who held her hand and led her all the way to the
rice field.

We see no reason to disturb the findings of the trial court on the unwavering testimony of AAA.

The certainty of the child, unusually intelligent for one so young, that it was accused, whom she
called "kuya" and who used to play basketball and fetch water near their house, and who was
wearing a sleeveless shirt and shorts at the time he raped her, was convincing and persuasive. The
defense attempted to impute the crime to someone else – one Julito Apiki, but the child, on rebuttal,
was steadfast and did not equivocate, asserting that it was accused who is younger, and not Julito,
who is older, who molested her.112

In a long line of cases, this Court has consistently ruled that the determination by the trial court of the
credibility of the witnesses deserves full weight and respect considering that it has "the opportunity to
observe the witnesses’ manner of testifying, their furtive glances, calmness, sighs and the scant or
full realization of their oath,"113 unless it is shown that material facts and circumstances have been
"ignored, overlooked, misconstrued, or misinterpreted." 114

Further, as correctly observed by the trial court:

xxx His and his witness’ attempt to throw the court off the track by imputing the crime to someone
else is xxx a vain exercise in view of the private complainant’s positive identification of accused and
other corroborative circumstances. Accused also admitted that on the same evening, Julito Apiki, the
supposed real culprit, asked him "What is this incident, Pare?", thus corroborating the latter’s
testimony that he confronted accused after hearing of the incident from the child."115

On the other hand, we cannot agree with the appellant that the trial court erred in finding his denial
and alibi weak despite the presentation of witnesses to corroborate his testimony. Glaring
inconsistencies were all over their respective testimonies that even destroyed the credibility of the
appellant’s very testimony.

Appellant testified that it was his uncle Alejandro Perocho who sent him to store to buy Tanduay;
that he gave the bottle to his uncle; and that they had already been drinking long before he bought
Tanduay at the store.

This was contradicted by the testimony of his aunt Gloria, wife of his uncle Alejandro. On cross-
examination, she revealed that her husband was not around before, during, and after the rape
incident because he was then at work. 116 He arrived from work only after FFF came to their house for
the second time and boxed appellant.117 It was actually the fish vendor, not her husband, who asked
appellant to buy Tanduay.118 Further, the drinking session started only after the appellant’s errand to
the store.119

Neither was the testimony of Luzvilla credible enough to deserve consideration.

Just like appellant, Luzvilla testified that Alejandro joined the drinking session. This is contrary to
Gloria’s statement that her husband was at work.

Luzvilla’s testimony is likewise inconsistent with that of sur-rebuttal witness Antonia Perocho.
Antonia recalled that Julito arrived without a shirt on. This belied Luzvilla’s claim that Julito wore a
white shirt on his way to the house of Rita. In addition, while both the prosecution, as testified to by
AAA and Julito, and the defense, as testified to by Gloria, were consistent in saying that appellant
wore a sleeveless shirt, Luzvilla’s recollection differ in that Julito wore a T-shirt (colored black and
later changed to white), and, thus, a short-sleeved shirt.

Also, contrary to Luzvilla’s story that she saw AAA walking towards Rita’s house three (3) minutes
after she returned to the Perochos at 6:38 in the evening, Antonia recalled that AAA arrived at the
house of Rita at 7:30. In this respect, we find the trial court’s appreciation in order. Thus:

xxx. The child declared that after being raped, she went straight home, crying, to tell her father that
Hermie had raped her. She did not first drop into the house of Lita Lingkay to cry among strangers
who were watching TV, as Luzvilla Balucan would have the court believe. When the child was seen
at the house of Lita Lingkay by Julito Apiki and Luzvilla Balucan, it was only later, after she had been
brought there by her mother Brenda so that Lita Lingkay could take a look at her ˗ just as Julito Apiki
said.120

Above all, for alibi to prosper, it is necessary that the corroboration is credible, the same having been
offered preferably by disinterested witnesses. The defense failed thuswise. Its witnesses cannot
qualify as such, "they being related or were one way or another linked to each other." 121

Even assuming for the sake of argument that we consider the corroborations on his whereabouts,
still, the defense of alibi cannot prosper.

We reiterate, time and again, that the court must be convinced that it would be physically impossible
for the accused to have been at the locus criminis at the time of the commission of the crime.122

Physical impossibility refers to distance and the facility of access between the situs criminis and the
location of the accused when the crime was committed. He must demonstrate that he was so far
away and could not have been physically present at the scene of the crime and its immediate vicinity
when the crime was committed.123

In People v. Paraiso,124 the distance of two thousand meters from the place of the commission of the
crime was considered not physically impossible to reach in less than an hour even by
foot.125 Inasmuch as it would take the accused not more than five minutes to rape the victim, this
Court disregarded the testimony of the defense witness attesting that the accused was fast asleep
when she left to gather bamboo trees and returned several hours after. She could have merely
presumed that the accused slept all throughout. 126

In People v. Antivola,127 the testimonies of relatives and friends corroborating that of the appellant
that he was in their company at the time of the commission of the crime were likewise disregarded
by this Court in the following manner:

Ruben Nicolas, the appellant’s part-time employer, and Marites Capalad, the appellant’s sister-in-law
and co-worker, in unison, vouched for the appellant’s physical presence in the fishpond at the time
Rachel was raped. It is, however, an established fact that the appellant’s house where the rape
occurred, was a stone’s throw away from the fishpond. Their claim that the appellant never
left their sight the entire afternoon of December 4, 1997 is unacceptable. It was impossible for
Marites to have kept an eye on the appellant for almost four hours, since she testified that she, too,
was very much occupied with her task of counting and recording the fishes being harvested.
Likewise, Mr. Nicolas, who, admittedly was 50 meters away from the fishpond, could not have
focused his entire attention solely on the appellant. It is, therefore, not farfetched that the
appellant easily sneaked out unnoticed, and along the way inveigled the victim, brought her
inside his house and ravished her, then returned to the fishpond as if he never
left.128 (Emphasis supplied.)1avvphi1

As in the cases above cited, the claim of the defense witnesses that appellant never left their sight,
save from the 5-minute errand to the store, is contrary to ordinary human experience. Moreover,
considering that the farmland where the crime was committed is just behind the house of the
Perochos, it would take appellant only a few minutes to bring AAA from the road near the store next
to the Perochos down the farmland and consummate the crime. As correctly pointed out by the
Court of Appeals, appellant could have committed the rape after buying the bottle of Tanduay and
immediately returned to his uncle’s house.129 Unfortunately, the testimonies of his corroborating
witnesses even bolstered the fact that he was within the immediate vicinity of the scene of the
crime.130

Clearly, the defense failed to prove that it was physically impossible for appellant to have been at the
time and place of the commission of the crime.

All considered, we find that the prosecution has sufficiently established the guilt of the appellant
beyond reasonable doubt.

III

In the determination of the imposable penalty, the Court of Appeals correctly considered Republic
Act No. 9344 (Juvenile Justice and Welfare Act of 2006) despite the commission of the crime three
(3) years before it was enacted on 28 April 2006.

We recognize its retroactive application following the rationale elucidated in People v. Sarcia:131

[Sec. 68 of Republic Act No. 9344]132 allows the retroactive application of the Act to those who have
been convicted and are serving sentence at the time of the effectivity of this said Act, and who were
below the age of 18 years at the time of the commission of the offense. With more reason, the Act
should apply to this case wherein the conviction by the lower court is still under
review.133 (Emphasis supplied.)

Criminal Liability; Imposable Penalty

Sec. 6 of Republic Act No. 9344 exempts a child above fifteen (15) years but below eighteen (18)
years of age from criminal liability, unless the child is found to have acted with discernment, in which
case, "the appropriate proceedings" in accordance with the Act shall be observed. 134

We determine discernment in this wise:

Discernment is that mental capacity of a minor to fully appreciate the consequences of his unlawful
act.135 Such capacity may be known and should be determined by taking into consideration all the
facts and circumstances afforded by the records in each case. 136

xxx The surrounding circumstances must demonstrate that the minor knew what he was doing and
that it was wrong.137 Such circumstance includes the gruesome nature of the crime and the minor’s
cunning and shrewdness.138

In the present case, we agree with the Court of Appeals that: "(1) choosing an isolated and dark
place to perpetrate the crime, to prevent detection[;] and (2) boxing the victim xxx, to weaken her
defense" are indicative of then seventeen (17) year-old appellant’s mental capacity to fully
understand the consequences of his unlawful action.139

Nonetheless, the corresponding imposable penalty should be modified.

The birth certificate of AAA140 shows that she was born on 3 December 1997. Considering that she
was only five (5) years old when appellant defiled her on 28 January 2003, the law prescribing the
death penalty when rape is committed against a child below seven (7) years old141 applies.
The following, however, calls for the reduction of the penalty: (1) the prohibition against the
imposition of the penalty of death in accordance with Republic Act No. 9346; 142 and (2) the privileged
mitigating circumstance of minority of the appellant, which has the effect of reducing the penalty one
degree lower than that prescribed by law, pursuant to Article 68 of the Revised Penal Code. 143

Relying on People v. Bon,144 the Court of Appeals excluded death from the graduation of penalties
provided in Article 71 of the Revised Penal Code. 145 Consequently, in its appreciation of the
privileged mitigating circumstance of minority of appellant, it lowered the penalty one degree
from reclusion perpetua and sentenced appellant to suffer the indeterminate penalty of six (6) years
and one (1) day to twelve (12) years of prision mayor, as minimum, to seventeen (17) years and four
(4) months of reclusion temporal, in its medium period, as maximum.146

We differ.

In a more recent case,147 the Court En Banc, through the Honorable Justice Teresita J. Leonardo-de
Castro, clarified:

Under Article 68 of the Revised Penal Code, when the offender is a minor under 18 years, the
penalty next lower than that prescribed by law shall be imposed, but always in the proper
period. However, for purposes of determining the proper penalty because of the privileged
mitigating circumstance of minority, the penalty of death is still the penalty to be reckoned
with. Thus, the proper imposable penalty for the accused-appellant is reclusion
perpetua.148 (Emphasis supplied.)

Accordingly, appellant should be meted the penalty of reclusion perpetua.

Civil Liability

We have consistently ruled that:

The litmus test xxx in the determination of the civil indemnity is the heinous character of the crime
committed, which would have warranted the imposition of the death penalty, regardless of whether
the penalty actually imposed is reduced to reclusion perpetua.149

Likewise, the fact that the offender was still a minor at the time he committed the crime has no
bearing on the gravity and extent of injury suffered by the victim and her family. 150 The respective
awards of civil indemnity and moral damages in the amount of ₱75,000.00 each are, therefore,
proper.151

Accordingly, despite the presence of the privileged mitigating circumstance of minority which
effectively lowered the penalty by one degree, we affirm the damages awarded by the Court of
Appeals in the amount of ₱75,000.00 as civil indemnity and ₱75,000.00 as moral damages. And,
consistent with prevailing jurisprudence,152 the amount of exemplary damages should be increased
from ₱25,000.00 to ₱30,000.00.

Automatic Suspension of Sentence; Duration; Appropriate Disposition after the Lapse of the Period
of Suspension of Sentence

Republic Act No. 9344 warrants the suspension of sentence of a child in conflict with the law
notwithstanding that he/she has reached the age of majority at the time the judgment of conviction is
pronounced. Thus:
SEC. 38. Automatic Suspension of Sentence. - Once the child who is under eighteen (18) years of
age at the time of the commission of the offense is found guilty of the offense charged, the court
shall determine and ascertain any civil liability which may have resulted from the offense committed.
However, instead of pronouncing the judgment of conviction, the court shall place the child in conflict
with the law under suspended sentence, without need of application: Provided, however,
That suspension of sentence shall still be applied even if the juvenile is already eighteen (18)
years of age or more at the time of the pronouncement of his/her guilt. (Emphasis supplied.)

xxxx

Applying Declarador v. Gubaton,153 which was promulgated on 18 August 2006, the Court of Appeals
held that, consistent with Article 192 of Presidential Decree No. 603, as amended, 154 the aforestated
provision does not apply to one who has been convicted of an offense punishable by
death, reclusion perpetua or life imprisonment.155

Meanwhile, on 10 September 2009, this Court promulgated the decision in Sarcia,156 overturning the
ruling in Gubaton. Thus:

The xxx provision makes no distinction as to the nature of the offense committed by the child in
conflict with the law, unlike P.D. No. 603 and A.M. No. 02-1-18-SC. The said P.D. and Supreme
Court (SC) Rule provide that the benefit of suspended sentence would not apply to a child in conflict
with the law if, among others, he/she has been convicted of an offense punishable by
death, reclusion perpetua or life imprisonment. In construing Sec. 38 of R.A. No. 9344, the Court is
guided by the basic principle of statutory construction that when the law does not distinguish, we
should not distinguish. Since R.A. No. 9344 does not distinguish between a minor who has been
convicted of a capital offense and another who has been convicted of a lesser offense, the Court
should also not distinguish and should apply the automatic suspension of sentence to a child in
conflict with the law who has been found guilty of a heinous crime. 157

The legislative intent reflected in the Senate deliberations 158 on Senate Bill No. 1402 (Juvenile
Justice and Delinquency Prevention Act of 2005) further strengthened the new position of this Court
to cover heinous crimes in the application of the provision on the automatic suspension of sentence
of a child in conflict with the law. The pertinent portion of the deliberation reads:

If a mature minor, maybe 16 years old to below 18 years old is charged, accused with, or may have
committed a serious offense, and may have acted with discernment, then the child could be
recommended by the Department of Social Welfare and Development (DSWD), by the Local Council
for the Protection of Children (LCPC), or by [Senator Miriam Defensor-Santiago’s] proposed Office of
Juvenile Welfare and Restoration to go through a judicial proceeding; but the welfare, best interests,
and restoration of the child should still be a primordial or primary consideration. Even in heinous
crimes, the intention should still be the child’s restoration, rehabilitation and reintegration. xxx (Italics
supplied in Sarcia.)159

On 24 November 2009, the Court En Banc promulgated the Revised Rule on Children in Conflict
with the Law, which reflected the same position.160

These developments notwithstanding, we find that the benefits of a suspended sentence can no
longer apply to appellant. The suspension of sentence lasts only until the child in conflict with the law
reaches the maximum age of twenty-one (21) years.161 Section 40162 of the law and Section 48163 of
the Rule are clear on the matter. Unfortunately, appellant is now twenty-five (25) years old.
Be that as it may, to give meaning to the legislative intent of the Act, the promotion of the welfare of
a child in conflict with the law should extend even to one who has exceeded the age limit of twenty-
one (21) years, so long as he/she committed the crime when he/she was still a child. The offender
shall be entitled to the right to restoration, rehabilitation and reintegration in accordance with the Act
in order that he/she is given the chance to live a normal life and become a productive member of the
community. The age of the child in conflict with the law at the time of the promulgation of the
judgment of conviction is not material. What matters is that the offender committed the offense when
he/she was still of tender age.

Thus, appellant may be confined in an agricultural camp or any other training facility in accordance
with Sec. 51 of Republic Act No. 9344.164

Sec. 51. Confinement of Convicted Children in Agricultural Camps and Other Training Facilities. – A
child in conflict with the law may, after conviction and upon order of the court, be made to serve
his/her sentence, in lieu of confinement in a regular penal institution, in an agricultural camp and
other training facilities that may be established, maintained, supervised and controlled by the
BUCOR, in coordination with the DSWD.

Following the pronouncement in Sarcia, 165 the case shall be remanded to the court of origin to effect
appellant’s confinement in an agricultrual camp or other training facility.

WHEREFORE, the Decision dated 29 August 2007 of the Court of Appeals in CA-G.R. CR HC No.
00213 finding appellant Hermie M. Jacinto guilty beyond reasonable doubt of qualified rape
is AFFIRMED with the following MODIFICATIONS: (1) the death penalty imposed on the appellant is
reduced to reclusion perpetua; and (2) appellant is ordered to pay the victim P75,000.00 as civil
indemnity, P75,000.00 as moral damages, and P30,000.00 as exemplary damages. The case is
hereby REMANDED to the court of origin for its appropriate action in accordance with Section 51 of
Republic Act No. 9344.

SO ORDERED.
 Republic of the Philippines
SUPREME COURT
Manila

FIRST DIVISION

G.R. No. 118075 September 5, 1997

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
EMILIANO CATANTAN y TAYONG, accused-appellant.

BELLOSILLO, J.:

EMILIANO CATANTAN and JOSE MACVEN URSAL alias "Bimbo" were charged with violation
of PD No. 532 otherwise known as the Anti-Piracy and Highway Robbery Law of 1974 for
having on 27 June 1993, while armed with a firearm and a bladed weapon, acting in
conspiracy with one another, by means of violence and intimidation, wilfully and feloniously
attacked, assaulted and inflicted physical injuries on Eugene Pilapil and Juan Pilapil Jr. who
were then fishing in the seawaters of Tabogon, Cebu, and seized their fishing boat, to their
damage and prejudice.1

The Regional Trial Court of Cebu, after trial, found both accused Emiliano Catantan y Tayong and
Jose Macven Ursal alias "Bimbo" guilty of the crime charged and sentenced them to reclusion
perpetua.2 Of the duo only Emiliano Catantan appealed.

In his appeal, accused Catantan contends that the trial court erred in convicting him of piracy as the
facts proved only constitute grave coercion defined in Art. 286 of the Revised Penal Code and not
piracy under PD No. 532.

The evidence for the prosecution is that at 3:00 o'clock in the morning of 27 June 1993, the Pilapil
brothers Eugene, 21, and Juan Jr., 18, were fishing in the sea some 3 kilometers away from the
shores of Tabogon, Cebu. Suddenly, another boat caught up with them. One of them, later identified
as the accused Emiliano Catantan, bearded the pump boat of the Pilapils and leveled his gun at
Eugene. With his gun, Catantan struck Eugene on the left cheekbone and ordered him and Juan Jr.
to "dapa."3 Then Catantan told Ursal to follow him to the pumpboat of the Pilapils. There they hogtied
Eugene, forced him to lie down at the bottom of the boat, covered him with a tarpaulin up to his
neck, stepped on him and ordered Juan Jr. to ferry them to Daan Tabogon. They left behind the
other pumpboat which the accused had earlier used together with its passengers one of whom was
visibly tied.

Noting that they were already far out into the sea, Eugene reminded Catantan that they were now
off-course but Catantan told Eugene to keep quiet or he would be killed. Later, the engine conked
out and Juan Jr. was directed to row the boat. Eugene asked to be set free so he could help but was
not allowed; he was threatened with bodily harm instead.

Meanwhile Juan Jr. managed to fix the engine, but as they went farther out into the open sea the
engine stalled again. This time Eugene was allowed to assist his brother. Eugene's hands were set
free but his legs were tied to the outrigger. At the point of a tres cantos4 held by Ursal, Eugene
helped row the boat.

As they passed the shoreline of Nipa, they saw another boat. Catantan asked whose boat that was
and the Pilapils told him that it was operated by a certain Juanito and that its engine was new. Upon
learning this, Catantan ordered the Pilapil brothers to approach the boat cautioning them however
not to move or say anything.

On the pretext that they were buying fish Catantan boarded the "new" pumpboat. Once aboard he
ordered the operator Juanito to take them to Mungaz, another town of Cebu. When Juanito tried to
beg-off by saying that he would still pull up his net and harvest his catch, Catantan drew his revolver
and said, "You choose between the two, or I will kill you." 5 Juanito, obviously terrified, immediately
obeyed and Ursal hopped in from the other pumpboat and joined Catantan.

But, as Ursal was transferring to the "new" pumpboat, its outrigger caught the front part of the
pumpboat of the Pilapils so he kicked hard its prow; it broke. The jolt threw Eugene into the sea and
he landed on the water headlong. Juan Jr. then untied his brother's legs and the two swam together
clinging to their boat. Fortunately another pumpboat passed by and towed them safely ashore.

Section 2, par. (d), of PD No. 532, defines piracy as "any attack upon or seizure of any vessel, or the
taking away of the whole or part thereof or its cargo, equipment, or the personal belongings of the
complement or passengers, irrespective of the value thereof, by means of violence against or
intimidation of persons or force upon things, committed by any person, including a passenger or
member of the complement of said vessel, in Philippine waters, shall be considered as piracy. The
offenders shall be considered as pirates and punished as hereinafter provided." And a vessel is
construed in Sec. 2, par. (b), of the same decree as "any vessel or watercraft used for transport of
passengers and cargo from one place to another through Philippine waters. It shall include all kinds
and types of vessels or boats used in fishing (emphasis supplied).

On the other hand, grave coercion as defined in Art. 286 of the Revised Penal Code is committed by
"any person who, without authority of law, shall, by means of violence, prevent another from doing
something not prohibited by law, or compel him to do something against his will, whether it be right
or wrong."

Accused-appellant argues that in order that piracy may be committed it is essential that there be an
attack on or seizure of a vessel. He claims that he and his companion did not attack or seize the
fishing boat of the Pilapil brothers by using force or intimidation but merely boarded the boat, and it
was only when they were already on board that they used force to compel the Pilapils to take them
to some other place. Appellant also insists that he and Ursal had no intention of permanently taking
possession or depriving complainants of their boat. As a matter of fact, when they saw another
pumpboat they ordered the brothers right away to approach that boat so they could leave the Pilapils
behind in their boat. Accordingly, appellant claims, he simply committed grave coercion and not
piracy.

We do not agree. Under the definition of piracy in PD No. 532 as well as grave coercion as
penalized in Art. 286 of the Revised Penal Code, this case falls squarely within the purview of piracy.
While it may be true that Eugene and Juan Jr. were compelled to go elsewhere other than their
place of destination, such compulsion was obviously part of the act of seizing their boat. The
testimony of Eugene, one of the victims, shows that the appellant actually seized the vessel through
force and intimidation. The direct testimony of Eugene is significant and enlightening —
Q: Now, while you and your younger brother were fishing at the
seawaters of Tabogon at that time, was there anything unusual that
happened?

A: Yes.

Q: Will you please tell the Court what that was?

A: While we were fishing at Tabogon another pumpboat arrived and

the passengers of that pumpboat boarded our pumpboat.

Q: Now, that pumpboat which you said approached you, how many
were riding in that pumpboat?

A: Four.

Q: When you said the passengers of that pumpboat boarded your

pumpboat, how did they do that?

A: They approached somewhat suddenly and came aboard the

pumpboat (emphasis supplied).

Q: How many suddenly came aboard your pumpboat?

A: Only one.

Q: What did that person do when he came aboard your pumpboat?

A: When he boarded our pumpboat he aimed his revolver at

us (emphasis supplied).

Q: By the way, when he aimed his revolver to you, did he say

anything to you?

xxx xxx xxx

A: He said, "dapa," which means lie down (emphasis supplied).

COURT:

Q: To whom did he aim that revolver?

A: He aimed the revolver on me.

TRIAL PROS. ECHAVEZ:

Q: What else did he do?

A: Then he ordered his companion to come aboard the pumpboat.

 Q: What did he do with his revolver?

A: He struck my face with the revolver, hitting the lower portion of my

left eye.

Q: Now, after you were struck with the revolver, what did these
persons do?

A: We were ordered to take them to a certain place.

Q: To what place did he order you to go?

A: To Daan Tabogon. 6

To sustain the defense and convert this case of piracy into one of grave coercion would be to ignore
the fact that a fishing vessel cruising in Philippine waters was seized by the accused by means of
violence against or intimidation of persons. As Eugene Pilapil testified, the accused suddenly
approached them and boarded their pumpboat and Catantan aimed his revolver at them as he
ordered complaining witness Eugene Pilapil to "dapa" or lie down with face downwards, and then
struck his face with a revolver, hitting the lower portion of his left eye, after which, Catantan told his
victims at gun point to take them to Daan Tabogon.

The incident happened at 3:00 o'clock in the morning. The sudden appearance of another pumpboat
with four passengers, all strangers to them, easily intimidated the Pilapil brothers that they were
impelled to submit in complete surrender to the marauders. The moment Catantan jumped into the
other pumpboat he had full control of his victims. The sight of a drawn revolver in his hand drove
them to submission. Hence the issuance of PD No. 532 designed to avert situations like the case at
bar and discourage and prevent piracy in Philippine waters. Thus we cite the succeeding "whereas"
clauses of the decree —

Whereas, reports from law-enforcement agencies reveal that lawless elements are
still committing acts of depredations upon the persons and properties of innocent and
defenseless inhabitants who travel from one place to another, thereby disturbing the
peace, order and tranquility of the nation and stunting the economic and social
progress of the people;

Whereas, such acts of depredations constitute either piracy or highway

robbery/brigandage which are among the highest forms of lawlessness condemned
by the penal statutes of all countries; and,

Whereas, it is imperative that said lawless elements be discouraged from

perpetrating such acts of depredations by imposing heavy penalty on the
offenders, with the end in view of eliminating all obstacle to the
economic, social, educational and community progress of the people.

The Pilapil brothers are mere fisherfolk whose only means of livelihood is fishing in sea waters. They
brave the natural elements and contend with the unknown forces of the sea to bring home a
bountiful harvest. It is on these small fishermen that the townspeople depend for the daily bread. To
impede their livelihood would be to deprive them of their very subsistence, and the likes of the
accused within the purview of PD No. 532 are the obstacle to the "economic, social, educational and
community progress of the people." Had it not been for the chance passing of another pumpboat, the
fate of the Pilapil brothers, left alone helpless in a floundering, meandering outrigger with a broken
prow and a conked-out engine in open sea, could not be ascertained.

While appellant insists that he and Ursal had no intention of depriving the Pilapils permanently of
their boat, proof of which they left behind the brothers with their boat, the truth is, Catantan and Ursal
abandoned the Pilapils only because their pumpboat broke down and it was necessary to transfer to
another pumpboat that would take them back to their lair. Unfortunately for the pirates their "new"
pumpboat ran out of gas so they were apprehended by the police soon after the Pilapils reported the
matter to the local authorities.

The fact that the revolver used by the appellant to seize the boat was not produced in evidence
cannot exculpate him from the crime. The fact remains, and we state it again, that Catantan and his
co-accused Ursal seized through force and intimidation the pumpboat of the Pilapils while the latter
were fishing in Philippine waters.

WHEREFORE, finding no reversible error in the decision appealed from, the conviction of accused-
appellant EMILIANO CATANTAN y TAYONG for the crime of piracy penalized under PD No. 532
and sentencing him accordingly to reclusion perpetua, is AFFIRMED. Costs against accused-
appellant.

SO ORDERED.
 THIRD DIVISION

G.R. No. 111709 August 30, 2001

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
ROGER P. TULIN, VIRGILIO I. LOYOLA, CECILIO O. CHANGCO, ANDRES C. INFANTE,
CHEONG SAN HIONG, and JOHN DOES, accused-appellants.

MELO, J.:

This is one of the older cases which unfortunately has remained in docket of the Court for sometime.
It was reassigned, together with other similar cases, to undersigned ponente in pursuance of A.M.
No. 00-9-03-SC dated February 27, 2001.

In the evening of March 2, 1991, "M/T Tabangao," a cargo vessel owned by the PNOC Shipping and
Transport Corporation, loaded with 2,000 barrels of kerosene, 2,600 barrels of regular gasoline, and
40,000 barrels of diesel oil, with a total value of P40,426,793,87, was sailing off the coast of Mindoro
near Silonay Island.

The vessel, manned by 21 crew members, including Captain Edilberto Libo-on, Second Mate
Christian Torralba, and Operator Isaias Ervas, was suddenly boarded, with the use of an aluminum
ladder, by seven fully armed pirates led by Emilio Changco, older brother of accused-appellant
Cecilio Changco. The pirates, including accused-appellants Tulin, Loyola, and Infante, Jr. were
armed with M-16 rifles, .45 and .38 caliber handguns, and bolos. They detained the crew and took
complete control of the vessel. Thereafter, accused-appellant Loyola ordered three crew members to
paint over, using black paint, the name "M/T Tabangao" on the front and rear portions of the vessel,
as well as the PNOC logo on the chimney of the vessel. The vessel was then painted with the name
"Galilee," with registry at San Lorenzo, Honduras. The crew was forced to sail to Singapore, all the
while sending misleading radio messages to PNOC that the ship was undergoing repairs.

PNOC, after losing radio contact with the vessel, reported the disappearance of the vessel to the
Philippine Coast Guard and secured the assistance of the Philippine Air Force and the Philippine
Navy. However, search and rescue operations yielded negative results. On March 9, 1991, the ship
arrived in the vicinity of Singapore and cruised around the area presumably to await another vessel
which, however, failed to arrive. The pirates were thus forced to return to the Philippines on March
14, 1991, arriving at Calatagan, Batangas on March 20, 1991 where it remained at sea.

On March 28, 1991, the "M/T Tabangao" again sailed to and anchored about 10 to 18 nautical miles
from Singapore's shoreline where another vessel called "Navi Pride" anchored beside it. Emilio
Changco ordered the crew of "M/T Tabangao" to transfer the vessel's cargo to the hold of "Navi
Pride". Accused-appellant Cheong San Hiong supervised the crew of "Navi Pride" in receiving the
cargo. The transfer, after an interruption, with both vessels leaving the area, was completed on
March 30, 1991.

On March 30, 1991, "M/T Tabangao" returned to the same area and completed the transfer of cargo
to "Navi Pride."

On April 8, 1991, "M/T Tabangao" arrived at Calatagan, Batangas, but the vessel remained at sea.
On April 10, 1991, the members of the crew were released in three batches with the stern warning
not to report the incident to government authorities for a period of two days or until April 12, 1991,
otherwise they would be killed. The first batch was fetched from the shoreline by a newly painted
passenger jeep driven by accused-appellant Cecilio Changco, brother of Emilio Changco, who
brought them to Imus, Cavite and gave P20,000.00 to Captain Libo-on for fare of the crew in
proceeding to their respective homes. The second batch was fetched by accused-appellant Changco
at midnight of April 10, 1991 and were brought to different places in Metro Manila.

On April 12, 1991, the Chief Engineer, accompanied by the members of the crew, called the PNOC
Shipping and Transport Corporation office to report the incident. The crew members were brought to
the Coast Guard Office for investigation. The incident was also reported to the National Bureau of
Investigation where the officers and members of the crew executed sworn statements regarding the
incident.

A series of arrests was thereafter effected as follows:

a. On May 19, 1991, the NBI received verified information that the pirates were present at U.K.
Beach, Balibago, Calatagan, Batangas. After three days of surveillance, accused-appellant Tulin
was arrested and brought to the NBI headquarters in Manila.

b. Accused-appellants Infante, Jr. and Loyola were arrested by chance at Aguinaldo Hi-way by NBI
agents as the latter were pursuing the mastermind, who managed to evade arrest.

c. On May 20, 1991, accused-appellants Hiong and Changco were arrested at the lobby of Alpha
Hotel in Batangas City.

On October 24, 1991, an Information charging qualified piracy or violation of Presidential Decree No.
532 (Piracy in Philippine Waters) was filed against accused-appellants, as follows:

The undersigned State Prosecutor accuses ROGER P. TULIN, VIRGILIO I. LOYOLA,

CECILIO O. CHANGCO, ANDRES C. INFANTE, and CHEONG SAN HIONG, and nine (9)
other JOHN DOES of qualified piracy (Violation of P.D. No. 532), committed as follows:

That on or about and during the period from March 2 to April 10, 1991, both dates
inclusive, and for sometime prior and subsequent thereto, and within the jurisdiction
of this Honorable Court, the said accused, then manning a motor launch and armed
with high powered guns, conspiring and confederating together and mutually helping
one another, did then and there, wilfully, unlawfully and feloniously fire upon, board
and seize while in the Philippine waters M/T PNOC TABANGCO loaded with
petroleum products, together with the complement and crew members, employing
violence against or intimidation of persons or force upon things, then direct the
vessel to proceed to Singapore where the cargoes were unloaded and thereafter
returned to the Philippines on April 10, 1991, in violation of the aforesaid law.
 CONTRARY TO LAW.

(pp. 119-20, Rollo.)

This was docketed as Criminal Case No. 91-94896 before Branch 49 of the Regional Trial Court of
the National Capital Judicial Region stationed in Manila. Upon arraignment, accused-appellants
pleaded not guilty to the charge. Trial thereupon ensued.

Accused-appellants Tulin, Infante, Jr., and Loyola, notwithstanding some inconsistencies in their
testimony as to where they were on March 1, 1991, maintained the defense of denial, and disputed
the charge, as well as the transfer of any cargo from "M/T Tabangao" to the "Navi Pride." All of them
claimed having their own respective sources of livelihood. Their story is to the effect that on March 2,
1991, while they were conversing by the beach, a red speedboat with Captain Edilberto Liboon and
Second Mate Christian Torralba on board, approached the seashore. Captain Liboon inquired from
the three if they wanted to work in a vessel. They were told that the work was light and that each
worker was to be paid P3,000.00 a month with additional compensation if they worked beyond that
period. They agreed even though they had no sea-going experience. On board, they cooked,
cleaned the vessel, prepared coffee, and ran errands for the officers. They denied having gone to
Singapore, claiming that the vessel only went to Batangas. Upon arrival thereat in the morning of
March 21, 1991, they were paid P1,000.00 each as salary for nineteen days of work, and were told
that the balance would be remitted to their addresses. There was neither receipt nor contracts of
employment signed by the parties.

Accused-appellant Changco categorically denied the charge, averring that he was at home sleeping
on April 10, 1991. He testified that he is the younger brother of Emilio Changco, Jr.

Accused-appellant Cheong San Hiong, also known as Ramzan Ali, adduced evidence that he
studied in Sydney, Australia, obtaining the "Certificate" as Chief Officer, and later completed the
course as a "Master" of a vessel, working as such for two years on board a vessel. He was
employed at Navi Marine Services, Pte., Ltd. as Port Captain. The company was engaged in the
business of trading petroleum, including shipoil, bunker lube oil, and petroleum to domestic and
international markets. It owned four vessels, one of which was "Navi Pride."

On March 2, 1991, the day before "M/T Tabangao" was seized by Emilio Changco and his cohorts,
Hiong's name was listed in the company's letter to the Mercantile Section of the Maritime
Department of the Singapore government as the radio telephone operator on board the vessel
"Ching Ma."

The company was then dealing for the first time with Paul Gan, a Singaporean broker, who offered
to sell to the former bunker oil for the amount of 300,000.00 Singapore dollars. After the company
paid over one-half of the aforesaid amount to Paul Gan, the latter, together with Joseph Ng,
Operations Superintendent of the firm, proceeded to the high seas on board "Navi Pride" but failed to
locate the contact vessel.

The transaction with Paul Gan finally pushed through on March 27, 1991. Hiong, upon his return on
board the vessel "Ching Ma," was assigned to supervise a ship-to-ship transfer of diesel oil off the
port of Singapore, the contact vessel to be designated by Paul Gan. Hiong was ordered to ascertain
the quantity and quality of the oil and was given the amount of 300,000.00 Singapore Dollars for the
purchase. Hiong, together with Paul Gan, and the surveyor William Yao, on board "Navi Pride" sailed
toward a vessel called "M/T Galilee". Hiong was told that "M/T Galilee" would be making the transfer.
Although no inspection of "Navi Pride" was made by the port authorities before departure, Navi
Marine Services, Pte., Ltd. was able to procure a port clearance upon submission of General
Declaration and crew list. Hiong, Paul Gan, and the brokers were not in the crew list submitted and
did not pass through the immigration. The General Declaration falsely reflected that the vessel
carried 11,900 tons.

On March 28, 1991, "Navi Pride" reached the location of "M/T Galilee". The brokers then told the
Captain of the vessel to ship-side with "M/T Galilee" and then transfer of the oil transpired. Hiong
and the surveyor William Yao met the Captain of "M/T Galilee," called "Captain Bobby" (who later
turned out to be Emilio Changco). Hiong claimed that he did not ask for the full name of Changco nor
did he ask for the latter's personal card.

Upon completion of the transfer, Hiong took the soundings of the tanks in the "Navi Pride" and took
samples of the cargo. The surveyor prepared the survey report which "Captain Bobby" signed under
the name "Roberto Castillo." Hiong then handed the payment to Paul Gan and William Yao. Upon
arrival at Singapore in the morning of March 29, 1991, Hiong reported the quantity and quality of the
cargo to the company.

Thereafter, Hiong was again asked to supervise another transfer of oil purchased by the firm " from
"M/T Galilee" to "Navi Pride." The same procedure as in the first transfer was observed. This time,
Hiong was told that that there were food and drinks, including beer, purchased by the company for
the crew of "M/T Galilee. The transfer took ten hours and was completed on March 30, 1991. Paul
Gan was paid in full for the transfer.

On April 29 or 30, 1991, Emilio Changco intimated to Hiong that he had four vessels and wanted to
offer its cargo to cargo operators. Hiong was asked to act as a broker or ship agent for the sale of
the cargo in Singapore. Hiong went to the Philippines to discuss the matter with Emilio Changco,
who laid out the details of the new transfer, this time with "M/T Polaris" as contact vessel. Hiong was
told that the vessel was scheduled to arrive at the port of Batangas that weekend. After being
billeted at Alpha Hotel in Batangas City, where Hiong checked in under the name "SONNY CSH." A
person by the name of "KEVIN OCAMPO," who later turned out to be Emilio Changco himself, also
checked in at Alpha Hotel. From accused-appellant Cecilio Changco, Hiong found out that the vessel
was not arriving. Hiong was thereafter arrested by NBI agents.

After trial, a 95-page decision was rendered convicting accused-appellants of the crime charged.
The dispositive portion of said decision reads:

WHEREFORE, in the light of the foregoing considerations, judgment is hereby rendered by

this Court finding the accused Roger Tulin, Virgilio Loyola, Andres Infante, Jr. and Cecilio
Changco guilty beyond reasonable doubt, as principals, of the crime of piracy in Philippine
Waters defined in Section 2(d) of Presidential Decree No. 532 and the accused Cheong San
Hiong, as accomplice, to said crime. Under Section 3(a) of the said law, the penalty for the
principals of said crime is mandatory death. However, considering that, under the 1987
Constitution, the Court cannot impose the death penalty, the accused Roger Tulin, Virgilio
Loyola, Andres Infante, Jr., and Cecilio Changco are hereby each meted the penalty of
RECLUSION PERPETUA, with all the accessory penalties of the law. The accused Cheong
San Hiong is hereby meted the penalty of RECLUSION PERPETUA, pursuant to Article 52
of the Revised Penal Code in relation to Section 5 of PD 532. The accused Roger Tulin,
Virgilio Loyola, Andres Infante, Jr. and Cecilio Changco are hereby ordered to return to the
PNOC Shipping and Transport Corporation the "M/T Tabangao" or if the accused can no
longer return the same, the said accused are hereby ordered to remit, jointly and severally,
to said corporation the value thereof in the amount of P11,240,000.00, Philippine Currency,
with interests thereon, at the rate of 6% per annum from March 2, 1991 until the said amount
 is paid in full. All the accused including Cheong San Hiong are hereby ordered to return to
the Caltex Philippines, Inc. the cargo of the "M/T Tabangao", or if the accused can no longer
return the said cargo to said corporation, all the accused are hereby condemned to pay,
jointly and severally, to the Caltex Refinery, Inc., the value of said cargo in the amount of
P40,426,793.87, Philippine Currency plus interests until said amount is paid in full. After the
accused Cheong San Hiong has served his sentence, he shall be deported to Singapore.

All the accused shall be credited for the full period of their detention at the National Bureau of
Investigation and the City Jail of Manila during the pendency of this case provided that they
agreed in writing to abide by and comply strictly with the rules and regulations of the City Jail
of Manila and the National Bureau of Investigation. With costs against all the accused.

SO ORDERED.

(pp. 149-150, Rollo.)

The matter was then elevated to this Court. The arguments of accused-appellants may be
summarized as follows:

Roger P. Tulin, Virgilio I. Loyola, Andres C. Infante, Jr., and Cecilio O. Changco

Accused-appellants Tulin, Loyola, Infante, Jr., and Cecilio Changco assert that the trial court erred in
allowing them to adopt the proceedings taken during the time they were being represented by Mr.
Tomas Posadas, a non-lawyer, thereby depriving them of their constitutional right to procedural due
process.

In this regard, said accused-appellants narrate that Mr. Posadas entered his appearance as counsel
for all of them. However, in the course of the proceedings, or on February 11, 1992, the trial court
discovered that Mr. Posadas was not a member of the Philippine Bar. This was after Mr. Posadas
had presented and examined seven witnesses for the accused.

Further, accused-appellants Tulin, Loyola, Infante, Cecilio, Changco uniformly contend that during
the custodial investigation, they were subjected to physical violence; were forced to sign statements
without being given the opportunity to read the contents of the same; were denied assistance of
counsel, and were not informed of their rights, in violation of their constitutional rights.

Said accused-appellants also argue that the trial court erred in finding that the prosecution proved
beyond reasonable doubt that they committed the crime of qualified piracy. They allege that the
pirates were outnumbered by the crew who totaled 22 and who were not guarded at all times. The
crew, so these accused-appellants conclude, could have overpowered the alleged pirates.

Cheong San Hiong

In his brief, Cheong argues that: (1) Republic Act No. 7659 in effect obliterated the crime committed
by him; (2) the trial court erred in declaring that the burden is lodged on him to prove by clear and
convincing evidence that he had no knowledge that Emilio Changco and his cohorts attacked and
seized the "M/T Tabangao" and/or that the cargo of the vessel was stolen or the subject of theft or
robbery or piracy; (3) the trial court erred in finding him guilty as an accomplice to the crime of
qualified piracy under Section 4 of Presidential Decree No. 532 (Anti-Piracy and Anti-Robbery Law
of 1974); (4) the trial court erred in convicting and punishing him as an accomplice when the acts
allegedly committed by him were done or executed outside of Philippine waters and territory,
stripping the Philippine courts of jurisdiction to hold him for trial, to convict, and sentence; (5) the trial
court erred in making factual conclusions without evidence on record to prove the same and which in
fact are contrary to the evidence adduced during trial; (6) the trial court erred in convicting him as an
accomplice under Section 4 of Presidential Decree No. 532 when he was charged as a principal by
direct participation under said decree, thus violating his constitutional right to be informed of the
nature and cause of the accusation against him.

Cheong also posits that the evidence against the other accused-appellants do not prove any
participation on his part in the commission of the crime of qualified piracy. He further argues that he
had not in any way participated in the seajacking of "M/T Tabangao" and in committing the crime of
qualified piracy, and that he was not aware that the vessel and its cargo were pirated.

As legal basis for his appeal, he explains that he was charged under the information with qualified
piracy as principal under Section 2 of Presidential Decree No. 532 which refers to Philippine waters.
In the case at bar, he argues that he was convicted for acts done outside Philippine waters or
territory. For the State to have criminal jurisdiction, the act must have been committed within its
territory.

We affirm the conviction of all the accused-appellants.

The issues of the instant case may be summarized as follows: (1) what are the legal effects and
implications of the fact that a non-lawyer represented accused-appellants during the trial?; (2) what
are the legal effects and implications of the absence of counsel during the custodial investigation?;
(3) did the trial court err in finding that the prosecution was able to prove beyond reasonable doubt
that accused-appellants committed the crime of qualified piracy?; (4) did Republic Act No. 7659
obliterate the crime committed by accused-appellant Cheong?; and (5) can accused-appellant
Cheong be convicted as accomplice when he was not charged as such and when the acts allegedly
committed by him were done or executed outside Philippine waters and territory?

On the first issue, the record reveals that a manifestation (Exhibit "20", Record) was executed by
accused-appellants Tulin, Loyola, Changco, and Infante, Jr. on February 11, 1991, stating that they
were adopting the evidence adduced when they were represented by a non-lawyer. Such waiver of
the right to sufficient representation during the trial as covered by the due process clause shall only
be valid if made with the full assistance of a bona fide lawyer. During the trial, accused-appellants,
as represented by Atty. Abdul Basar, made a categorical manifestation that said accused-appellants
were apprised of the nature and legal consequences of the subject manifestation, and that they
voluntarily and intelligently executed the same. They also affirmed the truthfulness of its contents
when asked in open court (tsn, February 11, 1992, pp. 7-59).

It is true that an accused person shall be entitled to be present and to defend himself in person and
by counsel at every stage of the proceedings, from arraignment to promulgation of judgment
(Section 1, Rule 115, Revised Rules of Criminal Procedure). This is hinged on the fact that a layman
is not versed on the technicalities of trial. However, it is also provided by law that "[r]ights may be
waived, unless the waiver is contrary to law, public order, public policy, morals, or good customs or
prejudicial to a third person with right recognized by law." (Article 6, Civil Code of the Philippines).
Thus, the same section of Rule 115 adds that "[u]pon motion, the accused may be allowed to defend
himself in person when it sufficiently appears to the court that he can properly protect his rights
without the assistance of counsel." By analogy, but without prejudice to the sanctions imposed by
law for the illegal practice of law, it is amply shown that the rights of accused-appellants were
sufficiently and properly protected by the appearance of Mr. Tomas Posadas. An examination of the
record will show that he knew the technical rules of procedure. Hence, we rule that there was a valid
waiver of the right to sufficient representation during the trial, considering that it was unequivocally,
knowingly, and intelligently made and with the full assistance of a bona fide lawyer, Atty. Abdul
Basar. Accordingly, denial of due process cannot be successfully invoked where a valid waiver of
rights has been made (People vs. Serzo, 274 SCRA 553 [1997]; Sayson vs. People, 166 SCRA 680
[1988]).

However, we must quickly add that the right to counsel during custodial investigation may not be
waived except in writing and in the presence of counsel.

Section 12, Article III of the Constitution reads:

SECTION 12. (1) 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 preferably of his own choice. If the person cannot afford the services of counsel, he
must be provided with one. These rights cannot be waived except in writing and in the
presence of counsel.

(2) No torture, force, violence, threat, intimidation, or any other means which vitiate the free
will shall be used against him. Secret detention places, solitary, incommunicado, or other
similar forms of detention are prohibited.

(3) Any confession or admission obtained in violation of this or Section 17 hereof shall be
inadmissible in evidence against him.

(4) The law shall provide for penal and civil sanctions for violations of this section as well as
compensation to and rehabilitation of victims of torture or similar practices, and their families.

Such rights originated from Miranda v. Arizona (384 U.S. 436 [1966]) which gave birth to the so-
called Miranda doctrine which is to the effect that prior to any questioning during custodial
investigation, the person must be warned that he has a right to remain silent, that any statement he
gives may be used as evidence against him, and that he has the right to the presence of an attorney,
either retained or appointed. The defendant may waive effectuation of these rights, provided the
waiver is made voluntarily, knowingly, and intelligently. The Constitution even adds the more
stringent requirement that the waiver must be in writing and made in the presence of counsel.

Saliently, the absence of counsel during the execution of the so-called confessions of the accused-
appellants make them invalid. In fact, the very basic reading of the Miranda rights was not even
shown in the case at bar. Paragraph [3] of the aforestated Section 12 sets forth the so-called "fruit
from the poisonous tree doctrine," a phrase minted by Mr. Justice Felix Frankfurter in the celebrated
case of Nardone vs. United States (308 U.S. 388 [1939]). According to this rule, once the primary
source (the "tree") is shown to have been unlawfully obtained, any secondary or derivative evidence
(the "fruit") derived from it is also inadmissible. The rule is based on the principle that evidence
illegally obtained by the State should not be used to gain other evidence because the originally
illegally obtained evidence taints all evidence subsequently obtained (People vs. Alicando, 251
SCRA 293 [1995]). Thus, in this case, the uncounselled extrajudicial confessions of accused-
appellants, without a valid waiver of the right to counsel, are inadmissible and whatever information
is derived therefrom shall be regarded as likewise inadmissible in evidence against them.

However, regardless of the inadmissibility of the subject confessions, there is sufficient evidence to
convict accused-appellants with moral certainty. We agree with the sound deduction of the trial court
that indeed, Emilio Changco (Exhibits "U" and "UU") and accused-appellants Tulin, Loyola, and
Infante, Jr. did conspire and confederate to commit the crime charged. In the words of then trial
judge, now Justice Romeo J. Callejo of the Court of Appeals —
 . . . The Prosecution presented to the Court an array of witnesses, officers and members of
the crew of the "M/T Tabangao" no less, who identified and pointed to the said Accused as
among those who attacked and seized, the "M/T Tabangao" on March 2, 1991, at about 6:30
o'clock in the afternoon, off Lubang Island, Mindoro, with its cargo, and brought the said
vessel, with its cargo, and the officers and crew of the vessel, in the vicinity of Horsebough
Lighthouse, about sixty-six nautical miles off the shoreline of Singapore and sold its cargo to
the Accused Cheong San Hiong upon which the cargo was discharged from the "M/T
Tabangao" to the "Navi Pride" for the price of about $500,000.00 (American Dollars) on
March 29, and 30, 1991. . .

xxx xxx xxx

The Master, the officers and members of the crew of the "M/T Tabangao" were on board the
vessel with the Accused and their cohorts from March 2, 1991 up to April 10, 1991 or for
more than one (1) month. There can be no scintilla of doubt in the mind of the Court that the
officers and crew of the vessel could and did see and identify the seajackers and their
leader. In fact, immediately after the Accused were taken into custody by the operatives of
the National Bureau of Investigation, Benjamin Suyo, Norberto Senosa, Christian Torralba
and Isaias Wervas executed their "Joint Affidavit" (Exhibit "B") and pointed to and identified
the said Accused as some of the pirates.

xxx xxx xxx

Indeed, when they testified before this Court on their defense, the three (3) Accused
admitted to the Court that they, in fact, boarded the said vessel in the evening of March 2,
1991 and remained on board when the vessel sailed to its destination, which turned out to be
off the port of Singapore.

(pp. 106-112, Rollo.)

We also agree with the trial court's finding that accused-appellants' defense of denial is not
supported by any hard evidence but their bare testimony. Greater weight is given to the categorical
identification of the accused by the prosecution witnesses than to the accused's plain denial of
participation in the commission of the crime (People v. Baccay, 284 SCRA 296 [1998]). Instead,
accused-appellants Tulin, Loyola, and Infante, Jr. narrated a patently desperate tale that they were
hired by three complete strangers (allegedly Captain Edilberto Liboon, Second Mate Christian
Torralba, and their companion) while said accused-appellants were conversing with one another
along the seashore at Aplaya, Balibago, Calatagan, Batangas, to work on board the "M/T Tabangao"
which was then anchored off-shore. And readily, said accused-appellants agreed to work as cooks
and handymen for an indefinite period of time without even saying goodbye to their families, without
even knowing their destination or the details of their voyage, without the personal effects needed for
a long voyage at sea. Such evidence is incredible and clearly not in accord with human experience.
As pointed out by the trial court, it is incredible that Captain Liboon, Second Mate Torralba, and their
companion "had to leave the vessel at 9:30 o'clock in the evening and venture in a completely
unfamiliar place merely to recruit five (5) cooks or handymen (p. 113, Rollo)."

Anent accused-appellant Changco's defense of denial with the alibi that on May 14 and 17, he was
at his place of work and that on April 10, 1991, he was in his house in Bacoor, Cavite, sleeping,
suffice it to state that alibi is fundamentally and inherently a weak defense, much more so when
uncorroborated by other witnesses (People v. Adora, 275 SCRA 441 [1997]) considering that it is
easy to fabricate and concoct, and difficult to disprove. Accused-appellant must adduce clear and
convincing evidence that, at about midnight on April 10, 1991, it was physically impossible for him to
have been in Calatagan, Batangas. Changco not only failed to do this, he was likewise unable to
prove that he was in his place of work on the dates aforestated.

It is doctrinal that the trial court's evaluation of the credibility of a testimony is accorded the highest
respect, for trial courts have an untrammeled opportunity to observe directly the demeanor of
witnesses and, thus, to determine whether a certain witness is telling the truth (People v. Obello, 284
SCRA 79 [1998]).

We likewise uphold the trial court's finding of conspiracy. A conspiracy exists when two or more
persons come to an agreement concerning the commission of a felony and decide to commit it
(Article 8, Revised Penal Code). To be a conspirator, one need not participate in every detail of
execution; he need not even take part in every act or need not even know the exact part to be
performed by the others in the execution of the conspiracy. As noted by the trial court, there are
times when conspirators are assigned separate and different tasks which may appear unrelated to
one another, but in fact, constitute a whole and collective effort to achieve a common criminal
design.

We affirm the trial court's finding that Emilio Changco, accused-appellants Tulin, Loyola, and Infante,
Jr. and others, were the ones assigned to attack and seize the "M/T Tabangao" off Lubang, Mindoro,
while accused-appellant Cecilio Changco was to fetch the master and the members of the crew from
the shoreline of Calatagan, Batangas after the transfer, and bring them to Imus, Cavite, and to
provide the crew and the officers of the vessel with money for their fare and food provisions on their
way home. These acts had to be well-coordinated. Accused-appellant Cecilio Changco need not be
present at the time of the attack and seizure of "M/T Tabangao" since he performed his task in view
of an objective common to all other accused-appellants.

Of notable importance is the connection of accused-appellants to one another. Accused-appellant

Cecilio Changco is the younger brother of Emilio Changco (aka Captain Bobby/Captain Roberto
Castillo/Kevin Ocampo), owner of Phil-Asia Shipping Lines. Cecilio worked for his brother in said
corporation. Their residences are approximately six or seven kilometers away from each other. Their
families are close. Accused-appellant Tulin, on the other hand, has known Cecilio since their parents
were neighbors in Aplaya, Balibago, Calatagan, Batangas. Accused-appellant Loyola's wife is a
relative of the Changco brothers by affinity. Besides, Loyola and Emilio Changco had both been
accused in a seajacking case regarding "M/T Isla Luzon" and its cargo of steel coils and plates off
Cebu and Bohol in 1989. Emilio Changco (aka Kevin Ocampo) was convicted of the crime while
Loyola at that time remained at large.

As for accused-appellant Hiong, he ratiocinates that he can no longer be convicted of piracy in

Philippine waters as defined and penalized in Sections 2[d] and 3[a], respectively of Presidential
Decree No. 532 because Republic Act No. 7659 (effective January 1, 1994), which amended Article
122 of the Revised Penal Code, has impliedly superseded Presidential Decree No. 532. He reasons
out that Presidential Decree No. 532 has been rendered "superfluous or duplicitous" because both
Article 122 of the Revised Penal Code, as amended, and Presidential Decree No. 532 punish piracy
committed in Philippine waters. He maintains that in order to reconcile the two laws, the word "any
person" mentioned in Section 1 [d] of Presidential Decree No. 532 must be omitted such that
Presidential Decree No. 532 shall only apply to offenders who are members of the complement or to
passengers of the vessel, whereas Republic Act No. 7659 shall apply to offenders who are neither
members of the complement or passengers of the vessel, hence, excluding him from the coverage
of the law.

Article 122 of the Revised Penal Code, used to provide:

 ARTICLE 122. Piracy in general and mutiny on the high seas. — The penalty of reclusion
temporal shall be inflicted upon any person who, on the high seas, shall attack or seize a
vessel or, not being a member of its complement nor a passenger, shall seize the whole or
part of the cargo of said vessel, its equipment, or personal belongings of its complement or
passengers.

(Italics supplied.)

Article 122, as amended by Republic Act No. 7659 (January 1, 1994), reads:

ARTICLE 122. Piracy in general and mutiny on the high seas or in Philippine waters. — The
penalty of reclusion perpetua shall be inflicted upon any person who, on the high seas, or in
Philippine waters, shall attack or seize a vessel or, not being a member of its complement
nor a passenger, shall seize the whole or part of the cargo of said vessel, its equipment, or
personal belongings of its complement or passengers.

(Italics ours)

On the other hand, Section 2 of Presidential Decree No. 532 provides:

SECTION 2. Definition of Terms. — The following shall mean and be understood, as follows:

d. Piracy. — Any attack upon or seizure of any vessel or the taking away of the whole or part
thereof or its cargo, equipment, or the personal belongings of its complement or passengers,
irrespective of the value thereof, by means of violence against or intimidation of persons or
force upon things, committed by any person, including a passenger or member of the
complement of said vessel in Philippine waters, shall be considered as piracy. The offenders
shall be considered as pirates and punished as hereinafter provided (Italics supplied).

To summarize, Article 122 of the Revised Penal Code, before its amendment, provided that piracy
must be committed on the high seas by any person not a member of its complement nor a
passenger thereof. Upon its amendment by Republic Act No. 7659, the coverage of the pertinent
provision was widened to include offenses committed "in Philippine waters." On the other hand,
under Presidential Decree No. 532 (issued in 1974), the coverage of the law on piracy embraces any
person including "a passenger or member of the complement of said vessel in Philippine waters."
Hence, passenger or not, a member of the complement or not, any person is covered by the law.

Republic Act No. 7659 neither superseded nor amended the provisions on piracy under Presidential
Decree No. 532. There is no contradiction between the two laws. There is likewise no ambiguity and
hence, there is no need to construe or interpret the law. All the presidential decree did was to widen
the coverage of the law, in keeping with the intent to protect the citizenry as well as neighboring
states from crimes against the law of nations. As expressed in one of the "whereas" clauses of
Presidential Decree No. 532, piracy is "among the highest forms of lawlessness condemned by the
penal statutes of all countries." For this reason, piracy under the Article 122, as amended, and piracy
under Presidential Decree No. 532 exist harmoniously as separate laws.

As regards the contention that the trial court did not acquire jurisdiction over the person of accused-
appellant Hiong since the crime was committed outside Philippine waters, suffice it to state that
unquestionably, the attack on and seizure of "M/T Tabangao" (renamed "M/T Galilee" by the pirates)
and its cargo were committed in Philippine waters, although the captive vessel was later brought by
the pirates to Singapore where its cargo was off-loaded, transferred, and sold. And such transfer
was done under accused-appellant Hiong's direct supervision. Although Presidential Decree No. 532
requires that the attack and seizure of the vessel and its cargo be committed in Philippine waters,
the disposition by the pirates of the vessel and its cargo is still deemed part of the act of piracy,
hence, the same need not be committed in Philippine waters.

Moreover, piracy falls under Title One of Book Two of the Revised Penal Code. As such, it is an
exception to the rule on territoriality in criminal law. The same principle applies even if Hiong, in the
instant case, were charged, not with a violation of qualified piracy under the penal code but under a
special law, Presidential Decree No. 532 which penalizes piracy in Philippine waters. Verily,
Presidential Decree No. 532 should be applied with more force here since its purpose is precisely to
discourage and prevent piracy in Philippine waters (People v. Catantan, 278 SCRA 761 [1997]). It is
likewise, well-settled that regardless of the law penalizing the same, piracy is a reprehensible crime
against the whole world (People v. Lol-lo, 43 Phil. 19 [1922]).

However, does this constitute a violation of accused-appellant's constitutional right to be informed of

the nature and cause of the accusation against him on the ground that he was convicted as an
accomplice under Section 4 of Presidential Decree No. 532 even though he was charged as a
principal by direct participation under Section 2 of said law?

The trial court found that there was insufficiency of evidence showing:

(a) that accused-appellant Hiong directly participated in the attack and seizure of "M/T Tabangao"
and its cargo; (b) that he induced Emilio Changco and his group in the attack and seizure of "M/T
Tabangao" and its cargo; (c) and that his act was indispensable in the attack on and seizure of "M/T
Tabangao" and its cargo. Nevertheless, the trial court found that accused-appellant Hiong's
participation was indisputably one which aided or abetted Emilio Changco and his band of pirates in
the disposition of the stolen cargo under Section 4 of Presidential Decree No. 532 which provides:

SECTION 4. Aiding pirates or highway robbers/brigands or abetting piracy or highway

robbery brigandage. — Any person who knowingly and in any manner aids or protects
pirates or highway robbers/brigands, such as giving them information about the movement of
police or other peace officers of the government, or acquires or receives property taken by
such pirates or brigands or in any manner derives any benefit therefrom; or any person who
directly or indirectly abets the commission of piracy or highway robbery or brigandage, shall
be considered as an accomplice of the principal officers and be punished in accordance with
Rules prescribed by the Revised Penal Code.

It shall be presumed that any person who does any of the acts provided in this Section has
performed them knowingly, unless the contrary is proven.

The ruling of the trial court is within well-settled jurisprudence that if there is lack of complete
evidence of conspiracy, the liability is that of an accomplice and not as principal (People v. Tolentino,
40 SCRA 514 [1971]). Any doubt as to the participation of an individual in the commission of the
crime is always resolved in favor of lesser responsibility (People v. Corbes, 270 SCRA 465
[1997]; People vs. Elfano, Jr., 125 SCRA 792 [1983]; People v. Pastores, 40 SCRA 498 [1971]).

Emphasis must also be placed on the last paragraph of Section 4 of Presidential Decree No. 532
which presumes that any person who does any of the acts provided in said section has performed
them knowingly, unless the contrary is proven. In the case at bar, accused-appellant Hiong had
failed to overcome the legal presumption that he knowingly abetted or aided in the commission of
piracy, received property taken by such pirates and derived benefit therefrom.
The record discloses that accused-appellant Hiong aided the pirates in disposing of the stolen cargo
by personally directing its transfer from "M/T Galilee" to "M/T Navi Pride". He profited therefrom by
buying the hijacked cargo for Navi Marine Services, Pte., Ltd. (tsn, June 3, 1992, pp. 15-23). He
even tested the quality and verified the quantity of the petroleum products, connived with Navi
Marine Services personnel in falsifying the General Declarations and Crew List to ensure that the
illegal transfer went through, undetected by Singapore Port Authorities, and supplied, the pirates
with food, beer, and other provisions for their maintenance while in port (tsn, June 3, 1992, pp. 133-
134).

We believe that the falsification of the General Declaration (Arrival and Departure) and Crew List
was accomplished and utilized by accused-appellant Hiong and Navi Marine Services personnel in
the execution of their scheme to avert detection by Singapore Port Authorities. Hence, had accused-
appellant Hiong not falsified said entries, the Singapore Port Authorities could have easily
discovered the illegal activities that took place and this would have resulted in his arrest and
prosecution in Singapore. Moreover, the transfer of the stolen cargo from "M/T Galilee" to "Navi
Pride" could not have been effected.

We completely uphold the factual findings of the trial court showing in detail accused-appellant
Hiong's role in the disposition of the pirated goods summarized as follows: that on March 27, 1991,
Hiong with Captain Biddy Santos boarded the "Navi Pride," one of the vessels of the Navi Marine, to
rendezvous with the "M/T Galilee"; that the firm submitted the crew list of the vessel (Exhibit "8-
CSH", Record) to the port authorities, excluding the name of Hiong; that the "General Declaration"
(for departure) of the "Navi Pride" for its voyage off port of Singapore (Exhibits "HH" and "8-A CSH",
Record) falsely stated that the vessel was scheduled to depart at 2200 (10 o'clock in the evening),
that there were no passengers on board, and the purpose of the voyage was for "cargo operation"
and that the vessel was to unload and transfer 1,900 tons of cargo; that after the transfer of the fuel
from "M/T Galilee" with Emilio Changco a. k. a. Captain Bobby a. k. a. Roberto Castillo at the helm,
the surveyor prepared the "Quantity Certificate" (Exhibit "11-C CSH, Record) stating that the cargo
transferred to the "Navi Pride" was 2,406 gross cubic meters; that although Hiong was not the
Master of the vessel, he affixed his signature on the "Certificate" above the word "Master" (Exhibit
"11-C-2 CSH", Record); that he then paid P150,000.00 but did not require any receipt for the
amount; that Emilio Changco also did not issue one; and that in the requisite "General Declaration"
upon its arrival at Singapore on March 29, 1991, at 7 o'clock in the evening, (Exhibits "JJ" and "13-A
CSH", Record), it was made to falsely appear that the "Navi Pride" unloaded 1,700 tons of cargo on
the high seas during said voyage when in fact it acquired from the "M/T Galilee" 2,000 metric tons of
diesel oil. The second transfer transpired with the same irregularities as discussed above. It was
likewise supervised by accused-appellant Cheong from his end while Emilio Changco supervised the
transfer from his end.

Accused-appellant Hiong maintains that he was merely following the orders of his superiors and that
he has no knowledge of the illegality of the source of the cargo.

First and foremost, accused-appellant Hiong cannot deny knowledge of the source and nature of the
cargo since he himself received the same from "M/T Tabangao". Second, considering that he is a
highly educated mariner, he should have avoided any participation in the cargo transfer given the
very suspicious circumstances under which it was acquired. He failed to show a single piece of deed
or bill of sale or even a purchase order or any contract of sale for the purchase by the firm; he never
bothered to ask for and scrutinize the papers and documentation relative to the "M/T Galilee"; he did
not even verify the identity of Captain Robert Castillo whom he met for the first time nor did he check
the source of the cargo; he knew that the transfer took place 66 nautical miles off Singapore in the
dead of the night which a marine vessel of his firm did not ordinarily do; it was also the first time Navi
Marine transacted with Paul Gan involving a large sum of money without any receipt issued therefor;
he was not even aware if Paul Gan was a Singaporean national and thus safe to deal with. It should
also be noted that the value of the cargo was P40,426,793.87 or roughly more than
US$1,000,000.00 (computed at P30.00 to $1, the exchange rate at that time). Manifestly, the cargo
was sold for less than one-half of its value. Accused-appellant Hiong should have been aware of this
irregularity. Nobody in his right mind would go to far away Singapore, spend much time and money
for transportation — only to sell at the aforestated price if it were legitimate sale involved. This, in
addition to the act of falsifying records, clearly shows that accused-appellant Hiong was well aware
that the cargo that his firm was acquiring was purloined.

Lastly, it cannot be correctly said that accused-appellant was "merely following the orders of his
superiors." An individual is justified in performing an act in obedience to an order issued by a
superior if such order, is for some lawful purpose and that the means used by the subordinate to
carry out said order is lawful (Reyes, Revised Penal Code, Vol. 1, 1981 ed., p. 212). Notably, the
alleged order of Hiong's superior Chua Kim Leng Timothy, is a patent violation not only of Philippine,
but of international law. Such violation was committed on board a Philippine-operated vessel.
Moreover, the means used by Hiong in carrying out said order was equally unlawful. He misled port
and immigration authorities, falsified records, using a mere clerk, Frankie Loh, to consummate said
acts. During the trial, Hiong presented himself, and the trial court was convinced, that he was an
intelligent and articulate Port Captain. These circumstances show that he must have realized the
nature and the implications of the order of Chua Kim Leng Timothy. Thereafter, he could have
refused to follow orders to conclude the deal and to effect the transfer of the cargo to the "Navi
Pride." He did not do so, for which reason, he must now suffer the consequences of his actions.

WHEREFORE, finding the conviction of accused-appellants justified by the evidence on record, the
Court hereby AFFIRMS the judgment of the trial court in toto.

SO ORDERED.
 EN BANC

July 4, 2017

G.R. No. 231658

REPRESENTATIVES EDCEL C. LAGMAN, TOMASITO S. VILLARIN, GARY C. ALEJANO,

EMMANUEL A. BILLONES, AND TEDDY BRAWNER BAGUILAT, JR., Petitioners
vs.
HON. SALVADOR C. MEDIALDEA, EXECUTIVE SECRETARY; HON. DELFIN N. LORENZANA,
SECRETARY OF THE DEPARTMENT OF NATIONAL DEF'ENSE AND MARTIAL LAW
ADMINISTRATOR; AND GEN. EDUARDO ANO, CHIEF OF STAFF OF THE ARMED FORCES OF
THE PHILIPPINES AND MARTIAL LAW IMPLEMENTOR, Respondents

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

G.R. No. 231771

EUFEMIA CAMPOS CULLAMAT, VIRGILIO T. LIN CUNA, ATELIANA U. HIJOS, ROLAND A.

COBRADO, CARL ANTHONY D. OLALO, ROY JIM BALANGIDG, RENATO REYES, JR.,
CRISTIN A E. PALABAY, AMARYLLIS H. ENRIQUEZ, ACT TEACHERS' REPRESENTATIVE
ANTONIO L. TINIO, GABRIELA WOMEN'S PARTY REPRESENTATIVE
i\RLENED.BROSAS,KABATAAN PARTY-LIST REPRESENTATIVE SARAH JANE I. ELAGO,
MAE PANER, GABRIELA KRISTA DALENA, ANNA ISABELLE ESTEIN, MARK VINCENT D. LIM,
VENCER MARI CRISOSTOMO, JOVITA MONTES, Petitioners,
vs.
PRESIDENT RODRIGO DUTERTE, EXECUTIVE SECRETARY SALVADOR MEDIALDEA,
DEFENSE SECRETARY DELFIN LORENZANA, ARMED FORCES OF THE PHILIPPINES CHIEF
OF STAFF LT. GENERAL EDUARDO ANO, PHILIPPINE NATIONAL POLICE DIRECTOR-
GENERAL RONALD DELA ROSA, Respondents

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

G.R. No. 231774

NORKAYA S. MOHAMAD, SITTIE NUR DYHANNA S. MOHAMAD, NORAISAH S. SANI, ZAHRIA

P. MUTI-MAPANDI, Petitioners,
vs.
EXECUTIVE SECRETARY SALVADOR C. MEDIALDEA, DEPARTMENT OF NATIONAL
DEFENSE (DND) SECRETARY DELFIN N. LORENZANA, DEPARTMENT OF THE INTERIOR
AND LOCAL GOVERNMENT (DILG) SECRETARY (OFFICER-INCHARGE) CATALINO S. CUY,
ARMED FORCES OF THE PHILIPPINES (AFP) CHEF OF STAFF GEN. EDUARDO M. AÑO,
PHILIPPINE NATIONAL POLICE (PNP) CHIEF DIRECTOR GENERAL RONALD M. DELA ROSA,
NATIONAL SECURITY ADVISER HERMOGENES C. ESPERON, JR., Respondents.

DECISION

DEL CASTILLO, J.:

Effective May 23, 2017, and for a period not exceeding 60 days, President Rodrigo Roa Duterte
issued Proclamation No. 216 declaring a state of martial law and suspending the privilege of the writ
of habeas corpus in the whole of Mindanao.

The full text of Proclamation No. 216 reads as follows:

WHEREAS, Proclamation No. 55, series of 2016, was issued on 04 September 2016 declaring a
state of national emergency on account of lawless violence in Mindanao;

WHEREAS, Section 18, Article VII of the Constitution provides that 'x x x In case of invasion or
rebellion, when the public safety requires it, he (the President) may, for a period not exceeding sixty
days, suspend the privilege of the writ of habeas corpus or place the Philippines or any part thereof
under martial law x x x';

WHEREAS, Article 134 of the Revised Penal Code, as amended by R.A. No. 6968, provides that
'the crime of rebellion or insurrection is committed by rising and taking arms against the Government
for the purpose of removing from the allegiance to said Government or its laws, the territory of the
Republic of the Philippines or any part thereof, of any body of land, naval or other armed forces, or
depriving the Chief Executive or the Legislature, wholly or partially, of any of their powers or
prerogatives';

WHEREAS, part of the reasons for the issuance of Proclamation No. 55 was the series of violent
acts committed by the Maute terrorist group such as the attack on the military outpost in Butig,
Lanao del Sur in February 2016, killing and wounding several soldiers, and the mass jailbreak in
Marawi City in August 2016, freeing their arrested comrades and other detainees;

WHEREAS, today 23 May 2017, the same Maute terrorist group has taken over a hospital in Marawi
City, Lanao del Sur, established several checkpoints within the City, burned down certain
government and private facilities and inflicted casualties on the part of Government forces, and
started flying the flag of the Islamic State of Iraq and Syria (ISIS) in several areas, thereby openly
attempting to remove from the allegiance to the Philippine Government this part of Mindanao and
deprive the Chief Executive of his powers and prerogatives to enforce the laws of the land and to
maintain public order and safety in Mindanao, constituting the crime of rebellion; and

WHEREAS, this recent attack shows the capability of the Maute group and other rebel groups to
sow terror, and cause death and damage to property not only in Lanao del Sur but also in other parts
of Mindanao.

NOW, THEREFORE, I, RODRIGO ROA DUTERTE, President of the Republic of the Philippines, by
virtue of the powers vested in me by the Constitution and by law, do hereby proclaim as follows:

SECTION 1. There is hereby declared a state of martial law in the Mindanao group of islands for a
period not exceeding sixty days, effective as of the date hereof.
SECTION 2. The privilege of the writ of habeas corpus shall likewise be suspended in the aforesaid
area for the duration of the state of martial law.

DONE in the Russian Federation, this 23rd day of May in the year of our Lord, Two Thousand and
Seventeen.

Within the timeline set by Section 18, Article VII of the Constitution, the President submitted to
Congress on May 25, 2017, a written Report on the factual basis of Proclamation No. 216.

The Report pointed out that for decades, Mindanao has been plagued with rebellion and lawless
violence which only escalated and worsened with the passing of time.

Mindanao has been the hotbed of violent extremism and a brewing rebellion for decades. In more
recent years, we have witnessed the perpetration of numerous acts of violence challenging the
authority of the duly constituted authorities, i.e., the Zamboanga siege, the Davao bombing, the
Mamasapano carnage, and the bombings in Cotabato, Sultan Kudarat, Sulu, and Basilan, among
others. Two armed groups have figured prominently in all these, namely, the Abu Sayaff Group
(ASG) and the ISIS-backed Maute Group.1

The President went on to explain that on May 23, 2017, a government operation to capture the high-
ranking officers of the Abu Sayyaf Group (ASG) and the Maute Group was conducted. These
groups, which have been unleashing havoc in Mindanao, however, confronted the government
operation by intensifying their efforts at sowing violence aimed not only against the government
authorities and its facilities but likewise against civilians and their properties. As narrated in the
President's Report:

On 23 May 2017, a government operation to capture Isnilon Hapilon, a senior leader of the ASG,
and Maute Group operational leaders, Abdullah and Omarkhayam Maute, was confronted with
armed resistance which escalated into open hostility against the government. Through these groups'
armed siege and acts of violence directed towards civilians and government authorities, institutions
and establishments, they were able to take control of major social, economic, and political
foundations of Marawi City which led to its paralysis. This sudden taking of control was intended to
lay the groundwork for the eventual establishment of a DAESH wilayat or province in Mindanao.

Based on verified intelligence reports, the Maute Group, as of the end of 2016, consisted of around
two hundred sixty-three (263) members, fully armed and prepared to wage combat in furtherance of
its aims. The group chiefly operates in the province of Lanao del Sur, but has extensive networks
and linkages with foreign and local armed groups such as the Jemaah Islamiyah, Mujahidin
Indonesia Timur and the ASG. It adheres to the ideals being espoused by the DAESH, as evidenced
by, among others, its publication of a video footage declaring its allegiance to the DAESH. Reports
abound that foreign-based terrorist groups, the ISIS (Islamic State of Iraq and Syria) in particular, as
well as illegal drug money, provide financial and logistical support to the Maute Group.

The events commencing on 23 May 2017 put on public display the groups' clear intention to
establish an Islamic State and their capability to deprive the duly constituted authorities - the
President, foremost - of their powers and prerogatives.2

In particular, the President chronicled in his Report the events which took place on May 23, 2017 in
Marawi City which impelled him to declare a state of martial law and suspend the privilege of writ
of habeas corpus, to wit:
• At 1400H members of the Maute Group and ASG, along with their sympathizers, commenced their
attack on various facilities - government and privately owned - in the City of Marawi.

• At 1600H around fifty (50) armed criminals assaulted Marawi City Jail being manage by the Bureau
of Jail Management and Penology (BJMP).

• The Maute Group forcibly entered the jail facilities, destroyed its main gate, and assaulted on-duty
personnel. BJMP personnel were disarmed, tied, and/or locked inside the cells.

• The group took cellphones, personnel-issued firearms, and vehicles (i.e., two [2] prisoner vans and
private vehicles).

• By 1630H, the supply of power into Marawi City had been interrupted, and sporadic gunfights were
heard and felt everywhere. By evening, the power outage had spread citywide. (As of 24 May 2017,
Marawi City's electric supply was still cut off, plunging the city into total black-out.)

• From 1800H to 1900H, the same members of the Maute Group ambushed and burned the Marawi
Police Station. A patrol car of the Police Station was also taken.

• A member of the Provincial Drug Enforcement Unit was killed during the takeover of the Marawi
City Jail. The Maute Group facilitated the escape of at least sixty-eight (68) inmates of the City Jail.

• The BJMP directed its personnel at the Marawi City Jail and other affected areas to evacuate.

• By evening of 23 May 2017, at least three (3) bridges in Lanao del Sur, namely, Lilod, Bangulo,
and Sauiaran, fell under the control of these groups. They threatened to bomb the bridges to pre-
empt military reinforcement.

• As of 2222H, persons connected with the Maute Group had occupied several areas in Marawi City,
including Naga Street, Bangolo Street, Mapandi, and Camp Keithly, as well as the following
barangays: Basak Malutlot, Mapandi, Saduc, Lilod Maday, Bangon, Saber, Bubong, Marantao,
Caloocan, Banggolo, Barionaga, and Abubakar.

• These lawless armed groups had likewise set up road blockades and checkpoints at the Iligan City-
Marawi City junction.

• Later in the evening, the Maute Group burned Dansalan College Foundation, Cathedral of Maria
Auxiliadora, the nun's quarters in the church, and the Shia Masjid Moncado Colony. Hostages were
taken from the church.

• About five (5) faculty members of Dansalan College Foundation had been reportedly killed by the
lawless groups.

• Other educational institutions were also burned, namely, Senator Ninoy Aquino College Foundation
and the Marawi Central Elementary Pilot School.

• The Maute Group also attacked Amai Pakpak Hospital and hoisted the DAESH flag there, among
other several locations. As of 0600H of 24May 2017, members of the Maute Group were seen
guarding the entry gates of Amai Pakpak Hospital. They held hostage the employees of the Hospital
and took over the PhilHealth office located thereat.
• The groups likewise laid siege to another hospital, Filipino-Libyan Friendship Hospital, which they
later set ablaze.

• Lawless armed groups likewise ransacked the Landbank of the Philippines and commandeered
one of its armored vehicles.

• Latest information indicates that about seventy-five percent (75%) of Marawi City has been
infiltrated by lawless armed groups composed of members of the Maute Group and the ASG. As of
the time of this Report, eleven (11) members of the Armed Forces and the Philippine National Police
have been killed in action, while thirty-five (35) others have been seriously wounded.

• There are reports that these lawless armed groups are searching for Christian communities in
Marawi City to execute Christians. They are also preventing Maranaos from leaving their homes and
forcing young male Muslims to join their groups.

• Based on various verified intelligence reports from the AFP and the PNP, there exists a strategic
mass action of lawless armed groups in Marawi City, seizing public and private facilities, perpetrating
killings of government personnel, and committing armed uprising against and open defiance of the
government.3

The unfolding of these events, as well as the classified reports he received, led the President to
conclude that -

These activities constitute not simply a display of force, but a clear attempt to establish the groups'
seat of power in Marawi City for their planned establishment of a DAESH wilayat or province
covering the entire Mindanao.

The cutting of vital lines for transportation and power; the recruitment of young Muslims to further
expand their ranks and strengthen their force; the armed consolidation of their members throughout
Marawi City; the decimation of a segment of the city population who resist; and the brazen display of
DAESH flags constitute a clear, pronounced, and unmistakable intent to remove Marawi City, and
eventually the rest of Mindanao, from its allegiance to the Government.

There exists no doubt that lawless armed groups are attempting to deprive the President of his
power, authority, and prerogatives within Marawi City as a precedent to spreading their control over
the entire Mindanao, in an attempt to undermine his control over executive departments, bureaus,
and offices in said area; defeat his mandate to ensure that all laws are faithfully executed; and
remove his supervisory powers over local govemments.4

According to the Report, the lawless activities of the ASG, Maute Group, and other criminals,
brought about undue constraints and difficulties to the military and government personnel,
particularly in the performance of their duties and functions, and untold hardships to the
civilians, viz.:

Law enforcement and other government agencies now face pronounced difficulty sending their
reports to the Chief Executive due to the city-wide power outages. Personnel from the BJMP have
been prevented from performing their functions. Through the attack and occupation of several
hospitals, medical services in Marawi City have been adversely affected. The bridge and road
blockades set up by the groups effectively deprive the government of its ability to deliver basic
services to its citizens. Troop reinforcements have been hampered, preventing the government from
restoring peace and order in the area. Movement by both civilians and government personnel to and
from the city is likewise hindered.
The taking up of arms by lawless armed groups in the area, with support being provided by foreign-
based terrorists and illegal drug money, and their blatant acts of defiance which embolden other
armed groups in Mindanao, have resulted in the deterioration of public order and safety in Marawi
City; they have likewise compromised the security of the entire Island of Mindanao. 5

The Report highlighted the strategic location of Marawi City and the crucial and significant role it
plays in Mindanao, and the Philippines as a whole. In addition, the Report pointed out the possible
tragic repercussions once Marawi City falls under the control of the lawless groups.

The groups' occupation of Marawi City fulfills a strategic objective because of its terrain and the easy
access it provides to other parts of Mindanao. Lawless armed groups have historically used
provinces adjoining Marawi City as escape routes, supply lines, and backdoor passages.

Considering the network and alliance-building activities among terrorist groups, local criminals, and
lawless armed men, the siege of Marawi City is a vital cog in attaining their long-standing goal:
absolute control over the entirety of Mindanao. These circumstances demand swift and decisive
action to ensure the safety and security of the Filipino people and preserve our national integrity. 6

The President ended his Report in this wise:

While the government is presently conducting legitimate operations to address the on-going
rebellion, if not the seeds of invasion, public safety necessitates the continued implementation of
martial law and the suspension of the privilege of the writ of habeas corpus in the whole of Mindanao
until such time that the rebellion is completely quelled. 7

In addition to the Report, representatives from the Executive Department, the military and police
authorities conducted briefings with the Senate and the House of Representatives relative to the
declaration of martial law.

After the submission of the Report and the briefings, the Senate issued P.S. Resolution No.
3888 expressing full support to the martial law proclamation and finding Proclamation No. 216 "to be
satisfactory, constitutional and in accordance with the law". In the same Resolution, the Senate
declared that it found "no compelling reason to revoke the same". The Senate thus resolved as
follows:

NOW, THEREFORE, BE IT RESOLVED, as it is hereby resolved, by way of the sense of the

Senate, that the Senate finds the issuance of Proclamation No. 216 to be satisfactory, constitutional
and in accordance with the law. The Senate hereby supports fully Proclamation No. 216 and finds no
compelling reason to revoke the sarne. 9

The Senate's counterpart in the lower house shared the same sentiments. The House of
Representatives likewise issued House Resolution No. 1050 10 "EXPRESSING THE FULL SUPPORT
OF THE HOUSE OF REPRESENTATIVES TO PRESIDENT RODRIGO DUTERTE AS IT FINDS
NO REASON TO REVOKE PROCLAMATION NO. 216, ENTITLED 'DECLARING A STATE OF
MARTIAL LAW AND SUSPENDING THE PRIVILEGE OF THE WRIT OF HABEAS CORPUS IN
THE WHOLE OF MINDANAO"'.

The Petitions

A) G.R. No. 231658 (Lagman Petition)

On June 5, 2017, Representatives Edcel C. Lagman, Tomasito s. Villarin, Gary C. Alejano,
Emmanuel A. Billones, and Teddy Brawner Baguilat, Jr. filed a Petition11 Under the Third Paragraph
of Section 18 of Article VII of the 1987 Constitution.

First, the Lagman Petition claims that the declaration of martial law has no sufficient factual basis
because there is no rebellion or invasion in Marawi City or in any part of Mindanao. It argues that
acts of terrorism in Mindanao do not constitute rebellion12 since there is no proof that its purpose is to
remove Mindanao or any part thereof from allegiance to the Philippines, its laws, or its territory. 13 It
labels the flying of ISIS flag by the Maute Group in Marawi City and other outlying areas as mere
propaganda114 and not an open attempt to remove such areas from the allegiance to the Philippine
Government and deprive the Chief Executive of the assertion and exercise of his powers and
prerogatives therein. It contends that the Maute Group is a mere private army, citing as basis the
alleged interview of Vera Files with Joseph Franco wherein the latter allegedly mentioned that the
Maute Group is more of a "clan's private militia latching into the IS brand theatrically to inflate
perceived capability".15 The Lagman Petition insists that during the briefing, representatives of the
military and defense authorities did not categorically admit nor deny the presence of an ISIS threat in
the country but that they merely gave an evasive answer 16 that "there is ISIS in the Philippines". 17 The
Lagman Petition also avers that Lt. Gen. Salvador Mison, Jr. himself admitted that the current armed
conflict in Marawi City was precipitated or initiated by the government in its bid to capture
Hapilon.18 Based on said statement, it concludes that the objective of the Maute Group's armed
resistance was merely to shield Hapilon and the Maute brothers from the government forces, and
not to lay siege on Marawi City and remove its allegiance to the Philippine Republic. 19 It then posits
that if at all, there is only a threat of rebellion in Marawi City which is akin to "imminent danger" of
rebellion, which is no longer a valid ground for the declaration of martial law. 20

Second, the Lagman Petition claims that the declaration of martial law has no sufficient factual basis
because the President's Report containef "false, inaccurate, contrived and hyperbolic accounts". 21

It labels as false the claim in the President's Report that the Maute Group attacked Amai Pakpak
Medical Center. Citing online reports on the interview of Dr. Amer Saber (Dr. Saber), the hospital's
Chief, the Lagman Petition insists that the Maute Group merely brought an injured member to the
hospital for treatment but did not overrun the hospital or harass the hospital personnel. 22 The
Lagman Petition also refutes the claim in the President's Report that a branch of the Landbank of the
Philippines was ransacked and its armored vehicle commandeered. It alleges that the bank
employees themselves clarified that the bank was not ransacked while the armored vehicle was
owned by a third party and was empty at the time it was commandeered. 23 It also labels as false the
report on the burning of the Senator Ninoy Aquino College Foundation and the Marawi Central
Elementary Pilot School. It avers that the Senator Ninoy Aquino College Foundation is intact as of
May 24, 2017 and that according to Asst. Superintendent Ana Alonto, the Marawi Central
Elementary Pilot School was not burned by the terrorists. 24 Lastly, it points out as false the report on
the beheading of the police chief of Malabang, Lanao del Sur, and the occupation of the Marawi City
Hall and part of the Mindanao State University.25

Third, the Lagman Petition claims that the declaration of martial law has no sufficient factual basis
since the President's Report mistakenly included the attack on the military outpost in Butig, Lanao
del Sur in February 2016, the mass jail break in Marawi City in August 2016, the Zamboanga siege,
the Davao market bombing, the Mamasapano carnage and other bombing incidents in Cotabato,
Sultan Kudarat, and Basilan, as additional factual bases for the proclamation of martial law. It
contends that these events either took place long before the conflict in Marawi City began, had long
been resolved, or with the culprits having already been arrested. 26
Fourth, the Lagman Petition claims that the declaration of martial law has no sufficient factual basis
considering that the President acted alone and did not consult the military establishment or any
ranking official27 before making the proclamation.

Finally, the Lagman Petition claims that the President's proclamation of martial law lacks sufficient
factual basis owing to the fact that during the presentation before the Committee of the Whole of the
House of Representatives, it was shown that the military was even successful in pre-empting the
ASG and the Maute Group's plan to take over Marawi City and other parts of Mindanao; there was
absence of any hostile plan by the Moro Islamic Liberation Front; and the number of foreign fighters
allied with ISIS was "undetermined"28 which indicates that there are only a meager number of foreign
fighters who can lend support to the Maute Group.29

Based on the foregoing argumentation, the Lagman Petition asks the Court to: (1)"exercise its
specific and special jurisdiction to review the sufficiency of the factual basis of Proclamation No.
216"; and (2) render "a Decision voiding and nullifying Proclamation No. 216" for lack of sufficient
factual basis.30

In a Resolution31 dated June 6, 2017, the Court required respondents to comment on the Lagman
Petition and set the case for oral argument on June 13, 14, and 15, 2017.

On June 9, 2017, two other similar petitions docketed as G.R. Nos. 231771 and 231774 were filed
and eventually consolidated with G.R. No. 231658. 32

B) G.R. No. 231771 (Cullamat Petition)

The Cullamat Petition, "anchored on Section 18, Article VII"33 of the Constitution, likewise seeks the
nullification of Proclamation No. 216 for being unconstitutional because it lacks sufficient factual
basis that there is rebellion in Mindanao and that public safety warrants its declaration. 34

In particular, it avers that the supposed rebellion described in Proclamation No. 216 relates to events
happening in Marawi City only an not in the entire region of Mindanao. It concludes that
Proclamation No 216 "failed to show any factual basis for the imposition of martial law in the entire
Mindanao,"35 "failed to allege any act of rebellion outside Marawi City, much less x x x allege that
public safety requires the imposition o martial law in the whole of Mindanao".36

The Cullamat Petition claims that the alleged "capability of the Maute Group and other rebel groups
to sow terror and cause death and damage to property" 37 does not rise to the level of rebellion
sufficient to declare martial law in the whole of Mindanao.38 It also posits that there is no lawless
violence in other parts of Mindanao similar to that in Marawi City. 39

Moreover, the Cullamat Petition assails the inclusion of the phrase "other rebel groups" in the last
Whereas Clause of Proclamation No. 216 for being vague as it failed to identify these rebel groups
and specify the acts of rebellion that they were supposedly waging. 40

In addition, the Cullamat Petition cites alleged inaccuracies, exaggerations, and falsities in the
Report of the President to Congress, particularly the attack at the Amai Pakpak Hospital, the
ambush and burning of the Marawi Police Station, the killing of five teachers of Dansalan College
Foundation, and the attacks on various government facilities.41

In fine, the Cullamat Petition prays for the Court to declare Proclamation No. 216 as unconstitutional
or in the alternative, should the Court find justification for the declaration of martial law and
suspension of the privilege of the writ of habeas corpus in Marawi City, to declare the same as
unconstitutional insofar as its inclusion of the other parts of Mindanao. 42

C) G.R. No. 231774 (Mohamad Petition)

The Mohamad Petition, denominated as a "Petition for Review of the Sufficiency of [the] Factual
Basis of [the] Declaration of Martial Law and [the] Suspension of the Privilege of the Writ of Habeas
Corpus,"43 labels itself as "a special proceeding"44 or an "appropriate proceeding filed by any
citizen"45 authorized under Section 18, Article VII of the Constitution.

The Mohamad Petition posits that martial law is a measure of last resort 46 and should be invoked by
the President only after exhaustion of less severe remedies.47 It contends that the extraordinary
powers of the President should be dispensed sequentially, i.e., first, the power to call out the armed
forces; second, the power to suspend the privilege of the writ of habeas corpus; and finally, the
power to declare martial law.48 It maintains that the President has no discretion to choose which
extraordinary power to use; moreover, his choice must be dictated only by, and commensurate to,
the exigencies of the situation.49

According to the Mohamad Petition, the factual situation in Marawi is not so grave as to require the
imposition of martial law.50 It asserts that the Marawi incidents "do not equate to the existence of a
public necessity brought about by an actual rebellion, which would compel the imposition of martial
law or the suspension of the privilege of the writ of habeas corpus".51 It proposes that "[m]artial law
can only be justified if the rebellion or invasion has reached such gravity that [its] imposition x x x is
compelled by the needs of public safety"52 which, it believes, is not yet present in Mindanao.

Moreover, it alleges that the statements contained in the President's Report to the Congress, to wit:
that the Maute Group intended to establish an Islamic State; that they have the capability to deprive
the duly constituted authorities of their powers and prerogatives; and that the Marawi armed
hostilities is merely a prelude to a grander plan of taking over the whole of Mindanao, are
conclusions bereft of substantiation. 53

The Mohamad Petition posits that immediately after the declaration of martial law, and without
waiting for a congressional action, a suit may already be brought before the Court to assail the
sufficiency of the factual basis of Proclamation No. 216.

Finally, in invoking this Court's power to review the sufficiency ofthe factual basis for the declaration
of martial law and the suspension of the privilege of the writ of habeas corpus, the Mohamad Petition
insists that the Court may "look into the wisdom of the [President's] actions, [and] not just the
presence of arbitrariness".54 Further, it asserts that since it is making a negative assertion, then the
burden to prove the sufficiency of the factual basis is shifted to and lies on the respondents. 55 It thus
asks the Court "to compel the [r]espondents to divulge relevant information" 56 in order for it to review
the sufficiency of the factual basis.

In closing, the Mohamad Petition prays for the Court to exercise its power to review, "compel
respondents to present proof on the factual basis [of] the declaration of martial law and the
suspension of the privilege of the writ of habeas corpus in Mindanao"57 and declare as
unconstitutional Proclamation No. 216 for lack of sufficient factual basis.

The Consolidated Comment

The respondents' Consolidated Comment58 was filed on June 12, 2017, as required by the Court.
Noting that the same coincided with the celebration of the 119th anniversary of the independence of
this Republic, the Office of the Solicitor General (OSG) felt that "defending the constitutionality of
Proclamation No. 216" should serve as "a rallying call for every Filipino to unite behind one true flag
and defend it against all threats from within and outside our shores". 59

The OSG acknowledges that Section 18, Article VII of the Constitution vests the Court with the
authority or power to review the sufficiency of the factual basis of the declaration of martial law. 60 The
OSG, however, posits that although Section 18, Article VII lays the basis for the exercise of such
authority or power, the same constitutional provision failed to specify the vehicle, mode or remedy
through which the "appropriate proceeding" mentioned therein may be resorted to. The OSG
suggests that the "appropriate proceeding" referred to in Section 18, Article VII may be availed of
using the vehicle, mode or remedy of a certiorari petition, either under Section 1 or 5, of Article
VIII.61 Corollarily, the OSG maintains that the review power is not mandatory, but discretionary only,
on the part of the Court. 62 The Court has the discretion not to give due course to the petition. 63

Prescinding from the foregoing, the OSG contends that the sufficiency of the factual basis of
Proclamation No. 216 should be reviewed by the Court "under the lens of grave abuse of
discretion"64 and not the yardstick of correctness of the facts.65 Arbitrariness, not correctness, should
be the standard in reviewing the sufficiency of factual basis.

The OSG maintains that the burden lies not with the respondents but with the petitioners to prove
that Proclamation No. 216 is bereft of factual basis. It thus takes issue with petitioners' attempt to
1âwphi1

shift the burden of proof when they asked the Court "to compel [the] respondents to present proof on
the factual basis"66 of Proclamation No. 216. For the OSG, "he who alleges must prove" 67 and that
governmental actions are presumed to be valid and constitutional. 68

Likewise, the OSG posits that the sufficiency of the factual basis must be assessed from the
trajectory or point of view of the President and base on the facts available to him at the time the
decision was made.69 It argues that the sufficiency of the factual basis should be examined not based
on the facts discovered after the President had made his decision to declare martial law because to
do so would subject the exercise of the President's discretion to an impossible standard.70 It
reiterates that the President's decision should be guided only by the information and data available
to him at the time he made the determination.71 The OSG thus asserts that facts that were
established after the declaration of martial law should not be considered in the review of the
sufficiency of the factual basis of the proclamation of martial law. The OSG suggests that the
assessment of after-proclamation facts lies with the President and Congress for the purpose of
determining the propriety of revoking or extending the martial law. The OSG fears that if the Court
considers after-proclamation-facts in its review of the sufficiency of the factual basis for the
proclamation, it would in effect usurp the powers of the Congress to determine whether martial law
should be revoked or extended.72

It is also the assertion of the OSG that the President could validly rely on intelligence reports coming
from the Armed Forces of the Philippines;73 and that he could not be expected to personally
determine the veracity of thecontents of the reports.74 Also, since the power to impose martial law is
vested solely on the President as Commander-in-Chief, the lack of recommendation from the
Defense Secretary, or any official for that matter, will not nullify the said declaration, or affect its
validity, or compromise the sufficiency of the factual basis.

Moreover, the OSG opines that the petitioners miserably failed to validly refute the facts cited by the
President in Proclamation No. 216 and in his Report to the Congress by merely citing news reports
that supposedly contradict the facts asserted therein or by criticizing in piecemeal the happenings in
Marawi. For the OSG, the said news articles are "hearsay evidence, twice removed," 75 and thus
inadmissible and without probative value, and could not overcome the "legal presumption bestowed
on governmental acts".76

Finally, the OSG points out that it has no duty or burden to prove that Proclamation No. 216 has
sufficient factual basis. It maintains that the burden rests with the petitioners. However, the OSG still
endeavors to lay out the factual basis relied upon by the President "if only to remove any doubt as to
the constitutionality of Proclamation No. 216". 77

The facts laid out by the OSG in its Consolidated Comment will be discussed in detail in the Court's
Ruling.

ISSUES

The issues as contained in the revised Advisory78 are as follows:

1. Whether or not the petitions docketed as G.R. Nos. 231658, 231771, and 231774 are the
"appropriate proceeding" covered by Paragraph 3, Section 18, Article VII of the Constitution
sufficient to invoke the mode of review required of this Court when a declaration of martial law or the
suspension of the privilege of the writ of habeas corpus is promulgated;

2. Whether or not the President in declaring martial law and suspending the privilege of the writ
of habeas corpus:

a. is required to be factually correct or only not arbitrary in his appreciation of facts;

b. is required to obtain the favorable recommendation thereon of the Secretary of National Defense;

c. is required to take into account only the situation at the time of the proclamation, even if
subsequent events prove the situation to have not been accurately reported;

3. Whether or not the power of this Court to review the sufficiency of the factual basis [of] the
proclamation of martial law or the suspension of the privilege of the writ of habeas corpus is
independent of the actual actions that have been taken by Congress jointly or separately;

4. Whether or not there were sufficient factual [basis] for the proclamation of martial law or the
suspension of the privilege of the writ of habeas corpus;

a. What are the parameters for review?

b. Who has the burden of proof?

c. What is the threshold of evidence?

5. Whether the exercise of the power of judicial review by this Court involves the calibration of
graduated powers granted the President as Commander-in-Chief, namely calling out powers,
suspension of the privilege of the writ of habeas corpus, and declaration of martial law;

6. Whether or not Proclamation No. 216 of 23 May 2017 may be considered, vague and thus null
and void:
a. with its inclusion of "other rebel groups;" or

b. since it has no guidelines specifying its actual operational parameters within the entire Mindanao
region;

7. Whether or not the armed hostilities mentioned in Proclamation No. 216 and in the Report of the
President to Congress are sufficient [bases]:

a. for the existence of actual rebellion; or

b. for a declaration of martial law or the suspension of the privilege of the writ of habeas corpus in
the entire Mindanao 1 region;

8. Whether or not terrorism or acts attributable to terrorism are equivalent to actual rebellion and the
requirements of public safety sufficient to declare martial law or suspend the privilege of the writ
of habeas corpus; and

9. Whether or not nullifying Proclamation No. 216 of 23 May 2017 will:

a. have the effect of recalling Proclamation No. 55 s. 2016; or

b. also nullify the acts of the President in calling out the armed forces to quell lawless violence in
Marawi and other parts of the Mindanao region.

After the oral argument, the parties submitted their respective memoranda and supplemental
memoranda.

OUR RULING

I. Locus standi of petitioners.

One of the requisites for judicial review is locus standi, i.e., "the constitutional question is brought
before [the Court] by a party having the requisite 'standing' to challenge it."79 As a general rule, the
challenger must have "a personal and substantial interest in the case such that he has sustained, or
will sustain, direct injury as a result of its enforcement." 80 Over the years, there has been a trend
towards relaxation of the rule on legal standing, a prime example of which is found in Section 18 of
Article VII which provides that any citizen may file the appropriate proceeding to assail the
sufficiency of the factual basis of the declaration of martial law or the suspension of the privilege of
the writ of habeas corpus. "[T]he only requisite for standing to challenge the validity of the
suspension is that the challenger be a citizen. He need not even be a taxpayer." 81

Petitioners in the Cullamat Petition claim to be "suing in their capacities as citizens of the
Republic;"82 similarly, petitioners in the Mohamad Petition all claim to be "Filipino citizens, all women,
all of legal [age], and residents of Marawi City". 83 In the Lagman Petition, however, petitioners therein
did not categorically mention that they are suing's citizens but merely referred to themselves as duly
elected Representatives.84 That they are suing in their official capacities as Members of Congress
couLd have elicited a vigorous discussion considering the issuance by the House of Representatives
of House Resolution No. 1050 expressing full support to President Duterte and finding no reason to
revoke Proclamation No. 216. By such resolution, the House of Representatives is declaring that it
finds no reason to review the sufficiency of the factual basis of the martial law declaration, which is in
direct contrast to the views and arguments being espoused by the petitioners in the Lagman Petition.
Considering, however, the trend towards relaxation of the rules on legal standing, as well
as the transcendental issues involved in the present Petitions, the Court will exercise judicial self-
restraint85 and will not venture into this matter. After all, "the Court is not entirely without discretion to
accept a suit which does not satisfy the requirements of a [bona fide] case or of standing.
Considerations paramount to [the requirement of legal standing] could compel assumption of
jurisdiction."86 In any case, the Court can take judicial cognizance of the fact that petitioners in the
Lagman Petition are all citizens of the Philippines since Philippine citizenship is a requirement for
them to be elected as representatives. We will therefore consider them as suing in their own behalf
as citizens of this country. Besides, respondents did not question petitioners' legal standing.

II. Whether or not the petitions are the

"appropriate proceeding" covered by paragraph
3, Section 18, Article VII of the Constitution
sufficient to invoke the mode of review required
by the Court.

All three petitions beseech the cognizance of this Court based on the third paragraph of Section 18,
Article VII (Executive Department) of the 1987 Constitution which provides:

The Supreme Court may review, in an appropriate proceeding filed by any citizen, the sufficiency of
the factual basis of the proclamation of martial law or the suspension of the privilege of the writ or
the extension thereof, and must promulgate its decision thereon within thirty days from its filing.

During the oral argument, the petitioners theorized that the jurisdiction of this Court under the third
paragraph of Section 18, Article VII is sui generis.87 It is a special and specific jurisdiction of the
Supreme Court different from those enumerated in Sections 1 and 5 of Article VIII. 88

The Court agrees.

a) Jurisdiction must be
specifically conferred by the
Constitution or by law.

It is settled that jurisdiction over the subject matter is conferred only by the Constitution or by the
law.89 Unless jurisdiction has been specifically conferred by the Constitution or by some legislative
act, no body or tribunal has the power to act or pass upon a matter brought before it for resolution. It
is likewise settled that in the absence of a clear legislative intent, jurisdiction cannot be implied from
the language of the Constitution or a statute. 90 It must appear clearly from the law or it will not be held
to exist.91

A plain reading of the afore-quoted Section 18, Article VII reveals that it specifically grants authority
to the Court to determine the sufficiency of the factual basis of the proclamation of martial law or
suspension of the privilege of the writ of habeas corpus.

b) "In an appropriate
proceeding" does not refer to a
petition for certiorari filed under
Section 1 or 5 of Article VIII

It could not have been the intention of the framers of the Constitution that the phrase "in an
appropriate proceeding" would refer to a Petition for Certiorari pursuant to Section 1 or Section 5 of
Article VIII. The standard of review in a petition for certiorari is whether the respondent has
committed any grave abuse of discretion amounting to lack or excess of jurisdiction in the
performance of his or her functions. Thus, it is not the proper tool to review the sufficiency of the
factual basis of the proclamationor suspension. It must be emphasized that under Section 18, Article
VII, the Court is tasked to review the sufficiency of the factual basis of the President's exercise of
emergency powers. Put differently, if this Court applies the standard of review used in a petition
for certiorari, the same would emasculate its constitutional task under Section 18, Article VII.

c) Purpose/significance of
Section 18, Article VII is to
constitutionalize the pre-Marcos
martial law ruling in In the Matter of
the Petition for Habeas Corpus of Lansang.

The third paragraph of Section 18, Article VII was inserted by the framers of the 1987 Constitution to
constitutionalize the pre-Marcos martial law ruling of this Court in In the Matter of the Petition for
Habeas Corpus of Lansang,92 to wit: that the factual basis of the declaration of martial law or the
suspension of the privilege of the writ of habeas corpus is not a political question but precisely within
the ambit of judicial review.

"In determining the meaning, intent, and purpose of a law or constitutional provision, the history of
the times out of which it grew and to which it may be rationally supposed to bear some direct
relationship, the evils intended to be remedied, and the good to be accomplished are proper subjects
of inquiry."93 Fr. Joaquin G. Bernas, S.J. (Fr. Bernas), a member of the Constitutional Commission
that drafted the 1987 Constitution, explained:

The Commander-in-Chief provisions of the 1935 Constitution had enabled President Ferdinand
Marcos to impose authoritarian rule on the Philippines from 1972 to 1986. Supreme Court decisions
during that period upholding the actions taken by Mr. Marcos made authoritarian rule part of
Philippine constitutional jurisprudence. The members of the Constitutional Commission, very much
aware of these facts, went about reformulating the Commander-in-Chief powers with a view to
dismantling what had been constructed during the authoritarian years. The new formula included
revised grounds for the activation of emergency powers, the manner of activating them, the scope of
the powers, and review of presidential action.94 (Emphasis supplied)

To recall, the Court held in the 1951 case of Montenegro v. Castaneda95 that the authority to decide
whether there is a state of rebellion requiring the suspension of the privilege of the writ of habeas
corpus is lodged with the President and his decision thereon is final and conclusive upon the courts.
This ruling was reversed in the 1971 case of Lansang where it was held that the factual basis of the
declaration of martial law and the suspension of the privilege of the writ of habeas corpus is not a
political question and is within the ambit of judicial review. 96 However, in 1983, or after the declaration
of martial law by former President Ferdinand E. Marcos, the Court, in Garcia-Padilla v.
Enrile,97 abandoned the ruling in Lansang and reverted to Montenegro. According to the Supreme
Court, the constitutional power of the President to suspend the privilege of the writ of habeas
corpus is not subject to judicial inquiry.98

Thus, by inserting Section 18 in Article VII which allows judicial review of the declaration of martial
law and suspension of the privilege of the writ of habeas corpus, the framers of the 1987
Constitution in effect constitutionalized and reverted to the Lansang doctrine.

d) Purpose of Section 18,

Article VII is to provide additional
safeguard against possible abuse by
the President on the exercise of the
extraordinary powers.

Section 18, Article VII is meant to provide additional safeguard against possible abuse by the
President in the exercise of his power to declare martial law or suspend the privilege of the writ
of habeas corpus. Reeling from the aftermath of the Marcos martial law, the framers of the
Constitution deemed it wise to insert the now third paragraph of Section 18 of Article VII. 99 This is
clear from the records of the Constitutional Commission when its members were deliberating on
whether the President could proclaim martial law even without the concurrence of Congress. Thus:

MR. SUAREZ. Thank you, Madam President.

The Commissioner is proposing a very substantial amendment because this means that he is
vesting exclusively unto the President the right to determine the factors which may lead to the
declaration of martial law and the suspension of the writ of habeas corpus. I suppose he has strong
and compelling reasons in seeking to delete this particular, phrase. May we be informed of his good
and substantial reasons?

MR. MONSOD. This situation arises in cases of invasion or rebellion. And in previous interpellations
regarding this phrase, even during the discussions on the Bill of Rights, as I understand it, the
interpretation is a situation of actual invasion or rebellion. In these situations, the President has to
act quickly. Secondly, this declaration has a time fuse. It is only good for a maximum of 60 days. At
the end of 60 days, it automatically terminates. Thirdly, the right of the judiciary to inquire into the
sufficiency of the factual basis of the proclamation always exists, even during those first 60 days.

MR. SUAREZ. Given our traumatic experience during the past administration, if we give exclusive
right to the President to determine these factors, especially the existence of an invasion or rebellion
and the second factor of determining whether the public safety requires it or not, may I call the
attention of the Gentleman to what happened to us during the past administration. Proclamation No.
1081 was issued by Ferdinand E. Marcos in his capacity as President of the Philippines by virtue of
the powers vested upon him purportedly under Article VII, Section 10 (2) of the Constitution, wherein
he made this predicate under the "Whereas" provision:

Whereas, the rebellion and armed action undertaken by these lawless elements of the Communists
and other armed aggrupations organized to overthrow the Republic of the Philippines by armed
violence and force have assumed the magnitude of an actual state of war against our people and the
Republic of the Philippines.

And may I also call the attention of the Gentleman to General Order No. 3, also promulgated by
Ferdinand E. Marcos, in his capacity as Commander-in-Chief of all the Armed Forces of the
Philippines and pursuant to Proclamation No. 1081 dated September 21, 1972 wherein he said,
among other things:

Whereas, martial law having been declared because of wanton destruction of lives and properties,
widespread lawlessness and anarchy and chaos and disorder now prevailing throughout the country,
which condition has been brought about by groups of men who are actively engaged in a criminal
conspiracy to seize political and state power in the Philippines in order to take over the government
by force and violence, the extent of which has now assumed the proportion of an actual war against
our people and the legitimate government ...
And he gave all reasons in order to suspend the privilege of the writ of habeas corpus and declare
martial law in our country without justifiable reason. Would the Gentleman still insist on the deletion
of the phrase 'and, with the concurrence of at least a majority of all the members of the Congress'?

MR. MONSOD. Yes, Madam President, in the case of Mr.Marcos, he is undoubtedly an aberration
in our history and national consciousness. But given the possibility that there would be another
Marcos, our Constitution now has sufficient safeguards. As I said, it is not really true, as the
Gentleman has mentioned, that there is an exclusive right to determine the factual basis because
the paragraph beginning on line 9 precisely tells us that the Supreme Court may review, in an
appropriate proceeding filed by any citizen, the sufficiency of the factual basis of the proclamation of
martial law or the suspension of the privilege of the writ or the extension thereof and must
promulgate its decision on the same within 30 days from its filing.

I believe that there are enough safeguards. The Constitution is supposed to balance the interests of
the country. And here we are trying to balance the public interest in case of invasion or rebellion as
against the rights of citizens. And I am saying that there are enough safeguards, unlike in 1972 when
Mr. Marcos was able to do all those things mentioned. 100

To give more teeth to this additional safeguard, the framers of the 1987 Constitution not only placed
the President's proclamation of martial law or suspension of the privilege of the writ of habeas
corpus within the ambit of judicial review, it also relaxed the rule on standing by allowing any citizen
to question before this Court the sufficiency of the factual basis of such proclamation or suspension.
Moreover, the third paragraph of Section 18, Article VII veritably conferred upon any citizen a
demandable right to challenge the sufficiency of the factual basis of said proclamation or
suspension. It further designated this Court as the reviewing tribunal to examine, in an appropriate
proceeding, the sufficiency of the factual basis and to render its decision thereon within a limited
period of 30 days from date of filing.

e) Purpose of Section 18,

Article VII is to curtail the extent of
the powers of the President.

The most important objective, however, of Section 18, Article VII is the curtailment of the extent of
the powers of the Commander-in-Chief. This is the primary reason why the provision was not placed
in Article VIII or the Judicial Department but remained under Article VII or the Executive Department.

During the closing session of the Constitutional Commission's deliberations, President Cecilia Muñoz
Palma expressed her sentiments on the 1987 Constitution. She said:

The executive power is vested in the President of the Philippines elected by the people for a six-year
term with no reelection for the duration of his/her life. While traditional powers inherent in the office
of the President are granted, nonetheless for the first time, there are specific provisions which curtail
the extent of such powers. Most significant is the power of the Chief Executive to suspend the
privilege of the writ of habeas corpus or proclaim martial law.

The flagrant abuse of that power of the Commander-in-Chief by Mr. Marcos caused the imposition of
martial law for more than eight years and the suspension of the privilege of the writ even after the
lifting of martial law in 1981. The new Constitution now provides that those powers can be exercised
only in two cases, invasion or rebellion when public safety demands it, only for a period not
exceeding 60 days, and reserving to Congress the power to revoke such suspension or
proclamation of martial law which congressional action may not be revoked by the President. More
importantly, the action of the President is made subject to judicial review, thereby again discarding
jurisprudence which render[s] the executive action a political question and beyond the jurisdiction of
the courts to adjudicate.

For the first time, there is a provision that the state of martial law does not suspend the operation of
the Constitution nor abolish civil courts or legislative assemblies, or vest jurisdiction to military
tribunals over civilians, or suspend the privilege of the writ. Please forgive me if, at this point, I state
that this constitutional provision vindicates the dissenting opinions I have written during my tenure in
the Supreme Court in the martial law cases.101

f) To interpret "appropriate
proceeding" as filed under Section 1
of Article VIII would be contrary to
the intent of the Constitution.

To conclude that the "appropriate proceeding" refers to a Petition for Certiorari filed under the
expanded jurisdiction of this Court would, therefore, contradict the clear intention of the framers of
the Constitution to place additional safeguards against possible martial law abuse for, invariably, the
third paragraph of Section 18, Article VII would be subsumed under Section 1 of Article VIII. In other
words, the framers of the Constitution added the safeguard under the third paragraph of Section 18,
Article VII on top of the expanded jurisdiction of this Court.

g) Jurisdiction of the Court is

not restricted to those enumerated in
Sections I and 5 of Article VIII

The jurisdiction of this Court is not restricted to those enumerated in Sections 1 and 5 of Article VIII.
For instance, its jurisdiction to be the sole judge of all contests relating to the election, returns, and
qualifications of the President or Vice-President can be found in the last paragraph of Section 4,
Article VII.102 The power of the Court to review on certiorari the decision, order, or ruling of the
Commission on Elections and Commission on Audit can be found in Section 7, Article IX(A). 103

h) Unique features of the third

paragraph of Section 18, Article VII
make it sui generis.

The unique features of the third paragraph of Section 18, Article VII clearly indicate that it should be
treated as sui generis separate and different from those enumerated in Article VIII. Under the third
paragraph of Section 18, Article VII, a petition filed pursuant therewith will follow a different rule on
standing as any citizen may file it. Said provision of the Constitution also limits the issue to the
sufficiency of the factual basis of the exercise by the Chief Executive of his emergency powers. The
usual period for filing pleadings in Petition for Certiorari is likewise not applicable under the third
paragraph of Section 18, Article VII considering the limited period within which this Court has to
promulgate its decision.

A proceeding "[i]n its general acceptation, [is] the form in which actions are to be brought and
defended, the manner of intervening in suits, of conducting them, the mode of deciding them, of
opposing judgments, and of executing." 104 In fine, the phrase "in an appropriate proceeding"
appearing on the third paragraph of Section 18, Article VII refers to any action initiated by a citizen
for the purpose of questioning the sufficiency of the factual basis of the exercise of the Chief
Executive's emergency powers, as in these cases. It could be denominated as a complaint, a
petition, or a matter to be resolved by the Court.
III. The power of the Court to review the
sufficiency of the factual basis of the
proclamation of martial law or the suspension of
the privilege of the writ of habeas corpus under
Section 18, Article VII of the 1987 Constitution is
independent of the actions taken by Congress.

During the oral argument,105 the OSG urged the Court to give! deference to the actions of the two co-
equal branches of the Government: on' the part of the President as Commander-in-Chief, in
resorting to his extraordinary powers to declare martial law and suspend the privilege of the writ
of habeas corpus; and on the part of Congress, in giving its imprimatur to Proclamation No. 216 and
not revoking the same.

The framers of the 1987 Constitution reformulated the scope of the extraordinary powers of the
President as Commander-in-Chief and the review of the said presidential action. In particular, the
President's extraordinary powers of suspending the privilege of the writ of habeas corpus and
imposing martial law are subject to the veto powers of the Court and Congress.

a) The judicial power to review

versus the congressional power to
revoke.

The Court may strike down the presidential proclamation in an appropriate proceeding filed by any
citizen on the ground of lack of sufficient factual basis. On the other hand, Congress may revoke the
proclamation or suspension, which revocation shall not be set aside by the President.

In reviewing the sufficiency of the factual basis of the proclamation or suspension, the Court
considers only the information and data available to the President prior to or at the time of the
declaration; it is not allowed td "undertake an independent investigation beyond the pleadings." 106 On
the other hand, Congress may take into consideration not only data available prior to, but likewise
events supervening the declaration. Unlike the Court I which does not look into the absolute
correctness of the factual basis as will be discussed below, Congress could probe deeper and
further; it can delve into the accuracy of the facts presented before it.

In addition, the Court's review power is passive; it is only initiated by the filing of a petition "in an
appropriate proceeding" by a citizen. On the other hand, Congress' review mechanism is automatic
in the sense that it may be activated by Congress itself at any time after the proclamation or
suspension was made.

Thus, the power to review by the Court and the power to revoke by Congress are not only totally
different but likewise independent from each other although concededly, they have the same
trajectory, which is, the nullification of the presidential proclamation. Needless to say, the power of
the Court to review can be exercised independently from the power of revocation of Congress.

b) The framers of the 1987

Constitution intended the judicial
power to review to be exercised
independently from the congressional
power to revoke.

If only to show that the intent of the framers of the 1987 Constitution was to vest the Court and
Congress with veto powers independently from each other, we quote the following exchange:
MS. QUESADA. Yesterday, the understanding of many was that there would be safeguards that
Congress will be able to revoke such proclamation.

MR. RAMA. Yes.

MS. QUESADA. But now, if they cannot meet because they have been arrested or that the
Congress has been padlocked, then who is going to declare that such a proclamation was not
warranted?

xxxx

MR. REGALADO. May I also inform Commissioner Quesada that the judiciary is not exactly just
standing by. A petition for a writ of habeas corpus, if the Members are detained, can immediately be
applied for, and the Supreme Court shall also review the factual basis. x x x107

c) Re-examination of the
Court's pronouncement in Fortun v.
President Macapagal-Arroyo

Considering the above discussion, the Court finds it imperative to re-examine, reconsider, and set
aside its pronouncement in Fortun v. President Macapagal-Arroyo108 to the effect that:

Consequently, although the Constitution reserves to the Supreme Court the power to review the
sufficiency of the factual basis of the proclamation or suspension in a proper suit, it is implicit that the
Court must allow Congress to exercise its own review powers, which is automatic rather than
initiated. Only when Congress defaults in its express duty to defend the Constitution through such
review should the Supreme Court step in as its final rampart. The constitutional validity of the
President's proclamation of martial law or suspension of the writ of habeas corpus is first a political
question in the hands of Congress before it becomes a justiciable one in the hands of the Court. 109

xxxx

If the Congress procrastinates or altogether fails to fulfill its duty respecting the proclamation or
suspension within the short time expected of it, then the Court can step in, hear the petitions
challenging the President's action, and ascertain if it has a factual basis. x x x 110

By the above pronouncement, the Court willingly but unwittingly clipped its own power and
surrendered the same to Congress as well as: abdicated from its bounden duty to review. Worse,
the Court considered' itself just on stand-by, waiting and willing to act as a substitute in case
Congress "defaults." It is an aberration, a stray declaration, which must be rectified and set aside in
this proceeding.111

We, therefore, hold that the Court can simultaneously exercise its power of review with, and
independently from, the power to revoke by Congress. Corollary, any perceived inaction or default
on the part of Congress does not deprive or deny the Court of its power to review.

IV. The judicial power to review the sufficiency

of factual basis of the declaration of martial law
or the suspension of the privilege of the writ of
habeas corpus does not extend to the calibration
of the President's decision of which among his
graduated powers he will avail of in a given
situation.

The President as the Commander-in-Chief wields the extraordinary powers of: a) calling out the
armed forces; b) suspending the privilege of the writ of habeas corpus; and c) declaring martial
law.112 These powers may be resorted to only under specified conditions.

The framers of the 1987 Constitution reformulated the powers of the Commander-in-Chief by
revising the "grounds for the activation of emergency powers, the manner of activating them, the
scope of the powers, and review of presidential action." 113

a) Extraordinary powers of the

President distinguished.

Among the three extraordinary powers, the calling out power is the most benign and involves
ordinary police action.114 The President may resort to this extraordinary power whenever it becomes
necessary to prevent or suppress lawless violence, invasion, or rebellion. "[T]he power to call is fully
discretionary to the President;"115 the only limitations being that he acts within permissible
constitutional boundaries or in a manner not constituting grave abuse of discretion. 116 In fact,
"the actual use to which the President puts the armed forces is x x x not subject to judicial review." 117

The extraordinary powers of suspending the privilege of the writ of habeas corpus and/or declaring
martial law may be exercised only when there is actual invasion or rebellion, and public safety
requires it. The 1987 Constitution imposed the following limits in the exercise of these powers: "(1) a
time limit of sixty days; (2) review and possible revocation by Congress; [and] (3) review and
possible nullification by the Supreme Court." 118

The framers of the 1987 Constitution eliminated insurrection, and the phrase "imminent danger
thereof' as grounds for the suspension of the privilege of the writ of habeas corpus or declaration of
martial law.119 They perceived the phrase "imminent danger" to be "fraught with possibilities of
abuse;"120 besides, the calling out power of the President "is sufficient for handling imminent
danger."121

The powers to declare martial law and to suspend the privilege of the writ of habeas corpus involve
curtailment and suppression of civil rights and individual freedom. Thus, the declaration of martial
law serves as a warning to citizens that the Executive Department has called upon the military to
assist in the maintenance of law and order, and while the emergency remains, the citizens must,
under pain of arrest and punishment, not act in a manner that will render it more difficult to restore
order and enforce the law.122 As such, their exercise requires more stringent safeguards by the
Congress, and review by the Court.123

b) What really happens during martial law?

During the oral argument, the following questions cropped up: What really happens during the
imposition of martial law? What powers could the President exercise during martial law that he could
not exercise if there is no martial law? Interestingly, these questions were also discussed by the
framers of the 1987 Constitution, viz.:

FR. BERNAS. That same question was asked during the meetings of the Committee: What precisely
does martial law add to the power of the President to call on the armed forces? The first and second
lines in this provision state:
A state of martial law does not suspend the operation of the Constitution, nor supplant the
functioning of the civil courts or legislative assemblies...

The provision is put there, precisely, to reverse the doctrine of the Supreme Court. I think it is the
case of Aquino v. COMELEC where the Supreme Court said that in times of martial law, the
President automatically has legislative power. So these two clauses denied that. A state of martial
law does not suspend the operation of the Constitution; therefore, it does not suspend the principle
of separation of powers.

The question now is: During martial law, can the President issue decrees? The answer we gave to
that question in the Committee was: During martial law, the President may have the powers of a
commanding general in a theatre of war. In actual war when there is fighting in an area, the
President as the commanding general has the authority to issue orders which have the effect of law
but strictly in a theater of war, not in the situation we had during the period of martial law. In other
words, there is an effort here to return to the traditional concept of martial law as it was developed
especially in American jurisprudence, where martial law has reference to the theater of war.124

xxxx

FR. BERNAS. This phrase was precisely put here because we have clarified the meaning of martial
law; meaning, limiting it to martial law as it has existed in the jurisprudence in international law, that it
is a law for the theater of war. In a theater of war, civil courts are unable to function. If in the actual
theater of war civil courts, in fact, are unable to function, then the military commander is authorized
to give jurisdiction even over civilians to military courts precisely because the civil courts are closed
in that area. But in the general area where the civil courts are open then in no case can the military
courts be given jurisdiction over civilians. This is in reference to a theater of war where the civil
courts, in fact, are unable to function.

MR. FOZ. It is a state of things brought about by the realities of the situation in that specified critical
area.

FR. BERNAS. That is correct.

MR. FOZ. And it is not something that is brought about by a declaration of the Commander-in-Chief.

FR. BERNAS. It is not brought about by a declaration of the Commander-in-Chief. The

understanding here is that the phrase 'nor authorize the conferment of jurisdiction on military courts
and agencies over civilians' has reference to the practice under the Marcos regime where military
courts were given jurisdiction over civilians. We say here that we will never allow that except in areas
where civil courts are, in fact, unable to function and it becomes necessary for some kind of court to
function.125

A state of martial law is peculiar because the President, at such a time, exercises police power,
which is normally a function of the Legislature. In particular, the President exercises police power,
with the military’s assistance, to ensure public safety and in place of government agencies which for
the time being are unable to cope with the condition in a locality, which remains under the control of
the State.126

In David v. President Macapagal-Arroyo,127 the Court, quoting Justice Vicente V. Mendoza's (Justice
Mendoza) Statement before the Senate Committee on Justice on March 13, 2006, stated that under
a valid declaration of martial law, the President as Commander-in-Chief may order the "(a) arrests
and seizures without judicial warrants; (b) ban on public assemblies; (c) [takeover] of news media
and agencies and press censorship; and (d) issuance of Presidential Decrees x x x".128

Worthy to note, however, that the above-cited acts that the President may perform do not give him
unbridled discretion to infringe on the rights of civilians during martial law. This is because martial
law does not suspend the operation of the Constitution, neither does it supplant the operation of civil
courts or legislative assemblies. Moreover, the guarantees under the Bill of Rights remain in place
during its pendency. And in such instance where the privilege of the writ of habeas corpus is also
suspended, such suspension applies only to those judicially charged with rebellion or offenses
connected with invasion.129

Clearly, from the foregoing, while martial law poses the most severe threat to civil liberties, 130 the
Constitution has safeguards against the President's prerogative to declare a state of martial law.

c) "Graduation" of powers
refers to hierarchy based on scope
and effect; it does not refer to a
sequence, order, or arrangement by
which the Commander-in-Chief must
adhere to.

Indeed, the 1987 Constitution gives the "President, as Commander-in- Chief, a 'sequence' of
'graduated power[s]'. From the most to the least benign, these are: the calling out power, the power
to suspend the privilege of the writ of habeas corpus, and the power to declare martial law."131 It must
be stressed, however, that the graduation refers only to hierarchy based on scope and effect. It does
not in any manner refer to a sequence, arrangement, or order which the Commander-in-Chief must
follow. This so-called "graduation of powers" does not dictate or restrict the manner by which the
President decides which power to choose.

These extraordinary powers are conferred by the Constitution with the President as Commander-in-
Chief; it therefore necessarily follows that the power and prerogative to determine whether the
situation warrants a mere exercise of the calling out power; or whether the situation demands
suspension of the privilege of the writ of habeas corpus; or whether it calls for the declaration of
martial law, also lies, at least initially, with the President. The power to choose, initially, which among
these extraordinary powers to wield in a given set of conditions is a judgment call on the part of the
President. As Commander-in-Chief, his powers are broad enough to include his prerogative to
address exigencies or threats that endanger the government, and the very integrity of the State.132

It is thus beyond doubt that the power of judicial review does not extend to calibrating the President's
decision pertaining to which extraordinary power to avail given a set of facts or conditions. To do so
would be tantamount to an incursion into the exclusive domain of the Executive and an infringement
on the prerogative that solely, at least initially, lies with the President.

d) The framers of the 1987

Constitution intended the Congress
not to interfere a priori in the
decision-making process of the
President.

The elimination by the framers of the 1987 Constitution of the requirement of prior concurrence of
the Congress in the initial imposition of martial law or suspension of the privilege of the writ
of habeas corpus further supports the conclusion that judicial review does not include the calibration
of the President's decision of which of his graduated powers will be availed of in a given situation.
Voting 28 to 12, the framers of the 1987 Constitution removed the requirement of congressional
concurrence in the first imposition of martial law and suspension of the privilege. 133

MR. PADILLA.x x x

We all agree with the suspension of the writ or the proclamation of martial law should not require
beforehand the concurrence of the majority of the Members of the Congress. However, as provided
by the Committee, the Congress may revoke, amend, or shorten or even increase the period of such
suspension.134

xxxx

MR. NATIVIDAD. First and foremost, we agree with the Commissioner's thesis that in the first
imposition of martial law there is no need for concurrence of the Members of Congress because the
provision says 'in case of actual invasion or rebellion.' If there is actual invasion and rebellion, as
Commissioner Crispino de Castro said, there is a need for immediate response because there is an
attack. Second, the fact of securing a concurrence may be impractical because the roads might be
blocked or barricaded. x x x So the requirement of an initial concurrence of the majority of all
Members of the Congress in case of an invasion or rebellion might be impractical as I can see it.

Second, Section 15 states that the Congress may revoke the declaration or lift the suspension.

And third, the matter of declaring martial law is already a justiciable question and no longer a political
one in that it is subject to judicial review at any point in time. So on that basis, I agree that there is no
need for concurrence as a prerequisite to declare martial law or to suspend the privilege of the writ
of habeas corpus. x x x135

xxxx

MR. SUAREZ. Thank you.

The Commissioner is suggesting that in connection with Section 15, we delete the phrase 'and, with
the concurrence of at least a majority of all the Members of the Congress...'

MR. PADILLA. That is correct especially for the initial suspension of the privilege of the writ
of habeas corpus or also the declaration of martial law.

MR. SUAREZ. So in both instances, the Commissioner is suggesting that this would be an exclusive
prerogative of the President?

MR. PADILLA. At least initially, for a period of 60 days. But even that period of 60 days may be
shortened by the Congress or the Senate because the next sentence says that the Congress or the
Senate may even revoke the proclamation. 136

xxxx

MR. SUAREZ. x x x

The Commissioner is proposing a very substantial amendment because this means that he is
vesting exclusively unto the President the right to determine the factors which may lead to the
declaration of martial law and the suspension of the writ of habeas corpus. I suppose he has strong
and compelling reasons in seeking to delete this particular phrase. May we be informed of his good
and substantial reasons?

MR. MONSOD. This situation arises in cases of invasion or rebellion. And in previous interpellations
regarding this phrase, even during the discussions on the Bill of Rights, as I understand it, the
interpretation is a situation of actual invasion or rebellion. In these situations, the President has to
act quickly. Secondly, this declaration has a time fuse. It is only good for a maximum of 60 days. At
the end of 60 days, it automatically terminates. Thirdly, the right of the judiciary to inquire into the
sufficiency of the factual basis of the proclamation always exists, even during those first 60 days.

xxxx

MR. MONSOD. Yes, Madam President, in the case of Mr. Marcos[,] he is undoubtedly an aberration
in our history and national consciousness. But given the possibility that there would be another
Marcos, our Constitution now has sufficient safeguards. As I said, it is not really true, as the
Gentleman mentioned, that there is an exclusive right to determine the factual basis because the
paragraph being on line 9 precisely tells us that the Supreme court may review, in an appropriate
proceeding filed by any citizen, the sufficiency of the factual basis of the proclamation of martial law
or the suspension of the privilege of the writ or the extension thereof and must promulgate its
decision on the same within 30 days from its filing.

I believe that there are enough safeguards. The Constitution is supposed to balance the interests of
the country. And here we are trying to balance the public interest in case of invasion or rebellion as
against the rights of citizens. x x x

MR. SUAREZ. Will that prevent a future President from doing what Mr. Marcos had done?

MR. MONSOD. There is nothing absolute in this world, and there may be another Marcos. What we
are looking for are safeguards that arereasonable and, I believe, adequate at this point. On the other
hand, in case of invasion or rebellion, even during the first 60 days when the intention here is to
protect the country in that situation, it would be unreasonable to ask that there should be a
concurrence on the part of the Congress, which situation is automatically terminated at the end of
such 60 days.

xxxx

MR. SUAREZ. Would the Gentleman not feel more comfortable if we provide for a legislative check
on this awesome power of the Chief Executive acting as Commander-in-Chief?

MR. MONSOD. I would be less comfortable if we have a presidency that cannot act under those
conditions.

MR. SUAREZ. But he can act with the concurrence of the proper or appropriate authority?

MR. MONSOD. Yes. But when those situations arise, it is very unlikely that the concurrence of
Congress would be available; and, secondly, the President will be able to act quickly in order to deal
with the circumstances.

MR. SUAREZ. So, we would be subordinating actual circumstances to expediency?

MR. MONSOD. I do not believe it is expediency when one is trying to protect the country in the event
of an invasion or a rebellion.137

The foregoing exchange clearly manifests the intent of the Constitution not to allow Congress to
interfere a priori in the President's choice of extraordinary powers.

e) The Court must similarly

and necessarily refrain from
calibrating the President's decision of
which among his extraordinary
powers to avail given a certain
situation or condition.

It cannot be overemphasized that time is paramount in situations necessitating the proclamation of

martial law or suspension of the privilege of the writ of habeas corpus. It was precisely this time
element that prompted the Constitutional Commission to eliminate the requirement of 1 concurrence
of the Congress in the initial imposition by the President of martial law or suspension of the privilege
of the writ of habeas corpus.

Considering that the proclamation of martial law or suspension of the privilege of the writ of habeas
corpus is now anchored on actual invasion or rebellion and when public safety requires it, and is no
longer under threat or in imminent danger thereof, there is a necessity and urgency for the President
to act quickly to protect the country.138 The Court, as Congress does, must thus accord the President
the same leeway by not wading into the realm that is reserved exclusively by the Constitution to the
Executive Department.

j) The recommendation of the

Defense Secretary is not a condition
for the declaration of martial law or
suspension of the privilege of the writ
of habeas corpus.

Even the recommendation of, or consultation with, the Secretary of National Defense, or other high-
ranking military officials, is not a condition for the President to declare martial law. A plain reading of
Section 18, Article VII of the Constitution shows that the President's power to declare martial law is
not subject to any condition except for the requirements of actual invasion or rebellion and that
public safety requires it. Besides, it would be contrary to common sense if the decision of the
President is made dependent on the recommendation of his mere alter ego. Rightly so, it is only on
the President and no other that the exercise of the powers of the Commander-in-Chief under Section
18, Article VII of the Constitution is bestowed.

g) In any event, the President

initially employed the most benign
action - the calling out power -
before he declared martial law and
suspended the privilege of the writ of
habeas corpus.

At this juncture, it must be stressed that prior to Proclamation No. 216 or the declaration of martial
law on May 23, 201 7, the President had already issued Proclamation No. 55 on September 4, 2016,
declaring a state of national emergency on account of lawless violence in Mindanao. This, in fact, is
extant in the first Whereas Clause of Proclamation No. 216. Based on the foregoing presidential
actions, it can be gleaned that although there is no obligation or requirement on his part to use his
extraordinary powers on a graduated or sequential basis, still the President made the conscious
anddeliberate effort to first employ the most benign from among his extraordinary powers. As the
initial and preliminary step towards suppressing and preventing the armed hostilities in Mindanao,
the President decided to use his calling out power first. Unfortunately, the situation did not improve;
on the contrary, it only worsened. Thus, exercising his sole and exclusive prerogative, the President
decided to impose martial law and suspend the privilege of the writ of habeas corpus on the belief
that the armed hostilities in Mindanao already amount to actual rebellion and public safety requires
it.

V. Whether or not Proclamation No. 216 may

be considered vague and thus void because of (a)
its inclusion of "other rebel groups"; and (b) the
absence of any guideline specifying its actual
operational parameters within the entire
Mindanao region.

Proclamation No. 216 is being facially challenged on the ground of "vagueness" by the insertion of
the phrase "other rebel groups"139 in its Whereas Clause and for lack of available guidelines
specifying its actual operational parameters within the entire Mindanao region, making the
proclamation susceptible to broad interpretation, misinterpretation, or confusion.

This argument lacks legal basis.

a) Void-for-vagueness doctrine.

The void-for-vagueness doctrine holds that a law is facially invalid if "men of common intelligence
must necessarily guess at its meaning and differ as to its application." 140 "[A] statute or act may be
said to be vague when it lacks comprehensible standards that men of common intelligence must
necessarily guess at its meaning and differ in its application. [In such instance, the statute] is
repugnant to the Constitution in two respects: (1) it violates due process for failure to accord
persons, especially the parties targeted by it, fair notice of the conduct to avoid; and (2) it leaves law
enforcers unbridled discretion in carrying out its provisions and becomes an arbitrary flexing of the
Government muscle."141

b) Vagueness doctrine applies

only in free speech cases.

The vagueness doctrine is an analytical tool developed for testing "on their faces" statutes in free
speech cases or, as they are called in American law, First Amendment cases. 142 A facial challenge is
allowed to be made to a vague statute and also to one which is overbroad because of possible
"'chilling effect' on protected speech that comes from statutes violating free speech. A person who
does not know whether his speech constitutes a crime under an overbroad or vague law may simply
restrain himself from speaking in order to avoid being charged of a crime. The overbroad or vague
law thus chills him into silence." 143

It is best to stress that the vagueness doctrine has a special application only to free-speech cases.
They are not appropriate for testing the validity of penal statutes. 144 Justice Mendoza explained the
reason as follows:

A facial challenge is allowed to be made to a vague statute and to one which is overbroad because
of possible 'chilling effect' upon protected speech. The theory is that ' [w]hen statutes regulate or
proscribe speech and no readily apparent construction suggests itself as a vehicle for rehabilitating
the statutes in a single prosecution, the transcendent value to all society of constitutionally protected
expression is deemed to justify allowing attacks on overly broad statutes with no requirement that
the person making the attack demonstrate that his own conduct could not be regulated by a statute
drawn with narrow specificity.' The possible harm to society in permitting some unprotected speech
to go unpunished is outweighed by the possibility that the protected speech of others may be
deterred and perceived grievances left to fester because of possible inhibitory effects of overly broad
statutes.

This rationale does not apply to penal statutes. Criminal statutes have general in terrorem effect
resulting from their very existence, and, if facial challenge is allowed for this reason alone, the State
may well be prevented from enacting laws against socially harmful conduct. In the area of criminal
law, the law cannot take chances as in the area of free speech.

xxxx

In sum, the doctrines of strict scrutiny, overbreadth, and vagueness are analytical tools developed
for testing 'on their faces' statutes in free speech cases or, as they are called in American law, First
Amendment cases. They cannot be made to do service when what is involved is a criminal statute.
With respect to such statute, the established rule is that'one to whom application of a statute is
constitutional will not be heard to attack the statute on the ground that impliedly it might also be
taken as applying to other persons or other situations in which its application might be
unconstitutional.' As has been pointed out, 'vagueness challenges in the First Amendment context,
like overbreadth challenges typically produce facial invalidation, while statutes found vague as a
matter of due process typically are invalidated [only] 'as applied' to a particular defendant.' x x x 145

Invalidation of statutes "on its face" should be used sparingly because it results in striking down
statutes entirely on the ground that they might beapplied to parties not before the Court whose
activities are constitutionally protected. 146 "Such invalidation would constitute a departure from the
usual requirement of 'actual case and controversy' and permit decisions to be made in a sterile
abstract context having no factual concreteness." 147

c) Proclamation No. 216

cannot be facially challenged using
the vagueness doctrine.

Clearly, facial review of Proclamation No. 216 on the grounds of vagueness is unwarranted.
Proclamation No. 216 does not regulate speech, religious freedom, and other fundamental rights
that may be facially challenged.148 What it seeks to penalize is conduct, not speech.

As held by the Court in David v. President Macapagal-Arroyo,149 the facial review of Proclamation No.
1017, issued by then President Gloria Macapagal-Arroyo declaring a state of national emergency, on
ground o vagueness is uncalled for since a plain reading of Proclamation No. 10171 shows that it is
not primarily directed at speech or even speech-related1 conduct. It is actually a call upon the Armed
Forces of the Philippines (AFP) to prevent or suppress all forms of lawless violence. Like
Proclamation No. 1017, Proclamation No. 216 pertains to a spectrum of conduct, not free speech,
which is manifestly subject to state regulation.

d) Inclusion of "other rebel

groups " does not make Proclamation
No.216 vague.
The contention that the phrase "other rebel groups" leaves Proclamation No. 216 open to broad
interpretation, misinterpretation, and confusion, cannot be sustained.

In People v. Nazario,150 the Court enunciated that:

As a rule, a statute or act may be said to be vague when it lacks comprehensible standards that men
'of common intelligence must necessarily guess at its meaning and differ as to its application.' It is
repugnant to the Constitution in two respects: (1) it violates due process for failure to accord
persons, especially the parties targetted by it, fair notice of the conduct to avoid; and (2) it leaves law
enforcers unbridled discretion in carrying out its provisions and becomes an arbitrary flexing of the
Government muscle.

But the act must be utterly vague on its face, that is to say, it cannot be clarified by either a saving
clause or by construction. Thus, in Coates v. City of Cincinnati, the U.S. Supreme Court struck down
an ordinance that had made it illegal for 'three or more persons to assemble on any sidewalk and
there conduct themselves in a manner annoying to persons passing by.' Clearly, the ordinance
imposed no standard at all 'because one may never know in advance what annoys some people but
does not annoy others.'

Coates highlights what has been referred to as a 'perfectly vague' act whose obscurity is evident on
its face. It is to be distinguished, however, from legislation couched in imprecise language - but
which nonetheless specifies a standard though defectively phrased - in which case, it may be 'saved'
by proper construction.151

The term "other rebel groups" in Proclamation No. 216 is not at all vague when viewed in the context
of the words that accompany it. Verily, the text of Proclamation No. 216 refers to "other rebel groups"
found in Proclamation No. 55, which it cited by way of reference in its Whereas clauses.

e) Lack of guidelines/
operational parameters does not
make Proclamation No. 216 vague.

Neither could Proclamation No. 216 be described as vague, and thus void, on the ground that it has
no guidelines specifying its actual operational parameters within the entire Mindanao region.
Besides, operational guidelines will serve only as mere tools for the implementation of the
proclamation. In Part III, we declared that judicial review covers only the sufficiency of information or
data available to or known to the President prior to, or at the time of, the declaration or suspension.
And, as will be discussed exhaustively in Part VII, the review will be confined to the proclamation
itself and the Report submitted to Congress.

Clearly, therefore, there is no need for the Court to determine the constitutionality of the
implementing and/or operational guidelines, general orders, arrest orders and other orders issued
after the proclamation for being irrelevant to its review. Thus, any act committed under the said
orders in violation of the Constitution and the laws, such as criminal acts or human rights violations,
should be resolved in a separate proceeding. Finally, there is a risk that if the Court wades into these
areas, it would be deemed as trespassing into the sphere that is reserved exclusively for Congress
in the exercise of its power to revoke.

VI. Whether or not nullifying Proclamation No.

216 will (a) have the effect of recalling
Proclamation No. 55; or (b) also nullify the acts
of the President in calling out the armed forces to
quell lawless violence in Marawi and other parts
of the Mindanao region.

a) The calling out power is in a

different category from the power to
declare martial law and the power to
suspend the privilege of the writ of
habeas corpus; nullification of
Proclamation No. 216 will not affect
Proclamation No. 55.

The Court's ruling in these cases will not, in any way, affect the President's declaration of a state of
national emergency on account of lawless violence in Mindanao through Proclamation No. 55 dated
September 4, 2016, where he called upon the Armed Forces and the Philippine National 1 Police
(PNP) to undertake such measures to suppress any and all forms of lawless violence in the
Mindanao region, and to prevent such lawless violence from spreading and escalating elsewhere in
the Philippines.

In Kulayan v. Tan,152 the Court ruled that the President's calling out power is in a different
category from the power to suspend the privilege of the writ of habeas corpus and the power to
declare martial law:

x x x Congress may revoke such proclamation or suspension and the Court may review the
sufficiency of the factual basis thereof. However, there is no such equivalent provision dealing with
the revocation or review of the President's action to call out the armed forces. The distinction places
the calling out power in a different category from the power to declare martial law and the power to
suspend the privilege of the writ of habeas corpus, otherwise, the framers of the Constitution would
have simply lumped together the three powers and provided for their revocation and review without
any qualification.153

In other words, the President may exercise the power to call out the Armed Forces independently of
the power to suspend the privilege of the writ of habeas corpus and to declare martial law, although,
of course, it may also be a prelude to a possible future exercise of the latter powers, as in this case.

Even so, the Court's review of the President's declaration of martial law and his calling out the
Armed Forces necessarily entails separate proceedings instituted for that particular purpose.

As explained in Integrated Bar of the Philippines v. Zamora,154 the President's exercise of his power
to call out the armed forces to prevent or suppress lawless violence, invasion or rebellion may only
be examined by the Court as to whether such power was exercised within permissible constitutional
limits or in a manner constituting grave abuse of discretion. 155

In Zamora, the Court categorically ruled that the Integrated Bar of the ' Philippines had failed to
sufficiently comply with the requisites of locus standi, as it was not able to show any specific
injury which it had suffered or could suffer by virtue of President Joseph Estrada's order deploying
the Philippine Marines to join the PNP in visibility patrols around the metropolis. 156

This locus standi requirement, however, need not be complied with in so far as the Court's
jurisdiction to review the sufficiency of the factual basis of the President's declaration of martial law
or suspension of the privilege ofthe writ of habeas corpus is concerned. In fact, by constitutional
design, such review may be instituted by any citizen before the Court,157 without the need to prove
that he or she stands to sustain a direct and personal injury as a consequence of the questioned
Presidential act/s.

But, even assuming arguendo that the Court finds no sufficient basis for the declaration of martial
law in this case, such ruling could not affect the President's exercise of his calling out power through
Proclamation No. 55.

b) The operative fact doctrine.

Neither would the nullification of Proclamation No. 216 result in the nullification of the acts of the
President done pursuant thereto. Under the "operative fact doctrine," the unconstitutional statute is
recognized as an "operative fact" before it is declared unconstitutional. 158

Where the assailed legislative or executive act is found by the judiciary to be contrary to the
Constitution, it is null and void. As the new Civil Code puts it: 'When the courts declare a law to be
inconsistent with the Constitution, the former shall be void and the latter shall govern. Administrative
or executive acts, orders and regulations shall be valid only when they are not contrary to the laws or
the Constitution.' The above provision of the Civil Code reflects the orthodox view that an
unconstitutional act, whether legislative or executive, is not a law, confers no rights, imposes no
duties, and affords no protection. This doctrine admits of qualifications, however. As the American
Supreme Court stated: 'The actual existence of a statute prior to such a determination [of
constitutionality], is an operative fact and may have consequences which cannot always be erased
by a new judicial declaration. The effect of the subsequent ruling as to the invalidity may have to be
considered in various aspects, - with respect to particular regulations, individual and corporate, and
particular conduct, private and official.

The orthodox view finds support in the well-settled doctrine that the Constitution is supreme and
provides the measure for the validity of legislative or executive acts. Clearly then, neither the
legislative nor the executive branch, and for that matter much less, this Court, has power under the
Constitution to act contrary to its terms. Any attempted exercise of power in violation of its provisions
is to that extent unwarranted and null.

The growing awareness of the role of the judiciary as the governmental organ which has the final
say on whether or not a legislative or executive measure is valid leads to a more appreciative
attitude of theemerging concept that a declaration of nullity may have legal consequences which the
more orthodox view would deny. That for a period of time such a statute, treaty, executive order, or
ordinance was in 'actual existence' appears to be indisputable. What is more appropriate and logical
then than to consider it as 'an operative fact?' (Emphasis supplied) 159

However, it must also be stressed that this "operative fact doctrine" is not a fool-proof shield that
would repulse any challenge to acts performed during the effectivity of martial law or suspension of
the privilege of the writ of habeas corpus, purportedly in furtherance of quelling rebellion or invasion,
and promotion of public safety, when evidence shows otherwise.

VII. The Scope of the Power to Review.

a) The scope of the power of

review under the 1987 Constitution
refers only to the determination of the
sufficiency of the factual basis of the
declaration of martial law and
suspension of the privilege of habeas
corpus.

To recall, the Court, in the case of In the Matter of the Petition for Habeas Corpus of
Lansang,160 which was decided under the 1935 Constitution, 161 held that it can inquire into, within
proper bounds, whether there has been adherence to or compliance with the constitutionally-
imposed limitations on the Presidential power to suspend the privilege of the writ of habeas
corpus.162 "Lansang limited the review function of the Court to a very prudentially narrow test of
arbitrariness."163 Fr. Bernas described the "proper bounds" in Lansang as follows:

What, however, are these 'proper bounds' on the power of the courts? The Court first gave the
general answer that its power was 'merely to check - not to supplant - the Executive, or to ascertain
merely whether he has gone beyond the constitutional limits of his jurisdiction, not to exercise the
power vested in him or to determine the wisdom of his act. More specifically, the Court said that its
power was not 'even comparable with its power over civil or criminal cases elevated thereto by
appeal...in which cases the appellate court has all the powers of the courtof origin,' nor to its power
of quasi-judicial administrative decisions where the Court is limited to asking whether 'there is
some evidentiary basis' for the administrative finding. Instead, the Court accepted the Solicitor
General's suggestion that it 'go no further than to satisfy [itself] not that the President's decision
is correct and that public safety was endangered by the rebellion and justified the suspension of the
writ, but that in suspending the writ, the President did not act arbitrarily.' 164

Lansang, however, was decided under the 1935 Constitution. The 1987 Constitution, by providing
only for judicial review based on the determination of the sufficiency of the factual bases, has in fact
done away with the test of arbitrariness as provided in Lansang.

b) The "sufficiency of factual

basis test".

Similarly, under the doctrine of contemporaneous construction, the framers of the 1987 Constitution
are presumed to know the prevailing jurisprudence at the time they were drafting the Constitution.
Thus, the phrase "sufficiency of factual basis" in Section 18, Article VII of the Constitution should be
understood as the only test for judicial review of the President's power to declare martial law and
suspend the privilege of the writ of habeas corpus under Section 18, Article VII of the Constitution.
The Court does not need to satisfy itself that the President's decision is correct, rather it only needs
to determine whether the President's decision had sufficient factual bases.

We conclude, therefore, that Section 18, Article VII limits the scope of judicial review by the
introduction of the "sufficiency of the factual basis" test.

As Commander-in-Chief, the President has the sole discretion to declare martial law and/or to
suspend the privilege of the writ of habeas corpus, subject to the revocation of Congress and the
review of this Court. Since the exercise of these powers is a judgment call of the President, the
determination of this Court as to whether there is sufficient factual basis for the exercise of such,
must be based only on facts or information known by or available to the President at the time he
made the declaration or suspension, which facts or information are found in the proclamation as well
as the written Report submitted by him to Congress. These may be based on the situation existing at
the time the declaration was made or past events. As to how far the past events should be from the
present depends on the President.

Past events may be considered as justifications for the declaration and/or suspension as long as
these are connected or related to the current situation existing at the time of the declaration.
As to what facts must be stated in the proclamation and the written Report is up to the
President.165 As Commander-in-Chief, he has sole discretion to determine what to include and what
not to include in the proclamation and the written Report taking into account the urgency of the
situation as well as national security. He cannot be forced to divulge intelligence reports and
confidential information that may prejudice the operations and the safety of the military.

Similarly, events that happened after the issuance of the proclamation, which are included in the
written report, cannot be considered in determining the sufficiency of the factual basis of the
declaration of martial law and/or the suspension of the privilege of the writ of habeas corpus since
these happened after the President had already issued the proclamation. If at all, they may be used
only as tools, guides or reference in the Court's determination of the sufficiency of factual basis, but
not as part or component of the portfolio of the factual basis itself.

In determining the sufficiency of the factual basis of the declaration and/or the suspension, the Court
should look into the full complement or totality of the factual basis, and not piecemeal or individually.
Neither should the Court expect absolute correctness of the facts stated in the proclamation and in
the written Report as the President could not be expected to verify the accuracy and veracity of all
facts reported to him due to the urgency of the situation. To require precision in the President's
appreciation of facts would unduly burden him and therefore impede the process of his decision-
making. Such a requirement will practically necessitate the President to be on the ground to confirm
the correctness of the reports submitted to him within a period that only the circumstances obtaining
would be able to dictate. Such a scenario, of course, would not only place the President in peril but
would also defeat the very purpose of the grant of emergency powers upon him, that is, to borrow
the words of Justice Antonio T. Carpio in Fortun, to "immediately put an end to the root cause of the
emergency".166 Possibly, by the time the President is satisfied with the correctness of the facts in his
possession, it would be too late in the day as the invasion or rebellion could have already escalated
to a level that is hard, if not impossible, to curtail.

Besides, the framers of the 1987 Constitution considered intelligence reports of military officers as
credible evidence that the President ca appraise and to which he can anchor his judgment,167 as
appears to be the case here.

At this point, it is wise to quote the pertinent portions of the Dissenting Opinion of Justice Presbitero
J. Velasco Jr. in Fortun:

President Arroyo cannot be blamed for relying upon the information given to her by the Armed
Forces of the Philippines and the Philippine National Police, considering that the matter of the
supposed armed uprising was within their realm of competence, and that a state of emergency has
also been declared in Central Mindanao to prevent lawless violence similar to the 'Maguindanao
massacre,' which may be an indication that there is a threat to the public safety warranting a
declaration of martial law or suspension of the writ.

Certainly, the President cannot be expected to risk being too late before declaring martial law or
suspending the writ of habeas corpus. The Constitution, as couched, does not require precision in
establishing the fact of rebellion. The President is called to act as public safety requires. 168

Corollary, as the President is expected to decide quickly on whether there is a need to proclaim
martial law even only on the basis of intelligence reports, it is irrelevant, for purposes of the Court's
review, if subsequent events prove that the situation had not been accurately reported to him.

After all, the Court's review is confined to the sufficiency, not accuracy, of the information at hand
during the declaration or suspension; subsequent events do not have any bearing insofar as the
Court's review is concerned. In any event, safeguards under Section 18, Article VII of the
Constitution are in place to cover such a situation, e.g., the martial law period is good only for 60
days; Congress may choose to revoke it even immediately after the proclamation is made; and, this
Court may investigate the factual background of the declaration.169

Hence, the maxim falsus in uno, falsus in omnibus finds no application in this case. Falsities of
and/or inaccuracies in some of the facts stated in the proclamation and the written report are not
enough reasons for the Court to invalidate the declaration and/or suspension as long as there are
other facts in the proclamation and the written Report that support the conclusion that there is an
actual invasion or rebellion and that public safety requires the declaration and/or suspension.

In sum, the Court's power to review is limited to the determination of whether the President in
declaring martial law and suspending the privilege of the writ of habeas corpus had sufficient factual
basis. Thus, our review would be limited to an examination on whether the President acted within the
bounds set by the Constitution, i.e., whether the facts in his possession prior to and at the time of the
declaration or suspension are sufficient for him to declare martial law or suspend the privilege of the
writ of habeas corpus.

VIII. The parameters for determining the

sufficiency of the/actual basis/or the declaration
of martial law and/or the suspension of the
privilege of the writ of habeas corpus.

a) Actual invasion or rebellion,

and public safety requirement.

Section 18, Article VII itself sets the parameters for determining the sufficiency of the factual basis
for the declaration of martial law and/or the suspension of the privilege of the writ of habeas
corpus, "namely (1) actual invasion or rebellion, and (2) public safety requires the exercise of such
power."170 Without the concurrence of the two conditions, the President's declaration of martial law
and/or suspension of the privilege of the writ of habeas corpus must be struck down.

As a general rule, a word used in a statute which has a technical or legal meaning, is construed to
have the same technical or legal meaning. 171 Since the Constitution did not define the term
"rebellion," it must be understood to have the same meaning as the crime of "rebellion" in the
Revised Penal Code (RPC).172

During the July 29, 1986 deliberation of the Constitutional Commission of 1986, then Commissioner
Florenz D. Regalado alluded to actual rebellion as one defined under Article 134 of the RPC:

MR. DE LOS REYES. As I see it now, the Committee envisions actual rebellion and no longer
imminent rebellion. Does the Committee mean that there should be actual shooting or actual attack
on the legislature or Malacañang, for example? Let us take for example a contemporary event - this
Manila Hotel incident, everybody knows what happened. Would the Committee consider that an
actual act of rebellion?

MR. REGALADO. If we consider the definition of rebellion under Articles 134 and 135 of the Revised
Penal Code, that presupposes an actual assemblage of men in an armed public uprising for the
purposes mentioned in Article 134 and by the means employed under Article 135. x x x173

Thus, rebellion as mentioned in the Constitution could only refer to rebellion as defined under Article
134 of the RPC. To give it a different definition would not only create confusion but would also give
the President wide latitude of discretion, which may be abused - a situation that the Constitution see
k s to prevent.174

Article 134 of the RPC states:

Art. 134. Rebellion or insurrection; How committed. - The crime of rebellion or insurrection is
committed by rising publicly and taking arms against the Government for the purpose of removing
from the allegiance to said Government or its laws, the territory of the Philippine Islands or any part
thereof, of any body of land, naval or other armed forces, depriving the Chief Executive or the
Legislature, wholly or partially, of any of their powers or prerogatives.

Thus, for rebellion to exist, the following elements must be present, to wit: "(l) there is a (a) public
uprising and (b) taking arms against the Government; and (2) the purpose of the uprising or
movement is either (a) to remove from the allegiance to the Government or its laws: (i) the territory
of the Philippines or any part thereof; or (ii) any body of land, naval, or other armed forces; or (b) to
deprive the Chief Executive or Congress, wholly or partially, of any of their powers and
prerogatives."175

b) Probable cause is the

allowable standard of proof for the
President.

In determining the existence of rebellion, the President only needs to convince himself that there is
probable cause or evidence showing that more likely than not a rebellion was committed or is being
committed.176 To require him to satisfy a higher standard of proof would restrict the exercise of his
emergency powers. Along this line, Justice Carpio, in his Dissent in Fortun v. President Macapagal-
Arroyo, concluded that the President needs only to satisfy probable cause as the standard of proof in
determining the existence of either invasion or rebellion for purposes of declaring martial law, and
that probable cause is the most reasonable, most practical and most expedient standard by which
the President can fully ascertain the existence or non-existence of rebellion necessary for a
declaration of martial law or suspension of the writ. This is because unlike other standards of proof,
which, in order to be met, would require much from the President and therefore unduly restrain his
exercise of emergency powers, the requirement of probable cause is much simpler. It merely
necessitates an "average man [to weigh] the facts and circumstances without resorting to the
calibration of the rules of evidence of which he has no technical knowledge. He [merely] relies on
common sense [and] x x x needs only to rest on evidence showing that, more likely than not, a crime
has been committed x x x by the accused." 177

To summarize, the parameters for determining the sufficiency of factual basis are as follows: l)
actual rebellion or invasion; 2) public safety requires it; the first two requirements must concur; and
3) there is probable cause for the President to believe that there is actual rebellion or invasion.

Having laid down the parameters for review, the Court shall nowproceed to the core of the
controversy - whether Proclamation No. 216,Declaring a State of Martial Law and Suspending the
Privilege of the Writ of Habeas Corpus in the whole of Mindanao, lacks sufficient factual basis.

IX. There is sufficient factual basis for the

declaration of martial law and the suspension of
the writ of habeas corpus.

At this juncture, it bears to emphasize that the purpose of judicial review is not the determination of
accuracy or veracity of the facts upon which the President anchored his declaration of martial law or
suspension of the privilege of the writ of habeas corpus; rather, only the sufficiency of the factual
basis as to convince the President that there is probable cause that rebellion exists. It must also be
reiterated that martial law is a matter ofurgency and much leeway and flexibility should be accorded
the President. As such, he is not expected to completely validate all the information he received
before declaring martial law or suspending the privilege of the writ of habeas corpus.

We restate the elements of rebellion for reference:

1. That there be (a) public uprising, and (b) taking up arms against the Government; and

2. That the purpose of the uprising or movement is either: (a) to remove from the allegiance to said
Government or its laws the territory of the Philippines or any part thereof, or any body of land, naval
or other armed forces or (b) to deprive the Chief Executive or Congress, wholly or partially, of any of
their powers or prerogatives.178

Petitioners concede that there is an armed public uprising in Marawi City.179 However, they insist that
the armed hostilities do not constitute rebellion in the absence of the element of culpable political
purpose, i.e., the removal from the allegiance to the Philippine Government or its laws: (i) the
territory of the Philippines or any part thereof; or (ii) any body of land, naval, or other armed forces;
or (b) to deprive the Chief Executive or Congress, wholly or partially, of any of their powers and
prerogatives.

The contention lacks merit.

a) Facts, events and

information upon which the President
anchored his decision to declare
martial law and suspend the privilege
of the writ of habeas corpus.

Since the President supposedly signed Proclamation No. 216 on May 23, 2017 at 10:00 PM, 180 the
Court will consider only those facts and/or events which were known to or have transpired on or
before that time, consistent with the scope of judicial review. Thus, the following facts and/or events
were deemed to have been considered by the President in issuing Proclamation No. 216, as plucked
from and extant in Proclamation No. 216 itself:

1. Proclamation No. 55 issued on September 4, 2016, declaring a state of national emergency on

account of lawless violence in Mindanao; 181

2. Series of violent acts182 committed by the Maute terrorist group including:

a) Attack on the military outpost in Butig, Lanao del Sur m February 2016, killing and
wounding several soldiers;

b) Mass jailbreak in Marawi City in August 2016 of the arrested comrades of the
Maute Group and other detainees;

3. On May 23, 2017:183

a) Takeover of a hospital in Marawi;

b) Establishment of several checkpoints within Marawi;

c) Burning of certain government and private facilities;

d) Mounting casualties on the part of the government;

e) Hoisting the flag of ISIS in several areas; and

f) Capability of the Maute Group and other rebel groups to sow terror, and cause death and damage
to property not only in Lanao del Sur but also in other parts of Mindanao; and the Report 184 submitted
to Congress:

1. Zamboanga siege;185

2. Davao bombing;186

3. Mamasapano carnage;187

4. Cotabato bombings;188

5. Sultan Kudarat bombings;189

6. Sulu bombings;190

7. Basilan bombings;191

8. Attempt to capture Hapilon was confronted with armed resistance by combined forces of ASG and
the Maute Group;192

9. Escalation of armed hostility against the government troops; 193

10. Acts of violence directed not only against government authorities and establishments but
civilians as well;194

11. Takeover of major social, economic and political foundations which paralyzed Marawi City; 195

12. The object of the armed hostilities was to lay the groundwork for the establishment of a
DAESH/ISIS wilayat or province;196

13. Maute Group has 263 active members, armed and combat-ready;197

14. Extensive networks or linkages of the Maute Group with foreign and local armed groups; 198

15. Adherence of the Maute Group to the ideals espoused by ISIS; 199

16. Publication of a video showing Maute Group's declaration of allegiance to ISIS; 200

17. Foreign-based terrorist groups provide financial and logistical support to the Maute Group; 201

18. Events on May 23, 2017 in Marawi City, particularly:

a) at 2:00 PM, members and sympathizers of the Maute Group and ASG attacked various
government and privately-owned facilities;202

b) at 4:00 PM, around fifty (50) armed criminals forcibly entered the Marawi City Jail; facilitated the
escape of inmates; killed a member of PDEA; assaulted and disarmed on-duty personnel and/or
locked them inside the cells; confiscated cellphones, personnel-issued firearms, and vehicles;203

c) by 4:30 PM, intem1ption of power supply; sporadic gunfights; city-wide power outage by
evening;204

d) from 6:00 PM to 7:00 PM, Maute Group ambushed and burned the Marawi Police Station;
commandeered a police car;205

e) BJMP personnel evacuated the Marawi City Jail and other affected areas; 206

f) control over three bridges in Lanao del Sur, namely, Lilod, Bangulo, and Sauiaran, was taken by
the rebels;207

g) road blockades and checkpoints set up by lawless armed groups at the Iligan-Marawi junction;208

h) burning of Dansalan College Foundation, Cathedral of Maria Auxiliadora, the nuns' quarters in the
church, and the Shia Masjid Moncado Colony; 209

i) taking of hostages from the church; 210

j) killing of five faculty members of Dansalan College foundation; 211

k) burning of Senator Ninoy Aquino College Foundation and Marawi Central Elementary Pilot
School;212

1) overrunning of Amai Pakpak Hospital;213

m) hoisting the ISIS flag in several areas; 214

n) attacking and burning of the Filipino-Libyan Friendship Hospital;215

o) ransacking of a branch of Landbank of the Philippines and commandeering an armored vehicle; 216

p) reports regarding Maute Group's plan to execute Christians; 217

q) preventing Maranaos from leaving their homes;218

r) forcing young Muslims to join their group; 219 and

s) intelligence reports regarding the existence of strategic mass action of lawless armed groups in
Marawi City, seizing public and private facilities, perpetrating killings of government personnel1 , and
committing armed uprising against and open defiance of the Government. 220

b) The President's Conclusion

After the assessment by the President of the aforementioned facts, he arrived at the following
conclusions, as mentioned in Proclamation No. 216 and the Report:

1) The Maute Group is "openly attempting to remove from the allegiance to the Philippine
Government this part of Mindanao and deprive the Chief Executive of his powers and prerogatives to
enforce the laws of the land and to maintain public order and safety in Mindanao, constituting the
crime of rebellion."221

2) "[L]awless armed groups have taken up arms and committed public uprising against the duly
constituted government and against the people of Mindanao, for the purpose of removing Mindanao
- starting with the City of Marawi, Lanao del Sur - from its allegiance to the Government and its laws
and depriving the Chief Executive of his powers and prerogatives to enforce the laws of the land and
to maintain public order and safety in Mindanao, to the great damage, prejudice, and detriment of
the people therein and the nation as a whole." 222

3) The May 23, 2017 events "put on public display the groups' clear intention to establish an Islamic
State and their capability to deprive the duly constituted authorities - the President, foremost - of
their powers and prerogatives. "223

4) "These activities constitute not simply a display of force, but a clear attempt to establish the
groups' seat of power in Marawi City for their planned establishment of a DAESH wilayat or province
covering the entire Mindanao."224

5) "The cutting of vital lines for transportation and power; the recruitment of young Muslims to further
expand their ranks and strengthen their force; the armed consolidation of their members throughout
Marawi City; the decimation of a segment of the city population who resist; and the brazen display of
DAESH flags constitute a clear, pronounced, and unmistakable intent to remove Marawi City, and
eventually the rest of Mindanao, from its allegiance to the Government." 225

6) "There exists no doubt that lawless armed groups are attempting to deprive the President of his
power, authority, and prerogatives within Marawi City as a precedent to spreading their control over
the entire Mindanao, in an attempt to undermine his control over executive departments, bureaus,
and offices in said area; defeat his mandate to ensure that all laws are faithfully executed; and
remove his supervisory powers over local governments."226

7) "Law enforcement and other government agencies now face pronounced difficulty sending their
reports to the Chief Executive due to the city-wide power outages. Personnel from the BJMP have
been prevented from performing their functions. Through the attack and occupation of several
hospitals, medical services in Marawi City have been adversely affected. The bridge and road
blockades set up by the groups effectively deprive the government of its ability to deliver basic
services to its citizens. Troop reinforcements have been hampered, preventing the government from
restoring peace and order in the area. Movement by both civilians and government personnel to and
from the city is likewise hindered."227

8) "The taking up of arms by lawless armed groups in the area, with support being provided by
foreign-based terrorists and illegal drug money, and their blatant acts of defiance which embolden
other armed groups in Mindanao, have resulted in the deterioration of public order and safety in
Marawi City; they have likewise compromised the security of the entire Island of Mindanao." 228

9) "Considering the network and alliance-building activities among terrorist groups, local criminals,
and lawless armed men, the siege f Marawi City is a vital cog in attaining their long-standing goal:
absolute control over the entirety of Mindanao. These circumstances demand swift and decisive
action to ensure the safety and security of the Filipino people and preserve our national integrity." 229

Thus, the President deduced from the facts available to him that there was an armed public uprising,
the culpable purpose of which was to remove from the allegiance to the Philippine Government a
portion of its territory and to deprive the Chief Executive of any of his powers and prerogatives,
leading the President to believe that there was probable cause that the crime of rebellion was and is
being committed and that public safety requires the imposition of martial law and suspension of the
privilege of the writ of habeas corpus.

A review of the aforesaid facts similarly leads the Court to conclude that the President, in issuing
Proclamation No. 216, had sufficient factual bases tending to show that actual rebellion exists. The
President's conclusion, that there was an armed public uprising, the culpable purpose of which was
the removal from the allegiance of the Philippine Government a portion of its territory and the
deprivation of the President from performing his powers and prerogatives, was reached after a
tactical consideration of the facts. In fine, the President satisfactorily discharged his burden of proof.

After all, what the President needs to satisfy is only the standard of probable cause for a valid
declaration of martial law and suspension of the privilege of the writ of habeas corpus. As Justice
Carpio decreed in his Dissent in Fortun:

x x x [T]he Constitution does not compel the President to produce such amount of proof as to unduly
burden and effectively incapacitate her from exercising such powers.

Definitely, the President need not gather proof beyond reasonable doubt, which is the standard of
proof required for convicting an accused charged with a criminal offense.x x x

xxxx

Proof beyond reasonable doubt is the highest quantum of evidence, and to require the President to
establish the existence of rebellion or invasion with such amount of proof before declaring martial
law or suspending the writ amounts to an excessive restriction on 'the President's power to act as to
practically tie her hands and disable her from effectively protecting the nation against threats to
public safety.'

Neither clear and convincing evidence, which is employed in either criminal or civil cases, is
indispensable for a lawful declaration of martial law or suspension of the writ. This amount of proof
likewise unduly restrains the President in exercising her emergency powers, as it requires proof
greater than preponderance of evidence although not beyond reasonable doubt.

Not even preponderance of evidence, which is the degree of proof necessary in civil cases, is
demanded for a lawful declaration of martial law.

xxxx

Weighing the superiority of the evidence on hand, from at least two opposing sides, before she can
act and impose martial law or suspend the writ unreasonably curtails the President's emergency
powers.

Similarly, substantial evidence constitutes an unnecessary restriction on the President's use of her
emergency powers. Substantial evidence is the amount of proof required in administrative or quasi-
judicial cases, or that amount of relevant evidence which a reasonable mind might accept as
adequate to justify a conclusion.

I am of the view that probable cause of the existence of either invasion or rebellion suffices and
satisfies the standard of proof for a valid declaration of martial law and suspension of the writ.

Probable cause is the same amount of proof required for the filing of a criminal information by the
prosecutor and for the issuance of an arrest warrant by a judge. Probable cause has been defined
as a 'set of facts and circumstances as would lead a reasonably discreet and prudent man to believe
that the offense charged in the Information or any offense included therein has been committed by
the person sought to be arrested.'

In determining probable cause, the average man weighs the facts and circumstances without
resorting to the calibrations of the rules of evidence of which he has no technical knowledge. He
relies on common sense. A finding of probable cause needs only to rest on evidence showing that,
more likely than not, a crime has been committed and that it was committed by the accused.
Probable cause demands more than suspicion; it requires less than evidence that would justify
conviction.

Probable cause, basically premised on common sense, is the most reasonable, most practical, and
most expedient standard by which the President can fully ascertain the existence or non-existence of
rebellion, necessary for a declaration of martial law x x x230

c) Inaccuracies, simulations,
falsities, and hyperboles.

The allegation in the Lagman Petition that the facts stated in Proclamation No. 216 and the Report
are false, inaccurate, simulated, and/or hyperbolic, does not persuade. As mentioned, the Court is
not concerned about absolute correctness, accuracy, or precision of the facts because to do so
would unduly tie the hands of the President in responding to an urgent situation.

Specifically, it alleges that the following facts are not true as shown by its counter-evidence.231

FACTUAL STATEMENTS COUNTER-EVIDENCE

(1) that the Maute group attacked Amai Statements made by:
Pakpak Hospital and hoisted the DAESH flag (a) Dr. Amer Saber, Chief of the Hospital
there, among several locations. As of 0600H (b) Health Secretary Paulyn Ubial;
of 24 May 2017, members of the Maute Group (c) PNP Spokesperson Senior Supt. Dionardo
were seen guarding the entry gates of the Carlos;
Amai Pakpak Hospital and that they held (d) AFP Public Affairs Office Chief Co. Edgard
hostage the employees of the Hospital and Arevalo; and
took over the PhilHealth office located thereat (e) Marawi City Mayor Majul Gandamra
(Proclamation No. 216 and Report); denying that the hospital was attacked by the
Maute Group citing online news articles of
Philstar, Sunstar, Inquirer, and Bombo
Radyo.232
2. that the Maute Group ambushed and Statements made by PNP Director General
burned the Marawi Police Station Ronald dela Rosa and Marawi City Mayor
(Proclamation No. 216 and the Report); Majul Gandamra in the online news reports of
ABS-CBN News and CNN
 Philippines233 denying that the Maute group
occupied the Marawi Police Station.
3. that lawless armed groups likewise Statement made by the bank officials in the
ransacked the Landbank of the Philippines on-line news article of Philstar234 that the
and commandeered one of its armored Marawi City branch was not ransacked but
vehicles (Report); sustained damages from the attacks.
4. that the Marawi Central Elementary Pilot Statements in the on-line news article of
School was burned (Proclamation No. 216 and Philstar235 made by the Marawi City Schools
the Report); Division Assistant Superintendent Ana Alonto
denying that the school was burned and
Department of Education Assistant Secretary
Tonisito Umali stating that they have not
received any report of damage.
5. that the Maute Group attacked various Statement in the on-line news article of
government facilities (Proclamation No. 216 Inquirer236 made by Marawi City Mayor Majul
and the Report). Gandamra stating that the ASG and the Maute
Terror Groups have not taken over any
government facility in Marawi City.

However, the so-called counter-evidence were derived solely from unverified news articles on the
internet, with neither the authors nor the sources shown to have affirmed the contents thereof It was
not even shown that efforts were made to secure such affirmation albeit the circumstances proved
futile. As the Court has consistently ruled, news articles are hearsay evidence, twice removed, and
are thus without any probative value, unless offered for a purpose other than proving the truth of the
matter asserted.237 This pronouncement applies with equal force to the Cullamat Petition which
likewise submitted online news articles238 as basis for their claim of insufficiency of factual basis.

Again, it bears to reiterate that the maxim falsus in uno, falsus in omnibus finds no application in
these cases. As long as there are other facts in the proclamation and the written Report indubitably
showing the presence of an actual invasion or rebellion and that public safety requires the
declaration and/or suspension, the finding of sufficiency of factual basis, stands.

d) Ruling in Bedol v.
Commission on Elections not
Applicable.

Petitioners, however, insist that in Bedol v. Commission on Elections,239 news reports may be
admitted on grounds of relevance, trustworthiness, and necessity. Petitioners' reliance on this case
is misplaced. The Court in Bedol made it clear that the doctrine of independent relevant statement,
which is an ·exception to the hearsay rule, applies in cases "where only the fact that such
statements were made is relevant, and the truth or falsity thereof is immaterial." 240 Here, the question
is not whether such statements were made by Saber, et. al., but rather whether what they said are
true. Thus, contrary to the view of petitioners, the exception in Bedol finds no application here.

e) There are other independent

facts which support the finding that,
more likely than not, rebellion exists
and that public safety requires it.
Moreover, the alleged false and/or inaccurate statements are just pieces and parcels of the Report;
along with these alleged false data is an arsenal of other independent facts showing that more likely
than not, actua1 rebellion exists, and public safety requires the declaration of martial law or
suspension of the privilege of the writ of habeas corpus. To be precise, the alleged false and/or
inaccurate statements are only five out of the severa1 statements bulleted in the President's Report.
Notably, in the interpellation by Justice Francis H. Jardeleza during the second day of the oral
argument, petitioner Lagman admitted that he was not aware or that he had no personal knowledge
of the other incidents cited.241 As it thus stands, there is no question or challenge with respect to the
reliability of the other incidents, which by themselves are ample to preclude the conclusion that the
President's report is unreliable and that Proclamation No. 216 was without sufficient factual basis.

Verily, there is no credence to petitioners' claim that the bases for the President's imposition of
martial law and suspension of the writ of habeas corpus were mostly inaccurate, simulated, false
and/or hyperbolic.

X. Public safety requires the declaration of

martial law and the suspension of the privilege of
the writ of habeas corpus in the whole of
Mindanao.

Invasion or rebellion alone may justify resort to the calling out power but definitely not the declaration
of martial law or suspension of the privilege of the writ of habeas corpus. For a declaration of martial
law or suspension of the privilege of the writ of habeas corpus to be valid, there must be a
concurrence of actual rebellion or invasion and the public safety requirement. In his Report, the
President noted that the acts of violence perpetrated by the ASG and the Maute Group were
directed not only against government forces or establishments but likewise against civilians and their
properties.242 In addition and in relation to the armed hostilities, bomb threats were issued;243 road
blockades and checkpoints were set up; 244 schools and churches were burned;245 civilian hostages
were taken and killed;246 non-Muslims or Christians were targeted;247 young male Muslims were forced
to join their group;248 medical services and delivery of basic services were
hampered;249 reinforcements of government troops and civilian movement were hindered; 250 and the
security of the entire Mindanao Island was compromised. 251

These particular scenarios convinced the President that the atrocities had already escalated to a
level that risked public safety and thus impelled him to declare martial law and suspend the privilege
of the writ of habeas corpus. In the last paragraph of his Report, the President declared:

While the government is presently conducting legitimate operations to address the on-going
rebellion, if not the seeds of invasion, public safety necessitates the continued implementation of
martial law and the suspension of the privilege of the writ of habeas corpus in the whole of Mindanao
until such time that the rebellion is completely quelled. 252

Based on the foregoing, we hold that the parameters for the declaration of martial law and
suspension of the privilege of the writ f habeas corpus have been properly and fully complied with.
Proclamation No. 216 has sufficient factual basis there being probable cause to believe that rebellion
exists and that public safety requires the martial law declaration and the suspension of the privilege
of the writ of habeas corpus.

XI. Whole of Mindanao

a) The overriding and

paramount concern of martial law is
the protection of the security of the
nation and the good and safety of the
public.

Considering the nation's and its people's traumatic experience martial law under the Marcos regime,
one would expect the framers of the 1987 Constitution to stop at nothing from not resuscitating the
law. Yet it would appear that the constitutional writers entertained no doubt about the necessity and
practicality of such specie of extraordinary power and thus, once again, bestowed on the
Commander-in-Chief the power to declare martial law albeit in its diluted form.

Indeed, martial law and the suspension of the privilege of the writ of habeas corpus are necessary
for the protection of the security of the nation; suspension of the privilege of the writ of habeas
corpus is "precautionary , and although it might [curtail] certain rights of individuals, [it] is for the
purpose of defending and protecting the security of the state or the entire country and our sovereign
people".253 Commissioner Ople referred to the suspension of the privilege of the writ of habeas
corpus as a "form of immobilization" or "as a means of immobilizing potential internal enemies"
"especially in areas like Mindanao."254

Aside from protecting the security of the country, martial law also guarantees and promotes public
safety. It is worthy of mention that rebellion alone does not justify the declaration of martial law or
suspension of the privilege of the writ of habeas corpus; the public safety requirement must likewise
be present.

b) As Commander-in-Chief, the
President receives vital, relevant,
classified, and live information which
equip and assist him in making
decisions.

In Parts IX and X, the Court laid down the arsenal of facts and events that formed the basis for
Proclamation No. 216. For the President, the totality of facts and events, more likely than not, shows
that actual rebellion exists and that public safety requires the declaration of martial law and
suspension of the privilege of the writ of habeas corpus. Otherwise stated, the President believes
that there is probable cause that actual rebellion exists and public safety warrants the issuance of
Proclamation No. 216. In turn, the Court notes that the President, in arriving at such a conclusion,
relied on the facts and events included in the Report, which we find sufficient.

To be sure, the facts mentioned in the Proclamation and the Report are far from being exhaustive or
all-encompassing. At this juncture, it may not be amiss to state that as Commander-in-Chief, the
President has possession of documents and information classified as "confidential", the contents of
which cannot be included in the Proclamation or Report for reasons of national security. These
documents may contain information detailing the position of government troops and rebels, stock of
firearms or ammunitions, ground commands and operations, names of suspects and sympathizers,
etc. , In fact, during the closed door session held by the Court, some information came to light,
although not mentioned in the Proclamation or Report. But then again, the discretion whether to
include the same in the Proclamation or Report is the judgment call of the President. In fact,
petitioners concede to this. During the oral argument, petitioner Lagman admitted that "the assertion
of facts [in the Proclamation and Report] is the call of the President." 255

It is beyond cavil that the President can rely on intelligence reports and classified documents. "It is
for the President as [C]ommander-in[C]hief of the Armed Forces to appraise these [classified
evidence or documents/]reports and be satisfied that the public safety demands the suspension of
the writ."256 Significantly, respect to these so-called classified documents is accorded even "when
[the] authors of or witnesses to these documents may not be revealed." 257

In fine, not only does the President have a wide array of information before him, he also has the
right, prerogative, and the means to access vital, relevant, and confidential data, concomitant with
his position as Commander-in-Chief of the Armed Forces.

c) The Court has no machinery

or tool equal to that of the
Commander-in-Chief to ably and
properly assess the ground
conditions.

In contrast, the Court does not have the same resources available to the President. However, this
should not be considered as a constitutiona1 lapse. On the contrary, this is in line with the function of
the Court, particularly in this instance, to determine the sufficiency of factual basis of Proclamation
No. 216. As thoroughly discussed in Part VIII, the determination by the Court of the sufficiency of
factual basis must be limited only to the facts and information mentioned in the Report and
Proclamation. In fact, the Court, in David v. President Macapagal-Arroyo,258 cautioned not to
"undertake an independent investigation beyond the pleadings." In this regard, "the Court will have
to rely on the fact-finding capabilities of the [E]xecutive [D]epartment;"259 in turn, the Executive
Department will have to open its findings to the Court, 260 which it did during the closed door session
last June 15, 2017.

d) The 1987 Constitution

grants to the President, as
Commander-in-Chief, the discretion
to determine the territorial coverage
or application of martial law or
suspension of the privilege of the writ
of habeas corpus.

Section 18, Article VII of the Constitution states that "[i]n case of invasion or rebellion, when the
public safety requires it, [the President] may x x x suspend the privilege of writ of habeas corpus or
place the Philippines or any part thereof under martial law." Clearly, the Constitution grants to the
President the discretion to determine the territorial coverage of martial law and the suspension of the
privilege of the writ of habeas corpus. He may put the entire Philippines or only a part thereof under
martial law.

This is both an acknowledgement and a recognition that it is the Executive Department, particularly
the President as Commander-in-Chief, who is the repository of vital, classified, and live information
necessary for and relevant in calibrating the territorial application of martial law and the suspension
of the privilege of the writ of habeas corpus. It, too, is a concession that the President has the
tactical and military support, and thus has a more informed understanding of what is happening on
the ground. Thus, the Constitution imposed a limitation on the period of application, which is 60
days, unless sooner nullified, revoked or extended, but not on the territorial scope or area of
coverage; it merely stated "the Philippines or any part thereof," depending on the assessment of the
President.

e) The Constitution has

provided sufficient safeguards against
possible abuses of Commander-in-
Chief's powers; further curtailment of
Presidential powers should not only
be discouraged but also avoided.

Considering the country's history, it is understandable that the resurgence of martial law would
engender apprehensions among the citizenry. Even the Court as an institution cannot project a
stance of nonchalance. However, the importance of martial law in the context of our society should
outweigh one's prejudices and apprehensions against it. The significance of martial law should not
be undermined by unjustified fears and past experience. After all, martial law is critical and crucial to
the promotion of public safety, the preservation of the nation's sovereignty and ultimately, the
survival of our country. It is vital for the protection of the country not only against internal enemies
but also against those enemies lurking from beyond our shores. As such, martial law should not be
cast aside, or its scope and potency limited and diluted, based on bias and unsubstantiated
assumptions.

Conscious of these fears and apprehensions, the Constitution placed several safeguards which
effectively watered down the power to declare martial law. The 1987 Constitution "[clipped] the
powers of [the] Commander-in-Chief because of [the] experience with the previous regime." 261 Not
only were the grounds limited to actual invasion or rebellion, but its duration was likewise fixed at 60
days, unless sooner revoked, nullified, or extended; at the same time, it is subject to the veto powers
of the Court and Congress.

Commissioner Monsod, who, incidentally, is a counsel for the Mohamad Petition, even exhorted his
colleagues in the Constitutional Convention to look at martial law from a new perspective by
elaborating on the sufficiency of the proposed safeguards:

MR. MONSOD. x x x

Second, we have been given a spectre of non sequitur, that the mere declaration of martial law for a
fixed period not exceeding 60 days, which is subject to judicial review, is going to result in numerous
violations of human rights, the predominance of the military forever and in untold sufferings. Madam
President, we are talking about invasion and rebellion. We may not have any freedom to speak of
after 60 days, if we put as a precondition the concurrence of Congress. That might prevent the
President from acting at that time in order to meet the problem. So I would like to suggest that,
perhaps, we should look at this in its proper perspective. We are only looking at a very specific case.
We are only looking at a case of the first 60 days at its maximum. And we are looking at actual
invasion and rebellion, and there are other safeguards in those cases. 262

Even Bishop Bacani was convinced that the 1987 Constitution has enough safeguards against
presidential abuses and commission of human rights violations. In voting yes for the elimination of
the requirement of prior concurrence of Congress, Bishop Bacani stated, viz.:

BISHOP BACANI. Yes, just two sentences. The reason I vote II yes is that despite my concern for
human rights, I believe that a good President can also safeguard human rights and human lives as
well. And I do not want to unduly emasculate the powers of the President. Xxx263

Commissioner Delos Reyes shared the same sentiment, to wit:

MR. DE LOS REYES. May I explain my vote, Madam President.

x x x The power of the President to impose martial law is doubtless of a very high and delicate
nature. A free people are naturally jealous of the exercise of military power, and the power to impose
martial law is certainly felt to be one of no ordinary magnitude. But as presented by the Committee,
there are many safeguards: 1) it is limited to 60 days; 2) Congress can revoke it; 3) the Supreme
Court can still review as to the sufficiency of factual basis; and 4) it does not suspend the operation
of the Constitution. To repeat what I have quoted when I interpellated Commissioner Monsod, it is
said that the power to impose martial law is dangerous to liberty and may be abused. All powers
may be abused if placed in unworthy hands. But it would be difficult, we think, to point out any other
hands in which this power will be more safe and at the same time equally effectual. When citizens of
the State are in arms against each other and the constituted authorities are unable to execute the
laws, the action of the President must be prompt or it is of little value. x x x264 (Emphasis supplied)

At this juncture, it bears to stress that it was the collective sentiment of the framers of the 1987
Constitution that sufficient safeguards against possible misuse and abuse by the Commander-in-
Chief of his extraordinary powers are already in place and that no further emasculation of the
presidential powers is called for in the guise of additional safeguards. The Constitution recognizes
that any further curtailment, encumbrance, or emasculation of the presidential powers would not
generate any good among the three co-equal branches, and to the country and its citizens as a
whole. Thus:

MR. OPLE. The reason for my concern, Madam President, is that when we put all of these
encumbrances on the President and Commander-in-Chief during an actual invasion or rebellion,
given an intractable Congress that may be dominated by opposition parties, we may be actually
impelling the President to use the sword of Alexander to cut the Gordian knot by just declaring a
revolutionary government that sets him free to deal with the invasion or the insurrection. x x
x265 (Emphasis supplied)

f) Rebellion and public safety;

nature, scope, and range.

It has been said that the "gravamen of the crime of rebellion is an armed public uprising against the
government;"266 and that by nature, "rebellion is x x x a crime of masses or multitudes, involving
crowd action, that cannot be confined a priori, within predetermined bounds."267 We understand this
to mean that the precise extent or range of the rebellion could not be measured by exact metes and
bounds.

To illustrate: A contingent armed with high-powered firearms publicly assembled in Padre Faura,
Ermita, Manila where the Court's compound is situated. They overpowered the guards, entered the
Court's premises, and hoisted the ISIS flag. Their motive was political, i.e., they want to remove from
the allegiance to the Philippine government a part of the territory of the Philippines, particularly the
Court's compound and establish it as an ISIS-territory.

Based on the foregoing illustration, and vis-a-vis the nature of the crime of rebellion, could we validly
say that the rebellion is confined only within the Court's compound? Definitely not. The possibility
that there are other rebels positioned in the nearby buildings or compound of the Philippine General
Hospital (PGH) or the Manila Science High Schoo1 (MSHS) could not be discounted. There is no
way of knowing that all participants in the rebellion went and stayed inside the Court's compound.

Neither could it be validly argued that the armed contingent positioned in PGH or MSHS
is not engaged in rebellion because there is no publicity in their acts as, in fact, they were merely
lurking inside the compound of PGH and MSHS. However, it must be pointed out that for the crime
of rebellion to be consummated, it is not required that all armed participants should congregate
in one place, in this case, the Court's compound, and publicly rise in arms against the government
for the attainment of their culpable purpose. It suffices that a portion of the contingent gathered and
formed a mass or a crowd and engaged in an armed public uprising against the government.
Similarly, it cannot be validly concluded that the grounds on which the armed public uprising actually
to6k place should be the measure of the extent, scope or range, of the actual I rebellion. This is
logical since the other rebels positioned in PGH, MSHS, I or elsewhere, whose participation did not
involve the publicity aspect of rebellion, may also be considered as engaging in the crime of
rebellion.

Proceeding from the same illustration, suppose we say that the President, after finding probable
cause that there exists actual rebellion and that public safety requires it, declares martial law and
suspends the writ of habeas corpus in the whole of Metro Manila, could we then say that the
territorial coverage of the proclamation is too expansive?

To answer this question, we revert back to the premise that the discretion to determine the territorial
scope of martial law lies with the President. The Constitution grants him the prerogative whether to
put the entire Philippines or any part thereof under martial law. There is no constitutional edict that
martial law should be confined only in the particular place where the armed public uprising actually
transpired. This is not only practical but also logical. Martial law is an urgent measure since at stake
is the nation's territorial sovereignty and survival. As such, the President has to respond quickly.
After the rebellion in the Court's compound, he need not wait for another rebellion to be mounted in
Quezon City before he could impose martial law thereat. If that is the case, then the President would
have to wait until every remote corner in the country is infested with rebels before he could declare
martial law in the entire Philippines. For sure, this is not the scenario envisioned by the Constitution.

Going back to the illustration above, although the President is not required to impose martial law
only within the Court's compound because it is where the armed public uprising actually transpired,
he may do so if he sees fit. At the same time, however, he is not precluded from expanding the
coverage of martial law beyond the Court's compound. After all, rebellion is not confined within
predetermined bounds.

Public safety, which is another component element for the declaration of martial law, "involves the
prevention of and protection from events that could endanger the safety of the general public from
significant danger, injury/harm, or damage, such as crimes or disasters." 268 Public safety is
an abstract term; it does not take any physical form. Plainly, its range, extent or scope could not be
physically measured by metes and bounds.

Perhaps another reason why the territorial scope of martial law should not necessarily be limited to
the particular vicinity where the armed public uprising actually transpired, is because of the unique
characteristic of rebellion as a crime. "The crime of rebellion consists of many acts. It is a vast
movement of men and a complex net of intrigues and plots. Acts committed in furtherance of
rebellion[,] though crimes in themselves[,] are deemed absorbed in one single crime of
rebellion."269 Rebellion absorbs "other acts committed in its pursuance".270 Direct
assault,271 murder,272 homicide,273 arson,274 robbery,275 and kidnapping,276 just to name a few, are
absorbed in the crime of rebellion if committed in furtherance of rebellion; "[i]t cannot be made a
basis of a separate charge."277 Jurisprudence also teaches that not only common crimes may be
absorbed in rebellion but also "offenses under special laws [such as Presidential Decree No.
1829]278 which are perpetrated in furtherance of the political offense". 279 "All crimes, whether
punishable under a special law or general law, which are me e components or ingredients, or
committed in furtherance thereof, become absorbed in the crime of rebellion and cannot be isolated
and charged as separate crimes in themselves. 280

Thus, by the theory of absorption, the crime of murder committed in Makati City, if committed in
furtherance of the crime of rebellion being hypothetically staged in Padre Faura, Ermita, Manila, is
stripped of its common complexion and is absorbed in the crime of rebellion. This all the more
makes it difficult to confine the application of martial law only to the place where the armed public
uprising is actually taking place. In the illustration above, Padre Faura could only be the nerve center
of the rebellion but at the same time rebellion is also happening in Makati City.

In fine, it is difficult, if not impossible, to fix the territorial scope of martial law in direct proportion to
the "range" of actual rebellion and public safety simply because rebellion and public safety have no
fixed physical dimensions. Their transitory and abstract nature defies precise measurements; hence,
the determination of the territorial scope of martial law could only be drawn from arbitrary, not fixed,
variables. The Constitution must have considered these limitations when it granted the President
wide leeway and flexibility in determining the territorial scope of martial law.

Moreover, the President's duty to maintain peace and public safety is not limited only to the place
where there is actual rebellion; it extends to other areas where the present hostilities are in danger of
spilling over. It is not intended merely to prevent the escape of lawless elements from Marawi City,
but also to avoid enemy reinforcements and to cut their supply lines coming from different parts of
Mindanao. Thus, limiting the proclamation and/or suspension to the place where there is actual
rebellion would not only defeat the purpose of declaring martial law, it will make the exercise thereof
ineffective and useless.

g) The Court must stay within

the confines of its power.

The Court can only act within the confines of its power. For the Court to overreach is to infringe
1âwphi1

upon another's territory. Clearly, the power to determine the scope of territorial application belongs to
the President. "The Court cannot indulge in judicial legislation without violating the principle of
separation of powers, and, hence, undermining the foundation of our republican system."281

To reiterate, the Court is not equipped with the competence and logistical machinery to determine
the strategical value of other places in the military's efforts to quell the rebellion and restore peace. It
would be engaging in an act of adventurism if it dares to embark on a mission of deciphering the
territorial metes and bounds of martial law. To be blunt about it, hours after the proclamation of
martial law none of the members of this Court could have divined that more than ten thousand souls
would be forced to evacuate to Iligan and Cagayan de Oro and that the military would have to
secure those places also; none of us could have predicted that Cayamora Maute would be arrested
in Davao City or that his wife Ominta Romato Maute would be apprehended in Masiu, Lanao del Sur;
and, none of us had an inkling that the Bangsamoro Islamic Freedom Fighters (BIFF) would launch
an attack in Cotabato City. The Court has no military background and technical expertise to predict
that. In the same manner, the Court lacks the technical capability to determine which part of
Mindanao would best serve as forward operating base of the military in their present endeavor in
Mindanao. Until now the Court is in a quandary and can only speculate whether the 60-day lifespan
of Proclamation No. 216 could outlive the present hostilities in Mindanao. It is on this score that the
Court should give the President sufficient leeway to address the peace and order problem in
Mindanao.

Thus, considering the current situation, it will not serve any purpose if the President is goaded into
using "the sword of Alexander to cut the Gordian knot" 282 by attempting to impose another
encumbrance; after all "the declaration of martial law or the suspension of the privilege of the writ
of habeas corpus is essentially an executive act."283

Some sectors, impelled perhaps by feelings of patriotism, may wish to subdue, rein in, or give the
President a nudge, so to speak, as some sort of reminder of the nation's experience under the
Marcos-styled martial law. However, it is not fair to judge President Duterte based on the ills some of
us may have experienced during the Marcos-martial law era. At this point, the Court quotes the
insightful discourse of Commissioner Ople:

MR. OPLE. x x x

xxxx

Madam President, there is a tendency to equate patriotism with rendering the executive branch of
the government impotent, as though by reducing drastically the powers of the executive, we are
rendering a service to human welfare. I think it is also important to understand that the extraordinary
measures contemplated in the Article on the Executive pertain to a practical state of war existing in
this country when national security will become a common bond of patriotism of all Filipinos,
especially if it is an actual invasion or an actual rebellion, and the President may have to be given a
minimum flexibility to cope with such unprecedented threats to the survival of a nation. I think the
Commission has done so but at the same time has not, in any manner, shunned the task of putting
these powers under a whole system of checks and balances, including the possible revocation at
any time of a proclamation of martial law by the Congress, and in any case a definite determination
of these extraordinary powers, subject only to another extension to be determined by Congress in
the event that it is necessary to do so because the emergency persists.

So, I think this Article on the Executive for which I voted is completely responsible; it is attuned to the
freedom and the rights of the citizenry. It does not render the presidency impotent and, at the same
time, it allows for a vigorous representation of the people through their Congress when an
emergency measure is in force and effect.284

h) Several local armed groups

have formed linkages aimed at
committing rebellion and acts in
furtherance thereof in the whole of
Mindanao.

With a predominantly Muslim population, Marawi City is "the only Islamic City of the South." 285 On
April 15, 1980, it was conferred the official title of "Islamic City of Marawi."286 The city's first name,
"Dansalan," "was derived from the word 'dansal', meaning a destination point or rendezvous.
Literally, it also means arrival or coming."287 Marawi lies in the heart of Mindanao. In fact, the
Kilometer Zero marker in Mindanao is found in Marawi City thereby making Marawi City the point of
reference of all roads in Mindanao.

Thus, there is reasonable basis to believe that Marawi is only the staging point of the rebellion, both
for symbolic and strategic reasons. Marawi may not be the target but the whole of Mindanao. As
mentioned in the Report, "[l]awless armed groups have historically used provinces adjoining Marawi
City as escape routes, supply lines, and backdoor passages;" 288 there is also the plan to establish
a wilayat in Mindanao by staging the siege of Marawi. The report that prior to May 23, 2017,
Abdullah Maute had already dispatched some of his men to various places in Mindanao, such as
Marawi, Iligan, and Cagayan de Oro for bombing operations, carnapping, and the murder of military
and police personnel,289 must also be considered. Indeed, there is some semblance of truth to the
contention that Marawi is only the start, and Mindanao the end.

Other events also show that the atrocities were not concentrated in Marawi City. Consider these:
a. On January 13, 2017, an improvised explosive device (IED) exploded in Barangay Campo Uno,
Lamita City, Basilan. A civilian was killed while another was wounded. 290

b. On January 19, 2017, the ASG kidnapped three Indonesians near Bakungan Island, Taganak,
Tawi-Tawi.291

c. On January 29, 2017, the ASG detonated an IED in Barangay Danapah, Albarka, Basilan
resulting in the death of two children and the wounding of three others.292

d. From March to May 2017, there were eleven (11) separate instances of IED explosions by the
BIFF in Mindanao. These resulted in the death and wounding of several personalities.293

e. On February 26, 2017, the ASG beheaded its kidnap victim, Juergen Kantner in Sulu. 294

f. On April 11, 2017, the ASG infiltrated Inabaga, Bohol resulting in firefights between rebels and
government troops.295

g. On April 13, 2017, the ASG beheaded Filipino kidnap victim Noel Besconde. 296

h. On April 20, 2017, the ASG kidnapped SSg. Anni Siraji and beheaded him three days later.297

There were also intelligence reports from the military about offensives committed by the ASG and
other local rebel groups. All these suggest that the rebellion in Marawi has already spilled over to
other parts of Mindanao.

Moreover, considering the widespread atrocities in Mindanao and the linkages established among
rebel groups, the armed uprising that was initially staged in Marawi cannot be justified as confined
only to Marawi. The Court therefore will not simply disregard the events that happened during the
Davao City bombing, the Mamasapano massacre, the Zamboanga City siege, and the countless
bombings in Cotabato, Sultan Kudarat, Sulu, and Basilan, among others. 298 The Court cannot simply
take the battle of Marawi in isolation. As a crime without predetermined bounds, the President has
reasonable basis to believe that the declaration of martial law, as well as the suspension of the
privilege of the writ of habeas corpus in the whole of Mindanao, is most necessary, effective, and
called for by the circumstances.

i) Terrorism neither negates

nor absorbs rebellion.

It is also of judicial notice that the insurgency in Mindanao has been ongoing for decades. While
some groups have sought legal and peaceful means, others have resorted to violent extremism and
terrorism. Rebellion may be subsumed under the crime of terrorism, which has a broader scope
covering a wide range of predicate crimes. In fact, rebellion is only one of the various means by
which terrorism can be committed.299 However, while the scope of terrorism may be comprehensive,
its purpose is distinct and well-defined. The objective of a "'terrorist" is to sow and create a condition
of widespread fear among the populace in order to coerce the government to give in to an unlawful
demand. This condition of widespread fear is traditionally achieved through bombing, kidnapping,
mass killing, and beheading, among others. In contrast, the purpose of rebellion, as previously
discussed, is political, i.e., (a) to remove from the allegiance to the Philippine Government or its
laws: (i) the territory of the Philippines or any part thereof; (ii) any body of land, naval, or armed
forces; or (b) to deprive the Chief Executive or Congress, wholly or partially, of any of their powers
and prerogatives.
In determining what crime was committed, we have to look into the main objective of the
malefactors. If it is political, such as for the purpose of severing the allegiance of Mindanao to the
Philippine Government to establish a wilayat therein, the crime is rebellion. If, on the other hand, the
primary objective is to sow and create a condition of widespread and extraordinary fear and panic
among the populace in order to coerce the government to give in to an unlawful demand, the crime
is terrorism. Here, we have already explained and ruled that the President did not err in believing
that what is going on in Marawi City is one contemplated under the crime of rebellion.

In any case, even assuming that the insurgency in Marawi City can also be characterized as
terrorism, the same will not in any manner affect Proclamation No. 216. Section 2 of Republic Act
(RA) No. 9372, otherwise known as the Human Security Act of 2007 expressly provides that
"[n]othing in this Act shall be interpreted as a curtailment, restriction or diminution of constitutionally
recognized powers of the executive branch of the government." Thus, as long as the President
complies with all the requirements of Section 18, Article VII, the existence of terrorism cannot
prevent him from exercising his extraordinary power of proclaiming martial ' law or suspending the
privilege of the writ of habeas corpus. After all, the extraordinary powers of the President are
bestowed on him by the Constitution. No act of Congress can, therefore, curtail or diminish such
powers.

Besides, there is nothing in Art. 134 of the RPC and RA 9372 which states that rebellion and
terrorism are mutuallty exclusive of each other or that they cannot co-exist together. RA 9372 does
not expressly or impliedly repeal Art. 134 of the RPC. And while rebellion is one of the predicate
crimes of terrorism, one cannot absorb the other as they have different elements. 300

Verily, the Court upholds the validity of the declaration of martial law and suspension of the privilege
of the writ of habeas corpus in the entire Mindanao region.

At the end of the day, however ardently and passionately we may believe in the validity or
correctness of the varied and contentious causes or principles that we espouse, advocate or
champion, let us not forget that at this point in time we, the Filipino people, are confronted with a
crisis of such magnitude and proportion that we all need to summon the spirit of unity and act as one
undivided nation, if we are to overcome and prevail in the struggle at hand.

Let us face up to the fact that the siege in Marawi City has entered the second month and only God
or Allah knows when it would end. Let us take notice of the fact that the casualties of the war are
mounting. To date, 418 have died. Out of that were 303 Maute rebels as against 71 government
troops and 44 civilians.

Can we not sheathe our swords and pause for a while to bury our dead, including our differences
and prejudices?

WHEREFORE, the Court FINDS sufficient factual bases for the issuance of Proclamation No. 216
and DECLARES it as CONSTITUTIONAL. Accordingly, the consolidated Petitions are
hereby DISMISSED.

SO ORDERED.
 Republic of the Philippines
SUPREME COURT
Manila

SECOND DIVISION

G.R. No. 77865 December 4, 1998

PEOPLE OF THE PHILIPPINES, appellee,

vs.
RAFAEL OLIVARES, JR. and DANILO ARELLANO, appellants.

MARTINEZ, J.:

Involved in this case is the crime of robbery with homicide committed during the season of yuletide.
The facts as narrated in the People's brief are as follows:

Prosecution witness Sgt. Eduardo Marcelo testified that he took the statements of
appellant Rafael Olivares, Jr. and one Purisimo Macaoili and verbal investigation of
appellant Danilo Arellano because the latter refused to give any statement.

Prosecution witness Cpl. Tomas Juan of the Valenzuela Police Station V testified
that in the morning of December 28, 1981, he was assigned by his station
commander to follow-up the robbery with homicide that took place at Tanada
Subdivision, Gen. T. De Leon, Valenzuela, Metro Manila. He learned from Patrolman
Bote that a regular employee of the Cardinal Plastic Industries (where the crime was
committed) had not yet reported for work. With that information, Cpl. Juan,
accompanied by Pat. Rodriquez Acharon, and Reyes proceeded to the business
establishment and were able to confirm from the workers that appellant Danilo
Arellano failed to report for work since the commission of the crime, Melchor Salle
(cousin of appellant Arellano) volunteered to bring them to Danilo Arellano, in a
factory situated in San Juan, Metro Manila. Thereat, Melchor Salle was able to
secure information from the "barkada" of appellant Arellano who turned out to be
appellant Olivares, Jr. Appellant Olivares accompanied them to Broadway, Barangay
Kristong Hari, Quezon City, where they found appellant Arellano. After being ask
about the incident that took place at the Cardinal Plastic Industries, appellant
Arellano readily admitted to the police authorities his participation in the commission
of the crime. Thereafter, appellant Arellano was invited to the police station (pp. 4-9,
TSN, November 3, 1982). On further direct examination, Cpl. Juan identified in open
court the Sanyo cassettes, the tapes and the wristwatch they recovered from the
place where appellant Arellano pointed to them. Said items were turned over to the
police station (pp. TSN, Nov. 17, 1982).

Prosecution witness Purisimo Macaoili testified that he found the dead body of Mr.
Sy (Tiu Hui) in the morning of december 26, 1981 inside the building where the
business establishment is situated. Mr. Sy was residing alone inside his room
because at that time his wife was in Hongkong. Some of the workers also reside
inside the business establishment. Mr. Macaoili also saw the dead body of the father
of Mr. Sy (Zie Sing Piu) in the same building inside the establishment which was at
that time registered as Foodman & Company, a candy manufacturer (now Cardinal
Plastic Industries). The bodies of the victims were about eight (8) to ten (10) arms-
length apart. Thereafter, his companion Erning phoned Mr. Sy's brother who was
then residing near Malacañang and informed him about the incident. Mr. Sy's brother
arrived in the factory at around 6:30-o'clock in the morning and saw the bodies of the
victims. The same brother asked for the assistance of the police who arrived at the
scene of the crime and who conducted on-the-spot investigation. Later on and upon
the direction of the police, the bodies of the victims were brought to the morgue. Mr.
Macaoili did not notice any missing personal belongings of the victims at that time
inside the building (pp. 4-13, TSN, Aug. 6, 1982). Further, Mr. Macaoili testified that
he came to know that the wristwatch, the cassettes, and other personal items of the
victims were missing when appellants were apprehended. He knew the cassette and
the wristwatch because said items had been used by the victim, Tiu Heu. He knew
appellant Arellano because he is his barriomate at Tuburan, Iloilo and was a laborer
at Foodman Industries long before December 26, 1981. He also knew appellant
Olivares, Jr. as they are also barriomates and worked somewhere in Quezon City.
He testified that appellant Olivares, Jr. twice visited the factory before December 26,
1981 and he saw him two or three weeks before said date. He also saw appellant
Arellano inside the compound of Foodman Industries on December 25, 1981.
Appellant Arellano resides inside the compound of the factory staying in the other
room with other co-workers apart from the room of Mr. Macaoili and the members of
his family. He stated that the wristwatch worn by victim Tiu Heu was mortgaged to
the latter by the former's friend named Raul (pp. 5-11, TSN, August 20, 1982).

Prosecution witness, Sgt. Eduardo Marcelo of the PNP, Valenzuela, Metro Manila
testified that he conducted an investigation on the person of Rafael Olivares, Jr. at
about 10:45 o'clock in the morning of December 29, 1981. Sgt. Marcelo apprised him
of his constitutional rights. When informed, appellant Olivares, Jr. declined any
assistance of a lawyer during the investigation considering that he will tell the truth
about the incident. Mr. Melchor Salle and the chief of Sgt. Marcelo were present
during the police investigations. Sgt. Marcelo prepared a statement (Exhibit B)
signed by appellant Olivares, Jr. relative to the investigation (pp. 4-11, TSN, October
8, 1982).

Prosecution witness Sika Chong testified that the victim Tiu Hu is his brother and
other victim Zie Sing Piu is his father. On December 26, 1981, the victims were
residing inside the factory situated at Gen. T. de Leon, Valenzuela, Metro Manila.
Sika Chong did not witness the commission of the crime. He personally knew the two
(2) radio cassettes belong to his father as said items were his birthday gifts sometime
in 1977 (Exhibit C) and in 1980 (Exhibit D). He bought the cassettes (Sanyo brand)
from a store at Cartimar. The small cassettes costs him P700.00 and the big radio at
P800.00. Along with the said items, he also bought five (5) tapes (Exhibits E, E-1 to
E-4) (pp. 5-14, TSN, March 4, 1983).

Prosecution witness Ong Tian Lay testified that victim Zie Sing Piu is his father and
victim Tiu Hu is his brother. The victims were at the time of thier death engaged in
sago and plastic business. When they ceased operation in the sago business, they
engaged in plastic manufacturing until the time of thier death. He spent more than
P40,000.00 for the funeral expenses of the victims and although the total receipts
from Funeraria Paz amounted only to P13,000.00, he also spent other expenses
totalling P40,000.00 (pp. 3-8, TSN, April 22, 1983). On further direct examination,
Ong Tian Lay testified that he saw the publication about the death of his father and
 brother at the police department of Valenzuela, Metro Manila. He was able to get a
clipping of the publication (Exhibit F). He could not remember the names of the
newspaper where the victims' death were published but could remember that the
incident was published in at least three (3) newspapers, one (1) in the Chinese
language and the two (2) in the English language (pp. 4-13, TSN, June 29, 1983).

Prosecution witness Narciso Gador, factory worker of Cardinal Plastics, testified that
the factory is owned by Ka Tiong Sy. He knew that the father of his employer is
already dead as well his brother. He knew appellant Danilo Arellano because the
latter is a former laborer of Cardinal Plastics. He only came to the person of appellant
Olivares, Jr. after the incident. He saw appellants between the hours of 9:00 o'clock
and 10:00 o:clock in the evening of December 25, 1981 inside the Delia's restaurant
located at BBB, Valenzuela, Metro Manila. Narciso Gador and his companions
arrived, they ordered beer while seated at another table. They left the restaurant
between the hours of 9:00 o'clock and 10:00 o'clock in the evening of December 25,
1981 ahead of appellants. (pp. 3-6, TSN, June 15, 1983).

Dr. Rodolfo Lizondra conducted the autopsy of the cadaver of the victims. He
prepared a Necropsy Report on victim Tiu Heo Hu (Exhibits G, G-1, G-2) and similar
report on victim Sy Sing Kiaw (Exhibits H-H-1 to H-3) (Decision, Jan. 30, 1987, p.
4. 1 *

For the death of the two victims and the loss of some items, appellants were charge with the
complex crime of "robbery with double homicide" under the following informations:

That on or about the 26th day of December 1981, in the municipality of Valenzuela,
Metro Manila, Philippines, and within the jurisdiction of this Honorable Court, the said
accused Rafael Olivarez, Jr. y Jaba and Danilo Arellano y Montinol, conspiring and
confederating together and mutually helping each other, did then and there wilfully,
unlawfully and feloniously, with intent of again and by means of force, violence and
intimidation upon the persons of Tiu Hu and Zie Sing Piu alias "Sy Sing Kiaw" take,
rob and carry away with them cash in the amount of P1,800.00 two (2) radio
cassettes marked "Sanyo", one (1) wrist watch marked "Citron" and five (5) tape
recorder cassettes, belongings to Tiu Hu, to the damage and prejudice of the latter in
the sum of more than P1,800.00; and that by reason or on the occasion (sic) of the
said robbery and for the purpose of enabling them to take, rob and carry away the
said amount of P1,800.00, two (2) radio cassettes, one (1) wrist watch and five (5)
tape recorder cassettes, the herein accused, in pursuance of their conspiracy, did
then and there willfully, unlawfully and feloniously, with evidence (sic) premeditation
and treachery and taking advantage of their superior strenght, attack, assault and
use personal violence on the said Tiu Hu and Zie Sing Piu alias "Sy Sing Kiaw",
thereby inflicting fatal physical injuries which directly caused the death of the said Tiu
Hu and Sing Piu alias "Sy Sing Kiaw".

That in the commission of the said crime, other aggravating circumstances of

nocturnity and unlawful entry were present. 2

After the trial, the lower court rendered a decision dated Janaury 30, 1987 convicting appellants of
the crime charged, sentence them to suffer the death penalty and to indemnify the victim' heirs. The
dispositive portion of the trial court's decision reads:
 In view of the foregoing circumstancial evidence and not mainly on the basis of the
extrajudicial confession, the Court finds both accused guilty beyond reasonable
doubt of the crime of Robbery with Double Homicide and sentences them to suffer
the penalty imposed by law is death on 2 counts, and to indemnify the heirs of the
victim in the sum of P60.000.00 and to pay the cost.

SO ORDERED.3

On direct appeal to this Court, appellants, who are imprisoned, seek their acquittal on the ground
that their guilt was not proven by the prosecution beyond reasonable doubt. Alternatively, they
argued that in case their conviction is sustained, the death penalty should not be imposed on them in
the light of the 1987 Constitution.

In the course of the elevation of the records, the Court found that the transcript of stenographic notes
(TSN) for the November 12, 19824 hearing was missing. When the whereabouts of the said TSN
could not be traced despite diligent efforts and after disciplinary measures were imposed on some
court personnel, the counsels of both parties were ordered to submit their respective manifestation if
said TSN may be dispensed with or a retaking of the testimony of the witness should instead be
made.5 The Office of the Solicitor General (OSG) agreed to dispense with the TSN. 6 Counsel for
appellants (Atty. Escolastico R. Viola), who failed to comply with the order, was penalized with fine
and later ordered arrested byt this Court.7 Thereafter, the Court appointed the Public Attorney's
Office (PAO) to represent appellants.8 The PAO made a similar manifestation as the OSG did
with respect to the TSN.9

Upon a thorough review of the records of the case, appellants' conviction cannot stand for
reasons which were not discussed or even mentioned by appellants' appointed counsel. The
PAO, as the duly designated government agency to represent and render legal services to
pauper litigants who cannot hire their own counsel, should have exerted more effort on this
case. Its pleadings filed before this court could hardly be considered as the product of an
advocate who has the responsibility to serve his client with competence and diligence. 10 The
preparation of his case is a duty the lawyer owes not only to his client whose property,
money and above all life and liberty he is bound to protect. It is also a duty he owes to
himself, to his own integrity and self-respect at the bar. Nonetheless, the Court is not
powerless to address and consider unassigned issues and relevant facts and law that may
affect the merits and justifiable disposition of the case.

Initially, the categorization by the prosecution of the crime of robbery with double homicide is
erroneous because the word "homicide" in Article 294 of the Revised Penal Code (RPC)
should be taken in its generic sense.11 absorbing not only acts which results in death (such
as murder) but also all other acts producing anything short of death (such as physical
injuries) committed during the robbery.12 and regardless of the multiplicity of the victim which
is only considered as an aggravating circumstances.13 The indictable offense is still the
complex crime of robbery with homicide (which is its proper nomenclature), the essential
elements of which are:

a.) the taking of personal property with the use of violence or

intimidation against a person;

b.) the property thus taken belongs to another;

c.) the taking is characterized by intent to gain or animus

lucrandi;
 d.) on the occasion of the robbery or by reason thereof, the
crime of homicide which is therein used in a generic sense, was
committed. 14

In this case, there were no eyewitnesses to the killing and robbery and; thus, no direct
evidence points to appellants criminal liability. The prosecution's principal evidence against
them is based solely on the testimony of the police officers who arrested, investigated and
subsequently took their confession. Such evidence when juxtaposed with appellants'
constitutional rights concerning arrests and the taking of confessions leads to a conclusion
that they cannot he held liable fort the offense charged despite the inherent weakness of their
defenses of denial and alibi, not because they are not guilty but because the evidence
adduced against them are inadmissible to sustain a criminal conviction.

First, appellants were arrested without a valid warrant of arrest and their arrest cannot even
be justified under any of the recognized exceptions for a valid warrantless arrest mentioned
in Section 6, (now section 5) Rule 113 of the Rules on Criminal Procedure, which prior to its
amendment in 199815 provides:

Arrest without warrant; when lawful. — A peace officer or private person may,
without a warrant, arrest a person:

a) when the person to be arrested has committed, is actually

committing, or is about to commit an offense in his presence;

b) when the offense has in fact been committed, and he has

reasonable ground to believe that the person to be arrested has
committed it;

c) when the person to be arrested is a prisoner who has escaped

from a penal establishment or/place where he is serving final
judgment or temporarily confined while his case is pending, or
has escaped while being transferred from one confinement to
another.

None of the foregoing exceptions for a valid warrantless arrest concurs herein. At the time
appellants were apprehended, two days had already lapsed after the discovery of the crime —
they were not doing nor had just done any criminal act. Neither were they caught in flagrante
delicto or had escaped from confinement. Probably aware of the illegality of the arrest they
made the arresting officers testified that appellants were merely invited to the police precinct.
Such invitation, however when construed in the light of the circumstances is actually in the
nature of an arrest designed for the purpose of conducting an interrogation.16 Mere invitation
is covered by the proscription on a warrantless arrest because it is intended for no other
reason than to conduct an investigation. Thus, pursuant to Section 4(2), Article IV of the 1973
Constitution which was in effect at that time, "any evidence" obtained in violation of their
right under Section 3, Article IV (pertaining to invalid warrantless arrests)17 "shall be
inadmissible for any purpose in any
proceeding."18 By virtue of said constitutional protection any evidence obtained, including all
the things and properties alleged to be stolen by appellants which were taken by the police
from the place of the illegal arrest cannot be used as evidence for their conviction. In the
same manner, all the products of those illegal arrest cannot be utilized to sustain any civil
liability that they may have incurred by reason of their acts. This is the clear mandate of the
Constitution when it provides that those illegally obtained evidence being "the fruits of the
poisonous tree" are "inadmissible for any purpose in any proceeding". The foregoing
constitutional protection on the inadmissibility of evidence (which are the product of an
illegal search and arrest) known as the eclusionary rule, applies not only to criminal cases
but even extends to civil, administrative and any other form of proceedings. No distinction is
made by the Constitution; this Court ought not to distinguish.

Even assuming arguendo that by entering a plea without first questioning the legality of their
arrest, appellants are deemed to have waived any ojection concerning their arrest:19 yet the
extrajudicial confession of appellant Olivares, Jr. on which the prosecution relies, is likewise
inadmissible in evidence. Under the Constitution, any person under investigation for the
commission of an offense shall have the right, among other to have a counsel, 20 which right
can be validly waived. In this case, the said confession was obtained during custodial
investigation but the confessant was not assisted by counsel. His manifestation to the
investigating officer that he did not need the assistance of counsel does not constitute a
valid waiver of his right within the contemplation of our criminal justice system. This
notwithstanding the fact that the 1973 Constitution does not state that a waiver of the right to
counsel to be valid must be made with the assistance or in the presence of counsel. Although
this requisite concerning the presence of counsel before a waiver of the right to counsel can
be validly made is enshrined only in the 1987 Constitution, which further requires that the
waiver must also be in writing,21 yet jurisprudence is replete even during the time of
appellants arrest where it has been categorically ruled that a waiver of the constitutional right
to counsel shall not be valid when the same is made without the presence or assistance of
counsel.22 Consequently, the valid waiver of the right to counsel during custodial
investigation makes the uncounselled confession, whether verbal or non-verbal,23 obtained in
violation thereof as also "inadmissible in evidence"24 under Section 20, Article IV of the 1973
Constitution25 which provides:

. . . . 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 aginst him. Any confession obtained in violation of
this section shall be inadmissible in evidence. (emphasis supplied).

Under the present laws, a confession to be admissible must be:26

1.) express and categorical;27

2.) given voluntarily,28 and intelligently where the accused

realizes the legal significance of his act;29

3.) with assistance of competent and independent counsel;30

4.) in writing; and in the language known to and understood by

the confessant;31 and

5 signed, or if the confessant does not know how to read and

write thumbmarked by him.32

In this case, the absence of the third requisite above makes the confession
inadmissible. The purpose of providing counsel to a person under custodial
investigation is to curb the uncivilized practice of extracting confession even by the
slightest coercion33 as would lead the accused to admit something false.34 What 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.35 These constitutional guarantees have
been made available to protect him from the inherently coercive psychological, if not
physical atmosphere of such investigation.36 In any case, said extrajudicial confession
of one accused may not be utilized against a co-accused unless they are repeated in
open court or when there is an opportunity to cross-examine the other on his
extrajudicial statements. It is considered hearsay as against said accused under the
rule on res enter alios acta rule, which ordains that the rights of a party cannot be
prejudiced by an act, declaration, or omission of another.37

Aware of the abuses committed by some investigating and police agencies on a

criminal suspect to get leadings confessions, information and evidence just so they
can claim to have speedily resolved a crime and fulfilled their duty, all at the expense
of the basic human rights guaranteed by the Constitution the Court cannot turn a
blind eye by disregarding the constitutional rights accorded to every accused and
tolerate official abuse. The presumption that a public officer had regularly performed
his official duty,38 which is only a matter of procedure, cannot prevail over the
presumption of innocence stated in the highest law of the land — the Constitution. As
a contract between and among the people, the provisions of the Constitution cannot
just be taken lightly.

With the inadmissibility of the material circumstancial evidence which were premised
on the likewise extrajudicial confession upon which both the prosecution and the
lower court relied to sustain appellants' conviction the remaining circumstances
cannot produce a logical conclusion to establish their guilt. In order to sustain a
conviction based on circumstancial evidence, it is necessary that the same satisfies
the following elements:

1. there is more than one circumstances;

2. the facts from which the inferences are derived are proven;
and

3. the combination of all the circumstances is such as to

produce a conviction beyond reasonable doubt.39

Simply put for circumstancial evidence to be sufficient to support a conviction, all

circumstances must be consistent with each other consistent with the hypothesis that
the accused is guilty, and at the same time incosistent with the hypothesis that he is
innocent and with every other rational hypothesis except that the guilt. 40

The findings of the trial, to wit:

Both accused are barriomates from Iloilo which means that there is a common
factor for them to come together and act on a plan hatched by them during a
drinking spree. It would not be remote for Melchor Sali who was questioned by
the police and on whose statement the police made a start to investigate,
would be a part of the plan to rob two or three weeks before the incident,
because he is also a barriomate of the two accused. The truth of the testimony
of Narciso Gador that both accused were seen by him on Christmas night at
Delia's restaurant between 9:00 and 10:00 o'clock at night which is
 corroborated in the statement of Rafael Olivarez, Jr. is not remote and is more
credible than the defense (sic) alibi of the Olivarez brothers that they were
together sleeping in an employer's house. Another matter to consider was the
failure of Danilo Arellano to report for work after the killing that was from
December 26, 1981 until he was arrested. His having left his place of
employment and residence without explanation is an evidence of flee from the
scene of the crime. Flee without anyone pursuing is an indication of guilt.
Another ciscumstantial evidence showing that the crime was perpretrated by
both accused was the recovery of the radio cassettes, tapes and wrist watch
by Cpl. Juan Tomas who testified that the place were recovered was pointed to
by Danilo Arellano (TSN Nov. 17, 1982, p. 4). These stolen articles having been
recently stolen and their whereabouts being known to Danilo Arellano raises
the presumption that he was the one who took the same with intent to gain
from their rightful
owner.41

cannot entirely be considered because some of the circumstancial evidence relied

upon by the trial court were, at the risk of being repetitive, based on the inadmissible
extrajudicial confession. The facts which became known only by virtue of the
extrajudicial confession pertains to how the victims were killed, how appellants
gained entrance into the premises, and how the alleged stolen properties were found
in the house where one of them was arrested. Without the foregoing facts a
combination of the remainder of the circumstancial evidence cannot sustain a
conviction beyond the shadow of reasonable doubt: hence, the absence of the third
requisite. Forthwith the prosecution failed to discharge its burden of proof and
consequently to rebut with the required quantum of evidence42 the presumption of
innocence43 fundamentally enjoyed by both appellants. For it is a basic evidentiary
rule in criminal law that the prosecution has the onus probandi of establishing the
guilt of the accused. El incumbit probatio non qui negat. He who asserts — not he
who denies — must prove. Likewise, it is settled that conviction must rest on the
weakness of the defense but on the strength of the prosecution.44 Accordingly,
circumstancial evidence with has not been adequately established cannot, by itself,
be the basis of conviction.45

WHEREFORE, appellants' conviction is herein REVERSED and both are ACQUITTED for the
crime charged. The person detaining them is ordered to IMMEDIATELY RELEASE appellants
UNLESS they are held for some other lawful cause.

SO ORDERED.
THIRD DIVISION

G.R. No. 210710, July 27, 2016

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, v. LUISITO GABORNE Y CINCO, Accused-Appellant.

DECISION

PEREZ, J.:

Before the Court is an appeal from the Decision1 of the Court of Appeals (CA) dated 29 July 2013 in CA-
G.R. CR HC No. 01183, affirming the Decision2 of the Regional Trial Court (RTC), Branch 33, Calbiga,
Samar which found appellant Luisito Gaborne y Cinco guilty of the crime of Murder with the use of
Unlicensed Firearm, as defined in Article 248 of the Revised Penal Code (RPC) as amended by Sec. 6 of
Republic Act (R.A.) No. 7659, and Frustrated Murder as defined in Article 248 in relation to Article 50 of
the RPC, respectively.

Together with two others, appellant was charged with Murder with the use of Unlicensed Firearm and
Frustrated Murder in the following Informations:

chanRoblesvirtualLawlibrary

Criminal Case No. CC-2007-1650

That on or about the 2nd day of February 2007, at about 11:00 o'clock in the evening more or less, at
Brgy. Mugdo, Hinabangan, Samar, Philippines, and within the jurisdiction of this Honorable Court, the
above -named accused, conspiring, confederating, mutually helping one another, with deliberate intent
to kill, and with treachery and evident premeditation, which qualify the offense into murder, did there,
willfully, unlawfully, and feloniously, shot (sic) Sixto Elizan y Herrera, with the use of an unlicensed
firearm a caliber [.]45 pistol, a special aggravating circumstance pursuant to RA 8294, which accused
have provided themselves for the purpose, thereby hitting and inflicting upon the said Sixto Elizan y
Herrera fatal gun shot wounds on the different parts of his body, which gun shot wounds caused his
instantaneous death.3chanrobleslaw

Criminal Case No. CC-2007-1650

That on or about the 2nd day of February 2007, at around 11:00 o'clock in the evening more or less, at
Brgy. Mugdo, Municipality of Hinabangan, Province of Samar, Philippines, and within the jurisdiction of
this Honorable Court, the above named accused, conspiring, confederating, mutually helping one
another, with deliberate intent to kill, and with treachery, which qualifies the offense to murder, did,
then and there, willfully, unlawfully and feloniously shot [sic] the victim, Rey Perfecto C. de Luna, with
the use of a caliber [.]45 pistol, an unlicensed firearm, a special aggravating circumstance pursuant to
Rep. Act No. 8294, with which the accused have provided themselves for the purpose, thereby inflicting
upon the victim the following wounds, to wit:ChanRoblesVirtualawlibrary
Gun shot wound (R) back penetrating (R) chest, lacerating diaphragm, (R) lobe of the liver, thru and thru
and greater omentum with massive hemoperitoneum

Gun shot wound (R) para spinal area at L2 penetrating abdomen perforating ileum thru and thru

thus, accused have performed all the acts of execution which should have produced the crime of murder
as a consequence but which nevertheless did not produce it by reason of some cause independent of
the will of the accused, that is, the timely medical treatment/intervention rendered to the victim at
Saint Paul's Hospital, Tacloban City.4

On arraignment, appellant entered a plea of NOT GUILTY5 for both charges. Trial on the merits ensued
thereafter.

The Facts

The antecedent facts culled from the Appellee's Brief 6 and the records of the case are summarized as
follows:

chanRoblesvirtualLawlibraryOn 2 February 2007 at around 10:30 in the evening, Rey Perfecto%De Luna
(De Luna) and Sixto Elizan7 (Elizan) entered a videoke bar8 at Barangay Mugdo, Hinabangan, Samar.9 Noli
Abayan (Abayan), appellant and Joselito Bardelas (Bardelas) followed five minutes
thereafter.10chanrobleslaw

While Elizan and De Luna were drinking, singing and merely having fun, four successive gunshots 11 were
fired through the window. Because of this, Elizan and De Luna were hit from behind. 12 Later on, De
Luna13 and Marialinisa Pasana14 (Pasana) saw appellant, who was then wearing a black t-shirt and a
black cap, holding a gun aimed at their location. Pasana also saw accused-appellant and Bardelas escape
after the incident.15chanrobleslaw

Elizan and De Luna were brought to St. Paul's Hospital at Tacloban City.16 Unfortunately, Elizan was
pronounced dead upon arrival. De Luna, on the other hand, survived. 17chanrobleslaw

Appellant steadfastly denied the accusations. According to him, he and his companions ordered for
bottles of beer. However, when they tried to order for more bottles, the waitress refused to give them
their order unless they pay for their previous orders first. 18 While Abayan was explaining to the father of
the owner of the videoke bar, appellant and Bardelas went out to urinate,19 however, the waitress
locked the front door.20 While standing outside, he heard the waitress utter the words, "If you will not
pay, I [will] have you killed, all of you, right this moment. 21 He also consistently contend that it was a
man wearing black shirt and camouflage pants who fired shots to the videoke bar22, not him.

The following day, appellant and Bardelas were arrested and underwent paraffin test. 23chanrobleslaw
Ruling of the Regional Trial Court

On 12 March 2010, the RTC rendered a joint judgment finding accused-appellant guilty of the two (2)
charges of Murder with the use of Unlicensed Firearm and Frustrated Murder. The dispositive portion of
the decision reads:ChanRoblesVirtualawlibrary

WHEREFORE, premises considered, the [c]ourt finds the co-accused LUISITO GABORNE y CINCO GUILTY
BEYOND REASONABLE DOUBT as principal in the crimes of:

A. Murder with the Use of an Unlicensed Firearm under Art. 248 of the Revised Penal Code in
Criminal Case No. CC-2007-1640 and considering the presence of one (1) aggravating
circumstance without any mitigating circumstance to offset it, hereby sentences him to suffer
imprisonment of RECLUSION PERPETUA; to pay the Heirs of Sixto Elisan y Herrera Php75,000.00 as
civil indemnity for his death; Php50,000.00 in moral damages and Php25,000.00 in exemplary
damages and to pay the costs of this suit.

B. Frustrated Murder penalized under Art. 248 in relation to Art. 50 of the Revised Penal Code in
Criminal Case No. CC-2007-1650 and considering the presence of one (1) aggravating
circumstance without any mitigating circumstance to offset it hereby sentences him to suffer
imprisonment of an indeterminate penalty ranging from ELEVEN (11) YEARS of Prision Mayor as
minimum to EIGHTEEN (18) YEARS of Reclusion Temporal as maximum, to pay Perfecto de Luna
Php264,866.58 as civil liability without subsidiary imprisonment in case of insolvency and to pay
the costs of this suit.

The accused who underwent preventive imprisonment since February 3, 2007 shall be credited with the
full time during which he was deprived of his liberty if he agreed voluntarily and in writing to abide by
the same disciplinary rules imposed upon convicted prisoners otherwise he will be entitled to only four-
fifths (4/5) thereof.

Because the prosecution absolutely failed to prove guilt of accused NOLI ABAYAN y LARGABO and co-
accused JOSELITO BARDELAS y BACNOTAN from the instant criminal charges, they are ACQUITTED in
these cases. No civil liability is assessed against them.

Because the said accused are detained, the Provincial Warden of Samar are hereby ordered to release
the said accused from detention unless they are held for some-other cause or ground.24
Ruling of the Court of Appeals

The CA found no merit in appellant's arguments. It pointed out that appellant is estopped from
questioning the legality of his arrest as it was raised for the first time on appeal. 25cralawred Thus, the
appellate court was fully convinced that there is no ground to deviate from the findings of the RTC. The
dispositive portion of the decision reads:ChanRoblesVirtualawlibrary

WHEREFORE, the instant appeal is hereby DENIED. The Joint Judgment dated March 12, 2010 rendered
by Branch 33, Regional Trial Court of Calbiga, Samar, 8th Judicial Region in Criminal Case Nos. [CC-]
2007-1640 and [CC-]2007-1650 is hereby AFFIRMED WITH MODIFICATION as to the award of damages,
to wit:

1. The award of civil indemnity in Criminal Case No. [CC-]2007-1640 is affirmed;

2. The award of moral damages in the amount of Php50,000.00 in Criminal Case No. [CC-]2007-
1640 is affirmed;

3. The award of exemplary damages in the amount of Php25,000.00 in Criminal Case No. [CC-
]2007-1640 is affirmed;

4. In Criminal Case No. [CC-]2007-1650, accused-appellant is ordered to pay moral damages to the
private offended party, Rey Perfecto De Luna, in the amount of Php40,000.00;

5. In Criminal Case No. [CC-]2007-1650, accused appellant is likewise ordered to pay exemplary
damages to the private offended party, Rey Perfecto De Luna, in the amount of Php20,000.00;
and cralawlawlibrary

6. Accussed-appellant is further ordered to additionally pay the private offended parties in the two
criminal cases, Rey Perfecto De Luna and the heir/s of Sixto Elizan, interest on all damages at the
legal rate of six percent (6%) from the date of finality of this judgment until the amounts
awarded shall have been fully paid.26

Appellant appealed the decision of the CA. The Notice of Appeal was given due course and the records
were ordered elevated to this Court for review. In a Resolution27 dated 19 February 2014, this Court
required the parties to submit their respective supplemental briefs. Both parties manifested that they
are adopfing all the arguments contained in their respective briefs in lieu of filing supplemental
briefs.28chanrobleslaw

Our Ruling

We find that the degree of proof required in criminal cases has been met in the case at bar. Appellant's
defenses of denial and alibi are bereft of merit.
Assailing the legality of arrest should
be made before entering a plea

Before anything else, we resolve the procedural issue raised by the appellant. 29chanrobleslaw

Any objection involving a warrant of arrest or the procedure by which the court acquired jurisdiction
over the person of the accused must be made before he enters his plea; otherwise, the objection is
deemed waived.30 In People v. Velasco,31 this Court held that the accused is estopped from assailing the
legality of his arrest for his failure to move for the quashal of the Information before arraignment. In this
case, appellant only questioned the legality of his arrest for the first time on appeal. 32chanrobleslaw

Furthermore, even granting that indeed there has been an irregularity in the arrest of the appellant, it is
deemed cured by his voluntary submission to the jurisdiction of the trial court over his person. 33 Thus,
appellant is deemed to have waived his constitutional protection against illegal arrest 34 when he actively
participated in the arraignment35 and trial of this case.36chanrobleslaw

Elements of Murder and Frustrated

Murder were established

This Court finds that the circumstance of treachery should be appreciated, qualifying the crime to
Murder. According to the Revised Penal Code:ChanRoblesVirtualawlibrary

ARTICLE 248. Murder. - Any person who, not falling within the provisions of Article 246 shall kill another,
shall be guilty of murder and shall be punished by reclusion temporal in its maximum period to death, if
committed with any of the following attendant circumstances:

1. With treachery, taking advantage of superior strength, with the aid of armed men, or employing
means to weaken the defense or of means or persons to insure or afford impunity.

2. In consideration of a price, reward or promise.

3. By means of inundation, fire, poison, explosion, shipwreck, stranding of a vessel, derailment or

assault upon a street car or locomotive, fall of an airship, by means of motor vehicles, or with
the use of any other means involving great waste and ruin.

4. On occasion of any of the calamities enumerated in the preceding paragraph, or of an

earthquake, eruption of a volcano, destructive cyclone, epidemic, or any other public calamity.

5. With evident premeditation.

6. With cruelty, by deliberately and inhumanly augmenting the suffering of the victim, or outraging
or scoffing at his person or corpse.
Thus, the elements of murder are: (1) that a person was killed; (2) that the accused killed him or her; (3)
that the killing was attended by any of the qualifying circumstances mentioned in Article 248 of the RPC;
and (4) that the killing is not parricide or infanticide. 37chanrobleslaw

Furthermore, 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
make.38chanrobleslaw

The requisites of treachery are:ChanRoblesVirtualawlibrary

(1) The employment of means method, or manner of execution which will ensure the safety of the
malefactor from defensive or retaliating acts on the part of the victim, no opportunity being given
to the latter to defend himself or to retaliate; and

(2) Deliberate or conscious adoption of such means, method, or manner of execution.39

In this case, the hapless victims were merely drinking and singing in-front of the videoke machine when
shot by the appellant. The firing was so sudden and swift that they had no opportunity to defend
themselves or to retaliate. Furthermore, appellant's acts of using a gun and even going out of
the videoke bar evidently show that he consciously adopted means to ensure the execution of the crime.

In addition, the lower courts appropriately found appellant liable for the crime of Frustrated Murder.

A felony is frustrated when the offender performs all the acts of execution which would produce the
felony as a consequence but which, nevertheless, do not produce it by reason of causes independent of
the will of the perpetrator.40chanrobleslaw

Dr. Angel Cordero M.D. categorically said that De Luna could have died because of the wounds if the
surgery was not conducted timely.41 Hence, appellant performed all the acts of execution which could
have produced the crime of murder as a consequence, but nevertheless, did not produce it by reason of
a cause independent of his will, which is, in this case, the timely and able medical attendance rendered
to De Luna.

The defense of denial cannot be given

more weight over a witness'positive
identification

Appellant denies the accusations on the ground that he has no motive to kill Elizan and injure De Luna.
This alibi is bereft of merit. Intent is not synonymous with motive. Motive alone is not a proof and is
hardly ever an essential element of a crime.42 As a general rule, proof of motive for the commission of
the offense charged does not show guilt and absence of proof of such motive does not establish the
innocence of accused for the crime charged such as murder. 43 In Kummer v. Peopled44 this Court held
that motive is irrelevant when the accused has been positively identified by an eyewitness.

Evidently, accused-appellant's intent to kill was established beyond reasonable doubt. This can be seen
from his act of shooting Elizan and De Luna from behind with a firearm while they were innocently
singing and drinking. Intent to kill was also manifest considering the number of gun shot wounds
sustained by the victims.45chanrobleslaw

In the instant case, Pasana and De Luna positively identified accused-appellant as the person who fired
shots during the incident:ChanRoblesVirtualawlibrary

Pasana's testimony:

Q: Can you recall who among the five (5) went out?

A: Yes, Ma'am.

Q: Of the two (2) among the five (5) who went out, are these two (2) people or persons here in court
right now?

A: Yes, Ma'am.

Q: And who are these two (2) persons you are referring to, can you point it out to the Honorable
Court if they are here in [c]ourt right now?

A: That person, Ma'am.

Interpreter: Witness, Your Honor, is pointing to a person who earlier identified himself as Luisito
Gaborne.

xxxx

Q: Point specifically, who among those persons?

A: That person, Ma'am.

Interpreter: Witness, Your Honor, is pointing to a person who identified himself earlier as Luisito
Gaborne.46

De Luna's Testimony:

Q: How about the appearance of the guy whom you said holding a gun, can you recall?

A: I can recall him if he is inside the court, ma'am.

Q: Can you point it out to the court, the other guy whom you saw at the videoke bar?

A: Yes, ma'am, if I can go with him in a short distance, I can point him.
Q: Can you point him?

A: (The witness stood up and approach (sic) the accused' bench and pointed to a person and when
asked his name answered to (sic): Luisito Gaborne)

Q: You said that there was also another guy by the window? (the court butt-in [sic])

THE COURT:

Q: Excuse me, this man who answered Luisito Gaborne was the one holding the fire arm?

A: Yes, your Honor.47

This Court gives the highest respect to the RTC's evaluation of the testimony of the witnesses,
considering its unique position in directly observing the demeanor of a witness on the stand. From its
vantage point, the trial court is in the best position to determine the truthfulness of
witnesses.48chanrobleslaw

It is doctrinally entrenched in our jurisprudence49 that the defense of denial is inherently weak because
it can easily be fabricated. Such defense becomes unworthy of merit if it is established only by the
accused themselves and not by credible persons. Thus, this Court agrees with the lower courts in giving
the positive identification of the eyewitnesses more weight than appellant's defense of denial.

Paraffin Tests are not conclusive

The positive identification made by the prosecution witnesses bears more weight than the negative
paraffin test result conducted the day after the incident.

Paraffin tests, in general-, have been rendered inconclusive by this Court. Scientific experts concur in the
view that the paraffin test was extremely unreliable for use. It can only establish the presence or
absence of nitrates or nitrites on the hand; however, the test alone cannot determine whether the
source of the nitrates or nitrites was the discharge of a firearm; The presence of nitrates should be taken
only as an indication of a possibility or even of a probability but not of infallibility that a person has fired
a gun, since nitrates are also admittedly found in substances other than gunpowder. 50chanrobleslaw

In this case, prosecution witness, Pasana51 and the victim himself, De Luna,52 testified in the trial court
that it was indeed the appellant who was holding the gun during the incident. It should also be
considered that appellant was arrested the day after the incident. 53 Thus, it is possible for appellant to
fire a gun and yet bear no traces of nitrate or gunpowder as when the hands are bathed in perspiration
or washed afterwards.54chanrobleslaw

Corpus delicti of the crime can be

established by testimony

With regard to the appreciation of the aggravating circumstance of the use of an unlicensed firearm, we
agree with the trial court and the appellate court that the same must be appreciated in the instant case.
In People v. Lualhati, this Court ruled that in crimes involving unlicensed firearm, the prosecution has
the burden of proving the elements thereof, which are: (1) the existence of the subject firearm and (2)
the fact that the accused who owned or possessed the firearm does not have the corresponding license
or permit to possess the same.55chanrobleslaw

Appellant's contention that the corpus delicti was not established for the reason that the firearm used
was not presented as evidence is not persuasive. In People v. Orehuela,56 this Court held that the
existence of the firearm can be established by testimony, even without the presentation of the said
firearm. In the present case, the testimonies of Pasana and De Luna indubitably demonstrated the
existence of the firearms. Furthermore, the certification 57 from the Philippine National Police that
appellant is not a firearm license holder of any caliber proves that he is not licensed to possess the
same. Thus, the prosecution was able to prove the existence of the firearm and that the appellant is not
licensed to possess the same notwithstanding the fact that the firearm used was not presented as
evidence.

Illegal Possession of Firearm as an

aggravating circumstance
in the crimes of Murder and
Frustrated Murder

The CA appropriately appreciated the use of an unlicensed firearm as an aggravating circumstance in the
crimes of Murder and Frustrated Murder. Under R.A. No. 1059, use of loose firearm in the commission
of a crime, like murder, shall be considered as an aggravating circumstance. 58chanrobleslaw

In view of the amendments introduced by R.A. No. 8294 and R.A. No. 10591, to Presidential Decree No.
1866, separate prosecutions for homicide and illegal possession are no longer in order. Instead, illegal
possession of firearm is merely to be taken as an aggravating circumstance in the crime of murder. 59 It is
clear from the foregoing that where murder results from the use of an unlicensed firearm, the crime is
not qualified illegal possession but, murder. In such a case, the use of the unlicensed firearm is not
considered as a separate crime but shall be appreciated as a mere aggravating circumstance. Thus,
where murder was committed, the penalty for illegal possession of firearms is no longer imposable since
it becomes merely a special aggravating circumstance. 60 The intent of Congress is to treat the offense of
illegal possession of firearm and the commission of homicide or murder with the use of unlicensed
firearm as a single offense.61chanrobleslaw

In the case at hand, since it was proven that accused-appellant was not a licensed firearm holder,62 and
that he was positively identified by the witnesses as the one who fired shots against the victims, the use
of an unlicensed firearm in the commission of the crimes of Murder and Frustrated Murder should be
considered as an aggravating circumstance thereof.

The presence of such aggravating circumstance would have merited

the imposition of the death penalty for the crime of Murder. However, in view of R.A. No. 9346, we are
mandated to impose on appellant the penalty of reclusion perpetua without eligibility for parole.

Damages and civil liability

This Court resolves to modify the damages awarded by the appellate court in line with the recent
jurisprudence.63 Appellant shall pay the Heirs of Sixto Elizan y Herrera P100,000.00 as civil indemnity,
P100,000.00 as moral damages, and PI00,000.00 as exemplary damages for the crime of Murder with
the use of Unlicensed Firearm.

Appellant shall also be liable to pay P75,000.00 as civil indemnity, P75,000.00 as moral damages, and
P75,000.00 as exemplary damages for the crime of Frustrated Murder. In addition, interest at the rate of
six percent (6%) per annum shall be imposed on all monetary awards from date of finality of this
Judgment until fully paid.

WHEREFORE, the 29 July 2013 Decision of the Court of Appeals in CA-G.R. CR-H.C. No. 01183
is AFFIRMED with MODIFICATIONS. Appellant LUISITO GABORNE Y CINCO is found GUILTY beyond
reasonable doubt of the crime of Murder with the use of Unlicensed Firearm and shall suffer a penalty
of Reclusion Perpetua, without eligibility for parole and shall pay the Heirs of Sixto Elizan y Herrera
P100,000.00 as civil indemnity, P1 00,000.00 as moral damages, and P100,000.00 as exemplary
damages; and of the crime of Frustrated Murder and is hereby sentenced to suffer the indeterminate
penalty ranging from eleven (11) years of Prision Mayor as minimum, to eighteen (18) years of Reclusion
Temporal as maximum and shall pay P75,000.00 as civil indemnity, P75,000.00 as moral damages, and
P75,000.00 as exemplary damages.

All monetary awards for damages shall earn interest at the legal rate of six percent (6%) per annum from
the date of finality of this judgment until fully paid.

In the service of his sentence, appellant, who is a detention prisoner, shall be credited with the entire
period of his preventive imprisonment.

SO ORDERED.
 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. 178552 October 5, 2010

SOUTHERN HEMISPHERE ENGAGEMENT NETWORK, INC., on behalf of the South-South

Network (SSN) for Non-State Armed Group Engagement, and ATTY. SOLIMAN M. SANTOS,
JR., Petitioners,
vs.
ANTI-TERRORISM COUNCIL, THE EXECUTIVE SECRETARY, THE SECRETARY OF JUSTICE,
THE SECRETARY OF FOREIGN AFFAIRS, THE SECRETARY OF NATIONAL DEFENSE, THE
SECRETARY OF THE INTERIOR AND LOCAL GOVERNMENT, THE SECRETARY OF FINANCE,
THE NATIONAL SECURITY ADVISER, THE CHIEF OF STAFF OF THE ARMED FORCES OF
THE PHILIPPINES, AND THE CHIEF OF THE PHILIPPINE NATIONAL POLICE, Respondents.

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

G.R. No. 178554

KILUSANG MAYO UNO (KMU), represented by its Chairperson Elmer Labog, NATIONAL
FEDERATION OF LABOR UNIONS-KILUSANG MAYO UNO (NAFLU-KMU), represented by its
National President Joselito V. Ustarez and Secretary General Antonio C. Pascual, and
CENTER FOR TRADE UNION AND HUMAN RIGHTS, represented by its Executive Director
Daisy Arago, Petitioners,
vs.
HON. EDUARDO ERMITA, in his capacity as Executive Secretary, NORBERTO GONZALES, in
his capacity as Acting Secretary of National Defense, HON. RAUL GONZALES, in his capacity
as Secretary of Justice, HON. RONALDO PUNO, in his capacity as Secretary of the Interior
and Local Government, GEN. HERMOGENES ESPERON, in his capacity as AFP Chief of Staff,
and DIRECTOR GENERAL OSCAR CALDERON, in his capacity as PNP Chief of
Staff, Respondents.

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

G.R. No. 178581

BAGONG ALYANSANG MAKABAYAN (BAYAN), GENERAL ALLIANCE BINDING WOMEN FOR

REFORMS, INTEGRITY, EQUALITY, LEADERSHIP AND ACTION (GABRIELA), KILUSANG
MAGBUBUKID NG PILIPINAS (KMP), MOVEMENT OF CONCERNED CITIZENS FOR CIVIL
LIBERTIES (MCCCL), CONFEDERATION FOR UNITY, RECOGNITION AND ADVANCEMENT OF
GOVERNMENT EMPLOYEES (COURAGE), KALIPUNAN NG DAMAYANG MAHIHIRAP
(KADAMAY), SOLIDARITY OF CAVITE WORKERS, LEAGUE OF FILIPINO STUDENTS (LFS),
ANAKBAYAN, PAMBANSANG LAKAS NG KILUSANG MAMAMALAKAYA (PAMALAKAYA),
ALLIANCE OF CONCERNED TEACHERS (ACT), MIGRANTE, HEALTH ALLIANCE FOR
DEMOCRACY (HEAD), AGHAM, TEOFISTO GUINGONA, JR., DR. BIENVENIDO LUMBERA,
RENATO CONSTANTINO, JR., SISTER MARY JOHN MANANSAN OSB, DEAN CONSUELO
PAZ, ATTY. JOSEFINA LICHAUCO, COL. GERRY CUNANAN (ret.), CARLITOS SIGUION-
REYNA, DR. CAROLINA PAGADUAN-ARAULLO, RENATO REYES, DANILO RAMOS,
EMERENCIANA DE LESUS, RITA BAUA, REY CLARO CASAMBRE, Petitioners,
vs.
GLORIA MACAPAGAL-ARROYO, in her capacity as President and Commander-in-Chief,
EXECUTIVE SECRETARY EDUARDO ERMITA, DEPARTMENT OF JUSTICE SECRETARY
RAUL GONZALES, DEPARTMENT OF FOREIGN AFFAIRS SECRETARY ALBERTO ROMULO,
DEPARTMENT OF NATIONAL DEFENSE ACTING SECRETARY NORBERTO GONZALES,
DEPARTMENT OF INTERIOR AND LOCAL GOVERNMENT SECRETARY RONALDO PUNO.
DEPARTMENT OF FINANCE SECRETARY MARGARITO TEVES, NATIONAL SECURITY
ADVISER NORBERTO GONZALES, THE NATIONAL INTELLIGENCE COORDINATING AGENCY
(NICA), THE NATIONAL BUREAU OF INVESTIGATION (NBI), THE BUREAU OF IMMIGRATION,
THE OFFICE OF CIVIL DEFENSE, THE INTELLIGENCE SERVICE OF THE ARMED FORCES OF
THE PHILIPPINES (ISAFP), THE ANTI-MONEY LAUNDERING COUNCIL (AMLC), THE
PHILIPPINE CENTER ON TRANSNATIONAL CRIME, THE CHIEF OF THE PHILIPPINE
NATIONAL POLICE GEN. OSCAR CALDERON, THE PNP, including its intelligence and
investigative elements, AFP CHIEF GEN. HERMOGENES ESPERON, Respondents.

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

G.R. No. 178890

KARAPATAN, ALLIANCE FOR THE ADVANCEMENT OF PEOPLE'S RIGHTS, represented

herein by Dr. Edelina de la Paz, and representing the following organizations: HUSTISYA,
represented by Evangeline Hernandez and also on her own behalf; DESAPARECIDOS,
represented by Mary Guy Portajada and also on her own behalf, SAMAHAN NG MGA EX-
DETAINEES LABAN SA DETENSYON AT PARA SA AMNESTIYA (SELDA), represented by
Donato Continente and also on his own behalf, ECUMENICAL MOVEMENT FOR JUSTICE
AND PEACE (EMJP), represented by Bishop Elmer M. Bolocon, UCCP, and PROMOTION OF
CHURCH PEOPLE'S RESPONSE, represented by Fr. Gilbert Sabado, OCARM, Petitioners,
vs.
GLORIA MACAPAGAL-ARROYO, in her capacity as President and Commander-in-Chief,
EXECUTIVE SECRETARTY EDUARDO ERMITA, DEPARTMENT OF JUSTICE SECRETARY
RAUL GONZALEZ, DEPARTMENT OF FOREIGN AFFAIRS SECRETARY ALBERTO ROMULO,
DEPARTMENT OF NATIONAL DEFENSE ACTING SECRETARY NORBERTO GONZALES,
DEPARTMENT OF INTERIOR AND LOCAL GOVERNMENT SECRETARY RONALDO PUNO,
DEPARTMENT OF FINANCE SECRETARY MARGARITO TEVES, NATIONAL SECURITY
ADVISER NORBERTO GONZALES, THE NATIONAL INTELLIGENCE COORDINATING AGENCY
(NICA), THE NATIONAL BUREAU OF INVESTIGATION (NBI), THE BUREAU OF IMMIGRATION,
THE OFFICE OF CIVIL DEFENSE, THE INTELLIGENCE SERVICE OF THE ARMED FORCES OF
THE PHILIPPINES (ISAFP), THE ANTI-MONEY LAUNDERING COUNCIL (AMLC), THE
PHILIPPINE CENTER ON TRANSNATIONAL CRIME, THE CHIEF OF THE PHILIPPINE
NATIONAL POLICE GEN. OSCAR CALDERON, THE PNP, including its intelligence and
investigative elements, AFP CHIEF GEN. HERMOGENES ESPERON, Respondents.

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

G.R. No. 179157

THE INTEGRATED BAR OF THE PHILIPPINES (IBP), represented by Atty. Feliciano M.

Bautista, COUNSELS FOR THE DEFENSE OF LIBERTY (CODAL), SEN. MA. ANA CONSUELO
A.S. MADRIGAL and FORMER SENATORS SERGIO OSMEÑA III and WIGBERTO E.
TAÑADA, Petitioners,
vs.
EXECUTIVE SECRETARY EDUARDO ERMITA AND THE MEMBERS OF THE ANTI-TERRORISM
COUNCIL (ATC), Respondents.

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

G.R. No. 179461

BAGONG ALYANSANG MAKABAYAN-SOUTHERN TAGALOG (BAYAN-ST), GABRIELA-ST,

KATIPUNAN NG MGA SAMAHYANG MAGSASAKA-TIMOG KATAGALUGAN (KASAMA-TK),
MOVEMENT OF CONCERNED CITIZENS FOR CIVIL LIBERTIES (MCCCL), PEOPLES
MARTYRS, ANAKBAYAN-ST, PAMALAKAYA-ST, CONFEDERATION FOR UNITY,
RECOGNITION AND ADVANCEMENT OF GOVERNMENT EMPLOYEES (COURAGE-ST),
PAGKAKAISA'T UGNAYAN NG MGA MAGBUBUKID SA LAGUNA (PUMALAG), SAMAHAN NG
MGA MAMAMAYAN SA TABING RILES (SMTR-ST), LEAGUE OF FILIPINO STUDENTS (LFS),
BAYAN MUNA-ST, KONGRESO NG MGA MAGBUBUKID PARA SA REPORMANG AGRARYO
KOMPRA, BIGKIS AT LAKAS NG MGA KATUTUBO SA TIMOG KATAGALUGAN (BALATIK),
SAMAHAN AT UGNAYAN NG MGA MAGSASAKANG KABABAIHAN SA TIMOG
KATAGALUGAN (SUMAMAKA-TK), STARTER, LOSÑOS RURAL POOR ORGANIZATION FOR
PROGRESS & EQUALITY, CHRISTIAN NIÑO LAJARA, TEODORO REYES, FRANCESCA B.
TOLENTINO, JANNETTE E. BARRIENTOS, OSCAR T. LAPIDA, JR., DELFIN DE CLARO,
SALLY P. ASTRERA, ARNEL SEGUNE BELTRAN, Petitioners,
vs.
GLORIA MACAPAGAL-ARROYO, in her capacity as President and Commander-in-Chief,
EXECUTIVE SECRETARY EDUARDO ERMITA, DEPARTMENT OF JUSTICE SECRETARY
RAUL GONZALEZ, DEPARTMENT OF FOREIGN AFFAIRS SECRETARY ALBERTO ROMULO,
DEPARTMENT OF NATIONAL DEFENSE ACTING SECRETARY NORBERTO GONZALES,
DEPARTMENT OF INTERIOR AND LOCAL GOVERNMEN T SECRETARY RONALDO PUNO,
DEPARTMENT OF FINCANCE SECRETARY MARGARITO TEVES, NATIONAL SECURITY
ADVISER NORBERTO GONZALES, THE NATIONAL INTELLIGENCE COORDINATING AGENCY
(NICA), THE NATIONAL BUREAU OF INVESTIGATION (NBI), THE BUREAU OF IMMIGRATION,
THE OFFICE OF CIVIL DEFENSE, THE INTELLIGENCE SERVICE OF THE ARMED FORCES OF
THE PHILIPPINES (ISAFP), THE ANTI-MONEY LAUNDERING COUNCIL (AMLC), THE
PHILIPPINE CENTER ON TRANSNATIONAL CRIME, THE CHIEF OF THE PHILIPPINE
NATIONAL POLICE GEN. OSCAR CALDERON, THE PNP, including its intelligence and
investigative elements, AFP CHIEF GEN. HERMOGENES ESPERON, Respondents.

DECISION

CARPIO MORALES, J.:

Before the Court are six petitions challenging the constitutionality of Republic Act No. 9372 (RA
9372), "An Act to Secure the State and Protect our People from Terrorism," otherwise known as the
Human Security Act of 2007,1 signed into law on March 6, 2007.

Following the effectivity of RA 9372 on July 15, 2007, 2 petitioner Southern Hemisphere Engagement
Network, Inc., a non-government organization, and Atty. Soliman Santos, Jr., a concerned citizen,
taxpayer and lawyer, filed a petition for certiorari and prohibition on July 16, 2007 docketed as G.R.
No. 178552. On even date, petitioners Kilusang Mayo Uno (KMU), National Federation of Labor
Unions-Kilusang Mayo Uno (NAFLU-KMU), and Center for Trade Union and Human Rights
(CTUHR), represented by their respective officers 3 who are also bringing the action in their capacity
as citizens, filed a petition for certiorari and prohibition docketed as G.R. No. 178554.
The following day, July 17, 2007, organizations Bagong Alyansang Makabayan (BAYAN), General
Alliance Binding Women for Reforms, Integrity, Equality, Leadership and Action (GABRIELA),
Kilusang Magbubukid ng Pilipinas (KMP), Movement of Concerned Citizens for Civil Liberties
(MCCCL), Confederation for Unity, Recognition and Advancement of Government Employees
(COURAGE), Kalipunan ng Damayang Mahihirap (KADAMAY), Solidarity of Cavite Workers (SCW),
League of Filipino Students (LFS), Anakbayan, Pambansang Lakas ng Kilusang Mamamalakaya
(PAMALAKAYA), Alliance of Concerned Teachers (ACT), Migrante, Health Alliance for Democracy
(HEAD), and Agham, represented by their respective officers, 4 and joined by concerned citizens and
taxpayers Teofisto Guingona, Jr., Dr. Bienvenido Lumbera, Renato Constantino, Jr., Sister Mary
John Manansan, OSB, Dean Consuelo Paz, Atty. Josefina Lichauco, Retired Col. Gerry Cunanan,
Carlitos Siguion-Reyna, Dr. Carolina Pagaduan-Araullo, Renato Reyes, Danilo Ramos,
Emerenciana de Jesus, Rita Baua and Rey Claro Casambre filed a petition for certiorari and
prohibition docketed as G.R. No. 178581.

On August 6, 2007, Karapatan and its alliance member organizations Hustisya, Desaparecidos,
Samahan ng mga Ex-Detainees Laban sa Detensyon at para sa Amnestiya (SELDA), Ecumenical
Movement for Justice and Peace (EMJP), and Promotion of Church People’s Response (PCPR),
which were represented by their respective officers 5 who are also bringing action on their own behalf,
filed a petition for certiorari and prohibition docketed as G.R. No. 178890.

On August 29, 2007, the Integrated Bar of the Philippines (IBP), Counsels for the Defense of Liberty
(CODAL),6 Senator Ma. Ana Consuelo A.S. Madrigal, Sergio Osmeña III, and Wigberto E. Tañada
filed a petition for certiorari and prohibition docketed as G.R. No. 179157.

Bagong Alyansang Makabayan-Southern Tagalog (BAYAN-ST), other regional chapters and

organizations mostly based in the Southern Tagalog Region, 7 and individuals8 followed suit by filing
on September 19, 2007 a petition for certiorari and prohibition docketed as G.R. No. 179461 that
replicates the allegations raised in the BAYAN petition in G.R. No. 178581.

Impleaded as respondents in the various petitions are the Anti-Terrorism Council9 composed of, at
the time of the filing of the petitions, Executive Secretary Eduardo Ermita as Chairperson, Justice
Secretary Raul Gonzales as Vice Chairperson, and Foreign Affairs Secretary Alberto Romulo, Acting
Defense Secretary and National Security Adviser Norberto Gonzales, Interior and Local Government
Secretary Ronaldo Puno, and Finance Secretary Margarito Teves as members. All the petitions,
except that of the IBP, also impleaded Armed Forces of the Philippines (AFP) Chief of Staff Gen.
Hermogenes Esperon and Philippine National Police (PNP) Chief Gen. Oscar Calderon.

The Karapatan, BAYAN and BAYAN-ST petitions likewise impleaded President Gloria Macapagal-
Arroyo and the support agencies for the Anti-Terrorism Council like the National Intelligence
Coordinating Agency, National Bureau of Investigation, Bureau of Immigration, Office of Civil
Defense, Intelligence Service of the AFP, Anti-Money Laundering Center, Philippine Center on
Transnational Crime, and the PNP intelligence and investigative elements.

The petitions fail.

Petitioners’ resort to certiorari is improper

Preliminarily, certiorari does not lie against respondents who do not exercise judicial or quasi-judicial
functions. Section 1, Rule 65 of the Rules of Court is clear:

Section 1. Petition for certiorari.—When any tribunal, board or officer exercising judicial or quasi-
judicial functions has acted without or in excess of its or his jurisdiction, or with grave abuse of
discretion amounting to lack or excess of jurisdiction, and there is no appeal, nor any plain, speedy,
and adequate remedy in the ordinary course of law, a person aggrieved thereby may file a verified
petition in the proper court, alleging the facts with certainty and praying that judgment be rendered
annulling or modifying the proceedings of such tribunal, board or officer, and granting such incidental
reliefs as law and justice may require. (Emphasis and underscoring supplied)

Parenthetically, petitioners do not even allege with any modicum of particularity how respondents
acted without or in excess of their respective jurisdictions, or with grave abuse of discretion
amounting to lack or excess of jurisdiction.

The impropriety of certiorari as a remedy aside, the petitions fail just the same.

In constitutional litigations, the power of judicial review is limited by four exacting requisites, viz: (a)
there must be an actual case or controversy; (b) petitioners must possess locus standi; (c) the
question of constitutionality must be raised at the earliest opportunity; and (d) the issue of
constitutionality must be the lis mota of the case. 10

In the present case, the dismal absence of the first two requisites, which are the most essential,
renders the discussion of the last two superfluous.

Petitioners lack locus standi

Locus standi or legal standing requires a personal stake in the outcome of the controversy as to
assure that concrete adverseness which sharpens the presentation of issues upon which the court
so largely depends for illumination of difficult constitutional questions. 11

Anak Mindanao Party-List Group v. The Executive Secretary12 summarized the rule on locus standi,
thus:

Locus standi or legal standing has been defined as a personal and substantial interest in a case
such that the party has sustained or will sustain direct injury as a result of the governmental act that
is being challenged. The gist of the question on standing is whether a party alleges such personal
stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the
presentation of issues upon which the court depends for illumination of difficult constitutional
questions.

[A] party who assails the constitutionality of a statute must have a direct and personal interest. It
must show not only that the law or any governmental act is invalid, but also that it sustained or is in
immediate danger of sustaining some direct injury as a result of its enforcement, and not merely that
it suffers thereby in some indefinite way. It must show that it has been or is about to be denied some
right or privilege to which it is lawfully entitled or that it is about to be subjected to some burdens or
penalties by reason of the statute or act complained of.

For a concerned party to be allowed to raise a constitutional question, it must show that (1) it
has personally suffered some actual or threatened injury as a result of the allegedly illegal conduct of
the government, (2) the injury is fairly traceable to the challenged action, and (3) the injury is likely to
be redressed by a favorable action. (emphasis and underscoring supplied.)

Petitioner-organizations assert locus standi on the basis of being suspected "communist fronts" by
the government, especially the military; whereas individual petitioners invariably invoke the
"transcendental importance" doctrine and their status as citizens and taxpayers.
While Chavez v. PCGG13 holds that transcendental public importance dispenses with the
requirement that petitioner has experienced or is in actual danger of suffering direct and personal
injury, cases involving the constitutionality of penal legislation belong to an altogether different genus
of constitutional litigation. Compelling State and societal interests in the proscription of harmful
conduct, as will later be elucidated, necessitate a closer judicial scrutiny of locus standi.

Petitioners have not presented any personal stake in the outcome of the controversy. None of them
faces any charge under RA 9372.

KARAPATAN, Hustisya, Desaparecidos, SELDA, EMJP and PCR, petitioners in G.R. No. 178890,
allege that they have been subjected to "close security surveillance by state security forces," their
members followed by "suspicious persons" and "vehicles with dark windshields," and their offices
monitored by "men with military build." They likewise claim that they have been branded as "enemies
of the [S]tate."14

Even conceding such gratuitous allegations, the Office of the Solicitor General (OSG) correctly
points out that petitioners have yet to show any connection between the
purported "surveillance" and the implementation of RA 9372.

BAYAN, GABRIELA, KMP, MCCCL, COURAGE, KADAMAY, SCW, LFS, Anakbayan,

PAMALAKAYA, ACT, Migrante, HEAD and Agham, petitioner-organizations in G.R. No. 178581,
would like the Court to take judicial notice of respondents’ alleged action of tagging them as militant
organizations fronting for the Communist Party of the Philippines (CPP) and its armed wing, the
National People’s Army (NPA). The tagging, according to petitioners, is tantamount to the effects of
proscription without following the procedure under the law. 15 The petition of BAYAN-ST, et al. in G.R.
No. 179461 pleads the same allegations.

The Court cannot take judicial notice of the alleged "tagging" of petitioners.

Generally speaking, matters of judicial notice have three material requisites: (1) the matter must be
one of common and general knowledge; (2) it must be well and authoritatively settled and not
doubtful or uncertain; and (3) it must be known to be within the limits of the jurisdiction of the court.
The principal guide in determining what facts may be assumed to be judicially known is that of
notoriety. Hence, it can be said that judicial notice is limited to facts evidenced by public records and
facts of general notoriety. Moreover, a judicially noticed fact must be one not subject to a reasonable
dispute in that it is either: (1) generally known within the territorial jurisdiction of the trial court; or (2)
capable of accurate and ready determination by resorting to sources whose accuracy cannot
reasonably be questionable.

Things of "common knowledge," of which courts take judicial matters coming to the knowledge of
men generally in the course of the ordinary experiences of life, or they may be matters which are
generally accepted by mankind as true and are capable of ready and unquestioned demonstration.
Thus, facts which are universally known, and which may be found in encyclopedias, dictionaries or
other publications, are judicially noticed, provided, they are of such universal notoriety and so
generally understood that they may be regarded as forming part of the common knowledge of every
person. As the common knowledge of man ranges far and wide, a wide variety of particular facts
have been judicially noticed as being matters of common knowledge. But a court cannot take judicial
notice of any fact which, in part, is dependent on the existence or non-existence of a fact of which
the court has no constructive knowledge. 16 (emphasis and underscoring supplied.)

No ground was properly established by petitioners for the taking of judicial notice. Petitioners’
apprehension is insufficient to substantiate their plea. That no specific charge or proscription under
RA 9372 has been filed against them, three years after its effectivity, belies any claim
of imminence of their perceived threat emanating from the so-called tagging.

The same is true with petitioners KMU, NAFLU and CTUHR in G.R. No. 178554, who merely harp
as well on their supposed "link" to the CPP and NPA. They fail to particularize how the
implementation of specific provisions of RA 9372 would result in direct injury to their organization
and members.

While in our jurisdiction there is still no judicially declared terrorist organization, the United States of
America17 (US) and the European Union18 (EU) have both classified the CPP, NPA and Abu Sayyaf
Group as foreign terrorist organizations. The Court takes note of the joint statement of Executive
Secretary Eduardo Ermita and Justice Secretary Raul Gonzales that the Arroyo Administration
would adopt the US and EU classification of the CPP and NPA as terrorist organizations. 19 Such
statement notwithstanding, there is yet to be filed before the courts an application to declare the
CPP and NPA organizations as domestic terrorist or outlawed organizations under RA 9372. Again,
RA 9372 has been in effect for three years now. From July 2007 up to the present, petitioner-
organizations have conducted their activities fully and freely without any threat of, much less an
actual, prosecution or proscription under RA 9372.

Parenthetically, the Fourteenth Congress, in a resolution initiated by Party-list Representatives

Saturnino Ocampo, Teodoro Casiño, Rafael Mariano and Luzviminda Ilagan, 20 urged the
government to resume peace negotiations with the NDF by removing the impediments thereto, one
of which is the adoption of designation of the CPP and NPA by the US and EU as foreign terrorist
organizations. Considering the policy statement of the Aquino Administration21 of resuming peace
talks with the NDF, the government is not imminently disposed to ask for the judicial proscription of
the CPP-NPA consortium and its allied organizations.

More important, there are other parties not before the Court with direct and specific interests in the
questions being raised.22 Of recent development is the filing of the first case for proscription under
Section 1723 of RA 9372 by the Department of Justice before the Basilan Regional Trial Court
against the Abu Sayyaf Group.24 Petitioner-organizations do not in the least allege any link to the
Abu Sayyaf Group.

Some petitioners attempt, in vain though, to show the imminence of a prosecution under RA 9372 by
alluding to past rebellion charges against them.

In Ladlad v. Velasco,25 the Court ordered the dismissal of rebellion charges filed in 2006 against then
Party-List Representatives Crispin Beltran and Rafael Mariano of Anakpawis, Liza Maza of
GABRIELA, and Joel Virador, Teodoro Casiño and Saturnino Ocampo of Bayan Muna. Also named
in the dismissed rebellion charges were petitioners Rey Claro Casambre, Carolina Pagaduan-
Araullo, Renato Reyes, Rita Baua, Emerencia de Jesus and Danilo Ramos; and accused of being
front organizations for the Communist movement were petitioner-organizations KMU, BAYAN,
GABRIELA, PAMALAKAYA, KMP, KADAMAY, LFS and COURAGE. 26

The dismissed rebellion charges, however, do not save the day for petitioners. For one, those
charges were filed in 2006, prior to the enactment of RA 9372, and dismissed by this Court. For
another, rebellion is defined and punished under the Revised Penal Code. Prosecution for rebellion
is not made more imminent by the enactment of RA 9372, nor does the enactment thereof make it
easier to charge a person with rebellion, its elements not having been altered.
Conversely, previously filed but dismissed rebellion charges bear no relation to prospective charges
under RA 9372. It cannot be overemphasized that three years after the enactment of RA 9372, none
of petitioners has been charged.

Petitioners IBP and CODAL in G.R. No. 179157 base their claim of locus standi on their sworn duty
to uphold the Constitution. The IBP zeroes in on Section 21 of RA 9372 directing it to render
assistance to those arrested or detained under the law.

The mere invocation of the duty to preserve the rule of law does not, however, suffice to clothe the
IBP or any of its members with standing. 27 The IBP failed to sufficiently demonstrate how its mandate
under the assailed statute revolts against its constitutional rights and duties. Moreover, both the IBP
and CODAL have not pointed to even a single arrest or detention effected under RA 9372.

Former Senator Ma. Ana Consuelo Madrigal, who claims to have been the subject of "political
surveillance," also lacks locus standi. Prescinding from the veracity, let alone legal basis, of the
claim of "political surveillance," the Court finds that she has not shown even the slightest threat of
being charged under RA 9372. Similarly lacking in locus standi are former Senator Wigberto Tañada
and Senator Sergio Osmeña III, who cite their being respectively a human rights advocate and an
oppositor to the passage of RA 9372. Outside these gratuitous statements, no concrete injury to
them has been pinpointed.

Petitioners Southern Hemisphere Engagement Network and Atty. Soliman Santos Jr. in G.R. No.
178552 also conveniently state that the issues they raise are of transcendental importance, "which
must be settled early" and are of "far-reaching implications," without mention of any specific
provision of RA 9372 under which they have been charged, or may be charged. Mere invocation of
human rights advocacy has nowhere been held sufficient to clothe litigants with locus standi.
Petitioners must show an actual, or immediate danger of sustaining, direct injury as a result of the
law’s enforcement. To rule otherwise would be to corrupt the settled doctrine of locus standi, as
every worthy cause is an interest shared by the general public.

Neither can locus standi be conferred upon individual petitioners as taxpayers and citizens. A
taxpayer suit is proper only when there is an exercise of the spending or taxing power of
Congress,28 whereas citizen standing must rest on direct and personal interest in the proceeding. 29

RA 9372 is a penal statute and does not even provide for any appropriation from Congress for its
implementation, while none of the individual petitioner-citizens has alleged any direct and personal
interest in the implementation of the law.

It bears to stress that generalized interests, albeit accompanied by the assertion of a public right, do
not establish locus standi. Evidence of a direct and personal interest is key.

Petitioners fail to present an actual case or controversy

By constitutional fiat, judicial power operates only when there is an actual case or controversy.

Section 1. The judicial power shall be vested in one Supreme Court and in such lower courts as may
be established by law.

Judicial power includes the duty of the courts of justice to settle actual controversies involving rights
which are legally demandable and enforceable, and to determine whether or not there has been a
grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or
instrumentality of the Government. 30 (emphasis and underscoring supplied.)

As early as Angara v. Electoral Commission,31 the Court ruled that the power of judicial review is
limited to actual cases or controversies to be exercised after full opportunity of argument by the
parties. Any attempt at abstraction could only lead to dialectics and barren legal questions and to
sterile conclusions unrelated to actualities.

An actual case or controversy means an existing case or controversy that is appropriate or ripe for
determination, not conjectural or anticipatory, lest the decision of the court would amount to an
advisory opinion.32

Information Technology Foundation of the Philippines v. COMELEC 33 cannot be more emphatic:

[C]ourts do not sit to adjudicate mere academic questions to satisfy scholarly interest, however
intellectually challenging. The controversy must be justiciable—definite and concrete, touching on
the legal relations of parties having adverse legal interests. In other words, the pleadings must show
an active antagonistic assertion of a legal right, on the one hand, and a denial thereof on the other
hand; that is, it must concern a real and not merely a theoretical question or issue. There ought to
be an actual and substantial controversy admitting of specific relief through a decree conclusive in
nature, as distinguished from an opinion advising what the law would be upon a hypothetical state of
facts. (Emphasis and underscoring supplied)

Thus, a petition to declare unconstitutional a law converting the Municipality of Makati into a Highly
Urbanized City was held to be premature as it was tacked on uncertain, contingent
events.34 Similarly, a petition that fails to allege that an application for a license to operate a radio or
television station has been denied or granted by the authorities does not present a justiciable
controversy, and merely wheedles the Court to rule on a hypothetical problem. 35

The Court dismissed the petition in Philippine Press Institute v. Commission on Elections 36 for failure
to cite any specific affirmative action of the Commission on Elections to implement the assailed
resolution. It refused, in Abbas v. Commission on Elections, 37 to rule on the religious freedom claim
of the therein petitioners based merely on a perceived potential conflict between the provisions of
the Muslim Code and those of the national law, there being no actual controversy between real
litigants.

The list of cases denying claims resting on purely hypothetical or anticipatory grounds goes on ad
infinitum.

The Court is not unaware that a reasonable certainty of the occurrence of a perceived threat to any
constitutional interest suffices to provide a basis for mounting a constitutional challenge. This,
however, is qualified by the requirement that there must be sufficient facts to enable the Court to
intelligently adjudicate the issues.38

Very recently, the US Supreme Court, in Holder v. Humanitarian Law Project, 39 allowed the pre-
enforcement review of a criminal statute, challenged on vagueness grounds, since plaintiffs faced a
"credible threat of prosecution" and "should not be required to await and undergo a criminal
prosecution as the sole means of seeking relief."40 The plaintiffs therein filed an action before a
federal court to assail the constitutionality of the material support statute, 18 U.S.C. §2339B (a)
(1),41 proscribing the provision of material support to organizations declared by the Secretary of State
as foreign terrorist organizations. They claimed that they intended to provide support for the
humanitarian and political activities of two such organizations.
Prevailing American jurisprudence allows an adjudication on the merits when an anticipatory petition
clearly shows that the challenged prohibition forbids the conduct or activity that a petitioner seeks to
do, as there would then be a justiciable controversy.42

Unlike the plaintiffs in Holder, however, herein petitioners have failed to show that the challenged
provisions of RA 9372 forbid constitutionally protected conduct or activity that they seek to do. No
demonstrable threat has been established, much less a real and existing one.

Petitioners’ obscure allegations of sporadic "surveillance" and supposedly being tagged as

"communist fronts" in no way approximate a credible threat of prosecution. From these allegations,
the Court is being lured to render an advisory opinion, which is not its function. 43

Without any justiciable controversy, the petitions have become pleas for declaratory relief, over
which the Court has no original jurisdiction. Then again, declaratory actions characterized by "double
contingency," where both the activity the petitioners intend to undertake and the anticipated reaction
to it of a public official are merely theorized, lie beyond judicial review for lack of ripeness. 44

The possibility of abuse in the implementation of RA 9372 does not avail to take the present petitions
out of the realm of the surreal and merely imagined. Such possibility is not peculiar to RA 9372 since
the exercise of any power granted by law may be abused. 45 Allegations of abuse must be anchored
on real events before courts may step in to settle actual controversies involving rights which are
legally demandable and enforceable.

A facial invalidation of a statute is allowed only in free speech cases, wherein certain rules of
constitutional litigation are rightly excepted

Petitioners assail for being intrinsically vague and impermissibly broad the definition of the crime of
terrorism46 under RA 9372 in that terms like "widespread and extraordinary fear and panic among the
populace" and "coerce the government to give in to an unlawful demand" are nebulous, leaving law
enforcement agencies with no standard to measure the prohibited acts.

Respondents, through the OSG, counter that the doctrines of void-for-vagueness and overbreadth
find no application in the present case since these doctrines apply only to free speech cases; and
that RA 9372 regulates conduct, not speech.

For a jurisprudentially guided understanding of these doctrines, it is imperative to outline the schools
of thought on whether the void-for-vagueness and overbreadth doctrines are equally applicable
grounds to assail a penal statute.

Respondents interpret recent jurisprudence as slanting toward the idea of limiting the application of
the two doctrines to free speech cases. They particularly cite Romualdez v. Hon.
Sandiganbayan47 and Estrada v. Sandiganbayan.48

The Court clarifies.

At issue in Romualdez v. Sandiganbayan was whether the word "intervene" in Section 549 of the
Anti-Graft and Corrupt Practices Act was intrinsically vague and impermissibly broad. The Court
stated that "the overbreadth and the vagueness doctrines have special application only to free-
speech cases," and are "not appropriate for testing the validity of penal statutes." 50 It added that, at
any rate, the challenged provision, under which the therein petitioner was charged, is not vague. 51
While in the subsequent case of Romualdez v. Commission on Elections,52 the Court stated that a
facial invalidation of criminal statutes is not appropriate, it nonetheless proceeded to conduct a
vagueness analysis, and concluded that the therein subject election offense 53 under the Voter’s
Registration Act of 1996, with which the therein petitioners were charged, is couched in precise
language.54

The two Romualdez cases rely heavily on the Separate Opinion55 of Justice Vicente V. Mendoza in
the Estrada case, where the Court found the Anti-Plunder Law (Republic Act No. 7080) clear and
free from ambiguity respecting the definition of the crime of plunder.

The position taken by Justice Mendoza in Estrada relates these two doctrines to the concept of a
"facial" invalidation as opposed to an "as-applied" challenge. He basically postulated that allegations
that a penal statute is vague and overbroad do not justify a facial review of its validity. The pertinent
portion of the Concurring Opinion of Justice Mendoza, which was quoted at length in the main
Estrada decision, reads:

A facial challenge is allowed to be made to a vague statute and to one which is overbroad because
of possible "chilling effect" upon protected speech. The theory is that "[w]hen statutes regulate or
proscribe speech and no readily apparent construction suggests itself as a vehicle for rehabilitating
the statutes in a single prosecution, the transcendent value to all society of constitutionally protected
expression is deemed to justify allowing attacks on overly broad statutes with no requirement that
the person making the attack demonstrate that his own conduct could not be regulated by a statute
drawn with narrow specificity." The possible harm to society in permitting some unprotected speech
to go unpunished is outweighed by the possibility that the protected speech of others may be
deterred and perceived grievances left to fester because of possible inhibitory effects of overly broad
statutes.

This rationale does not apply to penal statutes. Criminal statutes have general in terrorem effect
resulting from their very existence, and, if facial challenge is allowed for this reason alone, the State
may well be prevented from enacting laws against socially harmful conduct. In the area of criminal
law, the law cannot take chances as in the area of free speech.

The overbreadth and vagueness doctrines then have special application only to free speech cases.
They are inapt for testing the validity of penal statutes. As the U.S. Supreme Court put it, in an
opinion by Chief Justice Rehnquist, "we have not recognized an 'overbreadth' doctrine outside the
limited context of the First Amendment." In Broadrick v. Oklahoma, the Court ruled that "claims of
facial overbreadth have been entertained in cases involving statutes which, by their terms, seek to
regulate only spoken words" and, again, that "overbreadth claims, if entertained at all, have been
curtailed when invoked against ordinary criminal laws that are sought to be applied to protected
conduct." For this reason, it has been held that "a facial challenge to a legislative act is the most
difficult challenge to mount successfully, since the challenger must establish that no set of
circumstances exists under which the Act would be valid." As for the vagueness doctrine, it is said
that a litigant may challenge a statute on its face only if it is vague in all its possible applications. "A
plaintiff who engages in some conduct that is clearly proscribed cannot complain of the vagueness
of the law as applied to the conduct of others."

In sum, the doctrines of strict scrutiny, overbreadth, and vagueness are analytical tools developed
for testing "on their faces" statutes in free speech cases or, as they are called in American law, First
Amendment cases. They cannot be made to do service when what is involved is a criminal statute.
With respect to such statute, the established rule is that "one to whom application of a statute is
constitutional will not be heard to attack the statute on the ground that impliedly it might also be
taken as applying to other persons or other situations in which its application might be
unconstitutional." As has been pointed out, "vagueness challenges in the First Amendment context,
like overbreadth challenges typically produce facial invalidation, while statutes found vague as a
matter of due process typically are invalidated [only] 'as applied' to a particular defendant."
Consequently, there is no basis for petitioner's claim that this Court review the Anti-Plunder Law on
its face and in its entirety.

Indeed, "on its face" invalidation of statutes results in striking them down entirely on the ground that
they might be applied to parties not before the Court whose activities are constitutionally protected. It
constitutes a departure from the case and controversy requirement of the Constitution and permits
decisions to be made without concrete factual settings and in sterile abstract contexts. But, as the
U.S. Supreme Court pointed out in Younger v. Harris

[T]he task of analyzing a proposed statute, pinpointing its deficiencies, and requiring correction of
these deficiencies before the statute is put into effect, is rarely if ever an appropriate task for the
judiciary. The combination of the relative remoteness of the controversy, the impact on the legislative
process of the relief sought, and above all the speculative and amorphous nature of the required
line-by-line analysis of detailed statutes, . . . ordinarily results in a kind of case that is wholly
unsatisfactory for deciding constitutional questions, whichever way they might be decided.

For these reasons, "on its face" invalidation of statutes has been described as "manifestly strong
medicine," to be employed "sparingly and only as a last resort," and is generally disfavored. In
determining the constitutionality of a statute, therefore, its provisions which are alleged to have been
violated in a case must be examined in the light of the conduct with which the defendant is
charged.56 (Underscoring supplied.)

The confusion apparently stems from the interlocking relation of the overbreadth and vagueness
doctrines as grounds for a facial or as-applied challenge against a penal statute (under a claim of
violation of due process of law) or a speech regulation (under a claim of abridgement of the freedom
of speech and cognate rights).

To be sure, the doctrine of vagueness and the doctrine of overbreadth do not operate on the same
plane.

A statute or act suffers from the defect of vagueness when it lacks comprehensible standards that
men of common intelligence must necessarily guess at its meaning and differ as to its application. It
is repugnant to the Constitution in two respects: (1) it violates due process for failure to accord
persons, especially the parties targeted by it, fair notice of the conduct to avoid; and (2) it leaves law
enforcers unbridled discretion in carrying out its provisions and becomes an arbitrary flexing of the
Government muscle.57 The overbreadth doctrine, meanwhile, decrees that a governmental purpose
to control or prevent activities constitutionally subject to state regulations may not be achieved by
means which sweep unnecessarily broadly and thereby invade the area of protected freedoms. 58

As distinguished from the vagueness doctrine, the overbreadth doctrine assumes that individuals will
understand what a statute prohibits and will accordingly refrain from that behavior, even though
some of it is protected.59

A "facial" challenge is likewise different from an "as-applied" challenge.

Distinguished from an as-applied challenge which considers only extant facts affecting real litigants,
a facial invalidation is an examination of the entire law, pinpointing its flaws and defects, not only on
the basis of its actual operation to the parties, but also on the assumption or prediction that its very
existence may cause others not before the court to refrain from constitutionally protected speech or
activities.60

Justice Mendoza accurately phrased the subtitle61 in his concurring opinion that the vagueness and
overbreadth doctrines, as grounds for a facial challenge, are not applicable to penal laws. A litigant
cannot thus successfully mount a facial challenge against a criminal statute on either vagueness or
overbreadth grounds.

The allowance of a facial challenge in free speech cases is justified by the aim to avert the "chilling
effect" on protected speech, the exercise of which should not at all times be abridged. 62 As reflected
earlier, this rationale is inapplicable to plain penal statutes that generally bear an "in terrorem effect"
in deterring socially harmful conduct. In fact, the legislature may even forbid and penalize acts
formerly considered innocent and lawful, so long as it refrains from diminishing or dissuading the
exercise of constitutionally protected rights. 63

The Court reiterated that there are "critical limitations by which a criminal statute may be challenged"
and "underscored that an ‘on-its-face’ invalidation of penal statutes x x x may not be allowed." 64

[T]he rule established in our jurisdiction is, only statutes on free speech, religious freedom, and other
fundamental rights may be facially challenged. Under no case may ordinary penal statutes be
subjected to a facial challenge. The rationale is obvious. If a facial challenge to a penal statute is
permitted, the prosecution of crimes may be hampered. No prosecution would be possible. A strong
criticism against employing a facial challenge in the case of penal statutes, if the same is allowed,
would effectively go against the grain of the doctrinal requirement of an existing and concrete
controversy before judicial power may be appropriately exercised. A facial challenge against a penal
statute is, at best, amorphous and speculative. It would, essentially, force the court to consider third
parties who are not before it. As I have said in my opposition to the allowance of a facial challenge to
attack penal statutes, such a test will impair the State’s ability to deal with crime. If warranted, there
would be nothing that can hinder an accused from defeating the State’s power to prosecute on a
mere showing that, as applied to third parties, the penal statute is vague or overbroad,
notwithstanding that the law is clear as applied to him. 65 (Emphasis and underscoring supplied)

It is settled, on the other hand, that the application of the overbreadth doctrine is limited to a
facial kind of challenge and, owing to the given rationale of a facial challenge, applicable only
to free speech cases.

By its nature, the overbreadth doctrine has to necessarily apply a facial type of invalidation in order
to plot areas of protected speech, inevitably almost always under situations not before the court, that
are impermissibly swept by the substantially overbroad regulation. Otherwise stated, a statute
cannot be properly analyzed for being substantially overbroad if the court confines itself only to facts
as applied to the litigants.

The most distinctive feature of the overbreadth technique is that it marks an exception to some of the
usual rules of constitutional litigation. Ordinarily, a particular litigant claims that a statute is
unconstitutional as applied to him or her; if the litigant prevails, the courts carve away the
unconstitutional aspects of the law by invalidating its improper applications on a case to case basis.
Moreover, challengers to a law are not permitted to raise the rights of third parties and can only
assert their own interests. In overbreadth analysis, those rules give way; challenges are permitted to
raise the rights of third parties; and the court invalidates the entire statute "on its face," not
merely "as applied for" so that the overbroad law becomes unenforceable until a properly authorized
court construes it more narrowly. The factor that motivates courts to depart from the normal
adjudicatory rules is the concern with the "chilling;" deterrent effect of the overbroad statute on third
parties not courageous enough to bring suit. The Court assumes that an overbroad law’s "very
existence may cause others not before the court to refrain from constitutionally protected speech or
expression." An overbreadth ruling is designed to remove that deterrent effect on the speech of
those third parties.66 (Emphasis in the original omitted; underscoring supplied.)

In restricting the overbreadth doctrine to free speech claims, the Court, in at least two
cases,67 observed that the US Supreme Court has not recognized an overbreadth doctrine outside
the limited context of the First Amendment, 68 and that claims of facial overbreadth have been
entertained in cases involving statutes which, by their terms, seek to regulate only spoken
words.69 In Virginia v. Hicks,70 it was held that rarely, if ever, will an overbreadth challenge succeed
against a law or regulation that is not specifically addressed to speech or speech-related conduct.
Attacks on overly broad statutes are justified by the "transcendent value to all society of
constitutionally protected expression."71

Since a penal statute may only be assailed for being vague as applied to petitioners, a limited
vagueness analysis of the definition of "terrorism" in RA 9372 is legally impermissible absent
an actual or imminent charge against them

While Estrada did not apply the overbreadth doctrine, it did not preclude the operation of the
vagueness test on the Anti-Plunder Law as applied to the therein petitioner, finding, however, that
there was no basis to review the law "on its face and in its entirety." 72 It stressed that "statutes found
vague as a matter of due process typically are invalidated only 'as applied' to a particular
defendant."73

American jurisprudence74 instructs that "vagueness challenges that do not involve the First
Amendment must be examined in light of the specific facts of the case at hand and not with regard to
the statute's facial validity."

For more than 125 years, the US Supreme Court has evaluated defendants’ claims that criminal
statutes are unconstitutionally vague, developing a doctrine hailed as "among the most important
guarantees of liberty under law."75

In this jurisdiction, the void-for-vagueness doctrine asserted under the due process clause has been
utilized in examining the constitutionality of criminal statutes. In at least three cases, 76 the Court
brought the doctrine into play in analyzing an ordinance penalizing the non-payment of municipal tax
on fishponds, the crime of illegal recruitment punishable under Article 132(b) of the Labor Code, and
the vagrancy provision under Article 202 (2) of the Revised Penal Code. Notably, the petitioners in
these three cases, similar to those in the two Romualdez and Estrada cases, were
actually charged with the therein assailed penal statute, unlike in the present case.

There is no merit in the claim that RA 9372 regulates speech so as to permit a facial analysis of its
validity

From the definition of the crime of terrorism in the earlier cited Section 3 of RA 9372, the following
elements may be culled: (1) the offender commits an act punishable under any of the cited
provisions of the Revised Penal Code, or under any of the enumerated special penal laws; (2) the
commission of the predicate crime sows and creates a condition of widespread and extraordinary
fear and panic among the populace; and (3) the offender is actuated by the desire to coerce the
government to give in to an unlawful demand.
In insisting on a facial challenge on the invocation that the law penalizes speech, petitioners contend
that the element of "unlawful demand" in the definition of terrorism 77 must necessarily be transmitted
through some form of expression protected by the free speech clause.

The argument does not persuade. What the law seeks to penalize is conduct, not speech.

Before a charge for terrorism may be filed under RA 9372, there must first be a predicate crime
actually committed to trigger the operation of the key qualifying phrases in the other elements of the
crime, including the coercion of the government to accede to an "unlawful demand." Given the
presence of the first element, any attempt at singling out or highlighting the communicative
component of the prohibition cannot recategorize the unprotected conduct into a protected speech.

Petitioners’ notion on the transmission of message is entirely inaccurate, as it unduly focuses on just
one particle of an element of the crime. Almost every commission of a crime entails some mincing of
words on the part of the offender like in declaring to launch overt criminal acts against a victim, in
haggling on the amount of ransom or conditions, or in negotiating a deceitful transaction. An analogy
in one U.S. case78 illustrated that the fact that the prohibition on discrimination in hiring on the basis
of race will require an employer to take down a sign reading "White Applicants Only" hardly means
that the law should be analyzed as one regulating speech rather than conduct.

Utterances not elemental but inevitably incidental to the doing of the criminal conduct alter neither
the intent of the law to punish socially harmful conduct nor the essence of the whole act as conduct
and not speech. This holds true a fortiori in the present case where the expression figures only as an
inevitable incident of making the element of coercion perceptible.

[I]t is true that the agreements and course of conduct here were as in most instances brought about
through speaking or writing. But it has never been deemed an abridgement of freedom of speech or
press to make a course of conduct illegal merely because the conduct was, in part,
initiated, evidenced, or carried out by means of language, either spoken, written, or printed. Such an
expansive interpretation of the constitutional guaranties of speech and press would make it
practically impossible ever to enforce laws against agreements in restraint of trade as well as many
other agreements and conspiracies deemed injurious to society. 79 (italics and underscoring supplied)

Certain kinds of speech have been treated as unprotected conduct, because they merely evidence a
prohibited conduct.80 Since speech is not involved here, the Court cannot heed the call for a facial
analysis.1avvphi1

IN FINE, Estrada and the other cited authorities engaged in a vagueness analysis of the therein
subject penal statute as applied to the therein petitioners inasmuch as they were actually charged
with the pertinent crimes challenged on vagueness grounds. The Court in said cases, however,
found no basis to review the assailed penal statute on its face and in its entirety.

In Holder, on the other hand, the US Supreme Court allowed the pre-enforcement review of a
criminal statute, challenged on vagueness grounds, since the therein plaintiffs faced a "credible
threat of prosecution" and "should not be required to await and undergo a criminal prosecution as
the sole means of seeking relief."

As earlier reflected, petitioners have established neither an actual charge nor a credible threat of
prosecution under RA 9372. Even a limited vagueness analysis of the assailed definition of
"terrorism" is thus legally impermissible. The Court reminds litigants that judicial power neither
contemplates speculative counseling on a statute’s future effect on hypothetical scenarios nor allows
the courts to be used as an extension of a failed legislative lobbying in Congress.
WHEREFORE, the petitions are DISMISSED.

SO ORDERED.