PROF. RANDOLF S.

DAVID, LORENZO TAADA III, RONALD

LLAMAS, H. HARRY L. ROQUE, JR., JOEL RUIZ BUTUYAN, ROGER
R. RAYEL, GARY S. MALLARI, ROMEL REGALADO BAGARES,
CHRISTOPHER F.C. BOLASTIG, petitioners,
vs. GLORIA MACAPAGAL-ARROYO, AS PRESIDENT AND
COMMANDER-IN-CHIEF, EXECUTIVE SECRETARY EDUARDO
ERMITA, HON. AVELINO CRUZ II, SECRETARY OF NATIONAL
DEFENSE, GENERAL GENEROSO SENGA, CHIEF OF STAFF,
ARMED FORCES OF THE PHILIPPINES, DIRECTOR GENERAL
ARTURO LOMIBAO, CHIEF, PHILIPPINE NATIONAL POLICE,
respondents.
G.R. No. 171396
May 3, 2006
All powers need some restraint; practical adjustments rather than rigid
formula are necessary. 1 Superior strength the use of force cannot
make wrongs into rights. In this regard, the courts should be vigilant in
safeguarding the constitutional rights of the citizens, specifically their
liberty.
Chief Justice Artemio V. Panganiban's philosophy of liberty is thus most
relevant. He said: "In cases involving liberty, the scales of justice should
weigh heavily against government and in favor of the poor, the oppressed,
the marginalized, the dispossessed and the weak." Laws and actions that
restrict fundamental rights come to the courts "with a heavy presumption
against their constitutional validity."
These seven (7) consolidated petitions for certiorari and prohibition allege
that in issuing Presidential Proclamation No. 1017 (PP 1017) and General
Order No. 5 (G.O. No. 5), President Gloria Macapagal-Arroyo committed
grave abuse of discretion. Petitioners contend that respondent officials of
the Government, in their professed efforts to defend and preserve
democratic institutions, are actually trampling upon the very freedom
guaranteed and protected by the Constitution. Hence, such issuances are
void for being unconstitutional.

Once again, the Court is faced with an age-old but persistently modern
problem. How does the Constitution of a free people combine the degree of
liberty, without which, law becomes tyranny, with the degree of law,
without which, liberty becomes license?
On February 24, 2006, as the nation celebrated the 20th Anniversary of the
Edsa People Power I, President Arroyo issued PP 1017 declaring a state of
national emergency, thus:
NOW, THEREFORE, I, Gloria Macapagal-Arroyo, President of the
Republic of the Philippines and Commander-in-Chief of the Armed Forces
of the Philippines, by virtue of the powers vested upon me by Section 18,
Article 7 of the Philippine Constitution which states that: "The President. . .
whenever it becomes necessary, . . . may call out (the) armed forces to
prevent or suppress . . . rebellion. . . ," and in my capacity as their
Commander-in-Chief, do hereby command the Armed Forces of the
Philippines, to maintain law and order throughout the Philippines, prevent
or suppress all forms of lawless violence as well as any act of insurrection
or rebellion and to enforce obedience to all the laws and to all decrees,
orders and regulations promulgated by me personally or upon my direction;
and as provided in Section 17, Article 12 of the Constitution do hereby
declare a State of National Emergency.
She cited the following facts as bases:
WHEREAS, over these past months, elements in the political opposition
have conspired with authoritarians of the extreme Left represented by the
NDF-CPP-NPA and the extreme Right, represented by military adventurists
the historical enemies of the democratic Philippine State who are now
in a tactical alliance and engaged in a concerted and systematic conspiracy,
over a broad front, to bring down the duly constituted Government elected
in May 2004;
WHEREAS, these conspirators have repeatedly tried to bring down the
President;
WHEREAS, the claims of these elements have been recklessly magnified
by certain segments of the national media;

WHEREAS, this series of actions is hurting the Philippine State by

obstructing governance including hindering the growth of the economy and
sabotaging the people's confidence in government and their faith in the
future of this country;

sabotaging the people's confidence in the government and their faith in the
future of this country;

WHEREAS, these actions are adversely affecting the economy;

WHEREAS, these activities give totalitarian forces; of both the extreme

Left and extreme Right the opening to intensify their avowed aims to bring
down the democratic Philippine State;

WHEREAS, these activities give totalitarian forces of both the extreme Left
and extreme Right the opening to intensify their avowed aims to bring down
the democratic Philippine State;
WHEREAS, Article 2, Section 4 of the our Constitution makes the defense
and preservation of the democratic institutions and the State the primary
duty of Government;
WHEREAS, the activities above-described, their consequences,
ramifications and collateral effects constitute a clear and present danger to
the safety and the integrity of the Philippine State and of the Filipino
people;
On the same day, the President issued G.O. No. 5 implementing PP 1017,
thus:
WHEREAS, over these past months, elements in the political opposition
have conspired with authoritarians of the extreme Left, represented by the
NDF-CPP-NPA and the extreme Right, represented by military adventurists
the historical enemies of the democratic Philippine State and who are
now in a tactical alliance and engaged in a concerted and systematic
conspiracy, over a broad front, to bring down the duly-constituted
Government elected in May 2004;
WHEREAS, these conspirators have repeatedly tried to bring down our
republican government;
WHEREAS, the claims of these elements have been recklessly magnified
by certain segments of the national media;
WHEREAS, these series of actions is hurting the Philippine State by
obstructing governance, including hindering the growth of the economy and

WHEREAS, these actions are adversely affecting the economy;

WHEREAS, Article 2, Section 4 of our Constitution makes the defense and

preservation of the democratic institutions and the State the primary duty of
Government;
WHEREAS, the activities above-described, their consequences,
ramifications and collateral effects constitute a clear and present danger to
the safety and the integrity of the Philippine State and of the Filipino
people;
WHEREAS, Proclamation 1017 date February 24, 2006 has been issued
declaring a State of National Emergency;
NOW, THEREFORE, I GLORIA MACAPAGAL-ARROYO, by virtue of
the powers vested in me under the Constitution as President of the Republic
of the Philippines, and Commander-in-Chief of the Republic of the
Philippines, and pursuant to Proclamation No. 1017 dated February 24,
2006, do hereby call upon the Armed Forces of the Philippines (AFP) and
the Philippine National Police (PNP), to prevent and suppress acts of
terrorism and lawless violence in the country;
I hereby direct the Chief of Staff of the AFP and the Chief of the PNP, as
well as the officers and men of the AFP and PNP, to immediately carry out
the necessary and appropriate actions and measures to suppress and prevent
acts of terrorism and lawless violence.
On March 3, 2006, exactly one week after the declaration of a state of
national emergency and after all these petitions had been filed, the President
lifted PP 1017. She issued Proclamation No. 1021 which reads:

WHEREAS, pursuant to Section 18, Article VII and Section 17, Article XII
of the Constitution, Proclamation No. 1017 dated February 24, 2006, was
issued declaring a state of national emergency;
WHEREAS, by virtue of General Order No. 5 and No. 6 dated February 24,
2006, which were issued on the basis of Proclamation No. 1017, the Armed
Forces of the Philippines (AFP) and the Philippine National Police (PNP),
were directed to maintain law and order throughout the Philippines, prevent
and suppress all form of lawless violence as well as any act of rebellion and
to undertake such action as may be necessary;

On January 17, 2006, Captain Nathaniel Rabonza and First Lieutenants

Sonny Sarmiento, Lawrence San Juan and Patricio Bumidang, members of
the Magdalo Group indicted in the Oakwood mutiny, escaped their
detention cell in Fort Bonifacio, Taguig City. In a public statement, they
vowed to remain defiant and to elude arrest at all costs. They called upon
the people to "show and proclaim our displeasure at the sham regime. Let us
demonstrate our disgust, not only by going to the streets in protest, but also
by wearing red bands on our left arms."

NOW, THEREFORE, I, GLORIA MACAPAGAL-ARROYO, President of

the Republic of the Philippines, by virtue of the powers vested in me by
law, hereby declare that the state of national emergency has ceased to exist.

On February 17, 2006, the authorities got hold of a document entitled

"Oplan Hackle I" which detailed plans for bombings and attacks during the
Philippine Military Academy Alumni Homecoming in Baguio City. The
plot was to assassinate selected targets including some cabinet members and
President Arroyo herself. 6 Upon the advice of her security, President
Arroyo decided not to attend the Alumni Homecoming. The next day, at the
height of the celebration, a bomb was found and detonated at the PMA
parade ground.

In their presentation of the factual bases of PP 1017 and G.O. No. 5,

respondents stated that the proximate cause behind the executive issuances
was the conspiracy among some military officers, leftist insurgents of the
New People's Army (NPA), and some members of the political opposition
in a plot to unseat or assassinate President Arroyo. They considered the aim
to oust or assassinate the President and take-over the reigns of government
as a clear and present danger.

On February 21, 2006, Lt. San Juan was recaptured in a communist

safehouse in Batangas province. Found in his possession were two (2) flash
disks containing minutes of the meetings between members of the Magdalo
Group and the National People's Army (NPA), a tape recorder, audio
cassette cartridges, diskettes, and copies of subversive documents. 7 Prior to
his arrest, Lt. San Juan announced through DZRH that the "Magdalo's DDay would be on February 24, 2006, the 20th Anniversary of Edsa I."

During the oral arguments held on March 7, 2006, the Solicitor General
specified the facts leading to the issuance of PP 1017 and G.O. No. 5.
Significantly, there was no refutation from petitioners' counsels.

On February 23, 2006, PNP Chief Arturo Lomibao intercepted information

that members of the PNP- Special Action Force were planning to defect.
Thus, he immediately ordered SAF Commanding General Marcelino
Franco, Jr. to "disavow" any defection. The latter promptly obeyed and
issued a public statement: "All SAF units are under the effective control of
responsible and trustworthy officers with proven integrity and
unquestionable loyalty."

WHEREAS, the AFP and PNP have effectively prevented, suppressed and
quelled the acts lawless violence and rebellion;

The Solicitor General argued that the intent of the Constitution is to give
full discretionary powers to the President in determining the necessity of
calling out the armed forces. He emphasized that none of the petitioners has
shown that PP 1017 was without factual bases. While he explained that it is
not respondents' task to state the facts behind the questioned Proclamation,
however, they are presenting the same, narrated hereunder, for the
elucidation of the issues.

On the same day, at the house of former Congressman Peping Cojuangco,

President Cory Aquino's brother, businessmen and mid-level government
officials plotted moves to bring down the Arroyo administration. Nelly

Sindayen of TIME Magazine reported that Pastor Saycon, longtime Arroyo

critic, called a U.S. government official about his group's plans if President
Arroyo is ousted. Saycon also phoned a man code-named Delta. Saycon
identified him as B/Gen. Danilo Lim, Commander of the Army's elite Scout
Ranger. Lim said "it was all systems go for the planned movement against
Arroyo."
B/Gen. Danilo Lim and Brigade Commander Col. Ariel Querubin confided
to Gen. Generoso Senga, Chief of Staff of the Armed Forces of the
Philippines (AFP), that a huge number of soldiers would join the rallies to
provide a critical mass and armed component to the Anti-Arroyo protests to
be held on February 24, 2005. According to these two (2) officers, there
was no way they could possibly stop the soldiers because they too, were
breaking the chain of command to join the forces foist to unseat the
President. However, Gen. Senga has remained faithful to his Commanderin-Chief and to the chain of command. He immediately took custody of
B/Gen. Lim and directed Col. Querubin to return to the Philippine Marines
Headquarters in Fort Bonifacio.

Respondents further claimed that the bombing of telecommunication towers

and cell sites in Bulacan and Bataan was also considered as additional
factual basis for the issuance of PP 1017 and G.O. No. 5. So is the raid of an
army outpost in Benguet resulting in the death of three (3) soldiers. And
also the directive of the Communist Party of the Philippines ordering its
front organizations to join 5,000 Metro Manila radicals and 25,000 more
from the provinces in mass protests.
By midnight of February 23, 2006, the President convened her security
advisers and several cabinet members to assess the gravity of the fermenting
peace and order situation. She directed both the AFP and the PNP to
account for all their men and ensure that the chain of command remains
solid and undivided. To protect the young students from any possible
trouble that might break loose on the streets, the President suspended
classes in all levels in the entire National Capital Region.
For their part, petitioners cited the events that followed after the issuance of
PP 1017 and G.O. No. 5.

Earlier, the CPP-NPA called for intensification of political and

revolutionary work within the military and the police establishments in
order to forge alliances with its members and key officials. NPA spokesman
Gregorio "Ka Roger" Rosal declared: "The Communist Party and
revolutionary movement and the entire people look forward to the
possibility in the coming year of accomplishing its immediate task of
bringing down the Arroyo regime; of rendering it to weaken and unable to
rule that it will not take much longer to end it."

Immediately, the Office of the President announced the cancellation of all

programs and activities related to the 20th anniversary celebration of Edsa
People Power I; and revoked the permits to hold rallies issued earlier by the
local governments. Justice Secretary Raul Gonzales stated that political
rallies, which to the President's mind were organized for purposes of
destabilization, are cancelled. Presidential Chief of Staff Michael Defensor
announced that "warrantless arrests and take-over of facilities, including
media, can already be implemented."

On the other hand, Cesar Renerio, spokesman for the National Democratic
Front (NDF) at North Central Mindanao, publicly announced: "Anti-Arroyo
groups within the military and police are growing rapidly, hastened by the
economic difficulties suffered by the families of AFP officers and enlisted
personnel who undertake counter-insurgency operations in the field." He
claimed that with the forces of the national democratic movement, the antiArroyo conservative political parties, coalitions, plus the groups that have
been reinforcing since June 2005, it is probable that the President's ouster is
nearing its concluding stage in the first half of 2006.

Undeterred by the announcements that rallies and public assemblies would

not be allowed, groups of protesters (members of Kilusang Mayo Uno
[KMU] and National Federation of Labor Unions-Kilusang Mayo Uno
[NAFLU-KMU]), marched from various parts of Metro Manila with the
intention of converging at the EDSA shrine. Those who were already near
the EDSA site were violently dispersed by huge clusters of anti-riot police.
The well-trained policemen used truncheons, big fiber glass shields, water
cannons, and tear gas to stop and break up the marching groups, and scatter
the massed participants. The same police action was used against the

protesters marching forward to Cubao, Quezon City and to the corner of

Santolan Street and EDSA. That same evening, hundreds of riot policemen
broke up an EDSA celebration rally held along Ayala Avenue and Paseo de
Roxas Street in Makati City.
According to petitioner Kilusang Mayo Uno, the police cited PP 1017 as the
ground for the dispersal of their assemblies.
During the dispersal of the rallyists along EDSA, police arrested (without
warrant) petitioner Randolf S. David, a professor at the University of the
Philippines and newspaper columnist. Also arrested was his companion,
Ronald Llamas, president of party-list Akbayan.
At around 12:20 in the early morning of February 25, 2006, operatives of
the Criminal Investigation and Detection Group (CIDG) of the PNP, on the
basis of PP 1017 and G.O. No. 5, raided the Daily Tribune offices in
Manila. The raiding team confiscated news stories by reporters, documents,
pictures, and mock-ups of the Saturday issue. Policemen from Camp Crame
in Quezon City were stationed inside the editorial and business offices of
the newspaper; while policemen from the Manila Police District were
stationed outside the building.
A few minutes after the search and seizure at the Daily Tribune offices, the
police surrounded the premises of another pro-opposition paper, Malaya,
and its sister publication, the tabloid Abante.
The raid, according to Presidential Chief of Staff Michael Defensor, is
"meant to show a 'strong presence,' to tell media outlets not to connive or do
anything that would help the rebels in bringing down this government." The
PNP warned that it would take over any media organization that would not
follow "standards set by the government during the state of national
emergency." Director General Lomibao stated that "if they do not follow the
standards and the standards are if they would contribute to instability
in the government, or if they do not subscribe to what is in General Order
No. 5 and Proc. No. 1017 we will recommend a 'takeover.'" National
Telecommunications' Commissioner Ronald Solis urged television and
radio networks to "cooperate" with the government for the duration of the

state of national emergency. He asked for "balanced reporting" from

broadcasters when covering the events surrounding the coup attempt foiled
by the government. He warned that his agency will not hesitate to
recommend the closure of any broadcast outfit that violates rules set out for
media coverage when the national security is threatened.
Also, on February 25, 2006, the police arrested Congressman Crispin
Beltran, representing the Anakpawis Party and Chairman of Kilusang Mayo
Uno (KMU), while leaving his farmhouse in Bulacan. The police showed a
warrant for his arrest dated 1985. Beltran's lawyer explained that the
warrant, which stemmed from a case of inciting to rebellion filed during the
Marcos regime, had long been quashed. Beltran, however, is not a party in
any of these petitions.
When members of petitioner KMU went to Camp Crame to visit Beltran,
they were told they could not be admitted because of PP 1017 and G.O. No.
5. Two members were arrested and detained, while the rest were dispersed
by the police.
Bayan Muna Representative Satur Ocampo eluded arrest when the police
went after him during a public forum at the Sulo Hotel in Quezon City. But
his two drivers, identified as Roel and Art, were taken into custody.
Retired Major General Ramon Montao, former head of the Philippine
Constabulary, was arrested while with his wife and golfmates at the
Orchard Golf and Country Club in Dasmarias, Cavite.
Attempts were made to arrest Anakpawis Representative Satur Ocampo,
Representative Rafael Mariano, Bayan Muna Representative Teodoro
Casio and Gabriela Representative Liza Maza. Bayan Muna
Representative Josel Virador was arrested at the PAL Ticket Office in
Davao City. Later, he was turned over to the custody of the House of
Representatives where the "Batasan 5" decided to stay indefinitely.
Let it be stressed at this point that the alleged violations of the rights of
Representatives Beltran, Satur Ocampo, et al., are not being raised in these
petitions.

On March 3, 2006, President Arroyo issued PP 1021 declaring that the state
of national emergency has ceased to exist.
In the interim, these seven (7) petitions challenging the constitutionality of
PP 1017 and G.O. No. 5 were filed with this Court against the above-named
respondents. Three (3) of these petitions impleaded President Arroyo as
respondent.
In G.R. No. 171396, petitioners Randolf S. David, et al. assailed PP 1017
on the grounds that (1) it encroaches on the emergency powers of Congress;
(2) it is a subterfuge to avoid the constitutional requirements for the
imposition of martial law; and (3) it violates the constitutional guarantees of
freedom of the press, of speech and of assembly.
In G.R. No. 171409, petitioners Ninez Cacho-Olivares and Tribune
Publishing Co., Inc. challenged the CIDG's act of raiding the Daily Tribune
offices as a clear case of "censorship" or "prior restraint." They also claimed
that the term "emergency" refers only to tsunami, typhoon, hurricane and
similar occurrences, hence, there is "absolutely no emergency" that warrants
the issuance of PP 1017.
In G.R. No. 171485, petitioners herein are Representative Francis Joseph G.
Escudero, and twenty one (21) other members of the House of
Representatives, including Representatives Satur Ocampo, Rafael Mariano,
Teodoro Casio, Liza Maza, and Josel Virador. They asserted that PP 1017
and G.O. No. 5 constitute "usurpation of legislative powers"; "violation of
freedom of expression" and "a declaration of martial law." They alleged that
President Arroyo "gravely abused her discretion in calling out the armed
forces without clear and verifiable factual basis of the possibility of lawless
violence and a showing that there is necessity to do so."
In G.R. No. 171483, petitioners KMU, NAFLU-KMU, and their members
averred that PP 1017 and G.O. No. 5 are unconstitutional because (1) they
arrogate unto President Arroyo the power to enact laws and decrees; (2)
their issuance was without factual basis; and (3) they violate freedom of
expression and the right of the people to peaceably assemble to redress their
grievances.

In G.R. No. 171400, petitioner Alternative Law Groups, Inc. (ALGI)

alleged that PP 1017 and G.O. No. 5 are unconstitutional because they
violate (a) Section 4 of Article II, (b) Sections 1, 2, and 4 of Article III, (c)
Section 23 of Article VI, and (d) Section 17 of Article XII of the
Constitution.
In G.R. No. 171489, petitioners Jose Anselmo I. Cadiz et al., alleged that
PP 1017 is an "arbitrary and unlawful exercise by the President of her
Martial Law powers." And assuming that PP 1017 is not really a declaration
of Martial Law, petitioners argued that "it amounts to an exercise by the
President of emergency powers without congressional approval." In
addition, petitioners asserted that PP 1017 "goes beyond the nature and
function of a proclamation as defined under the Revised Administrative
Code."
And lastly, in G.R. No. 171424, petitioner Loren B. Legarda maintained
that PP 1017 and G.O. No. 5 are "unconstitutional for being violative of the
freedom of expression, including its cognate rights such as freedom of the
press and the right to access to information on matters of public concern, all
guaranteed under Article III, Section 4 of the 1987 Constitution." In this
regard, she stated that these issuances prevented her from fully prosecuting
her election protest pending before the Presidential Electoral Tribunal.
In respondents' Consolidated Comment, the Solicitor General countered
that: first, the petitions should be dismissed for being moot; second,
petitioners in G.R. Nos. 171400 (ALGI), 171424 (Legarda), 171483 (KMU
et al.), 171485 (Escudero et al.) and 171489 (Cadiz et al.) have no legal
standing; third, it is not necessary for petitioners to implead President
Arroyo as respondent; fourth, PP 1017 has constitutional and legal basis;
and fifth, PP 1017 does not violate the people's right to free expression and
redress of grievances.
On March 7, 2006, the Court conducted oral arguments and heard
petitioners on the above interlocking issues which may be summarized as
follows:
A.
PROCEDURAL:

1)
Whether the issuance of PP 1021 renders the petitions moot and
academic. DcHaET
2)
Whether petitioners in 171485 (Escudero et al.), G.R. Nos. 171400
(ALGI), 171483 (KMU et al.), 171489 (Cadiz et al.), and 171424 (Legarda)
have legal standing.
B.
SUBSTANTIVE:
1)
Whether the Supreme Court can review the factual bases of PP
1017.
2)
Whether PP 1017 and G.O. No. 5 are unconstitutional.
a.
Facial Challenge
b.
Constitutional Basis
c.
As Applied Challenge
A.
PROCEDURAL
First, we must resolve the procedural roadblocks.
I Moot and Academic Principle
One of the greatest contributions of the American system to this country is
the concept of judicial review enunciated in Marbury v. Madison. This
concept rests on the extraordinary simple foundation
The Constitution is the supreme law. It was ordained by the people, the
ultimate source of all political authority. It confers limited powers on the
national government. . . . If the government consciously or unconsciously
oversteps these limitations there must be some authority competent to hold
it in control, to thwart its unconstitutional attempt, and thus to vindicate and
preserve inviolate the will of the people as expressed in the Constitution.
This power the courts exercise. This is the beginning and the end of the
theory of judicial review.
But the power of judicial review does not repose upon the courts a "selfstarting capacity." Courts may exercise such power only when the following
requisites are present: first, there must be an actual case or controversy;
second, petitioners have to raise a question of constitutionality; third, the
constitutional question must be raised at the earliest opportunity; and fourth,
the decision of the constitutional question must be necessary to the
determination of the case itself.

Respondents maintain that the first and second requisites are absent, hence,
we shall limit our discussion thereon.
An actual case or controversy involves a conflict of legal right, an opposite
legal claims susceptible of judicial resolution. It is "definite and concrete,
touching the legal relations of parties having adverse legal interest;" a real
and substantial controversy admitting of specific relief. The Solicitor
General refutes the existence of such actual case or controversy, contending
that the present petitions were rendered "moot and academic" by President
Arroyo's issuance of PP 1021.
Such contention lacks merit.
A moot and academic case is one that ceases to present a justiciable
controversy by virtue of supervening events, so that a declaration thereon
would be of no practical use or value. Generally, courts decline jurisdiction
over such case or dismiss it on ground of mootness.
The Court holds that President Arroyo's issuance of PP 1021 did not render
the present petitions moot and academic. During the eight (8) days that PP
1017 was operative, the police officers, according to petitioners, committed
illegal acts in implementing it. Are PP 1017 and G.O. No. 5 constitutional
or valid? Do they justify these alleged illegal acts? These are the vital issues
that must be resolved in the present petitions. It must be stressed that "an
unconstitutional act is not a law, it confers no rights, it imposes no duties, it
affords no protection; it is in legal contemplation, inoperative."
The "moot and academic" principle is not a magical formula that can
automatically dissuade the courts in resolving a case. Courts will decide
cases, otherwise moot and academic, if: first, there is a grave violation of
the Constitution; second, the exceptional character of the situation and the
paramount public interest is involved; third, when constitutional issue raised
requires formulation of controlling principles to guide the bench, the bar,
and the public; and fourth, the case is capable of repetition yet evading
review.

All the foregoing exceptions are present here and justify this Court's
assumption of jurisdiction over the instant petitions. Petitioners alleged that
the issuance of PP 1017 and G.O. No. 5 violates the Constitution. There is
no question that the issues being raised affect the public's interest, involving
as they do the people's basic rights to freedom of expression, of assembly
and of the press. Moreover, the Court has the duty to formulate guiding and
controlling constitutional precepts, doctrines or rules. It has the symbolic
function of educating the bench and the bar, and in the present petitions, the
military and the police, on the extent of the protection given by
constitutional guarantees. 35 And lastly, respondents' contested actions are
capable of repetition. Certainly, the petitions are subject to judicial review.
In their attempt to prove the alleged mootness of this case, respondents cited
Chief Justice Artemio V. Panganiban's Separate Opinion in Sanlakas v.
Executive Secretary. 36 However, they failed to take into account the Chief
Justice's very statement that an otherwise "moot" case may still be decided
"provided the party raising it in a proper case has been and/or continues to
be prejudiced or damaged as a direct result of its issuance." The present
case falls right within this exception to the mootness rule pointed out by the
Chief Justice.
II Legal Standing
In view of the number of petitioners suing in various personalities, the
Court deems it imperative to have a more than passing discussion on legal
standing or locus standi.
Locus standi is defined as "a right of appearance in a court of justice on a
given question." 37 In private suits, standing is governed by the "realparties-in interest" rule as contained in Section 2, Rule 3 of the 1997 Rules
of Civil Procedure, as amended. It provides that "every action must be
prosecuted or defended in the name of the real party in interest."
Accordingly, the "real-party-in interest" is "the party who stands to be
benefited or injured by the judgment in the suit or the party entitled to the
avails of the suit." Succinctly put, the plaintiff's standing is based on his
own right to the relief sought.

The difficulty of determining locus standi arises in public suits. Here, the
plaintiff who asserts a "public right" in assailing an allegedly illegal official
action, does so as a representative of the general public. He may be a person
who is affected no differently from any other person. He could be suing as a
"stranger," or in the category of a "citizen," or 'taxpayer." In either case, he
has to adequately show that he is entitled to seek judicial protection. In
other words, he has to make out a sufficient interest in the vindication of the
public order and the securing of relief as a "citizen" or "taxpayer.
Case law in most jurisdictions now allows both "citizen" and "taxpayer"
standing in public actions. The distinction was first laid down in
Beauchamp v. Silk, where it was held that the plaintiff in a taxpayer's suit is
in a different category from the plaintiff in a citizen's suit. In the former, the
plaintiff is affected by the expenditure of public funds, while in the latter, he
is but the mere instrument of the public concern. As held by the New York
Supreme Court in People ex rel Case v. Collins: "In matter of mere public
right, however . . . the people are the real parties. . . It is at least the right, if
not the duty, of every citizen to interfere and see that a public offence be
properly pursued and punished, and that a public grievance be remedied."
With respect to taxpayer's suits, Terr v. Jordan 41 held that "the right of a
citizen and a taxpayer to maintain an action in courts to restrain the
unlawful use of public funds to his injury cannot be denied."
However, to prevent just about any person from seeking judicial
interference in any official policy or act with which he disagreed with, and
thus hinders the activities of governmental agencies engaged in public
service, the United States Supreme Court laid down the more stringent
"direct injury" test in Ex Parte Levitt, later reaffirmed in Tileston v. Ullman.
43 The same Court ruled that for a private individual to invoke the judicial
power to determine the validity of an executive or legislative action, he
must show that he has sustained a direct injury as a result of that action, and
it is not sufficient that he has a general interest common to all members of
the public.
This Court adopted the "direct injury" test in our jurisdiction. In People v.
Vera, it held that the person who impugns the validity of a statute must have
"a personal and substantial interest in the case such that he has sustained, or

will sustain direct injury as a result." The Vera doctrine was upheld in a
litany of cases, such as, Custodio v. President of the Senate, Manila Race
Horse Trainers' Association v. De la Fuente, Pascual v. Secretary of Public
Works and Anti-Chinese League of the Philippines v. Felix.
However, being a mere procedural technicality, the requirement of locus
standi may be waived by the Court in the exercise of its discretion. This was
done in the 1949 Emergency Powers Cases, Araneta v. Dinglasan, where
the "transcendental importance" of the cases prompted the Court to act
liberally. Such liberality was neither a rarity nor accidental. In Aquino v.
Comelec, this Court resolved to pass upon the issues raised due to the "farreaching implications" of the petition notwithstanding its categorical
statement that petitioner therein had no personality to file the suit. Indeed,
there is a chain of cases where this liberal policy has been observed,
allowing ordinary citizens, members of Congress, and civic organizations to
prosecute actions involving the constitutionality or validity of laws,
regulations and rulings.
Thus, the Court has adopted a rule that even where the petitioners have
failed to show direct injury, they have been allowed to sue under the
principle of "transcendental importance." Pertinent are the following cases:
(1)
Chavez v. Public Estates Authority, where the Court ruled that the
enforcement of the constitutional right to information and the equitable
diffusion of natural resources are matters of transcendental importance
which clothe the petitioner with locus standi;
(2)
Bagong Alyansang Makabayan v. Zamora, wherein the Court held
that "given the transcendental importance of the issues involved, the Court
may relax the standing requirements and allow the suit to prosper despite
the lack of direct injury to the parties seeking judicial review" of the
Visiting Forces Agreement;
(3)
Lim v. Executive Secretary, while the Court noted that the
petitioners may not file suit in their capacity as taxpayers absent a showing
that "Balikatan 02-01" involves the exercise of Congress' taxing or spending
powers, it reiterated its ruling in Bagong Alyansang Makabayan v. Zamora,
that in cases of transcendental importance, the cases must be settled
promptly and definitely and standing requirements may be relaxed.

By way of summary, the following rules may be culled from the cases
decided by this Court. Taxpayers, voters, concerned citizens, and legislators
may be accorded standing to sue, provided that the following requirements
are met:
(1)
the cases involve constitutional issues;
(2)
for taxpayers, there must be a claim of illegal disbursement of
public funds or that the tax measure is unconstitutional;
(3)
for voters, there must be a showing of obvious interest in the
validity of the election law in question;
(4)
for concerned citizens, there must be a showing that the issues
raised are of transcendental importance which must be settled early; and
(5)
for legislators, there must be a claim that the official action
complained of infringes upon their prerogatives as legislators.
Significantly, recent decisions show a certain toughening in the Court's
attitude toward legal standing.
In Kilosbayan, Inc. v. Morato, 56 the Court ruled that the status of
Kilosbayan as a people's organization does not give it the requisite
personality to question the validity of the on-line lottery contract, more so
where it does not raise any issue of constitutionality. Moreover, it cannot
sue as a taxpayer absent any allegation that public funds are being misused.
Nor can it sue as a concerned citizen as it does not allege any specific injury
it has suffered.
In Telecommunications and Broadcast Attorneys of the Philippines, Inc. v.
Comelec, the Court reiterated the "direct injury" test with respect to
concerned citizens' cases involving constitutional issues. It held that "there
must be a showing that the citizen personally suffered some actual or
threatened injury arising from the alleged illegal official act."
In Lacson v. Perez, the Court ruled that one of the petitioners, Laban ng
Demokratikong Pilipino (LDP), is not a real party-in-interest as it had not
demonstrated any injury to itself or to its leaders, members or supporters.
In Sanlakas v. Executive Secretary, the Court ruled that only the petitioners
who are members of Congress have standing to sue, as they claim that the

President's declaration of a state of rebellion is a usurpation of the

emergency powers of Congress, thus impairing their legislative powers. As
to petitioners Sanlakas, Partido Manggagawa, and Social Justice Society,
the Court declared them to be devoid of standing, equating them with the
LDP in Lacson.
Now, the application of the above principles to the present petitions.
The locus standi of petitioners in G.R. No. 171396, particularly David and
Llamas, is beyond doubt. The same holds true with petitioners in G.R. No.
171409, Cacho-Olivares and Tribune Publishing Co. Inc. They alleged
"direct injury" resulting from "illegal arrest" and "unlawful search"
committed by police operatives pursuant to PP 1017. Rightly so, the
Solicitor General does not question their legal standing.
In G.R. No. 171485, the opposition Congressmen alleged there was
usurpation of legislative powers. They also raised the issue of whether or
not the concurrence of Congress is necessary whenever the alarming powers
incident to Martial Law are used. Moreover, it is in the interest of justice
that those affected by PP 1017 can be represented by their Congressmen in
bringing to the attention of the Court the alleged violations of their basic
rights.
In G.R. No. 171400, (ALGI), this Court applied the liberality rule in
Philconsa v. Enriquez, 60 Kapatiran Ng Mga Naglilingkod sa Pamahalaan
ng Pilipinas, Inc. v. Tan, 61 Association of Small Landowners in the
Philippines, Inc. v. Secretary of Agrarian Reform, 62 Basco v. Philippine
Amusement and Gaming Corporation, 63 and Taada v. Tuvera, 64 that
when the issue concerns a public right, it is sufficient that the petitioner is a
citizen and has an interest in the execution of the laws.
In G.R. No. 171483, KMU's assertion that PP 1017 and G.O. No. 5 violated
its right to peaceful assembly may be deemed sufficient to give it legal
standing. Organizations may be granted standing to assert the rights of their
members. 65 We take judicial notice of the announcement by the Office of
the President banning all rallies and canceling all permits for public
assemblies following the issuance of PP 1017 and G.O. No. 5.

In G.R. No. 171489, petitioners, Cadiz et al., who are national officers of
the Integrated Bar of the Philippines (IBP) have no legal standing, having
failed to allege any direct or potential injury which the IBP as an institution
or its members may suffer as a consequence of the issuance of PP No. 1017
and G.O. No. 5. In Integrated Bar of the Philippines v. Zamora, the Court
held that the mere invocation by the IBP of its duty to preserve the rule of
law and nothing more, while undoubtedly true, is not sufficient to clothe it
with standing in this case. This is too general an interest which is shared by
other groups and the whole citizenry. However, in view of the
transcendental importance of the issue, this Court declares that petitioner
have locus standi.
In G.R. No. 171424, Loren Legarda has no personality as a taxpayer to file
the instant petition as there are no allegations of illegal disbursement of
public funds. The fact that she is a former Senator is of no consequence.
She can no longer sue as a legislator on the allegation that her prerogatives
as a lawmaker have been impaired by PP 1017 and G.O. No. 5. Her claim
that she is a media personality will not likewise aid her because there was
no showing that the enforcement of these issuances prevented her from
pursuing her occupation. Her submission that she has pending electoral
protest before the Presidential Electoral Tribunal is likewise of no
relevance. She has not sufficiently shown that PP 1017 will affect the
proceedings or result of her case. But considering once more the
transcendental importance of the issue involved, this Court may relax the
standing rules.
It must always be borne in mind that the question of locus standi is but
corollary to the bigger question of proper exercise of judicial power. This is
the underlying legal tenet of the "liberality doctrine" on legal standing. It
cannot be doubted that the validity of PP No. 1017 and G.O. No. 5 is a
judicial question which is of paramount importance to the Filipino people.
To paraphrase Justice Laurel, the whole of Philippine society now waits
with bated breath the ruling of this Court on this very critical matter. The
petitions thus call for the application of the "transcendental importance"
doctrine, a relaxation of the standing requirements for the petitioners in the
"PP 1017 cases."

This Court holds that all the petitioners herein have locus standi.
Incidentally, it is not proper to implead President Arroyo as respondent.
Settled is the doctrine that the President, during his tenure of office or actual
incumbency, may not be sued in any civil or criminal case, and there is no
need to provide for it in the Constitution or law. It will degrade the dignity
of the high office of the President, the Head of State, if he can be dragged
into court litigations while serving as such. Furthermore, it is important that
he be freed from any form of harassment, hindrance or distraction to enable
him to fully attend to the performance of his official duties and functions.
Unlike the legislative and judicial branch, only one constitutes the executive
branch and anything which impairs his usefulness in the discharge of the
many great and important duties imposed upon him by the Constitution
necessarily impairs the operation of the Government. However, this does
not mean that the President is not accountable to anyone. Like any other
official, he remains accountable to the people but he may be removed from
office only in the mode provided by law and that is by impeachment.
B.
SUBSTANTIVE
I. Review of Factual Bases
Petitioners maintain that PP 1017 has no factual basis. Hence, it was not
"necessary" for President Arroyo to issue such Proclamation.
The issue of whether the Court may review the factual bases of the
President's exercise of his Commander-in-Chief power has reached its
distilled point from the indulgent days of Barcelona v. Baker 70 and
Montenegro v. Castaneda 71 to the volatile era of Lansang v. Garcia, 72
Aquino, Jr. v. Enrile, 73 and Garcia-Padilla v. Enrile. 74 The tug-of-war
always cuts across the line defining "political questions," particularly those
questions "in regard to which full discretionary authority has been delegated
to the legislative or executive branch of the government." 75 Barcelon and
Montenegro were in unison in declaring that the authority to decide whether
an exigency has arisen belongs to the President and his decision is final and
conclusive on the courts. Lansang took the opposite view. There, the
members of the Court were unanimous in the conviction that the Court has
the authority to inquire into the existence of factual bases in order to
determine their constitutional sufficiency. From the principle of separation
of powers, it shifted the focus to the system of checks and balances, "under

which the President is supreme, . . . only if and when he acts within the
sphere allotted to him by the Basic Law, and the authority to determine
whether or not he has so acted is vested in the Judicial Department, which
in this respect, is, in turn, constitutionally supreme." 76 In 1973, the
unanimous Court of Lansang was divided in Aquino v. Enrile. 77 There, the
Court was almost evenly divided on the issue of whether the validity of the
imposition of Martial Law is a political or justiciable question. 78 Then
came Garcia-Padilla v. Enrile which greatly diluted Lansang. It declared
that there is a need to re-examine the latter case, ratiocinating that "in times
of war or national emergency, the President must be given absolute control
for the very life of the nation and the government is in great peril. The
President, it intoned, is answerable only to his conscience, the People, and
God."
The Integrated Bar of the Philippines v. Zamora 80 a recent case most
pertinent to these cases at bar echoed a principle similar to Lansang.
While the Court considered the President's "calling-out" power as a
discretionary power solely vested in his wisdom, it stressed that "this does
not prevent an examination of whether such power was exercised within
permissible constitutional limits or whether it was exercised in a manner
constituting grave abuse of discretion." This ruling is mainly a result of the
Court's reliance on Section 1, Article VIII of 1987 Constitution which
fortifies the authority of the courts to determine in an appropriate action the
validity of the acts of the political departments. Under the new definition of
judicial power, the courts are authorized not only "to settle actual
controversies involving rights which are legally demandable and
enforceable," but also "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." The latter part of the
authority represents a broadening of judicial power to enable the courts of
justice to review what was before a forbidden territory, to wit, the discretion
of the political departments of the government. 81 It speaks of judicial
prerogative not only in terms of power but also of duty.
As to how the Court may inquire into the President's exercise of power,
Lansang adopted the test that "judicial inquiry can go no further than to
satisfy the Court not that the President's decision is correct," but that "the

President did not act arbitrarily." Thus, the standard laid down is not
correctness, but arbitrariness. 83 In Integrated Bar of the Philippines, this
Court further ruled that "it is incumbent upon the petitioner to show that the
President's decision is totally bereft of factual basis" and that if he fails, by
way of proof, to support his assertion, then "this Court cannot undertake an
independent investigation beyond the pleadings."
Petitioners failed to show that President Arroyo's exercise of the calling-out
power, by issuing PP 1017, is totally bereft of factual basis. A reading of the
Solicitor General's Consolidated Comment and Memorandum shows a
detailed narration of the events leading to the issuance of PP 1017, with
supporting reports forming part of the records. Mentioned are the escape of
the Magdalo Group, their audacious threat of the Magdalo D-Day, the
defections in the military, particularly in the Philippine Marines, and the
reproving statements from the communist leaders. There was also the
Minutes of the Intelligence Report and Security Group of the Philippine
Army showing the growing alliance between the NPA and the military.
Petitioners presented nothing to refute such events. Thus, absent any
contrary allegations, the Court is convinced that the President was justified
in issuing PP 1017 calling for military aid.
Indeed, judging the seriousness of the incidents, President Arroyo was not
expected to simply fold her arms and do nothing to prevent or suppress
what she believed was lawless violence, invasion or rebellion. However, the
exercise of such power or duty must not stifle liberty.
[II. Constitutionality of PP 1017 and G.O. No. 5
Doctrines of Several Political Theorists on the Power of the President in
Times of Emergency]
This case brings to fore a contentious subject the power of the President
in times of emergency. A glimpse at the various political theories relating to
this subject provides an adequate backdrop for our ensuing discussion.
John Locke, describing the architecture of civil government, called upon the
English doctrine of prerogative to cope with the problem of emergency. In
times of danger to the nation, positive law enacted by the legislature might
be inadequate or even a fatal obstacle to the promptness of action necessary

to avert catastrophe. In these situations, the Crown retained a prerogative

"power to act according to discretion for the public good, without the
proscription of the law and sometimes even against it." 84 But Locke
recognized that this moral restraint might not suffice to avoid abuse of
prerogative powers. Who shall judge the need for resorting to the
prerogative and how may its abuse be avoided? Here, Locke readily
admitted defeat, suggesting that "the people have no other remedy in this, as
in all other cases where they have no judge on earth, but to appeal to
Heaven."
Jean-Jacques Rousseau also assumed the need for temporary suspension of
democratic processes of government in time of emergency. According to
him:
The inflexibility of the laws, which prevents them from adopting
themselves to circumstances, may, in certain cases, render them disastrous
and make them bring about, at a time of crisis, the ruin of the State. . .
It is wrong therefore to wish to make political institutions as strong as to
render it impossible to suspend their operation. Even Sparta allowed its law
to lapse. . .
If the peril is of such a kind that the paraphernalia of the laws are an
obstacle to their preservation, the method is to nominate a supreme lawyer,
who shall silence all the laws and suspend for a moment the sovereign
authority. In such a case, there is no doubt about the general will, and it
clear that the people's first intention is that the State shall not perish.
Rosseau did not fear the abuse of the emergency dictatorship or "supreme
magistracy" as he termed it. For him, it would more likely be cheapened by
"indiscreet use." He was unwilling to rely upon an "appeal to heaven."
Instead, he relied upon a tenure of office of prescribed duration to avoid
perpetuation of the dictatorship.
John Stuart Mill concluded his ardent defense of representative government:
"I am far from condemning, in cases of extreme necessity, the assumption
of absolute power in the form of a temporary dictatorship."

Nicollo Machiavelli's view of emergency powers, as one element in the

whole scheme of limited government, furnished an ironic contrast to the
Lockean theory of prerogative. He recognized and attempted to bridge this
chasm in democratic political theory, thus:
Now, in a well-ordered society, it should never be necessary to resort to
extra-constitutional measures; for although they may for a time be
beneficial, yet the precedent is pernicious, for if the practice is once
established for good objects, they will in a little while be disregarded under
that pretext but for evil purposes. Thus, no republic will ever be perfect if
she has not by law provided for everything, having a remedy for every
emergency and fixed rules for applying it.
Machiavelli in contrast to Locke, Rosseau and Mill sought to
incorporate into the constitution a regularized system of standby emergency
powers to be invoked with suitable checks and controls in time of national
danger. He attempted forthrightly to meet the problem of combining a
capacious reserve of power and speed and vigor in its application in time of
emergency, with effective constitutional restraints.
Contemporary political theorists, addressing themselves to the problem of
response to emergency by constitutional democracies, have employed the
doctrine of constitutional dictatorship. Frederick M. Watkins saw "no
reason why absolutism should not be used as a means for the defense of
liberal institutions," provided it "serves to protect established institutions
from the danger of permanent injury in a period of temporary emergency
and is followed by a prompt return to the previous forms of political life."
He recognized the two (2) key elements of the problem of emergency
governance, as well as all constitutional governance: increasing
administrative powers of the executive, while at the same time "imposing
limitation upon that power." 93 Watkins placed his real faith in a scheme of
constitutional dictatorship. These are the conditions of success of such a
dictatorship: "The period of dictatorship must be relatively short. . .
Dictatorship should always be strictly legitimate in character. . . Final
authority to determine the need for dictatorship in any given case must
never rest with the dictator himself . . ." and the objective of such an
emergency dictatorship should be "strict political conservatism."

Carl J. Friedrich cast his analysis in terms similar to those of Watkins. "It is
a problem of concentrating power in a government where power has
consciously been divided to cope with . . . situations of unprecedented
magnitude and gravity. There must be a broad grant of powers, subject to
equally strong limitations as to who shall exercise such powers, when, for
how long, and to what end." Friedrich, too, offered criteria for judging the
adequacy of any of scheme of emergency powers, to wit: "The emergency
executive must be appointed by constitutional means i.e., he must be
legitimate; he should not enjoy power to determine the existence of an
emergency; emergency powers should be exercised under a strict time
limitation; and last, the objective of emergency action must be the defense
of the constitutional order."
Clinton L. Rossiter, after surveying the history of the employment of
emergency powers in Great Britain, France, Weimar, Germany and the
United States, reverted to a description of a scheme of "constitutional
dictatorship" as solution to the vexing problems presented by emergency.
Like Watkins and Friedrich, he stated a priori the conditions of success of
the "constitutional dictatorship," thus:
1)
No general regime or particular institution of constitutional
dictatorship should be initiated unless it is necessary or even indispensable
to the preservation of the State and its constitutional order. . .
2)
. . . the decision to institute a constitutional dictatorship should
never be in the hands of the man or men who will constitute the dictator. . .
3)
No government should initiate a constitutional dictatorship without
making specific provisions for its termination. . .
4)
. . . all uses of emergency powers and all readjustments in the
organization of the government should be effected in pursuit of
constitutional or legal requirements. . .
5)
. . . no dictatorial institution should be adopted, no right invaded,
no regular procedure altered any more than is absolutely necessary for the
conquest of the particular crisis . . .
6)
The measures adopted in the prosecution of the a constitutional
dictatorship should never be permanent in character or effect. . .

7)
The dictatorship should be carried on by persons representative of
every part of the citizenry interested in the defense of the existing
constitutional order. . .
8)
Ultimate responsibility should be maintained for every action taken
under a constitutional dictatorship. . .
9)
The decision to terminate a constitutional dictatorship, like the
decision to institute one should never be in the hands of the man or men
who constitute the dictator. . 10) No constitutional dictatorship should
extend beyond the termination of the crisis for which it was instituted. . .
11)
the termination of the crisis must be followed by a complete return
as possible to the political and governmental conditions existing prior to the
initiation of the constitutional dictatorship. . .
Rossiter accorded to legislature a far greater role in the oversight exercise of
emergency powers than did Watkins. He would secure to Congress final
responsibility for declaring the existence or termination of an emergency,
and he places great faith in the effectiveness of congressional investigating
committees.
Scott and Cotter, in analyzing the above contemporary theories in light of
recent experience, were one in saying that, "the suggestion that democracies
surrender the control of government to an authoritarian ruler in time of
grave danger to the nation is not based upon sound constitutional theory."
To appraise emergency power in terms of constitutional dictatorship serves
merely to distort the problem and hinder realistic analysis. It matters not
whether the term "dictator" is used in its normal sense (as applied to
authoritarian rulers) or is employed to embrace all chief executives
administering emergency powers. However used, "constitutional
dictatorship" cannot be divorced from the implication of suspension of the
processes of constitutionalism. Thus, they favored instead the "concept of
constitutionalism" articulated by Charles H. McIlwain:
A concept of constitutionalism which is less misleading in the analysis of
problems of emergency powers, and which is consistent with the findings of
this study, is that formulated by Charles H. McIlwain. While it does not by
any means necessarily exclude some indeterminate limitations upon the
substantive powers of government, full emphasis is placed upon procedural

limitations, and political responsibility. McIlwain clearly recognized the

need to repose adequate power in government. And in discussing the
meaning of constitutionalism, he insisted that the historical and proper test
of constitutionalism was the existence of adequate processes for keeping
government responsible. He refused to equate constitutionalism with the
enfeebling of government by an exaggerated emphasis upon separation of
powers and substantive limitations on governmental power. He found that
the really effective checks on despotism have consisted not in the
weakening of government but, but rather in the limiting of it; between
which there is a great and very significant difference. In associating
constitutionalism with "limited" as distinguished from "weak" government,
McIlwain meant government limited to the orderly procedure of law as
opposed to the processes of force. The two fundamental correlative
elements of constitutionalism for which all lovers of liberty must yet fight
are the legal limits to arbitrary power and a complete political responsibility
of government to the governed.
In the final analysis, the various approaches to emergency of the above
political theorists from Lock's "theory of prerogative," to Watkins'
doctrine of "constitutional dictatorship" and, eventually, to McIlwain's
"principle of constitutionalism" ultimately aim to solve one real problem
in emergency governance, i.e., that of allotting increasing areas of
discretionary power to the Chief Executive, while insuring that such powers
will be exercised with a sense of political responsibility and under effective
limitations and checks.
Our Constitution has fairly coped with this problem. Fresh from the fetters
of a repressive regime, the 1986 Constitutional Commission, in drafting the
1987 Constitution, endeavored to create a government in the concept of
Justice Jackson's "balanced power structure." 102 Executive, legislative,
and judicial powers are dispersed to the President, the Congress, and the
Supreme Court, respectively. Each is supreme within its own sphere. But
none has the monopoly of power in times of emergency. Each branch is
given a role to serve as limitation or check upon the other. This system does
not weaken the President, it just limits his power, using the language of
McIlwain. In other words, in times of emergency, our Constitution
reasonably demands that we repose a certain amount of faith in the basic

integrity and wisdom of the Chief Executive but, at the same time, it obliges
him to operate within carefully prescribed procedural limitations.
a. "Facial Challenge"
Petitioners contend that PP 1017 is void on its face because of its
"overbreadth." They claim that its enforcement encroached on both
unprotected and protected rights under Section 4, Article III of the
Constitution and sent a "chilling effect" to the citizens.
A facial review of PP 1017, using the overbreadth doctrine, is uncalled for.
First and foremost, the overbreadth doctrine is an analytical tool developed
for testing "on their faces" statutes in free speech cases, also known under
the American Law as First Amendment cases.
A plain reading of PP 1017 shows that it is not primarily directed to speech
or even speech-related conduct. It is actually a call upon the AFP to prevent
or suppress all forms of lawless violence. In United States v. Salerno, the
US Supreme Court held that "we have not recognized an 'overbreadth'
doctrine outside the limited context of the First Amendment" (freedom of
speech).
Moreover, the overbreadth doctrine is not intended for testing the validity of
a law that "reflects legitimate state interest in maintaining comprehensive
control over harmful, constitutionally unprotected conduct." Undoubtedly,
lawless violence, insurrection and rebellion are considered "harmful" and
"constitutionally unprotected conduct." In Broadrick v. Oklahoma, it was
held:
It remains a 'matter of no little difficulty' to determine when a law may
properly be held void on its face and when 'such summary action' is
inappropriate. But the plain import of our cases is, at the very least, that
facial overbreadth adjudication is an exception to our traditional rules of
practice and that its function, a limited one at the outset, attenuates as the
otherwise unprotected behavior that it forbids the State to sanction moves
from 'pure speech' toward conduct and that conduct even if expressive
falls within the scope of otherwise valid criminal laws that reflect legitimate
state interests in maintaining comprehensive controls over harmful,
constitutionally unprotected conduct.

Thus, claims of facial overbreadth are 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." 106 Here, the incontrovertible fact remains that PP 1017 pertains
to a spectrum of conduct, not free speech, which is manifestly subject to
state regulation.
Second, facial invalidation of laws is considered as "manifestly strong
medicine," to be used "sparingly and only as a last resort," and is "generally
disfavored;" 107 The reason for this is obvious. Embedded in the traditional
rules governing constitutional adjudication is the principle that a person to
whom a law may be applied will not be heard to challenge a law on the
ground that it may conceivably be applied unconstitutionally to others, i.e.,
in other situations not before the Court. 108 A writer and scholar in
Constitutional Law explains further:
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.
In other words, a facial challenge using the overbreadth doctrine will
require the Court to examine PP 1017 and pinpoint its flaws and defects, not
on the basis of its actual operation to petitioners, but on the assumption or

prediction that its very existence may cause others not before the Court to
refrain from constitutionally protected speech or expression. In Younger v.
Harris, 109 it was held that:
[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.
And third, a facial challenge on the ground of overbreadth is the most
difficult challenge to mount successfully, since the challenger must
establish that there can be no instance when the assailed law may be valid.
Here, petitioners did not even attempt to show whether this situation exists.
Petitioners likewise seek a facial review of PP 1017 on the ground of
vagueness. This, too, is unwarranted.
Related to the "overbreadth" doctrine is the "void for vagueness doctrine"
which holds that "a law is facially invalid if men of common intelligence
must necessarily guess at its meaning and differ as to its application." It is
subject to the same principles governing overbreadth doctrine. For one, it is
also an analytical tool for testing "on their faces" statutes in free speech
cases. And like overbreadth, it is said that a litigant may challenge a statute
on its face only if it is vague in all its possible applications. Again,
petitioners did not even attempt to show that PP 1017 is vague in all its
application. They also failed to establish that men of common intelligence
cannot understand the meaning and application of PP 1017.
b. Constitutional Basis of PP 1017
Now on the constitutional foundation of PP 1017.
The operative portion of PP 1017 may be divided into three important
provisions, thus:
First provision:

"by virtue of the power vested upon me by Section 18, Article VII . . . do
hereby command the Armed Forces of the Philippines, to maintain law and
order throughout the Philippines, prevent or suppress all forms of lawless
violence as well any act of insurrection or rebellion"
Second provision:
"and to enforce obedience to all the laws and to all decrees, orders and
regulations promulgated by me personally or upon my direction;"
Third provision:
"as provided in Section 17, Article XII of the Constitution do hereby declare
a State of National Emergency."
First Provision: Calling-out Power
The first provision pertains to the President's calling-out power. In Sanlakas
v. Executive Secretary, 111 this Court, through Mr. Justice Dante O. Tinga,
held that Section 18, Article VII of the Constitution reproduced as follows:
Sec. 18. The President shall be the Commander-in-Chief of all armed forces
of the Philippines and whenever it becomes necessary, he may call out such
armed forces to prevent or suppress lawless violence, invasion or rebellion.
In case of invasion or rebellion, when the public safety requires it, he 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.
Within forty-eight hours from the proclamation of martial law or the
suspension of the privilege of the writ of habeas corpus, the President shall
submit a report in person or in writing to the Congress. The Congress,
voting jointly, by a vote of at least a majority of all its Members in regular
or special session, may revoke such proclamation or suspension, which
revocation shall not be set aside by the President. Upon the initiative of the
President, the Congress may, in the same manner, extend such proclamation
or suspension for a period to be determined by the Congress, if the invasion
or rebellion shall persist and public safety requires it.
The Congress, if not in session, shall within twenty-four hours following
such proclamation or suspension, convene in accordance with its rules
without need of a call.
The Supreme Court may review, in an appropriate proceeding filed by any
citizen, the sufficiency of the factual bases 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.

A state of martial law does not suspend the operation of the Constitution,
nor supplant the functioning of the civil courts or legislative assemblies, nor
authorize the conferment of jurisdiction on military courts and agencies
over civilians where civil courts are able to function, nor automatically
suspend the privilege of the writ.
The suspension of the privilege of the writ shall apply only to persons
judicially charged for rebellion or offenses inherent in or directly connected
with invasion.
During the suspension of the privilege of the writ, any person thus arrested
or detained shall be judicially charged within three days, otherwise he shall
be released.
grants the President, as Commander-in-Chief, a "sequence" of graduated
powers. 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. Citing Integrated Bar of the Philippines v.
Zamora, the Court ruled that the only criterion for the exercise of the
calling-out power is that "whenever it becomes necessary," the President
may call the armed forces "to prevent or suppress lawless violence, invasion
or rebellion." Are these conditions present in the instant cases? As stated
earlier, considering the circumstances then prevailing, President Arroyo
found it necessary to issue PP 1017. Owing to her Office's vast intelligence
network, she is in the best position to determine the actual condition of the
country.
Under the calling-out power, the President may summon the armed forces
to aid him in suppressing lawless violence, invasion and rebellion. This
involves ordinary police action. But every act that goes beyond the
President's calling-out power is considered illegal or ultra vires. For this
reason, a President must be careful in the exercise of his powers. He cannot
invoke a greater power when he wishes to act under a lesser power. There
lies the wisdom of our Constitution, the greater the power, the greater are
the limitations.

It is pertinent to state, however, that there is a distinction between the

President's authority to declare a "state of rebellion" (in Sanlakas) and the
authority to proclaim a state of national emergency. While President
Arroyo's authority to declare a "state of rebellion" emanates from her
powers as Chief Executive, the statutory authority cited in Sanlakas was
Section 4, Chapter 2, Book II of the Revised Administrative Code of 1987,
which provides:
SEC. 4. Proclamations. Acts of the President fixing a date or declaring a
status or condition of public moment or interest, upon the existence of
which the operation of a specific law or regulation is made to depend, shall
be promulgated in proclamations which shall have the force of an executive
order.
President Arroyo's declaration of a "state of rebellion" was merely an act
declaring a status or condition of public moment or interest, a declaration
allowed under Section 4 cited above. Such declaration, in the words of
Sanlakas, is harmless, without legal significance, and deemed not written.
In these cases, PP 1017 is more than that. In declaring a state of national
emergency, President Arroyo did not only rely on Section 18, Article VII of
the Constitution, a provision calling on the AFP to prevent or suppress
lawless violence, invasion or rebellion. She also relied on Section 17,
Article XII, a provision on the State's extraordinary power to take over
privately-owned public utility and business affected with public interest.
Indeed, PP 1017 calls for the exercise of an awesome power. Obviously,
such Proclamation cannot be deemed harmless, without legal significance,
or not written, as in the case of Sanlakas.
Some of the petitioners vehemently maintain that PP 1017 is actually a
declaration of Martial Law. It is no so. What defines the character of PP
1017 are its wordings. It is plain therein that what the President invoked
was her calling-out power.
The declaration of Martial Law is a "warn[ing] to citizens that the military
power has been called upon by the executive to assist in the maintenance of
law and order, and that, while the emergency lasts, they must, upon pain of
arrest and punishment, not commit any acts which will in any way render
more difficult the restoration of order and the enforcement of law."

Second Provision: "Take Care" Power.

In his "Statement before the Senate Committee on Justice" on March 13,
2006, Mr. Justice Vicente V. Mendoza, an authority in constitutional law,
said that of the three powers of the President as Commander-in-Chief, the
power to declare Martial Law poses the most severe threat to civil liberties.
It is a strong medicine which should not be resorted to lightly. It cannot be
used to stifle or persecute critics of the government. It is placed in the
keeping of the President for the purpose of enabling him to secure the
people from harm and to restore order so that they can enjoy their individual
freedoms. In fact, Section 18, Art. VII, provides:
A state of martial law does not suspend the operation of the Constitution,
nor supplant the functioning of the civil courts or legislative assemblies, nor
authorize the conferment of jurisdiction on military courts and agencies
over civilians where civil courts are able to function, nor automatically
suspend the privilege of the writ.
Justice Mendoza also stated that PP 1017 is not a declaration of Martial
Law. It is no more than a call by the President to the armed forces to
prevent or suppress lawless violence. As such, it cannot be used to justify
acts that only under a valid declaration of Martial Law can be done. Its use
for any other purpose is a perversion of its nature and scope, and any act
done contrary to its command is ultra vires.
Justice Mendoza further stated that specifically, (a) arrests and seizures
without judicial warrants; (b) ban on public assemblies; (c) take-over of
news media and agencies and press censorship; and (d) issuance of
Presidential Decrees, are powers which can be exercised by the President as
Commander-in-Chief only where there is a valid declaration of Martial Law
or suspension of the writ of habeas corpus.
Based on the above disquisition, it is clear that PP 1017 is not a declaration
of Martial Law. It is merely an exercise of President Arroyo's calling-out
power for the armed forces to assist her in preventing or suppressing
lawless violence.

The second provision pertains to the power of the President to ensure that
the laws be faithfully executed. This is based on Section 17, Article VII
which reads:
SEC. 17. The President shall have control of all the executive departments,
bureaus, and offices. He shall ensure that the laws be faithfully executed.
As the Executive in whom the executive power is vested, the primary
function of the President is to enforce the laws as well as to formulate
policies to be embodied in existing laws. He sees to it that all laws are
enforced by the officials and employees of his department. Before assuming
office, he is required to take an oath or affirmation to the effect that as
President of the Philippines, he will, among others, "execute its laws." In
the exercise of such function, the President, if needed, may employ the
powers attached to his office as the Commander-in-Chief of all the armed
forces of the country, including the Philippine National Police under the
Department of Interior and Local Government.
Petitioners, especially Representatives Francis Joseph G. Escudero, Satur
Ocampo, Rafael Mariano, Teodoro Casio, Liza Maza, and Josel Virador
argue that PP 1017 is unconstitutional as it arrogated upon President Arroyo
the power to enact laws and decrees in violation of Section 1, Article VI of
the Constitution, which vests the power to enact laws in Congress. They
assail the clause "to enforce obedience to all the laws and to all decrees,
orders and regulations promulgated by me personally or upon my
direction."
Petitioners' contention is understandable. A reading of PP 1017 operative
clause shows that it was lifted from Former President Marcos' Proclamation
No. 1081, which partly reads:
NOW, THEREFORE, I, FERDINAND E. MARCOS, President of the
Philippines by virtue of the powers vested upon me by Article VII, Section
10, Paragraph (2) of the Constitution, do hereby place the entire Philippines
as defined in Article 1, Section 1 of the Constitution under martial law and,
in my capacity as their Commander-in-Chief, do hereby command the
Armed Forces of the Philippines, to maintain law and order throughout the

Philippines, prevent or suppress all forms of lawless violence as well as any

act of insurrection or rebellion and to enforce obedience to all the laws and
decrees, orders and regulations promulgated by me personally or upon my
direction.
We all know that it was PP 1081 which granted President Marcos
legislative power. Its enabling clause states: "to enforce obedience to all the
laws and decrees, orders and regulations promulgated by me personally or
upon my direction." Upon the other hand, the enabling clause of PP 1017
issued by President Arroyo is: to enforce obedience to all the laws and to all
decrees, orders and regulations promulgated by me personally or upon my
direction."
Is it within the domain of President Arroyo to promulgate "decrees"?
PP 1017 states in part: "to enforce obedience to all the laws and decrees . . .
promulgated by me personally or upon my direction."
The President is granted an Ordinance Power under Chapter 2, Book III of
Executive Order No. 292 (Administrative Code of 1987). She may issue any
of the following:
Sec. 2. Executive Orders. Acts of the President providing for rules of a
general or permanent character in implementation or execution of
constitutional or statutory powers shall be promulgated in executive orders.
Sec. 3. Administrative Orders. Acts of the President which relate to
particular aspect of governmental operations in pursuance of his duties as
administrative head shall be promulgated in administrative orders.
Sec. 4. Proclamations. Acts of the President fixing a date or declaring a
status or condition of public moment or interest, upon the existence of
which the operation of a specific law or regulation is made to depend, shall
be promulgated in proclamations which shall have the force of an executive
order.
Sec. 5. Memorandum Orders. Acts of the President on matters of
administrative detail or of subordinate or temporary interest which only

concern a particular officer or office of the Government shall be embodied

in memorandum orders.
Sec. 6. Memorandum Circulars. Acts of the President on matters
relating to internal administration, which the President desires to bring to
the attention of all or some of the departments, agencies, bureaus or offices
of the Government, for information or compliance, shall be embodied in
memorandum circulars.
Sec. 7. General or Special Orders. Acts and commands of the President
in his capacity as Commander-in-Chief of the Armed Forces of the
Philippines shall be issued as general or special orders.
President Arroyo's ordinance power is limited to the foregoing issuances.
She cannot issue decrees similar to those issued by Former President
Marcos under PP 1081. Presidential Decrees are laws which are of the same
category and binding force as statutes because they were issued by the
President in the exercise of his legislative power during the period of
Martial Law under the 1973 Constitution.
This Court rules that the assailed PP 1017 is unconstitutional insofar as it
grants President Arroyo the authority to promulgate "decrees." Legislative
power is peculiarly within the province of the Legislature. Section 1, Article
VI categorically states that "[t]he legislative power shall be vested in the
Congress of the Philippines which shall consist of a Senate and a House of
Representatives." To be sure, neither Martial Law nor a state of rebellion
nor a state of emergency can justify President Arroyo's exercise of
legislative power by issuing decrees.
Can President Arroyo enforce obedience to all decrees and laws through the
military?
As this Court stated earlier, President Arroyo has no authority to enact
decrees. It follows that these decrees are void and, therefore, cannot be
enforced. With respect to "laws," she cannot call the military to enforce or
implement certain laws, such as customs laws, laws governing family and
property relations, laws on obligations and contracts and the like. She can

only order the military, under PP 1017, to enforce laws pertinent to its duty
to suppress lawless violence.
Third Provision: Power to Take Over
The pertinent provision of PP 1017 states:
. . . and to enforce obedience to all the laws and to all decrees, orders, and
regulations promulgated by me personally or upon my direction; and as
provided in Section 17, Article XII of the Constitution do hereby declare a
state of national emergency.
The import of this provision is that President Arroyo, during the state of
national emergency under PP 1017, can call the military not only to enforce
obedience "to all the laws and to all decrees . . ." but also to act pursuant to
the provision of Section 17, Article XII which reads:
Sec. 17. In times of national emergency, when the public interest so
requires, the State may, during the emergency and under reasonable terms
prescribed by it, temporarily take over or direct the operation of any
privately-owned public utility or business affected with public interest.
What could be the reason of President Arroyo in invoking the above
provision when she issued PP 1017?
The answer is simple. During the existence of the state of national
emergency, PP 1017 purports to grant the President, without any authority
or delegation from Congress, to take over or direct the operation of any
privately-owned public utility or business affected with public interest.
This provision was first introduced in the 1973 Constitution, as a product of
the "martial law" thinking of the 1971 Constitutional Convention. In effect
at the time of its approval was President Marcos' Letter of Instruction No. 2
dated September 22, 1972 instructing the Secretary of National Defense to
take over "the management, control and operation of the Manila Electric
Company, the Philippine Long Distance Telephone Company, the National
Waterworks and Sewerage Authority, the Philippine National Railways, the
Philippine Air Lines, Air Manila (and) Filipinas Orient Airways . . . for the
successful prosecution by the Government of its effort to contain, solve and
end the present national emergency."

Petitioners, particularly the members of the House of Representatives, claim

that President Arroyo's inclusion of Section 17, Article XII in PP 1017 is an
encroachment on the legislature's emergency powers.
This is an area that needs delineation.
A distinction must be drawn between the President's authority to declare "a
state of national emergency" and to exercise emergency powers. To the
first, as elucidated by the Court, Section 18, Article VII grants the President
such power, hence, no legitimate constitutional objection can be raised. But
to the second, manifold constitutional issues arise.
Section 23, Article VI of the Constitution reads:
SEC. 23.(1) The Congress, by a vote of two-thirds of both Houses in joint
session assembled, voting separately, shall have the sole power to declare
the existence of a state of war.
(2)
In times of war or other national emergency, the Congress may, by
law, authorize the President, for a limited period and subject to such
restrictions as it may prescribe, to exercise powers necessary and proper to
carry out a declared national policy. Unless sooner withdrawn by resolution
of the Congress, such powers shall cease upon the next adjournment
thereof.
It may be pointed out that the second paragraph of the above provision
refers not only to war but also to "other national emergency." If the
intention of the Framers of our Constitution was to withhold from the
President the authority to declare a "state of national emergency" pursuant
to Section 18, Article VII (calling-out power) and grant it to Congress (like
the declaration of the existence of a state of war), then the Framers could
have provided so. Clearly, they did not intend that Congress should first
authorize the President before he can declare a "state of national
emergency." The logical conclusion then is that President Arroyo could
validly declare the existence of a state of national emergency even in the
absence of a Congressional enactment.

But the exercise of emergency powers, such as the taking over of privately
owned public utility or business affected with public interest, is a different
matter. This requires a delegation from Congress.
Courts have often said that constitutional provisions in pari materia are to
be construed together. Otherwise stated, different clauses, sections, and
provisions of a constitution which relate to the same subject matter will be
construed together and considered in the light of each other. Considering
that Section 17 of Article XII and Section 23 of Article VI, previously
quoted, relate to national emergencies, they must be read together to
determine the limitation of the exercise of emergency powers.
Generally, Congress is the repository of emergency powers. This is evident
in the tenor of Section 23 (2), Article VI authorizing it to delegate such
powers to the President. Certainly, a body cannot delegate a power not
reposed upon it. However, knowing that during grave emergencies, it may
not be possible or practicable for Congress to meet and exercise its powers,
the Framers of our Constitution deemed it wise to allow Congress to grant
emergency powers to the President, subject to certain conditions, thus:
(1)
There must be a war or other emergency.
(2)
The delegation must be for a limited period only.
(3)
The delegation must be subject to such restrictions as the Congress
may prescribe.
(4)
The emergency powers must be exercised to carry out a national
policy declared by Congress.
Section 17, Article XII must be understood as an aspect of the emergency
powers clause. The taking over of private business affected with public
interest is just another facet of the emergency powers generally reposed
upon Congress. Thus, when Section 17 states that the "the State may, during
the emergency and under reasonable terms prescribed by it, temporarily
take over or direct the operation of any privately owned public utility or
business affected with public interest," it refers to Congress, not the
President. Now, whether or not the President may exercise such power is
dependent on whether Congress may delegate it to him pursuant to a law
prescribing the reasonable terms thereof. Youngstown Sheet & Tube Co. et
al. v. Sawyer, held:

It is clear that if the President had authority to issue the order he did, it must
be found in some provision of the Constitution. And it is not claimed that
express constitutional language grants this power to the President. The
contention is that presidential power should be implied from the aggregate
of his powers under the Constitution. Particular reliance is placed on
provisions in Article II which say that "The executive Power shall be vested
in a President . . . . ;" that "he shall take Care that the Laws be faithfully
executed;" and that he "shall be Commander-in-Chief of the Army and
Navy of the United States.
The order cannot properly be sustained as an exercise of the President's
military power as Commander-in-Chief of the Armed Forces. The
Government attempts to do so by citing a number of cases upholding broad
powers in military commanders engaged in day-to-day fighting in a theater
of war. Such cases need not concern us here. Even though "theater of war"
be an expanding concept, we cannot with faithfulness to our constitutional
system hold that the Commander-in-Chief of the Armed Forces has the
ultimate power as such to take possession of private property in order to
keep labor disputes from stopping production. This is a job for the nation's
lawmakers, not for its military authorities.
Nor can the seizure order be sustained because of the several constitutional
provisions that grant executive power to the President. In the framework of
our Constitution, the President's power to see that the laws are faithfully
executed refutes the idea that he is to be a lawmaker. The Constitution
limits his functions in the lawmaking process to the recommending of laws
he thinks wise and the vetoing of laws he thinks bad. And the Constitution
is neither silent nor equivocal about who shall make laws which the
President is to execute. The first section of the first article says that "All
legislative Powers herein granted shall be vested in a Congress of the
United States. . ."
Petitioner Cacho-Olivares, et al. contends that the term "emergency" under
Section 17, Article XII refers to "tsunami," "typhoon," "hurricane" and
"similar occurrences." This is a limited view of "emergency."

Emergency, as a generic term, connotes the existence of conditions

suddenly intensifying the degree of existing danger to life or well-being
beyond that which is accepted as normal. Implicit in this definitions are the
elements of intensity, variety, and perception. Emergencies, as perceived by
legislature or executive in the United Sates since 1933, have been
occasioned by a wide range of situations, classifiable under three (3)
principal heads: a) economic, 128 b) natural disaster, 129 and c) national
security.
"Emergency," as contemplated in our Constitution, is of the same breadth. It
may include rebellion, economic crisis, pestilence or epidemic, typhoon,
flood, or other similar catastrophe of nationwide proportions or effect. This
is evident in the Records of the Constitutional Commission, thus:
MR. GASCON. Yes. What is the Committee's definition of "national
emergency" which appears in Section 13, page 5? It reads:
When the common good so requires, the State may temporarily take over or
direct the operation of any privately owned public utility or business
affected with public interest.
MR. VILLEGAS. What I mean is threat from external aggression, for
example, calamities or natural disasters.
MR. GASCON. There is a question by Commissioner de los Reyes. What
about strikes and riots?
MR. VILLEGAS. Strikes, no; those would not be covered by the term
"national emergency."
MR. BENGZON. Unless they are of such proportions such that they would
paralyze government service.
xxx
xxx
xxx
MR. TINGSON. May I ask the committee if "national emergency" refers to
military national emergency or could this be economic emergency?"
MR. VILLEGAS. Yes, it could refer to both military or economic
dislocations.
MR. TINGSON. Thank you very much.
It may be argued that when there is national emergency, Congress may not
be able to convene and, therefore, unable to delegate to the President the
power to take over privately-owned public utility or business affected with
public interest.

In Araneta v. Dinglasan, this Court emphasized that legislative power,

through which extraordinary measures are exercised, remains in Congress
even in times of crisis.
"xxx
xxx
xxx
After all the criticisms that have been made against the efficiency of the
system of the separation of powers, the fact remains that the Constitution
has set up this form of government, with all its defects and shortcomings, in
preference to the commingling of powers in one man or group of men. The
Filipino people by adopting parliamentary government have given notice
that they share the faith of other democracy-loving peoples in this system,
with all its faults, as the ideal. The point is, under this framework of
government, legislation is preserved for Congress all the time, not excepting
periods of crisis no matter how serious. Never in the history of the United
States, the basic features of whose Constitution have been copied in ours,
have specific functions of the legislative branch of enacting laws been
surrendered to another department unless we regard as legislating the
carrying out of a legislative policy according to prescribed standards; no,
not even when that Republic was fighting a total war, or when it was
engaged in a life-and-death struggle to preserve the Union. The truth is that
under our concept of constitutional government, in times of extreme perils
more than in normal circumstances 'the various branches, executive,
legislative, and judicial,' given the ability to act, are called upon 'to perform
the duties and discharge the responsibilities committed to them
respectively."
Following our interpretation of Section 17, Article XII, invoked by
President Arroyo in issuing PP 1017, this Court rules that such
Proclamation does not authorize her during the emergency to temporarily
take over or direct the operation of any privately owned public utility or
business affected with public interest without authority from Congress.
Let it be emphasized that while the President alone can declare a state of
national emergency, however, without legislation, he has no power to take
over privately-owned public utility or business affected with public interest.
The President cannot decide whether exceptional circumstances exist
warranting the take over of privately-owned public utility or business

affected with public interest. Nor can he determine when such exceptional
circumstances have ceased. Likewise, without legislation, the President has
no power to point out the types of businesses affected with public interest
that should be taken over. In short, the President has no absolute authority
to exercise all the powers of the State under Section 17, Article VII in the
absence of an emergency powers act passed by Congress.
c. "AS APPLIED CHALLENGE"
One of the misfortunes of an emergency, particularly, that which pertains to
security, is that military necessity and the guaranteed rights of the
individual are often not compatible. Our history reveals that in the crucible
of conflict, many rights are curtailed and trampled upon. Here, the right
against unreasonable search and seizure; the right against warrantless arrest;
and the freedom of speech, of expression, of the press, and of assembly
under the Bill of Rights suffered the greatest blow.

Can this Court adjudge as unconstitutional PP 1017 and G.O. No 5 on the

basis of these illegal acts? In general, does the illegal implementation of a
law render it unconstitutional.
Settled is the rule that courts are not at liberty to declare statutes invalid
although they may be abused and misabused and may afford an opportunity
for abuse in the manner of application. The validity of a statute or ordinance
is to be determined from its general purpose and its efficiency to
accomplish the end desired, not from its effects in a particular case. PP 1017
is merely an invocation of the President's calling-out power. Its general
purpose is to command the AFP to suppress all forms of lawless violence,
invasion or rebellion. It had accomplished the end desired which prompted
President Arroyo to issue PP 1021. But there is nothing in PP 1017 allowing
the police, expressly or impliedly, to conduct illegal arrest, search or violate
the citizens' constitutional rights.

Of the seven (7) petitions, three (3) indicate "direct injury."

In G.R. No. 171396, petitioners David and Llamas alleged that, on February
24, 2006, they were arrested without warrants on their way to EDSA to
celebrate the 20th Anniversary of People Power I. The arresting officers
cited PP 1017 as basis of the arrest.
In G.R. No. 171409, petitioners Cacho-Olivares and Tribune Publishing
Co., Inc. claimed that on February 25, 2006, the CIDG operatives "raided
and ransacked without warrant" their office. Three policemen were assigned
to guard their office as a possible "source of destabilization." Again, the
basis was PP 1017.
And in G.R. No. 171483, petitioners KMU and NAFLU-KMU et al. alleged
that their members were "turned away and dispersed" when they went to
EDSA and later, to Ayala Avenue, to celebrate the 20th Anniversary of
People Power I.
A perusal of the "direct injuries" allegedly suffered by the said petitioners
shows that they resulted from the implementation, pursuant to G.O. No. 5,
of PP 1017.

Now, may this Court adjudge a law or ordinance unconstitutional on the

ground that its implementor committed illegal acts? The answer is no. The
criterion by which the validity of the statute or ordinance is to be measured
is the essential basis for the exercise of power, and not a mere incidental
result arising from its exertion. This is logical. Just imagine the absurdity of
situations when laws may be declared unconstitutional just because the
officers implementing them have acted arbitrarily. If this were so, judging
from the blunders committed by policemen in the cases passed upon by the
Court, majority of the provisions of the Revised Penal Code would have
been declared unconstitutional a long time ago.
President Arroyo issued G.O. No. 5 to carry into effect the provisions of PP
1017. General orders are "acts and commands of the President in his
capacity as Commander-in-Chief of the Armed Forces of the Philippines."
They are internal rules issued by the executive officer to his subordinates
precisely for the proper and efficient administration of law. Such rules and
regulations create no relation except between the official who issues them
and the official who receives them. They are based on and are the product
of, a relationship in which power is their source, and obedience, their

object. For these reasons, one requirement for these rules to be valid is that
they must be reasonable, not arbitrary or capricious.
G.O. No. 5 mandates the AFP and the PNP to immediately carry out the
"necessary and appropriate actions and measures to suppress and prevent
acts of terrorism and lawless violence."
Unlike the term "lawless violence" which is unarguably extant in our
statutes and the Constitution, and which is invariably associated with
"invasion, insurrection or rebellion," the phrase "acts of terrorism" is still an
amorphous and vague concept. Congress has yet to enact a law defining and
punishing acts of terrorism.
In fact, this "definitional predicament" or the "absence of an agreed
definition of terrorism" confronts not only our country, but the international
community as well. The following observations are quite apropos:
In the actual unipolar context of international relations, the "fight against
terrorism" has become one of the basic slogans when it comes to the
justification of the use of force against certain states and against groups
operating internationally. Lists of states "sponsoring terrorism" and of
terrorist organizations are set up and constantly being updated according to
criteria that are not always known to the public, but are clearly determined
by strategic interests.
The basic problem underlying all these military actions or threats of the
use of force as the most recent by the United States against Iraq consists
in the absence of an agreed definition of terrorism.
Remarkable confusion persists in regard to the legal categorization of acts
of violence either by states, by armed groups such as liberation movements,
or by individuals.
The dilemma can by summarized in the saying "One country's terrorist is
another country's freedom fighter." The apparent contradiction or lack of
consistency in the use of the term "terrorism" may further be demonstrated
by the historical fact that leaders of national liberation movements such as
Nelson Mandela in South Africa, Habib Bourgouiba in Tunisia, or Ahmed

Ben Bella in Algeria, to mention only a few, were originally labeled as

terrorists by those who controlled the territory at the time, but later became
internationally respected statesmen.
What, then, is the defining criterion for terrorist acts the differentia
specifica distinguishing those acts from eventually legitimate acts of
national resistance or self-defense?
Since the times of the Cold War the United Nations Organization has been
trying in vain to reach a consensus on the basic issue of definition. The
organization has intensified its efforts recently, but has been unable to
bridge the gap between those who associate "terrorism" with any violent act
by non-state groups against civilians, state functionaries or infrastructure or
military installations, and those who believe in the concept of the legitimate
use of force when resistance against foreign occupation or against
systematic oppression of ethnic and/or religious groups within a state is
concerned.
The dilemma facing the international community can best be illustrated by
reference to the contradicting categorization of organizations and
movements such as Palestine Liberation Organization (PLO) which is a
terrorist group for Israel and a liberation movement for Arabs and Muslims
the Kashmiri resistance groups who are terrorists in the perception of
India, liberation fighters in that of Pakistan the earlier Contras in
Nicaragua freedom fighters for the United States, terrorists for the
Socialist camp or, most drastically, the Afghani Mujahedeen (later to
become the Taliban movement): during the Cold War period they were a
group of freedom fighters for the West, nurtured by the United States, and a
terrorist gang for the Soviet Union. One could go on and on in enumerating
examples of conflicting categorizations that cannot be reconciled in any
way because of opposing political interests that are at the roots of those
perceptions.
How, then, can those contradicting definitions and conflicting perceptions
and evaluations of one and the same group and its actions be explained? In
our analysis, the basic reason for these striking inconsistencies lies in the
divergent interest of states. Depending on whether a state is in the position

of an occupying power or in that of a rival, or adversary, of an occupying

power in a given territory, the definition of terrorism will "fluctuate"
accordingly. A state may eventually see itself as protector of the rights of a
certain ethnic group outside its territory and will therefore speak of a
"liberation struggle," not of "terrorism" when acts of violence by this group
are concerned, and vice-versa.
The United Nations Organization has been unable to reach a decision on the
definition of terrorism exactly because of these conflicting interests of
sovereign states that determine in each and every instance how a particular
armed movement (i.e. a non-state actor) is labeled in regard to the terroristsfreedom fighter dichotomy. A "policy of double standards" on this vital
issue of international affairs has been the unavoidable consequence.
This "definitional predicament" of an organization consisting of sovereign
states and not of peoples, in spite of the emphasis in the Preamble to the
United Nations Charter! has become even more serious in the present
global power constellation: one superpower exercises the decisive role in
the Security Council, former great powers of the Cold War era as well as
medium powers are increasingly being marginalized; and the problem has
become even more acute since the terrorist attacks of 11 September 2001 I
the United States.
The absence of a law defining "acts of terrorism" may result in abuse and
oppression on the part of the police or military. An illustration is when a
group of persons are merely engaged in a drinking spree. Yet the military or
the police may consider the act as an act of terrorism and immediately arrest
them pursuant to G.O. No. 5. Obviously, this is abuse and oppression on
their part. It must be remembered that an act can only be considered a crime
if there is a law defining the same as such and imposing the corresponding
penalty thereon.
So far, the word "terrorism" appears only once in our criminal laws, i.e., in
P.D. No. 1835 dated January 16, 1981 enacted by President Marcos during
the Martial Law regime. This decree is entitled "Codifying The Various
Laws on Anti-Subversion and Increasing The Penalties for Membership in
Subversive Organizations." The word "terrorism" is mentioned in the

following provision: "That one who conspires with any other person for the
purpose of overthrowing the Government of the Philippines . . . by force,
violence, terrorism, . . . shall be punished by reclusion temporal . . . ."
P.D. No. 1835 was repealed by E.O. No. 167 (which outlaws the
Communist Party of the Philippines) enacted by President Corazon Aquino
on May 5, 1985. These two (2) laws, however, do not define "acts of
terrorism." Since there is no law defining "acts of terrorism," it is President
Arroyo alone, under G.O. No. 5, who has the discretion to determine what
acts constitute terrorism. Her judgment on this aspect is absolute, without
restrictions. Consequently, there can be indiscriminate arrest without
warrants, breaking into offices and residences, taking over the media
enterprises, prohibition and dispersal of all assemblies and gatherings
unfriendly to the administration. All these can be effected in the name of
G.O. No. 5. These acts go far beyond the calling-out power of the President.
Certainly, they violate the due process clause of the Constitution. Thus, this
Court declares that the "acts of terrorism" portion of G.O. No. 5 is
unconstitutional.
Significantly, there is nothing in G.O. No. 5 authorizing the military or
police to commit acts beyond what are necessary and appropriate to
suppress and prevent lawless violence, the limitation of their authority in
pursuing the Order. Otherwise, such acts are considered illegal.
We first examine G.R. No. 171396 (David et al.)
The Constitution provides that "the right of the people to be secured in their
persons, houses, papers and effects against unreasonable search and seizure
of whatever nature and for any purpose shall be inviolable, and no search
warrant or warrant of arrest shall issue except upon probable cause to be
determined personally by the judge after examination under oath or
affirmation of the complainant and the witnesses he may produce, and
particularly describing the place to be searched and the persons or things to
be seized." 142 The plain import of the language of the Constitution is that
searches, seizures and arrests are normally unreasonable unless authorized
by a validly issued search warrant or warrant of arrest. Thus, the
fundamental protection given by this provision is that between person and

police must stand the protective authority of a magistrate clothed with

power to issue or refuse to issue search warrants or warrants of arrest.
In the Brief Account submitted by petitioner David, certain facts are
established: first, he was arrested without warrant; second, the PNP
operatives arrested him on the basis of PP 1017; third, he was brought at
Camp Karingal, Quezon City where he was fingerprinted, photographed and
booked like a criminal suspect; fourth, he was treated brusquely by
policemen who "held his head and tried to push him" inside an unmarked
car; fifth, he was charged with Violation of Batas Pambansa Bilang No. 880
and Inciting to Sedition; sixth, he was detained for seven (7) hours; and
seventh, he was eventually released for insufficiency of evidence.
Section 5, Rule 113 of the Revised Rules on Criminal Procedure provides:
Sec. 5. Arrest without warrant; when lawful. A peace officer or a
private person may, without a warrant, arrest a person:
(a)
When, in his presence, the person to be arrested has committed, is
actually committing, or is attempting to commit an offense.
(b)
When an offense has just been committed and he has probable
cause to believe based on personal knowledge of facts or circumstances that
the person to be arrested has committed it; and
xxx
xxx
xxx.
Neither of the two (2) exceptions mentioned above justifies petitioner
David's warrantless arrest. During the inquest for the charges of inciting to
sedition and violation of BP 880, all that the arresting officers could invoke
was their observation that some rallyists were wearing t-shirts with the
invective "Oust Gloria Now" and their erroneous assumption that petitioner
David was the leader of the rally. 146 Consequently, the Inquest Prosecutor
ordered his immediate release on the ground of insufficiency of evidence.
He noted that petitioner David was not wearing the subject t-shirt and even
if he was wearing it, such fact is insufficient to charge him with inciting to
sedition. Further, he also stated that there is insufficient evidence for the
charge of violation of BP 880 as it was not even known whether petitioner
David was the leader of the rally.

But what made it doubly worse for petitioners David et al. is that not only
was their right against warrantless arrest violated, but also their right to
peaceably assemble.
Section 4 of Article III guarantees:
No law shall be passed abridging the freedom of speech, of expression, or
of the press, or the right of the people peaceably to assemble and petition
the government for redress of grievances.
"Assembly" means a right on the part of the citizens to meet peaceably for
consultation in respect to public affairs. It is a necessary consequence of our
republican institution and complements the right of speech. As in the case
of freedom of expression, this right is not to be limited, much less denied,
except on a showing of a clear and present danger of a substantive evil that
Congress has a right to prevent. In other words, like other rights embraced
in the freedom of expression, the right to assemble is not subject to previous
restraint or censorship. It may not be conditioned upon the prior issuance of
a permit or authorization from the government authorities except, of course,
if the assembly is intended to be held in a public place, a permit for the use
of such place, and not for the assembly itself, may be validly required.
The ringing truth here is that petitioner David, et al. were arrested while
they were exercising their right to peaceful assembly. They were not
committing any crime, neither was there a showing of a clear and present
danger that warranted the limitation of that right. As can be gleaned from
circumstances, the charges of inciting to sedition and violation of BP 880
were mere afterthought. Even the Solicitor General, during the oral
argument, failed to justify the arresting officers' conduct. In De Jonge v.
Oregon, it was held that peaceable assembly cannot be made a crime, thus:
Peaceable assembly for lawful discussion cannot be made a crime. The
holding of meetings for peaceable political action cannot be proscribed.
Those who assist in the conduct of such meetings cannot be branded as
criminals on that score. The question, if the rights of free speech and
peaceful assembly are not to be preserved, is not as to the auspices under
which the meeting was held but as to its purpose; not as to the relations of
the speakers, but whether their utterances transcend the bounds of the
freedom of speech which the Constitution protects. If the persons
assembling have committed crimes elsewhere, if they have formed or are

engaged in a conspiracy against the public peace and order, they may be
prosecuted for their conspiracy or other violations of valid laws. But it is a
different matter when the State, instead of prosecuting them for such
offenses, seizes upon mere participation in a peaceable assembly and a
lawful public discussion as the basis for a criminal charge.
On the basis of the above principles, the Court likewise considers the
dispersal and arrest of the members of KMU et al. (G.R. No. 171483)
unwarranted. Apparently, their dispersal was done merely on the basis of
Malacaang's directive canceling all permits previously issued by local
government units. This is arbitrary. The wholesale cancellation of all
permits to rally is a blatant disregard of the principle that "freedom of
assembly is not to be limited, much less denied, except on a showing of a
clear and present danger of a substantive evil that the State has a right to
prevent." Tolerance is the rule and limitation is the exception. Only upon a
showing that an assembly presents a clear and present danger that the State
may deny the citizens' right to exercise it. Indeed, respondents failed to
show or convince the Court that the rallyists committed acts amounting to
lawless violence, invasion or rebellion. With the blanket revocation of
permits, the distinction between protected and unprotected assemblies was
eliminated.
Moreover, under BP 880, the authority to regulate assemblies and rallies is
lodged with the local government units. They have the power to issue
permits and to revoke such permits after due notice and hearing on the
determination of the presence of clear and present danger. Here, petitioners
were not even notified and heard on the revocation of their permits. The
first time they learned of it was at the time of the dispersal. Such absence of
notice is a fatal defect. When a person's right is restricted by government
action, it behooves a democratic government to see to it that the restriction
is fair, reasonable, and according to procedure.
G.R. No. 171409, (Cacho-Olivares, et al.) presents another facet of freedom
of speech i.e., the freedom of the press. Petitioners' narration of facts, which
the Solicitor General failed to refute, established the following: first, the
Daily Tribune's offices were searched without warrant; second, the police
operatives seized several materials for publication; third, the search was

conducted at about 1:00 o'clock in the morning of February 25, 2006;

fourth, the search was conducted in the absence of any official of the Daily
Tribune except the security guard of the building; and fifth, policemen
stationed themselves at the vicinity of the Daily Tribune offices.
Thereafter, a wave of warning came from government officials. Presidential
Chief of Staff Michael Defensor was quoted as saying that such raid was
"meant to show a 'strong presence,' to tell media outlets not to connive or do
anything that would help the rebels in bringing down this government."
Director General Lomibao further stated that "if they do not follow the
standards and the standards are if they would contribute to instability in
the government, or if they do not subscribe to what is in General Order No.
5 and Proc. No. 1017 we will recommend a 'takeover.'" National
Telecommunications Commissioner Ronald Solis urged television and radio
networks to "cooperate" with the government for the duration of the state of
national emergency. He warned that his agency will not hesitate to
recommend the closure of any broadcast outfit that violates rules set out for
media coverage during times when the national security is threatened.
The search is illegal. Rule 126 of The Revised Rules on Criminal Procedure
lays down the steps in the conduct of search and seizure. Section 4 requires
that a search warrant be issued upon probable cause in connection with one
specific offence to be determined personally by the judge after examination
under oath or affirmation of the complainant and the witnesses he may
produce. Section 8 mandates that the search of a house, room, or any other
premise be made in the presence of the lawful occupant thereof or any
member of his family or in the absence of the latter, in the presence of two
(2) witnesses of sufficient age and discretion residing in the same locality.
And Section 9 states that the warrant must direct that it be served in the
daytime, unless the property is on the person or in the place ordered to be
searched, in which case a direction may be inserted that it be served at any
time of the day or night. All these rules were violated by the CIDG
operatives.
Not only that, the search violated petitioners' freedom of the press. The best
gauge of a free and democratic society rests in the degree of freedom
enjoyed by its media. In the Burgos v. Chief of Staff this Court held that

As heretofore stated, the premises searched were the business and printing
offices of the "Metropolitan Mail" and the "We Forum" newspapers. As a
consequence of the search and seizure, these premises were padlocked and
sealed, with the further result that the printing and publication of said
newspapers were discontinued.
Such closure is in the nature of previous restraint or censorship abhorrent to
the freedom of the press guaranteed under the fundamental law, and
constitutes a virtual denial of petitioners' freedom to express themselves in
print. This state of being is patently anathematic to a democratic framework
where a free, alert and even militant press is essential for the political
enlightenment and growth of the citizenry.
While admittedly, the Daily Tribune was not padlocked and sealed like the
"Metropolitan Mail" and "We Forum" newspapers in the above case, yet it
cannot be denied that the CIDG operatives exceeded their enforcement
duties. The search and seizure of materials for publication, the stationing of
policemen in the vicinity of the The Daily Tribune offices, and the arrogant
warning of government officials to media, are plain censorship. It is that
officious functionary of the repressive government who tells the citizen that
he may speak only if allowed to do so, and no more and no less than what
he is permitted to say on pain of punishment should he be so rash as to
disobey. Undoubtedly, the The Daily Tribune was subjected to these
arbitrary intrusions because of its anti-government sentiments. This Court
cannot tolerate the blatant disregard of a constitutional right even if it
involves the most defiant of our citizens. Freedom to comment on public
affairs is essential to the vitality of a representative democracy. It is the duty
of the courts to be watchful for the constitutional rights of the citizen, and
against any stealthy encroachments thereon. The motto should always be
obsta principiis.
Incidentally, during the oral arguments, the Solicitor General admitted that
the search of the Tribune's offices and the seizure of its materials for
publication and other papers are illegal; and that the same are inadmissible
"for any purpose," thus:
JUSTICE CALLEJO:
You made quite a mouthful of admission when you said that the
policemen, when inspected the Tribune for the purpose of gathering

evidence and you admitted that the policemen were able to get the
clippings. Is that not in admission of the admissibility of these clippings that
were taken from the Tribune?
SOLICITOR GENERAL BENIPAYO:
Under the law they would seem to be, if they were illegally seized,
I think and I know, Your Honor, and these are inadmissible for any purpose.
xxx
xxx
xxx
SR. ASSO. JUSTICE PUNO:
These have been published in the past issues of the Daily Tribune;
all you have to do is to get those past issues. So why do you have to go
there at 1 o'clock in the morning and without any search warrant? Did they
become suddenly part of the evidence of rebellion or inciting to sedition or
what?
SOLGEN BENIPAYO:
Well, it was the police that did that, Your Honor. Not upon my
instructions.
SR. ASSO. JUSTICE PUNO:
Are you saying that the act of the policeman is illegal, it is not
based on any law, and it is not based on Proclamation 1017.
SOLGEN BENIPAYO:
It is not based on Proclamation 1017, Your Honor, because there is
nothing in 1017 which says that the police could go and inspect and gather
clippings from Daily Tribune or any other newspaper.
SR. ASSO. JUSTICE PUNO:
Is it based on any law?
SOLGEN BENIPAYO:
As far as I know, no, Your Honor, from the facts, no. DITEAc
SR. ASSO. JUSTICE PUNO:
So, it has no basis, no legal basis whatsoever?
SOLGEN BENIPAYO:
Maybe so, Your Honor. Maybe so, that is why I said, I don't know
if it is premature to say this, we do not condone this. If the people who have
been injured by this would want to sue them, they can sue and there are
remedies for this. 156

Likewise, the warrantless arrests and seizures executed by the police were,
according to the Solicitor General, illegal and cannot be condoned, thus:
CHIEF JUSTICE PANGANIBAN:
There seems to be some confusions if not contradiction in your
theory.
SOLICITOR GENERAL BENIPAYO:
I don't know whether this will clarify. The acts, the supposed
illegal or unlawful acts committed on the occasion of 1017, as I said, it
cannot be condoned. You cannot blame the President for, as you said, a
misapplication of the law. These are acts of the police officers, that is their
responsibility.
The Dissenting Opinion states that PP 1017 and G.O. No. 5 are
constitutional in every aspect and "should result in no constitutional or
statutory breaches if applied according to their letter."

"evaded;" they must now be resolved to prevent future constitutional

aberration.
The Court finds and so holds that PP 1017 is constitutional insofar as it
constitutes a call by the President for the AFP to prevent or suppress lawless
violence. The proclamation is sustained by Section 18, Article VII of the
Constitution and the relevant jurisprudence discussed earlier. However, PP
1017's extraneous provisions giving the President express or implied power
(1) to issue decrees; (2) to direct the AFP to enforce obedience to all laws
even those not related to lawless violence as well as decrees promulgated by
the President; and (3) to impose standards on media or any form of prior
restraint on the press, are ultra vires and unconstitutional. The Court also
rules that under Section 17, Article XII of the Constitution, the President, in
the absence of a legislation, cannot take over privately-owned public utility
and private business affected with public interest.

The Court has passed upon the constitutionality of these issuances. Its
ratiocination has been exhaustively presented. At this point, suffice it to
reiterate that PP 1017 is limited to the calling out by the President of the
military to prevent or suppress lawless violence, invasion or rebellion.
When in implementing its provisions, pursuant to G.O. No. 5, the military
and the police committed acts which violate the citizens' rights under the
Constitution, this Court has to declare such acts unconstitutional and illegal.
DaAISH
In this connection, Chief Justice Artemio V. Panganiban's concurring
opinion, attached hereto, is considered an integral part of this ponencia.

In the same vein, the Court finds G.O. No. 5 valid. It is an Order issued by
the President acting as Commander-in-Chief addressed to subalterns
in the AFP to carry out the provisions of PP 1017. Significantly, it also
provides a valid standard that the military and the police should take
only the "necessary and appropriate actions and measures to suppress and
prevent acts of lawless violence." But the words "acts of terrorism" found in
G.O. No. 5 have not been legally defined and made punishable by Congress
and should thus be deemed deleted from the said G.O. While "terrorism"
has been denounced generally in media, no law has been enacted to guide
the military, and eventually the courts, to determine the limits of the AFP's
authority in carrying out this portion of G.O. No. 5.

SUMMATION
In sum, the lifting of PP 1017 through the issuance of PP 1021 a
supervening event would have normally rendered this case moot and
academic. However, while PP 1017 was still operative, illegal acts were
committed allegedly in pursuance thereof. Besides, there is no guarantee
that PP 1017, or one similar to it, may not again be issued. Already, there
have been media reports on April 30, 2006 that allegedly PP 1017 would be
reimposed "if the May 1 rallies" become "unruly and violent."
Consequently, the transcendental issues raised by the parties should not be

On the basis of the relevant and uncontested facts narrated earlier, it is also
pristine clear that (1) the warrantless arrest of petitioners Randolf S. David
and Ronald Llamas; (2) the dispersal of the rallies and warrantless arrest of
the KMU and NAFLU-KMU members; (3) the imposition of standards on
media or any prior restraint on the press; and (4) the warrantless search of
the Tribune offices and the whimsical seizures of some articles for
publication and other materials, are not authorized by the Constitution, the
law and jurisprudence. Not even by the valid provisions of PP 1017 and
G.O. No. 5.

Other than this declaration of invalidity, this Court cannot impose any civil,
criminal or administrative sanctions on the individual police officers
concerned. They have not been individually identified and given their day
in court. The civil complaints or causes of action and/or relevant criminal
Informations have not been presented before this Court. Elementary due
process bars this Court from making any specific pronouncement of civil,
criminal or administrative liabilities.
It is well to remember that military power is a means to an end and
substantive civil rights are ends in themselves. How to give the military the
power it needs to protect the Republic without unnecessarily trampling
individual rights is one of the eternal balancing tasks of a democratic state.
During emergency, governmental action may vary in breadth and intensity
from normal times, yet they should not be arbitrary as to unduly restrain our
people's liberty.
Perhaps, the vital lesson that we must learn from the theorists who studied
the various competing political philosophies is that, it is possible to grant
government the authority to cope with crises without surrendering the two
vital principles of constitutionalism: the maintenance of legal limits to
arbitrary power, and political responsibility of the government to the
governed.
WHEREFORE, the Petitions are partly granted. The Court rules that PP
1017 is CONSTITUTIONAL insofar as it constitutes a call by President
Gloria Macapagal-Arroyo on the AFP to prevent or suppress lawless
violence. However, the provisions of PP 1017 commanding the AFP to
enforce laws not related to lawless violence, as well as decrees promulgated
by the President, are declared UNCONSTITUTIONAL. In addition, the
provision in PP 1017 declaring national emergency under Section 17,
Article VII of the Constitution is CONSTITUTIONAL, but such declaration
does not authorize the President to take over privately-owned public utility
or business affected with public interest without prior legislation.
G.O. No. 5 is CONSTITUTIONAL since it provides a standard by which
the AFP and the PNP should implement PP 1017, i.e. whatever is
"necessary and appropriate actions and measures to suppress and prevent
acts of lawless violence." Considering that "acts of terrorism" have not yet

been defined and made punishable by the Legislature, such portion of G.O.
No. 5 is declared UNCONSTITUTIONAL.
The warrantless arrest of Randolf S. David and Ronald Llamas; the
dispersal and warrantless arrest of the KMU and NAFLU-KMU members
during their rallies, in the absence of proof that these petitioners were
committing acts constituting lawless violence, invasion or rebellion and
violating BP 880; the imposition of standards on media or any form of prior
restraint on the press, as well as the warrantless search of the Tribune
offices and whimsical seizure of its articles for publication and other
materials, are declared UNCONSTITUTIONAL.
No costs.
SO ORDERED.
Quisumbing, Austria-Martinez, Azcuna, Chico-Nazario and Garcia, JJ.,
concur.
Panganiban, C.J. and Ynares-Santiago, JJ., please see concurring opinion.
Puno, J., is on leave.
Carpio, J., also concurs with Chief Justice's opinion.
Corona, J., shares the dissenting opinion of Mr. Justice Tinga.
Carpio-Morales, J., the concurring opinion of the Chief Justice merits also
my concurrence.
Callejo, Sr., J., also concurs with the concurring opinion of Chief Justice
Panagniban.
Tinga, J., please see dissenting opinion.
Velasco, Jr., J., joins the dissent of J. Tinga.
[I didnt include the concurring opinion. Its actually the same length as the
actual case and contains pretty much the same info.]

ANTONIO L. SANCHEZ, petitioner,

vs. The Honorable HARRIET O. DEMETRIOU (in her capacity as
Presiding Judge of Regional Trial Court, NCR, Branch 70, Pasig), The
Honorable FRANKLIN DRILON (in his capacity as Secretary of Justice),
JOVENCITO R. ZUO, LEONARDO C. GUIYAB, JR., CARLOS L. DE
LEON, RAMONCITO C. MISON, REYNALDO J. LUGTU and
RODRIGO P. LORENZO, (the last six respondents in their official
capacities as members of the State Prosecutor's Office), respondents.

Acting on this request, the Panel of State Prosecutors of the Department of

Justice conducted a preliminary investigation on August 9, 1993. Petitioner
Sanchez was not present but was represented by his counsel, Atty. Marciano
Brion, Jr.
On August 12, 1993, PNP Commander Rex Piad issued an "invitation" to
the petitioner requesting him to appear for investigation at Camp Vicente
Lim in Canlubang, Laguna. It was served on Sanchez in the morning of
August 13, 1993, and he was immediately taken to the said camp.

G.R. Nos. 111771-77

November 9, 1993

At a confrontation that same day, Sanchez was positively identified by

Aurelio Centeno and SPO III Vivencio Malabanan, who both executed
extrajudicial confessions implicating him as a principal in the rape-slay of
Sarmenta and the killing of Gomez. The petitioner was then placed on
"arrest status" and taken to the Department of Justice in Manila.

DECISION
CRUZ, J p:
There is probably no more notorious person in the country today than
Mayor Antonio L. Sanchez of Calauan, Laguna, who stands accused of an
unspeakable crime. On him the verdict has already been rendered by many
outraged persons who would immediately impose on him an angry
sentence. Yet, for all the prejudgments against him, he is under our
Constitution presumed innocent as long as the contrary has not been proved.
Like any other person accused of an offense, he is entitled to the full and
vigilant protection of the Bill of Rights.
Sanchez has brought this petition to challenge the order of the respondent
judge denying his motion to quash the informations for rape with homicide
filed against him and six other persons. We shall treat it as we would any
other suit filed by any litigant hoping to obtain a just and impartial
judgment from this Court.
The pertinent facts are as follows:
On July 28, 1993, the Presidential Anti-Crime Commission requested the
filing of appropriate charges against several persons, including the
petitioner, in connection with the rape-slay of Mary Eileen Sarmenta and
the killing of Allan Gomez.

The respondent prosecutors immediately conducted an inquest upon his

arrival, with Atty. Salvador Panelo as his counsel.
After the hearing, a warrant of arrest was served on Sanchez. This warrant
was issued on August 13, 1993, by Judge Enrico A. Lanzanas of the
Regional Trial Court of Manila, Branch 7, in connection with Criminal
Cases Nos. 93-124634 to 93-124637 for violation of Section 8, in relation to
Section 11, of R.A. No. 6713. Sanchez was forthwith taken to the CIS
Detention Center, Camp Crame, where he remains confined.
On August 16, 1993, the respondent prosecutors filed with the Regional
Trial Court of Calamba, Laguna, seven informations charging Antonio L.
Sanchez, Luis Corcolon, Rogelio Corcolon, Pepito Kawit, Baldwin Brion,
Jr., George Medialdea and Zoilo Ama with the rape and killing of Mary
Eileen Sarmenta.
On August 26, 1993, Judge Eustaquio P. Sto. Domingo of that court issued
a warrant for the arrest of all the accused, including the petitioner, in
connection with the said crime.
The respondent Secretary of Justice subsequently expressed his
apprehension that the trial of the said cases might result in a miscarriage of
justice because of the tense and partisan atmosphere in Laguna in favor of

the petitioner and the relationship of an employee in the trial court with one
of the accused. This Court thereupon ordered the transfer of the venue of
the seven cases to Pasig, Metro Manila, where they were raffled to
respondent Judge Harriet Demetriou.
On September 10, 1993, the seven informations were amended to include
the killing of Allan Gomez as an aggravating circumstance.
On that same date, the petitioner filed a motion to quash the informations
substantially on the grounds now raised in this petition. On September 13,
1993, after oral arguments, the respondent judge denied the motion.
Sanchez then filed with this Court the instant petition for certiorari and
prohibition with prayer for a temporary restraining order/writ of injunction.
The petitioner argues that the seven informations filed against him should
be quashed because: 1) he was denied the right to present evidence at the
preliminary investigation; 2) only the Ombudsman had the competence to
conduct the investigation; 3) his warrantless arrest is illegal and the court
has therefore not acquired jurisdiction over him; 4) he is being charged with
seven homicides arising from the death of only two persons; 5) the
informations are discriminatory because they do not include Teofilo
Alqueza and Edgardo Lavadia; and 6) as a public officer, he can be tried for
the offense only by the Sandiganbayan.
The respondents submitted a Comment on the petition, to which we
required a Reply from the petitioner within a non-extendible period of five
days. The Reply was filed five days late. The Court may consider his noncompliance an implied admission of the respondents' arguments or a loss of
interest in prosecuting his petition, which is a ground for its dismissal.
Nevertheless, we shall disregard this procedural lapse and proceed to
discuss his petition on the basis of the arguments before us.
The Preliminary Investigation
The records of the hearings held on August 9 and 13, 1993, belie the
petitioner's contention that he was not accorded the right to present counteraffidavits.

During the preliminary investigation on August 9, 1993, the petitioner's

counsel, Atty. Marciano Brion, manifested that his client was waiving the
presentation of a counter-affidavit, thus:
Atty. Brion, Jr.:
[W]e manifest that after reviewing them there is nothing to rebut or
countermand all these statements as far as Mayor Sanchez is concerned. We
are not going to submit any counter-affidavit.
ACSP Zuo to Atty. Brion:
xxx
xxx
xxx
Q
So far, there are no other statements.
A
If there is none then, we will not submit any counter-affidavit
because we believe there is nothing to rebut or countermand with all these
statements.
Q
So, you are waiving your submission of counter-affidavit?
A
Yes, your honor, unless there are other witnesses who will come
up soon.
Nonetheless, the head of the Panel of Prosecutors, respondent Jovencito
Zuo, told Atty. Brion that he could still file a counter-affidavit up to
August 27, 1993. No such counter-affidavit was filed.
During the hearing on August 13, 1993, respondent Zuo furnished the
petitioner's counsel, this time Atty. Salvador Panelo, with copies of the
sworn statements of Centeno and Malabanan, and told him he could submit
counter-affidavits on or before August 27, 1993. The following exchange
ensued:
ACSP Zuo:
For the record, we are furnishing to you the sworn statement of
witness Aurelio Centeno y Roxas and the sworn statement of SPO3
Vivencio Malabanan y Angeles.
Do I understand from you that you are again waiving the
submission of counter-affidavit?
Atty. Panelo:
Yes.
ACSP Zuo:
So, in so far as the respondent, Mayor Antonio Sanchez is
concerned, this case is submitted for resolution.

On the other hand, there is no support for the petitioner's subsequent

manifestation that his counsel, Atty. Brion, was not notified of the inquest
held on August 13, 1993, and that he was not furnished with the affidavits
sworn to on that date by Vivencio Malabanan and Aurelio Centeno, or with
their supplemental affidavits dated August 15, 1993. Moreover, the abovequoted excerpt shows that the petitioner's counsel at the hearing held on
August 13, 1993, was not Atty. Brion but Atty. Panelo.

Jurisdiction of the Ombudsman

Invoking the case of Deloso v. Domingo, the petitioner submits that the
proceedings conducted by the Department of Justice are null and void
because it had no jurisdiction over the case. His claim is that it is the Office
of the Ombudsman that is vested with the power to conduct the
investigation of all cases involving public officers like him, as the
municipal mayor of Calauan, Laguna.

The petitioner was present at that hearing and he never disowned Atty.
Panelo as his counsel. During the entire proceedings, he remained quiet and
let this counsel speak and argue on his behalf. It was only in his tardy Reply
that he has suddenly bestirred himself and would now question his
representation by this lawyer as unauthorized and inofficious.

The Ombudsman is indeed empowered under Section 15, paragraph (1) of

R.A. 6770 to investigate and prosecute any illegal act or omission of any
public official. However, as we held only two years ago in the case of
Aguinaldo v. Domagas, 9 this authority "is not an exclusive authority but
rather a shared or concurrent authority in respect of the offense charged."

Section 3 paragraph (d), Rule 112 of the Rules of Court, provides that if the
respondent cannot be subpoenaed or, if subpoenaed, does not submit
counter-affidavits, the investigating officer shall base his resolution on the
evidence presented by the complainant.

Petitioners finally assert that the information and amended information filed
in this case needed the approval of the Ombudsman. It is not disputed that
the information and amended information here did not have the approval of
the Ombudsman. However, we do not believe that such approval was
necessary at all. In Deloso v. Domingo, 191 SCRA 545 (1990), the Court
held that the Ombudsman has authority to investigate charges of illegal acts
or omissions on the part of any public official, i.e., any crime imputed to a
public official. It must, however, be pointed out that the authority of the
Ombudsman to investigate "any [illegal] act or omission of any public
official" (191 SCRA at 550) is not an exclusive authority but rather a shared
or concurrent authority in respect of the offense here charged, i.e., the crime
of sedition. Thus, the non-involvement of the office of the Ombudsman in
the present case does not have any adverse legal consequence upon the
authority of the panel of prosecutors to file and prosecute the information or
amended information.

Just as the accused may renounce the right to be present at the preliminary
investigation, so may he waive the right to present counter-affidavits or any
other evidence in his defense.
At any rate, it is settled that the absence of a preliminary investigation does
not impair the validity of the information or otherwise render the same
defective and neither does it affect the jurisdiction of the court over the case
or constitute a ground for quashing the information.
If no preliminary investigation has been held, or if it is flawed, the trial
court may, on motion of the accused, order an investigation or
reinvestigation and hold the proceedings in the criminal cases in abeyance.
In the case at bar, however, the respondent judge saw no reason or need for
such a step. Finding no arbitrariness in her factual conclusions, we shall
defer to her judgment.

In fact, other investigatory agencies of the government such as the

Department of Justice, in connection with the charge of sedition, and the
Presidential Commission on Good Government, in ill-gotten wealth cases,
may conduct the investigation.
Was petitioner Sanchez arrested on August 13, 1993?

"Arrest" is defined under Section 1, Rule 113 of the Rules of Court as the
taking of a person into custody in order that he may be bound to answer for
the commission of an offense. Under Section 2 of the same Rule, an arrest
is effected by an actual restraint of the person to be arrested or by his
voluntary submission to the custody of the person making the arrest.
Application of actual force, manual touching of the body, physical restraint
or a formal declaration of arrest is not required. It is enough that there be an
intent on the part of one of the parties to arrest the other and an intent on the
part of the other to submit, under the belief and impression that submission
is necessary.
The petitioner was taken to Camp Vicente Lim, Canlubang, Laguna, by
virtue of a letter-invitation issued by PNP Commander Rex Piad requesting
him to appear at the said camp for investigation.
In Babst v. National Intelligence Board 13 this Court declared:
Be that as it may, it is not idle to note that ordinarily, an invitation to attend
a hearing and answer some questions, which the person invited may heed or
refuse at his pleasure, is not illegal or constitutionally objectionable. Under
certain circumstances, however, such an invitation can easily assume a
different appearance. Thus, where the invitation comes from a powerful
group composed predominantly of ranking military officers issued at a time
when the country has just emerged from martial rule and when the
suspension of the privilege of the writ of habeas corpus has not entirely
been lifted, and the designated interrogation site is a military camp, the
same can easily be taken, not as a strictly voluntary invitation which it
purports to be, but as an authoritative command which one can only defy at
his peril . . . (Emphasis supplied)
In the case at bar, the invitation came from a high-ranking military official
and the investigation of Sanchez was to be made at a military camp.
Although in the guise of a request, it was obviously a command or an order
of arrest that the petitioner could hardly be expected to defy. In fact,
apparently cowed by the "invitation," he went without protest (and in
informal clothes and slippers only) with the officers who had come to fetch
him.

It may not be amiss to observe that under R.A. No. 7438, the requisites of a
"custodial investigation" are applicable even to a person not formally
arrested but merely "invited" for questioning.
It should likewise be noted that at Camp Vicente Lim, the petitioner was
placed on "arrest status" after he was pointed to by Centeno and Malabanan
as the person who first raped Mary Eileen Sarmenta. Respondent Zuo
himself acknowledged during the August 13, 1993 hearing that, on the basis
of the sworn statements of the two state witnesses, the petitioner had been
"arrested."
We agree with the petitioner that his arrest did not come under Section 5,
Rule 113 of the Rules of Court, providing as follows:
SECTION 5.
Arrest without warrant; when lawful. A peace officer
or a private person may, without a warrant, arrest a person:
(a)
When, in his presence, the person to be arrested has committed, is
actually committing, or is attempting to commit an offense;
(b)
When an offense has in fact just been committed and he has
personal knowledge of facts indicating that the person to be arrested has
committed it; and
(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.
It is not denied that the arresting officers were not present when the
petitioner allegedly participated in the killing of Allan Gomez and the rapeslay of Mary Eileen Sarmenta. Neither did they have any personal
knowledge that the petitioner was responsible therefor because the basis of
the arrest was the sworn statements of Centeno and Malabanan. Moreover,
as the rape and killing of Sarmenta allegedly took place on June 28 - June
29, 1993, or forty-six days before the date of the arrest, it cannot be said
that the offense had "in fact just been committed" when the petitioner was
arrested.
The original warrantless arrest of the petitioner was doubtless illegal.
Nevertheless, the Regional Trial Court lawfully acquired jurisdiction over

the person of the petitioner by virtue of the warrant of arrest it issued on

August 26, 1993 against him and the other accused in connection with the
rape-slay cases. It was belated, to be sure, but it was nonetheless legal.
Even on the assumption that no warrant was issued at all, we find that the
trial court still lawfully acquired jurisdiction over the person of the
petitioner. The rule is that if the accused objects to the jurisdiction of the
court over his person, he may move to quash the information, but only on
that ground. If, as in this case, the accused raises other grounds in the
motion to quash, he is deemed to have waived that objection and to have
submitted his person to the jurisdiction of the court.
The Court notes that on August 13, 1993, after the petitioner was
unlawfully arrested, Judge Lanzanas issued a warrant of arrest against
Antonio L. Sanchez in connection with Criminal Cases Nos. 93-124634 to
93-124637 for violation of R.A. No. 6713. Pending the issuance of the
warrant of arrest for the rape-slay cases, this first warrant served as the
initial justification for his detention.
The Court also adverts to its uniform ruling that the filing of charges, and
the issuance of the corresponding warrant of arrest, against a person
invalidly detained will cure the defect of that detention or at least deny him
the right to be released because of such defect. * Applicable by analogy to
the case at bar is Rule 102 Section 4 of the Rules of Court that:
SECTION 4.
When writ is not allowed or discharge authorized. If it
appears that the person alleged to be restrained of his liberty is in the
custody of an officer under process issued by a court or judge or by virtue
of a judgment or order of a court of record, and that the court or judge had
jurisdiction to issue the process, render the judgment, or make the order, the
writ shall not be allowed; or if the jurisdiction appears after the writ is
allowed, the person shall not be discharged by reason of any informality or
defect in the process, judgment, or order. Nor shall anything in this rule be
held to authorize the discharge of a person charged with or convicted of an
offense in the Philippines or of a person suffering imprisonment under
lawful judgment.

In one case, the petitioner sued on habeas corpus on the ground that she had
been arrested by virtue of a John Doe warrant. In their return, the
respondents declared that a new warrant specifically naming her had been
issued, thus validating her detention. While frowning at the tactics of the
respondents, the Court said:
The case has, indeed, become moot and academic inasmuch as the new
warrant of arrest complies with the requirements of the Constitution and the
Rules of Court regarding the particular description of the person to be
arrested. While the first warrant was unquestionably void, being a general
warrant, release of the petitioner for that reason will be a futile act as it will
be followed by her immediate re-arrest pursuant to the new and valid
warrant, returning her to the same prison she will just have left. This Court
will not participate in such a meaningless charade.
The same doctrine has been consistently followed by the Court, more
recently in the Umil case.
The Informations
The petitioner submits that the seven informations charging seven separate
homicides are absurd because the two victims in these cases could not have
died seven times.
This argument was correctly refuted by the Solicitor General in this wise:
Thus, where there are two or more offenders who commit rape, the
homicide committed on the occasion or by reason of each rape, must be
deemed as a constituent of the special complex crime of rape with
homicide. Therefore, there will be as many crimes of rape with homicide as
there are rapes committed.
In effect, the presence of homicide qualifies the crime of rape, thereby
raising its penalty to the highest degree. Thus, homicide committed on the
occasion or by reason of the rape, loses its character as an independent
offense, but assumes a new character, and functions like a qualifying
circumstance. However, by fiction of law, it is merged with rape to
constitute a constituent element of a special complex crime of rape with
homicide with a specific penalty which is in the highest degree, i.e., death
(reduced to reclusion perpetua with the suspension of the application of the
death penalty by the Constitution).

It is clearly provided in Rule 110 of the Rules of Court that:

SECTION 13. Duplicity of offense. A complaint or information must
charge but one offense, except only in those cases in which existing laws
prescribe a simple punishment for various offenses.
Rape with homicide comes within the exception under R.A. 2632 and R.A.
4111, amending the Revised Penal Code.
The petitioner and his six co-accused are not charged with only one rape
committed by him in conspiracy with the other six. Each one of the seven
accused is charged with having himself raped Sarmenta instead of simply
helping Sanchez in committing only one rape. In other words, the allegation
of the prosecution is that the girl was raped seven times, with each of the
seven accused taking turns in abusing her with the assistance of the other
six. Afterwards, their lust satisfied, all seven of them decided to kill and
thus silence Sarmenta.
Every one of the seven accused is being charged separately for actually
raping Sarmenta and later killing her instead of merely assisting the
petitioner in raping and then slaying her. The separate informations filed
against each of them allege that each of the seven successive rapes is
complexed by the subsequent slaying of Sarmenta and aggravated by the
killing of Allan Gomez by her seven attackers. The separate rapes were
committed in succession by the seven accused, culminating in the slaying of
Sarmenta.
It is of course absurd to suggest that Mary Eileen Sarmenta and Allan
Gomez were killed seven times, but the informations do not make such
suggestion. It is the petitioner who does so and is thus hoist by his own
petard.
The Alleged Discrimination
The charge of discrimination against the petitioner because of the noninclusion of Teofilo Alqueza and Edgardo Lavadia in the informations must
also be dismissed.

While the prosecuting officer is required by law to charge all those who, in
his opinion, appear to be guilty, he nevertheless cannot be compelled to
include in the information a person against whom he believes no sufficient
evidence of guilt exists. The appreciation of the evidence involves the use
of discretion on the part of the prosecutor, and we do not find in the case at
bar a clear showing by the petitioner of a grave abuse of such discretion.
The decision of the prosecutor may be reversed or modified by the
Secretary of Justice or in special cases by the President of the Philippines.
But even this Court cannot order the prosecution of a person against whom
the prosecutor does not find sufficient evidence to support at least a prima
facie case. The courts try and absolve or convict the accused but as a rule
have no part in the initial decision to prosecute him.
The possible exception is where there is an unmistakable showing of a
grave abuse of discretion that will justify judicial intrusion into the precincts
of the executive. But in such a case the proper remedy to call for such
exception is a petition for mandamus, not certiorari or prohibition.
Moreover, before resorting to this relief, the party seeking the inclusion of
another person as a co-accused in the same case must first avail itself of
other adequate remedies such as the filing of a motion for such decision.
At any rate, it is a preposterous contention that because no charges have
been filed against Alqueza and Lavadia, the charges against the petitioner
and his co-accused should also be dropped.
Jurisdiction of the Sandiganbayan
The petitioner argued earlier that since most of the accused were incumbent
public officials or employees at the time of the alleged commission of the
crimes, the cases against them should come under the jurisdiction of the
Sandiganbayan and not of the regular courts. This contention was
withdrawn in his Reply but we shall discuss it just the same for the
guidance of all those concerned.

Section 4, paragraph (a) of P.D. No. 1606, as amended by P.D. No. 1861,
provides:
SECTION 4.
Jurisdiction. The Sandiganbayan shall exercise:
a)
Exclusive original jurisdiction in all cases involving:
(1)
Violations of Republic Act No. 3019, as amended, otherwise
known as the Anti-Graft and Corrupt Practices Act, Republic Act No. 1379,
and Chapter II, Section 2, Title VII of the Revised Penal Code;
(2)
Other offenses or felonies committed by public officers and
employees in relation to their office, including those employed in
government-owned or controlled corporations, whether simple or
complexed with other crimes, where the penalty prescribed by law is higher
than prision correccional or imprisonment for six (6) years, or a fine of
P6,000.00 . . . (Emphasis supplied)
The crime of rape with homicide with which the petitioner stands charged
obviously does not fall under paragraph (1), which deals with graft and
corruption cases. Neither is it covered by paragraph (2) because it is not an
offense committed in relation to the office of the petitioner.
In Montilla v. Hilario, this Court described the "offense committed in
relation to the office" as follows:
[T]he relation between the crime and the office contemplated by the
Constitution is, in our opinion, direct and not accidental. To fall into the
intent of the Constitution, the relation has to be such that, in the legal sense,
the offense cannot exist without the office. In other words, the office must
be a constituent element of the crime as defined in the statute, such as, for
instance, the crimes defined and punished in Chapter Two to Six, Title
Seven, of the Revised Penal Code.
Public office is not of the essence of murder. The taking of human life is
either murder or homicide whether done by a private citizen or public
servant, and the penalty is the same except when the perpetrator, being a
public functionary, took advantage of his office, as alleged in this case, in
which event the penalty is increased.
But the use or abuse of office does not adhere to the crime as an element;
and even as an aggravating circumstance, its materiality arises, not from the

allegations but on the proof, not from the fact that the criminals are public
officials but from the manner of the commission of the crime.
There is no direct relation between the commission of the crime of rape
with homicide and the petitioner's office as municipal mayor because public
office is not an essential element of the crime charged. The offense can
stand independently of the office. Moreover, it is not even alleged in the
information that the commission of the crime charged was intimately
connected with the performance of the petitioner's official functions to
make it fall under the exception laid down in People v. Montejo.
In that case, a city mayor and several detectives were charged with murder
for the death of a suspect as a result of a "third degree" investigation held at
a police substation. The appearance of a senator as their counsel was
questioned by the prosecution on the ground that he was inhibited by the
Constitution from representing them because they were accused of an
offense committed in relation to their office. The Court agreed. It held that
even if their position was not an essential ingredient of the offense, there
was nevertheless an intimate connection between the office and the offense,
as alleged in the information, that brought it within the definition of an
offense "committed in relation to the public office."
As Chief Justice Concepcion said:
It is apparent from these allegations that, although public office is not an
element of the crime of murder in abstract, as committed by the main
respondents herein, according to the amended information, the offense
therein charged is intimately connected with their respective offices and
was perpetrated while they were in the performance, though improper or
irregular, of their official functions. Indeed, they had no personal motive to
commit the crime and they would not have committed it had they not held
their aforesaid offices. The co-defendants of respondent Leroy S. Brown,
obeyed his instructions because he was their superior officer, as Mayor of
Basilan City. (Emphasis supplied).
We have read the informations in the case at bar and find no allegation
therein that the crime of rape with homicide imputed to the petitioner was
connected with the discharge of his functions as municipal mayor or that

there is an "intimate connection" between the offense and his office. It

follows that the said crime, being an ordinary offense, is triable by the
regular courts and not the Sandiganbayan.
Conclusion
As above demonstrated, all of the grounds invoked by the petitioner are not
supported by the facts and the applicable law and jurisprudence. They must,
therefore, all be rejected. In consequence, the respondent judge, who has
started the trial of the criminal cases against the petitioner and his coaccused, may proceed therewith without further hindrance.
It remains to stress that the decision we make today is not a decision on the
merits of the criminal cases being tried below. These will have to be
decided by the respondent judge in accordance with the evidence that is still
being received. At this time, there is yet no basis for judgment, only
uninformed conjecture. The Court will caution against such irrelevant
public speculations as they can be based only on imperfect knowledge if not
officious ignorance.
WHEREFORE, the petition is DISMISSED. The respondent judge is
DIRECTED to continue with the trial of Criminal Cases Nos. 101141,
101142, 101143, 101144, 101145, 101146 and 101147 and to decide them
with deliberate dispatch.
SO ORDERED.
Feliciano, Padilla, Bidin, Regalado, Davide, Jr., Romero, Nocon, Melo,
Quiason, Puno and Vitug, JJ ., concur.
Narvasa, C .J ., No part: Related to former counsel of party.
Bellosillo, J ., On leave.

EDUARDO M. COJUANGCO, JR., petitioner,

vs. SANDIGANBAYAN (FIRST DIVISION) and PEOPLE OF THE
PHILIPPINES, respondents.
G.R. No. 134307
December 21, 1998
SYLLABUS
1.
REMEDIAL LAW; CRIMINAL PROCEDURE; ARREST;
PROBABLE CAUSE; JUDGE MUST PERSONALLY DETERMINE
EXISTENCE THEREOF; MANDATE NOT ABIDED BY WHERE
WARRANT WAS ISSUED BASED ON RESOLUTION OF PANEL
OF INVESTIGATORS OF THE OFFICE OF THE OMBUDSMAN.
As alleged by petitioner, in case at bar, the Sandiganbayan had two pieces
of documents to consider when it resolved to issue the warrant of arrest
against the accused: (1) the Resolution dated June 2, 1992 of the Panel of
Investigators of the Office of the Ombudsman recommending the filing of
the Information and (2) the Memorandum dated June 16, 1995 of the Office
of the Special Prosecutor denying the existence of a prejudicial question
which will warrant the suspension of the criminal case. The Sandiganbayan
had nothing more to support its resolution. We are now constrained to rule
that herein respondent court failed to abide by the constitutional mandate of
personally determining the existence of probable cause before issuing a
warrant of arrest. For the two cited documents were the product of
somebody else's determination, insufficient to support a finding of probable
cause by the Sandiganbayan. Hence, the warrant of arrest issued by
respondent court on February 17, 1995 against herein petitioner is palpably
invalid.
2.
ID.; ID ; JURISDICTION; POSTING OF BAIL;
TANTAMOUNT TO SUBMISSION OF ONE'S PERSON TO
JURISDICTION OF COURT; CASE AT BAR The giving or posting
of bail by the accused is tantamount to submission of his person to the
jurisdiction of the court. By posting bail, herein petitioner cannot claim
exemption from the effect of being subject to the jurisdiction of respondent
court. While petitioner has exerted efforts to continue disputing the validity
of the issuance of the warrant of arrest despite his posting bail, his claim has

been negated when he himself invoked the jurisdiction of respondent court

through the filing of various motions that sought other affirmative reliefs.
3.
ID.; ID.; MOTION TO QUASH; LACK OF JURISDICTION;
APPEARANCE MUST BE FOR SOLE AND SEPARATE PURPOSE
OF OBJECTING THERETO; CASE AT BAR. "[W]here the
appearance is by motion for the purpose of objecting to the jurisdiction of
the court over the person, it must be for the sole and separate purpose of
objecting to said jurisdiction. If the appearance is for any other purpose, the
defendant is deemed to have submitted himself to the jurisdiction of the
court. Such an appearance gives the court jurisdiction over the person.
Verily, petitioner's participation in the proceedings before the
Sandiganbayan was not confined to his opposition to the issuance of a
warrant arrest but also covered other matters which called for respondent
court's exercise of its jurisdiction. Petitioner may not be heard now to deny
said court's jurisdiction over him. Nor can we ignore the long line of
precedents declaring that where the accused had posted bail, as required, to
obtain his provisional liberty, "it becomes futile to assail the validity of the
issuance of the warrants of arrest."
4.
ID ; ID.; DISMISSAL; DISPOSITION OF CASE AFTER
FILING OF INFORMATION RESTS IN SOUND DISCRETION OF
COURT. Clearly, consistent with the rule in (Crespo vs. Mogul, after
the filing of the information in court, "any disposition of the case as to its
dismissal or the conviction or acquittal of the accused rests in the sound
discretion of the Court.
5.
CONSTITUTIONAL LAW; BILL OF RIGHTS; RIGHT TO
SPEEDY TRIAL; WHEN DEEMED VIOLATED. The right to a
speedy disposition of a case, like the right to speedy trial, is deemed
violated only when the proceeding is attended by vexatious, capricious and
oppressive, delays. It should be emphasized that the factors that must be
taken into account in determining whether this constitutional right has been
violated are as follows: (1) the length of delay, (2) the reason for such delay
and (3) the assertion or failure to assert such right by the accused, and the
prejudice caused by the delay.

6.
ID.; ID.; ID.; FAILURE TO RESOLVE MOTION TO
DISMISS FOR MORE THAN ONE YEAR, VIOLATION OF RIGHT
TO SPEEDY TRIAL; CASE AT BAR. In the instant case, however,
the Court finds that delay concerns the resolution of petitioner's "Urgent
Motion to Dismiss", which is an offshoot of the Memorandum of the Office
of the Special Prosecutor recommending the dismissal of the case. Such
delay is now far from excusable. Petitioner's Motion to Dismiss has been
filed as early as December 13, 1996 and, on three occasions, petitioner has
moved for the urgent resolution of this motion. What further militates
against further delay in resolving this case is the fact that the government
prosecutors themselves concede that this case is paramount importance,
involving as it does "the recovery of the ill-gotten wealth or government
funds, unlawfully used or misused by persons close or perceived to be close
to the Marcoses." Respondent court declared in its Order dated February 17
1997 that the matter would be deemed submitted for resolution upon
compliance with the Office of the Special Prosecutor as to whether there is
indeed no probable cause against petitioner, which compliance was
submitted by the Office of the Special Prosecutor on March 17, 1997.
Under these circumstances, the Court does find the period of more than one
year that elapsed for resolving petitioner's motion to dismiss quite long,
considering that all pertinent pleadings required by the Sandiganbayan were
already submitted.
7.
ID.; ID ; RIGHT TO TRAVEL; DENIAL THEREOF IN
CASE AT BAR UNJUSTIFIED. The travel ban should be lifted
considering all the circumstances now prevailing. The rule laid down by
this Court is that a person facing a criminal indictment and provisionally
released on bail does not have an unrestricted right to travel, the reason
being that a person's right to travel is subject to the usual constraints
imposed by the very necessity of safeguarding the system of justice. But,
significantly, the Office of the Solicitor General in its Manifestation dated
November 20, 1998 indicated that it is not interposing any objection to
petitioner's prayer that he be allowed to travel abroad. Moreover,
prescinding from our initial declaration that the issuance of warrant of arrest
against petitioner by respondent court is invalid, it now becomes necessary
that there be strong and compelling reasons to justify the continued
restriction on petitioner's right to travel abroad. Admittedly, all of

petitioner's previous requests to travel abroad has been granted and that, as
confirmed by the Office of the Solicitor General, that petitioner has always
returned to the Philippines and complied with the restrictions imposed on
him. The necessity of further denying petitioner's right to travel abroad,
with attendant restrictions, appears less than clear. The risk of flight is
further diminished in view of petitioner's recent reinstatement as Chairman
and Chief Executive Officer of San Miguel Corporation, though he has now
more justification to travel so as to oversee the entire operations of that
company. In this regard, it has to be conceded that his assumption of such
vital post has come at a time when the current economic crisis has adversely
affected the international operations of many companies, including San
Miguel. The need to travel abroad frequently on the part of petitioner, to
formulate and implement the necessary corporate strategies and decisions,
could not be forestalled. These considerations affecting the petitioner's
duties to a publicly held company, militate against imposing further
restrictions on petitioner's right to travel abroad.
PANGANIBAN, J., concurring and dissenting:
1.
REMEDIAL LAW; CRIMINAL PROCEDURE; ARREST;
PROBABLE CAUSE; MUST BE PERSONALLY DETERMINED BY
JUDGE. With an analysis of case law as backdrop, the Court en banc
indeed categorically declared in Ho (280 SCRA 365 [1997]) that a judge
cannot issue a warrant of arrest with only the prosecutor's findings and
recommendation as bases for determining probable cause. No less than the
Constitution mandates in no uncertain terms that "no . . . warrant of arrest
shall issue except upon probable cause to be determined personally by the
judge after examination under oath or affirmation of the complainant and
the witnesses he may produce . . . . " This clause unequivocally means that
the judge must make his own determination independent of that of the
prosecutor of whether there is probable cause to issue a warrant of arrest,
based on the complainant's and his witnesses' accounts, if any.
2.
ID.; ID.; ID.; ID.; ID.; RELIANCE ON TWO (2)
DOCUMENTS SUBMITTED BY THE OFFICE OF THE
OMBUDSMAN AND OFFICE OF SPECIAL PROSECUTOR, NOT
SUFFICIENT FOR PROPER DETERMINATION OF EXISTENCE
OF PROBABLE CAUSE; WARRANT ISSUED NULL AND VOID;

CASE AT BAR. In the instant case, it is undisputed that Respondent

Sandiganbayan had considered only two documents in determining whether
an order of arrest should be issued against the petitioner. These documents
were (a) the June 2, 1992 Resolution of the panel of investigators of the
Office of the Ombudsman, recommending the filing of an information and
(b) the June 16, 1995 Memorandum of the Office of the Special Prosecutor,
finding that no prejudicial question existed for the suspension of the
criminal case. Pursuant to our ruling in Ho, these documents do not suffice
as basis for the judge or court to make a personal and independent
determination of the existence of probable cause. Supporting evidence other
than the report and recommendation of the investigators and the special
prosecutor should have been examined by the respondent court. In view of
this lapse, the warrant issued for the arrest of Petitioner Cojuangco is null
and void.
3.
ID.; ID.; ID.; POSTING OF BOND DESPITE NULLITY OR
IRREGULARITY IN ISSUANCE THEREOF; NOT DEEMED
WAIVER WHERE THERE WAS AN EXPRESS AND CONTINUING
OBJECTION TO COURT'S JURISDICTION; CASE AT BAR. The
posting of a bail bond by the petitioner despite the nullity or irregularity of
the issuance of the warrant for his arrest should not be equated with
"voluntary appearance" as to cloak the respondent court with jurisdiction
over his person. Truly, his ''appearance" in court was not "voluntary." It
should be noted that immediately upon learning of the filing of the
Information and the issuance of the warrant, petitioner filed an "Opposition
to [the] Issuance of [a] Warrant of Arrest with Motion for Leave to File
Motion for Reconsideration of [the] Ombudsman['s] Resolutions." Said
Opposition was based on the inadequacy of the respondent court's basis for
determining probable cause. It was essentially an express and continuing
objection to the court's jurisdiction over his person. Clearly, therefore, in
posting for bail and seeking permission to travel abroad, the petitioner
merely made special appearances in order to obtain immediate urgent
reliefs, without necessarily waiving the graft court's want of jurisdiction. He
merely wanted to avoid incarceration, as he hardly had any choice but to
secure the court's consent whenever he left the country to attend to his
personal and business concerns. Otherwise, petitioner would have been
effectively rendered immobile and worthless until the Sandiganbayan chose

to resolve his case. And, as borne by the records, for three years said court
practically sat on his case (reconsideration of the denial of his Opposition).
Under the circumstances, petitioner's actions should not be construed as a
waiver of his right to object to the nullity of his arrest. With all due respect,
I submit that to rule otherwise as the majority did is most unfair and unjust,
because an accused could be indefinitely detained as a result of the trial
court's expedient of merely sitting on the objection to the issuance of the
warrant.
VITUG, J., concurring:
1.
REMEDIAL LAW; CRIMINAL PROCEDURE; MOTION
TO DISMISS, BREACH OF RIGHT TO SPEEDY DISPOSITION OF
CASE; REQUISITE. A breach of the right of an accused to the speedy
disposition of his case may truly have consequential effects but it is not
enough that there be some procrastination in the proceedings. In order to
justify the dismissal of the criminal case, foreclosing thereby even a
rectification of its handling, it must be established that the proceedings
unquestionably have been marred by vexatious, capricious and oppressive
delays.
2.
ID.; ID.; ARREST; JUDGE MUST PERSONALLY
EVALUATE REPORT AND SUPPORTING DOCUMENTS
SUBMITTED BY PROSECUTOR The issuance of a warrant of arrest
is one of grave responsibility on the part of the issuing judge. While the
judge need not himself examine the complainant and his witnesses, he,
however, must personally evaluate the report and supporting documents
submitted by the prosecutor regarding the existence of probable cause and
only on the basis thereof can he validly and correspondingly issue a warrant
of arrest. The judge may, if he finds it needful, require the submission of
additional affidavits of witnesses or papers to aid him in arriving at a
conclusion on the existence or absence of probable cause.
3.
ID.; ID.; ID.; PROCEDURAL FLAWS IN ISSUANCE
THEREOF DEEMED WAIVED IN POSTING BOND. The
foregoing dictum would, however, be inconsequential in a case when the
person on whom the warrant is served has, in some other way, effectively
submitted himself to the jurisdiction of the court. One such case is by the

posting of bail. The fact that the issuance of the warrant of arrest is assailed
for its procedural flaws before the posting of bail is of little moment since
the arrest relates merely to the jurisdiction of the court which posting
would, of course, only be feasible if the court allowing it would have first
acquired lawful jurisdiction over person at the time.
4.
CONSTITUTIONAL LAW; BILL OF RIGHTS; RIGHT TO
TRAVEL; RESTRICTED WHEN ONE IS FACING CRIMINAL
CHARGES; RESTRICTION TEMPORARILY LIFTED IN CASE AT
BAR. Corollarily, the constitutional right of a person to travel may be
restricted not only because he may be facing criminal charges but also as
being the consequence of the nature and function of a bail. The condition
imposed upon him to make himself available at all times whenever the court
so requires his presence operates as a valid restriction on his right to travel.
Nevertheless, I join the majority of my colleagues in directing the
temporary lifting for the reasons advanced, which I find to be reasonable
and justified, of the ban on travel of petitioner.
DECISION
QUISUMBING, J p:
This petition for prohibition under Section 2 of Rule 65 of the Rules of
Court seeks to dismiss Criminal Case No. 22018 entitled "People of the
Philippines vs. Eduardo M. Cojuangco, Jr., et al.", now pending before
respondent Sandiganbayan (First Division), and to prohibit said court from
further proceeding with the case. Petitioner invokes his constitutional right
to due process, a speedy trial, and a speedy determination of his cases
before all judicial, quasi-judicial and administrative bodies. Further, he
prays for the issuance of a Temporary Restraining Order and/or Writ of
Preliminary Injunction enjoining respondent Sandiganbayan (First Division)
from further enforcing and/or implementing its order dated February 20,
1995, which bans petitioner from leaving the country except upon prior
approval by said court.
Criminal Case No. 22018 is an offshoot of a complaint filed on January 12,
1990, by the Office of the Solicitor General before the Presidential
Commission on Good Government (PCGG), docketed as I.S. No. 74,

against the former Administrator of the Philippine Coconut Authority

(PCA) and the former members of the PCA Governing Board, petitioner
among them, for violation of Republic Act No. 3019, the Anti-Graft and
Corrupt Practices Act, as amended. In said complaint, the respondents were
charged "for having conspired and confederated together and taking undue
advantage of their public positions and/or using their powers, authority,
influence, connections or relationship with the former President Ferdinand
E. Marcos and former First Lady, Imelda Romualdez-Marcos without
authority granted a donation in the amount of Two Million Pesos
(P2,000,000.00) to the Philippine Coconut Producers Federation
(COCOFED), a private entity, using PCA special fund, thereby giving
COCOFED unwarranted benefits, advantage and preference through
manifest partiality, evident bad faith and gross inexcusable negligence to
the grave (sic) and prejudice of the Filipino people and to the Republic of
the Philippines."
Subsequently, however, this Court ruled that all proceedings in the
preliminary investigation conducted by the PCGG were null and void and
the PCGG was directed to transmit the complaints and records of the case to
the Office of the Ombudsman for appropriate action.
In a Resolution dated June 2, 1992, the panel of investigators recommended
the filing of an Information for violation of Section 3(e) of R.A. No. 3019,
as amended, against herein petitioner and five other respondents.
As set out in the Memorandum of the Office of the Special Prosecutor,
subsequently, the following relevant incidents took place:
"The above Resolution dated June 2, 1992 was referred by Assistant
Ombudsman Abelardo L. Aportadera, Jr. to the Office of the Special
Prosecutor for review and if warranted, for the preparation of the criminal
information.
In a Memorandum dated July 15, 1992 the Office of the Special Prosecutor
affirmed the recommendation as contained in the Resolution dated June 2,
1992.

However, on August 19, 1992 then Ombudsman Conrado M. Vasquez

ordered the panel of investigators to discuss the merits of the prejudicial
question posed by respondent Lobregat
In a Memorandum dated November 18, 1992, the panel of investigators
found that Civil Case No. 0033 does not pose a prejudicial question which
will warrant the suspension of the filing of the criminal case.
The aforesaid Memorandum was received by Assistant Ombudsman
Abelardo L. Aportadera on December 1, 1992 who submitted his comment
thereto on December 16, 1992 to then Ombudsman Vasquez.
On December 23, 1992, then Ombudsman Vasquez ordered the panel of
investigators to go to the specifics and not the general averments on issue of
prejudicial question.
In a Memorandum dated December 1, 1993 the panel of investigators
recommended that the motion to suspend proceedings be granted.
On December 3, 1993 then Ombudsman Vasquez referred for comment to
the Office of the Special Prosecutor the Memorandum dated December 1,
1993 of the panel of investigators on the issue of the existence of prejudicial
question.
In a Memorandum dated January 16, 1995, Special Prosecution Officer
Daniel B. Jovacon, Jr. resolved that no prejudicial question exists to warrant
the suspension of the criminal proceedings which recommendation was
approved by then Ombudsman Vasquez on January 26, 1995. The
Information, together with the case record of OMB-0-90-2806, was
forwarded to the Office of the Ombudsman on February 10, 1995.
On February 16, 1995 Criminal Case No. 22018 was filed with the
Sandiganbayan and thereafter raffled to the First Division.
On February 17, 1995, an order for the arrest of petitioner was issued by the
respondent Sandiganbayan.

On February 19, 1995 petitioner filed with respondent court an Opposition

to Issuance of Warrant of Arrest with Motion For Leave To File Motion For
Reconsideration of Ombudsman Resolutions. In his Opposition, petitioner
alleged that since the only documents attached to the Information and
submitted to respondent Sandiganbayan were the Resolution dated June 2,
1992 of the panel of investigators and the Memorandum dated January 16,
1995 of the Office of the Special Prosecutor, the same were not adequate
for the determination of probable cause for the issuance of a warrant of
arrest by respondent Sandiganbayan. Hence, petitioner claims the
respondent Sandiganbayan should recall the warrant of arrest already issued
or desist from issuing a warrant of arrest. Petitioner, avers, furthermore that
the filing of the Information was premature considering that he was not
furnished a copy of the Ombudsman's Resolution in violation of Section 27
of R.A. No. 6770 and prays that he be given leave to file a motion for
reconsideration of the Ombudsman's Resolution dated June 2, 1992 and the
Office of the Special Prosecutor's Memorandum dated January 16, 1995.
On February 22, 1995, petitioner posted bail. On the same day he likewise
filed, through counsel, a Manifestation stating that he was posting bail
without prejudice to the Opposition To Issuance of Warrant of Arrest with
Motion For Leave To File a Motion For Reconsideration of the
Ombudsman's Resolution which he filed.
In a Resolution dated February 20, 1995, the respondent Sandiganbayan
barred petitioner from leaving the country except upon approval of the
court.
In an Order dated February 22, 1995, the respondent Sandiganbayan gave
petitioner and the other accused twenty (20) days to file their respective
motions for reconsideration of the Ombudsman's Resolution with the Office
of the Ombudsman. PCGG was likewise given a similar period within
which to file its comment to the motions for reconsideration. Furthermore,
the respondent Sandiganbayan ordered petitioner to supplement or amplify
his existing motion on the issue of the propriety of the issuance of an Order
of Arrest based merely on the resolution of the Ombudsman in support of
the filing of the Information, among others.

On March 9, 1995, petitioner filed a Memorandum in Amplification of

Opposition To Issuance of Warrant of Arrest.
In a Resolution dated March 14, 1995, petitioner was granted additional
fifteen (15) days or until March 29, 1995 within which to file his motion for
reconsideration with the Office of the Ombudsman.
Petitioner filed his motion for reconsideration on March 28, 1995.
In a Resolution dated April 3, 1995, the respondent Sandiganbayan denied
petitioner's motion seeking the recall of the issuance of the warrant for his
arrest.
On April 7, 1995, petitioner filed a motion for reconsideration of the
Resolution dated April 3, 1995 of the respondent Sandiganbayan.
On May 25, 1995, petitioner was conditionally arraigned pleading not guilty
to the Information. The arraignment was undertaken solely to accommodate
the petitioner in his request to travel pending the determination of probable
cause against him at the reinvestigation stage. The conditional arraignment
is subject to the condition that if petitioner is exonerated at the preliminary
investigation, the arraignment is set aside. On the other hand, should there
be cause against the petitioner either as already charged or a separate charge
which might be related to the case pending, the arraignment will not serve
as basis for the invocation of the right against double jeopardy.

On December 13, 1996 petitioner filed an Urgent Motion To Dismiss

alleging that with the reversal of the earlier findings of the Ombudsman of
probable cause, there was therefore nothing on record before the respondent
Sandiganbayan which would warrant the issuance of a warrant of arrest and
the assumption of jurisdiction over the instant case.
On December 23, 1996 the Office of the Solicitor General, in representation
of the PCGG, filed with the Office of the Special Prosecutor a motion for
reconsideration of the Memorandum dated October 22, 1996 recommending
the dismissal of the case against petitioner and the other accused in
Criminal Case No. 22018.
In an Order dated January 6, 1997, Special Prosecution Officer Victorio U.
Tabanguil merely noted the motion for reconsideration dated December 23,
1996 of the Office of the Solicitor General.
On January 13, 1997, petitioner filed a Motion To Strike Out Alternatively,
Opposition To Complainant's Motion For Reconsideration dated December
23, 1996 alleging that the motion was filed out of time.

In the meantime, in a Memorandum dated October 22, 1995, Special

Prosecution Officer Victorio U. Tabanguil found no probable cause to
warrant the filing against petitioner and the other accused in Criminal Case
No. 22018 and recommended the dismissal of the case. The
recommendation for dismissal was approved by the Honorable Ombudsman
on November 15, 1996.

In an Order dated January 9, 1997, the respondent Sandiganbayan ordered

the prosecution to justify the relationship that may be established with
respect to the COCOFED on one hand and the Philippine Coconut
Authority on the other, as a basis for justifying the position of the
prosecution in this case. Furthermore, upon information provided by
Prosecutor Tabanguil that the Office of the Solicitor General has sought a
reconsideration on the desire of the prosecution to withdraw the
information, the Office of the Solicitor General was given fifteen (15) days
to submit its comment to the Motion to Withdraw Information. The
petitioner and the other accused were given the same period to reply to the
comment if they so desire. After which the matter will be deemed submitted
for resolution.

On December 6, 1996, Special Prosecutor Officer Victorio U. Tabanguil

filed a Manifestation attaching a copy of the Memorandum dated October
22, 1995 with the respondent Sandiganbayan for its consideration.

On January 17, 1997, the prosecution filed its compliance to the Order
dated January 9, 1997. On the other hand, the Office of the Solicitor
General filed its comment on January 24, 1997.

In an Order dated February 4, 1997, the respondent Sandiganbayan ordered

the PCGG lawyers to 'present themselves before the respondent court and
respond to the claim of the OSG that the exhibits necessary are with the
PCGG so that the Republic might effectively substantiate its position that
probable cause exists. Furthermore, it is as much the function of the court to
determine the existence of probable cause and the propriety of the
withdrawal of the Information to be assured that the evidence for the
complainant has been properly presented or the accused is properly
protected at preliminary investigation.'
In an Order dated February 17, 1997, the respondent Sandiganbayan, with
the agreement of the parties, gave the Office of the Solicitor General ten
(10) days within which to submit some form of cataloging and explanation
of the documents on record to the prosecution. On the other hand, the
prosecution was given fifteen (15) days from receipt of the submission
within which to review the matter once more and to respond thereat.
On June 13, 1997, the PCGG filed its Entry of Appearance dated June 3,
1997.
On June 19, 1997, petitioner filed a Second Motion To Resolve the Urgent
Motion To Dismiss dated December 12, 1996.
On July 3, 1997, petitioner filed a Motion to Strike Out (Re: PCGG's Entry
of Appearance) dated June 30, 1997.
On July 16, 1997, the PCGG filed an Opposition to the Motion To Strike
Out (Re: PCGG's Entry of Appearance).
On July 18, 1997, petitioner filed a Reply to the Opposition to Strike Out.
On July 31, 1997, the PCGG filed a Rejoinder to the Reply of petitioner.
On January 23, 1998, petitioner filed a Third Motion To Resolve the Urgent
Motion To Dismiss dated December 12, 1996.
In an Order dated January 26, 1998, respondent Sandiganbayan duly noted
petitioner's Motion to Dismiss."
Hence, the present petition.
On July 22, 1998, the Court issued a resolution requiring respondents to file
their respective comments to the petition.
On August 5, 1998, petitioner filed a motion reiterating his application for
temporary restraining order and/or writ of preliminary injunction with

urgent motion for hearing thereon 6 citing the urgency of lifting the travel
restriction on him in view of the various problems involving the
investments of San Miguel Corporation (SMC) abroad which must be
immediately attended to by petitioner as duly elected Chairman and Chief
Executive Officer of SMC. Petitioner asserts that quite often, it becomes
necessary for him to attend meetings and conferences abroad where
attendance must be confirmed promptly. Considering that he must first
secure the permission of respondent Sandiganbayan before he can travel
abroad and abide by the conditions imposed by said court upon the grant of
such permission, petitioner contends that it becomes impossible for him to
immediately attend to the aforecited tasks.
On September 2, 1998, the Court noted the respective comments to the
petition filed by the Office of the Special Prosecutor and the Solicitor
General and required petitioner to file a consolidated reply within ten (10)
days from notice.
On September 3, 1998, petitioner filed a Second Motion Reiterating
Application for Temporary Restraining Order and/or Writ of Preliminary
Injunction with Urgent Motion for Hearing, arguing among others that the
continued maintenance of the hold-departure order against him has
deleterious consequence not only on him personally but also on San Miguel
Corporation, a publicly listed stock company, of which he is now Chairman
and Executive Officer.
On September 7, 1998, the Court resolved to defer action on the
aforementioned second motion reiterating the application for the issuance of
a temporary restraining order and/or a writ of preliminary injunction until
the filing of petitioner's Consolidated Reply and required the
Sandiganbayan to file its own Comment on the petition in view of the
Comment filed by the Office of the Special Prosecutor divergent from the
position taken by respondent Sandiganbayan.
On September 10, 1998, petitioner filed a Consolidated Reply 11 and
prayed that his Second Application for a Temporary Restraining Order
and/or Writ of Preliminary Injunction with Urgent Motion for hearing dated
September 2, 1998 be now acted upon.

On September 17, 1998, respondent Sandiganbayan filed a motion for

extension of time to file its comment to the petition. Subsequently,
petitioner filed his Third Motion Reiterating Application for Temporary
Restraining Order and/or Writ of Preliminary Injunction with Urgent
Motion for Hearing 12 in view of the urgency of lifting the ban on foreign
travel imposed on him by respondent Sandiganbayan.
After respondent Sandiganbayan filed its comment on October 5, 1998, the
Court in its Resolution dated October 7, 1998, noted the aforesaid comment
and resolved to set the case for oral argument on October 21, 1998.
During the oral argument, the Court suggested that the parties take up in
their arguments the following issues:
"(1)
whether the warrant of arrest issued by respondent Sandiganbayan
is null and void, or should now be lifted if initially valid;
(2)
whether petitioner's basic rights to due process, speedy trial and
speedy disposition of the case have been violated as to warrant dismissal of
Criminal Case No. 22018; and
(3)
whether the ban on foreign travel imposed on petitioner per Order
of February 20, 1995 should be vacated to enable petitioner to go abroad
without prior permission of, and other restrictions imposed by, the
respondent Sandiganbayan."
After hearing the arguments of the parties, the Court resolved to require
them to submit their respective memoranda on the related issues taken up
on the hearing including the merits of the case within twenty (20) days. The
motion of counsel for petitioner that the issue of lifting the ban on foreign
travel imposed on petitioner be resolved first, was, held under advisement.
On November 6, 1998, petitioner filed another Motion to Resolve
Petitioner's, "Motion for Issuance of a Temporary Restraining Order or Writ
of Preliminary Injunction" Enjoining Enforcement of Respondent
Sandiganbayan's Order dated February 20, 1995 (Hold Departure Order)
with an alternative prayer to travel abroad within a period of six (6) months.

In its Resolution dated November 9, 1998, the Court noted the aforesaid
motion and directed petitioner that in the meanwhile, he may address his
request for permission to travel abroad to the Sandiganbayan.
On November 12, 1998, petitioner filed a Motion for Reconsideration of the
Court's resolution dated November 9, 1998 and argued that:
"xxx
xxx
xxx
(6)
While the petitioner may indeed obtain some relief by addressing
his 'prayer for permission to travel abroad to the Sandiganbayan', to a large
extent, this defeats the purpose of the petition because petitioner has
precisely come to the Supreme Court to obtain relief from an oppressive
regime of authorization to travel abroad that the Order of the
Sandiganbayan of February 20, 1995 (Annex 'E', Petition) has imposed
Significantly, not any of the respondents have opposed petitioner's
application for the issuance of temporary restraining order and/or writ of
preliminary injunction or for permission to travel abroad."
On November 20, 1998, petitioner filed a Manifestation in support of his
motion for reconsideration, setting forth the urgency of lifting the ban on
foreign travel imposed on him in view of the need to oversee the critical
stages in the international operations of SMC as its Chairman and Chief
Executive Officer.
On November 20, 1998, the Office of the Solicitor General filed a
Manifestation indicating that it is not interposing any objection to
petitioner's prayer that he be allowed to travel abroad.
With the submission of the parties' respective memoranda, the Court now
proceeds to resolve the petition.
As postulated during the oral argument, three main issues confront us in this
petition, to wit:
"(1)
whether the warrant of arrest issued by respondent Sandiganbayan
is null and void, or should now be lifted if initially valid;
(2)
whether petitioner's basic rights to due process, speedy trial and
speedy disposition of the case have been violated as to warrant dismissal of
Criminal Case No. 22018; and

(3)
whether the ban on foreign travel imposed on petitioner per Order
of February 20, 1995 should be vacated to enable petitioner to go abroad
without prior permission of, and other restrictions imposed by, the
respondent Sandiganbayan."
On the first issue, petitioner and the Office of the Special Prosecutor both
argue that the warrant of arrest issued by respondent Sandiganbayan is null
and void for lack of sufficient basis upon which it could have "personally''
determined the existence of probable cause to issue the warrant of arrest
against him. They contend that there was a violation of Section 2, Article III
of the Constitution because the Information in Criminal Case No. 22018
was accompanied only by the Resolution dated June 2, 1992 of the Panel of
Graft Investigators of the Office of the Ombudsman recommending the
filing of the information and the Memorandum dated January 16, 1995 of
the Office of the Special Prosecutor denying the existence of a prejudicial
question which will warrant the suspension of the filing of the criminal
case. Their argument is principally anchored on the pronouncements made
in the case of Ho vs. People that reliance on the prosecutor's report alone is
not sufficient in determining whether there is probable cause for the
issuance of a warrant of arrest. Consequent to the nullity of the warrant of
arrest, petitioner further argues that the Sandiganbayan has not acquired
jurisdiction over him and is without power to exercise the same.
However, the Office of the Special Prosecutor and the Office of the
Solicitor General maintain that any infirmity that may have attended the
issuance of the warrant of arrest was cured by petitioner's voluntary
submission to the jurisdiction of the respondent Sandiganbayan when
petitioner posted bail and subsequently invoked the jurisdiction of the
Sandiganbayan by filing numerous motions wherein he sought affirmative
reliefs.
Now, pertinent to the issue at hand is the second clause of Section 2, Article
III of the 1987 Constitution, which provides that:
"Sec. 2. . . . no search warrant or warrant of arrest shall issue except upon a
probable cause to be determined personally by the judge after examination
under oath or affirmation of the complainant and the witnesses he may

produce, and particularly describing the place to be searched and the

persons or things to be seized." (Emphasis supplied)
In Ho vs. People, the Court had the opportunity to elucidate on the matter of
determining of probable cause to merit the issuance of a warrant of arrest:
"First, . . . the determination of probable cause by the prosecutor is for a
purpose different from that which is to be made by the judge. Whether there
is reasonable ground to believe that the accused is guilty of the offense
charged and should be held for trial is what the prosecutor passes upon. The
judge, on the other hand, determines whether a warrant of arrest should be
issued against the accused, i.e., whether there is a necessity for placing him
under immediate custody in order not to frustrate the ends of justice. Thus,
even if both should base their findings on one and the same proceeding or
evidence, there should be no confusion as to their distinct objectives.
Second, since their objectives are different, the judge cannot rely solely on
the report of the prosecutor in finding probable cause to justify the issuance
of a warrant of arrest. Obviously and understandably, the contents of the
prosecutor's report will support his own conclusion that there is reason to
charge the accused of an offense and hold him for trial. However, the judge
must decide independently. Hence, he must have supporting evidence, other
than the prosecutor's bare report, upon which to legally sustain his own
findings on the existence (or nonexistence) of a probable cause to issue an
arrest order. This responsibility of determining personally and
independently the existence or nonexistence of probable cause is lodged in
him by no less than the most basic law of the land. Parenthetically, the
prosecutor could ease the burden of the judge and speed up the litigation
process by forwarding to the latter not only the information and his bare
resolution finding probable cause, but also so much of the records and the
evidence on hand as to enable His Honor to make his personal and separate
judicial finding on whether to issue a warrant of arrest.
Lastly, it is not required that the complete or entire records of the case
during the preliminary investigation be submitted to and examined by the
judge. We do not intend to unduly burden trial courts by obliging them to
examine the complete records of every case all the time simply for the
purpose of ordering the arrest of an accused. What is required, rather, is that

the judge must have sufficient supporting documents (such as the

complaint, affidavits, counter-affidavits, sworn statements of witnesses or
transcripts of stenographic notes, if any) upon which to make his
independent judgment or, at the very least, upon which to verify the
findings of the prosecutor as to the existence of probable cause. The point is
he cannot rely solely and entirely on the prosecutor's recommendation, as
Respondent Court did in this case. Although the prosecutor enjoys the legal
presumption of regularity in the performance of his official duties and
functions, which in turn gives his report the presumption of accuracy, the
Constitutions, we repeat, commands the judge to personally determine
probable cause in the issuance of warrants of arrest. This Court has
consistently held that a judge fails in his bounden duty if he relies merely on
the certification or the report of the investigating officer."
As alleged by petitioner, in the case at bar, the Sandiganbayan had two
pieces of documents to consider when it resolved to issue the warrant of
arrest against the accused: (1) the Resolution dated June 2, 1992 of the
Panel of Investigators of the Office of the Ombudsman recommending the
filing of the Information and (2) the Memorandum dated June 16, 1995 of
the Office of the Special Prosecutor denying the existence of a prejudicial
question which will warrant the suspension of the criminal case. The
Sandiganbayan had nothing more to support its resolution.
In Roberts vs. Court of Appeals, 24 we struck down as invalid an order for
the issuance of a warrant of arrest which were based only on ''the
information, amended information and Joint Resolution", without the
benefit of the records or evidence supporting the prosecutor's finding of
probable cause. And in Ho vs. People, we declared that respondent
"palpably committed grave abuse of discretion in ipso facto issuing the
challenged warrant of arrest on the sole basis of the prosecutor's findings
and recommendation, and without determining on its own the issue of
probable cause based on evidence other than such bare findings and
recommendation."
Similarly, we are now constrained to rule that herein respondent court failed
to abide by the constitutional mandate of personally determining the
existence of probable cause before issuing a warrant of arrest. For the two

cited documents were the product of somebody else's determination,

insufficient to support a finding of probable cause by the Sandiganbayan.
Hence, the warrant of arrest issued by respondent court on February 17,
1995 against herein petitioner is palpably invalid.
Consequent to the nullity of the warrant of arrest, the crucial issue now
posed is whether or not respondent Sandiganbayan could still exercise
Jurisdiction over the petitioner and proceed with the trial of the case.
As already adverted to, the Office of the Special Prosecutor and the Office
of the Solicitor General are in agreement, that whatever infirmity might
have attended the issuance of the warrant of arrest against petitioner, it was
cured by petitioner's subsequent act of voluntarily submitting to respondent
court's jurisdiction by posting his bail and filing the following pleadings
which sought affirmative relief, to wit (1) Opposition to Issuance of
Warrant of Arrest with Motion for Leave to File Motion for
Reconsideration; (2) Motion for extension of time to file Motion for
Reconsideration; (3) seven Motions to Travel Abroad and two Motions for
Extension of time to stay abroad. Hence, they contend that respondent
court's jurisdiction over petitioner has remained in effect.
Petitioner objects to this contention, and asserts that "since the warrant of
arrest issued by respondent Sandiganbayan is null and void, it never
acquired jurisdiction over the person of the petitioner; as a consequence, it
never acquired jurisdiction to take cognizance of the offense charged and to
issue any order adverse to the rights of petitioner, including an Order
restricting his right to travel." 28 According to petitioner, the submission of
both the Office of the Special Prosecutor and the Office of the Solicitor
General is not only absurd but also oppressive and offensive to the Bill of
Rights since it would mean that to preserve his right against the issuance of
a warrant of arrest without probable cause determined in accordance with
Sec. 2, Article III of the Constitution, petitioner should have allowed
himself to be incarcerated or imprisoned from the time the warrant of arrest
was issued on February 20, 1995 up to the present, or for more than three
(3) years now, and continue to be imprisoned until the Supreme Court
decides to declare the arrest void.

On this score, the rule is well-settled that the giving or posting of bail by the
accused is tantamount to submission of his person to the jurisdiction of the
court. Thus, it has been held that:
"When a defendant in a criminal case is brought before a competent court
by virtue of a warrant of arrest or otherwise, in order to avoid the
submission of his body to the jurisdiction of the court he must raise the
question of the court's jurisdiction over his person at the very earliest
opportunity. If he gives bail, demurs to the complaint or files any dilatory
plea or pleads to the merits, he thereby gives the court jurisdiction over his
person. (State ex rel. John Brown vs. Fitzgerald, 51 Minn., 534)''
xxx
xxx
xxx
"Conceding again that the warrant issued in this case was void for the
reason that no probable cause was found by the court before issuing it, the
defendant waived all his rights to object to the same by appearing and
giving bond."
By posting bail, herein petitioner cannot claim exemption from the effect of
being subject to the jurisdiction of respondent court. While petitioner has
exerted efforts to continue disputing the validity of the issuance of the
warrant of arrest despite his posting bail, his claim has been negated when
he himself invoked the jurisdiction of respondent court through the filing of
various motions that sought other affirmative reliefs.
As ruled in La Naval Drug vs. CA:
"[L]ack of jurisdiction over the person of the defendant may be waived
either expressly or impliedly. When a defendant voluntarily appears, he is
deemed to have submitted himself to the jurisdiction of the court. If he so
wishes not to waive this defense; he must do so seasonably by motion for
the purpose of objecting to the jurisdiction of the court; otherwise, he shall
be deemed to have submitted himself to that jurisdiction."
Moreover, "[w]here the appearance is by motion for the purpose of
objecting to the jurisdiction of the court over the person, it must be for the
sole and separate purpose of objecting to said jurisdiction. If the appearance
is for any other purpose, the defendant is deemed to have submitted himself
to the jurisdiction of the court. Such an appearance gives the court
jurisdiction over the person."

Verily, petitioner's participation in the proceedings before the

Sandiganbayan was not confined to his opposition to the issuance of a
warrant of arrest but also covered other matters which called for respondent
court's exercise of its jurisdiction. Petitioner may not be heard now to deny
said court's jurisdiction over him. Nor can we ignore the long line of
precedents declaring that where the accused had posted bail, as required, to
obtain his provisional liberty, "it becomes futile to assail the validity of the
issuance of the warrants of arrest."
As to petitioner's contention that he should have just allowed himself to stay
in jail pending the resolution of his opposition to the issuance of the warrant
of arrest against him, if only to avoid waiving his right to question the
jurisdiction of respondent court, the Office of the Special Prosecutor has
pointed out that petitioner is not without a remedy. Petitioner could have
filed a petition for certiorari and prohibition with prayer for the issuance of
a temporary restraining order, rather than actively participate in the
proceedings before the Sandiganbayan. And as exemplified by the case of
Allado vs. Diokno this remedy has already proved to be effective.
Against the continued exercise of jurisdiction by respondent Sandiganbayan
in Criminal Case No. 22018, petitioner also invokes the Memorandum of
the Office of the Special Prosecutor dated October 22, 1995 recommending
the dismissal of the case against him due to the absence of probable cause,
which was later on approved by the Ombudsman on November 15, 1996.
Citing the case of Torralba vs. Sandiganbayan, petitioner argues that this
Memorandum is an integral part of the preliminary investigation and should
take precedence notwithstanding the fact that the same was made after the
filing of the Information before the Sandiganbayan, for to deny any efficacy
to the finding of the Office of the Special Prosecutor would negate the right
of the petitioner to a preliminary investigation.
The well-entrenched rule however, as laid down by the case of Crespo vs.
Mogul is that:
". . . once a complaint or information is filed in Court any disposition of the
case as its dismissal or the conviction or acquittal of the accused rests in the
sound discretion of the Court. Although the fiscal retains the direction and
control of the prosecution of criminal cases even while the case is already in
Court he cannot impose his opinion on the trial court. The Court is the best

and sole judge on what to do with the case before it. The determination of
the case is within its exclusive jurisdiction and competence. A motion to
dismiss the case filed by the fiscal should be addressed to the Court who has
the option to grant or deny the same. It does not matter if this is done before
or after the arraignment of the accused or that the motion was filed after a
reinvestigation or upon instructions of the Secretary of Justice who
reviewed the records of the investigation."
Nevertheless, petitioner claims exception to this rule by making this
distinction:
"b.
The preliminary investigation in Crespo vs. Mogul, supra, was
conducted by the Office of the Provincial Fiscal and, following established
procedure with respect to such preliminary investigations, the preliminary
investigation conducted by the fiscal, in the language of Crespo, is
'terminated upon the filing of the information in the proper court' (at p.
470). On the other hand, the instant case involves a preliminary
investigation conducted by the Office of the Special Prosecutor pursuant to
Sec. 11[4](a), and under Sec. 27 of R.A. No. 6770. In preliminary
investigations conducted by the Office of the Special Prosecutor, the
respondent has the right to file a motion for reconsideration of any
resolution within five (5) days from receipt of written notice, and pursuant
to Sec. 7, Rule II of Administrative Order No. 7 (Rules of Procedure of the
Ombudsman), the respondent has the right to file a motion for
reconsideration within fifteen (15) days from notice of the Resolution of the
Ombudsman. Until the motion for reconsideration is resolved, preliminary
investigation is not terminated notwithstanding filing of information in
court. In the instant case, no copy of the Resolution of the Office of the
Special Prosecutor which brought about the filing of the Information, was
served on the petitioner; consequently, when the Information was filed, the
preliminary investigation had not yet been terminated. It follows that the
Resolution of the Office of the Special Prosecutor (approved by the
Ombudsman) resolving in petitioner's favor the 'Motion for
Reconsideration' he had filed, now finding no probable cause, was an
integral part of the preliminary investigation, not subject to review by the
Sandiganbayan (see Torralba vs. Sandiganbayan, 230 SCRA 33 [1994])"

Petitioner's reliance on Torralba vs. Sandiganbayan is not, in our view,

persuasive. In that case the petitioners were not given any chance at all to
seek reconsideration from the Ombudsman's final resolution because they
were not furnished with a copy of the final resolution of the Ombudsman
that could have enabled them to file a motion for reconsideration. As a
result, the Court declared that "petitioners were not only effectively denied
the opportunity to file a motion for reconsideration of the Ombudsman's
final resolution but also deprived of their right to a full preliminary
investigation preparatory to the filing of the information against them".
In the case at bar, however, notwithstanding the filing of the Information
before the Sandiganbayan, petitioner was able to file a motion for
reconsideration of the Ombudsman's Resolution with leave of court, and in
fact his two motions for extensions to file the same were granted by the
respondent court. This eventually paved the way for the filing of subsequent
Memorandum of the Office of the Special Prosecutor, which was later on
approved by the Ombudsman, recommending the dismissal of the case
against him. However, since the Information has already been filed before
the Sandiganbayan, the resolution of the aforesaid recommendation now
lies within the jurisdiction and discretion of respondent court.
Parenthetically, in the Torralba case, we did not altogether deprive the
Sandiganbayan of its jurisdiction to proceed with the case, despite the
defect in the conduct of the preliminary investigation, since we declared
that:
"The incomplete preliminary investigation in this case, however, does not
warrant the quashal of the information, nor should it obliterate the
proceedings already had. Neither is the court's jurisdiction nor validity of an
information adversely affected by deficiencies in the preliminary
investigation. Instead, the Sandiganbayan is to hold in abeyance any further
proceedings therein and to remand the case to the Office of the Ombudsman
for the completion of the preliminary investigation, the outcome of which
shall then be indorsed to Sandiganbayan for its appropriate action."
(Emphasis supplied)

Clearly, consistent with the rule in Crespo vs. Mogul, after the filing of the
information in court, "any disposition of the case as to its dismissal or the
conviction or acquittal of the accused rests in the sound discretion of the
Court."
Proceeding now to the second issue, petitioner maintains that the long delay
that characterized the proceedings in Criminal Case No. 22018 before
respondent Sandiganbayan has resulted in the violation of his Constitutional
right to a speedy trial and a speedy determination of his case. Thus,
petitioner submits that:
"4.09. It has been more than three (3) years since the Information in
Criminal Case No. 22018 was filed with respondent Sandiganbayan. More
than one and a half () years have elapsed since the Office of the Special
Prosecutor filed its Manifestation seeking the dismissal of the case. Based
on the Office of the Special Prosecutor's finding of the absence of probable
cause, petitioner filed on December 13, 1996, an 'Urgent Motion To
Dismiss'. Three times, on March 24, 1997, June 18, 1997 and January 23,
1998, petitioner has sought resolution of his 'Urgent Motion To Dismiss'.
These notwithstanding, the dismissal of the information as to petitioner
remains pending and petitioner continues to be under criminal indictment
constrained to suffer without justification in law and the Constitution,
the humiliation, the restraints to liberty and the tormenting anxieties of an
accused."
Respondents concede that there has indeed been some delay but deny that it
amounted to a violation of petitioner's right of speedy disposition of his
case. They cite as justification the reorganization of the Sandiganbayan on
September 23, 1997 wherein it was reconstituted into five (5) Divisions; 44
(2) the filing of motions by petitioner seeking affirmative reliefs from the
Sandiganbayan; (3) the failure of petitioner himself to invoke his right to
speedy resolution of his pending motions prior to the filing of this petition;
(4) the heavy caseload of respondent court.
The right to a speedy disposition of a case, like the right to speedy trial, is
deemed violated only when the proceeding is attended by vexatious,
capricious, and oppressive delays. It should be emphasized that the factors
that must be taken into account in determining whether this constitutional

rights has been violated are as follows: (1) the length of delay, (2) the
reason for such delay and (3) the assertion or failure to assert such right by
the accused, and the prejudice caused by the delay.
As in previous occasions, the Court takes judicial cognizance of the fact that
structural reorganizations 49 and the ever increasing case load of courts
have adversely affected the speedy disposition of the cases pending before
them.
In the instant case, however, the Court finds that delay concerns the
resolution of petitioner's "Urgent Motion to Dismiss", which is an offshoot
of the Memorandum of the Office of the Special Prosecutor recommending
the dismissal of the case. Such delay is now far from excusable. Petitioner's
Motion to Dismiss has been filed as early as December 13, 1996 and, on
three occasions, petitioner has moved for the urgent resolution of this
motion. What further militates against further delay in resolving this case is
the fact that the government prosecutors themselves concede that this case
is of paramount importance, involving as it does "the recovery of the illgotten wealth or government funds, unlawfully used or misused by persons
close or perceived to be close to the Marcoses''. Respondent court declared
in its Order dated February 17, 1997 that the matter would be deemed
submitted for resolution upon compliance with the Office of the Special
Prosecutor as to whether there is indeed no probable cause against
petitioner, which compliance was submitted by the Office of the Special
Prosecutor on March 17, 1997. 53 Under these circumstances, the Court
does find the period of more than one year that elapsed for resolving
petitioner's motion to dismiss quite long, considering that all pertinent
pleadings required by the Sandiganbayan were already submitted.
Even if petitioner himself might have contributed to said delay, as
contended by respondents, in our view it is best that the case be resolved on
the merits by the Sandiganbayan with due regard to petitioner's right to due
process, speedy trial and speedy disposition of the case against him and his
co-accused.
Finally, with respect to the issue of whether or not the ban on foreign travel
should be continued, as imposed on petitioner by respondent

Sandiganbayan per its Order dated February 20, 1995 with accompanying
restrictions in effect, we resolve to rule in the negative. The travel ban
should be lifted, considering all the circumstances now prevailing.
The rule laid down by this Court is that a person facing a criminal
indictment and provisionally released on bail does not have an unrestricted
right to travel, the reason being that a person's right to travel is subject to
the usual constraints imposed by the very necessity of safeguarding the
system of justice. But, significantly, the Office of the Solicitor General in its
Manifestation dated November 20, 1998 indicated that it is not interposing
any objection to petitioner's prayer that he be allowed to travel abroad based
on the following considerations:
". . . (1) that it is well within the power of this Court to suspend its own
rules, including the second paragraph, Section 23, Rule 114 of the Rules of
Court; (2) that it has been shown in the past that the petitioner has always
returned to the Philippines after the expiration of the period of his allowed
travel; and (3) that petitioner, now Chairman of the Board of San Miguel
Corporation, may be constrained to leave the country for business purposes,
more often than he had done in the past, . . .
It however recommended that the period of travel should be reduced to
three (3) months instead of six (6) months as requested by petitioner and
that the latter should be required to post an additional cash bond equivalent
to the present cash bond posted by him.
Moreover, prescinding from our initial declaration that the issuance of
warrant of arrest against petitioner by respondent court is invalid, it now
becomes necessary that there be strong and compelling reasons to justify
the continued restriction on petitioner's right to travel abroad. Admittedly,
all of petitioner's previous requests to travel abroad has been granted and
that, as confirmed by the Office of the Solicitor General, that petitioner has
always returned to the Philippines and complied with the restrictions
imposed on him. The necessity of further denying petitioner's right to travel
abroad, with attendant restrictions, appears less than clear. The risk of flight
is further diminished in view of petitioner's recent reinstatement as
Chairman and Chief Executive Officer of San Miguel Corporation, though
he has now more justification to travel so as to oversee the entire operations

of that company. In this regard, it has to be conceded that his assumption of

such vital post has come at a time when the current economic crisis has
adversely affected the international operations of many companies,
including San Miguel. The need to travel abroad frequently on the part of
petitioner, to formulate and implement the necessary corporate strategies
and decisions, could not be forestalled. These considerations affecting the
petitioner's duties to a publicly held company, militate against imposing
further restrictions on petitioner's right to travel abroad.
WHEREFORE, the Court hereby resolves to DISMISS the petition insofar
as the dismissal of Criminal Case No. 22018 against the petitioner is
concerned. Respondent Sandiganbayan (First Division) is hereby ordered to
proceed with the resolution of the pending motions and incidents in
Criminal Case No. 22018 with utmost dispatch. Meanwhile, the Resolution
of the Sandiganbayan (First Division), dated February 20, 1995 imposing a
ban on petitioner's travel abroad without its prior approval pending the
resolution of Criminal Case No. 22018 is, for the reasons heretofore
advanced, hereby LIFTED for a period of three (3) months counted from
the finality of this decision. Any similar request during the pendency of said
case before the Sandiganbayan shall be addressed to that court.
No pronouncement as to costs.
SO ORDERED.
Davide, Jr., C .J ., concurs.
Melo, J ., took no part.
Separate Opinions
VITUG, J ., concurring:
The pivotal issue proffered in the Petition for Prohibition seeking (a) the
dismissal of Criminal Case No. 22018 against petitioner pending with the
Sandiganbayan and (b) to prevent the latter from further proceeding with
the case is the claim made by petitioner of an impairment of his
constitutional right to the speedy disposition of his case. I share the view
reached by Mr. Justice Leonardo A Quisumbing that the petition should be
denied. A breach of the right of an accused to the speedy disposition of his
case may truly have consequential effects but it is not enough that there be

some procrastination in the proceedings. In order to justify the dismissal of

the criminal case, foreclosing thereby even a rectification of its handling, it
must be established that the proceedings unquestionably have been marred
by vexatious, capricious and oppressive delays. Hence, this Court has
stressed in one case:
"It must be here emphasized that the right to a speedy disposition of a case,
like the right to speedy trial, is deemed violated only when the proceeding is
attended by vexatious, capricious, and oppressive delays; or when
unjustified postponements of the trial are asked for and secured, or when
without cause or justifiable motive a long period of time is allowed to
elapse without the party having his case tried. Equally applicable is the
balancing test used to determine whether a defendant has been denied his
right to a speedy trial, or a speedy disposition of a case for that matter, in
which the conduct of both the prosecution and the defendant are weighed,
and such factors as length of the delay, reason for the delay, the defendant's
assertion or non-assertion of his right, and prejudice to the defendant
resulting from the delay, are considered."
Petitioner additionally scores on the fact that respondent Sandiganbayan
issued the warrant for his arrest based solely on the 2nd June 1992
Resolution of the Office of the Ombudsman and the 16th January 1995
Memorandum of the Office of the Special Prosecutor. He has a point. The
issuance of warrant of arrest is one of grave responsibility on the part of the
issuing judge. While the judge need not himself examine the complainant
and his witnesses, he, however, must personally evaluate the report and
supporting documents submitted by the prosecutor regarding the existence
of probable cause and, only on the basis thereof can he validly and
correspondingly issue a warrant of arrest. The judge may, if he finds it
needful, require the submission of additional affidavits of witnesses or
papers to aid him in arriving at a conclusion on the existence or absence of
probable cause. 3 In Ho vs. People, 4 the Court, positing that the issuing
judge must have sufficient supporting documents, besides the bare report of
the prosecutor, upon which to make an independent judgment, has said:
". . . (T)he judge cannot rely solely on the report of the prosecutor in finding
probable cause to justify the issuance of a warrant of arrest. Obviously and
understandably, the contents of the prosecutor's report will support his own

conclusion that there is reason to charge the accused of an offense and hold
him for trial. However, the judge must decide independently. Hence, he
must have supporting evidence, other than the prosecutor's bare report, upon
which to legally sustain his own findings on the existence (or nonexistence)
of probable cause to issue an arrest order. This responsibility of determining
personally and independently the existence or nonexistence of probable
cause is lodged in him by no less than the most basic law of the land.
Parenthetically, the prosecutor could ease the burden of the judge and speed
up the litigation process by forwarding to the latter not only the information
and his bare resolution finding probable cause, but also so much of the
records and the evidence on hand as to enable His Honor to make his
personal and separate judicial finding on whether to issue a warrant of
arrest."
"Lastly, it is not required that the complete or entire records of the case
during the preliminary investigation be submitted to and examined by the
judge. We do not intend to unduly burden trial courts by obliging them to
examine the complete records of every case all the time simply for the
purpose of ordering the arrest of an accused. What is required, rather, is that
the judge must have sufficient supporting documents (such as the
complaint, affidavits, counter-affidavits, sworn statements of witnesses or
transcripts of stenographic notes, if any) upon which to make his
independent judgment or, at the very least, upon which to verify the
findings of the prosecutor as to the existence of probable cause. The point
is: he cannot rely solely and entirely on the prosecutor's recommendation, as
Respondent Court did in this case. Although the prosecutor enjoys the legal
presumption of regularity in the performance of his official duties and
functions, which in turn gives his report the presumption of accuracy, the
Constitution, we repeat, commands the judge to personally determine
probable cause in the issuance of warrants of arrest. This Court has
consistently held that a judge fails in his bounden duty if he relies merely on
the certification or the report of the investigating officer."
The foregoing dictum would, however, be inconsequential in a case when
the person on whom the warrant is served has, in some other way,
effectively submitted himself to the jurisdiction of the court. One such case
is by the posting of bail. The fact that the issuance of the warrant of arrest is

assailed for its procedural flaws before the posting of bail is of little
moment since the arrest relates merely to the jurisdiction of the court which
posting would, of course, only be feasible if the court allowing it would
have first acquired lawful jurisdiction over person at the time.
In Callanta vs. Villanueva 7 the Court had occasion to state:
"With the express admission by petitioner that she had posted the required
bail to obtain her provisional liberty, it becomes futile to assail the validity
of the issuance of the warrants of arrest. This excerpt from the opinion of
Justice Sanchez in Zacarias vs. Cruz [30 SCRA 728] finds pertinence:
'Posting of a bail bond constitutes waiver of any irregularity attending the
arrest of a person, estops him from discussing the validity of his arrest. In
the recent case of Luna vs. Plaza . . ., our ruling is that where petitioner has
filed an application for bail and waived the preliminary investigation
proper, 'he waived his objection to whatever defect, if any, in the
preliminary examination conducted . . . prior to the issuance of the warrant
of arrest.' [26 SCRA 310] As a matter of fact, such a doctrine goes back to
People vs. Olandag [92 Phil. 286], the opinion being rendered by former
Chief Justice Paras. After Zacarias, mention may be made of three other
decisions, Bermejo vs. Barrios [31 SCRA 764]; People vs. La Caste [37
SCRA 767], and Manzano vs. Villa [46 SCRA 711]. The latest case in point
is People vs. Obngayan [55 SCRA 465] where this Court, through Justice
Antonio, after referring to Luna vs. Plaza, again reiterated the ruling 'that
where the accused has filed bail and waived the preliminary investigation
proper, he has waived whatever defect, if any, in the preliminary
examination conducted prior to the issuance of the warrant of arrest [Ibid.,
471]."
In People vs. Nazareno, 8 reiterated in People vs. Timon, 9 the Court again
declared:
". . . [The accused] waived objections based on the alleged irregularity of
their arrest, considering that they pleaded not guilty to the charges against
them and participated in the trial. Any defect in their arrest must be deemed
cured when they voluntarily submitted to the jurisdiction of the court. For
the legality of an arrest affects only the jurisdiction of the court over the
person of the accused. Consequently, if objections based on this ground are
waived, the fact that the arrest was illegal is not a sufficient cause for setting

aside an otherwise valid judgment rendered after a trial, free from error. The
technicality cannot render the subsequent proceedings void and deprive the
State of its right to convict the guilty when all the facts on record point to
the culpability of accused."
Corollarily, the constitutional right of a person to travel may be restricted
not only because he may be facing criminal charges but also as being the
consequence of the nature and function of a bail. The condition imposed
upon him to make himself available at all times whenever the court so
requires his presence operates as a valid restriction on his right to travel. 10
Nevertheless, I join the majority of my colleagues in directing the
temporary lifting for the reasons advanced, which I find to be reasonable
and justified, of the ban on travel of petitioner.
WHEREFORE, I vote to deny the petition and to order the lifting of the ban
on petitioner to travel for the period and under the conditions expressed in
the ponencia.
PANGANIBAN, J ., concurring:
I concur with the well-written ponencia of Mr. Justice Leonardo A.
Quisumbing insofar as it declares null and void the Sandiganbayan's
warrant of arrest against Petitioner Cojuangco, but beg to disagree with the
majority view that despite the nullity of the arrest order, the graft court still
acquired jurisdiction over petitioner. I respectfully submit that all
proceedings and orders issued by the Sandiganbayan, especially its
Resolution dated February 20, 1995, barring petitioner from leaving the
country without its prior approval, are likewise void for want of jurisdiction.
Hence, the case should be remanded to the Sandiganbayan for a proper
determination of whether a warrant of arrest could be issued pursuant to the
Constitution and upon satisfaction of the requisites therefor as laid down in
Ho v. People.
Nullity of the Warrant of Arrest
With an analysis of case law as backdrop, the Court en banc indeed
categorically declared in Ho that a judge cannot issue a warrant of arrest
with only the prosecutor's findings and recommendation as bases for
determining probable cause. No less than the Constitution mandates in no
uncertain terms that "no . . . warrant of arrest shall issue except upon

probable cause to be determined personally by the judge after examination

under oath or affirmation of the complainant and the witnesses he may
produce . . ." This clause unequivocally means that the judge must make his
own determination independent of that of the prosecution of whether
there is probable cause to issue a warrant of arrest, based on the
complainant's and his witnesses' accounts, if any.
In the instant case, it is undisputed that Respondent Sandiganbayan had
considered only two documents in determining whether an order of arrest
should be issued against the petitioner. These documents were (a) the June
2, 1992 Resolution of the panel of investigators of the Office of the
Ombudsman, recommending the filing of an information and (b) the June
16, 1995 Memorandum of the Office of the Special Prosecutor, finding that
no prejudicial question existed for the suspension of the criminal case.
Pursuant to our ruling in Ho, these documents do not suffice as basis for the
judge or court to make a personal and independent determination of the
existence of probable cause. Supporting evidence other than the report and
recommendation of the investigators and the special prosecutor should have
been examined by the respondent court. In view of this lapse, the warrant
issued for the arrest of Petitioner Cojuangco is null and void.
Sandiganbayan Without Jurisdiction over Petitioner
As consequence of the nullity of the warrant of arrest, the Sandiganbayan
did not acquire jurisdiction over the petitioner.
The posting of a bail bond by the petitioner despite the nullity or irregularity
of the issuance of the warrant for his arrest should not be equated with
"voluntary appearance" as to cloak the respondent court with jurisdiction
over his person. Truly, his "appearance" in court was not "voluntary." It
should be noted that immediately upon learning of the filing of the
Information and the issuance of the warrant, petitioner filed an "Opposition
to [the] Issuance of [a] Warrant of Arrest with Motion for Leave to File
Motion for Reconsideration of [the] Ombudsman['s] Resolutions." Said
Opposition was based on the inadequacy of the respondent court's basis for
determining probable cause. It was essentially an express and continuing
objection to the court's jurisdiction over his person.

When petitioner posted his bail bond, he expressly manifested at the same
time that such was "without prejudice" to his Opposition. Subsequent
thereto, he also filed a Memorandum in Amplification of said Opposition.
When the graft court refused to recall the warrant, petitioner moved for a
reconsideration. And following the filing by the Office of the Ombudsman,
after reinvestigation, of a manifestation that there was no probable cause to
charge petitioner, he moved for the dismissal of the case on the ground that
"with the reversal of the earlier findings of the Ombudsman of probable
cause, there was therefore nothing on record before the respondent
Sandiganbayan which would warrant the issuance of a warrant of arrest and
the assumption of jurisdiction over the instant case." Petitioner's actions
more than conveyed his persistent objection to his arrest and, consequently,
to the court's authority over his person.
Furthermore, when he was arraigned, it was solely for the purpose of
accommodating his request to travel, in view of the Sandiganbayan order
barring him from leaving the country without its prior approval. His
"conditional arraignment," in the words of the Sandiganbayan itself, was
"subject to the condition that if petitioner is exonerated at the preliminary
investigation, the arraignment is set aside." Moreover, it was "being
undertaken solely to accommodate the accused in his request to travel
pending determination of probable cause against him at reinvestigation."
Clearly, therefore, in posting for bail and seeking permission to travel
abroad, the petitioner merely made special appearances in order to obtain
immediate urgent reliefs, without necessarily waiving the graft court's want
of jurisdiction. 6 He merely wanted to avoid incarceration, as he hardly had
any choice but to secure the court's consent whenever he left the country to
attend to his personal and business concerns. Otherwise, petitioner would
have been effectively rendered immobile and worthless until the
Sandiganbayan chose to resolve his case. And, as borne by the records, for
three years said court practically sat on his case (reconsideration of the
denial of his Opposition). Under the circumstances, petitioner's actions
should not be construed as a waiver of his right to object to the nullity of his
arrest. With all due respect, I submit that to rule otherwise as the majority
did is most unfair and unjust, because an accused could be indefinitely

detained as a result of the trial court's expedient of merely sitting on the

objection to the issuance of the warrant.
I submit that the case should be remanded to the Sandiganbayan. The
respondent court may require the prosecutor to submit evidence on file
sufficient for the former to determine probable cause for the issuance of an
arrest warrant; or the latter himself may voluntarily submit such evidence
gathered during his investigation.
This procedure may appear cumbersome and unduly harsh on the
prosecution, but the Constitution commands it. The Court, as the guardian
of the basic law, is thus left with no choice but to enforce the provision.
WHEREFORE, I vote to GRANT the petition to DECLARE the
Sandiganbayan to be without jurisdiction over Petitioner Cojuangco in
Criminal Case No. 22018 and to REMAND the case to said court for a
proper determination of whether a warrant of arrest should be issued,
pursuant to the Constitution and the requisites laid down in Ho v. People.

DIOSDADO JOSE ALLADO and ROBERTO L. MENDOZA,

petitioners,
vs. HON. ROBERTO C. DIOKNO, Presiding Judge, Br. 62, Regional
Trial Court, Makati, Metro Manila, and PRESIDENTIAL ANTI-CRIME
COMMISSION, respondents.
G.R. No. 113630
May 5, 1994
SYLLABUS
1.
POLITICAL LAW; CONSTITUTION; WARRANT OF
ARREST; REQUISITES FOR ISSUANCE. Section 2, Art. III of the
1987 Constitution, lays down the requirements for the issuance of a warrant
of arrest, i.e., a warrant of arrest shall issue only upon probable cause to be
determined personally by the judge after examination under oath or
affirmation of the complainant and the witnesses he may produce.
2.
ID.; ID.; ID.; PROBABLE CAUSE DEFINED. As early as
1915, in Buchanan v. Viuda de Esteban, (32 Phil. 363 [1915]) this Court
speaking through Associate Justice Sherman Moreland defined probable
cause as "the existence of such facts and circumstances as would excite the
belief, in a reasonable mind, acting on the facts within the knowledge of the
prosecutor, that the person charged was guilty of the crime for which he
was prosecuted." Probable cause for an arrest or for the issuance of a
warrant of arrest has been defined as such facts and circumstances which
would lead a reasonably discreet and prudent man to believe that an offense
has been committed by the person sought to be arrested. And as a protection
against false prosecution and arrest, it is the knowledge of facts, actual or
apparent, strong enough to justify a reasonable man in the belief that he has
lawful grounds for arresting the accused.
3.
ID.; ID.; ID.; ID.; STANDARD FOR DETERMINATION OF
ITS EXISTENCE. Pilapil v. Sandiganbayan (221 SCRA 349 [1993])
sets a standard for determining the existence of probable cause. While it
appears in that case that we have granted the prosecutor and the trial judge
seemingly unlimited latitude in determining the existence or absence of
probable cause by affirming the long-standing procedure that they can base

their findings merely on their personal opinion and reasonable belief, yet,
this permissiveness should not be interpreted as giving them arbitrary
powers and letting them loose in the determination of the existence of
probable cause, a delicate legal question which can result in the harassment
and deprivation of liberty of the person sought to be charged or arrested. . . .
Good faith is not enough. If subjective good faith alone were the test, the
constitutional protection would be demeaned and the people would be
"secure in their persons, houses, papers and effects" only in the fallible
discretion of the judge. On the contrary, the probable cause test is an
objective one, for in order that there be probable cause the facts and
circumstances must be such as would warrant a belief by a reasonably
discreet and prudent man that the accused is guilty of the crime which has
just been committed.
4.
ID.; ID.; ID.; ID.; ID.; DUTIES OF A TRIAL JUDGE
BEFORE ISSUING A WARRANT OF ARREST; NOT COMPLIED
WITH IN CASE AT BAR. Before issuing a warrant of arrest, the judge
must satisfy himself that based on the evidence submitted there is sufficient
proof that a crime has been committed and that the person to be arrested is
probably guilty thereof. In the Order of respondent judge dated 11 February
1994, it is expressly stated that probable cause exists; and therefore, a
warrant of arrest should be issued." However, we are unable to see how
respondent judge arrived at such ruling. We have painstakingly examined
the records and we cannot find any support for his conclusion. On the
contrary, we discern a number of reasons why we consider the evidence
submitted to be insufficient for a finding of probable cause against
petitioners. . . . Verily, respondent judge committed grave abuse of
discretion in issuing the warrant for the arrest of petitioners it appearing that
he did not personally examine the evidence nor did he call for the
complainant and his witnesses in the face of their incredible accounts.
Instead, he merely relied on the certification of the prosecutors that
probable cause existed. For, otherwise, he would have found out that the
evidence thus far presented was utterly insufficient to warrant the arrest of
petitioners. In this regard, we restate the procedure we outlined in various
cases we have already decided, in Soliven v. Makasiar, (G.R. Nos. 82585,
82827 and 83979, 14 November 1988, 167 SCRA 393); in People v. Inting,
(G.R. No. 88919, 25 July 1990, 87 SCRA 788); and in Lim v. Felix (G.R.

Nos. 92466-69, 19 February 1991, 187 SCRA 292). . . . Hence, if upon the
filing of the information in court the trial judge, after reviewing the
information and the documents attached thereto, finds that no probable
cause exists must either call for the complainant and the witnesses
themselves or simply dismiss the case. There is no reason to hold the
accused for trial and further expose him to an open and public accusation of
the crime when no probable cause exists.
5.
REMEDIAL
LAW;
EVIDENCE;
WEIGHT
AND
SUFFICIENCY;
EXTRAJUDICIAL
CONFESSION,
UNCORROBORATED BY CORPUS DELICTI; CASE AT BAR.
The Presidential Anti-Crime Commission relies heavily on the sworn
statement of Security Guard Umbal who supposedly confessed his
participation in the alleged kidnapping and murder of Van Twest. For one,
there is serious doubt on Van Twest's reported death since the corpus delicti
has not been established, nor have his remains recovered. . . . In this regard,
we are reminded of the leading case of U.S. v. Samarin (1 Phil. 239 [1902])
decided ninety-two years ago where this Court ruled that when the supposed
victim is wholly unknown, his body not found, and there is but one witness
who testifies to the killing, the corpus delicti is not sufficiently proved.
6.
ID.; ID.; ID.; ID.; DESTRUCTION OF HUMAN BODY
HIGHLY IMPROBABLE IN CASE AT BAR. Umbal's claim that
Van Twest was completely burned into ashes with the use of gasoline and
rubber tires from around ten o'clock in the evening to six o'clock the next
morning is highly improbable, if not ridiculous. A human body cannot be
pulverized into ashes by simply burning it with the use of gasoline and
rubber tires in an open field. Even crematoria use entirely closed
incinerators where the corpse is subjected to intense heat. Thereafter, the
remains undergo a process where the bones are completely ground to dust.
In the case of Van Twest, there is not even any insinuation that earnest
efforts were exerted to recover traces of his remains from the scene of the
alleged cremation. Could it be that the government investigators did go to
the place of cremation but could not find any? Or could it be that they did
not go at all because they knew that there would not be any as no burning
ever took place? To allege then that the body of Van Twest was completely

burned to ashes in an open field with the use merely of tires and gasoline is
a tale too tall to gulp.
7.
ID.; ID.; ID.; ID.; ID.; EVEN LAWYER DOUBTED
CLIENT'S DEATH IN CASE AT BAR. Strangely, if not awkwardly,
after Van Twest's reported abduction on 16 June 1992 which culminated in
his decimation by cremation, his counsel continued to represent him before
judicial and quasi-judicial proceedings. Thus on 31 July 1992, his counsel
filed in his behalf a petition for review before this Court, docketed as G.R.
No. 106253, and on 18 March 1993, a memorandum before the Securities
and Exchange Commission in SEC Case No. 3896. On 26 November 1993,
during the preliminary investigation conducted by the panel of prosecutors,
counsel again manifested that "even then and even as of this time, I stated in
my counter-affidavit that until the matter of death is to be established in the
proper proceedings, I shall continue to pursue my duties and responsibilities
as counsel for Mr. Van Twest." Hence, even Asst. Solicitor General
Estoesta believes that counsel of Van Twest doubted the latter's death.
Obviously, counsel himself does not believe that his client is in fact already
dead otherwise his obligation to his client would have ceased except to
comply with his duty "to inform the court promptly of such death . . . and to
give the name and residence of his executor, administrator, guardian or
other legal representative," which he did not.
8.
ID.; ID.; ID.; ID.; ID.; ID.; THEORY BEHIND SUPPOSED
DEATH CANNOT BE DISCOUNTED. Under the circumstances, we
cannot discount petitioners' theory that the supposed death of Van Twest
who is reportedly an international fugitive from justice, a fact substantiated
by petitioners and never refuted by PACC, is a likely story to stop the
international manhunt for his arrest.
9.
ID.; ID.; ID.; ID.; SUFFERS FROM MATERIAL
INCONSISTENCIES. The extrajudicial statement of Umbal suffers
from material inconsistencies where in his sworn statement, he said that he
together with his cohorts were met by petitioners in Silahis Hotel where
they hatched the plan to abduct Van Twest. However, during the
preliminary investigation, he stated that he was not part of the actual
meeting as he only waited outside in the car for his companions who

supposedly discussed the plan inside Silahis Hotel. Umbal also said that
petitioners arrived with Bato and conducted a mock interrogation of Van
Twest who thereafter signed various documents upon being compelled to do
so. During the clarificatory questioning, however, Umbal changed his story
and said that he was asked to go outside of the "safe house" at the time Van
Twest was interrogated and thus did not see if Van Twest indeed signed
certain documents. Why Umbal had to be sent out of the "safe house," no
explanation was offered. Did these documents really exist? Or could the
non-existence of these documents be the reason why PACC was not able to
comply with the order of the prosecutors to produce them during the
preliminary investigation? And then, what happened to the P2.5M that was
supposedly offered by petitioners in exchange for the abduction of Van
Twest? These and more remain unanswered.
10.
ID.; ID.; ID.; COUNTER-AFFIDAVIT AS BASIS OF FILING
CHARGES, HARDLY OF ANY PROBATIVE VALUE; CASE AT
BAR. The alleged counter-affidavit of SPO2 Bato, which the panel of
prosecutors also considered in filing the charges against petitioners, can
hardly be credited as its probative value has tremendously waned. The
records show that the alleged counter-affidavit, which is self-incriminating,
was filed after the panel had considered the case submitted for resolution.
And before petitioners could refute this counter-affidavit, Bato moved to
suppress the same on the ground that it was extracted through duress and
intimidation.
11.
POLITICAL LAW; CONSTITUTION; BILL OF RIGHTS;
SEARCH
WARRANT;
ISSUED
UNDER
DUBIOUS
CIRCUMSTANCES IN CASE AT BAR. Most perplexing however is
that while the whole investigation was supposedly triggered off by Umbal's
confession of 16 September 1993, the application of the PACC operatives
for a search warrant to be served in the two (2) dwellings of Santiago was
filed and granted by the Regional Trial Court of Manila on 15 September
1993, a day before Umbal executed his sworn statement. In support of the
application, the PACC agents claimed that Umbal had been in their custody
since 10 September 1993. Significantly, although he was said to be already
under their custody, Umbal claims he was never interrogated until 16
September 1993 and only at the security barracks of Valle Verde V, Pasig,

where he was a security guard. . . . More importantly, the PACC operatives

who applied for a warrant to search the dwellings of Santiago never
implicated petitioners. In fact they claimed that according to Umbal, it was
Santiago, and not petitioners, who masterminded the whole affair.
12.
ID.; ID.; ID.; WARRANT OF ARREST; LACK OF
PROBABLE CAUSE NOT JUSTIFIED BY RIGHT OF STATE TO
PROSECUTE; CASE AT BAR. The sovereign power has the inherent
right to protect itself and its people from vicious acts which endanger the
proper administration of justice; hence, the State has every right to
prosecute and punish violators of the law. This is essential for its selfpreservation, nay, its very existence. But this does not confer a license for
pointless assaults on its citizens. The right of the State to prosecute is not a
carte blanche for government agents to defy and disregard the rights of its
citizens under the Constitution. Confinement, regardless of duration, is too
high a price to pay for reckless and impulsive prosecution. . . . While there
may be bits of evidence against petitioners' co-accused, i.e., referring to
those seized from the dwellings of Santiago, these do not in the least prove
petitioners' complicity in the crime charged. Based on the evidence thus far
submitted there is nothing indeed, much less is there probable cause, to
incriminate petitioners. For them to stand trial and be deprived in the
meantime of their liberty, however brief, the law appropriately exacts much
more to sustain a warrant for their arrest facts and circumstances strong
enough in themselves to support the belief that they are guilty of a crime
that in fact happened. Quite obviously, this has not been met. State's
inherent right to prosecute, are insufficient to justify sending the petitioners
to jail.
13.
ID.; ID.; ID.; PRESUMPTION OF INNOCENCE; UNDUE
HASTE IN FILING THE INFORMATION, A VIOLATION OF;
CASE AT BAR. In the case at bench, the undue haste in the filing of the
information and the inordinate interest of the government cannot be
ignored. From the gathering of evidence until the termination of the
preliminary investigation, it appears that the state prosecutors were overly
eager to file the case and secure a warrant for the arrest of the accused
without bail and their consequent detention. Umbal's sworn statement is
laden with inconsistencies and improbabilities. Bato's counter-affidavit was

considered without giving petitioners the opportunity to refute the same.

The PACC which gathered the evidence appears to have had a hand in the
determination of probable cause in the preliminary inquiry as the undated
resolution of the panel not only bears the letterhead of PACC but was also
recommended for approval by the head of the PACC Task Force. Then
petitioners were given the runaround in securing a copy of the resolution
and the information against them.
14.
ID.; ID.; ID.; UNCHECKED GOVERNMENTAL POWER
BECOMES TYRANNICAL; CASE AT BAR. The facts of this case
are fatefully distressing as they showcase the seeming immensity of
government power which when unchecked becomes tyrannical and
oppressive. Hence the Constitution, particularly the Bill of Rights, defines
the limits beyond which lie unsanctioned state actions. But on occasion, for
one reason or another, the State transcends this parameter. In consequence,
individual liberty unnecessarily suffers. The case before us, if uncurbed, can
be illustrative of a dismal trend. Needless injury of the sort inflicted by
government agents is not reflective of responsible government. Judges and
law enforcers are not, by reason of their high and prestigious office,
relieved of the common obligation to avoid deliberately inflicting
unnecessary injury.
15.
ID.; ID.; ID.; PURPOSE THEREOF; PREVAILS OVER THE
RIGHT OF STATE TO PROSECUTE. The purpose of the Bill of
Rights is to protect the people against arbitrary and discriminatory use of
political power. This bundle of rights guarantees the preservation of our
natural rights which include personal liberty and security against invasion
by the government or any of its branches or instrumentalities. Certainly, in
the hierarchy of rights, the Bill of Rights takes precedence over the right of
the State to prosecute, and when weighed against each other, the scales of
justice tilt towards the former. Thus, relief may be availed of to stop the
purported enforcement of criminal law where it is necessary to provide for
an orderly administration of justice, to prevent the use of the strong arm of
the law in an oppressive and vindictive manner, and to afford adequate
protection to constitutional rights.

16.
ID.; ID.; ID.; ID.; ID.; LAW ENFORCERS CAUTIONED TO
ACT WITH CIRCUMSPECTION. Let this then be a constant
reminder to judges, prosecutors and other government agents tasked with
the enforcement of the law that in the performance of their duties they must
act with circumspection, lest their thoughtless ways, methods and practices
cause a disservice to their office and maim their countrymen they are sworn
to serve and protect. We thus caution government agents, particularly the
law enforcers, to be more prudent in the prosecution of cases and not to be
oblivious of human rights protected by the fundamental law. While we
greatly applaud their determined efforts to weed society of felons, let not
their impetuous eagerness violate constitutional precepts which
circumscribe the structure of a civilized community.
DECISION
BELLOSILLO, J p:
On balance at the fulcrum once again are the intrinsic right of the State to
prosecute perceived transgressors of the law, which can be regulated, and
the innate value of human liberty, which can hardly be weighed.
Some twelve years ago we are confronted with a similar problem when
former Senator Jovito R. Salonga invoked before this Court his "right to life
and liberty guaranteed by the due process clause, alleging that no prima
facie case has been established to warrant the filing of an information for
subversion against him." We resolved the issue then and sustained him. He
is now back before us, this time as counsel pleading the cause of petitioners
herein who, he claims, are in a situation far worse than his predicament
twelve (12) years ago. He postulates that no probable cause likewise exists
in this case, and what is worse is that no bail is recommended.
This petition gives us an opportunity to revisit the concept and implication
of probable cause, the existence of which is necessary for the prosecutor to
have an accused held for trial and for a trial judge to issue a warrant for his
arrest. It is mandatory therefore that there be probable cause before an
information is filed and a warrant of arrest issued. Unfortunately, however,
at times a criminal case is filed, a warrant of arrest issued and a person

consequently incarcerated on unsubstantiated allegations that only feign

probable cause.
Petitioners Diosdado Jose Allado and Roberto L. Mendoza, alumni of the
College of Law, University of the Philippines, are partners of the Law Firm
of Salonga, Hernandez and Allado. In the practice of their profession, and
on the basis of an alleged extrajudicial confession of a security guard, they
have been accused of the heinous crime of kidnapping with murder by the
Presidential Anti-Crime Commission (PACC) and ordered arrested without
bail by respondent judge.
The focal source of the information against petitioners is the sworn
statement dated 16 September 1993 of Security Guard Escolastico Umbal, a
dischargee of the Philippine Constabulary, implicating them as the brains
behind the alleged kidnapping and slaying of one Eugen Alexander Van
Twest, a German national. In that extrajudicial confession, Umbal claimed
that he and his companions were met by petitioners at Silahis Hotel and in
exchange for P2.5M the former undertook to apprehend Van Twest who
allegedly had an international warrant of arrest against him. Thus, on 16
June 1992, after placing him under surveillance for nearly a month, Umbal,
Ex-policeman Rolando Gamatero, AFPCIG Agent Roberto Santiago and
SPO2 Sergio Antonino abducted Van Twest. They blocked his blue Nissan
Pathfinder under the Alabang overpass and forced him into their car. They
brought him to a "safe house" just behind the New Bilibid Prisons. Umbal
was tasked to watch over their quarry. After four (4) days, Gamatero,
Santiago and Antonino returned to the "safe house" together with petitioners
and SPO2 Roger Bato, known to Umbal also as "Batok." SPO2 Bato faked
the interrogation of Van Twest, pretending it was official, and then made
him sign certain documents. The following day, Gamatero shot Van Twest
in the chest with a baby armalite, after which Antonio stabbed him
repeatedly, cut off his private part, and later burned his cadaver into fine
ashes using gasoline and rubber tires. Umbal could not recall the exact date
when the incident happened, but he was certain it was about a year ago.
A day after Umbal executed his extrajudicial confession, the operatives of
the PACC, armed with a search warrant issued by Judge Roberto A. Barrios
of the Regional Trial Court of Manila, Br. 11, separately raided the two (2)

dwellings of Santiago, one located at No. 7 Sangley Street, and the other,
along Amalingan Street, both in Green Heights Subdivision, Paraaque.
The raiders recovered a blue Nissan Pathfinder and assorted firearms and
ammunition and placed Santiago and his trusted aide, Efren Madolid, under
arrest. Also arrested later that day were Antonino and Bato who where
found to have in their possession several firearms and ammunition and Van
Twest's Cartier sunglasses.
After evaluating the pieces of evidence gathered by PACC operatives, Sr.
Supt. Panfilo Lacson, Chief of PACC Task Force Habagat, referred the case
to the Department of Justice for the institution of criminal proceedings
against AFPCIG Agent Roberto Santiago, SPO1 Sergio Antonino, SPO2
Roger Bato, Ex-policeman Rolando Gamatero, Efren Madolid, and
petitioners herein, Atty. Diosdado Jose Allado and Atty. Roberto L.
Mendoza, for illegal possession of firearms and ammunition, carnapping,
kidnapping for ransom with murder, and usurpation of authority. In his
letter to the State Prosecutor dated 17 September 1993, Sr. Supt. Lacson
charged that Atty. Roberto L. Mendoza and Atty. Allado of Salonga,
Hernandez and Allado Law Offices . . . planned and conspired with other
suspects to abduct and kill the German national Alexander Van Twest in
order to eliminate him after forcing the victim to sign several documents
transferring ownership of several properties amounting to several million
pesos and caused the withdrawal of P5M deposit from the victim's bank
account.
Thereafter, Senior State Prosecutor Ferdinand R. Abesamis issued a
subpoena to petitioners informing them that a complaint was filed against
them by PACC TF-Habagat, directing them to appear on 30 September
1993 at the Multi-Purpose Hall of the Department of Justice and to submit
their counter-affidavits. Attached to the subpoena were copies of the
affidavits executed by Umbal and members of the team who raided the two
(2) dwellings of Santiago.
Not satisfied merely with the affidavits attached to the subpoena, petitioner
Mendoza moved for the production of other documents for examination and
copying to enable him to fully prepare for his defense and to submit an
intelligible counter-affidavit. Specifically, petitioner Mendoza was

interested in (a) the "several documents transferring ownership of several

properties amounting to several million pesos and the withdrawal of P5M
deposits from the victim's bank account," as stated in the complaint; (b) the
complete records of the PACC's investigation, including investigations on
other suspects and their disposition, PACC's Order of Battle for 1992 and
early 1993; and, (c) such other written statements issued in the aboveentitled case, and all other documents intended to be used in this case.
Petitioners likewise sought the inhibition of the members of the panel of
prosecutors, which was created to conduct the preliminary investigation, on
the ground that they were members of the legal staff assigned to PACC and
thus could not act with impartiality.
In its Order of 11 October 1993, the new panel of prosecutors composed of
Senior State Prosecutor Bernelito R. Fernandez as Chairman, with Rogelio
F. Vista and Purita M. Deynata as Members, confirmed that the motion for
inhibition of the members of the old panel as well as the appeal to the
Secretary of Justice was resolved on 8 October 1993 resulting in the
creation of a new panel. Thereafter, the new panel granted the prayer of
petitioner Mendoza for the production of additional documents used or
intended to be used against him. Meanwhile, Task Force Habagat, in
compliance with the order, submitted only copies of the request for
verification of the firearms seized from the accused, the result of the request
for verification, and a Philippine Times Journal article on the case with a
marginal note of President Fidel V. Ramos addressed to the Chief of the
Philippine National Police directing the submission of a report and
summary of actions taken thereon.
Not having been provided with the requested documents, petitioners
nevertheless submitted their respective counter-affidavits denying the
accusations against them.
After a preliminary hearing where clarificatory questions were additionally
propounded, the case was deemed submitted for resolution. But before the
new panel could resolve the case, SPO2 Bato filed a manifestation stating
that he was reconsidering the earlier waiver of his right to file counteraffidavit, and "in the greater interest of truth, justice and fair play" moved
for the admission of his counter-affidavit confessing participation in the

abduction and slaying of Van Twest and implicating petitioners Allado and
Mendoza. Sometime in January 1994, however, before petitioners could
refute Bato's counter-affidavit, he moved to suppress it on the ground that it
was extracted through intimidation and duress.
On 3 February 1994, with the new panel failing to act on the twin motions
of SPO2 Bato, petitioners heard over the radio that the panel had issued a
resolution finding a prima facie case against them and that an information
had already been filed in court. Upon verification with the Department of
Justice, however, petitioners were informed that the resolution was not yet
ready for release, but later that afternoon they were able to secure a copy of
the information for kidnapping with murder against them and the 15-page
undated resolution under the letterhead of PACC, signed by the panel of
prosecutors, with the Head of the PACC Task Force recommending
approval thereof. 13 That same day, the information was filed before the
Regional Trial Court of Makati and raffled off to Branch 62 presided by
respondent Judge Roberto C. Diokno.
On 4 February 1994, respondent judge, in response to petitioner's request,
gave them until 8 February 1994 to submit their opposition to the issuance
of a warrant of arrest against all the accused. On 7 February 1994,
petitioners complied with the order of respondent judge. The following day,
8 February 1994, petitioner Allado filed an appeal with the Secretary of
Justice seeking review and reversal of the undated resolution on the panel of
prosecutors, which appeal was adopted by petitioner Mendoza. On 11
February 1994, petitioner Allado moved to defer the proceedings before the
trial court pending resolution of his appeal before the Secretary of Justice.
However, on even date, respondent judge issued the assailed warrant of
arrest against petitioners. Hence, on 15 February 1994, petitioners filed with
us the instant petition for certiorari and prohibition with prayer for a
temporary restraining order.
On 16 February 1994, we required respondents to comment on the petition
and set the case for hearing on 28 February 1994. After the hearing, we
issued a temporary restraining order enjoining PACC from enforcing the
warrant of arrest and respondent judge from conducting further proceedings
on the case and, instead, to elevate the records to us. Meanwhile, on 27

February 1994, petitioners voluntarily surrendered at the Headquarters of

the Capital Command (CAPCOM), Philippine National Police (PNP),
Camp Bagong Diwa, Bicutan, Metro Manila, and on 29 February 1994, they
were released on the basis of our temporary restraining order.
Petitioners, in their 335-page petition, inclusive of annexes, principally
contend that respondent judge acted with grave abuse of discretion and in
excess of jurisdiction in "whimsically holding that there is probable cause
against petitioners without determining the admissibility of the evidence
against petitioners and without even stating the basis of his findings," and in
"relying on the Resolution of the Panel and their certification that probable
cause exists when the certification is flawed." 21 Petitioners maintain that
the records of the preliminary investigation which respondent judge solely
relied upon failed to establish probable cause against them to justify the
issuance of the warrant of arrest. Petitioners likewise assail the prosecutors'
"clear sign of bias and impartiality (sic)." 22
On the other hand, the Office of the Solicitor General argues that the
determination of probable cause is a function of the judge who is merely
required to personally appreciate certain facts to convince him that the
accused probably committed the crime charged.
Section 2, Art. III, of the 1987 Constitution, lays down the requirements for
the issuance of a warrant of arrest, i.e., a warrant of arrest shall issue only
upon probable cause to be determined personally by the judge after
examination under oath or affirmation of the complainant and the witnesses
he may produce.
As early as 1915, in Buchanan v. Viuda de Esteban, this Court speaking
through Associate Justice Sherman Moreland defined probable cause as "the
existence of such facts and circumstances as would excite the belief, in a
reasonable mind, acting on the facts within the knowledge of the prosecutor,
that the person charged was guilty of the crime for which he was
prosecuted." This definition is still relevant today as we continue to cite it in
recent cases. Hence, probable cause for an arrest or for the issuance of a
warrant of arrest has been defined as such facts and circumstances which
would lead a reasonably discreet and prudent man to believe that an offense
has been committed by the person sought to be arrested. And as a protection

against false prosecution and arrest, it is the knowledge of facts, actual or

apparent, strong enough to justify a reasonable man in the belief that he has
lawful grounds for arresting the accused.
Pilapil v. Sandiganbayan sets a standard for determining the existence of
probable cause. While it appears in that case that we have granted the
prosecutor and the trial judge seemingly unlimited latitude in determining
the existence or absence of probable cause by affirming the long-standing
procedure that they can base their findings merely on their personal opinion
and reasonable belief, yet, this permissiveness should not be interpreted as
giving them arbitrary powers and letting them loose in the determination of
the existence of probable cause, a delicate legal question which can result in
the harassment and deprivation of liberty of the person sought to be charged
or arrested. There we said
Probable cause is a reasonable ground of presumption that a matter is, or
may be, well founded, such a state of facts in the mind of the prosecutor as
would lead a person of ordinary caution and prudence to believe, or
entertain an honest or strong suspicion, that a thing is so. The term does not
mean "actual and positive cause" nor does it import absolute certainty. It is
merely based on opinion and reasonable belief. Thus, a finding of probable
cause does not require an inquiry into whether there is sufficient evidence to
procure a conviction. It is enough that it is believed that the act or omission
complained of constitutes the offense charged. Precisely, there is a trial for
the reception of evidence of the prosecution in support of the charge.
Whether an act was done causing undue injury to the government and
whether the same was done with manifest partiality or evident bad faith can
only be made out by proper and sufficient testimony. Necessarily, a
conclusion can be arrived at when the case has already proceeded on
sufficient proof.
Accordingly, before issuing a warrant of arrest, the judge must satisfy
himself that based on the evidence submitted there is sufficient proof that a
crime has been committed and that the person to be arrested is probably
guilty thereof. In the Order of respondent judge dated 11 February 1994, it
is expressly stated that "[t]his court after careful evaluation of the evidence
on record, believes and rules that probable cause exists; and therefore, a

warrant of arrest should be issued." However, we are unable to see how

respondent judge arrived at such ruling. We have painstakingly examined
the records and we cannot find any support for his conclusion. On the
contrary, we discern a number of reasons why we consider the evidence
submitted to be insufficient for a finding of probable cause against
petitioners.
The Presidential Anti-Crime Commission relies heavily on the sworn
statement of Security Guard Umbal who supposedly confessed his
participation in the alleged kidnapping and murder of Van Twest. For one,
there is serious doubt on Van Twest's reported death since the corpus delicti
has not been established, nor have his remains been recovered. Umbal
claims that Van Twest was completely burned into ashes with the use of
gasoline and rubber tires from around ten o'clock in the evening to six
o'clock the next morning. This is highly improbable, if not ridiculous. A
human body cannot be pulverized into ashes by simply burning it with the
use of gasoline and rubber tires in an open field. Even crematoria use
entirely closed incinerators where the corpse is subjected to intense heat.
Thereafter, the remains undergo a process where the bones are completely
ground to dust.
In the case of Van Twest, there is not even any insinuation that earnest
efforts were exerted to recover traces of his remains from the scene of the
alleged cremation. Could it be that the government investigators did go to
the place of cremation but could not find any? Or could it be that they did
not go at all because they knew that there would not be any as no burning
ever took place? To allege then that the body of Van Twest was completely
burned to ashes in an open field with the use merely of tires and gasoline is
a tale too tall to gulp.
Strangely, if not awkwardly, after Van Twest's reported abduction on 16
June 1992 which culminated in his decimation by cremation, his counsel
continued to represent him before judicial and quasi-judicial proceedings.
Thus on 31 July 1992, his counsel filed in his behalf a petition for review
before this Court, docketed as G.R. No. 106253, and on 18 March 1993, a
memorandum before the Securities and Exchange Commission in SEC Case
No. 3896. On 26 November 1993, during the preliminary investigation

conducted by the panel of prosecutors, counsel again manifested that "even

then and even as of this time, I stated in my counter-affidavit that until the
matter of death is to be established in the proper proceedings, I shall
continue to pursue my duties and responsibilities as counsel for Mr. Van
Twest." Hence, even Asst. Solicitor General Estoesta believes that counsel
of Van Twest doubted the later's death. Obviously, counsel himself does not
believe that his client is in fact already dead otherwise his obligation to his
client would have ceased except to comply with his duty "to inform the
court promptly of such death . . . and to give the name and residence of his
executor, administrator, guardian or other legal representative," which he
did not.
Under the circumstances, we cannot discount petitioners' theory that the
supposed death of Van Twest who is reportedly an international fugitive
from justice, a fact substantiated by petitioners and never refuted by PACC,
is a likely story to stop the international manhunt for his arrest. In this
regard, we are reminded of the leading case of U.S. v. Samarin decided
ninety-two years ago where this Court ruled that when the supposed victim
is wholly unknown, his body not found, and there is but one witness who
testifies to the killing, the corpus delicti is not sufficiently proved.
Then, the extrajudicial statement of Umbal suffers from material
inconsistencies. In his sworn statement, he said that he together with his
cohorts was met by petitioners in Silahis Hotel where they hatched the plan
to abduct Van Twest. However, during the preliminary investigation, he
stated that he was not part of the actual meeting as he only waited outside in
the car for his companions who supposedly discussed the plan inside Silahis
Hotel.
Umbal also said that petitioners arrived with Bato and conducted a mock
interrogation of Van Twest who thereafter signed various documents upon
being compelled to do so. During the clarificatory questioning, however,
Umbal changed his story and said that he was asked to go outside of the
"safe house" at the time Van Twest was interrogated and thus did not see if
Van Twest indeed signed certain documents. Why Umbal had to be sent out
of the "safe house," no explanation was offered. Did these documents really
exist? Or could the non-existence of these documents be the reason why

PACC was not able to comply with the order of his prosecutors to produce
them during the preliminary investigation? And then, what happened to the
P2.5M that was supposedly offered by petitioners in exchange for the
abduction of Van Twest? These and more remain unanswered.

the law appropriately exacts much more to sustain a warrant for their arrest
facts and circumstances strong enough in themselves to support the
belief that they are guilty of a crime that in fact happened. Quite obviously,
this has not been met.

Most perplexing however is that while the whole investigation was

supposedly triggered off by Umbal's confession of 16 September 1993, the
application of the PACC operatives for a search warrant to be served in the
two (2) dwellings of Santiago was filed and granted by the Regional Trial
Court of Manila on 15 September 1993, a day before Umbal executed his
sworn statement. In support of the application, the PACC agents claimed
that Umbal had been in their custody since 10 September 1993.
Significantly, although he was said to be already under their custody,
Umbal claims he was never interrogated until 16 September 1993 and only
at the security barracks of Valle Verde V, Pasig, where he was a security
guard.

Verily, respondent judge committed grave abuse of discretion in issuing the

warrant for the arrest of petitioners it appearing that he did not personally
examine the evidence nor did he call for the complainant and his witnesses
in the face of their incredible accounts. Instead, he merely relied on the
certification of the prosecutors that probable cause existed. For, otherwise,
he would have found out that the evidence thus far presented was utterly
insufficient to warrant the arrest of petitioners. In this regard, we restate the
procedure we outlined in various cases we have already decided.

The alleged counter-affidavit of SPO2 Bato, which the panel of prosecutors

also considered in filing the charges against petitioners, can hardly be
credited as its probative value has tremendously waned. The records show
that the alleged counter-affidavit, which is self-incriminating, was filed after
the panel had considered the case submitted for resolution. And before
petitioners could refute this counter-affidavit, Bato moved to suppress the
same on the ground that it was extracted through duress and intimidation.
For sure, the credibility of Umbal is badly battered. Certainly, his bare
allegations, even if the State invokes its inherent right to prosecute, are
insufficient to justify sending two lawyers to jail, or anybody for that
matter. More importantly, the PACC operatives who applied for a warrant
to search the dwellings of Santiago never implicated petitioners. In fact they
claimed that according to Umbal, it was Santiago, and not petitioners, who
masterminded the whole affair. While there may be bits of evidence against
petitioners' co-accused, i.e., referring to those seized from the dwellings of
Santiago, these do not in the least prove petitioners' complicity in the crime
charged. Based on the evidence thus far submitted there is nothing indeed,
much less is there probable cause, to incriminate petitioners. For them to
stand trial and be deprived in the meantime of their liberty, however brief,

In Soliven v. Makasiar, we said that the judge (a) shall personally evaluate
the report and the supporting documents submitted by the fiscal regarding
the existence of probable cause and, on the basis thereof, issue a warrant of
arrest; or, (b) if on the basis thereof he finds no probable cause, may
disregard the fiscal's report and require the submission of supporting
affidavits of witnesses to aid him in arriving at a conclusion on the
existence of probable cause.
In People v. Inting, we emphasized the important features of the
constitutional mandate: (a) The determination of probable cause is a
function of the judge; it is not for the provincial fiscal or prosecutor to
ascertain. Only the judge and the judge alone makes this determination; (b)
The preliminary inquiry made by a prosecutor does not bind the judge. It
merely assists him in making the determination of probable cause. The
judge does not have to follow what the prosecutor presents to him. By itself,
the prosecutor's certification of probable cause is ineffectual. It is the report,
the affidavits, the transcript of stenographic notes (if any), and all other
supporting documents behind the prosecutor's certification which are
material in assisting the judge in his determination of probable cause; and,
(c) Judges and prosecutors alike should distinguish the preliminary inquiry
which determines probable cause for the issuance of a warrant of arrest
from the preliminary investigation proper which ascertains whether the
offender should be held for trial or released. Even if the two inquiries be

conducted in the course of one and the same proceeding, there should be no
confusion about their objectives. The determination of probable cause for
the warrant is made by the judge. The preliminary investigation proper
whether or not there is reasonable ground to believe that the accused is
guilty of the offense charged and therefore, whether or not he should be
subjected to the expense, rigors and embarrassment of trial is a function
of the prosecutor.
In Lim v. Felix, where we reiterated Soliven v. Makasiar and People v.
Inting, we said
[T]he Judge does not have to personally examine the complainant and his
witnesses. The Prosecutor can perform the same functions as a
commissioner for the taking of the evidence. However, there should be a
report and necessary documents supporting the Fiscal's bare certification.
All these should be before the Judge.
The extent of the Judge's personal examination of the report and its annexes
depends on the circumstances of each case. We cannot determine
beforehand how cursory or exhaustive the Judge's examination should be.
The Judge has to exercise sound discretion for, after all, the personal
determination is vested in the Judge by the Constitution. It can be as brief or
as detailed as the circumstances of each case require. To be sure, the judge
must go beyond the Prosecutor's certification and investigation report
whenever necessary. He should call for the complainant and witnesses
themselves to answer the court's probing questions when the circumstances
of the case so require.
Clearly, probable cause may not be established simply by showing that a
trial judge subjectively believes that he has good grounds for his action.
Good faith is not enough. If subjective good faith alone were the test, the
constitutional protection would be demeaned and the people would be
"secure in their persons, houses, papers and effects" only in the fallible
discretion of the judge. On the contrary, the probable cause test is an
objective one, for in order that there be probable cause the facts and
circumstances must be such as would warrant a belief by a reasonably
discreet and prudent man that the accused is guilty of the crime which has
just been committed. This, as we said, is the standard. Hence, if upon the

filing of the information in court the trial judge, after reviewing the
information and the documents attached thereto, finds that no probable
cause exists must either call for the complainant and the witnesses
themselves or simply dismiss the case. There is no reason to hold the
accused for trial and further expose him to an open and public accusation of
the crime when no probable cause exists.
But then, it appears in the instant case that the prosecutors have similarly
misappropriated, if not abused, their discretion. If they really believed that
petitioners were probably guilty, they should have armed themselves with
facts and circumstances in support of that belief; for mere belief is not
enough. They should have presented sufficient and credible evidence to
demonstrate the existence of probable cause. For the prosecuting officer "is
the representative not of an ordinary party to a controversy, but of a
sovereignty whose obligation to govern impartially is as compelling as its
obligation to govern all; and whose interest, therefore, in a criminal
prosecution is not that it shall win a case, but that justice shall be done. As
such, he is in a peculiar and very definite sense the servant of the law, the
twofold aim of which is that guilt shall not escape or innocence suffer. He
may prosecute with earnestness and vigor indeed, he should do so. But,
while he may strike hard blows, he is not at liberty to strike foul ones. It is
as much his duty to refrain from improper methods calculated to produce a
wrongful conviction as it is to use every legitimate means to bring about a
just one."
In the case at bench, the undue haste in the filing of the information and the
inordinate interest of the government cannot be ignored. From the gathering
of evidence until the termination of the preliminary investigation, it appears
that the state prosecutors were overly eager to file the case and secure a
warrant for the arrest of the accused without bail and their consequent
detention. Umbal's sworn statement is laden with inconsistencies and
improbabilities. Bato's counter-affidavit was considered without giving
petitioners the opportunity to refute the same. The PACC which gathered
the evidence appears to have had a hand in the determination of probable
cause in the preliminary inquiry as the undated resolution of the panel not
only bears the letterhead of PACC but was also recommended for approval
by the head of the PACC Task Force. Then petitioners were given the

runaround in securing a copy of the resolution and the information against

them.
Indeed, the task of ridding society of criminals and misfits and sending
them to jail in the hope that they will in the future reform and be productive
members of the community rests both on the judiciousness of judges and
the prudence of prosecutors. And, whether it is preliminary investigation by
the prosecutor, which ascertains if the respondent should be held for trial, or
a preliminary inquiry by the trial judge which determines if an arrest
warrant should issue, the bottomline is that there is a standard in the
determination of the existence of probable cause, i.e., there should be facts
and circumstances sufficiently strong in themselves to warrant a prudent
and cautious man to believe that the accused is guilty of the crime with
which he is charged. Judges and prosecutors are not off on a frolic of their
own, but rather engaged in a delicate legal duty defined by law and
jurisprudence.
In this instance, Salonga v. Pao finds application
The purpose of a preliminary investigation is to secure the innocent against
hasty, malicious and oppressive prosecution, and to protect him from an
open and public accusation of crime, from the trouble, expense and anxiety
of a public trial, and also to protect the state from useless and expensive
trial (Trocio v. Manta, 118 SCRA 241, citing Hashim v. Boncan, 71 Phil.
216). The right to a preliminary investigation is a statutory grant, and to
withhold it would be to transgress constitutional due process (see People v.
Oandasa, 25 SCRA 277). However, in order to satisfy the due process
clause it is not enough that the preliminary investigation is conducted in the
sense of making sure that the transgressor shall not escape with impunity. A
preliminary investigation serves not only for the purposes of the State. More
importantly, it is a part of the guarantees of freedom and fair play which are
birthrights of all who live in the country. It is therefore imperative upon the
fiscal or the judge as the case may be, to relieve the accused from the pain
of going thru a trial once it is ascertained that the evidence is insufficient to
sustain a prima facie case or that no probable cause exists to form a
sufficient belief as to the guilt of the accused (emphasis supplied).

The facts of this case are fatefully distressing as they showcase the seeming
immensity of government power which when unchecked becomes
tyrannical and oppressive. Hence the Constitution, particularly the Bill of
Rights, defines the limits beyond which lie unsanctioned state actions. But
on occasion, for one reason or another, the State transcends this parameter.
In consequence, individual liberty unnecessarily suffers. The case before us,
if uncurbed, can be illustrative of a dismal trend. Needless injury of the sort
inflicted by government agents is not reflective of responsible government.
Judges and law enforcers are not, by reason of their high and prestigious
office, relieved of the common obligation to avoid deliberately inflicting
unnecessary injury.
The sovereign power has the inherent right to protect itself and its people
from vicious acts which endanger the proper administration of justice;
hence, the State has every right to prosecute and punish violators of the law.
This is essential for its self-preservation, nay, its very existence. But this
does not confer a license for pointless assaults on its citizens. The right of
the State to prosecute is not a carte blanche for government agents to defy
and disregard the rights of its citizens under the Constitution. Confinement,
regardless of duration, is too high a price to pay for reckless and impulsive
prosecution. Hence, even if we apply in this case the "multifactor balancing
test" which requires the officer to weigh the manner and intensity of the
interference on the right of the people, the gravity of the crime committed
and the circumstances attending the incident, still we cannot see probable
cause to order the detention of petitioners.
The purpose of the Bill of Rights is to protect the people against arbitrary
and discriminatory use of political power. This bundle of rights guarantees
the preservation of our natural rights which include personal liberty and
security against invasion by the government or any of its branches or
instrumentalities. Certainly, in the hierarchy of rights, the Bill of Rights
takes precedence over the right of the State to prosecute, and when weighed
against each other, the scales of justice tilt towards the former. Thus, relief
may be availed of to stop the purported enforcement of criminal law where
it is necessary to provide for an orderly administration of justice, to prevent
the use of the strong arm of the law in an oppressive and vindictive manner,
and to afford adequate protection to constitutional rights.

Perhaps, this case would not have reached this Court if petitioners were
ordinary people submissive to the dictates of government. They would have
been illegally arrested and detained without bail. Then we would not have
the opportunity to rectify the injustice. Fortunately, the victims of injustice
are lawyers who are vigilant of their rights, who fight for their liberty and
freedom not otherwise available to those who cover in fear and subjection.
Let this then be a constant reminder to judges, prosecutors and other
government agents tasked with the enforcement of the law that in the
performance of their duties they must act with circumspection, lest their
thoughtless ways, methods and practices cause a disservice to their office
and aim their countrymen they are sworn to serve and protest. We thus
caution government agents, particularly the law enforcers, to be more
prudent in the prosecution of cases and not to be oblivious of human rights
protected by the fundamental law. While we greatly applaud their
determined efforts to weed society of felons, let not their impetuous
eagerness violate constitutional precepts which circumscribe the structure of
a civilized community.
WHEREFORE, the petition for certiorari and prohibition is GRANTED.
The temporary restraining order we issued on 28 February 1994 in favor of
petitioners, Atty. Diosdado Jose Allado and Atty. Roberto L. Mendoza, is
made permanent. The warrant of arrest issued against them is SET ASIDE
and respondent Judge Roberto C. Diokno is ENJOINED from proceeding
any further against herein petitioners in Crim. Case No. 94-1757 of the
Regional Trial Court of Makati.
SO ORDERED.
Cruz, Davide, Jr., Quiason and Kapunan, JJ., concur.

JOVITO R. SALONGA, petitioner,

vs. HON. ERNANI CRUZ PAO, Presiding Judge of the Court of First
Instance of Rizal, Branch XVIII (Quezon City), HON. JUDGE RODOLFO
ORTIZ, Presiding Judge of the Court of First Instance of Rizal, Branch
XXXI (Quezon City) CITY FISCAL SERGIO APOSTOL of Quezon City;
COL. BALBINO DIEGO and COL. ROMAN MADELLA, respondents.
G.R. No. 59524
February 18, 1985
SYLLABUS
1.
REMEDIAL
LAW;
SPECIAL
CIVIL
ACTION;
CERTIORARI; DENIAL OF A MOTION TO QUASH OR TO
DISMISS CANNOT BE QUESTIONED BY CERTIORARI; RULE
NOT APPLICABLE WHERE THERE IS FAILURE TO SHOW
PRIMA FACIE THAT A PERSON IS GUILTY. The respondents call
for adherence to the consistent rule that the denial of a motion to quash or to
dismiss, being interlocutory in character, cannot be questioned by certiorari;
that since the question of dismissal will again be considered by the court
when it decides the case, the movant has a plain, speedy and adequate
remedy in the ordinary course of law; and that public interest dictates that
criminal prosecutions should not be enjoined. The general rule is correctly
stated. However, the respondents fail to appreciate or take into account
certain exceptions when a petition for certiorari is clearly warranted. The
case at bar is one such exception. In the light of the failure to show prima
facie that the petitioner was probably guilty of conspiring to commit the
crime, the initial disregard of petitioner's constitutional rights together with
the massive and damaging publicity made against him, justifies the
favorable consideration of this petition by this Court.
2.
ID.;
EVIDENCE;
"PRIMA
FACIE
EVIDENCE";
EVIDENCE
MUST
BE
SUFFICIENT
TO
OVERCOME
PRESUMPTION OF INNOCENCE. Infinitely more important than
conventional adherence to general rules of criminal procedure is respect for
the citizen's fight to be free not only from arbitrary arrest and punishment
but also from unwarranted and vexatious prosecution. The integrity of a
democratic society is corrupted if a person is carelessly included in the trial

of around forty persons when on the very face of the record no evidence
linking him to the alleged conspiracy exists. The term "prima facie
evidence" denotes evidence which, if unexplained or uncontradicted, is
sufficient to sustain the proposition it supports or to establish the facts, or to
counterbalance the presumption of innocence to warrant a conviction.
3.
ID.; ID.; HEARSAY RULE; TESTIMONY BASED ON
ANOTHER PERSON'S AFFIDAVITS ARE HEARSAY AND HAS NO
PROBATIVE VALUE; INQUEST JUDGE SHOULD CONFINE
INVESTIGATION TO SOLE WITNESS. Col. Diego, on the other
hand, when asked what evidence he was able to gather against the petitioner
depended only on the statement of Lovely "that it was the residence of exSenator Salonga where they met together with Renato Tanada, one of the
brains of the bombing conspiracy . . . and the fact that Sen. Salonga has
been meeting with several subversive personnel based in the U.S.A. was
also revealed to me by Victor Burns Lovely"; and on the group pictures
taken at former Congressman Raul Daza's birthday party. In concluding that
a conspiracy exists to overthrow by violent means the government of the
Philippines in the United States, his only bases were "documentary as well
as physical and sworn statements that were referred to me or taken by me
personally," which of course negate personal knowledge on his part.
Testimony based on affidavits of other persons and purely hearsay, can
hardly qualify as prima facie evidence of subversion. It should not have
been given credence by the court in the first place. Hearsay evidence,
whether objected to or not, has no probative value as the affiant could not
have been cross-examined on the facts stated therein. (See People v.
Labinia, 115 SCRA 223; People v. Valero, 112 SCRA 661). Moreover, as
Victor Lovely, himself, was personally examined by the court, there was no
need for the testimony of Col. Diego. Thus, the inquest judge should have
confined his investigation to Victor Burns Lovely, the sole witness whose
testimony has apparently implicated petitioner in the bombings which
eventually led to the filing of the information.
4.
ID.; ID.; INDICTING A PERSON BECAUSE PLOTTERS
MET IN HIS HOUSE, A DANGEROUS PRECEDENT. The jump
from the "contact point" theory to the conclusion of involvement in
subversive activities in the United States is not only inexplicable but

without foundation. The respondents admit that no evidence was presented

directly linking petitioner Salonga to actual acts of violence or terrorism.
There is no proof of his direct participation in any overt acts of subversion.
The "contact point" theory or what the petitioner calls the "guilt by visit or
guilt by association" theory is too tenuous a basis to conclude that Senator
Salonga was a leader or mastermind of the bombing incidents. To indict a
person simply because some plotters, masquerading as visitors, have
somehow met in his house or office would be to establish a dangerous
precedent. The right of citizens to be secure against abuse of governmental
processes in criminal prosecutions would be seriously undermined.
5.
ID.; ID.; CREDIBILITY OF WITNESSES; TESTIMONY
THAT PETITIONER WHO WAS DEAF AND ANOTHER
WHISPERED TO EACH OTHER IS INCONSISTENT. The
testimony of Victor Lovely against petitioner Salonga is full of
inconsistencies. Senator Salonga and Atty. Renato Tanada could not have
whispered to one another because the petitioner is almost totally deaf.
Lovely could not have met Senator Salonga at a Manglapus party in
Washington, D.C. in 1977 because the petitioner left for the United States
only in November, 1978. Senator Salonga denies having known Mr. Lovely
in the United States or in the Philippines. He states that he has hundred of
visitors from week to week in his residence but cannot recall any Victor
Lovely.
6.
ID.; ID.; PHOTOGRAPH; PRESENCE IN A GROUP
PICTURE IS NOT PROOF OF CONSPIRACY. The presence of
Lovely in a group picture taken at Mr. Raul Daza's birthday party in Los
Angeles where Senator Salonga was a guest is not proof of conspiracy. As
stated by the petitioner, in his many years in the turbulent world of politics,
he has posed with all kind of people in various groups and various places
and could not possibly vouch for their conduct. Commenting on the matter,
newspaper columnist Teodoro Valencia stated that Filipinos love to pose
with important visitors and the picture proves nothing. More credible and
stronger evidence is necessary for an indictment. Nonetheless, even if we
discount the flaws in Lovely's testimony and dismiss the refutations and
arguments of the petitioner, the prosecution evidence is still inadequate to
establish a prima facie finding.

7.
CONSTITUTIONAL LAW; BILL OF RIGHTS; FREEDOM
OF THOUGHT AND EXPRESSION; OPINION ON THE
LIKELIHOOD OF A VIOLENT STRUGGLE, A LEGITIMATE
EXERCISE OF FREEDOM. The alleged opinion of the petitioner
about the likelihood of a violent struggle here in the Philippines if reforms
are not instituted, assuming that he really stated the same, is nothing but a
legitimate exercise of freedom of thought and expression. No man deserves
punishment for his thoughts. Cogitationis poenam nemo meretur. And as
the late Justice Oliver W. Holmes stated in the case of U .S. v. Schwimmer,
279 U.S. 644, ". . . if there is any principle of the Constitution that more
imperatively calls for attachment than any other it is the principle of free
thought not free thought for those who agree with us but freedom for the
thought that we hate."
8.
ID.; ID.; ID.; A PREFERRED RIGHT; POLITICAL
DISCUSSION CANNOT BE INDICTED. We have adopted the
concept that freedom of expression is a "preferred" right and, therefore,
stands on a higher level than substantive economic or other liberties. The
primacy, the high estate accorded freedom of expression is a fundamental
postulate of our constitutional system. (Gonzales v. Commission on
Elections, 29 SCRA 835). As explained by Justice Cardozo in Palko v.
Connecticut (302 U.S. 319) this must be so because the lessons of history,
both political and legal, illustrate that freedom of thought and speech is the
indispensable condition of nearly every other form of freedom. Protection is
especially mandated for political discussions. This Court is particularly
concerned when allegations are made that restraints have been imposed
upon mere criticisms of government and public officials. Political
discussion is essential to the ascertainment of political truth. It cannot be the
basis of criminal indictments. In the case before us, there is no teaching of
the moral propriety of a resort to violence, much less an advocacy of force
or a conspiracy to organize the use of force against the duly constituted
authorities. The alleged remark about the likelihood of violent struggle
unless reforms are instituted is not a threat against the government. Nor is it
even the uninhabited, robust, caustic, or unpleasantly sharp attack which is
protected by the guarantee of free speech. Parenthetically, the American
case of Brandenburg v. Ohio (395 U.S. 444) states that the constitutional

guarantees of free speech and free press do not permit a State to forbid or
proscribe advocacy of the use of force or of law violation except where such
advocacy is directed to inciting or producing imminent lawless action and is
likely to incite or produce such action. The words which petitioner allegedly
used according to the best recollection of Mr. Lovely are light years away
from such type of proscribed advocacy.
9.
REMEDIAL LAW; EVIDENCE; STATEMENT THAT HIS
MISSION WAS AGAINST A PARTICULAR FAMILY NEGATES
POLITICALLY MOTIVATED ASSIGNMENT. Lovely also declared
that he had nothing to do with the bombing on August 22, 1980, which was
the only bombing incident that occurred after his arrival in Manila on
August 20, 1980, and before the YMCA explosion on September 6, 1980.
He further testified that: (his) bombing mission was directed against the
particular family (referring to the Cabarrus family). Such a statement
wholly negates any politically motivated or subversive assignment which
Lovely was supposed to have been commissioned to perform upon the
orders of his co-accused and which was the very reason why they were
charged in the first place.
10.
ID.; ID.; BY ADOPTING DEFENSE WITNESS AS ITS OWN,
PROSECUTION IS BOUND BY HIS DISCLAIMER. It should be
noted that after Lovely's testimony, the prosecution manifested to the court
that is was adopting him as a prosecution witness. Therefore, the
prosecution became irreversibly bound by Lovely's disclaimers on the
witness stand, that it was not his intention "to do some kind of bombing
against the government" and that he "did not try to implicate Salonga,"
especially since Lovely is the sole witness adopted by the prosecution who
could supposedly establish the link between the petitioner and the bombing
incidents. The respondent court should have taken these factors into
consideration before concluding that a prima facie case exists against the
petitioner.
11.
ID.; ID.; EVIDENCE MUST COME NOT ONLY FROM A
CREDIBLE WITNESS BUT MUST BE CREDIBLE IN ITSELF.
Evidence must not only proceed from the mouth of a credible witness but it
must be credible in itself such as the common experience and observation of

mankind can approve as probable under the circumstances. (People v.

Dayad, 56 SCRA 439) In the case at bar, the prosecution cannot even
present a credible version of the petitioner's role in the bombings even if it
ignores the subsequent disclaimers of Lovely and without relying on mere
affidavits including those made by Lovely during his detention.
12.
ID.;
CRIMINAL
PROCEDURE;
PRELIMINARY
INVESTIGATION; PURPOSE; TRIAL JUDGE HAS DUTY TO
SPARE ACCUSED FROM PAIN OF TRIAL IF THERE IS
INSUFFICIENT EVIDENCE. The purpose of a preliminary
investigation is to secure the innocent against hasty, malicious and
oppressive prosecution, and to protect him from an open and public
accusation of crime, from the trouble, expense and anxiety of a public trial,
and also to protect the state from useless and expensive trials. (Trocio v.
Manta, 118 SCRA 241, citing Hashim v. Boncan, 71 Phil. 216) The right to
a preliminary investigation is a statutory grant, and to withhold it would be
to transgress constitutional due process. (See People v. Oandasa, 25 SCRA
277) However, in order to satisfy the due process clause it is not enough
that the preliminary investigation is conducted in the sense of making sure
that a transgressor shall not escape with impunity. A preliminary
investigation serves not only the purposes of the State. More important, it is
a part of the guarantees of freedom and fair play which are birthrights of all
who live in our country. It is, therefore, imperative upon the fiscal or the
judge as the case may be, to relieve the accused from the pain of going
through a trial once it is ascertained that the evidence is insufficient to
sustain a prima facie case or that no probable cause exists to form a
sufficient belief as to the guilt of the accused.
13.
CONSTITUTIONAL LAW; BILL OF RIGHTS; EXTENT OF
CONSTITUTIONAL GUARANTEE; COURT'S FUNCTION IS TO
EDUCATE BENCH AND BAR THEREON. The setting aside or
declaring void, in proper cases, of intrusions of State authority into areas
reserved by the Bill of Rights for the individual as constitutionally protected
spheres where even the awesome powers of Government may not enter at
will is not the totality of the Court's functions. The Court also has the duty
to formulate guiding and controlling constitutional principles, precepts,

doctrines, or rules. It has the symbolic function of educating bench and bar
on the extent of protection given by constitutional guarantees.

shopping at Rustan's Supermarket in Makati and others which caused

injuries to a number of persons.

DECISION
GUTIERREZ, JR., J p:
The petitioner invokes the constitutionally protected right to life and liberty
guaranteed by the due process clause, alleging that no prima facie case has
been established to warrant the filing of an information for subversion
against him. Petitioner asks this Court to prohibit and prevent the
respondents from using the iron arm of the law to harass, oppress, and
persecute him, a member of the democratic opposition in the Philippines.
The background of this case is a matter of public knowledge.

On September 20, 1980, the President's anniversary television radio press

conference was broadcast. The younger brother of Victor Lovely, Romeo,
was presented during the conference. In his interview, Romeo stated that he
had driven his elder brother, Victor, to the petitioner's house in Greenhills
on two occasions. The first time was on August 20, 1980. Romeo stated that
Victor did not bring any bag with him on that day when he went to the
petitioner's residence and did not carry a bag when he left. The second time
was in the afternoon of August 31, 1980 when he brought Victor only to the
gate of the petitioner's house. Romeo did not enter the petitioner's residence.
Neither did he return that day to pick up his brother.

A rash of bombings occurred in the Metro Manila area in the months of

August, September and October of 1980. On September 6, 1980, one Victor
Burns Lovely, Jr., a Philippine-born American citizen from Los Angeles,
California, almost killed himself and injured his younger brother, Romeo, as
a result of the explosion of a small bomb inside his room at the YMCA
building in Manila. Found in Lovely's possession by police and military
authorities were several pictures taken sometime in May, 1980 at the
birthday party of former Congressman Raul Daza held at the latter's
residence in a Los Angeles suburb. Petitioner Jovito R. Salonga and his
wife were among those whose likenesses appeared in the group pictures
together with other guests, including Lovely.
As a result of the serious injuries he suffered, Lovely was brought by
military and police authorities to the AFP Medical Center (V. Luna
Hospital) where he was place in the custody and detention of Col. Roman P.
Madella, under the over-all direction of General Fabian Ver, head of the
National Intelligence and Security Authority (NISA). Shortly afterwards,
Mr. Lovely and his two brothers, Romeo and Baltazar Lovely where
charged with subversion, illegal possession of explosives, and damage to
property.
On September 12, 1980, bombs once again exploded in Metro Manila
including one which resulted in the death of an American lady who was

The next day, newspapers came out with almost identical headlines stating
in effect that petitioner had been linked to the various bombings in Metro
Manila.
Meanwhile, on September 25, 1980, Lovely was taken out of the hospital's
intensive care unit and transferred to the office of Col. Madella where he
was held incommunicado for sometime.
On the night of October 4, 1980, more bombs were reported to have
exploded at three big hotels in Metro Manila, namely: Philippine Plaza,
Century Park Sheraton and Manila Peninsula. The bombs injured nine
people. A meeting of the General Military Council was called for October
6, 1980.
On October 19, 1980, minutes after the President had finished delivering his
speech before the International Conference of the American Society of
Travel Agents at the Philippine International Convention Center, a small
bomb exploded. Within the next twenty-four hours, arrest, search, and
seizure orders (ASSOs) were issued against persons who were apparently
implicated by Victor Lovely in the series of bombings in Metro Manila.
One of them was herein petitioner Victor Lovely offered himself to be a
"state witness" and in his letter to the President, he stated that he will reveal
everything he knows about the bombings.

On October 21, 1980, elements of the military went to the hospital room of
the petitioner at the Manila Medical Center where he was confined due to
his recurrent and chronic ailment of bronchial asthma and placed him under
arrest. The arresting officer showed the petitioner the ASSO form which
however did not specify the charge or charges against him. For some time,
the petitioner's lawyers were not permitted to visit him in his hospital room
until this Court in the case of Ordoez v. Gen. Fabian Ver, et al., (G.R. No.
55345, October 28, 1980) issued an order directing that the petitioner's right
to be visited by counsel be respected.
On November 2, 1980, the petitioner was transferred against his objections
from his hospital arrest to an isolation room without windows in an army
prison camp at Fort Bonifacio, Makati. The petitioner states that he was not
informed why he was transferred and detained, nor was he ever investigated
or questioned by any military or civil authority.
Subsequently, on November 27, 1980, the petitioner was released for
humanitarian reasons from military custody and placed "under house arrest
in the custody of Mrs. Lydia Salonga" still without the benefit of any
investigation or charges.
On December 10, 1980, the Judge Advocate General sent the petitioner a
"Notice of Preliminary Investigation" in People v. Benigno Aquino, Jr., et
al. (which included petitioner as a co-accused), stating that "the preliminary
investigation of the above-entitled case has been set at 2:30 o'clock p.m. on
December 12, 1980" and that petitioner was given ten (10) days from
receipt of the charge sheet and the supporting evidence within which to file
his counter-evidence. The petitioner states that up to the time martial law
was lifted on January 17, 1981, and despite assurance to the contrary, he has
not received any copies of the charges against him nor any copies of the socalled supporting evidence.
On February 9, 1981, the records of the case were turned over by the Judge
Advocate General's Office to the Ministry of Justice.
On February 24, 1981, the respondent City Fiscal filed a complaint accusing
petitioner, among others of having violated Republic Act No. 1700, as

amended by P.D. 885 and Batas Pambansa Blg. 31 in relation to Article 142
of the Revised Penal Code. The inquest court set the preliminary
investigation for March 17, 1981.
On March 6, 1981, the petitioner was allowed to leave the country to attend
a series of church conferences and undergo comprehensive medical
examinations of the heart, stomach, liver, eye and ear including a possible
removal of his left eye to save his right eye. Petitioner Salonga almost died
as one of the principal victims of the dastardly bombing of a Liberal Party
rally at Plaza Miranda on August 20, 1971. Since then, he has suffered
serious disabilities. The petitioner was riddled with shrapnel and pieces still
remain in various parts of his body. He has an AV fistula caused by a piece
of shrapnel lodged one millimeter from his aorta. The petitioner has limited
use of his one remaining hand and arms, is completely blind and phthisical
in the left eye, and has scar like formations in the remaining right eye. He is
totally deaf in the right ear and partially deaf in the left ear. The petitioner's
physical ailments led him to seek treatment abroad.
On or around March 26,1981, the counsel for petitioner was furnished a
copy of an amended complaint signed by Gen. Prospero Olivas, dated
March 12, 1981, charging the petitioner, along with 39 other accused with
the violation of R.A. 1700, as amended by P.D. 885, Batas Pambansa Blg.
31 and P.D. 1736. Hearings for preliminary investigation were conducted.
The prosecution presented as its witnesses Ambassador Armando
Fernandez, the Consul General of the Philippines in Los Angeles,
California, Col. Balbino Diego, PSC/NISA, Chief, Investigation and Legal
Panel of the Presidential Security Command and Victor Lovely himself.
On October 15, 1981, the counsel for petitioner filed a motion to dismiss the
charges against petitioner for failure of the prosecution to establish a prima
facie case against him.
On December 2, 1981, the respondent judge denied the motion. On January
4, 1982, he issued a resolution ordering the filing of an information for
violation of the Revised Anti-Subversion Act, as amended, against forty
(40) people, including herein petitioner.

The resolutions of the respondent judge dated December 2, 1981 and

January 4, 1982 are now the subject of the petition. It is the contention of
the petitioner that no prima facie case has been established by the
prosecution to justify the filing of an information against him. He states that
to sanction his further prosecution despite the lack of evidence against him
would be to admit that no rule of law exists in the Philippines today.

"There is no disputing the validity and wisdom of the rule invoked by the
respondents. However, it is also recognized that. under certain situations,
recourse to the extraordinary legal remedies of certiorari, prohibition or
mandamus to question the denial of a motion to quash is considered proper
in the interest of 'more enlightened and substantial justice', as was so
declared in 'Yap v. Lutero', G.R. No. L-12669, April 30, 1969."

After a painstaking review of the records, this Court finds the evidence
offered by the prosecution utterly insufficient to establish a prima facie case
against the petitioner. We grant the petition.

Infinitely more important than conventional adherence to general rules of

criminal procedure is respect for the citizen's right to be free not only from
arbitrary arrest and punishment but also from unwarranted and vexatious
prosecution. The integrity of a democratic society is corrupted if a person is
carelessly included in the trial of around forty persons when on the very
face of the record no evidence linking him to the alleged conspiracy exists.

However, before going into the merits of the case, we shall pass upon a
procedural issue raised by the respondents.
The respondents call for adherence to the consistent rule that the denial of a
motion to quash or to dismiss, being interlocutory in character, cannot be
questioned by certiorari; that since the question of dismissal will again be
considered by the court when it decides the case, the movant has a plain,
speedy and adequate remedy in the ordinary course of law; and that public
interest dictates that criminal prosecutions should not be enjoined.
The general rule is correctly stated. However, the respondents fail to
appreciate or take into account certain exceptions when a petition for
certiorari is clearly warranted. The case at bar is one such exception.
In the case of Mead v. Angel (115 SCRA 256) the same contentions were
advanced by the respondents to wit:
xxx
xxx
xxx
". . . Respondents advert to the rule that when a motion to quash filed by an
accused in a criminal case shall be denied, the remedy of the accusedmovant is not to file a petition for certiorari or mandamus or prohibition, the
proper recourse being to go to trial, without prejudice to his right to reiterate
the grounds invoked in his motion to quash if an adverse judgment is
rendered against him, in the appeal that he may take therefrom in the
manner authorized by law. (Mill v. People, et al., 101 Phil. 599; Echarol v.
Purisima, et al., 13 SCRA 309.)
On this argument, we ruled:

Ex-Senator Jovito Salonga, himself a victim of the still unresolved and

heinous Plaza Miranda bombings, was arrested at the Manila Medical
Center while hospitalized for bronchial asthma. When arrested, he was not
informed of the nature of the charges against him. Neither was counsel
allowed to talk to him until this Court intervened through the issuance of an
order directing that his lawyers be permitted to visit him (Ordoez v. Gen.
Fabian Ver, et al., G.R. No. 55345, October 28, 1980). Only after four
months of detention was the petitioner informed for the first time of the
nature of the charges against him. After the preliminary investigation, the
petitioner moved to dismiss the complaint but the same was denied.
Subsequently, the respondent judge issued a resolution ordering the filing of
an information after finding that a prima facie case had been established
against all of the forty persons accused.
In the light of the failure to show prima facie that the petitioner was
probably guilty of conspiring to commit the crime, the initial disregard of
petitioner's constitutional rights together with the massive and damaging
publicity made against him, justifies the favorable consideration of this
petition by this Court. With former Senator Benigno Aquino, Jr. now
deceased, there are at least 38 other co-accused to be tried with the
petitioner. The prosecution must present proof beyond reasonable doubt
against each and every one of the 39 accused, most of whom have varying
participations in the charge for subversion. The prosecution's star witness

Victor Lovely and the only source of information with regard to the alleged
link between the petitioner and the series of terrorist bombings is now in the
United States. There is reason to believe the petitioner's citation of
international news dispatches ** that the prosecution may find it difficult if
not infeasible to bring him back to the Philippines to testify against the
petitioner. If Lovely refused to testify before an American federal grand
jury how could he possibly be made to testify when the charges against the
respondent come up in the course of the trial against the 39 accused.
Considering the foregoing, we find it in the interest of justice to resolve at
this stage the issue of whether or not the respondent judge gravely abused
his discretion in issuing the questioned resolutions.
The respondents contend that the prosecution will introduce additional
evidence during the trial and if the evidence, by then, is not sufficient to
prove the petitioner's guilt, he would anyway be acquitted. Yes, but under
the circumstances of this case, at what cost not only to the petitioner but to
the basic fabric of our criminal justice system?
The term "prima facie evidence" denotes evidence which, if unexplained or
uncontradicted, is sufficient to sustain the proposition it supports or to
establish the facts, or to counterbalance the presumption of innocence to
warrant a conviction. The question raised before us now is: Were the
evidences against the petitioner uncontradicted and if they were
unexplained or uncontradicted, would they, standing alone, sufficiently
overcome the presumption of innocence and warrant his conviction?
We do not think so.
The records reveal that in finding a case against the petitioner, the
respondent judge relied only on the testimonies of Col. Balbino Diego and
Victor Lovely. Ambassador Armando Fernandez, when called upon to
testify on subversive organizations in the United States nowhere mentioned
the petitioner as an organizer, officer or member of the Movement for Free
Philippines (MFP), or any of the organizations mentioned in the complaint.
Col. Diego, on the other hand, when asked what evidence he was able to
gather against the petitioner depended only on the statement of Lovely "that
it was the residence of ex-Senator Salonga where they met together with
Renato Taada, one of the brains of the bombing conspiracy . . . and the fact

that Sen. Salonga has been meeting with several subversive personnel based
in the U.S.A. was also revealed to me by Victor Burns Lovely; " and on the
group pictures taken at former Congressman Raul Daza's birthday party. In
concluding that a conspiracy exists to overthrow by violent means the
government of the Philippines in the United States, his only bases were
"documentary as well as physical and sworn statements that were referred to
me or taken by me personally," which of course negate personal knowledge
on his part. When asked by the court how he would categorize petitioner in
any of the subversive organizations, whether petitioner was an organizer,
officer or a member, the witness replied:
"A.
To categorize former Senator Salonga if he were an organizer, he
is an officer or he is a member, your Honor, please, we have to consider the
surrounding circumstances and on his involvement: first, Senator Salonga
wanted always to travel to the United States at least once a year or more
often under the pretext of to undergo some sort of operation and participate
in some sort of seminar. (t.s.n., April 21, 1981, pp. 14-15)
Such testimony, being based on affidavits of other persons and purely
hearsay, can hardly qualify as prima facie evidence of subversion. It should
not have been given credence by the court in the first place. Hearsay
evidence, whether objected to or not, has no probative value as the affiant
could not have been cross-examined on the facts stated therein. (See People
v. Labinia, 115 SCRA 223; People v. Valero, 112 SCRA 661). Moreover,
as Victor Lovely, himself, was personally examined by the court, there was
no need for the testimony of Col. Diego. Thus, the inquest judge should
have confined his investigation to Victor Burns Lovely, the sole witness
whose testimony had apparently implicated petitioner in the bombings
which eventually led to the filing of the information.
Lovely's account of the petitioner's involvement with the former's bombing
mission is found in his sworn statement made before Col. Diego and Lt.
Col. Madella and taken on October 17, 1980 at the AFP Medical Center.
Lovely was not presented as a prosecution or state witness but only as a
defense witness for his two younger brothers, Romeo and Baltazar, who
were both included in the complaint but who were later dropped from the
information. Victor Lovely was examined by his counsel and crossexamined by the fiscal. In the process, he identified the statement which he

made before Col. Diego and Lt. Col. Madella. After Lovely's testimony, the
prosecution made a manifestation before the court that it was adopting
Lovely as a prosecution witness.
According to Lovely's statement, the following events took place:
"36. Q. Did Psinakis tell you where to stay?
"A.
Yes, at first he told me to check-in at Manila Hotel or the Plaza
Hotel where somebody would come to contact me and give the materials
needed in the execution of my mission. I thought this was not safe so I
disagreed with him. Mr. Psinakis changed the plan and instead told me to
visit the residence of Ex-Sen. Jovito Salonga as often as I can and someone
will meet me there to give the materials I needed to accomplish my mission.
"37. Q. Did you comply as instructed?
"A.
Yes, I arrived in Manila on August 20, 1980 and stayed at the
residence of Mr. Johnny Chua, husband of my business partner, then I went
to the Hospital where I visited my mother and checked-in at Room 303 of
the YMCA at Concepcion Street, Manila.
"38. Q. Did you visit the residence of former Senator Jovito Salonga as
directed by Psinakis?
"A.
I visited Sen. Salonga's place three (3) times, the first visit was
August 20 or 21, and the last was 4:00 P.M. of August 31, 1980. In addition
to these visits, I TALKED to him on the phone about three or four times.
On my first visit, I told him 'I am expecting an attache case from somebody
which will be delivered to your house,' for which Sen. Salonga replied
'Wala namang nagpunta dito at wala namang attache case para sa iyo.'
However, if your attache case arrives, I'll just call you.' I gave him my
number. On my second visit, Salonga said, 'I'll be very busy so just come
back on the 31st of August at 4 P.M.' On that date, I was with friends at
Batulao Resort and had to hurry back to be at Salonga's place for the
appointment. I arrived at Salonga's place at exactly 4 P.M.
"39. Q. What happened then?
"A.
I was ushered to the sala by Mrs. Salonga and after five minutes,
Sen. Salonga joined me in the sala. Sen. Salonga informed me that
somebody will be coming to give me the attache case but did not tell me the
name.
"40. Q. Are there any subject matters you discussed while waiting for that
somebody to deliver your materials?

"A.
Yes, Salonga asked if Sen. Aquino and I have met, I explained to
him the efforts of Raul Daza in setting up that meeting but I have previous
business commitments at Norfolk, Virginia. I told him, however, that
through the efforts of Raul Daza, I was able to talk with Ninoy Aquino in
the airport telephone booth in San Francisco. He also asked about Raul
Daza, Steve Psinakis and the latest opposition group activities but it seems
he is well informed.
"41. Q. How long did you wait until that somebody arrived?
"A.
About thirty (30) minutes.
"42. Q. What happened when the man arrived?
"A.
This man arrived and I was greatly surprised to see Atty. Renato
Taada. Jovy Salonga was the one who met him and as I observed parang
nasa sariling bahay si Taada nung dumating. They talked for five (5)
minutes in very low tones so I did not hear what they talked about. After
their whispering conversations, Sen. Salonga left and at this time Atty. 'Nits'
Taada told me 'Nasa akin ang kailangan mo, nasa kotse.'
"43. Q. Were the materials given to you?
"A.
When Sen. Salonga came back, we asked to be permitted to leave
and I rode in Atty. Nits Taada's old Pontiac car colored dirty brown and
proceeded to Broadway Centrum where before I alighted, Atty. Taada
handed me a 'Puma' bag containing all the materials I needed.
xxx

xxx

xxx

"45. Q. What were the contents of the Puma bag?

"A.
Ten (10) pieces of Westclox pocket watch with screw and wirings,
ten (10) pieces electrical blasting caps 4" length, ten (10) pieces nonelectrical blasting caps 1" length, nine (9) pieces volts dry cell battery, two
(2) improvised electrical testers, ten (10) plastic packs of high explosive
about 1 pound weight each.
However, in his interview with Mr. Ronnie Nathanielz which was aired on
Channel 4 on November 8, 1980 and which was also offered as evidence by
the accused, Lovely gave a different story which negates the above
testimony insofar as the petitioner's participation was concerned:
xxx
xxx
xxx

"Q.
Who were the people that you contacted in Manila and for what
purpose?
"A.
Before I left for the Philippines, Mr. Psinakis told me to check-in
at the Manila Hotel or the Plaza Hotel, and somebody would just deliver the
materials I would need. I disapproved of this, and I told him I would prefer
a place that is familiar to me or who is close to me. Mr. Psinakis suggested
the residence of Sen. Salonga.
"And so, I arrived in Manila on August 20, 1980, I made a call to
Sen. Salonga, but he was out. The next day I made a call again. I was able
to contact him. I made an appointment to see him. I went to Sen. Salonga's
house the following day. I asked Sen. Salonga if someone had given him an
attache case for me. He said nobody. Afterwards, I made three calls to Sen.
Salonga. Sen. Salonga told me 'call me again on the 31st of August. I did
not call him, I just went to his house on the 31st of August at 4 P.M. A few
minutes after my arrival Atty. Renato Taada arrived. When he had a
chance to be near me, he (Atty. Taada) whispered to me that he had the
attache case and the materials I needed in his car. These materials were
given to me by Atty. Taada when I alighted at the Broadway Centrum.'
(Emphasis supplied)
During the cross-examination, counsel for petitioner asked Lovely about the
so-called destabilization plan which the latter mentioned in his sworn
statement:
"Q.
You mentioned in your statement taken on October 17, 1980,
marked Exhibit 'G' about the so-called destabilization plan of Aquino.
When you attended the birthday party of Raul Daza wherein Jovito Salonga
was also present, was this destabilization plan as alleged by you already
formulated?
WITNESS:
"A.
Not to my knowledge.
COURT TO WITNESS:
"Q.
Mr. Witness, who invited you to the party?
"A.
Raul Daza, your Honor.
"Q.
Were you told that Mr. Salonga would be present in the party?
"A.
I am really not quite sure, your Honor.

"Q.
Alright. You said initially it was social but then it became political.
Was there any political action taken as a result of the party?
"A.
Only political discussion, your Honor." (TSN, July 8, 1981, pp. 6984)
Counsel for petitioner also asked Lovely whether in view of the latter's
awareness of the physical condition of petitioner, he really implicated
petitioner in any of the bombings that occurred in Metro Manila. The fiscal
objected without stating any ground. In sustaining the objection, the Court
said:
"Sustained . . . The use of the word 'implicate' might expand the role of Mr.
Salonga. In other words, you are widening the avenue of Mr. Salonga's role
beyond the participation stated in the testimony of this witness about Mr.
Salonga, at least, as far as the evidence is concerned, I supposed, is only
being in the house of Mr. Salonga which was used as the contact point. He
never mentions Mr. Salonga about the bombings. Now these words had to
be put in the mouth of this witness. That would be unfair to Mr. Salonga."
(TSN. July 8, 1981, p. 67)
Respondent judge further said:
"COURT:
"As the Court said earlier, the parts or portions affecting Salonga
only refers to the witness coming to Manila already then the matter of . . . I
have gone over the statement and there is no mention of Salonga insofar as
activities in the United States is concerned. I don't know why it concerns
this cross-examination.
"ATTY. YAP:
"Because according to him, it was in pursuance of the plan that he
came to Manila.
"COURT:
"According to him it was Aquino, Daza, and Psinakis who asked
him to come here, but Salonga was introduced only when he (Lovely) came
here. Now, the tendency of the question is also to connect Salonga to the
activities in the United States. It seems to be the thrust of the questions.
"COURT:
"In other words, the point of the Court as of the time when yon
asked him question, the focus on Salonga was only from the time when he
met Salonga at Greenhills. It was the first time that the name of Salonga

came up. There was no mention of Salonga in the formulation of the

destabilization plan as affirmed by him. But you are bringing this up
although you are only cross-examining for Salonga as if his (Lovely's)
activities in the United States affected Salonga." (TSN, July 8, 1981, pp. 7374)
Apparently, the respondent judge wanted to put things in proper perspective
by limiting the petitioner's alleged "participation" in the bombing mission
only to the fact that petitioner's house was used as a "contact point" between
Lovely and Taada, which was all that Lovely really stated in his testimony.
However, in the questioned resolution dated December 2, 1981, the
respondent judge suddenly included the "activities" of petitioner in the
United States as his basis for denying the motion to dismiss:
"On the activities of Salonga in the United States, the witness, Lovely, in
one of his statements declared: 'To the best of my recollection he mentioned
of some kind of violent struggle in the Philippines being most likely should
reforms be not instituted by President Marcos immediately.'
"It is therefore clear that the prosecution's evidence has established facts
and circumstances sufficient for a finding that excludes a Motion to Dismiss
by respondent Salonga. The Movement for Free Philippines is undoubtedly
a force born on foreign soil, it appears to rely on the resources of foreign
entities, and is being (sic) on gaining ascendancy in the Philippines with the
use of force and for that purpose it has linked itself with even communist
organizations to achieve its end. It appears to rely on aliens for its
supporters and financiers."
The jump from the "contact point" theory to the conclusion of involvement
in subversive activities in the United States is not only inexplicable but
without foundation.
The respondents admit that no evidence was presented directly linking
petitioner Salonga to actual acts of violence or terrorism. There is no proof
of his direct participation in any overt acts of subversion. However, he is
tagged as a leader of subversive organizations for two reasons
(1)
Because his house was used as a "contact point"; and

(2)
Because "he mentioned some kind of violent struggle in the
Philippines being most likely should reforms be not instituted by President
Marcos immediately."
The "contact point" theory or what the petitioner calls the "guilt by visit or
guilt by association" theory is too tenuous a basis to conclude that Senator
Salonga was a leader or mastermind of the bombing incidents. To indict a
person simply because some plotters, masquerading as visitors, have
somehow met in his house or office would be to establish a dangerous
precedent. The right of citizens to be secure against abuse of governmental
processes in criminal prosecutions would be seriously undermined.
The testimony of Victor Lovely against petitioner Salonga is full of
inconsistencies. Senator Salonga and Atty. Renato Taada could not have
whispered to one another because the petitioner is almost totally deaf.
Lovely could not have met Senator Salonga at a Manglapus party in
Washington, D.C. in 1977 because the petitioner left for the United States
only on November, 1978. Senator Salonga denies having known Mr. Lovely
in the United States or in the Philippines. He states that he has hundred of
visitors from week to week in his residence but cannot recall any Victor
Lovely.
The presence of Lovely in a group picture taken at Mr. Raul Daza's birthday
party in Los Angeles where Senator Salonga was a guest is not proof of
conspiracy. As stated by the petitioner, in his many years in the turbulent
world of politics, he has posed with all kinds of people in various groups
and various places and could not possibly vouch for their conduct.
Commenting on the matter, newspaper columnist Teodoro Valencia stated
that Filipinos love to pose with important visitors and the picture proves
nothing.
It is likewise probable that a national figure and former politician of Senator
Salonga's stature can expect guests and visitors of all kinds to be visiting his
home or office. If a rebel or subversive happens to pose with the petitioner
for a group picture at a birthday party abroad, or even visit him with others
in his home, the petitioner does not thereby become a rebel or subversive,
much less a leader of a subversive group. More credible and stronger

evidence is necessary for an indictment. Nonetheless, even if we discount

the flaws in Lovely's testimony and dismiss the refutations and arguments
of the petitioner, the prosecution evidence is still inadequate to establish a
prima facie finding.
The prosecution has not come up with even a single iota of evidence which
could positively link the petitioner to any proscribed activities of the
Movement for Free Philippines or any subversive organization mentioned in
the complaint. Lovely had already testified that during the party of former
Congressman Raul Daza which was alleged to have been attended by a
number of members of the MFP, no political action was taken but only
political discussion. Furthermore, the alleged opinion of the petitioner about
the likelihood of a violent struggle here in the Philippines if reforms are not
instituted, assuming that he really stated the same, is nothing but a
legitimate exercise of freedom of thought and expression. No man deserves
punishment for his thoughts. Cogitationis poenam nemo meretur. And as
the late Justice Oliver W. Holmes stated in the case of U.S. v. Schwimmer,
279 U.S. 644, ". . . if there is any principle of the Constitution that more
imperatively calls for attachment than any other it is the principle of free
thought not free thought for those who agree with us but freedom for the
thought that we hate."
We have adopted the concept that freedom of expression is a "preferred"
right and, therefore, stands on a higher level than substantive economic or
other liberties. The primacy, the high estate accorded freedom of expression
is a fundamental postulate of our constitutional system. (Gonzales v.
Commission on Elections, 29 SCRA 835). As explained by Justice Cardozo
in Palko v. Connecticut (302 U.S. 319) this must be so because the lessons
of history, both political and legal, illustrate that freedom of thought and
speech is the indispensable condition of nearly every other form of freedom.
Protection is especially mandated for political discussions. This Court is
particularly concerned when allegations are made that restraints have been
imposed upon mere criticisms of government and public officials. Political
discussion is essential to the ascertainment of political truth. It cannot be the
basis of criminal indictments.

The United States Supreme Court in Noto v. United States (367 U.S. 290)
distinguished between the abstract teaching of the moral propriety or even
moral necessity for a resort to force and violence and speech which would
prepare a group for violent action and steel it to such action. In Watts v.
United States (394 U.S. 705), the American court distinguished between
criminal threats and constitutionally protected speech.
It stated:
"We do not believe that the kind of political hyperbole indulged in by
petitioner fits within that statutory term. For we must interpret the language
Congress chose against the background of a profound national commitment
to the principle that debate on public issues should be uninhibited, robust,
and wide open and that it may well include vehement, caustic, and
sometimes unpleasantly sharp attacks on government and public officials.
New York Times Co. v. Sullivan (376 U.S. 254). The language of the
political arena, like the language used in labor disputed is often vituperative,
abusive, and inexact. We agree with petitioner that his only offense was a
kind of very crude offensive method of stating a political opposition to the
President."
In the case before us, there is no teaching of the moral propriety of a resort
to violence, much less an advocacy of force or a conspiracy to organize the
use of force against the duly constituted authorities. The alleged remark
about the likelihood of violent struggle unless reforms are instituted is not a
threat against the government. Nor is it even the uninhibited, robust, caustic,
or unpleasantly sharp attack which is protected by the guarantee of free
speech. Parenthetically, the American case of Brandenburg v. Ohio (395
U.S. 444) states that the constitutional guarantees of free speech and free
press do not permit a State to forbid or proscribe advocacy of the use of
force or of law violation except where such advocacy is directed to inciting
or producing imminent lawless action and is likely to incite or produce such
action. The words which petitioner allegedly used according to the best
recollections of Mr. Lovely are light years away from such type of
proscribed advocacy.

Political discussion even among those opposed to the present administration

is within the protective clause of freedom of speech and expression. The
same cannot be construed as subversive activities per se or as evidence of
membership in a subversive organization. Under Presidential Decree No.
885, Section 3, paragraph 6, political discussion will only constitute prima
facie evidence of membership in a subversive organization if such
discussion amounts to:
"(6)
Conferring with officers or other members of such association or
organization in furtherance of any plan or enterprise thereof."
As stated earlier, the prosecution has failed to produce evidence that would
establish any link between petitioner and any subversive organization. Even
if we lend credence to Lovely's testimony that a political discussion took
place at Daza's birthday party, no proof whatsoever was adduced that such
discussion was in furtherance of any plan to overthrow the government
through illegal means. The alleged opinion that violent struggle is likely
unless reforms are instituted by no means shows either advocacy of or
incitement to violence or furtherance of the objectives of a subversive
organization.
Lovely also declared that he had nothing to do with the bombing on August
22, 1980, which was the only bombing incident that occurred after his
arrival in Manila on August 20, and before the YMCA explosion on
September 6, 1980. (See TSN, pp. 63-63, July 8, 1981). He further testified
that:
"WITNESS:
"Actually, it was not my intention to do some kind of bombing against the
government. My bombing mission was directed against the particular
family (referring to the Cabarrus family). [TSN, p. 11, July 9, 1981] [Rollo,
p. 10]
Such a statement wholly negates any politically motivated or subversive
assignment which Lovely was supposed to have been commissioned to
perform upon the orders of his co-accused and which was the very reason
why they were charged in the first place. The respondent judge also asked
Lovely about the possible relation between Cabarrus and petitioner:
"COURT:

"Q.
Did you suspect any relation between Cabarrus and Jovito Salonga,
why did you implicate Jovito Salonga?
"A.
No, your Honor. I did not try to implicate Salonga.
It should be noted that after Lovely's testimony, the prosecution manifested
to the court that it was adopting him as a prosecution witness. Therefore, the
prosecution became irreversively bound by Lovely's disclaimers on the
witness stand, that it was not his intention "to do some kind of bombing
against the government" and that he "did not try to implicate Salonga",
especially since Lovely is the sole witness adopted by the prosecution who
could supposedly establish the link between the petitioner and the bombing
incidents.
The respondent court should have taken these factors into consideration
before concluding that a prima facie case exists against the petitioner.
Evidence must not only proceed from the mouth of a credible witness but it
must be credible in itself such as the common experience and observation of
mankind can approve as probable under the circumstances. (People v.
Dayad, 56 SCRA 439). In the case at bar, the prosecution cannot even
present a credible version of the petitioner's role in the bombings even if it
ignores the subsequent disclaimers of Lovely and without relying on mere
affidavits including those made by Lovely during his detention.
The resolution dated January 4, 1982 suffers from the same defect. In this
resolution, Lovely's previous declarations about the bombings as part of the
alleged destabilization plan and the people behind the same were accorded
such credibility by the respondent judge as if they had already been proved
beyond reasonable doubt.
The purpose of a preliminary investigation is to secure the innocent against
hasty, malicious and oppressive prosecution, and to protect him from an
open and public accusation of crime, from the trouble, expense and anxiety
of a public trial, and also to protect the state from useless and expensive
trials. (Trocio v. Manta, 118 SCRA 241; citing Hashim v. Boncan, 71 Phil.
216). The right to a preliminary investigation is a statutory grant, and to
withhold it would be to transgress constitutional due process. (See People v.
Oandasa, 25 SCRA 277) However, in order to satisfy the due process clause

it is not enough that the preliminary investigation is conducted in the sense

of making sure that a transgressor shall not escape with impunity. A
preliminary investigation serves not only the purposes of the State. More
important, it is a part of the guarantees of freedom and fair play which are
birthrights of all who live in our country. It is, therefore, imperative upon
the fiscal or the judge as the case may be, to relieve the accused from the
pain of going through a trial once it is ascertained that the evidence is
insufficient to sustain a prima facie case or that no probable cause exists to
form a sufficient belief as to the guilt of the accused. Although there is no
general formula or fixed rule for the determination of probable cause since
the same must be decided in the light of the conditions obtaining in given
situations and its existence depends to a large degree upon the finding or
opinion of the judge conducting the examination, such a finding should not
disregard the facts before the judge nor run counter to the clear dictates of
reasons (See La Chemise Lacoste, S.A. v. Fernandez, 129 SCRA 391). The
judge or fiscal, therefore, should not go on with the prosecution in the hope
that some credible evidence might later turn up during trial for this would
be a flagrant violation of a basic right which the courts are created to
uphold. It bears repeating that the judiciary lives up to its mission by
vitalizing and not denigrating constitutional rights. So it has been before. It
should continue to be so. (Mercado v. Court of First Instance of Rizal, 116
SCRA 93)
The Court had already deliberated on this case, a consensus on the Court's
judgment had been arrived at, and a draft ponencia was circulating for
concurrences and separate opinions, if any, when on January 18, 1985,
respondent Judge Rodolfo Ortiz granted the motion of respondent City
Fiscal Sergio Apostol to drop the subversion case against the petitioner.
Pursuant to instructions of the Minister of Justice, the prosecution restudied
its evidence and decided to seek the exclusion of petitioner Jovito Salonga
as one of the accused in the information filed under the questioned
resolution.
We were constrained by this action of the prosecution and the respondent
Judge to withdraw the draft ponencia from circulating for concurrences and
signatures and to place it once again in the Court's crowded agenda for
further deliberations.

Insofar as the absence of a prima facie case to warrant the filing of

subversion charges is concerned, this decision has been rendered moot and
academic by the action of the prosecution.
Respondent Fiscal Sergio Apostol correctly points out, however, that he is
not precluded from filing new charges for the same acts because the
petitioner has not been arraigned and double jeopardy does not apply. In
that sense, the case is not completely academic.
Recent developments in this case serve to focus attention on a not too well
known aspect of the Supreme Court's functions.
The setting aside or declaring void, in proper cases, of intrusions of State
authority into areas reserved by the Bill of Rights for the individual as
constitutionally protected spheres where even the awesome powers of
Government may not enter at will is not the totality of the Court's functions.
The Court also has the duty to formulate guiding and controlling
constitutional principles, precepts, doctrines, or rules. It has the symbolic
function of educating bench and bar on the extent of protection given by
constitutional guarantees.
In dela Camara v. Enage (41 SCRA 1), the petitioner who questioned a
P1,195,200.00 bail bond as excessive and, therefore, constitutionally void,
escaped from the provincial jail while his petition was pending. The petition
became moot because of his escape but we nonetheless rendered a decision
and stated:
"The fact that the case is moot and academic should not preclude this
Tribunal from setting forth in language clear and unmistakable, the
obligation of fidelity on the part of lower court judges to the unequivocal
command of the Constitution that excessive bail shall not be required."
In Gonzales v. Marcos (65 SCRA 624) whether or not the Cultural Center
of the Philippines could validly be created through an executive order was
mooted by Presidential Decree No. 15, the Center's new charter pursuant to
the President's legislative powers under martial law. Still, this Court
discussed the constitutional mandate on the preservation and development

of Filipino culture for national identity. (Article XV, Section 9, Paragraph 2

of the Constitution)

the petition should have been resolved on the merits because it posed
important legal questions.

In the habeas corpus case of Aquino, Jr., v. Enrile, 59 SCRA 183), during
the pendency of the case, 26 petitioners were released from custody and one
withdrew his petition. The sole remaining petitioner was facing charges of
murder, subversion, and illegal possession of firearms. The fact that the
petition was moot and academic did not prevent this Court in the exercise of
its symbolic function from promulgating one of the most voluminous
decisions ever printed in the Reports.

Babst, et al. vs. National Intelligence Board, Special Committee No. 2, et

al., G.R. No. 62992, Sept. 2, 1984, was a petition for prohibition to restrain
the respondents from interrogating the petitioners, members of the print
media, on various aspects of their works, feelings, sentiments, beliefs,
associations and even their private lives. Again the majority of this Court
dismissed the petition because the assailed proceedings had come to an end
thereby rendering the petition moot and academic. In dismissing the petition
a short and mild note of concern was added. And again Justice Teehankee
and the undersigned disagreed with the majority. We expressed the view
that this Court should rule squarely on the matters raised in the petition
rather than dismiss it for having become moot and academic.

In this case, the respondents agree with our earlier finding that the
prosecution evidence miserably fails to establish a prima facie case against
the petitioner, either as a co-conspirator of a destabilization plan to
overthrow the government or as an officer or leader of any subversive
organization. They have taken the initiative of dropping the charges against
the petitioner. We reiterate the rule, however, that this Court will not
validate the filing of an information based on the kind of evidence against
the petitioner found in the records.
WHEREFORE, the petition is DISMISSED for having become moot and
academic.
SO ORDERED.
Fernando, C.J., Teehankee, Makasiar, Concepcion, Jr., Melencio-Herrera,
Plana, Escolin, Relova and Cuevas, JJ., concur.
Aquino, De la Fuente and Alampay, JJ., took no part.
Separate Opinions
ABAD SANTOS, J., concurring:
Del Castillo vs. Ponce Enrile, G.R. No. 62119, August 27, 1984, 131 SCRA
405, was a petition for the writ of habeas corpus. Before this Court could
finally act on the petition, the subject was released and for that reason the
majority of this Court resolved to dismiss the petition for having become
moot and academic. Justice Teehankee and the undersigned disagreed with
the majority; we expressed the view that despite the release of the subject,

I am glad that this Court has abandoned its cavalier treatment of petitions by
dismissing them on the ground that they have become moot and academic
and stopped there. I am glad it has reverted to De la Camara vs. Enage,
Gonzales vs. Marcos and Aquino vs. Enrile which are mentioned in the
ponencia of Justice Gutierrez.
I agree with the ponencia of Justice Gutierrez that because the subversion
charges against the petitioner had been dropped by the trial court on January
18, 1985, there is no longer any need to prohibit the respondents from
prosecuting Criminal Case No. Q-18606 insofar as he is concerned.
I am not revealing any confidential matter by saying that the initial action of
this Court was to grant the petition, i.e. prohibit the prosecution of the
petitioner. This is manifest from the ponencia of Justice Gutierrez. I regret
that on this matter the Court has been pre-empted by a "first strike" which
has occurred once too often.
Justice Gutierrez states that, "The Court had already deliberated on this
case, and a consensus on the Court's judgment had been arrived at." Let me
add that the consensus had taken place as early as October 24, 1984, and the
decision started to circulate for signature on November 2, 1984. Alas, on
January 18, 1985, the decision was still circulating - overtaken by events.

The decision could have had a greater impact had it been promulgated prior
to the executive action.

HADJI IBRAHIM SOLAY PANGANDAMAN, MAGAMBAAN

PANGANDAMAN, MACARIAN PANGANDAMAN, MAMINTAL
PANGANDAMAN,
PACALUNDO
PANGANDAMAN,
MANGORAMAS
PANGANDAMAN,
MACADAOB
P.
PANGORANGAN,
KILATUN
PANGANDAMAN,
MARIO
PANGANDAMAN, MACABIDAR PANGANDAMAN, PUYAT P.
ROMAMPAT, SANTORANI P. DIMAPENGEN, NASSER P.
DIMAPENGEN and DIAMA OPAO, petitioners,
vs. DIMAPORO T. CASAR, AS MUNICIPAL CIRCUIT TRIAL JUDGE
OF POONABAYABAO, TAMPARAN AND MASIU, LANAO DEL SUR
and THE PEOPLE OF THE PHILIPPINES, respondents.
G.R. No. 71782
April 14, 1988
SYLLABUS
1.
REMEDIAL
LAW;
CRIMINAL
PROCEDURE;
PRELIMINARY INVESTIGATION; STAGES TO BE OBSERVED
BY A JUDGE OF AN INFERIOR COURT AUTHORIZED TO
CONDUCT PRELIMINARY INVESTIGATION OVER CRIMES
COGNIZABLE BY REGIONAL TRIAL COURT. A preliminary
investigation of any crime cognizable by the Regional Trial Courts, a judge
of an inferior court (other than in Metro-Manila or the chartered cities,
where no authority to conduct preliminary investigation is vested in such
officials) must observe the procedure prescribed in Section 3 of Rule 112,
1985 Rules on Criminal Procedure. And although not specifically so
declared, the procedure mandated by the Rule actually consists of two
phases or stages. The first phase consists of an ex-parte inquiry into the
sufficiency of the complaint and the affidavits and other documents offered
in support thereof. The second phase which gives the respondent
opportunity to present evidence concludes with the Judge rendering his
resolution, either for dismissal of the complaint or holding the respondent
for trial, to the provincial fiscal for appropriate action. (Rule 112, 1985
Criminal Procedure)

2.
ID.; ID.; WARRANT OF ARREST; COMPLETION OF
ENTIRE PROCEDURE OF PRELIMINARY INVESTIGATION,
NOT INDISPENSABLE TO ISSUANCE THEREOF. While Rule 20
provides is that no complaint or information for an offense cognizable by
the Regional Trial Court may be filed without completing the procedure,
nowhere is it provided that the entire procedure must be completed before a
warrant of arrest may issue. The rule is and has always been that such
issuance need only await a finding of probable cause as provided by Sec. 6
of Rule 112, not the completion of the entire procedure of preliminary
investigation.
3.
ID.; ID.; ID.; MEANING OF "SEARCHING QUESTIONS
AND ANSWERS". In Luna vs. Plaza, this Court ruled that the term
"searching questions and answers" means ". . . only, taking into
consideration the purpose of the preliminary examination which is to
determine "whether there is a reasonable ground to believe that an offense
has been committed and the accused is probably guilty thereof so that a
warrant of arrest may be issued and the accused held for trial," such
questions as have tendency to show the commission of a crime and the
perpetuator thereof. What would be searching questions would depend on
what is sought to be inquired into, such as: the nature of the offense, the
date, time, and place of its commission, the possible motives for its
commission; the subject, his age, education, status, financial and social
circumstances, his attitude toward the investigation, social attitudes,
opportunities to commit the offense; the victim, his age, status, family
responsibilities, financial and social circumstances, characteristics, etc. The
points that are the subject of inquiry may differ from case to case. The
questions, therefore must to a great degree depend upon the Judge making
the investigation . . ."
4.
ID.; ID.; ID.; WARRANT ISSUE AGAINST FIFTY JOHN
DOES, VOID FOR BEING GENERAL IN NATURE. A warrant is
issued against fifty (50) "John Does" not one of whom the witnesses to the
complaint could or would identify, it is of the nature of a general warrant,
one of a class of writs long proscribed as unconstitutional and once
anathematized as "totally subversive of the liberty of the subject." Clearly
violative of the constitutional injunction that warrants of arrest should

particularly describe the person or persons to be seized, the warrant must, as

regards its unidentified subjects, be voided.

suffering casualties. Another version has it that a group that was on its way
to another place, Lalabuan, also in Masiu, had been ambushed.

5.
ID.; ID.; PRELIMINARY INVESTIGATION; WHERE THE
PROVINCIAL FISCAL ANNOUNCED HIS INTENTION TO
INVESTIGATE THE INCIDENT, INVESTIGATING JUDGE
SHOULD ENDORSE THE SAME TO THE FORMER. In a case
where the Fiscal announced his intention to conduct his own inquiry, the
judge although he is not legally inhibited should as a courtesy endorse to the
former the investigation of the case filed with him. The action and final
resolution of the respondent Judge after completing the second stage of the
preliminary investigation are subject to review by the Provincial Fiscal.
Practical considerations of expediency and the avoidance of the duplication
of work dictate that the latter official be permitted to take over the
investigation even before the Municipal Judge completes his own inquiry.

On the following day, Atty. Mangurun Batuampar, claiming to represent the

widow of one of the victims, filed a letter-complaint with the Provincial
Fiscal at Marawi City, asking for a "full blast preliminary investigation" of
the incident. The letter adverted to the possibility of innocent persons being
implicated by the parties involved on both sides none of whom was,
however, identified and promised that supporting affidavits would
shortly be filed. Immediately the Provincial Fiscal addressed a "1st
indorsement" to the respondent Judge, transmitting Atty. Batuampar's letter
and requesting that "all cases that may be filed relative . . . (to the incident)
that happened in the afternoon of July 27, 1985," be forwarded to his office,
which "has first taken cognizance of said cases."
No case relative to the incident was, however, presented to the respondent
Judge until Saturday, August 10, 1985, when a criminal complaint for
multiple murder was filed before him by P.C. Sgt. Jose L. Laru-an, which
was docketed as Case No. 1748. On that same day, the respondent Judge
"examined personally all (three) witnesses (brought by the sergeant) under
oath thru . . . (his) closed and direct supervision," reducing to writing the
questions to the witnesses and the latter's answers. Thereafter the Judge
"approved the complaint and issued the corresponding warrant of arrest"
against the fourteen (14) petitioners (who were named by the witnesses) and
fifty (50) "John Does."

DECISION
NARVASA, J p:
The petitioners ask this Court:
1)
to annul the warrant for their arrest issued by respondent Judge
Dimaporo T. Casar of the Municipal Circuit Court of Masiu, Lanao del Sur,
in Criminal Case No. 1748 entitled "People vs. Hadji Ibrahim Solay
Pangandaman, et al.;"
2)
to prohibit the Judge from taking further cognizance of said
Criminal Case No. 1748; and
3)
to compel the Judge to forward the entire record of Criminal Case
No. 1748 to the Provincial Fiscal of Lanao del Sur for proper disposition.
Their plea is essentially grounded on the claim that the warrant for their
arrest was issued by the respondent Judge without a proper preliminary
investigation. The Solicitor General agrees and recommends that their
petition be granted and the warrant of arrest voided.
On July 27, 1985, a shooting incident occurred in Pantao, Masiu, Lanao del
Sur, which left at least five persons dead and two others wounded. What in
fact transpired is still unclear. According to one version, armed men had
attacked a residence in Pantao, Masiu, with both attackers and defenders

An "ex-parte" motion for reconsideration was filed on August 14, 1985 by

Atty. Batuampar (joined by Atty. Pama L. Muti), seeking recall of the
warrant of arrest and subsequent holding of a "thorough investigation" on
the ground that the Judge's initial investigation had been "hasty and
manifestly haphazard" with "no searching questions" having been
propounded. The respondent Judge denied the motion for "lack of basis;"
hence the present petition.
While they concede the authority of the respondent Judge to conduct a
preliminary investigation of the offenses involved, which are cognizable by
Regional Trial Courts, the petitioners and the Solicitor General argue that
the Judge in the case at bar failed to conduct the investigation in accordance

with the procedure prescribed in Section 3, Rule 112 of the Rules of Court;
and that failure constituted a denial to petitioners of due process which
nullified the proceedings leading to the issuance of the warrant for the
petitioners' arrest. It is further contended that August 10, 1985 was a
Saturday during which "Municipal Trial Courts are open from 8:00 a.m. to
1:00 p.m. only, . . ." and ". . . it would hardly have been possible for
respondent Judge to determine the existence of probable cause against
sixty-four (64) persons whose participations were of varying nature and
degree in a matter of hours and issue the warrant of arrest in the same day;
and that there was undue haste and an omission to ask searching questions
by the Judge who relied "mainly on the supporting affidavits which were
obviously prepared already when presented to him by an enlisted PC
personnel as investigator."

the case, to the provincial fiscal; or (2) that the complaint and the
supporting documents show sufficient cause to continue with the inquiry
and this ushers in the second phase.

The petitioners further assert that the respondent Judge conducted the
preliminary investigation of the charges ". . . in total disregard of the
Provincial Fiscal . . ." who, as said respondent well knew, had already taken
cognizance of the matter twelve (12) days earlier and was poised to conduct
his own investigation of the same; and that issuance of a warrant of arrest
against fifty (50) "John Does" transgressed the Constitutional provision
requiring that such warrants should particularly describe the persons or
things to be seized.

The procedure above described must be followed before the complaint or

information is filed in the Regional Trial Court. Failure to do so will result
in a denial of due process.

There can be no debate about the proposition that in conducting a

preliminary investigation of any crime cognizable by the Regional Trial
Courts, a judge of an inferior court (other than in Metro-Manila or the
chartered cities, where no authority to conduct preliminary investigation is
vested in such officials) must observe the procedure prescribed in Section 3
of Rule 112, 1985 Rules on Criminal Procedure. And although not
specifically so declared, the procedure mandated by the Rule actually
consists of two phases or stages.
The first phase consists of an ex-parte inquiry into the sufficiency of the
complaint and the affidavits and other documents offered in support thereof.
And it ends with the determination by the Judge either: (1) that there is no
ground to continue with the inquiry, in which case he dismisses the
complaint and transmits the order of dismissal, together with the records of

This second phase is designed to give the respondent notice of the

complaint, access to the complainant's evidence and an opportunity to
submit counter-affidavits and supporting documents. At this stage also, the
Judge may conduct a hearing and propound to the parties and their
witnesses questions on matters that, in his view, need to be clarified. The
second phase concludes with the Judge rendering his resolution, either for
dismissal of the complaint or holding the respondent for trial, which shall be
transmitted, together with the record, to the provincial fiscal for appropriate
action.

Here, no information is filed in the Regional Trial Court. There is no

pretense that the preliminary investigation has been completed, insofar as
the respondent Judge is concerned, and that he does not intend to undertake
the second phase. In this situation, it cannot be said that he has failed to
observe the prescribed procedure. What has happened is simply that after
receiving the complaint and examining the complainant's witnesses, and
having come to believe, on the basis thereof, that the offenses charged had
been committed, the respondent Judge issued the warrant now complained
of against the fourteen (14) respondents (now petitioners) named and
identified by the witnesses as the perpetrators of the killings and injuries, as
well as against 50 "John Does."
The real question, therefore, is whether or not the respondent Judge had the
power to issue the warrant of arrest without completing the entire prescribed
procedure for preliminary investigation. Stated otherwise, is completion of
the procedure laid down in Section 3 of Rule 112 a condition sine qua non
for the issuance of a warrant of arrest?

There is no requirement that the entire procedure for preliminary

investigation must be completed before a warrant of arrest may be issued.
What the Rule provides is that no complaint or information for an offense
cognizable by the Regional Trial Court may be filed without completing the
procedure. But nowhere is it provided that the procedure must be completed
before a warrant of arrest may issue. Indeed, it is the contrary that is true.
The present Section 6 of the same Rule 112 clearly authorizes the municipal
trial court to order the respondent's arrest even before opening the second
phase of the investigation if said court is satisfied that a probable cause
exists and there is a necessity to place the respondent under immediate
custody in order not to frustrate the ends of justice.
"SECTION 6.
When warrant of arrest may issue.
xxx
xxx
xxx
(b)
By the Municipal Trial Court. If the municipal trial judge
conducting the preliminary investigation is satisfied after an examination in
writing and under oath of the complainant and his witnesses in the form of
searching questions and answers, that a probable cause exists and that there
is a necessity of placing the respondent under immediate custody in order
not to frustrate the ends of justice, he shall issue a warrant of arrest."
This was equally true under the former rules, where the first phase of the
investigation was expressly denominated "preliminary examination" to
distinguish it from the second phase, or preliminary investigation proper.
Thus, the former Section 6 of Rule 112 provided:
"SECTION 6.
Warrant of arrest, when issued. If the judge be satisfied
from the preliminary examination conducted by him or by the investigating
officer that the offense complained of has been committed and that there is
reasonable ground to believe that the accused has committed it, he must
issue a warrant or order for his arrest."
In Mayuga vs. Maravilla, this Court found occasion to dwell in some detail
on the process of preliminary investigation and, incidentally, to affirm the
power of a justice of the peace or municipal judge conducting a preliminary
investigation to order the arrest of the accused after the first stage
(preliminary examination), saying:

"Appellant should bear in mind that a preliminary investigation such as was

conducted by the Justice of the Peace has for its purpose only the
determination of whether a crime has been committed and whether there is
probable cause to believe the accused guilty thereof, and if so, the issuance
of a warrant of arrest. And it should not be forgotten that a preliminary
investigation has two stages: First, a preliminary examination of the
complainant and his witnesses prior to the arrest of the accused; and,
second, the reading to the accused after his arrest of the complaint or
information filed against him, and his being informed of the substance of
the evidence against him, after which he is allowed to present evidence in
his favor, if he so desires. Probable cause, in regard to the first stage of
preliminary investigation, depends on the discretion of the judge or
magistrate empowered to issue the warrant of arrest. It suffices that facts are
presented to him to convince him, not that a person has committed the
crime, but that there is probable cause to believe that such person
committed the crime charged. The proceeding is generally ex parte unless
the defendant desires to be present and while under the old Rules the Justice
of the Peace or investigating officer must take the testimony of the
complainant and the latter's witnesses under oath, only the testimony of the
complainant shall be in writing and only an abstract of the testimony of the
other is required. Regarding preliminary investigation, it has thus been ruled
that 'the occasion is not for the full and exhaustive display of the parties'
evidence; it is for the presentation of such evidence only as may engender
well-grounded belief that an offense has been committed and that the
accused is probably guilty thereof.' . . ."
The rule on arrest after preliminary examination has, of course, been
modified somewhat since the occurrence of the facts upon which Mayuga
was decided, but not to abrogate the authority of the investigating judge to
order such arrest, and only to prescribe the requirement that before he may
do so, he must examine the witnesses to the complaint, the examination to
be under oath and reduced to writing in the form of searching questions and
answers. This modification was introduced by Republic Act 3838, approved
June 22, 1963, amending Section 87 of the Judiciary Act of 1948, and the
"searching questions and answers" requirement is incorporated in the
present Section 6 of Rule 112 already quoted.

The argument, therefore, must be rejected that the respondent Judge acted
with grave abuse of discretion in issuing the warrant of arrest against
petitioners without first completing the preliminary investigation in
accordance with the prescribed procedure. The rule is and has always been
that such issuance need only await a finding of probable cause, not the
completion of the entire procedure of preliminary investigation.
Also without appreciable merit is petitioners' other argument that there was
scarcely time to determine probable cause against sixty-four persons (the
fourteen petitioners and fifty "Does") within a matter of hours on a Saturday
when municipal trial courts are open only from 8:00 a.m. to 1:00 p.m. That
argument founders upon the respondent Judge's positive affirmations that he
had personally and closely examined under oath the three witnesses to the
complaint and that he had issued the warrant of arrest "believing that the
offense thus filed had been committed." Nothing in the record before this
Court belies or discredits those affirmations which have, besides, the benefit
of the legal presumption that official duty has been regularly performed. 26
The contention that the witnesses to the complaint had merely sworn before
the respondent Judge to statements prepared beforehand and submitted by a
military investigator 27 must, in view of the foregoing considerations and
for lack of any support in the record, be dismissed as mere speculation.
The same argument also unwarrantedly assumes that the respondent Judge
limited the proceedings on preliminary examination to the usual Saturday
office hours of 8:00 a.m. to 1:00 p.m., in addition to not making any
persuasive showing that such proceedings could not have been completed
within that time-frame. For all that appears, said respondent could have put
off the 1:00 p.m. adjournment until he had finished interrogating the
witnesses to his satisfaction. And there is really nothing unusual in
completing within a three-hour period the questioning of three witnesses in
a preliminary examination to determine the existence of probable cause.
The record which, lacking proof to the contrary, must be accepted as an
accurate chronicle of the questioned proceedings, shows prima facie that the
respondent Judge had personally examined the witnesses to the complaint,
and a consideration of the latter's sworn answers to his questions satisfies

this Court that the finding of probable cause against the petitioners was
neither arbitrary nor unfounded.
The three witnesses to the complaint, Misandoning Monasprang, a student,
Lawandato Ripors, an engineering graduate, and Sanny Monib, a farmer,
gave mutually corroborative accounts of the incident. Under separate
questioning, they declared that they were members of a party that was
passing by Pantao on its way to Lalabuan from Talaguian, all in Masiu,
Lanao del Sur, at about 10:00 a.m. on July 27, 1985, when they were
ambushed and fired upon by an armed group which included the petitioners
and about fifty other unidentified persons; that five of the party had been
killed and two (the witnesses Lawandato Ripors and Sanny Monib)
wounded; that even after they had killed their victims, the ambushers had
continued to fire at the dead bodies; that the witnesses managed to escape
their attackers and return to Talaguian, where they informed their relatives
about what had happened, and thence went to the municipal hall in Masiu to
report to the authorities; that the dead victims were recovered only late in
the afternoon of that day because the authorities could not "penetrate" the
area and the ambushers refused to release the bodies; and that the ambush
was an offshoot of a grudge between the families of the ambushers and
those of the victims.
The witnesses named and identified the dead victims as Cadar Monasprang,
Macacrao Guiling, Macrang Hadji Alawi, Alicman Ripors and Malabato
Diator. All of them also identified by name each of the fourteen petitioners
as members of the ambush group. The respondent Judge can hardly be
faulted for finding enough cause to hold the petitioners named in the
statements of three eyewitnesses to killings perpetrated in broad daylight.
In Luna vs. Plaza, this Court ruled that the term "searching questions and
answers" means
". . . only, taking into consideration the purpose of the preliminary
examination which is to determine "whether there is a reasonable ground to
believe that an offense has been committed and the accused is probably
guilty thereof so that a warrant of arrest may be issued and the accused held
for trial," such questions as have tendency to show the commission of a
crime and the perpetuator thereof. What would be searching questions
would depend on what is sought to be inquired into, such as: the nature of

the offense, the date, time, and place of its commission, the possible
motives for its commission; the subject, his age, education, status, financial
and social circumstances, his attitude toward the investigation, social
attitudes, opportunities to commit the offense; the victim, his age, status,
family responsibilities, financial and social circumstances, characteristics,
etc. The points that are the subject of inquiry may differ from case to case.
The questions, therefore must to a great degree depend upon the Judge
making the investigation . . ."
Upon this authority, and considering what has already been stated above,
this Court is not prepared to question the propriety of the respondent Judge's
finding of probable cause or substitute its judgment for his in the matter of
what questions to put to the witnesses during the preliminary examination.
Upon the facts and the law, therefore, the warrant of arrest in question
validly issued against the petitioners, such issuance having been ordered
after proceedings, to which no irregularity has been shown to attach, in
which the respondent Judge found sufficient cause to commit the petitioners
to answer for the crime complained of.
Insofar, however, as said warrant is issued against fifty (50) "John Does"
not one of whom the witnesses to the complaint could or would identify, it
is of the nature of a general warrant, one of a class of writs long proscribed
as unconstitutional and once anathematized as "totally subversive of the
liberty of the subject." Clearly violative of the constitutional injunction that
warrants of arrest should particularly describe the person or persons to be
seized, the warrant must, as regards its unidentified subjects, be voided.
The fact that the Provincial Fiscal may have announced his intention of
investigating the incident himself did not, in the view of the Court, legally
inhibit the respondent Judge from conducting his own inquiry into the
matter if, as is made to appear here, it was regularly brought before him and
no formal complaint was filed before the Fiscal. Courtesy may have
dictated that in those circumstances he leave the investigation to the Fiscal
and simply endorse to the latter the complaint filed with him; duty did not,
and if he nonetheless chose to conduct his own investigation, nothing in the
rules states or implies that he could not do so.

Be that as it may, since the action and final resolution of the respondent
Judge after completing the second stage of the preliminary investigation are
subject to review by the Provincial Fiscal, practical considerations of
expediency and the avoidance of duplication of work dictate that the latter
official be permitted to take over the investigation even in its present stage.
WHEREFORE, the warrant complained of is upheld and declared valid
insofar as it orders the arrest of the petitioners. Said warrant is voided to the
extent that it is issued against fifty (50) "John Does." The respondent Judge
is directed to forward to the Provincial Fiscal of Lanao del Sur the record of
the preliminary investigation of the complaint in Criminal Case No. 1728 of
his court for further appropriate action. Without pronouncement as to costs.
SO ORDERED.
Teehankee, C.J., Cruz, Gancayco and Grio-Aquino, JJ., concur.

PEOPLE OF THE PHILIPPINES and ALYNN PLEZETTE DY,

petitioners,
vs. COURT OF APPEALS, BILLY CERBO and JONATHAN CERBO,
respondents.
G.R. No. 126005
January 21, 1999
SYNOPSIS
Jonathan Cerbo was charged in an information for murder in connection
with the fatal shooting of Rosalinda Dy inside the office of his father, Billy
Cerbo. The information was amended to include Billy Cerbo as one of the
accused and a warrant for his arrest was correspondingly issued.
Respondent judge, in a motion to quash warrant of arrest, dismissed the
case against Billy for insufficiency of evidence, recalled the warrant issued,
and ordered the prosecution to withdraw its amended information and to file
a new one charging Jonathan Cerbo only. The private prosecutor's motion
for reconsideration was denied, hence, his resort to the Court of Appeals.
The appellate court, in affirming the trial court held that the trial court RTC
has authority to reverse the prosecutor's finding of probable cause and
dismiss the information on the ground that the evidence presented did not
substantiate the charge. Hence, this recourse.
The determination of probable cause to hold a person for trial is a function
that belongs to the public prosecutor, the correctness of the exercise of
which is a matter that the trial court itself does not and may not be
compelled to pass upon. The judge should not override the public
prosecutor's determination of probable cause on the ground that the
evidence presented to substantiate the issuance of a warrant of arrest was
insufficient.
As a general rule, if the information is valid on its face and there is no
showing of manifest error, grave abuse of discretion or prejudice on the part
of the public prosecutor, courts should not dismiss it for want of evidence
because evidentiary matters should be presented and heard during the trial.

SYLLABUS
1.
REMEDIAL
LAW;
CRIMINAL
PROCEDURE;
PRELIMINARY
INVESTIGATION;
DETERMINATION
OF
PROBABLE CAUSE, AN EXECUTIVE FUNCTION. The
determination of probable cause during a preliminary investigation is a
function that belongs to the public prosecutor. It is an executive function,
the correctness of the exercise of which is a matter that the trial court itself
does not and may not be compelled to pass upon. Indeed, the public
prosecutor has broad discretion to determine whether probable cause exists
and to charge those whom he or she believes to have committed the crime
as defined by law. Otherwise stated, such official has the quasi-judicial
authority to determine whether or not a criminal case must be filed in court.
Therefore, if the information is valid on its face, and there is no showing of
manifest error, grave abuse of discretion and prejudice on the part of the
public prosecutor, the trial court should respect such determination.
2.
ID.; ID.; ID.; PURPOSE. The primary objective of a
preliminary investigation is to free respondent from the inconvenience,
expense, ignominy and stress of defending himself/herself in the course of a
formal trial, until the reasonable probability of his or her guilt in a more or
less summary proceeding by a competent office designated by law for that
purpose. Secondarily, such summary proceeding also protects the state from
the burden of the unnecessary expense and effort in prosecuting alleged
offenses and in holding trials arising from false, frivolous or groundless
charges.
3.
ID.; ID.; ID.; NATURE. Such investigation is not part of the
trial. A full and exhaustive presentation of the parties' evidence is not
required, but only such as may engender a well-grounded belief than an
offense has been committed and that the accused is probably guilty thereof.
By reason of the abbreviated nature of preliminary investigations, a
dismissal of the charges as a result thereof is not equivalent to a judicial
pronouncement of acquittal. Hence, no double jeopardy attaches.
4.
ID.; ID.; DETERMINATION OF PROBABLE CAUSE TO
HOLD A PERSON FOR TRIAL DISTINGUISHED FROM THAT OF
ISSUANCE OF WARRANT OF ARREST. In light of the aforecited

decisions of this Court; such justification cannot be upheld. Lest we be too

repetitive, we only emphasize three vital matters once more: First, as held in
Inting, the determination of probable cause by the prosecutor is for a
purpose different from that which is to be made by the judge. Whether there
is reasonable ground to believe that the accused is guilty of the offense
charged and should be held for trial is what the prosecutor passes upon. The
judge, on the other hand, determines whether a warrant of arrest should be
issued against the accused, i.e., whether there is a necessity for placing him
under immediate custody in order not to frustrate the ends of justice. Thus,
even if both should base their findings on one and the same proceeding or
evidence, there should be no confusion as to their distinct objectives.
5.
ID.; ID.; PROBABLE CAUSE FOR ISSUANCE OF
WARRANT OF ARREST, CONSTRUED. Probable cause for the
issuance of a warrant of arrest is the existence of such facts and
circumstances that would lead a reasonably discreet and prudent person to
believe that an offense has been committed by the person sought to be
arrested. Hence, the judge, before issuing a warrant of arrest, "must satisfy
himself that based on the evidence submitted there is sufficient proof that a
crime has been committed and that the person to be arrested is probably
guilty thereof." At this stage of the criminal proceeding, the judge is not yet
tasked to review in detail the evidence submitted during the preliminary
investigation. It is sufficient that he personally evaluates such evidence in
determining probable cause. In Webb v. De Leon, we stressed that the judge
merely determines the probability, not the certainty, of guilt of the accused
and, in doing so, he need not conduct a de novo hearing. He simply
personally reviews the prosecutor's initial determination finding probable
cause to see if it is supported by substantial evidence.
6.
ID.; ID.; PRELIMINARY INVESTIGATION; RULING IN
ALLADO AND SALONGA CASES, EXCEPTIONS TO THE
GENERAL RULE. The Court of Appeals anchored its ruling on the
pronouncement made in Allado v. Diokno: that there is no reason to hold
the accused for trial and further expose him to an open and public
accusation of the crime when no probable cause exists." Citing Salonga v.
Cruz Pao, the Court of Appeals pointed out that when there was no prima
facie case against a person sought to be charged with a crime, "the judge or

fiscal, therefore, should not go on with the prosecution in the hope that
some credible evidence might later turn out during trial, for this would be a
flagrant violation of a basic right which the courts are created to uphold. In
all, the Court decreed in both cases that there was no basis in law and in fact
for the judicial and executive determination of probable cause. The Court
also held that the government, while vested with the right and the duty to
protect itself and its people against transgressors of the law, must perform
the same in a a manner that would not infringe the perceived violators' right
as guaranteed by the Constitution. We stress that Allado and Salonga
constitute exceptions to the general rule and may be invoked only if similar
circumstances are clearly shown to exist. But as the foregoing comparisons
show, such similarities are absent in the instant case. Hence, the rulings in
the two aforementioned cases cannot apply to it.
7.
ID.; ID.; ID.; ID.; NOT APPLICABLE TO CASE AT BAR.
However, the present case is not on all four with Allado and Salonga. First.
Elsa Gumban, the principal eyewitness to the killing of Rosalinda Dy, was
not a participant or conspirator in the commission of said crime. In Allado
and Salonga, however, the main witness were the confessed perpetrators of
the crimes, whose testimonies the Court deemed 'tainted'. Second, in the
case at bar, the private respondent was accorded due process, and no
precipitate haste or bias during the investigation of the case can be imputed
to the public prosecutor. On the other hand, the Court noted Allado the
"undue haste in the filing of the Information and the inordinate interest of
the government" in pursuing the case; and in Salonga, ". . . the failure of the
prosecution to show that the petitioner was probably guilty of conspiring to
commit the crime, the initial disregard of petitioner's constitutional rights
[and] the massive and damaging publicity made against him. In other
words, while the respective sets of evidence before the prosecutors in
Allado and Salonga were "utterly insufficient" to support a finding of
probable cause, the same cannot be said of the present case.
8.
ID.; ID.; WRITTEN MOTIONS; MUST BE SET FOR
HEARING AND SERVED TO OTHER PARTY; RATIONALE. It
is settled that every written motion in a trial court must be set for hearing by
the applicant and served with the notice of hearing thereof, in such a
manner as to ensure its receipt by the other party. The provisions on this

matter in Sections 4 and 5, Rule 15 of the Rules of Court, are categorical

and mandatory in character. Under Section 6 of the said rule, no motion
shall be acted upon by the court without proof of service thereof. The
rationale for this rule is simple; unless the movants set the time and the
place of hearing, the court will be unable to determine whether the adverse
parties agree or object to the motions, since the rules themselves do not fix
any period within which they may file their replies or oppositions.
DECISION
PANGANIBAN, J p:
In our criminal justice system, the public prosecutor has the quasi-judicial
discretion to determine whether or not a criminal case should be filed in
court. Courts must respect the exercise of such discretion when the
information filed against the accused is valid on its face, and no manifest
error, grave abuse of discretion or prejudice can be imputed to the public
prosecutor.
The Case
Before us is a Petition for Review under Rule 45, seeking to reverse the
June 28, 1996 Decision and the August 27, 1996 Resolution of the Court of
Appeals in CA-GR SP No. 36018. The assailed Decision dismissed the
Petition for Certiorari filed by the petitioners, which sought to annul and set
aside two Orders of the Regional Trial Court of Nabunturan, Davao: the
June 28, 1994 Order dismissing the Information for murder filed against
Private Respondent Billy Cerbo and the August 18, 1994 Order denying
petitioners' motion for reconsideration.
The assailed August 27, 1996 Court of Appeals (CA) Resolution likewise
denied petitioners' motion for reconsideration.
The Facts
The case below arose from the fatal shooting of Petitioner Dy's mother,
Rosalinda Dy, in which the primary suspect was Private Respondent
Jonathan Cerbo, son of Private Respondent Billy Cerbo.
The procedural and factual antecedents of the case were summarized in the
challenged Decision of the Court of Appeals as follows:

"On August 30, 1993, Rosalinda Dy, according to the petition, was shot at
pointblank range by private respondent Jonathan Cerbo in the presence and
at the office of his father, private respondent Billy Cerbo at Purok 9,
Poblacion, Nabunturan, Davao.
"On September 2, 1993, eyewitness Elsa B. Gumban executed an affidavit
positively identifying private respondent Jonathan Cerbo as the assailant.
(Annex C, Rollo, p. 34).
"On September 20, 1993, private respondent Jonathan Cerbo executed a
counter-affidavit interposing the defense that the shooting was accidental
(Annex D, Rollo, pp. 35-36).
"On October 6, 1993, the 3rd Municipal Circuit Trial Court of NabunturanMawab, Davao, after a preliminary investigation, found "sufficient ground
to engender a well-founded belief" that the crime of murder has been
committed by private respondent Jonathan Cerbo and resolved to forward
the entire records of the case to the provincial prosecutor at Tagum, Davao
(Annex E, Rollo, pp. 37-38).
"After [an] information for murder was filed against Jonathan Cerbo,
petitioner Alynn Plezette Dy, daughter of the victim Rosalinda Dy,
executed an affidavit-complaint charging private respondent Billy Cerbo of
conspiracy in the killing (Annex F, Rollo, p. 39), supported by a
supplemental affidavit of Elsa B. Gumban, alleging "in addition" to her
previous statement that:
'3.
In addition to my said sworn statement, I voluntarily and freely
aver as follows:
'a)
I vividly recall that while my mistress Rosalinda Go and I were in
the office of Billy Cerbo at about 11:45 a.m. on August 30, 1993, Mr. Cerbo
personally instructed me to fetch the food from the kitchen [and to bring it]
to the office instead of the dining room.
'b)
While bringing the food, Mr. Cerbo again instructed me to place
the food [o]n a corner table and commanded me to sit behind the entrance
door and at the same time Mr. Cerbo positioned Rosalinda [on] a chair
facing the entrance door for an easy target.

'c)
Immediately after Rosalinda was shot, Mr. Billy Cerbo called his
son Jonathan who was running, but did not and ha[s] never bothered to
bring Rosalinda to a hospital or even apply first aid.
'd)
To my surprise, Mr. Billy Cerbo, instead of bringing Rosalinda to
the hospital, brought her to the funeral parlor and immediately ordered her
to be embalmed without even informing her children or any of her
immediate relatives . . .' Annex G, Rollo, p. 40.)
"Private respondent Billy Cerbo submitted a counter-affidavit denying the
allegations of both petitioner Alynn Plezette Dy and Elsa B. Gumban
(Annex H, Rollo, pp. 41-42).
"On or about April 8, 1994, Prosecutor Protacio Lumangtad filed a "Motion
for leave of court to reinvestigate the case" (Annex I, Rollo, pp. 43-44)
which was granted by the respondent judge in an order dated April 28, 1994
(Annex J, Rollo, p. 45).
"In his resolution dated May 5, 1994, Prosecutor Lumangtad recommended
the filing of an amended information including Billy Cerbo '. . . as one of
the accused in the murder case . . .' (Annex K: rollo, pp. 46-49).
"Accordingly, the prosecution filed an amended information including Billy
Cerbo in the murder case. A warrant for his arrest was later issued on May
27, 1994 (Rollo, p. 27).
"Private respondent Billy Cerbo then filed a motion to quash warrant of
arrest arguing that the same was issued without probable cause (Rollo, p.
27).
"On June 28, 1994, respondent Judge issued the first assailed order
dismissing the case against Billy Cerbo and recalling the warrant for his
arrest[;] the dispositive portion of [the order] reads:
'IN THE LIGHT OF ALL THE FOREGOING, [an] order is hereby issued
DISMISSING the case as against Billy Cerbo only."
'Let, therefore, the warrant of arrest, dated May 27, 1994, be RECALLED.
'The prosecution is hereby ordered to withdraw its Amended Information
and file a new one charging Jonathan Cerbo only.

'SO ORDERED.' (Rollo, pp. 29-30).

"Private Prosecutor Romeo Tagra filed a motion for reconsideration which
was denied by the respondent judge in his second assailed order dated
August 18, 1994 (Annex B, Rollo, pp. 31-33)."
The Ruling of the Court of Appeals
In its 10-page Decision, the Court of Appeals debunked petitioners'
assertion that the trial judge committed grave abuse of discretion in
recalling the warrant of arrest and subsequently dismissing the case against
Billy Cerbo. Citing jurisprudence, 4 the appellate court held as follows:
"The ruling is explicit. If upon the filing of the information in court, the trial
judge, after reviewing the information and the documents attached thereto,
finds that no probable cause exists, must either call for the complainant and
the witnesses or simply dismiss the case.
"Petitioners question the applicability of the doctrine laid down in the
above[-]mentioned case, alleging that the facts therein are different from the
instant case. We rule that the disparity of facts does not prevent the
application of the principle.
"We have gone over the supplemental affidavit of Elsa B. Gumban and
taking into account the additional facts and circumstances alleged therein,
we cannot say that respondent judge gravely abused his discretion in
dismissing the case as against private respondent Billy Cerbo for lack of
probable cause.
xxx
xxx
xxx
"The prosecution, if it really believed that Billy Cerbo is probably guilty by
conspiracy, should have presented additional evidence sufficiently and
credibly demonstrating the existence of probable cause.
xxx
xxx
xxx"
In sum, the Court of Appeals held that Judge Eugenio Valles did not
commit grave abuse of discretion in recalling the warrant of arrest issued
against Private Respondent Billy Cerbo and subsequently dismissing the
Information for murder filed against the private respondent, because the
evidence presented thus far did not substantiate such charge.
Hence, this petition.

The Assigned Errors

Petitioner Dy avers:
"1)
The Court of Appeals gravely erred in holding that the Regional
Trial Court Judge had the authority to reverse [the public prosecutor's]
finding of probable cause to prosecute accused . . . and thus dismiss the case
filed by the latter on the basis of a motion to quash warrant of arrest.
"2)
The Court of Appeals gravely erred in fully and unqualifiedly
applying the case of Allado, et al. vs. PACC, et al. G.R. No. 113630, [to]
the case at bench despite [the] clear difference in their respective factual
backdrop[s] and the contrary earlier jurisprudence on the matter."
On the other hand, the solicitor general posits this sole issue:
"Whether the Court of Appeals erred in finding that no probable cause
exists to merit the filing of charges against private respondent Billy Cerbo."
Essentially, the petitioners are questioning the propriety of the trial court's
dismissal, for want of evidence, of the Information for murder against
Private Respondent Billy Cerbo.
In resolving this petition, the discussion of the Court will revolve around
two points: first, the determination of probable cause as an executive and
judicial function and, second, the applicability of Allado and Salonga to the
case at bar.
The Court's Ruling
The petition is meritorious. The trial court erred in dismissing the
Information filed against the private respondent. Consequently, the Court of
Appeals was likewise in error when it upheld such ruling.
Executive Determination of Probable Cause
The determination of probable cause during a preliminary investigation is a
function that belongs to the public prosecutor. It is an executive function,
the correctness of the exercise of which is a matter that the trial court itself
does not and may not be compelled to pass upon. The Separate
(Concurring) Opinion of former Chief Justice Andres R. Narvasa in Roberts
v. Court of Appeals succinctly elucidates such point in this wise:
"xxx
xxx
xxx

"In this special civil action, this Court is being asked to assume the function
of a public prosecutor. It is being asked to determine whether probable
cause exists as regards petitioners. More concretely, the Court is being
asked to examine and assess such evidence as has thus far been submitted
by the parties and, on the basis thereof, make a conclusion as to whether or
not it suffices 'to engender a well founded belief that a crime has been
committed and that the respondent is probably guilty thereof and should be
held for trial.'
"It is a function that this Court should not be called upon to perform. It is a
function that properly pertains to the public prosecutor, one that, as far as
crimes cognizable by a Regional Trial Court are concerned, and
notwithstanding that it involves an adjudicative process of a sort,
exclusively pertains, by law, to said executive officer, the public prosecutor.
It is moreover a function that in the established scheme of things, is
supposed to be performed at the very genesis of, indeed, prefatorily to, the
formal commencement of a criminal action. The proceedings before a
public prosecutor, it may well be stressed, are essentially preliminary,
prefatory and cannot lead to a final, definite and authoritative adjudgment
of the guilt or innocence of the persons charged with a felony or crime.
"Whether or not that function has been correctly discharged by the public
prosecutor i.e., whether or not he has made a correct ascertainment of the
existence of probable cause in a case, is a matter that the trial court itself
does not and may not be compelled to pass upon. It is not for instance
permitted for an accused, upon the filing of the information against him by
the public prosecutor, to preempt trial by filing a motion with the Trial
Court praying for the quashal or dismissal of the indictment on the ground
that the evidence upon which the same is based is inadequate. Nor is it
permitted, on the antipodal theory that the evidence is in truth inadequate,
for the complaining party to present a petition before the Court praying that
the public prosecutor be compelled to file the corresponding information
against the accused.
xxx
xxx
xxx"
Indeed, the public prosecutor has broad discretion to determine whether
probable cause exists and to charge those whom he or she believes to have

committed the crime as defined by law. Otherwise stated, such official has
the quasi-judicial authority to determine whether or not a criminal case must
be filed in court. Thus in Crespo v. Mogul, we ruled:
"It is a cardinal principle that all criminal actions either commenced by
complaint or by information shall be prosecuted under the direction and
control of the fiscal. The institution of a criminal action depends upon the
sound discretion of the fiscal. He may or may not file the complaint or
information, follow or not follow that presented by the offended party,
according to whether the evidence, in his opinion, is sufficient or not to
establish the guilt of the accused beyond reasonable doubt. The reason for
placing the criminal prosecution under the direction and control of the fiscal
is to prevent malicious or unfounded prosecutions by private persons. . . .
Prosecuting officers under the power vested in them by the law, not only
have the authority but also the duty of prosecuting persons who, according
to the evidence received from the complainant, are shown to be guilty of a
crime committed within the jurisdiction of their office. They have equally
the duty not to prosecute when the evidence adduced is not sufficient to
establish a prima facie case."
This broad prosecutorial power is however not unfettered, because just as
public prosecutors are obliged to bring forth before the law those who have
transgressed it, they are also constrained to be circumspect in filing criminal
charges against the innocent. Thus, for crimes cognizable by regional trial
courts, preliminary investigations are usually conducted. In Ledesma v.
Court of Appeals, we discussed the purposes and nature of a preliminary
investigation in this manner:
"The primary objective of a preliminary investigation is to free respondent
from the inconvenience, expense, ignominy and stress of defending
himself/herself in the course of a formal trial, until the reasonable
probability of his or her guilt in a more or less summary proceeding by a
competent office designated by law for that purpose. Secondarily, such
summary proceeding also protects the state from the burden of the
unnecessary expense and effort in prosecuting alleged offenses and in
holding trials arising from false, frivolous or groundless charges.

"Such investigation is not part of the trial. A full and exhaustive

presentation of the parties' evidence is not required, but only such as may
engender a well-grounded belief than an offense has been committed and
that the accused is probably guilty thereof. By reason of the abbreviated
nature of preliminary investigations, a dismissal of the charges as a result
thereof is not equivalent to a judicial pronouncement of acquittal. Hence, no
double jeopardy attaches."
Judicial Determination of Probable Cause
The determination of probable cause to hold a person for trial must be
distinguished from the determination of probable cause to issue a warrant of
arrest, which is a judicial function. The judicial determination of probable
cause in the issuance of arrest warrants has been emphasized in numerous
cases. In Ho v. People, the Court summarized the pertinent rulings on the
subject, as follows:
"The above rulings in Soliven, Inting and Lim, Sr. were iterated in Allado v.
Diokno, where we explained again what probable cause means. Probable
cause for the issuance of a warrant of arrest is the existence of such facts
and circumstances that would lead a reasonably discreet and prudent person
to believe that an offense has been committed by the person sought to be
arrested. Hence, the judge, before issuing a warrant of arrest, "must satisfy
himself that based on the evidence submitted, there is sufficient proof that a
crime has been committed and that the person to be arrested is probably
guilty thereof." At this stage of the criminal proceeding, the judge is not yet
tasked to review in detail the evidence submitted during the preliminary
investigation. It is sufficient that he personally evaluates such evidence in
determining probable cause. In Webb v. De Leon, we stressed that the judge
merely determines the probability, not the certainty, of guilt of the accused
and, in doing so, he need not conduct a de novo hearing. He simply
personally reviews the prosecutor's initial determination finding probable
cause to see if it is supported by substantial evidence.
xxx
xxx
xxx
"In light of the aforecited decisions of this Court, such justification cannot
be upheld. Lest we be too repetitive, we only emphasize three vital matters
once more: First, as held in Inting, the determination of probable cause by
the prosecutor is for a purpose different from that which is to be made by

the judge. Whether there is reasonable ground to believe that the accused is
guilty of the offense charged and should be held for trial is what the
prosecutor passes upon. The judge, on the other hand, determines whether a
warrant of arrest should be issued against the accused, i.e., whether there is
a necessity for placing him under immediate custody in order not to
frustrate the ends of justice. Thus, even if both should base their findings on
one and the same proceeding or evidence, there should be no confusion as
to their distinct objectives.
"Second, since their objectives are different, the judge cannot rely solely on
the report of the prosecutor in finding probable cause to justify the issuance
of a warrant of arrest. Obviously and understandably, the contents of the
prosecutor's report will support his own conclusion that there is reason to
charge the accused of an offense and hold him for trial. However, the judge
must decide independently. Hence, he must have supporting evidence, other
than the prosecutor's bare report, upon which to legally sustain his own
findings on the existence or non-existence of probable cause to issue an
arrest order. This responsibility of determining personally and
independently the existence of non-existence of probable cause is lodged in
him by no less than the most basic law of the land. Parenthetically, the
prosecutor could ease the burden of the judge and speed up the litigation
process by forwarding to the latter not only the information and his bare
resolution, but also so much of the records and the evidence on hand as to
enable His Honor to make his personal and separate judicial finding on
whether to issue a warrant of arrest.
"Lastly, it is not required that the complete or entire records of the case
during the preliminary investigation be submitted to and examined by the
judge. We do not intend to unduly burden trial courts by obliging them to
examine the complete records of every case all the time simply for the
purpose of ordering the arrest of the accused. What is required, rather, is
that the judge must have sufficient supporting documents (such as the
complaint, affidavits, counter-affidavits, sworn statements of witnesses or
transcript of stenographic notes, if any) upon which to make his
independent judgment, or at the very least, upon which to verify the
findings of the prosecutor as to the existence of probable cause. The point
is: he cannot rely solely and entirely on the prosecutor's recommendation, as

the Respondent Court did in this case. Although the prosecutor enjoys the
legal presumption of regularity in the performance of his duties and
functions, which in turn gives his report the presumption of accuracy, the
Constitution, we repeat, commands the judge to personally determine
probable cause in the issuance of warrants of arrest. This Court has
consistently held that a judge fails in his bounden duty if he relies merely on
the certification or the report of the investigating officer.
xxx
xxx
xxx"
Verily, a judge cannot be compelled to issue a warrant of arrest if he or she
deems that there is no probable cause for doing so. Corollary to this
principle, the judge should not override the public prosecutor's
determination of probable cause to hold an accused for trial, on the ground
that the evidence presented to substantiate the issuance of an arrest warrant
was insufficient, as in the present case.
Indeed, it would be unfair to expect the prosecution to present all the
evidence needed to secure the conviction of the accused upon the filing of
the information against the latter. The reason is found in the nature and the
objective of a preliminary investigation. Here, the public prosecutors do not
decide whether there is evidence beyond reasonable doubt of the guilt of the
person charged; they merely determine "whether there is sufficient ground
to engender a well-founded belief that a crime . . . has been committed and
that the respondent is probably guilty thereof, and should be held for trial."
15 Evidentiary matters must be presented and heard during the trial. 16
Therefore, if the information is valid on its face, and there is no showing of
manifest error, grave abuse of discretion and prejudice on the part of the
public prosecutor, the trial court should respect such determination.
Inapplicability of Allado and Salonga
The Court of Appeals anchored its ruling on the pronouncement made in
Allado v. Diokno: ". . . [I]f, upon the filing of the information in court, the
trial judge, after reviewing the information and the documents attached
thereto, must either call for the complainant and the witnesses themselves or
simply dismiss the case. There is no reason to hold the accused for trial and
further expose him to an open and public accusation of the crime when no
probable cause exists."

In Allado, Petitioners Diosdado Jose Allado and Roberto L. Mendoza,

practicing lawyers, were accused by the Presidential Anti-Crime
Commission (PACC) of kidnapping with murder and ordered by Judge
Roberto C. Diokno to be arrested without bail. The petitioners questioned
the issuance of the warrants for their arrest, contending that the respondent
judge acted with grave abuse of discretion and in excess of his jurisdiction
in holding that there was probable cause against them. They contended that
the trial court relied merely on the resolution of the investigating panel and
its certification that probable cause existed, without personally determining
the admissibility and sufficiency of the evidence for such finding and
without stating the basis thereof. They maintained that the records of the
preliminary investigation, which was the sole basis of the judge's ruling,
failed to establish probable cause against them that would justify the
issuance of the warrants for their arrest.
The Court declared that Judge Diokno had indeed committed grave abuse of
discretion in issuing the arrest warrants. Contrary to the constitutional
mandate and established jurisprudence, he merely relied on the certification
of the prosecutors as to the existence of probable cause, instead of
personally examining the evidence, the complainant and his witnesses. "For
otherwise," the Court said, "he would have found out that the evidence thus
far presented was utterly insufficient to warrant the arrest of the
petitioners." 18
In categorically stating that the evidence so far presented did not meet the
standard of probable cause and subsequently granting the petition, the Court
noted the following circumstances: first, the corpus delicti was not
established, and there was serious doubt as to the alleged victim's death;
second, the extrajudicial statement of the principal witness, who had priorly
confessed his participation in the crime, was full of material inconsistencies;
and third, the PACC operatives who investigated the case never implicated
the petitioners.
Citing, Salonga v. Cruz-Pao, the Court of Appeals pointed out that when
there was no prima facie case against a person sought to be charged with a
crime, "the judge or fiscal, therefore, should not go on with the prosecution
in the hope that some credible evidence might later turn out during trial, for

this would be a flagrant violation of a basic right which the courts are
created to uphold."
In the aforecited case, Petitioner Jovito R. Salonga sought to bar the filing
of an Information for violation of the Revised Anti-Subversion Act, which
Judge Ernani Cruz-Pao had ordered to be filed against him. In sustaining
the petitioner, the Court held that the evidence upon which the Information
was based was not sufficient to charge him for a violation of the Revised
Anti-Subversion Act.
In all, the Court decreed in both cases that there was no basis in law and in
fact for the judicial and executive determination of probable cause. The
Court also held that the government, while vested with the right and the
duty to protect itself and its people against transgressors of the law, must
perform the same in a manner that would not infringe the perceived
violators' rights as guaranteed by the Constitution.
However, the present case is not on all fours with Allado and Salonga. First,
Elsa Gumban, the principal eyewitness to the killing of Rosalinda Dy, was
not a participant or conspirator in the commission of said crime. In Allado
and Salonga, however, the main witnesses were the confessed perpetrators
of the crimes, whose testimonies the Court deemed 'tainted'. Second, in the
case at bar, the private respondent was accorded due process, and no
precipitate haste or bias during the investigation of the case can be imputed
to the public prosecutor. On the other hand, the Court noted in Allado the
"undue haste in the filing of the Information and the inordinate interest of
the government" in pursuing the case; and in Salonga, ". . . the failure of the
prosecution to show that the petitioner was probably guilty of conspiring to
commit the crime, the initial disregard of petitioner's constitutional rights
[and] the massive and damaging publicity made against him." In other
words, while the respective sets of evidence before the prosecutors in
Allado and Salonga were "utterly insufficient" to support a finding of
probable cause, the same cannot be said of the present case.
We stress that Allado and Salonga constitute exceptions to the general rule
and may be invoked only if similar circumstances are clearly shown to
exist. But as the foregoing comparisons show, such similarities are absent in

the instant case. Hence, the rulings in the two aforementioned cases cannot
apply to it.
Motion Without Requisite Notice
One more thing. Petitioners aver that Private Respondent Cerbo did not give
them a copy of the Motion to Quash the Warrant of Arrest, which had been
issued against him, or a notice of the scheduled hearing. Thus, they contend,
Judge Valles should not have entertained such motion.
It is settled that every written motion in a trial court must be set for hearing
by the applicant and served with the notice of hearing thereof, in such a
manner as to ensure its receipt by the other party. The provisions on this
matter in Sections 4 and 5, Rule 15 of the Rules of Court, are categorical
and mandatory in character. Under Section 6 of the said rule, no motion
shall be acted upon by the court without proof of service thereof. The
rationale for this rule is simple: unless the movants set the time and the
place of hearing, the court will be unable to determine whether the adverse
parties agree or object to the motions, since the rules themselves do not fix
any period within which they may file their replies or oppositions.
The motion to quash the warrant of arrest in the present case being pro
forma, inasmuch as the requisite copy and notice were not duly served upon
the adverse party, the trial court had no authority to act on it.
Epilogue
In granting this petition, we are not prejudging the criminal case or the guilt
or innocence of Private Respondent Billy Cerbo. We are simply saying that,
as a general rule, if the information is valid on its face and there is no
showing of manifest error, grave abuse of discretion or prejudice on the part
of the public prosecutor, courts should not dismiss it for 'want of evidence,'
because evidentiary matters should be presented and heard during the trial.
The functions and duties of both the trial court and the public prosecutor in
"the proper scheme of things" in our criminal justice system should be
clearly understood.
The rights of the people from what could sometimes be an "oppressive"
exercise of government prosecutorial powers do need to be protected when

circumstances so require. But just as we recognize this need, we also

acknowledge that the State must likewise be accorded due process. Thus,
when there is no showing of nefarious irregularity or manifest error in the
performance of a public prosecutor's duties, courts ought to refrain from
interfering with such lawfully and judicially mandated duties.
In any case, if there was palpable error or grave abuse of discretion in the
public prosecutor's finding of probable cause, the accused can appeal such
finding to the justice secretary and move for the deferment or suspension of
the proceedings until such appeal is resolved.
WHEREFORE, the petition is GRANTED. The assailed Decision of the
Court of Appeals is hereby REVERSED and SET ASIDE. The case is
REMANDED to the Regional Trial Court of Nabunturan, Davao, which is
ordered to reinstate the amended Information against Private Respondent
Billy Cerbo and to proceed with judicious speed in hearing the case. No
costs.
SO ORDERED.
Romero, Vitug, Purisima and Gonzaga-Reyes, JJ., concur.

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs. FLORENCIO DORIA Y BOLADO and VIOLETA GADDAO Y
CATAMA @ "NENETH", accused-appellants.
G.R. No. 125299
January 22, 1999
SYNOPSIS
Accused-appellants were charged with violation of Section 4, in relation to
Section 21 of the Dangerous Drugs Act of 1972. After trial, the Regional
Trial Court, Branch 156, Pasig City convicted accused-appellants. The trial
court found the existence of an "organized/syndicated crime group" and
sentenced both accused-appellants to death and pay a fine of P500,000.00
each. In the present appeal, accused-appellant Doria contend that the trial
court gravely erred in admitting as evidence the marijuana fruitings found
inside the carton box because they were obtained through a warrantless
search and does not come within the plain view doctrine. Accused-appellant
Gaddao, on the other hand, assails the validity of warrantless search leading
to the seizure of the marijuana inside her house.
The Supreme Court reversed and modified the decision of the trial court.
Accused-appellant Doria's sentence was reduced from death to reclusion
perpetua and appellant Gaddao was acquitted. Accused Gaddao was not
caught red-handed during the buy-bust operation to give ground for her
arrest under Section 5 (a) of Rule 113 of the Rules of Court. She was not
committing any crime. Since the warrantless arrest of Gaddao was illegal, it
follows that the search of her person and home and the subsequent seizure
of the marked bills and marijuana cannot be deemed legal as an incident to
her arrest. The Court, however, upheld appellant Doria's warrantless arrest.
The Court also upheld the validity of the buy-bust operation wherein Doria
was caught in the act of selling marijuana. The Court reiterated the doctrine
that when an, accused is apprehended in flagrante delicto as a result of a
buy-bust operation, the law enforcement agents are not only authorized but
also duty-bound, to arrest him even without a warrant.

SYLLABUS
1.
CRIMINAL LAW; DANGEROUS DRUGS ACT OF 1972;
THE "OBJECTIVE TEST" IN BUY BUST OPERATIONS
DEMANDS THAT THE DETAILS OF THE PURPORTED
TRANSACTION MUST BE CLEARLY AND ADEQUATELY
SHOWN. We stress that the "objective" test in buy-bust operations
demands that the details of the purported transaction must be clearly and
adequately shown. This must start from the initial contact between the
poseur-buyer and the pusher, the offer to purchase, the promise or payment
of the consideration until the consummation of the sale by the delivery of
the illegal drug subject of the sale. The manner by which the initial contact
was made, whether or not through an informant, the offer to purchase the
drug, the payment of the "buy-bust" money, and the delivery of the illegal
drug, whether to the informant alone or the police officer, must be the
subject of strict scrutiny by courts to insure that law-abiding citizens are not
unlawfully induced to commit an offense. Criminals must be caught but not
at all cost. At the same time, however, examining the conduct of the police
should not disable courts into ignoring the accused's predisposition to
commit the crime. If there is overwhelming evidence of habitual
deliquency, recidivism or plain criminal proclivity, then this must also be
considered. Courts should look at all factors to determine the predisposition
of an accused to commit an offense in so far as they are relevant to
determine the validity of the defense of inducement.
2.
ID.;
ID.;
ID.;
NON-PRESENTATION
OF
THE
CONFIDENTIAL INFORMANT IS NOT FATAL TO THE
PROSECUTION'S CAUSE IN CASE AT BAR. In the case at bar, the
evidence shows that it was the confidential informant who initially
contacted accused-appellant Doria. At the pre-arranged meeting, the
informant was accompanied by PO3 Manlangit who posed as the buyer of
marijuana. PO3 Manlangit handed the marked money to accused-appellant
Doria as advance payment for one (1) kilo of marijuana. Accused-appellant
Doria was apprehended when he later returned and handed the brick of
marijuana to PO3 Manlangit. PO3 Manlangit testified in a frank,
spontaneous, straightforward and categorical manner and his credibility was
not crumpled on cross-examination by defense counsel. Moreover, PO3
Manlangit's testimony was corroborated on its material points by SPO1

Badua, his back-up security. The non-presentation of the confidential

informant is not fatal to the prosecution. Informants are usually not
presented in court because of the need to hide their identity and preserve
their invaluable service to the police. It is well-settled that except when the
appellant vehemently denies selling prohibited drugs and there are material
inconsistencies in the testimonies of the arresting officers, or there are
reasons to believe that the arresting officers had motives to testify falsely
against the appellant, or that only the informant was the poseur-buyer who
actually witnessed the entire transaction, the testimony of the informant
may be dispensed with as it will merely be corroborative of the
apprehending officers' eyewitness testimonies. There is no need to present
the informant in court where the sale was actually witnessed and adequately
proved by prosecution witnesses.
3.
ID.; ID.; ID.; SOURCE OF MONEY FOR THE BUY-BUST
OPERATION IS NOT A CRITICAL FACT; IT IS ENOUGH THAT
THE PROSECUTION PROVED THAT THE MONEY WAS PAID
TO THE ACCUSED IN CONSIDERATION OF WHICH HE SOLD
AND DELIVERED THE PROHIBITED EFFECTS. The
inconsistencies in PO3 Manlangit's and SPO1 Badua's testimonies and the
other police officers' testimonies are minor and do not detract from the
veracity and weight of the prosecution evidence. The source of the money
for the buy-bust operation is not a critical fact in the case at bar. It is enough
that the prosecution proved that money was paid to accused-appellant Doria
in consideration of which he sold and delivered the marijuana.
4.
ID.; ID.; ID.; NO RULE OF LAW WHICH REQUIRES
THAT IN BUY-BUST OPERATIONS THERE MUST BE A
SIMULTANEOUS EXCHANGE OF MARKED MONEY AND
PROHIBITED DRUG BETWEEN THE BUYER AND THE POSEURBUYER; THE DECISIVE FACT IS THAT THE POSEUR-BUYER
RECEIVED THE MARIJUANA FROM THE ACCUSED. We also
reject appellant's submission that the fact that PO3 Manlangit and his team
waited for almost one hour for appellant Doria to give them the one kilo of
marijuana after he "paid" P1,600.00 strains credulity. Appellant cannot
capitalize on the circumstance that the money and the marijuana in the case
at bar did not change hands under the usual "kaliwaan" system. There is no

rule of law which requires that in "buy-bust" operations there must be a

simultaneous exchange of the marked money and the prohibited drug
between the poseur-buyer and the pusher. Again, the decisive fact is that the
poseur-buyer received the marijuana from the accused-appellant.
5.
REMEDIAL
LAW;
CRIMINAL
PROCEDURE;
WARRANTLESS ARREST; ACCUSED-APPELLANT'S ARREST
DOES NOT FALL UNDER ANY OF INSTANCES ENUMERATED
IN SECTION 5 OF RULE 113 OF THE 1985 RULES OF CRIMINAL
PROCEDURE. To be lawful, the warrantless arrest of appellant Gaddao
must fall under any of the three (3) instances enumerated in Section 5 of
Rule 113 of the 1985 Rules on Criminal Procedure as aforequoted.
Accused-appellant Gaddao was not caught red-handed during the buy-bust
operation to give ground for her arrest under Section 5 (a) of Rule 113. She
was not committing any crime. Contrary to the finding of the trial court,
there was no occasion at all for appellant Gaddao to flee from the policemen
to justify her arrest in "hot pursuit." In fact, she was going about her daily
chores when the policemen pounced on her. Neither could the arrest of
appellant Gaddao be justified under the second instance of Rule 113.
"Personal knowledge" of facts in arrests without warrant under Section 5 (b)
of Rule 113 must be based upon "probable cause" which means an "actual
belief or reasonable grounds of suspicion." The grounds of suspicion are
reasonable when, in the absence of actual belief of the arresting officers, the
suspicion that the person to be arrested is probably guilty of committing the
offense, is based on actual facts, i.e., supported by circumstances
sufficiently strong in themselves to create the probable cause of guilt of the
person to be arrested. A reasonable suspicion therefore must be founded on
probable cause, coupled with good faith on the part of the peace officers
making the arrest.
6.
ID.; ID.; WARRANTLESS SEIZURE; "PLAN VIEW"
DOCTRINE; NOT APPLICABLE IN CASE AT BAR. In his direct
examination, PO3 Manlangit said that he was sure that the contents of the
box were marijuana because he himself checked and marked the said
contents. On cross-examination, however, he admitted that he merely
presumed the contents to be marijuana because it had the same plastic
wrapping as the "buy-bust marijuana." A close scrutiny of the records

reveals that the plastic wrapper was not colorless and transparent as to
clearly manifest its contents to a viewer. Each of the ten (10) bricks of
marijuana in the box was individually wrapped in old newspaper and placed
inside plastic bags white, pink or blue in color. PO3 Manlangit himself
admitted on cross-examination that the contents of the box could be items
other than marijuana. He did not know exactly what the box contained that
he had to ask appellant Gaddao about its contents. It was not immediately
apparent to PO3 Manlangit that the content of the box was marijuana. The
marijuana was not in plain view and its seizure without the requisite search
warrant was in violation of the law and the Constitution. It was fruit of the
poisonous tree and should have been excluded and never considered by the
trial court.
PANGANIBAN, J ., concurring opinion:
1.
REMEDIAL LAW; CRIMINAL PROCEDURE; VALID
ARRESTS WITHOUT WARRANTS; "IN FLAGRANTE DELICTO"
ARREST; IT IS NOT SUFFICIENT THAT THE SUSPECT
EXHIBITS UNUSUAL OR STRANGE ACTS OR SIMPLY APPEARS
SUSPICIOUS; THE BEHAVIOR OR CONDUCT OF THE PERSON
TO BE ARRESTED MUST BE CLEARLY INDICATIVE OF A
CRIMINAL ACT. Section 5(a) of Rule 113 is commonly referred to as
the rule on in flagrante delicto arrests. The accused is apprehended at the
very moment he is committing or attempting to commit or has just
committed an offense in the presence of the arresting officer. There are two
elements that must concur: (1) the person to be arrested must execute an
overt act indicating that he has just committed, is actually committing, or is
attempting to commit a crime; and (2) such overt act is done in the presence
or within the view of the arresting officer. It is not sufficient that the suspect
exhibits unusual or strange acts or simply appears suspicious. Thus, in the
recent en banc case of Malacat vs. Court of Appeals, the Court, through
now Chief Justice Hilario G. Davide, Jr., held that the fact that the
appellant's eyes were "moving very fast" and looking at every approaching
person were not sufficient to suspect him of "attempting to commit a
crime," much less to justify his arrest and subsequent search without a
warrant. The Court said that "there was nothing in [Malacat's] behavior or
conduct which could have reasonably elicited even mere suspicion" that he
was armed with a deadly weapon. In other words, there was no overt

physical act on the part of the suspect, positively indicating that he had just
committed a crime or was committing or attempting to commit one. There
was, therefore, no valid reason for the police officers to arrest or search
him. The same was true in People v. Mengote, where the arresting police
tried to justify the warrantless arrest of the appellant on the ground that he
appeared suspicious. The "suspicious" acts consisted of his darting eyes and
the fact that his hand was over his abdomen. The Court, rejecting such
justification, stated: "By no stretch of the imagination could it have been
inferred from these acts that an offense had just been committed, or was
actually being committed, or was at least being attempted in their presence."
In other words, the behavior or conduct of the person to be arrested must be
clearly indicative of a criminal act. If there is no outward indication at all
that calls for an arrest, the suspect cannot be validly apprehended under this
paragraph, notwithstanding a tip from an informant that he would at the
time be undertaking a felonious enterprise.
2.
ID.; ID.; ID.; "HOT PURSUIT" ARRESTS; ELEMENTS;
PERSONAL KNOWLEDGE OF FACTS INDICATING THAT THE
PERSON TO BE ARRESTED HAS COMMITTED AN OFFENSE;
WHILE THE LAW ENFORCERS MAY NOT ACTUALLY
WITNESS THE ACTS CONSTITUTING THE OFFENSE, THEY
MUST HAVE DIRECT KNOWLEDGE OR VIEW OF THE CRIME
RIGHT AFTER ITS COMMISSION; THEY MUST ALSO
PERCEIVED ACTS EXHIBITED BY THE PERSON TO BE
ARRESTED, INDICATING THAT HE PERPETRATED THE
CRIME. Section 5 (b) of Rule 113 is otherwise known as the rule on
"hot pursuit" arrests. Here, two elements must also concur prior to the
arrest: (1) an "offense has in fact just been committed," and (2) the arresting
officer "has personal knowledge of facts indicating that the person to be
arrested . . . committed [the offense]." In effecting this type of arrest, "it is
not enough that there is reasonable ground to believe that the person to be
arrested has committed a crime. A crime must in fact or actually have been
committed first. . . . The fact of the commission of the offense must be
undisputed." Thus, while the law enforcers may not actually witness the
execution of acts constituting the offense, they must have direct knowledge
or view of the crime right after its commission. They should know for a fact
that a crime was committed. AND they must also perceive acts exhibits by

the person to be arrested, indicating that he perpetrated the crime. Again,

mere intelligence information that the suspect committed the crime will not
suffice. The arresting officers themselves must have personal knowledge of
facts showing that the suspect performed the criminal act. Personal
knowledge means actual belief or reasonable grounds of suspicion, based on
actual facts, that the person to be arrested is probably guilty of committing
the crime.
3.
ID.; ID.; WARRANTLESS ARRESTS, SEARCHES AND
SEIZURES; THE EXCEPTIONS TO THE GENERAL RULE ON
THE NECESSITY OF A JUDICIAL WARRANT FOR ANY ARREST,
SEARCH AND SEIZURE MUST ALL BE STRICTLY CONSTRUED.
I must reiterate that the above exceptions to the general rule on the
necessity of a judicial warrant for any arrest, search and seizure must all be
strictly construed. Foremost in our minds must still be every person's prized
and fundamental right to liberty and security, a right protected and
guaranteed by our Constitution.
DECISION
PUNO, J p:
On December 7, 1995, accused-appellants Florencio Doria y Bolado and
Violeta Gaddao y Catama @ "Neneth" were charged with violation of
Section 4, in relation to Section 21 of the Dangerous Drugs Act of 1972.
The information reads:
"That on or about the 5th day of December, 1995 in the City of
Mandaluyong, Philippines, a place within the jurisdiction of this Honorable
Court, the above-named accused, conspiring, confederating and mutually
helping and aiding one another and without having been authorized by law,
did, then and there willfully, unlawfully and feloniously sell, administer,
deliver and give away to another eleven (11) plastic bags of suspected
marijuana fruiting tops weighing 7,641.08 grams in violation of the abovecited law.
CONTRARY TO LAW."
The prosecution contends the offense was committed as follows: In
November 1995, members of the North Metropolitan District, Philippine

National Police (PNP) Narcotics Command (Narcom), received information

from two (2) civilian informants (CI) that one "Jun" was engaged in illegal
drug activities in Mandaluyong City. The Narcom agents decided to entrap
and arrest "Jun" in a buy-bust operation. As arranged by one of the CI's, a
meeting between the Narcom agents and "Jun" was scheduled on December
5, 1995 at E. Jacinto Street in Mandaluyong City.
On December 5, 1995, at 6:00 in the morning, the CI went to the PNP
Headquarters at EDSA, Kamuning, Quezon City to prepare for the buy-bust
operation. The Narcom agents formed Team Alpha composed of P/Insp.
Nolasco Cortes as team leader and PO3 Celso Manlangit, SPO1 Edmund
Badua and four (4) other policemen as members. P/Insp. Cortes designated
PO3 Manlangit as the poseur-buyer and SPO1 Badua as his back-up, and
the rest of the team as perimeter security. Superintendent Pedro Alcantara,
Chief of the North Metropolitan District PNP Narcom, gave the team
P2,000.00 to cover operational expenses. From this sum, PO3 Manlangit set
aside P1,600.00 a one thousand peso bill and six (6) one hundred peso
bills as money for the buy-bust operation. The market price of one kilo
of marijuana was then P1,600.00. PO3 Manlangit marked the bills with his
initials and listed their serial numbers in the police blotter. 4 The team rode
in two cars and headed for the target area.
At 7:20 of the same morning, "Jun" appeared and the CI introduced PO3
Manlangit as interested in buying one (1) kilo of marijuana. PO3 Manlangit
handed "Jun" the marked bills worth P1,600.00. "Jun" instructed PO3
Manlangit to wait for him at the corner of Shaw Boulevard and Jacinto
Street while he got the marijuana from his associate. 5 An hour later, "Jun"
appeared at the agreed place where PO3 Manlangit, the CI and the rest of
the team were waiting. "Jun" took out from his bag an object wrapped in
plastic and gave it to PO3 Manlangit. PO3 Manlangit forthwith arrested
"Jun" as SPO1 Badua rushed to help in the arrest. They frisked "Jun" but
did not find the marked bills on him. Upon inquiry, "Jun" revealed that he
left the money at the house of his associate named "Neneth." 6 "Jun" led the
police team to "Neneth's" house nearby at Daang Bakal.
The team found the door of "Neneth's" house open and at woman inside.
"Jun" identified the woman as his associate. SPO1 Badua asked "Neneth"

about the P1,600.00 as PO3 Manlangit looked over "Neneth's" house.

Standing by the door, PO3 Manlangit noticed a carton box under the dining
table. He saw that one of the box's flaps was open and inside the box was
something wrapped in plastic. The plastic wrapper and its contents appeared
similar to the marijuana earlier "sold" to him by "Jun." His suspicion
aroused, PO3 Manlangit entered "Neneth's" house and took hold of the box.
He peeked inside the box and found that it contained ten (10) bricks of what
appeared to be dried marijuana leaves.
Simultaneous with the box's discovery, SPO1 Badua recovered the marked
bills from "Neneth." The policemen arrested "Neneth." They took "Neneth"
and "Jun," together with the box, its contents and the marked bills and
turned them over to the investigator at headquarters. It was only then that
the police learned that "Jun" is Florencio Doria y Bolado while "Neneth" is
Violeta Gaddao y Catama. The one (1) brick of dried marijuana leaves
recovered from "Jun" plus the ten (10) bricks recovered from "Neneth's"
house were examined at the PNP Crime Laboratory. The bricks, eleven (11)
in all, were found to be dried marijuana fruiting tops of various weights
totalling 7,641.08 grams.
The prosecution story was denied by accused-appellants Florencio Doria
and Violeta Gaddao. Florencio Doria, a 33-year old carpenter, testified that
on December 5, 1995, at 7:00 in the morning, he was at the gate of his
house reading a tabloid newspaper. Two men appeared and asked him if he
knew a certain "Totoy." There were many "Totoys" in their area and as the
men questioning him were strangers, accused-appellant denied knowing any
"Totoy." The men took accused-appellant inside his house and accused him
of being a pusher in their community. When accused-appellant denied the
charge, the men led him to their car outside and ordered him to point out the
house of "Totoy." For five (5) minutes, accused-appellant stayed in the car.
Thereafter, he gave in and took them to "Totoy's" house.
Doria knocked on the door of "Totoy's" house but no one answered. One of
the men, later identified as PO3 Manlangit, pushed open the door and he
and his companions entered and looked around the house for about three
minutes. Accused-appellant Doria was left standing at the door. The
policemen came out of the house and they saw Violeta Gaddao carrying
water from the well. He asked Violeta where "Totoy" was but she replied he

was not there. Curious onlookers and kibitzers were, by that time,
surrounding them. When Violeta entered her house, three men were already
inside. Accused-appellant Doria, then still at the door, overheard one of the
men say that they found a carton box. Turning towards them, Doria saw a
box on top of the table. The box was open and had something inside. PO3
Manlangit ordered him and Violeta to go outside the house and board the
car. They were brought to police headquarters where they were
investigated.
Accused-appellant Doria further declared that his co-accused, Violeta
Gaddao, is the wife of his acquaintance, Totoy Gaddao. He said that he and
Totoy Gaddao sometimes drank together at the neighborhood store. This
closeness, however, did not extend to Violeta, Totoy's wife.
Accused-appellant Violeta Gaddao, a 35-year old rice vendor, claimed that
on December 5, 1995, she was at her house at Daang Bakal, Mandaluyong
City where she lived with her husband and five (5) children, namely, Arvy,
aged 10, Arjay, aged 8, the twins Raymond and Raynan, aged 5, and Jason,
aged 3. That day, accused-appellant woke up at 5:30 in the morning and
bought pan de sal for her children's breakfast. Her husband, Totoy, a
housepainter, had left for Pangasinan five days earlier. She woke her
children and bathed them. Her eldest son, Arvy, left for school at 6:45 A.M.
Ten minutes later, she carried her youngest son, Jayson, and accompanied
Arjay to school. She left the twins at home leaving the door open. After
seeing Arjay off, she and Jayson remained standing in front of the school
soaking in the sun for about thirty minutes. Then they headed for home.
Along the way, they passed the artesian well to fetch water. She was
pumping water when a man clad in short pants and denim jacket suddenly
appeared and grabbed her left wrist. The man pulled her and took her to her
house. She found out later that the man was PO3 Manlangit.
Inside her house were her co-accused Doria and three (3) other persons.
They asked her about a box on top of the table. This was the first time she
saw the box. The box was closed and tied with a piece of green straw. The
men opened the box and showed her its contents. She said she did not know
anything about the box and its contents.

Accused-appellant Violeta Gaddao confirmed that her co-accused Florencio

Doria was a friend of her husband, and that her husband never returned to
their house after he left for Pangasinan. She denied the charge against her
and Doria and the allegation that marked bills were found in her person.
After trial, the Regional Trial Court, Branch 156, Pasig City convicted the
accused-appellants. The trial court found the existence of an
"organized/syndicated crime group" and sentenced both accused-appellants
to death and pay a fine of P500,000.00 each. The dispositive portion of the
decision reads as follows:
"WHEREFORE, the guilt of accused, FLORENCIO DORIA y BOLADO
@ "Jun" and VIOLETA GADDAO y CATAMA @ "Neneth" having been
established beyond reasonable doubt, they are both CONVICTED of the
present charge against them.
According to the amendatory provisions of Sec. 13 of Republic Act No.
7659 which cover violations of Sec. 4 of Republic Act No. 6425 and which
was exhaustively discussed in People v. Simon, 234 SCRA 555, the penalty
imposable in this case is reclusion perpetua to death and a fine ranging from
five hundred thousand pesos to ten million pesos. Taking into consideration,
however, the provisions of Sec. 23, also of Republic Act No. 7659 which
explicitly state that:
'The maximum penalty shall be imposed if the offense was committed by
any person who belongs to an organized/syndicated crime group.
An organized/syndicated crime group means a group of two or more
persons collaborating, confederating or mutually helping one another for
purposes of gain in the commission of any crime.'
The Court is hereby constrained to sentence (hereby sentences) said
FLORENCIO DORIA y BOLADO @ "Jun" and VIOLETA GADDAO y
CATAMA @ "Neneth" to DEATH and to pay a fine of Five Hundred
Thousand Pesos (P500,000.00) each without subsidiary imprisonment in
case of insolvency and to pay the costs.
The confiscated marijuana bricks (7,641.08 grams) shall be turned over to
the Dangerous Drugs Board, NBI for destruction in accordance with law.

Let a Commitment Order be issued for the transfer of accused DORIA from
the Mandaluyong City Jail to the New Bilibid Prisons, Muntinlupa City and
also for accused GADDAO for her transfer to the Correctional Institute for
Women, Mandaluyong City.
Let the entire records of this case be forwarded immediately to the Supreme
Court for mandatory review.
SO ORDERED."
Before this Court, accused-appellant Doria assigns two errors, thus:
"I
THE COURT A QUO GRAVELY ERRED IN GIVING WEIGHT TO
THE TESTIMONY OF THE WITNESSES FOR THE PROSECUTION
WHEN THEIR TESTIMONIES WERE SHOT WITH DISCREPANCIES,
INCONSISTENCIES AND THAT THE CORPUS DELICTI OF THE
MARIJUANA ALLEGEDLY TAKEN FROM APPELLANT WAS NOT
POSITIVELY IDENTIFIED BY THE POSEUR-BUYER.
II
THE COURT A QUO GRAVELY ERRED IN ADMITTING AS
EVIDENCE THE MARIJUANA FRUITINGS FOUND INSIDE THE
CARTON BOX AS THESE WERE OBTAINED THROUGH A
WARRANTLESS SEARCH AND DOES NOT COME WITHIN THE
PLAIN VIEW DOCTRINE."
Accused-appellant Violeta Gaddao contends:
"I
THE LOWER COURT ERRED IN FINDING APPELLANT GUILTY
DESPITE THE INCREDIBILITY OF THE POLICE VERSION OF THE
MANNER THE ALLEGED BUY-BUST WAS CONDUCTED.
II
THE PNP OFFICERS' VERSIONS AS TO WHERE THE BUY-BUST
MONEY CAME FROM ARE INCONSISTENT WITH ONE ANOTHER
AND ALSO REEKS WITH INCREDIBILITY.
III

THE LOWER COURT ERRED IN FINDING APPELLANT GUILTY

AND SENTENCING HER TO DEATH DESPITE THE MANIFESTLY
IRRECONCILABLE INCONSISTENCIES IN THE VERSIONS OF THE
POLICE AS TO HOW AND BY WHOM THE ALLEGED BUY-BUST
MONEY WAS RECOVERED FROM HER, WHICH IN CONSEQUENCE
RESULTS IN THE EVIDENCE, OF RETRIEVAL FROM HER OF THE
SAME, NEBULOUS, AT BEST, NIL, AT WORST.
IV
THE LOWER COURT ERRED IN UPHOLDING THE VALIDITY OF
THE WARRANTLESS SEARCH LEADING TO THE SEIZURE OF THE
MARIJUANA ALLEGEDLY FOUND INSIDE THE HOUSE OF
ACCUSED-APPELLANT."
The assigned errors involve two principal issues: (1) the validity of the buybust operation in the apprehension of accused-appellant Doria; and (2) the
validity of the warrantless arrest of accused-appellant Gaddao, the search of
her person and house, and the admissibility of the pieces of evidence
obtained therefrom.
Accused-appellants were caught by the police in a buy-bust operation. A
buy-bust operation is a form of entrapment employed by peace officers as
an effective way of apprehending a criminal in the act of the commission of
an offense. 16 Entrapment has received judicial sanction when undertaken
with due regard to constitutional and legal safeguards.
Entrapment was unknown in common law. It is a judicially created
twentieth-century American doctrine that evolved from the increasing use
of informers and undercover agents in the detection of crimes, particularly
liquor and narcotics offenses. Entrapment sprouted from the doctrine of
estoppel and the public interest in the formulation and application of decent
standards in the enforcement of criminal law. It also took off from a
spontaneous moral revulsion against using the powers of government to
beguile innocent but ductile persons into lapses that they might otherwise
resist.
In the American jurisdiction, the term "entrapment" has a generally negative
meaning because it is understood as the inducement of one to commit a
crime not contemplated by him, for the mere purpose of instituting a

criminal prosecution against him. 21 The classic definition of entrapment is

that articulated by Justice Roberts in Sorrells v. United States, 22 the first
Supreme Court decision to acknowledge the concept: "Entrapment is the
conception and planning of an offense by an officer, and his procurement of
its commission by one who would not have perpetrated it except for the
trickery, persuasion or fraud of the officer." 23 It consists of two (2)
elements: (a) acts of persuasion, trickery, or fraud carried out by law
enforcement officers or the agents to induce a defendant to commit a crime;
and (b) the origin of the criminal design in the minds of the government
officials rather than that of the innocent defendant, such that the crime is the
product of the creative activity of the law enforcement officer.
It is recognized that in every arrest, there is a certain amount of entrapment
used to outwit the persons violating or about to violate the law. Not every
deception is forbidden. The type of entrapment the law forbids is the
inducing of another to violate the law, the "seduction" of an otherwise
innocent person into a criminal career. Where the criminal intent originates
in the mind of the entrapping person and the accused is lured into the
commission of the offense charged in order to prosecute him, there is
entrapment and no conviction may be had. Where, however, the criminal
intent originates in the mind of the accused and the criminal offense is
completed, the fact that a person acting as a decoy for the state, or public
officials furnished the accused an opportunity for commission of the
offense, or that the accused is aided in the commission of the crime in order
to secure the evidence necessary to prosecute him, there is no entrapment
and the accused must be convicted. The law tolerates the use of decoys and
other artifices to catch a criminal.
Entrapment is recognized as a valid defense that can be raised by an
accused and partakes of the nature of a confession and avoidance. It is a
positive defense. Initially, an accused has the burden of providing sufficient
evidence that the government induced him to commit the offense. Once
established, the burden shifts to the government to show otherwise. When
entrapment is raised as a defense, American federal courts and a majority of
state courts use the "subjective" or "origin of intent" test laid down in
Sorrells v. United States to determine whether entrapment actually
occurred. The focus of the inquiry is on the accused's predisposition to

commit the offense charged, his state of mind and inclination before his
initial exposure to government agents. All relevant facts such as the
accused's mental and character traits, his past offenses, activities, his
eagerness in committing the crime, his reputation, etc., are considered to
assess his state of mind before the crime. The predisposition test
emphasizes the accused's propensity to commit the offense rather than the
officer's misconduct and reflects an attempt to draw a line between a "trap
for the unwary innocent and the trap for the unwary criminal." If the
accused was found to have been ready and willing to commit the offense at
any favorable opportunity, the entrapment defense will fail even if a police
agent used an unduly persuasive inducement. Some states, however, have
adopted the "objective" test. This test was first authoritatively laid down in
the case of Grossman v. State rendered by the Supreme Court of Alaska.
Several other states have subsequently adopted the test by judicial
pronouncement or legislation. Here, the court considers the nature of the
police activity involved and the propriety of police conduct. The inquiry is
focused on the inducements used by government agents, on police conduct,
not on the accused and his predisposition to commit the crime. For the goal
of the defense is to deter unlawful police conduct. The test of entrapment is
whether the conduct of the law enforcement agent was likely to induce a
normally law-abiding person, other than one who is ready and willing, to
commit the offense; for purposes of this test, it is presumed that a lawabiding person would normally resist the temptation to commit a crime that
is presented by the simple opportunity to act unlawfully. Official conduct
that merely offers such an opportunity is permissible, but overbearing
conduct, such as badgering, cajoling or importuning, or appeals to
sentiments such as pity, sympathy, friendship or pleas of desperate illness,
are not. Proponents of this test believe that courts must refuse to convict an
entrapped accused not because his conduct falls outside the legal norm but
rather because, even if his guilt has been established, the methods employed
on behalf of the government to bring about the crime "cannot be
countenanced." To some extent, this reflects the notion that the courts
should not become tainted by condoning law enforcement improprieties.
Hence, the transactions leading up to the offense, the interaction between
the accused and law enforcement officer and the accused's response to the
officer's inducements, the gravity of the crime, and the difficulty of

detecting instances of its commission are considered in judging what the

effect of the officer's conduct would be on a normal person.
Both the "subjective" and "objective" approaches have been criticized and
objected to. It is claimed that the "subjective" test creates an "anything
goes" rule, i.e., if the court determines that an accused was predisposed to
commit the crime charged, no level of police deceit, badgering or other
unsavory practices will be deemed impermissible. Delving into the
accused's character and predisposition obscures the more important task of
judging police behavior and prejudices the accused more generally. It
ignores the possibility that no matter what his past crimes and general
disposition were, the accused might not have committed the particular crime
unless confronted with inordinate inducements. On the other extreme, the
purely "objective" test eliminates entirely the need for considering a
particular accused's predisposition. His predisposition, at least if known by
the police, may have an important bearing upon the question of whether the
conduct of the police and their agents was proper. The undisputed fact that
the accused was a dangerous and chronic offender or that he was a shrewd
and active member of a criminal syndicate at the time of his arrest is
relegated to irrelevancy.
Objections to the two tests gave birth to hybrid approaches to entrapment.
Some states in the United States now combine both the "subjective" and
"objective" tests. In Cruz v. State, the Florida Supreme Court declared that
the permissibility of police conduct must first be determined. If this
objective test is satisfied, then the analysis turns to whether the accused was
predisposed to commit the crime. In Baca v. State, the New Mexico
Supreme Court modified the state's entrapment analysis by holding that "a
criminal defendant may successfully assert a defense of entrapment, either
by showing lack of predisposition to commit the crime for which he is
charged, or, that the police exceeded the standards of proper investigation.
The hybrid approaches combine and apply the "objective" and "subjective"
tests alternatively or concurrently.
As early as 1910, this Court has examined the conduct of law enforcers
while apprehending the accused caught in flagrante delicto. In United States
v. Phelps, we acquitted the accused from the offense of smoking opium
after finding that the government employee, a BIR personnel, actually

induced him to commit the crime in order to prosecute him. Smith, the BIR
agent, testified that Phelps' apprehension came after he overheard Phelps in
a saloon say that he liked smoking opium on some occasions. Smith's
testimony was disregarded. We accorded significance to the fact that it was
Smith who went to the accused three times to convince him to look for an
opium den where both of them could smoke this drug. The conduct of the
BIR agent was condemned as "most reprehensible." In People v. Abella, we
acquitted the accused of the crime of selling explosives after examining the
testimony of the apprehending police officer who pretended to be a
merchant. The police officer offered "a tempting price, . . . a very high one"
causing the accused to sell the explosives. We found that there was
inducement, "direct, persistent and effective" by the police officer and that
outside of his testimony, there was no evidence sufficient to convict the
accused. In People v. Lua Chu and Uy Se Tieng, we convicted the accused
after finding that there was no inducement on the part of the law
enforcement officer. We stated that the Customs secret serviceman
smoothed the way for the introduction of opium from Hongkong to Cebu
after the accused had already planned its importation and ordered said drug.
We ruled that the apprehending officer did not induce the accused to import
opium but merely entrapped him by pretending to have an understanding
with the Collector of Customs of Cebu to better assure the seizure of the
prohibited drug and the arrest of the surreptitious importers.

that class of cases where the offense is one of a kind habitually committed,
and the solicitation merely furnishes evidence of a course of conduct. Mere
deception by the detective will not shield defendant, if the offense was
committed by him, free from the influence or instigation of the detective.
The fact that an agent of an owner acts as a supposed confederate of a thief
is no defense to the latter in a prosecution for larceny, provided the original
design was formed independently of such agent; and where a person
approached by the thief as his confederate notifies the owner or the public
authorities, and, being authorized by them to do so, assists the thief in
carrying out the plan, the larceny is nevertheless committed. It is generally
held that it is no defense to a prosecution for an illegal sale of liquor that the
purchase was made by a 'spotter,' detective, or hired informer; but there are
cases holding the contrary."
The distinction above-quoted was reiterated in two (2) decisions of the
Court of Appeals. In People v. Galicia, the appellate court declared that
"there is a wide difference between entrapment and instigation." The
instigator practically induces the would-be accused into the commission of
the offense and himself becomes a co-principal. In entrapment, ways and
means are resorted to by the peace officer for the purpose of trapping and
capturing the lawbreaker in the execution of his criminal plan. In People v.
Tan Tiong, 68 the Court of Appeals further declared that "entrapment is no
bar to the prosecution and conviction of the lawbreaker."

It was also in the same case of People v. Lua Chu and Uy Se Tieng we first
laid down the distinction between entrapment vis-a-vis instigation or
inducement. Quoting 16 Corpus Juris, we held:

The pronouncement of the Court of Appeals in People v. Galicia was

affirmed by this Court in People v. Tiu Ua. Entrapment, we further held, is
not contrary to public policy. It is instigation that is deemed contrary to
public policy and illegal.

"ENTRAPMENT AND INSTIGATION. While it has been said that the

practice of entrapping persons into crime for the purpose of instituting
criminal prosecutions is to be deplored, and while instigation, as
distinguished from mere entrapment, has often been condemned and has
sometimes been held to prevent the act from being criminal or punishable,
the general rule is that it is no defense to the perpetrator of a crime that
facilities for its commission were purposely placed in his way, or that the
criminal act was done at the 'decoy solicitation' of persons seeking to
expose the criminal, or that detectives feigning complicity in the act were
present and apparently assisting in its commission. Especially is this true in

It can thus be seen that the concept of entrapment in the American

jurisdiction is similar to instigation or inducement in Philippine
jurisprudence. Entrapment in the Philippines is not a defense available to
the accused. It is instigation that is a defense and is considered an
absolutory cause. To determine whether there is entrapment or instigation,
our courts have mainly examined the conduct of the apprehending officers,
not the predisposition of the accused to commit the crime. The "objective"
test first applied in United States v. Phelps has been followed in a series of
similar cases. Nevertheless, adopting the "objective" approach has not

precluded us from likewise applying the "subjective" test. In People v.

Boholst, we applied both tests by examining the conduct of the police
officers in a buy-bust operation and admitting evidence of the accused's
membership with the notorious and dreaded Sigue-Sigue Sputnik Gang. We
also considered accused's previous convictions of other crimes and held that
his opprobrious past and membership with the dreaded gang strengthened
the state's evidence against him. Conversely, the evidence that the accused
did not sell or smoke marijuana and did not have any criminal record was
likewise admitted in People v. Yutuc thereby sustaining his defense that led
to his acquittal.
The distinction between entrapment and instigation has proven to be very
material in anti-narcotics operations. In recent years, it has become common
practice for law enforcement officers and agents to engage in buy-bust
operations and other entrapment procedures in apprehending drug
offenders. Anti-narcotics laws, like anti-gambling laws are regulatory
statutes. They are rules of convenience designed to secure a more orderly
regulation of the affairs of society, and their violation gives rise to crimes
mala prohibita. They are not the traditional type of criminal law such as the
law of murder, rape, theft, arson, etc. that deal with crimes mala in se or
those inherently wrongful and immoral. Laws defining crimes mala
prohibita condemn behavior directed, not against particular individuals, but
against public order. Violation is deemed a wrong against society as a
whole and is generally unattended with any particular harm to a definite
person. These offenses are carried on in secret and the violators resort to
many devices and subterfuges to avoid detection. It is rare for any member
of the public, no matter how furiously he condemns acts mala prohibita, to
be willing to assist in the enforcement of the law. It is necessary, therefore,
that government in detecting and punishing violations of these laws, rely,
not upon the voluntary action of aggrieved individuals, but upon the
diligence of its own officials. This means that the police must be present at
the time the offenses are committed either in an undercover capacity or
through informants, spies or stool pigeons.
Though considered essential by the police in enforcing vice legislation, the
confidential informant system breeds abominable abuse. Frequently, a
person who accepts payment from the police in the apprehension of drug

peddlers and gamblers also accept payment from these persons who deceive
the police. The informant himself may be a drug addict, pickpocket, pimp,
or other petty criminal. For whatever noble purpose it serves, the spectacle
that government is secretly mated with the underworld and uses underworld
characters to help maintain law and order is not an inspiring one. Equally
odious is the bitter reality of dealing with unscrupulous, corrupt and
exploitative law enforcers. Like the informant, unscrupulous law enforcers'
motivations are legion harassment, extortion, vengeance, blackmail, or a
desire to report an accomplishment to their superiors. This Court has taken
judicial notice of this ugly reality in a number of cases 84 where we
observed that it is a common modus operandi of corrupt law enforcers to
prey on weak and hapless persons, particularly unsuspecting provincial
hicks. The use of shady underworld characters as informants, the relative
ease with which illegal drugs may be planted in the hands or property of
trusting and ignorant persons, and the imposed secrecy that inevitably
shrouds all drug deals have compelled this Court to be extra-vigilant in
deciding drug cases. Criminal activity is such that stealth and strategy,
although necessary weapons in the arsenal of the police officer, become as
objectionable police methods as the coerced confession and the unlawful
search. As well put by the Supreme Court of California in People v.
Barraza,
"[E]ntrapment is a facet of a broader problem. Along with illegal search and
seizures, wiretapping, false arrest, illegal detention and the third degree, it is
a type of lawless enforcement. They all spring from common motivations.
Each is a substitute for skillful and scientific investigation. Each is
condoned by the sinister sophism that the end, when dealing with known
criminals of the 'criminal classes,' justifies the employment of illegal
means."
It is thus imperative that the presumption, juris tantum, of regularity in the
performance of official duty by law enforcement agents raised by the
Solicitor General be applied with studied restraint. This presumption should
not by itself prevail over the presumption of innocence and the
constitutionally-protected rights of the individual. It is the duty of courts to
preserve the purity of their own temple from the prostitution of the criminal
law through lawless enforcement. Courts should not allow themselves to be

used as an instrument of abuse and injustice lest an innocent person be

made to suffer the unusually severe penalties for drug offenses.
We therefore stress that the "objective" test in buy-bust operations demands
that the details of the purported transaction must be clearly and adequately
shown. This must start from the initial contact between the poseur-buyer
and the pusher, the offer to purchase, the promise or payment of the
consideration until the consummation of the sale by the delivery of the
illegal drug subject of the sale. The manner by which the initial contact was
made, whether or not through an informant, the offer to purchase the drug,
the payment of the "buy-bust" money, and the delivery of the illegal drug,
whether to the informant alone or the police officer, must be the subject of
strict scrutiny by courts to insure that law-abiding citizens are not
unlawfully induced to commit an offense. Criminals must be caught but not
at all cost. At the same time, however, examining the conduct of the police
should not disable courts into ignoring the accused's predisposition to
commit the crime. If there is overwhelming evidence of habitual
delinquency, recidivism or plain criminal proclivity, then this must also be
considered. Courts should look at all factors to determine the predisposition
of an accused to commit an offense in so far as they are relevant to
determine the validity of the defense of inducement.
In the case at bar, the evidence shows that it was the confidential informant
who initially contacted accused-appellant Doria. At the pre-arranged
meeting, the informant was accompanied by PO3 Manlangit who posed as
the buyer of marijuana. PO3 Manlangit handed the marked money to
accused-appellant Doria as advance payment for one (1) kilo of marijuana.
Accused-appellant Doria was apprehended when he later returned and
handed the brick of marijuana to PO3 Manlangit.
PO3 Manlangit testified in a frank, spontaneous, straightforward and
categorical manner and his credibility was not crumpled on crossexamination by defense counsel. Moreover, PO3 Manlangit's testimony was
corroborated on its material points by SPO1 Badua, his back-up security.
The non-presentation of the confidential informant is not fatal to the
prosecution. Informants are usually not presented in court because of the
need to hide their identity and preserve their invaluable service to the

police. It is well-settled that except when the appellant vehemently denies

selling prohibited drugs and there are material inconsistencies in the
testimonies of the arresting officers, or there are reasons to believe that the
arresting officers had motives to testify falsely against the appellant, or that
only the informant was the poseur-buyer who actually witnessed the entire
transaction, the testimony of the informant may be dispensed with as it will
merely be corroborative of the apprehending officers' eyewitness
testimonies. There is no need to present the informant in court where the
sale was actually witnessed and adequately proved by prosecution
witnesses.
The inconsistencies in PO3 Manlangit's and SPO1 Badua's testimonies and
the other police officers' testimonies are minor and do not detract from the
veracity and weight of the prosecution evidence. The source of the money
for the buy-bust operation is not a critical fact in the case at bar. It is enough
that the prosecution proved that money was paid to accused-appellant Doria
in consideration of which he sold and delivered the marijuana.
Contrary to accused-appellant Doria's claim, the one kilo of marijuana
"sold" by him to PO3 Manlangit was actually identified by PO3 Manlangit
himself before the trial court. After appellants' apprehension, the Narcom
agents placed this one (1) brick of marijuana recovered from appellant
Doria inside the carton box lumping it together with the ten (10) bricks
inside. This is why the carton box contained eleven (11) bricks of marijuana
when brought before the trial court. The one (1) brick recovered from
appellant Doria and each of the ten (10) bricks, however, were identified
and marked in court. Thus:
"ATTY. ARIAS, Counsel for Florencio Doria:
Mr. Police Officer, when you identified that box, Tell the court, how were
you able to identify that box?
A
This is the box that I brought to the crime laboratory which
contained the eleven pieces of marijuana brick we confiscated from the
suspect, sir.
Q
Please open it and show those eleven bricks.
PROSECUTOR
Witness bringing out from the said box . . .
ATTY. VALDEZ, Counsel for Violeta Gaddao:

Your Honor, I must protest the line of questioning considering the fact that
we are now dealing with eleven items when the question posed to the
witness was what was handed to him by Jun?
COURT
So be it.
ATTY. ARIAS
May we make it of record that the witness is pulling out item after
item from the box showed to him and brought in front of him.
COURT
Noted.
Q
Now tell the court, how did you know that those are the eleven
bricks?
xxx
xxx
xxx.
A
I have markings on these eleven bricks, sir.
Q
Point to the court, where are those markings?
A
Here, sir, my signature, my initials with the date, sir.
PROSECUTOR
Witness showed a white wrapper and pointing to CLM and the
signature.
Q
Whose signature is that?
ATTY. VALDEZ
Your Honor, may we just limit the inquiry to the basic question of
the fiscal as to what was handed to him by the accused Jun, your Honor?
PROSECUTOR
Your Honor, there is already a ruling by this Honorable Court,
your Honor, despite reconsideration.
COURT
Let the prosecution do its own thing and leave the appreciation of
what it has done to the court.
ATTY. VALDEZ
We submit, your Honor.
A
This brick is the one that was handed to me by the suspect Jun, sir.
COURT
Why do you know that that is the thing? Are you sure that is not
"tikoy?"
A
Yes, your Honor.
Q
What makes you so sure?

A
I am sure that this is the one, your Honor. This is the Exhibit "A"
which I marked before I brought it to the PCCL, your Honor.
Q
What are you sure of ?
A
I am sure that this is the brick that was given to me by one alias
Jun, sir.
Q
What makes you so sure?
A
Because I marked it with my own initials before giving it to the
investigator and before we brought it to the PCCL, your Honor.
xxx
xxx
xxx.
PROSECUTOR
May we request that a tag be placed on this white plastic bag and
this be marked as Exhibit "D?"
COURT
Mark it as Exhibit "D."
Q
To stress, who made the entries of this date, Exhibit "A" then the
other letters and figures on this plastic?
A
This one, the signature, I made the signature, the date and the time
and this Exhibit "A."
Q
How about this one?
A
I don't know who made this marking, sir.
PROSECUTOR
May it be of record that this was just entered this morning.
Q
I am asking you about this "itim" and not the "asul."
A
This CLM, the date and the time and the Exhibit "A," I was the one
who made these markings, sir.
PROSECUTOR
May we place on record that the one that was enclosed. . .
ATTY. ARIAS
Your Honor, there are also entries included in that enclosure where
it appears D-394-95, also Exhibit "A," etc. etc., that was not pointed to by
the witness. I want to make it of record that there are other entries included
in the enclosure. LexLib
COURT
Noted. The court saw it.
Q
Now, and this alleged brick of marijuana with a piece of paper,
with a newspaper wrapping with a piece of paper inside which reads: "D394-95, Exhibit A, 970 grams SSL" be marked as our Exhibit "D-2?"

COURT
Tag it. Mark it.
Q
This particular exhibit that you identified, the wrapper and the
contents was given to you by whom?
A
It was given to me by suspect Jun, sir.
Q
Whereat?
A
At the corner of Boulevard and Jacinto St., sir.
Q
How about the other items that you were able to recover?
xxx
xxx
xxx.
A
These other marijuana bricks, because during our follow-up,
because according to Jun the money which I gave him was in the hands of
Neneth and so we proceeded to the house of Neneth sir.
xxx
xxx
xxx."

(b)
When an offense has in fact just been committed, and he has
personal knowledge of facts indicating that the person to be arrested has
committed it; and
(c)
When the person to be arrested is a prisoner who 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.
xxx
xxx
xxx."
Under Section 5 (a), as above-quoted, a person may be arrested without a
warrant if he "has committed, is actually committing, or is attempting to
commit an offense." Appellant Doria was caught in the act of committing an
offense. When an accused is apprehended in flagrante delicto as a result of a
buy-bust operation, the police are not only authorized but duty-bound to
arrest him even without a warrant.

The first brick identified by PO3 Manlangit was the brick of marijuana
"given to [him] by suspect Jun" at the corner of Boulevard and Jacinto
Streets. This brick, including the newspaper and white plastic wrapping
were marked as Exhibits "D," "D-1," and "D-2" and described as weighing
nine hundred seventy (970) grams.

The warrantless arrest of appellant Gaddao, the search of her person and
residence, and the seizure of the box of marijuana and marked bills are
different matters.

We also reject appellant's submission that the fact that PO3 Manlangit and
his team waited for almost one hour for appellant Doria to give them the
one kilo of marijuana after he "paid" P1,600.00 strains credulity. Appellant
cannot capitalize on the circumstance that the money and the marijuana in
the case at bar did not change hands under the usual "kaliwaan" system.
There is no rule of law which requires that in "buy-bust" operations there
must be a simultaneous exchange of the marked money and the prohibited
drug between the poseur-buyer and the pusher. Again, the decisive fact is
that the poseur-buyer received the marijuana from the accused-appellant.
We also hold that the warrantless arrest of accused-appellant Doria is not
unlawful. Warrantless arrests are allowed in three instances as provided by
Section 5 of Rule 113 of the 1985 Rules on Criminal Procedure, to wit:
"Sec. 5. Arrest without warrant; when lawful. A peace officer or a
private person may, without a warrant, arrest a person:
(a)
When, in his presence, the person to be arrested has committed, is
actually committing, or is attempting to commit an offense;

Our Constitution proscribes search and seizure without a judicial warrant

and any evidence obtained without such warrant is inadmissible for any
purpose in any proceeding. The rule is, however, not absolute. Search and
seizure may be made without a warrant and the evidence obtained therefrom
may be admissible in the following instances: (1) search incident to a lawful
arrest; (2) search of a moving motor vehicle; (3) search in violation of
customs laws; (4) seizure of evidence in plain view; (5) when the accused
himself waives his right against unreasonable searches and seizures.
The prosecution admits that appellant Gaddao was arrested without a
warrant of arrest and the search and seizure of the box of marijuana and the
marked bills were likewise made without a search warrant. It is claimed,
however, that the warrants were not necessary because the arrest was made
in "hot pursuit" and the search was an incident to her lawful arrest.
To be lawful, the warrantless arrest of appellant Gaddao must fall under any
of the three (3) instances enumerated in Section 5 of Rule 113 of the 1985

Rules on Criminal Procedure as aforequoted. The direct testimony of PO3

Manlangit, the arresting officer, however shows otherwise:
"ATTY. VALDEZ, Counsel for appellant Gaddao:
We submit at this juncture, your Honor, that there will be no basis for that
question.
Q
This particular exhibit that you identified, the wrapper and the
contents was given to you by whom?
A
It was given to me by suspect Jun, sir.
Q
Whereat?
A
At the corner of Boulevard and Jacinto Street, sir.
Q
How about the other items that you were able to recover?
ATTY. VALDEZ:
We submit at this juncture, your Honor, that there will be no basis
for that question.
COURT:
There is. Answer.
A
These other marijuana bricks, because during our follow-up,
because according to Jun the money which I gave him was in the hands of
Neneth and so we proceeded to the house of Neneth, sir.
Q
Whereat?
A
At Daang Bakal near the crime scene at Shaw Boulevard, sir.
Q
And what happened upon arrival thereat?
A
We saw alias Neneth inside the house and we asked him to give us
the buy-bust money, sir.
Q
You mentioned "him?"
A
Her, sir. We asked her to give us the money, the marked money
which Jun gave her, sir.
Q
And what happened?
A
At this instance, it was SPO1 Badua who can testify regarding this
buy-bust money, sir. cdlex
xxx
xxx
xxx." 1
SPO1 Badua testified on cross-examination that:
Q
What was your intention in going to the house of Aling Neneth?
A
To arrest her, sir.
Q
But the fact is, Mr. Witness, when you reached the house of Aling
Neneth, Aling Neneth was there?
A
Yes, sir.

Q
As far as you can see, she was just inside her house?
A
I saw her outside, sir.
Q
She was fetching water as a matter of fact?
A
She was 'sa bandang poso.'
Q
Carrying a baby?
A
No, sir.
Q
At that particular time when you reached the house of Aling
Neneth and saw her outside the house, she was not committing any crime,
she was just outside the house?
A
No, sir.
Q
She was not about to commit any crime because she was just
outside the house doing her daily chores. Am I correct?
A
I just saw her outside, sir.
Q
And at that point in time you already wanted to arrest her. That is
correct, is it not?
A
Yes, sir.
Q
Now, if any memory of your testimony is correct, according to you
SPO1 Manlangit approached her?
A
PO3 Manlangit, sir.
Q
You did not approach her because PO3 Manlangit approached her?
A
Yes, sir.
Q
During all the time that this confrontation, arrest or whatever by
SPO3 Manlangit was taking place, you were just in the side lines?
A
I was just watching, sir.
Q
So you were just an on-looker to what Manlangit was doing,
because precisely according to you your role in this buy-bust operation was
as a back-up?
A
Yes, sir.
Q
Who got the alleged marijuana from inside the house of Mrs.
Neneth?
A
PO3 Manlangit, sir.
Q
Manlangit got the marijuana?
A
Yes, sir.
Q
And the money from Aling Neneth?
A
I don't know, sir.
Q
You did not even know who got the money from Aling Neneth?
PROSECUTOR:

There is no basis for this question, your Honor. Money, there's no testimony
on that.
ATTY. VALDEZ:
I was asking him precisely.
PROSECUTOR:
No basis.
COURT:
Sustained.
Q
Alright. I will ask you a question and I expect an honest answer.
According to the records, the amount of P1,600.00 was recovered from the
person of Aling Neneth. That's right?
A
Yes, sir, the buy-bust money.
Q
What you are now saying for certain and for the record is the fact
that you were not the one who retrieved the money from Aling Neneth, it
was Manlangit maybe?
A
I saw it, sir.
Q
It was Manlangit who got the money from Aling Neneth?
A
The buy-bust money was recovered from the house of Aling
Neneth, sir.
Q
It was taken from the house of Aling Neneth, not from the person
of Aling Neneth. Is that what you are trying to tell the Court?
A
No, sir.
ATTY. VALDEZ:
I am through with this witness, your Honor."
Accused-appellant Gaddao was not caught red-handed during the buy-bust
operation to give ground for her arrest under Section 5 (a) of Rule 113. She
was not committing any crime. Contrary to the finding of the trial court,
there was no occasion at all for appellant Gaddao to flee from the policemen
to justify her arrest in "hot pursuit." In fact, she was going about her daily
chores when the policemen pounced on her.
Neither could the arrest of appellant Gaddao be justified under the second
instance of Rule 113. "Personal knowledge" of facts in arrests without
warrant under Section 5 (b) of Rule 113 must be based upon "probable
cause" which means an "actual belief or reasonable grounds of suspicion."
The grounds of suspicion are reasonable when, in the absence of actual

belief of the arresting officers, the suspicion that the person to be arrested is
probably guilty of committing the offense, is based on actual facts, i.e.,
supported by circumstances sufficiently strong in themselves to create the
probable cause of guilt of the person to be arrested. A reasonable suspicion
therefore must be founded on probable cause, coupled with good faith on
the part of the peace officers making the arrest.
Accused-appellant Gaddao was arrested solely on the basis of the alleged
identification made by her co-accused. PO3 Manlangit, however, declared
in his direct examination that appellant Doria named his co-accused in
response to his (PO3 Manlangit's) query as to where the marked money
was. Appellant Doria did not point to appellant Gaddao as his associate in
the drug business, but as the person with whom he left the marked bills.
This identification does not necessarily lead to the conclusion that appellant
Gaddao conspired with her co-accused in pushing drugs. Appellant Doria
may have left the money in her house, with or without her knowledge, with
or without any conspiracy. Save for accused-appellant Doria's word, the
Narcom agents had no reasonable grounds to believe that she was engaged
in drug pushing. If there is no showing that the person who effected the
warrantless arrest had, in his own right, knowledge of facts implicating the
person arrested to the perpetration of a criminal offense, the arrest is legally
objectionable.
Since the warrantless arrest of accused-appellant Gaddao was illegal, it
follows that the search of her person and home and the subsequent seizure
of the marked bills and marijuana cannot be deemed legal as an incident to
her arrest. This brings us to the question of whether the trial court correctly
found that the box of marijuana was in plain view, making its warrantless
seizure valid.
Objects falling in plain view of an officer who has a right to be in the
position to have that view are subject to seizure even without a search
warrant and may be introduced in evidence. The "plain view" doctrine
applies when the following requisites concur: (a) the law enforcement
officer in search of the evidence has a prior justification for an intrusion or
is in a position from which he can view a particular area; (b) the discovery
of the evidence in plain view is inadvertent; (c) it is immediately apparent to

the officer that the item he observes may be evidence of a crime, contraband
or otherwise subject to seizure. The law enforcement officer must lawfully
make an initial intrusion or properly be in a position from which he can
particularly view the area. In the course of such lawful intrusion, he came
inadvertently across a piece of evidence incriminating the accused. The
object must be open to eye and hand and its discovery inadvertent.
It is clear that an object is in plain view if the object itself is plainly exposed
to sight. The difficulty arises when the object is inside a closed container.
Where the object seized was inside a closed package, the object itself is not
in plain view and therefore cannot be seized without a warrant. However, if
the package proclaims its contents, whether by its distinctive configuration,
its transparency, or if its contents are obvious to an observer, then the
contents are in plain view and may be seized. In other words, if the package
is such that an experienced observer could infer from its appearance that it
contains the prohibited article, then the article is deemed in plain view. It
must be immediately apparent to the police that the items that they observe
may be evidence of a crime, contraband or otherwise subject to seizure.
PO3 Manlangit, the Narcom agent who found the box, testified on crossexamination as follows:
"ATTY. VALDEZ:
So here we are. When you and Badua arrived, Aling Neneth was inside the
house?
A
Yes, sir.
Q
Badua demanded from Aling Neneth the buy-bust money?
A
Yes, sir.
Q
At that particular instance, you saw the carton?
A
Yes, sir.
Q
This carton, according to you was under a table?
A
Yes, sir, dining table.
Q
I noticed that this carton has a cover?
A
Yes, sir.
Q
I ask you were the flaps of the cover raised or closed?
A
It was open, sir. Not like that.
COURT
Go down there. Show to the court.

INTERPRETER
Witness went down the witness stand and approached a carton box.
A
Like this, sir.
PROSECUTOR
Can we describe it?
ATTY. VALDEZ
Yes.
PROSECUTOR
One flap is inside and the other flap is standing and with the contents
visible.
COURT
Noted.
Q
At this juncture, you went inside the house?
A
Yes, sir.
Q
And got hold of this carton?
A
Yes, sir.
Q
Did you mention anything to Aling Neneth?
A
I asked her, what's this . . .
Q
No, no. no. did you mention anything to Aling Neneth before
getting the carton?
A
I think it was Badua who accosted Aling Neneth regarding the
buy-bust money and he asked "Sa iyo galing ang marijuanang ito, nasaan
ang buy-bust money namin?" sir.
Q
Making reference to the marijuana that was given by alias Jun?
A
Yes, sir.
Q
When you proceeded to take hold of this carton, Aling Neneth was
not yet frisked, is it not [sic]?
A
I just don't know if she was frisked already by Badua, sir.
Q
Who got hold of this?
A
I was the one, sir.
Q
You were the one who got this?
A
Yes, sir.
Q
At that particular point in time, you did not know if the alleged
buy-bust money was already retrieved by Badua?
A
Yes, sir.
Q
You went inside the house?
A
Yes, sir.

Q
You did not have any search warrant?
A
Yes, sir.
Q
In fact, there was nothing yet as far as you were concerned to
validate the fact that Mrs. Gadao was in possession of the buy-bust money
because according to you, you did not know whether Badua already
retrieved the buy-bust money from her?
A
Yes, sir.
Q
How far was this from the door?
A
Two and a half meters from the door, sir. It was in plain view.
Q
Under the table according to you?
A
Yes, sir, dining table.
Q
Somewhere here?
A
It's far, sir.
PROSECUTOR
May we request the witness to place it, where he saw it?
A
Here, sir.
Q
What you see is a carton?
A
Yes, sir, with plastic.
Q
Marked "Snow Time Ice Pop?"
A
Yes, sir.
Q
With a piece of plastic visible on top of the carton?
A
Yes, sir.
Q
That is all that you saw?
A
Yes, sir.
PROSECUTOR
For the record, your Honor. . .
Q
You were only able to verify according to you . . .
PROSECUTOR
Panero, wait. Because I am objecting to the words a piece of plastic. By
reading it. . .
ATTY. VALDEZ
That's a piece of plastic.
PROSECUTOR
By reading it, it will connote . . . this is not a piece of plastic.
ATTY. VALDEZ
What is that? What can you say, Fiscal? I'm asking you?
PROSECUTOR

With due respect, what I am saying is, let's place the size of the plastic. A
piece of plastic may be big or a small one, for record purposes.
COURT
Leave that to the court.
PROSECUTOR
Leave that to the court.
Q
The only reason according to you, you were able to . . . Look at
this, no even Superman . . . I withdraw that. Not even a man with very kin
[sic] eyes can tell the contents here. And according to the Court, it could be
"tikoy," is it not [sic]?
A
Yes, sir.
Q
Siopao?
A
Yes, sir.
Q
Canned goods?
A
Yes, sir.
Q
It could be ice cream because it says Snow Pop, Ice Pop?
A
I presumed it was also marijuana because it may . . .
Q
I am not asking you what your presumptions are. I'm asking you
what it could possibly be.
A
It's the same plastic, sir.
ATTY. VALDEZ:
I'm not even asking you that question so why are you voluntarily saying the
information. Let the prosecutor do that for you.
COURT:
Continue. Next question.
xxx
xxx
xxx."
PO3 Manlangit and the police team were at appellant Gaddao's house
because they were led there by appellant Doria. The Narcom agents testified
that they had no information on appellant Gaddao until appellant Doria
named her and led them to her. Standing by the door of appellant Gaddao's
house, PO3 Manlangit had a view of the interior of said house. Two and a
half meters away was the dining table and underneath it was a carton box.
The box was partially open and revealed something wrapped in plastic.
In his direct examination, PO3 Manlangit said that he was sure that the
contents of the box were marijuana because he himself checked and marked

the said contents. 1On cross-examination, however, he admitted that he

merely presumed the contents to be marijuana because it had the same
plastic wrapping as the "buy-bust marijuana." A close scrutiny of the
records reveals that the plastic wrapper was not colorless and transparent as
to clearly manifest its contents to a viewer. Each of the ten (10) bricks of
marijuana in the box was individually wrapped in old newspaper and placed
inside plastic bags white, pink or blue in color. PO3 Manlangit himself
admitted on cross-examination that the contents of the box could be items
other than marijuana. He did not know exactly what the box contained that
he had to ask appellant Gaddao about its contents. It was not immediately
apparent to PO3 Manlangit that the content of the box was marijuana. The
marijuana was not in plain view and its seizure without the requisite search
warrant was in violation of the law and the Constitution. It was fruit of the
poisonous tree and should have been excluded and never considered by the
trial court.
The fact that the box containing about six (6) kilos of marijuana was found
in the house of accused-appellant Gaddao does not justify a finding that she
herself is guilty of the crime charged. Apropos is our ruling in People v.
Aminnudin, viz:
"The Court strongly supports the campaign of the government against drug
addiction and commends the efforts of our law enforcement officers against
those who would inflict this malediction upon our people, especially the
susceptible youth. But as demanding as this campaign may be, it cannot be
more so than the compulsions of the Bill of Rights for the protection of the
liberty of every individual in the realm, including the basest of criminals.
The Constitution covers with the mantle of its protection the innocent and
the guilty alike against any manner of high-handedness from the authorities,
however praiseworthy their intentions.
Those who are supposed to enforce the law are not justified in disregarding
the right of the individual in the name of order. Order is too high a price for
the loss of liberty. As Justice Holmes, again, said, 'I think it a less evil that
some criminals should escape than that the government should play an
ignoble part.' It is simply not allowed in the free society to violate a law to
enforce another, especially if the law violated is the Constitution itself."

Section 4 of Republic Act No. 6425, the Dangerous Drugs Act of 1972, as
amended by Section 13 of Republic Act No. 7659 punishes the "sale,
administration, delivery, distribution and transportation of a prohibited
drug" with the penalty of reclusion perpetua to death and a fine ranging
from P500,000.00 to P10 million, to wit:
"Sec. 4. Sale, Administration, Delivery, Distribution and Transportation of
Prohibited Drugs. The penalty of reclusion perpetua to death, and a fine
ranging from five hundred thousand pesos to ten million pesos shall be
imposed upon any person who, unless authorized by law, shall sell,
administer, deliver, give away to another, distribute, dispatch in transit or
transport any prohibited drug, or shall act as a broker in any of such
transactions.
xxx
xxx
xxx."
In every prosecution for illegal sale of dangerous drugs, what is material is
the submission of proof that the sale took place between the poseur-buyer
and the seller thereof and the presentation of the drug, i.e., the corpus
delicti, as evidence in court. 141 The prosecution has clearly established the
fact that in consideration of P1,600.00 which he received, accused-appellant
Doria sold and delivered nine hundred seventy (970) grams of marijuana to
PO3 Manlangit, the poseur-buyer. The prosecution, however, has failed to
prove that accused-appellant Gaddao conspired with accused-appellant
Doria in the sale of said drug. There being no mitigating or aggravating
circumstances, the lower penalty of reclusion perpetua must be imposed.
IN VIEW WHEREOF, the decision of the Regional Trial Court, Branch
156, Pasig City acting as a Special Court in Criminal Case No. 3307-D is
reversed and modified as follows:
1.
Accused-appellant Florencio Doria y Bolado is sentenced to suffer
the penalty of reclusion perpetua and to pay a fine of five hundred thousand
pesos (P500,000.00).
2.
Accused-appellant Violeta Gaddao y Catama is acquitted.
SO ORDERED.
Davide, Jr., C.J., Romero, Bellosillo, Melo, Vitug, Kapunan, Mendoza,
Martinez, Quisumbing, Purisima, Pardo, Buena and Gonzaga-Reyes, JJ.,
concur.
Panganiban, J., please see concurring opinion.

PANGANIBAN, J., concurring:

I fully concur with the exhaustive and incisive ponencia of Mr. Justice
Reynato S. Puno. This Decision rightfully brings the Court back to wellsettled doctrines on warrantless arrests and searches, which have seemingly
been modified through an obiter in People v. Ruben Montilla. I just wish to
outline some guidelines on when an arrest or a search without a warrant is
valid. Hopefully, they would be of help, especially to our law enforcers who
are often faced with actual situations that promptly call for their application.
Valid Arrests Without Warrants
Section 5 of Rule 113 of the Rules of Court lays down the basic rule on
when an arrest without a warrant is lawful. It states:
"Sec. 5. Arrest without warrant; when lawful. A peace officer or a
private person may, without a warrant, arrest a person:
(a)
When, in his presence, the person to be arrested has committed, is
actually committing, or is attempting to commit an offense;
(b)
When an offense has in fact just been committed, and he has
personal knowledge of facts indicating that the person to be arrested has
committed it; and
(c)
When the person to be arrested is a prisoner who 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.
xxx
xxx
xxx"
I shall focus my discussion on the first two rules, which have been most
frequently misapplied and misinterpreted, not only by law enforcers but
some trial judges and lawyers as well.
At the very outset, I wish to underscore that in both cases the arresting
officer must have personal knowledge of the fact of the commission of an
offense. Under Section 5 (a), the officer himself is a witness to the crime;
under Section 5 (b), he knows for a fact that a crime has just been
committed. Let me elaborate.

1.
In Flagrante Delicto Arrests
Section 5 (a) is commonly referred to as the rule on in flagrante delicto
arrests. The accused is apprehended at the very moment he is committing or
attempting to commit or has just committed an offense in the presence of
the arresting officer. There are two elements that must concur: (1) the
person to be arrested must execute an overt act indicating that he has just
committed, is actually committing, or is attempting to commit a crime; and
(2) such overt act is done in the presence or within the view of the arresting
officer.
It is not sufficient that the suspect exhibits unusual or strange acts or simply
appears suspicious. Thus, in the recent en banc case of Malacat v. Court of
Appeals, the Court, through now Chief Justice Hilario G. Davide Jr., held
that the fact that the appellant's eyes were "moving very fast" and looking at
every approaching person were not sufficient to suspect him of "attempting
to commit a crime," much less to justify his arrest and subsequent search
without a warrant. The Court said that "there was nothing in [Malacat's]
behavior or conduct which could have reasonably elicited even mere
suspicion" that he was armed with a deadly weapon. In other words, there
was no overt physical act on the part of the suspect, positively indicating
that he had just committed a crime or was committing or attempting to
commit one. There was, therefore, no valid reason for the police officers to
arrest or search him.
The same was true in People v. Mengote, where the arresting police tried to
justify the warrantless arrest of the appellant on the ground that he appeared
suspicious. The "suspicious" acts consisted of his darting eyes and the fact
that his hand was over his abdomen. The Court, rejecting such justification,
stated: "By no stretch of the imagination could it have been inferred from
these acts that an offense had just been committed, or was actually being
committed, or was at least being attempted in their presence."
In other words, the behavior or conduct of the person to be arrested must be
clearly indicative of a criminal act. If there is no outward indication at all
that calls for an arrest, the suspect cannot be validly apprehended under this
paragraph, notwithstanding a tip from an informant that he would at the
time be undertaking a felonious enterprise.

This doctrine found strength in People v. Aminnudin and again in People v.

Encinada. In both cases, the appellants were arrested while disembarking
from a ship, on account of a tip received from an informant that they were
carrying prohibited drugs. The Court invalidated their warrantless arrests,
explaining that at the moment of their arrests, the appellants were simply
descending the gangplank, without manifesting any suspicious behavior that
would reasonably invite the attention of the police. To all appearances, they
were not committing a crime; nor was it shown that they were about to do
so or had just done so. There was, therefore, no valid reason for their
arrests.
Adhering to (and having faith in) the above rules, I respectfully disagreed
with the distinguished Mr. Justice Florenz D. Regalado in People v.
Montilla, when he upheld the validity of the warrantless arrest of the
appellant while the latter was merely alighting from a passenger jeepney. I
opined that Montilla could not have been perceived as committing a crime
while merely alighting from a jeepney carrying a travelling bag and a
carton. He did not exhibit any overt act or strange conduct that would
reasonably arouse in the minds of the police suspicion that he was
embarking on a felonious undertaking. There was no outward manifestation
that he had just committed or was committing or attempting to commit an
offense. Mercifully, the statement of the Court that Montilla's arrest was
valid because he was caught in flagrante delicto was only an obiter, for
what finally nailed him down was his implied waiver of any objection to the
validity of his arrest.
2.
"Hot Pursuit" Arrests
Section 5 (b) is otherwise known as the rule on "hot pursuit" arrests. 10
Here, two elements must also concur prior to the arrest: (1) an "offense has
in fact just been committed," and (2) the arresting officer "has personal
knowledge of facts indicating that the person to be arrested . . . committed
[the offense]." In effecting this type of arrest, "it is not enough that there is
reasonable ground to believe that the person to be arrested has committed a
crime. A crime must in fact or actually have been committed first. . . The
fact of the commission of the offense must be undisputed."

Thus, while the law enforcers may not actually witness the execution of acts
constituting the offense, they must have direct knowledge or view of the
crime right after its commission. They should know for a fact that a crime
was committed. AND they must also perceive acts exhibited by the person
to be arrested, indicating that he perpetrated the crime. Again, mere
intelligence information that the suspect committed the crime will not
suffice. The arresting officers themselves must have personal knowledge of
facts showing that the suspect performed the criminal act. Personal
knowledge means actual belief or reasonable grounds of suspicion, based on
actual facts, that the person to be arrested is probably guilty of committing
the crime.
In several cases wherein third persons gave law enforcers information that
certain individuals or groups were engaged in some felonious activities,
such relayed information was not deemed equivalent to personal knowledge
of the lawmen. In People v. Burgos, a certain Masamlok informed police
authorities that the appellant was involved in subversive activities. Acting
on the strength of such information and without securing a judicial warrant,
the police proceeded to appellant's house to arrest him. There, they also
allegedly recovered an unlicensed firearm and subversive materials.
The Court held that there was no personal knowledge on the part of the
arresting officers, since the information came in its entirety from
Masamlok, a civilian. We pointed out that at the time of his arrest, appellant
was not in actual possession of any firearm or subversive document; neither
was he committing a subversive act. His warrantless arrest, therefore, could
not be allowed under any of the instances in Rule 113, Section 6 (now 5) of
the Rules of Court.
Also in Encinada, the appellant was arrested without a warrant, on the
justification that the arresting officer "received an intelligence report that
appellant who was carrying marijuana would arrive the next morning
aboard M/V Sweet Pearl." The Court categorically stated that such "[r]aw
intelligence information is not a sufficient ground for a warrantless arrest."
And since, at the time of his arrest, no act or fact demonstrating a felonious
enterprise could be ascribed to appellant, there was no valid justification for
his arrest.

To be distinguished from the above cases are those involving continuing

offenses for which the culprit could be arrested any time in flagrante
delicto. In Umil v. Ramos, 16 there were strong objections to the
warrantless arrest of a suspected member of the New People's Army (NPA),
while he was being treated for a gunshot wound in a hospital. He alleged
that there was no valid justification for his arrest without a warrant, because
he was not then committing any offense nor were there any indications that
he had just committed or was about to commit one; he was in fact confined
in a hospital.
The Court held that subversion, for which he was arrested and subsequently
charged, was a continuing offense. For purposes of arrest, the Court said,
the NPA member "did not cease to be, or became less of a subversive, . . .
simply because he was, at the time of his arrest, confined in the . . .
[hospital]." "Unlike other so-called 'common' offenses, i.e. adultery,
murder, arson, etc., which generally end upon their commission, subversion
and rebellion are anchored on an ideological base which compels the
repetition of the same acts of lawlessness and violence until the overriding
object of overthrowing organized government is attained."
In the above instances where the arrests without warrants were held
unlawful, so were the searches conducted subsequent thereto. Thus, the
items seized consequent to the invalid search, though clearly prohibited by
law (e.g. marijuana or unlicensed firearm), were considered inadmissible as
evidence against the person wrongfully arrested. Important to bear in mind
always is that any search conducted without a judicial warrant must be
preceded by a lawful arrest, whether with or without a warrant duly issued
therefor.
To underscore the rationale behind these strict rules, I deem it quite apt to
quote these inspiring words from the precedent-setting case of People v.
Burgos:
"The right of a person to be secure against any unreasonable seizure of his
body and any deprivation of his liberty is a most basic and fundamental one.
The statute or rule which allows exceptions to the requirement of warrants
of arrest is strictly construed. Any exception must clearly fall within the
situations when securing a warrant would be absurd or is manifestly

unnecessary as provided by the Rule. We cannot liberally construe the rule

on arrests without warrant or extend its application beyond the cases
specifically provided by law. To do so would infringe upon personal liberty
and set back a basic right so often violated and so deserving of full
protection."
Valid Searches Without Warrants
The general rule is that a judicial warrant must first be duly obtained before
search and seizure may be conducted. The only allowable instances in
which a search may be conducted without a warrant are: (1) search incident
to lawful arrest, (2) search pursuant to the "plain view" doctrine, (3) search
of moving vehicles, (4) searches incidental to violation of customs laws, (5)
search with consent, and (6) a "stop and frisk."
1.
Search Incident to Lawful Arrest
Section 12 of Rule 126 provides that a lawfully arrested person may be
searched without a warrant for dangerous weapons or anything else that
may be used as evidence of the offense. Such incidental search is, however,
limited to the person of the arrestee at the time of the apprehension. The
search cannot be extended to or made in a place other than the place of the
arrest.
2.
The "Plain View" Doctrine
The "plain view" doctrine applies when the following requisites concur: (1)
the law enforcement officer is in a position where he has a clear view of a
particular area or has prior justification for an intrusion; (2) said officer
inadvertently comes across (or sees in plain view) a piece of incriminating
evidence; and (3) it is immediately apparent to such officer that the item he
sees may be evidence of a crime or a contraband or is otherwise subject to
seizure.
3.
Search of Moving Vehicles
The warrantless search of moving vehicles (including shipping vessels and
aircraft) is justified by practicability, viz.:
"The guaranty of freedom from unreasonable searches and seizures
construed as recognizing a necessary difference between a search of a
dwelling house or other structure in respect of which a search warrant may

readily be obtained and a search of a ship, motorboat, wagon, or automobile

for contraband goods, where it is not practicable to secure a warrant,
because the vehicle can be quickly moved out of the locality or jurisdiction
in which the warrant must be sought.
xxx
xxx
xxx
"The automobile is a swift and powerful vehicle . . . Constructed as covered
vehicles to standard form in immense quantities, and with a capacity for
speed rivaling express trains, they furnish for successful commission of
crime a distinguishing means of silent approach and swift escape unknown
in the history of the world before their advent. The question of their police
control and reasonable search on highways or other public place is a serious
question far deeper and broader than their use in so-called 'bootlegging' or
'rum running,' which in itself is no small matter. While a possession in the
sense of private ownership, they are but a vehicle constructed for travel and
transportation on highways. Their active use is not in homes or on private
premises, the privacy of which the law especially guards from search and
seizure without process. The baffling extent to which they are successfully
utilized to facilitate commission of crime of all degrees, from those against
morality, chastity, and decency to robbery, rape, burglary, and murder, is a
matter of common knowledge. Upon that problem, a condition, and not a
theory, confronts proper administration of our criminal laws. Whether
search of and seizure from an automobile upon a highway or other public
place without a search warrant is unreasonable is in its final analysis to be
determined as a judicial question in view of all the circumstances under
which it is made."
.
4.
Customs Searches
Under the Tariff and Customs Code, searches, seizures and arrests may be
made even without warrants, for purposes of enforcing customs and tariff
laws. Without mention of the need to priorly obtain a judicial warrant, the
Code specifically allows police authorities to "enter, pass through or search
any land, enclosure, warehouse, store or building, not being a dwelling
house; and also to inspect, search and examine any vessel or aircraft and
any trunk, package, box or envelope or any person on board[;]or stop and
search and examine any vehicle, beast or person suspected of holding or
conveying any dutiable or prohibited article introduced into the Philippines
contrary to law."

5.
Search With Consent
Waiver of any objection to the unreasonableness or invalidity of a search is
a recognized exception to the rule against a warrantless search. 24 The
consent to the search, however, must be express, knowing and voluntary. A
search based merely on implied acquiescence is not valid, because such
consent is not within the purview of the constitutional guarantee, but only a
passive conformity to the search given under intimidating and coercive
circumstances.
In People v. Lacerna, it was held that the otherwise prohibited intrusive
search of appellant's plastic bag was validated by the express consent of
appellant himself, who was observed to be "urbanized in mannerism and
speech," and who moreover stated that he had nothing to hide and had done
nothing wrong.
6.
"Stop and Frisk"
The "stop and frisk" concept is of American origin, the most notable case
thereon being Terry v. Ohio. The idea is that a police officer may after
properly introducing himself and making initial inquiries, approach and
restrain a person manifesting unusual and suspicious conduct, in order to
check, the latter's outer clothing for possibly concealed weapons. The strict
manner in which this notion should be applied has been laid down as
follows:
". . . where a police officer observes unusual conduct which leads him
reasonably to conclude in the light of his experience that criminal activity
may be afoot and that the persons with whom he is dealing may be armed
and presently dangerous, where in the course of investigating this behavior,
he identifies himself as a policeman and makes reasonable inquiries, and
where nothing in the initial stages of the encounter serves to dispel his
reasonable fear for his own and others' safety, he is entitled for the
protection of himself and others in the area to conduct a carefully limited
search of the outer clothing of such persons in an attempt to discover
weapons which might be used to assault him."
As in the warrantless arrest of a person reasonably suspected of having just
committed a crime, mere suspicious behavior would not call for a "stop and
frisk." There must be a genuine reason, in accordance with the police

officer's experience and the surrounding conditions, to warrant the belief

that the person to be held has weapons (or contraband) concealed about
him.
A valid application of the doctrine was recognized in Posadas v. Court of
Appeals and in Manalili v. Court of Appeals. In Manalili, the law enforcers
who were members of the Anti-Narcotics Unit of the Caloocan City Police,
observed during their surveillance that appellant had red eyes and was
walking in a wobbly manner along the city cemetery which, according to
police information, was a popular hangout of drug addicts. Based on police
experience, such suspicious behavior was characteristic of persons who
were "high" on drugs. The Court held that past experience and the
surrounding circumstances gave the police sufficient reason to stop the
suspect and to investigate if he was really high on drugs. The marijuana that
they found in the suspect's possession was held to be admissible in
evidence.
Before I end, I must reiterate that the above exceptions to the general rule
on the necessity of a judicial warrant for any arrest, search and seizure must
all be strictly construed. Foremost in our minds must still be every person's
prized and fundamental right to liberty and security, a right protected and
guaranteed by our Constitution.
WHEREFORE, I vote to ACQUIT Appellant Violeta Gaddao y Catama, as
well as to REDUCE the penalty of Appellant Florencio Dorio y Bolado to
reclusion perpetua and a fine of P500,000.

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs. RUBEN BURGOS y TITO, defendant-appellant.
G.R. No. L-68955
September 4, 1986
SYLLABUS
1.
CONSTITUTIONAL LAW; BILL OF RIGHTS; RIGHT OF
PERSONS TO BE SECURE AGAINST UNREASONABLE
SEARCHES AND SEIZURE; RATIONALE. Article IV, Section 3 of
the Constitution is a safeguard against wanton and unreasonable invasion of
the privacy and liberty of a citizen as to his person, papers and effects. This
Court explained in Villanueva v. Querubin (48 SCRA 345) why this right is
so important: "It is deference to one's personality that lies at the core of this
right, but it could be also looked upon as a recognition of a constitutionally
protected area, primarily one's home, but not necessarily thereto confined.
(Cf. Hoffa v. United States, 385 US 293 [1966]) What is sought to be
guarded is a man's prerogative to choose who is allowed entry to his
residence. In what haven of refuge, his individuality can assert itself not
only in the choice of who shall be welcome but likewise in the kind of
objects he wants around him. There the state, however powerful, does not as
such have access except under the circumstances above noted, for in the
traditional formulation, his house, however humble, is his castle. Thus is
outlawed any unwarranted intrusion by government, which is called upon to
refrain from any invasion of his dwelling and to respect the privacies of his
life. (Cf. Schmerber v. California, 384 US 757 [1966], Brenna, J. and Boyd
v. United States, 116 US 616, 630 [1886]). In the same vein, Landynski in
his authoritative work (Search and Seizure and the Supreme court [1966]),
could fitly characterize this constitutional right as the embodiment of a
'spiritual concept: the belief that to value the privacy of home and person
and to afford its constitutional protection against the long reach of
government is no less than to value human dignity, and that his privacy
must not be disturbed except in case of overriding social need, and then
only under stringent procedural safeguards.'"

2.
REMEDIAL LAW; CRIMINAL PROCEDURE; ARREST
WITHOUT WARRANT; WHEN LAWFUL; ARRESTING OFFICER
MUST HAVE PERSONAL KNOWLEDGE OF THE FACT. Under
Section 6(a) of rule 113, the officer arresting a person who has just
committed, is committing, or is about to commit an offense must have
personal knowledge of that fact. The offense must also be committed in his
presence or within his view. (Sayo v. Chief of Police, 80 Phil. 859). There is
no such personal knowledge in this case. Whatever knowledge was
possessed by the arresting officers, it came in its entirety from the
information furnished by Cesar Masamlok. The location of the firearm was
given by the appellant's wife. At the time of the appellant's arrest, he was
not in actual possession of any firearm or subversive document. Neither was
he committing any act which could be described as subversive. He was, in
fact, plowing his field at the time of the arrest.
3.
CONSTITUTIONAL LAW; BILL OF RIGHTS; RIGHT OF
PERSONS TO BE SECURE AGAINST ANY UNREASONABLE
SEIZURE; EXCEPTIONS; SHOULD BE STRICTLY CONSTRUED;
REASON. The right of a person to be secure against any unreasonable
seizure of his body and any deprivation of his liberty is a most basic and
fundamental one. The statute or rule which allows exceptions to the
requirement of warrants of arrest is strictly construed. Any exception must
clearly fall within the situations when securing a warrant would be absurd
or is manifestly unnecessary as provided by the Rule. We cannot liberally
construe the rule on arrest without warrant or extend its application beyond
the cases specifically provided by law. To do so would infringe upon
personal liberty and set back a basic right so often violated and so deserving
of full protection.
4.
REMEDIAL LAW; CRIMINAL PROCEDURE; ARREST
WITHOUT WARRANT; ACTUAL COMMISSION OF CRIME;
ESSENTIAL PRECONDITION. In arrests without a warrant under
Section 6(b), however, it is not enough that there is reasonable ground to
believe that the person to be arrested has committed a crime. A crime must
in fact or actually have been committed first. That a crime has actually been
committed is an essential precondition. It is not enough to suspect that a

crime may have been committed. The fact of the commission of the offense
must be undisputed. The test of reasonable ground applies only to the
identity of the perpetrator.
5.
ID.; ID.; ID.; WAIVER; REQUISITES. It cannot be
presumed that there was a waiver, or that consent was given by the accused
to be searched simply because he failed to object. To constitute a waiver, it
must appear first that the right exists; secondly, that the person involved had
knowledge, actual or constructive, of the existence of such a right; and
lastly, that said person had an actual intention to relinquish the right (Pasion
Vda. de Garcia v. Locsin, 65 Phil. 689). The fact that the accused failed to
object to the entry into his house does not amount to a permission to make a
search therein (Magoncia v. Palacio, 80 Phil. 770). As pointed out by
Justice Laurel in the case of Pasion Vda. de Garcia v. Locsin (supra): ". . .
As the constitutional guaranty is not dependent upon any affirmative act of
the citizen, the courts do not place the citizen in the position of either
contesting an officer's authority by force, or waiving his constitutional
rights; but instead they hold that a peaceful submission to a search or
seizure is not a consent or an invitation thereto, but is merely a
demonstration of regard for the supremacy of the law. (56 C.J., pp. 1180,
1181)."
6.
CONSTITUTIONAL LAW; BILL OF RIGHTS; RIGHT OF
PERSONS TO BE SECURE AGAINST UNREASONABLE
SEARCHES AND SEIZURE; WAIVER THEREOF NOT
PRESUMED. We apply the rule that: "courts indulge every reasonable
presumption against waiver of fundamental constitutional rights and that we
do not presume acquiescence in the loss of fundamental rights." (Johnson v.
Zerbst, 304 U.S. 458).
7.
ID.; ID.; ID.; DOCUMENTS OBTAINED IN VIOLATION
THEREOF, INADMISSIBLE AS EVIDENCE. Considering that the
questioned firearm and the alleged subversive documents were obtained in
violation of the accused's constitutional rights against unreasonable searches
and seizures, it follows that they are inadmissible as evidence.

8.
ID.; ID.; RIGHT AGAINST SELF-INCRIMINATION;
EVIDENCE
OBTAINED
IN
VIOLATION
THEREOF
INADMISSIBLE;
ADMISSIONS
MADE
BY
ARRESTING
OFFICERS CANNOT BE USED AGAINST ACCUSED. In proving
ownership of the questioned firearm and alleged subversive documents, the
prosecution presented the two arresting officers who testified that the
accused readily admitted ownership of the gun after his wife pointed to the
place where it was buried. The officers stated that it was the accused
himself who voluntarily pointed to the place where the alleged subversive
documents were hidden. Assuming this to be true, it should be recalled that
the accused was never informed of his constitutional rights at the time of his
arrest. So that when the accused allegedly admitted ownership of the gun
and pointed to the location of the subversive documents after questioning,
the admissions were obtained in violation of the constitutional right against
self-incrimination under Sec. 20 of Art. IV of the Bill of Rights which
provides: "No person shall be compelled to be a witness against himself.
Any person under investigation for the commission of an offense shall have
the right to remain silent and to counsel, and to be informed of such right. . .
." The Constitution itself mandates that any evidence obtained in violation
of this right is inadmissible in evidence. Consequently, the testimonies of
the arresting officers as to the admissions made by the appellant cannot be
used against him.
9.
REMEDIAL LAW; EVIDENCE; RULE THAT FINDINGS
OF FACTS OF TRIAL COURT GENERALLY GIVEN GREAT
RESPECT; NOT ABSOLUTE; REASON. We are not necessarily
bound by the credibility which the trial court attaches to a particular
witness. As stated in People v. Cabrera (100 SCRA 424): ". . . Time and
again we have stated that when it comes to question of credibility the
findings of the trial court are entitled to great respect upon appeal for the
obvious reason that it was able to observe the demeanor, actuations and
deportment of the witnesses during the trial. But we have also said that this
rule is not absolute for otherwise there would be no reversals of convictions
upon appeal. We must reject the findings of the trial court where the record
discloses circumstances of weight and substance which were not properly
appreciated by the trial court."

DECISION
GUTIERREZ, JR., J p:
This is an appeal from the decision of the Regional Trial Court of Davao del
Sur, 11th Judicial Region, Digos, Davao del Sur convicting defendantappellant Ruben Burgos y Tito of the crime of Illegal Possession of
Firearms in Furtherance of Subversion. The dispositive portion of the
decision reads:
"WHEREFORE, finding the guilt of accused Ruben Burgos sufficiently
established beyond reasonable doubt, of the offense charged, pursuant to
Presidential Decree No. 9, in relation to General Order No. 6, dated
September 22, 1972, and General Order No. 7, dated September 23, 1972,
in relation further to Presidential Decree No. 885, and considering that the
firearm subject of this case was not used in the circumstances as embraced
in paragraph 1 thereof, applying the provision of indeterminate sentence
law, accused Ruben Burgos is hereby sentenced to suffer an imprisonment
of twenty (20) years of reclusion temporal maximum, as minimum penalty,
to reclusion perpetua, as maximum penalty, pursuant to sub-paragraph B, of
Presidential Decree No. 9, as aforementioned, with accessory penalties, as
provided for by law.
"As a result of this judgment, the subject firearm involved in this case
(Homemade revolver, caliber .38, Smith and Wesson, with Serial No.
8.69221) is hereby ordered confiscated in favor of the government, to be
disposed of in accordance with law. Likewise, the subversive documents,
leaflets and/or propaganda seized are ordered disposed of in accordance
with law."
The information charged the defendant-appellant with the crime of illegal
possession of firearm in furtherance of subversion in an information which
reads as follows:
"That in the afternoon of May 13, 1982 and thereabouts at Tiguman, Digos,
Davao del Sur, Philippines, within the jurisdiction of this Court, the abovenamed accused with intent to possess and without the necessary license,
permit or authority issued by the proper government agencies, did then and
there wilfully, unlawfully and feloniously keep, possess, carry and have in
his possession, control and custody one (1) homemade revolver, caliber .38,
make Smith and Wesson, with Serial No. 8.69221, which firearm was

issued to and used by the accused at Tiguman, Digos, Davao del Sur, his
area of operations by one Alias Commander Pol for the New People's Army
(NPA), a subversive organization organized for the purpose of
overthrowing the Government of the Republic of the Philippines through
lawless and violent means, of which the accused had knowledge, and which
firearm was used by the accused in the performance of his subversive tasks
such as the recruitment of New Members to the NPA and collection of
contributions from the members.
"CONTRARY TO LAW."
The evidence for the prosecution is summarized in the decision of the lower
court as follows:
xxx
xxx
xxx
". . . Through the testimony of Pat. Pepito Bioco, and Sgt. Romeo Taroy, it
appears that by virtue of an intelligent information obtained by the
Constabulary and INP units, stationed at Digos, Davao del Sur, on May 12,
1982, one Cesar Masamlok personally and voluntarily surrendered to the
authorities at about 9:00 o'clock A.M. at Digos, Davao del Sur Constabulary
Headquarters, stating that he was forcibly recruited by accused Ruben
Burgos as member of the NPA, threatening him with the use of firearm
against his life, if he refused.
"Along with his recruitment, accused was asked to contribute one (1) chopa
of rice and one peso (P1.00) per month, as his contribution to the NPA
(TSN, page 5, Hearing - October 14, 1982).
"Immediately, upon receipt of said information, a joint team of PC-INP
units, composed of fifteen (15) members, headed by Captain Melchesideck
Bargio, (PC), on the following day, May 13, 1982, was dispatched at
Tiguman; Davao del Sur, to arrest accused Ruben Burgos. The team left the
headquarter at 1:30 P.M., and arrived at Tiguman, at more or less 2:00
o'clock P.M., where through the help of Pedro Burgos, brother of accused,
the team was able to locate accused, who was plowing his field. (TSN,
pages 6-7, Hearing October 14, 1982).
"Right in the house of accused, the latter was called by the team and Pat.
Bioco asked accused about his firearm, as reported by Cesar Masamlok. At
first accused denied possession of said firearm but later, upon question

propounded by Sgt. Alejandro Buncalan with the wife of the accused, the
latter pointed to a place below their house where a gun was buried in the
ground. (TSN, page 8, Hearing October 14, 1982).
"Pat. Bioco then verified the place pointed by accused's wife and dug the
grounds, after which he recovered the firearm, Caliber .38 revolver, marked
as Exhibit "A" for the prosecution.
"After the recovery of the firearm, accused likewise pointed to the team,
subversive documents which he allegedly kept in a stock pile of cogon, at a
distance of three (3) meters apart from his house. Then Sgt. Taroy
accordingly verified beneath said cogon grass and likewise recovered
documents consisting of notebook colored maroon with spiral bound,
Exhibit "B" for the prosecution; a pamphlet consisting of eight (8) leaves,
including the front and back covers entitled Ang Bayan, Pahayagan ng
Partido Komunista ng Pilipinas, Pinapatnubayan ng Marxismo, Leninismo,
Kaisipang Mao Zedong, dated December 31, 1980, marked as Exhibit "C",
and another pamphlet Asdang Pamantalaang Masa sa Habagatang
Mindanao, March and April 1981 issue, consisting of ten (10) pages,
marked as Exhibit "D" for the prosecution.
"Accused, when confronted with the firearm, Exhibit "A", after its recovery,
readily admitted the same as issued to him by Nestor Jimenez, otherwise
known as a certain Alias Pedipol, allegedly team leader of the sparrow unit
of New People's Army, responsible in the liquidation of target personalities,
opposed to NPA ideological movement, an example was the killing of the
late Mayor Llanos and Barangay Captain of Tienda Aplaya, Digos, Davao
del Sur. (TSN, pages 1-16, Hearing October 14, 1982).
"To prove accused's subversive activities, Cesar Masamlok, a former NPA
convert was presented, who declared that on March 7, 1972, in his former
residence at Tiguman, Digos, Davao del Sur, accused Ruben Burgos,
accompanied by his companions Landrino Burgos, Oscar Gomez and
Antonio Burgos, went to his house at about 5:00 o'clock P.M. and called
him downstairs. Thereupon, accused told Masamlok, their purpose was to
ask rice and one (1) peso from him, as his contribution to their companions,

the NPA of which he is now a member. (TSN, pages 70, 71, 72, Hearing
January 4, 1983).
"Accused and his companions told Masamlok, he has to join their group
otherwise, he and his family will be killed. He was also warned not to
reveal anything with the government authorities. Because of the threat to his
life and family, Cesar Masamlok joined the group. Accused then told him,
he should attend a seminar scheduled on April 19, 1982. Along with this
invitation, accused pulled out from his waistline a .38 caliber revolver
which Masamlok really saw, being only about two (2) meters away from
accused, which make him easily identified said firearm, as that marked as
Exhibit "A" for the prosecution (TSN, pages 72, 73, and 74, Hearing
January 4, 1983).
"On April 19, 1982, as previously invited, Masamlok, accompanied by his
father, Matuguil Masamlok, Isabel Ilan and Ayok Ides went to the house of
accused and attended the seminar. Those present in the seminar were:
accused Ruben Burgos, Antonio Burgos, Oscar Gomez, Landrino Burgos,
alias Pedipol and one alias Jamper.
"The first speaker was accused Ruben Burgos, who said very distinctly that
he is an NPA together with his companions, to assure the unity of the
civilian. That he encouraged the group to overthrow the government,
emphasizing that those who attended the seminar were already members of
the NPA, and if they reveal to the authorities, they will be killed.
"Accused, while talking, showed to the audience pamphlets and documents,
then finally shouted, the NPA will be victorious. Masamlok likewise
identified the pamphlets as those marked as Exhibits "B", "C", and "D" for
the prosecution. (TSN, pages 75, 76 and 77, Hearing January 4, 1983).
"Other speakers in said meeting were Pedipol, Jamper and Oscar Gomez,
who likewise expounded their own opinions about the NPA, It was also
announced in said seminar that a certain Tonio Burgos, will be responsible
for the collection of the contribution from the members. (TSN, pages 78-79,
Hearing January 4, 1983).

"On May 12, 1982, however, Cesar Masamlok surrendered to Captain

Bargio of the Provincial Headquarters of the Philippine Constabulary,
Digos, Davao del Sur.
"Assistant Provincial Fiscal Panfilo Lovitos was presented to prove that on
May 19, 1982, he administered the subscription of the extra-judicial
confession of accused Ruben Burgos, marked as Exhibit "E" for the
prosecution, consisting of five (5) pages.
"Appearing voluntarily in said office, for the subscription of his confession,
Fiscal Lovitos, realizing that accused was not represented by counsel,
requested the services of Atty. Anyog, whose office is adjacent to the
Fiscal's Office, to assist accused in the subscription of his extrajudicial
statement.
"Atty. Anyog assisted accused in the reading of his confession from English
to Visayan language, resulting to the deletion of question No. 19 of the
document, by an inserted certification of Atty. Anyog and signature of
accused, indicating his having understood, the allegations of his
extrajudicial statement.
"Fiscal Lovitos, before accused signed his statement, explained to him his
constitutional rights to remain silent, light to counsel and right to answer
any question propounded or not.
"With the aid of Atty. Anyog, accused signed his confession in the presence
of Atty. Anyog and Fiscal Lovitos, without the presence of military
authorities, who escorted the accused, but were sent outside the cubicle of
Fiscal Lovitos, while waiting for the accused. (TSN, pages 36-40, Hearing
November 15, 1982).
"Finally, in order to prove illegal possession by accused of the subject
firearm, Sgt. Epifanio Comabig, in-charge of firearms and explosives,
NCO, Headquarter, Philippine Constabulary, Digos, Davao del Sur, was
presented and testified, that among the lists of firearm holders in Davao del
Sur, nothing was listed in the name of accused Ruben Burgos, neither was

his name included among the lists of persons who applied for the licensing
of the firearm, under Presidential Decree No. 1745.
"After the above-testimony the prosecution formally closed its case and
offered its exhibits, which were all admitted in evidence, despite objection
interposed by counsel for accused, which was accordingly overruled."
On the other hand, the defendant-appellant's version of the case against him
is stated in the decision as follows:
"From his farm, the military personnel, whom he said he cannot recognize,
brought him to the PC Barracks at Digos, Davao del Sur, and arrived there
at about 3:00 o'clock, on the same date. At about 8:00 o'clock P.M., in the
evening, he was investigated by soldiers, whom he cannot identify because
they were wearing a civilian attire. (TSN, page 141, Hearing June 15,
1983).
"The investigation was conducted in the PC barracks, where he was
detained with respect to the subject firearm, which the investigator, wished
him to admit but accused denied its ownership. Because of his refusal,
accused was mauled, hitting him on the left and right side of his body which
rendered him unconscious. Accused in an atmosphere of tersed solemnity,
crying and with emotional attachment, described in detail how he was
tortured and the ordeals he was subjected.
"He said, after recovery of his consciousness, he was again confronted with
subject firearm, Exhibit "A", for him to admit and when he repeatedly
refused to accept as his own firearm, he was subjected to further prolong
(sic) torture and physical agony. Accused said, his eyes were covered with
wet black cloth with pungent effect on his eyes. He was undressed, with
only blindfold, pungent water poured in his body and over his private parts,
making his entire body, particularly his penis and testicle, terribly irritating
with pungent pain.
"All along, he was investigated to obtain his admission. The process of
beating, mauling, pain and or ordeal was repeatedly done in similar cycle,
from May 13 and 14, 1982, intercepted only whenever he fell unconscious
and again repeated after recovery of his senses.

"Finally on May 15, 1982, after undergoing the same torture and physical
ordeal, he was seriously warned, if he win still adamantly refuse to accept
ownership of the subject firearm, he will be salvaged, and no longer able to
bear any further the pain and agony, accused admitted ownership of subject
firearm.
"After his admission, the mauling and torture stopped, but accused was
made to sign his affidavit marked as Exhibit "E" for the prosecution,
consisting of five (5) pages, including the certification of the administering
officer. (TSN, pages 141-148, Hearing - June 15, 1983).
"In addition to how he described the torture inflicted on him, accused, by
way of explanation and commentary in details, and going one by one, the
allegations and or contents of his alleged extra-judicial statement, attributed
his answers to those questions involuntarily made only because of fear,
threat and intimidation of his person and family, as a result of unbearable
excruciating pain he was subjected by an investigator, who, unfortunately
he cannot identify and was able to obtain his admission of the subject
firearm, by force and violence exerted over his person.
"To support denial of accused of being involved in any subversive
activities, and also to support his denial to the truth of his alleged extrajudicial confession, particularly questions Nos. 35, 38, 41, 42, 43, 44, 45, 46
and 47, along with his answers to those questions, involving Honorata
Arellano alias Inday Arellano, said Honorata Arellano appeared and
declared categorically, that the above-questions embraced in the numbers
allegedly stated in the extra-judicial confession of accused, involving her to
such NPA personalities, as Jamper, Pol, Anthony, etc., were not true
because on the date referred on April 28, 1982, none of the persons
mentioned came to her house for treatment, neither did she meet the
accused nor able to talk with him. (TSN, pages 118-121, Hearing May
18, 1983).
"She, however, admitted being familiar with one Oscar Gomez, and that she
was personally charged with subversion in the Office of the Provincial
Commander, Philippine Constabulary, Digos, Davao del Sur, but said
charge was dismissed without reaching the Court. She likewise stated that

her son, Rogelio Arellano, was likewise charged for subversion filed in the
Municipal Trial Court of Digos, Davao del Sur, but was likewise dismissed
for lack of sufficient evidence to sustain his conviction. (TSN, pages 121122, in relation to her cross-examination, Hearing May 18, 1983).
"To support accused's denial of the charge against him, Barangay Captain of
Tiguman, Digos, Davao del Sur, Salvador Galaraga was presented, who
declared, he was not personally aware of any subversive activities of
accused, being his neighbor and member of his barrio. On the contrary, he
can personally attest to his good character and reputation, as a law abiding
citizen of his barrio, being a carpenter and farmer thereat. (TSN, pages 128129, Hearing May 18, 1983).
"He, however, admitted in cross-examination, that there were a lot of arrests
made by the authorities in his barrio involving subversive activities but they
were released and were not formally charged in Court because they publicly
took their oath of allegiance with the government. (TSN, pages 133-134, in
relation to page 136, Hearing May 18, 1983).
"Finally, to support accused's denial of the subject firearm, his wife, Urbana
Burgos, was presented and who testified that the subject firearm was left in
their house by Cesar Masamlok and one Pedipol on May 10, 1982. It was
night time, when the two left the gun, alleging that it was not in order, and
that they will leave it behind, temporarily, for them to claim it later. They
were the ones who buried it. She said, her husband, the accused, was not in
their house at that time and that she did not inform him about said firearm
neither did she report the matter to the authorities, for fear of the life of her
husband. (TSN, page 24, November 22, 1983).
"On cross-examination, she said, even if Masamlok during the recovery of
the firearm, was wearing a mask, she can still identify him (TSN, page 6,
Hearing - November 22, 1983).
"After the above-testimony, accused through counsel formally rested his
case, in support of accused's through counsel manifestation for the demurrer
to evidence of the prosecution, or in the alternative for violation merely of
simple illegal possession of firearm, under the Revised Administrative

Code, as amended by Republic Act No. 4, reflected in the manifestation of

counsel for accused. (TSN, pages 113-114, Hearing May 18, 1983)"

he may produce, and particularly describing the place to be searched, and

the persons or things to be seized."

Accused-appellant Ruben Burgos now raises the following assignments of

error, to wit:
I THE TRIAL COURT ERRED IN HOLDING THAT (SIC) THE
ARREST OF ACCUSED-APPELLANT WITHOUT VALID WARRANT
TO BE LAWFUL.
II THE TRIAL COURT ERRED IN HOLDING THE SEARCH IN THE
HOUSE OF ACCUSED-APPELLANT FOR FIREARM WITHOUT
VALID WARRANT TO BE LAWFUL.
III THE TRIAL COURT ERRED IN HOLDING ACCUSEDAPPELLANT GUILTY BEYOND REASONABLE DOUBT FOR
VIOLATION OF P.D. No. 9 IN RELATION TO GENERAL ORDERS
NOS. 6 AND 7.

The constitutional provision is a safeguard against wanton and unreasonable

invasion of the privacy and liberty of a citizen as to his person, papers and
effects. This Court explained in Villanueva v. Querubin (48 SCRA 345)
why this right is so important:

Was the arrest of Ruben Burgos lawful? Were the search of his house and
the subsequent confiscation of a firearm and documents allegedly found
therein conducted in a lawful and valid manner? Does the evidence
sustaining the crime charged meet the test of proving guilt beyond
reasonable doubt?
The records of the case disclose that when the police authorities went to the
house of Ruben Burgos for the purpose of arresting him upon information
given by Cesar Masamlok that the accused allegedly recruited him to join
the New People's Army (NPA), they did not have any warrant of arrest or
search warrant with them (TSN, p. 25, October 14, 1982; and TSN, p. 61,
November 15, 1982).
Article IV, Section 3 of the Constitution provides:
"The right of the people to be secure in their persons, houses, papers, and
effects against unreasonable searches and seizures of whatever nature and
for any purpose shall not be violated, and no search warrant or warrant of
arrest shall issue except upon probable cause to be determined by the judge,
or such other responsible officer as may be authorized by law, after
examination under oath or affirmation of the complainant and the witnesses

"It is deference to one's personality that lies at the core of this right, but it
could be also looked upon as a recognition of a constitutionally protected
area, primarily one's home, but not necessarily thereto confined. (Cf. Hoffa
v. United States, 385 US 293 [1966]) What is sought to be guarded is a
man's prerogative to choose who is allowed entry to his residence. In that
haven of refuge, his individuality can assert itself not only in the choice of
who shall be welcome but likewise in the kind of objects he wants around
him. There the state, however powerful, does not as such have access except
under the circumstances above noted, for in the traditional formulation, his
house, however humble, is his castle. Thus is outlawed any unwarranted
intrusion by government, which is called upon to refrain from any invasion
of his dwelling and to respect the privacies of his life. (Cf. Schmerber v.
California, 384 US 757 [1966], Brennan, J. and Boyd v. United States, 116
US 616, 630 [1886]). In the same vein, Landynski in his authoritative work
(Search and Seizure and the Supreme Court [1966], could fitly characterize
this constitutional right as the embodiment of a `spiritual concept: the belief
that to value the privacy of home and person and to afford its constitutional
protection against the long reach of government is no less than to value
human dignity, and that his privacy must not be disturbed except in case of
overriding social need, and then only under stringent procedural safeguards.'
(Ibid, p. 47)."
The trial court justified the arrest of the accused-appellant without any
warrant as falling under one of the instances when arrests may be validly
made without a warrant. Rule 113, Section 6 ** of the Rules of Court,
provides the exceptions as follows:
a)
When the person to be arrested has committed, is actually
committing, or is about to commit an offense in his presence;

b)
When an 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.
The Court stated that even if there was no warrant for the arrest of Burgos,
the fact that "the authorities received an urgent report of accused's
involvement in subversive activities from a reliable source (report of Cesar
Masamlok) the circumstances of his arrest, even without judicial warrant, is
lawfully within the ambit of Section 6-A of Rule 113 of the Rules of Court
and applicable jurisprudence on the matter."
If the arrest is valid, the consequent search and seizure of the firearm and
the alleged subversive documents would become an incident to a lawful
arrest as provided by Rule 126, Section 12, which states:
"A person charged with an offense may be searched for dangerous weapons
or anything which may be used as proof of the commission of the offense."
The conclusions reached by the trial court are erroneous.
Under Section 6(a) of Rule 113, the officer arresting a person who has just
committed, is committing, or is about to commit an offense must have
personal knowledge of that fact. The offense must also be committed in his
presence or within his view. (Sayo v. Chief of Police, 80 Phil. 859).
There is no such personal knowledge in this case. Whatever knowledge was
possessed by the arresting officers, it came in its entirety from the
information furnished by Cesar Masamlok. The location of the firearm was
given by the appellant's wife.
At the time of the appellant's arrest, he was not in actual possession of any
firearm or subversive document. Neither was he committing any act which
could be described as subversive. He was, in fact, plowing his field at the
time of the arrest.

The right of a person to be secure against any unreasonable seizure of his

body and any deprivation of his liberty is a most basic and fundamental one.
The statute or rule which allows exceptions to the requirement of warrants
of arrest is strictly construed. Any exception must clearly fall within the
situations when securing a warrant would be absurd or is manifestly
unnecessary as provided by the Rule. We cannot liberally construe the rule
on arrests without warrant or extend its application beyond the cases
specifically provided by law. To do so would infringe upon personal liberty
and set back a basic right so often violated and so deserving of full
protection.
The Solicitor General is of the persuasion that the arrest may still be
considered lawful under Section 6(b) using the test of reasonableness. He
submits that the information given by Cesar Masamlok was sufficient to
induce a reasonable ground that a crime has been committed and that the
accused is probably guilty thereof.
In arrests without a warrant under Section 6(b), however, it is not enough
that there is reasonable ground to believe that the person to be arrested has
committed a crime. A crime must in fact or actually have been committed
first. That a crime has actually been committed is an essential precondition.
It is not enough to suspect that a crime may have been committed. The fact
of the commission of the offense must be undisputed. The test of reasonable
ground applies only to the identity of the perpetrator.
In this case, the accused was arrested on the sole basis of Masamlok's verbal
report. Masamlok led the authorities to suspect that the accused had
committed a crime. They were still fishing for evidence of a crime not yet
ascertained. The subsequent recovery of the subject firearm on the basis of
information from the lips of a frightened wife cannot make the arrest lawful.
If an arrest without warrant is unlawful at the moment it is made, generally
nothing that happened or is discovered afterwards can make it lawful. The
fruit of a poisoned tree is necessarily also tainted.
More important, we find no compelling reason for the haste with which the
arresting officers sought to arrest the accused. We fail to see why they
failed to first go through the process of obtaining a warrant of arrest, if

indeed they had reasonable ground to believe that the accused had truly
committed a crime. There is no showing that there was a real apprehension
that the accused was on the verge of flight or escape. Likewise, there is no
showing that the whereabouts of the accused were unknown.
The basis for the action taken by the arresting officer was the verbal report
made by Masamlok who was not required to subscribe his allegations under
oath. There was no compulsion for him to state truthfully his charges under
pain of criminal prosecution. (TSN, p. 24, October 14, 1982). Consequently,
the need to go through the process of securing a search warrant and a
warrant of arrest becomes even more clear. The arrest of the accused while
he was plowing his field is illegal. The arrest being unlawful, the search and
seizure which transpired afterwards could not likewise be deemed legal as
being mere incidents to a valid arrest.
Neither can it be presumed that there was a waiver, or that consent was
given by the accused to be searched simply because he failed to object. To
constitute a waiver, it must appear first that the right exists; secondly, that
the person involved had knowledge, actual or constructive, of the existence
of such a right; and lastly, that said person had an actual intention to
relinquish the right (Pasion Vda. de Garcia v. Locsin, 65 Phil. 689). The
fact that the accused failed to object to the entry into his house does not
amount to a permission to make a search therein (Magoncia v. Palacio, 80
Phil. 770). As pointed out by Justice Laurel in the case of Pasion Vda. de
Garcia v. Locsin (supra):
xxx
xxx
xxx
". . . As the constitutional guaranty is not dependent upon any affirmative
act of the citizen, the courts do not place the citizen in the position of either
contesting an officer's authority by force, or waiving his constitutional
rights; but instead they hold that a peaceful submission to a search or
seizure is not a consent or an invitation thereto, but is merely a
demonstration of regard for the supremacy of the law. (56 C.J., pp. 1180,
1181)."
We apply the rule that: "courts indulge every reasonable presumption
against waiver of fundamental constitutional rights and that we do not

presume acquiescence in the loss of fundamental rights." (Johnson v.

Zerbst, 304 U.S. 458).
That the accused-appellant was not apprised of any of his constitutional
rights at the time of his arrest is evident from the records:
ATTY. CALAMBA:
"Q
When you went to the area to arrest Ruben Burgos, you were not
armed with an arrest warrant?
"A
None Sir.
"Q
Neither were you armed with a search warrant?
"A
No Sir.
"Q
As a matter of fact, Burgos was not present in his house when you
went there?
"A
But he was twenty meters away from his house.
"Q
Ruben Burgos was then plowing his field?
"A
Yes Sir.
"Q
When you called for Ruben Burgos you interviewed him?
"A
Yes Sir.
"Q
And that you told him that Masamlok implicated him?
"A
No Sir.
"Q
What did you tell him?
"A
That we received information that you have a firearm, you
surrender that firearm, first he denied but when Sgt. Buncalan interviewed
his wife, his wife told him that it is buried, I dug the firearm which was
wrapped with a cellophane.
"Q
In your interview of Burgos you did not remind him of his rights
under the constitution considering that he was purposely under arrest?
"A
I did not.
"Q
As a matter of fact, he denied that he has ever a gun?
"A
Yes Sir.
"Q
As a matter of fact, the gun was not in his possession?
"A
It was buried down in his house.
"Q
As a matter of fact, Burgos did not point to where it was buried?
"A
Yes Sir."(TSN, pp. 25-26, Hearing October 14, 1982).
Considering that the questioned firearm and the alleged subversive
documents were obtained in violation of the accused's constitutional rights

against unreasonable searches and seizures, it follows that they are

inadmissible as evidence.
There is another aspect of this case.

Office was too late. It could have no palliative effect. It cannot cure the
absence of counsel at the time of the custodial investigation when the
extrajudicial statement was being taken.

In proving ownership of the questioned firearm and alleged subversive

documents, the prosecution presented the two arresting officers who
testified that the accused readily admitted ownership of the gun after his
wife pointed to the place where it was buried. The officers stated that it was
the accused himself who voluntarily pointed to the place where the alleged
subversive documents were hidden.

With the extra-judicial confession, the firearm, and the alleged subversive
documents inadmissible in evidence against the accused-appellant, the only
remaining proof to sustain the charge of Illegal Possession of Firearm in
Furtherance of Subversion is the testimony of Cesar Masamlok.

Assuming this to be true, it should be recalled that the accused was never
informed of his constitutional rights at the time of his arrest. So that when
the accused allegedly admitted ownership of the gun and pointed to the
location of the subversive documents after questioning, the admissions were
obtained in violation of the constitutional right against self-incrimination
under Sec. 20 of Art. IV of the Bill of Rights which provides:
"No person shall be compelled to be a witness against himself. Any person
under investigation for the commission of an offense shall have the right to
remain silent and to counsel, and to be informed of such right . . ."
The Constitution itself mandates that any evidence obtained in violation of
this right is inadmissible in evidence. Consequently, the testimonies of the
arresting officers as to the admissions made by the appellant cannot be used
against him.
The trial court validly rejected the extra-judicial confession of the accused
as inadmissible in evidence. The court stated that the appellant's having
been exhaustively subjected to physical terror, violence, and third degree
measures may not have been supported by reliable evidence but the failure
to present the investigator who conducted the investigation gives rise to the
"provocative presumption" that indeed torture and physical violence may
have been committed as stated.
The accused-appellant was not accorded his constitutional right to be
assisted by counsel during the custodial interrogation. The lower court
correctly pointed out that the securing of counsel, Atty. Anyog, to help the
accused when he subscribed under oath to his statement at the Fiscal's

We find the testimony of Masamlok inadequate to convict Burgos beyond

reasonable doubt. It is true that the trial court found Masamlok's testimony
credible and convincing. However, we are not necessarily bound by the
credibility which the trial court attaches to a particular witness. As stated in
People v. Cabrera (100 SCRA 424):
xxx
xxx
xxx
". . . Time and again we have stated that when it comes to question of
credibility the findings of the trial court are entitled to great respect upon
appeal for the obvious reason that it was able to observe the demeanor,
actuations and deportment of the witnesses during the trial. But we have
also said that this rule is not absolute for otherwise there would be no
reversals of convictions upon appeal. We must reject the findings of the trial
court where the record discloses circumstances of weight and substance
which were not properly appreciated by the trial court."
The situation under which Cesar Masamlok testified is analogous to that
found in People v. Capadocia (17 SCRA 981):
"The case against appellant is built on Ternura's testimony, and the issue
hinges on how much credence can be accorded to him. The first
consideration is that said testimony stands uncorroborated. Ternura was the
only witness who testified on the mimeographing incident . . .
xxx
xxx
xxx
". . . He was a confessed Huk under detention at the time. He knew his fate
depended upon how much he cooperated with the authorities, who were
then engaged in a vigorous anti-dissident campaign. As in the case of
Rodrigo de Jesus, whose testimony We discounted for the same reason, that

of Ternura cannot be considered as proceeding from a totally unbiased

source . . ."
In the instant case, Masamlok's testimony was totally uncorroborated.
Considering that Masamlok surrendered to the military, certainly his fate
depended on how eagerly he cooperated with the authorities. Otherwise, he
would also be charged with subversion. The trade-off appears to be his
membership in the Civil Home Defense Force. (TSN, p. 83, January 4,
1983). Masamlok may be considered as an interested witness. It can not be
said that his testimony is free from the opportunity and temptation to be
exaggerated and even fabricated for it was intended to secure his freedom.
Despite the fact that there were other persons present during the alleged
NPA seminar of April 19, 1982 i.e., Masamlok's father Matuguil Masamlok,
Isabel Ilan and Ayok Ides (TSN, p. 74, January 4, 1983) who could have
corroborated Cesar Masamlok's testimony that the accused used the gun in
furtherance of subversive activities or actually engaged in subversive acts,
the prosecution never presented any other witness.
This Court is, therefore, constrained to rule that the evidence presented by
the prosecution is insufficient to prove the guilt of the accused beyond
reasonable doubt.
As held in the case of People v. Bania (34 SCRA 347):
"It is evident that once again, reliance can be placed on People v. Dramayo
(42 SCRA 59), where after stressing that accusation is not, according to the
fundamental law, synonymous with guilt, it was made clear: `Only if the
judge below and the appellate tribunal could arrive at a conclusion that the
crime had been committed precisely by the person on trial under such an
exacting test should the sentence be one of conviction. It is thus required
that every circumstance favoring his innocence be duly taken into account.
The proof against him must survive the test of reason; the strongest
suspicion must not be permitted to sway judgment. The conscience must be
satisfied that on the defendant could be laid the responsibility for the
offense charged; that not only did he perpetrate the act but that it amounted
to a crime. What is required then is moral certainty.' (Ibid, 64. Cf. People v.
Alvarez, 55 SCRA 81; People v. Joven, 64 SCRA 126; People v. Ramirez,
69 SCRA 144; People v. Godoy, 72 SCRA 69; People v. Lopez, 74 SCRA
205; People v. Poblador, 76 SCRA 634; People v. Quiazon, 78 SCRA 513;

People v. Nazareno, 80 SCRA 484; People v. Gabilan, 115 SCRA 1; People

v. Gabiana, 117 SCRA 260; and People v. Ibanga, 124 SCRA 697)."
We are aware of the serious problems faced by the military in Davao del
Sur where there appears to be a well-organized plan to overthrow the
Government through armed struggle and replace it with an alien system
based on a foreign ideology. The open defiance against duly constituted
authorities has resulted in unfortunate levels of violence and human
suffering publicized all over the country and abroad. Even as we reiterate
the need for all freedom loving citizens to assist the military authorities in
their legitimate efforts to maintain peace and national security, we must also
remember the dictum in Morales v. Enrile (121 SCRA 538, 569) when this
Court stated:
"While the government should continue to repel the communists, the
subversives, the rebels, and the lawless with all the means at its command,
it should always be remembered that whatever action is taken must always
be within the framework of our Constitution and our laws."
Violations of human rights do not help in overcoming a rebellion. A
cavalier attitude towards constitutional liberties and protections will only
fan the increase of subversive activities instead of containing and
suppressing them.
WHEREFORE, the judgment of conviction rendered by the trial court is
REVERSED and SET ASIDE. The accused-appellant is hereby
ACQUITTED, on grounds of reasonable doubt, of the crime with which he
has been charged.
The subject firearm involved in this case (homemade revolver, caliber .38,
Smith and Wesson, with Serial No. 8.69221) and the alleged subversive
documents are ordered disposed of in accordance with law.
Cost de oficio.
SO ORDERED.
Feria (Chairman), Fernan, Alampay and Paras, JJ., concur.

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs. WENCESLAO JAYSON, accused-appellant.
G.R. No. 120330
November 18, 1997
SYNOPSIS
Accused-appellant, a bouncer in one nightclub, shot one Nelson Jordan.
When arrested, a .38 caliber revolver, four live bullets, and one empty shell
were recovered from him. The firearm and the ammunition were covered by
a memorandum receipt and a mission order issued by Major Francisco
Arquillano of the Davao Metropolitan District Command authorizing
appellant to carry the said firearm and twelve rounds of ammunition. He
was charged of illegal possession of firearm. The Regional Trial Court
found him guilty and sentenced him to 20 years imprisonment, ruling that
appellant acted in good faith, believing that the mission order and
memorandum receipt issued to him were valid. On appeal, the Court of
Appeals increased the penalty to reclusion perpetua.
As found by the Court of Appeals, Major Arquillano was not authorized to
issue the mission order in question, as he was not any of the officers
mentioned in the Implementing Rules and Regulations of P.D. No. 1866.
Neither was appellant qualified to have a mission order because he was a
mere reserve of the CAFGU without regular monthly compensation. Good
faith is not a valid defense where the offense committed is malum
prohibitum.
The penalty for illegal possession of firearm reduced under R.A. No. 8294,
amending P.D. No. 1866 cannot be applied in this case in view of the
proviso that the lighter penalty does not apply to cases where another crime
has been committed. Nor can illegal possession of firearm be appreciated as
a mere aggravating circumstance because although the gun seized was used
in the commission of a crime, this case concern solely the charge of illegal
possession of firearm. The criminal case for homicide is not here under
consideration. Hence, the decision of the Court of Appeals is affirmed.

SYLLABUS
1.
REMEDIAL
LAW;
CRIMINAL
PROCEDURE;
WARRANTLESS ARREST AND SEARCH; LAWFUL IN CASE AT
BAR. SPO1 Loreto Tenebro testified that in the evening of March 16,
1991, while he and Patrolmen Camotes and Racolas were patrolling in their
car, they received a radio message from their camp directing them to
proceed to the "Ihaw-Ihaw" on Bonifacio Street where there had been a
shooting. Accordingly, they proceeded to the place and there saw the
victim, Nelson Jordan. Bystanders pointed to accused-appellant as the one
who had shot Jordan. They then arrested accused-appellant. Seized from
him was a .38 caliber revolver with serial number 91955. Considering these
facts, the warrantless arrest was valid under Rule 113, Section 5(b) of the
Revised Rules of Criminal Procedure. The arresting officers acted on the
basis of personal knowledge of the death of the victim and of facts
indicating that accused-appellant was the assailant. The subsequent search
of accused-appellant's person and the seizure from him of the firearm was
likewise lawful under Rule 126, Section 12.
2.
CRIMINAL LAW; ILLEGAL POSSESSION OF FIREARM;
PRESENT WHERE MEMORANDUM RECEIPT AND MISSION
ORDER NOT VALID. Accused-appellant is liable for illegal
possession of firearm. His defense is that the gun is covered by a
memorandum receipt and mission order issued by Major Arquillano, then
Deputy Commander of the Civil-Military Operation and CAFGU Affairs of
the Davao Metropolitan District Command. The issuance of mission orders
is governed by Memorandum Circular No. 8 dated October 16, 1986 of the
then Ministry of Justice. Under the same, Major Arquillano was not
authorized to issue the mission order in question. Neither was accusedappellant qualified to have a mission order. Major Arquillano was not
authorized to issue mission orders to civilian agents of the AFP as he was
not any of the following officers mentioned in the Implementing Rules and
Regulations of P.D. No. 1866, Section 5(a). That Colonel Calida had
authorized him (Major Arquillano) to exercise this function is a bare
assertion that cannot be given credit. Neither was there a written delegation
of authority to Major Arquillano. It is even doubtful whether Col. Calida
who had authority to issue mission orders, could delegate this authority to
his deputy. Accused-appellant also was not qualified to be issued a mission

order because he was a mere reserve of the Citizens Forces Geographical

Unit (CAFGU) without regular monthly compensation. In fact he worked as
a "bouncer" in a nightclub, and it was as a "bouncer" that he used the gun
seized from him. And even assuming that the issuance of the mission order
was valid, carrying the firearm inside the nightclub where accused-appellant
was working as a "bouncer," is a violation of the restrictions in the mission
order. The restrictions prohibited him from carrying firearms in places
where people converge unless on official mission. In any event, accusedappellant's claim that he acted in the good faith belief that the documents
issued to him sufficed as legal authority for him to carry the firearm and
that there was absence of criminal intent are not valid defenses because the
offense committed is malum prohibitum punishable by special law.

DECISION
MENDOZA, J p:
Accused-appellant Wenceslao Jayson was charged with violation of P.D.
No. 1866 in the Regional Trial Court of Davao City. The amended
information alleged
That on or about March 16, 1991, in the City of Davao, Philippines, and
within the jurisdiction of this Honorable Court, the above-mentioned
accused wilfully, unlawfully and feloniously with intent to possess, had in
his possession and under his custody one (1) .38 caliber revolver (Paltik),
with Serial Number 91955 and four (4) live ammunitions inside the
chamber of said revolver, without first securing the necessary license to
possess the same.

3.
ID.; ID.; RA 8294 PROVIDING FOR A LESSER PENALTY
NOT APPLICABLE; CASE AT BAR. The provisions of the recently
enacted R.A. No. 8294, amending P.D. No. 1866, cannot be applied to this
case. Even though the penalty for illegal possession of firearm has been
reduced in the new law, the latter cannot be applied in this case so as to
favor accused-appellant in view of the proviso in Sec. 1 that the first
paragraph, providing for lighter penalty, does not apply to cases where
another crime has been committed. Nor can the third paragraph be applied
by considering the illegal possession of firearm as a mere aggravating
circumstance because, although the gun seized was used in the commission
of a crime, this case concerns solely the charge of illegal possession of
firearm. The criminal case for homicide is not before us for consideration.
Consequently, this case must be decided in accordance with the ruling in
People v. Quijada, that a person who kills another with the use of an
unlicensed firearm is guilty of homicide or murder as the case may be under
the Revised Penal Code and aggravated illegal possession of firearm under
P.D. No. 1866, Sec. 1, par. 2.

That the same .38 caliber revolver was used by the accused in killing
Nelson Jordan on March 16, 1991.
Contrary to law.
Davao City, Philippines, July 12, 1991.
The prosecution evidence shows that in the evening of March 16, 1991,
accused-appellant, then a bouncer at the "Ihaw-Ihaw" nightclub on
Bonifacio Street, Davao City, shot one Nelson Jordan. He was arrested after
he had been pointed by eyewitnesses as the gunman. Recovered from him
was a .38 caliber revolver with serial number 91955, four live bullets, and
one empty shell. The firearm and ammunition were covered by a
memorandum receipt and mission order issued by Major Francisco
Arquillano, Deputy Commander of the Civil-Military Operation and
CAFGU Affairs of the Davao Metropolitan District Command. The mission
order authorized accused-appellant to carry the said firearm and twelve
rounds of ammunition "[t]o intensify intel[ligence] coverage" and was for a
three-month duration (from February 8, 1991 to May 8, 1991), subject to
the following restrictions:
VII.
The carrying of firearms is prohibited in places where people
gather for political, religious, social, educational, and recreational purposes,
such as churches or chapels, carnival grounds or fans, nightclubs, cabarets,
dance halls, dancing places during fiestas and other celebrations, bars,
liquor drinking places, theaters or movies, cockpits, race tracks and the like,

except when the personnel concerned is on official mission in such places

for which he was authorized to carry firearms.
Accused-appellant was initially charged with murder in an information filed
on March 20, 1991 and docketed as Criminal Case No. 22,456-91 in the
Regional Trial Court, Branch 18 of Davao City but, after plea-bargaining,
he was allowed to plead guilty to the lesser offense of homicide. In a
decision dated September 24, 1991, the trial court sentenced him to
imprisonment of 6 years and 1 day of prision mayor, as minimum, to 12
years and 1 day of reclusion temporal, as maximum.
On July 15, 1991, he was charged with illegal possession of firearm. 8 The
information against him was amended on October 8, 1991 in order to allege
that the firearm subject of the charge had been used in the killing of a
person (Nelson Jordan) on March 16, 1991.
On June 17, 1993, he was found guilty by the Regional Trial Court and
sentenced to 20 years imprisonment. The trial court found accusedappellant acted in good faith, believing that the mission order and
memorandum receipt issued to him were valid.
On appeal, the Court of Appeals increased the penalty on accused-appellant
to reclusion perpetua and, in accordance with Rule 124, 13 of the Rules on
Criminal Procedure, certified the case to this Court for review. Both
accused-appellant and plaintiff-appellee have filed supplemental briefs.
Accused-appellant maintains that he acted m the good faith belief that he
was authorized to carry the firearm by virtue of the mission order and
memorandum receipt issued to him by Major Francisco Arquillano of the
Davao Metropolitan District Command. He argues that the failure of the
prosecution to present as witness the government official who had certified
that accused-appellant was not the holder of a firearms license is fatal to the
prosecution of this case.
I.
Although not raised as an error by the accused-appellant, it is pertinent to
consider the circumstances surrounding accused-appellant's arrest and the

seizure from him of the firearm in question considering that both were made
without any warrant from a court.
With respect to the arrest, SPO1 Loreto Tenebro 11 testified that at around
10:00 in the evening of March 16, 1991, while he and Patrolmen Camotes
and Reinerio Racolas were patrolling in their car, they received a radio
message from their camp directing them to proceed to the "Ihaw-Ihaw" on
Bonifacio Street where there had been a shooting. Accordingly, they
proceeded to the place and there saw the victim, Nelson Jordan. Bystanders
pointed to accused-appellant as the one who had shot Jordan. They then
arrested accused-appellant. Seized from him was a .38 caliber revolver with
serial number 91955. The firearm was covered by a mission order and
memorandum receipt. Considering these facts, we hold that the warrantless
arrest and search were valid.
Rule 113, 5(b) of the Revised Rules of Criminal Procedure provides:
SEC. 5. Arrest without warrant ; when lawful. A peace officer or private
person may, without a warrant, arrest a person: . . .
(b)
When an offense has in fact just been committed, and he has
personal knowledge of facts indicating that the person to be arrested has
committed it.
In the case at bar there was a shooting. The policemen summoned to the
scene of the crime found the victim. Accused-appellant was pointed to them
as the assailant only moments after the shooting. In fact accused-appellant
had not gone very far (only ten meters away from the "Ihaw-Ihaw"),
although he was then fleeing. The arresting officers thus acted on the basis
of personal knowledge of the death of the victim and of facts indicating that
accused-appellant was the assailant.
This Court has upheld a warrantless arrest under analogous circumstances.
In People v. Tonog, Jr., 12 the police found the lifeless body of a person
with several stab wounds. An informer pointed to the accused as the person
who had killed the victim. That afternoon, police officers arrested the
accused. On their way to the police station, a policeman noticed bloodstains
on the accused's pants which, when examined, was found to be the same
blood type "O" found on the fatal knife. The Court upheld the warrantless
arrest and ruled that the blood-stained pants, having been seized as an
incident of a lawful arrest, was admissible in evidence.

In People v. Gerente, the police arrested the accused three hours after the
victim had been killed. They went to the scene of the crime where they
found a piece of wood and a concrete hollow block used by the killers in
bludgeoning the victim to death. A neighbor of the accused who witnessed
the killing, pointed to him as one of the assailants. The warrantless arrest
was held valid under Rule 113, 5(b).
In People v. Acol, a group held up a passenger jeepney. Policemen
immediately responded to the report of the crime. One of the victims saw
four persons walking towards Fort Bonifacio, one of whom was wearing his
jacket. He pointed them to the policemen. When the group saw the
policemen coming, they ran in different directions. Three were caught and
arrested. Each was found in possession of an unlicensed revolver and
charged with illegal possession of firearms. The accused claimed that the
warrantless seizure of firearms was illegal. The Court rejected their plea and
held that the search was a valid incident of a lawful arrest.
The subsequent search of accused-appellant's person and the seizure from
him of the firearm was likewise lawful. Rule 126, 12 states:
SEC. 12.Search incident to lawful arrest. A person lawfully arrested may
be searched for dangerous weapons or anything which may be used as proof
of the commission of an offense, without a search warrant.
In People v. Lua, 15 a buy-bust operation was conducted against the
accused. After accused had gone inside his house and returned with the
three tea bags of marijuana and received the marked money, the designated
poseur-buyer gave the signal to his fellow police officers who closed in and
arrested the accused. In the course of the arrest, a police officer noticed
something bulging at accused's waistline, which turned out to be an
unlicensed .38 caliber "paltik" with two live bullets. Accused was charged
with illegal possession of firearm. The search was held to be a valid
incident of a lawful arrest.
II.
We now come to the main question of accused-appellant's liability for
illegal possession of firearm. There is no dispute that accused-appellant was

in possession of the gun in this case. His defense is that the gun is covered
by a memorandum receipt and mission order issued by Major Francisco
Arquillano, then Deputy Commander of the Civil-Military Operation and
CAFGU Affairs of the Davao Metropolitan District Command.
The issuance of mission orders is governed by Memorandum Circular No. 8
dated October 16, 1986 of the then Ministry of Justice, which in pertinent
part states:
. . . It is unlawful for any person or office to issue a mission order
authorizing the carrying of firearms by any person unless the following
conditions are met:
1.
That the AFP officer is authorized by the law to issue the mission
order;
2.
That the recipient or addressee of the mission order is also
authorized by the law to have a mission order, i.e., he must be an organic
member of the command/unit of the AFP officer issuing the mission order.
If mission orders are issued to civilians (not members of the uniformed
service), they must be civilian agents included in the regular plantilla of the
government agency involved in law enforcement and are receiving regular
compensation for the services they are rendering. (In this case, the agency
head or officials so designated by the law shall issue the mission order.). . .
As the Court of Appeals held, however, Major Arquillano, who had issued
the mission order in question, was not authorized to do the same. Neither
was accused-appellant qualified to have a mission order.
Admittedly, Major Arquillano was not authorized to issue mission orders to
civilian agents of the AFP as he was not any of the following officers
mentioned in the Implementing Rules and Regulations of P.D. No. 1866,
5(a), to wit:
(1)
The Minister of National Defense and such other Ministry officials
duly designated by him;
(2)
The Chief of Staff; AFP;
(3)
Chief of the General/Special/Technical and Personal Staffs of
GHQ AFP;

(4)
Commanders of the AFP Major Services including the Chiefs of
their respective General/Special/Technical and Personal Staffs;
(5)
Commanders and Chiefs of Staffs of AFPWSSU and major
commands/units of the AFP and the Major Services;
(6)
Commanders of battalions and higher units and their equivalent in
the Philippine Air Force and Philippine Navy;
(7)
Commanders of AFP intelligence units from GHQ AFP down to
regional command levels;
(8)
Provincial Commanders, METRODISCOM Commanders,
company commanders and their equivalent in the Philippine Air Force and
Philippine Navy; and
(9)
Detachment commanders in remote areas whose higher
commanders are not easily available to issue such orders.
Major Arquillano claimed, however, that Colonel Franco Calida, had
authorized him (Major Arquillano) to exercise this function so that people
would not be "swarming [in Calida's] office." As the appellate court well
stated, full faith and credit cannot be given to such bare assertion. Not only
was there no written delegation of authority to Major Arquillano, it is even
doubtful whether Col. Calida, who, as commander of the unit had authority
to issue mission orders, could delegate this authority to his deputy.

Nevertheless, it is argued that the prosecution failed to prove accusedappellant's guilt beyond reasonable doubt because the prosecution did not
present SPO4 Welliejado S. Sim of the FAS/Explosive NCO Davao
Metropolitan District Command, who had certified that "per records on file
[in] this Command Mr. Wenceslao Jayson does not exist/appear in the list
of license holders as of this date." Accused-appellant claims that the
prosecution merely presented as Exhibit H the certification without calling
the "issuing authority" to testify so that he could be cross-examined with
regard to his certification.
Objection based on this ground must be deemed waived in view of accusedappellant's failure to object to the presentation of the evidence. The
certification in question was marked when the parties entered into a
stipulation of facts, but accused-appellant's counsel did not object. Neither
did counsel object when the certification was offered in evidence by the
prosecution.
In any event, accused-appellant does not claim to be the holder of a regular
license but only of a mission order and memorandum receipt. Considering
the invalidity of these documents, both the Regional Trial Court and Court
of Appeals correctly held accused-appellant liable under P.D. No. 1866.

Nor was accused-appellant qualified to be issued a mission order because he

was a mere reserve of the Citizen Forces Geographical Unit (CAFGU)
without regular monthly compensation. In fact he worked as a "bouncer" in
a nightclub, and it was as a "bouncer" that he used the gun seized from him.

Nor can accused-appellant claim to have acted in the good faith belief that
the documents issued to him sufficed as legal authority for him to carry the
firearm. As the Court of Appeals pointed out, good faith and absence of
criminal intent are not valid defenses because the offense committed is
malum prohibitum punishable by special law.

Even assuming that the issuance to accused-appellant of the mission order

was valid, it is clear that, in carrying the firearm inside the nightclub where
he was working as a "bouncer," accused-appellant violated the restrictions
in the mission order. These restrictions prohibited him from carrying
firearms in places where people converge unless on official mission.
Accused-appellant's claim that he had been told by Major Arquillano that he
could carry the firearm anywhere in Davao City was flatly denied by Major
Arquillano who testified that precisely he called accused-appellant's
attention to the restrictions.

III.
It remains for us to determine whether the provisions of the recently enacted
R.A. No. 8294, amending P.D. No. 1866, 24 can be applied to this case on
the theory that it is more favorable to accused-appellant. 25 R.A. No. 8294,
provides in pertinent part:
1.
Unlawful Manufacture, Sale, Acquisition, Disposition or
Possession of Firearms or ammunition or Instruments Used or Intended to
be Used in the Manufacture of Firearms or Ammunition. The penalty of

prision correccional in its maximum period and a fine of not less than
Fifteen thousand pesos (P15,000) shall be imposed upon any person who
shall unlawfully manufacture, deal in, acquire, dispose, or possess any low
powered firearm, such as rimfire handgun, .380 or .32 and other firearm of
similar firepower, part of firearm, ammunition, or machinery, tool or
instrument used or intended to be used in the manufacture of any firearm or
ammunition: Provided, That no other crime was committed.
xxx
xxx
xxx
If homicide or murder is committed with the use of an unlicensed firearm,
such use of an unlicensed firearm shall be considered as an aggravating
circumstance. (Emphasis added)
Apparently, even though the penalty for illegal possession of firearm has
been reduced in the new law, the latter cannot be applied in this case so as
to favor accused-appellant in view of the proviso in 1 that the first
paragraph, providing for lighter penalty, does not apply to cases where
another crime has been committed. Nor can the third paragraph be applied
by considering the illegal possession of firearm as a mere aggravating
circumstance because, although the gun seized was used in the commission
of a crime, this case concerns solely the charge of illegal possession of
firearm. The criminal case for homicide is not before us for consideration.
Consequently, this case must be decided in accordance with the ruling in
People v. Quijada, 26 that a person who kills another with the use of an
unlicensed firearm is guilty of homicide or murder as the case may be under
the Revised Penal Code and aggravated illegal possession of firearm under
P.D. No. 1866, 1, par. 2.
WHEREFORE, the decision of the Court of Appeals is AFFIRMED.
SO ORDERED.
Puno, J ., concurs.
Regalado, J ., concurs, pro hac vice.

392 U.S. 1
Terry v. Ohio
CERTIORARI TO THE SUPREME COURT OF OHIO
No. 67 Argued: December 12, 1967
Decided: June 10, 1968
CASE BRIEF
Brief Fact Summary:
The Petitioner, John W. Terry (the Petitioner), was stopped and searched
by an officer after the officer observed the Petitioner seemingly casing a
store for a potential robbery. The officer approached the Petitioner for
questioning and decided to search him first.
Synopsis of Rule of Law:
An officer may perform a search for weapons without a warrant, even
without probable cause, when the officer reasonably believes that the person
may be armed and dangerous.
Facts:
The officer noticed the Petitioner talking with another individual on a street
corner while repeatedly walking up and down the same street. The men
would periodically peer into a store window and then talk some more. The
men also spoke to a third man whom they eventually followed up the street.
The officer believed that the Petitioner and the other men were casing a
store for a potential robbery. The officer decided to approach the men for
questioning, and given the nature of the behavior the officer decided to
perform a quick search of the men before questioning. A quick frisking of
the Petitioner produced a concealed weapon and the Petitioner was charged
with
carrying
a
concealed
weapon.
Issue:
Whether a search for weapons without probable cause for arrest is an
unreasonable search under the Fourth Amendment to the United States
Constitution (Constitution)?
Held:

The Supreme Court of the United States (Supreme Court) held that it is a
reasonable search when an officer performs a quick seizure and a limited
search for weapons on a person that the officer reasonably believes could be
armed. A typical beat officer would be unduly burdened by being prohibited
from searching individuals that the officer suspects to be armed.
Dissent:
Justice William Douglas (J. Douglas) dissented, reasoning that the
majoritys holding would grant powers to officers to authorize a search and
seizure
that
even
a
magistrate
would
not
possess.
Concurrence:
Justice John Harlan (J. Harlan) agreed with the majority, but he
emphasized an additional necessity of the reasonableness of the stop to
investigate the crime.
Justice Byron White (J. White) agreed with the majority, but he
emphasized that the particular facts of the case, that there was suspicion of a
violent act, merit the forcible stop and frisk.
Discussion:
The facts of the case are important to understand the Supreme Courts
willingness to allow the search. The suspicious activity was a violent crime,
armed robbery, and if the officers suspicions were correct then he would be
in a dangerous position to approach the men for questioning without
searching them. The officer also did not detain the men for a long period of
time to constitute an arrest without probable cause.
ACTUAL CASE
MR. CHIEF JUSTICE WARREN delivered the opinion of the Court.
This case presents serious questions concerning the role of theFourth
Amendment in the confrontation on the street between the citizen and the
policeman investigating suspicious circumstances.

Petitioner Terry was convicted of carrying a concealed weapon and

sentenced to the statutorily prescribed term of one to three years in the
penitentiary. [n1] Following [p5] the denial of a pretrial motion to suppress,
the prosecution introduced in evidence two revolvers and a number of
bullets seized from Terry and a codefendant, Richard Chilton, [n2] by
Cleveland Police Detective Martin McFadden. At the hearing on the motion
to suppress this evidence, Officer McFadden testified that, while he was
patrolling in plain clothes in downtown Cleveland at approximately 2:30 in
the afternoon of October 31, 1963, his attention was attracted by two men,
Chilton and Terry, standing on the corner of Huron Road and Euclid
Avenue. He had never seen the two men before, and he was unable to say
precisely what first drew his eye to them. However, he testified that he had
been a policeman for 39 years and a detective for 35, and that he had been
assigned to patrol this vicinity of downtown Cleveland for shoplifters and
pickpockets for 30 years. He explained that he had developed routine habits
of observation over the years, and that he would "stand and watch people or
walk and watch people at many intervals of the day." He added: "Now, in
this case, when I looked over, they didn't look right to me at the time."
His interest aroused, Officer McFadden took up a post of observation in the
entrance to a store 300 to 400 feet [p6] away from the two men. "I get more
purpose to watch them when I seen their movements," he testified. He saw
one of the men leave the other one and walk southwest on Huron Road, past
some stores. The man paused for a moment and looked in a store window,
then walked on a short distance, turned around and walked back toward the
corner, pausing once again to look in the same store window. He rejoined
his companion at the corner, and the two conferred briefly. Then the second
man went through the same series of motions, strolling down Huron Road,
looking in the same window, walking on a short distance, turning back,
peering in the store window again, and returning to confer with the first
man at the corner. The two men repeated this ritual alternately between five
and six times apiece -- in all, roughly a dozen trips. At one point, while the
two were standing together on the corner, a third man approached them and
engaged them briefly in conversation. This man then left the two others and
walked west on Euclid Avenue. Chilton and Terry resumed their measured
pacing, peering, and conferring. After this had gone on for 10 to 12 minutes,

the two men walked off together, heading west on Euclid Avenue,
following the path taken earlier by the third man.
By this time, Officer McFadden had become thoroughly suspicious. He
testified that, after observing their elaborately casual and oft-repeated
reconnaissance of the store window on Huron Road, he suspected the two
men of "casing a job, a stick-up," and that he considered it his duty as a
police officer to investigate further. He added that he feared "they may have
a gun." Thus, Officer McFadden followed Chilton and Terry and saw them
stop in front of Zucker's store to talk to the same man who had conferred
with them earlier on the street corner. Deciding that the situation was ripe
for direct action, Officer McFadden approached the three men,
identified [p7] himself as a police officer and asked for their names. At this
point, his knowledge was confined to what he had observed. He was not
acquainted with any of the three men by name or by sight, and he had
received no information concerning them from any other source. When the
men "mumbled something" in response to his inquiries, Officer McFadden
grabbed petitioner Terry, spun him around so that they were facing the other
two, with Terry between McFadden and the others, and patted down the
outside of his clothing. In the left breast pocket of Terry's overcoat, Officer
McFadden felt a pistol. He reached inside the overcoat pocket, but was
unable to remove the gun. At this point, keeping Terry between himself and
the others, the officer ordered all three men to enter Zucker's store. As they
went in, he removed Terry's overcoat completely, removed a .38 caliber
revolver from the pocket and ordered all three men to face the wall with
their hands raised. Officer McFadden proceeded to pat down the outer
clothing of Chilton and the third man, Katz. He discovered another revolver
in the outer pocket of Chilton's overcoat, but no weapons were found on
Katz. The officer testified that he only patted the men down to see whether
they had weapons, and that he did not put his hands beneath the outer
garments of either Terry or Chilton until he felt their guns. So far as appears
from the record, he never placed his hands beneath Katz' outer garments.
Officer McFadden seized Chilton's gun, asked the proprietor of the store to
call a police wagon, and took all three men to the station, where Chilton and
Terry were formally charged with carrying concealed weapons.

On the motion to suppress the guns, the prosecution took the position that
they had been seized following a search incident to a lawful arrest. The trial
court rejected this theory, stating that it "would be stretching the facts
beyond reasonable comprehension" to find that Officer [p8] McFadden had
had probable cause to arrest the men before he patted them down for
weapons. However, the court denied the defendants' motion on the ground
that Officer McFadden, on the basis of his experience, had reasonable cause
to believe . . . that the defendants were conducting themselves suspiciously,
and some interrogation should be made of their action.
Purely for his own protection, the court held, the officer had the right to pat
down the outer clothing of these men, who he had reasonable cause to
believe might be armed. The court distinguished between an investigatory
"stop" and an arrest, and between a "frisk" of the outer clothing for weapons
and a full-blown search for evidence of crime. The frisk, it held, was
essential to the proper performance of the officer's investigatory duties, for,
without it, "the answer to the police officer may be a bullet, and a loaded
pistol discovered during the frisk is admissible."
After the court denied their motion to suppress, Chilton and Terry waived
jury trial and pleaded not guilty. The court adjudged them guilty, and the
Court of Appeals for the Eighth Judicial District, Cuyahoga County,
affirmed. State v. Terry, 5 Ohio App.2d 122, 214 N.E.2d 114 (1966). The
Supreme Court of Ohio dismissed their appeal on the ground that no
"substantial constitutional question" was involved. We granted
certiorari, 387 U.S. 929 (1967), to determine whether the admission of the
revolvers in evidence violated petitioner's rights under the Fourth
Amendment, made applicable to the States by the Fourteenth. Mapp v.
Ohio, 367 U.S. 643 (1961). We affirm the conviction.
I
The Fourth Amendment provides that "the right of the people to be secure
in their persons, houses, papers, and effects, against unreasonable searches
and seizures, shall not be violated. . . ." This inestimable right
of [p9] personal security belongs as much to the citizen on the streets of our
cities as to the homeowner closeted in his study to dispose of his secret
affairs. For as this Court has always recognized, no right is held more

sacred, or is more carefully guarded, by the common law than the right of
every individual to the possession and control of his own person, free from
all restraint or interference of others, unless by clear and unquestionable
authority of law.
Union Pac. R. Co. v. Botsford, 141 U.S. 250, 251 (1891). We have recently
held that "the Fourth Amendment protects people, not places," Katz v.
United States, 389 U.S. 347, 351 (1967), and wherever an individual may
harbor a reasonable "expectation of privacy," id. at 361 (MR. JUSTICE
HARLAN, concurring), he is entitled to be free from unreasonable
governmental intrusion. Of course, the specific content and incidents of this
right must be shaped by the context in which it is asserted. For "what the
Constitution forbids is not all searches and seizures, but unreasonable
searches and seizures." Elkins v. United States, 364 U.S. 206, 222 (1960).
Unquestionably petitioner was entitled to the protection of the Fourth
Amendment as he walked down the street in Cleveland. Beck v. Ohio, 379
U.S. 89 (1964); Rios v. United States, 364 U.S. 253 (1960); Henry v. United
States, 361 U.S. 98 (1959); United States v. Di Re, 332 U.S.
581 (1948); Carroll v. United States, 267 U.S. 132 (1925). The question is
whether, in all the circumstances of this on-the-street encounter, his right to
personal security was violated by an unreasonable search and seizure.
We would be less than candid if we did not acknowledge that this question
thrusts to the fore difficult and troublesome issues regarding a sensitive area
of police activity -- issues which have never before been
squarely [p10] presented to this Court. Reflective of the tensions involved
are the practical and constitutional arguments pressed with great vigor on
both sides of the public debate over the power of the police to "stop and
frisk" -- as it is sometimes euphemistically termed -- suspicious persons.
On the one hand, it is frequently argued that, in dealing with the rapidly
unfolding and often dangerous situations on city streets, the police are in
need of an escalating set of flexible responses, graduated in relation to the
amount of information they possess. For this purpose, it is urged that
distinctions should be made between a "stop" and an "arrest" (or a "seizure"
of a person), and between a "frisk" and a "search." [n3] Thus, it is argued, the
police should be allowed to "stop" a person and detain him briefly for

questioning upon suspicion that he may be connected with criminal activity.

Upon suspicion that the person may be armed, the police should have the
power to "frisk" him for weapons. If the "stop" and the "frisk" give rise to
probable cause to believe that the suspect has committed a crime, then the
police should be empowered to make a formal "arrest," and a full incident
"search" of the person. This scheme is justified in part upon the notion that
a "stop" and a "frisk" amount to a mere "minor inconvenience and petty
indignity," [n4] which can properly be imposed upon the [p11]citizen in the
interest of effective law enforcement on the basis of a police officer's
suspicion. [n5]
On the other side, the argument is made that the authority of the police must
be strictly circumscribed by the law of arrest and search as it has developed
to date in the traditional jurisprudence of the Fourth Amendment. [n6] It is
contended with some force that there is not -- and cannot be -- a variety of
police activity which does not depend solely upon the voluntary cooperation
of the citizen, and yet which stops short of an arrest based upon probable
cause to make such an arrest. The heart of the Fourth Amendment, the
argument runs, is a severe requirement of specific justification for any
intrusion upon protected personal security, coupled with a highly developed
system of judicial controls to enforce upon the agents of the State the
commands of the Constitution. Acquiescence by the courts in the
compulsion inherent [p12] in the field interrogation practices at issue here,
it is urged, would constitute an abdication of judicial control over, and
indeed an encouragement of, substantial interference with liberty and
personal security by police officers whose judgment is necessarily colored
by their primary involvement in "the often competitive enterprise of
ferreting out crime." Johnson v. United States, 333 U.S. 10, 14 (1948). This,
it is argued, can only serve to exacerbate police-community tensions in the
crowded centers of our Nation's cities. [n7]
In this context, we approach the issues in this case mindful of the
limitations of the judicial function in controlling the myriad daily situations
in which policemen and citizens confront each other on the street. The State
has characterized the issue here as the right of a police officer . . . to make
an on-the-street stop, interrogate and pat down for weapons (known in street
vernacular as "stop and frisk"). [n8]

But this is only partly accurate. For the issue is not the abstract propriety of
the police conduct, but the admissibility against petitioner of the evidence
uncovered by the search and seizure. Ever since its inception, the rule
excluding evidence seized in violation of the Fourth Amendment has been
recognized as a principal mode of discouraging lawless police conduct. See
Weeks v. United States, 232 U.S. 383, 391-393 (1914). Thus, its major
thrust is a deterrent one, see Linkletter v. Walker, 381 U.S. 618, 629-635
(1965), and experience has taught that it is the only effective deterrent to
police misconduct in the criminal context, and that, without it, the
constitutional guarantee against unreasonable searches and seizures would
be a mere "form of words." Mapp v. Ohio, 367 U.S. 643, 655 (1961). The
rule also serves another vital function -- "the imperative of judicial
integrity." Elkins [p13] v. United States, 364 U.S. 206, 222 (1960). Courts
which sit under our Constitution cannot and will not be made party to
lawless invasions of the constitutional rights of citizens by permitting
unhindered governmental use of the fruits of such invasions. Thus, in our
system, evidentiary rulings provide the context in which the judicial process
of inclusion and exclusion approves some conduct as comporting with
constitutional guarantees and disapproves other actions by state agents. A
ruling admitting evidence in a criminal trial, we recognize, has the
necessary effect of legitimizing the conduct which produced the evidence,
while an application of the exclusionary rule withholds the constitutional
imprimatur.
The exclusionary rule has its limitations, however, as a tool of judicial
control. It cannot properly be invoked to exclude the products of legitimate
police investigative techniques on the ground that much conduct which is
closely similar involves unwarranted intrusions upon constitutional
protections. Moreover, in some contexts, the rule is ineffective as a
deterrent. Street encounters between citizens and police officers are
incredibly rich in diversity. They range from wholly friendly exchanges of
pleasantries or mutually useful information to hostile confrontations of
armed men involving arrests, or injuries, or loss of life. Moreover, hostile
confrontations are not all of a piece. Some of them begin in a friendly
enough manner, only to take a different turn upon the injection of some
unexpected element into the conversation. Encounters are initiated by the
police for a wide variety of purposes, some of which are wholly unrelated to

a desire to prosecute for crime. [n9] Doubtless some [p14] police "field
interrogation" conduct violates the Fourth Amendment. But a stern refusal
by this Court to condone such activity does not necessarily render it
responsive to the exclusionary rule. Regardless of how effective the rule
may be where obtaining convictions is an important objective of the
police, [n10] it is powerless to deter invasions of constitutionally guaranteed
rights where the police either have no interest in prosecuting or are willing
to forgo successful prosecution in the interest of serving some other goal.
Proper adjudication of cases in which the exclusionary rule is invoked
demands a constant awareness of these limitations. The wholesale
harassment by certain elements of the police community, of which minority
groups, particularly Negroes, frequently complain, [n11] will not
be [p15] stopped by the exclusion of any evidence from any criminal trial.
Yet a rigid and unthinking application of the exclusionary rule, in futile
protest against practices which it can never be used effectively to control,
may exact a high toll in human injury and frustration of efforts to prevent
crime. No judicial opinion can comprehend the protean variety of the street
encounter, and we can only judge the facts of the case before us. Nothing
we say today is to be taken as indicating approval of police conduct outside
the legitimate investigative sphere. Under our decision, courts still retain
their traditional responsibility to guard against police conduct which is
overbearing or harassing, or which trenches upon personal security without
the objective evidentiary justification which the Constitution requires.
When such conduct is identified, it must be condemned by the judiciary,
and its fruits must be excluded from evidence in criminal trials. And, of
course, our approval of legitimate and restrained investigative conduct
undertaken on the basis of ample factual justification should in no way
discourage the employment of other remedies than the exclusionary rule to
curtail abuses for which that sanction may prove inappropriate.
Having thus roughly sketched the perimeters of the constitutional debate
over the limits on police investigative conduct in general and the
background against which this case presents itself, we turn our attention to
the quite narrow question posed by the facts before us: whether it is always
unreasonable for a policeman to seize a person and subject him to a limited
search for weapons unless there is probable cause for an arrest. [p16] Given

the narrowness of this question, we have no occasion to canvass in detail

the constitutional limitations upon the scope of a policeman's power when
he confronts a citizen without probable cause to arrest him.
II
Our first task is to establish at what point in this encounter theFourth
Amendment becomes relevant. That is, we must decide whether and when
Officer McFadden "seized" Terry, and whether and when he conducted a
"search." There is some suggestion in the use of such terms as "stop" and
"frisk" that such police conduct is outside the purview of the Fourth
Amendment because neither action rises to the level of a "search" or
"seizure" within the meaning of the Constitution. [n12] We emphatically reject
this notion. It is quite plain that the Fourth Amendment governs "seizures"
of the person which do not eventuate in a trip to the stationhouse and
prosecution for crime -- "arrests" in traditional terminology. It must be
recognized that, whenever a police officer accosts an individual and
restrains his freedom to walk away, he has "seized" that person. And it is
nothing less than sheer torture of the English language to suggest that a
careful exploration of the outer surfaces of a person's clothing all over his or
her body in an attempt to find weapons is not a "search." Moreover, it is
simply fantastic to urge that such a procedure [p17] performed in public by
a policeman while the citizen stands helpless, perhaps facing a wall with his
hands raised, is a "petty indignity." [n13] It is a serious intrusion upon the
sanctity of the person, which may inflict great indignity and arouse strong
resentment, and it is not to be undertaken lightly. [n14]
The danger in the logic which proceeds upon distinctions between a "stop"
and an "arrest," or "seizure" of the person, and between a "frisk" and a
"search," is twofold. It seeks to isolate from constitutional scrutiny the
initial stages of the contact between the policeman and the citizen. And, by
suggesting a rigid all-or-nothing model of justification and regulation under
the Amendment, it obscures the utility of limitations upon the scope, as well
as the initiation, of police action as a means of constitutional
regulation. [n15] This Court has held, in [p18] the past that a search which is
reasonable at its inception may violate the Fourth Amendment by virtue of
its intolerable intensity and scope. Kremen v. United States, 353 U.S.
346 (1957); Go-Bart Importing Co. v. [p19] United States, 282 U.S. 344,

356-358 (1931);see United States v. Di Re, 332 U.S. 581, 586-587 (1948).
The scope of the search must be "strictly tied to and justified by" the
circumstances which rendered its initiation permissible. Warden v.
Hayden, 387 U.S. 294, 310 (1967) (MR. JUSTICE FORTAS,
concurring); see, e.g., Preston v. United States, 376 U.S. 364, 367-368
(1964); Agnello v. United States, 269 U.S. 20, 30-31 (1925).

(1964). But we deal here with an entire rubric of police conduct -necessarily swift action predicated upon the on-the-spot observations of the
officer on the beat -- which historically has not been, and, as a practical
matter, could not be, subjected to the warrant procedure. Instead, the
conduct involved in this case must be tested by the Fourth Amendment's
general proscription against unreasonable searches and seizures. [n17]

The distinctions of classical "stop-and-frisk" theory thus serve to divert

attention from the central inquiry under the Fourth Amendment -- the
reasonableness in all the circumstances of the particular governmental
invasion of a citizen's personal security. "Search" and "seizure" are not
talismans. We therefore reject the notions that the Fourth Amendment does
not come into play at all as a limitation upon police conduct if the officers
stop short of something called a "technical arrest" or a "full-blown search."

Nonetheless, the notions which underlie both the warrant procedure and the
requirement of probable cause remain fully relevant in this context. In order
to assess the reasonableness of Officer McFadden's conduct as a general
proposition, it is necessary "first to focus upon [p21] the governmental
interest which allegedly justifies official intrusion upon the constitutionally
protected interests of the private citizen," for there is
no ready test for determining reasonableness other than by balancing the
need to search [or seize] against the invasion which the search [or seizure]
entails.

In this case, there can be no question, then, that Officer McFadden "seized"
petitioner and subjected him to a "search" when he took hold of him and
patted down the outer surfaces of his clothing. We must decide whether, at
that point, it was reasonable for Officer McFadden to have interfered with
petitioner's personal security as he did. [n16] And, in determining whether the
seizure and search were "unreasonable," our inquiry [p20] is a dual one -whether the officer's action was justified at its inception, and whether it was
reasonably related in scope to the circumstances which justified the
interference in the first place.
III
If this case involved police conduct subject to the Warrant Clause of
the Fourth Amendment, we would have to ascertain whether "probable
cause" existed to justify the search and seizure which took place. However,
that is not the case. We do not retreat from our holdings that the police
must, whenever practicable, obtain advance judicial approval of searches
and seizures through the warrant procedure, see, e.g., Katz v. United
States, 389 U.S. 347(1967); Beck v. Ohio, 379 U.S. 89, 96
(1964); Chapman v. United States, 365 U.S. 610 (1961), or that, in most
instances, failure to comply with the warrant requirement can only be
excused by exigent circumstances, see, e.g., Warden v. Hayden, 387 U.S.
294(1967) (hot pursuit); cf. Preston v. United States, 376 U.S. 364, 367-368

Camara v. Municipal Court, 387 U.S. 523, 534-535, 536-537 (1967). And,
in justifying the particular intrusion, the police officer must be able to point
to specific and articulable facts which, taken together with rational
inferences from those facts, reasonably warrant that intrusion. [n18] The
scheme of the Fourth Amendmentbecomes meaningful only when it is
assured that, at some point, the conduct of those charged with enforcing the
laws can be subjected to the more detached, neutral scrutiny of a judge who
must evaluate the reasonableness of a particular search or seizure in light of
the particular circumstances. [n19] And, in making that assessment, it is
imperative that the facts be judged against an objective standard: would the
facts [p22] available to the officer at the moment of the seizure or the search
"warrant a man of reasonable caution in the belief" that the action taken was
appropriate? Cf. Carroll v. United States, 267 U.S. 132 (1925);Beck v.
Ohio, 379 U.S. 89, 96-97 (1964). [n20] Anything less would invite intrusions
upon constitutionally guaranteed rights based on nothing more substantial
than inarticulate hunches, a result this Court has consistently refused to
sanction. See, e.g., Beck v. Ohio, supra; Rios v. United States, 364 U.S.
253 (1960); Henry v. United States, 361 U.S. 98 (1959). And simple "good
faith on the part of the arresting officer is not enough." . . . If subjective
good faith alone were the test, the protections of the Fourth

Amendment would evaporate, and the people would be "secure in their

persons, houses, papers, and effects," only in the discretion of the police.
Beck v. Ohio, supra, at 97.
Applying these principles to this case, we consider first the nature and
extent of the governmental interests involved. One general interest is, of
course, that of effective crime prevention and detection; it is this interest
which underlies the recognition that a police officer may, in appropriate
circumstances and in an appropriate manner, approach a person for
purposes of investigating possibly criminal behavior even though there is no
probable cause to make an arrest. It was this legitimate investigative
function Officer McFadden was discharging when he decided to approach
petitioner and his companions. He had observed Terry, Chilton, and Katz go
through a series of acts, each of them perhaps innocent in itself, but which,
taken together, warranted further investigation. There is nothing unusual in
two men standing together on a street corner, perhaps waiting for someone.
Nor is there anything suspicious about people [p23] in such circumstances
strolling up and down the street, singly or in pairs. Store windows,
moreover, are made to be looked in. But the story is quite different where,
as here, two men hover about a street corner for an extended period of time,
at the end of which it becomes apparent that they are not waiting for anyone
or anything; where these men pace alternately along an identical route,
pausing to stare in the same store window roughly 24 times; where each
completion of this route is followed immediately by a conference between
the two men on the corner; where they are joined in one of these
conferences by a third man who leaves swiftly, and where the two men
finally follow the third and rejoin him a couple of blocks away. It would
have been poor police work indeed for an officer of 30 years' experience in
the detection of thievery from stores in this same neighborhood to have
failed to investigate this behavior further.
The crux of this case, however, is not the propriety of Officer McFadden's
taking steps to investigate petitioner's suspicious behavior, but, rather,
whether there was justification for McFadden's invasion of Terry's personal
security by searching him for weapons in the course of that investigation.
We are now concerned with more than the governmental interest in
investigating crime; in addition, there is the more immediate interest of the

police officer in taking steps to assure himself that the person with whom he
is dealing is not armed with a weapon that could unexpectedly and fatally
be used against him. Certainly it would be unreasonable to require that
police officers take unnecessary risks in the performance of their duties.
American criminals have a long tradition of armed violence, and every year
in this country many law enforcement officers are killed in the line of duty,
and thousands more are wounded. [p24] Virtually all of these deaths and a
substantial portion of the injuries are inflicted with guns and knives. [n21]
In view of these facts, we cannot blind ourselves to the need for law
enforcement officers to protect themselves and other prospective victims of
violence in situations where they may lack probable cause for an arrest.
When an officer is justified in believing that the individual whose
suspicious behavior he is investigating at close range is armed and presently
dangerous to the officer or to others, it would appear to be clearly
unreasonable to deny the officer the power to take necessary measures to
determine whether the person is, in fact, carrying a weapon and to
neutralize the threat of physical harm.
We must still consider, however, the nature and quality of the intrusion on
individual rights which must be accepted if police officers are to be
conceded the right to search for weapons in situations where probable cause
to arrest for crime is lacking. Even a limited search of the outer clothing for
weapons constitutes a severe, [p25] though brief, intrusion upon cherished
personal security, and it must surely be an annoying, frightening, and
perhaps humiliating experience. Petitioner contends that such an intrusion is
permissible only incident to a lawful arrest, either for a crime involving the
possession of weapons or for a crime the commission of which led the
officer to investigate in the first place. However, this argument must be
closely examined.
Petitioner does not argue that a police officer should refrain from making
any investigation of suspicious circumstances until such time as he has
probable cause to make an arrest; nor does he deny that police officers, in
properly discharging their investigative function, may find themselves
confronting persons who might well be armed and dangerous. Moreover, he
does not say that an officer is always unjustified in searching a suspect to

discover weapons. Rather, he says it is unreasonable for the policeman to

take that step until such time as the situation evolves to a point where there
is probable cause to make an arrest. When that point has been reached,
petitioner would concede the officer's right to conduct a search of the
suspect for weapons, fruits or instrumentalities of the crime, or "mere"
evidence, incident to the arrest.
There are two weaknesses in this line of reasoning, however. First, it fails to
take account of traditional limitations upon the scope of searches, and thus
recognizes no distinction in purpose, character, and extent between a search
incident to an arrest and a limited search for weapons. The former, although
justified in part by the acknowledged necessity to protect the arresting
officer from assault with a concealed weapon, Preston v. United States, 376
U.S. 364, 367 (1964), is also justified on other grounds, ibid., and can
therefore involve a relatively extensive exploration of the person. A search
for weapons in the absence of probable cause to [p26] arrest, however,
must, like any other search, be strictly circumscribed by the exigencies
which justify its initiation. Warden v. Hayden, 387 U.S. 294, 310 (1967)
(MR. JUSTICE FORTAS, concurring). Thus, it must be limited to that
which is necessary for the discovery of weapons which might be used to
harm the officer or others nearby, and may realistically be characterized as
something less than a "full" search, even though it remains a serious
intrusion.
A second, and related, objection to petitioner's argument is that it assumes
that the law of arrest has already worked out the balance between the
particular interests involved here -- the neutralization of danger to the
policeman in the investigative circumstance and the sanctity of the
individual. But this is not so. An arrest is a wholly different kind of
intrusion upon individual freedom from a limited search for weapons, and
the interests each is designed to serve are likewise quite different. An arrest
is the initial stage of a criminal prosecution. It is intended to vindicate
society's interest in having its laws obeyed, and it is inevitably accompanied
by future interference with the individual's freedom of movement, whether
or not trial or conviction ultimately follows. [n22] The protective search for
weapons, on the other hand, constitutes a brief, though far from
inconsiderable, intrusion upon the sanctity of the person. It does not follow

that, because an officer may lawfully arrest a person only when he is

apprised of facts sufficient to warrant a belief that the person has committed
or is committing a crime, the officer is equally unjustified, absent that kind
of evidence, in making any intrusions short of an arrest. Moreover, a
perfectly reasonable apprehension of danger may arise long before the
officer is possessed of adequate information to justify taking a person into
custody for[p27] the purpose of prosecuting him for a crime. Petitioner's
reliance on cases which have worked out standards of reasonableness with
regard to "seizures" constituting arrests and searches incident thereto is thus
misplaced. It assumes that the interests sought to be vindicated and the
invasions of personal security may be equated in the two cases, and thereby
ignores a vital aspect of the analysis of the reasonableness of particular
types of conduct under the Fourth Amendment. See Camara v. Municipal
Court, supra.
Our evaluation of the proper balance that has to be struck in this type of
case leads us to conclude that there must be a narrowly drawn authority to
permit a reasonable search for weapons for the protection of the police
officer, where he has reason to believe that he is dealing with an armed and
dangerous individual, regardless of whether he has probable cause to arrest
the individual for a crime. The officer need not be absolutely certain that the
individual is armed; the issue is whether a reasonably prudent man, in the
circumstances, would be warranted in the belief that his safety or that of
others was in danger. Cf. Beck v. Ohio, 379 U.S. 89, 91 (1964); Brinegar v.
United States, 338 U.S. 160, 174-176 (1949); Stacey v. Emery, 97 U.S. 642,
645 (1878).[n23] And in determining whether the officer acted reasonably in
such circumstances, due weight must be given not to his inchoate and
unparticularized suspicion or "hunch," but to the specific reasonable
inferences which he is entitled to draw from the facts in light of his
experience. Cf. Brinegar v. United States supra.
IV
We must now examine the conduct of Officer McFadden in this case to
determine whether his search and seizure of petitioner were reasonable,
both at their inception [p28] and as conducted. He had observed Terry,
together with Chilton and another man, acting in a manner he took to be
preface to a "stick-up." We think, on the facts and circumstances Officer

McFadden detailed before the trial judge, a reasonably prudent man would
have been warranted in believing petitioner was armed, and thus presented a
threat to the officer's safety while he was investigating his suspicious
behavior. The actions of Terry and Chilton were consistent with
McFadden's hypothesis that these men were contemplating a daylight
robbery -- which, it is reasonable to assume, would be likely to involve the
use of weapons -- and nothing in their conduct from the time he first noticed
them until the time he confronted them and identified himself as a police
officer gave him sufficient reason to negate that hypothesis. Although the
trio had departed the original scene, there was nothing to indicate
abandonment of an intent to commit a robbery at some point. Thus, when
Officer McFadden approached the three men gathered before the display
window at Zucker's store, he had observed enough to make it quite
reasonable to fear that they were armed, and nothing in their response to his
hailing them, identifying himself as a police officer, and asking their names
served to dispel that reasonable belief. We cannot say his decision at that
point to seize Terry and pat his clothing for weapons was the product of a
volatile or inventive imagination, or was undertaken simply as an act of
harassment; the record evidences the tempered act of a policeman who, in
the course of an investigation, had to make a quick decision as to how to
protect himself and others from possible danger, and took limited steps to
do so.
The manner in which the seizure and search were conducted is, of course, as
vital a part of the inquiry as whether they were warranted at all. The Fourth
Amendment proceeds as much by limitations upon the [p29] scope of
governmental action as by imposing preconditions upon its
initiation. Compare Katz v. United States, 389 U.S. 347, 354-356 (1967).
The entire deterrent purpose of the rule excluding evidence seized in
violation of the Fourth Amendment rests on the assumption that "limitations
upon the fruit to be gathered tend to limit the quest itself." United States v.
Poller, 43 F.2d 911, 914 (C.A.2d Cir.1930); see, e.g., Linkletter v.
Walker, 381 U.S. 618, 629-635 (1965); Mapp v. Ohio, 367 U.S.
643 (1961); Elkins v. United States, 364 U.S. 206, 216-221 (1960). Thus,
evidence may not be introduced if it was discovered by means of a seizure
and search which were not reasonably related in scope to the justification

for their initiation. Warden v. Hayden,387 U.S. 294, 310 (1967) (MR.
JUSTICE FORTAS, concurring).
We need not develop at length in this case, however, the limitations which
the Fourth Amendment places upon a protective seizure and search for
weapons. These limitations will have to be developed in the concrete factual
circumstances of individual cases. See Sibron v. New York, post, p. 40,
decided today. Suffice it to note that such a search, unlike a search without
a warrant incident to a lawful arrest, is not justified by any need to prevent
the disappearance or destruction of evidence of crime. See Preston v.
United States, 376 U.S. 364, 367 (1964). The sole justification of the search
in the present situation is the protection of the police officer and others
nearby, and it must therefore be confined in scope to an intrusion
reasonably designed to discover guns, knives, clubs, or other hidden
instruments for the assault of the police officer.
The scope of the search in this case presents no serious problem in light of
these standards. Officer McFadden patted down the outer clothing of
petitioner and his two companions. He did not place his hands in their
pockets or under the outer surface of their garments until he had [p30] felt
weapons, and then he merely reached for and removed the guns. He never
did invade Katz' person beyond the outer surfaces of his clothes, since he
discovered nothing in his pat-down which might have been a weapon.
Officer McFadden confined his search strictly to what was minimally
necessary to learn whether the men were armed and to disarm them once he
discovered the weapons. He did not conduct a general exploratory search
for whatever evidence of criminal activity he might find.
V
We conclude that the revolver seized from Terry was properly admitted in
evidence against him. At the time he seized petitioner and searched him for
weapons, Officer McFadden had reasonable grounds to believe that
petitioner was armed and dangerous, and it was necessary for the protection
of himself and others to take swift measures to discover the true facts and
neutralize the threat of harm if it materialized. The policeman carefully
restricted his search to what was appropriate to the discovery of the
particular items which he sought. Each case of this sort will, of course, have

to be decided on its own facts. We merely hold today that, where a police
officer observes unusual conduct which leads him reasonably to conclude in
light of his experience that criminal activity may be afoot and that the
persons with whom he is dealing may be armed and presently dangerous,
where, in the course of investigating this behavior, he identifies himself as a
policeman and makes reasonable inquiries, and where nothing in the initial
stages of the encounter serves to dispel his reasonable fear for his own or
others' safety, he is entitled for the protection of himself and others in the
area to conduct a carefully limited search of the outer clothing of such
persons in an attempt to discover weapons which might be used to assault
him. [p31] Such a search is a reasonable search under the Fourth
Amendment, and any weapons seized may properly be introduced in
evidence against the person from whom they were taken.
Affirmed.
MR. JUSTICE BLACK concurs in the judgment and the opinion except
where the opinion quotes from and relies upon this Court's opinion in Katz
v. United States and the concurring opinion in Warden v. Hayden.

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs. LARRY MAHINAY Y AMPARADO, accused-appellant.
G.R. No. 122485
February 1, 1999
SYNOPSIS
Appellant was charged with rape with homicide for the sexual assault and
death of Maria Victoria Chan, 12 years old. Evidence disclosed that Maria,
on that fateful afternoon, went to the second floor of the house where
appellant was staying. Appellant pulled her hand and her head hit the table
causing her to become unconscious. At this stage, appellant, who was then
drunk, had sexual intercourse with her. He then dumped the still
unconscious victim inside the septic tank and thereafter took flight. The
body of the victim was retrieved the following day wearing only a blouse
without underwear. Recovered in the unfinished house where accused slept
on the night of the incident was the victim's pair of shorts, brown belt and
yellow hair ribbon. Weight was given to appellant's extrajudicial confession
containing details consistent with the post mortem findings on the victim
that she was raped. The trial court, notwithstanding the absence of direct
evidence relative to the commission of the crime, rendered judgment of
conviction. It based its judgment on circumstantial evidence.
An accused despite absence of direct proof is not necessarily absolved from
liability because under the Rules on evidence and pursuant to settled
jurisprudence, conviction may be had on circumstantial evidence.
For circumstantial evidence to support the conviction, all circumstances
must be consistent with each other, consistent with the hypothesis that the
accused is guilty and at the same time inconsistent with the hypothesis that
accused is innocent and with every other rational hypothesis except that of
guilt.
Facts and circumstances consistent with guilt and inconsistent with
innocence, constitute evidence which, in weight and probative force, may
surpass even direct evidence in its effect upon the court.

Finding of facts and assessment of credibility of witnesses is a matter best

left to the trial court. Its findings, conclusions and evaluation of the
testimony of witnesses are received on appeal with the highest respect, the
same being supported by substantial evidence on record.
Under Article 335 of the Revised Penal Code, as amended by RA 7659,
when by reason or on the occasion of the rape a homicide is committed, the
penalty shall be death. Death being an indivisible penalty, the court has no
option but to apply the same regardless of any mitigating or aggravating
circumstance that may have attended the commission of the crime.
In qualified rape under which the death penalty is authorized by present
amended law, the civil indemnity for the victim shall be not less than
P75,000.00.
SYLLABUS
1.
REMEDIAL LAW; EVIDENCE; CIRCUMSTANTIAL
EVIDENCE; WHEN SUFFICIENT TO CONVICT. Conviction may
be had on circumstantial evidence provided that the following requisites
concur: 1. there is more than one circumstance; 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.
Simply put, for circumstantial 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
inconsistent with the hypothesis that he is innocent and with every other
rational hypothesis except that of guilt. Facts and circumstances consistent
with guilt and inconsistent with innocence, constitute evidence which, in
weight and probative force, may surpass even direct evidence in its effect
upon the court.
2.
ID.; ID.; GUIDING PRINCIPLES IN THE REVIEW OF
RAPE CASES. The three guiding principles in the review of rape cases
are, to wit: 1). An accusation for rape can be made with facility; it is
difficult to prove but more difficult for the person accused, though innocent,
to disprove; 2). In view of the intrinsic nature of the crime of rape, where
only two persons are usually involved, the testimony of the complainant is

scrutinized with extreme caution; and 3). The evidence of the prosecution
stands or falls on its own merits and cannot be allowed to draw strength
from the weakness of the defense.
3.
CRIMINAL LAW; RAPE UNDER R.A. 8353; RECLASSIFIED AS A CRIME AGAINST PERSONS. At the time of
the commission of this heinous act, rape was still considered a crime against
chastity, although under the Anti-Rape Law of 1997 (R.A. No. 8353), rape
has since been re-classified as a crime against persons under Articles 266-A
and 266-B, and thus, may be prosecuted even without a complaint filed by
the offended party.
4.
ID.; RAPE; ELEMENTS. The gravamen of the offense of
rape, prior to R.A. 8353, is sexual congress with a woman by force and
without consent. (Under the new law, rape may be committed even by a
woman and the victim may even be a man.) If the woman is under 12 years
of age, proof of force and consent becomes immaterial not only because
force is not an element of statutory rape, but the absence of a free consent is
presumed when the woman is below such age. Conviction will therefore lie,
provided sexual intercourse is proven. But if the woman is 12 years of age
or over at the time she was violated, as in this case, not only the first
element of sexual intercourse must be proven but also the other element that
the perpetrator's evil acts with the offended party was done through force,
violence, intimidation or threat needs to be established. Both elements are
present in this case.
5.
ID.; ID.; MERE TOUCHING OF THE MALE ORGAN ON
LABIA OF PUDENDUM, SUFFICIENT TO CONSUMMATE RAPE.
In proving sexual intercourse, it is not full or deep penetration of the
victim's vagina; rather the slightest penetration of the male organ into the
female sex organ is enough to consummate the sexual intercourse. The mere
touching by the male's organ or instrument of sex of the labia of the
pudendum of the woman's private parts is sufficient to consummate rape.
6.
ID.; ID.; FORCE EMPLOYED ON VICTIM, PROVEN IN
CASE AT BAR. From the wounds, contusions and abrasions suffered
by the victim, force was indeed employed upon her to satisfy carnal lust.

Moreover, from appellant's own account, he pushed the victim causing the
latter to hit her head on the table and fell unconscious. It was at that
instance that he ravished her and satisfied his salacious and prurient desires.
Considering that the victim, at the time of her penile invasion, was
unconscious, it could safely be concluded that she had not given free and
voluntary consent to her defilement, whether before or during the sexual
act.
7.
REMEDIAL LAW; EVIDENCE; CREDIBILITY; FINDINGS
OF FACTS AND ASSESSMENT OF CREDIBILITY OF WITNESSES
BY THE TRIAL COURT RECEIVED WITH HIGHEST RESPECT
ON APPEAL. Settled is the rule that the findings of facts and
assessment of credibility of witnesses is a matter best left to the trial court
because of its unique position of having observed that elusive and
incommunicable evidence of the witnesses' deportment on the stand while
testifying, which opportunity is denied to the appellate courts. In this case,
the trial court's findings, conclusions and evaluation of the testimony of
witnesses is received on appeal with the highest respect, the same being
supported by substantial evidence on record. There was no showing that the
court a quo had overlooked or disregarded relevant facts and circumstances
which when considered would have affected the outcome of this case or
justify a departure from the assessments and findings of the court below.
The absence of any improper or ill-motive on the part of the principal
witnesses for the prosecution all the more strengthens the conclusion that no
such motive exists. Neither was any wrong motive attributed to the police
officers who testified against appellant.
8.
CRIMINAL LAW; RAPE WITH HOMICIDE; PENALTY.
Death being a single indivisible penalty and the only penalty prescribed by
law for the crime of "rape with homicide," the court has no option but to
apply the same "regardless of any mitigating or aggravating circumstance
that may have attended the commission of the crime" in accordance with
Article 63 of the RPC, as amended. This case of rape with homicide carries
with it penalty of death which is mandatorily imposed by law within the
import of Article 47 of the RPC, as amended.

9.
CIVIL LAW; DAMAGES; INDEMNITY FOR RAPE.
Pursuant to current case law, a victim of simple rape is entitled to a civil
indemnity of fifty thousand pesos (P50,000.00) but if the crime of rape is
committed or effectively qualified by any of the circumstances under which
the death penalty is authorized by present amended law, the civil indemnity
for the victim shall be not less than seventy-five thousand pesos
(P75,000.00). In addition to such indemnity, she can also recover moral
damages pursuant to Article 2219 of the Civil Code in such amount as the
court deems just, without the necessity for pleading or proof of the basis
thereof. Civil indemnity is different from the award of moral and exemplary
damages.
10.
ID.; ID.; MORAL DAMAGES; AWARDED TO RAPE
VICTIM WITHOUT NEED FOR PLEADING OR PROOF OF BASIS.
The requirement of proof of mental and physical suffering provided in
Article 2217 of the Civil Code is dispensed with because it is "recognized
that the victim's injury is inherently concomitant with and necessarily
resulting from the odious crime of rape to warrant per se the award of moral
damages." Thus, it was held that a conviction for rape carries with it the
award of moral damages to the victim without need for pleading or proof of
the basis thereof.
11.
ID.; ID.; EXEMPLARY DAMAGES; AWARDED IF
COMMISSION OF CRIME WAS ATTENDED BY ONE OR MORE
AGGRAVATING CIRCUMSTANCES. Exemplary damages can also
be awarded if the commission of the crime was attended by one or more
aggravating circumstances pursuant to Article 2230 of the Civil Code after
proof that the offended party is entitled to moral, temperate and
compensatory damages. Under the circumstances of this case, appellant is
liable to the victim's heirs for the amount of P75,000.00 as civil indemnity
and P50,000.00 as moral damages.

DECISION
PER CURIAM p:
A violation of the dignity, purity and privacy of a child who is still innocent
and unexposed to the ways of worldly pleasures is a harrowing experience
that destroys not only her future but of the youth population as well, who in
the teachings of our national hero, are considered the hope of the fatherland.
Once again, the Court is confronted by another tragic desecration of human
dignity, committed no less upon a child, who at the salad age of a few days
past 12 years, has yet to knock on the portals of womanhood, and met her
untimely death as a result of the "intrinsically evil act" of non-consensual
sex called rape. Burdened with the supreme penalty of death, rape is an
ignominious crime for which necessity is neither an excuse nor does there
exist any other rational justification other than lust. But those who lust
ought not to last.
The Court quotes with approval from the People's Brief, the facts narrating
the horrible experience and the tragic demise of a young and innocent child
in the bloody hands of appellant, as such facts are ably supported by
evidence on record:
"Appellant Larry Mahinay started working as houseboy with Maria Isip on
November 20, 1993. His task was to take care of Isip's house which was
under construction adjacent to her old residence situated inside a compound
at No. 4165 Dian Street, Gen. T. de Leon, Valenzuela, Metro Manila. But
he stayed and slept in an apartment also owned by Isip, located 10 meters
away from the unfinished house (TSN, September 6, 1995, pp. 5-10).
"The victim, Ma. Victoria Chan, 12 years old, was Isip's neighbor in Dian
Street. She used to pass by Isip's house on her way to school and play inside
the compound yard, catching maya birds together with other children.
While they were playing, appellant was always around washing his clothes.
Inside the compound yard was a septic tank (TSN, August 22, 1995, pp. 2931; September 6, 1995, pp. 17; 20-22).
"On June 25, 1995, at 8 o'clock a.m., appellant joined Gregorio Rivera in a
drinking spree. Around 10 o'clock in the morning, appellant, who was

already drunk, left Gregorio Rivera and asked permission from Isip to go
out with his friends (TSN, September 6, 1995, pp. 9-11).
"Meantime, Isip's sister-in-law, Norgina Rivera, who also owned a store
fronting the compound, saw Ma. Victoria on that same day three to four
times catching birds inside Isip's unfinished house around 4 o'clock in the
afternoon. The unfinished house was about 8 meters away from Rivera's
store (TSN, September 18, 1995, pp. 9-11).
"On the other hand, Sgt. Roberto Suni, also a resident of Dian Street, went
to his in-law's house between 6 to 7 o'clock p.m. to call his office regarding
changes on the trip of President Fidel V. Ramos. The house of his in-laws
was near the house of Isip. On his way to his in-law's house, Sgt. Suni met
appellant along Dian Street. That same evening, between 8 to 9 o'clock
p.m., he saw Ma. Victoria standing in front of the gate of the unfinished
house (TSN, September 27, 1995, pp. 3-7; 14-17).
"Later, at 9 o'clock in the evening, appellant showed up at Norgina Rivera's
store to buy lugaw. Norgina Rivera informed appellant that there was none
left of it. She notice that appellant appeared to be uneasy and in deep
thought. His hair was disarrayed; he was drunk and was walking in a dazed
manner. She asked why he looked so worried but he did not answer. Then
he left and walked back to the compound (TSN, September 18, 1995, pp. 48; 12-14).
"Meanwhile, Elvira Chan noticed that her daughter, Ma. Victoria, was
missing. She last saw her daughter wearing a pair of white shorts, brown
belt, a yellow hair ribbon, printed blue blouse, dirty white panty, white lady
sando and blue rubber slippers (TSN, August 23, 1995, pp. 22, 33).
"Isip testified that appellant failed to show up for supper that night. On the
following day, June 26, 1995, at 2 o'clock in the morning, appellant boarded
a passenger jeepney driven by Fernando Trinidad at the talipapa. Appellant
alighted at the top of the bridge of the North Expressway and had thereafter
disappeared (TSN, September 20, 1995, pp. 4-9; September 27, 1995; pp.
14-17).

"That same morning, around 7:30, a certain Boy found the dead body of
Ma. Victoria inside the septic tank. Boy immediately reported what he saw
to the victim's parents, Eduardo and Elvira Chan (TSN, September 6, 1995,
p. 13).
"With the help of the Valenzuela Police, the lifeless body of Ma. Victoria
was retrieved from the septic tank. She was wearing a printed blouse
without underwear. Her face bore bruises. Results of the autopsy revealed
the following findings:
Cyanosis, lips and nailbeds,
Contusions, suprapubic area, 6.0 x 3.0 cm., thigh right,
Anterior aspect, middle third, 4.5 x 3.0 cm.
Contused-abrasions on the forehead, 5.0 x 5.0 cm. angle of the left eye,
lateral aspect, 2.5 x 1.5 cm. left jaw, 13.5 x 7.0 cm. neck, antero-lateral
aspect, right, 2.0 x 1.0 cm. and left, 7.0 x 6.0 cm., left iliac area, 9.0 x 5.5
cm. intraclavicular area, left, posterior aspect, 4.0 x 2.0 cm. scapular area,
right 4.0 x 4.0 cm. subscapular area, left, 1.5 x 1.5 cm. lumbar area, left 7.0
x 8.0 cm. arm, left, posterior aspect, middle third, 11.00 x 4.0 cm elbows,
right, 4.0 x 3.0 cm. and left 6.0 x 5.0 cm. forearms, left, posterior aspect,
lower rd, 5.2 x 4.0 cm. hand, left, dorsal aspect, 0.8 x 0.9 cm. thighs; right
antero-lateral aspect, upper 33rd, 12.0 x 10.0 cm. right anterior aspect,
lower 3rd 5.0 x 2.0 cm. and left antero-lower 3rd, 5.5 x 2.5 cm. knee, right,
lateral aspect, 1.5 x 1.0 cm. lateral mallcolum, left, 3.0 x 3.5 cm. foot, left,
dorsal aspect 2.2 x 1.0 cm.
Hematoma, forehead, and scalp, left, 3.5 x 3.0 cm.
Hemorrhage, interstitial, underneath nailmarks, neck, subepicardial,
subpleural petechial hemorrhages.
Hemorrhage, subdural, left fronto-parietal area.
Tracheo-bronchial tree, congested.
Other visceral organs, congested.
Stomach, contain 1/4 rice and other food particles.
CAUSE OF DEATH Asphyxia by Manual Strangulation; Traumatic
Head Injury, Contributory.
REMARKS: Hymen: tall, thick with complete lacerations at 4:00 and 8:00
o'clock position corresponding to the face of a watch edges congested with
blood clots. (TSN, August 18, 1995; p. 4; Record, p. 126)

"Back in the compound, SPO1 Arsenio Nacis and SPO1 Arnold Alabastro
were informed by Isip that her houseboy, appellant Larry Mahinay, was
missing. According to her, it was unlikely for appellant to just disappear
from the apartment since whenever he would go out, he would normally
return on the same day or early morning of the following day (TSN,
September 6, 1995, pp. 6-11-27).

to them that he was not alone in raping and killing the victim. He pointed to
Zaldy and Boyet as his co-conspirators (TSN, August 14, 1995, pp. 13-21)."

"SPO1 Nacis and SPO1 Alabastro were also informed that a townmate of
appellant was working in a pancit factory at Barangay Reparo, Caloocan
City. They proceeded to said place. The owner of the factory confirmed to
them that appellant used to work at the factory but she did not know his
present whereabouts. Appellant's townmate, on the other hand, informed
them that appellant could possibly be found on 8th Street, Grace Park,
Caloocan City (TSN, August 14, 1995, pp. 8-9).

Thus, on July 10, 1995, appellant was charged with rape with homicide in
an Information which reads:
"That on or about the 26th day of June 1995 in Valenzuela, Metro Manila
and within the jurisdiction of this Honorable Court the above-named
accused, by means of force and intimidation employed upon the person of
MARIA VICTORIA CHAN y CABALLERO, age 12 years old, did then
and there wilfully, unlawfully and feloniously lie with and have sexual
intercourse with said MARIA VICTORIA CHAN Y CABALLERO against
her will and without her consent; that on the occasion of said sexual assault,
the above-named accused, choke and strangle said MARIA VICTORIA
CHAN Y CABALLERO as a result of which, said victim died.

"The policemen returned to the scene of the crime. At the second floor of
the house under construction, they retrieved from one of the rooms a pair of
dirty white short pants, a brown belt and a yellow hair ribbon which was
identified by Elvira Chan to belong to her daughter, Ma. Victoria. They also
found inside another room a pair of blue slippers which Isip identified as
that of appellant. Also found in the yard, three armslength away from the
septic tank were an underwear, a leather wallet, a pair of dirty long pants
and a pliers positively identified by Isip as appellant's belongings. These
items were brought to the police station (TSN, August 14, 1995, pp. 10-13;
August 18, 1995, pp. 3-8; August 23, 1995, pp. 21-25).

"Contrary to law."
to which he pleaded not guilty. After trial, the lower court rendered a
decision convicting appellant of the crime charged, sentenced him to suffer
the penalty of death and to pay a total of P73,000.00 to the victim's heirs.
The dispositive portion of the trial court's decision states:
"WHEREFORE, finding accused Larry Mahinay y Amparado guilty beyond
reasonable doubt of the crime charged, he is hereby sentenced to death by
electricution (sic). He is likewise condemned to indemnify the heirs of the
victim, Ma. Victoria Chan the amount of P50,000.00 and to pay the further
sum of P23,000.00 for the funeral, burial and wake of the victim.

"A police report was subsequently prepared including a referral slip

addressed to the office of the Valenzuela Prosecutor. The next day, SPO1
Virgilio Villano retrieved the victim's underwear from the septic tank (TSN,
August 23, 1995, pp. 3-8; 14-17).

"Let the complete records of the case be immediately forwarded to the

Honorable Supreme Court for the automatic review in accordance to Article
47 of the Revised Penal Code as amended by Section 22 of Republic Act
No. 7659.
"SO ORDERED."

"After a series of follow-up operations, appellant was finally arrested in

Barangay Obario Matala, Ibaan, Batangas. He was brought to the
Valenzuela Police Station. On July 7, 1995, with the assistance of Atty.
Restituto Viernes, appellant executed an extra-judicial confession wherein
he narrated in detail how he raped and killed the victim. Also, when
appellant came face to face with the victim's mother and aunt, he confided

Upon automatic review by the Court en banc pursuant to Article 47 of the

Revised Penal Code (RPC), as amended, 5 appellant insists that the
circumstantial evidence presented by the prosecution against him is
insufficient to prove his guilt beyond reasonable doubt. In his testimony

summarized by the trial court, appellant offered his version of what

transpired as follows:
"(T)hat on June 25, 1995, around 9:30 a.m. on Dian Street, Gen. T. de Leon,
Valenzuela, Metro Manila, he joined Gregorio Rivera and a certain Totoy in
a drinking spree. Gregorio Rivera is the brother of Maria Isip, appellant's
employer. After consuming three cases of red horse beer, he was summoned
by Isip to clean the jeepney. He finished cleaning the jeepney at 12 o'clock
noon. Then he had lunch and took a bath. Later, he asked permission from
Isip to go out with his friends to see a movie. He also asked for a cash
advance of P300.00 (TSN, October 16, 1995, pp. 4-5).
"At 2 o'clock in the afternoon, appellant, instead of going out with his
friend, opted to rejoin Gregorio Rivera and Totoy for another drinking
session. They consumed one case of red horse beer. Around 6 o'clock p.m.,
Zaldy, a co-worker, fetched him at Gregorio Rivera's house. They went to
Zaldy's house and bought a bottle of gin. They finished drinking gin around
8 o'clock p.m. After consuming the bottle of gin, they went out and bought
another bottle of gin from a nearby store. It was already 9 o'clock in the
evening. While they were at the store, appellant and Zaldy met Boyet. After
giving the bottle of gin to Zaldy and Boyet, appellant left (TSN, October 16,
1995, pp. 6-7).
"On his way home, appellant passed by Norgina Rivera's store to buy
lugaw. Norgina Rivera informed him that there was none left of it. He left
the store and proceeded to Isip's apartment. But because it was already
closed, he decided to sleep at the second floor of Isip's unfinished house.
Around 10 o'clock p.m., Zaldy and Boyet arrived carrying a cadaver. The
two placed the body inside the room where appellant was sleeping. As
appellant stood up, Zaldy pointed to him a knife. Zaldy and Boyet directed
him to rape the dead body of the child or they would kill him. He, however,
refused to follow. Then, he was asked by Zaldy and Boyet to assist them in
bringing the dead body downstairs. He obliged and helped dump the body
into the septic tank. Thereupon, Zaldy and Boyet warned him that should
they ever see him again, they would kill him. At 4 o'clock the following
morning, he left the compound and proceeded first to Navotas and later to
Batangas (TSN, October 16, 1995, pp. 4-13).

"Subsequently, appellant was apprehended by the police officers in Ibaan,

Batangas. The police officers allegedly brought him to a big house
somewhere in Manila. There, appellant heard the police officer's plan to
salvage him if he would not admit that he was the one who raped and killed
the victim. Scared, he executed an extra-judicial confession. He claimed
that he was assisted by Atty. Restituto Viernes only when he was forced to
sign the extra-judicial confession (TSN, October 16, 1995, pp. 9-11)."
This being a death penalty case, the Court exercises the greatest
circumspection in the review thereof since "there can be no stake higher and
no penalty more severe . . . than the termination of a human life." For life,
once taken is like virginity, which once defiled can never be restored. In
order therefore, that appellant's guilty mind be satisfied, the Court states the
reasons why, as the records are not shy, for him to verify.
The proven circumstances of this case when juxtaposed with appellant's
proffered excuse are sufficient to sustain his conviction beyond reasonable
doubt, notwithstanding the absence of any direct evidence relative to the
commission of the crime for which he was prosecuted. Absence of direct
proof does not necessarily absolve him from any liability because under the
Rules on evidence and pursuant to settled jurisprudence, conviction may be
had on circumstantial evidence provided that the following requisites
concur:
1.
there is more than one circumstance;
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.
Simply put, for circumstantial 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
inconsistent with the hypothesis that he is innocent and with every other
rational hypothesis except that of guilt. Facts and circumstances consistent
with guilt and inconsistent with innocence, constitute evidence which, in
weight and probative force, may surpass even direct evidence in its effect
upon the court.

In the case at bench, the trial court gave credence to several circumstantial
evidence, which upon thorough review of the Court is more than enough to
prove appellant's guilt beyond the shadow of reasonable doubt. These
circumstantial evidence are as follows:
"FIRST Prosecution witness Norgina Rivera, sister-in-law of Maria Isip,
owner of the unfinished big house where the crime happened and the septic
tank where the body of Maria Victoria Chan was found in the morning of
June 26, 1995 is located, categorically testified that at about 9:00 in the
evening on June 25, 1995, accused Larry Mahinay was in her store located
in front portion of the compound of her sister-in-law Maria Isip where the
unfinished big house is situated buying rice noodle (lugaw). That she
noticed the accused's hair was disarranged, drunk and walking in sigsaging
manner. That the accused appeared uneasy and seems to be thinking deeply.
That the accused did not reply to her queries why he looked worried but
went inside the compound.
"SECOND Prosecution witness Sgt. Roberto G. Suni, categorically
testified that on June 25, 1995 between 6:00 and 7:00 in the evening, on his
way to his in-law's house, he met accused Larry Mahinay walking on the
road leading to his in-law's residence which is about 50 to 75 meters away
to the unfinished big house of Maria Isip. That he also saw victim Maria
Victoria Chan standing at the gate of the unfinished big house of Maria Isip
between 8:00 and 9:00 in the same evening.
"THIRD Prosecution witness Maria Isip, owner of the unfinished big
house where victim's body was found inside the septic tank, testified that
accused Larry Mahinay is her houseboy since November 20, 1993. That in
the morning of June 25, 1995, a Sunday, Larry Mahinay asked permission
from her to leave. That after finishing some work she asked him to do
accused Larry Mahinay left. That it is customary on the part of Larry
Mahinay to return in the afternoon of the same day or sometimes in the next
morning. That accused Larry Mahinay did not return until he was arrested
in Batangas on July 7, 1995.
"FOURTH Prosecution witness Fernando Trinidad, a passenger jeepney
driver plying the route Karuhatan-Ugong and vice versa which include
Diam St., Gen. T. de Leon, Valenzuela, Metro Manila, pinpointed the

accused Larry Mahinay as one of the passengers who boarded his passenger
jeepney on June 26, 1995 at 2:00 early morning and alighted on top of the
overpass of the North Expressway.
"FIFTH Personal belongings of the victim was found in the unfinished
big house of Maria Isip where accused Larry Mahinay slept on the night of
the incident. This is a clear indication that the victim was raped and killed in
the said premises.
"There is no showing that the testimonies of the prosecution witnesses (sic)
fabricated or there was any reason for them to testify falsely against the
accused. The absence of any evidence as to the existence of improper
motive sustain the conclusion that no such improper motive exists and that
the testimonies of the witnesses, therefore, should be given full faith and
credit. (People vs. Retubado, 58585 January 20, 1988, 162 SCRA 276, 284;
People vs. Ali, L-18512 October 30, 1969, 29 SCRA 756).
"SIXTH Accused Larry Mahinay during the custodial investigation and
after having been informed of his constitutional rights with the assistance of
Atty. Restituto Viernes of the Public Attorney's Office voluntarily gave his
statement admitting the commission of the crime. Said confession of
accused Larry Mahinay given with the assistance of Atty. Restituto Viernes
is believed to have been freely and voluntarily given. That accused did not
complain to the proper authorities of any maltreatment on his person
(People vs. delos Santos, L-3398 May 29, 1984; 150 SCRA 311). He did
not even informed the Inquest Prosecutor when he sworn to the truth of his
statement on July 8, 1995 that he was forced, coersed or was promised of
reward or leniency. That his confession abound with details known only to
him. The Court noted that a lawyer from the Public Attorneys Office Atty.
Restituto Viernes and as testified by said Atty. Viernes he informed and
explained to the accused his constitutional rights and was present all
throughout the giving of the testimony. That he signed the statement given
by the accused. Lawyer from the Public Attorneys Office is expected to be
watchful and vigilant to notice any irregularity in the manner of the
investigation and the physical conditions of the accused. The post mortem
findings show that the cause of death Asphyxia by manual strangulation;
Traumatic Head injury Contributory substantiate. Consistent with the

testimony of the accused that he pushed the victim and the latter's head hit
the table and the victim lost consciousness.

ground floor. Boyet and Zaldy can easily disposed and dumped the body in
the septic tank by themselves.

"Pagpasok niya sa kuwarto, hinawakan ko siya sa kamay tapos tinulak ko

siya, tapos tumama iyong ulo niya sa mesa. Ayon na, nakatulog na siya
tapos ni-rape ko na siya."
"There is no clear proof of maltreatment and/or tortured in giving the
statement. There were no medical certificate submitted by the accused to
sustain his claim that he was mauled by the police officers.

"It is likewise strange that the dead body of the child was taken to the room
where accused Larry Mahinay was sleeping only to force the latter to have
sex with the dead body of the child.

There being no evidence presented to show that said confession were

obtained as a result of violence, torture, maltreatment, intimidation, threat
or promise of reward or leniency nor that the investigating officer could
have been motivated to concoct the facts narrated in said affidavit; the
confession of the accused is held to be true, correct and freely or voluntarily
given. (People v. Tuazon, 6 SCRA 249; People v. Tiongson, 6 SCRA 431,
People v. Baluran, 52 SCRA 71, People v. Pingol, 35 SCRA 73.)
"SEVENTH Accused Larry Mahinay testified in open Court that he was
not able to enter the apartment where he is sleeping because it was already
closed and he proceeded to the second floor of the unfinished house and
slept. He said while sleeping Zaldy and Boyet arrived carrying the cadaver
of the victim and dumped it inside his room. That at the point of a knife, the
two ordered him to have sex with the dead body but he refused. That the
two asked him to assist them in dumping the dead body of the victim in the
septic tank downstairs. (Tsn pp. 8-9, October 16, 1995). This is
unbelievable and unnatural. Accused Larry Mahinay is staying in the
apartment and not in the unfinished house. That he slept in the said
unfinished house only that night of June 25, 1995 because the apartment
where he was staying was already closed. The Court is at a loss how would
Zaldy and Boyet knew he (Larry Mahinay) was in the second floor of the
unfinished house.
"Furthermore, if the child is already dead when brought by Zaldy and Boyet
in the room at the second floor of the unfinished house where accused Larry
Mahinay was sleeping, why will Boyet and Zaldy still brought the cadaver
upstairs only to be disposed/dump later in the septic tank located in the

"We have no test to the truth of human testimony except it's conformity to
aver knowledge observation and experience. Whatever is repugnant to these
belongs to the miraculous. (People vs. Santos, L-385 Nov. 16, 1979)"
"EIGHT If the accused did not commit the crime and was only forced to
disposed/dumped the body of the victim in the septic tank, he could have
apprise Col. Maganto, a high ranking police officer or the lady reporter who
interviewed him. His failure and omission to reveal the same is unnatural.
An innocent person will at once naturally and emphatically repel an
accusation of crime as a matter of preservation and self-defense and as a
precaution against prejudicing himself. A person's silence therefore,
particularly when it is persistent will justify an inference that he is not
innocent. (People vs. Pilones, L-32754-5 July 21, 1978).
"NINTH The circumstance of flight of the accused strongly indicate his
consciousness of guilt. He left the crime scene on the early morning after
the incident and did not return until he was arrested in Batangas on July 7,
1995."
Guided by the three principles in the review of rape cases, to wit:
1).
An accusation for rape can be made with facility; it is difficult to
prove but more difficult for the person accused, though innocent, to
disprove;
2).
In view of the intrinsic nature of the crime of rape, where only two
persons are usually involved, the testimony of the complainant is
scrutinized with extreme caution; and
3).
The evidence of the prosecution stands or falls on its own merits
and cannot be allowed to draw strength from the weakness of the defense.
The foregoing circumstantial evidence clearly establishes the felony of rape

with homicide defined and penalized under Section 335 of the Revised
Penal Code, as amended by Section 11, R.A. 7659, which provides:
"When and how rape is committed. Rape is committed by having carnal
knowledge of a woman under any of the following circumstances.
1.)
By using force or intimidation;
2.)
When the woman is deprived of reason or otherwise unconscious;
and
3.)
When the woman is under twelve years of age or is demented.
The crime of rape shall be punished by reclusion perpetua.
Whenever the crime of rape is committed with use of a deadly weapon or
by two or more persons, the penalty shall be reclusion perpetua to death.

6.)
When committed by any member of the Armed Forces of the
Philippines or Philippine National Police or any law enforcement agency.
7.)
When by reason or on the occasion of the rape, the victim has
suffered permanent physical mutilation.
At the time of the commission of this heinous act, rape was still considered
a crime against chastity, although under the Anti-Rape Law of 1997 (R.A.
No. 8353), rape has since been re-classified as a crime against persons
under Articles 266-A and 266-B, and thus, may be prosecuted even without
a complaint filed by the offended party.

When by reason or on the occasion of the rape, a homicide is committed,

the penalty shall be death.

The gravamen of the offense of rape, prior to R.A. 8353, is sexual congress
with a woman by force and without consent. (Under the new law, rape may
be committed even by a woman and the victim may even be a man.) If the
woman is under 12 years of age, proof of force and consent becomes
immaterial not only because force is not an element of statutory rape, but
the absence of a free consent is presumed when the woman is below such
age. Conviction will therefore lie, provided sexual intercourse is proven.
But if the woman is 12 years of age or over at the time she was violated, as
in this case, not only the first element of sexual intercourse must be proven
but also the other element that the perpetrator's evil acts with the offended
party was done through force, violence, intimidation or threat needs to be
established. Both elements are present in this case.

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.
2.)
When the victim is under the custody of the police or military
authorities.
3.)
When the rape is committed in full view of the husband, parent,
any of the children or other relatives within the third degree of
consanguinity.
4.)
When the victim is a religious or a child below seven (7) years old.
5.)
When the offender knows that he is afflicted with Acquired
Immune Deficiency Syndrome (AIDS) disease.

Based on the evidence on record, sexual intercourse with the victim was
adequately proven. This is shown from the testimony of the medical doctor
who conducted post mortem examination on the child's body:
Q:
And after that what other parts of the victim did you examine?
A:
Then I examined the genitalia of the victim.
Q:
And what did you find out after you examined the genitalia of the
victim?
A:
The hymen was tall-thick with complete laceration at 4:00 o'clock
and 8:00 o'clock position and that the edges were congested.
Q:
Now, what might have caused the laceration?
A:
Under normal circumstances this might have (sic) caused by a
penetration of an organ.
Q:
So, the laceration was caused by the penetration of a male organ?
A:
Adult male organ, sir.

When by reason or on the occasion of the rape, the victim has become
insane, the penalty shall be death.
When the rape is attempted or frustrated and a homicide is committed by
reason or on the occasion thereof, the penalty shall be reclusion perpetua to
death.

Q:
You are very sure of that, Mr. Witness?
A:
I am very sure of that.
Besides, as may be gleaned from his extrajudicial confession, appellant
himself admitted that he had sexual congress with the unconscious child.
"15. T: Ano ang nangyari ng mga sandali o oras na iyon?
S:
Natutulog po ako sa itaas ng bahay ni ATE MARIA, yung
malaking bahay na ginagawa, tapos dumating yung batang babae. Pagpasok niya sa kuwarto hinawakan ko siya sa kamay tapos tinulak ko siya.
Tapos tumama yung ulo niya sa mesa. Ayon na, nakakatulog na siya tapos
ni rape ko na siya.
"16. T: Ano ang suot nung batang babae na sinasabi mo?
S:
Itong short na ito, (pointing to a dirty white short placed atop this
investigator's table. Subject evidence were part of evidences recovered at
the crime scene).
"17. T: Bakit mo naman ni rape yung batang babae?
S:
Eh nasobrahan ako ng lasing. Hindi ko na alam ang ginagawa ko.
"18. T: Ano ba ang inyong ininom bakit ka nasobrahan ng lasing?
S:
Red Horse po at saka GIN.
"19. T: Saan lugar ng malaking bahay ni ATE MARIA mo ni rape yung
batang babae?
S:
Sa kuwarto ko po sa itaas.
"20. T: Kailan ito at anong oras nangyari?
S:
Mga bandang alas 8:00 ng gabi, araw ng Linggo, hindi ko na
matandaan kung anong petsa, basta araw ng Linggo.
"21. T: Saan lugar ito nangyari?
S:
Sa Diam, Gen. T. de Leon, Valenzuela, M.M.
"22. T: Alam mo ba ang pangalan ng batang babae na ni rape mo?
S:
Hindi ko po alam.
"23. T: Ngayon, nais kong ipaalam sa iyo na ang pangalan ng batang
babae na iyong ni rape at pinatay ay si MA. VICTORIA CHAN?
Matatandaan mo ba ito?
S:
Oho.
"24. T: Nung ma-rape mo, nakaraos ka ba?
S:
Naka-isa po.
"25. T: Nais kong liwanagin sa iyo kung ano ang ibig sabihin ng
'NAKARAOS', maaari bang ipaliwanag mo ito?
S:
Nilabasan po ako ng tamod.

"26. T: Nung nakaraos ka, nasaan parte ng katawan ng batang babae yung
iyong ari?
S:
Nakapasok po doon sa ari nung babae.
"27. T: Natapos mong ma-rape si MA. VICTORIA CHAN, ano pa ang
sumunod mong ginawa?
S:
Natulak ko siya sa terrace.
"28. T: Ano ang nangyari kay MA. VICTORIA matapos mong itulak sa
terrace?
S:
Inilagay ko po sa poso-negra.
"29. T: Saan makikita yung poso-negra na sinasabi mo?
S:
Doon din sa malaking bahay ni ATE MARIA.
30. T: Bakit mo namang naisipang ilagay si MA. VICTORIA sa posonegra?
S:
Doon ko lang po inilagay.
"31. T: Bakit nga doon mo inilagay siya?
S:
Natatakot po ako.
"32. T: Kanino ka natatakot?
S:
Natatakot po ako sa ginawa kong masama, natatakot ako sa mga
pulis.
"33. T: Buhay pa ba si MA. VICTORIA nung ilagay mo siya sa posonegra?
S:
Hindi ko po alam dahil nung pagbagsak niya inilagay ko na siya sa
poso-negra.
34. T: Nung gawin mo ba itong krimen na ito, mayroon ka kasama?
S:
Nag-iisa lang po ako.
"35. T: Noong mga oras o sandaling gahasain mo si MA. VICTORIA
CHAN, buhay pa ba siya o patay na?
S:
Buhay pa po.
"36. T: Papaano mo siya pinatay?
S:
Tinulak ko nga po siya sa terrace."
In proving sexual intercourse, it is not full or deep penetration of the
victim's vagina; rather the slightest penetration of the male organ into the
female sex organ is enough to consummate the sexual intercourse. 22 The
mere touching by the male's organ or instrument of sex of the labia of the
pudendum of the woman's private parts is sufficient to consummate rape.

From the wounds, contusions and abrasions suffered by the victim, force
was indeed employed upon her to satisfy carnal lust. Moreover, from
appellant's own account, he pushed the victim causing the latter to hit her
head on the table and fell unconscious. It was at that instance that he
ravished her and satisfied his salacious and prurient desires. Considering
that the victim, at the time of her penile invasion, was unconscious, it could
safely be concluded that she had not given free and voluntary consent to her
defilement, whether before or during the sexual act.
Another thing that militates against appellant is his extrajudicial confession,
which he, however, claims was executed in violation of his constitutional
right to counsel. But his contention is belied by the records as well as the
testimony of the lawyer who assisted, warned and explained to him his
constitutionally guaranteed pre-interrogatory and custodial rights. As
testified to by the assisting lawyer:
"Q
Will you please inform the Court what was that call about?
"A
We went to the station, police investigation together with Atty.
Froilan Zapanta and we were told by Police Officer Alabastro that one
Larry Mahinay would like to confess of the crime of, I think, rape with
homicide.
"Q
And upon reaching the investigation room of Valenzuela PNP who
were the other person present?
"A
Police Officer Alabastro, sir, Police Officer Nacis and other
investigator inside the investigation room and the parents of the child who
was allegedly raped.
"Q
And when you reached the investigation room do you notice
whether the accused already there?
"A
The accused was already there.
"Q
Was he alone?
"A
He was alone, sir.
"Q
So, when you were already infront of SPO1 Arnold Alabastro and
the other PNP Officers, what did they tell you, if any?
"A
They told us together with Atty. Zapanta that this Larry Mahinay
would like to confess of the crime charged, sir.
"Q
By the way, who was that Atty. Zapanta?
"A
Our immediate Superior of the Public Attorney's Office.

"Q
Was he also present at the start of the question and answer period
to the accused?
"A
No more, sir, he already went to our office. I was left alone.
"Q
But he saw the accused, Larry Mahinay?
"A
Yes, sir.
"Q
Now, when Atty. Zapanta left at what time did the question and
answer period start?
"A
If I am not mistaken at around 4:05 of July 7, 1995 in the
afternoon, sir.
"Q
And when this question and answer period started, what was the
first thing that you did as assisting lawyer to the accused?
"A
First, I tried to explain to him his right, sir, under the constitution.
"Q
What are those right?
"A
That he has the right to remain silent. That he has the right of a
counsel of his own choice and that if he has no counsel a lawyer will be
appointed to him and that he has the right to refuse to answer any question
that would incriminate him.
"Q
Now, after enumerating these constitutional rights of accused
Larry Mahinay, do you recall whether this constitutional right enumerated
by you were reduced in writing?
"A
Yes, sir, and it was also explained to him one by one by Police
Officer Alabastro.
"Q
I show to you this constitutional right which you said were reduced
into writing, will you be able to recognize the same?
"A
Yes, sir.
"Q
Will you please go over this and tell the Court whether that is the
same document you mentioned?
"A
Yes, sir, these were the said rights reduced into writing.
ATTY. PRINCIPE:
May we request, Your Honor, that this document be marked as our Exhibit
A proper.
"Q
Do you recall after reducing into writing this constitutional right of
the accused whether you asked him to sign to acknowledge or to conform?
"A
I was the one who asked him, sir. It was Police Officer Alabastro.
"Q
But you were present?
"A
I was then present when he signed.

"Q
There is a signature in this constitutional right after the
enumeration, before and after there are two (2) signatures, will you please
recognize the two (2) signatures?
"A
These were the same signatures signed in my presence, sir.
"Q
The signature of whom?
"A
The signature of Larry Mahinay, sir.
"ATTY. PRINCIPE:
May we request, Your Honor, that the two (2) signatures identified by my
compaero be encircled and marked as Exhibit A-1 and A-2.
"Q
After you said that you apprised the accused of his constitutional
right explaining to him in Filipino, in local dialect, what was the respond of
the accused?
"A
Larry Mahinay said that we will proceed with his statement.
"Q
What was the reply?
"A
He said "Opo".
"Q
Did you ask him of his educational attainment?
"A
It was the Police Officer who asked him.
"Q
In your presence?
"A
In my presence, sir.
"Q
And when he said or when he replied "Opo" so the question
started?
"A
Yes, sir.
"Q
I noticed in this Exhibit A that there is also a waiver of rights, were
you present also when he signed this waiver?
"A
Yes, sir, I was also present.
"Q
Did you explain to him the meaning of this waiver?
"A
I had also explained to him, sir.
"Q
In Filipino?
"A
In Tagalog, sir.
"Q
And there is also a signature after the waiver in Filipino over the
typewritten name Larry Mahinay, "Nagsasalaysay", whose signature is that?
"A
This is also signed in my presence.
"Q
Why are you sure that this is his signature?
"A
He signed in my presence, sir.
"Q
And below immediately are the two (2) signatures. The first one is
when Larry Mahinay subscribed and sworn to, there is a signature here, do
you recognize this signature?

"A
This is my signature, sir.
"Q
And immediately after your first signature is a Certification that
you have personally examined the accused Larry Mahinay and testified that
he voluntary executed the Extra Judicial Confession, do you recognize the
signature?
"A
This is also my signature, sir." (emphasis supplied).
Appellant's defense that two other persons brought to him the dead body of
the victim and forced him to rape the cadaver is too unbelievable. In the
words of Vice-Chancellor Van Fleet of New Jersey.
"Evidence to be believed must not only proceed from the mouth of a
credible witness, but must be credible in itself such as the common
experience and observation of mankind can approve as probable under the
circumstances. We have no test of the truth of human testimony, except its
conformity to our knowledge, observation and experience. Whatever is
repugnant to these belongs to the miraculous, and is outside of judicial
cognizance."
Ultimately, all the foregoing boils down to the issue of credibility of
witnesses. Settled is the rule that the findings of facts and assessment of
credibility of witnesses is a matter best left to the trial court because of its
unique position of having observed that elusive and incommunicable
evidence of the witnesses' deportment on the stand while testifying, which
opportunity is denied to the appellate courts. In this case, the trial court's
findings, conclusions and evaluation of the testimony of witnesses is
received on appeal with the highest respect, the same being supported by
substantial evidence on record. There was no showing that the court a quo
had overlooked or disregarded relevant facts and circumstances which when
considered would have affected the outcome of this case or justify a
departure from the assessments and findings of the court below. The
absence of any improper or ill-motive on the part of the principal witnesses
for the prosecution all the more strengthens the conclusion that no such
motive exists. Neither was any wrong motive attributed to the police
officers who testified against appellant.

Coming now to the penalty, the sentence imposed by the trial court is
correct. Under Article 335 of the Revised Penal Code (RPC), as amended
by R.A. 7659 "when by reason or on occasion of the rape, a homicide is
committed, the penalty shall be death." This special complex crime is
treated by law in the same degree as qualified rape that is, when any of
the 7 (now 10) "attendant circumstances" enumerated in the law is alleged
and proven, in which instances, the penalty is death. In cases where any of
those circumstances is proven though not alleged, the penalty cannot be
death except if the circumstance proven can be properly appreciated as an
aggravating circumstance under Articles 14 and 15 of the RPC which will
affect the imposition of the proper penalty in accordance with Article 63 of
the RPC. However, if any of those circumstances proven but not alleged
cannot be considered as an aggravating circumstance under Articles 14 and
15, the same cannot affect the imposition of the penalty because Article 63
of the RPC in mentioning aggravating circumstances refers to those defined
in Articles 14 and 15. Under R.A. No. 8353, if any of the 10 circumstances
is alleged in the information/complaint, it may be treated as a qualifying
circumstance. But if it is not so alleged, it may be considered as an
aggravating circumstance, in which case the only penalty is death subject
to the usual proof of such circumstance in either case.
Death being a single indivisible penalty and the only penalty prescribed by
law for the crime of "rape with homicide", the court has no option but to
apply the same "regardless of any mitigating or aggravating circumstance
that may have attended the commission of the crime" in accordance with
Article 63 of the RPC, as amended. This case of rape with homicide carries
with it penalty of death which is mandatorily imposed by law within the
import of Article 47 of the RPC, as amended, which provides:
"The death penalty shall be imposed in all cases in which it must be
imposed under existing laws, except when the guilty person is below
eighteen (18) years of age at the time of the commission of the crime or is
more than seventy years of age or when upon appeal or automatic review of
the case by the Supreme Court, the required majority vote is not obtained
for the imposition of the death penalty, in which cases the penalty shall be
reclusion perpetua." (emphasis supplied).

In an apparent but futile attempt to escape the imposition of the death

penalty, appellant tried to alter his date of birth to show that he was only 17
years and a few months old at the time he committed the rape and thus,
covered by the proscription on the imposition of death if the guilty person is
below eighteen (18) years at the time of the commission of the crime.
Again, the record rebuffs appellant on this point considering that he was
proven to be already more than 20 years of age when he did the heinous act.
Pursuant to current case law, a victim of simple rape is entitled to a civil
indemnity of fifty thousand pesos (P50,000.00) but if the crime of rape is
committed or effectively qualified by any of the circumstances under which
the death penalty is authorized by present amended law, the civil indemnity
for the victim shall be not less than seventy-five thousand pesos
(P75,000.00). In addition to such indemnity, she can also recover moral
damages pursuant to Article 2219 of the Civil Code in such amount as the
court deems just, without the necessity for pleading or proof of the basis
thereof. Civil indemnity is different from the award of moral and exemplary
damages. The requirement of proof of mental and physical suffering
provided in Article 2217 of the Civil Code is dispensed with because it is
"recognized that the victim's injury is inherently concomitant with and
necessarily resulting from the odious crime of rape to warrant per se the
award of moral damages". Thus, it was held that a conviction for rape
carries with it the award of moral damages to the victim without need for
pleading or proof of the basis thereof.
Exemplary damages can also be awarded if the commission of the crime
was attended by one or more aggravating circumstances pursuant to Article
2230 of the Civil Code after proof that the offended party is entitled to
moral, temperate and compensatory damages. Under the circumstances of
this case, appellant is liable to the victim's heirs for the amount of
P75,000.00 as civil indemnity and P50,000.00 as moral damages.
Lastly, considering the heavy penalty of death and in order to ensure that
the evidence against an accused were obtained through lawful means, the
Court, as guardian of the rights of the people lays down the procedure,
guidelines and duties which the arresting, detaining, inviting, or
investigating officer or his companions must do and observe at the time of

making an arrest and again at and during the time of the custodial
interrogation in accordance with the Constitution, jurisprudence and
Republic Act No. 7438: It is high-time to educate our law-enforcement
agencies who neglect either by ignorance or indifference the so-called
Miranda rights which had become insufficient and which the Court must
update in the light of new legal developments:
1.
The person arrested, detained, invited or under custodial
investigation must be informed in a language known to and understood by
him of the reason for the arrest and he must be shown the warrant of arrest,
if any; Every other warnings, information or communication must be in a
language known to and understood by said person;
2.
He must be warned that he has a right to remain silent and that any
statement he makes may be used as evidence against him;
3.
He must be informed that he has the right to be assisted at all times
and have the presence of an independent and competent lawyer, preferably
of his own choice;
4.
He must be informed that if he has no lawyer or cannot afford the
services of a lawyer, one will be provided for him; and that a lawyer may
also be engaged by any person in his behalf, or may be appointed by the
court upon petition of the person arrested or one acting in his behalf;
5.
That whether or not the person arrested has a lawyer, he must be
informed that no custodial investigation in any form shall be conducted
except in the presence of his counsel or after a valid waiver has been made;
6.
The person arrested must be informed that, at any time, he has the
right to communicate or confer by the most expedient means telephone,
radio, letter or messenger with his lawyer (either retained or appointed),
any member of his immediate family, or any medical doctor, priest or
minister chosen by him or by any one from his immediate family or by his
counsel, or be visited by/confer with duly accredited national or
international non-government organization. It shall be the responsibility of
the officer to ensure that this is accomplished;
7.
He must be informed that he has the right to waive any of said
rights provided it is made voluntarily, knowingly and intelligently and
ensure that he understood the same;
8.
In addition, if the person arrested waives his right to a lawyer, he
must be informed that it must be done in writing AND in the presence of

counsel, otherwise, he must be warned that the waiver is void even if he

insist on his waiver and chooses to speak;
9.
That the person arrested must be informed that he may indicate in
any manner at any time or stage of the process that he does not wish to be
questioned with warning that once he makes such indication, the police may
not interrogate him if the same had not yet commenced, or the interrogation
must cease if it has already begun;
10.
The person arrested must be informed that his initial waiver of his
right to remain silent, the right to counsel or any of his rights does not bar
him from invoking it at any time during the process, regardless of whether
he may have answered some questions or volunteered some statements;
11.
He must also be informed that any statement or evidence, as the
case may be, obtained in violation of any of the foregoing, whether
inculpatory or exculpatory, in whole or in part, shall be inadmissible in
evidence.
Four members of the Court although maintaining their adherence to the
separate opinions expressed in People v. Echegaray 42 that R.A. No. 7659,
insofar as it prescribes the death penalty, is unconstitutional nevertheless
submit to the ruling of the Court, by a majority vote, that the law is
constitutional and that the death penalty should accordingly be imposed.
WHEREFORE, the conviction of appellant is hereby AFFIRMED except
for the award of civil indemnity for the heinous rape which is INCREASED
to P75,000.00, PLUS P50,000.00 moral damages.
In accordance with Section 25 of Republic Act No. 7659, amending Article
83 of the Revised Penal Code, upon finality of this decision, let the records
of this case be forthwith forwarded to the Office of the President for
possible exercise of the pardoning power.
SO ORDERED.
Davide, Jr., C.J., Romero, Bellosillo, Melo, Puno, Vitug, Kapunan,
Mendoza, Panganiban, Quisumbing, Martinez, Purisima, Pardo, Buena and
Gonzaga-Reyes, JJ., concur.