Republic of the PhilippinesSUPREME COURT

Manila

EN BANC

G.R. No. 72335-39 March 21, 1988

FRANCISCO S. TATAD, petitioner, vs.THE SANDIGANBAYAN, and THE TANODBAYAN, respondents.

 

YAP, J.:

In this petition for certiorari and prohibition, with preliminary injunction, dated October 16, 1985, petitioner seeks to annul and set aside the resolution of the Tanodbayan of April 7, 1985, and the resolutions of the Sandiganbayan, dated August 9, 1985, August 12,1985 and September 17, 1985, and to enjoin the Tanodbayan and the Sandiganbayan from continuing with the trial or any other proceedings in Criminal Cases Nos. 10499, 10500, 10501, 10502 and 10503, an entitled "People of the Philippines versus Francisco S. Tatad."

The petition alleges, among other things, that sometime in October 1974, Antonio de los Reyes, former Head Executive Assistant of the then Department of Public Information (DPI) and Assistant Officer-in-Charge of the Bureau of Broadcasts, filed a formal report with the Legal Panel, Presidential Security Command (PSC), charging petitioner, who was then Secretary and Head of the Department of Public Information, with alleged violations of Republic Act No. 3019, otherwise known as the Anti-Graft and Corrupt Practices Act. Apparently, no action was taken on said report.

Then, in October 1979, or five years later, it became publicly known that petitioner had submitted his resignation as Minister of Public Information, and two months after, or on December 12, 1979, Antonio de los Reyes filed a complaint with the Tanodbayan (TBP Case No. 8005-16-07) against the petitioner, accusing him of graft and corrupt practices in the conduct of his office as then Secretary of Public Information. The complaint repeated the charges embodied in the previous report filed by complainant before the Legal Panel, Presidential Security Command (PSC).

On January 26, 1980, the resignation of petitioner was accepted by President Ferdinand E. Marcos. On April 1, 1980, the Tanodbayan referred the complaint of Antonio de los Reyes to the Criminal Investigation Service (CIS) for fact-finding investigation. On June 16, 1980, Roberto P. Dizon, CIS Investigator of the Investigation and Legal Panel, PSC, submitted his Investigation Report, with the following conclusion, ". . . evidence gathered indicates that former Min. TATAD have violated Sec. 3 (e) and Sec. 7 of RA 3019, respectively. On the other hand, Mr. ANTONIO L. CANTERO is also liable under Sec. 5 of RA 3019," and recommended appropriate legal action on the matter.

Petitioner moved to dismiss the complaint against him, claiming immunity from prosecution by virtue of PD 1791, but the motion was denied on July 26, 1982 and his motion for reconsideration was also denied on October 5, 1982. On October 25, 1982, all affidavits and counter-affidavits were with the Tanodbayan for final disposition. On July 5, 1985, the Tanodbayan approved a resolution, dated April 1, 1985, prepared by Special Prosecutor Marina Buzon, recommending that the following informations be filed against petitioner before the Sandiganbayan, to wit:

l. Violation of Section 3, paragraph (e) of RA. 3019 for giving D' Group, a private corporation controlled by his brother-in-law, unwarranted benefits, advantage or preference in the discharge of his official functions through manifest partiality and evident bad faith;

2. Violation of Section 3, paragraph (b) of RA. 3019 for receiving a check of P125,000.00 from Roberto Vallar, President/General Manager of Amity Trading Corporation as consideration for the release of a check of P588,000.00 to said corporation for printing services rendered for the Constitutional Convention Referendum in 1973;

3. Violation of Section 7 of RA. 3019 on three (3) counts for his failure to file his Statement of Assets and Liabilities for the calendar years 1973, 1976 and 1978.

Accordingly, on June 12, 1985, the following informations were flied with the Sandiganbayan against the petitioner:

Re: Criminal Case No. 10499

The undersigned Tanodbayan Special Prosecutor accuses Francisco S. Tatad with Violation of Section 3, paragraph (b) of Republic Act No. 3019,

otherwise known as the Anti-Graft and Corrupt Practices Act, committed as follows:

That on or about the 16th day of July, 1973 in the City of Manila, Philippines, and within the jurisdiction of this Honorable Court, the above- named accused, being then the Secretary of the Department (now Ministry) of Public Information, did then and there, wilfully and unlawfully demand and receive a check for Pl25,000.00 from Roberto Vallar, President/General Manager of Amity Trading Corporation as consideration for the payment to said Corporation of the sum of P588,000.00, for printing services rendered for the Constitutional Convention Referendum of January, 1973, wherein the accused in his official capacity had to intervene under the law in the release of the funds for said project.

That the complaint against the above-named accused was filed with the Office of the Tanodbayan on May 16, 1980.

CONTRARY TO LAW.

Re: Criminal Case No. 10500

The undersigned Tanodbayan Special Prosecutor accuses FRANCISCO S. TATAD with Violation of Section 7 of Republic Act No. 3019, otherwise known as the Anti-Graft and Corrupt Practice Act, committed as follows:

That on or about the 31st day of January, 1974 in the City of Manila, Philippines, and within the jurisdiction of this Honorable Court, the above- named accused, a public officer being then the Secretary of the Department (now Ministry) of Public Information, did then and there wilfully and unlawfully fail to prepare and file with the Office of the President, a true detailed and sworn statement of his assets and liabilities, as of December 31, 1973, including a statement of the amounts and sources of his income, the amounts of his personal and family expenses and the amount of income taxes paid for the next preceding calendar year (1973), as required of every public officer.

That the complaint against the above-named accused was flied with the Office of the Tanodbayan on June 20, 1980.

CONTRARY TO LAW.

Re: Criminal Case No. 10501

The undersigned Tanodbayan Special Prosecutor accuses FRANCISCO S. TATAD with Violation of Section 3, paragraph (e) of Republic Act No. 3019, otherwise known as the Anti-Graft and Corrupt Practices Act, committed as follows:

That on or about the month of May, 1975 and for sometime prior thereto, in the City of Manila, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, a public officer being then the Secretary of the Department (now Ministry) of Public Information, did then and there, wilfully and unlawfully give Marketing Communication Group, Inc. (D' Group), a private corporation of which his brother-in-law, Antonio L. Cantero, is the President, unwarranted benefits, advantage or preference in the discharge of his official functions, through manifest partiality and evident bad faith, by allowing the transfer of D' GROUP of the funds, assets and ownership of South East Asia Research Corporation (SEARCH), allegedly a private corporation registered with the Securities and Exchange Corporation on June 4, 1973, but whose organization and operating expenses came from the confidential funds of the Department of Public Information as it was organized to undertake research, projects for the government, without requiring an accounting of the funds advanced by the Department of Public Information and reimbursement thereof by D' GROUP, to the damage and prejudice of the government.

That the complaint against the above-named accused was filed with the Office of the Tanodbayan on May 16, 1980.

CONTRARY TO LAW.

Re: Criminal Case No. 10502

The undersigned Tanodbayan Special Prosecutor accuses FRANCISCO S. TATAD with Violation of Section 7 of Republic Act No. 3019, otherwise known as the Anti-Graft and Corrupt Practices Act, committed as follows:

That on or about the 31st day of January, 1977 in the City of Manila, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, a public officer being then the Secretary of the Department (now Ministry) of Public Information, did then and there wilfully and unlawfully fail to prepare and file with the Office of the President, a true and sworn statement of his assets and liabilities, as of December 31, 1976, including a statement of the amounts of his personal and family expenses and the amount of income taxes paid for the next preceding calendar year (1976), as required of every public officer.

That the complaint against the above-named accused was filed with the Office of the Tanodbayan on June 20, 1988.

CONTRARY TO LAW.

Re: Criminal Case No. 10503

The undersigned Tanodbayan Special Prosecutor accuses FRANCISCO S. TATAD with Violation of Section 7 of Republic Act No. 3019, otherwise known as the Anti-Graft and Corrupt Practices Act, committed as follows:

That on or about the 15th day of April, 1979, in the City of Manila Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, a public officer being then the Secretary of the Department (now Ministry) of Public Information, did then and there wilfully and unlawfully fail to prepare and file with the Office of the President, a true, detailed and sworn statement of his assets and liabilities, as of December 31, 1978, including a statement of the amounts and sources of his income, the amounts of his personal and family expenses and the amount of income taxes paid for the next preceding calendar year (1978), as required of every public officer.

That the complaint against the above-named accused was filed with the Office of the Tanodbayan on June 20, 1980.

CONTRARY TO LAW.

On July 22, 1985, petitioner filed with the Sandiganbayan a consolidated motion to quash the informations on the follow grounds:

1 The prosecution deprived accused-movant of due process of law and of the right to a speedy disposition of the cases filed against him, amounting to loss of jurisdiction to file the informations;

2. Prescription of the offenses charged in Crim. Case Nos. 10499, 10500 and 10501;

3. The facts charged in Criminal Case No. 10500 (for failure to file Statement of Assets and Liabilities for the year 1973) do not constitute an offense;

4. No prima facie case against the accused-movant exists in Criminal Cases Nos. 10500, 10502 and 10503;

5. No prima facie case against the accused-movant exists in Criminal Case No. 10199 for Violation of Sec. 3, par. (b) of R.A. 3019, as amended;

6. No prima facie case against the accused-movant exists in Criminal Case No. 10501 (for Violation of Sec. 3 (e) of R.A. 3019, as amended.

On July 26, 1985, the Tanodbayan filed its opposition to petitioner's consolidated motion to quash, stating therein in particular that there were only two grounds in said motion that needed refutation, namely:

1. The offense charged in Criminal Cases Nos. 10499,10500 and 10501, have already prescribed and criminal liability is extinguished; and

2. The facts charged in the information (Criminal Case No. 10500 — For failure to file Statement of Assets and Liabilities for the year 1973) do not constitute an offense.

On the issue of prescription, Tanodbayan citing the case of Francisco vs. Court of Appeals, 122 SCRA 538, contended that the filing of the complaint or denuncia in the fiscal's office interrupts the period of prescription. Since the above-numbered cases were filed with the Office of the Tanodbayan in 1980 and the alleged offenses were committed on July 16, 1973, January 31, 1974 and in May 1975, respectively, although the charges were actually filed in Court only on July 9, 1985, the Tanodbayan has still the right to prosecute the same, it appearing that the ten (10) year prescriptive period has not yet lapsed. Moreover, Tanodbayan pointed out that a law such as Batas Pambansa Blg. 195, extending the period

of limitation with respect to criminal prosecution, unless the right to acquittal has been acquired, is constitutional.

Tanodbayan likewise said that the requirement for the filing of the Statement of Assets and Liabilities in P.D. 379 is separate and distinct from that required pursuant to the provisions of the Anti-Graft Law, as amended. For while the former requires "any natural or juridical person having gross assets of P50,000.00 or more..." to submit a statement of assets and liabilities "... regardless of the networth," the mandate in the latter law is for ALL government employees and officials to submit a statement of assets and liabilities. Hence, the prosecution under these two laws are separate and distinct from each other. Tanodbayan also explained that delay in the conduct of preliminary investigation does not impair the validity of the informations filed and that neither will it render said informations defective. Finally, Tanodbayan added that P.D. 911, the law which governs preliminary investigations is merely directory insofar as it fixes a period of ten (10) days from its termination to resolve the preliminary investigation.

On August 9, 1985, the Sandiganbayan rendered its challenged resolution denying petitioner's motion to quash, the dispositive portion of which reads:

WHEREFORE, prescinding therefrom, We find, and so hold, that the accused's "Consolidated Motion to Quash" should be as it is hereby, denied for lack of merit. Conformably to Rule 117, Section 4 of the 1985 Rules on Criminal Procedure, the defect in the information in Criminal Case No. 10500 being one which could be cured by amendment, the Tanodbayan is hereby directed to amend said information to change the date of the alleged commission of the offense therein charged fromJanuary 31, 1974 to September 30, 1974 within five (5) days from receipt hereof.

SO ORDERED.

On August 10, 1985, in compliance with the Sandiganbayan's resolution of August 8, 1985, the Tanodbayan filed an amended information in Criminal Case No. 10500, changing the date of the commission of the offense to September 30, 1974.

On August 30, 1985, petitioners filed a consolidated motion for reconsideration which was denied by the Sandiganbayan September 17, 1985. Hence, petitioner filed this petition on October 16, 1985 assailing the denial of his motion to quash. On October 22, 1985, the Court, without giving due course the petition, resolved to require the respondents to comment thereon and issued a temporary restraining order effective immediately and continuing until

further orders of the Court, enjoining the respondents Sandiganbayan and Tanodbayan from continuing with the trial and other proceedings in Criminal Cases Nos. 10499, 10500, 10501, 10502 and 10503. In compliance with said resolution, the respondents, through ,Solicitor General Estelito P. Mendoza, filed their comment on January 6, 1986.

On April 10, 1986, the Court required the parties to move in the premises considering the supervening events, including the change of administration that had transpired, and the provisions of Sec. 18, Rule 3 of the Rules of Court, insofar far as the Public respondents were concerned, which requires the successor official to state whether or not he maintains the action or position taken by his predecessor in office. On June 20, 1986, the new Tanodbayan manifested that since "the charges are not political offenses and they have no political bearing whatsoever," he had no alternative but to pursue the cases against the petitioner, should the Court resolve to deny the petition; that in any event, petitioner is not precluded from pursuing any other legal remedies under the law, such as the filing of a motion for re-evaluation of his cases with the Tanodbayan. The new Solicitor General filed a manifestation dated June 27, 1986 in which he concurred with the position taken by the new Tanodbayan.

Pursuant to the above manifestation of the new Tanodbayan, the petitioner filed a motion for re-evaluation with the Office of the Tanodbayan, dated July 21, 1986, praying that the cases in question be re-evaluated and the informations be quashed. The Court is not aware of what action, if any, has been taken thereon by the Tanodbayan. However, be that as it may, the filing of the aforesaid motion for re-evaluation with the Tanodbayan has no material bearing insofar as the duty of this Court to resolve the issues raised in the instant petition is concerned.

Petitioner has raised the following issues in his petition:

1. Whether the prosecution's long delay in the filing of these cases with the Sandiganbayan had deprived petitioner of his constitutional light to due process and the right to a speedy disposition of the cases against him.

2. Whether the crimes charged has already prescribed.

3. Whether there is a discriminatory prosecution of the petitioner by the Tanodbayan.

4. Whether Sandiganbayan should have ruled on the question of amnesty raised by the petitioner.

5. Whether petitioner's contention of the supposed lack or non- existence of prima facie evidence to sustain the filing of the cases at bar justifies the quashal of the questioned informations.

Petitioner claims that the Tanodbayan culpably violated the constitutional mandate of "due process" and "speedy disposition of cases" in unduly prolonging the termination of the preliminary investigation and in filing the corresponding informations only after more than a decade from the alleged commission of the purported offenses, which amounted to loss of jurisdiction and authority to file the informations. The respondent Sandiganbayan dismissed petitioner's contention, saying that the applicability of the authorities cited by him to the case at bar was "nebulous;" that it would be premature for the court to grant the "radical relief" prayed for by petitioner at this stage of the proceeding; that the mere allegations of "undue delay" do not suffice to justify acceptance thereof without any showing "as to the supposed lack or omission of any alleged procedural right granted or allowed to the respondent accused by law or administrative fiat" or in the absence of "indubitable proof of any irregularity or abuse" committed by the Tanodbayan in the conduct of the preliminary investigation; that such facts and circumstances as would establish petitioner's claim of denial of due process and other constitutionally guaranteed rights could be presented and more fully threshed out at the trial. Said the Sandiganbayan:

That there was a hiatus in the proceedings between the alleged termination of the proceedings before the investigating fiscal on October 25, 1982 and its resolution on April 17, 1985 could have been due to certain factors which do not appear on record and which both parties did not bother to explain or elaborate upon in detail. It could even be logically inferred that the delay may be due to a painstaking an gruelling scrutiny by the Tanodbayan as to whether the evidence presented during the preliminary investigation merited prosecution of a former high-ranking government official. In this respect, We are the considered opinion that the provision of Pres. Decree No. 911, as amended, regarding the resolution of a complaint by the Tanodbayan within ten (10) days from termination of the preliminary investigation is merely "directory" in nature, in view of the nature and extent of the proceedings in said office.

The statutory grounds for the quashal of an information are clearly set forth in concise language in Rule 117, Section 2, of the 1985 Rules on Criminal Procedure and no other grounds for quashal may be entertained by the Court prior to arraignment inasmuch as it would be itself remiss in the performance of its official functions and subject to the charge that it has gravely abused its discretion. Such facts and circumstances which could otherwise justify the

dismissal of the case, such as failure on the part of the prosecution to comply with due process or any other constitutionally-guaranteed rights may presented during the trial wherein evidence for and against the issue involved may be fully threshed out and considered. Regrettably, the accused herein attempts to have the Court grant such a radical relief during this stage of the proceedings which precludes a pre-cocious or summary evaluation of insufficient evidence in support thereof.

This brings us to the crux of the issue at hand. Was petitioner deprived of his constitutional right to due process and the right to "speedy disposition" of the cases against him as guaranteed by the Constitution? May the court, ostrich like, bury its head in the sand, as it were, at the initial stage of the proceedings and wait to resolve the issue only after the trial?

In a number of cases, 1 this Court has not hesitated to grant the so-called "radical relief" and to spare the accused from undergoing the rigors and expense of a full-blown trial where it is clear that he has been deprived of due process of law or other constitutionally guaranteed rights. Of course, it goes without saying that in the application of the doctrine enunciated in those cases, particular regard must be taken of the facts and circumstances peculiar to each case.

Coming to the case at bar, the following relevant facts appear on record and are largely undisputed. The complainant, Antonio de los Reyes, originally filed what he termed "a report" with the Legal Panel of the Presidential Security Command (PSC) on October 1974, containing charges of alleged violations of Rep. Act No. 3019 against then Secretary of Public Information Francisco S. Tatad. The "report" was made to "sleep" in the office of the PSC until the end of 1979 when it became widely known that Secretary (then Minister) Tatad had a falling out with President Marcos and had resigned from the Cabinet. On December 12, 1979, the 1974 complaint was resurrected in the form of a formal complaint filed with the Tanodbayan and docketed as TBP Case No. 8005-16-07. The Tanodbayan acted on the complaint on April 1, 1980-which was around two months after petitioner Tatad's resignation was accepted by Pres. Marcos — by referring the complaint to the CIS, Presidential Security Command, for investigation and report. On June 16, 1980, the CIS report was submitted to the Tanodbayan, recommending the filing of charges for graft and corrupt practices against former Minister Tatad and Antonio L. Cantero. By October 25, 1982, all affidavits and counter-affidavits were in the case was already for disposition by the Tanodbayan. However, it was only on July 5, 1985 that a resolution was approved by the Tanodbayan, recommending the ring of the corresponding criminal informations against the accused Francisco Tatad. Five (5) criminal informations were filed with the Sandiganbayan on June 12, 1985, all against petitioner Tatad alone.

A painstaking review of the facts can not but leave the impression that political motivations played a vital role in activating and propelling the prosecutorial process in this case. Firstly, the complaint came to life, as it were, only after petitioner Tatad had a falling out with President Marcos. Secondly, departing from established procedures prescribed by law for preliminary investigation, which require the submission of affidavits and counter-affidavits by the complainant and the respondent and their witnesses, the Tanodbayan referred the complaint to the Presidential Security Command for finding investigation and report.

We find such blatant departure from the established procedure as a dubious, but revealing attempt to involve an office directly under the President in the prosecutorial process, lending credence to the suspicion that the prosecution was politically motivated. We cannot emphasize too strongly that prosecutors should not allow, and should avoid, giving the impression that their noble office is being used or prostituted, wittingly or unwittingly, for political ends or other purposes alien to, or subversive of, the basic and fundamental objective of serving the interest of justice even handedly, without fear or favor to any and all litigants alike, whether rich or poor, weak or strong, powerless or mighty. Only by strict adherence to the established procedure may the public's perception of the of the prosecutor be enhanced.

Moreover, the long delay in resolving the case under preliminary investigation can not be justified on the basis of the facts on record. The law (P.D. No. 911) prescribes a ten-day period for the prosecutor to resolve a case under preliminary investigation by him from its termination. While we agree with the respondent court that this period fixed by law is merely "directory," yet, on the other hand, it can not be disregarded or ignored completely, with absolute impunity. It certainly can not be assumed that the law has included a provision that is deliberately intended to become meaningless and to be treated as a dead letter.

We find the long delay in the termination of the preliminary investigation by the Tanodbayan in the instant case to be violative of the constitutional right of the accused to due process. Substantial adherence to the requirements of the law governing the conduct of preliminary investigation, including substantial compliance with the time limitation prescribed by the law for the resolution of the case by the prosecutor, is part of the procedural due process constitutionally guaranteed by the fundamental law. Not only under the broad umbrella of the due process clause, but under the constitutional guarantee of "speedy disposition" of cases as embodied in Section 16 of the Bill of Rights (both in the 1973 and the 1987 Constitutions), the inordinate delay is violative of the petitioner's constitutional rights. A delay of close to three (3) years can not be deemed reasonable or justifiable in the light of the circumstance obtaining in the case at bar. We are not impressed by the attempt of the Sandiganbayan to sanitize the long delay by indulging in the speculative assumption that "the delay may be due to a painstaking and gruelling scrutiny by the Tanodbayan as to whether the evidence

presented during the preliminary investigation merited prosecution of a former high ranking government official." In the first place, such a statement suggests a double standard of treatment, which must be emphatically rejected. Secondly, three out of the five charges against the petitioner were for his alleged failure to file his sworn statement of assets and liabilities required by Republic Act No. 3019, which certainly did not involve complicated legal and factual issues necessitating such "painstaking and gruelling scrutiny" as would justify a delay of almost three years in terminating the preliminary investigation. The other two charges relating to alleged bribery and alleged giving of unwarranted benefits to a relative, while presenting more substantial legal and factual issues, certainly do not warrant or justify the period of three years, which it took the Tanodbayan to resolve the case.

It has been suggested that the long delay in terminating the preliminary investigation should not be deemed fatal, for even the complete absence of a preliminary investigation does not warrant dismissal of the information. True-but the absence of a preliminary investigation can be corrected by giving the accused such investigation. But an undue delay in the conduct of a preliminary investigation can not be corrected, for until now, man has not yet invented a device for setting back time.

After a careful review of the facts and circumstances of this case, we are constrained to hold that the inordinate delay in terminating the preliminary investigation and filing the information in the instant case is violative of the constitutionally guaranteed right of the petitioner to due process and to a speedy disposition of the cases against him. Accordingly, the informations in Criminal Cases Nos. 10499, 10500, 10501, 10502 and 10503 should be dismissed. In view of the foregoing, we find it unnecessary to rule on the other issues raised by petitioner.

Accordingly, the Court Resolved to give due course to the petition and to grant the same. The informations in Criminal Cases Nos. 10499, 10500, 10501, 10502 and 10503, entitled "People of the Philippines vs. Francisco S. Tatad" are hereby DISMISSED. The temporary restraining order issued on October 22, 1985 is made permanent.

SO ORDERED.

Teehankee, C.J., Fernan, Narvasa, Melencio-Herrera, Gutierrez, Jr., Cruz, Paras, Feliciano, Gancayco, Padilla, Bidin, Sarmiento, Cortes and Griño-Aquino, JJ., concur.

 

Footnotes

1 Salonga vs. Cruz Pano, et al., 134 SCRA 438; Mean vs. Argel, 115 SCRA 256; Yap vs. Lutero, 105 Phil, 3007; People vs. Zulueta, 89 Phil. 880.

Republic of the PhilippinesSUPREME COURT

Manila

EN BANC

G.R. No. 72670 September 12, 1986

SATURNINA GALMAN, REYNALDO GALMAN and JOSE P. BENGZON, MARY CONCEPCION BAUTISTA, JOAQUIN G. BERNAS; S.J., M. BELLARMINE BERNAS, O.S.B., FRANCISCO I. CHAVEZ, SOLITA COLLAS-MONSOD, SANTIAGO DUMLAO, JR., MARIA FERIA, MARCELO B. FERNAN, FRANCISCO GARCHITORENA, * ANDREW GONZALEZ, JOSE C. LAURETA, SALVADOR P. LOPEZ, FELIX K. MARAMBA, JR., CECILIA MUÑOZ PALMA. JAIME V. ONGPIN, FELIX PEREZ, JOSE B.L. REYES, JOSE E. ROMERO, JR., RAMON DEL ROSARIO, JR., RICARDO J. ROMULO, AUGUSTO SANCHEZ, EMMANUEL V. SORIANO, DAVID SYCIP, ENRIQUE SYQUIA, CRISTINA TAN, JESUS VARGAS, BERNARDO M. VILLEGAS, VICENTE JAYME, **,petitioners, vs.SANDIGANBAYAN, FIRST DIVISION (represented by Justice Manuel Pamaran, Chairman, and Justices Augusto Amores and Bienvenido Vera Cruz, Members), JUSTICE BERNARDO FERNANDEZ (Ombudsman) and GEN. FABIAN C. VER, MAJ. GEN. PROSPERO A. OLIVAS, BRIG. GEN. LUFHER A. CUSTODIO, COL. ARTURO G. CUSTODIO, COL. VICENTE B. TIGAS, JR., CAPT. FELIPE VALERIO, CAPT. LLEWELYN KAVINTA, CAPT. ROMEO M. BAUTISTA, 2nd LT. JESUS CASTRO, SGT. PABLO MARTINEZ, SGT. ARNULFO DE MESA, SGT. TOMAS FERNANDEZ, SGT. CLARO LAT, SGT. FILOMENO MIRANDA, SGT. ROLANDO C. DE GUZMAN, SGT. ERNESTO M. MATEO, SGT. RODOLFO M. DESOLONG, SGT. LEONARDO MOJICA, SGT. PEPITO TORIO, SGT. ARMANDO DELA CRUZ, SGT. PROSPERO A. BONA, CIC ROGELIO MORENO, CIC MARIO LAZAGA, AIC CORDOVA G. ESTELO, AIC ANICETO ACUPIDO and HERMILO GOSUICO, *** , respondents.

Lupino Lazaro and Arturo M. de Castro for petitioners.

Antonio R. Coronel for respondents Gen. Ver and Col. Tigas, Jr.

Rodolfo U. Jimenez for respondent Brig. Gen. Custodio.

Ramon M. Bernaldo for respondent H. Gosuico.

Romulo Quimbo for respondent B. Vera Cruz.

Norberto J. Quisumbing for respondent P. Olivas.

Felix Solomon for respondent Col. A. Custodio.

Alfonso S. Cruz for B. Fernandez.

Edgardo B. Gayos for M. Pamaran.

R E S O L U T I O N

 

TEEHANKEE, C.J.:

Last August 21st, our nation marked with solemnity and for the first time in freedom the third anniversary of the treacherous assassination of foremost opposition leader former Senator Benigno "Ninoy" Aquino, Jr. imprisoned for almost eight years since the imposition of martial law in September, 1972 by then President Ferdinand E. Marcos, he was sentenced to death by firing squad by a military tribunal for common offenses alleged to have been committed long before the declaration of martial law and whose jurisdiction over him as a civilian entitled to trial by judicial process by civil courts he repudiated. Ninoy pleaded in vain that the military tribunals are admittedly not courts but mere instruments and subject to the control of the President as created by him under the General Orders issued by him as Commander-in-Chief of the Armed Forces of the Philippines, and that he had already been publicly indicted and adjudged guilty by the President of the charges in a nationwide press conference held on August 24, 1971 when he declared the evidence against Ninoy "not only strong but overwhelming ." 1 This followed the Plaza Miranda bombing of August 21, 1971 of the proclamation rally of the opposition Liberal Party candidates for the November, 1971 elections (when eight persons were killed and practically all of the opposition candidates headed by Senator Jovito Salonga and many more were seriously injured), and the suspension of the privilege of the writ of habeas corpus under Proclamation No. 889 on August 23, 1971. The massacre was instantly attributed to the communists but the truth has never been known. But the then President never filed the said charges against Ninoy in the civil courts.

Ninoy Aquino was nevertheless thereafter allowed in May, 1980 to leave the country to undergo successful heart surgery. After three years of exile and despite the regime's refusal to give him a passport, he sought to return home "to strive for a genuine national reconciliation founded on justice." He was to be cold-bloodedly killed while under escort away by soldiers from his plane that had just landed at the Manila International Airport on that fateful day at past 1 p.m. His brain was smashed by a bullet fired point blank into the back of his head by a murderous assassin, notwithstanding that the airport was ringed by airtight security of close to 2,000 soldiers and "from a military viewpoint, it (was) technically impossible to get inside (such) a cordon." 2 The military investigators reported within a span of three hours that the man who shot Aquino (whose identity was then supposed to be unknown and was revealed only days later as Rolando Galman, although he was the personal friend of accused Col. Arturo Custodio who picked him up from his house on August 17, 1983) was a communist-hired gunman, and that the military escorts gunned him down in turn. The military later filmed a re-enactment of the killing scripted according to this version and continuously replayed it on all TV channels as if it were taken live on the spot. The then President instantly accepted the military version and repeated it in a nationally televised press conference that he gave late in the evening of August 22, 1983, wherein he said, in order to induce disbelief that the military had a hand in the killing, that "if the purpose was to eliminate Aquino, this was not the way to do it."

The national tragedy shocked the conscience of the entire nation and outraged the free world. The large masses of people who joined in the ten-day period of national mourning and came out in millions in the largest and most orderly public turnout for Ninoy's funeral reflected their grief for his martyrdom and their yearning for the truth, justice and freedom.

The then President was constrained to create a Fact Finding Board 3 to investigate "the treacherous and vicious assassination of former Senator Benigno S. Aquino, Jr. on August 21, 1983 [which] has to all Filipinos become a national tragedy and national shame specially because of the early distortions and exaggerations in both foreign and local media 4 so that all right thinking and honest men desire to ventilate the truth through fare, independent and dispassionate investigation by prestigious and free investigators." After two false starts, 5 he finally constituted the Board 6 on October 22, 1983 which held 125 hearing days commencing November 3, 1983 (including 3 hearings in Tokyo and 8 hearings in Los Angeles, California) and heard the testimonies of 194 witnesses recorded in 20,377 pages of transcripts, until the submission of their minority and majority reports to the President on October 23 and 24, 1984. This was to mark another first anywhere in the world wherein the minority report was submitted one day ahead by the ponente thereof, the chairman, who was received congenially and cordially by the then President who treated the report as if it were the majority report instead of a minority report of one and forthwith referred it to respondent Tanodbayan "for final resolution through the legal system" and for trial in the Sandiganbayan

which was better known as a graft court; and the majority report of the four other members was submitted on the following day to the then President who coldly received them and could scarcely conceal his instant rejection of their report with the grim statement that "I hope you can live with your conscience with what you have done."

The fact is that both majority and minority reports were one in rejecting the military version as propounded by the chief investigator, respondent Gen. Olivas, that Rolando Galman was the NPA-hired assassin, stating that "the evidence shows [to the contrary] that Rolando Galman had no subversive affiliations." They were in agreement that "only the soldiers in the staircase with Sen. Aquino could have shot him;" that Galman, the military's "fall guy" was "not the assassin of Sen. Aquino and that "the SWAT troopers who gunned down Galman and the soldiers who escorted Sen. Aquino down the service stairs, deliberately and in conspiracy with one another, gave a perjured story to us regarding the alleged shooting by Galman of Sen. Aquino and the mowing down, in turn, of Galman himself;" in short, that Ninoy's assassination was the product of a military conspiracy, not a communist plot The only difference between the two reports is that the majority report found all the twenty-six private respondents abovenamed in the title of the case headed by then AFP Chief General Fabian C. Ver involved in the military conspiracy and therefore "indictable for the premeditated killing of Senator Benigno S. Aquino, Jr. and Rolando Galman at the MIA on August 21, 1983;" while the chairman's minority report would exclude nineteen of them and limit as plotters "the six persons who were on the service stairs while Senator Aquino was descending" and "General Luther Custodio . . . because the criminal plot could not have been planned and implemented without his intervention."

The chairman wrote in her minority report (somewhat prophetically) that "The epilogue to our work lies in what will transpire in accordance with the action that the Office of the President may thereafter direct to be taken. "The four-member majority report (also prophetically) wrote in the epilogue (after warning the forces who adhere to an alien and intolerable political ideology against unscrupulously using the report "to discredit our traditionally revered institutions"), that "the tragedy opened our eyes and for the first time confirmed our worst fears of what unchecked evil would be capable of doing." They wrote:

The task of the Board was clear and unequivocal. This task was not only to determine the facts and circumstances surrounding the death of the late former Senator. Of greater significance is the awesome responsibility of the Board to uphold righteousness over evil, justice over injustice, rationality over irrationality, humaneness over inhumanity. The task was indeed a painful test, the inevitable result of which will restore our country's honored place among the sovereign nations of the free world where peace, law and order, freedom, and justice are a way of life.

More than any other event in contemporary Philippine history, the killing of the late former Senator Aquino has brought into sharper focus, the ills pervading Philippine society. It was the concretization of the horror that has been haunting this country for decades, routinely manifested by the breakdown of peace and order, economic instability, subversion, graft and corruption, and an increasing number of abusive elements in what are otherwise noble institutions in our country-the military and law enforcement agencies. We are, however, convinced that, by and large, the great majority of the officers and men of these institutions have remained decent and honorable, dedicated to their noble mission in the service of our country and people.

The tragedy opened our eyes and for the first time confirmed our worst fears of what unchecked evil would be capable of doing. As former Israeli Foreign Minister Abba Eban observes. "Nobody who has great authority can be trusted not to go beyond its proper limits." Social apathy, passivity and indifference and neglect have spawned in secret a dark force that is bent on destroying the values held sacred by freedom-loving people.

To assert our proper place in the civilized world, it is imperative that public officials should regard public service as a reflection of human Ideals in which the highest sense of moral values and integrity are strictly required.

A tragedy like that which happened on August 21, 1983, and the crisis that followed, would have normally caused the resignation of the Chief of the Armed Forces in a country where public office is viewed with highest esteem and respect and where the moral responsibilities of public officials transcend all other considerations.

It is equally the fact that the then President through all his recorded public acts and statements from the beginning disdained and rejected his own Board's above findings and insisted on the military version of Galman being Ninoy's assassin. In upholding this view that "there is no involvement of anyone in his government in the assassination," he told David Briscoe (then AP Manila Bureau Chief in a Radio-TV interview on September 9, 1983 that "I am convinced that if any member of my government were involved, I would have known somehow ... Even at a fairly low level, I would have known. I know how they think. I know what they are thinking of." 7 He told CBS in another interview in May, 1984 (as his Fact Finding Board was holding its hearings) the following:

CBS: But indeed there has been recent evidence that seems to contradict earlier reports, namely, the recent evidence seems to indicate that some of the guards may have been responsible (for shooting Ninoy).

MARCOS: Well, you are of course wrong. What you have been reading are the newspapers and the newspaper reports have been biased. The evidence still proves that Galman was the killer. The evidence also shows that there were intelligence reports connecting the communist party to the killing. 8

In his reply of October 25, 1984 to General Ver's letter of the same date going on leave of absence upon release of the Board's majority report implicating him, he wrote that "(W)e are even more aware, general, that the circumstances under which the board has chosen to implicate you in its findings are fraught with doubt and great contradictions of opinion and testimony. And we are deeply disturbed that on the basis of so-called evidence, you have been so accused by some members of the Board," and extended "My very best wishes to you and your family for a speedy resolution of your case," 9 even as he announced that he would return the general to his position as AFP Chief "if he is acquitted by the Sandiganbayan." In an interview on June 4, 1985 with the Gamma Photo Agency, as respondent court was hearing the cases, he was quoted as saying that "as will probably be shown, those witnesses (against the accused) are perjured witnesses." 10

It was against this setting that on November 11, 1985 petitioners Saturnina Galman and Reynaldo Galman, mother and son, respectively, of the late Rolando Galman, and twenty-nine (29) other petitioners, composed of three former Justices of this Court, five incumbent and former university presidents, a former AFP Chief of Staff, outstanding members of the Philippine Bar and solid citizens of the community, filed the present action alleging that respondents Tanodbayan and Sandiganbayan committed serious irregularities constituting mistrial and resulting in miscarriage of justice and gross violation of the constitutional rights of the petitioners and the sovereign people of the Philippines to due process of law. They asserted that the Tanodbayan did not represent the interest of the people when he failed to exert genuine and earnest efforts to present vital and important testimonial and documentary evidence for the prosecution and that the Sandiganbayan Justices were biased, prejudiced and partial in favor of the accused, and that their acts "clouded with the gravest doubts the sincerity of government to find out the truth about the Aquino assassination." Petitioners prayed for the immediate issuance of a temporary restraining order restraining the respondent Sandiganbayan from rendering a decision on the merits in the pending criminal cases which it had scheduled on November 20, 1985 and that judgment be rendered

declaring a mistrial and nullifying the proceedings before the Sandiganbayan and ordering a re-trial before an impartial tribunal by an unbiased prosecutor. 10-a

At the hearing on November 18, 1985 of petitioners' prayer for issuance of a temporary restraining order enjoining respondent court from rendering a decision in the two criminal cases before it, the Court resolved by nine-to-two votes 11 to issue the restraining order prayed for. The Court also granted petitioners a five-day period to file a reply to respondents' separate comments and respondent Tanodbayan a three-day period to submit a copy of his 84-page memorandum for the prosecution as filed in the Sandiganbayan, the signature page of which alone had been submitted to the Court as Annex 5 of his comment.

But ten days later on November 28, 1985, the Court by the same nine-to- two-vote ratio in reverse, 12 resolved to dismiss the petition and to lift the temporary restraining order issued ten days earlier enjoining the Sandiganbayan from rendering its decision. 13 The same Court majority denied petitioners' motion for a new 5-day period counted from receipt of respondent Tanodbayan's memorandum for the prosecution (which apparently was not served on them and which they alleged was "very material to the question of his partiality, bias and prejudice" within which to file a consolidated reply thereto and to respondents' separate comments, by an eight-to-three vote, with Justice Gutierrez joining the dissenters. 14

On November 29, 1985, petitioners filed a motion for reconsideration, alleging that the dismissal did not indicate the legal ground for such action and urging that the case be set for a full hearing on the merits because if the charge of partiality and bias against the respondents and suppression of vital evidence by the prosecution are proven, the petitioners would be entitled to the reliefs demanded: The People are entitled to due process which requires an impartial tribunal and an unbiased prosecutor. If the State is deprived of a fair opportunity to prosecute and convict because certain material evidence is suppressed by the prosecution and the tribunal is not impartial, then the entire proceedings would be null and void. Petitioners prayed that the Sandiganbayan be restrained from promulgating their decision as scheduled anew on December 2, 1985.

On December 5, 1985, the Court required the respondents to comment on the motion for reconsideration but issued no restraining order. Thus, on December 2, 1985, as scheduled, respondent Sandiganbayan issued its decision acquitting all the accused of the crime charged, declaring them innocent and totally absolving them of any civil liability. This marked another unusual first in that respondent Sandiganbayan in effect convicted the very victim Rolando Galman (who was not on trial) as the assassin of Ninoy contrary to the very information and evidence submitted by the prosecution. In opposition, respondents submitted that with the Sandiganbayan's verdict of acquittal, the instant case had become moot and

academic. On February 4, 1986, the same Court majority denied petitioners' motion for reconsideration for lack of merit, with the writer and Justice Abad Santos maintaining our dissent.

On March 20, 1986, petitioners filed their motion to admit their second motion for reconsideration attached therewith. The thrust of the second motion for reconsideration was the startling and theretofore unknown revelations of Deputy Tanodbayan Manuel Herrera as reported in the March 6, 1986 issue of the Manila Times entitled "Aquino Trial a Sham," that the then President had ordered the respondents Sandiganbayan and Tanodbayan Bernardo Fernandez and the prosecution panel headed by Herrera to whitewash the criminal cases against the 26 respondents accused and produce a verdict of acquittal.

On April 3, 1986, the Court granted the motion to admit the second motion for reconsideration and ordered the respondents to comment thereon. 15

Respondent Tanodbayan Bernardo Fernandez stated in his Manifestation filed on April 11, 1986 that he had ceased to hold office as Tanodbayan as of April 8, 1986 when he was replaced by the new Tanodbayan, Raul M. Gonzales, but reiterating his position in his comment on the petition, he added "relative to the reported alleged revelations of Deputy Tanodbayan Manuel Herrera, herein respondent never succumbed to any alleged attempts to influence his actuations in the premises, having instead successfully resisted perceived attempts to exert pressure to drop the case after preliminary investigation, and actually ordered the filing and prosecution of the two (2) murder cases below against herein private party respondents." He candidly admitted also in his memorandum: "There is not much that need be said about the existence of pressure. That there were pressures can hardly be denied; in fact, it has never been denied." 15-a He submitted that "even as he vehemently denies insinuations of any direct or indirect complicity or participation in any alleged attempt to supposedly whitewash the cases below, . . . should this Honorable Court find sufficient cause to justify the reopening and retrial of the cases below, he would welcome such development so that any wrong that had been caused may be righted and so that, at the very least the actuations of herein respondent in the premises may be reviewed and reexamined, confident as he is that the end will show that he had done nothing in the premises that violated his trust as Tanodbayan (Ombudsman)." New Tanodbayan Raul M. Gonzales in his comment of April 14, 1986 "interposed no objection to the reopening of the trial of the cases . . . as, in fact, he urged that the said cases be reopened in order that justice could take its course."

Respondents Justices of the Sandiganbayan First Division in their collective comment of April 9, 1986 stated that the trial of the criminal cases by them was valid and regular and decided

on the basis of evidence presented and the law applicable, but manifested that "if it is true that the former Tanodbayan and the Deputy Tanodbayan, Chief of the Prosecution Panel, were pressured into suppressing vital evidence which would probably alter the result of the trial, Answering Respondents would not interpose any objection to the reopening of those cases, if only to allow justice to take its course." Respondent Sandiganbayan Justice Bienvenido C. Vera Cruz, in a separate comment, asserted that he passed no note to anyone; the note being bandied about is not in his handwriting; he had nothing to do with the writing of the note or of any note of any kind intended for any lawyer of the defense or even of the prosecution; and requested for an investigation by this Court to settle the note passing issue once and for all.

Deputy Tanodbayan Manuel Herrera, in his comment of April 14, 1986 affirmed the allegations in the second motion for reconsideration that he revealed that the Sandiganbayan Justices and Tanodbayan prosecutors were ordered by Marcos to whitewash the Aquino-Galman murder case. He amplified his revelations, as follows:

1. AB INITIO, A. VERDICT OF ACQUITTAL!

Incidents during the preliminary investigation showed ominous signs that the fate of the criminal case on the death of Ex-Senator Benigno Aquino and Rolando Galman on August 21, 1983 was doomed to an ignominous end. Malacanang wanted dismissal-to the extent that a prepared resolution was sent to the Investigating Panel (composed of the undersigned, Fiscals Ernesto Bernabe and Leonardo Tamayo) for signature. This, of course, was resisted by the panel, and a resolution charging all the respondents as principals was forwarded to the Tanodbayan on January 10, 1985.

2. MALACAÑANG CONFERENCE PLANNED SCENARIO OF TRIAL

At 6:00 p.m. of said date (January 10) Mr. Ferdinand E. Marcos (the former President) summoned to Malacañang Justice Bernardo Fernandez (the Tanodbayan), Sandiganbayan Justice Manuel Pamaran (the Presiding Justice) and an the members of the Panel

Also present at the meeting were Justice Manuel Lazaro (the Coordinator) and Mrs. Imelda R. Marcos, who left earlier, came back and left again. The former President had a copy of the panel's signed resolution (charging all accused as principals), evidently furnished him in advance, and with prepared notes on the contents thereof.

The former President started by vehemently maintaining that Galman shot Aquino at the tarmac. Albeit initially the undersigned argued against the theory, to remain silent was the more discreet posture when the former President became emotional (he was quite sick then).

During a good part of the conference, the former President talked about Aquino and the communists, lambasting the Agrava Board, specially the Legal Panel. Shifting to the military he rumbled on such statements as: "It will be bloody . . . Gen. Ramos, though close to me, is getting ambitious and poor Johnny does not know what to do". . . 'our understanding with Gen. Ramos is that his stint is only temporary, but he is becoming ambitious "the boys were frantic when they heard that they will be charged in court, and wig be detained at city jail."

From outright dismissal, the sentiment veered towards a more pragmatic approach. The former President more or less conceded that for political and legal reasons all the respondents should be charged in court, Politically, as it will become evident that the government was serious in pursuing the case towards its logical conclusion, and thereby ease public demonstrations; on the other hand, legally, it was perceived that after (not IF) they are acquitted, double jeopardy would inure. The former President ordered then that the resolution be revised by categorizing the participation of each respondent.

In the matter of custody of the accused pendente lite the Coordinator was ordered to get in touch with Gen. Narciso Cabrera, Gen. Vicente Eduardo and Director Jolly Bugarin to put on record that they had no place in their respective institutions. The existence of PD No. 1950 (giving custody to commanding officers of members of AFP charged in court) was never mentioned.

It was decided that the presiding justice (First Division) would personally handle the trial, and assurance was made by him that it would be finished in four to six months, pointing out that, with the recent effectivity of the New Rules on Criminal Procedure, the trial could be expedited.

Towards the end of the two-hour meeting and after the script had been tacitly mapped out, the former President uttered: "Mag moro-moro na lang kayo."

The parting words of the former President were: "Thank you for your cooperation. I know how to reciprocate."

While still in the palace grounds on the way out, the undersigned manifested his desire to the Tanodbayan to resign from the panel, or even the office. This, as well as other moves to this effect, had always been refused. Hoping that with sufficient evidence sincerely and efficiently presented by the prosecution, all involves in the trial would be conscience-pricked and realize the futility and injustice of proceeding in accordance with the script, the undersigned opted to say on.

Herrera further added details on the "implementation of the script," such as the holding of a "make-believe raffle" within 18 minutes of the filing of the Informations with the Sandiganbayan at noon of January 23, 1985, while there were no members of the media; the installation of TV monitors directly beamed to Malacanang; the installation of a "war room" occupied by the military; attempts to direct and stifle witnesses for the prosecution; the suppression of the evidence that could be given by U.S. Airforce men about the "scrambling" of Ninoy's plane; the suppression of rebuttal witnesses and the bias and partiality of the Sandiganbayan; its cavalier disregard of his plea that it "should not decide these cases on the merits without first making a final ruling on the Motion for Inhibition;" and the Presiding Justice's over-kill with the declaration that "the Court finds all accused innocent of the crimes charged in the two informations, and accordingly, they incur neither criminal nor civil liability," adding that "in the almost twenty years that the undersigned has been the prosecutor in the sala of the Presiding Justice this is the only occasion where civil liability is pronounced in a decision of acquittal. " He "associated himself with the motion for reconsideration and likewise prayed that the proceedings in the Sandiganbayan and its decision be declared null and void."

New Solicitor General Sedfrey Ordoñez' comment of April 25, 1986 submitted that a declaration of mistrial will depend on the veracity of the evidence supportive of petitioners' claim of suppression of evidence and collusion. He submitted that this would require reception of evidence by a Court-appointed or designated commissioner or body of commissioners (as was done in G.R. No. 71316, Fr. Romano case; and G.R. No. 61016, Morales case; and G.R. No. 70054, Banco Filipino case); and that if petitioners' claim were substantiated, a reopening of the double murder case is proper to avoid a miscarriage of justice since the verdict of acquittal would no longer be a valid basis for a double jeopardy claim.

Respondents-accused opposed the second motion for reconsideration and prayed for its denial. Respondent Olivas contended that the proper step for the government was to file a direct action to annul the judgment of acquittal and at a regular trial present its evidence of collusion and pressures.

As a whole, all the other respondents raised the issue of double jeopardy, and invoked that the issues had become moot and academic because of the rendition of the Sandiganbayan's judgment of acquittal of all respondents- accused on December 2, 1985, with counsels for respondents Ver and Tigas, as well as Olivas, further arguing that assuming that the judgment of acquittal is void for any reason, the remedy is a direct action to annul the judgment where the burden of proof falls upon the plaintiff to establish by clear, competent and convincing evidence the cause of the nullity.

After Petitioners had filed their consolidated reply, the Court resolved per its resolution of June 5, 1986 to appoint a three-member commission composed of retired Supreme Court Justice Conrado Vasquez, chairman, and retired Intermediate Appellate Court Justices Milagros German and Eduardo Caguioa as members, to hear and receive evidence, testimonial and documentary, of the charges of collusion and pressures and relevant matters, upon prior notice to all parties, and to submit their findings to this Court for proper disposition. The Commission conducted hearings on 19 days, starting on June 16, 1986 and ending on July 16, 1986, On the said last day, respondents announced in open hearing that they decided to forego the taking of the projected deposition of former President Marcos, as his testimony would be merely corroborative of the testimonies of respondents Justice Pamaran and Tanodbayan Fernandez. On July 31, 1986, it submitted its extensive 64-page Report 16 wherein it discussed fully the evidence received by it and made a recapitulation of its findings in capsulized form, as follows:

1. The Office of the Tanodbayan, particularly Justice Fernandez and the Special Investigating Panel composed of Justice Herrera, Fiscal Bernabe and Special Prosecutor Tamayo, was originally of the view that all of the twenty-six (26) respondents named in the Agrava Board majority report should all be charged as principals of the crime of double murder for the death of Senator Benigno Aquino and Rolando Galman.

2. When Malacanang learned of the impending filing of the said charge before the Sandiganbayan, the Special Investigating Panel having already prepared a draft Resolution recommending such course of action, President Marcos summoned Justice Fernandez, the tree members of the Special

Investigating Panel, and justice Pamaran to a conference in Malacanang in the early evening of January 10, 1985.

3. In said conference, President Marcos initially expressed his disagreement with the recommendation of the Special Investigating Panel and disputed the findings of the Agrava Board that it was not Galman who shot Benigno Aquino.

4. Later in the conference, however, President Marcos was convinced of the advisability of filing the murder charge in court so that, after being acquitted as planned, the accused may no longer be prosecuted in view of the doctrine of double jeopardy.

5. Presumably in order to be assured that not all of the accused would be denied bail during the trial, considering that they would be charged with capital offenses, President Marcos directed that the several accused be "categorized" so that some of them would merely be charged as accomplices and accessories.

6. In addition to said directive, President Marcos ordered that the case be handled personally by Justice Pamaran who should dispose of it in the earliest possible time.

7. The instructions given in the Malacanang conference were followed to the letter; and compliance therewith manifested itself in several specific instances in the course of the proceedings, such as, the changing of the resolution of the special investigating panel, the filing of the case with the Sandiganbayan and its assignment to Justice Pamaran, suppression of some vital evidence, harassment of witnesses, recantation of witneses who gave adverse testimony before the Agrava Board, coaching of defense counsels, the hasty trial, monitoring of proceedings, and even in the very decision rendered in the case.

8. That that expression of President Marcos' desire as to how he wanted the Aquino-Galman case to be handled and disposed of constituted sufficient pressure on those involved in said task to comply with the same in the subsequent course of the proceedings.

9. That while Justice Pamaran and Justice Fernandez manifested no revulsion against complying with the Malacañang directive, justice Herrera played his role with manifestly ambivalent feelings.

10. Sufficient evidence has been ventilated to show a scripted and pre-determined manner of handling and disposing of the Aquino-Galman murder case, as stage-managed from Malacañang and performed by willing dramatis personnae as well as by recalcitrant ones whipped into line by the omnipresent influence of an authoritarian ruler.

The Commission submitted the following recommendation.

Considering the existence of adequate credible evidence showing that the prosecution in the Aquino-Galman case and the Justices who tried and decided the same acted under the compulsion of some pressure which proved to be beyond their capacity to resist, and which not only prevented the prosecution to fully ventilate its position and to offer all the evidences which it could have otherwise presented, but also predetermined the final outcome of the case, the Commission is of the considered thinking and belief, subject to the better opinion and judgment of this Honorable Court that the proceedings in the said case have been vitiated by lack of due process, and hereby respectfully recommends that the prayer in the petition for a declaration of a mistrial in Sandiganbayan Cases Nos. 10010 and 10011 entitled "People vs. Luther Custodia et al.," be granted.

The Court per its Resolution of July 31, 1986 furnished all the parties with copies of the Report and required them to submit their objections thereto. It thereafter heard the parties and their objections at the hearing of August 26, 1986 and the matter was submitted for the Court's resolution.

The Court adopts and approves the Report and its findings and holds on the basis thereof and of the evidence received and appreciated by the Commission and duly supported by the facts of public record and knowledge set forth above and hereinafter, that the then President (code named Olympus) had stage-managed in and from Malacanang Palace "a scripted and pre-determined manner of handling and disposing of the Aquino-Galman murder case;" and that "the prosecution in the Aquino Galman case and the Justices who tried and decided the same acted under the compulsion of some pressure which proved to be beyond their capacity to resist', and which not only prevented the prosecution to fully ventilate its position and to offer all the evidences which it could have otherwise presented, but also pre-determined the

final outcome of the case" of total absolution of the twenty-six respondents accused of all criminal and civil liability.

The Court finds that the Commission's Report (incorporated herein by reference) and findings and conclusions are duly substantiated by the evidence and facts of public record. Composed of distinguished members of proven integrity with a combined total of 141 years of experience in the practice of law (55 years) and in the prosecutoral and judicial services (86 years in the trial and appellate courts), experts at sifting the chaff from the grain, 17 the Commission properly appraised the evidences presented and denials made by public respondents, thus:

The desire of President Marcos to have the Aquino-Galman case disposed of in a manner suitable to his purposes was quite understandable and was but to be expected. The case had stirred unprecedented public outcry and wide international attention. Not invariably, the finger of suspicion pointed to those then in power who supposedly had the means and the most compelling motive to eliminate Senator Aquino. A day or so after the assassination, President Marcos came up with a public statement aired over television that Senator Aquino was killed not by his military escorts, but by a communist hired gun. It was, therefore, not a source of wonder that President Marcos would want the case disposed of in a manner consistent with his announced theory thereof which, at the same time, would clear his name and his administration of any suspected guilty participation in the assassination.

The calling of the conference was undoubtedly to accomplish this purpose. . . .

President Marcos made no bones to conceal his purpose for calling them. From the start, he expressed irritation and displeasure at the recommendation of the investigating panel to charge all of the twenty-six (26) respondents as principals of the crime of double murder. He insisted that it was Galman who shot Senator Aquino, and that the findings of the Agrava Board were not supported by evidence that could stand in court. He discussed and argued with Justice Herrera on this point. Midway in the course of the discussion, mention was made that the filing of the charge in court would at least mollify public demands and possibly prevent further street demonstrations. It was further pointed out that such a procedure would be a better arrangement because, if the accused are charged in court and subsequently acquitted, they may claim the benefit of the doctrine of double

jeopardy and thereby avoid another prosecution if some other witnesses shall appear when President Marcos is no longer in office.

xxx xxx xxx

After an agreement was reached as to filing the case, instead of dismissing it, but with some of the accused to be charged merely as accomplices or accessories, and the question of preventive custody of the accused having thereby received satisfactory solution, President Marcos took up the matter of who would try the case and how long it would take to be finished.

According to Justice Herrera, President Marcos told Justice Pamaran 'point blank' to personally handle the case. This was denied by Justice Pamaran. No similar denial was voiced by Justice Fernandez in the entire course of his two-day testimony. Justice Pamaran explained that such order could not have been given inasmuch as it was not yet certain then that the Sandiganbayan would try the case and, besides, cases therein are assigned by raffle to a division and not to a particular Justice thereof.

It was preposterous to expect Justice Pamaran to admit having received such presidential directive. His denial, however, falls to pieces in the light of the fact that the case was indeed handled by him after being assigned to the division headed by him. A supposition of mere coincidence is at once dispelled by the circumstance that he was the only one from the Sandiganbayan called to the Malacanang conference wherein the said directive was given. . . .

The giving of such directive to Justice Pamaran may also be inferred from his admission that he gave President Marcos the possible time frame when asked as to how long it would take him to finish the case.

The testimony of Justice Herrera that, during the conference, and after an agreement was reached on filing the case and subsequently acquitting the accused, President Marcos told them "Okay, mag moro-moro na lamang kayo;" and that on their way out of the room President Marcos expressed his thanks to the group and uttered "I know how to reciprocate," did not receive any denial or contradiction either on the part of justice Fernandez or justice Pamaran. (No other person present in the conference was presented by the respondents. Despite an earlier manifestation by the respondents of their

intention to present Fiscal Bernabe and Prosecutor Tamayo, such move was abandoned without any reason having been given therefor.)

The facts set forth above are all supported by the evidence on record. In the mind of the Commission, the only conclusion that may be drawn therefrom is that pressure from Malacanang had indeed been made to bear on both the court and the prosecution in the handling and disposition of the Aquino-Galman case. The intensity of this pressure is readily deductible from the personality of the one who exerted it, his moral and official ascendancy over those to whom his instructions were directed, the motivation behind such instructions, and the nature of the government prevailing at that time which enabled, the then head of state to exercise authoritarian powers. That the conference called to script or stage-manage the prosecution and trial of the Aquino-Galman case was considered as something anomalous that should be kept away from the public eye is shown by the effort to assure its secrecy.None but those directly involved were caned to attend. The meeting was held in an inner room of the Palace. Only the First Lady and Presidential Legal Assistant Justice Lazaro were with the President. The conferees were told to take the back door in going to the room where the meeting was held, presumably to escape notice by the visitors in the reception hall waiting to see the President. Actually,no public mention alas ever made of this conference until Justice Herrera made his expose some fifteen (15) months later when the former president was no longer around.

President Marcos undoubtedly realized the importance of the matter he wanted to take up with the officials he asked to be summoned. He had to do it personally, and not merely through trusted assistants. The lack of will or determination on the part of Justice Fernandez and Justice Pamaran to resist the presidential summons despite their realization of its unwholesome implications on their handling of the celebrated murder case may be easily inferred from their unquestioned obedience thereto. No effort to resist was made, despite the existence of a most valid reason to beg off, on the lame excuses that they went there out of "curiosity," or "out of respect to the Office of the President," or that it would be 'unbecoming to refuse a summons from the President.' Such frame of mind only reveals their susceptibility to presidential pressure and lack of capacity to resist the same. The very acts of being summoned to Malacanang and their ready acquiescence thereto under the circumstances then obtaining, are in themselves pressure dramatized and exemplified Their abject deference to President Marcos may likewise be inferred from the admitted fact that, not having been given seats during the

two-hour conference (Justice Fernandez said it was not that long, but did not say how long) in which President Marcos did the talking most of the time, they listened to him on their feet. Verily, it can be said that any avowal of independent action or resistance to presidential pressure became illusory from the very moment they stepped inside Malacanang Palace on January 10, 1985.18

The Commission pinpointed the crucial factual issue thus: "the more significant inquiry is on whether the Sandiganbayan and the Office of the Tanodbayan actually succumbed to such pressure, as may be gauged by their subsequent actuations in their respective handling of the case." It duly concluded that "the pressure exerted by President Marcos in the conference held on January 10, 1985 pervaded the entire proceedings of the Aquino Galman [murder] cases" as manifested in several specific incidents and instances it enumerated in the Report under the heading of "Manifestations of Pressure and Manipulation."

Suffice it to give hereinbelow brief excerpts:—

1. The changing of the original Herrera panel draft Resolution charging all the twenty-six accused as principals by conspiracy by categorizing and charging 17 as principals, Generals Ver and Olivas and 6 others as accessories and the civilian as accomplice, and recommending bail for the latter two categories: "The categorization may not be completely justified by saying that, in the mind of Justice Fernandez, there was no sufficient evidence to justify that all of the accused be charged as principals. The majority of the Agrava Board found the existence of conspiracy and recommended that all of the accused be charged accordingly. Without going into the merit of such finding, it may hardly be disputed that, in case of doubt, and in accordance with the standard practice of the prosecution to charge accused with the most serious possible offense or in the highest category so as to prevent an incurable injustice in the event that the evidence presented in the trial will show his guilt of the graver charge, the most logical and practical course of action should have been, as originally recommended by the Herrera panel, to charge all the accused as principals. As it turned out, Justice Fernandez readily opted for categorization which, not surprisingly, was in consonance with the Malacañang instruction." It is too much to attribute to coincidence that such unusual categorization came only after the then President's instruction at Malacanang when Gen. Ver's counsel, Atty. Coronel, had been asking the same of Tanodbayan Fernandez since November, 1984; and "Justice Fernandez himself, admit(ted) that, as of that time, [the Malacanang conference on January 10, 1985], his own view was in conformity with that of the Special Investigating Panel to charge all of the twenty-six (26) respondents as principals of the crime of double murder." 19 As the Commission further noted, "Justice Fernandez never denied the claim of Justice Herrera that the draft resolution of January 10, 1985 (Exhibit 'B-1') [charging all 26 accused as principals] was to have been the subject of a press conference on

the afternoon of said date which did not go through due to the summons for them to go to Malacanang in the early evening of said date."20

2. Suppression of vital evidence and harassment of witnesses:" Realizing, no doubt, that a party's case is as strong as the evidence it can present, unmistakable and persistent efforts were exerted in behalf of the accused to weaken the case of the prosecution and thereby assure and justify [the accused's] eventual scripted acquittal. Unfavorable evidences were sought to be suppressed, and some were indeed prevented from being ventilated. Adverse witnesses were harassed, cajoled, perjured or threatened either to refrain from testifying or to testify in a manner favorable to the defense."

The Report specified the ordeals of the prosecution witnesses: 21 Cesar Loterina, PAL employee, Roberta Masibay, Galman's step-daughter who recanted their testimonies before the Fact Finding Board and had to be discarded as prosecution witnesses before at the trial. WitnessesViesca and Rañas who also testified before the Board "disappeared all of a sudden and could not be located by the police. The Commission narrated the efforts to stifle Kiyoshi Wakamiya eyewitness who accompanied Ninoy on his fateful flight on August 21, 1983 and described them as "palpable, if crude and display(ing) sheer abuse of power." Wakamiya was not even allowed to return to Manila on August 20, 1984 to participate in the first death anniversary of Ninoy but was deported as an undesirable alien and had to leave on the next plane for Tokyo. The Board had to go to Tokyo to hear Wakamiya give his testimony before the Japanese police in accordance with their law and Wakamiya claimed before the Commission that the English transcription of his testimony, as prepared by an official of the Philippine Embassy in Tokyo, was inaccurate and did not correctly reflect the testimony he gave "although there was no clear showing of the discrepancy from the original transcription which was in Nippongo. Upon his arrival at the MIA on August 21, 1985 on invitation of Justice Herrera to testify at the ongoing trial, "a shot was fired and a soldier was seen running away by media men who sought to protect Wakamiya from harm by surrounding him." Wakamiya was forced by immigration officials to leave the country by Saturday (August 24th) notwithstanding Herrera's request to let him stay until he could testify the following Monday (August 26th). In the case of principal eyewitness Rebecca Quijano, the Commission reported that

... Undoubtedly in view of the considerable significance of her proposed testimony and its unfavorable effect on the cause of the defense, the efforts exerted to suppress the same was as much as, if not more than those in the case of Wakamiya. ... She recounted that she was in constant fear of her life, having been hunted by armed men; that their house in Tabaco, Albay was ransacked, her family harassed by the foreclosure of the mortgage on their house by the local Rural Bank, and ejected therefrom when she ignored the

request of its manager to talk with her about her proposed testimony; that a certain William Fariñas offered her plane tickets for a trip abroad; that Mayor Rudy Fariñas of Laoag City kept on calling her sister in the United States to warn her not to testify; that, later, Rudy and William Fariñas offered her two million pesos supposedly coming from Bongbong Marcos, a house and lot in Baguio, the dropping of her estafa case in Hongkong, and the punishment of the persons responsible for the death of her father, if she would refrain from testifying.

It is a matter of record, however, that despite such cajolery and harassments, or perhaps because of them, Ms. Quijano eventually testified before the Sandiganbayan. Justice Herrera was told by justice Fernandez of the displeasure expressed by Olympus at justice Herrera's going out of his way to make Ms. Quijano to testify, and for his refusal to honor the invitation to attend the birthday party of the First Lady on May 1, 1985, as on the eve of Ms. Quijano's testimony on May 2, 1985. The insiduous attempts to tamper with her testimony, however, did not end with her taking the witness stand. In the course of her testimony several notes were passed to Atty. Rodolfo Jimenez, the defense counsel who cross-examined her, one of which suggested that she be asked more questions about Dean Narvasa who was suspected of having coached her as to what to declare (Exhibit "D"); and on another occasion, at a crucial point in her testimony, a power brownout occurred; which lasted for about twenty minutes, throwing the courtroom into darkness, and making most of those present to scamper for safety, and Ms. Quijano to pass over the railing of the rostrum so as to be able to leave the courtroom. It was verified that the brownout was limited to the building housing the Sandiganbayan, it not having affected the nearby Manila City Hall and the Finance Building. Justice Herrera declared that the main switchboard of the Sandiganbayan electrical system was located beside the room occupied by Malacañang people who were keeping track of the proceedings.

Atty. Lupino Lazaro for petitioners further made of record at that August 26th hearing that the two Olivas sisters, Ana and Catherine (hospitality girls) disappeared on September 4, 1984, two weeks after Ninoy's assassination. And the informant, by the name of Evelyn (also a hospitality girl) who jotted down the number of the car that took them away, also disappeared. On January 29, 1984, during the proceedings of the Board, Lina Galman, the common-law wife of Rolando Galman, was kidnapped together with a neighbor named Rogelio Taruc, They have been missing since then, despite his attempts to find any of them. According to him, "nobody was looking for these five persons because they said Marcos was in Power

[despite his appeal to the Minister of National Defense to locate them]. Today, still no one is looking for these people." And he appealed to the new leadership for its assistance in learning their fate.

3. The discarding of the affidavits executed by U.S. airmen "While it is true that the U.S. airmen's proposed testimonies would show an attempt of the Philippine Air Force to divert the plane to Basa Airfield or some other place, such showing would not necessarily contravene the theory of the prosecution, nor the actual fact that Senator Aquino was killed at the Manila International Airport. Justice Herrera had accurately pointed out that such attempt of scrambling Aquino's plane merely showed a 'wider range of conspiracy,' it being possibly just one of two or three other plans designed to accomplish the same purpose of liquidating Senator Aquino. In any event, even assuming that the said piece of evidence could go either way, it may not be successfully contended that it was prudent or wise on the part of the prosecution to totally discard the said piece of evidence. Despite minor inconsistencies contained therein, its introduction could have helped the cause of the prosecution. If it were not so, or that it would even favor the defense, as averred by Justice Fernandez, the determined effort to suppress the same would have been totally uncalled for."

4. Nine proposed rebuttal witnesses not presented.

5. The failure to exhaust available remedies against adverse developments: "When the Supreme Court denied the petition of Justice Fernandez [against the exclusion of the testimonies given by the military respondents headed by Gen. Ver before the Fact Finding Board], the latter almost immediately announced to media that he was not filing a motion for the reconsideration of said denial for the reason that it would be futile to do so and foolhardy to expect a favorable action on the same. ... His posture ... is, in the least, indicative that he was living up to the instruction of finishing the trial of the case as soon as possible, if not of something else."

6. The assignment of the case to Presiding Justice Pamaran: "Justice Herrera testified that President Marcos ordered Justice Pamaran point-blank to handle the case. The pro-forma denial by Justice Pamaran of such instruction crumbles under the actuality of such directive having been complied with to the letter. ...

"Justice Pamaran sought to discredit the claim that he was ordered by President Marcos to handle the case personally by explaining that cases in the Sandiganbayan are assigned by raffle and not to a particular Justice, but to a division thereof. The evidence before the Comission on how the case happened to be assigned to Justice Pamaran evinces a strong indication that such assignment was not done fairly or regularly.

"There was no evidence at all that the assignment was indeed by virtue of a regular raffle, except the uncorroborated testimony of Justice Pamaran. ... Despite an announcement that Justice Escareal would be presented by the respondents to testify on the contents of his aforesaid Memorandum, such was not done. No reason was given why Justice Escarel could not, or would not like to testify. Neither was any one of the officials or employees of the Sandiganbayan who, according to Justice Pamaran, were present during the supposed raffle, presented to corroborate the claim of Justice

xxx xxx xxx

"It is also an admitted fact that the two Informations in the double murder case were filed by Justice Herrera on January 23, 1985, at 12:02 p.m., and the members of the Raffle Committee were summoned at 12:20 p.m. or only 18 minutes after the filing of the two Informations. Such speed in the actual assignment of the case can truly be categorized as unusual, if not extraordinary, considering that before a case filed may be included in the raffle, there is need for a certain amount of paper work to be undertaken. If such preliminary requirements were done in this case within the limited time available therefor, the charge that the raffle was rushed to avoid the presence of media people would ring with truth.

What is more intriguing is the fact that although a raffle might have been actually conducted which resulted in the assignment of the case to the First Division of the Sandiganbayan, the Commission did not receive any evidence on how or why it was handled personally by Justice Pamaran who wrote the decision thereof, and not by any one of the two other members of his division. . . .

7. The custody of the accused their confinement in a military camp, instead of in a civilian jail: "When the question of custody came up after the case was filed in the Sandiganbayan, the latter issued an order directing the confinement of the accused in the City Jail of Manila. This order was not carried out in view of the information given by the Warden of the City Jail that there was no space for the twenty-six accused in said jail. The same information was given when the custody was proposed to be given to the National Penitentiary in Muntinglupa and to the National Bureau of Investigation. At that point, the defense came up with Presidential Decree No. 1950A which authorizes the custody of the accused military personnel with their respective Commanding Officers. Justice Herrera claimed that the said Presidential Decree was not known even to the Tanodbayan Justice Fernandez who had to call up the then Minister of Justice Estelito Mendoza to request a copy of the same, and was given such copy only after sometime. ..."

8. The monitoring of proceedings and developments from Malacañang and by Malacañang personnel: "There is an uncontradicted evidence that the progress of the proceedings in the Sandiganbayan as well as the developments of the case outside the Court had been monitored by Malacañang presumably for it to know what was happening and to take remedial measures as may be necessary. Justice Pamaran had candidly admitted that television cameras "boldly carrying the label of 'Office of the President of the Philippines' " were installed in the courtroom for that purpose. There was a room in the Sandiganbayan, mischievously caned 'war room', wherein military and Malacañang personnel stayed to keep track of the proceedings." the close monitoring by Malacañang showed its results on several occasions specified in the Report. Malacañang was immediately aware of the Japanese witness Wakamiya's presence injustice Herrera's office on August 21, 1985 and forestalled the giving of his testimony by having the Japanese Embassy advise Wakamiya to leave the country at once. Likewise, Col. Balbino Diego, Malacañang intelligence chief, suddenly appeared at the National Bureau of Investigation office when the "crying lady" Rebecca Quijano was brought there by NBI agents for interrogation and therein sought to obtain custody of her. "It is likewise an undisputed fact," the Commission noted "that several military personnel pretended to be deputy sheriffs of the Sandiganbayan and attended the trials thereof in the prescribed deputy sheriffs' uniforms." The Commission's inescapable finding. " It is abundantly clear that President Marcos did not only give instructions as to how the case should be handled He saw to it that he would know if his instructions will be complied with."

9. Partiality of Sandiganbayan betrayed by its decision: "That President Marcos had wanted all of the twenty-six accused to be acquitted may not be denied. The disposal of the case in said manner is an integral part of the scenario which was cleverly designed to accomplish two principal objectives, seemingly conflicting in themselves, but favorable both to then administration and to the accused; to wit, [1] the satisfaction of the public clamor for the suspected killers of Senator Aquino to be charged in court, and [2] the foreclosure of any possibility that they may again be prosecuted for the same offense in the event that President Marcos shall no longer be in power.

"In rendering its decision the Sandiganbayan overdid itself in favoring the presidential directive. Its bias and partiality in favor of the accused was glaringly obvious. The evidence presented by the prosecution was totally ignored and disregarded. ... It was deemed not sufficient to simply acquit all of the twenty-six accused on thestandard ground that their guilt had not been proven beyond reasonable doubt, as was the most logical and appropriate way of justifying the acquittal in the case, there not being a total absence of evidence that could show guilt on the part of the accused. The decision had to pronounce them 'innocent of the crime charged on the two informations, and accordingly, they incur neither criminal nor civil liability.' It is a rare phenomenon to see a person accused of a crime to be favored with such total absolution. ...

Doubt on the soundness of the decision entertained by one of the two justices who concurred with the majority decision penned by Justice Pamaran was revealed by Justice Herrera who testified that in October, 1985, when the decision was being prepared, Justice Agusto Amores told him that he was of the view that some of the accused should be convicted he having found difficulty in acquitting all of them; however, he confided to Justice Herrera that Justice Pamaran made it clear to him and Justice Vera Cruz that Malacañang had instructions to acquit all of the twenty-six accused (TSN, July 17, 1986, p. 49). Justice Amores also told Justice Herrera that he would confirm this statement (which was mentioned in Justice Herrera's comment to the Second Motion for Reconsideration) if asked about it (TSN, June 19, 1986, pp. 92-93). This testimony Justice Herrera remained unrebutted " (Emphasis supplied)

The record shows suffocatingly that from beginning to end, the then President used, or more precisely, misused the overwhelming resources of the government and his authoritarian powers to corrupt and make a mockery of the judicial process in the Aquino-Galman murder cases. As graphically depicted in the Report, supra, and borne out by the happenings (res ipsa loquitur 22) since the resolution prepared by his "Coordinator," Manuel Lazaro, his Presidential Assistant on Legal Affairs, for the Tanodbayan's dismissal of the cases against all accused was unpalatable (it would summon the demonstrators back to the streets 23) and at any rate was not acceptable to the Herrera prosecution panel, the unholy scenario for acquittal of all 26 accused after the rigged trial as ordered at the Malacanang conference, would accomplish the two principal objectives of satisfaction of the public clamor for the suspected killers to be charged in court and of giving them through their acquittal the legal shield of double jeopardy. 24

Indeed, the secret Malacanang conference at which the authoritarian President called together the Presiding Justice of the Sandiganbayan and Tanodbayan Fernandez and the entire prosecution panel headed by Deputy Tanodbayan Herrera and told them how to handle and rig (moro-moro) the trial and the close monitoring of the entire proceedings to assure the pre-determined ignominious final outcome are without parallel and precedent in our annals and jurisprudence. To borrow a phrase from Ninoy's April 14, 1975 letter withdrawing his petition for habeas corpus, 25 "This is the evil of one-man rule at its very worst." Our Penal Code penalizes "any executive officer who shall address any order or suggestion to any judicial authority with respect to any case or business coming within the exclusive jurisdiction of the courts of justice." 26 His obsession for "the boys' " acquittal led to several first which would otherwise be inexplicable:—

1. He turned his back on and repudiated the findings of the very Fact Finding Board that he himself appointed to investigate the "national tragedy and national shame" of the

"treacherous and vicious assassination of Ninoy Aquino and "to ventilate the truth through free, independent and dispassionate investigation by prestigious and free investigators."

2. He cordially received the chairman with her minority report one day ahead of the four majority members and instantly referred it to respondents "for final resolution through the legal system" as if it were the majority and controlling report; and rebuked the four majority members when they presented to him the next day their report calling for the indictment of all 26 respondents headed by Gens. Ver and Olivas (instead of the lesser seven under the chairman's minority report).

3. From the day after the Aquino assassination to the dictated verdict of acquittal, he totally disregarded the Board's majority and minority findings of fact and publicly insisted that the military's "fall guy" Rolando Galman was the killer of Ninoy Aquino and sought futilely to justify the soldiers' incompetence and gross negligence to provide any security for Ninoy in contrast to their alacrity in gunning down the alleged assassin Galman and searing his lips.

4. The Sandiganbayan's decision (Pamaran, J. ponente) in effect convicted Rolando Galman as Ninoy's assassin notwithstanding that he was not on trial but the victim according to the very information filed, and evidence to the contrary submitted, by the Herrera prosecution panel; and

5. Justice Pamaran's ponencia (despite reservations expressed by Justice Amores who wanted to convict some of the accused) granted all 26 accused total absolution and pronounced them "innocent of the crimes charged in the two informations, and accordingly, they incur neither criminal nor civil liability," notwithstanding the evidence on the basis of which the Fact Finding Board had unanimously declared the soldiers' version of Galman being Aquino's killer a "perjured story, given deliberately and in conspiracy with one another."

The fact of the secret Malacañang conference of January 10, 1985 at which the authoritarian President discussed with the Presiding Justice of the Sandiganbayan and the entire prosecution panel the matter of the imminent filing of the criminal charges against all the twenty-six accused (as admitted by respondent Justice Fernandez to have been confirmed by him to the then President's "Coordinator" Manuel Lazaro on the preceding day) is not denied. It is without precedent. This was illegal under our penal laws, supra. This illegality vitiated from the very beginning all proceedings in the Sandiganbayan court headed by the very Presiding Justice who attended. As the Commission noted: "The very acts of being summoned to Malacañang and their ready acquiescence thereto under the circumstances then obtaining, are in themselves pressure dramatized and exemplified. ... Verily, it can be

said that any avowal of independent action or resistance to presidential pressure became illusory from the very moment they stepped inside Malacanang Palace on January 10, 1985."

No court whose Presiding Justice has received "orders or suggestions" from the very President who by an amendatory decree (disclosed only at the hearing of oral arguments on November 8, 1984 on a petition challenging the referral of the Aquino-Galman murder cases to the Tanodbayan and Sandiganbayan instead of to a court martial, as mandatory required by the known P.D. 1850 at the time providing for exclusive jurisdiction of courts martial over criminal offenses committed by military men 26-a) made it possible to refer the cases to the Sandiganbayan, can be an impartial court, which is the very essence of due process of law. As the writer then wrote, "jurisdiction over cases should be determined by law, and not by preselection of the Executive, which could be much too easily transformed into a means of predetermining the outcome of individual cases. 26-b"This criminal collusion as to the handling and treatment of the cases by public respondents at the secret Malacanang conference (and revealed only after fifteen months by Justice Manuel Herrera) completely disqualified respondent Sandiganbayan and voided ab initio its verdict. This renders moot and irrelevant for now the extensive arguments of respondents accused, particularly Generals Ver and Olivas and those categorized as accessories, that there has been no evidence or witness suppressed against them, that the erroneous conclusions of Olivas as police investigator do not make him an accessory of the crimes he investigated and the appraisal and evaluation of the testimonies of the witnesses presented and suppressed. There will be time and opportunity to present all these arguments and considerations at the remand and retrial of the cases herein ordered before a neutral and impartial court.

The Supreme Court cannot permit such a sham trial and verdict and travesty of justice to stand unrectified. The courts of the land under its aegis are courts of law and justice and equity. They would have no reason to exist if they were allowed to be used as mere tools of injustice, deception and duplicity to subvert and suppress the truth, instead of repositories of judicial power whose judges are sworn and committed to render impartial justice to all alike who seek the enforcement or protection of a right or the prevention or redress of a wrong, without fear or favor and removed from the pressures of politics and prejudice. More so, in the case at bar where the people and the world are entitled to know the truth, and the integrity of our judicial system is at stake. In life, as an accused before the military tribunal, Ninoy had pleaded in vain that as a civilian he was entitled to due process of law and trial in the regular civil courts before an impartial court with an unbiased prosecutor. In death, Ninoy, as the victim of the "treacherous and vicious assassination" and the relatives and sovereign people as the aggrieved parties plead once more for due process of law and a retrial before an impartial court with an unbiased prosecutor. The Court is constrained to declare the sham trial a mock trial the non-trial of the century-and that the pre-determined judgment of acquittal was unlawful and void ab initio.

1. No double jeopardy.-It is settled doctrine that double jeopardy cannot be invoked against this Court's setting aside of the trial courts' judgment of dismissal or acquittal where the prosecution which represents the sovereign people in criminal cases is denied due process. As the Court stressed in the 1985 case of People vs. Bocar, 27

Where the prosecution is deprived of a fair opportunity to prosecute and prove its case its right to due process is thereby violated. 27-a

The cardinal precept is that where there is a violation of basic constitutional rights, courts are ousted of their jurisdiction. Thus, the violation of the State's right to due process raises a serious jurisdictional issue (Gumabon vs. Director of the Bureau of Prisons, L-30026, 37 SCRA 420 [Jan. 30, 1971]which cannot be glossed over or disregarded at will. Where the denial of the fundamental right of due process is apparent, a decision rendered in disregard of that right is void for lack of jurisdiction (Aducayen vs. Flores, L-30370 [May 25, 1973], 51 SCRA 78; Shell Co. vs. Enage, L-30111-12, 49 SCRA 416 [Feb. 27, 1973]). Any judgment or decision rendered notwithstanding such violation may be regarded as a "lawless thing, which can be treated as an outlaw and slain at sight, or ignored wherever it exhibits its head" (Aducayen vs. Flores, supra).

Respondent Judge's dismissal order dated July 7, 1967 being null and void for lack of jurisdiction, the same does not constitute a proper basis for a claim of double jeopardy (Serino vs. Zosa, supra).

xxx xxx xxx

Legal jeopardy attaches only (a) upon a valid indictment, (b) before a competent court, (c) after arraignment, (d) a valid plea having been entered; and (e) the case was dismissed or otherwise terminated without the express consent of the accused (People vs. Ylagan, 58 Phil. 851). The lower court was not competent as it was ousted of its jurisdiction when it violated the right of the prosecution to due process.

In effect the first jeopardy was never terminated, and the remand of the criminal case for further hearing and/or trial before the lower courts amounts merely to a continuation of the first jeopardy, and does not expose the accused to a second jeopardy.

More so does the rule against the invoking of double jeopardy hold in the cases at bar where as we have held, the sham trial was but a mock trial where the authoritarian president ordered respondents Sandiganbayan and Tanodbayan to rig the trial and closely monitored the entire proceedings to assure the pre-determined final outcome of acquittal and total absolution as innocent of an the respondents-accused. Notwithstanding the laudable efforts of Justice Herrera which saw him near the end "deactivating" himself from the case, as it was his belief that its eventual resolution was already a foregone conclusion, they could not cope with the misuse and abuse of the overwhelming powers of the authoritarian President to weaken the case of the prosecution, to suppress its evidence, harass, intimidate and threaten its witnesses, secure their recantation or prevent them from testifying. Fully aware of the prosecution's difficulties in locating witnesses and overcoming their natural fear and reluctance to appear and testify, respondent Sandiganbayan maintained a "dizzying tempo" of the proceedings and announced its intention to terminate the proceedings in about 6 months time or less than a year, pursuant to the scripted scenario. The prosecution complained of "the Presiding Justice's seemingly hostile attitude towards (it)" and their being the subject of warnings, reprimand and contempt proceedings as compared to the nil situation for the defense. Herrera likewise complained of being "cajoled into producing witnesses and pressed on making assurances that if given a certain period, they will be able to produce their witnesses Herrera pleaded for "a reasonable period of preparation of its evidence" and cited other pending cases before respondent court that were pending trial for a much longer time where the "dizzying tempo" and "fast pace" were not maintained by the court. 28 Manifestly, the prosecution and the sovereign people were denied due process of law with a partial court and biased Tanodbayan under the constant and pervasive monitoring and pressure exerted by the authoritarian President to assure the carrying out of his instructions. A dictated, coerced and scripted verdict of acquittal such as that in the case at bar is a void judgment. In legal contemplation, it is no judgment at all. It neither binds nor bars anyone. Such a judgment is "a lawless thing which can be treated as an outlaw". It is a terrible and unspeakable affront to the society and the people. To paraphrase Brandeis: 29 If the authoritarian head of the government becomes the law-breaker, he breeds contempt for the law, he invites every man to become a law unto himself, he invites anarchy.

Respondents-accused's contention that the Sandiganbayan judgment of acquittal ends the case which cannot be appealed or re-opened, without being put in double jeopardy was forcefully disposed of by the Court in People vs. Court of Appeals, which is fully applicable here, as follows: "That is the general rule and presupposes a valid judgment. As earlier pointed out, however, respondent Courts' Resolution of acquittal was a void judgment for having been issued without jurisdiction. No double jeopardy attaches, therefore. A void judgment is, in legal effect, no judgment at all By it no rights are divested. Through it, no rights can be attained. Being worthless, all proceedings founded upon it are equally

worthless. It neither binds nor bars anyone. All acts performed under it and all claims flowing out of it are void.

|lang1033 xxx xxx xxx

"Private respondent invoke 'justice for the innocent'. For justice to prevail the scales must balance. It is not to be dispensed for the accused alone. The interests of the society, which they have wronged must also be equally considered. A judgment of conviction is not necessarily a denial of justice. A verdict of acquittal neither necessarily spells a triumph of justice. To the party wronged, to the society offended, it could also mean injustice. This is where the Courts play a vital role. They render justice where justice is due. 30

2. Motion to Disqualify/Inhibit should have been resolved Ahead.-The private prosecutors had filed a motion to disqualify and for inhibition of respondents Justices of the Sandiganbayan on grounds of manifest bias and partiality to the defense and arising from then Atty. (now Tanodbayan) Raul M. Gonzales' charge that Justice Vera-Cruz had been passing coaching notes to defense counsel. Justice Herrera had joined the motion and pleaded at the hearing of June 25, 1985 and in the prosecution memorandum that respondent Sandiganbayan "should not decide the case on the merits without first making a final ruling on the Motion for Inhibition." Herrera quoted the exchange between him and the Presiding Justice to show the latter's "following the script of Malacanang.

PJ PAMARAN

Well the court believes that we should proceed with the trial and then deal later on with that. After all, the most important thing here is, shall we say, the decision of the case.

J. HERRERA

I think more important than the decision of the case, Your Honor, is the capacity of the justices to sit in judgment. That is more important than anything else.(p. 13 TSN, June 25, 1985) (Emphasis supplied by Herrera). 31

But the Sandiganbayan brushed aside Herrera's pleas and then wrongly blamed him, in the decision, for supposedly not having joined the petition for inhibition, contrary to the facts above-stated, as follows:

... the motion for inhibition above referred to related exclusively for the contempt proceeding. Too, it must be remembered that the prosecution neither joined that petition, nor did it at any time manifest a desire to file a similar motion prior to the submission of these cases for decision. To do it now is not alone out of season but is also a confession of official insouciance (Page 22, Decision). 32

The action for prohibition was filed in the Court to seek the disqualification of respondents Justices pursuant to the procedure recognized by the Court in the 1969 case of Paredes vs. Gopengco 33 since an adverse ruling by respondent court might result in a verdict of acquittal, leaving the offended party without any remedy nor appeal in view of the double jeopardy rule, not to mention the overiding and transcendental public interest that would make out a case of denial of due process to the People if the alleged failure on the part of the Tanodbayan to present the complete evidence for the prosecution is substantiated. 34

In this case, petitioners' motion for reconsideration of the abrupt dismissal of their petition and lifting of the temporary restraining order enjoining the Sandiganbayan from rendering its decision had been taken cognizance of by the Court which had required the respondents', including the Sandiganbayan's, comments. Although no restraining order was issued anew, respondent Sandiganbayan should not have precipitately issued its decision of total absolution of all the accused pending the final action of this Court. This is the teaching of Valdez vs. Aquilizan35, Wherein the court in setting aside the hasty convictions, ruled that "prudence dictated that (respondent judge) refrain from deciding the cases or at the very least to hold in abeyance the promulgation of his decision pending action by this Court. But prudence gave way to imprudence; the respondent judge acted precipitately by deciding the cases [hastily without awaiting this Court's action]. All of the acts of the respondent judge manifest grave abuse of discretion on his part amounting to lack of jurisdiction which substantively prejudiced the petitioner."

3. Re: Objections of respondents.-The other related objections of respondents' counsels must be rejected in the face of the Court's declaration that the trial was a mock trial and that the pre-determined judgment of acquittal was unlawful and void ab initio.

(a) It follows that there is no need to resort to a direct action to annul the judgment, instead of the present action which was timely filed initially to declare a mistrial and to enjoin the rendition of the void judgment. And after the hasty rendition of such judgment for the declaration of its nullity, following the presentation of competent proof heard by the Commission and the Court's findings therefrom that the proceedings were from the beginning vitiated not only by lack of due process but also by the collusion between the public

respondents (court and Tanodbayan) for the rendition of a pre-determined verdict of acquitting all the twenty-six respondents-accused.

(b) It is manifest that this does not involve a case of mere irregularities in the conduct of the proceedings or errors of judgment which do not affect the integrity or validity of the judgment or verdict.

(c) The contention of one of defense counsel that the State and the sovereign people are not entitled to due process is clearly erroneous and contrary to the basic principles and jurisprudence cited hereinabove.

(d) The submittal of respondents-accused that they had not exerted the pressure applied by the authoritarian president on public respondents and that no evidence was suppressed against them must be held to be untenable in the wake of the evil plot now exposed for their preordained wholesale exoneration.

(e) Respondents' invocation of the writer's opinion in Luzon Brokerage Co., Inc. vs. Maritime Bldg. Co., Inc. 36 is inappropriate. The writer therein held that a party should be entitled to only one Supreme Court and may not speculate on vital changes in the Court's membership for review of his lost case once more, since public policy and sound practice demand that litigation be put to an end and no second pro forma motion for reconsideration reiterating the same arguments should be kept pending so long (for over six (6) years and one (1) month since the denial of the first motion for reconsideration), This opinion cannot be properly invoked, because here, petitioners' second motion for reconsideration was filed promptly on March 20, 1986 following the denial under date of February 4th of the first motion for reconsideration and the same was admitted per the Court's Resolution of April 3, 1986 and is now being resolved within five months of its filing after the Commission had received the evidence of the parties who were heard by the Court only last August 26th. The second motion for reconsideration is based on an entirely new material ground which was not known at the time of the denial of the petition and filing of the first motion for reconsideration, i.e, the secret Malacañang conference on January 10, 1985 which came to light only fifteen months later in March, 1986 and showed beyond per adventure (as proved in the Commission hearings) the merits of the petition and that the authoritarian president had dictated and pre-determined the final outcome of acquittal. Hence, the ten members of the Court (without any new appointees) unanimously voted to admit the second motion for reconsideration. 37

4. With the declaration of nullity of the proceedings, the cases must now be tried before an impartial court with an unbiased prosecutor.-There has been the long dark night of authoritarian regime, since the fake ambush in September, 1972 of then Defense Secretary

Juan Ponce Enrile (as now admitted by Enrile himself was staged to trigger the imposition of martial law and authoritarian one-man rule, with the padlocking of Congress and the abolition of the office of the Vice-President.

As recently retired Senior Justice Vicente Abad Santos recalled in his valedictory to the new members of the Bar last May, "In the past few years, the judiciary was under heavy attack by an extremely powerful executive. During this state of judicial siege, lawyers both in and outside the judiciary perceptively surrendered to the animus of technicality. In the end, morality was overwhelmed by technicality, so that the latter emerged ugly and naked in its true manifestation."

Now that the light is emerging, the Supreme Court faces the task of restoring public faith and confidence in the courts. The Supreme Court enjoys neither the power of the sword nor of the purse. Its strength lies mainly in public confidence, based on the truth and moral force of its judgments. This has been built on its cherished traditions of objectivity and impartiallity integrity and fairness and unswerving loyalty to the Constitution and the rule of law which compels acceptance as well by the leadership as by the people. The lower courts draw their bearings from the Supreme Court. With this Court's judgment today declaring the nullity of the questioned judgment or acquittal and directing a new trial, there must be a rejection of the temptation of becoming instruments of injustice as vigorously as we rejected becoming its victims. The end of one form of injustice should not become simply the beginning of another. This simply means that the respondents accused must now face trial for the crimes charged against them before an impartial court with an unbiased prosecutor with all due process. What the past regime had denied the people and the aggrieved parties in the sham trial must now be assured as much to the accused as to the aggrieved parties. The people will assuredly have a way of knowing when justice has prevailed as well as when it has failed.

The notion nurtured under the past regime that those appointed to public office owe their primary allegiance to the appointing authority and are accountable to him alone and not to the people or the Constitution must be discarded. The function of the appointing authority with the mandate of the people, under our system of government, is to fill the public posts. While the appointee may acknowledge with gratitude the opportunity thus given of rendering public service, the appointing authority becomes functus officio and the primary loyalty of the appointed must be rendered to the Constitution and the sovereign people in accordance with his sacred oath of office. To paraphrase the late Chief Justice Earl Warren of the United States Supreme Court, the Justices and judges must ever realize that they have no constituency, serve no majority nor minority but serve only the public interest as they see it in accordance with their oath of office, guided only, the Constitution and their own conscience and honor.

5. Note of Commendation.- The Court expresses its appreciation with thanks for the invaluable services rendered by the Commission composed of retired Supreme Court Justice Conrado M. Vasquez, chairman, and retired Court of Appeals Justices Milagros German and Eduardo Caguioa as members. In the pure spirit of public service, they rendered selflessly and without remuneration thorough competent and dedicated service in discharging their tasks of hearing and receiving the evidence, evaluating the same and submitting their Report and findings to the Court within the scheduled period and greatly easing the Court's burden.

ACCORDINGLY, petitioners' second motion for reconsideration is granted. The resolutions of November 28, 1985 dismissing the petition and of February 4, 1986 denying petitioners' motion for reconsideration are hereby set aside and in lieu thereof, judgment is hereby rendered nullifying the proceedings in respondent Sandiganbayan and its judgment of acquittal in Criminal Cases Nos. 10010 and 10011 entitled "People of the Philippines vs. Gen. Luther Custodia et al." and ordering a re-trial of the said cases which should be conducted with deliberate dispatch and with careful regard for the requirements of due process, so that the truth may be finally known and justice done to an

This resolution is immediately executory. SO ORDERED.

Yap, Cruz, Paras and Feliciano, JJ., concur.

Feria, **** Fernan and Narvasa , ***** JJ., took no part.

 

 

Separate Opinions

 

MELENCIO-HERRERA, J., concurring:

Consistent with what I had perceived as the need to establish the truth behind the vicious assassination of the late Senator Benigno Aquino, as expressed in my dissenting opinion in Galman vs. Pamaran (138 SCRA 294, 379 [1985]), and so that justice may be done, I vote for the re-trial prayed for by petitioners.

There is reason to believe that some vital evidence had been suppressed by the prosecution, or that it had disregarded, as immaterial or irrelevant, evidence which, if presented, could affect the outcome of the case. As it is, the prosecution failed to fully ventilate its position and to lay out before respondent Court all the pertinent facts which could have helped that Court in arriving at a just decision. It had, thus, failed in its task.

A public prosecutor 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 at all and whose interest, therefore, in a criminal prosecution is not that it shag win a case but that justice shall be done. As such, he is in a peculiar and every definite sense the servant of the law, the two-fold aim of which is that guilt shall not escape or innocence suffer. [Emphasis supplied] (Suarez vs. Platon, 69 Phil. 556 [1940])

He owes the state, the court and the accused the duty to lay before the court the pertinent facts at his disposal with methodical and meticulous attention, clarifying contradictions and filling up gaps and loopholes in his evidence to the end that the court's mind may not be tortured by doubts, the innocent may not suffer, and the guilty may not escape unpunished (People vs. Esquivel, 82 PhiL 453 [1948]).

Respondent Court, in showing partiality for the accused from beginning to end, from the raffle of the subject cases to the promulgation of judgment, which absolved the accused, en masse, from any and an liability, is equally culpable for miscarriage of justice. Due process of law, which "requires a hearing before an impartial and disinterested tribunal" and the right of every litigant to "nothing less than the cold neutrality of an impartial Judge" (Gutierrez vs. Santos, 112 Phil. 184 [1961]; Castillo vs. Juan, 62 SCRA 124 [1975]), was violated.

The proceedings below, having been vitiated by lack of due process, to the detriment of the State and the People, were invalid and the judgment rendered null and void ab initio. There having been no trial at all in contemplation of law, there is likewise no judgment on which a plea of double jeopardy may be based. "To entitle the accused to the plea of former jeopardy the proceedings must have been valid (State vs. Bartlett, 164 N.W., 757; State vs. O'Day 185 So. 290). The lack of any fundamental requisite which would render void the judgment would make ineffective a plea of jeopardy based on such proceedings (Steen vs. State, 242 S.W. 1047).

The accused, however, argue that double jeopardy attaches for, even assuming without conceding, that pressure and collusion did take place, they were not a party to the same; and,

for those who were charged only either as accomplices or accessories, they contend that their alleged offense involved only a cover-up in the investigation of the crimes so that, whatever pressure was exerted could only have benefited the principals, consequently, to subject them to a re-trial is to put them twice in jeopardy.

It is true that where an accused was not a party to the fraud, a conviction secured fraudulently by the State's officer cannot be avoided by the state (State vs. Heflin, 96 So. 459, 19 Ala. App. 222). However, that exception is inapplicable to the cases at bar where both the prosecution and the Trial Court itself were parties to the fraud and collusion. Nor can it be said that the accused were not a part thereof. The agreement to file the murder charge in Court so that, after being acquitted as planned, the accused could no longer be prosecuted under the doctrine of double jeopardy; the "categorization" of the accused into principals, accomplices and accessories so that not all of them would be denied bail during the trial, were fraudulently conceived for their benefit and for the purpose of protecting them from subsequent prosecution. It is, thus, no bar to a subsequent prosecution for the same offense (Coumas vs. Superior Court, 192 P. 2d. 449, 452, 31 C. 2d. 682). "A verdict of acquittal procured by the accused by fraud and collusion is a nullity and does not put him in jeopardy; and consequently, it is no bar to a second trial for the same offense (State vs. Lee, 30A. 1110, 65 Conn. 265,48 Am. S.R. 202,27 L. RA. 498).

The proceedings below having been fatally flawed by pressure, fraud and collusion, with the legal consequence that there was no trial and judgment to speak of, and under the circumstances peculiar only to these cases, I vte for a re-trial in the interest of truth and the �ends of public justice. As in all criminal proceedings, however, the accused must be guaranteed a fair, speedy, and impartial re-trial before an unbiased Tribunal and prosecutor and, I might add, safeguarded against trial by publicity.

ALAMPAY, J., concurring:

Considering that certain significant facts and circumstances not previously disclosed to the Court were found by the Commission constituted by this Court, purposely to inquire and ascertain the veracity of the same, to be duly established by sufficient evidence and are indicative of "a scripted and pre-determined manner of handling and disposing of the Aquino-Galman murder case ...;" and that there exists "adequate credible evidence showing that the prosecution in the Aquino-Galman case and the Justices who tried and decided the same acted under the compulsion of some pressure which proved to be beyond their capacity to resist and which not only prevented the prosecution to fully ventilate its position and to offer all the evidences it could have otherwise presented, but also pre-determined the outcome of the case; ..." I join in granting petitioners' second motion for reconsideration.

In my considered view, the ends of Justice will be best served by allowing the trial anew of the subject cases in order to ultimately obtain a judgment that will be removed from any suspicion of attendant irregularities. With the greatest significance being given by our people to the said cases, which are evidently of historical importance, I am readily persuaded that it is to our national interest that all relevant evidence that may be now available be provided an opportunity to be received and made known so that whatever is the actual truth can be rightfully ascertained. I, therefore, vote for a declaration of mistrial and for nullifying the proceedings of the referred Criminal Cases Nos. 10010 and 10011 before the Sandiganbayan and the ordering of are trial.

GUTIERREZ, JR., J. concurring:

On November 28, 1985, this Court dismissed the petition for certiorari and prohibition with preliminary injunction and lifted a Temporary Restraining Order earlier granted. We are now acting on a motion for reconsideration filed by the petitioners.

When the Court initially dismissed the petition, I issued a separate concurring and dissenting opinion. The issues before us were novel and momentous. I felt that in immediately dismissing the petition, we were denying the petitioners every reasonable opportunity to prove their allegations of non-independent and biased conduct of both the prosecution and the trial court. I stated that the issues of miscarriage of justice and due process arising from that conduct should be allowed more extended treatment. With then Associate Justices Claudio Teehankee and Vicente Abad Santos, I, therefore, dissented from the Court's resolution denying the petitioners' motions to continue presenting their case.

Since the majority of the Court, however, had decided to resolve the petition on its merits and the findings of the Vasquez Commission were still for the future, I concurred in the result of this Court's action on two grounds-(1) the right of the accused to speedy trial and (2) the presumption in law that judicial acts are regularly performed and that public officers have discharged their duties in accordance with law.

The findings of the Vasquez Commission now confirm my initial misgivings and more than overcome the presumption of regular performance of official duty upon which I based my concurrence.

What were some of these misgivings now given substance by the investigation?

Mistrial is usually raised by the accused. In this petition neither the accused nor the prosecution saw anything wrong in the proceedings. We had the unusual phenomenon of the

relatives of one victim, prominent lawyers and law professors, and retired Justices assuming the uncommon role of alleging not only a biased Sandiganbayan but also a Tanodbayan holding back its own evidence. Instead of allowing the heated passions and emotions generated by the Aquino assassination to cool off or die down, the accused insisted on the immediate rendition of a decision.

The Sandiganbayan is usually sober and respectful in its relations with the Supreme Court. I, therefore, found it strange and unfortunate why, in its Comment, the Sandiganbayan should question our authority to look into the exercise of its jurisdiction. There was the further matter of television cameras during trial, their effect on the witnesses and the judges, and other mischievous potentialities.

The report of the Vasquez Comission now shows that there was more to these misgivings and suspicions than appeared in the records at that time. The Court's opinion penned by the Chief Justice states in detail why the Sandiganbayan was not an impartial tribunal and the Tanodbayan not an unbiased prosecutor.

The right against double jeopardy is intended to protect against repeated litigations and continuous harassment of a person who has already undergone the agony of prosecution and trial for one and the same offense. It certainly was never intended to cover a situation where the prosecution suppresses some of its own evidence, where the accused correctly and eagerly anticipate a judgment of acquittal, and where the court appears to have made up its mind even before trial has started.

Under the circumstances found by the Vasquez Commission, there was a failure of trial tantamount to no trial at all. A "moro-moro" could not possibly result in a just or valid decision.

I am, however, constrained to write this separate opinion to emphasize a concern of this Court and of an Filipinos who want genuine justice to be realized in this case.

In the same way that we deplore the pressures and partiality which led to the judgment of acquittal we must insure that absolutely no indication of bias, pre-judgment, or vindictiveness shall taint the retrial of this case. The fairly strong language used by the Court in its main opinion underscores the gravity with which it views the travesties of justice in this "trial of the century." At the same time, nothing expressed in our opinion should be interpreted as the Supreme Court's making a factual finding, one way or another, about the perpetrators of the Aquino or the Galman killing. Any statements about the circumstances of the assassination or about the military version of the killings are intended solely for one issue whether or not the Sandiganbayan acquittals should be set aside and a retrial ordered.

Neither our final resolution of this petition, the stature of the persons involved, pakikisama, utang na loob for an appointment or reappointment, or any other extraneous matters should color or influence the future course of this case.

Needless to say, any person who, in the past, may have formally expressed opinions about the innocence or guilt of the accused should be neither a prosecutor or judge in any forthcoming trial. It is not enough for the future proceedings to be fair they should be above any suspicion of partiality, bias, rancor, or vindictiveness. It would be unfortunate if, in the conduct of further proceedings in this case, erroneous impressions may arise that a prosecutor or judge has prejudged the guilt or innocence of any accused. Having just declared a mistrial, we should not again declare the retrial as another mistrial, ad infinitum.

For the reasons abovestated, I concur in the decision of the Court to grant the petitioners' second motion for reconsideration.

Feliciano, J., concurs in his statements in the last three paragraphs (prior to the dispositive paragraph) of his Separate Concurring Opinion.

 

 

Separate Opinions

MELENCIO-HERRERA, J., concurring:

Consistent with what I had perceived as the need to establish the truth behind the vicious assassination of the late Senator Benigno Aquino, as expressed in my dissenting opinion in Galman vs. Pamaran (138 SCRA 294, 379 [1985]), and so that justice may be done, I vote for the re-trial prayed for by petitioners.

There is reason to believe that some vital evidence had been suppressed by the prosecution, or that it had disregarded, as immaterial or irrelevant, evidence which, if presented, could affect the outcome of the case. As it is, the prosecution failed to fully ventilate its position and to lay out before respondent Court all the pertinent facts which could have helped that Court in arriving at a just decision. It had, thus, failed in its task.

A public prosecutor 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 at all and whose interest, therefore, in a criminal prosecution is not that it shag win a case but that justice shall be done. As such, he is in a peculiar and every definite sense the servant of the law, the two-fold aim of which is that guilt shall not escape or innocence suffer. [Emphasis supplied] (Suarez vs. Platon, 69 Phil. 556 [1940])

He owes the state, the court and the accused the duty to lay before the court the pertinent facts at his disposal with methodical and meticulous attention, clarifying contradictions and filling up gaps and loopholes in his evidence to the end that the court's mind may not be tortured by doubts, the innocent may not suffer, and the guilty may not escape unpunished (People vs. Esquivel, 82 PhiL 453 [1948]).

Respondent Court, in showing partiality for the accused from beginning to end, from the raffle of the subject cases to the promulgation of judgment, which absolved the accused, en masse, from any and an liability, is equally culpable for miscarriage of justice. Due process of law, which "requires a hearing before an impartial and disinterested tribunal" and the right of every litigant to "nothing less than the cold neutrality of an impartial Judge" (Gutierrez vs. Santos, 112 Phil. 184 [1961]; Castillo vs. Juan, 62 SCRA 124 [1975]), was violated.

The proceedings below, having been vitiated by lack of due process, to the detriment of the State and the People, were invalid and the judgment rendered null and void ab initio. There having been no trial at all in contemplation of law, there is likewise no judgment on which a plea of double jeopardy may be based. "To entitle the accused to the plea of former jeopardy the proceedings must have been valid (State vs. Bartlett, 164 N.W., 757; State vs. O'Day 185 So. 290). The lack of any fundamental requisite which would render void the judgment would make ineffective a plea of jeopardy based on such proceedings (Steen vs. State, 242 S.W. 1047).

The accused, however, argue that double jeopardy attaches for, even assuming without conceding, that pressure and collusion did take place, they were not a party to the same; and, for those who were charged only either as accomplices or accessories, they contend that their alleged offense involved only a cover-up in the investigation of the crimes so that, whatever pressure was exerted could only have benefited the principals, consequently, to subject them to a re-trial is to put them twice in jeopardy.

It is true that where an accused was not a party to the fraud, a conviction secured fraudulently by the State's officer cannot be avoided by the state (State vs. Heflin, 96 So. 459, 19 Ala. App. 222). However, that exception is inapplicable to the cases at bar where both the prosecution and the Trial Court itself were parties to the fraud and collusion. Nor can it be said that the accused were not a part thereof. The agreement to file the murder charge in Court so that, after being acquitted as planned, the accused could no longer be prosecuted under the doctrine of double jeopardy; the "categorization" of the accused into principals, accomplices and accessories so that not all of them would be denied bail during the trial, were fraudulently conceived for their benefit and for the purpose of protecting them from subsequent prosecution. It is, thus, no bar to a subsequent prosecution for the same offense (Coumas vs. Superior Court, 192 P. 2d. 449, 452, 31 C. 2d. 682). "A verdict of acquittal procured by the accused by fraud and collusion is a nullity and does not put him in jeopardy; and consequently, it is no bar to a second trial for the same offense (State vs. Lee, 30A. 1110, 65 Conn. 265,48 Am. S.R. 202,27 L. RA. 498).

The proceedings below having been fatally flawed by pressure, fraud and collusion, with the legal consequence that there was no trial and judgment to speak of, and under the circumstances peculiar only to these cases, I vote for a re-trial in the interest of truth and the ends of public justice. As in all criminal proceedings, however, the accused must be guaranteed a fair, speedy, and impartial re-trial before an unbiased Tribunal and prosecutor and, I might add, safeguarded against trial by publicity.

ALAMPAY, J., concurring:

Considering that certain significant facts and circumstances not previously disclosed to the Court were found by the Commission constituted by this Court, purposely to inquire and ascertain the veracity of the same, to be duly established by sufficient evidence and are indicative of "a scripted and pre-determined manner of handling and disposing of the Aquino-Galman murder case ...;" and that there exists "adequate credible evidence showing that the prosecution in the Aquino-Galman case and the Justices who tried and decided the same acted under the compulsion of some pressure which proved to be beyond their capacity to resist and which not only prevented the prosecution to fully ventilate its position and to offer all the evidences it could have otherwise presented, but also pre-determined the outcome of the case; ..." I join in granting petitioners' second motion for reconsideration.

In my considered view, the ends of Justice will be best served by allowing the trial anew of the subject cases in order to ultimately obtain a judgment that will be removed from any suspicion of attendant irregularities. With the greatest significance being given by our people to the said cases, which are evidently of historical importance, I am readily persuaded that it

is to our national interest that all relevant evidence that may be now available be provided an opportunity to be received and made known so that whatever is the actual truth can be rightfully ascertained. I, therefore, vote for a declaration of mistrial and for nullifying the proceedings of the referred Criminal Cases Nos. 10010 and 10011 before the Sandiganbayan and the ordering of are trial.

GUTIERREZ, JR., J. concurring::

On November 28, 1985, this Court dismissed the petition for certiorari and prohibition with preliminary injunction and lifted a Temporary Restraining Order earlier granted. We are now acting on a motion for reconsideration filed by the petitioners.

When the Court initially dismissed the petition, I issued a separate concurring and dissenting opinion. The issues before us were novel and momentous. I felt that in immediately dismissing the petition, we were denying the petitioners every reasonable opportunity to prove their allegations of non-independent and biased conduct of both the prosecution and the trial court. I stated that the issues of miscarriage of justice and due process arising from that conduct should be allowed more extended treatment. With then Associate Justices Claudio Teehankee and Vicente Abad Santos, I, therefore, dissented from the Court's resolution denying the petitioners' motions to continue presenting their case.

Since the majority of the Court, however, had decided to resolve the petition on its merits and the findings of the Vasquez Commission were still for the future, I concurred in the result of this Court's action on two grounds-(1) the right of the accused to speedy trial and (2) the presumption in law that judicial acts are regularly performed and that public officers have discharged their duties in accordance with law.

The findings of the Vasquez Commission now confirm my initial misgivings and more than overcome the presumption of regular performance of official duty upon which I based my concurrence.

What were some of these misgivings now given substance by the investigation?

Mistrial is usually raised by the accused. In this petition neither the accused nor the prosecution saw anything wrong in the proceedings. We had the unusual phenomenon of the relatives of one victim, prominent lawyers and law professors, and retired Justices assuming the uncommon role of alleging not only a biased Sandiganbayan but also a Tanodbayan holding back its own evidence. Instead of allowing the heated passions and emotions

generated by the Aquino assassination to cool off or die down, the accused insisted on the immediate rendition of a decision.

The Sandiganbayan is usually sober and respectful in its relations with the Supreme Court. I, therefore, found it strange and unfortunate why, in its Comment, the Sandiganbayan should question our authority to look into the exercise of its jurisdiction. There was the further matter of television cameras during trial, their effect on the witnesses and the judges, and other mischievous potentialities.

The report of the Vasquez Comission now shows that there was more to these misgivings and suspicions than appeared in the records at that time. The Court's opinion penned by the Chief Justice states in detail why the Sandiganbayan was not an impartial tribunal and the Tanodbayan not an unbiased prosecutor.

The right against double jeopardy is intended to protect against repeated litigations and continuous harassment of a person who has already undergone the agony of prosecution and trial for one and the same offense. It certainly was never intended to cover a situation where the prosecution suppresses some of its own evidence, where the accused correctly and eagerly anticipate a judgment of acquittal, and where the court appears to have made up its mind even before trial has started.

Under the circumstances found by the Vasquez Commission, there was a failure of trial tantamount to no trial at all. A "moro-moro" could not possibly result in a just or valid decision.

I am, however, constrained to write this separate opinion to emphasize a concern of this Court and of an Filipinos who want genuine justice to be realized in this case.

In the same way that we deplore the pressures and partiality which led to the judgment of acquittal we must insure that absolutely no indication of bias, pre-judgment, or vindictiveness shall taint the retrial of this case. The fairly strong language used by the Court in its main opinion underscores the gravity with which it views the travesties of justice in this "trial of the century." At the same time, nothing expressed in our opinion should be interpreted as the Supreme Court's making a factual finding, one way or another, about the perpetrators of the Aquino or the Galman killing. Any statements about the circumstances of the assassination or about the military version of the killings are intended solely for one issue whether or not the Sandiganbayan acquittals should be set aside and a retrial ordered.

Neither our final resolution of this petition, the stature of the persons involved, pakikisama, utang na loob for an appointment or reappointment, or any other extraneous matters should color or influence the future course of this case.

Needless to say, any person who, in the past, may have formally expressed opinions about the innocence or guilt of the accused should be neither a prosecutor or judge in any forthcoming trial. It is not enough for the future proceedings to be fair they should be above any suspicion of partiality, bias, rancor, or vindictiveness. It would be unfortunate if, in the conduct of further proceedings in this case, erroneous impressions may arise that a prosecutor or judge has prejudged the guilt or innocence of any accused. Having just declared a mistrial, we should not again declare the retrial as another mistrial, ad infinitum.

For the reasons abovestated, I concur in the decision of the Court to grant the petitioners' second motion for reconsideration.

Feliciano, J., concurs in his statements in the last three paragraphs (prior to the dispositive paragraph) of his Separate Concurring Opinion.

Footnotes

* Francis Garchitorena withdrew as co-petitioner in view of his appointment and assumption of office as Presiding Justice of the Sandiganbayan on May 5, 1986, per the Resolution of May 15, 1986.

*** The motion for intervention of 25 accused generals and military men and one civilian was granted in the Court's Resolution of November 24, 1985. Petitioners in their Manifestation of November 22, 1985 likewise impleaded the said 26 accused as private respondents.

1 See Aquino vs. Military Commission No. 2, et al. 63 SCRA 546 (May 9, 1975). Ninoy Aquino's motion of April 14, 1975 to withdraw his petition challenging the jurisdiction of military tribunals over civilians with his letter stating, inter alia, his reasons for continuing the hunger strike "(he) began ten days ago," that "(he) felt that the case (he) had filed since 1973 in the Supreme Court had become meaningless:" that he has decided to "place (his) fate and (his) life squarely in the hands of . . . Mr. Marcos" was denied by a seven-to-three vote.

2 Col. G. Honasan, Time issue of March 10, 1986; Minister Enrile Newsweek issue of March 3, 1986.

3 P.D. 1886 dated October 14, 1983 and Amendatory P.D. 1903 dated February 8, 1984.

4 As was a matter of public knowledge, the local media were subject to very tight rein by the regime. There was the ironic case of Rommel Corro, publisher-editor of the Philippine Times. His paper was raided, padlocked and closed down by heavily armed soldiers on September 29, 1983, after he had published therein reprints of wire stories on Ninoy Aquino's assassination, viz. that his assassination was the product of a military conspiracy. On October 1, 1983, Corro himself was detained under a Preventive Detention Order issued by the then President and he was thereafter charged in court with inciting to sedition with no bail recommended. He was reporting only what people here and abroad had been thinking and talking about the Aquino assassination. The President's Fact Finding Board's official report later bore out and affirmed what Corro had published the year before that Aquino's assassination-murder was due to a military conspiracy. So on November 8, 1984, upon a habeas corpus petition, the Supreme Court ordered his release on recognizance of his own lawyers. The then President lifted the PDA. But Corro never got back his newspaper until after the then President was deposed, overthrown and fled the country in February, 1986.

5 The first Board headed by then Chief Justice Enrique M. Fernando and composed of four retired Supreme Court Justices resigned, after its composition was challenged in an action filed in the Supreme Court. Thereafter, former Senator Arturo M. Tolentino declined appointment as board chairman.

6 Composed of retired Court of Appeals Justice Corazon J. Agrava, chairman, and lawyer Luciano E. Salazar, businessman Dante G. Santos, labor leader Ernesto F. Herrera and educator Amado C, Dizon members.

7 Mr. & Ms. special edition of Oct. 26-Nov. 1, 1984. p. 11.

8 Idem, p. 12.

9 Times-Journal issue of October 25, 1984.

10 Record, Vol. I, pp. 24-25.

10-a The Court per its Resolution of Nov. 14, 1985 required respondents' comment on the petition by Nov. 18, 1985 and set the Plea for restraining order for hearing at 3:00 p.m. of the same day. Ramon C. Aquino, J., joined by Felix V. Makasiar, C.J., voted to dismiss outright the petition on the grounds that "The Sandiganbayan and Tanodbayan acted within their jurisdiction in trying the case," "petitioners are neither public prosecutors nor the accused" and have no cause for action, concluding that the "petition is novel and unprecedented for the single reason that it is devoid of any legal basis."

11 As per the Court's Resolution of November 18, 1985, Senior Associate Justice Claudio Teehankee and Associate Justices Vicente Abad Santos, Efren 1. Plana, Venicio Escolin, Hugo Gutierrez, Jr., Buenaventura de la Fuente, Serafin Cuevas, Nestor Alampay and Lino Patajo voted to issue the restraining order, and Makasiar, C.J. and Ramon C. Aquino, J. reiterated their votes to dismiss the petition. Concepcion, Jr. and Melencio-Herrera, JJ. were absent and Relova, J. was on leave.

12 As per the Court's Resolution of November 28, 1985, Chief Justice Ramon C. Aquino and Associate Justices Hermogenes Concepcion, Jr., Efren I. Plana, Venicio Escolin Hugo Gutierrez, Jr., Buenaventura de la Fuente, Serafin R. Cuevas, Nestor Alampay and Lino Patajo so voted to dismiss the petition, Teehankee and Abad Santos, JJ. filed separate dissenting opinions. Gutierrez, Jr., J. filed a concurring and dissenting opinion Melencio-Herrera and Relova, JJ. were on leave.

Teehankee, J. stated in his dissent and vote for granting petitioners the requested 5-day period and to set the case for hearing on the merits: "I fail to see the need of rushing the release of the majority resolution of dismissal considering that it was made quite clear at the hearing on the petition for issuance of a temporary restraining order on November 18, 1985 that the merits of the petition would be heard by the Court after the parties had opportunity to file their pleadings such as an amended petition to implead the accused as well as the People as parties respondents, besides giving the petitioners an opportunity to reply to the comments filed by the original

respondents Sandiganbayan and Tanodbayan." He added that the petition deserved a full-dress hearing on the merits; that the personality of the offended party such as Saturnina D. Galman in disqualification cases to file the action independently of the prosecution to stop the rendition of a possible judgment of acquittal by a biased court which would leave the offended party without any remedy nor appeal in view of the double jeopardy rule has long been recognized, since the 1969 case of Paredes vs. Gopengco 29 SCRA 688, not to mention the overrriding and transcending public interest.

Abad Santos, J., in dissenting and voting that "The minimum treatment which the petition deserves is a full-dress hearing on the merits, " prefaced same with the statement that "I never had any illusion concerning the ultimate fate of the instant petition, but the precipitate dismissal truly amazes me."

13 Escolin, J. was absent.

14 Gutierrez, Jr., J., citing the momentous issues of due process and grave averments of miscarriage of justice, cast a dissenting vote against the majority resolution to deny petitioners the brief 5-day extension to file a reply and to "immediately dismiss or deny the petition" (italics copied), stating that petitioners should be given every reasonable opportunity to show the merit of their petition. He "personally found it intriguing for the accused in a sensational double murder case involving the rallying figure of the political opposition to strongly insist on an immediate decision." He expressed "disturbance why the 'trial of the century where all the accused, except for one civilian, are military officials and where witnesses are understandably reluctant to come forward,' should have been televised at all. But he concurred in the results of the majority resolution of immediate dismissal of the petition on "the presumption that judicial acts were regularly performed and that public officers have discharged their duties in accordance with law. "

15 The Court, then composed of ten members, Teehankee, C.J. and Concepcion Jr., Abad Santos, Melencio-Herrera, Plana, Escolin, Gutierrez, Jr., Cuevas, Alampay and Patajo, JJ. voted unanimously.

15-a Vol. III, Record, p. 703.

16 63 pages so numbered with an additional page 19-A.

17 Justice Conrado M. Vasquez was admitted to the Bar in 1937. He occupied successively the positions of Chief, Legal Research Division, and Chief, Law Division, of the Department of Justice, before his appointment as Judge of the Court of First Instance (1954-1973). He was Associate Justice of the Court of Appeals for 5 years (19731978) until his compulsory retirement at age 65 on September 3, 1978. He was called back from retirement and appointed Associate Justice of the Supreme Court on May 14, 1982 until his compulsory retirement at age 70 on September 3, 1983.

Justice Milagros German was admitted to the Bar in 1940. She occupied the positions of Assistant Fiscal of Manila (1948-1959); Judge, City Court of Manila (1959-1962); Judge of the Court of Agrarian Relations (1965-1978) and Associate Justice of the Court of Appeals (February 15, 1978 until her compulsory retirement on October 3, 1985).

Justice Eduardo Caguioa was admitted to the Bar in 1940. He was an active law practitioner and law professor. He was appointed Judge of the Court of First Instance on May 12, 1971 until January 16, 1983 when he was promoted to the Court of Appeals, until his compulsory retirement on March 14, 1986.

18 Commission's Report, pp. 29-35; emphasis supplied.

19 Commission's Report, p. 27.

20 Idem, p. 38.

21 Idem, pp. 40-43.

22 "The thing speaks for itself."

23 According to Gen. Olivas' counsel Atty. N. Quisumbing's statement at last August 26th hearing, what could have concerned President Marcos ... to me what concerned him in the security of the State. Did he like the demonstrators to go back to the streets.?"

24 Sec. 22 of the Bill of Rights provides: "No person shall be twice put in jeopardy of punishment for the same offense. If an act is punished by a law

and an ordinance, conviction or acquittal under either shall constitute a bar to another prosecution for the same act."

25 Supra, fn. 1 on page 3 hereof.

26 Article 243, Revised Penal Code.

26-a See the writer's separate opinion in G.R. Nos. 69025 and 69046 "Arturo M. de Castro vs. Hon. Estelito Mendoza, et al.), June 4, 1985: "Petitioners cite long-standing laws and practice that Armed Forces officers and men are exclusively tried and punished by the executive process of court martial pursuant to the Articles of War. But respondent minister disclosed at the hearing of oral arguments on November 8, 1984 the issuance of P.D. No. 1952 dated September 5, 1984 concededly not published nor disclosed prior to said date whereby 'the President may, in the interest of justice, order or direct, at any time before arraignment, that a particular case be tried by the appropriate civil court' and thereby waive the mandatory court martial jurisdiction."

26-b Osmena, Jr. vs. Secretary of Justice, 41 SCRA 199, 205 (1971).

27 138 SCRA 166 (Aug. 16, 1985) per Makasiar, C.J. (retired). See also Combate vs. San Jose, Jr., 135 SCRA 693 (April 15, 1985), per Melencio-Herrera, J. and People vs. Catolico, 38 SCRA 389 (1971), per Teehankee, J.; People vs. Navarro, 63 SCRA 264 (1975), per E.A. Fernandez, J.

27-a Uy vs. Genato, L-37399, 57 SCRA 123 [May 29, 1974]; Serino vs. Sosa, L-33116, 40 SCRA 433 [Aug. 31, 1971]; People vs. Gomez, L-22345, 20 SCRA 293 [May 29, 1967]; People vs. Balisacan, L-26376, 17 SCRA 1119 [Aug. 31, 1966].

28 Deputy Tanodbayan Herrera's Comment dated April 14, 1986, see Annex "D".

29 Olmstead vs. U.S., 277 U.S. 438, dissenting opinion of Brandeis, J.

30 101 SCRA 450 (1980), per Melencio-Herrera, J.; Emphasis supplied.

31 Deputy Tanodbayan's Comments dated April l4, 1986.

32 Idem. 33

33 SCRA 688 (1969), per Teehankee, J.

34 Cf. Mateo vs. Villaluz, 50 SCRA 19; Pimentel vs. Salonga, 21 SCRA 160; Luque vs. Kayanan, 29 SCRA 165.

35 133 SCRA 150, (1984) per Abad Santos, J. (retired); notes in brackets supplied.

36 86 SCRA 305 (1978) per Teehankee, J.

37 Except for the writer who was appointed and took his oath of Office as Chief Justice on April 2nd. See footnote 15, on p. 13.

**** Feria, J., inhibited himself, petitioner Maria Feria being his sister.

***** Fernan, J., one of the petitioners, and Narvasa, J., who was general counsel of the Fact Finding Board, took no part.

Republic of the PhilippinesSUPREME COURT

Manila

EN BANC

 

G.R. No. 131652 March 9, 1998

BAYANI M. ALONTE, petitioner, vs.HON. MAXIMO A. SAVELLANO JR., NATIONAL BUREAU OF INVESTIGATION and PEOPLE OF THE PHILIPPINES, respondents.

G.R. No. 131728 March 9, 1998

BUENAVENTURA CONCEPCION, petitioner, vs.JUDGE MAXIMO SAVELLANO, JR., THE PEOPLE OF THE PHILIPPINES, and JUVIELYN Y. PUNONGBAYAN, respondents.

 

VITUG, J.:

Pending before this Court are two separate petitions, one filed by petitioner Bayani M. Alonte, docketed G.R. No. 131652, and the other by petitioner Buenaventura Concepcion, docketed G.R. No. 131728, that assail the decision of respondent Judge Maximo A. Savellano, Jr., of the Regional Trial Court ("RTC"), Branch 53, of Manila finding both petitioners guilty beyond reasonable doubt of the crime of rape. The two petitions were consolidated.

On 05 December 1996, an information for rape was filed against petitioners Bayani M. Alonte, an incumbent Mayor of Biñan, Laguna, and Buenaventura Concepcion predicated on a complaint filed by Juvie-lyn Punongbayan. The information contained the following averments; thus:

That on or about September 12, 1996, in Sto. Tomas, Biñan, Laguna, and within the jurisdiction of this Honorable court, the above named accused, who is the incumbent mayor of Biñan, Laguna after giving complainant-child drinking water which made her dizzy and weak, did then and there willfully, unlawfully and feloniously have carnal knowledge with said JUVIELYN PUNONGBAYAN against her will and consent, to her damage and prejudice.

That accused Buenaventura "Wella" Concepcion without having participated as principal or accessory assisted in the commission of the offense by bringing said complainant child to the rest house of accused Bayani "Arthur" Alonte at Sto. Tomas, Biñan, Laguna and after receiving the amount of P1,000.00 left her alone with Bayani Alonte who subsequently raped her.

Contrary to Law. 1

The case was docketed Criminal Case No. 9619-B and assigned by raffle to Branch 25 of the RTC of Biñan, Laguna, presided over by Judge Pablo B. Francisco.

On 13 December 1996, Juvie-lyn Punongbayan, through her counsel Attorney Remedios C. Balbin, and Assistant Chief State Prosecutor ("ACSP") Leonardo Guiyab, Jr., filed with the Office of the Court Administrator a Petition for a Change of Venue (docketed Administrative Matter No. 97-1-12-RTC) to have the case transferred and tried by any of the Regional Trial Courts in Metro Manila.

During the pendency of the petition for change of venue, or on 25 June 1997, Juvie-lyn Punongbayan, assisted by her parents and counsel, executed an affidavit of desistance, quoted herein in full, as follows:

AFFIDAVIT OF DESISTANCE

I, JUVIE-LYN YAMBAO PUNONGBAYAN, 17 years of age, a resident of No. 5 Uranus Street, Congressional Avenue Subdivision, Quezon City, duly assisted by private legal counsel and my parents, after having duly sworn in accordance with law, depose and say:

1. That I am the Complainant in the rape case filed against Mayor Bayani "Arthur" Alonte of Biñan, Laguna, with the RTC-Branch 25 of Biñan, Laguna;

2. That the case has been pending for some time, on preliminary issues, specifically, (a) change of venue, filed with the Supreme Court; (b) propriety of the appeal to the Court of Appeals, and after its denial by said court, brought to the Office of the President, on the veracity of the findings of the Five-Man Investigating Panel of the State Prosecutor's Office, and the Secretary of Justice, and (c) a hold-departure order filed with the Biñan Court.

3. That the legal process moves ever so slowly, and meanwhile, I have already lost two (2) semesters of my college residence. And when the actual trial is held after all the preliminary issues are finally resolved, I anticipate a still indefinite suspension of my schooling to attend the hearings;

4. That during the entire period since I filed the case, my family has lived a most abnormal life: my father and mother had to give up their jobs; my younger brother, who is in fourth grade, had to stop his schooling, like myself;

5 That I do not blame anyone for the long, judicial process, I simply wish to stop and live elsewhere with my family, where we can start life anew, and live normally once again;

6. That I pray that I be allowed to withdraw my complaint for rape and the other charge for child abuse wherein the Five-Man Investigating Panel of the Office of the State Prosecutor found a prima facie case although the information has not been filed, and that I will not at any time revive this, and related cases or file new cases, whether, criminal, civil, and/or administrative, here or anywhere in the Philippines;

7 That I likewise realize that the execution of this Affidavit will put to doubt my credibility as a witness-complainant;

8. That this is my final decision reached without fear or favor, premised on a corresponding commitment that there will be no reprisals in whatever form, against members of the police force or any other official of officer, my relatives and friends who extended assistance to me in whatever way, in my search for justice.

WHEREOF, I affix my signature this 25 day of June, 1997, in Quezon City.

(Sgd) JUVIE-LYN Y. PUNONGBAYAN

Complainant

Assisted by:

(Sgd) ATTY. REMEDIOS C. BALBIN

Private Prosecutor

In the presence of:

(Sgd) PABLO PUNONGBAYAN

Father

(Sgd) JULIE Y. PUNONGBAYAN

Mother

SUBSCRIBED AND SWORN to before me this 25 day of June, 1997, in Quezon City.

(Sgd) Illegible

Administering Officer 2

On 28 June 1997, Atty. Ramon C. Casino, on behalf of petitioners, moved to have the petition for change of venue dismissed on the ground that it had become moot in view of complainant's affidavit of desistance. On 22 August 1997, ACSP Guiyab filed his comment on the motion to dismiss. Guiyab asserted that he was not aware of the desistance of private complainant and opined that the desistance, in any case, would not produce any legal effect since it was the public prosecutor who had direction and control of the prosecution of the criminal action. He prayed for the denial of the motion to dismiss.

On 02 September 1997, this Court issued a Resolution (Administrative Matter No. 97-1-12-RTC), granting the petition for change of venue. The Court said:

These affidavits give specific names, dates, and methods being used to abort, by coercion or corruption, the prosecution of Criminal Case No. 9619-B. It is thus incorrect for oppositors Alonte and Concepcion to contend that the fear of the petitioner, her private counsel and her witnesses are too generalized if not fabricated. Indeed, the probability that in desisting from pursuing her complaint for rape, petitioner, a minor, may have succumbed to some illicit influence and undue pressure. To prevent possible miscarriage of justice is a good excuse to grant the petition to transfer the venue of Criminal Case No. 9619-B from Biñan, Laguna to the City of Manila.

IN VIEW WHEREOF, the Petition for Change of Venue from Biñan, Laguna to the City of Manila is granted. The Executive Judge of RTC Manila is ordered to raffle Crim. Case No. 9619-B to any of its branches. The judge to whom Crim. Case No. 9619-B shall be raffled shall resolve the petitioner's Motion to Resume Proceedings filed in Br. XXV of the RTC of Biñan, Laguna and determine the voluntariness and validity of petitioner's desistance in light of the opposition of the public prosecutor, Asst. Chief State Prosecutor Leonardo Guiyab. The branch clerk of court of Br. XXV of the RTC of Biñan, Laguna is ordered to personally deliver to the Executive Judge of Manila the complete records of Crim. Case No. 9619-B upon receipt of this Resolution. 3

On 17 September 1997, the case, now re-docketed Criminal Case No. 97-159955 by the Clerk of Court of Manila, was assigned by raffle to Branch 53, RTC Manila, with respondent Judge Maximo A. Savellano, Jr., presiding.

On 07 October 1997, Juvie-lyn Punongbayan, through Attorney Balbin, submitted to the Manila court a "compliance" where she reiterated "her decision to abide by her Affidavit of Desistance."

In an Order, dated 09 October 1997, Judge Savellano found probable cause for the issuance of warrants for the arrest of petitioners Alonte and Concepcion "without prejudice to, and independent of, this Court's separate determination as the trier of facts, of the voluntariness and validity of the [private complainant's] desistance in the light of the opposition of the public prosecutor, Asst. Chief State Prosecutor Leonardo Guiyab."

On 02 November 1997, Alonte voluntarily surrendered himself to Director Santiago Toledo of the National Bureau of Investigation ("NBI"), while Concepcion, in his case, posted the recommended bail of P150,000.00.

On 07 November 1997, petitioners were arraigned and both pleaded "not guilty" to the charge. The parties manifested that they were waiving pre-trial. The proceedings forthwith went on. Per Judge Savellano, both parties agreed to proceed with the trial of the case on the merits. 4 According to Alonte, however, Judge Savellano allowed the prosecution to present evidence relative only to the question of the voluntariness and validity of the affidavit of desistance. 5

It would appear that immediately following the arraignment, the prosecution presented private complainant Juvielyn Punongbayan followed by her parents. During this hearing, Punongbayan affirmed the validity and voluntariness of her affidavit of desistance. She stated that she had no intention of giving positive testimony in support of the charges against Alonte and had no interest in further prosecuting the action. Punongbayan confirmed: (i) That she was compelled to desist because of the harassment she was experiencing from the media, (ii) that no pressures nor influence were exerted upon her to sign the affidavit of desistance, and (iii) that neither she nor her parents received a single centavo from anybody to secure the affidavit of desistance.

Assistant State Prosecutor Marilyn Campomanes then presented, in sequence: (i) Punongbayan's parents, who affirmed their signatures on the affidavit of desistance and their consent to their daughter's decision to desist from the case, and (ii) Assistant Provincial Prosecutor Alberto Nofuente, who attested that the affidavit of desistance was signed by

Punongbayan and her parents in his presence and that he was satisfied that the same was executed freely and voluntarily. Finally, Campomanes manifested that in light of the decision of private complainant and her parents not to pursue the case, the State had no further evidence against the accused to prove the guilt of the accused. She, then, moved for the "dismissal of the case" against both Alonte and Concepcion.

Thereupon, respondent judge said that "the case was submitted for decision." 6

On 10 November 1997, petitioner Alonte filed an "Urgent Motion to Admit to Bail." Assistant State Prosecutor Campomanes, in a Comment filed on the same date, stated that the State interposed "no objection to the granting of bail and in fact Justice and Equity dictates that it joins the accused in his prayer for the granting of bail."

Respondent judge did not act on the application for bail.

On 17 November 1997, Alonte filed anew an Urgent Plea to Resolve the Motion for Bail. On even date, ASP Campomanes filed a Manifestation deeming "it proper and in accord with justice and fair play to join the aforestated motion."

Again, the respondent judge did not act on the urgent motion.

The records would indicate that on the 25th November 1997, 1st December 1997, 8th December 1997 and 10th December 1997, petitioner Alonte filed a Second, Third, Fourth and Fifth Motion for Early Resolution, respectively, in respect of his application for bail. None of these motions were acted upon by Judge Savellano.

On 17 December 1997, Attorney Philip Sigfrid A. Fortun, the lead counsel for petitioner Alonte received a notice from the RTC Manila. Branch 53, notifying him of the schedule of promulgation, on 18 December 1997, of the decision on the case. The counsel for accused Concepcion denied having received any notice of the scheduled promulgation.

On 18 December 1997, after the case was called, Atty. Sigrid Fortun and Atty. Jose Flaminiano manifested that Alonte could not attend the promulgation of the decision because he was suffering from mild hypertension and was confined at the NBI clinic and that, upon the other hand, petitioner Concepcion and his counsel would appear not to have been notified of the proceedings. The promulgation, nevertheless, of the decision proceeded in absentia; the reading concluded:

WHEREFORE, judgment is hereby rendered finding the two (2) accused Mayor Bayani Alonte and Buenaventura "Wella" Concepcion guilty beyond reasonable doubt of the heinous crime of RAPE, as defined and penalized under Article 335(2) in relation to Article 27 of the Revised Penal Code, as amended by Republic Act No. 7659, for which each one of the them is hereby sentenced to suffer the indivisible penalty of RECLUSION PERPETUA or imprisonment for twenty (20) years and one (1) day to forty (40) years.

In view thereof, the bail bond put up by the accused Buenaventura "Wella'" Concepcion for his provisional liberty is hereby cancelled and rendered without any further force and effect.

SO ORDERED. 7

On the same day of 18th December 1997, petitioner Alonte filed a motion for reconsideration. Without waiting for its resolution, Alonte filed the instant "Ex Abundante Ad Cautelam" for "Certiorari, Prohibition, Habeas Corpus, Bail, Recusation of respondent Judge, and for Disciplinary Action against an RTC Judge." Petitioner Concepcion later filed his own petition for certiorari and mandamus with the Court.

Alonte submits the following grounds in support of his petition seeking to have the decision nullified and the case remanded for new trial; thus:

The respondent Judge committed grave abuse of discretion amounting to lack or excess of jurisdiction when he rendered a Decision in the case a quo (Annex A) without affording the petitioner his Constitutional right to due process of law (Article III, §1, Constitution).

The respondent Judge committed grave abuse of discretion amounting to lack or excess of jurisdiction when he rendered a Decision in the case a quo in violation of the mandatory provisions of the Rules on Criminal Procedure, specifically, in the conduct and order of trial (Rule 119) prior to the promulgation of a judgment (Rule 120; Annex A).

The respondent Judge committed grave abuse of discretion amounting to lack or excess of jurisdiction when, in total disregard of the Revised Rules on Evidence and existing doctrinal jurisprudence, he rendered a Decision in the case a quo (Annex A) on the basis of two (2) affidavits (Punongbayan's and Balbin's) which were neither marked nor offered into evidence by the prosecution, nor without giving the petitioner

an opportunity to cross-examine the affiantsthereof, again in violation of petitioner's right to due process (Article III, §1, Constitution).

The respondent Judge committed grave abuse of discretion amounting to lack or excess of jurisdiction when he rendered a Decision in the case a quo without conducting a trial on the facts which would establish that complainant was raped by petitioner (Rule 119, Article III, §1, Constitution), thereby setting a dangerous precedent where heinous offenses can result in conviction without trial (then with more reason that simpler offenses could end up with the same result). 8

On the other hand, Concepcion relies on the following grounds in support of his own petition; thus:

1. The decision of the respondent Judge rendered in the course of resolving the prosecution's motion to dismiss the case is a patent nullity for having been rendered without jurisdiction, without the benefit of a trial and in total violation of the petitioner's right to due process of law.

2. There had been no valid promulgation of judgment at least as far as petitioner is concerned.

3. The decision had been rendered in gross violation of the right of the accused to a fair trial by an impartial and neutral judge whose actuations and outlook of the case had been motivated by a sinister desire to ride on the crest of media hype that surrounded this case and use this case as a tool for his ambition for promotion to a higher court.

4. The decision is patently contrary to law and the jurisprudence in so far as it convicts the petitioner as a principal even though he has been charged only as an accomplice in the information. 9

The petitions deserve some merit; the Court will disregard, in view of the case milieu, the prematurity of petitioners' invocation, i.e., even before the trial court could resolve Alonte's motion for reconsideration.

The Court must admit that it is puzzled by the somewhat strange way the case has proceeded below. Per Judge Savellano, after the waiver by the parties of the pre-trial stage, the trial of the case did proceed on the merits but that —

The two (2) accused did not present any countervailing evidence during the trial. They did not take the witness stand to refute or deny under oath the truth of the contents of the private complainant's aforementioned affidavit which she expressly affirmed and confirmed in Court, but, instead, thru their respective lawyers, they rested and submitted the case for decision merely on the basis of the private complainant's so called "desistance" which, to them, was sufficient enough for their purposes. They left everything to the so-called "desistance" of the private complainant. 10

According to petitioners, however, there was no such trial for what was conducted on 07 November 1997, aside from the arraignment of the accused, was merely a proceeding in conformity with the resolution of this Court in Administrative Case No. 97-1-12-RTC to determine the validity and voluntariness of the affidavit of desistance executed by Punongbayan.

It does seem to the Court that there has been undue precipitancy in the conduct of the proceedings. Perhaps the problem could have well been avoided had not the basic procedures been, to the Court's perception, taken lightly. And in this shortcoming, looking at the records of the case, the trial court certainly is not alone to blame.

Section 14, paragraphs (1) and (2), of Article III, of the Constitution provides the fundamentals.

(1) No person shall be held to answer for a criminal offense without due process of law.

(2) In all criminal prosecutions, the accused shall be presumed innocent until the contrary is proved, and shall enjoy the right to be heard by himself and counsel, to be informed of the nature and cause of the accusation against him, to have a speedy, impartial, and public trial, to meet the witnesses face to face, and to have compulsory process to secure the attendance of witnesses and the production of evidence in his behalf. However, after arraignment, trial may proceed notwithstanding the absence of the accused provided that he has been duly notified and his failure to appear is unjustifiable.

Jurisprudence 11 acknowledges that due process in criminal proceedings, in particular, require (a) that the court or tribunal trying the case is properly clothed with judicial power to hear and determine the matter before it; (b) that jurisdiction is lawfully acquired by it over the person of

the accused; (c) that the accused is given an opportunity to be heard; and (d) that judgment is rendered only upon lawful hearing. 12

The above constitutional and jurisprudential postulates, by now elementary and deeply imbedded in our own criminal justice system, are mandatory and indispensable. The principles find universal acceptance and are tersely expressed in the oft-quoted statement that procedural due process cannot possibly be met without a "law which hears before it condemns, which proceeds upon inquiry and renders judgment only after trial." 13

The order of trial in criminal cases is clearly spelled out in Section 3, Rule 119, of the Rules of Court; viz:

Sec. 3. Order of trial. — The trial shall proceed in the following order:

(a) The prosecution shall present evidence to prove the charge and, in the proper case, the civil liability.

(b) The accused may present evidence to prove his defense, and damages, if any, arising from the issuance of any provisional remedy in the case.

(c) The parties may then respectively present rebutting evidence only, unless the court, in furtherance of justice, permits them to present additional evidence bearing upon the main issue.

(d) Upon admission of the evidence, the case shall be deemed submitted for decision unless the court directs the parties to argue orally or to submit memoranda.

(e) However, when the accused admits the act or omission charged in the complaint or information but interposes a lawful defense, the order of trial may be modified accordingly.

In Tabao vs. Espina, 14 the Court has underscored the need to adhere strictly to the above rules. It reminds that —

. . . each step in the trial process serves a specific purpose. In the trial of criminal cases, the constitutional presumption of innocence in favor of an accused requires that an accused be given sufficient opportunity to present his defense. So, with the prosecution as to its evidence.

Hence, any deviation from the regular course of trial should always take into consideration the rights of all the parties to the case, whether in the prosecution or defense. In the exercise of their discretion, judges are sworn not only to uphold the law but also to do what is fair and just. The judicial gavel should not be wielded by one who has an unsound and distorted sense of justice and fairness. 15

While Judge Savellano has claimed in his Comment that —

Petitioners-accused were each represented during the hearing on 07 November 1997 with their respective counsel of choice. None of their counsel interposed an intention to cross-examine rape victim Juvielyn Punongbayan, even after she attested, in answer to respondent judge's clarificatory questions, the voluntariness and truth of her two affidavits — one detailing the rape and the other detailing the attempts to buy her desistance; the opportunity was missed/not used, hence waived. The rule of case law is that the right to confront and cross-examine a witness "is a personal one and may be waived." (emphasis supplied) —

it should be pointed out, however, that the existence of the waiver must be positively demonstrated. The standard of waiver requires that it "not only must be voluntary, but must be knowing, intelligent, and done with sufficient awareness of the relevant circumstances and likely consequences." 16 Mere silence of the holder of the right should not be so construed as a waiver of right, and the courts must indulge every reasonable presumption against waiver. 17 The Solicitor General has aptly discerned a few of the deviations from what otherwise should have been the regular course of trial: (1) Petitioners have not been directed to present evidence to prove their defenses nor have dates therefor been scheduled for the purpose; 18 (2) the parties have not been given the opportunity to present rebutting evidence nor have dates been set by respondent Judge for the purpose; 19 and (3) petitioners have not admitted the act charged in the Information so as to justify any modification in the order of trial. 20 There can be no short-cut to the legal process, and there can be no excuse for not affording an accused his full day in court. Due process, rightly occupying the first and foremost place of honor in our Bill of Rights, is an enshrined and invaluable right that cannot be denied even to the most undeserving.

This case, in fine, must be remanded for further proceedings. And, since the case would have to be sent back to the court a quo, this ponencia has carefully avoided making any statement or reference that might be misconstrued as prejudgment or as pre-empting the trial court in the proper disposition of the case. The Court likewise deems it appropriate that all related proceedings therein, including the petition for bail, should be subject to the proper disposition of the trial court.

Nevertheless, it is needful to stress a few observations on the affidavit of desistance executed by the complainant.

Firstly, the affidavit of desistance of Juvie-Lyn Punongbayan, hereinbefore quoted, does not contain any statement that disavows the veracity of her complaint against petitioners but merely seeks to "be allowed to withdraw" her complaint and to discontinue with the case for varied other reasons. On this subject, the case ofPeople vs. Junio, 21 should be instructive. The Court has there explained:

The appellant's submission that the execution of an Affidavit of Desistance by complainant who was assisted by her mother supported the "inherent incredibility of prosecution's evidence" is specious. We have said in so many cases that retractions are generally unreliable and are looked upon with considerable disfavor by the courts. The unreliable character of this document is shown by the fact that it is quite incredible that after going through the process of having accused-appellant arrested by the police, positively identifying him as the person who raped her, enduring the humiliation of a physical examination of her private parts, and then repeating her accusations in open court by recounting her anguish, Maryjane would suddenly turn around and declare that "[a]fter a careful deliberation over the case, (she) find(s) that the same does not merit or warrant criminal prosecution.

Thus, we have declared that at most the retraction is an afterthought which should not be given probative value. It would be a dangerous rule to reject the testimony taken before the court of justice simply because the witness who has given it later on changed his mind for one reason or another. Such a rule will make a solemn trial a mockery and place the investigation at the mercy of unscrupulous witnesses. Because affidavits of retraction can easily be secured from poor and ignorant witnesses, usually for monetary consideration, the Court has invariably regarded such affidavits as exceedingly unreliable [Flores vs. People, 211 SCRA 622, citing De Guzman vs. Intermediate Appellate Court, 184 SCRA 128; People vs. Galicia, 123 SCRA 550.] 22

The Junio rule is no different from ordinary criminal cases. For instance, in People vs. Ballabare, 23 a murder case, the Court has ruled:

The contention has no merit. To begin with, the Affidavit executed by eyewitness Tessie Asenita is not a recantation. To recant a prior statement is to renounce and withdraw it formally and publicly. [36 WORDS AND PHRASES 683, citing Pradlik vs. State, 41-A 2nd, 906, 907.] In her affidavit, Tessie Asenita did not really recant what

she had said during the trial. She only said she wanted to withdraw her testimony because her father, Leonardo Tacadao, Sr., was no longer interested in prosecuting the case against accused-appellant. Thus, her affidavit stated:

3. That inasmuch as my father, Leonardo Tacadao, Sr., the complainant therein, was no longer interested to prosecute the case as manifested in the Sworn Affidavit of Desistance before the Provincial Prosecutor, I do hereby WITHDRAW and/or REVOKE my testimony of record to confirm (sic) with my father's desire;

It is absurd to disregard a testimony that has undergone trial and scrutiny by the court and the parties simply because an affidavit withdrawing the testimony is subsequently presented by the defense. In the first place, any recantation must be tested in a public trial with sufficient opportunity given to the party adversely affected by it to cross-examine the recanting witness. In this case, Tessie Asenita was not recalled to the witness stand to testify on her affidavit. Her affidavit is thus hearsay. It was her husband, Roque Asenita, who was presented and the matters he testified to did not even bear on the substance of Tessie's affidavit. He testified that accused-appellant was not involved in the perpetration of the crime.

In the second place, to accept the new evidence uncritically would be to make a solemn trial a mockery and place the investigation at the mercy of unscrupulous witnesses. [De Guzman vs. Intermediate Appellate Court, 184 SCRA 128, 134, citing People vs. Morales, 113 SCRA 683.] For even assuming that Tessie Asenita had made a retraction, this circumstance alone does not require the court to disregard her original testimony. A retraction does not necessarily negate an earlier declaration. [People vs. Davatos, 229 SCRA 647.] For this reason, courts look with disfavor upon retractions because they can easily be obtained from witnesses usually through intimidation or for monetary considerations. [People vs. Clamor, 198 SCRA 642.] Hence, when confronted with a situation where a witness recants his testimony, courts must not automatically exclude the original testimony solely on the basis of the recantation. They should determine which testimony should be given credence through a comparison of the original testimony and the new testimony, applying the general rules of evidence. [Reano vs. Court of Appeals, 165 SCRA 525.] In this case we think the trial court correctly ruled. 24

It may not be amiss to state that courts have the inherent power to compel the attendance of any person to testify in a case pending before it, and a party is not precluded from invoking that authority. 25

Secondly, an affidavit of desistance by itself, even when construed as a pardon in the so-called "private crimes," is not a ground for the dismissal of the criminal case once the action has been instituted. The affidavit, nevertheless, may, as so earlier intimated, possibly constitute evidence whose weight or probative value, like any other piece of evidence, would be up to the court for proper evaluation. The decision in Junio went on to hold —

While "[t]he offenses of seduction, abduction, rape or acts of lasciviousness, shall not be prosecuted except upon a complaint flied by the offended party or her parents, grandparents, or guardian, nor in any case, if the offender has been expressly pardoned by the above named persons, as the case may be," [Third par. of Art. 344, The Revised Penal Code.] the pardon to justify the dismissal of the complaint should have been made prior to the institution of the criminal action. [People vs. Entes, 103 SCRA 162, cited by People vs. Soliao, 194 SCRA 250, which in turn is cited in People vs. Villorente, 210 SCRA 647.] Here, the motion to dismiss to which the affidavit of desistance is attached was filed after the institution of the criminal case. And, affiant did not appear to be serious in "signifying (her) intention to refrain from testifying" since she still completed her testimony notwithstanding her earlier affidavit of desistance. More, the affidavit is suspect considering that while it was dated "April 1992," it was only submitted sometime in August 1992, four (4) months after the Information was filed before the court a quo on 6 April 1992, perhaps dated as such to coincide with the actual filing of the case. 26

In People vs. Miranda, 27 applying the pertinent provisions of Article 344 of the Revised Penal Code which, in full, states —

Art. 344. Prosecution of the crimes of adultery, concubinage, seduction, abduction, rape, and acts of lasciviousness. The crimes of adultery and concubinage shall not be prosecuted except upon a complaint filed by the offended spouse.

The offended party cannot institute criminal prosecution without including both the guilty parties, if they are both alive, nor, in any case, if he shall have consented or pardoned the offenders.

The offenses of seduction, abduction, rape or acts of lasciviousness, shall not be prosecuted except upon a complaint filed by the offended party or her parents, grandparents, or guardian, nor, in any case, if the offender has been expressly pardoned by the above named persons, as the case may be.

In cases of seduction, abduction, acts of lasciviousness and rape, the marriage of the offender with the offended party shall extinguish the criminal action or remit the penalty already imposed upon him. The provisions of this paragraph shall also be applicable to the coprincipals, accomplices and accessories after the fact of the above-mentioned crimes.

the Court said:

Paragraph 3 of the legal provision above quoted prohibits a prosecution for seduction, abduction, rape, or acts of lasciviousness, except upon a complaint made by the offended party or her parents, grandparents, or guardian, nor, in any case, if the offender has been expressly pardoned by the above-named persons, as the case may be. It does not prohibit the continuance of a prosecution if the offended party pardons the offender after the cause has been instituted, nor does it order the dismissal of said cause. The only act that according to article 344 extinguishes the penal action and the penalty that may have been imposed is the marriage between the offended and the offended party. 28

In People vs. Infante, 29 decided just a little over a month before Miranda, the Court similarly held:

In this court, after the case had been submitted, a motion to dismiss was filed on behalf of the appellant predicated on an affidavit executed by Manuel Artigas, Jr., in which he pardoned his guilty spouse for her infidelity. But this attempted pardon cannot prosper for two reasons. The second paragraph of article 344 of the Revised Penal Code which is in question reads: "The offended party cannot institute criminal prosecution without including both the guilty parties, if they are both alive, nor, in any case, if he shall have consented or pardoned the offenders." This provision means that the pardon afforded the offenders must come before the institution of the criminal prosecution, and means, further, that both the offenders must be pardoned by the offended party. To elucidate further, article 435 of the old Penal Code provided: "The husband may at any time remit the penalty imposed upon his wife. In such case the penalty imposed upon the wife's paramour shall also be deemed to be remitted." These provisions of the old Penal Code became inoperative after the passage of Act No. 1773, section 2, which had the effect of repealing the same. The Revised Penal Code thereafter expressly repealed the old Penal Code, and in so doing did not have the effect of reviving any of its provisions which were not in force. But with the incorporation of the second paragraph of article 344, the pardon given by the offended party again constitutes a bar to the prosecution for adultery. Once more,

however, it must be emphasized that this pardon must come before the institution of the criminal prosecution and must be for both offenders to be effective — circumstances which do not concur in this case. 30

The decisions speak well for themselves, and the Court need not say more than what it has heretofore already held.

Relative to the prayer for the disqualification of Judge Savellano from further hearing the case, the Court is convinced that Judge Savellano should, given the circumstances, the best excused from the case. Possible animosity between the personalities here involved may not all be that unlikely. The pronouncement of this Court in the old case of Luque vs. Kayanan 31 could again be said: All suitors are entitled to nothing short of the cold neutrality of an independent, wholly-free, disinterested and unbiased tribunal. Second only to the duty of rendering a just decision is the duty of doing it in a manner that will not arouse any suspicion as to the fairness and integrity of the Judge. 32 It is not enough that a court is impartial, it must also be perceived as impartial.

The Court cannot end this ponencia without a simple reminder on the use of proper language before the courts. While the lawyer in promoting the cause of his client or defending his rights might do so with fervor, simple courtesy demands that it be done within the bounds of propriety and decency. The use of intemperate language and unkind ascriptions hardly can be justified nor can have a place in the dignity of judicial forum. Civility among members of the legal profession is a treasured tradition that must at no time be lost to it.

Finally, it may be opportune to say, once again, that prosecutors are expected not merely to discharge their duties with the highest degree or excellence, professionalism and skill but also to act each time with utmost devotion and dedication to duty. 33 The Court is hopeful that the zeal which has been exhibited many times in the past, although regrettably a disappointment on few occasions, will not be wanting in the proceedings yet to follow.

WHEREFORE, conformably with all the foregoing, the Court hereby RULES that —

(a) The submission of the "Affidavit of Desistance," executed by Juvie-Lyn Y. Punongbayan on 25 June 1997, having been filed AFTER the institution of Criminal Case No. 97-159935, DOES NOT WARRANT THE DISMISSAL of said criminal case;

(b) For FAILURE OF DUE PROCESS, the assailed judgment, dated 12 December 1997, convicting petitioners is declared NULL AND VOID and thereby SET ASIDE; accordingly, the case is REMANDED to the trial court for further proceedings; and

(c) Judge Maximo A. Savellano, Jr., presiding Judge of Branch 53 of the Regional Trial Court of Manila, is ENJOINED from further hearing Criminal Case No. 97-159935; instead, the case shall immediately be scheduled for raffle among the other branches of that court for proper disposition.

No special pronouncement on costs.

SO ORDERED.

Melo, Kapunan, Martinez, Quisumbing and Purisima, JJ., concur.

Narvasa, C.J., took no part.

 

 

 

Separate Opinions

PUNO, J., separate opinion;

The facts are critical and need to be focused. Petitioners were charged with rape in Criminal Case No. 15993 which was raffled to Br. 25 of the RTC of Biñan, Laguna. The charge is principally based on the following affidavit dated October 31, 1996 of Ms. Juvie-Lyn Punongbayan, a 16-year old minor, viz.:

REPLY-AFFIDAVIT

(TUGON SA MGA SALAYSAY NILA MAYOR BAYANI ALONTE, WELLA CONCEPCION, RICARDO LACAYAN at JAIME MENDOZA)

Ako si JUVIE-LYN Y. PUNONGBAYAN, Filipino, walang asawa, 16 years old, at kasalukuyang nasa pangangalaga ng Department of Social Welfare and Development, matapos makapanumpa ayon sa batas, ay nagsasaad:

1. Wala pong katotohanan ang lahat nakasaad sa mga salaysay ni Mayor Bayani Alonte at Buenaventura "Wella" Concepcion, ng kanilang mga testigo na sila Ricardo (Ading) Lacayan y Aguilar at Jaime Bagtas Mendoza.

2. Ang totoo po ay inabuso ako ni Mayor nung September 12, 1996, katulad nga ng naihayag ko na sa aking sinumpaang salaysay. Ayon sa driver ng tricycle na nasakyan ko pagkatapos ng insidente, hindi lang po ako, kundi marami pa pong babae ang inabuso ni Mayor. Sabi pa nga ng driver ay naaawa siya sa akin, at lumaban daw ako. Tinawagan ko na rin po ang lahat ng mga babae na naging biktima ni Mayor; wag silang matakot, lumabas at ilahad ang pangaabuso ni Mayor.

Ang detalya nung panggagahasa

ni Alonte at ang partisipasyon

ni Wella Concepcion

3. Nakalahad po sa sumusunod na talata ang detalya ng pang-aabuso sa akin ni Mayor. Pinakikita rin dito kung paano nakipagsabwatan kay Wella Concepcion. Sa pamamagitan nito ay mapapabulaanan na rin ang mga nakasaad sa salaysay nila at ng mga testigo nila.

4. Nakilala ko si Wella Concepcion, dance instructor, nung bandang last week ng August 1996. Noon ay naghahanda ako para sa "Miss Education" beauty contest sa Perpetual Help College of Laguna. Doon ako nag-aaral. First year college ako, at education ang kursong pinili ko. Ang nasabing contest ay ginanap nung Sept. 20, 1996. Kapag nagkikita kami ni Wella para sa ensayo, nagkukuwentuhan din kami, at nabanggit niya na may kaibigan siyang bakla na nagdadala ng babae kay Mayor Alonte. Waway daw ang pangalan ng bakla. Hindi ko pa kilala si Waway noon.

5. Nung Sept. 7, niyaya ako ni Wella na sumali sa dance contest sa "Sang Linggo NAPO SILA" sa Channel 2, na itatanghal sa Sept. 11, 1996. Wala na daw po akong aalalahanin. Siya daw ang bahala sa costume at transportation. Pumayag ang nanay

ko, dahil wala na kaming gagastusin. Hindi ko tinanong kay Wella kung saan galing ang costume. Akala ko may ipapagamit lang siya sa akin.

6. Nung Sept. 8, pinakilala ni Wella si Waway sa akin. Si Waway ang nagturo sa amin ng sayaw para sa TV contest. Mula nung araw na yon hanggang Sept. 10 ay nagsanay kami sa bahay ng kapatid ni Waway sa St. Francis Subdivision, Biñan, Laguna. Tatlo kami sa dance group: ako at ang dalawang lalaki na ipinakilala sa akin ni Waway: si Melchor at Darius.

7. Nagpunta kami sa studio sa Delta nung Sept. 11. Bago kami magsayaw, habang inaayos ni Wella yung damit ko, sinabi niya na dapat manalo kami dahil si Mayor Alonte daw ang nag-sponsor ng costume namin. Noon ko lang ito nalaman. Hindi kami nanalo sa contest, pero nagkaroon pa rin kami ng premyong P1,500.00 na pinaghatian namin.

8. Pagkatapos ng contest, at nung nakapagpalit na ako ng damit, binabalik ko kay Wella ang costume ko. Sabi niya iuwi ko daw ito dahil gagamitin ko ito sa Miss Education contest, sa presentation ng mga candidates. Mula sa studio, nagpunta kaming lahat sa isang kainan sa tapat ng Delta at, pagkatapos namin kumain, humiwalay yung ibang kasama namin.

9. Dinala ako ni Wella sa isang department store at binili niya ako ng sandals. Inikot niya ako sa lugar na yon at binili niya ako ng pagakain. Tapos ay sumakay kami ng bus pauwi sa Laguna. Nung nasa bus kami, niyaya ako ni Wella na magpunta sa bahay ni Mayor para magpasalamat ng personal para sa costume namin. Pumayag ako at sabi ko kay Wella na sunduin niya ako sa bahay ng 10:00 a.m. sa susunod na araw, Sept. 12. Nakarating ako sa bahay ng 5:00 p.m. ng araw na yon, Sept. 11.

10. Nung Sept. 12, hinintay ko si Wella ng 10:00 a.m. Nung hindi siya dumating umalis kaming Tita ko dahil sinamahan ko siya sa health center. Sumundo pala si Wella doon, pero hindi kami nagkita kasi saglit lang kami doon. Bumalik siya sa bahay, at doon na kami nagkita. Tapos ay umalis kami ni Wella papunta kay Mayor. Tumawid kami ng kalye, at pumara ako ng tricycle. Pero kahit marami na akong pinara, ayaw ni Wella na sumakay doon. Maya-maya, may tricyle na dumating na hindi naman pinara ni Wella. Basta huminto na lang sa harap namin. Doon kami sumakay ni Wella. Si Wella ang nagturo sa driver kung saan kami pupunta. Nag-uusap sila ng driver habang papunta kami kay Mayor.

11. Bumaba kami sa tapat ng bahay na bukas ang gate. May swimming pool sa loob, alam na alam ni Wella and, pasikot-sikot nang bahay; tuloy-tuloy siya sa loob at sumunod naman ako. Wala kaming taong nakita, pero bukas pati yung pintuan ng bahay. Dinala ako ni Wella sa sala. Napakaganda ng loob ng bahay. Mayroong wall paper na may design na leaves and flowers; may carpet sa sahig. May mahabang hagdan patungo sa dalawang pintuan.

12. Tinanong ko kay Wella kung nasaan si Mayor. Sabi niya ay nasa munisipyo daw; darating na daw maya-maya. Pagkaraan ng mga 15 minutes, dumating si Mayor na nakasakay sa green na kotse. Lumabas siya sa kaliwang pintuan sa harap ng kotse. Wala siyang kasama.

13. Pumasok si Mayor sa loob ng bahay. Naghubad siya ng sapatos. Sabi ni Wella: "Mayor, si Juvie; Juvie si Mayor."

14. Umupo si Mayor sa tabi ko. Kinamayan niya ako at sinabi niya: "Hi, I'm Arthur" sabay hinalikan niya sa ako sa lips. Hindi ako naka-react dahil nagulat at kinabahan ako.

15. Nagmamadaling nagpaalam si Wella. Kinuha ni Mayor ang wallet sa bulsa sa likod ng kanyang pantalon. Dumukot siya ng P1,000 na buo. Inabot niya ito kay Wella. Patayo na ako pero hinawakan ni Mayor ang braso ko. Wag daw akong sasama kay Wella. Sinabi ko kay Wella na wag niya akong iiwanan, pero parang wala siyang narinig. Basta tuloy-tuloy siyang umalis.

16. Nung, kami na lang ni Mayor ang natira, pinainom niya ako ng mineral water. Uminom ako dahil nauuhaw ako. Nanlabo ang paningin ko at nanghina ako.

17. Nawalan ako ng malay. Ang sumunod ko na lang na natatandaan ay nandoon na ako sa kwarto. Wala akong damit. Nakadagan si Mayor sa akin. May malaking salamin sa pader. Doon ko nakita na walang kadamit-damit si Mayor.

18. Hawak ako ni Mayor sa magkabilang braso. Pinipisil niya ito kaya nagkaroon ako ng pasa sa kaliwang braso (at ito ay nawala lang pagkatapos ng tatlong araw).

19. Naramdaman ko na pilit na pinasok ni Mayor ang ari niya sa aking ari. Nasaktan ako. Nagmakaawa ako. Umiiyak ako nung sinabi ko sa kanya na tigilan niya ako; nasasaktan ako; may anak rin siyang babae. Sabi niya wag daw akong maingay at i-

embrace ko na lang daw siya. Lalo akong umiyak dahil nandidiri ako sa kanya, at sa ginagawa niya sa akin. Naghalo ang galit, pandidiri at takot. Wala akong magawa kundi magmakaawa. Hindi ko siya maitulak dahil nanghihina ako, nakadagan siya sa akin, mataba siya, at hawak-hawak niya ang braso ko. Pero kahit nagmamakaawa ako, tinuloy pa rin niya at pinasok niya ulit ang ari niya sa aking ari.

20. Maya-maya ay tumigil siya. Tumayo siya at sabi niya: "ang panty mo, nasa tabi mo." Kinuha ko ang panty ko, tumayo ako at sinuot ko ito. Hinanap ko ang damit ko, at nakita ko ang walking shorts, bra at t-shirt ko sa sahig. Pinulot ko ito at sinuot ko. Habang sinusuot ko, umiiyak pa rin ako. Pagkatapos kong magbihis, umupo ako sa mahabang upuan sa may gilid ng kama.

21. Samantala, paqkatapos sabihin ni Mayor na nasa tabi ko ang panty ko, nagpunta siya sa banyo na transparent ang pinto. Wala siyang suot pagpunta niya doon. Paglabas niya, nakasuot na siya ng checkered brief na kulay black and white. Pumunta siya sa kabilang gilid ng kama. Kinuha niya ang damit niya na nakahanger sa pader. Sinuot niya ito. Lumabas siya ng kwarto. Hindi nagtagal ay pumasok siya ulit at sinabi niya na nandiyan na daw ang sundo ko.

22. Tumayo ako. Sinabi ko na aalis na ako. Nung papunta na ako sa pintuan, lumapit si Mayor sa akin. May hawak-hawak siyang dalawang pirasong P1,000. Tiniklop niya ito; binaba niya yung neckline ng t-shirt ko, at pinasok niya ang pera sa aking bra. Nagalit ako. Kinuha ko ang pera at tinapon ko ito sa kanya. Sabi ko hindi ako bayarang babae. Nagalit siya at pinagbantaan ako. Sabi niya: "Pag nagsalita ka, alam mo na kung ano ang mangyayari sa iyo." Tiningnan ko siya, at umalis ako pababa.

23. Mayroon tricycle na nakaabang sa labas. Sumunod si Mayor. Lumapit siya sa driver at binigyan niya ito ng P100. Tapos ay umalis na kami.

24. Umiiyak pa rin ako nung nasa tricycle. Sabi ko sa driver na ginahasa ako ni Mayor. Sabi niya masuwerte daw ako at maaga akong pinauwi dahil yung mga ibang babae daw na dinadala kay Mayor ay pinauwi ng madaling-araw o hating-gabi. Minsan dalawa o tatlo pa nga daw ang dinadala doon, at yung iba ay naka-uniform pa. Naawa daw siya sa akin, kaya magsumbong daw ako. Nakokonsensiya daw siya dahil isa siya sa dalawang tricycle driver na naghahatid ng mga babae doon. Sabi pa nga niya, babae din daw ang ina niya, kaya din siya nakokonsensiya. Dinagdag pa niya na kung may kasiyahan kina Mayor, isang van ng mga babae ang nadoon. Pagdating namin sa bahay ng Lola ko, sabi niya bago siya umalis: "Lumaban ka."

On December 13, 1996, the private complainant thru her counsel, Atty. Remedios C. Balbin and Asst. Chief State Prosecutor Leonardo Guiab, Jr., of the Department of Justice petitioned this Court for a change of venue. They cited as ground the "great danger to the lives of both the private complainant, the immediate members of her family, and their witnesses as they openly defy the principal accused, Mayor Alonte who is acknowledged as a powerful political figure and almost an institution in Biñan, Laguna . . ."

On March 31, 1997, the private complainant, thru the then Secretary of Justice, the Honorable Teofisto Guingona and Chief State Prosecutor Jovencio Zuno filed a Manifestation and Motion for the early resolution of the petition for change of venue. They submitted the affidavits of the private complainant, her counsel Atty. Remedios C. Balbin, Dolores Mercado-Yambao, Bienvenido Salandanan and Evelyn Celso to prove their allegation that they "are exposed to kidnapping, harassment, veiled threats and tempting offers of bribe money — all intended to extract an 'affidavit of desistance' from the private complainant." Worth bright lining are the two (2) affidavits of Atty. Remedios C. Balbin, counsel for the private complainant, relating the fantastic amount of P10M bribe money allegedly offered to her. The first affidavit dated February 24, 1997 states:

I, Remedios C. Balbin, of legal age, Filipino, married, with residence at #5 Uranus Street, Congressional Avenue Subdivision, Quezon City, after having duly sworn in accordance with law, depose and say:

1. That I am the Private Prosecutor in Criminal Case No. 96-19-B for rape, filed with the Biñan RTC, Branch 25, entitled "People of the Philippines vs. Bayani Arthur Alonte, et al.;

2. That as Private Prosecutor, it is my avowed duty to be faithful to the interests of my client, Ms. Juvie-lyn Punongbayan;

3. That on several occasions, I was visited at my Office at the Quezon City Hall Compound, by a lawyer who introduced himself as Atty. Leo C. Romero, representing the Accused Mayor Bayani Arthur Alonte;

4. That my calendar at the People's Bureau, Quezon City Hall, shows that he came to see me about eight (8) times, but we talked only about three (3) times because I was always busy attending to the problems of Quezon City's urban poor and the landowners of private properties illegally occupied by them;

5. That in two (2) occasions, Atty. Romero conveyed to me the message of Mayor Alonte, namely, to drop the rape case against him, and that he would give a consideration of Ten Million Pesos (P10 Million) to be apportioned as follows:

Five Million Pesos (P5M) — for the Private Complainant

Three Million Pesos (P3M) — for me as Private Prosecutor

Two Million Pesos (P2M) — for him as the mediator

6. That I explained to Atty. Romero that money does not matter at all to the Complainant and her family even if they have very modest means; that they want justice, which means a conviction for the charge of rape;

7. That I also explained to Atty. Romero that the money he was offering me was of no consequence to me because I had access to the resources of my two (2) daughters, both of whom are in the medical field abroad, and of Mr. Filomeno Balbin, Labor Attached then assigned in Riyadh;

8. That I told him that I cannot be tempted with his offer because spiritual consideration are more important to me than the material. Also, that I usually handle cases pro bono (at abunado pa) where the litigant is in dire need of legal assistance but cannot afford to pay for the lawyer's fees, as in Juvie-lyn's case;

9. That I gave Atty. Romero a copy of the decision of the Supreme Court promulgated December 10 1996, entitled "People of the Philippines vs. Robert Cloud" (GR No. 119359: Crim. Case No. Q-90-12660) for parricide involving the death of a 2 1/2 year old boy. I wrote on page one of the xerox copy of the decision: "To Atty. Leo Romero — so you will understand," and to which I affixed my signature.

10. That I told him explicitly: "we cannot simplify the entire proceedings. You advise Mayor Alonte to surrender (one mitigating circumstance), plead guilty (another mitigating circumstance), get a conviction and suffer the corresponding penalty. Otherwise, we have nothing to talk about."

11. That I emphasized that his suggestion for Mayor Alonte to plead guilty to "act of lasciviousness" merely was ridiculous;

12. That when the Complainant's Affidavit on the offer of Ms. Emily Vasquez for a valuable consideration in exchange for an affidavit of desistance in the rape was exposed by media, Atty. Romero came to see me and thanked me for not exposing him in similar fashion. I assured him that he will not be an exception and that I was just too busy then to execute an affidavit on the matter, as I do now;

13. That I have not received other similar offers of valuable material consideration from any other person, whether private party or government official; However, I have been separately advised by several concerned persons that I was placing my personal safety at great risk. The victim's family will have great difficulty in finding another lawyer to "adopt" them in the way I did, which gives them strength to pursue their case with confidence and the accused Mayor is aware that I am the obstacle to an out-of-court settlement of the case. Also, that I had my hands full, as it is, as the Head of the QC People's Bureau, Housing Development Center, and Special Task Force an Squatting and Resettlement, and the numerous cases filed by me or against me, connected with my performance of official duties, and I should not add more legal problems despite my authority to engage in private law practice.

14. That this affidavit is executed in order to put on record the attempt to influence me directly, in exchange for valuable consideration to drop the rape charge against Mayor Bayani Arthur Alonte.

February 24, 1997, City of Manila.

SGD. REMEDIOS C. BALBIN

REMEDIOS C. BALBIN

SUBSCRIBED AND SWORN to before me this 26th day of March, 1997, Metro Manila.

Community Tax Certificate — 5208733

Date Issue 2-10-97

Quezon City

NOTARY PUBLIC

SGD. JUANITO L. GARCIA

ATTY. JUANITO L. GARCIA

NOTARY PUBLIC

UNTIL Dec. 31, 1997

PTR No. 63-T-033457

ISSUED AT MLA. ON 1-2-97

TAN—161-570-81

Doc. No. 950;

Page No. 170;

Series of 1997.

In her second Affidavit dated March 26, 1997, Atty. Balbin declared in no uncertain language that the bribe offer for private complainant to make a desistance was increased from P10,000.00 to P20,000.00, viz:

REPUBLIC OF THE PHILIPPINES )

CITY OF MANILA ) s.s.

AFFIDAVIT

I, REMEDIOS C. BALBIN, of legal age, Filipino, married, and with postal address at No. 5 Uranus Street, Congressional Avenue Subdivision Quezon City, after having duly sworn in accordance with law, depose and say:

1. That I am the Private Prosecutor in the rape case filed by the "minor Juvie-Lyn Punongbayan against Mayor Bayani Arthur Alonte of Biñan, Laguna.

2. That earlier, I reported to Secretary Teofisto Guingona, State Prosecutor Jovencio R. Zuno, Asst. Chief State Prosecutor Leonardo Guiyab, Jr., and Director Jude Romano of the

Witness Protection Program, the instances of substantial amounts amounting to several millions, to my client, to her relatives, including her maternal grandmother, and to myself;

3. That despite the published declaration by the Department of Justice of its determination to prosecute those who offered the bribes, new emissaries of Mayor Alonte persist in making offers, as follows:

a. On Thursday, March 6, 1997, at about 3:15 o'clock in the afternoon, Atty. Dionisio S. Daga came to see me at my office at the People's Bureau, Office of the Mayor, of Squatting case which I filed against his clients;

b. That after a brief exchange on the status of the case, he confided to me his real purpose;

c. That he started off by saying that he was the legal counsel of the gambling lords of Malabon for which he gets a monthly retainer of fifteen thousand pesos (P15,000.00), exclusive of transportation expenses, etc.

d. The he also stated that the network of gambling lords throughout the country is quite strong and unified;

e. That I then asked him: "What do you mean — is Alonte into gambling too? that he is part of the network you speak of?"

f. That Atty. Daga did not reply but instead said: "they are prepared to double the offer made to you by Atty. Romero which was published in the newspapers" at P10 Million;

g. That I told him that all the money in the world will not make me change my position against my client's executing a desistance, and that only Alonte's voluntary surrender, plea of guilty in rape, conviction and the imposition of the corresponding penalty will satisfy the ends of justice;

h. That I told him that my client's case is not isolated, there being five (5) other minors similarly placed; and Alonte should be stopped from doing more harm;

i. That Atty. Daga then told me in Pilipino "if you do not accede to a desistance, then, they will be forced to . . .".

j. That because he did not complete his sentence, I asked him directly: "What do you mean? What do you intend to do? And he replied: Go on with the case Buy the Judge."

k. That unbelieving, I reacted, saying; "but they have already done so, Judge Francisco at Binan suddenly changed his attitude towards the Prosecution. Perhaps, you are referring to the next judge when the petition for change of venue is finally granted?"

1. That Atty. Daga did not reply, and he reiterated that his principals, referring to them again as "gambling lords," want a desistance, after which he excused himself and left.

4. That I execute this Affidavit to attest to the truth of the incident with Atty. Dionisio S. Daga which occurred in the afternoon of March 6, 1997, at my Office, stressing herein my surprise over his daring in making yet another monetary offer to me in exchange for my client's desistance and my feeling of fear for the first time since I started "handling" this case against Alonte;

5. That despite what I perceived as veiled threats of Atty. Daga, I will seek justice in behalf of Juvie-Lyn Punongbayan, with the indispensable initiatives, participation and support of the Department of Justice under Secretary Teofisto Guingona.

FURTHER AFFIANT SAYETH NAUGHT.

SGD. REMEDIOS C. BALBIN

ATTY. REMEDIOS C. BALBIN

Affiant

REPUBLIC OF THE PHILIPPINES )

CITY OF MANILA ) S.S.

SUBSCRIBED AND SWORN TO BEFORE ME this 26th day of March, 1997.

Community Tax Certificate — 5208733

Date Issued 2-10-97

Quezon City

Notary Public

SGD. JUANITO L. GARCIA

ATTY. JUANITO L. GARCIA

NOTARY PUBLIC

UNTIL DEC. 31, 1997

PTR NO. 63-T-033457

ISSUED AT MLA. ON 1-2-87

TAN -161-570-81

Doc. No. 948;

Book No. 190;

Page No. XLIII;

Series of 1997.

After the alleged bribe money was increased from P10M to P20M the complexion of the case changed swiftly.

On June 25, 1997, Atty. Balbin filed a Motion to Resume Proceedings in Br. 25 of the RTC of Biñan, Laguna. Attached to the Motion was the Affidavit of Desistance of the private complainant which states:

I, Juvie-lyn Yambao — Punongbayan, 17 years of age, a resident of No. 5 Uranus Street, Congressional Avenue Subdivision, Quezon City, duly assisted by private legal counsel and my parents, after having duly sworn in accordance with law, depose and say:

1. That I am the Complainant in the rape case filed against Mayor Bayani "Arthur" Alonte of Biñan, Laguna, with the RTC-Branch 25 of Binan, Laguna;

2. That the case has been pending for some time, on preliminary issues, specifically, (a) change of venue, filed with the Supreme Court; (b) propriety of the appeal to the Court of Appeals, and after its denial by said court, brought to the Office of the President, on the veracity of the findings of the Five-Man Investigating Panel of the State Prosecutor's Office, and the Secretary of Justice and (c) a hold-departure order filed with the Biñan Court;

3. That the legal process moves ever so slowly, and meanwhile, I have already lost two (2) semesters of my college residence. And when the actual trial is held after all the preliminary issues are finally resolved, I anticipate a still indefinite suspension of my schooling to attend the hearings;

4. That during the entire period since I filed the case, my family has lived a most abnormal life: my father and mother had to give up their jobs; my younger brother, who is in fourth grade, had to stop his schooling, like myself;

5. That I do not blame anyone for the long, judicial process; I simply wish to stop and live elsewhere with my family, where we can start life anew, and live normally once again;

6. That I pray that I be allowed to withdraw my complaint for rape and the other charge for child abuse wherein the Five-Man investigating Penal of the Office of the State Prosecutor found a prima facie case although the information has not been filed, and that I will not at any time revive this, and related cases or file new cases whether, criminal, civil and/or administrative here or anywhere in the Philippines;

7. That I likewise realize that the execution of this Affidavit will put to doubt my credibility as a witness-complainant;

8. That this is my final decision reached without fear or favor, premised on a corresponding commitment that there will be no reprisals in whatever form, against members of the police force or any friends who extended assistance to me in whatever way, in my search for justice.

WHEREOF, I affix my signature, this 25th day of June, 1997, in Quezon City.

SGD. JUVIE-LYN Y. PUNONGBAYAN

JUVIE-LYN Y. PUNONGBAYAN

Assisted by:

SGD. REMEDIOS C. BALBIN

ATTY. REMEDIOS C. BALBIN

Private Prosecutor

In the presence of:

SGD. PABLO PUNONGBAYAN

PABLO PUNONGBAYAN

Father

SGD. JULIE Y. PUNONGBAYAN

JULIE Y. PUNONGBAYAN

Mother

SUBSCRIBED AND SWORN to before me this 25 the day of June, 1997, in Quezon City.

SGD. ILLEGIBLE

Administering Officer

RTC Branch 94

Quezon City

Obviously, the Motion to Resume Proceedings was intended to get the trial court's approval for the dismissal of the rape case against the petitioners.

Indeed, three days thereafter or on June 28, 1997, Atty. Ramon C. Casino moved in behalf of the petitioners to dismiss the petition for change of venue then pending in this Court citing the affidavit of desistance of the private complainant. On August 22, 1997, however, Asst. Chief State Prosecutor Guiyab opposed the motion. He alleged that he has control of the prosecution of the rape case and that he was not aware of the desistance of the private complainant.

The legal maneuvers to dismiss the rape case against the petitioners on the basis of the alleged affidavit of desistance of the private complainant did not find the favor of this Court. On September 2, 1997, this Court unanimously granted the petition for change of venue, ruling among others, viz:

xxx xxx xxx

These affidavits give specific names, dates and methods being used to abort, by coercion or corruption, the prosecution of Criminal Case No. 9619-B. It is thus incorrect for oppositors Alonte and Concepcion to contend that the fear of the petitioner, her private counsel and her witnesses are too generalized if not fabricated. Indeed, the probability that in desisting from pursuing her complaint for rape, petitioner, a minor, may have succumbed to some illicit

influence and undue pressure. To prevent possible miscarriage of justice is good excuse to grant the petition to transfer the venue of Criminal Case No. 9619-B from Biñan, Laguna to the City of Manila.

IN VIEW WHEREOF, the Petition for Change of Venue from Biñan, Laguna to the City of Manila is granted. The Executive Judge of RTC Manila is ordered to raffle Crim. Case No. 9619-B to any of its branches. The judge to whom Crim. Case No. 9619-B shall be raffled shall resolve the petitioner's Motion to Resume Proceedings filed in Br. XXV of the RTC of Biñan, Laguna and determine the voluntariness and validity of petitioner's desistance in light of the opposition of the public prosecutor, Asst. Chief State Prosecutor Leonardo Guiyab. The branch clerk of court of Br. XXV of the RTC of Biñan, Laguna is ordered to personally deliver to the Executive Judge of Manila the complete records of Crim. Case No. 9619-B upon receipt of this Resolution.

On September 17, 1997, Criminal Case No. 9619-B (re-docketed by the Clerk of Court of Manila as Crim. Case No. 97-159955) was raffled to Br. 53 of the RTC of Manila, presided by the respondent judge, the Honorable Maximo A. Savellano.

On October 9, 1997, the respondent judge issued warrants of arrest against the petitioners after a finding of probable cause.

On October 28, 1997, an Administrative Order of the DOJ was issued empowering First Assistant City Prosecutor Marilyn R. O. Campomanes to prosecute the case at bar. Asst. Chief State Prosecutor Leonardo Guiab, Jr., who opposed the affidavit of desistance was relieved from the case. The reason given in the Administrative Order was ". . . in the interest of public service." Prosecutor Campomanes was authorized "to move for its (case) dismissal if the evidence on record so warrant . . ." 1

The arraignment of the petitioners took place on November 7, 1997. The State was represented by Prosecutor Marilyn Campomanes. Petitioner Alonte was represented by Atty. Jose Flaminiano and Atty. Sigfrid A. Fortun. Petitioner Concepcion was represented by Atty. Ramon C. Casano. Atty. Remedios Balbin who had previously exposed under oath the threats to the life of the private complainant and her witnesses and the repeated attempts to buy complainant's desistance was absent. 2

Petitioners pled not guilty to the charge of rape upon their arraignment. 3 Pre-trial was then waived by both the prosecution and the defense. The proceedings continued and Prosecutor Campomanes presented the private complainant, Ms. Punongbayan who testified on her affidavit of desistance. She declared that her desistance was her "personal" decision with the

consent of her parents. 4 She said she was neither paid nor pressured to desist. On questions by the respondent judge, however, she affirmed the truth of her affidavit dated October 31, 1996 that she was raped by petitioner Alonte. Prosecutor Campomanes marked and offered her affidavit of desistance as Exhibit "A". 5 She called on other witnesses to testify on the voluntariness of the affidavit of desistance. The parents of the complainant — Pablo 6 and Julie 7 Punongbayan — declared that they did not receive any monetary consideration for the desistance of their minor daughter. Neither were they pressured to give their consent to the desistance. Fourth Asst. Provincial Prosecutor Alberto Nofuente averred that the affidavit of desistance was signed and sworn to before him in the presence of the complainant's parents and private counsel, Atty. Balbin. He said he explained the affidavit to them and that the complainant voluntarily signed the same. 8

After their testimonies, Prosecutor Campomanes made the manifestation that "with the presentation of our witnesses and the marking of our documents (sic) we are now closing the case and that we are praying for the dismissal of the case. 9 The respondent judge ruled "the case is submitted for decision." 10 Atty. Flaminiano orally prayed that petitioner Alonte be granted bail and Prosecutor Campomanes offered no objection. 11

On November 10, 1997, petitioner Alonte filed an Urgent Motion to Admit to Bai1. 12 In her Comment, Prosecutor Campomanes agreed and averred, viz.: 13

xxx xxx xxx

1. That she received a copy of the Petition for Bail.

2. That on the hearing of the instant case on November 7, 1997, the Prosecution presented its witnesses who vehemently signified their intention not to further prosecute the case in Court and there being no other witnesses to present, the undersigned is left with no alternative but to seek the dismissal of the considering that without the testimony of said witnesses this case has nothing to stand on in Court.

3. That for the aforestated reason, the People interposes no objection to the granting of Bail and in fact justice and equity dictate that it joins the accused in his prayer for the granting of bail in the amount of P150,000 (ONE HUNDRED FIFTY THOUSAND PESOS).

4. That for the aforementioned bases, the People hereby manifests its position that the case be immediately dismissed or at least the accused be granted bail since the record proves that there is no more evidence to sustain the charge against him such that the granting of bail is proper and in order.

5. That as a general rule, a hearing on the petition for bail is necessary to prove that the guilt is not strong but in this particular case there is no need for hearing since the prosecution cannot prove its case against the accused as it has no other evidence or witnesses to be presented.

On November 17, 1997, petitioner Alonte, thru counsel, filed an Urgent Plea to Resolve the Motion for Bail. 14 On the same date, Prosecutor Campomanes manifested that "she deems it proper and in accord with justice and fair play to join the aforestated motion." 15

On November 25, 1997, December 1, 1997, December 8, 1997 and December 10, 1997, petitioner Alonte filed a Second, Third, Fourth, and Fifth Motion early for resolution of his petition for bail. 16 In all these motions, Atty. Fortun, counsel of petitioner Alonte, alleged that copy of the motion . . . could not be served in person upon the private prosecutor" (Atty. Balbin) in light of the distance between their offices. 17 He relied on section 13, Rule 11 of the 1997 Rules on Civil Procedure. The motions were not resolved by the respondent judge.

On December 18, 1997, the respondent judge promulgated his Decision convicting the petitioners and sentencing them to reclusion perpetua. On whether of the affidavit of desistance can be a ground for dismissal of the rape case against the petitioners, the respondent judge held:

The first issue to be determined and resolved is the "voluntariness and validity of petitioner's desistance in the light of the opposition of the public prosecutor Asst. Chief State Prosecutor Leonardo Guiab." (p. 7, SC Resolution En Banc, dated September 2, 199/.7; [Rollo, p. 253]) It is appropriate to quote again a portion of the 7-page Resolution En Banc of the highest tribunal, to wit; "Indeed, the probability (exists) that in desisting from pursuing her complaint for rape, petitioner, a minor, may have succumbed to some illicit influence and undue pressure. To prevent possible miscarriage of justice is a good excuse to grant the petition for change of venue . . ." (Rollo, p. 202).

The Court shall narrate the facts leading to the desistance of the private complainant which are embodied in the two (2) affidavits of her lawyer, Atty. Remedios C. Balbin, with whom the private complainant lives at No. 5 Uranus St., Congressional Avenue Subdivision, Quezon City. One affidavit is dated May 24 1997, (sic) while March 26, 1997. The said affidavits are attached as exhibits to the aforementioned Manifestation and Motion for the Resolution of Petition for Change of Venue filed by the private complainant Juvie-Lyn Y. Punongbayan. Exh. "C", dated May 24, 1997, (Rollo, pp. 216-219) is hereby quoted as follows:

xxx xxx xxx

It clearly appears in the abovequoted affidavit that repeated bribe offers from a lawyer representing the accused Mayor Bayani Arthur Alonte in the total amount of Ten Million Pesos (P10,000,000.00) were made to Atty. Balbin, allocated as follows: (1) Five Million Pesos (5,000,000.00) for the private complainant Juvie-lyn Y. Punongbayan; (2) Three Million Pesos (P3,000,000.00) for her (Atty. Balbin); and (3) Two Million Pesos (P2,000,000.00) for the mediator.

In the subsequent affidavit, dated March 26, 1997, executed by Atty. Remedios C. Balbin (Exh. F, Rollo, pp. 224-225) she narrated in detail the continuing veiled threats and the very tempting and escalating offer to increase the amount of the bribe money offered to her and the private complainant after her first affidavit, by doubling the first offer of Ten Million Pesos (P10,000,000.00) to Twenty Million Pesos (P20,000,000.00), in exchange for her client's desistance, but also accompanied with veiled threats, if refused. Said affidavit is quoted, as follows:

xxx xxx xxx

The Court underscores paragraphs (b), (c), (d), (e), (f), (g), (h), (i), (j), (k), and (l), particularly paragraphs (i), (j) and specially paragraph (k) of the abovequoted affidavit of Atty. Balbin which insinuates that the presiding Judge of the RTC Biñan, Laguna, had already been bought, and that accused Alonte thru his numerous emissaries, will also buy or bribe the "the next judge when the petition for change of venue is finally granted." In view of this insinuation, the undersigned presiding Judge is very careful in deciding this case, lest he be placed under suspicion that he is also receiving blood money that continues to flow. The Court wants to have internal peace — the peace which money cannot buy. Money is the root of all evil. The Holy Holy Scriptures also remind judges and jurists: "You shall not act dishonestly in rendering judgment. Show neither partiality to the weak nor deterrence to the mighty, but judge your fellow men justly," (Leviticus 19:15). The Scriptures further say: "What does it profit a man if he gains the whole world but suffers the loss of his soul?" (Mt. 16:26) and "No one can serve two (2) masters. . . You cannot serve God and mammon." (Mt. 6:24, Luke 16:13). It is not out of place to quote the Holy Scriptures because the Honorable Supreme Court has been doing so in its quest for truth and justice. Thus, People vs. Garcia, 209 SCRA 164, 174, the highest tribunal, in ruling that the flight of an accused is evidence of guilt on his part, quoted the old Testament, as follows:

It was written in the literature of Old Testament several centuries ago that:

The wicked man fleeth though no man pursueth, but the righteous are as bold as a lion.

(Proverbs, 28:1)

Subsequently, on June 25, 1997, the private complainant and her lawyer suddenly somersaulted or changed their common positions or attitudes in the prosecution of this case. Evidently, veiled threats and money had replaced the "spiritual consideration" which earlier, to them were "more important than the material" to quote Atty. Balbin in her first affidavit (Rollo, p. 217), and her reply to Atty. Dionisio S. Daga that "all the money in the world will not make me change my position against my client's executing a desistance, and that only Alonte's voluntary surrender, plea of guilty to rape, conviction and the imposition of the corresponding penalty will satisfy the ends of justice.

On June 26, 1997, the private complainant thru her counsel, Atty. Remedios C. Balbin, filed a Motion to Resume Proceedings, dated June 25, 1997, (Rollo, pp. 238-244) praying therein that the RTC, Biñan, Laguna, where this case was still pending, vacate its Order to Suspend Hearings, to enable it to act on all incidents including private Complainant's Affidavit of Desistance attached thereto. (Rollo, pp. 240-241) which affidavit of desistance is quoted hereunder as follows:

xxx xxx xxx

This Court, as the trier of facts, is tasked by the highest tribunal to find out if the private complainant, a minor "may have succumbed to some illicit influence and undue pressure, in order to prevent a possible miscarriage of justice." Evidently, the veiled threats and acceptance of the bribe money in allocated amounts which was subsequently raised to the irresistible amount of at least P20,000,000.00, compelled, impelled and/or tempted the private complainant her father Pablo Punongbayan and her mother Julie Y. Punongbayan, and her lawyer and private prosecutor Atty. Remedios C. Balbin, who did not appear in Court on November 7, 1997, despite notice, to execute the said "Affidavit of Desistance" which was the ultimate goal of the accused. It is very obvious that the private complainant a minor, "succumbed to some illicit influence and undue pressure," to borrow the language of the Honorable Supreme Court En Banc. It would be the height of extreme naivete or gullibility for any normal individual to conclude otherwise. The Court does not believe that the private complainant, her lawyer, and her parents charged but in exchange for a plea of guilty the charge is reduced to homicide and the accused is allowed to claim a number of mitigating circumstances. It is not uncommon for estafa, libel, physical injuries and even homicide cases to be dismissed because the complainant has lost interest or alleged that the complaint was filed as a result of a misunderstanding. A number of examples can be given and they can fill a book."

Again, in People vs. Evangelista, L-45089, April 27, 1982, 113 SCRA 713, 720, the Supreme Court further declared:

It may be noted that the crimes in question (forcible abduction with rape) are among those enumerated in Article 344 of the Revised Penal Code, which crimes cannot be prosecuted de officio. In other words, the crimes of abduction and rape are in the nature of private offense, inasmuch as the law has reposed "the right to institute such proceedings exclusively and successively in the offended person, her parents, grandparents or guardian" . . . Accordingly, if after filing the case at face at bar decided that she was unable to face the scandal of public trial, or, if for some private reason she preferred to suffer the outraged in silence, then, corollary to her right institute the proceedings, she should have been allowed to withdraw her complaint and desist from prosecuting the case (Emphasis supplied).

Petitioner Concepcion did not submit any motion for reconsideration. Without waiting for the resolution of his motion for reconsideration, petitioner Alonte repaired to this Court. So did petitioner Concepcion.

Without doubt, the petitions at bar raise two (2) fulcrum issues: (1) the correctness of the ruling of the respondent judge that the desistance of the complainant is not a ground to dismiss the rape charge against the petitioners, and (2) the invalidity of petitioners' conviction on the ground of denial of due process.

I agree with the learned disquisition of Mr. Justice Vitug that we should set aside the conviction of the petitioners for patent violation of their right to due process of law. I write this Separate Opinion to highlight the erroneousness of the shocking stance of the State Prosecutor that the rape charge should be dismissed in view of the desistance of the private complainant. But our ruling giving no effect on the affidavit of desistance should not based on the reason that it was procured by threat or intimidation or any payment of money as the respondent judge opined in his Decision. The respondent judge arrived at this conclusion on the basis of the affidavits of Atty. Balbin, the counsel of the private complainant. This is erroneous for Atty. Balbin was never called to the witness stand to testify on the truth of her affidavits. Her affidavits therefore are hearsay evidence and should not have been relied upon by the respondent judge. The affidavit of desistance cannot abort the rape charge against the petitioners on the simple ground that it did not state that the private complainant-affiant was not raped by petitioner Alonte. In truth, the private complainant affirmed her earlier Reply-Affidavit where she narrated in detail how petitioner Alonte raped her. Moreover, the rape charge has been filed in Court and it is not anymore the absolute privilege of the camplainant to desist from continuing with the case.

This separate opinion unequivocably addresses the issue of whether the desistance of the victim can stop the further prosecution of the petitioners.

I

In Philippine jurisprudence, desistance has been equated with recantation or retraction.

To "recant" means to "withdraw or repudiate formally and publicly;" 18 "to renounce or withdraw prior statement." 19 To "retract" means to "take back;" "to retract an offer is to withdraw it before acceptance." 20 A recantation usually applies to a complainant or witness, either for the prosecution or the defense, who has previously given an extra-judicial statement 21 or testimony in court. 22 Repudiation may be made in writing, i.e., by sworn statement, 23 or by testifying on the witness stand. 24

Mere retraction by a witness or by complainant of his or her testimony does not necessarily vitiate the original testimony or statement, if credible. 25 The general rule is that courts look with disfavor upon retractions of testimonies previously given in court. 26 This rule applies to crimes, 27 offenses 28 as well as to administrative offenses. 29 The reason is because affidavits of retraction can easily be secured from poor and ignorant witnesses, usually through intimidation or for monetary consideration. 30 Moreover, there is always the probability that they will later be repudiated 31 and there would never be an end to criminal litigation. 32 It would also be a dangerous rule for courts to reject testimonies solemnly taken before courts of justice simply because the witnesses who had given them later on changed their minds for one reason or another. This would make solemn trials a mockery and place the investigation of the truth at the mercy of unscrupulous witnesses. 33

The general rule notwithstanding, the affidavit should not be peremptorily dismissed as a useless scrap of paper. There are instances when a recantation may create serious doubts as to the guilt of the accused. 34 A retracted statement or testimony must be subject to scrupulous examination. The previous statement or testimony and the subsequent one must be carefully compared and the circumstances under which each was given and the reasons and motives for the change carefully scrutinized. The veracity of each statement or testimony must be tested by the credibility of the witness which is left for the judge to decide. 35 In short, only where there exists special circumstances in the case which when coupled with the retraction raise doubts as to the truth of the testimony or statement given, can a retraction be considered and upheld. 36

A survey of our jurisprudence reveals that the same rule has been applied to affidavits of desistance. 37 An affidavit of desistance is understood to be a sworn statement executed by a

complainant in a criminal or administrative case that he or she is discontinuing the action filed upon his or her complaint for whatever reason he or she may cite. The court attaches no persuasive value to a desistance especially when executed as an afterthought. 38 However, a in retractions, an affidavit of desistance calls for a reexamination of the records of the case. 39

In private crimes, an affidavit of desistance filed by a private complainant is also frowned upon by the courts. Although such affidavit may deserve a second look at the case, there is hardly an instance when this Court upheld it in private crimes and dismissed the case on the sole basis thereof. Indeed, a case is not dismissed upon mere affidavit of desistance of the complainant, particularly where there exist special circumstances that raise doubts as to the reliability of the affidavit. 40

Usually in private crimes, an affidavit of desistance is executed by the private complainant after pardoning and forgiving the offender. In this instance, the court treats the affidavit as an express pardon. 41 It does not ipso facto dismiss the case but determines the timeliness and validity thereof.

Private crimes are crimes against chastity such as adultery and concubinage, seduction, abduction, rape and acts of lasciviousness. Their institution, prosecution and extinction are governed by Article 344 of the Revised Penal Code, viz:

Art. 344. Prosecution of the crimes of adultery, concubinage, seduction, abduction, rape and acts of lasciviousness. — The crimes of adultery and concubinage shall not be prosecuted except upon a complaint filed by the offended spouse.

The offended party cannot institute criminal prosecution without including both the guilty parties, if they are both alive, nor in any case, if he shall have consented or pardoned the offenders.

The offenses of seduction, abduction, rape, acts of lasciviousness, shall not be prosecuted except upon a complaint filed by the offended party or her parents, grand parents, or guardian, nor in any case, the offender has been expressly pardoned by the above-named persons, as the case may be.

In cases of seduction, abduction, acts of lasciviousness and rape, the marriage of the offender with the offended party shall extinguish the criminal action or remit the penalty already imposed upon him. The provisions of this paragraph shall also be applicable to the co-principals, accomplices and accessories after the fact of the above-mentioned crimes.

Private crimes cannot be prosecuted except upon complaint filed by the offended party. In adultery and concubinage, the offended party must implead both the guilty parties and must not have consented or pardoned the offenders. In seduction, abduction, rape and acts of lasciviousness, the complaint must be filed by the offended party or her parents, grandparents or guardian. The complainant must not have expressly pardoned the offender.

Article 344 also provides for the extinction of criminal liability in private crimes. It mentions two modes: pardon and marriage, which when validly and timely made, result in the total extinction of criminal liability of the offender. 42 The pardon in private crimes must be made before the institution of the criminal action. 43 In adultery and concubinage, the pardon may be express or implied while in seduction, abduction, rape and acts of lasciviousness, the pardon must be express. In all cases, the pardon must come prior to the institution of the criminal action. After the case has been filed in court, any pardon made by the private complainant, whether by sworn statement or on the witness stand, cannot extinguish criminal liability. The only act that extinguishes the penal action and the penalty that may have been imposed is the marriage between the offender and the offended party. 44

As this Court declared in the case of Donio-Teves v. Vamenta, Jr.: 45

The term "private crimes" in reference to felonies which cannot be prosecuted except upon complaint filed by the aggrieved party, is misleading. Far from what it implies, it is not only the aggrieved party who is offended in such crimes but also the State. Every violation of penal laws results in the disturbance of public order and safety which the State is committed to uphold and protect. If the law imposes the condition that private crimes like adultery shall not be prosecuted except upon complaint filed by the offended party, it is, as herein pointed earlier "out of consideration for the aggrieved party who might prefer to suffer the outrage in silence rather than go through the scandal of a public trial." Once a complaint is filed, the will of the offended party is ascertained and the action proceeds just as in any other crime. This is shown by the fact that after filing a complaint, any pardon given by the complainant to the offender would be unavailing. It is true, the institution of the action in so called the private crimes is at the option of the action of the aggrieved party. But it is equally true that once the choice is made manifest, the law will be applied in full force beyond the control of, and inspite of the complainant, his death notwithstanding.

The filing of a complaint in private crimes is merely a condition precedent to the exercise by the proper authorities of the power to prosecute the guilty parties. 46 It is the complaint that starts the prosecutory proceeding without which the fiscal and the court cannot exercise jurisdiction over the case. 47 Once the complaint is filed, the action proceeds just as in any other crime.

We follow the postulate that a criminal offense is an outrage to the sovereign state 48 and the right of prosecution for a crime is one of the attributes of the sovereign power.49 Thus, criminal actions are usually commenced by the State, through the People of the Philippines, and the offended party is merely a complaining witness. 50 In private crimes, however, or those which cannot be prosecuted de oficio, the offended party assumes a more predominant role since the right to commence the action or refrain therefrom, is a matter exclusively within his power and option. 51 The sovereign state deems it the wiser policy, in private crimes, to let the aggrieved party and her family decide whether to expose to public view the vices, faults and disgraceful acts occurring in the family. 52 But once the offended party files the complaint, her will is ascertained and the action proceeds just as in any other crime. The decision of the complainant to undergo the scandal of a public trial necessarily witness connotes the willingness to face the scandal. 53 The private complainant is deemed to have shed off her privacy and the crime ceases to be "private" and becomes "public." The State, through the fiscal, takes over the prosecution of the case and the victim's change of heart and mind will not affect the State's right to vindicate the outrage against the violation of its law. 54

This is the reason why pardon in crimes of chastity must come before the institution of the criminal action. Pardon by the offended party extinguishes criminal liability when made while the crime is still "private" and within the control of the offended party. But once the case is filed in court, thepardon cannot ipso facto operate to dismiss the case. After the institution of the criminal action, any pardon given by the complainant to the offender would be unavailing, 55 except of course when the offender validly marries the offended party. 56 The offended party's pardon of the offender in a seduction case after the criminal action had been instituted constitutes no bar to said action. 57 A pardon given in a rape case after the filing of the action in court "comes too late to hide the shameful occurrence from public notice." 58

Even the death of the offended party cannot extinguish the case once it is filed in court. 59 If the offended party dies immediately after filing the complaint but before the institution of the criminal action, his death is not a ground to dismiss the case. 60 Clearly, the will and participation of the offended party is necessary only to determine whether to file the complaint or not. Thereafter, the will of the State prevails.

Article 344 does not include desistance of the offended party from prosecuting the case as a ground for extinction of criminal liability whether total 61 or partial. 62 Hence, only when the desistance is grounded on forgiveness and pardon and is made before the institution of the criminal action, can it extinguish criminal liability. Desistance, per se, is not equivalent to pardon.

In the case at bar, the "Affidavit of Desistance" of Juvielyn is not an express pardon of the accused and the crime committed. Private complainant desisted from prosecuting the case against the petitioners because she wished "to start life anew and live normally again." She reiterated this reason on the witness stand. She complained that members of the media were bothering and harassing her and that she wanted to go back to her normal life. She never said that she forgave the petitioners. She did not absolve them from their culpability. She did not give any exculpatory fact that would raise doubts about her rape. She did not say that she consented to petitioner Alonte's acts. Moreover, the rape case is already in court and it is no longer her right to decide whether or not the charge should be continued. As we held in Crespo v. Mogul: 63

xxx xxx xxx

The rule in this jurisdiction is that once a complaint or information is filed in court any disposition of the case as to its dismissal or 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.

II

The next issue is the validity of the conviction of petitioners. Petitioners contend that they were convicted without undergoing any trial. Respondent judge insists otherwise. He claims that petitioners submitted the case on the merits and relied principally on the Affidavit of Desistance. He recounts the events that took place before the presentation of private complainant as revealed by the transcripts of November 7, 1997, viz:

Prosecutor Campomanes

Your Honor, the complaining witness/private complainant Juvielyn Punongbayan is present here in Court, and a while ago, I was given a copy of her Affidavit of Desistance so I would like to present her in order to attest to the veracity of her Affidavit of Desistance, your Honor, and for the Court to her testimony.

Court

We will have a separate trial, this involved a heinous offense and that there is not even any plea-bargaining in this case.

Prosecutor Campomanes

Yes, your Honor, I understand that.

Court

So you have to mark now your documentary evidence in preparation for trial.

Prosecutor Campomanes

Yes, your Honor.

Court

There are many documentary evidence mentioned by the Supreme Court in its seven (7) page . . . (may I see the record) seven(7) page resolution, dated September 2, 1997, and that this case was assigned to this Court as the trial Judge. This Court has already arraigned the accused and he pleaded not guilty, and so the next step is pre-trial. The Order of the Supreme Court is to direct this Court not only to determine the voluntariness but also the validity of the Affidavit of Desistance mentioned by the Court which was also brought to the attention of the Supreme Court.

Prosecutor Campomanes

And to the Department of Justice likewise your Honor.

Court

And that's why the Supreme Court instead of resolving it sent the records to this Court to determine the voluntariness and the validity of the Desistance, but they must be determined after trial on the merits.

Prosecutor Campomanes

Your Honor please, representing the people. Its events now will prove that there is no more need for the prosecution to go on trial of this case, considering that the private complainant herself had already furnished the Department of Justice a copy of her Affidavit of Desistance.

Court

What does it say there?

Prosecutor Campomanes

That she is no longer interested in further prosecuting this case, and that she is now desisting in going to full blown trial, and considering your Honor further, that this is a private offense, then, the Department of Justice feels that it can not be more popish than the Pope.

Court

That is the stand of the Department of Justice. But the Supreme Court belongs to a different Department, I am governed by the Supreme Court, because I am a Judge, I am not from the Department of Justice.

Prosecutor Campomanes

We are all aware your Honor, that we will just be prolonging the agony, in fairness to everybody, considering that we are representing the people, but we are not representing only . . . the Department of Justice is not only representing the complainant in this case but we are also for justice to be rendered to the respondent as well.

Court

I am rendering fair justice to everyone. That is the sense of this Court. That is the perception of this Court with respect to the Supreme Court resolution, in the first place, that Affidavit does not negate the commission of the crime.

You want us to dismiss this case when the Affidavit does not negate the commission of the crime?

Prosecutor Campomanes

That's why we will be presenting her in Open Court, your Honor.

Court

Just to affirm that?

Prosecutor Campomanes

No to prove . . .

Court

What happened . . . how about the Prosecution Department, they have control of the prosecution, and the offended party herself, has not negated the commission of the crime, is there anything there to show that she did not . . . that the accused . . . did not commit the crime charged?

Prosecutor Campomanes

That's why we will be presenting her in Open Court, whatever is not here will be clarified.

Court

So, we will go to a trial on the merits you present that affidavit, that's a part of your evidence.

Prosecutor Campomanes

The people is ready to present that . . . the complaining witness.

Court

We will have a trial on the merits.

Prosecutor Campomanes

Your Honor please, being a woman, I have extensively discussed this matter with the complaining witness and she intimated to this representation that she can not bear another day of coming here, with all these people staring at her with everybody looking at her as if she is something . . . .

Court

On December 13, 1996, petitioner Punongbayan through private counsel, Atty. Remedios C. Balbin and the Assistant State Prosecutor Guiab, Jr. who is not here both were relieved and changed with a new lady prosecutor, prayed that the case be tried by the Regional Trial Court of Manila, they cited the following grounds: "THE GREAT DANGER TO THE LIVES OF BOTH PRIVATE COMPLAINANT AND THE IMMEDIATE MEMBERS OF HER FAMILY AND THEIR WITNESSES AS THEY OPENLY IDENTIFIED THE PRINCIPAL ACCUSED MAYOR ALONTE WHO IS ACKNOWLEDGED AS A POWERFUL POLITICAL FIGURE AND ALMOST AN INSTITUTION IN BIÑAN LAGUNA AND [THE] GREAT DANGERS TO THE LIVES OF WITNESSES WHO OTHERWISE WISH TO COME OUT IN THE OPEN AND TESTIFY ON THE MORAL AND CRIMINAL ACTIVITIES OF BOTH ACCUSED PERPETRATED UPON VERY YOUNG GIRLS STUDENTS OF BIÑAN LAGUNA THAT WILL NOT DO SO IN THE TERMS OF THE ACCUSED MAYOR" that is why it was the prayer of the offended party and the Supreme Court granted the Motion for Change of Venue, and we are now on a new venue, where the danger to the lives of the witness is no longer present, on January 7, 1997, Alonte filed an Opposition thereto, and on April 23, 1997, the petitioner, the offended party through the Honorable Secretary of Justice Teofisto Guingona and Chief State Prosecutor Jovencito Zuno filed a Manifestation and Motion for Resolution of the Petition For Change of Venue. Attached to the motion of the Honorable Secretary of Justice Guingona and Chief State Prosecutor Jovencito Zuno were the affidavits of the petitioner, her lawyer, Atty. Remedios Balbin, Dolores Yambao, Bienvenido Salandanan and Evelyn Celso with their contention that the prosecution witnesses and the private counsel of petitioner are exposed to kidnapping, harassment, grave threats and tempting offers of bribe money, that was the stand of your department . . . And then later on June 28, 1997 . .

. we have to review this case because this involves public interest . . . on June 23, 1997, Atty. Casano in behalf of the oppositors, two (2) oppositors, filed a motion to dismiss the petition for change of venue in the Supreme Court on the ground that it has become moot, he alleges that the petitioner despite the motion to resume the proceedings in criminal case no. 96-19-B in said motion, the petitioner informed the Court that she is desisting . . . informed the Supreme Court that she is desisting from proceeding with the case, it is the same affidavit she prayed that the trial Court, on her affidavit of desistance . . . Atty. Casano also submitted to this Court, to the Supreme Court the manifestation of the petitioner joining the oppositors' prayer to dismiss her petition to a change of venue, the manifestation was also signed by Atty. Remedios Balbin as private prosecutor, the Supreme Court required Assistant Chief State Prosecutor Leonardo Guiab to comment on the motion to dismiss filed by Atty. Casano which involve the same affidavit that you have just read. On August 22, 1997, assistant Chief State Prosecutor Guiab filed his comment, he alleged that he is not aware of the desistance of the petitioner in criminal case no. 96-19-B, and in said desistance there is two (2) legal effect, [that] the public prosecutor has the control and direction of the prosecution in criminal action, he prayed for the denial of the Motion to Dismiss and reiterated his petition for change of venue, the Supreme Court granted the change of venue and in granting the change of venue the highest tribunal which we are all subordinates, says: for the record, in their manifestation and motion for the resolution of petition to a change of venue the Secretary of Justice and Chief State Prosecutor submitted various affidavits in support of their allegations that prosecution witnesses and private legal counsel are exposed to KIDNAPPING, HARASSMENT, GRAVE THREATS, AND TEMPTING OFFERS OF BRIBE MONEY all intended to extract an affidavit of desistance from the complainant, this is now the affidavit of desistance in her affidavit dated December 16, 1996, the petitioner the offended party, the herein offended party Juvielyn Punongbayan alleged etc . . . etc . . . in support of her petition and then she alleged that during the last week of Feb. 1997, she was visited by one Lourdes Salaysay, she stated that Mrs. Salaysay told her that Mrs. Alonte, wife of Mayor Alonte requested her to settle Alonte's case, she was informed that Mrs. Alonte was offering P10,000,000.00, will send her to school and give her house and send her parents abroad, Atty. Remedios C. Balbin is not here now, I am just quoting the Supreme Court counsel, private counsel of petitioner also executed an affidavit dated February 1997, quote: the Supreme Court quote to them: to put on record the attempting, influence, directly, in exchange of valuable consideration, that the Rape charge against

Mayor Bayani Arthur Alone, she alleged that in two (2) occasions Atty. Romero conveyed to me the message of Mayor Alonte, namely: to drop the rape case against him and that he would give a consideration of P10,000,000.00 to be apportioned as follows: P5,000.00, for the private complainant, your client and the prosecutor P3,000,000.00 for me, as private prosecutor, that is what Atty. Balbin said, P4,000,000.00 for her, the mediator, so there seems to be a liberal flow of blood money, that is why the Supreme Court ordered the Court to determine the validity, and there is another, dated March 19, 1997. I have to remind everybody about what happened, this thing did not come from me, I am not fabricating anything this comes from the highest tribunal jurat, to whom I am responsible another affidavit of Atty. Balbin, she narrated the continuing attempts to bribe her and threatened her, so there were continuing events, they alleged, the People's Bureau, Office of the Mayor of Quezon City, extensively discuss the squatting case with against his client, that after a brief exchange on the status of the case, they confided to me his real purpose, that it started of by saying he was the legal counsel of the gambling lords of Malabon for which he get a monthly retainer of P15,000.00 exclusive of transportation expenses, but he also stated that he knows all the network of the gambling lord throughout the country, which is quite strong and unified, that I then ask him "what do you mean?" "Is Alonte into gambling too, that he is part of the network you speak of?", that Atty. Daga did not reply, but instead said, they are prepared to double the offer made to by Atty. Romero which was published in the newspaper at P10,000,000.00, so, its double, double your money, so its P20,000,000.00, that I told him, its Atty. Balbin, that all the money in the world, all the money in the world will not make me change my position against my client executing a desistance and that Alonte's voluntary surrender plea of guilty to rape, conviction, and the imposition of the corresponding penalty will satisfy the ends of justice, but I told him, that my client's case is not isolated, there being five (5) other miners similarly place and Alonte's will be stopped from doing more harm that Atty. Daga, then told me in Filipino if you do not accede to a desistance, then they will be force to but because he did not [complete] the sentence I asked him directly, what do you mean, what do you intend to do, and he replied, go on with the case, [buy] the judge, [buy] the judge, that I am believing, and I reacted saying, but they have already done so, Judge Francisco Binan, Judge Francisco Binan suddenly change his attitude towards the prosecution, perhaps you are referring to the next judge when the petition for change of venue is finally granted that Atty. Daga did not reply, and he reiterated that his principal referring to them again as gambling lords, wanted desistance, after which he

excused himself and left, that I execute this affidavit, as Atty. Balbin attests to the truth of the incident with Atty. Dionisio Daga which occurred in the afternoon of March 6, 1997 at my office, stating . . . (JUDGE READING THE RECORDS OF THE CASE)

Court

Then, the Supreme Court said, these affidavits, the one attached gave specific names, dates and methods . . . a coercion of corruption, the prosecution of Criminal Case No. 96-19-B (JUDGE CONTINUED READING THE RECORDS OF THE CASE) that is desisting for pursuing her complaint for Rape petitioner a minor, they have . . . illicit, influence and due pressure to prevent . . . Criminal Case No. 96-19-B to any of its Branch, just to call the Criminal Case No. 96-19-B shall be raffled, shall result the petitioner's motion, to resume proceedings filed in Branch 26 in the RTC of Laguna, to determine the voluntariness and validity of the petitioner's desistance in the light of the position of the public prosecutor, Assistant Chief Prosecutor Leonardo Guiab . . . I don't know what will be the outcome . . . you may contend that because of that affidavit of the desistance there is reasonable doubt . . .etc . . . but still, that will be placing the cart before the horse . . . you have to go a regular trial on the merits . . . because this is a heinous offense which cannot . . . and during the pre-trial cannot be subject to a plea-bargaining, and with respect to its new law which took effect in 1993, that is a new one, it was placed to the category of a heinous offense . . .

Prosecutor Campomanes

So we go on trial your Honor, and we will present the complaining witness, and let the Court decide on the basis of the complainants testimony . . . private complainant's testimony, before this Honorable Court . . .

xxx xxx xxx

Prosecutor Campomanes

That's why we are presenting the private complainant, the principal witness, the mother who is also a signatory to this affidavit of desistance, everybody

who have been a part and participant in the making and preparation of this affidavit of desistance, they have already signed these affidavit of desistance.

Court

And we also have the affidavits mentioned by the Supreme Court, because I was . . . all of those documents in the determination of whether that affidavit is valid.

Prosecutor Campomanes

Yes, your Honor.

Court

We . . . the Court cannot close his eyes to the other affidavits . . . because . . . that's why precisely the Supreme Court ordered me to hear this case.

Prosecutor Campomanes

We understand that your Honor.

Court

There are may conflicting matters to be solve . . . conflicting matters to be tackled in this case.

Prosecutor Campomanes

May we present the private complainant, your Honor . . . . 64

The records show that the hearing of November 7, 1997 was set for arraignment of the petitioners. 65 After the counsels made their respective appearances, Prosecutor Campomanes presented her authority to appear as prosecutor in lieu of Asst. Chief State Prosecutor Guiyab, Jr. Both petitioners pleaded not guilty to the charge. Respondent judge then set the case for pretrial which the parties, however, waived. The proceedings continued

and Prosecutor Campomanes manifested there was no need for the prosecution to go to trial in view of the Affidavit of Desistance of the private complainant. Respondent judge, however, observed that private complainant did not negate the commission of the crime in her Affidavit of Desistance. Respondent judge expressed his misgivings on the validity of the Affidavit of Desistance because of the September 2, 1997 Resolution of this Court citing affidavits where allegations of bribery were made to extract said affidavit from complainant. Prosecutor Campomanes then offered to present the private complainant to attest to the voluntariness and veracity of her Affidavit of Desistance. Respondent judge averred whether the court should proceed to a trial on the merits. Prosecutor Campomanes declared that they could go on trial and let the court decide the merits of the case on the basis of the testimony of private complainant and the other witnesses. It was then that private complainant was presented as a witness.

From the garbled transcripts of the hearing on November 7, 1997, it is not clear what both respondent judge and the public prosecutor intended the proceedings to be. Respondent judge repeatedly declared that the proceedings before him was to be a trial on the merits. The public prosecutor agreed to go to trial, but at the same time moved to present private complainant and her witnesses to testify on the voluntariness of her Affidavit of Desistance. Respondent judge and the public prosecutor were, obviously, not tuned in to each other.

I agree with the majority that the November 7, 1997 proceedings could not have been a trial on the merits. First of all, the proceedings did not conform with the procedure for trial as provided in the 1985 Rules on Criminal Procedure. Section 3 of Rule 119 provides:

Sec. 3. Order of Trial. — The trial shall proceed in the following order:

(a) The prosecution shall present evidence to prove the charge and, in the proper case, the civil liability.

(b) The accused may present evidence to prove his defense, and damages, if any, arising from the issuance of any provisional remedy in the case.

(c) The parties may then respectively present rebutting evidence only, unless the court, in furtherance of justice, permits them present additional evidence bearing upon the main issue.

(d) Upon admission of the evidence, the case shall be deemed submitted for decision unless the court directs the parties to argue orally or to submit memoranda.

(e) However, when the accused admits the act charged or omission charged in the complaint or information but interposes lawful defense, the order of trial may be modified accordingly.

In the case at bar, petitioners were never instructed to present evidence to prove their defenses. The parties were never given the opportunity to present their respective evidence rebutting the testimony of private complainant. There was no admission by petitioners of the charge in the information as to justify a change in the order of trial. 66

Our criminal rules of procedure strictly provide the step by step procedure to be followed by courts in cases punishable by death. 67 This rule also applies to all other criminal cases, particularly where the imposable penalty is reclusion perpetua. The reason for this is to assure that the State makes no mistake in taking life and liberty except that of the guilty. 68 Thus:

Judges should be reminded that each step in the trial process serves a specific purpose. In the trial of criminal cases, the constitutional presumption of innocence in favor of the accused requires that an accused be given sufficient opportunity to present his defense. So with the prosecution as to its evidence.

Hence, any deviation from the regular course of trial should always take into consideration the rights of all the parties to the case, whether the prosecution or defense. 69

Second, the admission of private complainant's affidavit of October 21, 1996 was made solely in response to respondent judge's own questioning. 70 It was this affidavit which respondent judge used to convict the petitioners. This affidavit, however, was not marked nor was it formally offered before the court. The Revised rules on Evidence clearly and expressly provide that "[t]he court shall consider no evidence which has not been formally offered." 71 Evidence not formally offered in court will not be taken into consideration by the court in disposing of the issues of the case. Any evidence which a party desires to submit for the consideration of the court must formally be offered by him, 72otherwise it is excluded and rejected. 73

Third, where there is a doubt as to the nature of the criminal proceedings before the court, this doubt must be resolved in favor of the accused who must be given the widest latitude of action to prove his innocence. 74 It is in petitioners' favor that the proceedings of November 7, 1997 be treated as a hearing on the motion to dismiss, not a trial on the merits. To rule otherwise will effectively deny petitioners due process and all the other rights of an accused under the Bill of Rights and our Rules in Criminal Procedure.

Indeed, following respondent judge's finding and assuming that the November 7, 1997 hearing was already a trial on the merits, petitioners were never afforded their right to confront and cross-examine the witness. The court did not, at the very least, inquire as to whether the petitioners wanted to cross-examine private complainant with respect to her affidavit of October 21, 1996. No opportunity to cross-examine was afforded petitioners and their counsels such that they cannot be deemed to have waived said right by inaction. 75

Regalado, Davide, Jr., Romero, Bellosillo, Mendoza and Panganiban, JJ., concur.

 

Separate Opinions

PUNO, J., separate opinion;

The facts are critical and need to be focused. Petitioners were charged with rape in Criminal Case No. 15993 which was raffled to Br. 25 of the RTC of Biñan, Laguna. The charge is principally based on the following affidavit dated October 31, 1996 of Ms. Juvie-Lyn Punongbayan, a 16-year old minor, viz.:

REPLY-AFFIDAVIT

(TUGON SA MGA SALAYSAY NILA MAYOR BAYANI ALONTE, WELLA CONCEPCION, RICARDO LACAYAN at JAIME MENDOZA)

Ako si JUVIE-LYN Y. PUNONGBAYAN, Filipino, walang asawa, 16 years old, at kasalukuyang nasa pangangalaga ng Department of Social Welfare and Development, matapos makapanumpa ayon sa batas, ay nagsasaad:

1. Wala pong katotohanan ang lahat nakasaad sa mga salaysay ni Mayor Bayani Alonte at Buenaventura "Wella" Concepcion, ng kanilang mga testigo na sila Ricardo (Ading) Lacayan y Aguilar at Jaime Bagtas Mendoza.

2. Ang totoo po ay inabuso ako ni Mayor nung September 12, 1996, katulad nga ng naihayag ko na sa aking sinumpaang salaysay. Ayon sa driver ng tricycle na nasakyan ko pagkatapos ng insidente, hindi lang po ako, kundi marami pa pong babae ang inabuso ni Mayor. Sabi pa nga ng driver ay naaawa siya sa akin, at lumaban daw ako. Tinawagan ko na rin po ang lahat

ng mga babae na naging biktima ni Mayor; wag silang matakot, lumabas at ilahad ang pangaabuso ni Mayor.

Ang detalya nung panggagahasa

ni Alonte at ang partisipasyon

ni Wella Concepcion

3. Nakalahad po sa sumusunod na talata ang detalya ng pang-aabuso sa akin ni Mayor. Pinakikita rin dito kung paano nakipagsabwatan kay Wella Concepcion. Sa pamamagitan nito ay mapapabulaanan na rin ang mga nakasaad sa salaysay nila at ng mga testigo nila.

4. Nakilala ko si Wella Concepcion, dance instructor, nung bandang last week ng August 1996. Noon ay naghahanda ako para sa "Miss Education" beauty contest sa Perpetual Help College of Laguna. Doon ako nag-aaral. First year college ako, at education ang kursong pinili ko. Ang nasabing contest ay ginanap nung Sept. 20, 1996. Kapag nagkikita kami ni Wella para sa ensayo, nagkukuwentuhan din kami, at nabanggit niya na may kaibigan siyang bakla na nagdadala ng babae kay Mayor Alonte. Waway daw ang pangalan ng bakla. Hindi ko pa kilala si Waway noon.

5. Nung Sept. 7, niyaya ako ni Wella na sumali sa dance contest sa "Sang Linggo NAPO SILA" sa Channel 2, na itatanghal sa Sept. 11, 1996. Wala na daw po akong aalalahanin. Siya daw ang bahala sa costume at transportation. Pumayag ang nanay ko, dahil wala na kaming gagastusin. Hindi ko tinanong kay Wella kung saan galing ang costume. Akala ko may ipapagamit lang siya sa akin.

6. Nung Sept. 8, pinakilala ni Wella si Waway sa akin. Si Waway ang nagturo sa amin ng sayaw para sa TV contest. Mula nung araw na yon hanggang Sept. 10 ay nagsanay kami sa bahay ng kapatid ni Waway sa St. Francis Subdivision, Biñan, Laguna. Tatlo kami sa dance group: ako at ang dalawang lalaki na ipinakilala sa akin ni Waway: si Melchor at Darius.

7. Nagpunta kami sa studio sa Delta nung Sept. 11. Bago kami magsayaw, habang inaayos ni Wella yung damit ko, sinabi niya na dapat manalo kami dahil si Mayor Alonte daw ang nag-sponsor ng costume namin. Noon ko lang ito nalaman. Hindi kami nanalo sa contest, pero nagkaroon pa rin kami ng premyong P1,500.00 na pinaghatian namin.

8. Pagkatapos ng contest, at nung nakapagpalit na ako ng damit, binabalik ko kay Wella ang costume ko. Sabi niya iuwi ko daw ito dahil gagamitin ko ito sa Miss Education contest, sa presentation ng mga candidates. Mula sa studio, nagpunta kaming lahat sa isang kainan sa tapat ng Delta at, pagkatapos namin kumain, humiwalay yung ibang kasama namin.

9. Dinala ako ni Wella sa isang department store at binili niya ako ng sandals. Inikot niya ako sa lugar na yon at binili niya ako ng pagakain. Tapos ay sumakay kami ng bus pauwi sa Laguna. Nung nasa bus kami, niyaya ako ni Wella na magpunta sa bahay ni Mayor para magpasalamat ng personal para sa costume namin. Pumayag ako at sabi ko kay Wella na sunduin niya ako sa bahay ng 10:00 a.m. sa susunod na araw, Sept. 12. Nakarating ako sa bahay ng 5:00 p.m. ng araw na yon, Sept. 11.

10. Nung Sept. 12, hinintay ko si Wella ng 10:00 a.m. Nung hindi siya dumating umalis kaming Tita ko dahil sinamahan ko siya sa health center. Sumundo pala si Wella doon, pero hindi kami nagkita kasi saglit lang kami doon. Bumalik siya sa bahay, at doon na kami nagkita. Tapos ay umalis kami ni Wella papunta kay Mayor. Tumawid kami ng kalye, at pumara ako ng tricycle. Pero kahit marami na akong pinara, ayaw ni Wella na sumakay doon. Maya-maya, may tricyle na dumating na hindi naman pinara ni Wella. Basta huminto na lang sa harap namin. Doon kami sumakay ni Wella. Si Wella ang nagturo sa driver kung saan kami pupunta. Nag-uusap sila ng driver habang papunta kami kay Mayor.

11. Bumaba kami sa tapat ng bahay na bukas ang gate. May swimming pool sa loob, alam na alam ni Wella and, pasikot-sikot nang bahay; tuloy-tuloy siya sa loob at sumunod naman ako. Wala kaming taong nakita, pero bukas pati yung pintuan ng bahay. Dinala ako ni Wella sa sala. Napakaganda ng loob ng bahay. Mayroong wall paper na may design na leaves and flowers; may carpet sa sahig. May mahabang hagdan patungo sa dalawang pintuan.

12. Tinanong ko kay Wella kung nasaan si Mayor. Sabi niya ay nasa munisipyo daw; darating na daw maya-maya. Pagkaraan ng mga 15 minutes, dumating si Mayor na nakasakay sa green na kotse. Lumabas siya sa kaliwang pintuan sa harap ng kotse. Wala siyang kasama.

13. Pumasok si Mayor sa loob ng bahay. Naghubad siya ng sapatos. Sabi ni Wella: "Mayor, si Juvie; Juvie si Mayor."

14. Umupo si Mayor sa tabi ko. Kinamayan niya ako at sinabi niya: "Hi, I'm Arthur" sabay hinalikan niya sa ako sa lips. Hindi ako naka-react dahil nagulat at kinabahan ako.

15. Nagmamadaling nagpaalam si Wella. Kinuha ni Mayor ang wallet sa bulsa sa likod ng kanyang pantalon. Dumukot siya ng P1,000 na buo. Inabot niya ito kay Wella. Patayo na ako

pero hinawakan ni Mayor ang braso ko. Wag daw akong sasama kay Wella. Sinabi ko kay Wella na wag niya akong iiwanan, pero parang wala siyang narinig. Basta tuloy-tuloy siyang umalis.

16. Nung, kami na lang ni Mayor ang natira, pinainom niya ako ng mineral water. Uminom ako dahil nauuhaw ako. Nanlabo ang paningin ko at nanghina ako.

17. Nawalan ako ng malay. Ang sumunod ko na lang na natatandaan ay nandoon na ako sa kwarto. Wala akong damit. Nakadagan si Mayor sa akin. May malaking salamin sa pader. Doon ko nakita na walang kadamit-damit si Mayor.

18. Hawak ako ni Mayor sa magkabilang braso. Pinipisil niya ito kaya nagkaroon ako ng pasa sa kaliwang braso (at ito ay nawala lang pagkatapos ng tatlong araw).

19. Naramdaman ko na pilit na pinasok ni Mayor ang ari niya sa aking ari. Nasaktan ako. Nagmakaawa ako. Umiiyak ako nung sinabi ko sa kanya na tigilan niya ako; nasasaktan ako; may anak rin siyang babae. Sabi niya wag daw akong maingay at i-embrace ko na lang daw siya. Lalo akong umiyak dahil nandidiri ako sa kanya, at sa ginagawa niya sa akin. Naghalo ang galit, pandidiri at takot. Wala akong magawa kundi magmakaawa. Hindi ko siya maitulak dahil nanghihina ako, nakadagan siya sa akin, mataba siya, at hawak-hawak niya ang braso ko. Pero kahit nagmamakaawa ako, tinuloy pa rin niya at pinasok niya ulit ang ari niya sa aking ari.

20. Maya-maya ay tumigil siya. Tumayo siya at sabi niya: "ang panty mo, nasa tabi mo." Kinuha ko ang panty ko, tumayo ako at sinuot ko ito. Hinanap ko ang damit ko, at nakita ko ang walking shorts, bra at t-shirt ko sa sahig. Pinulot ko ito at sinuot ko. Habang sinusuot ko, umiiyak pa rin ako. Pagkatapos kong magbihis, umupo ako sa mahabang upuan sa may gilid ng kama.

21. Samantala, paqkatapos sabihin ni Mayor na nasa tabi ko ang panty ko, nagpunta siya sa banyo na transparent ang pinto. Wala siyang suot pagpunta niya doon. Paglabas niya, nakasuot na siya ng checkered brief na kulay black and white. Pumunta siya sa kabilang gilid ng kama. Kinuha niya ang damit niya na nakahanger sa pader. Sinuot niya ito. Lumabas siya ng kwarto. Hindi nagtagal ay pumasok siya ulit at sinabi niya na nandiyan na daw ang sundo ko.

22. Tumayo ako. Sinabi ko na aalis na ako. Nung papunta na ako sa pintuan, lumapit si Mayor sa akin. May hawak-hawak siyang dalawang pirasong P1,000. Tiniklop niya ito; binaba niya yung neckline ng t-shirt ko, at pinasok niya ang pera sa aking bra. Nagalit ako. Kinuha

ko ang pera at tinapon ko ito sa kanya. Sabi ko hindi ako bayarang babae. Nagalit siya at pinagbantaan ako. Sabi niya: "Pag nagsalita ka, alam mo na kung ano ang mangyayari sa iyo." Tiningnan ko siya, at umalis ako pababa.

23. Mayroon tricycle na nakaabang sa labas. Sumunod si Mayor. Lumapit siya sa driver at binigyan niya ito ng P100. Tapos ay umalis na kami.

24. Umiiyak pa rin ako nung nasa tricycle. Sabi ko sa driver na ginahasa ako ni Mayor. Sabi niya masuwerte daw ako at maaga akong pinauwi dahil yung mga ibang babae daw na dinadala kay Mayor ay pinauwi ng madaling-araw o hating-gabi. Minsan dalawa o tatlo pa nga daw ang dinadala doon, at yung iba ay naka-uniform pa. Naawa daw siya sa akin, kaya magsumbong daw ako. Nakokonsensiya daw siya dahil isa siya sa dalawang tricycle driver na naghahatid ng mga babae doon. Sabi pa nga niya, babae din daw ang ina niya, kaya din siya nakokonsensiya. Dinagdag pa niya na kung may kasiyahan kina Mayor, isang van ng mga babae ang nadoon. Pagdating namin sa bahay ng Lola ko, sabi niya bago siya umalis: "Lumaban ka."

On December 13, 1996, the private complainant thru her counsel, Atty. Remedios C. Balbin and Asst. Chief State Prosecutor Leonardo Guiab, Jr., of the Department of Justice petitioned this Court for a change of venue. They cited as ground the "great danger to the lives of both the private complainant, the immediate members of her family, and their witnesses as they openly defy the principal accused, Mayor Alonte who is acknowledged as a powerful political figure and almost an institution in Biñan, Laguna . . ."

On March 31, 1997, the private complainant, thru the then Secretary of Justice, the Honorable Teofisto Guingona and Chief State Prosecutor Jovencio Zuno filed a Manifestation and Motion for the early resolution of the petition for change of venue. They submitted the affidavits of the private complainant, her counsel Atty. Remedios C. Balbin, Dolores Mercado-Yambao, Bienvenido Salandanan and Evelyn Celso to prove their allegation that they "are exposed to kidnapping, harassment, veiled threats and tempting offers of bribe money — all intended to extract an 'affidavit of desistance' from the private complainant." Worth bright lining are the two (2) affidavits of Atty. Remedios C. Balbin, counsel for the private complainant, relating the fantastic amount of P10M bribe money allegedly offered to her. The first affidavit dated February 24, 1997 states:

I, Remedios C. Balbin, of legal age, Filipino, married, with residence at #5 Uranus Street, Congressional Avenue Subdivision, Quezon City, after having duly sworn in accordance with law, depose and say:

1. That I am the Private Prosecutor in Criminal Case No. 96-19-B for rape, filed with the Biñan RTC, Branch 25, entitled "People of the Philippines vs. Bayani Arthur Alonte, et al.;

2. That as Private Prosecutor, it is my avowed duty to be faithful to the interests of my client, Ms. Juvie-lyn Punongbayan;

3. That on several occasions, I was visited at my Office at the Quezon City Hall Compound, by a lawyer who introduced himself as Atty. Leo C. Romero, representing the Accused Mayor Bayani Arthur Alonte;

4. That my calendar at the People's Bureau, Quezon City Hall, shows that he came to see me about eight (8) times, but we talked only about three (3) times because I was always busy attending to the problems of Quezon City's urban poor and the landowners of private properties illegally occupied by them;

5. That in two (2) occasions, Atty. Romero conveyed to me the message of Mayor Alonte, namely, to drop the rape case against him, and that he would give a consideration of Ten Million Pesos (P10 Million) to be apportioned as follows:

Five Million Pesos (P5M) — for the Private Complainant

Three Million Pesos (P3M) — for me as Private Prosecutor

Two Million Pesos (P2M) — for him as the mediator

6. That I explained to Atty. Romero that money does not matter at all to the Complainant and her family even if they have very modest means; that they want justice, which means a conviction for the charge of rape;

7. That I also explained to Atty. Romero that the money he was offering me was of no consequence to me because I had access to the resources of my two (2) daughters, both of whom are in the medical field abroad, and of Mr. Filomeno Balbin, Labor Attached then assigned in Riyadh;

8. That I told him that I cannot be tempted with his offer because spiritual consideration are more important to me than the material. Also, that I usually handle cases pro bono (at abunado pa) where the litigant is in dire need of legal assistance but cannot afford to pay for the lawyer's fees, as in Juvie-lyn's case;

9. That I gave Atty. Romero a copy of the decision of the Supreme Court promulgated December 10 1996, entitled "People of the Philippines vs. Robert Cloud" (GR No. 119359: Crim. Case No. Q-90-12660) for parricide involving the death of a 2 1/2 year old boy. I wrote on page one of the xerox copy of the decision: "To Atty. Leo Romero — so you will understand," and to which I affixed my signature.

10. That I told him explicitly: "we cannot simplify the entire proceedings. You advise Mayor Alonte to surrender (one mitigating circumstance), plead guilty (another mitigating circumstance), get a conviction and suffer the corresponding penalty. Otherwise, we have nothing to talk about."

11. That I emphasized that his suggestion for Mayor Alonte to plead guilty to "act of lasciviousness" merely was ridiculous;

12. That when the Complainant's Affidavit on the offer of Ms. Emily Vasquez for a valuable consideration in exchange for an affidavit of desistance in the rape was exposed by media, Atty. Romero came to see me and thanked me for not exposing him in similar fashion. I assured him that he will not be an exception and that I was just too busy then to execute an affidavit on the matter, as I do now;

13. That I have not received other similar offers of valuable material consideration from any other person, whether private party or government official; However, I have been separately advised by several concerned persons that I was placing my personal safety at great risk. The victim's family will have great difficulty in finding another lawyer to "adopt" them in the way I did, which gives them strength to pursue their case with confidence and the accused Mayor is aware that I am the obstacle to an out-of-court settlement of the case. Also, that I had my hands full, as it is, as the Head of the QC People's Bureau, Housing Development Center, and Special Task Force an Squatting and Resettlement, and the numerous cases filed by me or against me, connected with my performance of official duties, and I should not add more legal problems despite my authority to engage in private law practice.

14. That this affidavit is executed in order to put on record the attempt to influence me directly, in exchange for valuable consideration to drop the rape charge against Mayor Bayani Arthur Alonte.

February 24, 1997, City of Manila.

SGD. REMEDIOS C. BALBIN

REMEDIOS C. BALBIN

SUBSCRIBED AND SWORN to before me this 26th day of March, 1997, Metro Manila.

Community Tax Certificate — 5208733

Date Issue 2-10-97

Quezon City

NOTARY PUBLIC

SGD. JUANITO L. GARCIA

ATTY. JUANITO L. GARCIA

NOTARY PUBLIC

UNTIL Dec. 31, 1997

PTR No. 63-T-033457

ISSUED AT MLA. ON 1-2-97

TAN—161-570-81

Doc. No. 950;

Page No. 170;

Series of 1997.

In her second Affidavit dated March 26, 1997, Atty. Balbin declared in no uncertain language that the bribe offer for private complainant to make a desistance was increased from P10,000.00 to P20,000.00, viz:

REPUBLIC OF THE PHILIPPINES )

CITY OF MANILA ) s.s.

AFFIDAVIT

I, REMEDIOS C. BALBIN, of legal age, Filipino, married, and with postal address at No. 5 Uranus Street, Congressional Avenue Subdivision Quezon City, after having duly sworn in accordance with law, depose and say:

1. That I am the Private Prosecutor in the rape case filed by the "minor Juvie-Lyn Punongbayan against Mayor Bayani Arthur Alonte of Biñan, Laguna.

2. That earlier, I reported to Secretary Teofisto Guingona, State Prosecutor Jovencio R. Zuno, Asst. Chief State Prosecutor Leonardo Guiyab, Jr., and Director Jude Romano of the Witness Protection Program, the instances of substantial amounts amounting to several millions, to my client, to her relatives, including her maternal grandmother, and to myself;

3. That despite the published declaration by the Department of Justice of its determination to prosecute those who offered the bribes, new emissaries of Mayor Alonte persist in making offers, as follows:

a. On Thursday, March 6, 1997, at about 3:15 o'clock in the afternoon, Atty. Dionisio S. Daga came to see me at my office at the People's Bureau, Office of the Mayor, of Squatting case which I filed against his clients;

b. That after a brief exchange on the status of the case, he confided to me his real purpose;

c. That he started off by saying that he was the legal counsel of the gambling lords of Malabon for which he gets a monthly retainer of fifteen thousand pesos (P15,000.00), exclusive of transportation expenses, etc.

d. The he also stated that the network of gambling lords throughout the country is quite strong and unified;

e. That I then asked him: "What do you mean — is Alonte into gambling too? that he is part of the network you speak of?"

f. That Atty. Daga did not reply but instead said: "they are prepared to double the offer made to you by Atty. Romero which was published in the newspapers" at P10 Million;

g. That I told him that all the money in the world will not make me change my position against my client's executing a desistance, and that only Alonte's voluntary surrender, plea of guilty in rape, conviction and the imposition of the corresponding penalty will satisfy the ends of justice;

h. That I told him that my client's case is not isolated, there being five (5) other minors similarly placed; and Alonte should be stopped from doing more harm;

i. That Atty. Daga then told me in Pilipino "if you do not accede to a desistance, then, they will be forced to . . .".

j. That because he did not complete his sentence, I asked him directly: "What do you mean? What do you intend to do? And he replied: Go on with the case Buy the Judge."

k. That unbelieving, I reacted, saying; "but they have already done so, Judge Francisco at Binan suddenly changed his attitude towards the Prosecution. Perhaps, you are referring to the next judge when the petition for change of venue is finally granted?"

1. That Atty. Daga did not reply, and he reiterated that his principals, referring to them again as "gambling lords," want a desistance, after which he excused himself and left.

4. That I execute this Affidavit to attest to the truth of the incident with Atty. Dionisio S. Daga which occurred in the afternoon of March 6, 1997, at my Office, stressing herein my surprise over his daring in making yet another monetary offer to me in exchange for my client's

desistance and my feeling of fear for the first time since I started "handling" this case against Alonte;

5. That despite what I perceived as veiled threats of Atty. Daga, I will seek justice in behalf of Juvie-Lyn Punongbayan, with the indispensable initiatives, participation and support of the Department of Justice under Secretary Teofisto Guingona.

FURTHER AFFIANT SAYETH NAUGHT.

SGD. REMEDIOS C. BALBIN

ATTY. REMEDIOS C. BALBIN

Affiant

REPUBLIC OF THE PHILIPPINES )

CITY OF MANILA ) S.S.

SUBSCRIBED AND SWORN TO BEFORE ME this 26th day of March, 1997.

Community Tax Certificate — 5208733

Date Issued 2-10-97

Quezon City

Notary Public

SGD. JUANITO L. GARCIA

ATTY. JUANITO L. GARCIA

NOTARY PUBLIC

UNTIL DEC. 31, 1997

PTR NO. 63-T-033457

ISSUED AT MLA. ON 1-2-87

TAN -161-570-81

Doc. No. 948;

Book No. 190;

Page No. XLIII;

Series of 1997.

After the alleged bribe money was increased from P10M to P20M the complexion of the case changed swiftly.

On June 25, 1997, Atty. Balbin filed a Motion to Resume Proceedings in Br. 25 of the RTC of Biñan, Laguna. Attached to the Motion was the Affidavit of Desistance of the private complainant which states:

I, Juvie-lyn Yambao — Punongbayan, 17 years of age, a resident of No. 5 Uranus Street, Congressional Avenue Subdivision, Quezon City, duly assisted by private legal counsel and my parents, after having duly sworn in accordance with law, depose and say:

1. That I am the Complainant in the rape case filed against Mayor Bayani "Arthur" Alonte of Biñan, Laguna, with the RTC-Branch 25 of Binan, Laguna;

2. That the case has been pending for some time, on preliminary issues, specifically, (a) change of venue, filed with the Supreme Court; (b) propriety of the appeal to the Court of Appeals, and after its denial by said court, brought to the Office of the President, on the veracity of the findings of the Five-Man Investigating Panel of the State Prosecutor's Office, and the Secretary of Justice and (c) a hold-departure order filed with the Biñan Court;

3. That the legal process moves ever so slowly, and meanwhile, I have already lost two (2) semesters of my college residence. And when the actual trial is held after all the preliminary issues are finally resolved, I anticipate a still indefinite suspension of my schooling to attend the hearings;

4. That during the entire period since I filed the case, my family has lived a most abnormal life: my father and mother had to give up their jobs; my younger brother, who is in fourth grade, had to stop his schooling, like myself;

5. That I do not blame anyone for the long, judicial process; I simply wish to stop and live elsewhere with my family, where we can start life anew, and live normally once again;

6. That I pray that I be allowed to withdraw my complaint for rape and the other charge for child abuse wherein the Five-Man investigating Penal of the Office of the State Prosecutor found a prima facie case although the information has not been filed, and that I will not at any time revive this, and related cases or file new cases whether, criminal, civil and/or administrative here or anywhere in the Philippines;

7. That I likewise realize that the execution of this Affidavit will put to doubt my credibility as a witness-complainant;

8. That this is my final decision reached without fear or favor, premised on a corresponding commitment that there will be no reprisals in whatever form, against members of the police force or any friends who extended assistance to me in whatever way, in my search for justice.

WHEREOF, I affix my signature, this 25th day of June, 1997, in Quezon City.

SGD. JUVIE-LYN Y. PUNONGBAYAN

JUVIE-LYN Y. PUNONGBAYAN

Assisted by:

SGD. REMEDIOS C. BALBIN

ATTY. REMEDIOS C. BALBIN

Private Prosecutor

In the presence of:

SGD. PABLO PUNONGBAYAN

PABLO PUNONGBAYAN

Father

SGD. JULIE Y. PUNONGBAYAN

JULIE Y. PUNONGBAYAN

Mother

SUBSCRIBED AND SWORN to before me this 25 the day of June, 1997, in Quezon City.

SGD. ILLEGIBLE

Administering Officer

RTC Branch 94

Quezon City

Obviously, the Motion to Resume Proceedings was intended to get the trial court's approval for the dismissal of the rape case against the petitioners.

Indeed, three days thereafter or on June 28, 1997, Atty. Ramon C. Casino moved in behalf of the petitioners to dismiss the petition for change of venue then pending in this Court citing the affidavit of desistance of the private complainant. On August 22, 1997, however, Asst. Chief State Prosecutor Guiyab opposed the motion. He alleged that he has control of the prosecution of the rape case and that he was not aware of the desistance of the private complainant.

The legal maneuvers to dismiss the rape case against the petitioners on the basis of the alleged affidavit of desistance of the private complainant did not find the favor of this Court. On September 2, 1997, this Court unanimously granted the petition for change of venue, ruling among others, viz:

xxx xxx xxx

These affidavits give specific names, dates and methods being used to abort, by coercion or corruption, the prosecution of Criminal Case No. 9619-B. It is thus incorrect for oppositors Alonte and Concepcion to contend that the fear of the petitioner, her private counsel and her witnesses are too generalized if not fabricated. Indeed, the probability that in desisting from pursuing her complaint for rape, petitioner, a minor, may have succumbed to some illicit influence and undue pressure. To prevent possible miscarriage of justice is good excuse to grant the petition to transfer the venue of Criminal Case No. 9619-B from Biñan, Laguna to the City of Manila.

IN VIEW WHEREOF, the Petition for Change of Venue from Biñan, Laguna to the City of Manila is granted. The Executive Judge of RTC Manila is ordered to raffle Crim. Case No.

9619-B to any of its branches. The judge to whom Crim. Case No. 9619-B shall be raffled shall resolve the petitioner's Motion to Resume Proceedings filed in Br. XXV of the RTC of Biñan, Laguna and determine the voluntariness and validity of petitioner's desistance in light of the opposition of the public prosecutor, Asst. Chief State Prosecutor Leonardo Guiyab. The branch clerk of court of Br. XXV of the RTC of Biñan, Laguna is ordered to personally deliver to the Executive Judge of Manila the complete records of Crim. Case No. 9619-B upon receipt of this Resolution.

On September 17, 1997, Criminal Case No. 9619-B (re-docketed by the Clerk of Court of Manila as Crim. Case No. 97-159955) was raffled to Br. 53 of the RTC of Manila, presided by the respondent judge, the Honorable Maximo A. Savellano.

On October 9, 1997, the respondent judge issued warrants of arrest against the petitioners after a finding of probable cause.

On October 28, 1997, an Administrative Order of the DOJ was issued empowering First Assistant City Prosecutor Marilyn R. O. Campomanes to prosecute the case at bar. Asst. Chief State Prosecutor Leonardo Guiab, Jr., who opposed the affidavit of desistance was relieved from the case. The reason given in the Administrative Order was ". . . in the interest of public service." Prosecutor Campomanes was authorized "to move for its (case) dismissal if the evidence on record so warrant . . ." 1

The arraignment of the petitioners took place on November 7, 1997. The State was represented by Prosecutor Marilyn Campomanes. Petitioner Alonte was represented by Atty. Jose Flaminiano and Atty. Sigfrid A. Fortun. Petitioner Concepcion was represented by Atty. Ramon C. Casano. Atty. Remedios Balbin who had previously exposed under oath the threats to the life of the private complainant and her witnesses and the repeated attempts to buy complainant's desistance was absent. 2

Petitioners pled not guilty to the charge of rape upon their arraignment. 3 Pre-trial was then waived by both the prosecution and the defense. The proceedings continued and Prosecutor Campomanes presented the private complainant, Ms. Punongbayan who testified on her affidavit of desistance. She declared that her desistance was her "personal" decision with the consent of her parents. 4 She said she was neither paid nor pressured to desist. On questions by the respondent judge, however, she affirmed the truth of her affidavit dated October 31, 1996 that she was raped by petitioner Alonte. Prosecutor Campomanes marked and offered her affidavit of desistance as Exhibit "A". 5 She called on other witnesses to testify on the voluntariness of the affidavit of desistance. The parents of the complainant — Pablo 6 and Julie 7 Punongbayan — declared that they did not receive any monetary consideration for the

desistance of their minor daughter. Neither were they pressured to give their consent to the desistance. Fourth Asst. Provincial Prosecutor Alberto Nofuente averred that the affidavit of desistance was signed and sworn to before him in the presence of the complainant's parents and private counsel, Atty. Balbin. He said he explained the affidavit to them and that the complainant voluntarily signed the same. 8

After their testimonies, Prosecutor Campomanes made the manifestation that "with the presentation of our witnesses and the marking of our documents (sic) we are now closing the case and that we are praying for the dismissal of the case. 9 The respondent judge ruled "the case is submitted for decision." 10 Atty. Flaminiano orally prayed that petitioner Alonte be granted bail and Prosecutor Campomanes offered no objection. 11

On November 10, 1997, petitioner Alonte filed an Urgent Motion to Admit to Bai1. 12 In her Comment, Prosecutor Campomanes agreed and averred, viz.: 13

xxx xxx xxx

1. That she received a copy of the Petition for Bail.

2. That on the hearing of the instant case on November 7, 1997, the Prosecution presented its witnesses who vehemently signified their intention not to further prosecute the case in Court and there being no other witnesses to present, the undersigned is left with no alternative but to seek the dismissal of the considering that without the testimony of said witnesses this case has nothing to stand on in Court.

3. That for the aforestated reason, the People interposes no objection to the granting of Bail and in fact justice and equity dictate that it joins the accused in his prayer for the granting of bail in the amount of P150,000 (ONE HUNDRED FIFTY THOUSAND PESOS).

4. That for the aforementioned bases, the People hereby manifests its position that the case be immediately dismissed or at least the accused be granted bail since the record proves that there is no more evidence to sustain the charge against him such that the granting of bail is proper and in order.

5. That as a general rule, a hearing on the petition for bail is necessary to prove that the guilt is not strong but in this particular case there is no need for hearing since the prosecution cannot prove its case against the accused as it has no other evidence or witnesses to be presented.

On November 17, 1997, petitioner Alonte, thru counsel, filed an Urgent Plea to Resolve the Motion for Bail. 14 On the same date, Prosecutor Campomanes manifested that "she deems it proper and in accord with justice and fair play to join the aforestated motion." 15

On November 25, 1997, December 1, 1997, December 8, 1997 and December 10, 1997, petitioner Alonte filed a Second, Third, Fourth, and Fifth Motion early for resolution of his petition for bail. 16 In all these motions, Atty. Fortun, counsel of petitioner Alonte, alleged that copy of the motion . . . could not be served in person upon the private prosecutor" (Atty. Balbin) in light of the distance between their offices. 17 He relied on section 13, Rule 11 of the 1997 Rules on Civil Procedure. The motions were not resolved by the respondent judge.

On December 18, 1997, the respondent judge promulgated his Decision convicting the petitioners and sentencing them to reclusion perpetua. On whether of the affidavit of desistance can be a ground for dismissal of the rape case against the petitioners, the respondent judge held:

The first issue to be determined and resolved is the "voluntariness and validity of petitioner's desistance in the light of the opposition of the public prosecutor Asst. Chief State Prosecutor Leonardo Guiab." (p. 7, SC Resolution En Banc, dated September 2, 199/.7; [Rollo, p. 253]) It is appropriate to quote again a portion of the 7-page Resolution En Banc of the highest tribunal, to wit; "Indeed, the probability (exists) that in desisting from pursuing her complaint for rape, petitioner, a minor, may have succumbed to some illicit influence and undue pressure. To prevent possible miscarriage of justice is a good excuse to grant the petition for change of venue . . ." (Rollo, p. 202).

The Court shall narrate the facts leading to the desistance of the private complainant which are embodied in the two (2) affidavits of her lawyer, Atty. Remedios C. Balbin, with whom the private complainant lives at No. 5 Uranus St., Congressional Avenue Subdivision, Quezon City. One affidavit is dated May 24 1997, (sic) while March 26, 1997. The said affidavits are attached as exhibits to the aforementioned Manifestation and Motion for the Resolution of Petition for Change of Venue filed by the private complainant Juvie-Lyn Y. Punongbayan. Exh. "C", dated May 24, 1997, (Rollo, pp. 216-219) is hereby quoted as follows:

xxx xxx xxx

It clearly appears in the abovequoted affidavit that repeated bribe offers from a lawyer representing the accused Mayor Bayani Arthur Alonte in the total amount of Ten Million Pesos (P10,000,000.00) were made to Atty. Balbin, allocated as follows: (1) Five Million Pesos (5,000,000.00) for the private complainant Juvie-lyn Y. Punongbayan; (2) Three Million

Pesos (P3,000,000.00) for her (Atty. Balbin); and (3) Two Million Pesos (P2,000,000.00) for the mediator.

In the subsequent affidavit, dated March 26, 1997, executed by Atty. Remedios C. Balbin (Exh. F, Rollo, pp. 224-225) she narrated in detail the continuing veiled threats and the very tempting and escalating offer to increase the amount of the bribe money offered to her and the private complainant after her first affidavit, by doubling the first offer of Ten Million Pesos (P10,000,000.00) to Twenty Million Pesos (P20,000,000.00), in exchange for her client's desistance, but also accompanied with veiled threats, if refused. Said affidavit is quoted, as follows:

xxx xxx xxx

The Court underscores paragraphs (b), (c), (d), (e), (f), (g), (h), (i), (j), (k), and (l), particularly paragraphs (i), (j) and specially paragraph (k) of the abovequoted affidavit of Atty. Balbin which insinuates that the presiding Judge of the RTC Biñan, Laguna, had already been bought, and that accused Alonte thru his numerous emissaries, will also buy or bribe the "the next judge when the petition for change of venue is finally granted." In view of this insinuation, the undersigned presiding Judge is very careful in deciding this case, lest he be placed under suspicion that he is also receiving blood money that continues to flow. The Court wants to have internal peace — the peace which money cannot buy. Money is the root of all evil. The Holy Holy Scriptures also remind judges and jurists: "You shall not act dishonestly in rendering judgment. Show neither partiality to the weak nor deterrence to the mighty, but judge your fellow men justly," (Leviticus 19:15). The Scriptures further say: "What does it profit a man if he gains the whole world but suffers the loss of his soul?" (Mt. 16:26) and "No one can serve two (2) masters. . . You cannot serve God and mammon." (Mt. 6:24, Luke 16:13). It is not out of place to quote the Holy Scriptures because the Honorable Supreme Court has been doing so in its quest for truth and justice. Thus, People vs. Garcia, 209 SCRA 164, 174, the highest tribunal, in ruling that the flight of an accused is evidence of guilt on his part, quoted the old Testament, as follows:

It was written in the literature of Old Testament several centuries ago that:

The wicked man fleeth though no man pursueth, but the righteous are as bold as a lion.

(Proverbs, 28:1)

Subsequently, on June 25, 1997, the private complainant and her lawyer suddenly somersaulted or changed their common positions or attitudes in the prosecution of this case. Evidently, veiled threats and money had replaced the "spiritual consideration" which earlier, to them were "more important than the material" to quote Atty. Balbin in her first affidavit (Rollo, p. 217), and her reply to Atty. Dionisio S. Daga that "all the money in the world will not make me change my position against my client's executing a desistance, and that only Alonte's voluntary surrender, plea of guilty to rape, conviction and the imposition of the corresponding penalty will satisfy the ends of justice.

On June 26, 1997, the private complainant thru her counsel, Atty. Remedios C. Balbin, filed a Motion to Resume Proceedings, dated June 25, 1997, (Rollo, pp. 238-244) praying therein that the RTC, Biñan, Laguna, where this case was still pending, vacate its Order to Suspend Hearings, to enable it to act on all incidents including private Complainant's Affidavit of Desistance attached thereto. (Rollo, pp. 240-241) which affidavit of desistance is quoted hereunder as follows:

xxx xxx xxx

This Court, as the trier of facts, is tasked by the highest tribunal to find out if the private complainant, a minor "may have succumbed to some illicit influence and undue pressure, in order to prevent a possible miscarriage of justice." Evidently, the veiled threats and acceptance of the bribe money in allocated amounts which was subsequently raised to the irresistible amount of at least P20,000,000.00, compelled, impelled and/or tempted the private complainant her father Pablo Punongbayan and her mother Julie Y. Punongbayan, and her lawyer and private prosecutor Atty. Remedios C. Balbin, who did not appear in Court on November 7, 1997, despite notice, to execute the said "Affidavit of Desistance" which was the ultimate goal of the accused. It is very obvious that the private complainant a minor, "succumbed to some illicit influence and undue pressure," to borrow the language of the Honorable Supreme Court En Banc. It would be the height of extreme naivete or gullibility for any normal individual to conclude otherwise. The Court does not believe that the private complainant, her lawyer, and her parents charged but in exchange for a plea of guilty the charge is reduced to homicide and the accused is allowed to claim a number of mitigating circumstances. It is not uncommon for estafa, libel, physical injuries and even homicide cases to be dismissed because the complainant has lost interest or alleged that the complaint was filed as a result of a misunderstanding. A number of examples can be given and they can fill a book."

Again, in People vs. Evangelista, L-45089, April 27, 1982, 113 SCRA 713, 720, the Supreme Court further declared:

It may be noted that the crimes in question (forcible abduction with rape) are among those enumerated in Article 344 of the Revised Penal Code, which crimes cannot be prosecuted de officio. In other words, the crimes of abduction and rape are in the nature of private offense, inasmuch as the law has reposed "the right to institute such proceedings exclusively and successively in the offended person, her parents, grandparents or guardian" . . . Accordingly, if after filing the case at face at bar decided that she was unable to face the scandal of public trial, or, if for some private reason she preferred to suffer the outraged in silence, then, corollary to her right institute the proceedings, she should have been allowed to withdraw her complaint and desist from prosecuting the case (Emphasis supplied).

Petitioner Concepcion did not submit any motion for reconsideration. Without waiting for the resolution of his motion for reconsideration, petitioner Alonte repaired to this Court. So did petitioner Concepcion.

Without doubt, the petitions at bar raise two (2) fulcrum issues: (1) the correctness of the ruling of the respondent judge that the desistance of the complainant is not a ground to dismiss the rape charge against the petitioners, and (2) the invalidity of petitioners' conviction on the ground of denial of due process.

I agree with the learned disquisition of Mr. Justice Vitug that we should set aside the conviction of the petitioners for patent violation of their right to due process of law. I write this Separate Opinion to highlight the erroneousness of the shocking stance of the State Prosecutor that the rape charge should be dismissed in view of the desistance of the private complainant. But our ruling giving no effect on the affidavit of desistance should not based on the reason that it was procured by threat or intimidation or any payment of money as the respondent judge opined in his Decision. The respondent judge arrived at this conclusion on the basis of the affidavits of Atty. Balbin, the counsel of the private complainant. This is erroneous for Atty. Balbin was never called to the witness stand to testify on the truth of her affidavits. Her affidavits therefore are hearsay evidence and should not have been relied upon by the respondent judge. The affidavit of desistance cannot abort the rape charge against the petitioners on the simple ground that it did not state that the private complainant-affiant was not raped by petitioner Alonte. In truth, the private complainant affirmed her earlier Reply-Affidavit where she narrated in detail how petitioner Alonte raped her. Moreover, the rape charge has been filed in Court and it is not anymore the absolute privilege of the camplainant to desist from continuing with the case.

This separate opinion unequivocably addresses the issue of whether the desistance of the victim can stop the further prosecution of the petitioners.

I

In Philippine jurisprudence, desistance has been equated with recantation or retraction.

To "recant" means to "withdraw or repudiate formally and publicly;" 18 "to renounce or withdraw prior statement." 19 To "retract" means to "take back;" "to retract an offer is to withdraw it before acceptance." 20 A recantation usually applies to a complainant or witness, either for the prosecution or the defense, who has previously given an extra-judicial statement 21 or testimony in court. 22 Repudiation may be made in writing, i.e., by sworn statement, 23 or by testifying on the witness stand. 24

Mere retraction by a witness or by complainant of his or her testimony does not necessarily vitiate the original testimony or statement, if credible. 25 The general rule is that courts look with disfavor upon retractions of testimonies previously given in court. 26 This rule applies to crimes, 27 offenses 28 as well as to administrative offenses. 29 The reason is because affidavits of retraction can easily be secured from poor and ignorant witnesses, usually through intimidation or for monetary consideration. 30 Moreover, there is always the probability that they will later be repudiated 31 and there would never be an end to criminal litigation. 32 It would also be a dangerous rule for courts to reject testimonies solemnly taken before courts of justice simply because the witnesses who had given them later on changed their minds for one reason or another. This would make solemn trials a mockery and place the investigation of the truth at the mercy of unscrupulous witnesses. 33

The general rule notwithstanding, the affidavit should not be peremptorily dismissed as a useless scrap of paper. There are instances when a recantation may create serious doubts as to the guilt of the accused. 34 A retracted statement or testimony must be subject to scrupulous examination. The previous statement or testimony and the subsequent one must be carefully compared and the circumstances under which each was given and the reasons and motives for the change carefully scrutinized. The veracity of each statement or testimony must be tested by the credibility of the witness which is left for the judge to decide. 35 In short, only where there exists special circumstances in the case which when coupled with the retraction raise doubts as to the truth of the testimony or statement given, can a retraction be considered and upheld. 36

A survey of our jurisprudence reveals that the same rule has been applied to affidavits of desistance. 37 An affidavit of desistance is understood to be a sworn statement executed by a complainant in a criminal or administrative case that he or she is discontinuing the action filed upon his or her complaint for whatever reason he or she may cite. The court attaches no

persuasive value to a desistance especially when executed as an afterthought. 38 However, a in retractions, an affidavit of desistance calls for a reexamination of the records of the case. 39

In private crimes, an affidavit of desistance filed by a private complainant is also frowned upon by the courts. Although such affidavit may deserve a second look at the case, there is hardly an instance when this Court upheld it in private crimes and dismissed the case on the sole basis thereof. Indeed, a case is not dismissed upon mere affidavit of desistance of the complainant, particularly where there exist special circumstances that raise doubts as to the reliability of the affidavit. 40

Usually in private crimes, an affidavit of desistance is executed by the private complainant after pardoning and forgiving the offender. In this instance, the court treats the affidavit as an express pardon. 41 It does not ipso facto dismiss the case but determines the timeliness and validity thereof.

Private crimes are crimes against chastity such as adultery and concubinage, seduction, abduction, rape and acts of lasciviousness. Their institution, prosecution and extinction are governed by Article 344 of the Revised Penal Code, viz:

Art. 344. Prosecution of the crimes of adultery, concubinage, seduction, abduction, rape and acts of lasciviousness. — The crimes of adultery and concubinage shall not be prosecuted except upon a complaint filed by the offended spouse.

The offended party cannot institute criminal prosecution without including both the guilty parties, if they are both alive, nor in any case, if he shall have consented or pardoned the offenders.

The offenses of seduction, abduction, rape, acts of lasciviousness, shall not be prosecuted except upon a complaint filed by the offended party or her parents, grand parents, or guardian, nor in any case, the offender has been expressly pardoned by the above-named persons, as the case may be.

In cases of seduction, abduction, acts of lasciviousness and rape, the marriage of the offender with the offended party shall extinguish the criminal action or remit the penalty already imposed upon him. The provisions of this paragraph shall also be applicable to the co-principals, accomplices and accessories after the fact of the above-mentioned crimes.

Private crimes cannot be prosecuted except upon complaint filed by the offended party. In adultery and concubinage, the offended party must implead both the guilty parties and must not have consented or pardoned the offenders. In seduction, abduction, rape and acts of lasciviousness, the complaint must be filed by the offended party or her parents, grandparents or guardian. The complainant must not have expressly pardoned the offender.

Article 344 also provides for the extinction of criminal liability in private crimes. It mentions two modes: pardon and marriage, which when validly and timely made, result in the total extinction of criminal liability of the offender. 42 The pardon in private crimes must be made before the institution of the criminal action. 43 In adultery and concubinage, the pardon may be express or implied while in seduction, abduction, rape and acts of lasciviousness, the pardon must be express. In all cases, the pardon must come prior to the institution of the criminal action. After the case has been filed in court, any pardon made by the private complainant, whether by sworn statement or on the witness stand, cannot extinguish criminal liability. The only act that extinguishes the penal action and the penalty that may have been imposed is the marriage between the offender and the offended party. 44

As this Court declared in the case of Donio-Teves v. Vamenta, Jr.: 45

The term "private crimes" in reference to felonies which cannot be prosecuted except upon complaint filed by the aggrieved party, is misleading. Far from what it implies, it is not only the aggrieved party who is offended in such crimes but also the State. Every violation of penal laws results in the disturbance of public order and safety which the State is committed to uphold and protect. If the law imposes the condition that private crimes like adultery shall not be prosecuted except upon complaint filed by the offended party, it is, as herein pointed earlier "out of consideration for the aggrieved party who might prefer to suffer the outrage in silence rather than go through the scandal of a public trial." Once a complaint is filed, the will of the offended party is ascertained and the action proceeds just as in any other crime. This is shown by the fact that after filing a complaint, any pardon given by the complainant to the offender would be unavailing. It is true, the institution of the action in so called the private crimes is at the option of the action of the aggrieved party. But it is equally true that once the choice is made manifest, the law will be applied in full force beyond the control of, and inspite of the complainant, his death notwithstanding.

The filing of a complaint in private crimes is merely a condition precedent to the exercise by the proper authorities of the power to prosecute the guilty parties. 46 It is the complaint that starts the prosecutory proceeding without which the fiscal and the court cannot exercise jurisdiction over the case. 47 Once the complaint is filed, the action proceeds just as in any other crime.

We follow the postulate that a criminal offense is an outrage to the sovereign state 48 and the right of prosecution for a crime is one of the attributes of the sovereign power.49 Thus, criminal actions are usually commenced by the State, through the People of the Philippines, and the offended party is merely a complaining witness. 50 In private crimes, however, or those which cannot be prosecuted de oficio, the offended party assumes a more predominant role since the right to commence the action or refrain therefrom, is a matter exclusively within his power and option. 51 The sovereign state deems it the wiser policy, in private crimes, to let the aggrieved party and her family decide whether to expose to public view the vices, faults and disgraceful acts occurring in the family. 52 But once the offended party files the complaint, her will is ascertained and the action proceeds just as in any other crime. The decision of the complainant to undergo the scandal of a public trial necessarily witness connotes the willingness to face the scandal. 53 The private complainant is deemed to have shed off her privacy and the crime ceases to be "private" and becomes "public." The State, through the fiscal, takes over the prosecution of the case and the victim's change of heart and mind will not affect the State's right to vindicate the outrage against the violation of its law. 54

This is the reason why pardon in crimes of chastity must come before the institution of the criminal action. Pardon by the offended party extinguishes criminal liability when made while the crime is still "private" and within the control of the offended party. But once the case is filed in court, thepardon cannot ipso facto operate to dismiss the case. After the institution of the criminal action, any pardon given by the complainant to the offender would be unavailing, 55 except of course when the offender validly marries the offended party. 56 The offended party's pardon of the offender in a seduction case after the criminal action had been instituted constitutes no bar to said action. 57 A pardon given in a rape case after the filing of the action in court "comes too late to hide the shameful occurrence from public notice." 58

Even the death of the offended party cannot extinguish the case once it is filed in court. 59 If the offended party dies immediately after filing the complaint but before the institution of the criminal action, his death is not a ground to dismiss the case. 60 Clearly, the will and participation of the offended party is necessary only to determine whether to file the complaint or not. Thereafter, the will of the State prevails.

Article 344 does not include desistance of the offended party from prosecuting the case as a ground for extinction of criminal liability whether total 61 or partial. 62 Hence, only when the desistance is grounded on forgiveness and pardon and is made before the institution of the criminal action, can it extinguish criminal liability. Desistance, per se, is not equivalent to pardon.

In the case at bar, the "Affidavit of Desistance" of Juvielyn is not an express pardon of the accused and the crime committed. Private complainant desisted from prosecuting the case against the petitioners because she wished "to start life anew and live normally again." She reiterated this reason on the witness stand. She complained that members of the media were bothering and harassing her and that she wanted to go back to her normal life. She never said that she forgave the petitioners. She did not absolve them from their culpability. She did not give any exculpatory fact that would raise doubts about her rape. She did not say that she consented to petitioner Alonte's acts. Moreover, the rape case is already in court and it is no longer her right to decide whether or not the charge should be continued. As we held in Crespo v. Mogul: 63

xxx xxx xxx

The rule in this jurisdiction is that once a complaint or information is filed in court any disposition of the case as to its dismissal or 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.

II

The next issue is the validity of the conviction of petitioners. Petitioners contend that they were convicted without undergoing any trial. Respondent judge insists otherwise. He claims that petitioners submitted the case on the merits and relied principally on the Affidavit of Desistance. He recounts the events that took place before the presentation of private complainant as revealed by the transcripts of November 7, 1997, viz:

Prosecutor Campomanes

Your Honor, the complaining witness/private complainant Juvielyn Punongbayan is present here in Court, and a while ago, I was given a copy of her Affidavit of Desistance so I would like to present her in order to attest to the veracity of her Affidavit of Desistance, your Honor, and for the Court to her testimony.

Court

We will have a separate trial, this involved a heinous offense and that there is not even any plea-bargaining in this case.

Prosecutor Campomanes

Yes, your Honor, I understand that.

Court

So you have to mark now your documentary evidence in preparation for trial.

Prosecutor Campomanes

Yes, your Honor.

Court

There are many documentary evidence mentioned by the Supreme Court in its seven (7) page . . . (may I see the record) seven(7) page resolution, dated September 2, 1997, and that this case was assigned to this Court as the trial Judge. This Court has already arraigned the accused and he pleaded not guilty, and so the next step is pre-trial. The Order of the Supreme Court is to direct this Court not only to determine the voluntariness but also the validity of the Affidavit of Desistance mentioned by the Court which was also brought to the attention of the Supreme Court.

Prosecutor Campomanes

And to the Department of Justice likewise your Honor.

Court

And that's why the Supreme Court instead of resolving it sent the records to this Court to determine the voluntariness and the validity of the Desistance, but they must be determined after trial on the merits.

Prosecutor Campomanes

Your Honor please, representing the people. Its events now will prove that there is no more need for the prosecution to go on trial of this case, considering that the private complainant herself had already furnished the Department of Justice a copy of her Affidavit of Desistance.

Court

What does it say there?

Prosecutor Campomanes

That she is no longer interested in further prosecuting this case, and that she is now desisting in going to full blown trial, and considering your Honor further, that this is a private offense, then, the Department of Justice feels that it can not be more popish than the Pope.

Court

That is the stand of the Department of Justice. But the Supreme Court belongs to a different Department, I am governed by the Supreme Court, because I am a Judge, I am not from the Department of Justice.

Prosecutor Campomanes

We are all aware your Honor, that we will just be prolonging the agony, in fairness to everybody, considering that we are representing the people, but we are not representing only . . . the Department of Justice is not only representing the complainant in this case but we are also for justice to be rendered to the respondent as well.

Court

I am rendering fair justice to everyone. That is the sense of this Court. That is the perception of this Court with respect to the Supreme Court resolution, in the first place, that Affidavit does not negate the commission of the crime.

You want us to dismiss this case when the Affidavit does not negate the commission of the crime?

Prosecutor Campomanes

That's why we will be presenting her in Open Court, your Honor.

Court

Just to affirm that?

Prosecutor Campomanes

No to prove . . .

Court

What happened . . . how about the Prosecution Department, they have control of the prosecution, and the offended party herself, has not negated the commission of the crime, is there anything there to show that she did not . . . that the accused . . . did not commit the crime charged?

Prosecutor Campomanes

That's why we will be presenting her in Open Court, whatever is not here will be clarified.

Court

So, we will go to a trial on the merits you present that affidavit, that's a part of your evidence.

Prosecutor Campomanes

The people is ready to present that . . . the complaining witness.

Court

We will have a trial on the merits.

Prosecutor Campomanes

Your Honor please, being a woman, I have extensively discussed this matter with the complaining witness and she intimated to this representation that she can not bear another day of coming here, with all these people staring at her with everybody looking at her as if she is something . . . .

Court

On December 13, 1996, petitioner Punongbayan through private counsel, Atty. Remedios C. Balbin and the Assistant State Prosecutor Guiab, Jr. who is not here both were relieved and changed with a new lady prosecutor, prayed that the case be tried by the Regional Trial Court of Manila, they cited the following grounds: "THE GREAT DANGER TO THE LIVES OF BOTH PRIVATE COMPLAINANT AND THE IMMEDIATE MEMBERS OF HER FAMILY AND THEIR WITNESSES AS THEY OPENLY IDENTIFIED THE PRINCIPAL ACCUSED MAYOR ALONTE WHO IS ACKNOWLEDGED AS A POWERFUL POLITICAL FIGURE AND ALMOST AN INSTITUTION IN BIÑAN LAGUNA AND [THE] GREAT DANGERS TO THE LIVES OF WITNESSES WHO OTHERWISE WISH TO COME OUT IN THE OPEN AND TESTIFY ON THE MORAL AND CRIMINAL ACTIVITIES OF BOTH ACCUSED PERPETRATED UPON VERY YOUNG GIRLS STUDENTS OF BIÑAN LAGUNA THAT WILL NOT DO SO IN THE TERMS OF THE ACCUSED MAYOR" that is why it was the prayer of the offended party and the Supreme Court granted the Motion for Change of Venue, and we are now on a new venue, where the danger to the lives of the witness is no longer present, on January 7, 1997, Alonte filed an Opposition thereto, and on April 23, 1997, the petitioner, the offended party through the Honorable Secretary of Justice Teofisto Guingona and Chief State Prosecutor Jovencito Zuno filed a Manifestation and Motion for Resolution of the Petition For Change of Venue. Attached to the motion of the Honorable Secretary of Justice Guingona and Chief State Prosecutor Jovencito Zuno were the affidavits of the petitioner, her lawyer, Atty. Remedios Balbin, Dolores Yambao, Bienvenido Salandanan and Evelyn Celso with their contention that the prosecution witnesses and the private counsel of petitioner are exposed to kidnapping, harassment, grave threats and tempting offers of bribe money, that was the stand of your department . . . And then later on June 28, 1997 . .

. we have to review this case because this involves public interest . . . on June 23, 1997, Atty. Casano in behalf of the oppositors, two (2) oppositors, filed a motion to dismiss the petition for change of venue in the Supreme Court on the ground that it has become moot, he alleges that the petitioner despite the motion to resume the proceedings in criminal case no. 96-19-B in said motion, the petitioner informed the Court that she is desisting . . . informed the Supreme Court that she is desisting from proceeding with the case, it is the same affidavit she prayed that the trial Court, on her affidavit of desistance . . . Atty. Casano also submitted to this Court, to the Supreme Court the manifestation of the petitioner joining the oppositors' prayer to dismiss her petition to a change of venue, the manifestation was also signed by Atty. Remedios Balbin as private prosecutor, the Supreme Court required Assistant Chief State Prosecutor Leonardo Guiab to comment on the motion to dismiss filed by Atty. Casano which involve the same affidavit that you have just read. On August 22, 1997, assistant Chief State Prosecutor Guiab filed his comment, he alleged that he is not aware of the desistance of the petitioner in criminal case no. 96-19-B, and in said desistance there is two (2) legal effect, [that] the public prosecutor has the control and direction of the prosecution in criminal action, he prayed for the denial of the Motion to Dismiss and reiterated his petition for change of venue, the Supreme Court granted the change of venue and in granting the change of venue the highest tribunal which we are all subordinates, says: for the record, in their manifestation and motion for the resolution of petition to a change of venue the Secretary of Justice and Chief State Prosecutor submitted various affidavits in support of their allegations that prosecution witnesses and private legal counsel are exposed to KIDNAPPING, HARASSMENT, GRAVE THREATS, AND TEMPTING OFFERS OF BRIBE MONEY all intended to extract an affidavit of desistance from the complainant, this is now the affidavit of desistance in her affidavit dated December 16, 1996, the petitioner the offended party, the herein offended party Juvielyn Punongbayan alleged etc . . . etc . . . in support of her petition and then she alleged that during the last week of Feb. 1997, she was visited by one Lourdes Salaysay, she stated that Mrs. Salaysay told her that Mrs. Alonte, wife of Mayor Alonte requested her to settle Alonte's case, she was informed that Mrs. Alonte was offering P10,000,000.00, will send her to school and give her house and send her parents abroad, Atty. Remedios C. Balbin is not here now, I am just quoting the Supreme Court counsel, private counsel of petitioner also executed an affidavit dated February 1997, quote: the Supreme Court quote to them: to put on record the attempting, influence, directly, in exchange of valuable consideration, that the Rape charge against

Mayor Bayani Arthur Alone, she alleged that in two (2) occasions Atty. Romero conveyed to me the message of Mayor Alonte, namely: to drop the rape case against him and that he would give a consideration of P10,000,000.00 to be apportioned as follows: P5,000.00, for the private complainant, your client and the prosecutor P3,000,000.00 for me, as private prosecutor, that is what Atty. Balbin said, P4,000,000.00 for her, the mediator, so there seems to be a liberal flow of blood money, that is why the Supreme Court ordered the Court to determine the validity, and there is another, dated March 19, 1997. I have to remind everybody about what happened, this thing did not come from me, I am not fabricating anything this comes from the highest tribunal jurat, to whom I am responsible another affidavit of Atty. Balbin, she narrated the continuing attempts to bribe her and threatened her, so there were continuing events, they alleged, the People's Bureau, Office of the Mayor of Quezon City, extensively discuss the squatting case with against his client, that after a brief exchange on the status of the case, they confided to me his real purpose, that it started of by saying he was the legal counsel of the gambling lords of Malabon for which he get a monthly retainer of P15,000.00 exclusive of transportation expenses, but he also stated that he knows all the network of the gambling lord throughout the country, which is quite strong and unified, that I then ask him "what do you mean?" "Is Alonte into gambling too, that he is part of the network you speak of?", that Atty. Daga did not reply, but instead said, they are prepared to double the offer made to by Atty. Romero which was published in the newspaper at P10,000,000.00, so, its double, double your money, so its P20,000,000.00, that I told him, its Atty. Balbin, that all the money in the world, all the money in the world will not make me change my position against my client executing a desistance and that Alonte's voluntary surrender plea of guilty to rape, conviction, and the imposition of the corresponding penalty will satisfy the ends of justice, but I told him, that my client's case is not isolated, there being five (5) other miners similarly place and Alonte's will be stopped from doing more harm that Atty. Daga, then told me in Filipino if you do not accede to a desistance, then they will be force to but because he did not [complete] the sentence I asked him directly, what do you mean, what do you intend to do, and he replied, go on with the case, [buy] the judge, [buy] the judge, that I am believing, and I reacted saying, but they have already done so, Judge Francisco Binan, Judge Francisco Binan suddenly change his attitude towards the prosecution, perhaps you are referring to the next judge when the petition for change of venue is finally granted that Atty. Daga did not reply, and he reiterated that his principal referring to them again as gambling lords, wanted desistance, after which he

excused himself and left, that I execute this affidavit, as Atty. Balbin attests to the truth of the incident with Atty. Dionisio Daga which occurred in the afternoon of March 6, 1997 at my office, stating . . . (JUDGE READING THE RECORDS OF THE CASE)

Court

Then, the Supreme Court said, these affidavits, the one attached gave specific names, dates and methods . . . a coercion of corruption, the prosecution of Criminal Case No. 96-19-B (JUDGE CONTINUED READING THE RECORDS OF THE CASE) that is desisting for pursuing her complaint for Rape petitioner a minor, they have . . . illicit, influence and due pressure to prevent . . . Criminal Case No. 96-19-B to any of its Branch, just to call the Criminal Case No. 96-19-B shall be raffled, shall result the petitioner's motion, to resume proceedings filed in Branch 26 in the RTC of Laguna, to determine the voluntariness and validity of the petitioner's desistance in the light of the position of the public prosecutor, Assistant Chief Prosecutor Leonardo Guiab . . . I don't know what will be the outcome . . . you may contend that because of that affidavit of the desistance there is reasonable doubt . . .etc . . . but still, that will be placing the cart before the horse . . . you have to go a regular trial on the merits . . . because this is a heinous offense which cannot . . . and during the pre-trial cannot be subject to a plea-bargaining, and with respect to its new law which took effect in 1993, that is a new one, it was placed to the category of a heinous offense . . .

Prosecutor Campomanes

So we go on trial your Honor, and we will present the complaining witness, and let the Court decide on the basis of the complainants testimony . . . private complainant's testimony, before this Honorable Court . . .

xxx xxx xxx

Prosecutor Campomanes

That's why we are presenting the private complainant, the principal witness, the mother who is also a signatory to this affidavit of desistance, everybody

who have been a part and participant in the making and preparation of this affidavit of desistance, they have already signed these affidavit of desistance.

Court

And we also have the affidavits mentioned by the Supreme Court, because I was . . . all of those documents in the determination of whether that affidavit is valid.

Prosecutor Campomanes

Yes, your Honor.

Court

We . . . the Court cannot close his eyes to the other affidavits . . . because . . . that's why precisely the Supreme Court ordered me to hear this case.

Prosecutor Campomanes

We understand that your Honor.

Court

There are may conflicting matters to be solve . . . conflicting matters to be tackled in this case.

Prosecutor Campomanes

May we present the private complainant, your Honor . . . . 64

The records show that the hearing of November 7, 1997 was set for arraignment of the petitioners. 65 After the counsels made their respective appearances, Prosecutor Campomanes presented her authority to appear as prosecutor in lieu of Asst. Chief State Prosecutor Guiyab, Jr. Both petitioners pleaded not guilty to the charge. Respondent judge then set the case for pretrial which the parties, however, waived. The proceedings continued

and Prosecutor Campomanes manifested there was no need for the prosecution to go to trial in view of the Affidavit of Desistance of the private complainant. Respondent judge, however, observed that private complainant did not negate the commission of the crime in her Affidavit of Desistance. Respondent judge expressed his misgivings on the validity of the Affidavit of Desistance because of the September 2, 1997 Resolution of this Court citing affidavits where allegations of bribery were made to extract said affidavit from complainant. Prosecutor Campomanes then offered to present the private complainant to attest to the voluntariness and veracity of her Affidavit of Desistance. Respondent judge averred whether the court should proceed to a trial on the merits. Prosecutor Campomanes declared that they could go on trial and let the court decide the merits of the case on the basis of the testimony of private complainant and the other witnesses. It was then that private complainant was presented as a witness.

From the garbled transcripts of the hearing on November 7, 1997, it is not clear what both respondent judge and the public prosecutor intended the proceedings to be. Respondent judge repeatedly declared that the proceedings before him was to be a trial on the merits. The public prosecutor agreed to go to trial, but at the same time moved to present private complainant and her witnesses to testify on the voluntariness of her Affidavit of Desistance. Respondent judge and the public prosecutor were, obviously, not tuned in to each other.

I agree with the majority that the November 7, 1997 proceedings could not have been a trial on the merits. First of all, the proceedings did not conform with the procedure for trial as provided in the 1985 Rules on Criminal Procedure. Section 3 of Rule 119 provides:

Sec. 3. Order of Trial. — The trial shall proceed in the following order:

(a) The prosecution shall present evidence to prove the charge and, in the proper case, the civil liability.

(b) The accused may present evidence to prove his defense, and damages, if any, arising from the issuance of any provisional remedy in the case.

(c) The parties may then respectively present rebutting evidence only, unless the court, in furtherance of justice, permits them present additional evidence bearing upon the main issue.

(d) Upon admission of the evidence, the case shall be deemed submitted for decision unless the court directs the parties to argue orally or to submit memoranda.

(e) However, when the accused admits the act charged or omission charged in the complaint or information but interposes lawful defense, the order of trial may be modified accordingly.

In the case at bar, petitioners were never instructed to present evidence to prove their defenses. The parties were never given the opportunity to present their respective evidence rebutting the testimony of private complainant. There was no admission by petitioners of the charge in the information as to justify a change in the order of trial. 66

Our criminal rules of procedure strictly provide the step by step procedure to be followed by courts in cases punishable by death. 67 This rule also applies to all other criminal cases, particularly where the imposable penalty is reclusion perpetua. The reason for this is to assure that the State makes no mistake in taking life and liberty except that of the guilty. 68 Thus:

Judges should be reminded that each step in the trial process serves a specific purpose. In the trial of criminal cases, the constitutional presumption of innocence in favor of the accused requires that an accused be given sufficient opportunity to present his defense. So with the prosecution as to its evidence.

Hence, any deviation from the regular course of trial should always take into consideration the rights of all the parties to the case, whether the prosecution or defense. 69

Second, the admission of private complainant's affidavit of October 21, 1996 was made solely in response to respondent judge's own questioning. 70 It was this affidavit which respondent judge used to convict the petitioners. This affidavit, however, was not marked nor was it formally offered before the court. The Revised rules on Evidence clearly and expressly provide that "[t]he court shall consider no evidence which has not been formally offered." 71 Evidence not formally offered in court will not be taken into consideration by the court in disposing of the issues of the case. Any evidence which a party desires to submit for the consideration of the court must formally be offered by him, 72otherwise it is excluded and rejected. 73

Third, where there is a doubt as to the nature of the criminal proceedings before the court, this doubt must be resolved in favor of the accused who must be given the widest latitude of action to prove his innocence. 74 It is in petitioners' favor that the proceedings of November 7, 1997 be treated as a hearing on the motion to dismiss, not a trial on the merits. To rule otherwise will effectively deny petitioners due process and all the other rights of an accused under the Bill of Rights and our Rules in Criminal Procedure.

Indeed, following respondent judge's finding and assuming that the November 7, 1997 hearing was already a trial on the merits, petitioners were never afforded their right to confront and cross-examine the witness. The court did not, at the very least, inquire as to whether the petitioners wanted to cross-examine private complainant with respect to her affidavit of October 21, 1996. No opportunity to cross-examine was afforded petitioners and their counsels such that they cannot be deemed to have waived said right by inaction. 75

Regalado, Davide, Jr., Romero, Bellosillo, Mendoza and Panganiban, JJ., concur.

Footnotes

1 Rollo of G.R. No. 131728, pp. 20-21.

2 Rollo of G.R. No. 131728, pp. 34-35.

3 Rollo of G.R. No. 131652, pp. 72-73.

4 Rollo of G.R. No. 131652, p. 42.

5 Rollo., p. 7.

6 TSN, 07 November 1997, p. 70.

7 Rollo of G.R. No. 131652, pp. 65-66.

8 Rollo of G.R. No. 131652, pp. 13-14.

9 Rollo of G.R. No. 131728, p. 10.

10 Rollo, p. 64.

11 People vs. Dapitan, 197 SCRA 378.

12 At p. 388.

13 Darmouth College vs. Woodward, 4 Wheaton 518 citing Webster.

14 257 SCRA 298.

15 At pp. 305-306.

16 Brady vs. United States, 397 U.S. 742 (1970).

17 Aetna Insurance Co. vs. Kennedy, 301 U.S. 389 (1937).

18 Rules of Court, Rule 119, Sec. 3 (b).

19 Ibid., Sec. 3(c).

20 Ibid., Sec. 3(e).

21 237 SCRA 826.

22 At p. 834.23 264 SCRA 350.

24 At pp. 360-361.

25 See Section 5(e), Rule 135, Rules of Court.

26 237 SCRA 826, 835.

27 57 Phil. 274.28 At p. 275.

29 57 Phil. 138.30 At pp. 139-140.

31 29 SCRA 165.

32 Gutierrez vs. Santos, 30 May 1961. The excerpt was quoted in Austria vs. Masaquel, 31 August 1967.

33 Section 4(b), Republic Act No. 6713, entitled Code of Conduct and Ethical Standards for Public Officials and Employees.

PUNO, J.; separate opinion:

1 TSN, November 7, 1997, p. 3.

2 TSN, op. cit., p. 1.

3 Ibid, p. 5.

4 Ibid, p. 40.

5 Ibid, p. 29.

6 Ibid, pp. 46-55.

7 Ibid, pp. 56-63.

8 Ibid, pp. 64-70.

9 Ibid, p. 70.

10 Ibid.

11 Ibid.

12 Annex "G", Petition of Alonte.

13 Annex "H" Petition of Alonte.

14 Annex "I," Petition of Alonte.

15 Annex "J," Petition of Alonte.

16 Annexes "K", "K-1," "L," and "M," Petition of Alonte.

17 The Office of Atty. Fortun is in Makati while the office of Atty. Balbin is only in Quezon City.

18 "Recant," Black's Law Dictionary, 6th ed. [1990].

19 "Recant," Words and Phrases Vol. 36 citing Llanes — Senarillos v. U.S. C.A. Cal. 177 F. 2d, 164, 166.

20 A retraction also is "[i]n law of defamation, a formal recanting of the defamatory material; in probate practice, a withdrawal of a renunciation" ("Retraction," Black's Law Dictionary 6th ed. [1990]).

21 People v. del Pilar, 188 SCRA 37 [1990]; People v. Aldeguer, see del Pilar footnote.

22 People v. Davatos, 229 SCRA 647, 651 [1994]; People v. De Leon, 245 SCRA 538, 544 [1995]; People v. Joya, 227 SCRA 9, 26-27 [1993].

23 People v. del Pilar, supra; People v. Joya, supra. People v. de Leon, supra, People v. Liwag, 225 SCRA 46, 52, [1993].

24 People v. Davatos, supra, at 650; People v. Ubina, 97 Phil. 515 [1955].

25 Lopez v. Court of Appeals, 239 SCRA 562, 565 [1994]; People v. Dulay, 217 SCRA 103 [1993].

26 See Reano v. Court of Appeals, 165 SCRA 525, 530 [1988] for other citations. A retraction or recantation by a witness or complainant has often been resorted to as a ground for new trial. The court has consistently ruled against the grant of a new trial on the basis of a retraction by a witness.

27 People v. de Leon, 245 SCRA 538, 546 [1995]; People v. Detalla, 170 SCRA 522, 529 [1989]; People v. Genilla, 18 SCRA 12, 16 [1966] — all on murder. Alonzo v. Intermediate Appellate Court, 151 SCRA 552, 562 [1987] — on falsification of public document. People v. Ibal, 143 SCRA 317, 325 [1986] — on rape.

28 Lopez v. Court of Appeals, 239 SCRA 562 [1994] — a violation of the Anti-Carnapping Law of 1972; People v. Romero, 224 SCRA 749 [1993] — on illegal recruitment; People v. del Pilar, 188 SCRA 37 [1990] — on violation of the Dangerous Drugs Act of 1972.

29 Celis v. Marquez, 138 SCRA 256, 259 [1985]; Bais v. Tugaoen, 89 SCRA 101, 109 [1979]; Sotero v. Bautista, 78 SCRA 75, 77 [1977].

30 People v. Liwag, supra; People v. Joya, supra; Reano v. Court of Appeals, supra.

31 Lopez v. Court of Appeals, supra, at 565; People v. Clamor, 198 SCRA 642 [1991]; Reano v. Court of Appeals, supra, see also United States v. Acacio, 37 Phil. 70, 71 [1917] — where the defendant made nine (9) conflicting confessions and statements.

32 Gomez v. Intermediate Appellate Court, 135 SCRA 621, 631 [1985]; People v. Pimentel, 118 SCRA 695, 704 [1982]; Reyes v. People, 71 Phil. 598, 599 [1941].

33 People v. Joya, supra, at 26-27; People v. Davatos, supra, at 651; People v. Galicia, 123 SCRA 550, 556 [1983]; People v. Ubina, 97 Phil. 515, 526 [1955].

34 Gomez v. Intermediate Appellate Court, 135 SCRA 620, 631 [1985]; People v. Pimentel, 118 SCRA 695, 704 [1982].

35 With respect to sworn statements — People v. Del Pilar, 188 SCRA 37, 44-45 [1990]; with respect to testimonies in court — Lopez v. Court of Appeals, supra, at 565; Reano v. Court of Appeals, supra, at 530-531; People v. Ubina, supra.

36 Gomez v. Court of Appeals, supra; People v. Pimentel, supra.

37 People v. Romero, supra, at 757; People v. Junio, 237 SCRA 826, 834 [1994]; People v. Lim, 190 SCRA 706, 715 [1990]; Gomez v. Intermediate Appellate Court, supra, at 631; People v. Pimentel, supra, at 702-704.

38 People v. Romero, 224 SCRA 749, 757 [1993].

39 Gomez v. Intermediate Appellate Court, supra; People v. Pimentel, supra.

40 People v. Junio, supra, at 834; People v. Lor, 132 SCRA 41, 47 [1984]; People v. Avila, 192 SCRA 635, 642-643 [1990].

41 People v. Entes, 103 SCRA 162, 166-167 [1981]; People v. Junio, supra, at 834-835; People v. Avila, supra, at 642-643 People v. Lor, supra, at 47-48.

42 See Article 89, Revised Penal Code.

43 People v. Entes, supra, at 167 — on rape; People v. Miranda, 57 Phil. 274 [1932] — qualified seduction.

44 People v. Miranda, supra, at 275.

45 133 SCRA 616, 625 [1984].

46 Valdepenas v. People, 16 SCRA 871, 876-877 [1966].

47 Id; People v. Babasa, 97 SCRA 672, 680 [1980]; Pilapil v. Ibay-Somera, 174 SCRA 653, 660 [1988].

48 People v. Romero, 224 SCRA 749, 757 [1993].

49 United States v. Pablo, 35 Phil. 94, 100 [1916].

50 Pilapil v. Ibay-Somera, supra at 661 [1989].

51 Id.

52 United States v. Bautista, 40 Phil. 735, 743 [1920].

53 Valdepenas v. People, supra, at 877.

54 People v. Romero, supra, 754-758.

55 People v. Avila, 192 SCRA 635, 643 [1990].

56 Article 344, Paragraph 4, Revised Penal Code; Laceste v. Santos, 56 Phil. 472 [1932]; People v. Vicente Mariano, 50 Phil. 587 [1927].

57 People v. Miranda, supra; also cited in Francisco, R., Criminal Procedure, Rules 110-127, p. 47 [1996].

58 People v. Lualhati, 171 SCRA 277, 283 [1989].

59 Donio-Teves v. Vamenta, Jr., supra.

60 People v. Ilarde, 125 SCRA 11, 17-18 [1983].

61 Article 89 of the Revised Penal Code provides:

Art. 89. How criminal liability is totally extinguished. — Criminal liability is totally extinguished:

1. By the death of the convict, as to the personal penalties; and as to pecuniary penalties, liability therefor is extinguished only when the death of the offender occurs before final judgment;

2. By service of sentence;

3. By amnesty; which completely extinguishes the penalty and all its effects;

4. By absolute pardon;

5. By prescription of the crime;

6. By prescription of the penalty;

7. By the marriage of the offended woman, as provided in Article 344 of this Code.

62 Article 94 of the Revised Penal Code provides:

Art. 94. Partial extinction of criminal liability. — Criminal liability is extinguished partially:

1. By conditional pardon;

2. By commutation of sentence; and

3. For good conduct allowances which the culprit may earn while he is serving his sentence.

63 151 SCRA 462, 471 [1987].

64 Comment of Respondent Judge Savellano, pp. 14-23, citing portions of the TSN of November 7, 1997.

65 Notice of Hearing, Annex "3" to the Comment of Respondent Judge Savellano.

66 Consolidated Comment of the Solicitor General, p. 41.

67 People v. Diaz, 254 SCRA 734, 742 [1996].

68 Id.

69 Tabao v. Espina, 257 SCRA 298, 305 [1996].

70 TSN of Nov. 7, 1997, pp. 18, 21.

71 Sec. 34, Rules 1332 C, Revised Rules on Evidence; Veran v. Court of Appeals, 157 SCRA 438, 446 [1998].

72 De Castro v. Court of Appeals, 75 Phil. 824, 834 [1946]; see also Francisco, Handbook on Evidence, p. 390 [1984].

73 Martin, Revised Rules on Evidence, pp. 593-594 [1989]; Moran, Comments on the Rules of Court, vol. 6, p. 124 [1980].

74 See People v. Mahinay, 246 SCRA 451, 459 [1995]; People v. Mamacol, 81 Phil. 543, 545 [1948].

75 De la Paz v. Intermediate Appellate Court, 154 SCRA 5, 71-73 [1987]; People v. Caparas, 102 SCRA 781, 790 [1981]; Savory Luncheonete v. Lakas ng Manggagawang Pilipino, 62 SCRA 258, 263-267 [1975]; also cited in Herrera, Remedial law, vol. 4, pp. 343-344 [1992].