Criminal Law 2 Set 1cases

CRIMINAL LAW 2: 1ST SET OF CASES

EN BANC

[G.R. Nos. L-6025-26. July 18, 1956.]

THE PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, vs. AMADO V. HERNANDEZ, ET AL.,Defendants-Appellants.

R E S O L U T I O N

CONCEPCION, J.:

This refers to the petition for bail filed by Defendant Appellant Amado Hernandez on June 26, 1954, and renewed on December 22, 1955. A similar petition, filed on December 28, 1953, had been denied by a resolution of this court dated February 2, 1954. Although not stated in said resolution, the same was due mainly to these circumstances:chanroblesvirtuallawlibrary The prosecution maintains that Hernandez is charged with, and has been convicted of, rebellion complexed with murders, arsons and robberies, for which the capital punishment, it is claimed, may be imposed, although the lower court sentenced him merely to life imprisonment. Upon the other hand, the defense contends, among other things, that rebellion cannot be complexed with murder, arson, or robbery. Inasmuch as the issue thus raised had not been previously settled squarely, and this court was then unable, as yet, to reach a definite conclusion thereon, it was deemed best not to disturb, for the time being, the course of action taken by the lower court, which denied bail to the movant. After mature deliberation, our considered opinion on said issue is as follows:chanroblesvirtuallawlibrary

The first two paragraphs of the amended information in this case read:chanroblesvirtuallawlibrary

“The undersigned accuses (1) Amado V. Hernandez alias Victor alias Soliman alias Amado alias AVH alias Victor Soliman, (2) Guillermo Capadocia alias Huan Bantiling alias Cap alias G. Capadocia, (3) Mariano P. Balgos alias Bakal alias Tony Collantes alias Bonifacio, (4) Alfredo Saulo alias Elias alias Fred alias A.B.S. alias A.B., (5) Andres Baisa, Jr. alias Ben alias Andy (6) Genaro de la Cruz alias Gonzalo alias Gorio alias Arong, (7) Aquilino Bunsol alias Anong, (8) Adriano Samson alias Danoy, (9) Juan J. Cruz alias Johnny 2, alias Jessie Wilson alias William, (10) Jacobo Espino, (11) Amado Racanday, (12) Fermin Rodillas, and (13) Julian Lumanog alias Manue, of the crime of rebellion with multiple murder, arsons and robberies committed as follows:chanroblesvirtuallawlibrary

“That on or about March 15, 1945, and for some time before the said date and continuously thereafter until the present time, in the City of Manila, Philippines, and the place which they had chosen as the nerve center of all their rebellious activities in the different parts of the Philippines, the said accused, conspiring, confederating, and cooperating with each other, as well as with the thirty-one (31) Defendants charged in criminal cases Nos. 14071, 14082, 14270, 14315, and 14344 of the Court of First Instance of Manila (decided May 11, 1951) and also with others whose whereabouts and identities are still unknown, the said accused and their co-conspirators, being then officers and/or members of, or otherwise associated with the Congress of Labor Organizations (CLO) formerly known as the Committee on Labor Organization (CLO), an active agency, organ, and instrumentality of the Communist Party of the Philippines (P.K.P.), with central offices in Manila and chapters and affiliated or associated labor unions and other ‘mass organizations’ in different places in the Philippines, and as such agency, organ, and instrumentality, fully cooperates in, and synchronizes its activities with the rebellious activities of the ‘Hukbong Magpalayang Bayan, (H.M.B.) and other organs, agencies, and instrumentalities of the Communist Party of the Philippines (P.K.P.) to thereby assure,

facilitate, and effect the complete and permanent success of the armed rebellion against the Republic of the Philippines, as the herein Defendants and their co-conspirators have in fact synchronized the activities of the CLO with the rebellious activities of the HMB and other agencies, organs and instrumentalities of the Communist Party of the Philippines and have otherwise master- minded or promoted the cooperative efforts between the CLO and HMB and other agencies, organs, and instrumentalities of the P.K.P. in the prosecution of the rebellion against the Republic of the Philippines, and being then also high ranking officers and/or members of, or otherwise affiliated with, the Communist Party of the Philippines (P.K.P.), which is now actively engaged in an armed rebellion against the Government of the Philippines through acts therefor committed and planned to be further committed in Manila and other places in the Philippines, and of which party the ‘Hukbong Mapagpalaya ng Bayan’ (HMB), otherwise or formerly known as the ‘Hukbalahaps’ (Huks), is the armed force, did then and there willfully, unlawfully and feloniously help, support, promote, maintain, cause, direct and/or command the ‘Hukbong Mapagpalaya ng Bayan’ (HMB) or the ‘Hukbalahaps’ (Huks) to rise publicly and take arms against the Republic of the Philippines, or otherwise participate in such armed public uprising, for the purpose of removing the territory of the Philippines from the allegiance to the government and laws thereof as in fact the said ‘Hukbong Mapagpalaya ng Bayan’ or ‘Hukbalahaps’ have risen publicly and taken arms to attain the said purpose by then and there making armed raids, sorties and ambushes, attacks against police, constabulary and army detachments as well as innocent civilians, and as a necessary means to commit the crime of rebellion, in connection therewith and in furtherance thereof, have then and there committed acts of murder, pillage, looting, plunder, arson, and planned destruction of private and public property to create and spread chaos, disorder, terror, and fear so as to facilitate the accomplishment of the aforesaid purpose, as follows, to wit:chanroblesvirtuallawlibrary

“Then follows a description of the murders, arsons and robberies allegedly perpetrated by the accused “as a necessary means to commit the crime of rebellion, in connection therewith and in furtherance thereof.”

Article 48 of the Revised Penal Code provides that:chanroblesvirtuallawlibrary

“When a single act constitutes two or more grave or less grave felonies, or when an offense is a necessary means for committing the other, the penalty for the most serious crime shall be imposed, the same to be applied in its maximum period.”

It is obvious, from the language of this article, that the same presupposes the commission of two (2) or more crimes, and, hence, does not apply when the culprit is guilty of only one crime.

Article 134 of said code reads:chanroblesvirtuallawlibrary

“The crime of rebellion or insurrection is committed by rising publicly and taking arms against the Government for the purpose of removing from the allegiance to said Government or its laws, the territory of the Philippine Islands or any part thereof, of any body of land, naval or other armed forces, or of depriving the Chief Executive or the Legislature, wholly or partially, of any of their powers or prerogatives.”

Pursuant to Article 135 of the same code “any person, merely participating or executing the commands of others in a rebellion shall suffer the penalty of prision mayor in its minimum period.”

The penalty is increased to prision mayor and a fine not to exceed P20,000 for “any person who promotes, maintains or heads a rebellion or insurrection or who, while holding any public office or employment, takes part therein”:chanroblesvirtuallawlibrary

1. “engaging in war against the forces of the government”,

2. “destroying property”, or

3. “committing serious violence”,

4. “exacting contributions or”

5. “diverting public funds from the lawful purpose for which they have been appropriated”.

Whether performed singly or collectively, these five (5) classes of acts constitute only one offense, and no more, and are, altogether, subject to only one penalty — prision mayor and a fine not to exceed P20,000. Thus for instance, a public officer who assists the rebels by turning over to them, for use in financing the uprising, the public funds entrusted to his custody, could neither be prosecuted for malversation of such funds, apart from rebellion, nor accused and convicted of the complex crime of rebellion with malversation of public funds. The reason is that such malversation is inherent in the crime of rebellion committed by him. In fact, he would not be guilty of rebellion had he not so misappropriated said funds. In the imposition, upon said public officer, of the penalty for rebellion it would even be improper to consider the aggravating circumstance of advantage taken by the offender of his public position, this being an essential element of the crime he had perpetrated. Now, then, if the office held by said offender and the nature of the funds malversed by him cannot aggravate the penalty for his offense, it is clear that neither may it worsen the very crime committed by the culprit by giving rise, either to an independent crime, or to a complex crime. Needless to say, a mere participant in the rebellion, who is not a public officer, should not be placed at a more disadvantageous position than the promoters, maintainers or leaders of the movement, or the public officers who join the same, insofar as the application of Article 48 is concerned.

One of the means by which rebellion may be committed, in the words of said Article 135, is by “engaging in war against the forces of the government” and “committing serious violence” in the prosecution of said “war”. These expressions imply everything that war connotes, namely; chan roblesvirtualawlibraryresort to arms, requisition of property and services, collection of taxes and contributions, restraint of liberty, damage to property, physical injuries and loss of life, and the hunger, illness and unhappiness that war leaves in its wake — except that, very often, it is worse than war in the international sense, for it involves internal struggle, a fight between brothers, with a bitterness and passion or ruthlessness seldom found in a contest between strangers. Being within the purview of “engaging in war” and “committing serious violence”, said resort to arms, with the resulting impairment or destruction of life and property, constitutes not two or more offense, but only one crime — that of rebellion plain and simple. Thus, for instance, it has been held that “the crime of treason may be committed ‘by executing either a single or similar intentional overt acts, different or similar but distinct, and for that reason, it may be considered one single continuous offense. (Guinto vs. Veluz, 77 Phil., 801, 44 Off. Gaz., 909.)” (People vs. Pacheco, 93 Phil., 521.)

Inasmuch as the acts specified in said Article 135 constitute, we repeat, one single crime, it follows necessarily that said acts offer no occasion for the application of Article 48, which requires therefor the commission of, at least, two crimes. Hence, this court has never in the past, convicted any person of the “complex crime of rebellion with murder”. What is more, it appears that in every one of the cases of rebellion published in the Philippine Reports, the Defendantswere convicted of simple rebellion, although they had killed several persons, sometimes peace officers (U. S. vs. Lagnason, 3 Phil., 472; chan roblesvirtualawlibraryU. S. vs. Baldello, 3 Phil., 509, U. S. vs. Ayala, 6 Phil., 151; chan roblesvirtualawlibraryLeague vs. People, 73 Phil., 155).

Following a parallel line are our decisions in the more recent cases of treason, resulting from collaboration with the Japanese during the war in the Pacific. In fact, said cases went further than the aforementioned cases of rebellion, in that the theory of the prosecution to the effect that the accused in said treason cases were guilty of the complex crime of treason with

murder and other crimes was expressly and repeatedly rejected therein. Thus, commenting on the decision of the People’s Court finding the accused in People vs. Prieto (80 Phil., 138, 45 Off. Gaz., 3329) “guilty of cralaw the crime of treason complexed by murder and physical injuries” and sentencing him to death, and on the contention of the Solicitor General that Prieto had committed the “complex crime of treason with homicide”, this court, speaking through Mr. Justice Tuason, said:chanroblesvirtuallawlibrary

“The execution of some of the guerrilla suspects mentioned in these counts and the infliction of physical injuries on others are not offenses separate from treason. Under the Philippine treason law and under the United States constitution defining treason, after which the former was patterned, there must concur both adherence to the enemy and giving him aid and comfort. One without the other does not make treason.

“In the nature of things, the giving of aid and comfort can only be accomplished by some kind of action. Its very nature partakes, of a deed or physical activity as opposed to a mental operation. (Cramer vs. U.S., ante.) This deed or physical activity may be, and often is, in itself a criminal offense under another penal statute or provision. Even so, when the deed is charged as an element of treason it becomes identified with the latter crime and cannot be the subject of a separate punishment, or used in combination with treason to increase the penalty as Article 48 of the Revised Penal Code provides. Just as one cannot be punished for possessing opium in a prosecution for smoking the identical drug, and a robber cannot be held guilty of coercion or trespass to a dwelling in a prosecution for robbery, because possession of opium and force and trespass are inherent in smoking and in robbery respectively, so may not a Defendant be made liable for murder as a separate crime or in conjunction with another offense where, as in this case, it is averred as a constitutive ingredient of treason cralaw . Where murder or physical injuries are charged as overt acts of treason cralaw they cannot be regarded separately under their general denomination.” (Italics supplied.)

Accordingly, we convicted the accused of simple treason and sentenced him to life imprisonment.

In People vs. Labra, 81 Phil., 377, 46 Off. Gaz., Supp. No. 1, p. 159, we used the following language:chanroblesvirtuallawlibrary

“The lower court found Appellant guilty not only of treason, but of murder, for the killing of Tomas Abella, and, following the provisions of Article 48 of the Revised Penal Code sentenced him to death, the maximum penalty provided by article 114.

“The lower court erred in finding Appellant guilty of the murder of Tomas Abella. The arrest and killing of Tomas Abella for being a guerilla, is alleged in count 3 of the information, as one of the elements of the crime of treason for which Appellant is prosecuted. Such element constitute a part of the legal basis upon which Appellant stands convicted of the crime of treason. The killing of Tomas Abella cannot be considered as legal ground for convicting Appellant of any crime other than treason. The essential elements of a given crime cannot be disintegrated in different parts, each one stand as a separate ground to convict the accused of a different crime or criminal offense. The elements constituting a given crime are integral and inseparable parts of a whole. In the contemplation of the law, they cannot be used for double or multiple purposes. They can only be used for the sole purpose of showing the commission of the crime of which they form part. The factual complexity of the crime of treason does not endow it with the functional ability of worm multiplication or amoeba reproduction. Otherwise, the accused will have to face as many prosecutions and convictions as there are elements in the crime of treason, in open violation of the constitutional prohibition against double jeopardy.” (Italics supplied.)

The same conclusion was reached in People vs. Alibotod 82 Phil., 164, 46 Off. Gaz., 1005, despite the direct participation of the Defendant therein in the maltreatment and killing of several persons.

In People vs. Vilo 82 Phil., 524, 46 Off. Gaz., 2517, we held:chanroblesvirtuallawlibrary

“The People’s Court, however, erred in classifying the crime as treason with murder. The killing of Amado Satorre and one Segundo is charged as an element of treason, and it therefore becomes identified with the latter crime, and cannot be the subject of a separate punishment or used in combination with treason to increase the penalty as Article 48 of the Revised Penal Code provides.” (People vs. Prieto, L-399, 45 Off. Gaz. 3329. See, also People vs. Labra, L-886, 46 Off. Gaz., [Supp. to No. 1], 159.)” (Italics supplied.)

To the same effect was our decision in People vs. Roble 83 Phil., 1, 46 Off. Gaz., 4207. We stated therein:chanroblesvirtuallawlibrary

“The court held that the facts alleged in the information is a complex crime of treason with murders, with the result that the penalty provided for the most serious offense was to be imposed on its maximum degree. Viewing the case from the standpoint of modifying circumstances, the court believed that the same result obtained. It opined that the killings were murders qualified by treachery and aggravated by the circumstances of evident premeditation, superior strength, cruelty, and an armed band.

“We think this is error. The tortures and murders set forth in the information are merged in and formed part of the treason. They were in this case the overt acts which, besides traitorous intention supplied a vital ingredient in the crime.” (Italics supplied.)

The accused in People vs. Delgado 83 Phil., 9, 46 Off. Gaz., 4213, had been convicted by the People’s Court of “the crime of treason complexed with the crime of murder” and sentenced to the extreme penalty. In our decision, penned by Mr. Justice Montemayor, we expressed ourselves as follows:chanroblesvirtuallawlibrary

The Appellant herein was and is a Filipino citizen. His adherence to the Japanese forces of occupation and giving them aid and comfort by acting as their spy, undercover man, investigator, and even killer when necessary to cow and compel the inhabitants to surrender their firearms and disclose information about the guerrillas has been fully established. His manner of investigation and maltreatment of some of his victims like Tereso Sanchez and Patricio Suico, was so cruel, brutal and inhuman that it is almost unbelievable that a Filipino can commit and practice such atrocities especially on his own countrymen. But, evidently, war, confusion and opportunism can and do produce characters and monster unknown during peace and normal times.

“The People’s Court found the Appellant guilty of treason complexed with murder. The Solicitor General, however, maintains that the offense committed is simple treason, citing the doctrine laid down by this court in the case of People vs. Prieto, (L-399, 45 Off. Gaz., 3329) but accompanied by the aggravating circumstance under Article 14, paragraph 21, of the Revised Penal Code, and not compensated by any mitigating circumstance, and he recommends the imposition of the penalty of death. We agree with the Solicitor General that on the basis of the ruling of this court in the case of People vs. Prieto, supra, the Appellant may be convicted only a treason, and that the killing and infliction of physical injuries committed by him may not be separated from the crime of treason but should be regarded as acts performed in the commission of treason, although, as stated in said case, the brutality with which the killing or physical injuries were carried out may be taken as an aggravating circumstance.” (Italics supplied.)

and reduced the penalty from death to life imprisonment and a fine of P20,000.

Identical were the pertinent features of the case of People vs. Adlawan, 83 Phil., 194, 46 Off. Gaz., 4299, in which, through Mr. Justice Reyes (A), we declared:chanroblesvirtuallawlibrary

“ cralaw we find merit in the contention that Appellant should have not been convicted of the so called ‘Complex crime of treason with murder, robbery, and rape.’ The killings, robbery, and raping mentioned in the information are therein alleged not as specific offenses but as

mere elements of the crime of treason for which the accused is being prosecuted. Being merged in and identified with the general charged they cannot be used in combination with the treason to increase the penalty under Article 48 of the Revised Penal Code. (People vs. Prieto, L-399, January 29, 1948, 45 Off. Gaz., 3329.) Appellant should, therefore, be held guilty of treason only.” (Italics supplied.)

In People vs. Suralta, 85 Phil., 714, 47 Off. Gaz., 4595, the language used was:chanroblesvirtuallawlibrary

“ cralaw But the People’s Court erred in finding the Appellant guilty of the complex crime of treason with murder, because murder was an ingredient of the crime of treason, as we have heretofore held in several cases. (Italics supplied.)

This was reiterated in People vs. Navea, 87 Phil., 1, 47 Off. Gaz., Supp. No. 12, p. 252:chanroblesvirtuallawlibrary

“The Solicitor General recommends that the Appellant be sentenced for the complex crime of treason with murder. We have already ruled, however, that where, as in the present case, the killing is charged as an element of treason, it ‘becomes identified with the latter crime and cannot be the subject of a separate punishment, or used in combination with treason to increase the penalty as Article 48 of the Revised Penal Code provides.” (Italics supplied.)

The question at bar was, also, taken up in the case of Crisologo vs. People and Villalobos (94 Phil., 477), decided on February 26, 1954. The facts and the rule therein laid down are set forth in our unanimous decision in said case, from which we quote:chanroblesvirtuallawlibrary

“The Petitioner Juan D. Crisologo, a captain in the USAFFE during the last world war and at the time of the filing of the present petition a lieutenant colonel in the Armed Forces of the Philippines, was on March 12, 1946, accused of treason under Article 114 of the Revised Penal Code in an information filed in the People’s Court. But before the accused could be brought under the jurisdiction of the court, he was on January 13, 1947, indicted for violations of Commonwealth Act No. 408, otherwise known as the Articles of War, before a military court created by authority of the Army Chief of Staff, the indictment containing three charges, two of which, the first and third, were those of treason consisting in giving information and aid to the enemy leaving to the capture of USAFFE officers and men and other persons with anti-Japanese reputation and in urging members of the USAFFE to surrender and cooperate with the enemy, while the second was that of having certain civilians filled in time of war. Found innocent of the first and third charges but guilty of the second, he was on May, 8, 1947, sentenced by the military court to life imprisonment.

“With the approval on June 17, 1948, of Republic Act No. 311 abolishing the People’s Court, the criminal case in that court against the Petitioner was, pursuant to the provisions of said Act, transferred to the Court of First Instance of Zamboanga and there the charges of treason were amplified. Arraigned in that court upon the amended information, Petitioner presented a motion to quash, challenging the jurisdiction of the court and pleading double jeopardy because of his previous sentence in the military court. But the court denied the motion and, after Petitioner had pleaded not guilty, proceeded to trial, whereupon, the present petition for certiorari and prohibition was filed in this court to have the trial judge desist from proceeding with the trial and dismiss the case.

“It is, however, claimed that the offense charged in the military court different from that charged in the civil court and that even granting that the offense was identical the military court had no jurisdiction to take cognizance of the same because the People’s Court had previously acquired jurisdiction over the case with the result that the conviction in the court martial was void. In support of the first point, it is urged that the amended information filed in the Court of First Instance of Zamboanga contains overt acts distinct from those charged in the military court. But we note that while certain overt acts specified in the amended

information in the Zamboanga court were not specified in the indictment in the court martial, they all are embraced in the general charge of treason, which is a continuous offense and one who commits it is not criminally liable for as many crimes as there are overt acts, because all overt act ‘he has done or might have done for that purpose constitute but a single offense.’ (Guinto vs. Veluz, 44. Off. Gaz., 909; chan roblesvirtualawlibraryPeople vs. Pacheco, L-4750, promulgated July 31, 1953.) In other words, since the offense charged in the amended information in the Court of First Instance of Zamboanga is treason, the fact that the said information contains an enumeration of additional ovart acts not specifically mentioned in the indictment before the military court is immaterial since the new alleged overt acts do not in themselves constitute a new and distinct offense from that of treason, and this court has repeatedly held that a person cannot be found guilty of treason and at the same time also guilty of overt acts specified in the information for treason even if those overt acts, considered separately, are punishable by law, for the simple reason that those overt acts are not separate offenses distinct from that of treason but constitute ingredients thereof.” (Italics supplied.)

Thus, insofar as treason is concerned, the opinion of this court, on the question whether said crime may be complexed with murder, when the former was committed through the latter, and it is so alleged in the information, had positively and clearly crystalized itself in the negative as early as January 29, 1948.

We have not overlooked the decision in People vs. Labra (L-1240, decided on May 12, 1949), the dispositive part of which partly reads:chanroblesvirtuallawlibrary

“Wherefore, the verdict of guilty must be affirmed. Articles 48, 114 and 248 of the Revised Penal Code are applicable to the offense of treason with murder. However for lack of sufficient votes to impose the extreme penalty, the Appellant will be sentenced to life imprisonment cralaw ..”

Although it mentions Articles 48 and 248 of the Revised Penal Code and “the offense of treason with murder,” it should be noted that we affirmed therein the action of the People’s Court, which, according to the opening statement of our decision, convicted Labra of “treason aggravated with murder”. Besides, the applicability of said articles was not discussed in said decision. It is obvious, from a mere perusal thereof, that this court had no intention of passing upon such question. Otherwise, it would have explained why it did not follow the rule laid down in the previous cases of Prieto, Labra (August 10, 1948), Alibotod, Vilo, Roble, Delgado and Adlawan (supra), in which the issue was explicitly examined and decided in the negative. Our continued adherence to this view in the subsequent cases of Suralta, Navea, Pacheco and Crisologo, without even a passing reference to the second Labra case, shows that we did not consider the same as reflecting the opinion of the court on said question. At any rate, insofar as it suggests otherwise, the position taken in the second Labra case must be deemed reversed by our decisions in said cases of Suralta, Navea, Pacheco and Crisologo.

It is true that treason and rebellion are distinct and different from each other. This does not detract, however, from the rule that the ingredients of a crime form part and parcel thereof, and, hence, are absorbed by the same and cannot be punished either separately therefrom or by the application of Article 48 of the Revised Penal Code. Besides there is more reason to apply said rule in the crime of rebellion than in that of treason, for the law punishing rebellion (Article 135, Revised Penal Code) specifically mentions the act of engaging in war and committing serious violence among its essential elements — thus clearly indicating that everything done in the prosecution of said war, as a means necessary therefor, is embraced therein — unlike the provision on treason (Article 114, Revised Penal Code) which is less explicit thereon.

It is urged that, if the crime of assault upon a person in authority or an agent of a person in authority may be committed with physical injuries (U. S. vs. Montiel, 9 Phil., 162), homicide (People vs. Lojo, 52 Phil., 390) and murder (U. S. vs. Ginosolongo, 23 Phil., 171; chan

roblesvirtualawlibraryU. S. vs. Baluyot, 40 Phil., 385), and rape may be perpetrated with physical injuries (U. S. vs. Andaya, 34 Phil., 690), then rebellion may, similarly, be complexed with murder, arson, or robbery. The conclusion does not follow, for engaging in war, serious violence, physical injuries and destruction of life and property are inherent in rebellion, but not in assault upon persons in authority or agents of persons in authority or in rape. The word “rebellion” evokes, not merely a challenge to the constituted authorities, but, also, civil war, on a bigger or lesser scale, with all the evils that go with it, whereas, neither rape nor assault upon persons in authority connotes necessarily, or even generally, either physical injuries, or murder. 1

In support of the theory that a rebel who kills in furtherance of the insurrection is guilty of the complex crime of rebellion with murder, our attention has been called to Article 244 of the old Penal Code of the Philippines, reading:chanroblesvirtuallawlibrary

“Los delitos particulares cometidos en una rebelion o sedicion, o con motivo de ellas, seran castigados respectivamente segun las disposiciones de este Codigo.

“Cuando no puedan descubrirse sus autores seran penados como tales los jefes principales de la rebelion o sedicion.”

and to the following observations of Cuello Calon (Derecho Penal, Vol. II, p. 110), in relation thereto:chanroblesvirtuallawlibrary

“Se establece aqui que el en una rebelion o sedicion, o con motivo de ellas, comete otros delitos (v.g., roba, mata o lesiona), sera responsable de estos ademas de los delitos de rebelion o sedicion. La dificultad consiste en estos casos en separar los accidentes de la rebelion o sedicion de los delitos independientes de estas, y como las leyes no contienen en este punto precepto alguno aplicable, su solucion ha quedado encomendada a los tribunales. La jurisprudencia que estos han sentado considera como accidentes de la rebelion o sedicion — cuya criminalidad queda embedida en la de estos delitos, y, por tanto, no son punibles especialmente — los hechos de escasa gravedad (v.g., atentados, desacatos, lesiones menos graves); chan roblesvirtualawlibrarypor el contrario, las infracciones graves, como el asesinato o las lesiones graves, se consideran como delitos independientes de la rebelion o de la sedicion.”

It should be noted, however, that said Article 244 of the old Penal Code of the Philippines has not been included in our Revised Penal Code. If the applicability of Article 48 to rebellion was determined by the existence of said Article 244, then the elimination of the latter would be indicative of the contrary.

Besides, the crime of rebellion, referred to by Cuello Calon, was that punished in the Spanish Penal Code, Article 243 of which provides:chanroblesvirtuallawlibrary

“Son reos de rebelion los que se alzaren publicamente y en abierta hostilidad contra el Gobierno para cualquiera de los objetossiguientes:chanroblesvirtuallawlibrary

1. “Destronar al Rey, deponer al Regente o Regencia del Reino, o privarles de su libertad personal u obligarles a ejecutar un acto contrario a su voluntad.

2. “Impedir la celebracion dc las elecciones para Diputados a Cortes o Senadores en todo el Reino, o la reunion legitima de las mismas.

3. “Disolver las Cortes o impedir la deliberacion de alguno de los Cuerpos Colegisladores o arrancarles alguna resolucion.

4. “Ejecutar cualquiera de los delitos previstos en el articulo 165.

5. “Sustraer el Reino o parte de el o algun cuerpo de tropa de tierra o de mar, o cualquiera otra clase de fuerza armada, de la obediencia del Supremo Gobierno.

6. “Usar y ejercer por si o despojar a los Ministros de la Corona de sus facultades constitucionales, o impedirles o coartarles su libre ejercicio. (Articulo 167, Codigo Penal de 1850. — Veanse las demas concordancias del articulo 181.)”

Thus, the Spanish Penal Code did not specifically declare that rebellion includes the act of engaging in war against the forces of the Government and of using serious violence for the purposes stated in Article 134 of the Revised Penal Code. In view of this express statutory inclusion of the acts of war and serious violence among the ingredients of rebellion in the Philippines, it is clear that the distinction made by Cuello Calon between grave and less grave offenses committed in the course of an insurrection cannot be accepted in this jurisdiction. Again, if both classes of offenses are part and parcel of a rebellion, or means necessary therefor, neither law nor logic justifies the exclusion of the one and the inclusion of the other. In fact, Cuello Calon admits that “the difficulty lies in separating the accidents of rebellion or sedition from the offenses independent therefrom.” Ergo, offenses that are not independent therefrom, but constituting an integral part thereof committed, precisely, to carry out the uprising to its successful conclusion — are beyond the purview of Article 244. Indeed, the above quoted statement of Cuello Calon — to the effect that grave felonies committed in the course of an insurrection are independent therefrom — was based upon a decision of the Supreme Court of Spain of February 5, 1872, which we find reported in the Codigo Penal de Filipinas, by Jose Perez Rubio, as follows:chanroblesvirtuallawlibrary

“El Tribunal Supremo de Justicia en sentencia de 5 de Febrero de 1872, tiene declarado:chanroblesvirtuallawlibrary Que segun los articulos 184 del Codigo Penal de 1830, y 259 del reformado (1870), los delitos particulares cometidos en una rebelion o sedicion o con motivo de ellas se castigan respectivamente segun las disposiciones de los mismos Codigos; chan roblesvirtualawlibraryy con arreglo al decreto de amnistia de 9 de Agosto de 1876 estan solo comprendidos en aquella gracia las personas sentenciadas, procesadas o sujatas a responsabilidad por delitos politicos de cualquiera especie -cometidos desde el 29 de Septiembre de 1868; chan roblesvirtualawlibraryQue el asesinato del Gobernador Civil de Burgos no fue resultado de movimiento alguno politico, sino de un mero tumulto que imprimio el fanatismo, y cuya unica aparente tendencia era impedir que aquel funcionario inventariase ciertos objetos artisticos que se decian existentes en la Catedral:chanroblesvirtuallawlibrary Que esto lo demuestran las salvajes voces de muerte proferidas por los asesinos contra la persona del Gobernador; chan roblesvirtualawlibrarysin que al ejecutar en el mismo recinto del templo los horrorosos hechos que aparecen en la causa, alzasen bandera politica alguna ni dieran otro grito que el, en aquel momento sacrilego e impio, de ‘Viva la religion:chanroblesvirtuallawlibrary’ Que la apreciar la Sala sentenciadora los hechos referentes al Gobernador Civil de delito de asesinato, penarlo con arreglo al Codigo y declarar inaplicable el citado Decreto de Amnistia, no ha cometido el error de derecho señalado en los casos 1.° 3.° del articulo 4.° de la ley sobre establecimiento de la casacion criminal, ni infringido los articulos 250 y 259 del Codigo Penal de 1870.” (Page 239; chan roblesvirtualawlibraryItalics supplied.) (See, also, “El Codigo Penal”, by Hidalgo Garcia, Vol. I, p. 623.)’

It is apparent that said case is not in point. There was no issue therein on whether murder may be complexed with rebellion or sedition. The question for determination was whether the killers of the victim were guilty of the common crime of murder, or should have been convicted only of rebellion or sedition. The court adopted the first alternative, not because of the gravity of the acts performed by the accused, but because they had no political motivation. Moreover, theEndnote:chanroblesvirtuallawlibrary to said quotation from Cuello Calon reads:chanroblesvirtuallawlibrary

“Los atentados desacatos y lesiones a la autoridad u otros delitos contra el orden publico cometidos en la sedicion o con motivo de ella, no son delitos distintos de la sedicion, 3 octubre 1903, 19 noviembre 1906; chan roblesvirtualawlibraryla resistencia o acometimiento a la fuerza publica por los sediciosos es accidente de la rebelion, 23 mayo 1890.

“El asesinato de un gobernador cometido en el curso de un tumulto debe penarse como un delito comun de asesinato, 5 febrero 1872. Sin embargo, la jurisprudencia, tratandose de ciertos delitos, es vacilante; chan roblesvirtualawlibraryasi, v. g., el acometimiento al teniente de alcalde se ha declarado en un fallo independiente de la perturbacion tumultuaria promovida para impedir al alcalde el cumplimiento de sus providencias, 16 marzo 1885, mientras que un hecho analogo se ha considerado en otra sentenda ya citada como accidente de la rebelion, 3 Octubre 1903. El acometimiento de los sediciosos a la fuerza publica es accidente de la sedicion y no uno de los delitos particulares a que se refiere este articulo, 23 de mayo 1890. Entre estos delitos a que alude el precepto se hallan las lesiones que puedan causar los sediciosos, 19 noviembre 1906.” (Endnote:chanroblesvirtuallawlibrary 21, II Cuelo Calon, Derecho Penal, pp. 110-111.) (Italics supplied.)

Thus in a decision, dated May 2, 1934, the Supreme Court of Spain held:chanroblesvirtuallawlibrary

“Considerando que la nota deferencial entre los delitos de rebelion y sedicion, de una parte, y el de atentado, esta constituida por la circunstancia de alzamiento publico que caracteriza a los primeros, los cuales, por su indole generica, absorben a los de atentado y demas infracciones que durante su comision y con su motivo se cometan, y afirmandose como hecho en la sentencia recurrida que el procesado Mariano Esteban Martinez realizo, en union de otros, el atendado que se le imputa sin alzarse publicamente, cae por su base el recurso fundado en supuesto distinto.” (Jurisprudencia Criminal, Tomo 130, p. 551.) (Italics supplied.)

To the same effect are, likewise, the following:chanroblesvirtuallawlibrary

“La provocacion y el ataque a la Guardia Civil por paisanos alzadoz tumultuariamente para impedir al Delegado de un Gobernador civil el cumplimiento de sus providencias, no pueden estimarse constitutivos de un delito distinto del de sedicion, ni ser, por tanto, perseguidos y penados separadamente.

“La resistencia o el acometimiento de los sublevados a la fuerza publica constituye, en su caso, una circunstancia o accidente de la sedicion y no es delito de los que el Codigo Penal en este articulo (formerly Article 244, now Article 227) supone que pueden cometerse en ella o con su motivo, los cuales denomina delitos particulares, y manda que se penen conforme a las disposiciones del propio Codigo. (S. 23-5-890; chan roblesvirtualawlibraryG. 23-6-890; chan roblesvirtualawlibraryt. 44; chan roblesvirtualawlibrarypagina 671)” (II Doctrina Penal del Tribunal Supremo, p. 2411.) (Italics supplied.)

“La Audiencia condeno como autores de atentado a dos de los amotinados que agredieron al alcalde, e interpuesto recurso de casacion contra la sentencia, el Tribunal Supremo la casa y anula, teniendo en cuenta lo dispuesto en el articulo 250 (numero 3.°) del Codigo Penal;

‘Considerando que el acto llevado a cabo por el grupo constituye una verdadera sedicion, sin que sea licito el dividir este hecho y calificarlo de atentado respecto a las personas que agredieron a dicho alcalde, porque el acometimiento fue un accidente de la sedicion, de la cual eran todos responsables, ya se efectuara por los agrupados en conjunto o por uno solo, por ser comun el objeto que se proponian y no individual; chan roblesvirtualawlibraryy al calificar y penar este hecho la Audencia de Gerona, de atentado cralaw, ha incurrido en error de derecho e infringido los articulos 250 y siguientes del Codigo Penal, por no haberlos aplicado, y el 263, numero 2.°, en relacion con el 264, numeros 1.° y 3.°, por su aplicacion cralaw” (Sent. 3 octubre 1903. — Gac. 12 Diciembre) (Enciclopedia Juridica Española, Tomo xxviii p. 250).

These cases are in accord with the text of said Article 244, which refers, not to all offenses committed in the course of a rebellion or on the occasion thereof, but only to “delitos particulares” or common crimes. Now, what are “delitos particulares” as the phrase is used in said article 244? We quote from Viada:chanroblesvirtuallawlibrary

“Las disposicion del primer parrafo de este articulo no puede ser mas justa; chan roblesvirtualawlibrarycon arreglo a ella, los delitos particulares o comunes cometidos en una rebelion er sedicion no deberan reputarse como accidentes inherentes a estas, sino como delitos especiales, a dicha rebelion y sedicion ajenos, los que deberan ser respectivamente castigados con las penas que en este Codigo se las señalan. Pero, que delitos deberan considerarse como comunes, y cuales como constitutivos de la propia rebelion o sedicion? En cuanto a la rebelion, no ofrece esta cuestion dificultad alguna, pues todo hecho que no este comprendido en uno y otro de los objetos especificados en los seis numeros del articulo 243 sera extraño a la rebelion, y si se hallare definido en algun otro articulo del Codigo, con arreglo a este debera ser castigado como delito particular. Pero tratandose de la sedicion, comprendiendose como objetos de la misma, en los numeros 3.°, 4.° y 5.° del articulo 250, hechos que constituyen otros tantos ataques a las personas o a la propiedad, cuales se consideran como accidentes inherentes a la propria sedicion, y cuales deberan reputarse como delitos particulares o comunes? En cuanto a los casos de los numeros 4.° y 5.°, estimanos que el objeto politico y social que se requiera para la realizacion de los actos en aquellos comprendidos es el que debe servirnos de norma y guia para distinguir lo inherente a la sedicion de lo que es ajeno o extraño a ella. Cuando no exista ese objeto politico y social, el acto de odio o venganza ejercido contra los particulares o cualquiera clase del Estado, y el atentado contra las propiedades de los ciudadanos o corporaciones mentados en el numero 5.° del articulo 250, no seran constitutivos del delito de sedicion, sino que deberan ser apreciados y castigados como delitos comunes, segun las disposiciones respectivas de este Codigo — y por lo que toca a los actos de odio o venganza ejercidos en la persona o bienes de alguna Autoridad o sus agentes, estimamos que deberan reputarse como delitos comunes todos aquellos hechos innecesarios 2 para la consecucion del fin particular que se propusieran los sediciosos — y como esenciales, constitutivos de la propia sedicion todos aquellos actos de odio o venganza que sean medio racionalmente necesario para el logro del objeto especial a que se encaminaran los esfuerzos de los sublevados. Asi, en el caso de la Cuestion 1 expuesta en el comentario del articulo 258, es evidente que el fin que se propusieron los sediciosos fue no pagar el impuesto a cuya cobranza iba a proceder el comisionado; chan roblesvirtualawlibrarypero para lograr este objeto, como lo lograron, fue preciso hacer salir del pueblo al ejecutor, y a este efecto, lo amenazaron, lo persiguieron y llegaron hasta lesionarle. Esas amenazas y lesiones no pudieron apreciarse, ni las aprecio tampoco la Sala sentenciadora, como delito comun, sino como accidente inherente a la misma sedicion, por cuanto fueron un medio racionalmente necesario para la consecucion del fin determinado que se propusieron los culpables.

“Pero cuando tal necesidad desaparece, cuando se hiere por herir, cuando se mata por matar, el hecho ya, no puede ser considerado como un accidente propio de la sedicion, sino como un delito especial, al que debe aplicarse la pena al mismo correspondiente.” (III Viada, pp. 311-312.) (Italics supplied.)

Cuello Calon is even more illuminating. He says:chanroblesvirtuallawlibrary

“La doctrina cientifica considera los delitos llamados politicos como infracciones de un caracter especial distintas de los denominados delitos comunes. De esta apreciacion ha nacido la division de los delitos, desde el punto de vista de su naturaleza intrinseca, en delitos politicos y delitos comunes o de derecho comun.

“Se reputan delitos comunes aquellos que lesionan bienes juridicos individuales (v. gr., los delitos contra la vida, contra la honestidad, contra la propiedad, etc.)

“La nocion del delito politico no parece tan clara. Desde luego revisten este caracter los que atentan contra el orden politico del Estado, contra su orden externo (independencia de la nacion, integridad del territorio, etc.), o contra el interno (delitos contra el Jefe del Estado, contra la forma de Gobierno, etc.). Pero tambien pueden ser considerados como politicos todos los delitos, cualesquiera que sean incluso los de derecho comun, cuando fueron cometidos por moviles politicos. Deben, por tanto, estimarse como infracciones de esta clase,

no solo las que objetivamente tengan tal caracter por el interes politico que lesionan, sino tambien las que, apreciadas subjetivamente, manifiestan una motivacion de caracter politico.

“Asi podria formulares esta definicion:chanroblesvirtuallawlibrary es delito politico el cometido contra el orden politico del Estado, asi como todo delito de cualquiera otra clase determinado por moviles politicos.” (Cuello Calon, Derecho Penal, Tomo I, pp. 247-249.)

In short, political crimes are those directly aimed against the political order, as well as such common crimes as may be committed to achieve a political purpose. The decisive factor is the intent or motive. If a crime usually regarded as common like homicide, is perpetrated for the purpose of removing from the allegiance “to the Government the territory of the Philippines Islands or any part thereof,” then said offense becomes stripped of its “common” complexion, inasmuch as, being part and parcel of the crime of rebellion, the former acquires the political character of the latter.

Conformably with the foregoing, the case of murder against the Defendant in U. S. vs. Lardizabal (1 Phil., 729) — an insurgent who killed a prisoner of war because he was too weak to march with the retreating rebel forces, and could not be left behind without endangering the safety of the latter — was dismissed upon the ground that the execution of said prisoner of war formed part of, and was included in, the crime of sedition, which, in turn, was covered by an amnesty, to the benefits of which said Defendant was entitled.

True, in U. S. vs. Alfont (1 Phil., 115), the commander of an unorganized group of insurgents was, pursuant to Article 244 of our old Penal Code, convicted of homicide for having shot and killed a woman who was driving a vehicle. But the complex crime of rebellion with homicide was not considered in that case. Apart from this, the accused failed to established the relation between her death and the insurrection. What is more, it was neither proved nor alleged that he had been prompted by political reasons. In other words, his offense was independent from the rebellion. The latter was merely the occasion for the commission of the former.

It is noteworthy that the aforementioned decisions of this court and the Supreme Court of Spain in cases of treason, rebellion and sedition, are in line with the trend in other countries, as well as in the field of international relations. Referring to the question as to what offenses are political in nature, it was said in In re Ezeta (62 Fed. Rep., 972):chanroblesvirtuallawlibrary

“What constitutes an offense of a political character has not yet been determined by judicial authority. Sir James Stephens, in his work, History of the Criminal Law of England (Volume 2, p. 71), thinks that it should be ‘interpreted to mean that fugitive criminals are not to be surrendered for extradition crimes if those crimes were incidental to and formed a part of political disturbances.’ Mr. John Stuart Mill, in the house of commons, in 1866, while discussing an amendment to the act of ‘extradition, on which the treaty between England and France was founded, gave this definition:chanroblesvirtuallawlibrary Any offense committed in the course of or furthering of civil war, insurrection, or political commotion.’ Hansard’s Debates Vol. 184, p. 2115. In the Castioni Case, supra, decided in 1891, the question was discussed by the most eminent counsel at the English bar, and considered by distinguished judges, without a definition being framed that would draw a fixed and certain line between a municipal or common crime and one of political character. ‘I do not think,’ said Denman, J., ‘it is necessary or desirable that we should attempt to put into language, in the shape of an exhaustive definition, exactly the whole state of things, or every state of things, which might bring a particular case within the description of an offense of a political character.’ In that case, Castioni was charged with the murder of one Rossi, by shooting him with a revolver, in the town of Bellinzona, in the canton of Ticino, in Switzerland. The deceased, Rossi, was a member of the state council of the canton of Ticino. Castioni was a citizen of the same canton. For some time previous to the murder, much dissatisfaction had been felt and expressed by a large number of inhabitants of Ticino at the mode in which the political party then in power were conducting the government of the canton. A request was presented to the government for a revision of the constitution of the canton and, the government having

declined to take a popular vote on that question, a number of the citizens of Bellinzona, among whom was Castioni, seized the arsenal of the town, from which they took rifles and ammunition, disarmed the gendarmes, arrested and bound or handcuffed several persons connected with the government, and forced them to march in front of the armed crowd to the municipal palace. Admission to the palace was demanded in the name of the people, and was refused by Rossi and another member of the government, who were in the palace. The crowd then broke open the outer gate of the palace, and rushed in, pushing before them the government officials whom they had arrested and bound. Castioni, who was armed with a revolver, was among the first to enter. A second door, which was locked, was broken open, and at this time, or immediately after, Rossi, who was in the passage, was shot through the body with a revolver, and died, very soon afterwards. Some other shots were fired, but no one else was injured. Castioni fled to England. His extradition was requested by the federal council of Switzerland. He was arrested and taken before a police magistrate, as provided by the statute, who held him for extradition. Application was made by the accused to the high court of justice of England for a writ of habeas corpus. He was represented by Sir Charles Russell, now lord chief justice. The attorney general, Sir Richard Webster, appeared for the crown, and the solicitor general, Sir Edward Clarke, and Robert Woodfal, for the federal council of Switzerland. This array of distinguished counsel, and the high character of the court, commends the case as one of the highest authority. It appeared from an admission by one of the parties engaged in the disturbances ‘that the death of Rossi was a misfortune, and not necessary for the rising.’ The opinions of the judges as to the political character of the crime charged against Castioni, upon the facts stated, is exceedingly interesting, but I need only refer to the following passages. Judge Denman says:chanroblesvirtuallawlibrary

“The question really is whether, upon the facts, it is clear that the man was acting as one of a number of persons engaged in acts of violence of a political character with a political object, and as part of the political movement and rising in which he was taking part.’

“Judge Hawkins, in commenting upon the character of political offenses, said:chanroblesvirtuallawlibrary

‘I cannot help thinking that everybody knows there are many acts of a political character done without reason, done against all reason; chan roblesvirtualawlibrarybut at the same time one cannot look too hardly, and weigh in golden scales the acts of men hot in their political excitement. We know that in heat, and in heated blood, men often do things which are against and contrary to reason; chan roblesvirtualawlibrarybut none the less an act of this description may be done for the purpose of furthering and in furtherance of a political rising, even though it is an act which may be deplored and lamented, as even cruel and against all reason, by those who can calmly reflect upon it after the battle is over.’

“Sir James Stephens, whose definition as an author has already been cited, was one of the judges, and joined in the views taken as to the political character of the crime charged against Castioni. The prisoner was discharged. Applying, by analogy, the action of the English court in that case to the four cases now before me, under consideration, the conclusion follows that the crimes charged here, associated as they are with the actual conflict of armed forces, are of a political character.

“The draft of a treaty on International Penal Law, adopted by the congress of Montevideo in 1888, and recommended by the International American Conference to the governments of the Latin-American nations in 1890, contains the following provisions (Article 23):chanroblesvirtuallawlibrary

‘Political offenses, offenses subversive of the internal and external safety of a state or common offenses connected with these, shall not warrant extradition. The determination of the character of the offense is incumbent upon the nations upon which the demand for extradition is made; chan roblesvirtualawlibraryand its decision shall be made under and

according to the provisions of the law which shall prove to be most favorable to the accused:chanroblesvirtuallawlibrary’

“I am not aware that any part of this Code has been made the basis of treaty stipulations between any of the American nations, but the article cited may be at least accepted as expressing the wisdom of leading jurists and diplomats. The article is important with respect to two of its features:chanroblesvirtuallawlibrary (1) provides that a fugitive shall not be extradited for an offense connected with a political offense, or with an offense subversive of the internal or external safety of the state; chan roblesvirtualawlibraryand (2) the decision as to the character of the offense shall be made under and according to the provisions of the law which shall prove most favorable to the accused. The first provision is sanctioned by Calvo, who, speaking of the exemption from extradition of persons charged with political offenses, says:chanroblesvirtuallawlibrary

‘The exemption even extends to acts connected with political crimes or offenses, and it is enough, as says Mr. Fuastin Helio; chan roblesvirtualawlibrarythat a common crime be connected with a political act, that it be the outcome of or be in the outcome of or be in the execution of such, to be covered by the privilege which protects the latter’ Calvo, Droit Int. (3me ed.) p. 413, section 1262.

“The second provision of the article is founded on the broad principles of humanity found everywhere in the criminal law, distinguishing its administration with respect to even the worst features of our civilization from the cruelties of barbarism. When this article was under discussion in the international American conference in Washington, Mr. Silva, of Colombia, submitted some observations upon the difficulty of drawing a line between an offense of a political character and a common crime, and incidentally referred to the crime of robbery, in terms worthy of some consideration here. He said:chanroblesvirtuallawlibrary

‘In the revolutions, as we conduct them in our countries, the common offenses are necessarily mixed up with the political in many cases. A colleague General Caamaño (of Ecuador) knows how we carry on wars. A revolutionist needs horses for moving, beef to feed his troops, etc.; chan roblesvirtualawlibraryand since he does not go into the public markets to purchase these horses and that beef, nor the arms and saddles to mount and equip his forces, he takes them from the first pasture or shop he find at hand. This is called robbery everywhere, and is a common offense in time of peace, but in time of war it is a circumstance closely allied to the manner of waging it.’ International American Conference, Vol. 2, p. 615.” (Italics supplied.)

We quote the following from Endnote:chanroblesvirtuallawlibrary (23) on pages 249-250, Vol. I, of Cuello Calon’s aforesaid work on “Derecho Penal.”

“En algunos Codigo y leyes de fecha proxima ya se halla una definicion de estos delitos. El Codigo penal ruso, en el articulo 58, define como ‘delitos contra revolucionarios’ los hechos encaminados a derrocar o debilitar el poder de los Consejos de trabajadores y campesinos y de los gobiernos de la Union de Republicas socialistas sovieticas, a destruir o debilitar la seguridad exterior de la Union de Republicas Sovieticas y las conquistas economicas, politicas y nacionales fundamentales de la revolucion proletaria.’ El Codigo Penal italiano de 1930 considera en eu articulo 8.° como delito politico ‘todo delito que ofenda un interes politico del Estado o un derecho politico del ciudadano.’ Tambien se reputa politico el delito comun deteminado, en todo o en parte por motivos politicos. En la ley alemana de extradicion de 25 diciembre 1929 se definen asi:chanroblesvirtuallawlibrary ‘Son delitos politicos los atentados punibles directamente ejecutados contra la existencia o la seguridad del Estado, contra el jefe o contra un miembro del gobierno del Estado como tal, contra una corporacion constitucional, contra los derechos politicos las buenas relaciones con el extranjero.’ parrafo 3.°, 2.

“La 6a. Conferencia para la Unificacion del Derecho penal (Copenhague, 31 agosto — 3 septiembre 1935) adopto la siguiente nocion del delito politico:chanroblesvirtuallawlibrary

“1. Por delitos politicos se entienden los dirigidos contra la organizacion y funcionamiento del Estado o contra los derechos que de esta organizacion y funcionamiento provienen para el culpable.

“2. Tambien se consideran como delitos politicos los delitos de derecho comun que constituyen hechos conexos con la ejecucion de los delitos previstos en seccion 1.°:chanroblesvirtuallawlibrary como los hechos dirigidos a favorecer la ejecucion de un delito politico o a permitir al autor de este delito sustraerse a la aplicacion de la ley penal.

“3. No se consideraran delitos politicos aquellos a los que su autor sea inducido por un motivo egoista y vil.

“4. No se consideraran delitos los que creen un peligro para la comunidad o un estado de terror.” (Italics supplied.)

Thus, national, as well as international, laws and jurisprudence overwhelmingly favor the proposition that common crimes, perpetrated in furtherance of a political offense, are divested of their character as “common” offenses and assume the political complexion of the main crime of which they are mere ingredients, and, consequently, cannot be punished separately from the principal offense, or complexed with the same, to justify the imposition of a graver penalty.

There is one other reason — and a fundamental one at that — why Article 48 of our Penal Code cannot be applied in the case at bar. If murder were not complexed with rebellion, and the two crimes were punished separately (assuming that this could be done), the following penalties would be imposable upon the movant, namely:chanroblesvirtuallawlibrary (1) for the crime of rebellion, a fine not exceeding P20,000 and prision mayor, in the corresponding period, depending upon the modifying circumstances present, but never exceeding 12 years of prision mayor; chan roblesvirtualawlibraryand (2) for the crime of murder, reclusion temporal in its maximum period to death, depending upon the modifying circumstances present. In other words, in the absence of aggravating circumstances, the extreme penalty could not be imposed upon him. However, under Article 48, said penalty would have to be meted out to him, even in the absence of a single aggravating circumstance. Thus, said provision, if construed in conformity with the theory of the prosecution, would be unfavorable to the movant.

Upon the other hand, said Article 48 was enacted for the purpose of favoring the culprit, not of sentencing him to a penalty more severe than that which would be proper if the several acts performed by him were punished separately. In the word of Rodriguez Navarro:chanroblesvirtuallawlibrary

“La unificacion de penas en los casos de concurso de delitos a que hace referencia este articulo (75 del Codigo de 1932), esta basado francamente en el principio pro reo.” (II Doctrina Penal del Tribunal Supremo de España, p. 2168.) 3

We are aware of the fact that this observation refers to Article 71 (later 75) of the Spanish Penal Code (the counterpart of our Article 48), as amended in 1908 and then in 1932, reading:chanroblesvirtuallawlibrary

“Las disposiciones del articulo anterior no son aplicables en el caso de que un solo hecho constituya dos o mas delitos, o cuando el uno de ellos sea medio necesario para cometer el otro.

“En estos casos solo se impondra la pena correspondiente al delito mas grave en su grado maximo, hasta el limite que represente la suma de las que pudieran imponerse, penando separadamente los delitos.

“Cuando la pena asi computada exceda de este limite, se sancionaran los delitos por separado.” (Rodriguez Navarro, Doctrino Penal del Tribunal Supremo, Vol. II, p. 2163.)

and that our Article 48 does not contain the qualification inserted in said amendment, restricting the imposition of the penalty for the graver offense in its maximum period to the case when it does not exceed the sum total of the penalties imposable if the acts charged were dealt with separately. The absence of said limitation in our Penal Code does not, to our mind, affect substantially the spirit of said Article 48. Indeed, if one act constitutes two or more offenses, there can be no reason to inflict a punishment graver than that prescribed for each one of said offenses put together. In directing that the penalty for the graver offense be, in such case, imposed in its maximum period, Article 48 could have had no other purpose than to prescribe a penalty lower than the aggregate of the penalties for each offense, if imposed separately. The reason for this benevolent spirit of Article 48 is readily discernible. When two or more crimes are the result of a single act, the offender is deemed less perverse than when he commits said crimes thru separate and distinct acts. Instead of sentencing him for each crime independently from the other, he must suffer the maximum of the penalty for the more serious one, on the assumption that it is less grave than the sum total of the separate penalties for each offense.

Did the framers of Article 48 have a different purpose in dealing therein with an offense which is a means necessary for the commission of another? To begin with, the culprit cannot, then, be considered as displaying a greater degree of malice than when the two offenses are independent of each other. On the contrary, since one offense is a necessary means for the commission of the other, the evil intent is one, which, at least, quantitatively, is lesser than when the two offenses are unrelated to each other, because, in such event, he is twice guilty of having harbored criminal designs and of carrying the same into execution. Furthermore, it must be presumed that the object of Article 48, in its entirety, is only one. We cannot assume that the purpose of the lawmaker, at the beginning of the single sentence of which said article consists, was to favor the accused, and that, before the sentence ended, the former had a change of heart and turned about face against the latter. If the second part of Article 48 had been meant to be unfavorable to the accused — and, hence, the exact opposite of the first part — each would have been placed in, separate provisions, instead of in one single article. If the first part sought to impose, upon the culprit, a penalty less grave than that which he would deserve if the two or more offenses resulting from his single act were punished separately, then this, also, must be the purpose of the second part, in dealing with an offense which is a necessary means for the commission of another.

The accuracy of this conclusion is borne out by the fact that, since 1850, when the counterpart of our Article 48 was inserted in the Penal Code of Spain, or for over a century, it does not appear to have been applied by the Supreme Court thereof to crimes of murder committed in furtherance of an insurrection.

Incidentally, we cannot accept the explanation that crimes committed as a means necessary for the success of a rebellion had to be prosecuted separately under the provisions of Article 259 of the Penal Code of Spain, which is the counterpart of Article 244 of our old Penal Code. To begin with, these articles are part of a substantive law. They do not govern the manner or method of prosecution of the culprits. Then again, said precepts ordain that common crimes committed during a rebellion or sedition, or on the occasion thereof, “shall be respectively punished according to the provisions of this Code.” Among such provisions was Article 90 (later Article 71, then Article 75) of the Spanish Penal Code, and Article 89 of our old Penal Code, of which Article 48 of the Revised Penal Code of the Philippines is a substantial reproduction. Hence, had the Supreme Court of Spain or the Philippines believed that murders committed as a means necessary to attain the aims of an uprising were “common” crimes, the same would have been complexed with the rebellion or sedition, as the case may be.

The cases of People vs. Cabrera (43 Phil., 64) and People vs. Cabrera (43 Phil., 82) have not escaped our attention. Those cases involved members of the constabulary who rose publicly, for the purpose of performing acts of hate and vengeance upon the police force of Manila,

and in an encounter with the latter, killed some members thereof. Charged with and convicted of sedition in the first case, they were accused of murder in the second case. They pleaded double jeopardy in the second case, upon the ground that the facts alleged in the information were those set forth in the charge in the first case, in which they had been convicted. This plea was rejected upon the ground that the organic law prohibited double jeopardy for the same offense, and that the offense of sedition is distinct and different from that of murder, although both were the result of the same act.

The question whether one offense was inherent in, or identified with, the other was not discussed or even considered in said cases. Besides, the lower court applied, in the murder case Article 89 of the old Penal Code — which is the counterpart of Article 48 of the Revised Penal Code — but this Court refused to do so. Again, simply because one act may constitute two or more offenses, it does not follow necessarily that a person may be prosecuted for one after conviction for the other, without violating the injunction against double jeopardy. For instance, if a man fires a shotgun at another, who suffers thereby several injuries, one of which produced his death, may he, after conviction for murder or homicide, based upon said fatal injury, be accused or convicted, in a separate case, for the non-fatal injuries sustained by the victim? Or may the former be convicted of the complex crime of murder or homicide with serious and/or less serious physical injuries? The mere formulation of these questions suffices to show that the limitation of the rule on double jeopardy to a subsequent prosecution for the same offense does not constitute a license for the separate prosecution of two offenses resulting from the same act, if one offense is an essential element of the other. At any rate, as regards this phase of the issue, which was not touched in the Cabrera cases, the rule therein laid down must necessarily be considered modified by our decision in the cases of People vs. Labra (46 Off. Gaz., Supp. No. 1, p. 159) and Crisologo vs. People and Villalobos (supra), insofar as inconsistent therewith.

The main argument in support of the theory seeking to complex rebellion with murder and other offenses is that “war” — within the purview of the laws on rebellion and sedition — may be “waged” or “levied” without killing. This premise does not warrant, however, the conclusion — drawn therefrom — that any killing done in furtherance of a rebellion or sedition is independent therefrom, and may be complexed therewith, upon the ground that destruction of human life is not indispensable to the waging or levying of war. A person may kill another without inflicting physical injuries upon the latter, such, for instance, as by poisoning, drowning, suffocation or shock. Yet it is admitted that he who fatally stabs another cannot be convicted of homicide with physical injuries. So too, it is undeniable that treason may be committed without torturing or murdering anybody. Yet, it is well-settled that a citizen who gives aid and comfort to the enemy by taking direct part in the maltreatment and assassination of his (citizen’s) countrymen, in furtherance of the wishes of said enemy, is guilty of plain treason, not complexed with murder or physical injuries, the later being — as charged and proven — mere ingredients of the former. Now then, if homicide may be an ingredient of treason, why can it not be an ingredient of rebellion? The proponents of the idea of rebellion complexed with homicide,. etc., have not even tried to answer this question. Neither have they assailed the wisdom of our aforementioned decisions in treason cases.

The Court is conscious of the keen interest displayed, and the considerable efforts exerted, by the Executive Department in the apprehension and prosecution of those believed to be guilty of crimes against public order, of the lives lost, and the time and money spent in connection therewith, as well as of the possible implications or repercussions in the security of the State. The careful consideration given to said policy of a coordinate and co-equal branch of the Government is reflected in the time consumed, the extensive and intensive research work undertaken, and the many meetings held by the members of the court for the purpose of elucidating on the question under discussion and of settling the same.

The role of the judicial department under the Constitution is, however, — clear — to settle justiceable controversies by the application of the law. And the latter must be enforced as it is

— with all its flaws and defects, not affecting its validity — not as the judges would have it. In other words, the courts must apply the policy of the State as set forth in its laws, regardless of the wisdom thereof.

It is evident to us that the policy of our statutes on rebellion is to consider all acts committed in furtherance thereof — as specified in Articles 134 and 135 of the Revised:chanroblesvirtuallawlibrary Penal Code — as constituting only one crime, punishable with one single penalty — namely, that prescribed in said Article 135. It is interesting to note, in this connection, that the penalties provided in our old Penal Code (Articles 230 to 232) were much stiffer, namely:chanroblesvirtuallawlibrary

1. Life imprisonment to death — for the promoters, maintainers and leaders of the rebellion, and, also, for subordinate officers who held positions of authority, either civil or ecclesiastical, if the purpose of the movement was to proclaim the independence of any portion of the Philippine territory;

2. Reclusion temporal in its maximum period — for said promoters, maintainers and leaders of the insurrection, and for its subordinate officers, if the purpose of the rebellion was any of those enumerated in Article 229, except that mentioned in the preceding paragraph;

3. Reclusion temporal:chanroblesvirtuallawlibrary (a) for subordinate officers other than those already adverted to; chan roblesvirtualawlibraryand (b) for mere participants in the rebellion falling under the first paragraph of No. 2 of Article 174; chan roblesvirtualawlibraryand

4. Prision mayor in its medium period to reclusion temporal in its minimum period — for participants not falling under No. 3.

After the cession of the Philippines to the United States, the rigors of the old Penal Code were tempered. Its aforementioned provisions were superseded by section 3 of Act No. 292, which reduced the penalty to imprisonment for not more than ten (10) years and a fine not exceeding $10,000, or P20,000, for “every person who incites, sets on foot, assists or engages in any rebellion or insurrection cralaw or who gives aid and comfort to any one so engaging in such rebellion or insurrection.” Such liberal attitude was adhered to by the authors of the Revised Penal Code. The penalties therein are substantially identical to those prescribed in Act 292. Although the Revised Penal Code increased slightly the penalty of imprisonment for the promoters, maintainers and leaders of the uprising, as well as for public officers joining the same, to a maximum not exceeding twelve (12) years of prision mayor, it reduced the penalty of imprisonment for mere participants to not more than eight (8) years of prision mayor, and eliminated the fine.

This benign mood of the Revised Penal Code becomes more significant when we bear in mind it was approved on December 8, 1930 and became effective on January 1, 1932. At that time the communists in the Philippines had already given ample proof of their widespread activities and of their designs and potentialities. Prior thereto, they had been under surveillance by the agents of the law, who gathered evidence of their subversive movements, culminating in the prosecution of Evangelista, Manahan (57 Phil., 354; chan roblesvirtualawlibrary57 Phil., 372), Capadocia (57 Phil., 364), Feleo (57 Phil., 451), Nabong (57 Phil., 455), and others. In fact, the first information against the first two alleged that they committed the crime of inciting to sedition “on and during the month of November, 1930, and for sometime prior and subsequent thereto.”

As if this were not enough, the very Constitution adopted in 1935, incorporated a formal and solemn declaration (Article II, section 5) committing the Commonwealth, and, then the Republic of the Philippines, to the “promotion of social justice”. Soon later, Commonwealth Act No. 103, creating the Court of Industrial Relations, was passed. Then followed a number of other statutes implementing said constitutional mandate. It is not necessary to go into the details of said legislative enactments. Suffice it to say that the same are predicated upon a

recognition of the fact that a good many of the problems confronting the State are due to social and economic evils, and that, unless the latter are removed or, least minimized, the former will keep on harassing the community and affecting the well-being of its members.

Thus, the settled policy of our laws on rebellion, since the beginning of the century, has been one of decided leniency, in comparison with the laws enforce during the Spanish regime. Such policy has not suffered the slightest alteration. Although the Government has, for the past five or six years, adopted a more vigorous course of action in the apprehension of violators of said law and in their prosecution the established policy of the State, as regards the punishment of the culprits has remained unchanged since 1932. It is not for us to consider the merits and demerits of such policy. This falls within the province of the policy-making branch of the government the Congress of the Philippines. However, the following quotation from Cuello Calon indicates the schools of thought on this subject and the reason that may have influenced our lawmakers in making their choice:chanroblesvirtuallawlibrary

“Durante muchos siglos, hasta tiempos relativamente cercanos, se reputaban los hechos que hoy llamamos delitos politicos como mas graves y peligrosos que los crimenes comunes. Se consideraba que mientras estos solo causan un daño individual, aquellos producen profundas perturbaciones en la vida collectiva llegando a poner en peligro la misma vida del Estado. En consonancia con estas ideas fueron reprimidos con extraordinaria severidad y designados con la denominacion romana de delitos de lesa majestad se catalogaron en las leyes penales como los crimenes mas temibles.

“Pero desde hace poco mas de un siglo se ha realizado en este punto una transformacion profunda merced a la cual la delincuencia politica dejo de apreciarse con los severos criterios de antaño quedando sometida a un regimen penal, por regla general suave y benevolo.

“El origen de este cambio se remonta, segun opinion muy difundida, a la revolucion que tuvo lugar en Francia en el año 1830. El gobierno de Luis Felipe establecio una honda separacion entre los delitos comunes y los politicos, siendo estos sometidos a una penalidad mas suave y sus autores exceptuados de la extradicion. Irradiando a otros paises tuvieron estas tan gran difusion que en casi todos los de regimen liberal-individualista se ha llegado a crear un tratamiento desprovisto de severidad para la represion de estos hechos. No solo las penas con que se conminaron perdieron gran parte de su antigua dureza, sino qua en algunos paises se creo un regimen penal mas suave para estos delicuentes, en otros se abolio para ellos la pena de muerte. Tan profundo contraste entre el antiguo y el actual tratamiento de la criminalidad politica en la mayoria de los paises solo puede ser explicado por las ideas nacidas y difundidas bajo los regimenes politicos liberalesacerca de estos delitos y delincuentes. Por una parte se ha afirmado que la criminalidad da estos hechos no contiene la misma inmoralidad que la delincuencia comun, que es tan solo relativa, qua depende del tiempo, del lugar, da las circumstancias, de las instituciones del pais. Otros invocan la elevacion de los moviles y sentimientos determinantes de estos hechos, el amor a la patria, la adhesion ferviente a determinadas ideas o principios, el espiritu de sacrificio por el triunfo de un ideal.

“Contra su trato benevolo, del que no pocas veces se han beneficiado peligrosos malhechores, se ha iniciado hace algun tiempo una fuerte reaccion (vease Cap. XV, 3.°, b), que llego a alcanzar considerable severidad en las legislaciones de tipo autoritario, y que tambien ha hallado eco, en forma mas suave, en las de otros paises de constitucion democratica en los que, especialmente en los ultimos años, la frecuencia de agitaciones politicas y sociales ha originado la publicacion de numerosas leyes encaminadas a la proteccion penal del Estado.” (Cuello Calon, Derecho Penal, Tomo 1, pp. 250-252.)

Such evils as may result from the failure of the policy of the law punishing the offense to dovetail with the policy of the law enforcing agencies in the apprehension and prosecution of the offenders are matters which may be brought to the attention of the departments concerned. The judicial branch cannot amend the former in order to suit the latter. The Court cannot indulge in judicial legislation without violating the principle of separation of powers,

and, hence, undermining the foundation of our republican system. In, short, we cannot accept the theory of the prosecution without causing much bigger harm than that which would allegedly result from the adoption of the opposite view.

In conclusion, we hold that, under the allegations of the amended information against Defendant-Appellant Amado V. Hernandez, the murders, arsons and robberies described therein are mere ingredients of the crime of rebellion allegedly committed by said Defendants, as means “necessary” 4 for the perpetration of said offense of rebellion; chan roblesvirtualawlibrarythat the crime charged in the aforementioned amended information is, therefore, simple rebellion, not the complex crime of rebellion with multiple murder, arsons and robberies; chan roblesvirtualawlibrarythat the maximum penalty imposable under such charge cannot exceed twelve (12) years of prision mayor and a fine of P20,000; chan roblesvirtualawlibraryand that, in conformity with the policy of this court in dealing with accused persons amenable to a similar punishment, said Defendant may be allowed bail.

It is urged that, in the exercise of its discretion, the Court should deny the motion under consideration, because the security of the State so requires, and because the judgment of conviction appealed from indicates that the evidence of guilt of Amado V. Hernandez is strong. However, as held in a resolution of this court, dated January 29, 1953, in the case of Montano vs. Ocampo (G.R. L-6352):chanroblesvirtuallawlibrary

“ cralaw to deny bail it is not enough that the evidence of guilt is strong; chan roblesvirtualawlibraryit must also appear that in case of conviction the Defendant’s criminal liability would probably call for a capital punishment. No clear or conclusive showing before this Court has been made.”

In fact, in the case at bar, Defendant Amado V. Hernandez was sentenced by the lower court, not to the extreme penalty, but to life imprisonment. Furthermore, individual freedom is too basic, too transcendental and vital in a republican state, like ours, to be denied upon mere general principles and abstract consideration of public safety. Indeed, the preservation of liberty is such a major preoccupation of our political system that, not satisfied with guaranteeing its enjoyment in the very first paragraph of section (1) of the Bill of Rights, the framers of our Constitution devoted paragraphs (3), (4), (5), (6), (7), (8), (11), (12), (13), (14), (15), (16), (17), (18), and (21) of said section (1) to the protection of several aspects of freedom. Thus, in line with the letter and spirit of the fundamental law, we said in the aforementioned case of Montano vs. Ocampo:chanroblesvirtuallawlibrary

“Exclusion from bail in capital offenses being an exception to the otherwise absolute right guaranteed by the constitution, the natural tendency of the courts has been toward a fair and liberal appreciation, rather than otherwise, of the evidence in the determination of the degree of proof and presumption of guilt necessary to warrant a deprivation of that right.”

x x x x x x x x x

“In the evaluation of the evidence the probability of flight is one other important factor to be taken into account. The sole purpose of confining accused in jail before conviction, it has been observed, is to secure his presence at the trial. In other words, if denial of bail is authorized in capital cases, it is only on the theory that the proof being strong, the Defendant would flee, if he has the opportunity, rather than face the verdict of the jury. Hence, the exception to the fundamental right to be bailed should be applied in direct ratio to the extent of the probability of evasion of prosecution.

“The possibility of escape in this case, bearing in mind the Defendant’s official and social standing and his other personal circumstances, seem remote if not nil.”

This view applies fully to Amado V. Hernandez, with the particularity that there is an additional circumstance in his favor — he has been detained since January 1951, or for more

than five (5) years, and it may still take some time to dispose of the case, for the same has not been, and is not in a position to be, included, as yet, in our calendar, inasmuch as the briefs for some Appellants— other than Hernandez — as well as the brief for the Government, are pending submission. It should be noted, also, that the decision appealed from the opposition to the motion in question do not reveal satisfactorily and concrete, positive act of the accused showing, sufficiently, that his provincial release, during the pendency of the appeal, would jeopardize the security of the State.

Wherefore, the aforementioned motion for bail of Defendant- Appellant Amado V. Hernandez is hereby granted and, upon the filing of a bond, with sufficient sureties, in the sum of P30,000, and its approval by the court, let said Defendant-Appellant be provisionally released. It is SO ORDERED.

Paras, C.J., Reyes, A., Bautista Angelo and Reyes. J.B.L., JJ., concur.

Bengzon, J., concurs in the result.

Separate Opinions

PADILLA, J., dissenting:chanroblesvirtuallawlibrary

Amado V. Hernandez and others were charged in the Court of First Instance of Manila with the crime of rebellion with multiple murder, arsons and robberies. The body of the information charged that he and his co-Defendants conspired and that “as a necessary means to commit the crime of rebellion, in connection therewith and in furtherance thereof,” “have then and there committed acts of murder, pillage, looting, plunder, arson, and planned destruction of private and public property to create and spread chaos, disorder, terror, and fear so as to facilitate the accomplishment of the aforesaid purpose,” and recited the different crimes committed by theDefendants. After trial Amado V. Hernandez was found guilty and sentenced to suffer life imprisonment from which judgment and sentence he appealed. The appeal is pending in this Court.

Upon the ground that there is no complex crime of rebellion with murder, the penalty provided for to be imposed upon persons found guilty of rebellion being prision mayor and a fine not to exceed P20,000 only, 1 the majority grants the petition for bail filed by the Appellant.

Section 1, paragraph 16, Article III, of the Constitution provides:chanroblesvirtuallawlibrary

All persons shall before conviction be bailable by sufficient sureties, except those charged with capital offenses when evidence of guilt is strong. Excessive bail shall not be required. (Italics supplied.)

The pertinent sections of Rule 110 provide:chanroblesvirtuallawlibrary

SEC. 3. Offenses less than capital before conviction by the Court of First Instance. — After judgment by a justice of the peace and before conviction by the Court of First Instance, theDefendant shall be admitted to bail as of right.

SEC. 4. Noncapital offenses after conviction by the Court of First Instance. — After conviction by the Court of First Instance Defendant may, upon application, be bailed at the discretion of the court.

SEC. 5. Capital offenses defined. A capital offense, as the term is used in this rule, is an offense which, under the law existing at the time of its commission, and at the time of the application to be admitted to bail, may be punished by death.

SEC. 6. Capital offenses not bailable. — No person in custody for the commission of a capital offense shall be admitted to bail if the evidence of his guilt is strong.

SEC. 7. Capital offenses - burden of proof. — On the hearing of an application for admission to bail made by any person who is in custody for the commission of a capital offense, the burden of showing that evidence of guilt is strong is on the prosecution.

SEC. 13. Bail on appeal. — Bail upon appeal must conform in all respects as provided for in other cases of bail.

According to this Rule, a Defendant in a criminal case after a judgment of conviction by the Justice of the Peace Court and before conviction by the Court of First Instance is entitled to bail. After conviction by the Court of First Instance he, upon application, may still be bailed in non-capital offenses but at the discretion of the court. When the information charges a capital offense theDefendant is not entitled to bail if the evidence of his guilt is strong. Of course this means before conviction. After conviction for a capital offense, the Defendant has absolutely no right to bail, because even before conviction a Defendant charged with capital offense is not entitled to bail if the evidence of guilt is strong. So that should a Defendant charged with a capital offense apply for bail before conviction, the prosecution must establish and show that the evidence of theDefendant’s guilt is strong if the application for bail be objected to. After conviction of aDefendant charged with a capital offense there is no stronger evidence of his guilt than the judgment rendered by the trial court. The judgment is entitled to full faith and credit. Until after the evidence shall have been reviewed and the reviewing court shall have found that the trial court committed error in convicting the Defendant of the crime charged, the judgment and sentence of the trial court in such criminal case must be taken at its face value and be given full faith and credit by this Court.

Without a review of the evidence presented in the case, the majority has taken up and discussed the question whether, under and pursuant to the provisions of article 135 of the Revised Penal Code, the complex crime of rebellion with murder may arise or exist or be committed and has reached the conclusion that murder as an incident to rebellion, is integrated, imbibed, incorporated, or absorbed in, or part and parcel of, the last mentioned crime. For that reason it is of the opinion that, as the information filed against Amado V. Hernandez does not charge a capital offense, he may be admitted to bail at the discretion of the Court.

Even if the majority opinion that the crime charged in the information is rebellion only — a non-capital offense — be correct, still the granting of bail after conviction is discretionary, and I see no plausible reason for the reversal of this Court’s previous stand, because the security of the State is at stake.

For these reasons I dissent.

MONTEMAYOR, J., dissenting:chanroblesvirtuallawlibrary

Unable to agree to the resolution of the majority, I am constrained to dissent therefrom, not so much from the part thereof granting the motion for bail, as where it holds not only that there can be no complex crime of rebellion with multiple murder, robbery, arson, etc., but that these crimes when committed during and on the occasion of a rebellion, are absorbed by the latter. The new doctrine now being laid down besides being, to my mind, quite radical and in open and clear contravention of public policy, is fundamental and of far-reaching consequences, and I feel it my duty not only to voice my dissent but also to state the reasons in support thereof.

The resolution cites and quotes Article 135 of the Revised Penal Code to support its theory that the five acts enumerated therein particularly those of engaging in war against the forces of the government, destroying property and committing serious violence, cover all the murders, robberies, arsons, etc., committed on the occasion of or during a rebellion; chan roblesvirtualawlibraryand it proceeds to assert that the expressions used in said article, such

as engaging in war against the forces of the government and committing serious violence imply everything that war connotes such as physical injuries and loss of life. In this connection, it is of profit and even necessary to refer to Article 134 of the Revised Penal Code defining and describing how the crime of rebellion is committed.

“Art. 134. Rebellion or insurrection — How committed. — The crime of rebellion or insurrection is committed by rising publicly and taking arms against the Government for the purpose of removing from the allegiance to said Government or its laws, the territory of the Philippine Islands or any part thereof, of any body of land, naval or other armed forces, or of depriving the Chief Executive or the Legislature, wholly or partially, of any of their powers or prerogatives.”

According to the above article, rebellion is committed by rising publicly and taking arms against the government for the purpose or purposes enumerated in said article. In other words, the commission of rebellion is complete and consummated if a group of persons for the purposes enumerated in the article, rise publicly, take up arms and assemble. It is not necessary for its consummation that anybody be injured or killed, be it a government soldier or civilian, or that innocent persons be forcibly deprived of their properties by means of robbery or that their stores and houses be looted and then burned to the ground. Stated differently, murders, robberies, arsons, etc., are not necessary or indispensable in the commission of rebellion and, consequently, are not ingredients or elements of the latter.

Article 48 of the Revised Penal Code providing for “Penalty for complex crimes” reads thus:chanroblesvirtuallawlibrary

“ART. 48. Penalty for complex crimes. — When a single act constitutes two or more grave or less grave felonies, or when an offense is a necessary means for committing the other, the penalty for the most serious crime shall be imposed, the same to be applied in its maximum period.” (As amended by Act No. 4000.)

For better understanding, I deem it advisable to ascertain and explain the meaning of the phrase “necessary means” used in Article 48. “Necessary means” as interpreted by criminologists, jurists and legal commentators, does not mean indispensable means, because if it did, then the offense as a “necessary means” to commit another would be an indispensable element of the latter and would be an ingredient thereof. That would be true in the offense of trespass to dwelling to commit robbery in an inhabited house, or the infliction of physical injuries to commit homicide or murder. The phrase “necessary means” used in Article 48, merely signifies that for instance, a crime such as simple estafa can be and ordinarily is committed in the manner defined and described in the Penal Code; chan roblesvirtualawlibrarybut, if the “estafador” resorts to or employs falsification, merely to facilitate and insure his committing the estafa, then he is guilty of the complex crime of estafa thru falsification. So, if one desiring to rape a certain woman, instead of waiting for an opportunity where she could be alone or helpless, in the fields or some isolated place, abducts her by force and takes her to a forest to ravish her; chan roblesvirtualawlibraryor he enters her home through a window at night and rapes her in her room, then he is guilty of the complex crime of abduction with rape or rape with trespass to dwelling. The reason is that the commission of abduction of trespass to dwelling are not indispensable means or ingredients of the crime of rape. They are but means selected by the culprit to facilitate and carry out perhaps more quickly his evil designs on his victim. Says the eminent Spanish commentator, Groizard, on this point:chanroblesvirtuallawlibrary

“Una cosa analoga acontece respecto de los delitos conexionados con una relacion de medio a fin. Tambien en ellos la unidad de acto moral, que da vida al delito, hace logica la imposicion de una sola pena. Preciso es, sin embargo, distinguir el caso en que el delito medio sea medio necesario de realizar el delito fin, del caso en que sea puramente medio, pero no medio indispensable. En aquel, el delito medio no es, en realidad, sino una condicion precisa, una circumstancia sine qua non, un elemento integral de la accion punible concebida como fin. Sin

pasar por uno, seria imposible llegar al otro. La voluntad, libre e inteligente, tiene entonces por unico objeto llegar al delito fin. Si al recorrer su camino ha de pasar, indispensablemante, por la comision de otro hecho punible, no dos, sino un delito habra que castigar, toda ves que uno fue el mal libremente querido, no siendolo el otro por si, sino en tanto que era necesario para obtener, la realizacion del mal proposito concebido.”

x x x x x x x x x

“Asi, hay que reconocer que es plausible que, cuando un delito es medio de realizar otro, se imponga al culpable la pena correspondiente al mayor en su grado maximo; chan roblesvirtualawlibrarypero que no los es si resulta que ha sido medio necesario. Por lo contrario, para que sea justo el aumento de pena, con arreglo a la doctrina general acerca del delito y las circunstancia agravantes, es preciso que existan y no se aprovechen otros procedimientos, otros recursos, mas o menos faciles para consumar el delito. Entonces la responsibilidad se hace mayor eligiendo un medio que sea un delito en si. El que puede, haciendo uso de su libertad y de su inteligencia, escoger entre varios procedimientos para llegar a un fin, y se decide por uno que por si solo constituye delito, de este delito no necessario para la realizacion del proyectado como fin, debe responder tambien.”

x x x x x x x x x

“Ejemplo:chanroblesvirtuallawlibrary el allanamiento de domicilio como medio de llegar al delito de violacion. No es condicion necesaria, para que la violacion pueda realizarse, el entrar en la morada ajena contra la voluntad de su dueño. Sin esa circunstancia, el delito puede existir. Ahora bien; chan roblesvirtualawlibrarysi el criminal acepta como medio de llegar a la violacion el allanamiento de domicilio, este delito y el de violacion deben ser castigados observandose en la aplicacion del castigo una unidad de penalidad que guarde cierta analogia con la unidad de pensamiento que llevo en culpable a la ralizacion de ambos delitos. Para estos y analogos casos, la razon aprueba la imposicion de la mas grave de las penas en su grado maximo.” (Groizard, El Codigo Penal de 1870, Tomo II, pp. 495-496.)

Applying the above observations to the crime of rebellion as defined in Article 134, the same may be committed by merely rising publicly and taking arms against the government, such as was done on several occasions as alleged in the information for rebellion in the present case where a group of Hukbalahaps, entered towns, overpowered the guards at the Presidencia confiscated firearms and the contents of the municipal treasurer’s safe, exacted contributions in the form of money, food-stuffs and clothing from the residents and maintained virtual control of the town for a few hours. That is simple but consummated rebellion. Murder, robbery, arson, etc., are not necessary or indispensable to consummate the crime of rebellion.

But in other cases, this group or other groups of dissidents in order to facilitate achieving their objective to overthrow the government, according to the findings of the trial courts in several cases of rebellion, resorted to looting and robberies to raise funds to finance their movement, sometimes killing civilians who refused to contribute or to be recruited to augment the forces of the rebels or who were suspected of giving information to the government forces of the movements of the dissidents. Sometimes, homes of town and barrio residents are set on fire and burned to the ground in reprisal or in order to strike terror into the hearts of the inhabitants, so that they would be more amenable to the rule and the demands of the rebels. At other times, civilians were kidnapped for purposes of ransom, and some hostages killed when the ransom was not paid or was not forthcoming. In the raid on Camp Macabulos in Tarlac, besides shooting down soldiers and officers, buildings were set on fire, inducing the hospital, as a result of which, patients including a Red Cross nurse were killed. In another case, a passenger bus containing about forty civilian passengers in Sta. Cruz, Zambales, was held up by these armed dissidents; chan roblesvirtualawlibrarythe passengers were robbed of their money and jewelry and fourteen of them were shot to death. The party of Mrs. Aurora Quezon while on its way to the town of Baler, was ambushed in Bongabong,

Nueva Ecija by the dissidents and several members of the party, including herself, her daughter, her son-in-law, Mayor Bernardo of Quezon City, and others were killed, and their persons despoiled of jewelries and belongings. It is clear that all these acts of murder, vandalism, banditry and pillage cannot be regarded as ingredients and indispensable elements of the crime of rebellion. The aforecited acts and cases, the enumeration of which is far from complete, are not based on mere suspicion or hearsay. They are alleged as facts in the numerous counts contained in complaints or informations for rebellion with multiple murder, robbery, arson, kidnapping, etc. in several separate cases in the Courts of First Instance, some still pending trial-but quite a number already decided and now pending appeal before us. There must be much truth to these charges and counts because in the case against Huk Supremo Luis Taruc, William Pomeroy et al., (criminal case No. 19166 C.F.I., Manila) Pomeroy pleaded guilty to all the thirty counts against him; chan roblesvirtualawlibraryso did Taruc after seven counts had been eliminated from the thirty contained in the information. Among the twenty three counts remaining to which Taruc pleaded guilty were the holding up of forty civilians in a passenger bus in Sta. Cruz, Zambales, and the night raid on Camp Macabulos where hospital patients and a Red Cross nurse were killed.

Since the above mentioned crimes of multiple murder, robbery, kidnapping, etc., are not ingredients of rebellion nor indispensable to its commission but only means selected and employed by the offenders to commit rebellion and achieve their goal, a complex crime is committed under Article 48 of the Revised Penal Code.

Going back to the theory of the majority in the resolution that the phrase engaging in war and committing serious violence used in Article 134, covers the crimes of murder, robbery, arson, etc., committed during a rebellion, I emphatically disagree. Engaging in war and levying war, against the government, are general terms employed in the United States statutes to define rebellion and treason. They are used interchangeably and have the same meaning in our law on rebellion and treason, (Articles 114, 134, 135, Revised Penal Code) which are based on Act 292 of American origin. They do not necessarily mean actual killing of government troops, much less of innocent civilians.

“Levying War. — The assembling of a body of men for the purpose of effecting by force a treasonable object; chan roblesvirtualawlibraryand all who perform any part, however, minute, or however remote from the scene of action, and who are leagued in the general conspiracy, are considered as engaged in levying war, within the meaning of the constitution.” (Bouvier’s Law Dictionary, Vol. 2, p. 1938.)

This Tribunal defines “levying war” in the case of U.S. vs. Lagnason, 3 Phil., 478-9, thus:chanroblesvirtuallawlibrary

“Whatever differences there may have been among the early judges as to whether an armed resistance to the enforcement of a public law (see Act No. 292, section 5, 1) constituted a levying of war or not, and war or was not treason, yet they were all unanimous in holding that acts of violence committed by an armed body of men with the purpose of overthrowing the Government was “levying war against the United States,” and was therefore treason, whether it was done by ten men or ten thousand. (See United States vs. Hanway, 2 Wall., jr., 139; chan roblesvirtualawlibrary26 Fed. Cases, 105.)

x x x x x x x x x

“As the act of engaging in a rebellion is levying war, and therefore treason, the same act seems to be punished by both sections and in different ways.” (U. S. vs. Lagnason, 3 Phil., 48-9.)

Just as a citizen can commit treason by adhering to the enemy and committing treasonable overt acts such as pointing out and helping arrest guerrillas, accompanying enemy soldiers on patrol and giving valuable information to the enemy, without himself killing anyone of his countrymen, this although Article 114 uses the phrase levying war to define-treason, so,

although Article 135 uses the phrase “engaging in war”, a group of individuals may also commit rebellion by merely rising publicly and taking arms against the government without firing a single shot or inflicting a single wound.

But the majority says that serious violence mentioned in Article 134 may include murder. To me, this view is untenable. From serious violence to the capital offense of murder, certainly, is a far cry. Besides, serious violence can also be on things. In my opinion, the different acts mentioned in Article 135, among them, destroying property, committing serious violence, exacting contributions or diverting public funds, instead of giving license and unlimited leave to rebels and dissidents to engage in mass murder, looting and wholesale destruction of property, on the contrary, serve to limit and restrict the violations of law that may be included in and absorbed by rebellion. Article 135 mentions those acts which generally accompany a public armed uprising. When rebels raid a town or barrio, manhandling of civilians who obstruct their movements or fail to carry out their orders such as to lend their carabaos and carts for transportation purposes, or to contribute food, clothes, medicines, money etc., may be expected. The rebels may employ force to disarm the policeman guarding the Presidencia and if he offers resistance beat him up or, once inside, break down the door of the treasurer’s office, blow up his safe and carry away the money contents thereof. All these acts involve violence, even serious violence on persons and things, including diversion of public funds. But knowing that these law violations, relatively not serious, are generally unavoidable in public armed uprisings involving hastily assembled persons and groups with little discipline’ the law tolerates them, considering them as part of the rebellion. But when rebels rob innocent civilians, kidnap them for purposes of ransom, even kill them merely because they fail to pay the ransom, and civilian houses are put to the torch, endangering the lives of the inmates; chan roblesvirtualawlibrarywhen civilians are killed for refusing to contribute, or on mere suspicion of their giving information to the government, I cannot believe that these brutal act are condoned by the law and are to be included in the crime of rebellion.

The majority leans heavily on our decisions in several treason cases wherein we refused or failed to convict of the complex crime of treason with multiple murder. To me, those cases are neither controlling nor applicable for several reasons. Almost invariably, indictment in those treason cases alleged the killings committed by the indictees as ingredients and elements of treason. They are mentioned as the overt acts to establish and prove treason. Naturally, the court held that being ingredients of the crime of treason they cannot be considered as distinct and separate offenses for the purpose of applying Article 48 of the Revised Penal Code. Another reason is that, treason being a capital offense, this court did not see any immediate necessity for considering and applying the theory of complex crime because the result would in many cases be practically the same. In other words, treason might yet be said to absorb the crime of homicide, even of murder, because as regards the penalty, they are of the same category. Still another reason, not an unimportant one is that at that time, opinion among the members of this Tribunal on the question of complex crime of treason with homicide, sedition with murder and rebellion with murder, arson, robbery, etc., had not yet crystalized, one way or the other. So, we preferred to avoid ruling on the issue, specially since by considering the commission of murder, robbery, etc., in treason as aggravating the crime, we would achieve the same result as regards the penalty to be imposed.

But in the case of People vs. Perfecto Labra, G.R. No. 1240, May 12, 1949, this court through Mr. Justice Bengzon, accepted the view of the Solicitor General that under Article 48 of the Revised Penal Code, Labra was guilty of the complex crime of treason with murder, as shown by the dispositive part of our decision in that case, which is quoted below:chanroblesvirtuallawlibrary

“Wherefore, the verdict of guilt must be affirmed. Article 48, 114 and 248 of the Revised Penal Code are applicable to the offense of treason with murder. However, for lack of

sufficient votes to impose the extreme penalty, the Appellant will be sentenced to life imprisonment.”

The only reason why the death penalty was not imposed in said case was because of lack of sufficient votes but evidently, the Justices were agreed as to the application of Article 48 of the Penal Code regarding complex crimes.

Then in the treason case of People vs. Barrameda, 85 Phil., 789, 47 Off. Gaz., 5082, on the strength of our decision in the case of Labra, the Solicitor General recommended that Barrameda be also convicted of the complex crime of treason with multiple murder and sentenced to death. This Tribunal accepted the Solicitor General’s recommendation and imposed the death penalty in the following language:chanroblesvirtuallawlibrary

“We entertain not the least doubt as to the guilt of the Appellant. His very counsel de oficio who made an analysis of the testimonies of the witnesses for the prosecution and painstakingly stated them in detail in his brief, agrees that his client is guilty although he prays that the sentence of life imprisonment be affirmed. The Solicitor General, however, recommends that the penalty of death be imposed upon the Appellant. Considering that the treason committed by the Appellantwas accompanied not only by the apprehension of Americans (U. S. citizens) and their delivery to the Japanese forces which evidently later executed them, but also by killing with his own hands not only one but several Filipinos, his own countrymen, and that in addition to this, he took part in the mass killing and slaughter of many other Filipinos, we are constrained to agree to said recommendation. However, unpleasant, even painful is the compliance with our duty, we hereby impose upon the Appellant Teodoro Barrameda the penalty of death which will be carried out on a day to be fixed by the trial court within thirty (30) days after the return of the record of the case to said court.”

With the two aforecited cases, it may not be said that the Supreme Court has always held that there can be no complex crime of treason with murder.

The theory of the majority is that the crime of rebellion with the maximum penalty of twelve years and fine, absorbs the other crimes of murder, robbery, arson, kidnapping, etc., as long as the latter are committed in the course and in furtherance of the former. The idea of one crime absorbing a more serious one with a more severe penalty does not readily appeal to the reasonable and logical mind which can only comprehend a thing absorbing another smaller or less than itself in volume, in importance, in value or in category. That is why Judge Montesa in the three cases, People vs. Hernandez, People vs. Espiritu, and People vs. Medina, criminal cases Nos. 15481, 15479 and 1411 respectively, of the Court of First Instance, Manila, in his decision convicting the accused therein, in disposing of the theory of absorption, urged upon him by counsel for the defense to the effect that the crime of rebellion absorbs the crime of murder, robbery, arson, etc., made the following observations:chanroblesvirtuallawlibrary

“The theory of absorption tenaciously adhered to by the defense to the effect that rebellion absorbs all these more serious offenses is preposterous to say the least, considering that it is both physically and metaphysically imposible for a smaller unit or entity to absorb a bigger one.” (Montesa, J., People vs. Hernandez G.R. No. 15481, P. 78.)

We need not go into an academic discussion of this question because as a matter of law, my opinion, criminal jurisprudence, expounding the criminal law namely the Penal Code and the Penal Code of Spain, on which it is based, expressly and clearly declare that the common crimes of murder, robbery, arson, etc., committed in the course or by reason of rebellion, are separate crimes, not to be merged in or absorbed by rebellion and should be prosecuted separately. Article 259 of the Penal Code of Spain, of 1870 on which our Penal Code promulgated in 1887, was based, provides as follow:chanroblesvirtuallawlibrary

“Los delitos particulares cometidos en una rebellion o sedicion o con motivo de ellas, seran castigados respectivamente, segun las disposiciones de este Codigo.

“Cuando no puedan descubrirse sus autores, seran penados como tales los jefes principales de la rebelion o sedicion.” (Groiazrd, El Codigo Penal de 1870, Tomo III, Articulo 259, p. 649.)

In commenting on Article 259 of the Spanish Penal Code, Viada says:chanroblesvirtuallawlibrary

“‘La disposicion del primer parrafo de este articulo no puede ser mas justa; chan roblesvirtualawlibrarycon arreglo a ella, los delitos particulares o comunes cometidos en una rebellion o sedicion no deberan reputarse como accidentes inherentes a estas, sino como delitos especiales a dicha rebellion y sedicion ajenos, los que deberan ser respectivamente castigados con als penas que en este Codigo se les señalan. Pero que delitos deberan considerarse como comunes, y cuales como constitutivos de la propia rebelion o sedicion? En cuanto a la rebelion, no ofrece este cuestion dificultad alguna, pues todo hecho que no este comprendido en uno u otro de los objetos especificados en los seis numeros del Articulo 243 sera extraño a la rebelion, y si se este debera ser castigado como delito particular.’“ (Viada, Codigo Penal, Tomo II, 198-199.)

Peña, another commentator, referring to Article 259 of the Spanish Penal Gode, has the following to say:chanroblesvirtuallawlibrary

“La disposicion de este articulo es sobradamente justa, pero cuando se entendera que el hecho es independiente de la insurgencia? Tratandose de la rebelion no hay problema, pues todos los fines que se indican en el Articulo 214 se distinguen facilmente de un asesinato, un robo, una violacion, etc. El problema puede surgir con la sedicion, en cuyos tres ultimos numeros, dice un autor, se tipifican conductas que muy bien pueden ser subsimidas en otros lugares del Codigo. El T.S. parece que sigue este principio general:chanroblesvirtuallawlibrary las infracciones graves se consideran como delitos independientes, en cambio los hechos de menor gravedad puedan ser considerados como accidentes de la rebelion. En este sentido, el T.S. ha declarado que son accidentes de la rebelion, los desacatos y lesiones a la autoridad y otros delitos contra el orden publico, asi como la resistencia o acometiendo a la fuerza publica (23 Mayo 1890). El abuso de superioridad tambien es inherente el alzamiento tumultuario (19 noviembre 1906.)” (Peña Deredes Penal, Tomo II pp. 89-90.)

Another commentator, A. Quintano Ripolles, says of Article 259 of the Spanish Penal Code, counterpart of Article 244 of our old Penal Code:chanroblesvirtuallawlibrary

“La concurrencia de delitos consignada en este articulo no puede ser mas justa, bien que la dificultad persista siempre para determinar cuales han de ser los particulares accidentales y cuales los integrantes de la propia subversion. Una doctrina demasiado simplista, que ha sido a menudo seguida por la Jurisprudencia, es la de estimar que, absorbiendo el delito mas grave al que lo es menos, todo el que por debajo del de rebelion o sedicion sera anulado por este. Para los del la misma naturaleza, la cosa es incuestionable, pero no para los que la tengan diversa, entendiendo por la estraña e imprecisa expresion de (particulares) a las infracciones comunes o no politicas.” (A. Quintano Ripolles, Comentarios al Codigo Penal Vol. II, pp. 101-102; chan roblesvirtualawlibrarycursivas con neustras.)

Another distinguished legal commentator gives his view on the same Article 259:chanroblesvirtuallawlibrary

“Se establece aqui que en una rebelion o sedicion, o con motivo de ellas, comente otros delitos (v. g., roba, mata o lesiona), sera responsable de estos ademas de los delitos de rebelion o sedicion. La dificultad consiste en estos casos en separar los accidentes de la rebelion o sedicion de los delitos independientes de estas, y como las leyes no contienen en este punto precepto alguno aplicable, su solucion ha quedado encomendada a los tribunales.

La jurisprudencia que estos han sentado considera como accidentes de la rebelion o sedicion — cuya criminalidad queda embebida en la de estos delitos, y, por tanto, no son punibles especialmente — los hechos de escasa gravedad (v:chanroblesvirtuallawlibraryg., atentados, desacatos, lesiones menos graves); chan roblesvirtualawlibrarypor el contrario, las infracciones graves, como el asesinato o las lesiones graves, se consideran como delitos independientes de la rebelion o del la sedicion.” (Cuello Calon, Vol. 2 Derecho Penal p. 110.)

Finally, Groizard, another eminent commentator of the Penal code of Spain, in commenting on the same Article 259 of the Spanish Penal Code of 1870, says the following:chanroblesvirtuallawlibrary

“No necesita ninguno el parrafo primero de este articulo. Aunque no se hubiera escrito en el Codigo, harian los Tribunales lo que dice. Seria necesario para que asi no sucediera el que fuera la rebelion un motivo de exencion de responsabilidad criminal para las demas clases de delitos.” (Groizard Tomo 3, 650.)

It will be seen that Spanish jurists and legal commentators are, with reference to Article 259 of the Spanish Penal Code of 1870, unanimous in the opinion that this provision of the Criminal Law is just and fair because one should not take advantage of his committing the crime of rebellion by committing other more serious crime such as murder, robbery, arson, etc., with impunity. The above much commented Article 259 of the Spanish Penal Code has its counterpart in Article 244 of our old Penal Code in practically the same wording and phraseology:chanroblesvirtuallawlibrary

“ART. 24. All other crimes committed in the course of a rebellion of seditious movement, or on occasion thereof, shall be punished in accordance with the rules of this Code.

“If the perpetrators of such crimes cannot be discovered, the principal leaders of the rebellion or sedition shall be punished therefore as principals.”

In this jurisdiction, we have faithfully observed and applied this penal provision. In the cases of U. S. vs. Cabrera, et al., 43 Phil., page 64 and page 82 for sedition and multiple murder respectively, wherein members of the Philippine constabulary attacked and killed several policemen in the City of Manila, this Court convicted said soldiers, first, of sedition and later, of multiple murder, clear proof that the murders committed in the course of and by reason of the sedition were not included in and absorbed by sedition, this despite the fact that our law on sedition then, section 5 of Act No. 292, uses the words — rise publicly and tumultuously, in order to attain by force or outside of legal methods any of the following objects are guilty of sedition. In the multiple murder case, the sergeants and corporals of the constabulary, who took part in the killing of the city policemen, were sentenced to death. This court in that case said:chanroblesvirtuallawlibrary

“It is merely stating the obvious to say that sedition is not the same offense as murder. Sedition is a crime against public order; chan roblesvirtualawlibrarymurder is a crime against persons. Sedition is a crime directed against the existence of the State, the authority of the government, and the general public tranquility; chan roblesvirtualawlibrarymurder is a crime directed against the lives of individuals. (U. S. vs. Abad (1902) 1 Phil. 437.) Sedition in its more general sense is the raising of commotions or disturbances in the state; chan roblesvirtualawlibrarymurder at common law is where a person of sound mind and discretion unlawfully kills any human being, in the peace of the sovereign, with malice aforethought, express or implied.

“The offenses charged in the two informations for sedition and murder are perfectly distinct in point of law, however, nearly they may be connected in point of fact. Not alone are the offenses “eo nomine” different, but the allegations in the body of the informations are different. The gist of the information for sedition is the public and tumultuous uprising of the constabulary in order to attain by force and outside of legal methods the object of indicting an act of hate and revenge upon the persons of the police force of the city of Manila by firing

at them in several places in the city of Manila; chan roblesvirtualawlibrarythe gist of the information in the murder case is that the constabulary, conspiring together, illegally and criminally killed eight persons and gravely wounded three others. The crimes of murder and serious physical injuries were not necessarily included in the information for sedition; chan roblesvirtualawlibraryand the Defendants could not have been convicted of these crimes under the first information.” (Phil. Vol. 43, pages 99-100.)

There is an insinuation made in the majority resolution, that the American Law on sedition and rebellion, the origin of our present law on the subject, is more benign and liberal than its counterpart in the Spanish Penal Code, defining and penalizing sedition and rebellion, and that under American jurisprudence, rebellion and sedition include crimes like murder, robbery, arson, etc., committed in the course thereof. But it will be noticed that of the nine Justices who signed the decision in the case of People vs. Cabrera for multiple murder, five, including Mr. Justice Malcolm, who penned the decision, were Americans, supposed to be steeped in American Law and the common law, and yet they all held that sedition where force is expected to be used, did not, include murder. It is evident that the insinuation made in the majority resolution is not exactly borne out by the Cabrera case.

The majority asks why in the past, especially up to 1932, when our Revised Penal Code was promulgated no one had ever been prosecuted, much less convicted of rebellion or sedition complexed with murder, robbery, etc., if it is true that there is such a complex crime of rebellion with murder. For that matter, one may even ask why the constabulary soldiers in the Cabrera case were not charged with the complex crime of sedition with murder. The reason and the answer are obvious. Until 1932, the year of the promulgation of our Revised Penal Code, our old Penal Code included Article 244, the counter-part of Article 259 of the Spanish Penal Code, to the effect that common crimes like murder, robbery, arson, committed on the occasion or by reason of a rebellion or sedition, are to be prosecuted separately. That was why insurgents who committed rebellion or insurrection with homicide or murder during the first days of the American regime in the Philippines, could not be charged with the complex crime of rebellion with murder; chan roblesvirtualawlibraryand that explains why Cabrera and his co-accused could not be charged with the complex crime of sedition with multiple murder, but were prosecuted separately for multiple murder.

The majority also asks why the insurgents in the year 1901 and 1902 were charged only with rebellion but never with murder despite the fact that there was proof that they also had committed murder in the course of the rebellion or insurrection. The reason to my mind was that, shortly thereafter, came the proclamation of amnesty issued by President McKinley of the United States, which amnesty covered not only the crime of rebellion but also other violations of the law committed in the course of the rebellion.

Then came our Revised Penal Code promulgated in 1932. It is a revision of our old Penal Code of 1887. One of the purposes of the revision was simplification, and elimination of unnecessary provisions. In proof of this, while our Penal Code of 1887 contained 611 articles, our Revised Penal Code contains only 367 articles. Among the articles of the old Penal Code not included in the Revised Penal Code, is Article 244. Does the omission or elimination of Article 244 mean that now, common crimes like murder, robbery, arson, etc., committed in the course of a rebellion or sedition are absorbed by rebellion or sedition? Hardly. It cannot be that the committee on revision and our legislators abandoned the idea and the theory contained in said Article 244, because as I have already explained, all the Spanish commentators and jurists commenting on this particular provision of the Spanish Penal Code are agreed that it is a just and reasonable provision, so that sedition and rebellion may not be utilized as a cloak of immunity in the commission of other serious crimes. To me, the reason for the omission is that it was really unnecessary. As Groizard said in his commentary already reproduced, even if that provision were not embodied in the penal code, the court would still apply said provision:chanroblesvirtuallawlibrary

“No necesita ninguno el parrafo primero de este articulo. Aunque no se hubiera excrito en el Codigo, harian los Tribunales lo que dice. Seria necesario para que asi no sucediera el que fuera la rebelion un motivo de exencion de responsabilidad criminal para las demas clases de delitos.” (Groizard Tomo 3, 650.)

The members of the committee on revision of our old Penal Code who must have been familiar with the opinion and comments of eminent Spanish jurists, particularly the above comment of Groizard undoubtedly, deemed the provision of Article 244 superfluous and unnecessary, and so omitted it in the revision. However, this omission of Article 244 of our Penal Code in the new, has an important effect. No longer shall we be obliged to prosecute murder, robbery, arson, kidnapping, etc., committed in the course of and by reason of a sedition or a rebellion, separately. The prosecution is now free to combine these common crimes with the crimes of sedition or rebellion and charge a complex crime. And that is what has been done in the prosecution of the numerous cases of rebellion.

This idea, this theory of complex crime of rebellion with multiple murder, etc., is not such a strange, extravagant or fantastic proposition or idea. We are not the only ones holding this view. Out of seven separate cases, all involving the complex crime of rebellion with multiple murder and etc., decided in the Court of First Instance, not long ago, cases No. 14070 — People vs. Lava; chan roblesvirtualawlibraryNo. 15841 — People vs. Hernandez; chan roblesvirtualawlibraryNo. 2878 — People vs. Capadocia; chan roblesvirtualawlibraryNo. 10400 — People vs. Salvador No. 2704 — People vs. Nava; chan roblesvirtualawlibraryNo. 19166 — People vs. Pomeroy and the same case 19166 — People vs. Taruc, only one judge, Hon. Gregorio Narvasa, of the Court of First Instance of Manila, held that there is no complex crime of rebellion with murder, and his holding was based mainly if not entirely on the decisions of this Tribunal in the treason cases which as I have already explained, are not controlling or applicable. In the other cases, five judges of Courts of First Instance, Judges Ocampo, Castelo, Barcelona, Gatmaitan, and Montesa, held that there is such a complex crime of rebellion with murder and actually convicted the accused of said complex crime. Again, in the case of People vs. Umali, et al., criminal case No. 11037 of the Court of First Instance of Quezon Province, Judge Gustavo Victoriano, convicted the accused of the complex crime of rebellion with multiple murder, etc. Recently, in several criminal cases pending in Pangasinan, involving the complex crimes of rebellion with multiple murder, etc., Judge Morfe of the Court of First Instance of that province acting upon motions to quash the informations on the ground that there was no such complex crime of rebellion with murder and consequently, the informations were not in accordance with law, for charging more than one offense, in a well reasoned and considered order, denied the same and held that there is a complex crime of rebellion with murder. Of course, these opinions of judges of the lower courts are not binding on this tribunal but surely, they are persuasive and cannot be ignored. At least, they show that there are others, learned in the law, who subscribe to the theory of complex crime of rebellion with murder, arson, etc.

Our decision in the case of People vs. Umali, (96 Phil., 185), promulgated on November 29, 1954, is another proof that murders committed in the course of sedition or rebellion are not absorbed by the latter. In said case, this court in a unanimous decision found the Defendants therein guilty of sedition, multiple murder, arson, frustrated murder and physical injuries and sentenced them accordingly. The question may again be asked, if there is such a complex crime of sedition with murder, arson, etc., why were Umali and his co-accused not convicted of this complex crime? The answer is found in a portion of our decision in that case which we quote:chanroblesvirtuallawlibrary

“The last point to be determined is the nature of the offense or offenses committed. Appellantswere charged with and convicted of the complex crime of rebellion with multiple murder, frustrated murder, arson and robbery. Is there such a complex crime of rebellion with multiple murder, etc.? While the Solicitor General in his brief claims that Appellants are guilty of said complex crime and in support of his stand ‘asks for leave to

incorporate by reference’ his previous arguments in opposing Umali’s petition for bail, counsel for Appellants considered it unnecessary to discuss the existence or non- existence of such complex crime, saying that the nature of the crime committed ‘is of no moment to herein Appellants because they had absolutely no part in it whatsoever’. For the present, and with respect to this particular case, we deem it unnecessary to decide this important and controversial question, deferring its consideration and determination to another case or occasion more opportune, when it is more directly and squarely raised and both parties given an opportunity to discuss and argue the question more adequately and exhaustively. Considering that, assuming for the moment that there is no such complex crime of rebellion with murder; chan roblesvirtualawlibraryetc., and that consequentlyAppellants could not have been legally charged with it, much less convicted of said complex crime, and the information should therefore, be regarded as having charged more than one offense, contrary to Rule 106, section 12 and Rule 113, section 2(e), of the Rules of Court, but that Appellants having interposed no objection thereto, they were properly tried for and lawfully convicted if guilty of the several and separate crimes charged therein, we have decided and we rule that the Appellants may properly be convicted of said several and separate crimes, as hereinafter specified. We feel particularly supported and justified in this stand that we take, by the result of the case, namely, that the prison sentence we impose does not exceed, except perhaps in actual duration, that meted out by the court below, which is life imprisonment.”

The majority resolution invokes and applies the principle of the so called pro reo in connection with Article 48 of our Revised Penal Code on complex crimes, to the effect that said article should not be applied when the resulting penalty exceeds the sum total of the several crimes committed constituting the complex crime. According to the majority, the theory of pro reo is that the principle of complex crime was adopted for the benefit of the accused and not to his prejudice; chan roblesvirtualawlibraryso, it is to be applied when the maximum of the penalty for the more serious crime is less in severity or duration of imprisonment than the sum total of the several crimes committed, but not otherwise. This is a novel theory in this jurisdiction. To my knowledge it has never been advanced before. All along and during all these years, the courts of this country not excluding this august tribunal had been applying the provisions of Article 48 of the Revised Penal Code, and its source, Article 89 of our Penal Code of 1887, regardless of whether or not the resulting penalty was prejudicial to the accused. As a matter of fact, in most cases the resulting penalty imposed by this tribunal in complex crimes was much more severe and of longer duration (imprisonment) than the sum total of the two or more crimes committed. In the numerous cases decided by this court involving the complex crime of estafa through falsification, the maximum of the penalty for the more serious crime of falsification was imposed although it exceeded the total of the penalties for estafa and for falsification. In cases of rape with physical injuries the maximum of the penalty for the crime of rape was imposed although it exceeded in duration and severity the total of the penalty for rape and that for the relatively light penalty for physical injuries. In the case of People vs. Parulan (88 Phil., 615), involving the complex crime of kidnapping with murder, this tribunal applied the provision of Article 48 of the Revised Penal Code and would have sentenced the accused to death, were it not for one dissenting vote based not on the applicability of Article 48, but on the question of jurisdiction. Said this court:chanroblesvirtuallawlibrary

“La pena que debe imponerse al acusado Parulan es la del delito mas grave de secuestro en su grado maximo, o sea, pena capital. Pero el Magistrado Sr. Tuason, consecuente con su opinion disidente en Parulan contra Rodas, supra, no puede confirmar la pena capital impuesta por el Juzgado de Primera Instancia de Manila que segun el no tenia jurisdiccion sobre la presente causa. En vista de este voto disidente, el presidente del tribunal Sr. Paras y tres magistrados aunque creen que el acusado Parulan, por las pruebas presentadas, merece pena capital, con todo no pueden votar por la comfirmacion porque el delito se cometio antes de la aprobacion de la Ley de la Republica No. 296, que solo exige ocho votos para la imposicion de la pena capital. Antomaticamente, por ministerio de la ley debe imponerse a

Parulan la pena inmediatamente inferior a la de muerte, que es la de reclusion perpetua con las accesorias.” (88 Phil., p. 624.)

Then in the case of People vs. Guillen * 47 Off. Gaz., 3433, involving the complex crime of murder and multiple attempted murder committed by the accused with a single act of hurling a hand grenade at President Roxas, this tribunal in a per curiam decision, ignoring the aggravating circumstances that attended the commission of the crime, applied the maximum of the penalty for the more serious crime of murder in accordance with Article 48 of the Revised Penal Code and sentenced the accused to death. Other instances and cases may be cited ad libitum to show that in this jurisdiction and in this tribunal, the principle of pro reo was never entertained, much less accepted.

Origin of pro reo principle

Up to the year 1908, the Spanish Penal Code had the following provisions for complex crimes:chanroblesvirtuallawlibrary


“En estos casos solo se impondra la pena correspondiente al delito mas grave, aplicandola en su grado maximo.”

The above provisions were copied in our Penal Code of 1887 under Article 89 which reads thus:chanroblesvirtuallawlibrary

“The provisions of the next preceding article are not applicable to cases in which a single act constitutes two or more crimes, or when one offense is a necessary means for committing the other.

“In these cases, only the penalty of the more serious crime shall be imposed, the same to be applied in its maximum degree.”

On January 3, 1908, the Spanish Penal Code was amended, particularly paragraph 2 of Article 90 thereof so as to add to said paragraph the following clause:chanroblesvirtuallawlibrary

“Hasta el limite que represente la suma de las dos que pudieran imponerse, penando separadamente ambos delitos.”

so that since January 1908, Article 90 of the Spanish Penal Code reads:chanroblesvirtuallawlibrary


“En estos casos solo se impondra la pena correspondiente al delito mas grave, aplicandola en eu grado maximo hasta el limite que represente la suma de las dos que pudieran imponerse, penando separadamente ambos delitos.”

The amendment is the provision for the so called pro reo rule. But we never accepted much less followed said innovation in the Philippines. We did not amend Article 89 of our old Penal Code particularly paragraph 2 thereof so as to add the clause:chanroblesvirtuallawlibrary

“Hasta el limite que represente la suma de las dos que pudieran imponerse, penando separadamente ambos delitos.”

inserted by the amending Spanish Law of January 3, 1908 to the second paragraph of Article 90 of the Spanish Penal Code. Furthermore, when we drafted and promulgated our Revised Penal Code in 1932 (Article No. 3815) we ignored and did not accept the amendment to the

Spanish Penal Code that favored one accused of a complex crime as regards the penalty, so that now our law on the subject is contained in Article 48 of the Revised Penal Code which as amended by Act No. 4000, reads as follows:chanroblesvirtuallawlibrary

“ART. 48. Penalty for complex crimes. — When a single act constitutes two or more grave or less felonies, or when an offense is a necessary means for committing the other, the penalty for the most serious crime shall be imposed, the same to be applied in its maximum period. (As amended by Act No. 4000.)

The majority resolution makes a more or less extensive dissertation and citation of authorities on the law of extradition, intended to show that common crimes such as murder, etc., committed on the occasion of or in the course of the commission of political crimes like sedition and rebellion, are not subject to extradition. We believe that these citations and these arguments are neither relevant nor applicable. All we can say is that a murder committed in the course of a rebellion or sedition may be considered a political crime in contemplation of the extradition law and that a person accused of said murder is not subject to extradition. But a crime may be considered political from the standpoint of the extradition law and yet may be regarded by the country where committed as a common crime separate and distinct from the rebellion or sedition in the course of which it was committed, and, consequently, subject to prosecution. Moreover, the fact that a murder committed in the course of a sedition or rebellion is excluded from the scope of the extradition agreement between nations, is proof and argument that were it not for its exclusion, the member nations of the extradition agreement, where murders are committed in the course of a rebellion or sedition may and would extradite the offenders, on the theory that said murders are separate from and are not absorbed by the rebellion or sedition; chan roblesvirtualawlibraryotherwise, there would be no need for excluding such crimes of murder, arson, etc., committed during a rebellion or sedition, from the scope of the extradition law. And among such nations which consider these common crimes of murder, etc., as separate from rebellion or sedition during which they were committed, are Spain, as shown by Article 259 of its Penal Code, and the Philippines as illustrated in the cases of U.S. vs. Cabrera and People vs. Umali, supra. Groizard lists down several countries that consider common crimes committed during a rebellion or sedition as subject to prosecution:chanroblesvirtuallawlibrary

“Codigo del Canton de Zurich.

S. 75. Si con motivo de la sedicion o como consecuencia fueren cometidos otros delitos, estos seraan castigados conforme a las disposiciones penales para los mismos fijadas.

“Codigo de Peru.

ART. 145. Los reos de rebelion, sedicion o asonada son responsables de los delitos especiales que cometen, observandose lo dispuesto en el Articulo 45.

ART. 146. Si no pudiese averiguarse quien de los sublevados cometio el delito especial, se hara responsable a los autores del tumulto.

“Codigo del Chile.

ART. 131. Los delitos particulares cometidos en un sublevacion o con motivo de ella, seran castigados respectavamente con las penad designadas para ellos, no obstante le dispuesto en el articulo 129. — Si no pueden decubrirse los autores, seran considerados y penados como complices de tales delitos los jefes principales o subalternos de los sublevados que hallandose en la posibilidad de impedirlos no lo hubieren hecho.

“Codigo del Paraguay.

ART. 380. Los delitos particulares cometidos en la sedicion o con motivo de ella, seran castigados con la pena que les corresponda por las leyes respectivas.

“Codigo de la Republica Argentina.

ART. 231. Los que cometen delitos comunes con motivo de la rebelion motin o asonada o con ocasion de ella, seran castigados con la pena que corresponde a esos delitos.

“Codigo de Honduras.

ART. 224. (Como el nuestro.)

(Groizard, El Codigo Penal de 1870, Vol. 3, Articulo 259, p. 650.)

In justice to the Defendants-Appellants in the present case, I wish to explain and make clear that in mentioning and describing the serious crimes of murder, robbery, arson, kidnapping, etc., alleged to have been committed in the course of the rebellion or by reason thereof, I am not referring particularly to the charge or charges and counts alleged against them. Their case is now pending appeal in this tribunal and their guilt or innocence of said charges or counts will be decided in due time. And so, I am not imputing or attributing to them the serious violations of law I have mentioned in this opinion. Rather, I am making general reference to the informations filed in other cases, especially in the informations against Luis Taruc and William Pomeroy which case is not only decided but also is closed.

In conclusion, I hold that under the law and under general principles rebellion punished with a maximum penalty of twelve (12) years and fine cannot possibly absorb a much more serious crimes like murder or kidnapping which are capital offenses and carry the maximum penalty of death. It is hard for the mind to grasp the idea that a person committing one lone murder may be headed for the electric chair; chan roblesvirtualawlibrarybut if perpetrates several murders, kidnappings, arsons, and robberies and during their perpetration, was still committing another crime, that of trying to overthrow his own government by force, then all he gets is twelve years and fine. Since, the serious crimes like multiple murder, robbery, arson, kidnapping, etc., committed during the rebellion are not ingredients of, nor are they indispensable to the commission of rebellion, and were but means freely selected by the rebels to facilitate their commission of rebellion or to achieve and speed up their realization of their object, which was to overthrow the government and implant their own system said to be of communistic ideology, then under Article 48 of the Revised Penal Code, the complex crime of rebellion with murder, etc., was committed.

Judging by the numerous acts of atrocity contained in the several informations filed against the rebels in different cases, not only government soldiers and officers, but innocent civilians by the hundreds were murdered. Stores and homes were looted; chan roblesvirtualawlibrarynot only public buildings, like presidencias and government hospitals, but also private buildings and homes were burned to the ground. And as a result of these acts of terrorism, entire barrios were abandoned and landowners, especially owners of landed estates, evacuated to the provincial capitals or to the cities for personal security. And it seems that these acts of banditry and pillage still continue though on a smaller scale.

Settled public policy or the policy of the Government as regards rebellion and the crimes against persons and property committed by the rebels is clear. With their taxes, the citizens are maintaining a large army to put down the rebellion. Substantial rewards ranging from P500 to P100,000 are offered for the apprehension of the rebels, specially the leaders. A rebel leader with a P100,000 price on his head, after a campaign of several years by the army, and after the loss of lives of many soldiers and civilian guides, is finally captured. The government pays down the P100,000 to those responsible for the capture and charges him with the complex crime of rebellion with multiple murder, kidnapping, etc., — a capital offense. Pending trial, he asks to be released on bail and under the doctrine being laid down by us, he is set at liberty, free to go back to the hills to resume his dissident activities where he left off, by merely posting a bond corresponding to a maximum imprisonment of twelve years (P12,000) and a fine the amount of which is left to the discretion of the trial court. If he jumps his bail and assuming that the full amount of the bond is confiscated, still, the Government

which paid P100,000 for his capture is the loser. It will have to wage another campaign to recapture him and perhaps offer another reward for his apprehension. This would illustrate the wide divergence between the policy of the Government and the present ruling of the Court. That is not as it should be. The three departments of the Government, the Executive, the Legislative and the Judicial Department, though independent of each other, should function as a team, harmoniously, and in cooperation, all for the public welfare. They cannot work at cross purposes. All three should be guided by the settled public policy of the state and this applies to the courts. In the case of Rubi vs. provincial board of Mindoro, 39 Phil., pp. 718-19, this court speaking about the relation between interpretation of the law by the courts and public policy, said:chanroblesvirtuallawlibrary

“As a point which has been left for the end of this decision and which, in case of doubt, would lead to the determination that section 2145 is valid, is the attitude which the courts should assume towards the settled policy of the Government. In a late decision with which we are in full accord, Gamble vs. Vanderbilt University (200 Southwestern Reporter 510) the Chief of Justice of the Supreme Court of Tennessee writes:chanroblesvirtuallawlibrary

‘We can see no objection to the application of public policy as a ratio decidendi. Every really new question that comes before the courts is, in the last analysis, determined on the theory, when not determined by differentiation of the principle of a prior case or line of cases, or by the aid of analogies furnished by such prior cases. In balancing conflicting solutions, that one is perceived to tip the scales which the court believes will best promote the public welfare in its probable operation as a general rule or principle.’

“Justice Holmes, in one of the aphorisms for which he is justly famous, said that “constitutional law, like other mortal contrivances, has to take some chances. (Blinn vs. Nelson [1911] 222 U.S., 1.) If in the final decision of the many grave questions which this case presents, the court must take “a chance,” it should be, with a view to upholding the law, with a view to the effectuation of the general governmental policy, and with a view to the court’s performing its duty in no narrow and bigoted sense, but with that broad conception which will make the courts as progressive and effective a force as are the other departments of the Government.”

Now, by the majority resolution, this Court would spread the mantle of immunity over all these serious crimes against persons and property on the theory that they are all covered by, included in, and absorbed by the crime of rebellion. Under this protective mantle extended by us, instead of curbing and discouraging the commission of these common serious crimes in accordance with public policy, the commission of said crimes would be encouraged. No longer would evil-minded men, outlaws, bandits, hesitate to kill and rob and kidnap, because by pretending to be rebels or to be engaged in rebellion, their acts of atrocity would be covered by rebellion, for which they would get, at most, twelve (12) years and fine. No longer would the spectre of the death penalty and the electric chair hang sword of Damocles-like over the heads of would be kidnappers, murderers and arsonists because by merely claiming to have committed another additional crime, rebellion, under the doctrine laid down by the majority resolution, capital punishment for all capital crimes they have committed or may commit, is automatically reduced to twelve (12) years and fine. It is evident that the effect of the interpretation by this Court of the law on complex crimes, in relation to rebellion and the common serious crimes committed during and in the course thereof, runs counter to the settled public policy on the subject.

Sad, indeed, is the role being played by this Tribunal in laying down a doctrine of such far reaching consequences and in my opinion of such baneful not to say disastrous effects on peace and order and personal security, diametrically and utterly opposed to settled public policy, when after all, we have now the opportunity and the choice of accepting and adopting another view, another interpretation of the law on complex crimes, to be more reasonable, more logical and certainly, more in accordance with public policy, and more in keeping with peace and order, personal security and the public welfare.

For the foregoing reasons, I dissent.

Endencia, JJ., concurs.

LABRADOR, J., dissenting:chanroblesvirtuallawlibrary

I fully agree with the dissenting opinion of Mr. Justice Montemayor in so far as he holds that the complex crime of rebellion with murder exists under our law. I also concur with the opinion of Mr. Justice Padilla in so far as he holds that the petition for bail should be denied because of the danger that the release of the Petitioner-Appellant may cause to the security of the State. As theAppellant has been convicted by the Court of First Instance, he may be admitted to bail in the sound discretion of the court. In the interest of security the discretion should not be exercised in favor of the granting of bail.

Endnotes:chanroblesvirtuallawlibrary

1. In the Andaya case the victim was a girl twelve years of age.

2. The information in the case at bar alleges that the acts therein set forth were committed “as a necessary means to commit the crime of rebellion.”

3. See, also the comentarios el Codigo Penal, by A. Quintano Ripolles (Vol. I, pp. 396-397) and Derecho Penal, by Federico Puig Peña (Vol. 1, p. 289).

4. In the language of the information.

1. Article 135, Revised Penal Code.

* 85 Phil., 307.

Republic of the PhilippinesSUPREME COURT

Manila

EN BANC

G.R. No. 92163 June 5, 1990

IN THE MATTER OF THE PETITION FOR HABEAS CORPUS. JUAN PONCE ENRILE, petitioner vs.JUDGE JAIME SALAZAR (Presiding Judge of the Regional Trial Court of Quezon City [Br. 103], SENIOR STATE PROSECUTOR AURELIO TRAMPE, PROSECUTOR FERDINAND R. ABESAMIS, AND CITY ASSISTANT CITY PROSECUTOR EULOGIO MANANQUIL, NATIONAL BUREAU OF INVESTIGATION DIRECTOR ALFREDO LIM, BRIG. GEN. EDGAR DULA TORRES (Superintendent of the Northern Police District) AND/ OR ANY AND ALL PERSONS WHO MAY HAVE ACTUAL CUSTODY OVER THE PERSON OF JUAN PONCE ENRILE, respondents.

G.R. No. 92164 June 5, 1990

SPS. REBECCO E. PANLILIO AND ERLINDA E. PANLILIO, petitioners, vs.PROSECUTORS FERNANDO DE LEON, AURELIO C. TRAMPE, FFRDINAND R. ABESAMIS, AND EULOGIO C. MANANQUIL, and HON. JAIME W. SALAZAR, JR., in his capacity as Presiding Judge, Regional Trial Court, Quezon City, Branch 103, respondents.

NARVASA, J.:

Thirty-four years after it wrote history into our criminal jurisprudence, People vs. Hernandez 1 once more takes center stage as the focus of a confrontation at law that would re-examine, if not the validity of its doctrine, the limits of its applicability. To be sure, the intervening period saw a number of similar cases 2 that took issue with the ruling-all with a marked lack of success-but none, it would Beem, where season and circumstance had more effectively conspired to attract wide public attention and excite impassioned debate, even among laymen; none, certainly, which has seen quite the kind and range of arguments that are now brought to bear on the same question.

The facts are not in dispute. In the afternoon of February 27, 1990, Senate Minority Floor Leader Juan Ponce Enrile was arrested by law enforcement officers led by Director Alfredo Lim of the National Bureau of Investigation on the strength of a warrant issued by Hon. Jaime Salazar of the Regional Trial Court of Quezon City Branch 103, in Criminal Case No. 9010941. The warrant had issued on an information signed and earlier that day filed by a panel of prosecutors composed of Senior State Prosecutor Aurelio C. Trampe, State Prosecutor Ferdinand R. Abesamis and Assistant City Prosecutor Eulogio Mananquil, Jr., charging Senator Enrile, the spouses Rebecco and Erlinda Panlilio, and Gregorio Honasan with the crime of rebellion with murder and multiple frustrated murder allegedly committed during the period of the failed coup attempt from November 29 to December 10, 1990. Senator Enrile was taken to and held overnight at the NBI headquarters on Taft Avenue, Manila, without bail, none having been recommended in the information and none fixed in the arrest warrant. The following morning, February 28, 1990, he was brought to Camp Tomas Karingal in Quezon City where he was given over to the custody of the Superintendent of the Northern Police District, Brig. Gen. Edgardo Dula Torres. 3

On the same date of February 28, 1990, Senator Enrile, through counsel, filed the petition for habeas corpusherein (which was followed by a supplemental petition filed on March 2, 1990), alleging that he was deprived of his constitutional rights in being, or having been:

(a) held to answer for criminal offense which does not exist in the statute books;

(b) charged with a criminal offense in an information for which no complaint was initially filed or preliminary investigation was conducted, hence was denied due process;

(c) denied his right to bail; and

(d) arrested and detained on the strength of a warrant issued without the judge who issued it first having personally determined the existence of probable cause. 4

The Court issued the writ prayed for, returnable March 5, 1990 and set the plea for hearing on March 6, 1990. 5On March 5, 1990, the Solicitor General filed a consolidated return 6 for the respondents in this case and in G.R. No. 921647 Which had been contemporaneously but separately filed by two of Senator Enrile's co-accused, the spouses Rebecco and Erlinda Panlilio, and raised similar questions. Said return urged that the petitioners' case does not fall within the Hernandezruling because-and this is putting it very simply-the information in Hernandez charged murders and other common crimes committed as a necessary means for the commission of rebellion, whereas the information against Sen. Enrile et al.charged murder and frustrated murder committed on the occasion, but not in furtherance, of rebellion. Stated otherwise, the Solicitor General would distinguish between the complex crime ("delito complejo") arising from an offense being a necessary means for committing another, which is referred to in the second clause of Article 48, Revised Penal Code, and is the subject of the Hernandez ruling, and the compound crime ("delito compuesto") arising from a single act constituting two or more grave or less grave offenses referred to in the first clause of the same paragraph, with which Hernandez was not concerned and to which, therefore, it should not apply.

The parties were heard in oral argument, as scheduled, on March 6, 1990, after which the Court issued its Resolution of the same date 8 granting Senator Enrile and the Panlilio spouses provisional liberty conditioned upon their filing, within 24 hours from notice, cash or surety bonds of P100,000.00 (for Senator Enrile) and P200,000.00 (for the Panlilios), respectively. The Resolution stated that it was issued without prejudice to a more extended resolution on the matter of the provisional liberty of the petitioners and stressed that it was not passing upon the legal issues raised in both cases. Four Members of the Court 9 voted against granting bail to Senator Enrile, and two 10 against granting bail to the Panlilios.

The Court now addresses those issues insofar as they are raised and litigated in Senator Enrile's petition, G.R. No. 92163.

The parties' oral and written pleas presented the Court with the following options:

(a) abandon Hernandez and adopt the minority view expressed in the main dissent of Justice Montemayor in said case that rebellion cannot absorb more serious crimes, and that under Article 48 of

the Revised Penal Code rebellion may properly be complexed with common offenses, so-called; this option was suggested by the Solicitor General in oral argument although it is not offered in his written pleadings;

(b) hold Hernandez applicable only to offenses committed in furtherance, or as a necessary means for the commission, of rebellion, but not to acts committed in the course of a rebellion which also constitute "common" crimes of grave or less grave character;

(c) maintain Hernandez as applying to make rebellion absorb all other offenses committed in its course, whether or not necessary to its commission or in furtherance thereof.

On the first option, eleven (11) Members of the Court voted against abandoning Hernandez. Two (2) Members felt that the doctrine should be re-examined. 10-A In the view of the majority, the ruling remains good law, its substantive and logical bases have withstood all subsequent challenges and no new ones are presented here persuasive enough to warrant a complete reversal. This view is reinforced by the fact that not too long ago, the incumbent President, exercising her powers under the 1986 Freedom Constitution, saw fit to repeal, among others, Presidential Decree No. 942 of the former regime which precisely sought to nullify or neutralize Hernandez by enacting a new provision (Art. 142-A) into the Revised Penal Code to the effect that "(w)hen by reason, or on the occasion, of any of the crimes penalized in this Chapter (Chapter I of Title 3, which includes rebellion), acts which constitute offenses upon which graver penalties are imposed by law are committed, the penalty for the most serious offense in its maximum period shall be imposed upon the offender."' 11In thus acting, the President in effect by legislative flat reinstated Hernandez as binding doctrine with the effect of law. The Court can do no less than accord it the same recognition, absent any sufficiently powerful reason against so doing.

On the second option, the Court unanimously voted to reject the theory that Hernandez is, or should be, limited in its application to offenses committed as a necessary means for the commission of rebellion and that the ruling should not be interpreted as prohibiting the complexing of rebellion with other common crimes committed on the occasion, but not in furtherance, thereof. While four Members of the Court felt that the proponents' arguments were not entirely devoid of merit, the consensus was that they were not sufficient to overcome what appears to be the real thrust of Hernandez to rule out the complexing of rebellion with any other offense committed in its course under either of the aforecited clauses of Article 48, as is made clear by the following excerpt from the majority opinion in that case:

There is one other reason-and a fundamental one at that-why Article 48 of our Penal Code cannot be applied in the case at bar. If murder were not complexed with rebellion, and the two crimes were punished separately (assuming that this could be done), the following penalties would be imposable upon the movant, namely: (1) for the crime of rebellion, a fine not exceeding P20,000 and prision mayor, in the corresponding period, depending upon the modifying circumstances present, but never exceeding 12 years of prision mayor, and (2) for the crime of murder, reclusion temporal in its maximum period to death, depending upon the modifying circumstances present. in other words, in the absence of aggravating circumstances, the extreme penalty could not be imposed upon him. However, under Article 48 said penalty would

have to be meted out to him, even in the absence of a single aggravating circumstance. Thus, said provision, if construed in conformity with the theory of the prosecution, would be unfavorable to the movant.

Upon the other hand, said Article 48 was enacted for the purpose of favoring the culprit, not of sentencing him to a penalty more severe than that which would be proper if the several acts performed by him were punished separately. In the words of Rodriguez Navarro:

La unificacion de penas en los casos de concurso de delitos a que hace referencia este articulo (75 del Codigo de 1932), esta basado francamente en el principio pro reo.' (II Doctrina Penal del Tribunal Supremo de Espana, p. 2168.)

We are aware of the fact that this observation refers to Article 71 (later 75) of the Spanish Penal Code (the counterpart of our Article 48), as amended in 1908 and then in 1932, reading:

Las disposiciones del articulo anterior no son aplicables en el caso de que un solo hecho constituya dos o mas delitos, o cuando el uno de ellos sea medio necesario para cometer el otro.

En estos casos solo se impondra la pena correspondiente al delito mas grave en su grado maximo, hasta el limite que represents la suma de las que pudieran imponerse, penando separadamente los delitos.

Cuando la pena asi computada exceda de este limite, se sancionaran los delitos por separado. (Rodriguez Navarro, Doctrina Penal del Tribunal Supremo, Vol. II, p. 2163)

and that our Article 48 does not contain the qualification inserted in said amendment, restricting the imposition of the penalty for the graver offense in its maximum period to the case when it does not exceed the sum total of the penalties imposable if the acts charged were dealt with separately. The absence of said limitation in our Penal Code does not, to our mind, affect substantially the spirit of said Article 48. Indeed, if one act constitutes two or more offenses, there can be no reason to inflict a punishment graver than that prescribed for each one of said offenses put together. In directing that the penalty for the graver offense be, in such case, imposed in its maximum period, Article 48 could have had no other purpose than to prescribe a penalty lower than the aggregate of the penalties for each offense, if imposed separately. The reason for this benevolent spirit of article 48 is readily discernible. When two or more crimes are the result of a single act, the offender is deemed less perverse than when he

commits said crimes thru separate and distinct acts. Instead of sentencing him for each crime independently from the other, he must suffer the maximum of the penalty for the more serious one, on the assumption that it is less grave than the sum total of the separate penalties for each offense. 12

The rejection of both options shapes and determines the primary ruling of the Court, which is that Hernandezremains binding doctrine operating to prohibit the complexing of rebellion with any other offense committed on the occasion thereof, either as a means necessary to its commission or as an unintended effect of an activity that constitutes rebellion.

This, however, does not write finis to the case. Petitioner's guilt or innocence is not here inquired into, much less adjudged. That is for the trial court to do at the proper time. The Court's ruling merely provides a take-off point for the disposition of other questions relevant to the petitioner's complaints about the denial of his rights and to the propriety of the recourse he has taken.

The Court rules further (by a vote of 11 to 3) that the information filed against the petitioner does in fact charge an offense. Disregarding the objectionable phrasing that would complex rebellion with murder and multiple frustrated murder, that indictment is to be read as charging simple rebellion. Thus, in Hernandez, the Court said:

In conclusion, we hold that, under the allegations of the amended information against defendant-appellant Amado V. Hernandez, the murders, arsons and robberies described therein are mere ingredients of the crime of rebellion allegedly committed by said defendants, as means "necessary" (4) for the perpetration of said offense of rebellion; that the crime charged in the aforementioned amended information is, therefore, simple rebellion, not the complex crime of rebellion with multiple murder, arsons and robberies; that the maximum penalty imposable under such charge cannot exceed twelve (12) years of prision mayor and a fine of P2H,HHH; and that, in conformity with the policy of this court in dealing with accused persons amenable to a similar punishment, said defendant may be allowed bail. 13

The plaint of petitioner's counsel that he is charged with a crime that does not exist in the statute books, while technically correct so far as the Court has ruled that rebellion may not be complexed with other offenses committed on the occasion thereof, must therefore be dismissed as a mere flight of rhetoric. Read in the context of Hernandez, the information does indeed charge the petitioner with a crime defined and punished by the Revised Penal Code: simple rebellion.

Was the petitioner charged without a complaint having been initially filed and/or preliminary investigation conducted? The record shows otherwise, that a complaint against petitioner for simple rebellion was filed by the Director of the National Bureau of Investigation, and that on the strength of said complaint a preliminary investigation was conducted by the respondent prosecutors, culminating in the filing of the questioned information. 14 There is nothing inherently irregular or contrary to law in filing against a respondent an indictment for an offense different from what is charged in the initiatory complaint, if warranted by the evidence developed during the preliminary investigation.

It is also contended that the respondent Judge issued the warrant for petitioner's arrest without first personallydetermining the existence of probable cause by examining under oath or affirmation the complainant and his witnesses, in violation of Art. III, sec. 2, of the Constitution. 15 This Court has already ruled, however, that it is not the unavoidable duty of the judge to make such a personal examination, it being sufficient that he follows established procedure by personally evaluating the report and the supporting documents submitted by the prosecutor. 16 Petitioner claims that the warrant of arrest issued barely one hour and twenty minutes after the case was raffled off to the respondent Judge, which hardly gave the latter sufficient time to personally go over the voluminous records of the preliminary investigation. 17 Merely because said respondent had what some might consider only a relatively brief period within which to comply with that duty, gives no reason to assume that he had not, or could not have, so complied; nor does that single circumstance suffice to overcome the legal presumption that official duty has been regularly performed.

Petitioner finally claims that he was denied the right to bail. In the light of the Court's reaffirmation of Hernandezas applicable to petitioner's case, and of the logical and necessary corollary that the information against him should be considered as charging only the crime of simple rebellion, which is bailable before conviction, that must now be accepted as a correct proposition. But the question remains: Given the facts from which this case arose, was a petition for habeas corpus in this Court the appropriate vehicle for asserting a right to bail or vindicating its denial?

The criminal case before the respondent Judge was the normal venue for invoking the petitioner's right to have provisional liberty pending trial and judgment. The original jurisdiction to grant or deny bail rested with said respondent. The correct course was for petitioner to invoke that jurisdiction by filing a petition to be admitted to bail, claiming a right to bail per se by reason of the weakness of the evidence against him. Only after that remedy was denied by the trial court should the review jurisdiction of this Court have been invoked, and even then, not without first applying to the Court of Appeals if appropriate relief was also available there.

Even acceptance of petitioner's premise that going by the Hernandez ruling, the information charges a non-existent crime or, contrarily, theorizing on the same basis that it charges more than one offense, would not excuse or justify his improper choice of remedies. Under either hypothesis, the obvious recourse would have been a motion to quash brought in the criminal action before the respondent Judge. 18

There thus seems to be no question that All the grounds upon which petitioner has founded the present petition, whether these went into the substance of what is charged in the information or imputed error or omission on the part of the prosecuting panel or of the respondent Judge in dealing with the charges against him, were originally justiciable in the criminal case before said Judge and should have been brought up there instead of directly to this Court.

There was and is no reason to assume that the resolution of any of these questions was beyond the ability or competence of the respondent Judge-indeed such an assumption would be demeaning and less than fair to our trial courts; none whatever to hold them to be of such complexity or transcendental importance as to disqualify every court, except this Court, from deciding them; none, in short that would justify by passing established judicial processes designed to orderly move litigation through the hierarchy of our courts. Parenthentically, this is the reason behind the vote of four Members of the Court against the grant of bail to petitioner: the view that the trial court should not thus be precipitately ousted of its original jurisdiction to grant or deny bail, and if it erred in that matter, denied an opportunity to correct its error. It makes no difference that the respondent Judge here issued a warrant of arrest fixing no bail.

Immemorial practice sanctions simply following the prosecutor's recommendation regarding bail, though it may be perceived as the better course for the judge motu proprio to set a bail hearing where a capital offense is charged. 19 It is, in any event, incumbent on the accused as to whom no bail has been recommended or fixed to claim the right to a bail hearing and thereby put to proof the strength or weakness of the evidence against him.

It is apropos to point out that the present petition has triggered a rush to this Court of other parties in a similar situation, all apparently taking their cue from it, distrustful or contemptuous of the efficacy of seeking recourse in the regular manner just outlined. The proliferation of such pleas has only contributed to the delay that the petitioner may have hoped to avoid by coming directly to this Court.

Not only because popular interest seems focused on the outcome of the present petition, but also because to wash the Court's hand off it on jurisdictional grounds would only compound the delay that it has already gone through, the Court now decides the same on the merits. But in so doing, the Court cannot express too strongly the view that said petition interdicted the ordered and orderly progression of proceedings that should have started with the trial court and reached this Court only if the relief appealed for was denied by the former and, in a proper case, by the Court of Appeals on review.

Let it be made very clear that hereafter the Court will no longer countenance, but will give short shrift to, pleas like the present, that clearly short-circuit the judicial process and burden it with the resolution of issues properly within the original competence of the lower courts. What has thus far been stated is equally applicable to and decisive of the petition of the Panlilio spouses (G.R. No. 92164) which is virtually Identical to that of petitioner Enrile in factualmilieu and is therefore determinable on the same principles already set forth. Said spouses have uncontestedly pleaded 20 that warrants of arrest issued against them as co-accused of petitioner Enrile in Criminal Case No. 90-10941, that when they appeared before NBI Director Alfredo Lim in the afternoon of March 1, 1990, they were taken into custody and detained without bail on the strength of said warrants in violation-they claim-of their constitutional rights.

It may be that in the light of contemporary events, the act of rebellion has lost that quitessentiany quixotic quality that justifies the relative leniency with which it is regarded and punished by law, that present-day rebels are less impelled by love of country than by lust for power and have become no better than mere terrorists to whom nothing, not even the sanctity of human life, is allowed to stand in the way of their ambitions. Nothing so underscores this aberration as the rash of seemingly senseless killings, bombings, kidnappings and assorted mayhem so much in the news these days, as often perpetrated against innocent civilians as against the military, but by and large attributable to, or even claimed by so-called rebels to be part of, an ongoing rebellion.

It is enough to give anyone pause-and the Court is no exception-that not even the crowded streets of our capital City seem safe from such unsettling violence that is disruptive of the public peace and stymies every effort at national economic recovery. There is an apparent need to restructure the law on rebellion, either to raise the penalty therefor or to clearly define and delimit the other offenses to be considered as absorbed thereby, so that it cannot be conveniently utilized as the umbrella for every sort of illegal activity undertaken in its name. The Court has no power to effect such change, for it can only interpret the law as it stands at any given time, and what is needed lies beyond interpretation. Hopefully, Congress will perceive the need for promptly seizing the initiative in this matter, which is properly within its province.

WHEREFORE, the Court reiterates that based on the doctrine enunciated in People vs. Hernandez, the questioned information filed against petitioners Juan Ponce Enrile and the spouses Rebecco and Erlinda Panlilio must be read as charging simple rebellion only, hence said petitioners are entitled to bail, before final conviction, as a matter of right. The Court's earlier grant of bail to petitioners being merely provisional in character, the proceedings in both cases are ordered REMANDED to the respondent Judge to fix the amount of bail to be posted by the petitioners. Once bail is fixed by said respondent for any of the petitioners, the corresponding bail bond flied with this Court shall become functus oficio. No pronouncement as to costs.

SO ORDERED.

Cruz, Gancayco and Regalado, JJ., concur.

Medialdea, J., concurs in G.R. No. 92164 but took no part in G.R. No. 92163.

Cortes and Griño-Aquino, JJ., are on leave.

Separate Opinions

MELENCIO-HERRERA, J., concurring:

I join my colleagues in holding that the Hernandez doctrine, which has been with us for the past three decades, remains good law and, thus, should remain undisturbed, despite periodic challenges to it that, ironically, have only served to strengthen its pronouncements.

I take exception to the view, however, that habeas corpus was not the proper remedy.

Had the Information filed below charged merely the simple crime of Rebellion, that proposition could have been plausible. But that Information charged Rebellion complexed with Murder and Multiple Frustrated Murder, a crime which does not exist in our statute books. The charge was obviously intended to make the penalty for the most serious offense in its maximum period imposable upon the offender pursuant to Article 48 of the Revised Penal Code. Thus, no bail was recommended in the Information nor was any prescribed in the Warrant of Arrest issued by the Trial Court.

Under the attendant circumstances, therefore, to have filed a Motion to Quash before the lower Court would not have brought about the speedy relief from unlawful restraint that petitioner was seeking. During the pendency of said Motion before the lower Court, petitioner could have continued to languish in detention. Besides, the Writ ofHabeas Corpus may still issue even if another remedy, which is less effective, may be availed of (Chavez vs. Court of Appeals, 24 SCRA 663).

It is true that habeas corpus would ordinarily not he when a person is under custody by virtue of a process issued by a Court.

The Court, however, must have jurisdiction to issue the process. In this case, the Court below must be deemed to have been ousted of jurisdiction when it illegally curtailed petitioner's liberty. Habeas corpus is thus available.

The writ of habeas corpus is available to relieve persons from unlawful restraint. But where the detention or confinement is the result of a process issued by the court or judge or by virtue of a judgment or sentence, the writ ordinarily cannot be availed of. It may still be invoked though if the process, judgment or sentence proceeded from a court or tribunal the jurisdiction of which may be assailed. Even if it had authority to act at the outset, it is now the prevailing doctrine that a deprivation of constitutional right, if shown to exist, would oust it of jurisdiction. In such a case, habeas corpus could be relied upon to regain one's liberty (Celeste vs. People, 31 SCRA 391) [Emphasis emphasis].

The Petition for habeas corpus was precisely premised on the violation of petitioner's constitutional right to bail inasmuch as rebellion, under the present state of the law, is a bailable offense and the crime for which petitioner stands accused of and for which he was denied bail is non-existent in law.

While litigants should, as a rule, ascend the steps of the judicial ladder, nothing should stop this Court from taking cognizance of petitions brought before it raising urgent constitutional issues, any procedural flaw notwithstanding.

The rules on habeas corpus are to be liberally construed (Ganaway v. Quilen, 42 Phil. 805), the writ of habeas corpus being the fundamental instrument for safeguarding individual freedom against arbitrary and lawless state action. The scope and flexibility of the writ-its capacity to reach all manner of illegal detention-its ability to cut through barriers of form and procedural mazes-have always been emphasized and jealously guarded by courts and lawmakers (Gumabon v. Director of Bureau of Prisons, 37 SCRA 420) [emphasis supplied].

The proliferation of cases in this Court, which followed in the wake of this Petition, was brought about by the insistence of the prosecution to charge the crime of Rebellion complexed with other common offenses notwithstanding the fact that this Court had not yet ruled on the validity of that charge and had granted provisional liberty to petitioner.

If, indeed, it is desired to make the crime of Rebellion a capital offense (now punishable by reclusion perpetua), the remedy lies in legislation. But Article 142-A 1 of the Revised Penal Code, along with P.D. No. 942, were repealed, for being "repressive," by EO No. 187 on 5 June 1987. EO 187 further explicitly provided that Article 134 (and others enumerated) of the Revised Penal Code was "restored to its full force and effect as it existed before said amendatory decrees." Having been so repealed, this Court is bereft of power to legislate into existence, under the guise of re-examining a settled doctrine, a "creature unknown in law"- the complex crime of Rebellion with Murder. The remand of the case to the lower Court for further proceedings is in order. The Writ of Habeas Corpus has served its purpose.

GUTIERREZ, JR., J., concurring:

I join the Court's decision to grant the petition. In reiterating the rule that under existing law rebellion may not be complexed with murder, the Court emphasizes that it cannot legislate a new-crime into existence nor prescribe a penalty for its commission. That function is exclusively for Congress.

I write this separate opinion to make clear how I view certain issues arising from these cases, especially on how the defective informations filed by the prosecutors should have been treated.

I agree with the ponente that a petition for habeas corpus is ordinarily not the proper procedure to assert the right to bail. Under the special circumstances of this case, however, the petitioners had no other recourse. They had to come to us.

First, the trial court was certainly aware of the decision in People v. Hernandez, 99 Phil. 515 (1956) that there is no such crime in our statute books as rebellion complexed with murder, that murder committed in connection with a rebellion is absorbed by the crime of rebellion, and that a resort to arms resulting in the destruction of life or property constitutes neither two or more offenses nor a complex crime but one crime-rebellion pure and simple.

Second, Hernandez has been the law for 34 years. It has been reiterated in equally sensational cases. All lawyers and even law students are aware of the doctrine. Attempts to have the doctrine re-examined have been consistently rejected by this Court.

Third, President Marcos through the use of his then legislative powers, issued Pres. Decree 942, thereby installing the new crime of rebellion complexed with offenses like murder where graver penalties are imposed by law. However, President Aquino using her then legislative powers expressly repealed PD 942 by issuing Exec. Order 187. She thereby erased the crime of rebellion complexed with murder and made it clear that theHernandez doctrine remains the controlling rule. The prosecution has not explained why it insists on resurrecting an offense expressly wiped out by the President. The prosecution, in effect, questions the action of the President in repealing a repressive decree, a decree which, according to the repeal order, is violative of human rights.

Fourth, any re-examination of the Hernandez doctrine brings the ex post facto principle into the picture. Decisions of this Court form part of our legal system. Even if we declare that rebellion may be complexed with murder, our declaration can not be made retroactive where the effect is to imprison a person for a crime which did not exist until the Supreme Court reversed itself.

And fifth, the attempts to distinguish this case from the Hernandez case by stressing that the killings charged in the information were committed "on the occasion of, but not a necessary means for, the commission of rebellion" result in outlandish consequences and ignore the basic nature of rebellion. Thus, under the prosecution theory a bomb dropped on PTV-4 which kills government troopers results in simple rebellion because the act is a necessary means to make the rebellion succeed. However, if the same bomb also kills some civilians in the neighborhood, the dropping of the bomb becomes rebellion complexed with murder because the killing of civilians

is not necessary for the success of a rebellion and, therefore, the killings are only "on the occasion of but not a 'necessary means for' the commission of rebellion.

This argument is puerile.

The crime of rebellion consists of many acts. The dropping of one bomb cannot be isolated as a separate crime of rebellion. Neither should the dropping of one hundred bombs or the firing of thousands of machine gun bullets be broken up into a hundred or thousands of separate offenses, if each bomb or each bullet happens to result in the destruction of life and property. The same act cannot be punishable by separate penalties depending on what strikes the fancy of prosecutors-punishment for the killing of soldiers or retribution for the deaths of civilians. The prosecution also loses sight of the regrettable fact that in total war and in rebellion the killing of civilians, the laying waste of civilian economies, the massacre of innocent people, the blowing up of passenger airplanes, and other acts of terrorism are all used by those engaged in rebellion. We cannot and should not try to ascertain the intent of rebels for each single act unless the act is plainly not connected to the rebellion. We cannot use Article 48 of the Revised Penal Code in lieu of still-to- be-enacted legislation. The killing of civilians during a rebel attack on military facilities furthers the rebellion and is part of the rebellion.

The trial court was certainly aware of all the above considerations. I cannot understand why the trial Judge issued the warrant of arrest which categorically states therein that the accused was not entitled to bail. The petitioner was compelled to come to us so he would not be arrested without bail for a nonexistent crime. The trial court forgot to apply an established doctrine of the Supreme Court. Worse, it issued a warrant which reversed 34 years of established procedure based on a well-known Supreme Court ruling.

All courts should remember that they form part of an independent judicial system; they do not belong to the prosecution service. A court should never play into the hands of the prosecution and blindly comply with its erroneous manifestations. Faced with an information charging a manifestly non-existent crime, the duty of a trial court is to throw it out. Or, at the very least and where possible, make it conform to the law.

A lower court cannot re-examine and reverse a decision of the Supreme Court especially a decision consistently followed for 34 years. Where a Judge disagrees with a Supreme Court ruling, he is free to express his reservations in the body of his decision, order, or resolution. However, any judgment he renders, any order he prescribes, and any processes he issues must follow the Supreme Court precedent. A trial court has no jurisdiction to reverse or ignore precedents of the Supreme Court. In this particular case, it should have been the Solicitor General coming to this Court to question the lower court's rejection of the application for a warrant of arrest without bail. It should have been the Solicitor-General provoking the issue of re-examination instead of the petitioners asking to be freed from their arrest for a non-existent crime.

The principle bears repeating:

Respondent Court of Appeals really was devoid of any choice at all. It could not have ruled in any other way on the legal question raised. This Tribunal having spoken, its duty was to obey. It is as simple as that. There is relevance to this excerpt from Barrera v. Barrera. (L-31589, July 31, 1970, 34 SCRA 98) 'The delicate task of ascertaining the significance that attaches to a constitutional or statutory provision, an executive order, a procedural norm or a

municipal ordinance is committed to the judiciary. It thus discharges a role no less crucial than that appertaining to the other two departments in the maintenance of the rule of law. To assure stability in legal relations and avoid confusion, it has to speak with one voice. It does so with finality, logically and rightly, through the highest judicial organ, this Court. What it says then should be definitive and authoritative, binding on those occupying the lower ranks in the judicial hierarchy. They have to defer and to submit.' (Ibid, 107. The opinion of Justice Laurel in People v. Vera, 65 Phil. 56 [1937] was cited). The ensuing paragraph of the opinion in Barrera further emphasizes the point: Such a thought was reiterated in an opinion of Justice J.B.L. Reyes and further emphasized in these words: 'Judge Gaudencio Cloribel need not be reminded that the Supreme Court, by tradition and in our system of judicial administration, has the last word on what the law is; it is the final arbiter of any justifiable controversy. There is only one Supreme Court from whose decisions all other courts should take their bearings. (Ibid. Justice J.B.L. Reyes spoke thus in Albert v. Court of First Instance of Manila (Br. VI), L-26364, May 29, 1968, 23 SCRA 948, 961. (Tugade v. Court of Appeals, 85 SCRA 226 [1978]. See also Albert v. Court of First Instance, 23 SCRA 948 [1968] and Vir-Jen Shipping and Marine Services, Inc. v. NLRC, 125 SCRA 577 [1983])

I find the situation in Spouses Panlilio v. Prosecutors Fernando de Leon, et al. even more inexplicable. In the case of the Panlilios, any probable cause to commit the non- existent crime of rebellion complexed with murder exists only in the minds of the prosecutors, not in the records of the case.

I have gone over the records and pleadings furnished to the members of the Supreme Court. I listened intently to the oral arguments during the hearing and it was quite apparent that the constitutional requirement of probable cause was not satisfied. In fact, in answer to my query for any other proofs to support the issuance of a warrant of arrest, the answer was that the evidence would be submitted in due time to the trial court.

The spouses Panlilio and one parent have been in the restaurant business for decades. Under the records of these petitions, any restaurant owner or hotel manager who serves food to rebels is a co-conspirator in the rebellion. The absurdity of this proposition is apparent if we bear in mind that rebels ride in buses and jeepneys, eat meals in rural houses when mealtime finds them in the vicinity, join weddings, fiestas, and other parties, play basketball with barrio youths, attend masses and church services and otherwise mix with people in various gatherings. Even if the hosts recognize them to be rebels and fail to shoo them away, it does not necessarily follow that the former are co-conspirators in a rebellion.

The only basis for probable cause shown by the records of the Panlilio case is the alleged fact that the petitioners served food to rebels at the Enrile household and a hotel supervisor asked two or three of their waiters, without reason, to go on a vacation. Clearly, a much, much stronger showing of probable cause must be shown.

In Salonga v. Cruz Paño, 134 SCRA 438 (1985), then Senator Salonga was charged as a conspirator in the heinous bombing of innocent civilians because the man who planted the bomb had, sometime earlier, appeared in a group photograph taken during a birthday party in the United States with the Senator and other guests. It was a

case of conspiracy proved through a group picture. Here, it is a case of conspiracy sought to proved through the catering of food.

The Court in Salonga stressed:

The purpose of a preliminary investigation is to secure the innocent against hasty, malicious and oppressive prosecution, and to protect him from an open and public accusation of crime, from the trouble, expense and anxiety of a public trial, and also to protect the state from useless and expensive trials. (Trocio v. Manta, 118 SCRA 241; citing Hashimn v. Boncan, 71 Phil. 216). The right to a preliminary investigation is a statutory grant, and to withhold it would be to transgress constitutional due process. (See People v. Oandasa, 25 SCRA 277) However, in order to satisfy the due process clause it is not enough that the preliminary investigation is conducted in the sense of making sure that a transgressor shall not escape with impunity. A preliminary investigation serves not only the purposes of the State. More important, it is a part of the guarantees of freedom and fair play which are birthrights of all who live in our country. It is, therefore, imperative upon the fiscal or the judge as the case may be, to relieve the accused from the pain of going through a trial once it is ascertained that the evidence is insufficient to sustain a prima facie case or that no probable cause exists to form a sufficient belief as to the guilt of the accused. Although there is no general formula or fixed rule for the determination of probable cause since the same must be decided in the light of the conditions obtaining in given situations and its existence depends to a large degree upon the finding or opinion of the judge conducting the examination, such a finding should not disregard the facts before the judge nor run counter to the clear dictates of reason (See La Chemise Lacoste, S.A. v. Fernandez, 129 SCRA 391). The judge or fiscal, therefore, should not go on with the prosecution in the hope that some credible evidence might later turn up during trial for this would be a flagrant violation of a basic right which the courts are created to uphold. It bears repeating that the judiciary lives up to its mission by vitalizing and not denigrating constitutional rights. So it has been before. It should continue to be so. (id., pp. 461- 462)

Because of the foregoing, I take exception to that part of the ponencia which will read the informations as charging simple rebellion. This case did not arise from innocent error. If an information charges murder but its contents show only the ingredients of homicide, the Judge may rightly read it as charging homicide. In these cases, however, there is a deliberate attempt to charge the petitioners for an offense which this Court has ruled as non-existent. The prosecution wanted Hernandez to be reversed. Since the prosecution has filed informations for a crime which, under our rulings, does not exist, those informations should be treated as null and void. New informations charging the correct offense should be filed. And in G.R. No. 92164, an extra effort should be made to see whether or not the Principle in Salonga v. Cruz Patio, et al. (supra) has been violated.

The Court is not, in any way, preventing the Government from using more effective weapons to suppress rebellion. If the Government feels that the current situation calls for the imposition of more severe penalties like death or the creation of new crimes like rebellion complexed with murder, the remedy is with Congress, not the courts.

I, therefore, vote to GRANT the petitions and to ORDER the respondent court to DISMISS the void informations for a non-existent crime.

FELICIANO, J., concurring:

I concur in the result reached by the majority of the Court.

I believe that there are certain aspects of the Hernandez doctrine that, as an abstract question of law, could stand reexamination or clarification. I have in mind in particular matters such as the correct or appropriate relationship between Article 134 and Article 135 of the Revised Penal Code. This is a matter which relates to the legal concept of rebellion in our legal system. If one examines the actual terms of Article 134 (entitled: "Rebellion or Insurrection-How Committed"), it would appear that this Article specifies both the overt acts and the criminal purpose which, when put together, would constitute the offense of rebellion. Thus, Article 134 states that "the crime of rebellion is committed by rising publicly and taking arms against the Government "(i.e., the overt acts comprising rebellion), "for the purpose of (i.e., the specific criminal intent or political objective) removing from the allegiance to said government or its laws the territory of the Republic of the Philippines or any part thereof, or any body of land, naval or other armed forces, or depriving the Chief Executive or the Legislature, wholly or partially, of their powers or prerogatives." At the same time, Article 135 (entitled: "Penalty for Rebellion or Insurrection.") sets out a listing of acts or particular measures which appear to fall under the rubric of rebellion or insurrection: "engaging in war against the forces of the Government, destroying property or committing serious violence, exacting contributions or diverting public funds from the lawful purpose for which they have been appropriated." Are these modalities of rebellion generally? Or are they particular modes by which those "who promote [ ], maintain [ ] or head [ ] a rebellion or insurrection" commit rebellion, or particular modes of participation in a rebellion by public officers or employees? Clearly, the scope of the legal concept of rebellion relates to the distinction between, on the one hand, the indispensable acts or ingredients of the crime of rebellion under the Revised Penal Code and, on the other hand, differing optional modes of seeking to carry out the political or social objective of the rebellion or insurrection.

The difficulty that is at once raised by any effort to examine once more even the above threshold questions is that the results of such re-examination may well be that acts which under the Hernandez doctrine are absorbed into rebellion, may be characterized as separate or discrete offenses which, as a matter of law, can either be prosecuted separately from rebellion or prosecuted under the provisions of Article 48 of the Revised Penal Code, which (both Clause 1 and Clause 2 thereof) clearly envisage the existence of at least two (2) distinct offenses. To reach such a conclusion in the case at bar, would, as far as I can see, result in colliding with the fundamental non-retroactivity principle (Article 4, Civil Code; Article 22, Revised Penal Code; both in relation to Article 8, Civil Code).

The non-retroactivity rule applies to statutes principally. But, statutes do not exist in the abstract but rather bear upon the lives of people with the specific form given them by judicial decisions interpreting their norms. Judicial decisions construing statutory norms give specific shape and content to such norms. In time, the statutory norms become encrusted with the glosses placed upon them by the courts and the glosses become integral with the norms (Cf Caltex v. Palomar, 18 SCRA 247 [1966]). Thus, while in legal theory, judicial interpretation of a statute becomes part of the law as of the date that the law was originally enacted, I believe this theory is not to be applied

rigorously where a new judicial doctrine is announced, in particular one overruling a previous existing doctrine of long standing (here, 36 years) and most specially not where the statute construed is criminal in nature and the new doctrine is more onerous for the accused than the pre-existing one (People v. Jabinal, 55 SCRA 607 [1974]; People v. Licera, 65 SCRA 270 [1975]; Gumabon v. Director of Prisons, 37 SCRA 420 [1971]). Moreover, the non-retroactivity rule whether in respect of legislative acts or judicial decisions has constitutional implications. The prevailing rule in the United States is that a judicial decision that retroactively renders an act criminal or enhances the severity of the penalty prescribed for an offense, is vulnerable to constitutional challenge based upon the rule against ex post facto laws and the due process clause (Bouie v. City of Columbia, 378 US 347,12 L. Ed. 2d 894 [1964]; Marks v. U.S., 43 US 188, 51 L. Ed. 2d 260 [1977]; Devine v. New Mexico Department of Corrections, 866 F. 2d 339 [1989]).

It is urged by the Solicitor General that the non-retroactivity principle does not present any real problem for the reason that the Hernandez doctrine was based upon Article 48, second clause, of the Revised Penal Code and not upon the first clause thereof, while it is precisely the first clause of Article 48 that the Government here invokes. It is, however, open to serious doubt whether Hernandez can reasonably be so simply and sharply characterized. And assuming the Hernandez could be so characterized, subsequent cases refer to the Hernandezdoctrine in terms which do not distinguish clearly between the first clause and the second clause of Article 48 (e.g., People v. Geronimo, 100 Phil. 90 [1956]; People v. Rodriguez, 107 Phil. 659 [1960]). Thus, it appears to me that the critical question would be whether a man of ordinary intelligence would have necessarily read or understood the Hernandez doctrine as referring exclusively to Article 48, second clause. Put in slightly different terms, the important question would be whether the new doctrine here proposed by the Government could fairly have been derived by a man of average intelligence (or counsel of average competence in the law) from an examination of Articles 134 and 135 of the Revised Penal Code as interpreted by the Court in the Hernandez and subsequent cases. To formulate the question ill these terms would almost be to compel a negative answer, especially in view of the conclusions reached by the Court and its several Members today.

Finally, there appears to be no question that the new doctrine that the Government would have us discover for the first time since the promulgation of the Revised Penal Code in 1932, would be more onerous for the respondent accused than the simple application of the Hernandez doctrine that murders which have been committed on the occasion of and in furtherance of the crime of rebellion must be deemed absorbed in the offense of simple rebellion.

I agree therefore that the information in this case must be viewed as charging only the crime of simple rebellion.

FERNAN, C.J., concurring and dissenting:

I am constrained to write this separate opinion on what seems to be a rigid adherence to the 1956 ruling of the Court. The numerous challenges to the doctrine enunciated in the case of People vs. Hernandez, 99 Phil. 515 (1956) should at once demonstrate the need to redefine the applicability of said doctrine so as to make it conformable with accepted and well-settled principles of criminal law and jurisprudence.

To my mind, the Hernandez doctrine should not be interpreted as an all-embracing authority for the rule that all common crimes committed on the occasion, or in furtherance of, or in connection with, rebellion are absorbed by the latter. To that extent, I cannot go along with the view of the majority in the instant case that 'Hernandez remains binding doctrine operating to prohibit the complexing of rebellion with any other offense committed on the occasion thereof, either as a means necessary to its commission or as an unintended effect of an activity that constitutes rebellion" (p. 9, Decision).

The Hernandez doctrine has served the purpose for which it was appealed by the Court in 1956 during the communist-inspired rebellion of the Huks. The changes in our society in the span of 34 years since then have far-reaching effects on the all-embracing applicability of the doctrine considering the emergence of alternative modes of seizing the powers of the duly constituted Government not contemplated in Articles 134 and 135 of the Revised Penal Code and their consequent effects on the lives of our people. The doctrine was good law then, but I believe that there is a certain aspect of the Hernandez doctrine that needs clarification.

With all due respect to the views of my brethren in the Court, I believe that the Court, in the instant case, should have further considered that distinction between acts or offenses which are indispensable in the commission of rebellion, on the one hand, and those acts or offenses that are merely necessary but not indispensable in the commission of rebellion, on the other. The majority of the Court is correct in adopting, albeit impliedly, the view in Hernandez case that when an offense perpetrated as a necessary means of committing another, which is an element of the latter, the resulting interlocking crimes should be considered as only one simple offense and must be deemed outside the operation of the complex crime provision (Article 48) of the Revised Penal Code. As in the case of Hernandez, the Court, however, failed in the instant case to distinguish what is indispensable from what is merely necessary in the commission of an offense, resulting thus in the rule that common crimes like murder, arson, robbery, etc. committed in the course or on the occasion of rebellion are absorbed or included in the latter as elements thereof.

The relevance of the distinction is significant, more particularly, if applied to contemporaneous events happening in our country today. Theoretically, a crime which is indispensable in the commission of another must necessarily be an element of the latter; but a crime that is merely necessary but not indispensable in the commission of another is not an element of the latter, and if and when actually committed, brings the interlocking crime within the operation of the complex crime provision (Art. 48) of the Revised Penal Code. With that distinction, common crimes committed against Government forces and property in the course of rebellion are properly considered indispensable overt acts of rebellion and are logically absorbed in it as virtual ingredients or elements thereof, but common crimes committed against the civilian population in the course or on the occasion of rebellion and in furtherance thereof, may be necessary but not indispensable in committing the latter, and may, therefore, not be considered as elements of the said crime of rebellion. To illustrate, the deaths occurring during armed confrontation or clashes between government forces and the rebels are absorbed in the rebellion, and would be those resulting from the bombing of military camps and installations, as these acts are indispensable in carrying out the rebellion. But deliberately shooting down an unarmed innocent civilian to instill fear or create chaos among the people, although done in the furtherance of the rebellion, should not be absorbed in the crime of rebellion as the felonious act is merely necessary, but not indispensable. In the latter case, Article 48 of the Revised Penal Code should apply.

The occurrence of a coup d' etat in our country as a mode of seizing the powers of the duly-constituted government by staging surprise attacks or occupying centers of powers, of which this Court should take judicial notice, has introduced a new dimension to the interpretation of the provisions on rebellion and insurrection in the Revised Penal Code. Generally, as a mode of seizing the powers of the duly constituted government, it falls within the contemplation of rebellion under the Revised Penal Code, but, strictly construed, a coup d'etat per se is a class by itself. The manner of its execution and the extent and magnitude of its effects on the lives of the people distinguish a coup d'etat from the traditional definition and modes of commission attached by the Revised Penal Code to the crime of rebellion as applied by the Court to the communist-inspired rebellion of the 1950's. A coup d'etat may be executed successfully without its perpetrators resorting to the commission of other serious crimes such as murder, arson, kidnapping, robbery, etc. because of the element of surprise and the precise timing of its execution. In extreme cases where murder, arson, robbery, and other common crimes are committed on the occasion of a coup d' etat, the distinction referred to above on what is necessary and what is indispensable in the commission of the coup d'etat should be painstakingly considered as the Court should have done in the case of herein petitioners.

I concur in the result insofar as the other issues are resolved by the Court but I take exception to the vote of the majority on the broad application of the Hernandez doctrine.

BIDIN, J., concurring and dissenting:

I concur with the majority opinion except as regards the dispositive portion thereof which orders the remand of the case to the respondent judge for further proceedings to fix the amount of bail to be posted by the petitioner.

I submit that the proceedings need not be remanded to the respondent judge for the purpose of fixing bail since we have construed the indictment herein as charging simple rebellion, an offense which is bailable. Consequently,habeas corpus is the proper remedy available to petitioner as an accused who had been charged with simple rebellion, a bailable offense but who had been denied his right to bail by the respondent judge in violation of petitioner's constitutional right to bail. In view thereof, the responsibility of fixing the amount of bail and approval thereof when filed, devolves upon us, if complete relief is to be accorded to petitioner in the instant proceedings.

It is indubitable that before conviction, admission to bail is a matter of right to the defendant, accused before the Regional Trial Court of an offense less than capital (Section 13 Article III, Constitution and Section 3, Rule 114). Petitioner is, before Us, on a petition for habeas corpus praying, among others, for his provisional release on bail. Since the offense charged (construed as simple rebellion) admits of bail, it is incumbent upon us m the exercise of our jurisdiction over the petition for habeas corpus (Section 5 (1), Article VIII, Constitution; Section 2, Rule 102), to grant petitioner his right to bail and having admitted him to bail, to fix the amount thereof in such sums as the court deems reasonable. Thereafter, the rules require that "the proceedings together with the bond" shall forthwith be certified to the respondent trial court (Section 14, Rule 102).

Accordingly, the cash bond in the amount of P 100,000.00 posted by petitioner for his provisional release pursuant to our resolution dated March 6, 1990 should now be deemed and admitted as his bail bond for his provisional release in the case (simple rebellion) pending before the respondent judge, without necessity of a remand for

further proceedings, conditioned for his (petitioner's) appearance before the trial court to abide its order or judgment in the said case.

SARMIENTO, J., concurring and dissenting:

I agree that People v. Hernandez 1 should abide. More than three decades after which it was penned, it has firmly settled in the tomes of our jurisprudence as correct doctrine.

As Hernandez put it, rebellion means "engaging m war against the forces of the government," 2 which implies "resort to arms, requisition of property and services, collection of taxes and contributions, restraint of liberty, damage to property, physical injuries and loss of life, and the hunger, illness and unhappiness that war leaves in its wake. ..." 3whether committed in furtherance, of as a necessary means for the commission, or in the course, of rebellion. To say that rebellion may be complexed with any other offense, in this case murder, is to play into a contradiction in terms because exactly, rebellion includes murder, among other possible crimes.

I also agree that the information may stand as an accusation for simple rebellion. Since the acts complained of as constituting rebellion have been embodied in the information, mention therein of murder as a complexing offense is a surplusage, because in any case, the crime of rebellion is left fully described. 4

At any rate, the government need only amend the information by a clerical correction, since an amendment will not alter its substance.

I dissent, however, insofar as the majority orders the remand of the matter of bail to the lower court. I take it that when we, in our Resolution of March 6, 1990, granted the petitioner "provisional liberty" upon the filing of a bond of P100,000.00, we granted him bail. The fact that we gave him "provisional liberty" is in my view, of no moment, because bail means provisional liberty. It will serve no useful purpose to have the trial court hear the incident again when we ourselves have been satisfied that the petitioner is entitled to temporary freedom.

PADILLA, J., dissenting:

I concur in the majority opinion insofar as it holds that the ruling in People vs. Hernandez, 99 Phil. 515 "remains binding doctrine operating to prohibit the complexing of rebellion with any other offense committed on the occasion thereof, either as a means necessary to its commission or as an unintended effect of an activity that constitutes rebellion."

I dissent, however, from the majority opinion insofar as it holds that the information in question, while charging the complex crime of rebellion with murder and multiple frustrated murder, "is to be read as charging simple rebellion."

The present cases are to be distinguished from the Hernandez case in at least one (1) material respect. In theHernandez case, this Court was confronted with an appealed

case, i.e., Hernandez had been convicted by the trial court of the complex crime of rebellion with murder, arson and robbery, and his plea to be released on bail before the Supreme Court, pending appeal, gave birth to the now celebrated Hernandez doctrine that the crime of rebellion complexed with murder, arson and robbery does not exist. In the present cases, on the other hand, the Court is confronted with an original case, i.e., where an information has been recently filed in the trial court and the petitioners have not even pleaded thereto.

Furthermore, the Supreme Court, in the Hernandez case, was "ground-breaking" on the issue of whether rebellion can be complexed with murder, arson, robbery, etc. In the present cases, on the other hand, the prosecution and the lower court, not only had the Hernandez doctrine (as case law), but Executive Order No. 187 of President Corazon C. Aquino dated 5 June 1987 (as statutory law) to bind them to the legal proposition that the crime of rebellion complexed with murder, and multiple frustrated murder does not exist.

And yet, notwithstanding these unmistakable and controlling beacon lights-absent when this Court laid down theHernandez doctrine-the prosecution has insisted in filing, and the lower court has persisted in hearing, an information charging the petitioners with rebellion complexed with murder an multiple frustrated murder. That information is clearly a nullity and plainly void ab initio. Its head should not be allowed to surface. As a nullity in substantive law, it charges nothing; it has given rise to nothing. The warrants of arrest issued pursuant thereto are as null and void as the information on which they are anchored. And, since the entire question of the information's validity is before the Court in these habeas corpus cases, I venture to say that the information is fatally defective,even under procedural law, because it charges more than one (1) offense (Sec. 13, Rule 110, Rules of Court).

I submit then that it is not for this Court to energize a dead and, at best, fatally decrepit information by labelling or "baptizing" it differently from what it announces itself to be. The prosecution must file an entirely new and properinformation, for this entire exercise to merit the serious consideration of the courts.

ACCORDINGLY, I vote to GRANT the petitions, QUASH the warrants of arrest, and ORDER the information for rebellion complexed with murder and multiple frustrated murder in Criminal Case Nos. 90-10941, RTC of Quezon City, DISMISSED.

Consequently, the petitioners should be ordered permanently released and their bails cancelled.

Paras, J., concurs.

Separate Opinions

MELENCIO-HERRERA, J., concurring:

I join my colleagues in holding that the Hernandez doctrine, which has been with us for the past three decades, remains good law and, thus, should remain undisturbed, despite periodic challenges to it that, ironically, have only served to strengthen its pronouncements.

I take exception to the view, however, that habeas corpus was not the proper remedy.

Had the Information filed below charged merely the simple crime of Rebellion, that proposition could have been plausible. But that Information charged Rebellion complexed with Murder and Multiple Frustrated Murder, a crime which does not exist in our statute books. The charge was obviously intended to make the penalty for the most serious offense in its maximum period imposable upon the offender pursuant to Article 48 of the Revised Penal Code. Thus, no bail was recommended in the Information nor was any prescribed in the Warrant of Arrest issued by the Trial Court.

Under the attendant circumstances, therefore, to have filed a Motion to Quash before the lower Court would not have brought about the speedy relief from unlawful restraint that petitioner was seeking. During the pendency of said Motion before the lower Court, petitioner could have continued to languish in detention. Besides, the Writ ofHabeas Corpus may still issue even if another remedy, which is less effective, may be availed of (Chavez vs. Court of Appeals, 24 SCRA 663).

It is true that habeas corpus would ordinarily not he when a person is under custody by virtue of a process issued by a Court.

The Court, however, must have jurisdiction to issue the process. In this case, the Court below must be deemed to have been ousted of jurisdiction when it illegally curtailed petitioner's liberty. Habeas corpus is thus available.

The writ of habeas corpus is available to relieve persons from unlawful restraint. But where the detention or confinement is the result of a process issued by the court or judge or by virtue of a judgment or sentence, the writ ordinarily cannot be availed of. It may still be invoked though if the process, judgment or sentence proceeded from a court or tribunal the jurisdiction of which may be assailed. Even if it had authority to act at the outset, it is now the prevailing doctrine that a deprivation of constitutional right, if shown to exist, would oust it of jurisdiction. In such a case, habeas corpus could be relied upon to regain one's liberty (Celeste vs. People, 31 SCRA 391) [Emphasis emphasis].

The Petition for habeas corpus was precisely premised on the violation of petitioner's constitutional right to bail inasmuch as rebellion, under the present state of the law, is a bailable offense and the crime for which petitioner stands accused of and for which he was denied bail is non-existent in law.

While litigants should, as a rule, ascend the steps of the judicial ladder, nothing should stop this Court from taking cognizance of petitions brought before it raising urgent constitutional issues, any procedural flaw notwithstanding.

The rules on habeas corpus are to be liberally construed (Ganaway v. Quilen, 42 Phil. 805), the writ of habeas corpus being the fundamental instrument for safeguarding individual freedom against arbitrary and lawless state action. The scope and flexibility of the writ-its capacity to reach all manner of illegal detention-its ability to cut through barriers of form and procedural mazes-have always been emphasized and jealously guarded by courts and lawmakers (Gumabon v. Director of Bureau of Prisons, 37 SCRA 420) [emphasis supplied].

The proliferation of cases in this Court, which followed in the wake of this Petition, was brought about by the insistence of the prosecution to charge the crime of Rebellion complexed with other common offenses notwithstanding the fact that this Court had not yet ruled on the validity of that charge and had granted provisional liberty to petitioner.

If, indeed, it is desired to make the crime of Rebellion a capital offense (now punishable by reclusion perpetua), the remedy lies in legislation. But Article 142-A 1 of the Revised Penal Code, along with P.D. No. 942, were repealed, for being "repressive," by EO No. 187 on 5 June 1987. EO 187 further explicitly provided that Article 134 (and others enumerated) of the Revised Penal Code was "restored to its full force and effect as it existed before said amendatory decrees." Having been so repealed, this Court is bereft of power to legislate into existence, under the guise of re-examining a settled doctrine, a "creature unknown in law"- the complex crime of Rebellion with Murder. The remand of the case to the lower Court for further proceedings is in order. The Writ of Habeas Corpus has served its purpose.

GUTIERREZ, JR., J., concurring:

I join the Court's decision to grant the petition. In reiterating the rule that under existing law rebellion may not be complexed with murder, the Court emphasizes that it cannot legislate a new-crime into existence nor prescribe a penalty for its commission. That function is exclusively for Congress.

I write this separate opinion to make clear how I view certain issues arising from these cases, especially on how the defective informations filed by the prosecutors should have been treated.

I agree with the ponente that a petition for habeas corpus is ordinarily not the proper procedure to assert the right to bail. Under the special circumstances of this case, however, the petitioners had no other recourse. They had to come to us.

First, the trial court was certainly aware of the decision in People v. Hernandez, 99 Phil. 515 (1956) that there is no such crime in our statute books as rebellion complexed with murder, that murder committed in connection with a rebellion is absorbed by the crime of rebellion, and that a resort to arms resulting in the destruction of life or property constitutes neither two or more offenses nor a complex crime but one crime-rebellion pure and simple.

Second, Hernandez has been the law for 34 years. It has been reiterated in equally sensational cases. All lawyers and even law students are aware of the doctrine. Attempts to have the doctrine re-examined have been consistently rejected by this Court.

Third, President Marcos through the use of his then legislative powers, issued Pres. Decree 942, thereby installing the new crime of rebellion complexed with offenses like murder where graver penalties are imposed by law. However, President Aquino using her then legislative powers expressly repealed PD 942 by issuing Exec. Order 187. She thereby erased the crime of rebellion complexed with murder and made it clear that theHernandez doctrine remains the controlling rule. The prosecution has not explained why it insists on resurrecting an offense expressly wiped out by the President. The prosecution, in effect, questions the action of the President in repealing a repressive decree, a decree which, according to the repeal order, is violative of human rights.

Fourth, any re-examination of the Hernandez doctrine brings the ex post facto principle into the picture. Decisions of this Court form part of our legal system. Even if we declare that rebellion may be complexed with murder, our declaration can not be made retroactive where the effect is to imprison a person for a crime which did not exist until the Supreme Court reversed itself.

And fifth, the attempts to distinguish this case from the Hernandez case by stressing that the killings charged in the information were committed "on the occasion of, but not a necessary means for, the commission of rebellion" result in outlandish consequences and ignore the basic nature of rebellion. Thus, under the prosecution theory a bomb dropped on PTV-4 which kills government troopers results in simple rebellion because the act is a necessary means to make the rebellion succeed. However, if the same bomb also kills some civilians in the neighborhood, the dropping of the bomb becomes rebellion complexed with murder because the killing of civilians is not necessary for the success of a rebellion and, therefore, the killings are only "on the occasion of but not a 'necessary means for' the commission of rebellion.

This argument is puerile.

The crime of rebellion consists of many acts. The dropping of one bomb cannot be isolated as a separate crime of rebellion. Neither should the dropping of one hundred bombs or the firing of thousands of machine gun bullets be broken up into a hundred or thousands of separate offenses, if each bomb or each bullet happens to result in the destruction of life and property. The same act cannot be punishable by separate penalties depending on what strikes the fancy of prosecutors-punishment for the killing of soldiers or retribution for the deaths of civilians. The prosecution also loses sight of the regrettable fact that in total war and in rebellion the killing of civilians, the laying waste of civilian economies, the massacre of innocent people, the blowing up of passenger airplanes, and other acts of terrorism are all used by those engaged in rebellion. We cannot and should not try to ascertain the intent of rebels for each single act unless the act is plainly not connected to the rebellion. We cannot use Article 48 of the Revised Penal Code in lieu of still-to- be-enacted legislation. The killing of civilians during a rebel attack on military facilities furthers the rebellion and is part of the rebellion.

The trial court was certainly aware of all the above considerations. I cannot understand why the trial Judge issued the warrant of arrest which categorically states therein that the accused was not entitled to bail. The petitioner was compelled to come to us so he would not be arrested without bail for a nonexistent crime. The trial court forgot to apply an established doctrine of the Supreme Court. Worse, it issued a warrant which reversed 34 years of established procedure based on a well-known Supreme Court ruling.

All courts should remember that they form part of an independent judicial system; they do not belong to the prosecution service. A court should never play into the hands of the prosecution and blindly comply with its erroneous manifestations. Faced with an information charging a manifestly non-existent crime, the duty of a trial court is to throw it out. Or, at the very least and where possible, make it conform to the law.

A lower court cannot re-examine and reverse a decision of the Supreme Court especially a decision consistently followed for 34 years. Where a Judge disagrees with a Supreme Court ruling, he is free to express his reservations in the body of his decision, order, or resolution. However, any judgment he renders, any order he prescribes, and any processes he issues must follow the Supreme Court precedent. A trial court has no jurisdiction to reverse or ignore precedents of the Supreme Court. In

this particular case, it should have been the Solicitor General coming to this Court to question the lower court's rejection of the application for a warrant of arrest without bail. It should have been the Solicitor-General provoking the issue of re-examination instead of the petitioners asking to be freed from their arrest for a non-existent crime.

The principle bears repeating:

Respondent Court of Appeals really was devoid of any choice at all. It could not have ruled in any other way on the legal question raised. This Tribunal having spoken, its duty was to obey. It is as simple as that. There is relevance to this excerpt from Barrera v. Barrera. (L-31589, July 31, 1970, 34 SCRA 98) 'The delicate task of ascertaining the significance that attaches to a constitutional or statutory provision, an executive order, a procedural norm or a municipal ordinance is committed to the judiciary. It thus discharges a role no less crucial than that appertaining to the other two departments in the maintenance of the rule of law. To assure stability in legal relations and avoid confusion, it has to speak with one voice. It does so with finality, logically and rightly, through the highest judicial organ, this Court. What it says then should be definitive and authoritative, binding on those occupying the lower ranks in the judicial hierarchy. They have to defer and to submit.' (Ibid, 107. The opinion of Justice Laurel in People v. Vera, 65 Phil. 56 [1937] was cited). The ensuing paragraph of the opinion in Barrera further emphasizes the point: Such a thought was reiterated in an opinion of Justice J.B.L. Reyes and further emphasized in these words: 'Judge Gaudencio Cloribel need not be reminded that the Supreme Court, by tradition and in our system of judicial administration, has the last word on what the law is; it is the final arbiter of any justifiable controversy. There is only one Supreme Court from whose decisions all other courts should take their bearings. (Ibid. Justice J.B.L. Reyes spoke thus in Albert v. Court of First Instance of Manila (Br. VI), L-26364, May 29, 1968, 23 SCRA 948, 961. (Tugade v. Court of Appeals, 85 SCRA 226 [1978]. See also Albert v. Court of First Instance, 23 SCRA 948 [1968] and Vir-Jen Shipping and Marine Services, Inc. v. NLRC, 125 SCRA 577 [1983])

I find the situation in Spouses Panlilio v. Prosecutors Fernando de Leon, et al. even more inexplicable. In the case of the Panlilios, any probable cause to commit the non- existent crime of rebellion complexed with murder exists only in the minds of the prosecutors, not in the records of the case.

I have gone over the records and pleadings furnished to the members of the Supreme Court. I listened intently to the oral arguments during the hearing and it was quite apparent that the constitutional requirement of probable cause was not satisfied. In fact, in answer to my query for any other proofs to support the issuance of a warrant of arrest, the answer was that the evidence would be submitted in due time to the trial court.

The spouses Panlilio and one parent have been in the restaurant business for decades. Under the records of these petitions, any restaurant owner or hotel manager who serves food to rebels is a co-conspirator in the rebellion. The absurdity of this proposition is apparent if we bear in mind that rebels ride in buses and jeepneys, eat meals in rural houses when mealtime finds them in the vicinity, join weddings, fiestas, and other parties, play basketball with barrio youths, attend masses and church

services and otherwise mix with people in various gatherings. Even if the hosts recognize them to be rebels and fail to shoo them away, it does not necessarily follow that the former are co-conspirators in a rebellion.

The only basis for probable cause shown by the records of the Panlilio case is the alleged fact that the petitioners served food to rebels at the Enrile household and a hotel supervisor asked two or three of their waiters, without reason, to go on a vacation. Clearly, a much, much stronger showing of probable cause must be shown.

In Salonga v. Cruz Paño, 134 SCRA 438 (1985), then Senator Salonga was charged as a conspirator in the heinous bombing of innocent civilians because the man who planted the bomb had, sometime earlier, appeared in a group photograph taken during a birthday party in the United States with the Senator and other guests. It was a case of conspiracy proved through a group picture. Here, it is a case of conspiracy sought to proved through the catering of food.

The Court in Salonga stressed:

The purpose of a preliminary investigation is to secure the innocent against hasty, malicious and oppressive prosecution, and to protect him from an open and public accusation of crime, from the trouble, expense and anxiety of a public trial, and also to protect the state from useless and expensive trials. (Trocio v. Manta, 118 SCRA 241; citing Hashimn v. Boncan, 71 Phil. 216). The right to a preliminary investigation is a statutory grant, and to withhold it would be to transgress constitutional due process. (See People v. Oandasa, 25 SCRA 277) However, in order to satisfy the due process clause it is not enough that the preliminary investigation is conducted in the sense of making sure that a transgressor shall not escape with impunity. A preliminary investigation serves not only the purposes of the State. More important, it is a part of the guarantees of freedom and fair play which are birthrights of all who live in our country. It is, therefore, imperative upon the fiscal or the judge as the case may be, to relieve the accused from the pain of going through a trial once it is ascertained that the evidence is insufficient to sustain a prima facie case or that no probable cause exists to form a sufficient belief as to the guilt of the accused. Although there is no general formula or fixed rule for the determination of probable cause since the same must be decided in the light of the conditions obtaining in given situations and its existence depends to a large degree upon the finding or opinion of the judge conducting the examination, such a finding should not disregard the facts before the judge nor run counter to the clear dictates of reason (See La Chemise Lacoste, S.A. v. Fernandez, 129 SCRA 391). The judge or fiscal, therefore, should not go on with the prosecution in the hope that some credible evidence might later turn up during trial for this would be a flagrant violation of a basic right which the courts are created to uphold. It bears repeating that the judiciary lives up to its mission by vitalizing and not denigrating constitutional rights. So it has been before. It should continue to be so. (id., pp. 461- 462)

Because of the foregoing, I take exception to that part of the ponencia which will read the informations as charging simple rebellion. This case did not arise from innocent error. If an information charges murder but its contents show only the ingredients of

homicide, the Judge may rightly read it as charging homicide. In these cases, however, there is a deliberate attempt to charge the petitioners for an offense which this Court has ruled as non-existent. The prosecution wanted Hernandez to be reversed. Since the prosecution has filed informations for a crime which, under our rulings, does not exist, those informations should be treated as null and void. New informations charging the correct offense should be filed. And in G.R. No. 92164, an extra effort should be made to see whether or not the Principle in Salonga v. Cruz Patio, et al. (supra) has been violated.

The Court is not, in any way, preventing the Government from using more effective weapons to suppress rebellion. If the Government feels that the current situation calls for the imposition of more severe penalties like death or the creation of new crimes like rebellion complexed with murder, the remedy is with Congress, not the courts.

I, therefore, vote to GRANT the petitions and to ORDER the respondent court to DISMISS the void informations for a non-existent crime.

FELICIANO, J., concurring:

I concur in the result reached by the majority of the Court.

I believe that there are certain aspects of the Hernandez doctrine that, as an abstract question of law, could stand reexamination or clarification. I have in mind in particular matters such as the correct or appropriate relationship between Article 134 and Article 135 of the Revised Penal Code. This is a matter which relates to the legal concept of rebellion in our legal system. If one examines the actual terms of Article 134 (entitled: "Rebellion or Insurrection-How Committed"), it would appear that this Article specifies both the overt acts and the criminal purpose which, when put together, would constitute the offense of rebellion. Thus, Article 134 states that "the crime of rebellion is committed by rising publicly and taking arms against the Government "(i.e., the overt acts comprising rebellion), "for the purpose of (i.e., the specific criminal intent or political objective) removing from the allegiance to said government or its laws the territory of the Republic of the Philippines or any part thereof, or any body of land, naval or other armed forces, or depriving the Chief Executive or the Legislature, wholly or partially, of their powers or prerogatives." At the same time, Article 135 (entitled: "Penalty for Rebellion or Insurrection.") sets out a listing of acts or particular measures which appear to fall under the rubric of rebellion or insurrection: "engaging in war against the forces of the Government, destroying property or committing serious violence, exacting contributions or diverting public funds from the lawful purpose for which they have been appropriated." Are these modalities of rebellion generally? Or are they particular modes by which those "who promote [ ], maintain [ ] or head [ ] a rebellion or insurrection" commit rebellion, or particular modes of participation in a rebellion by public officers or employees? Clearly, the scope of the legal concept of rebellion relates to the distinction between, on the one hand, the indispensable acts or ingredients of the crime of rebellion under the Revised Penal Code and, on the other hand, differing optional modes of seeking to carry out the political or social objective of the rebellion or insurrection.

The difficulty that is at once raised by any effort to examine once more even the above threshold questions is that the results of such re-examination may well be that acts which under the Hernandez doctrine are absorbed into rebellion, may be characterized as separate or discrete offenses which, as a matter of law, can either be prosecuted separately from rebellion or prosecuted under the provisions of Article 48

of the Revised Penal Code, which (both Clause 1 and Clause 2 thereof) clearly envisage the existence of at least two (2) distinct offenses. To reach such a conclusion in the case at bar, would, as far as I can see, result in colliding with the fundamental non-retroactivity principle (Article 4, Civil Code; Article 22, Revised Penal Code; both in relation to Article 8, Civil Code).

The non-retroactivity rule applies to statutes principally. But, statutes do not exist in the abstract but rather bear upon the lives of people with the specific form given them by judicial decisions interpreting their norms. Judicial decisions construing statutory norms give specific shape and content to such norms. In time, the statutory norms become encrusted with the glosses placed upon them by the courts and the glosses become integral with the norms (Cf Caltex v. Palomar, 18 SCRA 247 [1966]). Thus, while in legal theory, judicial interpretation of a statute becomes part of the law as of the date that the law was originally enacted, I believe this theory is not to be applied rigorously where a new judicial doctrine is announced, in particular one overruling a previous existing doctrine of long standing (here, 36 years) and most specially not where the statute construed is criminal in nature and the new doctrine is more onerous for the accused than the pre-existing one (People v. Jabinal, 55 SCRA 607 [1974]; People v. Licera, 65 SCRA 270 [1975]; Gumabon v. Director of Prisons, 37 SCRA 420 [1971]). Moreover, the non-retroactivity rule whether in respect of legislative acts or judicial decisions has constitutional implications. The prevailing rule in the United States is that a judicial decision that retroactively renders an act criminal or enhances the severity of the penalty prescribed for an offense, is vulnerable to constitutional challenge based upon the rule against ex post facto laws and the due process clause (Bouie v. City of Columbia, 378 US 347,12 L. Ed. 2d 894 [1964]; Marks v. U.S., 43 US 188, 51 L. Ed. 2d 260 [1977]; Devine v. New Mexico Department of Corrections, 866 F. 2d 339 [1989]).

It is urged by the Solicitor General that the non-retroactivity principle does not present any real problem for the reason that the Hernandez doctrine was based upon Article 48, second clause, of the Revised Penal Code and not upon the first clause thereof, while it is precisely the first clause of Article 48 that the Government here invokes. It is, however, open to serious doubt whether Hernandez can reasonably be so simply and sharply characterized. And assuming the Hernandez could be so characterized, subsequent cases refer to the Hernandezdoctrine in terms which do not distinguish clearly between the first clause and the second clause of Article 48 (e.g., People v. Geronimo, 100 Phil. 90 [1956]; People v. Rodriguez, 107 Phil. 659 [1960]). Thus, it appears to me that the critical question would be whether a man of ordinary intelligence would have necessarily read or understood the Hernandez doctrine as referring exclusively to Article 48, second clause. Put in slightly different terms, the important question would be whether the new doctrine here proposed by the Government could fairly have been derived by a man of average intelligence (or counsel of average competence in the law) from an examination of Articles 134 and 135 of the Revised Penal Code as interpreted by the Court in the Hernandez and subsequent cases. To formulate the question ill these terms would almost be to compel a negative answer, especially in view of the conclusions reached by the Court and its several Members today.

Finally, there appears to be no question that the new doctrine that the Government would have us discover for the first time since the promulgation of the Revised Penal Code in 1932, would be more onerous for the respondent accused than the simple application of the Hernandez doctrine that murders which have been committed on the occasion of and in furtherance of the crime of rebellion must be deemed absorbed in the offense of simple rebellion.

I agree therefore that the information in this case must be viewed as charging only the crime of simple rebellion.


I am constrained to write this separate opinion on what seems to be a rigid adherence to the 1956 ruling of the Court. The numerous challenges to the doctrine enunciated in the case of People vs. Hernandez, 99 Phil. 515 (1956) should at once demonstrate the need to redefine the applicability of said doctrine so as to make it conformable with accepted and well-settled principles of criminal law and jurisprudence.

To my mind, the Hernandez doctrine should not be interpreted as an all-embracing authority for the rule that all common crimes committed on the occasion, or in furtherance of, or in connection with, rebellion are absorbed by the latter. To that extent, I cannot go along with the view of the majority in the instant case that 'Hernandez remains binding doctrine operating to prohibit the complexing of rebellion with any other offense committed on the occasion thereof, either as a means necessary to its commission or as an unintended effect of an activity that constitutes rebellion" (p. 9, Decision).

The Hernandez doctrine has served the purpose for which it was appealed by the Court in 1956 during the communist-inspired rebellion of the Huks. The changes in our society in the span of 34 years since then have far-reaching effects on the all-embracing applicability of the doctrine considering the emergence of alternative modes of seizing the powers of the duly constituted Government not contemplated in Articles 134 and 135 of the Revised Penal Code and their consequent effects on the lives of our people. The doctrine was good law then, but I believe that there is a certain aspect of the Hernandez doctrine that needs clarification.

With all due respect to the views of my brethren in the Court, I believe that the Court, in the instant case, should have further considered that distinction between acts or offenses which are indispensable in the commission of rebellion, on the one hand, and those acts or offenses that are merely necessary but not indispensable in the commission of rebellion, on the other. The majority of the Court is correct in adopting, albeit impliedly, the view in Hernandez case that when an offense perpetrated as a necessary means of committing another, which is an element of the latter, the resulting interlocking crimes should be considered as only one simple offense and must be deemed outside the operation of the complex crime provision (Article 48) of the Revised Penal Code. As in the case of Hernandez, the Court, however, failed in the instant case to distinguish what is indispensable from what is merely necessary in the commission of an offense, resulting thus in the rule that common crimes like murder, arson, robbery, etc. committed in the course or on the occasion of rebellion are absorbed or included in the latter as elements thereof.

The relevance of the distinction is significant, more particularly, if applied to contemporaneous events happening in our country today. Theoretically, a crime which is indispensable in the commission of another must necessarily be an element of the latter; but a crime that is merely necessary but not indispensable in the commission of another is not an element of the latter, and if and when actually committed, brings the interlocking crime within the operation of the complex crime provision (Art. 48) of the Revised Penal Code. With that distinction, common crimes committed against Government forces and property in the course of rebellion are properly considered indispensable overt acts of rebellion and are logically absorbed in it as virtual

ingredients or elements thereof, but common crimes committed against the civilian population in the course or on the occasion of rebellion and in furtherance thereof, may be necessary but not indispensable in committing the latter, and may, therefore, not be considered as elements of the said crime of rebellion. To illustrate, the deaths occurring during armed confrontation or clashes between government forces and the rebels are absorbed in the rebellion, and would be those resulting from the bombing of military camps and installations, as these acts are indispensable in carrying out the rebellion. But deliberately shooting down an unarmed innocent civilian to instill fear or create chaos among the people, although done in the furtherance of the rebellion, should not be absorbed in the crime of rebellion as the felonious act is merely necessary, but not indispensable. In the latter case, Article 48 of the Revised Penal Code should apply.

The occurrence of a coup d' etat in our country as a mode of seizing the powers of the duly-constituted government by staging surprise attacks or occupying centers of powers, of which this Court should take judicial notice, has introduced a new dimension to the interpretation of the provisions on rebellion and insurrection in the Revised Penal Code. Generally, as a mode of seizing the powers of the duly constituted government, it falls within the contemplation of rebellion under the Revised Penal Code, but, strictly construed, a coup d'etat per se is a class by itself. The manner of its execution and the extent and magnitude of its effects on the lives of the people distinguish a coup d'etat from the traditional definition and modes of commission attached by the Revised Penal Code to the crime of rebellion as applied by the Court to the communist-inspired rebellion of the 1950's. A coup d'etat may be executed successfully without its perpetrators resorting to the commission of other serious crimes such as murder, arson, kidnapping, robbery, etc. because of the element of surprise and the precise timing of its execution. In extreme cases where murder, arson, robbery, and other common crimes are committed on the occasion of a coup d' etat, the distinction referred to above on what is necessary and what is indispensable in the commission of the coup d'etat should be painstakingly considered as the Court should have done in the case of herein petitioners.

I concur in the result insofar as the other issues are resolved by the Court but I take exception to the vote of the majority on the broad application of the Hernandez doctrine.

BIDIN, J., concurring and dissenting:

I concur with the majority opinion except as regards the dispositive portion thereof which orders the remand of the case to the respondent judge for further proceedings to fix the amount of bail to be posted by the petitioner.

I submit that the proceedings need not be remanded to the respondent judge for the purpose of fixing bail since we have construed the indictment herein as charging simple rebellion, an offense which is bailable. Consequently,habeas corpus is the proper remedy available to petitioner as an accused who had been charged with simple rebellion, a bailable offense but who had been denied his right to bail by the respondent judge in violation of petitioner's constitutional right to bail. In view thereof, the responsibility of fixing the amount of bail and approval thereof when filed, devolves upon us, if complete relief is to be accorded to petitioner in the instant proceedings.

It is indubitable that before conviction, admission to bail is a matter of right to the defendant, accused before the Regional Trial Court of an offense less than capital (Section 13 Article III, Constitution and Section 3, Rule 114). Petitioner is, before Us, on a petition for habeas corpus praying, among others, for his provisional release on

bail. Since the offense charged (construed as simple rebellion) admits of bail, it is incumbent upon us m the exercise of our jurisdiction over the petition for habeas corpus (Section 5 (1), Article VIII, Constitution; Section 2, Rule 102), to grant petitioner his right to bail and having admitted him to bail, to fix the amount thereof in such sums as the court deems reasonable. Thereafter, the rules require that "the proceedings together with the bond" shall forthwith be certified to the respondent trial court (Section 14, Rule 102).

Accordingly, the cash bond in the amount of P 100,000.00 posted by petitioner for his provisional release pursuant to our resolution dated March 6, 1990 should now be deemed and admitted as his bail bond for his provisional release in the case (simple rebellion) pending before the respondent judge, without necessity of a remand for further proceedings, conditioned for his (petitioner's) appearance before the trial court to abide its order or judgment in the said case.

SARMIENTO, J., concurring and dissenting:

I agree that People v. Hernandez 1 should abide. More than three decades after which it was penned, it has firmly settled in the tomes of our jurisprudence as correct doctrine.

As Hernandez put it, rebellion means "engaging m war against the forces of the government," 2 which implies "resort to arms, requisition of property and services, collection of taxes and contributions, restraint of liberty, damage to property, physical injuries and loss of life, and the hunger, illness and unhappiness that war leaves in its wake. ..." 3whether committed in furtherance, of as a necessary means for the commission, or in the course, of rebellion. To say that rebellion may be complexed with any other offense, in this case murder, is to play into a contradiction in terms because exactly, rebellion includes murder, among other possible crimes.

I also agree that the information may stand as an accusation for simple rebellion. Since the acts complained of as constituting rebellion have been embodied in the information, mention therein of murder as a complexing offense is a surplusage, because in any case, the crime of rebellion is left fully described. 4

At any rate, the government need only amend the information by a clerical correction, since an amendment will not alter its substance.

I dissent, however, insofar as the majority orders the remand of the matter of bail to the lower court. I take it that when we, in our Resolution of March 6, 1990, granted the petitioner "provisional liberty" upon the filing of a bond of P100,000.00, we granted him bail. The fact that we gave him "provisional liberty" is in my view, of no moment, because bail means provisional liberty. It will serve no useful purpose to have the trial court hear the incident again when we ourselves have been satisfied that the petitioner is entitled to temporary freedom.

PADILLA, J., dissenting:

I concur in the majority opinion insofar as it holds that the ruling in People vs. Hernandez, 99 Phil. 515 "remains binding doctrine operating to prohibit the complexing of rebellion with any other offense committed on the occasion thereof, either as a means necessary to its commission or as an unintended effect of an activity that constitutes rebellion."

I dissent, however, from the majority opinion insofar as it holds that the information in question, while charging the complex crime of rebellion with murder and multiple frustrated murder, "is to be read as charging simple rebellion."

The present cases are to be distinguished from the Hernandez case in at least one (1) material respect. In theHernandez case, this Court was confronted with an appealed case, i.e., Hernandez had been convicted by the trial court of the complex crime of rebellion with murder, arson and robbery, and his plea to be released on bail before the Supreme Court, pending appeal, gave birth to the now celebrated Hernandez doctrine that the crime of rebellion complexed with murder, arson and robbery does not exist. In the present cases, on the other hand, the Court is confronted with an original case, i.e., where an information has been recently filed in the trial court and the petitioners have not even pleaded thereto.

Furthermore, the Supreme Court, in the Hernandez case, was "ground-breaking" on the issue of whether rebellion can be complexed with murder, arson, robbery, etc. In the present cases, on the other hand, the prosecution and the lower court, not only had the Hernandez doctrine (as case law), but Executive Order No. 187 of President Corazon C. Aquino dated 5 June 1987 (as statutory law) to bind them to the legal proposition that the crime of rebellion complexed with murder, and multiple frustrated murder does not exist.

And yet, notwithstanding these unmistakable and controlling beacon lights-absent when this Court laid down theHernandez doctrine-the prosecution has insisted in filing, and the lower court has persisted in hearing, an information charging the petitioners with rebellion complexed with murder an multiple frustrated murder. That information is clearly a nullity and plainly void ab initio. Its head should not be allowed to surface. As a nullity in substantive law, it charges nothing; it has given rise to nothing. The warrants of arrest issued pursuant thereto are as null and void as the information on which they are anchored. And, since the entire question of the information's validity is before the Court in these habeas corpus cases, I venture to say that the information is fatally defective,even under procedural law, because it charges more than one (1) offense (Sec. 13, Rule 110, Rules of Court).

I submit then that it is not for this Court to energize a dead and, at best, fatally decrepit information by labelling or "baptizing" it differently from what it announces itself to be. The prosecution must file an entirely new and properinformation, for this entire exercise to merit the serious consideration of the courts.

ACCORDINGLY, I vote to GRANT the petitions, QUASH the warrants of arrest, and ORDER the information for rebellion complexed with murder and multiple frustrated murder in Criminal Case Nos. 90-10941, RTC of Quezon City, DISMISSED.

Consequently, the petitioners should be ordered permanently released and their bails cancelled.

Paras, J., concurs.

Footnotes

1 99 Phil. 515 (1956).

2 People vs. Lava, 28 SCRA 72 (1956); People vs. Geronimo, 100 Phil. 90 (1956); People vs. Romagosa, 103 Phil. 20 (1958); and People vs. Rodriguez, 107 Phil. 659 (1960).

3 Rollo, G.R. No. 92163, pp. 32-34.

4 Rollo, G.R. No. 92163, pp. 34 et seq.

5 Rollo, G.R. No. 92163, p. 26.

6 Rollo, G.R. No. 92163, pp. 305-359.

7 Originally a petition for certiorari and prohibition which the Court, upon motion of the petitioners, resolved to treat as a petition for habeas corpus; Rollo, G.R. No. 92164, pp. 128-129.

8 Rollo, G.R. No. 92163, pp. 407-411.

9 Fernan, C.J., and Narvasa, Cortes and Grino-Aquino, JJ.

10 Fernan, C.J. and Narvasa, J.

10-A Two Members a on leave.

11 Executive Order No. 187 issued June 5, 1987.

12 People vs. Hernandez, supra at 541-543.

13 Id., at 551.

14 Rollo, G.R. No. 92163, pp. 78-79 and 73-76.

14 Supra, footnote 4.

15 Soliven vs. Makasiar, 167 SCRA 394.

17 Rollo, G.R. No. 92163, pp. 46-47.

18 Sec. 2, Rule 117, Rules of Court.

19 Ocampo vs. Bernabe, 77 Phil. 55.

20 Rollo, G.R. No. 92164, pp. 124-125.

Melencio-Herrera, J., Opinion

1 "ART. 142-A-Cases where other offenses are committed.-When by reason or on the occasion of any of the crimes penalized in this Chapter, acts which constitute offenses upon which graver penalties are imposed by law are committed, the penalty for the most serious offense in its maximum period shall be imposed upon the offender."

Sarmiento, J., Concurring

1 99 Phil. 515 (1956).

2 Supra, 520.

3 Supra, 521.

4 US v. Santiago, 41 Phil. 793 (1917).


Manila

EN BANC

G.R. No. 81567 October 3, 1991

IN THE MATTER OF THE PETITION FOR HABEAS CORPUS OF ROBERTO UMIL, ROLANDO DURAL and RENATO VILLANUEVA, MANOLITA O. UMIL and NICANOR P. DURAL, FELICITAS V. SESE, petitioners, vs.FIDEL V. RAMOS, MAJ. GEN. RENATO DE VILLA, BRIG. GEN. RAMON MONTANO, BRIG. GEN. ALEXANDER AGUIRRE, respondents.

G.R. Nos. 84581-82 October 3, 1991

AMELIA ROQUE and WILFREDO BUENAOBRA, petitioners, vs.GEN. RENATO DE VILLA and GEN, RAMON MONTANO, respondents.

G.R. Nos. 84583-84 October 3, 1991

IN THE MATTER OF THE PETITION FOR HABEAS CORPUS OF ATTY. DOMINGO T. ANONUEVO and RAMON CASIPLE: DOMINGO T. ANONUEVO and RAMON CASIPLE, petitioners, vs.HON. FIDEL V. RAMOS, GEN. RENATO S. DE VILLA, COL. EVARISTO CARIÑO, LT. COL. REX D. PIAD, T/SGT. CONRADO DE TORRES, S/SGT. ARNOLD DURIAN, and Commanding Officer, PC-INP Detention Center, Camp Crame, Quezon City, respondents.

G.R. No. 83162 October 3, 1991

IN THE MATTER OF THE APPLICATION FOR HABEAS CORPUS OF VICKY A. OCAYA AND DANNY RIVERA: VIRGILIO A. OCAYA, petitioners, vs.BRIG. GEN. ALEXANDER AGUIRRE, COL. HERCULES CATALUNA, COL. NESTOR MARIANO, respondents.

G.R. No. 85727 October 3, 1991

IN THE MATTER OF APPLICATION FOR HABEAS CORPUS OF DEOGRACIAS ESPIRITU, petitioner, vs.BRIG. GEN.ALFREDO S. LIM, COL. RICARDO REYES, respondents.

G.R. No. 86332 October 3, 1991

IN THE MATTER OF THE PETITION FOR HABEAS CORPUS OF NARCISO B. NAZARENO: ALFREDO NAZARENO,petitioner, vs.THE STATION COMMANDER OF THE MUNTINGLUPA POLICE STATION, Muntinglupa, Metro Manila, P/SGT. JACINTO MEDINA, P/SGT. ELADIO TAGLE, P/SGT. LEVI SOLEDAD, and P/SGT. MALTRO AROJADO, respondents.

Efren H. Mercado for petitioners in G.R. No. 81567 and G. R. No. 83162.

Ricardo C. Valmonte for petitioners in G.R. Nos. 84581-82

Josefina G. Campbell-Castillo for petitioners in G.R. Nos. 84583-84.

Potenciano A. Flores, Jr. for petitioner in G.R. No. 85727.

The Solicitor General for the respondents.

R E S O L U T I O N

PER CURIAM:p

Before the Court are separate motions filed by the petitioners in the above-entitled petitions, seeking reconsideration of the Court's decision promulgated on 9 July 1990 (the decision, for brevity) which dismissed the petitions, with the following dispositive part:

WHEREFORE, the petitions are hereby DISMISSED, except that in G.R. No. 85727 (Espiritu vs. Lim), the bail bond for petitioner's provisional liberty is hereby ordered reduced from P60,000.00 to P10,000.00. No costs.

The Court avails of this opportunity to clarify its ruling a begins with the statement that the decision did not rule — as many misunderstood it to do — that mere suspicion that

one is Communist Party or New People's Army member is a valid ground for his arrest without warrant. Moreover, the decision merely applied long existing lawsto the factual situations obtaining in the several petitions. Among these laws are th outlawing the Communist Party of the Philippines (CPP) similar organizations and penalizing membership therein be dealt with shortly). It is elementary, in this connection, if these laws no longer reflect the thinking or sentiment of the people, it is Congress as the elected representative of the people — not the Court — that should repeal, change or modify them.

In their separate motions for reconsideration, petitioners, in sum, maintain:

1. That the assailed decision, in upholding the validity of the questioned arrests made without warrant, and in relying on the provisions of the Rules of Court, particularly Section 5 of Rule 113 (Arrest), disregards the fact that such arrests violated the constitutional rights of the persons arrested;

2. That the doctrine laid down in Garcia vs. Enrile 1 and Ilagan vs. Enrile 2 should be abandoned;

3. That the decision erred in considering the admissions made by the persons arrested as to their membership in the Communist Party of the Philippines/New People's Army, and their ownership of the unlicensed firearms, ammunitions and subversive documents found in their possession at the time of arrest, inasmuch as those confessions do not comply with the requirements on admissibility of extrajudicial admissions;

4. That the assailed decision is based on a misappreciation of facts;

5. That G.R. No. 81567 (the Umil case) should not be deemed moot and academic.

We find no merit in the motions for reconsideration.

It can not be overlooked that these are petitions for the issuance of the writ of habeas corpus, filed by petitioners under the Rules of Court. 3 The writ of habeas corpus exists as a speedy and effective remedy to relieve persons from unlawful restraint. 4Therefore, the function of the special proceedings of habeas corpus is to inquire into the legality of one's detention, 5 so that if detention is illegal, the detainee may be ordered forthwit released.

In the petitions at bar, to ascertain whether the detention petitioners was illegal or not, the Court before rendering decision dated 9 July 1990, looked into whether their questioned arrests without warrant were made in accordance with law. For, if the arrests were made in accordance with law, would follow that the detention resulting from such arrests also in accordance with law.

There can be no dispute that, as a general rule, no peace officer or person has the power or authority to arrest anyo without a warrant of arrest, except in those cases express authorized by law. 6 The law expressly allowing arrests witho warrant is found

in Section 5, Rule 113 of the Rules of Court which states the grounds upon which a valid arrest, without warrant, can be conducted.

In the present cases, the focus is understandably on Section 5, paragraphs (a) and (b) of the said Rule 113, which read:

Sec. 5. Arrest without warrant; when lawful. — A peace officer or a private person may, without a warrant, arrest a person:

(a) When, in his presence, the person to he arrested has committed, is actually committing, or is attempting to commit an offense;

(b) When an offense has in fact just been committed, and he has personal knowledge of facts indicating that the person to be arrest has committed it; and

. . . (Emphasis supplied).

The Court's decision of 9 July 1990 rules that the arrest Rolando Dural (G.R. No. 81567) without warrant is justified it can be said that, within the contemplation of Section 5 Rule 113, he (Dural) was committing an offense, when arrested because Dural was arrested for being a member of the New People's Army, an outlawed organization, where membership penalized, 7 and for subversion which, like rebellion is, under the doctrine of Garcia vs. Enrile, 8 a continuing offense, thus:

The crimes of insurrection or rebellion, subversion, conspiracy or proposal to commit such crimes, and other crimes and offenses committed in the furtherance (sic) on the occasion thereof, or incident thereto, or in connection therewith under Presidential Proclamation No. 2045, are all in the nature of continuing offenses which set them apart from the common offenses, aside from their essentially involving a massive conspiracy of nationwide magnitude. . . .

Given the ideological content of membership in the CPP/NPA which includes armed struggle for the overthrow of organized government, Dural did not cease to be, or became less of a subversive, FOR PURPOSES OF ARREST, simply because he was, at the time of arrest, confined in the St. Agnes Hospital. Dural was identified as one of several persons who the day before his arrest, without warrant, at the St. Agnes Hospital, had shot two (2) CAPCOM policemen in their patrol car. That Dural had shot the two (2) policemen in Caloocan City as part of his mission as a "sparrow" (NPA member) did not end there and then. Dural, given another opportunity, would have shot or would shoot other policemen anywhere as agents or representatives of organized government. It is in this sense that subversion like rebellion (or insurrection) is perceived here as a continuing offense. Unlike other so-called "common" offenses, i.e. adultery, murder, arson, etc., which generally end upon their commission, subversion and rebellion are anchored on an ideological base which compels the repetition of the same acts of lawlessness and violence until the overriding objective of overthrowing organized government is attained.

Nor can it be said that Dural's arrest was grounded on mere suspicion by the arresting officers of his membership in the CPP/NPA. His arrest was based on "probable cause," as supported by actual facts that will be shown hereafter.

Viewed from another but related perspective, it may also be said, under the facts of the Umil case, that the arrest of Dural falls under Section 5, paragraph (b), Rule 113 of the Rules of Court, which requires two (2) conditions for a valid arrestt without warrant: first, that the person to be arrested has just committed an offense, and second, that the arresting peace officer or private person has personal knowledge of facts indicating that the person to be arrested is the one who committed the offense. Section 5(b), Rule 113, it will be noted, refers to arrests without warrant, based on "personal knowledge of facts" acquired by the arresting officer or private person.

It has been ruled that "personal knowledge of facts," in arrests without warrant must be based upon probable cause, which means an actual belief or reasonable grounds of suspicion 9

The grounds of suspicion are reasonable when, in the absence of actual belief of the arresting officers, the suspicion that the person to be arrested is probably guilty of committing the offense, is based on actual facts, i.e., supported by circumstances sufficiently strong in themselves to create the probable cause of guilt of the person to be arrested. 10 A reasonable suspicion therefore must be founded on probable cause, coupled with good faith on the part of the peace officers making the arrest. 11

These requisites were complied with in the Umil case and in the other cases at bar.

In G.R. No. 81567 (Umil case), military agents, on 1 February 1988, were dispatched to the St. Agnes Hospital, Roosevelt Avenue, Quezon City, to verify a confidential information which was received by their office, about a "sparrow man" (NPA member) who had been admitted to the said hospital with a gunshot wound; that the information further disclosed that the wounded man in the said hospital was among the five (5) male "sparrows" who murdered two (2) Capcom mobile patrols the day before, or on 31 January 1988 at about 12:00 o'clock noon, before a road hump along Macanining St., Bagong Barrio, Caloocan City; that based on the same information, the wounded man's name was listed by the hospital management as "Ronnie Javellon," twenty-two (22) years old of Block 10, Lot 4, South City Homes, Biñan, Laguna. 12

Said confidential information received by the arresting officers, to the effect that an NPA member ("sparrow unit") was being treated for a gunshot wound in the named hospital, is deemed reasonable and with cause as it was based on actual facts and supported by circumstances sufficient to engender a belief that an NPA member was truly in the said hospital. The actual facts supported by circumstances are: first — the day before, or on 31 January 1988, two (2) CAPCOM soldiers were actually killed in Bagong Bario, Caloocan City by five (5) "sparrows" including Dural; second — a wounded person listed in the hospital records as "Ronnie Javellon" was actually then being treated in St. Agnes Hospital for a gunshot wound; third — as the records of this case disclosed later, "Ronnie Javellon" and his address entered in the hospital records were fictitious and the wounded man was in reality Rolando Dural.

In fine, the confidential information received by the arresting officers merited their immediate attention and action and, in fact, it was found to be true. Even the petitioners in their motion for reconsideration, 13 believe that the confidential information of the arresting officers to the effect that Dural was then being treated in St. Agnes Hospital was actually received from the attending doctor and hospital management in compliance with the directives of the law, 14 and, therefore, came from reliable sources.

As to the condition that "probable cause" must also be coupled with acts done in good faith by the officers who make the arrest, the Court notes that the peace officers wno arrested Dural are deemed to have conducted the same in good faith, considering that law enforcers are presumed to regularly perform their official duties. The records show that the arresting officers did not appear to have been ill-motivated in arresting Dural. 15 It is therefore clear that the arrest, without warrant, of Dural was made in compliance with the requirements of paragraphs (a) and (b) of Section 5, Rule 113.

Parenthetically, it should be mentioned here that a few day after Dural's arrest, without warrant, an information charging double murder with assault against agents of persons in authority was filed against Dural in the Regional Trial Court of Caloocan City (Criminal Case No. C-30112). He was thus promptly placed under judicial custody (as distinguished fro custody of the arresting officers). On 31 August 1988, he wa convicted of the crime charged and sentenced to reclusion perpetua. The judgment of conviction is now on appeal before this Court in G.R. No. 84921.

As to Amelia Roque and Wilfredo Buenaobra (G.R. Nos. 84581-82), Domingo Anonuevo and Ramon Casiple(G.R. Nos. 84583-84) and Vicky Ocaya (G.R. No. 83162), their arrests, without warrant, are also justified. They were searched pursuant to search warrants issued by a court of law and were found wit unlicensed firearms, explosives and/or ammunition in their persons. They were, therefore, caught in flagrante delicto which justified their outright arrests without warrant, under Sec 5(a), Rule 113, Rules of Court. Parenthetically, it should be mentioned here that a few davs after their arrests without warrant, informations were filed in court against said petitioners, thereby placing them within judicial custody and disposition. Furthermore, Buenaobra mooted his own petition fo habeas corpus by announcing to this Court during the hearing of these petitions that he had chosen to remain in detention in the custody of the authorities.

More specifically, the antecedent facts in the "in flagrante" cases are:

1. On 27 June 1988, the military agents received information imparted by a former NPA about the operations of the CPP and NPA in Metro Manila and that a certain house occupied by one Renato Constantine, located in the Villaluz Compound, Molave St., Marikina Heights, Marikina, Metro Manila was being used as their safehouse; that in view of this information, the said house was placed under military surveillance and on 12 August 1988, pursuant to a search warrant duly issued by court, a search of the house was conducted; that when Renato Constantine was then confronted he could not produce any permit to possess the firearms, ammunitions, radio and other communications equipment, and he admitted that he was a ranking member of the CPP. 16

2. In the case of Wilfredo Buenaobra, he arrived at the house of Renato Constantino in the evening of 12 August 1988, and admitted that he was an NPA courier and he had with him letters to Renato Constantine and other members of the rebel group.

3. On the other hand, the arrest of Amelia Roque was a consequence of the arrest of Buenaobra who had in his possession papers leading to the whereabouts of Roque; 17 that, at the time of her arrest, the military agents found subversive

documents and live ammunitions, and she admitted then that the documents belonged to her. 18

4. As regards Domingo Anonuevo and Ramon Casiple they were arrested without warrant on 13 August 1988, when they arrived at the said house of Renato Constantine in the evening of said date; that when the agents frisked them, subversive documents, and loaded guns were found in the latter's possession but failing to show a permit to possess them. 19

5. With regard to Vicky Ocaya, she was arrested, without warrant when she arrived (on 12 May 1988) at the premises ofthe house of one Benito Tiamzon who was believed to be the head of the CPP/NPA, and whose house was subject of a search warrant duly issued by the court. At the time of her arrest without warrant the agents of the PC-Intelligence and Investigation found ammunitions and subversive documents in the car of Ocaya. 20

It is to be noted in the above cases (Roque, Buenaobra, Anonuevo, Casiple and Ocaya) that the reason which compelled the military agents to make the arrests without warrant was the information given to the military authorities that two (2) safehouses (one occupied by Renato Constantine and the other by Benito Tiamzon) were being used by the CPP/NPA for their operations, with information as to their exact location and the names of Renato Constantine and Benito Tiamzon as residents or occupants thereof.

And at the time of the actual arrests, the following circumstances surrounded said arrests (of Roque, Buenaobra, Anonuevo and Casiple), which confirmed the belief of the military agents that the information they had received was true and the persons to be arrested were probably guilty of the commission of certain crimes: first: search warrant was duly issued to effect the search of the Constantine safehouse; second: found in the safehouse was a person named Renato Constantine, who admitted that he was a ranking member of the CPP, and found in his possession were unlicensed firearms and communications equipment; third: at the time of their arrests, in their possession were unlicensed firearms, ammunitions and/or subversive documents, and they admitted ownership thereof as well as their membership in the CPP/NPA. And then, shortly after their arrests, they were positively identified by their former comrades in the organization as CPP/NPA members. In view of these circumstances, the corresponding informations were filed in court against said arrested persons. The records also show that, as in the case of Dural, the arrests without warrant made by the military agents in the Constantino safehouse and later in the Amelia Roque house, do not appear to have been ill-motivated or irregularly performed.

With all these facts and circumstances existing before, during and after the arrest of the afore-named persons (Dural, Buenaobra, Roque, Anonuevo, Casiple and Ocaya), no prudent an can say that it would have been better for the military agents not to have acted at all and made any arrest. That would have been an unpardonable neglect of official duty and a cause for disciplinary action against the peace officers involved.

For, one of the duties of law enforcers is to arrest lawbreakers in order to place them in the hands of executive and judicial authorities upon whom devolves the duty to investigate the acts constituting the alleged violation of law and to prosecute and secure the punishment therefor. 21 An arrest is therefore in the nature of an administrative measure. The power to arrest without warrant is without limitation as

long as the requirements of Section 5, Rule 113 are met. This rule is founded on an overwhelming public interest in peace and order in our communities.

In ascertaining whether the arrest without warrant is conducted in accordance with the conditions set forth in Section 5, Rule 113, this Court determines not whether the persons arrested are indeed guilty of committing the crime for which they were arrested. 22 Not evidence of guilt, but "probable cause" is the reason that can validly compel the peace officers, in the performance of their duties and in the interest of public order, to conduct an arrest without warrant. 23

The courts should not expect of law-enforcers more than what the law requires of them. Under the conditions set forth in Section 5, Rule 113, particularly paragraph (b) thereof, even if the arrested persons are later found to be innocent and acquitted, the arresting officers are not liable. 24 But if they do not strictly comply with the said conditions, the arresting officers can be held liable for the crime of arbitrary detention, 25 for damages under Article 32 of the Civil Code 26 and/or for other administrative sanctions.

In G.R. No. 85727, Espiritu, on 23 November 1988, was arrested without warrant, on the basis of the attestation of certain witnesses: that about 5:00 o'clock in the afternoon of 22 November 1988, at the corner of Magsaysay Boulevard and Velencia St., Sta. Mesa, Manila, Espiritu spoke at a gathering of drivers and sympathizers, where he said, among other things:

Bukas tuloy ang welga natin . . . hanggang sa magkagulona. 27 (Emphasis supplied)

and that the police authorities were present during the press conference held at the National Press Club (NPC) on 22 November 1988 where Espiritu called for a nationwide strike (of jeepney and bus drivers) on 23 November 1988. 28 Espiritu was arrested without warrant, not for subversion or any "continuing offense," but for uttering the above-quoted language which, in the perception of the arresting officers, was inciting to sedition.

Many persons may differ as to the validity of such perception and regard the language as falling within free speech guaranteed by the Constitution. But, then, Espiritu had not lost the right to insist, during the pre-trial or trial on the merits, that he was just exercising his right to free speech regardless of the charged atmosphere in which it was uttered. But, the authority of the peace officers to make the arrest, without warrant, at the time the words were uttered, or soon thereafter, is still another thing. In the balancing of authority and freedom, which obviously becomes difficult at times, the Court has, in this case, tilted the scale in favor of authority but only for purposes of the arrest (not conviction). Let it be noted that the Court has ordered the bail for Espiritu's release to be reduced from P60,000.00 to P10,000.00.

Let it also be noted that supervening events have made the Espiritu case moot and academic. For Espiritu had before arraignment asked the court a quo for re-investigation, the peace officers did not appear. Because of this development, the defense asked the court a quo at the resumption of the hearings to dismiss the case. Case against Espiritu (Criminal Case No. 88-68385) has been provisionally dismissed and his bail bond cancelled.

In G.R. No. 86332 (Nazareno), the records show that in the morning of 14 December 1988, Romulo Bunye II was killed by a group of men in Alabang, Muntinlupa, Metro

Manila; that at about 5:00 o'clock in the morning of 28 December 1988, Ramil Regala, one of the suspects in the said killing, was arrested and he pointed to Narciso Nazareno as one of his companions during the killing of Bunye II; that at 7:20 of the same morning (28 December 1988), the police agents arrested Nazareno, without warrant, for investigation. 29

Although the killing of Bunye II occurred on 14 December 1988, while Nazareno's arrest without warrant was made only on 28 December 1988, or 14 days later, the arrest fans under Section 5(b) of Rule 113, since it was only on 28 December 1988 that the police authorities came to know that Nazareno was probably one of those guilty in the killing of Bunye II and the arrest had to be made promptly, even without warrant, (after the police were alerted) and despite the lapse of fourteen (14) days to prevent possible flight.

As shown in the decision under consideration, this Court, in upholding the arrest without warrant of Nazareno noted several facts and events surrounding his arrest and detention, as follows:

. . . on 3 January 1989 (or six (6) days after his arrest without warrant), an information charging Narciso Nazareno, Ramil Regala and two (2) others, with the killing of Romulo Bunye II was filed wit the Regional Trial Court of Makati, Metro Manila. The case is dock eted therein as Criminal Case No. 731.

On 7 January 1989, Narciso Nazareno filed a motion to post bail but the motion was denied by the trial court in an order dated 10 January 1989, even as the motion to post bail, earlier filed by his co-accused, Manuel Laureaga, was granted by the same trial court.

On 13 January 1989, a petition for habeas corpus was filed with this Court on behalf of Narciso Nazareno and on 13 January 1989, the Court issued the writ of habeas corpus, retumable to the Presiding Judge of the Regional Trial Court of Bifian, Laguna, Branch 24, ordering said court to hear the case on 30 January 1989 and thereafter resolve the petition.

At the conclusion of the hearing, or on 1 February 1989, the Presiding Judge of the Regional Trial Court of Biñan, Laguna issued a resolution denying the petition for habeas corpus, it appearing that the said Narciso Nazareno is in the custody of the respondents by reason of an information filed against him with the Regional Trial Court of Makati, Metro Manila which liad taken cognizance of said case and had, in fact, denied the motion for bail filed by said Narciso Nazareno (presumably because of the strength of the evidence against him).

This Court reiterates that shortly after the arrests of Espiritu and Nazareno, the corresponding informations against them were filed in court. The arrests of Espiritu and Nazareno were based on probable cause and supported by factual circumstances. They complied with conditions set forth in Section 5(b) of Rule 113. They were not arbitrary or whimsical arrests.

Parenthetically, it should be here stated that Nazareno has since been convicted by the court a quo for murder and sentenced to reclusion perpetua. He has appealed the judgment of conviction to the Court of Appeals where it is pending as of this date ( CA-G.R. No. still undocketed).

Petitioners contend that the decision of 9 July 1990 ignored the contitution requisiteds for admissibility of an extrajudicial admission.

In the case of Buenaobra (G.R. Nos. 84581-82), he admitted 30 that he was an NPA courier. On the other hand, in the case ofAmelia Roque, she admitted 31 that the unlicensed firearms, ammunition and subversive documents found in her possession during her arrest, belonged to her.

The Court, it is true, took into account the admissions of the arrested persons of their membership in the CPP/NPA, as well as their ownership of the unlicensed firearms, ammunitions and documents in their possession. But again, these admissions, as revealed by the records, strengthen the Court's perception that truly the grounds upon which the arresting officers based their arrests without warrant, are supported by probable cause, i.e. that the persons arrested were probably guilty of the commission of certain offenses, in compliance with Section 5, Rule 113 of the Rules of Court. To note these admissions, on the other hand, is not to rule that the persons arrested are already guilty of the offenses upon which their warrantless arrests were predicated. The task of determining the guilt or innocence of persons arrested without warrant is not proper in a petition for habeas corpus. It pertains to the trial of the case on the merits.

As to the argument that the doctrines in Garcia vs. Enrile, and Ilagan vs. Enrile should be abandoned, this Court finds no compelling reason at this time to disturb the same, particularly ln the light of prevailing conditions where national security and liability are still directly challenged perhaps with greater vigor from the communist rebels. What is important is that everv arrest without warrant be tested as to its legality via habeas corpus proceeding. This Court. will promptly look into — and all other appropriate courts are enjoined to do the same — the legality of the arrest without warrant so that if the conditions under Sec. 5 of Rule 113, Rules of Court, as elucidated in this Resolution, are not met, then the detainee shall forthwith be ordered released; but if such conditions are met, then the detainee shall not be made to languish in his detention but must be promptly tried to the end that he may be either acquitted or convicted, with the least delay, as warranted by the evidence.

A Final Word

This Resolution ends as it began, reiterating that mere suspicion of being a Communist Party member or a subversive is absolutely not a ground for the arrest without warrant of the suspect. The Court predicated the validity of the questioned arrests without warrant in these petitions, not on mere unsubstantiated suspicion, but on compliance with the conditions set forth in Section 5, Rule 113, Rules of Court, a long existing law, and which, for stress, are probable cause and good faith of the arresting peace officers, and, further, on the basis of, as the records show, the actual facts and circumstances supporting the arrests. More than the allure of popularity or palatability to some groups, what is important is that the Court be right.

ACCORDINGLY, the motions for reconsideration of the decision dated 9 July 1990, are DENIED. This denial is FINAL.

SO ORDERED.

Narvasa, Melencio-Herrera, Paras, Padilla, Bidin, Griño-Aquino, Medialdea and Davide, Jr., JJ., concur.

Separate Opinions


After a deep and thorough reexamination of the decision of Julv 9, 1990 and an exhaustive evaluation of the motions for reconsideration of the said decision, I am inclined to agree with the, majority's resolution on said motions for reconsideration except for the legality of the warrantless arrests of petitioner Deogracias Espiritu for the crime of inciting to sedition and petitioner Alfredo Nazareno for the crime of murder.

In the words of the resolution, Espiritu "was arrested without warrant, not for subversion or any 'continuing offense,' but for uttering" the following: "Bukas tuloy ang welga natin . . . hanggang sa magkagulo na." Apparently, such statement was, in the perception of the arresting officers, inciting to sedition. While not conceding the validity of such perception, realizing that it is indeed possible that Espiritu was merely exercising his right to free speech, the resolution nonetheless supports the authority of peace officers "only for purposes of the arrest."

I find this position to be adverse to the very essence of the resolution which sanctions warrantless arrests provided they are made in accordance with law. In the first place, Espiritu mav not be considered as having "just committed" the crime charged. He allegedly first uttered seditious remarks at the National Press Club in the afternoon of November 12, 1988. The second allegedly seditious remark aforequoted was made at around 5:00 o'clock in the same afternoon (Decision, pp. 23-24). Under these circumstances, the law enforcement agents had time, short though it might seem, to secure a warrant for his arrest. Espiritu's apprehension may not therefore be considered as covered by Section 5(b) of Rule 113 which allows warrantless arrests "when an offense has in fact just been committed."

The same observation applies with greater force in the case of Nazareno who was arrested 14 days after the commission of the crime imputed to him.

Secondly, warrantless arrests may not be allowed if the arresting officer are not sure what particular provision of law had beeri violated by the person arrested. True it is that law en.orcement agents and even prosecutors are not all adept at the However, errneous perception, not to mention ineptitude among their ranks, especially if it would result in the violation of any right of a person, may not be tolerated. That the arrested person has the "right to insist during the pre-trial or trial on the merits" (Resolution., p. 18) that he was exercising a right which the arresting officer considered as contrary to law, is beside the point. No person should be subjected to the ordeal of a trial just because the law enforcers wrongly perceived his action.

Thirdly, inciting to sedition is not a continuous crime for which the offender may be arrested without a warrant duly issued by the proper authority. By its nature, a single act of urging others to commit any of the acts enumerated in Article 142 of the

Revised Penal Code may suffice to hold anyone liable for inciting to sedition. While the crime is aimed at anarchy and radicalism and presents largely a question of policy (Espuelas vs. People, 90 Phil, 524 [1951]), it should be remembered that any of the prohibited acts in Article 142 may infringe upon the fundamental freedoms of speech and expression. There arises, therefore, the necessity of balancing interests; those of the State as against those of its individual citizen. Here lies the urgency of judicial intervention before an arrest is made. Added to this is the subjectivity of the determination of what may incite other people to sedition. Hence, while the police should act swiftly when a seditious statement has been uttered in view of the jeopardy it may cause the government, speedy action should consist not in warrantless arrests but in securing warrants for such arrests.

On the legality of warrantless arrests of violators of the Anti-Subversion Law, it should be underscored that anyone who undertakes such arrest must see to it that the alleged violator is knowing member of a subversive organization as distinguished from a nominal one (People vs. Ferrer, L-32613-14, December 27, 1972, 48 SCRA 382). Thus, a subversive may be arrested even if has not committed overt act of overthrowing the government such as bombing of government offices trie assassination of government officials provided there is probable cause to believe that he is in the roll of members of a subversive organization. It devolves upon the accused to prove membership by force or ciorcion. Certainly, one may not be in such a roll without undergoing the concious act of enlistment.

It bears repeating theat warrantless arrests are governed by law and subject to stringent application. Section 5, Rule 113 of the Rules on Criminal Procedure now requires that an offense "has in fact just been committed. "connotes immediacy in point of time and excludes cases under the old rule where an offense 'has in fact been committed' no how long ago. Similarly, the arrestor must have 'personal knowledge of the facts indicating that the [arrestee] has committed it' (instead of just 'reasonable ground believe that the [arrestee] has committed it' under the old rule)." (Dissenting opinion in Ilagan vs. Enrile, G.R. No. 70748, October 21, 1985, 139 SCRA 349, 408).

I deem it aptherein to recall other Court rulings provide guidelines in effecting arrests without warrants. In People vs. Burgos (G.R. No. 68955, September 4, 1986,144 SCRA 1), the Court considered as illegal the warrantless arrest of a subversive not based on the arresting officer's personal knowledge such subversion and held that any rule on arrests witho warrants must be strictly construed. We categorically state therein that warrantless arrests should "clearly fall within the situations when securing a warrant be absurd or is manifestly unnecessary was provided by the Rules" (144 SCRA at 14). Moreover. "it is not enough that there is reasonable ground to believe that the person to be arrested has committed a crime. A crime must in fact or actually (has just) been committed first. That crime has actually been committed is an essential precondition. It is not enough to suspect that a crime may have been committed. The fact of the commission of the offense must be undisputed. The test of reasonable ground applies only to the identity of the perpetrator. (Supra, at p. 15).

Earlier, in Morales, Jr. vs. Enrile (G.R. No. 61016, April 26, 1983, 121 SCRA 538), the Court laid out the procedure to be observed the moment a person is arrested:

At the time a person is arrested, it shall be the duty of the arresting officer to imform him of the reason for the arrest and he must be shown the warrant of arrest, if any. He shall be informed of his constitutional rights to remain silent and to counsel, and that any statement he might make could be used against him. The person shall have the right to communicate with his lawyer, a

relative, or anyone he chooses by the most expedient means — by telephone if possible — or by letter or messenger. It shall be the responsibility of the arresting officer to see to it that this is accomplished. No custodial investigation shall be conducted unless it be in the presence of counsel engaged by the person arressted, by any person on his behalf, or appointed by the court upon petition on his behalf, or appointed the court upon the petition either of the detainee himself or by anyone on his behalf. The right to counsel may be waived but the waiver shall not be valid unless made with the assistance of counsel. Any statement obtained in violation of the procedure herein laid down, whether exculpatory or inculpatory, in whole or in part shall be inadmissible evidence. (121 SCRA at 554).

These judicial pronouncements must be observed by everyone concerned: the military and civilian components of the government tasked with law enforcement as well as the ordinary citizen who faces a situation wherein civic duty demands his intervention to preserve peace in the community.

I am not unmindful of the fact that abuses occur in arrests especially of offenders of crimes with a political or ideological element. Such abuses are more often than not, triggered by the difficulty in finding evidence that could stand judicial scrutiny — to pinpoint a subversive, police officers usually have to make long persistent surveillance. However, for the orderly administration of government and the maintenance of peace and order in the country, good faith should be reposed on the officials implementing the law. After all, we are not wanting in laws to hold any offending peace officer liable both administratively and criminally for abuses in the performance of their duties. Victims of abuses should resort to legal remedies to redress their grievances.

If existing laws are inadequate, the policy-determining branches of the government may be exhorted peacefully by the citizenry to effect positive changes. This Court, mandated b the Constitution to uphold the law, can only go as far as inter pruting existing laws and the spirit behind them. Otherwise, we hail be entering the dangerous ground of judicial legislation.

GUTIERREZ, JR., J., concurring and dissenting:

The philosophy adopted in our Constitution is that liberty is an essential condition for order, It is disturbing whenever the Court leans in the direction of order instead of liberty in har cases coming before us.

People all over the world are fast accepting the theory that only as a society encourages freedom and permits dissent can it have lasting security and real progress, the theory that enhancing order through constraints on freedom is deceptive because restrictions on liberty corrode the very values Govenment pretends to promote. I believe we should move with the people of the world who are fast liberating themselves.

I, therefore, vote for the strict application of Section 5 (a) and (b) of Rule 113 on arrests without warrant, to wit:

Sec. 5. Arrest without warrant; when lawful. — A peace officer or a private person may, without a warrant, arrest a person:

(a) When, in his presence, the person to be arrested has committed, is actually committing, or is attempting to commit an offense;

(b) When an offense has in fact just been committed, and he has personal knowledge of facts indicating that the person to be arrested has committed it.

xxx xxx xxx

Only in the cases found in the Rule should we allow arrests without warrants. In case of doubt, the tendency should be to declare the warrantless arrest illegal.

Insofar as G.R. Nos, 84581-82, G.R. Nos. 84583-84 and G.R. No. 83162 involving Amelia Roque, Wilfredo Buenaobra, Domingo Anonuevo, Ramon Casiple, and Vicky Ocaya are concerned, the petitioners were arrested after having been apprehended while in possession of illegal firearms and ammunitions. They were actually committing a crime when arrested. I concur in the denial of their motions for reconsideration.

I vote to grant the motion for reconsideration in G.R. No. 85727 where Deogracias Espiritu was arrested while urging jeepnev and bus drivers to join a strike of transport workers on the ground that that was inciting to sedition.

This impresses me as Court validation of a clear infringement of an individual's freedom of speech. "Inciting to sedition" is a term over which the most learned writers and jurists will differ when applied to actual cases. I doubt if there are more than a handful of policemen in the whole country who would know the full dimensions of the fine distinctions which separate the nation's interest in the liberty to fully anfd freely discuss matters of national importance on one hand and the application of the clear and present danger rule as the test when claims of national security and public safety are asserted, on the other. In fact, the percentage of knowledgeability would go down further if we consider that "inciting to sedition" requires the ability to define, among other (1) what kinds of speeches or writings fall lander the term "inciting" (2) the meaning of rising publicly and tumultously; (3,) when does a certain effort amount to force, intimidation. or illegal method; (4) what constitute the five objects or ends of sedition; and (5) what is a scurrilous libel against the Philippines. If we allow public speakers to be picked up simply because what they say is irritating or obnoxious to the ears of a peace officer or critical of government policy and action, we will undermine all pronouncements of this Court on the need to protect that matrix of all freedoms, which is freedom of expression. At the very least, a warrant of arrest after a preliminary examination by a Judge is essential in this type of offense.

Insofar as G.R. No. 81567 is concemed, I join the other dissenting Justices in their observations regarding "continuing oftenses." To base warrantless arrests on the doctrine of continuing offense is to give a license for the illegal detention of persons on pure suspicion. Rebellion, insurrection, or sedition are political offenses where the line between overt acts and simple advocacy or adherence to a belief is extremely thin. If a court has convicted an accused of rebellion and he is found roaming around, he may be arrested. But until a person is proved guilty, I fail to see how anybody can jump to a personal conclusion that the suspect is indeed a rebel and must be picked up on sight whenever seen. The grant of authority in the majority opinion is too broad. If warrantless searches are to be validated, it should be Congress and not this Court which should draw strict and narrow standards. Otherwise, the non-rebels who are

critical, noisy, or obnoxious will be indiscriminately lumped up with those actually taking up arms against the Government.

The belief of law enforcement authorities, no matter how well grounded on past events, that the petitioner would probably shoot other policemen whom he may meet does not validate warrantless arrests. I cannot understand why the authorities preferred to bide their time, await the petitioner's surfacing from underground, and pounce on him with no legal authority instead of securing warrants of arrest for his apprehension. The subsequent conviction of a person arrested illegally does not the warrantless arrest.

In G.R. No. 86332, Romulo Bunye was killed on December 14, 1988. The information that Narciso Nazareno was one of the killers came to the attention of peace officers only on December 28, 1988 or fourteen (14) days later. To say that the offense "has in fact just been committed" even if 14 days have lapsed is to stretch Rule 11 3 on warrantless arrests into ridiculous limits. A warrant of arrest is essential in this case. I vote to grant the motion for reconsideration.

The subsequent conviction of a person arrested illegally does not reach back into the past and render legal what was illegal. The violation of the constitutional right against illegal seizures is not cured by the fact that the arrested person is indeed guilty of the offense for which he was seized. A government of laws must abide by its own Constitution.

CONSIDERING THE FOREGOING, I VOTE TO:

(1) DENY the motions for reconsideration in G.R. Nos. 84581-82; G.R. No. 84583-84; and G.R. No. 83162;

(2) GRANT the motion for reconsideration in G.R. No. 85727;

(3) GRANT the motion for reconsideration in G.R. No. 86332;and

(4) GRANT the motion for reconsideration in G.R. No. 81567.

CRUZ, J., Separate Opinion:

I reiterate my concurrence with the ponencia insofar as it dismissed the petitions of those who were arrested inflagrante, or subsequently posted bail or chose to remain in the custody of the military, or voluntarily permitted the search of the house without warrant. I do not think that under the applicable circumstances the petitioners can validly complain that they are being unlawfully detained.

But I must again express may dissent to the continued observance of Garcia-Padilla vs. Enrile, 121 SCRA 472, to justify the warrantless arrest and detention of the other petitioners on the ground that they were apprehended for the continuing offenses of rebellion and other allied crimes.

We find in the said decision this partltularly disturbing observation, which was quoted with approval in the originalponencia:

The arrest of persons involved in the rebellion, whether as its fighting armed elements, or for committing non-violent acts but in furtherance of the rebellion, is more an act of capturing them in the course of an armed conflict, to quell the rebellion, than for the purpose of immediately prosecuting them in court for a statutory offense. The arrest, therefore, need not follow the usual procedure in the prosecution of offenses which requires the determination by a judge of the existence of probable cause before the issuance of arrest and the granting of bail of the offense is bailable. Obviously, the absence of a judicial warrant is no legal impediment to arresting or capturing persons committing overt acts of violence against govenment forces, or any other milder acts but equally in pursuance of the rebellious movement. (Emphasis supplied.)

The treatment suggested envisions an actual state of war and is justified only when a recognition of beuigerency is accorded by the legitimate government to the rebels, resulting in the application of the laws of war in the regulation of their relations. The rebels are then considered alien enemies-to be treated as prisoners of war when captured-and cannot invoke the municipal law of the legitimate government they have disowned. It is in such a situation that the processes of the local courts are not observed and the rebels cannot demand the protection of the Bill of Rights that they are deemed to have renounced by their defiance of the government.

But as long as that recognition has not yet been extended, the legitimate govenment must treat the rebels as its citizens, subject to its municipal law and entitled to all the rights provided thereunder, including and especially those guaranteed by the Constitution. Principal among these — in our country — are whose embodied in the Bill of Rights, particularly those guaranteeing due process, prohibiting unreasonable searches and seizures, allowing bail, and presuming the innocence of the accused. The legitimate government cannot excuse the suppression of these rights by the "exigencies" of an armed conflict that at this time remains an intemal matter governed exclusively by the laws of the Republic of the Philippines.

Treatment of the rebels as if they were foreign invaders — or combatants — is not justified in the present situation as our government continues to prosecute them as violators of our own laws. Under the doctrine announced in Garcia-Padilla, however, all persons suspected as rebels are by such suspicion alone made subject to summary arrest no different from the unceremonious capture of an enemy soldier in the course of a battle. The decision itself says that the arrest "need not follow the usual procedure in the prosecution of offenses" and "the absence of a judicial warrant is no impediment" as long as the person arrested is suspected by the authorities of the "continuing offense" of subversion or rebellion or other related crimes. International law is thus substituted for municipal law in regulating the relations of the Republic with its own citizens in a purely domestic matter.

As for the duration of the offenses, the decision contained the following pronouncement which this Court has also adopted as its own:

. . . The crimes of insurrection or rebellion, subversion, conspiracy or proposal to commit such crimes, and other crimes and offenses committed in the furtherance on the occasion thereof, or incident thereto, or in connection therewith under Presidential Proclamation No. 2045, are all in the nature of continuing offenses which set them apart from the common offenses, aside

front their essentially involving a massive conspiracy of nationwide manitude. (Emphasis supplied.)

The beginning of the "continuing offense" may be arbitrarily fixed by the authorities, usually by simply placing the suspect "under surveillance," to lay the basis for his eventual apprehension. Once so placed, he may at any time be arrested without warrant on the specious pretext that he is in the process of committing the "continuing offense," no matter that what he may be actuallly doing at the time is a perfectly innocent act.

In the case of Dural. the arrest was made while he was engaged in the passive and innocuous act of undergoing medical treatment. The fiction was indulged that he was even then, as he lay supine in his sickbed, engaged in the continuing offense of rebellion against the State. In further justification, the Court says that the arresting officers acted on "confidential information" that he was in the hospital, which information "was found to be true." This is supposed to have validated the determination of the officers that there was "probable cause" that excused the absence of a warrant.

My own impression is that probable cause must be established precisely to justify the issuance of a warrant, not to dispense with it; moreover, probable cause must be determined by the judge issuing the warrant, not the arresting officer who says it is not necessary.

In the case of Espiritu, the arrest was made while he was actually sleeping, and for allegedly seditious remarks made by him the day before. The Court says his case is not covered by the Garcia-Padilla doctrine but approves the arrest just the same because the remarks were supposed to continue their effects even to the following day. The offense was considered as having been just committed (to make it come under Rule 113, Section 5, of the Rules of Court) despite the considerable time lapse.

It was worse in the case of Nazareno, who was also arrested without warrant, and no less than fourteen days after the killing. In sustaining this act, the Court says that it was only on the day of his arrest that he was identified as one of the probable killers, thus suggesting that the validity of a warrantless arrest is reckoned not from the time of the commission of an offense but from the time of the Identification of the suspect.

Section 5 of Rule 113 says that a peace officer may arrest a person without a warrant if the latter "has committed, is actually committing, or is attempting to commit an offense" or when an offense "has in fact just been committed." The requirement of immediacy is obvious from the word "just," which, according to Webster, means "a very short time ago." The arrest must be made almost immediately or soon after these acts, not at any time after the suspicion of the arresting officer begins, no matter how long ago the offense was committed.

I am also uneasy over the following observations in the present resolution which I hope will not be the start of another dangerous doctrine:

The Court, it is true, took into account the admissions of the arrested persons of their membership in the CPP/NPA, as well as their ownership of the unlicensed firearms, ammunitions and documents in their possession. But again, these admissions, as revealed by the records, strengthen the Court's perception that truly the grounds upon wmch the arresting officers based their

arrests without warrant, are supported by probable cause, i.e., that the persons arrested were probably guilty of the commission of certain offenses, in compliance with Section 5, Rule 113 of the Rules of Court.

I can only repeat my own misgivings when I dissented in the recent case of People vs. Malmstedt, G.R. No. 91107, June 19, 1991, where I noted: "The conclusion that there was probable cause may have been influenced by the subsequent discovery that the accused was carrying a prohibited drug. This is supposed to justify the soldier's suspicion. In other words, it was the fact of illegal possession that retroactively established the probable cause that validated the illegal search and seizure. It was the fruit of the poisonous tree that washed clean the tree itself."

I submit that the affirmation by this Court of the Garcia-Padilla decision to justify the illegal arrests made in the cases before us is a step back to that shameful past when individual rights were wantonly and systematically violated by the Marcos dictatorship. It seems some of us have short memories of that repressive regime, but I for one am not one to forget so soon. As the ultimate defender of the Constitution, this Court should not gloss over the abuses of those who, out of mistaken zeal, would violate individual liberty in the dubious name of national security. Whatever their ideology and even if it be hostile to ours, the petitioners are entitled to the protection of the Bill of Rights, no more and no less than any other person in this country. That is what democracy is all about.

FELICIANO, J., concurring and dissenting:

I concur in the result reached by the majority in the Resolution disposing of the Motion for Reconsideration.

At the same time, however, I feel compelled to dissent from certain statements made by the majority principally concerning the applicability of the "continuing crimes" doctrine to the problem of arrests without warrants. It seems clear that these statements are really obiter dicta, since they are quite unnecessary for sustaining the actual results reached in the majority Resolution. This was summarily pointed out in my very brief statement concurring in the result reached in the original Decision of the Court dated 9 July 1990. The subsequent developments in several of the cases here consolidated, which are carefully detailed in the majority Resolution, make this even clearer. Nonetheless, the majority Resolution has taken the time and trouble expressly to reiterate the "continuing crimes" doctrine as applicable in respect of warrantless arrests. Although the above statements are obiter, they have been made and, I believe, need to be addressed to some extent and the inter-relation of the "continuing crimes" doctrine with constitutional rights explored.

1. We start at the beginning, that is, the constitutional guarantee against unreasonable seizures of persons. Article III Section 2 of the Constitution reads:

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

Under the above provision, arrests, i.e., the constraint and seizure of the persons of individual members of society, must, as a general rule, be preceded by the securing of a warrant of arrest, the rendition of which complies with the constitutional procedure specified in Article III Section 2. Arrests made without a warrant issued by a judge after complying with the constitutional procedure, are prima facie unreasonable seizures of persons within the meaning of Article III Section 2.

2. There are, however, certain well-recognized exceptions to the norm that warrantless arrests are unreasonable seizures of persons. Those exceptions are, in our day, essentially found in Section 5(a) and (b) of Rule 113 of the Rules of Court. Section 5(a) and (b) mark out the situations where an officer of the law, or a private person for that matter, may lawfully arrest a person without previously securing a warrant of arrest. The full text of Section 5, Rule 113 follows:

Sec. 5. Arrest without warrant, when lawful. — A peace officer or a private person may, without a warrant, arrest a person:

(a) When, in his presence, the person to be arrested has committed, is actually committing, or is attempting to commit an offense;

(b) When an offense has in fact just been committed, and he has personal knowledge of facts indicating that the person to be arrested has committed it; and

(c) When the person to be arrested is a prisoner who has escaped from a penal establishment or place where he is serving final judgment or temporarily confined while his case is pending, or has escaped while being transferred from one confinement to another.

In cases falling under paragraphs (a) and (b) hereof, the person arrested without a warrant shall be forthwith delivered to the nearest police station or jail, and he shall be proceeded against in accordance with Rule 112, Section 7.

3. Before examining the scope and implications of Section 5(a) and (b), it is important to recall that judicial interpretation and application of Section 5(a) and (b) must take those provision for what they are: they areexceptions to a vital constitutional norm enshrined in the Bill of Rights. Exceptions to such a norm must be strictly construed so as not to render futile and meaningless the constitutional rule requiring warrants of arrests before the persons of individuals may be lawfully constrained and seized. The ordinary rule generally applicable to statutory provisions is that exceptions to such provisions must not be stretched beyond what the language in which they are cast fairly warrants, and all doubts should be resolved in favor of the general provision, rather than the exception. 1 This rule must apply with special exigency and cogency where we deal, not with an ordinary statutory provision, but with a constitutional guarantee. 2 Exceptions to such a guarantee must be read with especial care and sensitivity and kept within the limits of their language so to keep vital and significant the general constitutional norms warrantless arrests. In Alvarez vs. Court of First Instance, 3 this Court, stressing that:

II. As the protection of the citizen and the maintenance of his constitutional rights is one of the highest duties and privileges of

the court. these constitutional guaranties should be given a liberal construction or a strict construction in favor of the individual, to prevent stealthy encroachment upon, or gradual depreciation of, the rights secured by them (State vs. Custer County, 198 Pac., 362; State vs. McDaniel, 231 Pac., 965; 237 Pac., 373). Since the proceeding is a drastic one, it is the general rule that statutes authorizing searches and seizures or search warrants must be strictly construed (Rose vs. St. Clair, 28 Fed. [2d], 189; Leonard vs. U.S., 6 Fed. [2d], 353; Perry vs. U.S., 14 Fed. [2d], 88; Cofer vs. State, 118 So., 613. (emphasis supplied)

held that:

. . . All illegal searches and seizures are unreasonable whith lawful ones are reasonable. 4

In People vs. Burgos, 5 this Court reiterated the above rule in the following terms:

There is no such personal knowledge in this case. Whatever knowledge was possessed by the arresting officers, it came in its entirety from the information furnished by Cesar Masamlok. The location of the firearm was given by the appellant's wife.

At the time of the appellant's arrest, he was not in actual possession of any firearm or subversive document. Neither was he commit ting any act which could be described as subversive. He was, in fact plowing his field at the time of the arrest.

The right of a person to be secure against any unreasonable seizure of his body and any deprivation of his liberty is a most basic and fundamental one. The statute or rule which allows exceptions the requirement of warrants of arrest is strictly construed. Any exception must clearly fall within the situations when securing a warrant would be absurd or is manifestly unnecessary as provided by the Rule. We cannot liberally construe the rule on arrests without warrant or extend its application beyond the cases specifically provided by law. To do so would infringe upon personal liberty and set back a basic right so often vilated and so deserving of full protection. 6 (emphasis supplied)

4. Section 5(a) relates to situations where a crime is committed or attempted to be committed in the presence of the arresting officer. The fact of the occurrence of the offense, or of the attempt to commit an offense, in the presence of the arresting officer, may be seen to be the substitute, under the circumstances, for the securing of a warrant of arrest. In such situation, there is an obvious need for immediate, even instantaneous, action on the part of the arresting officer to suppress the breach of public order and to prevent further breaches then and there. Section 5(a) may, moreover, be seen to refer to overt acts constitutive of a crime taking place in the presence of the arresting officer. The term "presence" in this connection is properly and restrictively construed to relate to acts taking place within the optical or perhaps auditory perception of the arresting officer. 7 If no overt, recognizably criminal, acts occur which are perceptible through the senses of the arresting officer, such officer

could not, of course, become aware at all that a crime is being committed or attempted to be committed in his presence. 8 It is elementary that purely mental or psychological phenomena, not externalized in overt physical acts of a human person, cannot constitute a crime in our legal system. For a crime to exist in our legal law, it is not enough that mens rea be shown; there must also be an actus reus. If no such overt acts are actually taking place in the presence or within the sensor perception of the arresting officer, there would, in principle, be ample time to go to a magistrate and ask for a warrant of arrest. There would, in other words, not be that imperious necessity for instant action to prevent an attempted crime, to repress the crime being committed, or to capture the doer of the perceive criminal act, the necessity which serves as the justification in law of warrantless arrests under Section 5(a).

5. Turning to Section 5 (b), two (2) elements must be coincide before a warrantless arrest may be sustained under this subsection: 1) the offense must have "just been committed" when the arresting officer arrived in the scene; and 2) the officer must have "personal knowledge" of facts indicating tha the person to be arrested has committed the offense. In somewhat different terms, the first requirement imports that th effects or corpus of the offense which has just been committed are still visible: e.g. a person sprawled on the ground, dead of gunshot wound; or a person staggering around bleeding profusely from stab wounds. The arresting officer may not ha seen the actual shooting or stabbing of the victim, and thereto the offense can not be said to have been committed "in [his] presence." The requirement of "personal knowledge" on the part of the arresting officer is a requirement that such knowledge must have been obtained directly from sense perception the arresting officer. That requirement would exclude informtion conveyed by another person, no matter what his reputation for, truth and reliability might be. 9 Thus, where the arresting officer comes upon a person dead on the street and sees a person running away with a knife from where the victim is sprawled the ground, he has personal knowledge of facts which render it highly probable that the person fleeing was the doer of the criminal deed. The arresting officer must, in other words, perceive through his own senses some act which directly connects the person to be arrested with the visible effects or corpus of a crime which has "just been committed."

6. The use of the words "has in fact just been committed" underscores the requirement that the time interval between the actual commission of the crime and the arrival of the arresting officer must be brief indeed. In the first place, the word "just" was fairly recently inserted in Section 5(b) by the 1985 Rules on Criminal Procedures, no doubt in order to underscore the point here being made. In the second place, a latitudinarian view of the phrase "has in fact just been committed" would obviously render pointless the requirement in Section 5(a) that the crime must have been committed "[in] the presence" of the arresting officer. In G.R. No. 86332, the warrantless arrest of Alfredo Nazareno 14-days after the occurrence of the killing with which he was charged along with other persons, cannot by any standard be justified under Section 5(b). In G.R. No. 81567, Dural was arrested without warrant while being treated in a hospital the day after the shooting of the policemen in which he was suspected to have been a participant. While 1-day may be substantially different from 14-days, still it must be pointed out that at the time Dural was arrested in the hospital, the killing of the two (2) policemen in Caloocan City far away from the St. Agnes Hospital in Quezon City could not reasonably be said to have been just committed. There was no showing, nor did the Court require it, that the arresting officers had been in "hot pursuit" of Dural beginning at the scene of the killing and ending the next day in the hospital.

7. It is worth noting that the requisite of "personal knowledge" on the part of the arresting officer who is determining "probable cause" right at the scene of the crime, is in a sense more exacting than the standard imposed by the Constitution upon the judge who, in the seclusion of his chambers, ascertains "probable cause" by

examining the evidence submitted before him. The arresting officer must himself have "personal knowledge"; the magistrate may rely upon the personal knowledge of the witnesses examined by or for him in issuing a warrant of arrest. In the present Resolution, the majority begins with noting the requirement of "personal knowledge" in Section 5(b), but winds up in the next page with a very diluted standard of "reasonable belief and "good faith" on the part of the arresting officers. The stricter standard is properly applicable to the officers seizing a person without a warrant of arrest, for they are acting in derogation of a constitutional right. That the person unlawfully arrested without a warrant may later turn out to be guilty of the offense he was suspected of in the first place is, course, quite beside the point. Even a person secretly guilty some earlier crime is constitutionally entitled to be secure from warrantless arrest, unless he has in fact committed physically observable criminal acts in the presence of the arresting officer or hadjust committed such acts when the arresting officer burst upon the scene.

8. Examination of the utilization in the majotity Resolution of the doctrine of "continuing crimes," shows that doctrine is here being used as a substitute for the requirement under Section 5(a) that the offense "has in fact just been presence of the arresting officer arrived, but rather because the person to be arrested is suspected of having committed a crime in the future. The pertinent portion of the majority Resolution reads:

. . . Dural did not cease to be, or because less of a subversive, FOR PURPOSE OF ARREST, simply because he was, at the time of arrest, confined in the St. Agnes Hospital. . . . That Dural had shot the two (2) policemen in Caloocan City as part of his mission as a "sparrow" (NPA member) did not end there and then. Dural, given another opportunity, would have shot or would shoot other policemen anywhere as agents or representatives of organized government. It is in this sense that subversion like rebelion (or insurrection) is perceived here as a continuing offense. Unlike other so-called "common" offenses, i.e., adultery, murder, arson, etc., which generally end upon their commission,subversion and rebellion are anchored on an ideological base which compels the repetition of the same acts of lawlessness and violence until the overriding objectives of overthrowing organized government is attained. (Emphasis supplied)

9. I respectfully submit that an examination of the "continuing crimes" doctrine as actually found in our case law offers no reasonable basis for such use of the dotrine. More specifically, that doctrine, in my submission, does notdispence with the requirement that overt acts recognizably criminal in character must take place in the presence of the arresting officer, or must have just been committed when the arresting officer arrived, if the warrantless arrest it to be lawful. The "continuing crimes" doctrine in our case law (before rendition of Garcia-Padilla vs. Enrile10 does not sustain warrantless arrests of person to be arrested is, as it were, merely resting in between specific lawless and commit the moment he gets an opportunity to do so.

Our case law shows that the "continuing crimes" doctrine has been used basically in relation to two (2) problems: the first problem is that of determination of whether or not a particular offense was committed within the territorial jurisdiction of the trial court; the second problem is that of determining whether a single crime or multiple crimes were committed where the defense of double jeopardy is raised.

10. In respect of the first problem, the gist of our case law is that where some of the ingredients or elements of an offense taken place within the territorial jurisdiction of

one court and some other ingredients or elements of the same offense occur in the territory of another court, (e.g., estafa or malversation) either one of the two courts has jurisdiction to try the offense. Where all of the essential elements of a crime take place within the territory of one court but "by reason of he very nature of the offense committed" the violation of the law is deemed to be "continuing," then the court within whose territorial jurisdiction the offense continues to be committed, has jurisdiction to try a person charged with such offense. In the latter case, the offense is deemed to be continuing because some or all of the elements constituting the offense occurred within jurisdiction of the second court (e.g., kidnapping and illegal detention; libel; evasion of service of sentence). The criminal acts are regarded as repeated or as continuing within the province or city where the defendant was found and arrested. 11 Clearly, overt acts of the accussed constituting elements of the crime charged must be shown to have been committed within the territorial jurisdiction of the court where he is charged.

11. Turning to the second type of problem, the question is normally presented in terms of whether one crime or multiple crimes were committed by the accused. Where the series of acts actually alleged and proven to have been committed by the accused constituted only one and the same crime, the defense of double jeopardy becomes available where a second information is filed covering acts later in the series. Upon the other hand, where the acts of the accused constituted discrete, multiple offenses, each act comprising a distinct and separate offense, the double jeopardy defense is non-available. 12 The point worth stressing is that in passing upon the issue relating to the unity or multiplicity of offense committed, the overt acts of the accused constitutive either of the single offense or of the plural offenses, must be shown.

12. My final submission, is that, the doctrine of "continuing crimes," which has its own legitimate function to serve in our criminal law jurisprudence, cannot be invoked for weakening and dissolving the constitutional guarantee against warrantless arrest. Where no overt acts comprising all or some of the elements of the offense charged are shown to have been committed by the person arrested without warrant, the "continuing crime" doctrine should not be used to dress up the pretense that a crime, begun or committed elsewhere, continued to be committed by the person arrested in the presence of the arresting officer. The capacity for mischief of such a utilization of the "continuing crimes" doctrine, is infinitely increased where the crime charged does not consist of unambiguous criminal acts with a definite beginning and end in time and space (such as the killing or wounding of a person or kidnapping and illegal dentention or arson) but rather of such problematic offenses as membership in or affiliation with or becoming a member of, a subversive association or organization. For in such cases, the overt constitutive acts may be morally neutral in themselves, and the unlawfulness of the acts a function of the aims or objectives of the organization involved. Note, for instance, the following acts which constitute prima facie evidence of "membership in any subversive association:" 13

a) Allowing himself to be listed as a member in any book or any of the lists, records, correspondence, or any other document of the organization;

b) Subjecting himself to the discipline of such association or organization in any form whatsoever;

c) Giving financial contribution to such association or organization in dues, assessments, loans or in any other forms;

xxx xxx xxx

f) Conferring with officers or other members of such association or organization in furtherance of any plan or enterprise thereof;

xxx xxx xxx

h) Preparing documents, pamphlets, leaflets, books, or any other type of publication to promote the objectives and purposes of such association or organization;

xxx xxx xxx

k) Participating in any was in the activities, planning action, objectives, or purposes of such association or organization;

xxx xxx xxx

It may well be, as the majority implies, that the constitutional rule against warrantless arrests and seizures makes the law enforcement work of police agencies more difficult to carry out. It is not our Court's function, however, and the Bill of Rights was not designed, to make life easy for police forces but rather to protect the liberties of private individuals. Our police forces must simply learn to live with the requirements of the Bill of Rights, to enforce the law by modalities which themselves comply with the fundamental law. Otherwise they are very likely to destroy, whether through sheer ineptness or excess of zeal, the very freedoms which make our polity worth protecting and saving.

REGALADO, J.: Separate Opinion:

While I have heretofore concurred in the ponencia in the above-entitled cases and I reiterate such concurrence, I wish to unburden myself of some reservations on the rationale adopted in G.R. No. 86332.

It is posited in this resolution that "(a)lthough the killing of Bunye II occurred on 14 December 1988, while Nazareno's arrest without warrant was made only on 28 December 1988, or 14 days later, the arrest falls under Section 5(b) of Rule 113, since it was only on 28 December 1988 that the police authorities came to know that Nazareno was probably one of those guilty in the killing of Bunye II."

I am afraid that there has been a misapplication of Section 5(b) of Rule 113 which, while authorizing a peace officer or a private person to effect a warrantless arrest, specifically conditions that grant of authority upon the situation "(w)hen an offense has in fact just been committed, and he has personal knowledge of facts indicating that the person to be arrested has committed it."

It is significant that when the corresponding provisions of the 1964 Rules of Court were amended in the 1985 Rules of Criminal Procedure, the particular revision of paragraph (b) of the aforesaid section consisted in imposing the requirements that the person making the arrest has personal knowledge of the facts indicating that the arrestee is responsible for an offense which has just been committed.

Now, according to the resolution, "the records show that in the morning of 14 December 1988, Romulo Bunye II was killed by a group of men in Alabang,

Muntinlupa, Metro Manila; that at about 5 o'clock in the morning of 28 December 1988, Ramil Regala, one of the suspects in the said killing, was arrested and he pointed to Narciso Nazareno as one of his companions during the killing of Bunye II; that at 7:20 of the same morning (28 December 1988), the police agents arrested Nazareno, without warrant, for investigation."

Since, clearly, the arresting police agents merely acted upon the information imparted by one of the suspects, Ramil Regala, the resolution has emasculated the requirement in Section 5(b) that the person making the arrest must have had personal knowledge of factual indications regarding the complicity or liability of the arrestee for the crime. Yet, that amendment requiring such personal knowledge must have been designed to obviate the practice in the past of warrantless arrests being effected on the basis of or supposed reliance upon information obtained from third persons who merely professed such knowledge or, worse, concocted such reports for variant reasons not necessarily founded on truth.

Further, and obviously as an added deterrent to the possibility that such arrest without a warrant may result from imputations based on dubious motives, it is now required that the crime must have just been committed. The recency contemplated here, in relation to the making of the warrantless arrest, is the time when the crime was in fact committed, and not the time when the crime was in fact committed, and not the time when the person making the arrest learned or was informed of such commission. Otherwise, at the risk of resorting to reductio ad absurdum, such warrantless arrests could be validly made even for a crime committed, say, more than a year ago but of which the arresting officer received information only today.

The brevity in the interval of time between the commission of the crime and the arrest, as now required by Section 5(b), must have been dictated by the consideration, among others, that by reason of such recency of the criminal occurrence, the probability of the arresting officer acquiring personal and/or reliable knowledge of such fact and the identity of the offender is necessarily enhanced, if not assured. The longer the interval, the more attenuated are the chances of his obtaining such verifiable knowledge. In the case under consideration, the obtention of information of a crime committed fourteen (14) days earlier necessarily undermines the capacity of the arresting officer to ascertain the reliability of the information he is acting upon and to acquire personal knowledge thereof after such verification.

It may be granted, as an ad hoc proposition, that the arrest of Nazareno was based on probable cause and it was not whimsical, at least, in this instance. It is correct to say that prevailing conditions affecting national security and stability must also be taken into account. However, for the reasons above elucidated, I take exception to the conclusion that the conditions in Section 5(b) of Rule 113 had been complied with in this case. It is true that the corresponding information was filed against Nazareno shortly after his arrest but that, precisely, is another cause for controversy. Definitely, if the rules on arrest are scrupulously observed, there would be no need for the usual invocation of Ilagan as a curative balm for unwarranted incursions into civil liberties.

SARMIENTO, J.: dissenting:

I reiterate my dissent. I submit that in spite of its "clarificatory" resolution, 1 the majority has not shown why the arrests in question should after all be sustained.

According to the majority, Rolando Dural (G.R. No. 815667) was validly arrested without a warrant and that his arrest was sufficient compliance with the provisions of Section 5, paragraph (b), Rule 113, of the Rules of Court. According to the majority,

he, Dural, was after all committing an offense (subversion being supposedly a continuing offense) and that the military did have personal knowledge that he had committed it. "Personal knowledge," according to the majority, is supposedly no more than "actual belief or reasonable grounds . . . of suspicion," and suspicion is supposedly reasonable:

. . . when, in the absence of actual belief of the arresting officers, the suspicion that the person to be arrested is probably guilty of committing the offense, is based on actual facts, i.e., supported by circumstances sufficiently strong in themselves to create the probable cause of guilty of the person to be arrested. A reasonable suspicion therefore must be founded on probable cause, coupled with good faith on the part of the peace officers making the arrest. 2

As I said, I dissent.

First, and as I held, subversion, as an offense punished by Executive Order No. 167, as amended by Executive Order No. 276, in relation to Republic Act No. 1700, 3 is made up of "overt acts." 4 In People vs. Ferrer 5 this Court defined "overt acts" as follows:

. . . Indeed, were the Anti-Subversion Act a bill of attainder, it would be totally unnecessary to charge Communists in court, as the law alone, without more would suffice to secure their punishment. But the undeniable fact is that their guilt still has to be judicially established. The Government has yet to prove at the trial that the accused joined the Party knowingly, willfully and by overt acts, and that they joined the Party, knowing its subversive character and with specific intent to further its basic objective, i.e., to overthrow the existing government by force, deceit, and other illegal means and place the country under the control and domination of a foreign power.

As Ferrer held, that above "overt acts" constitute the essence of "subversion," and as Ferrer has taken pains to explain, the law requires more than mere membership in a subversive organization to make the accused liable. I respectfully submit that for purposes of arrest without a warrant, that above "overt acts" should be visible to the eyes of the police officers (if that is possible), otherwise the accused can not be said to be committing any offense within the contemplation of the Rules of Court, to justify police action, and otherwise, we would have made "subversion" to mean mere "membership" when, as Ferrer tells us, subversion means more that mere membership.

I find strained that majority's interpretation of "personal knowledge," as the majority would interpret it, as no more than "actual belief or reasonable suspicion," that is, "suspicion . . . based on actual facts . . . [and] founded on probable cause, coupled with good faith . . . " 6 I submit that personal knowledge means exactly what it says — that the peace officer is aware that the accused has committed an offense, in this case, membership in a subversive organization with intent to further the objectives thereof. It is to be noted that prior to their amendment, the Rules (then Section 6) spoke of simple "reasonable ground" — which would have arguably encompassed "actual belief or suspicion . . . coupled with good faith" referred to by the majority. Section 5(b) as amended, however, speaks of "personal knowledge"; I respectfully

submit that to give to "personal knowledge" the same meaning as "reasonable ground" is to make the amendment as useless exercise.

What, furthermore, we have here was a mere "confidential information" that a "sparrow man" had been wounded and was recuperating in the hospital, and that that person was Rolando Dural. Clearly, what we have is second-hand, indeed, hearsay, information, and needless to say, not personal knowledge.

I would like to point out that in the case of People vs. Burgos 7 this Court rejected a similar arrest because of lack of personal knowledge, and, as the Court held, "[w]hatever knowledge was possessed by the arresting officers came in its entirety from the information furnished by [another] . . ." 8 I do not see how We can act differently here.

I do not find the majority's reliance on the case of United States vs. Santos 9 to be well-taken. Santos involved a prosecution for coercion (against a peace officer for affecting an arrest without a warrant). Santos, however, did in fact affirm the illegality of the arrest but absolved the peace officer on grounds of good faith. Santos did not say that so long as he, the peace officer, was acting in good faith, as the majority here says that the military was acting in good faith, the arrest is valid. Quite to the contrary, Santos suggested that notwithstanding good faith on the part of the police, the arrest is nevertheless subject to question.

As far as the information leading to the arrest of Dural is concerned, the majority would quite evidently swallow the version of the military as if in the first place, there truly was an information, and that it was reliable, and that "it was found to be true;" 10 and as if, in the second place, the hospital authorities (the alleged informants) could have legally tipped the military under existing laws. We have, it should be noted, previously rejected such a species of information because of the lack of "compulsion for [the informant] to state truthfully his charges under pain of criminal prosecution." 11 Here, it is worse, because we do not even know who that informant was.

The majority is apparently unaware that under Executive Order No. 212, amending Presidential Decree No. 169, hospital establishments are required to report cases of acts of violence to "government health authorities" — not to the military.

I am concerned that if the military were truly armed with reliable information and if it did have personal knowledge to believe that Dural had committed an offense, there was no reason for the military to ignore the courts, to which the Constitution after all, gives the authority to issue warrants. As People vs. Burgos held:

More important, we find no compelling reason for the haste with which the arresting officers sought to arrest the accused. We fail to see why they failed to first go through the process of obtaining a warrant of arrest, if indeed they had reasonable ground to believe that the accused had truly committed a crime. There is no showing that there was a real apprehension that the accused was on the verge of flight or escape. Likewise, there is no showing that the whereabouts of the accused were unknown. 12

I do not likewise see how the petitioners Amelia Roque, Wilfredo Buenaobra, Domingo Anonuevo, Ramon Caspile, and Vicky Ocaya (G.R. Nos. 84581-82; 83162) could have been lawfully picked up under similar circumstances. As the majority points out,

the military had (again) acted on a mere tip-the military had no personal knowledge (as I elaborated what personal knowledge means). Second, I do not think that the majority can say that since Amelia Roque, et al. "were NPA's anyway" (As Roque, et al. allegedly admitted), immediatearrests were "prudent" and necessary. As I said, that Roque, et al. were admitted "NPA's" is (was) the question before the trial court and precisely, the subject of controversy. I think it is imprudent for this Court to pass judgment on the guilt of the petitioners-since after all, and as the majority points out, we are talking simply of the legality of the petitioner's arrests.

More important, that Roque, et al. "were NPA's anyway" is evidently, a mere say-so of the military, and evidently, the Court is not bound by bare say-so's. Evidently, we can not approve an arrest simply because the military says it is a valid arrest (the accused being "NPA's anyway")— that would be abdication of judicial duty and when, moreover, the very basis of the claim rests on dubious "confidential information."

According to the majority, we are speaking of simple arrests; we are not talking of the guilt or innocence of the accused. I certainly hope not, after the majority referred to Rolando Dural as a "sparrow man" and having Amelia Roque, et al. admit to being NPA's."

It is to gloss over at any rate, the nature of arrest as a restraining on liberty. It is to me immaterial that the guilt of the accused still has to be established, since meanwhile, the accused are in fact being deprived of liberty. Arrest to me, is something to crow about, even if in the opinion of the majority, it is nothing to crow about (a mere "administrative measure").

I can not, again, accept the validity of the arrests of Deogracia Espiritu or Narciso Nazareno (G.R. Nos. 85727; 86332). Espiritu was supposedly picked up for inciting to sedition, in uttering supposedly, on November 22, 1988, the following:

Bukas tuloy and welga natin . . . hanggang sa magkagulo na. 13

Espiritu however was arrested on November 23, 1988, a day later-and in no way is "inciting to sedition" a continuing offense. Obviously, the majority is not saying that it is either, but that:

. . . Many persons may differ as to the validity of such perception and regard the language as falling within free speech guaranteed by the Constitution. But, then, Espiritu has not lost the right to insist, during the trial on the merits, that he was just exercising his right to free speech regardless of the charged atmosphere in which it was uttered. But, the authority of the peace officers to make the arrest, without warrant, at the time the words were uttered, or soon thereafter, is still another thing. In the balancing of authority and freedom, which obviously becomes difficult at times, the Court has, in this case, titled the scale in favor of authority but only for purposes of the arrest (not conviction). Let it be noted that the Court has ordered the bail for Espiritu's release to be reduced from P60,000.00 to P10,000.00. 14

And obviously, the majority is concerned about whether or not Espiritu's speech was after all, protected speech, but apparently, that is also of no moment, since: (1) that is a matter of defense; (2) we are talking of mere arrests, and as far as arrests are

concerned, "the Court has, in this case, titled in favor of authority," 15 and (3) we have, anyway, given a reduced bail to the accused.

First, that the accused's statement is in the category of free speech is not only plain to my mind, it is a question I do not think the majority can rightly evade in these petitions without shirking the Court's constitutional duty. It is to my mind plain, because it does not contain enough "fighting words" recognized to be seditious. 16 Secondly, it is the very question before the Court—whether or not the statement in question constitutes an offense for purposes of a warrantless arrest. It is a perfectly legal question to my mind and I am wondering why we can not answer it.

What the majority has not answered, as I indicated, is that inciting to sedition is in no way a continuing offense, and as I said, the majority is not apparently convicted that it is, either. Of course, the majority would anyway force the issue: "But the authority of the peace officers to make the arrest, without warrant, at the time the words were uttered, or soon thereafter, is still another thing." 17 First, Espiritu was picked up the following day, and in no way is "the following day" "soon thereafter". Second, we would have stretched the authority of peace officers to make warrantless arrests for acts done days before. I do not think this is the contemplation of the Rules of Court.

As in the case of Burgos in People vs. Burgos, 18 Espiritu was neither "on the verge of flight or escape" 19 and there was no impediment for the military to go through the judicial processes, as there was none in the case of Burgos.

In the case of People vs. Aminnudin, 20 this Court held that unless there "was a crime about to be committed or had just been committed," and unless there existed an urgency as where a moving vehicle is involved, instant police action can not be justified.

"In the balancing of authority and freedom," states the majority, "the Court has, in this case, titled in favor of authority but only for purposes of the arrest (not conviction)." 21 It is a strange declaration, first, because it is supported by no authority (why the Court should "tilt" on the side of Government), and second, because this Court has leaned, by tradition, on the side of liberty — as the custodian of the Bill of Rights — even if we were talking of "simple" arrests.

I do not understand why this Court should "tilt" . . . the scale in favor of authority . . . in this case," 22 as if to say that normally, this Court would have tilted the scales the other way. I do not understand why these cases are apparently, special cases, and apparently, the majority is not telling us neither. I am wondering why, apart from the fact that these cases involved, incidentally, people who think differently from the rest of us.

The majority goes on:

Although the killing of Bunye II occurred on 14 December 1988, while Nazareno's arrest without warrant was made only on 28 December 1988, or 14 days later, the arrest falls under Section 5(b) of Rule 113, since it was only on 28 December 1988 that the police authorities came to know that Nazareno was probably one of those guilty in the killing of Bunye II. 23

With all due respect, I do not think that the majority is aware of the serious implications of its pronouncement on individual rights (and statutory construction in general), and I

feel I am appropriately concerned because as a member of the Court, I am co-responsible for the acts of my colleagues and I am afraid that I may, rightly or wrongly, be in time made to defend such an indefensible pronouncement.

Section 5(b) of Rule 113 is clear and categorical: the offense must have been "just committed" and the authorities must have "personal knowledge."

In no way can an offense be said to have been "just committed" fourteen days after it was in fact (allegedly) committed. In no way can the authorities be said to have "personal knowledge" two weeks thereafter; whatever "personal knowledge" they have can not possibly be "personal knowledge" of a crime that had "just been committed;" whatever "personal knowledge" they have is necessarily "personal knowledge" of a crime committed two weeks before.

In no way can Nazareno's arrest be said to be an arrest sanctioned by the exceptional provisions of the Rules.

I am not saying that the military can not act in all cases, and it is sheer ignorance to suppose that I am saying it, (or worse, that I am "coddling criminals"). I am not saying that a suspected criminal, if he can not be arrested without a warrant, can not be arrested at all — but that the military should first procure a warrant from a judge before effecting an arrest. It is not too much to ask of so-called law enforcers.

As it is, the majority has enlarged the authority of peace officers to act, when the Rules have purposely limited it by way of an exception, precisely, to the general rule, mandated by the Constitution no less, that arrests may be done only through a judicial warrant. As it is, the majority has in fact given the military the broadest discretion to act, a discretion the law denies even judges 24 — today it is fourteen days, tomorrow, one year, and sooner, a decade. I submit that a year, a decade, would not be in fact unreasonable, following the theory of the majority, since the military can claim anytime that it "found out only later," as the majority did not find it unreasonable for the Capital Command to claim that it "came to know that Nazareno was probably one of those guilty in the killing of Bunye II" 25—and none of us can possibly dispute it.

I would like to stress strongly that we are not talking of a simple "administrative measure" alone—we are talking ofarrests, of depriving people of liberty—even if we are not yet talking of whether or not people are guilty. That we are not concerned with guilt or innocence is hardly the point, I respectfully submit, and it will not minimize the significance of the petitioners' predicament.

With respect to Wilfredo Buenaobra, I submit that the majority has, as in the cases of Amelia Roque, et al., ignored the fact that Buenaobra's alleged "admission" (actually, an uncounselled confession) was precisely, the basis for Buenaobra's arrest. It is to beg the question, I respectfully submit, to approve the military's action for the reason that Buenaobra confessed, because Buenaobra confessed for the reason that the military, precisely, pounced on him. I am not to be mistaken for prejudging Buenaobra's innocence (although it is supposed to be presumed) but I can not imagine that Buenaobra would have voluntarily proclaimed to the military that he was an NPA courier so that the military could pounce on him.

I respectfully submit that the cases Garcia vs. Padilla 26 and Ilagan vs. Enrile 27 have been better days. I do not see how this court can continuously sustain them "where national security and stability are still directly challenged perhaps with greater vigor from the communist rebels." 28 First and foremost, and as the majority has conceded,

we do not know if we are in fact dealing with "Communists." The case of Deogracias Espiritu, for one, hardly involves subversion. Second, "Communism" and "national security" are old hat — the dictator's own excuses to perpetuate tyranny, and I am genuinely disappointed that we would still fall for old excuses. Third, Garcia and Ilagan rested on supposed grounds that can not be possibly justified in a regime that respects the rule of law — that the Presidential Commitment Order (PCO) is a valid presidential document (Garcia) and that the filing of an information cures a defective arrest (Ilagan). Fourth and finally, it is evident that neither "Communist threat" nor "national security" are valid grounds for warrantless arrests under Section 5(b) of Rule 113.

I most respectfully submit that Garcia and Ilagan have not only been diluted by subsequent jurisprudence (e.g., People vs. Burgos, supra), they are relics of authoritarian rule that can no longer be defended, if they could have been defended, in Plaza Miranda or before our own peers in the bar.

"What is important," says the majority, "is that every arrest without warrant be tested as to its legality, via habeas corpus proceedings." 29 I supposed that goes without saying. But it is also to patronize the petitioners and simply, to offer a small consolation, when after all, this Court is validating their continued detention. 30 With all due respect, I submit that it is nothing for which the public should be elated.

A Final Word

As I began my dissent, in this Resolution and the Decision sought to be reconsidered, I reiterate one principle: The State has no right to bother citizens without infringing their right against arbitrary State action. "The right of the people," states the Constitution, "to be secure in their persons, houses, papers, and effects against unreasonable searchers and seizures of whatever nature and for any purpose shall be inviolable . . . ." 31 "The State," the Charter likewise states, "values the dignity of every human person and guarantees full respect for human rights." 32 The Constitution states the general rule — the majority would make the exception the rule, and the rule the exception. With all due respect, this is not what constitutionalism is all about.

I submit that the "actual facts and circumstances" the majority refers to are, in the first place, doubtful, the "actual facts and circumstances" being no more than "confidential information" (manufactured or genuine, we have no way of telling) and in the second place, any information with which the military (or police) were armed could no more than be hearsay, not personal, information. I submit that the "actual facts and circumstances" the majority insists on can not justify the arrests in question under Section 5(b) of Rule 113, the rule the majority insists is the applicable rule.

Apparently, Section 5(b) is not the applicable rule, as far as Deogracias Espiritu and Narciso Nazareno are concerned; certainly, it is not the Section 5(b) I know. As I indicated, Espiritu was arrested one day after the act, allegedly, inciting to sedition; Nazareno was picked up fourteen days after it (allegedly, murder). Yet, the majority would approve the police's actions nonetheless because the police supposedly "found out only later." I submit that the majority has read into Section 5(b) a provision that has not been written there.

"More than the allure of popularity of palatability to some groups," concludes the majority, "what is important is that the Court be right." 33

Nobody has suggested in the first place, that Umil was and is a question of popularity or palatability. Umil is a question, on the contrary, of whether or not the military (or police), in effecting the arrests assailed, had complied with the requirements of law on warrantless arrests. Umil is a question of whether or not this Court, in approving the military's actions, is right.

In spite of "EDSA", a climate of fear persists in the country, as incidences of disappearances, torture, hamletting, bombings, saturation drives, and various human rights violations increase in alarming rates. In its update for October, 1990, the Task Force Detainees of the Philippines found:

An average of 209 arrested for political reasons monthly since 1988, 94% of them illegally;

Four thousand four hundred eight (4,408) political detentions from January, 1989 to September, 1990, 4,419, illegally;

Of those arrested, 535 showed signs of torture; 280 were eventually salvaged, 40, of frustrated salvage, and 109 remained missing after their arrest;

Forty (40) cases of massacres, with 218 killed; 54 cases of frustrated massacre, in which 157 were wounded;

The victims belonged to neighborhood and union organizations;

Since February, 1986, 532 of those illegally arrested were women;

From January to June 1990, 361 children were detained for no apparent reason;

One million ten thousand four hundred nine (1,010,409) have been injured as a consequence of bombing, shellings, and food blockades undertaken by the military since 1988. 34

It is a bleak picture, and I am disturbed that this Court should express very little concern. I am also disappointed that it is the portrait of the Court I am soon leaving. Nonetheless, I am hopeful that despite my departure, it will not be too late.

Motions denied.

# Footnotes

1 G.R. No. 61388, April 20,1983,121 SCRA 472.2 G.R. No. 70748, October 21,1985,139 SCRA 349.3 Section 1, Rule 102: "To what habeas corpus extends. — Except otherwise expressly provided by law, the writ of habeas corpus shall extend to all cases of illegal confinement or detention by which any person is deprived of his liberty, or by which the rightful custody of any person is withheld from the person entitled thereto.4 Villavicencio vs. Lukban, 39 Phil. 778.5 Ilagan vs. Enrile, G.R. No. 70748, October 21, 1985, 139 SCRA 349.6 Sayo vs. Chief of Police, 80 Phil. 859 (1948).7 Republic Act No. 1700 known as the "Anti-Subversion Act" titled "An Act to outlaw the CPP and similar associations, penalize membership therein

and for other purposes." (1957); and the subsequent related decrees such as Presidential Decree No. 885, entitled "Outlawing subversive organizations, penalizing membership therein, and for other purposes." (1976); and Presidential Decree No. 1835 entitled "Codifying the various laws on anti-subversion and increasing the penalties for membership in subversive organizations."8 G.R. No. 61388. April 20,1983,121 SCRA 472.9 US vs. Santos, 36 Phil. 851 (1917).10 Ibid.11 Ibid.12 Records of G.R. No. 81567, affidavit dated 4 February 1988.13 Rollo, pp. 311-312 (G.R. No. 81567).14 Presidential Decree No. 169 requires attending physicians and/or persons treating injuries from any form of violence, to report such fact to the Philippine Constabulary and prescribing penalties for any violation thereof.15 Decision dated 9 July 1990, pp. 19-20.16 Decision, pp. 10-11.17 Ibid., p. 12.18 Ibid., pp. 12-13.19 Ibid., pp. 14-15.20 Decision, p. 18.21 United States vs. Sanchez, No. 9294, March 30,1914, 27 Phil, 442.22 Ibid: "The legality of the detention does not depend upon the fact of the crime, but . . . upon the nature of the deed, wherefrom such characterization may reasonably be inferred by the officer or functionary to whom the law at that moment leaves the decision for the urgent purpose of suspending the liberty of the citizen."In People vs. Ancheta, it was held that "the legality of detention made by a person in authority or an agent thereof ... does not depend upon the juridical and much less the judicial fact of crime which, at the time of its commission, is not and cannot definitively be determined for the lack of necessary data and for jurisdiction but upon the nature of the deed. . . . ."23 United States vs. Santos, supra.24 Ibid.25 Article 124 of the Revised Penal Code provides:"ART. 124. Arbitrary detention. — Any public officer or employee who, without legal grounds. detains a person, shall suffer:1. The penalty of arresto mayor in its maximum period to prision correccional in its maximum period, if the detention has not exceeded threedays. . . .26 Damages for the impairment of rights and liberties of another person.27 Affidavit of Avelino Faustino dated 23 November 1988; Return of the Writ dated 25 November 1988; Decision dated 9 July 1990, pp. 23-24.28 Joint Affidavit of 5 police agents, dated 23 November 1988; Decision, supra.29 Affidavit of police agents, dated 28 December 1988, marked Exhibit "A" at the RTC, Biñan, Branch 24.30 Decision of 9 July 1990, pp. 9 and 12.31 Decision of 9 July 1990. p. 13.FELICIANO, J., concurring and dissenting:1 Salaysay vs. Castro, 98 Phil. 364 (1956).2 Realty Investments Inc. vs. Pastrana. 84 Phil. 842 (1949)-l Sayo vs. Chief of Police of Manila, 80 Phil. 859 (1948)3 64 Phil. 33 (1937).4 64 Phil. at 44.5 144 SCRA 1 (1986).6 144 SCRA at 14.7 See e.g., U.S. vs. Samonte, 16 Phil. 516 (1910).8 In People vs. Aminnudin, 163 SCRA 402 (1988), the Court, in nullifying a warrantless arrest, said, through Mr. Justice Cruz:"In the many cases where tills Court has sustained the warrantless arrest of violators on the Dangerous Drugs Act, it has always been shown that they were caught red-handed, as a result of what are popularly called "buy-bust" operations of the narcotics agents. Rule 113 was clearly applicable because at the precise time of arrest the accused was in the act of selling the prohibited drug.

In the case at bar, the accused-appellant was not, at the moment of his arrest, committing a crime nor was it shown that he was about to do so or that he had just done so. What he was doing was descending the gangplank of the M/V Wilcon 9 and there was no outward indication that called for his arrest. To all appearances, he was like any of the other passengers innocently disembarking from the vessel. It was only when the informer pointed to him as the carrier of the marijuana that he suddenly became suspect and so subject to apprehension. It was the furtive finger that triggered his arrest. The Identification by the informer was the probable cause as determined by the officers (and not a judge) that authorized them to pounce upon Aminnudin and immediately arrest him." (163 SCRA at 409-410) (emphasis supplied)9 People vs. Burgos, 114 SCRA 1 (1986).10 121 SCRA 472 (1983).11 Parulan vs. Director of Prisons, 22 SCRA 638 (1968); U.S. vs. Cunanan, 26 Phil. 376 (1913); U.S. vs. Santiago, 27 Phil. 408 (1914); U.S. vs. Laureaga, 2 Phil. 71 (1903).12 E.g. People vs. Zapanta and Bondoc, 88 Phil. 688 (1951) where the Court held that each instance of sexual intercourse constitute a separate crime of adultery, though the same persons and the same offended spouse are involved, and that a second information may be filed against the same accused for later acts of sexual intercourse.13 Section 6, P.D. 1835, 16 January 1981.Sarmiento, J.: dissenting:1 Resolution, 1.2 Supra; emphasis in the original.3 The majority cites Presidential Decrees Nos. 885 and 1835 and "related decrees;" both Presidential Decrees Nos. 885 and 1835 have been repealed by Executive Order No. 167, as amended by Executive Order No. 267.4 Please note that under Section 6 of Presidential Decree No. 1835, "[t]the following acts shall constitute prima facie evidence of membership in any subversive organization: (a) Allowing himself to be listed as a member in any book or any of the lists, records, correspondence, or any other document of the organization; (b) Subjecting himself to the discipline of such association or organization in any form whatsoever; (c) Giving financial contribution to such association or organization in dues, assessments, loans or in any other forms; (d) Executing orders, plans, or directives of any kind of such association or organization; (e) Acting as an agent, courier, messenger, correspondent, organizer, or in any other capacity, on behalf of such association or organization; (f) Conferring with officers or other members of such association or organization in furtherance of any plan or enterprise thereof; (g) Transmitting orders, directives, or plans of such association or organization orally or in writing or any other means of communication such as by signal, semaphore, sign or code; (h) Preparing documents, pamphlets, leaflets, books, or any other type of publication to promote the objectives and purposes of such association or organization; (i) Mailing, shipping, circulating, distributing, or delivering to other persons any material or propaganda of any kind on behalf of such association or organization; (j) Advising, counselling, or in other way giving instruction, information, suggestions, or recommendations to officers, or members or to any other person to further the objectives of such association or organization; and (k) Participating in any way in the activities, planning action, objectives, or purposes of such association or organization." Please note that none of these are alleged by the military in this case, assuming that the Decree still exists.5 Nos. L-32613-14, December 27, 1972, 48 SCRA 382; emphasis supplied. In Taruc vs. Ericta (No. L-34856, Nov. 29, 1989, 168 SCRA 63, 66-67), I held that People vs. Ferrer is no longer a good basis for sustaining the Anti-Subversion Act. I am not here invoking Ferrer to sustain it, but to discuss its elaboration of the provisions of Republic Act No. 1700.6 Resolution, supra.7 G.R. No. 68955, September 4, 1986, 144 SCRA 1.8 Supra, 14.9 36 Phil. 853 (1917).10 Resolution, supra, 10.11 People vs. Burgos, supra, 15.

12 Supra.13 Resolution, supra, 15.14 Supra, 16.15 Supra.16 See United States vs. Apurado, 7 Phil. 422 (1907).17 Resolution, supra; emphasis supplied.18 Supra.19 At 15.20 G.R. No. 74869, July 6, 1988, 163 SCRA 402.21 Resolution, supra.22 Supra, 17.23 Supra.24 See RULES OF COURT, supra, Rule 112, sec. 5, on the number of days a judge may act.25 Resolution, supra.26 G.R. No. 61388, April 20, 1983, 121 SCRA 472.27 G.R. No. 70748, October 21, 1985, 139 SCRA 349.28 Resolution, supra, 18-19.29 Resolution, supra, 19.30 Except for Rolando Dural, the rest of the petitioners have been acquitted by the lower courts trying their cases.31 CONST., art. III, sec. 2.32 Supra, art. II, sec. 11.33 Resolution, supra, 19.34 Manila Chronicle, October, 1990.


Manila

EN BANC

G.R. No. 164007 August 10, 2006

LT. (SG) EUGENE GONZALES, LT. (SG) ANDY TORRATO, LT. (SG) ANTONIO TRILLANES IV, CPT. GARY ALEJANO, LT. (SG) JAMES LAYUG, CPT. GERARDO GAMBALA, CPT. NICANOR FAELDON, LT. (SG) MANUEL CABOCHAN, ENS. ARMAND PONTEJOS, LT. (JG) ARTURO PASCUA, and 1LT. JONNEL SANGGALANG, Petitioners,vs.GEN. NARCISO ABAYA, in his capacity as Chief of Staff of the Armed Forces of the Philippines, and B. GEN. MARIANO M. SARMIENTO, JR., in his capacity as the Judge Advocate General of the Judge Advocate General’s Office (JAGO), Respondents.

D E C I S I O N

SANDOVAL-GUTIERREZ, J.:

For our resolution is the Petition for Prohibition (with prayer for a temporary restraining order) filed by the above-named members of the Armed Forces of the Philippines (AFP), herein petitioners, against the AFP Chief of Staff and the Judge Advocate General, respondents.

The facts are:

On July 26, 2003, President Gloria Macapagal Arroyo received intelligence reports that some members of the AFP, with high-powered weapons, had abandoned their designated places of assignment. Their aim was to destabilize the government. The President then directed the AFP and the Philippine National Police (PNP) to track and arrest them.

On July 27, 2003 at around 1:00 a.m., more than 300 heavily armed junior officers and enlisted men of the AFP – mostly from the elite units of the Army’s Scout Rangers and the Navy’s Special Warfare Group – entered the premises of the Oakwood Premier Luxury Apartments on Ayala Avenue, Makati City. They disarmed the security guards and planted explosive devices around the building.

Led by Navy Lt. (SG) Antonio Trillanes IV, the troops sported red armbands emblazoned with the emblem of the"Magdalo" faction of the Katipunan. 1 The troops then, through broadcast media, announced their grievances against the administration of President Gloria Macapagal Arroyo, such as the graft and corruption in the military, the illegal sale of arms and ammunition to the "enemies" of the State, and the bombings in Davao City intended to acquire more military assistance from the US government. They declared their withdrawal of support from their Commander-in-Chief and demanded that she resign as President of the Republic. They also called for the resignation of her cabinet members and the top brass of the AFP and PNP.

About noontime of the same day, President Arroyo issued Proclamation No. 427 declaring a state of rebellion, followed by General Order No. 4 directing the AFP and PNP to take all necessary measures to suppress the rebellion then taking place in Makati City. She then called the soldiers to surrender their weapons at five o’clock in the afternoon of that same day.

In order to avoid a bloody confrontation, the government sent negotiators to dialogue with the soldiers. The aim was to persuade them to peacefully return to the fold of the law. After several hours of negotiation, the government panel succeeded in convincing them to lay down their arms and defuse the explosives placed around the premises of the Oakwood Apartments. Eventually, they returned to their barracks.

A total of 321 soldiers, including petitioners herein, surrendered to the authorities.

The National Bureau of Investigation (NBI) investigated the incident and recommended that the military personnel involved be charged with coup d’etat defined and penalized under Article 134-A of the Revised Penal Code, as amended. On July 31, 2003, the Chief State Prosecutor of the Department of Justice (DOJ) recommended the filing of the corresponding Information against them.

Meanwhile, on August 2, 2003, pursuant to Article 70 of the Articles of War, respondent General Narciso Abaya, then AFP Chief of Staff, ordered the arrest and detention of the soldiers involved in the Oakwood incident and directed the AFP to conduct its own separate investigation.

On August 5, 2003, the DOJ filed with the Regional Trial Court (RTC), Makati City an Information for coup d’etat 2against those soldiers, docketed as Criminal Case No. 03-2784 and eventually raffled off to Branch 61, presided by Judge Romeo F. Barza. 3 Subsequently, this case was consolidated with Criminal Case No. 03-2678, involving the other accused, pending before Branch 148 of the RTC, Makati City, presided by Judge Oscar B. Pimentel.

On August 13, 2003, the RTC directed the DOJ to conduct a reinvestigation of Criminal Case No. 03-2784.

On the same date, respondent Chief of Staff issued Letter Order No. 625 creating a Pre-Trial Investigation Panel tasked to determine the propriety of filing with the military tribunal charges for violations of the Articles of War under Commonwealth Act No. 408, 4 as amended, against the same military personnel. Specifically, the charges are: (a) violation of Article 63 for disrespect toward the President, the Secretary of National Defense, etc., (b) violation of Article 64 for disrespect toward a superior officer, (c) violation of Article 67 for mutiny or sedition, (d) violation of Article 96 for conduct unbecoming an officer and a gentleman, and (e) violation of Article 97 for conduct prejudicial to good order and military discipline.

Of the original 321 accused in Criminal Case No. 03-2784, only 243 (including petitioners herein) filed with the RTC, Branch 148 an Omnibus Motion praying that the said trial court assume jurisdiction over all the charges filed with the military tribunal. They invoked Republic Act (R.A.) No. 7055. 5

On September 15, 2003, petitioners filed with the Judge Advocate General’s Office (JAGO) a motion praying for the suspension of its proceedings until after the RTC shall have resolved their motion to assume jurisdiction.

On October 29, 2003, the Pre-Trial Investigation Panel submitted its Initial Report to the AFP Chief of Staff recommending that the military personnel involved in the Oakwood incident be charged before a general court martial with violations of Articles 63, 64, 67, 96, and 97 of the Articles of War.

Meanwhile, on November 11, 2003, the DOJ, after conducting a reinvestigation, found probable cause against only 31 (petitioners included) of the 321 accused in Criminal Case No. 03-2784. Accordingly, the prosecution filed with the RTC an Amended Information. 6

In an Order dated November 14, 2003, the RTC admitted the Amended Information and dropped the charge ofcoup d’etat against the 290 accused.

Subsequently, or on December 12, 2003, the Pre-Trial Investigation Panel submitted its Final Pre-Trial Investigation Report 7 to the JAGO, recommending that, following the "doctrine of absorption," those charged withcoup d’etat before the RTCshould not be charged before the military tribunal for violation of the Articles of War.

For its part, the RTC, on February 11, 2004, issued an Order 8 stating that "all charges before the court martial against the accused…are hereby declared not service-connected, but rather absorbed and in furtherance of the alleged crime of coup d’etat." The trial court then proceeded to hear petitioners’ applications for bail.

In the meantime, Colonel Julius A. Magno, in his capacity as officer-in-charge of the JAGO, reviewed the findings of the Pre-Trial Investigation Panel. He recommended that 29 of the officers involved in the Oakwood incident, including petitioners, be prosecuted before a general court martial for violation of Article 96 (conduct unbecoming an officer and a gentleman) of the Articles of War.

On June 17, 2004, Colonel Magno’s recommendation was approved by the AFP top brass. The AFP Judge Advocate General then directed petitioners to submit their

answer to the charge. Instead of complying, they filed with this Court the instant Petition for Prohibition praying that respondents be ordered to desist from charging them with violation of Article 96 of the Articles of War in relation to the Oakwood incident. 9

Petitioners maintain that since the RTC has made a determination in its Order of February 11, 2004 that the offense for violation of Article 96 (conduct unbecoming an officer and a gentleman) of the Articles of War is not service-connected, but is absorbed in the crime of coup d’etat, the military tribunal cannot compel them to submit to its jurisdiction.

The Solicitor General, representing the respondents, counters that R.A. No. 7055 specifies which offenses covered by the Articles of War areservice-connected. These are violations of Articles 54 to 70, 72 to 92, and 95 to 97. The law provides that violations of these Articles are properly cognizable by the court martial. As the charge against petitioners is violation of Article 96 which, under R.A. No. 7055 is a service-connected offense, then it falls under the jurisdiction of the court martial.

Subsequently, petitioners filed with this Court a Supplemental Petition raising the additional issue that the offense charged before the General Court Martial has prescribed. Petitioners alleged therein that during the pendency of their original petition, respondents proceeded with the Pre-Trial Investigation for purposes of charging them with violation of Article 96 (conduct unbecoming an officer and a gentleman) of the Articles of War; that the Pre-Trial Investigation Panel then referred the case to the General Court Martial; that "almost two years since the Oakwood incident on July 27, 2003, only petitioner Lt. (SG) Antonio Trillanes was arraigned, and this was done under questionable circumstances;" 10 that in the hearing of July 26, 2005, herein petitioners moved for the dismissal of the case on the ground that they were not arraigned within the prescribed period of two (2) years from the date of the commission of the alleged offense, in violation of Article 38 of the Articles of War; 11 that "the offense charged prescribed on July 25, 2005;" 12 that the General Court Martial ruled, however, that "the prescriptive period shall end only at 12:00 midnight of July 26, 2005;" 13 that "(a)s midnight of July 26, 2005 was approaching and it was becoming apparent that the accused could not be arraigned, the prosecution suddenly changed its position and asserted that 23 of the accused have already been arraigned;" 14 and that petitioners moved for a reconsideration but it was denied by the general court martial in its Order dated September 14, 2005. 15

In his Comment, the Solicitor General prays that the Supplemental Petition be denied for lack of merit. He alleges that "contrary to petitioners’ pretensions, all the accused were duly arraigned on July 13 and 18, 2005." 16 The "(r)ecords show that in the hearing on July 13, 2005, all the 29 accused were present" and, "(o)n that day, Military Prosecutor Captain Karen Ong Jags read the Charges and Specifications from the Charge Sheet in open court (pp. 64, TSN, July 13, 2005)." 17

The sole question for our resolution is whether the petitioners are entitled to the writ of prohibition.

There is no dispute that petitioners, being officers of the AFP, are subject to military law. Pursuant to Article 1 (a) of Commonwealth Act No. 408, as amended, otherwise known as the Articles of War, the term "officer" is "construed to refer to a commissioned officer." Article 2 provides:

Art. 2. Persons Subject to Military Law. – The following persons are subject to these articles and shall be understood as included in the term "any person subject to military law" or "persons subject to military law," whenever used in these articles:

(a) All officers and soldiers in the active service of the Armed Forces of the Philippines or of the Philippine Constabulary, all members of the reserve force, from the dates of their call to active duty and while on such active duty; all trainees undergoing military instructions; and all other persons lawfully called, drafted, or ordered into, or to duty or for training in the said service, from the dates they are required by the terms of the call, draft, or order to obey the same.

Upon the other hand, Section 1 of R.A. No. 7055 reads:

SEC. 1. Members of the Armed Forces of the Philippines and other persons subject to military law, including members of the Citizens Armed Forces Geographical Units, who commit crimes or offenses penalized under the Revised Penal Code, other special penal laws, or local government ordinances, regardless of whether or not civilians are co-accused, victims, or offended parties, which may be natural or juridical persons, shall be tried by the proper civil court, except when the offense, as determined before arraignment by the civil court, is service-connected, in which case, the offense shall be tried by court-martial, Provided, That the President of the Philippines may, in the interest of justice, order or direct at any time before arraignment that any such crimes or offenses be tried by the proper civil courts.

As used in this Section, service-connected crimes or offenses shall be limited to those defined in Articles 54 to 70, Articles 72 to 92, and Articles 95 to 97 of Commonwealth Act No. 408, as amended.

In imposing the penalty for such crimes or offenses, the court-martial may take into consideration the penalty prescribed therefor in the Revised Penal Code, other special laws, or local government ordinances.

Section 1 of R.A. No. 7055, quoted above, is clear and unambiguous. First, it lays down the general rule that members of the AFP and other persons subject to military law, including members of the Citizens Armed Forces Geographical Units, who commit crimes or offenses penalized under the Revised Penal Code (like coup d’etat), other special penal laws, or local ordinances shall be tried by the proper civil court. Next, it provides the exception to the general rule, i.e., where the civil court, before arraignment, has determined the offense to be service-connected, then the offending soldier shall be tried by a court martial. Lastly, the law states an exception to the exception, i.e., where the President of the Philippines, in the interest of justice, directs before arraignment that any such crimes or offenses be tried by the proper civil court.

The second paragraph of the same provision further identifies the "service-connected crimes or offenses" as "limited to those defined in Articles 54 to 70, Articles 72 to 92, and Articles 95 to 97" of the Articles of War. Violations of these specified Articles are triable by court martial. This delineates the jurisdiction between the civil courts and the court martial over crimes or offenses committed by military personnel.

Such delineation of jurisdiction by R.A. No. 7055 is necessary to preserve the peculiar nature of military justice system over military personnel charged with service-connected offenses. The military justice system is disciplinary in nature, aimed at achieving the highest form of discipline in order to ensure the highest degree of military efficiency. 18 Military law is established not merely to enforce discipline in times

of war, but also to preserve the tranquility and security of the State in time of peace; for there is nothing more dangerous to the public peace and safety than a licentious and undisciplined military body. 19 The administration of military justice has been universally practiced. Since time immemorial, all the armies in almost all countries of the world look upon the power of military law and its administration as the most effective means of enforcing discipline. For this reason, the court martial has become invariably an indispensable part of any organized armed forces, it being the most potent agency in enforcing discipline both in peace and in war. 20

Here, petitioners are charged for violation of Article 96 (conduct unbecoming an officer and a gentleman) of the Articles of War before the court martial, thus:

All persons subject to military law, did on or about 27 July 2003 at Oakwood Hotel, Makati City, Metro Manila, willfully, unlawfully and feloniously violate their solemn oath as officers to defend the Constitution, the law and the duly-constituted authorities and abused their constitutional duty to protect the people and the State by, among others, attempting to oust the incumbent duly-elected and legitimate President by force and violence, seriously disturbing the peace and tranquility of the people and the nation they are sworn to protect,thereby causing dishonor and disrespect to the military profession, conduct unbecoming an officer and a gentleman, in violation of AW 96 of the Articles of War.

CONTRARY TO LAW. (Underscoring ours)

Article 96 of the Articles of War 21 provides:

ART. 96. Conduct Unbecoming an Officer and Gentleman. – Any officer, member of the Nurse Corps, cadet, flying cadet, or probationary second lieutenant, who is convicted of conduct unbecoming an officer and a gentleman shall be dismissed from the service. (Underscoring ours)

We hold that the offense for violation of Article 96 of the Articles of War is service-connected. This is expressly provided in Section 1 (second paragraph) of R.A. No. 7055. It bears stressing that the charge against the petitioners concerns the alleged violation of their solemn oath as officers to defend the Constitution and the duly-constituted authorities.Such violation allegedly caused dishonor and disrespect to the military profession. In short, the charge has a bearing on their professional conduct or behavior as military officers. Equally indicative of the "service-connected" nature of the offense is the penalty prescribed for the same –dismissal from the service – imposable only by the military court.Such penalty is purely disciplinary in character, evidently intended to cleanse the military profession of misfits and to preserve the stringent standard of military discipline.

Obviously, there is no merit in petitioners’ argument that they can no longer be charged before the court martial for violation of Article 96 of the Articles of War because the same has been declared by the RTC in its Order of February 11, 2004 as "not service-connected, but rather absorbed and in furtherance of the alleged crime of coup d’etat," hence, triable by said court (RTC). The RTC, in making such declaration, practically amended the law which expressly vests in the court martial the jurisdiction over "service-connected crimes or offenses." What the law has conferred the court should not take away. It is only the Constitution or the law that bestows jurisdiction on the court, tribunal, body or officer over the subject matter or nature of an action which can do so. 22 And it is only through a constitutional amendment or legislative enactment that such act can be done. The first and fundamental duty of the courts is merely to apply the law "as they find it, not as they like it to be." 23 Evidently,

such declaration by the RTC constitutes grave abuse of discretion tantamount to lack or excess of jurisdiction and is, therefore, void.

In Navales v. Abaya., 24 this Court, through Mr. Justice Romeo J. Callejo, Sr., held:

We agree with the respondents that the sweeping declaration made by the RTC (Branch 148) in the dispositive portion of its Order dated February 11, 2004 that all charges before the court-martial against the accused were not service-connected, but absorbed and in furtherance of the crime of coup d’etat, cannot be given effect. x x x, such declaration was made without or in excess of jurisdiction; hence, a nullity.

The second paragraph of the above provision (referring to Section 1 of R.A. No. 7055) explicitly specifies what are considered "service-connected crimes or offenses" under Commonwealth Act No. 408, as amended, also known as the Articles of War, to wit:

Articles 54 to 70:Art. 54. Fraudulent Enlistment.Art. 55. Officer Making Unlawful Enlistment.Art. 56. False Muster.Art. 57. False Returns.Art. 58. Certain Acts to Constitute Desertion.Art. 59. Desertion.Art. 60. Advising or Aiding Another to Desert.Art. 61. Entertaining a Deserter.Art. 62. Absence Without Leave.Art. 63. Disrespect Toward the President, Vice-President,Congress of the Philippines, or Secretary of NationalDefense.Art. 64. Disrespect Toward Superior Officer.Art. 65. Assaulting or Willfully Disobeying Superior Officer.Art. 66. Insubordinate Conduct Toward Non-Commissioned Officer.Art. 67. Mutiny or Sedition.Art. 68. Failure to Suppress Mutiny or Sedition.Art. 69. Quarrels; Frays; Disorders.Art. 70. Arrest or Confinement.Articles 72 to 92:Art. 72. Refusal to Receive and Keep Prisoners.Art. 73. Report of Prisoners Received.Art. 74. Releasing Prisoner Without Authority.Art. 75. Delivery of Offenders to Civil Authorities.Art. 76. Misbehavior Before the Enemy.Art. 77. Subordinates Compelling Commander to Surrender.Art. 78. Improper Use of Countersign.Art. 79. Forcing a Safeguard.Art. 80. Captured Property to be Secured for Public Service.Art. 81. Dealing in Captured or Abandoned Property.Art. 82. Relieving, Corresponding With, or Aiding the Enemy.Art. 83. Spies.Art. 84. Military Property.–Willful or Negligent Loss, Damageor wrongful Disposition.Art. 85. Waste or Unlawful Disposition of Military PropertyIssued to Soldiers.Art. 86. Drunk on Duty.Art. 87. Misbehavior of Sentinel.Art. 88. Personal Interest in Sale of Provisions.Art. 88-A. Unlawful Influencing Action of Court.

Art. 89. Intimidation of Persons Bringing Provisions.Art. 90. Good Order to be Maintained and Wrongs Redressed.Art. 91. Provoking Speeches or Gestures.Art. 92. Dueling.Articles 95 to 97:Art. 95. Frauds Against the Government.Art. 96. Conduct Unbecoming an Officer and Gentleman.Art. 97. General Article.Further, Section 1 of Rep. Act No. 7055 vests on the military courts the jurisdiction over the foregoing offenses. x x x.

It is clear from the foregoing that Rep. Act No. 7055 did not divest the military courts of jurisdiction to try cases involving violations of Articles 54 to 70, Articles 72 to 92, and Articles 95 to 97 of the Articles of War as these are considered "service-connected crimes or offenses." In fact, it mandates that these shall be tried by the court-martial.

Moreover, the observation made by Mr. Justice Antonio T. Carpio during the deliberation of this case is worth quoting, thus:

The trial court aggravated its error when it justified its ruling by holding that the charge of Conduct Unbecoming an Officer and a Gentleman is ‘absorbed and in furtherance to the alleged crime of coup d’etat.’ Firstly, the doctrine of ‘absorption of crimes’ is peculiar to criminal law and generally applies to crimes punished by the same statute, 25 unlike here where different statutes are involved. Secondly, the doctrine applies only if the trial court has jurisdiction over both offenses. Here, Section 1 of R.A. 7055 deprives civil courts of jurisdiction over service-connected offenses, including Article 96 of the Articles of War. Thus, the doctrine of absorption of crimes is not applicable to this case.

Military law is sui generis (Calley v. Callaway, 519 F.2d 184 [1975]), applicable only to military personnel because the military constitutes an armed organization requiring a system of discipline separate from that of civilians (see Orloff v. Willoughby, 345 U.S. 83 [1953]). Military personnel carry high-powered arms and other lethal weapons not allowed to civilians. History, experience, and the nature of a military organization dictate that military personnel must be subjected to a separate disciplinary system not applicable to unarmed civilians or unarmed government personnel.

A civilian government employee reassigned to another place by his superior may question his reassignment by asking a temporary restraining order or injunction from a civil court. However, a soldier cannot go to a civil court and ask for a restraining or injunction if his military commander reassigns him to another area of military operations. If this is allowed, military discipline will collapse.

x x x

This Court has recognized that courts-martial are instrumentalities of the Executive to enable the President, as Commander-in-Chief, to effectively command, control, and discipline the armed forces (see Ruffy v. Chief of Staff, 75 Phil. 875 [1946], citing Winthrop’s Military Law and Precedents, 2nd edition, p. 49). In short, courts-martial form part of the disciplinary system that ensures the President’s control, and thus civilian supremacy, over the military. At the apex of this disciplinary system is the President who exercises review powers over decisions of courts-martial (citing Article 50 of the Articles of War; quoted provisions omitted).

x x x

While the Court had intervened before in courts-martial or similar proceedings, it did so sparingly and only to release a military personnel illegally detained (Ognir v. Director of Prisons, 80 Phil. 401 [1948] or to correct objectionable procedures (Yamashita v. Styer, 75 Phil. 563 [1945]). The Court has never suppressed court-martial proceedings on the ground that the offense charged ‘is absorbed and in furtherance of’ another criminal charge pending with the civil courts. The Court may now do so only if the offense charged is not one of the service-connected offenses specified in Section 1 of RA 7055. Such is not the situation in the present case.

With respect to the issue of prescription raised by petitioners in their Supplemental Petition, suffice it to say that we cannot entertain the same. The contending parties are at loggerheads as to (a) who among the petitioners were actually arraigned, and (b) the dates of their arraignment. These are matters involving questions of fact, not within our power of review, as we are not a trier of facts. In a petition for prohibition, such as the one at bar, only legal issues affecting the jurisdiction of the tribunal, board or officer involved may be resolved on the basis of the undisputed facts. 26

Clearly, the instant petition for prohibition must fail. The office of prohibition is to prevent the unlawful and oppressive exercise of authority and is directed against proceedings that are done without or in excess of jurisdiction, or with grave abuse of discretion, there being no appeal or other plain, speedy, and adequate remedy in the ordinary course of law. 27 Stated differently, prohibition is the remedy to prevent inferior courts, corporations, boards, or persons from usurping or exercising a jurisdiction or power with which they have not been vested by law. 28

In fine, this Court holds that herein respondents have the authority in convening a court martial and in charging petitioners with violation of Article 96 of the Articles of War.

WHEREFORE, the instant petition for prohibition is DISMISSED.

SO ORDERED.

ANGELINA SANDOVAL-GUTIERREZ

Associate Justice

WE CONCUR:

ARTEMIO V. PANGANIBANChief Justice

REYNATO S. PUNOAssociate Justice

CONSUELO YNARES-SANTIAGOAssociate Justice

MA. ALICIA AUSTRIA-MARTINEZAssociate Justice

CONCHITA CARPIO MORALESAssociate Justice

ADOLFO S. AZCUNAAssociate Justice

MINITA V. CHICO-NAZARIO

LEONARDO A. QUISUMBINGAssociate Justice

ANTONIO T. CARPIOAssociate Justice

ENATO C. CORONAAssociate Justice

ROMEO J. CALLEJO, SR.Associate JusticeDANTE O. TINGAAssociate Justice

CANCIO C. GARCIA

Associate Justice Associate JusticePRESBITERO J. VELASCO, JR.

Associate JusticeC E R T I F I C A T I O N

Pursuant to Section 13, Article VIII of the Constitution, it is hereby certified that the conclusions in the above Decision were reached in consultation before the case was assigned to the writer of the opinion of the Court.ARTEMIO V. PANGANIBANChief Justice

Footnotes

1 A group which spearheaded the Revolution of 1896 against Spain.

2 As defined and penalized under Article 134-A of the Revised Penal Code, as amended.

3 Now Associate Justice of the Court of Appeals.

4 Entitled "An Act for Making Further and More Effectual Provision for the National Defense by Establishing a System of Military Justice for Persons Subject to Military Law."

5 Entitled "An Act Strengthening Civilian Supremacy Over The Military By Returning To The Civil Courts The Jurisdiction Over Certain Offenses Involving Members Of The Armed Forces Of The Philippines, Other Persons Subject To Military Law, And The Members Of The Philippine National Police, Repealing For The Purpose Certain Presidential Decrees."

6 Rollo, pp. 176-179.

7 Id., pp. 370-380.

8 Id., pp. 207-209.

9 Id., pp. 14-15.

10 Par. 4, Supplemental Petition, p. 4.

11 Article 38 of the Articles of War partly provides:

"Article 38. As to Time. – Except for desertion or murder committed in time of war, or for mutiny, no person subject to military law shall be liable to be tried or punished by a court-martial for any crime or offense committed more than two years before the arraignment of such person: x x x."

12 Pars. 8, 18, Supplemental Petition, pp. 5, 10.

13 Par. 9, id.

14 Par. 10, id. Petitioners stated, under this footnote, that the "(r)ulings before the General Court Martial were done orally; unavailability of the TSN for the July 26, 2005 hearing."

15 Par. 14, id.

16 Comment, p. 10.

17 Id., p. 18.

18 Gloria, PHILIPPINE MILITARY LAW Annotated, revised edition, p. 3.

19 Id.

20 Id., pp. 4-5.

21 Commonwealth Act No. 408, as amended by Republic Act No. 242 (approved on June 12, 1948).

22 Arnado v.Buban, A.M. No. MTJ-04-1543, May 31, 2004, 430 SCRA 382, 386; Republic v. Estipular, G.R. No. 136588, July 20, 2000, 336 SCRA 333, 340.

23 Resins, Inc. v. Auditor General, G.R. No. 17888, October 29, 1968, 25 SCRA 754.

24 G.R. Nos. 162318 and 162341, October 25, 2004, 441 SCRA 393, 409-421.

25 E.g., Murder (Article 248) and Robbery (Articles 294-295) absorbed by Rebellion (Article 134) of the Revised Penal Code (People v. Hernandez, 99 Phil. 515 [1956]; Illegal Possession of Marijuana (Section 8, Republic Act No. 6425) absorbed by Illegal Sale of Marijuana (Section 4, Republic Act No. 6425) (People v. De Jesus, 229 Phil. 518 [1986]).

26 Mafinco Trading Corp. v. Ople, No. L-37790, March 25, 1976, 70 SCRA 139, 160-161.

27 Section 2, Rule 65 of the 1997 Rules of Civil Procedure, as amended; Vergara v. Rugue, No. L-32984, August 26, 1977, 78 SCRA 312.

28 Matuguina Integrated Wood Products, Inc. v. Court of Appeals, G.R. No. 98310, October 24, 1996, 263 SCRA 490.

The Lawphil Project - Arellano Law Foundation

Agenda of August 8, 2006

Item No. 67

G.R. No. 164007 – (LT. [SG] EUGENE GONZALES, LT. [SG] ANDY TORRATO, LT. [SG] ANTONIO TRILLANES IV, CPT. GARY ALEJANO, LT. [SG] JAMES LAYUG, CPT. NICANOR FAELDON, LT. [SG] MANUEL CABOCHAN, ENS. ARMAND PONTEJOS, LT. [JG] ARTURO PASCUA, ET AL. v. GEN. NARCISO ABAYA, in his capacity as the Chief-of-Staff of the ARMED FORCES OF THE PHILIPPINES, and BRIG. GEN. MARIANO M. SARMIENTO, JR., in his capacity as the Judge Advocate General of the Judge Advocate General Office [JAGO])

Promulgated:

August 10, 2006

CONCURRING OPINION

CALLEJO, SR., J.:

I concur with the encompassing ponencia of Madame Justice Angelina Sandoval-Gutierrez ordering the dismissal of the petition. However, I find it necessary to elucidate on my opinion relative to the submission of petitioners that the punitive act for conduct unbecoming an officer and a gentleman defined in Article 96 of the Articles of War is absorbed by coup d’etat, a political felony, especially in light of the opinion of the Pre-Trial Investigation Panel that the punitive act as well as these service-connected punitive acts defined in Articles 63, 64, 96 and 97 of the Articles of War, are indeed absorbed by coup d’etat.

The charge against petitioners reads:

Violation of Article 96

All persons subject to military law, did on or about 27 July 2003 at Oakwood Hotel, Makati City, Makati, Metro Manila, willfully, unlawfully and feloniously violate their solemn oath as officers to defend the Constitution, the law and the duly-constituted authorities and abuse their constitutional duty to protect the people and the State by, among others, attempting to oust the incumbent duly-elected and legitimate president by force and violence, seriously disturbing the peace and tranquility of the people and the nation they are sworn to protect, thereby causing dishonor and disrespect to the military profession, conduct unbecoming an officer and a gentleman, in violation of AW 96 of the Articles of War.

CONTRARY TO LAW.

Article 96 of the Articles of War defines the punitive act of conduct unbecoming an officer and a gentleman as follows:

Art. 96. Conduct Unbecoming an Officer and Gentleman. – Any officer, cadet, flying cadet, or probationary second lieutenant, who is convicted of conduct unbecoming an officer and a gentleman shall be dismissed from the service.

Case law has it that common crimes committed in furtherance of a political crime, such as rebellion, are therein absorbed. A political crime is one directly aimed against the political order as well as such common crimes as may be committed to achieve a political purpose. The decisive factor is the intent or motive. Coup d’etat is a political crime because the purpose of the plotters is to seize or diminish State power. If a crime usually regarded as common, like murder, is perpetrated to achieve a political purpose, then said common crime is stripped of its common complexion, inasmuch as, being part and parcel of the crime of rebellion, the former acquires the political character of the latter. 1 Such common offenses assume the political complexion of the main crime of which they are mere ingredients, and, consequently, cannot be punished separately from the principal offense, or complexed with the same to justify the imposition of the graver penalty. 2

In Ponce Enrile v. Amin, 3 the court ruled that the principle of absorption of common crimes by the political crime applies to crimes defined and penalized by special laws, such as Presidential Decree No. 1829, otherwise known as Obstruction of Justice. However, in Baylosis v. Chavez, Jr., 4 the Court ruled that the rulings of this Court in People v. Hernandez, 5 Ponce Enrile v. Amin 6 and Enrile v. Salazar, 7 do not apply to crimes which, by statutory fiat, are sui generis.

Indeed, the service-connected punitive acts defined and penalized under the Articles of War are sui generis offenses not absorbed by rebellion perpetrated, inter alia, by the officers and enlisted personnel of the Armed Forces of the Philippines (AFP) or coup d’etat. This is so because such acts or omissions are merely violations of military discipline, designed to secure a higher efficiency in the military service; in other words, they are purely disciplinary in their nature, and have exclusive regard to the special character and relation of the AFP officers and enlisted personnel. Laws providing for the discipline as well as the organization of the AFP are essential to the efficiency for the military service in case their services should ever be required. "Deprive the executive branch of the government of the power to enforce proper military regulations by fine and imprisonment, and that, too, by its own courts-martial, which from time immemorial have exercised this right, and we at once paralyze all efforts to secure proper discipline in the military service, and have little left but a voluntary organization, without cohesive force." 8

It bears stressing that for determining how best the AFP shall attend to the business of fighting or preparing to fight rests with Congress and with the President. Both Congress and this Court have found that the special character of the military requires civilian authorities to accord military commanders some flexibility in dealing with matters that affect internal discipline and morale. In construing a statute that touches on such matters, therefore, courts must be careful not to circumscribe the authority of military commanders to an extent never intended by Congress. Under these and many similar cases reviewing legislative and executive control of the military, the sentencing scheme at issue in this case, and the manner in which it was created, are constitutionally unassailable.9

Officers and enlisted personnel committing punitive acts under the Articles of War may be prosecuted and convicted if found guilty of such acts independently of, and separately from, any charges filed in the civilian courts for the same or similar acts which are penalized under the Revised Penal Code, under special penal laws or ordinances; and prescinding from the outcome thereof.

At this point, it is well to have a basic understanding of the Articles of War under Commonwealth Act No. 408, which was essentially copied from that of the United States, which, in turn, had been superseded by the Uniform Code of Military Justice. Our Articles of War has since been amended by Republic Act Nos. 242 and 516.

The Articles of War is the organic law of the AFP and, in keeping with the history of military law, its primary function is to enforce "the highest form of discipline in order to ensure the highest degree of military efficiency." The following commentary is enlightening:

History points out the fact that nations have always engaged in wars. For that purpose, bodies of men have been organized into armed forces under a commander-in-chief who, through his subordinate commanders, enforces the highest form of discipline in order to ensure the highest degree of military efficiency.

Victory in battle is the ultimate aim of every military commander, and he knows that victory cannot be attained, no matter how superior his forces may be, in men and materials, if discipline among the rank-and-file is found wanting. For, "if an Army is to be anything but an uncontrolled mob, discipline is required and must be enforced." For this reason, in order to set an effective means of enforcing discipline, all organized armies of the world have promulgated sets of rules and regulations and later, laws as embodied in the articles of war, which define the duties of military personnel and distinguish infractions of military law and impose appropriate punishment for violation thereof. 10

Every officer, before he enters in the duties of his office, subscribes to these articles and places himself within the powers of courts-martial to pass on any offense which he may have committed in contravention thereof. 11

It is said that conduct unbecoming an officer and a gentleman is a uniquely military offense. 12 In order to constitute the said offense, the misconduct must offend so seriously against the law, justice, morality or decorum as to expose to disgrace, socially or as a man, the offender, and at the same time must be of such a nature or committed under such circumstances as to bring dishonor or disrepute upon the military profession which he represents. 13 The article proscribing conduct unbecoming an officer and a gentleman has been held to be wholly independent of other definitions of offenses, and the same course of conduct may constitute an offense elsewhere provided for and may also warrant a conviction under this provision; it is not subject to preemption by other punitive articles. 14

The administration of military justice under the Articles of War has been exclusively vested in courts-martial whether as General Courts-Martial, Special Courts-Martial or Summary Courts-Martial. 15 Courts-martial pertain to the executive department and are, in fact, simply instrumentalities of the executive power, provided by Congress for the President as Commander-in-Chief to aid him in properly commanding the army and navy, and enforcing discipline therein. 16

As enunciated by the United States Supreme Court, "the military is, by necessity, a specialized society separate from civilian society. It has, again by necessity, developed laws and traditions of its own during its long history. The differences between the military and civilian communities result from the fact that it is the primary business of armies and navies to fight or ready to fight wars should the occasion arise." 17 Further, the US Supreme Court quite succinctly stated that "the military constitutes a specialized community governed by a separate discipline from that of the civilian." 18

I wish to emphasize, however, a caveat: not all service-connected punitive acts under the Articles of War may be prosecuted before the courts-martial independently of a crime defined and penalized under the Revised Penal Code against the same accused based on the same set of delictual acts. Congress may criminalize a service-connected punitive offense under the Articles of War.

A review of the deliberations in the Senate or the Report of the Conference Committee of Senate Bill 1500 will readily show that coup d’etat was incorporated in the Revised Penal Code in Article 134-A precisely to criminalize "mutiny" under Article 67 of the Articles of War and to penalize the punitive act of mutiny, under the Articles of War as coup d’etat. Article 67 of the Articles of War reads:

Art. 67. Mutiny or Sedition. – Any person subject to military law who attempts to create or who begins, excites, causes, or joins in any mutiny or sedition in any company,

party, post, camp, detachment, guard, or other command shall suffer death or such other punishment as a court-martial may direct.

Without Article 134-A in the Revised Penal Code, the mutineers would be charged for mutiny under Article 67 of the Articles of War:

Senator Lina. Yes, Mr. President.

Senator Enrile. Then we added Article 134-A which deals with the new crime of coup d’etat.

Senator Enrile. – and we defined how this newly characterized and defined crime would be committed in Article 134-A?


Senator Enrile. And, in fact, we made a distinction between the penalty of the crimes defined under Article 134 of the Revised Penal Code and the crime defined under Article 134-A, is this correct, Mr. President?


Senator Enrile. In fact, we distinguished between the conspiracy and proposal to commit the crime of rebellion from the conspiracy and proposal to commit coup d’ etat?


Senator Enrile. So that, for all intents and purposes, therefore, we are defining a new crime under this proposed measure—


Senator Enrile.—which is coup d’etat. We are, in effect, bringing into the Revised Penal Code, a crime that was penalized under the Articles of War as far as military participants are concerned and call it with its name "coup d’etat"?

Senator Lina. Yes, Mr. President. That is the . . .

Senator Enrile. Because without this criminalization of coup d’etat under the Revised Penal Code, people in the active service would be charged with mutiny?

Senator Lina. Yes, Mr. President. Especially when they are inside the camp, when the rank-and-file go up to arms or insubordination or against the orders of their superiors, they would be charged under the Articles of War.

Senator Enrile. In fact, one of the distinguishing features of a coup d’etat as defined here is, apart from the overt acts of taking a swift attack with violence, intimidation, threat, strategy, or stealth against the duly-constituted authorities or an installation, et

cetera, the primary ingredient of this would be the seizure or diminution of state power.

Senator Lina. Yes, that is the objective, Mr. President.

Senator Enrile. On the other hand, in the case of rebellion as defined under Article 134, it does not necessarily mean a seizure of State power or diminution of State power, but all that is needed would be to deprive the Chief Executive or the legislature of any of its powers.

Senator Lina. That is correct, Mr. President.

Senator Enrile. So that, there is a basis to consider a clear and definable distinction between the crime of coup d’etat and the crime of rebellion as defined under Article 135?


Senator Enrile. I just want to put that into the Record.

Thus, officers and enlisted personnel of the AFP charged of coup d’etat can no longer be charged with mutiny under Article 67 of the Articles of War before courts-martial for the same delictual or punitive act.

I vote to DISMISS the petition.

ROMEO J. CALLEJO, SR.

Associate Justice

Footnotes1 People v. Hernandez, 99 Phil. 515, 536 (1956).2 Id. at 541.3 G.R. No. 93335, September 13, 1990, 189 SCRA 573, 580-581.4 G.R. No. 95136, October 3, 1991, 202 SCRA 405, 416.5 Supra note 1.6 Supra note 3.7 G.R. No. 92163, June 5, 1990, 186 SCRA 217.8 Michigan v. Wagner, 77 N.W. 422.9 Loving v. U.S., 517 U.S. 748, 778, 116 S.Ct. 1737 (1966).10 Gloria, Philippine Military Law Annotated, p. 3.11 Carter v. Roberto, 177 U.S. 497 (1900).12 U.S. v. Weldon, 7 M.J. 938 (1979).13 Parker v. Levy, 417 U.S. 733 (1974).14 U.S. v. Taylor, 23 M.J. 341 (1987).15 Article 3, Articles of War.16 Supra note 14, p.17, citing Winthrop, Military Law and Precedents (2nd ed.), 49.17 U.S. ex rel. Toth v. Quarles, 350 U.S. 11 (1955).18 Orloff v. Willoughby, 345 U.S. 83 (1953)

The Lawphil Project - Arellano Law Foundation

G.R. No. 164007 – LT. (SG) EUGENE GONZALES, LT. (SG) ANDY TORRATO, LT. (SG) ANTONIO TRILLANES IV, CAPT. GARY ALEJANO, LT. (SG) JAMES LAYUG, CPT. NICANOR FAELDON, LT. (SG) MANUEL COBOCHAN, ENS. ARMAND PONTEJOS, LT. (JG) ARTURO PASCUA, and 1LT. JONHNEL SANGGALANG, Petitioners, versus GEN. NARCISO ABAYA, in his capacity as Chief of Staff of the Armed Forces of the Philippines, and B/GEN. MARIANO M. SARMIENTO, JR., in his capacity as the Judge Advocate General of the Judge Advocate General Office (JAGO), Respondents.

Promulgated:

August 10, 2006

SEPARATE OPINION

(Concurring and Dissenting)

Tinga, J.:

My concurrence to the dismissal of the petition is limited to a much narrower ground than that offered by the majority opinion, which, with due respect, I am unable to fully join and thus impelled to mostly dissent from. The broad propositions adopted by the majority render inutile Republic Act No. 7055, (RA 7055) that generally restored civil jurisdiction over offenses involving members of the Armed Forces of the Philippines (AFP). This law stands as a key implement in the restoration of civilian supremacy over the military, a precept that was reinvigorated with the restoration of civil democracy in 1986. The rationale that sustains the majority position stands athwart to that important constitutional principle as effectuated through RA 7055.

Instead, my position hinges on the peculiar nature of Article 96 of the Articles of War, the violation of which petitioners stand accused of before the court-martial. Not only does Article 96 embody a rule uniquely military in nature, it also prescribes a penalty wholly administrative in character which the civilian courts are incapable of rendering. For that reason alone, I agree that petitioners may stand civilian trial for coup d’etat and court-martial for violation of Article 96.

Still, I acknowledge that I would have voted to grant the petition had petitioners faced other charges, instead of the sole Article 96 charge, before the court-martial in connection with the Oakwood mutiny. I submit that RA 7055 precisely authorizes the civil court to independently determine whether the offense subject of the information before it is actually service-connected. If the trial court does determine, before arraignment, that the offense is service-connected, it follows that, as a rule, the military court will not have jurisdiction over the acts constituting the offense.

Restatement of Relevant Facts

The following facts I consider relevant.

On 5 August 2003, just a little over a week after the so-called Oakwood mutiny, the Department of Justice filed an Information with the Regional Trial Court (RTC) of Makati against 321 military personnel, including petitioners, for violation of Article 134-A of the Revised Penal Code which is the crime of coup d’etat. After the case was

docketed as Criminal Case No. 03-2784, the RTC directed the DOJ to conduct a reinvestigation of the said case. On the same day that the order for re-investigation was issued, the AFP Chief of Staff created a Pre-Trial Investigation Panel against the same persons to determine the propriety of filing charges with a military tribunal against petitioners, along with 300 or so other soldiers, for violation of the Articles of War, again in connection with the Oakwood mutiny. Thus, 243 of the accused before the RTC, including petitioners, filed a motion with the trial court praying that the court assume jurisdiction over all the charges filed with the military tribunal, following RA 7055. 1

After re-investigation, the DOJ found probable cause for the crime of coup d’etat against only 31 of the original 321 accused. The DOJ then filed a motion for dismissal of the charge of coup d’etat against the 290 others, which motion was granted by the RTC in an Order dated 14 November 2003. Petitioners were among the 31 who still faced the charge of coup d’etat before the RTC.

Notwithstanding the dismissal of the charge of coup d’etat against the 290 soldiers, they were still charged before the General Court Martial for violation of Articles 63, 64, 67, 96 and 97 of the Articles of War. 2 Among the charges faced by these soldiers was for "mutiny," punishable under Article 63. Only those soldiers the charge of coup d’etat against whom was dismissed were subjected to the charge of Articles of War violations before the court-martial. Some of these 290 soldiers challenged the jurisdiction of the court-martial in a petition for prohibition before this Court, which was denied in Navales v. Abaya 3 in 2004.

On the other hand, on 9 December 2003, the Pre-Trial Investigation Panel recommended that the 31 officers facing the charge of coup d’etat before the trial court be excluded from the court-martial proceedings. The rationale that the Panel offered was the assumption of civilian jurisdiction by the RTC based on RA 7055 and its belief that the charges against the 31 it was investigating were absorbed by the crime of coup d’etat, which was already within the jurisdiction of the RTC to try and decide.

It was on 11 February 2004 that the RTC issued an Order (RTC Order) stating that "all charges before the court-martial against the accused.. are hereby declared not service-connected, but rather absorbed and in furtherance of the alleged crime of coup d’etat." Note that as of then, only 31 officers remained within the jurisdiction of the RTC. If there are any relevant subjects of the RTC Order, it is these 31, including petitioners, and not the 290 others the case for coup d’etat against whom had already been dismissed.

Thus, as things stood as of 11 February 2004, only 31 officers, including petitioners, were still within the jurisdiction of the RTC, as they remained charged with coup d’etat. None of the 31 were facing any charge before the court-martial, the investigation against them by the AFP Pre-Trial Investigation Panel had already been concluded by then. On the other hand, the 290 other soldiers, including the Navales petitioners, were no longer facing any criminal cases before the RTC, but were instead facing court-martial charges. This symmetry is deliberate, cognizant as the DOJ and the AFP were of the general principle, embodied in RA 7055, that jurisdiction over acts by soldiers which constitute both a crime under the penal laws and a triable offense under the Articles of War is exercised exclusively by either the civilian court or the court-martial, depending on the circumstances as dictated under Section 1 of RA 7055.

It was in June of 2004 that this symmetry was shattered. It appears that at that point, the AFP reconsidered its earlier decision not to try the 31 officers before the court-martial. There appears per record, a letter dated 17 June 2004, captioned "Disposition Form," signed by a certain De Los Reyes, and recommending that the 31 be charged as well before the court-martial for violation of Article 96 of the Articles of War and that pre-trial investigation be reconducted for that purpose. 4 This recommendation was approved by then AFP Chief of Staff Narciso Abaya. It was this decision to reinitiate court-martial proceedings against the 31 that impelled the present petition for prohibition.

As stated earlier, I believe that ultimately, petitioners may still be charged with violation of Article 96 of the Articles of War, notwithstanding the pending case for coup d’etat before the RTC against them. My reason for such view lies in the wholly administrative nature of Article 96 and the sole penalty prescribed therein, dismissal from service, which is beyond the jurisdiction of civilian courts to impose. Yet I arrive at such view without any denigration of the RTC Order, which proceeds from fundamentally correct premises and which, to my mind, bears the effect of precluding any further charges before the court-martial against petitioners in relation to the Oakwood mutiny. Unfortunately, the majority gives undue short shrift to the RTC Order and the predicament confronting the present petitioners, who are now facing not only trial before the civilian court for the crime of coup d’etat, but also court-martial proceedings for acts which if not identical to those charged in the criminal case are at least integrally related. I respectfully submit that RA 7055 was precisely designed to generally prevent such anomaly, but that the majority fails to give fruition to such legislative intent.

Instead, the majority has laid down a general rule that if members of the military are charged before military tribunals with violation of Articles of War 54 to 70, 72 to 92, and 95 to 97, then the court-martial proceedings would progress unhampered even if the acts which constitute the violation of the Articles of War also constitute offenses under the Revised Penal Code. The court-martial proceedings would also ensue even if the said personnel are also charged for the same acts with a criminal case before the civilian court, and even if the civilian court determines that the acts are not service-connected. Most critically, this view would allow the defendant to be tried and convicted by both the military and civilian courts for the same acts, despite the consistent jurisprudential rule that double jeopardy applies even as between court-martial and criminal trials. I cannot agree to these general propositions, excepting when the defendants happen to be charged before the court-martial for violation of Article 96 of the Articles of War.

There are three fundamental questions that are consequently raised. First, can Congress by law limit the jurisdiction of military tribunals and court-martials? Second, does RA 7055 effectively deprive military courts jurisdiction over violations of Articles of War 54 to 70, 72 to 92, and 95 to 97 if the civilian court determines that the offenses charged do not constitute service-connected offenses? And third, does it constitute double jeopardy if the same military actor is tried and convicted before both civilian and military courts for the same acts? I respectfully submit that all these questions should generally be answered in the affirmative.

Jurisdictions of Courts-Martial In

the Philippines Fundamentally Statutory

I begin with the constitutional and statutory parameters of courts-martial in the Philippines.

It is settled, in cases such as Ruffy v. Chief of Staff, 5 that court-martial proceedings are executive in character, deriving as they do from the authority of the President as the Commander-in-Chief of the armed forces. 6 Indeed, the authority of the President to discipline members of the armed forces stands as one of the hallmarks of the commander-in-chief powers. Obedience to the President and the chain-of-command are integral to a professional and effective military, and the proper juridical philosophy is to accede as much deference as possible to this prerogative of the President.

However, in Marcos v. Chief of Staff, 7 decided five (5) years after Ruffy, the Court ruled that the word "court" as used in the Constitution included the General Court-Martial, citing Winthrop’s Military Law and Precedents, which noted that "courts-martial are [in] the strictest sense courts of justice". 8 Indeed, it would be foolhardy to ignore, with semantics as expedient, the adjudicative characteristics of courts-martial and their ability to inflict punishment constituting deprivation of liberty, or even life. A court-martial is still a court of law and justice, 9 although it is not a part of the judicial system and judicial processes, but remains to be a specialized part of the over-all mechanism by which military discipline is preserved. 10

Regardless of the accurate legal character of courts-martial, it should go without saying that the authority of the President to discipline military personnel through that process is still subject to a level of circumscription. Without such concession, the President could very well impose such draconian measures of military punishment, such as death by firing squad for overweight soldiers. The Court has indeed, on occasion, recognized limitations and regulations over courts-martial. In Olaguer v. Military Commission, 11 the Court reasserted that military tribunals cannot try and exercise jurisdiction over civilians for as long as the civil courts are open and functioning. 12 The authority of the Supreme Court to review decisions of the court-martial was affirmed in Ognir v. Director of Prisons, 13 and should be recognized in light of the judicial power of the Supreme Court under the 1987 Constitution, which extends to determining grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the Government. And finally, there are the series of rulings on the subject of double jeopardy, which I shall soon discuss further.

Most strikingly, the "Articles of War" presently in use emanates not from executive fiat, but from a law passed by the National Assembly known as Commonwealth Act No. 408. As such, the determination of what acts or offenses are punishable by court-martial was in actuality made not by the President, but by the legislature. As such, the Articles of War are utterly susceptible to legislative amendment, augmentation, or even revocation.

I do not doubt that without an enabling law, the President would have the power to impose court-martial proceedings under the aegis of the Commander-in-Chief clause. Yet if there is an enabling law passed, such as Commonwealth Act No. 408, then the President is bound to exercise the power to prescribe court-martial proceedings only within the limits imposed by the law. These precepts should not preclude the President from mandating other forms of military discipline, but if the choice is to subject the soldier concerned to court-martial, then such proceedings should ensue within the boundaries determined by the legislature under Commonwealth Act No. 408.

American jurisprudence is actually quite emphatic that the jurisdiction of a court-martial is established by statute, and a court-martial has no jurisdiction beyond what is

given by statute. "[A] court-martial [is] a special statutory tribunal, with limited powers." 14 To quote from Corpus Juris Secundum:

The jurisdiction of a court-martial is premised on an authorized convening authority, court membership in accordance with the law, and power derived from congressional act to try the person and the offense charged. [ 15 Thus, in order for a court-martial to have jurisdiction, it must be convened and constituted in accordance with law[ 16; and a court-martial has no jurisdiction beyond what is given it by statute.[ 17 General court-martial jurisdiction is not restricted territorially to the limits of a particular state or district.

The long continued practice of military authorities in exercising court-martial jurisdiction may aid in the interpretation of statutes conferring such jurisdiction; but the authority of a Secretary of an armed forces department to issue regulations does not permit extension of the jurisdictions of courts-martial of the armed force controlled by that department beyond the limits fixed by Congress[ 19

The language of statutes granting jurisdiction to courts-martial to try persons for offenses must be construed to conform as near as may be to the constitutional guarantees that protect the rights of citizens in general, it being assumed that Congress intended to guard jealously against dilution of the liberties of citizens by the enlargement of jurisdiction of military tribunals at the expense of the jurisdiction of the civil courts. 20

Clearly then, while court-martial under military law may be sui generis, it is not supra legem. The power to try by court-martial is established, defined and limited by statute, even if it arises as a consequence of the power of the President as Commander-in-Chief.

What are the implications of these doctrines to the case at bar? To my mind, they sufficiently establish that Congress does have the power to exclude certain acts from the jurisdiction of the General Court-Martial. The same legislature that enacted Commonwealth Act No. 408 is very well empowered to amend that law, as it has done on occasion. 21 And I submit that Congress has done so with the enactment of RA 7055.

Republic Act No. 7055

The title of RA 7055 reads "An Act Strengthening Civilian Supremacy Over the Military By Returning to the Civil Courts the Jurisdiction Over Certain Offenses Involving Members of the Armed Forces of the Philippines, Other Persons Subject to Military Law, and the Members of the Philippine National Police, Repealing for the Purpose Certain Presidential Decrees." 22 In the Philippines, the conferment of civil jurisdiction over members of the military charged with non-service connected offenses is predicated on the constitutional principle of civilian supremacy over the military. 23 As Senator Wigberto Tañada remarked in his sponsorship remarks over Senate Bill No. 1468, eventually enacted as RA 7055, "[A]s long as the civil courts in the land remain open and are regularly functioning, military tribunals cannot try and exercise jurisdiction over military men for criminal offenses committed by them and which are properly cognizable by the civil courts. To have it otherwise would be a violation of the aforementioned constitutional provisions on the supremacy of civilian authority over the military and the integrity and independence of the judiciary, as well as the due process and equal-protection clauses of the Constitution." 24

The title of the law alone is already indicative of the law’s general intent to exclude from the jurisdiction of the General Court-martial "certain offenses" which would now be tried by the civil courts. Section 1 operationalizes such intent, asserting as a general rule that members of the AFP "who commits crimes penalized under the Revised Penal Code, other special penal laws, or local government ordinances xxx shall be tried by the proper civil court xxx." Notably, the majority does concede the general rule.

The exception of course, are offenses which are service-connected. They are excluded from the jurisdiction of the civilian courts. It is worth mentioning at this juncture that the concept of "service-connected" offenses as a determinant of court-martial jurisdiction arose from American jurisprudence. In O’Callahan v. Parker, 25 decided in 1969, the U.S. Supreme Court reversed previous doctrines and announced a new constitutional principle ── that a military tribunal ordinarily may not try a serviceman charged with a crime that has no service connection. 26

RA 7055 Reposes on the Trial Court

The Specific Role of Determining Whether

The Offense is Service-Connected

Obviously, the ascertainment of whether or not a crime is service-connected is of controversial character, necessitating the exercise of judgment. Appropriately, that function is assigned by Section 1 not to the courts-martial, but to the civil courts. Indeed, Section 1 requires that before the offense shall be tried by court-martial, there must be first a determination before arraignment by the civil court that the offense is indeed service-connected. Section 1 states:

Members of the Armed Forces of the Philippines and other persons subject to military law xxx who commit crimes or offenses penalized under the Revised Penal Code, other special penal laws, or local government ordinances, regardless of whether or not civilians are co-accused, victims or offended parties which may be natural or juridical persons, shall be tried by the proper civil court, except when the offense, as determined before arraignment by the civil court, is service-connected, in which case the offense shall be tried by court-martial xxx

As used in this Section, service-connected crimes or offenses shall be limited to those defined in Articles 54 to 70, Articles 72 to 92, and Articles 95 to 97 of Commonwealth Act No. 408, as amended. 27(Emphasis supplied.)

There are two possible scenarios that may arise after a soldier commits a crime which is punishable under both the Revised Penal Code and under Commonwealth Act No. 408.

In one, the soldier is charged only with violation of the Articles of War and tried by the court-martial. In this situation wherein no criminal case is filed against the soldier, the court-martial continues unimpeded.

In the other, the soldier is charged with both violation of the Articles of War (triable by court-martial) and a criminal offense involving the same act (triable by the civilian court). Here, a different set of rules operates. RA 7055 comes into application in such a case. Section 1 of RA 7055 clearly reposes on the trial court, and not the court-

martial, the duty to determine whether the charges in the information are service-connected. If the civilian court makes a determination that the acts involved are not service-connected, then the court-martial will generally have no jurisdiction.

In this particular role, the trial court is merely guided in its determination by Articles of War 54 to 70, 72 to 92, and 95 to 97, the specific articles to which the determination of service-connected offenses according to RA 7055 is limited. The importance of the trial court’s function of determination cannot be dismissed lightly. Since the law mandates that the trial court make such a determination, it necessarily follows that the court has to ascertain on its own whether the offenses charged do fall within the Articles of War. It would not bind the civilian court that the defendants are charged with the same acts before the court-martial under Articles of War 54 to 70, 72 to 92, and 95 to 97. The civilian court is required to still make a determination, independent of that of the court-martial, that the acts charged constitute a service-connected offense.

However, the majority is satisfied that since petitioners are charged before the military tribunal with violation of one of the Articles of War so mentioned in Section 1 of RA 7055, this offense is within the jurisdiction of the court-martial. The majority is thus of the position that regardless of whatever transpires in the civilian court trial, court-martial proceedings may ensue unimpeded so long as the defendants therein are charged with Articles of War 54 to 70, 72 to 92, and 95 to 97. Such jurisdiction of the court-martial subsists even if the civilian courts had determined that the acts which constitute the offense triable under court-martial are not service-connected. This position renders utterly worthless the function of the civilian courts to determine whether the offense is indeed service-connected, as such determination would no longer have any bearing on the jurisdiction of the courts-martial to try the same acts.

Justice Carpio, in particular, asserts in his Concurring Opinion that the civilian court is limited to "only a facial examination of the charge sheet in determining whether the offense charged is service connected." 28 This proposition negates the entire purpose of RA 7055, as it would ultimately render the military as the sole judge whether a civilian court can acquire jurisdiction over criminal acts by military personnel, even if such soldier has committed a crime under the Revised Penal Code. Under this position, all the military has to do is to charge the actor with violation of Articles of War 54 to 70, 72 to 92, and 95 to 97, and the civilian court would be effectively deprived of jurisdiction to try the offense, even if the act is clearly punishable under civil penal laws. With all due respect, such "facial examination", which would be undertaken by a learned judge of a civilian court, can be accomplished with ease by a non-lawyer, by a fifteen-year old, or anybody with rudimentary skills in the English language. After all, the only necessary act for such purpose would be to look at the charge sheet and the Articles of War. As long as the civilian court sees that charge sheet states that the defendants have been charged with any of the aforementioned Articles of War, the determinative function would already be accomplished.

Under the standard of "facial examination," the trial court can very well make its determination even without the benefit of charge sheet if there is no such charge sheet yet. In reality though, the trial courts primary source of information and basis for determination is the information in the criminal case before it, as well as the affidavits and documents which the prosecution may make available to it. Assuming that there is a court-martial charge sheet, the same on its face may be incapable of capturing the particulars of the criminal acts committed, as there is no prescribed demand for such particularity. As such, a "facial examination" could not suffice in affording the civilian court any significant appreciation of the relevant factors in determining whether the offense was indeed service-connected.

Worse, by advocating "facial examination" as a limit, this view would actually allow malfeasors in the military to evade justice, if they are fortunate enough to have sympathizers within the military brass willing to charge them with a violation of the aforementioned articles of war in order that they escape the possibly harsher scrutiny of the civilian courts. For example, Article 69 of the Articles of War punishes persons subject to military law who commit frauds against the government, which include, among others, stealing, embezzling, knowingly and willfully misappropriating, applying to his own use or benefit or wrongfully or knowingly selling or disposing of "any ordinance, arms, equipment, ammunition, clothing, subsistence stores, money or other property of the Government furnished or intended for the military service." 29 The offense, which according to the majority is strictly a service-connected offense, is punishable by "fine or imprisonment, or by such other punishment as a court-martial may adjudge, or by any or all of said penalties." 30 A military comptroller who embezzles the pension funds of soldiers could be made liable under Article 95, and thus could be appropriately charged before the court-martial. Also pursuant to Article 95, the court-martial has the discretion to impose as final punishment a fine ofP1,000.00, even if the comptroller embezzled millions of pesos. If the said comptroller has friends within the military top brass, the prospect of such a disproportionate penalty is actually feasible.

Now, if Justice Carpio’s position were to be pursued, no civilian court, whether the RTC or the Sandiganbayan, could acquire jurisdiction over the comptroller for the offense of embezzlement, which is punishable under the Revised Penal Code and the Anti-Graft and Corrupt Practices Act, the moment the comptroller faces the charge of violating Article 95 before the court-martial. Why? Because these civilian courts would be limited to "only a facial examination of the charge sheet in determining whether the offense is service-connected." Justice Carpio adds, "[i]f the offense, as alleged in the charge sheet, falls under the enumeration of service-connected offenses in Section 1 of RA No. 7055, then the military court has jurisdiction over the offense."

Applying Justice Carpio’s analysis to this theoretical example, the offense is "as alleged in the charge sheet" is a violation of Article 95 of the Articles of War. Article 95 "falls under the enumeration of service-connected offenses in Section 1 of R.A. No. 7055." Then, according to Justice Carpio, "the military court has jurisdiction over the offense." Yet Section 1 also

states that as a general rule that it is the civilian courts which have jurisdiction to try the offense, "except when the offense, as determined before arraignment by the civil court, is service-connected, in which case the offense shall be tried by court-martial." The ineluctable conclusion, applying Justice Carpio’s view to our theoretical example, is that the civilian court does not have jurisdiction to try the offense constituting embezzlement since it was forced to determine, following the limited facial examination of the charge sheet, that the act of embezzlement punishable under Article 95 of the Articles of War is a service-connected offense.

If "facial examination" ill-suffices as the appropriate standard of determination, what then should be the proper level of determination?

Full significance should be accorded the legislative tasking of the civil court, not the military court, to determine whether the offense before it is service-connected or not. Indeed, determination clearly implies a function of adjudication on the part of the trial court, and not a mechanical application of a standard pre-determined by some other body. The word "determination" implies deliberation 31 and is, in normal legal contemplation, equivalent to "the decision of a court of justice." 32 The Court in EPZA v. Dulay 33 declared as unconstitutional a presidential decree that deprived the courts

the function of determining the value of just compensation in eminent domain cases. In doing so, the Court declared, "the determination of ‘just compensation’ in eminent domain cases is a judicial function." 34

The majority shows little respect for the plain language of the law. As earlier noted, they believe that the determination reposed in the civilian court is limited to a facial examination of the military charge sheet to ascertain whether the defendants have been charged before the court-martial with the violation of Articles of War 54 to 70, 72 to 92, and 95 to 97. Their position could have been sustained had Section 1 read, "As used in this Section, service-connected crimes or offenses are those defined in Articles 54 to 70, Articles 72 to 92, and Articles 95 to 97 of Commonwealth Act No. 408, as amended," discarding the phrase "shall be limited to" immediately preceding the words "those defined." Such phraseology makes it clear that "service-connected crimes or offenses" are equivalent to "Articles 54 to 70, Articles 72 to 92, and Articles 95 to 97." Yet Section 1 is hardly styled in that fashion. Instead, it precisely reads, "xxx service-connected crimes or offenses shall be limited tothose defined in Articles 54 to 70 xxx."

What is the implication of the phrase "shall be limited to"? This has to be tied to the role of determination ascribed to the civilian court in the previous paragraph under Section 1. Note again, "determination" signifies that the civilian court has to undertake an inquiry whether or not the acts are service connected. As stated earlier, the Articles of War specified in Section 1 serve as guides for such determination. "shall be limited to" assures that the civilian court cannot rely on a ground not rooted on those aforementioned articles in ruling that an offense is service-connected. For example, the civilian court cannot declare that an offense is service-connected because the offender is a three-star general. Being a three-star general is in no way connected to Articles 54 to 70, Articles 72 to 92, and Articles 95 to 97.

At the same time, Section 1 concedes that if the act or offense for which the defendant is prosecuted before the civilian court also falls within those specified Articles of War, then the civilian court has to further determine whether the offense is service-connected. For example, a soldier who knowingly harbors or protects an enemy of the state may be liable under Article 82 of the Articles of War, which generally punishes military persons who aid the enemy, or under Article 114 of the Revised Penal Code, which classifies giving aid or comfort to the enemy as an act of treason. If the soldier is charged with treason, the civilian court may be called upon to determine whether the acts of assistance are service-connected, and it should be able to take into account the particular circumstances surrounding such acts. If the trial court determines that the offense is indeed service-connected, finding for example that the defendant had used his/her rank to assist the enemy, then it may rely on Article 82 in its conclusion that the act is service-connected. If however, the actor’s being also a soldier proved merely incidental and inconsequential to the assistance rendered to the enemy, the civilian court could very well declare that the offense is not service-connected and thus subject to trial for treason before it.

The function devolved by the law on the trial court involves the determination of which offenses are service-connected and which offenses are not. The power of determination, however, is circumscribed by the law itself. By employing the phrase "shall be limited to" and tying it with specifically enumerated Articles, the law precludes the trial court from characterizing acts which fall under the Articles not so enumerated as service-connected. Since Article 93 defining rape and Article 94 defining "various crimes" are not included in the enumeration in RA 7055 it follows that the trial court is devoid of authority to declare rape and "various crimes" as service-connected.

Again, the general purpose of RA 7055 is to deprive the court-martial of jurisdiction to try cases which are properly cognizable before the civilian courts. Hence, if a soldier is charged with violation of any of the articles other than those referred to in Section 1, the court-martial is deprived of jurisdiction under RA 7055 if such violation also constitutes a crime or offense under our penal laws. Section 1, by citing those aforementioned articles, carves an exception to the general rule, yet at the same time, qualifies this exception as subject to the determination of the trial court. Hence, if the trial court so determines that the "service-connected" exception does not apply, the general rule depriving the court-martial jurisdiction over the offense should continue to operate.

It is worth mentioning that prior to RA 7055, Commonwealth Act No. 408 recognized an exception to the rule that military persons are always subjected to court-martial in lieu of civil trial. Article 94 stipulated that a person subject to military law who committed a felony, crime, breach of law or violation of municipal ordinance recognized as an offense of a penal nature was punishable by court-martial, provided that such act was committed "inside a reservation of the [AFP]," or outside such reservation when the offended party is a person subject to military law.35 The implication, therefore, was that if such act described were committed outside a military reservation, the civilian courts would have jurisdiction to try such offense. As the official Manual for Courts-Martial of the AFP states, "[w]henever persons subject to military law commit any of the offenses above stated outside Philippine Army reservations, they fall under the exclusive jurisdiction of civil courts." 36

RA 7055 clearly expands this exception, by now mandating that even crimes committed within military reservations fall within the jurisdiction of civil courts, the only exception remaining is if it is determined by the civilian court that the offense is actually service-connected. Significantly, Section 1 of RA 7055 did not include Article 94 as among the Articles of War which define service-connected offenses. 37 Evidently the situs of the offense is not material as to whether the acts committed are service-connected offenses.

Admittedly, RA 7055 effectively curtails the ability of the military leadership to discipline the soldiers under their command through the court-martial process. This is accomplished though not by shielding errant soldiers from the criminal processes, but instead through the opposite route, by entrusting to the civilian courts the authority and sufficient discretion to impose substantive justice on such soldiers, conformably with the constitutional principle of civilian supremacy over the military. It must be noted that the acquisition of exclusive jurisdiction by the court-martial to try soldiers for acts punishable under penal laws is a double-edged sword of mischief. It can be utilized by a military leadership with an unquenchable thirst to punish its soldiers, a procedure which is facilitated due to the relatively lighter evidentiary requirements under military justice. It can also be utilized by a military leadership greatly sympathetic to one of their "mistahs" under fire, since the ability to inflict the lightest and most disproportionate of punishments falls within the wide range of discretion in the punishment accorded by law to courts-martial. Either premise is undesirable, and precisely RA 7055 was enacted to ensure that the civilian courts have all the opportunity to acquire jurisdiction over military persons who commit crimes, and to assure the trial courts all the discretion necessary to determine whether it should assume jurisdiction if the exception provided under Section 1 of the law is invoked.

RA 7055 Generally Prevents Military Personnel

From Facing Simultaneous Criminal Trials and Courts-Martial

Over the Same Acts or Offenses

It is thus not enough that petitioners have been charged with violating an Article of War referred to in Section 1 to authorize their court-martial to proceed, since the same act that constitutes the violation of an Article of War is also alleged in the complaint for coup d’etat now pending in the civilian courts. In order that the court-martial proceedings against petitioners could ensue, it is indisputably necessary that the RTC Order determining that the charges before the court-martial are not service-connected is directly nullified or reconsidered with the needed effect of terminating the criminal case for coup d’etat against them. If the act constituting the offense triable before the civilian courts and the court-martial are the same, then the defendants may be tried only either before the civilian courts or the court-martial, and not in both tribunals.

This is precisely why the exceptions under Section 1 of RA 7055 were provided for – to prevent the anomaly of the defendants being subjected to two different trials of equally punitive value for the same act. It is well worth noting that the Senate deliberations on RA 7055 indicate a strong concern on the part of the legislators over the situation wherein violations of the Articles of War also stand as violations of the Revised Penal Code. The following exchange between the late Senate President Neptali Gonzales and Senator Wigberto Tañada is worth noting:

Senator Gonzales. Again, in line 16, it says: The offenses defined in Articles 54 to 93 and 95 to 97 of the Articles of War, established by Commonwealth Act Numbered Four Hundred Eight, as amended, the same shall be triable by court-martial.

But there are many offenses which are also violations of the Articles of War. For example, murder. It may not necessarily be a murder of a fellow member of the Armed Forces. That is also a violation of the Articles of War; but, at the same time, it is also a crime punishable under the Penal Code. What do we do in such a situation?

Senator Tañada. In such an example, that would be tried by the civil courts. We had accepted the amendment proposed by Senator Ziga to exclude Article 93 under the Articles of War which would refer to murder or rape committed in times of war. Now, we have excluded that, because we believe that the murder or rape, whether committed in times of war, should not be tried by the civil courts.

Senator Gonzales. Do we have the distinguished Gentleman’s assurance that after deleting Article 93, also with respect to Articles 54 to 92, 95 to 97, there is absolutely no situation wherein the same act constitutes a violation of the Revised Penal Code and at the same time a violation of the Articles of War?

Senator Tañada. Yes, Mr. President. We excluded also Article 94 of the Articles of War, because this refers to various crimes that may be committed by persons subject to military law, which crimes can be considered as felonies, breach of law, or violation of municipal ordinance, which is recognized as an offense of a penal nature, and is punishable under the penal laws of the Philippines or under municipal ordinances.

Senator Gonzales. We have the assurance of the distinguished Gentleman, and we rely on that assurance. xxx 38

The passage deserves to be cited as it affirms the deliberate intent, already evident in the text of the law itself, to avoid the scenario of the civilian courts and the courts-martial exercising concurrent jurisdiction over the same acts. Hence, for as long as the

act committed by the soldier does not fall within those Articles of War referred to in Section 1, the civilian courts alone exercises jurisdiction over the trial of the acts. If it is asserted by the courts-martial, or otherwise argued, that the act complained of falls within those Articles of War referred to in Section 1, then the civilian court must make a determination that the acts committed are "service-connected," with the cited Articles as reference, before it can exercise its jurisdiction to the exclusion of the courts-martial. If the trial court declares that the acts are service-connected, it then is obliged to decline jurisdiction in favor of the courts-martial.

The cited passage does express the opinion of Senator Tañada that there is absolutely no situation wherein the same act constitutes a violation of the Revised Penal Code and at the same time a violation of the Articles of War. Such opinion might be cited to refute the declaration in the RTC Order that the acts charged before the court-martial were absorbed in the crime of coup d’etat. Yet caution should be had before this opinion of Senator Tañada is cited for that purpose. The quoted remarks were made on 21 May 1990, or five (5) months before the crime of coup d’etat was incorporated into the Revised Penal Code with the enactment of Republic Act No. 6968 on 24 October 1990. Certainly, when Senator Tañada made such opinion, he had no reason to believe that the cited Articles of War did not constitute any violation of the Revised Penal Code, particularly the crime of coup d’etat, since no such crime existed then.

Double Jeopardy

There is another vital reason RA 7055 cannot be interpreted in such a way as to permit both civilian and military trials of military personnel over the same act. Double jeopardy would arise as a consequence if such an interpretation were foisted.

It is very well settled that double jeopardy attaches if one is tried by both a military court and a civilian court over the same act, notwithstanding the differing natures of both tribunals. The rule was pronounced by the Philippine Supreme Court as far back as 1903, in U.S. v. Colley. 39 Therein, the defendant was sentenced to death by a court-martial after murdering a fellow soldier, but the sentence could not be carried out after the reviewing authority of the Army concluded that the military authorities were without power to carry into execution the sentence. He then was charged with the same offense before a civilian court. In ruling that the criminal case should be dismissed, the Court ruled that the criminal trial was barred by double jeopardy. The Court pronounced: "So here there is but one offense, that against the United States, and when the Government chooses the tribunal in which to try an offender, when the trial takes place in that tribunal, and when the accused is convicted and sentenced, he can not again be put in jeopardy in another court of the same sovereignty. xxx It follows that the defendant having been once in jeopardy can not be tried again for the offense of which he was formerly convicted." 40 A similar situation obtained in U.S. v. Tubig, 41 decided some months later, and a similar judgment of acquittal was mandated by the Court on the ground of double jeopardy.

The doctrine has survived past the American occupation. In 1954, the Court was again confronted with the issue whether a sentence passed by a military court barred further prosecution of the same offense in a civilian court. The Court, in Crisologo v. People, 42 squarely ruled that double jeopardy indeed barred such prosecution:

As we see it, the case hinges on whether the decision of the military court constitutes a bar to further prosecution for the same offense in the civil courts.

The question is not of first impression in this jurisdiction. In the case of U. S. vs. Tubig, 3 Phil., 244, a soldier of the United States Army in the Philippines was charged in the Court of First Instance of Pampanga with having assassinated one Antonio Alivia. Upon arraignment, he pleaded double jeopardy in that he had already been previously convicted and sentenced by a court-martial for the same offense and had already served his sentence. The trial court overruled the plea on the grounds that as the province where the offense was committed was under civil jurisdiction, the military court had no jurisdiction to try the offense. But on appeal, this court held that "one who has been tried and convicted by a court-martial under circumstances giving that tribunal jurisdiction of the defendant and of the offense, has been once in jeopardy and cannot for the same offense be again prosecuted in another court of the same sovereignty." In a later case, Grafton vs. U. S. 11 Phil., 776, a private in the United States Army in the Philippines was tried by a general court-martial for homicide under the Articles of War. Having been acquitted in that court, he was prosecuted in the Court of First Instance of Iloilo for murder under the general laws of the Philippines. Invoking his previous acquittal in the military court, he pleaded it in bar of proceedings against him in the civil court, but the latter court overruled the plea and after trial found him guilty of homicide and sentenced him to prison. The sentence was affirmed by this Supreme Court, but on appeal to the Supreme Court of the United States, the sentence was reversed and defendant acquitted, that court holding that "defendant, having been acquitted of the crime of homicide alleged to have been committed by him by a court-martial of competent jurisdiction proceeding under the authority of the United States, cannot be subsequently tried for the same offense in a civil court exercising authority in the Philippines."

There is, for sure, a rule that where an act transgresses both civil and military law and subjects the offender to punishment by both civil and military authority, a conviction or an acquittal in a civil court cannot be pleaded as a bar to a prosecution in the military court, and vice versa. But the rule "is strictly limited to the case of a single act which infringes both the civil and the military law in such a manner as to constitute two distinct offenses, one of which is within the cognizance of the military courts and the other a subject of civil jurisdiction" (15 Am. Jur., 72), and it does not apply where both courts derive their powers from the same sovereignty. (22 C. J. S., 449.) It therefore, has no application to the present case where the military court that convicted the petitioner and the civil court which proposes to try him again derive their powers from one sovereignty and it is not disputed that the charges of treason tried in the court-martial were punishable under the Articles of War, it being as a matter of fact impliedly admitted by the Solicitor General that the two courts have concurrent jurisdiction over the offense charged. 43

As noted earlier, Marcos, relying on Winthrop’s Military Law, pronounced that courts-martial are still courts in constitutional contemplation. 44 At the same time, the Court in Marcos pursued the logic of this thinking insofar as double jeopardy was concerned:

Besides, that a court-martial is a court, and the prosecution of an accused before it is a criminal and not an administrative case, and therefore it would be, under certain conditions, a bar to another prosecution of the defendant for the same offense, because the latter would place the accused in double jeopardy, is shown by the decision of the Supreme Court of the United States in the case of Grafton vs. United States, 206 U. S. 333; 51 Law. Ed., 1088, 1092, in which the following was held:

"If a court-martial has jurisdiction to try an officer or soldier for a crime, its judgment will be accorded the finality and conclusiveness as to the issues involved which attend the judgments of a civil court in a case of which it may legally take cognizance; . . . and restricting our decision to the above question of double jeopardy, we adjudge that, consistently with the above act of 1902, and for the reasons stated, the plaintiff in

error, a soldier in the Army, having been acquitted of the crime of homicide, alleged to have been committed by him in the Philippines, by a military court of competent jurisdiction, proceeding under the authority of the United States, could not be subsequently tried for the same offense in a civil court exercising authority in that territory."

I am aware that following the Court’s 1993 ruling in People v. Pineda, 45 double jeopardy will not attach unless either the RTC or the court-martial passes sentence on the petitioners. Yet even applying the Pineda doctrine, it is inevitable that, once either tribunal renders judgment on the merits, double jeopardy would bar the further prosecution by the court which was last in time to pronounce sentence, regardless whether petitioners were convicted or acquitted. If both the RTC trial for coup d’etat and the court-martial of the petitioners are allowed to proceed unhampered, the strong likelihood arises that either one will be eventually mooted, no matter the stage, should the other pronounce sentence.

I submit that RA 7055 precisely sought to avoid such a scenario by prescribing, as a general rule, an exclusively civilian trial for military personnel charged with offenses punishable under our penal laws, even if they are also punishable under the Articles of War. The only general exception lies if the civilian court determines that the acts constituting the court-martial offenses are service-connected, as defined under those Articles of War referred to in Section 1, in which case jurisdiction falls exclusively with the court-martial. If the civilian court arrives at a contrary determination, the civilian court retains jurisdiction to the exclusion of the court-martial unless and until such determination is reconsidered or set aside, or unless the criminal case is dismissed or dropped for reasons other than acquittal on the merits. The only exception I am willing to concede is if the charge before the court-martial falls under Article 96, which I will discuss further.

Notion of Absorption of Crimes

Irrelevant to Determination under RA 7055

I would like to dwell briefly on the suggestion that the RTC erred in pronouncing that the acts for which petitioners were charged before the court-martial were "absorbed"

in the crime of coup d’etat. Justice Callejo, Sr., in his Concurring Opinion, cites Baylosis v. Chavez, 46 and the rule that the doctrines laid down on the absorption

of common crimes by political crimes do not apply to crimes which are sui generis offenses.

This aspect is no longer material to my own disposition of the petition, yet I think it is misplaced to apply the doctrine of absorption of crimes to the determination of service-connected offenses made by the civilian court pursuant to Section 1 of RA 7055. The function of such determination by the trial court under RA 7055 is wholly different from that utilized by the trial court in ascertaining whether crime A is absorbed by crime B in the classic criminal law context. The latter is material to the trial court in reaching conclusions as to which crimes may be considered against the accused and which penalties may apply as to them. However, the purpose of the determination under RA 7055 is merely for establishing whether the acts for which the accused stand charged before the courts-martial are indeed service-connected offenses cognizable exclusively before the military courts, or non-service connected offenses cognizable exclusively before the civilian courts. The determining factor is whether the act is "service-connected," not whether one act is absorbed into the other.

The RTC may have been too loose in language when it utilized the word "absorbed," yet the word should not be appreciated in the context of absorption of crimes, as such consideration is wholly irrelevant for purposes of Section 1. Instead, I think that the pertinent conclusion of the RTC in its Order was that the acts charged before the court-martial were not service-connected, as they were committed in furtherance of the crime of coup d’etat. This, and not the notion of absorption of crimes, should be the foundational basis for any attack of the RTC Order.

The Special Circumstance Surrounding Article of War 96

It is my general conclusion that if the civilian court makes a determination that the acts for which the accused stands charged of, for violating those Articles of War referred to in Section 1 of RA 7055, are not service-connected, then such determination, once final, deprives the court-martial jurisdiction to try the offense. However, I submit that Article of War 96 warrants special consideration, as it differs in character from the other Articles of War referred to in Section 1 of RA 7055.

Article 96 of Commonwealth Act No. 408, as amended, reads:

Art. 96. Conduct Unbecoming an Officer and a Gentleman. — Any officer, cadet, flying cadet, or probationary second lieutenant, who is convicted of conduct unbecoming an officer and a gentleman shall be dismissed from the service.

Justice Callejo, Sr. points out in his Concurring Opinion that "conduct unbecoming an officer and a gentleman is a uniquely military offense," 47 and that "[t]he article proscribing conduct unbecoming an officer and a gentleman has been held to be wholly independent of other definitions of offenses xxx [and] is not subject to preemption by other punitive articles." 48 It is difficult to dispute these conclusions, which derive from American military case law. After all, "conduct unbecoming" pertains to the unique exigencies of military life and discipline, whereby an officer is expected to conform to an idiosyncratic etiquette not required of civilians.

Yet more pertinent to my position is the penalty prescribed by Article 96 for "conduct unbecoming." The penalty is dismissal from service, a penalty which is administrative in character, and beyond the jurisdiction of the civilian court to impose. Notably, of all the Articles of War referred to in Section 1 of RA 7055, it is only Article 96 that provides for dismissal from service as the exclusive penalty. All the other articles so mentioned allow for the penalty of death, imprisonment, or a punishment "as a court-martial may so direct" which could very well constitute any deprivation of life or liberty. While these other articles prescribes a penalty which is penal in nature, it is only Article 96 which provides for a penalty which is administrative in character.

As a result, I am prepared to conclude that courts-martial retain the jurisdiction to try violations of Article 96 of Commonwealth Act No. 408, or conduct unbecoming of an officer, even if the RTC determines that the acts constituting such violation are service-connected. The intent of RA 7055 is to restore to civilian courts jurisdiction over offenses which are properly cognizable by them to the exclusion of courts-martial. Such intent could obviously not extend to those offenses which the civilian courts do not have jurisdiction to try and punish. Civilian courts are utterly incapable of penalizing military officers with the penalty of discharge from the service, since the penalty is administrative in character 49 and imposable only by the military chain of command.

Petition Should Have Been Granted If Petitioners

Were Charged Under A Different Article of War

Still, if petitioners were facing the charge of mutiny under Article 63 of the Articles of War, or any other Article of War for that matter, in connection with the Oakwood incident, the petition would have been fully meritorious. The RTC has made a determination that all acts related to the Oakwood incident are not service-connected offenses. I am not fully prepared to subscribe to the position that the acts relating to Oakwood were "absorbed" in the offense of coup d’etat. However, I do concede two important points. First, the RTC did determine that the acts relating to Oakwood were not service-connected. Second, the determination of the RTC, as embodied in the 11 February 2004 Order, remains binding as the said Order has not been appealed. It has not been modified or set aside, even by the present decision or by the ruling in Navales.

The majority is clearly in a quandary, all too willing to pronounce that the Order is wrong, or even a nullity, yet unable to directly nullify the same. Respondents argue that the Order is already final and beyond challenge, and that contention should not be dismissed offhand. The suggestion has been raised that the principle of res judicatashould not be made to apply in this case, since the AFP was not a party to the criminal case. This claim is off-tangent, assuming as it does that the AFP somehow has a distinct and segregate legal personality from the government of the Philippines. The AFP is part of the government. It is indeed headed by the same person who heads the executive branch of government. The AFP likewise answers to officers of the executive branch, such as the Secretary of Defense. Certainly, the rendition of the Order would have presumably caused the same level and degree of grief on the AFP as it would have on the Department of Justice.

But was the government truly offended by the RTC Order? If it were, it should have timely elevated the same for appellate review. The fact that it did not gives further indication that the government recognized that Order as fundamentally correct, especially considering that it contains the very same conclusions reached by the Pre-Trial Investigating Panel constituted by the AFP.

I think in the end, respondents fully understood and applied the correct implications of RA 7055 as it pertained to petitioners. Had respondents been aligned in thinking with the majority, they would have been emboldened to charge petitioners with violations of other Articles of War despite the RTC Order and the pendency of the coup d’etat case. Petitioners could have very well been charged before the court-martial with violation of Article 63, for mutiny, just as the 290 other participants in the "Oakwood mutiny." Respondents however did not do so, respecting in fact the assumption of jurisdiction by the civilian court over the crime of coup d’etat. Instead, respondents limited the court-martial charge against petitioners for violation of Article 96, a punitive article which is nonetheless wholly administrative in character and in penalty.

The majority unfortunately shows no similar prudence. Instead, it has opted to take the path that leads to most resistance. With the decision today, there now stands a very real danger tomorrow that persons standing criminal trial before the civil courts, including the Sandiganbayan, who also happen to be facing charges before the court-martial for violation of Articles 54 to 70, 72 to 92, 95 or 97, will move for the dismissal of all their cases before the civilian courts. Assuming that there is integral relation between the acts now cognizable under court-martial and the acts for which those defendants face criminal trial, the trial courts will feel but little choice to dismiss those charge, in light of the present majority ruling. Military justice was once supreme over civilian justice. We should not go down that way again. Too many ghosts haunt that road.

I vote to dismiss the petition, for the reason discussed above. Insofar as the majority ruling deviates from the views I stated herein, I respectfully dissent.

DANTE O. TINGAAssociate Justice

Footnotes

1 Rollo, pp. 107-115.2 See id. at 186-206.3 G.R. No. 162318 & 162341, 25 October 2004, 441 SCRA 393. The author of this opinion was a member of the Court that unanimously decided Navales, which used a similar rationale in dismissing the petitions therein to that now employed by the majority. Even at present, the author submits that Navales was correctly decided, considering the following declaration made by the Court therein: " There was no factual and legal basis for the RTC (Branch 148) to rule that violations of Articles 63, 64, 67, 96, and 97 of the Articles of War were committed in furtherance of coup d'etat and, as such, absorbed by the latter crime. It bears stressing that, after a reinvestigation, the Panel of Prosecutors found no probable cause for coup d'etat against the petitioners and recommended the dismissal of the case against them. The trial court approved the recommendation and dismissed the case as against the petitioners. There is, as yet, no evidence on record that the petitioners committed the violations of Articles 63, 64, 96, and 97 of the Articles of War in furtherance of coup d'etat" Navales v. Abaya, id., at 417. Nonetheless, the author acknowledges that several passages in Navales are not consistent with the views expressed in this Opinion which now embodies the author’s present thinking, arrived at after considerable reevaluation of the legal issues involved.4 Rollo, pp. 266-267.5 75 Phil. 875 (1946).6 See also e.g., S/Sgt. Santiago v. Lt. Col. Alikpala, et al., 134 Phil. 309, 318 (1968).7 89 Phil. 246 (1951).8 Id. at 248-249.9 Claro C. Gloria, Philippine Military Law, p. 18 (1956), citing Winthrop, Military Law and Precedents , 2nd Ed., p. 54."As a court of law, it is bound, like any court, by the fundamental principles of law, and in the absence of a special provision on the subject in the military code, it observes in general the rules of evidence as adopted in the civil courts. As a court of justice, it is required, by the terms of its statutory oath, to adjudicate between the Philippines and the accused "without partiality, favor, or affection," and according, not only to the laws and customs of the service, but to its "conscience, i.e., its sense of substantial right and justice unaffected by technicalities. In the strictest sense courts-martial are courts of justice."10 Magno v. de Villa, G.R. No. 92606, 26 July 1991, 199 SCRA 663, 673, citing Chief Justice Teehankee in Vargas v. RADM Kilcline, et al.11 GR. Nos. L-54558 & L-69882, 22 May 1987, 150 SCRA 144.12 Id. at 165.13 80 Phil. 401 (1948).14 Collins v. McDonald, 258 US 416, 417.15 NCMR - U.S. v. Moody, 10 M.J. 845.16 ACMR – U.S. v. Wilson, 27 M.J. 555.17 In re Wilson, D.C.Va., 33 F.2d 214.18 U.S. ex rel. Hirshberg v. Cooke, N.Y., 69 S.Ct. 530, 336 U.S. 210, 93 L.Ed. 621.19 U.S. ex rel. Flannery v. Commanding General, Second Service Command, D.C.N.Y., 69 F.Supp. 661.20 57 C.J.S. Military Justice § 156. Emphasis supplied.21 Com. Act No. 408 has been amended by Rep. Act No. 242 (1948) and Rep. Act No. 516 (1950).22 Emphasis supplied.23 See Constitution, Art. II, Section 3.24 Record of the Senate, 9 May 1990, p. 671.25 395 U.S. 298 (1969).26 See also Gosa v. Mayden, 413 U.S. 665, 672 (1973). O’Callahan in turn was reversed by the U.S. Supreme Court in its 1987 ruling in Solorio v. U.S., 483 U.S. 435, which reiterated the previous doctrine that the proper exercise of court-martial

jurisdiction over an offense hinged on one factor: the military status of the accused. Solorio v. U.S., id. at 450-451. Still, it would be foolhardy to apply any persuasive value to the Solorio ruling to the present petition. The Court in Solorio whole-heartedly embraced the principle that it was the U.S. Congress that possessed "the authority to regulate the conduct of persons who are actually members of the armed services", id., at 441. The U.S. Supreme Court also acknowledged that "Congress has primary responsibility for the delicate task of balancing the rights of servicemen against the needs of the military. As [the U.S. Supreme Court] recently reiterated, ‘judicial deference… is at its apogee when legislative action under the congressional authority to raise and support armies and make rules and regulations for their governance is challenged.’" Id., at 447, citing Goldman v. Weinberger, 475 U.S. 503, 508 (1986). There was no American statute that prescribed the "service-connected" standard, even at the time O’Callahan was decided, the latter decision predicated instead on the Fifth and Six Amendments in the Bill of Rights. In the Philippine setting, "service-connected" is a standard duly legislated and enacted by Congress under Rep. Act No. 7055. My views in this Opinion are thus conformable even to the Solorio decision.27 Section 1, Rep. Act No. 7055. Emphasis supplied.28 Concurring Opinion, J. Carpio, infra.29 See Article 95, Com. Act No. 408, as amended.30 Id.31 "The words ‘a design, a determination, to kill, distinctly formed in the mind’ in an instruction, imply deliberation. ‘xxx The word ‘determination in this instruction is not used in any technical sense; in fact, it has no technical sense in which it means less than it does in popular signification. Webster defines it to be a ‘decision of a question in the mind; firm resolution; settled purpose.’ Can it be said that a question can be decided, a wavering resolution made firm, or a hesitating purpose settled without deliberation?" 12 Words and Phrases (1954 ed.), p. 478-479; citing State v. Ah Mook, 12 Nev. 369, 390.32 1 Bouvier’s Law Dictionary (8th ed., 1914), p. 858.33 G.R. No. L-59603, 29 April 1987, 149 SCRA 305.34 Id. at 316. Justice Vicente Mendoza’s declaration in Iglesia Ni Cristo v. Court of Appeals, 328 Phil. 893 (1996), is worth mentioning. "Indeed, I cannot understand why, after ruling that the valuation of property in eminent domain is essentially a judicial function which cannot be vested in administrative agencies, this Court should be willing to leave the valuation of that priceless commodity — expression, whether by means of motion picture or television — to administrative agencies with only occasional review by the courts. The trend may be toward greater delegation of judicial authority to administrative agencies in matters requiring technical knowledge and as a means of relieving courts of cases which such agencies can very well attend to. There is no justification, however, for such delegation in the area of our essential freedoms, particularly freedom of expression, where "only a judicial determination in an adversary proceeding [can] ensure the necessary sensitivity to freedom of expression." Id. at 962, J. Mendoza, Separate Opinion.35 This proviso was enacted as an amendment to Com. Act No. 408 by Rep. Act No. 242 in 1948.36 A Manual for Courts-Martial: Armed Forces of the Philippines, p. 181.37 See note 27.38 Record of the Senate, 21 May 1990, p. 840.39 3 Phil. 58 (1903).40 Id. at 66.41 3 Phil.244 (1904).42 94 Phil. 477 (1954).43 Id. at 479-480.44 Supra note 9.45 G.R. No. 44205, 16 February 1993, 219 SCRA 1.46 G.R. 95136, 3 October 1991, 202 SCRA 405.47 Concurring Opinion of Justice Callejo, Sr., infra; citing U.S. v. Weldon, 7 M.J. 938 (1979).48 Id. citing U.S. v. Taylor, 23 M.J. 341 (1987).49 "The provisions of both the Civil Code and the Rules of Court regarding the relationship between the criminal and civil liabilities of an accused do not contemplate administrative actions against government officers and employees. While there may be specific statutes making criminal guilt indispensable to the dismissal or any other form of administrative punishment for certain public employees, and there have been instances when the court itself did order reinstatement as a consequence of absolute acquittal, as a rule xxx the administrative determination as to an employee’s dismissal or punishment in any other way is not predicated in any respect on the result of

corresponding criminal proceedings." Rice and Corn Administration v. Silao, G.R. No. L-25294, 21 August 1980, 99 SCRA 200, 207-208. "[T]he criminal action is separate and distinct from the administrative case. And, if only for that reason, so is administrative liability separate and distinct from penal liability. Hence, probation only affects the criminal aspect of the case, not its administrative dimension." Samalio v. Court of Appeals, G.R. No. 140079, 31 March 2005, 454 SCRA 462, 475.


Manila

EN BANC

G.R. No. 95136 October 3, 1991

RAFAEL BAYLOSIS and BENJAMIN DE VERA, petitioners, vs.HON. APOLONIO R. CHAVEZ, JR., RIZAL PROVINCIAL PROSECUTOR MAURO CASTRO, COL. VIRGILIO SALDAJENO, HON. FRANKLIN M. DRILON, JR., HON. FIDEL V. RAMOS and GEN. RENATO DE VILLA,respondents.

Romeo T. Capulong for Rafael Baylosis.

Arno V. Sanidad for Benjamin de Vera.

Efren H. Mercado for Marco Palo.

NARVASA, J.:p

The constitutionality of the third paragraph of Section 1 of Presidential Decree No. 1866 is put at issue in the special action of certiorari, prohibition and mandamus at bar. That provision punishes with the penalty of reclusion perpetua, 1 any person who unlawfully manufacturers, deals in, acquires, disposes of, or possesses any firearm, 2 "in furtherance of, or incident to, or in connection with the crimes of rebellion, insurrection or subversion."

This is the second such attack against the provision. The first was launched sometime in 1988 and eventually repelled in this Court's decision in Misolas vs. Panga, rendered on January 30, 1990. 3 The Court in that case declined to hold the provision unconstitutional, overruling such arguments as that —

a) the questioned paragraph is violative of the principle of "substantive due process against arbitrary law ... because it disregards the overwhelming weight of national as well as international laws and jurisprudence behind the Hernandez (99 Phil 615) and Geronimo (100 Phil 90) rulings on the doctrine of absorption of common crimes in rebellion;"

b) it has given rise to the practice of charging armed rebels or subversives with "qualified' illegal possession of firearms instead of subversion or rebellion ... (because) (1) the former is easier to

prosecute than the latter, and (2) the former has a higher penalty ...;"

c) it is a bill of attainder; and

d) it allows a second jeopardy.

This second challenge to the constitutionality of said third paragraph of Section 1 of Presidential Decree No. 1866 relies on essentially the same arguments as those put forth in support of the first, petitioners' insistence to the contrary notwithstanding. Since it does not seem that the passage of time has infused any validity into those arguments, they shall again be struck down as specious, and the second constitutional challenge, like the first, repulsed.

The case at bar originated from an information filed in the Regional Trial Court at Pasig charging petitioners Rafael Baylosis and Benjamin de Vera, together with one Marco Palo, with a violation of PD 1866, 4 committed as follows:

That on or about the 29th day of March, 1988 in the Municipality of San Juan, Metro Manila, Philippines ..., the above named accused, all known high ranking officers of the Communist Party of the Philippines, and its military arm, the New Peoples Army, conspiring and confederating together and mutually helping each other, did then and there willfully , unlawfully and feloniously have in their possession, control and custody, in furtherance of, or incident to, or in connection with the crimes of rebellion/subversion, the following, to wit:

A. Firearms/Ammunition

One (1) AK 47 Automatic Rifle with M22N006726 with magazine and 9 rounds.

B. Explosives

Three (3) pieces fragmentation hand grenades without first securing the necessary license or permit thereof from a competent government authority.

Baylosis, de Vera, and Palo, filed a motion to quash the information on the following grounds, viz.:

I. THE FACTS CHARGED DO NOT CONSTITUTE AN OFFENSE BECAUSE THEY ARE FOUNDED ON AN UNCONSTITUTIONAL/REPEALED STATUTE.

B. FOR THE SAME REASONS, THIS HONORABLE COURT IS DEVOID OF JURISDICTION TO TRY THIS CASE.

After receiving the parties' arguments on the matter, the Trial Court denied the motion to quash, by an extended Resolution dated April 24, 1990. A motion for

reconsideration filed by Baylosis, et al. was also denied in an Order dated July 12, 1990.

Baylosis and de Vera thereupon instituted the present action in this Court. Here, they plead for the nullification and setting aside of the Trial Judge's Orders of April 24, 1990 and July 12, 1990; the dismissal of Criminal Case No. 72705 or, alternatively, that the information therein be considered as charging only simple rebellion; and that the public officials impleaded as respondents — the Rizal Public Prosecutor, the Secretary of Justice, the Secretary of National Defense, the Chief of Staff of the Armed Forces of the Philippines, and the Special Military Prosecutor — be "restrained from further initiating, filing or prosecuting cases involving common crimes against the petitioners."

What the petitioners advocate at bottom is that a doctrine laid down by jurisprudence or case law is superior to a statute afterwards enacted by legislative authority; that decisions construing certain specific provisions of one law are sufficient basis for a declaration of the unconstitutionality of a subsequently enacted law. More specifically, they contend that the rulings in People vs. Amado Hernandez 5 (reiterated in some ten other subsequent rulings), Enrile vs. Salazar,6 and Enrile vs. Amin 7 — to the effect that the felony of rebellion defined and penalized in the Revised Penal Code cannot, in accordance with Article 48 of the same Code, be complexed with the offense of murder, homicide, arson, or other crimes committed in connection with, or on the occasion or in furtherance of, rebellion — render invalid, as unconstitutional, Section 1 (3) of Presidential Decree No. 1866, as amended.

The petitioners further posit the unconstitutionality of the challenged provision because "repugnant to the provisions of the 1987 Constitution, which guarantee full respect for human rights, equal protection of the laws, due process, right to bail, protection against double jeopardy and from cruel, degrading or inhuman punishment, and supremacy of civilian authority over the military."

PD 1866 was enacted on June 29, 1983 8 by the late President Marcos in the exercise of his legislative powers under the 1973 Constitution, with the avowed purpose, indicated in its title, to codify "the laws on illegal/unlawful possession, manufacture, dealing in, acquisition or disposition, of firearms, ammunition or explosives or instruments used in the manufacture of firearms, ammunition or explosives; and disposing stiffer penalties for certain violations thereof and for relevant purposes." The section (numbered 1) containing the allegedly unconstitutional provision 9 reads as follows:

Section 1. Unlawful Manufacture, Sale, Acquisition, Disposition or Possession of Firearms or Ammunition or Instruments Used or Intended to be Used in the Manufacture of Firearms or Ammunition. — The penalty of reclusion temporal in its maximum period to reclusion perpetua shall be imposed upon any person who shall unlawfully manufacture, deal in, acquire, dispose, or possess any firearm, part of firearm, ammunition or machinery, tool or instrument used or intended to be used in the manufacture of any firearm or ammunition.

If homicide or murder is committed with the use of an unlicensed firearm, the penalty of death shall be imposed.

If the violation of this Section is in furtherance of, or incident to, or in connection with the crimes of rebellion, insurrection or subversion, the penalty of death shall be imposed.

The penalty reclusion temporal in its maximum period to reclusion perpetua shall be imposed upon the owner, president, manager, director or other responsible officer of any public or private firm, company, corporation or entity, who shall wilfully or knowingly allow any of the firearms owned by such firm, company, corporation or entity to be used by any person found guilty of violating the provisions of the preceding paragraphs.

The penalty of prision mayor shall be imposed upon any person who shall carry any licensed firearm outside his residence without legal authority therefor.

It is worthy of note that under this section —

1) simple possession of firearm without license or lawful authority (or unlawful manufacture, dealing in, acquisition, or disposal of any firearm, part of firearm, ammunition or machinery, tool or instrument used or intended to be used in the manufacture of any firearm or ammunition), without more, is punished by reclusion temporal maximum to reclusion perpetua — a penalty that, to be sure, is heavier than prision mayor, which is the penalty prescribed for rebellion or insurrection by Article 135 of the Revised Penal Code;

2) indeed, even if the firearm be licensed but is brought by the possessor outside of his residence without authority, the penalty imposed for the act is prision mayor, the same sanction as for rebellion;

3) the penalty is however increased to death (now reclusion perpetua) 10 if —

a) the unlicensed firearm is used in the commission of murder or homicide, or

b) the unlicensed firearm (or part thereof, or ammunition or machinery, tool or instrument in the manufacture of any firearm or ammunition) is possessed, dealt in, acquired, disposed of or possessed in furtherance of, or incident to, or in connection with the crimes of rebellion, insurrection or subversion.

Equally noteworthy is that the same PD 1866, as amended, 11 also defines as a crime punishable by reclusion temporal in its maximum period to reclusion perpetua, the act of any person —

... who shall unlawfully manufacture, assemble, deal in, acquire, dispose or possess hand-grenade(s), rifle grenade(s), and other explosives, including but not limited to "philbox bombs (sic)," "molotov cocktail bomb," "firebombs," or other incendiary devices capable of producing destructive effect on contiguous objects or causing injury or death to any person.

In other words, the mere possession of the weapons (or the unlawful manufacture or assembly thereof, or dealing in, acquisition or disposal thereof) is also punished by reclusion temporal maximum to reclusion perpetua, a penalty higher than that imposed for rebellion or insurrection, prision mayor, supra.

But the even higher penalty of death (now reclusion perpetua) is imposed if the aforementioned explosives, detonation agents or incendiary devices —

1) are used in the commission of any of the crimes defined in the Revised Penal Code, and this results in the death of any person or persons; or

2) are manufactured, assembled, dealt in, acquired, disposed of or possessed "in furtherance of, or incident to, or in connection with the crimes of rebellion, insurrection or subversion ..."

It is of no little significance that the petitioners do not condemn these other provisions of Section 1 and 3 — defining crimes also involving possession or manufacturing and/or use of firearms, ammunition and explosives, and penalizing them by reclusion temporal maximum to reclusion perpetua, or even by death — as being unconstitutionally infirm because imposing cruel or unusual punishment, or violative of due process, or otherwise.

What they say is that "laws and jurisprudence on political crimes are intended, and should always be interpreted, as favoring the political offender" since "political crimes are committed by the best of patriots," a theory that, it is said, runs counter to the Misolas decision 12 and impels re-examination of the latter. What they condemn is the imposition of such heavy penalties on the crime of possession, manufacture or use of firearms or explosives if committed "in furtherance of, or incident to, or in connection with the crimes of rebellion, insurrection or subversion," as if by some juridic alchemy, relation to rebellion or subversion works a transformation in the nature of the crimes in question. The connection, in other words, as the petitioners unabashedly affirm, is that the act of illicitly possessing or using a firearm is ennobled and mitigated by its being connected with an attempt or a publicly asserted intention to overthrow the Government; that killers, arsonists, terrorists should not be treated as "common criminals," i.e., condemned and punished as the killers, arsonists or terrorists that they are, if they commit their acts of violence and destruction in the name of "the Revolution." This is sophistry, totally unacceptable under the constitutional scheme of things in this country. It is a theory which has never been and should never be sanctioned by this Court. It is a proposition that is not in essence defensible, specially in the context of contemporary events. 13

The petitioners further theorize that Section 1 (3) of PD 1866 is invalid because it gives the public prosecutor an option not to file a case for rebellion and instead file as many crimes for murder, frustrated murder, etc. as might have been perpetrated in furtherance of, or incident to, or in connection with rebellion, insurrection or subversion. The argument is not tenable. The fact is that the Revised Penal Code treats rebellion or insurrection as a crime distinct from murder, homicide, arson, or other felonies that might conceivably be committed in the course of a rebellion. It is the Code, therefore, in relation to the evidence in the hands of the public prosecutor, and not the latter's whim or caprice, which gives the choice. The Code allows, for example, separate prosecutions for eithermurder or rebellion, although not for both where the indictment alleges that the former has been committed in furtherance of or in connection with the latter. Surely, whether people are killed or injured in connection with a rebellion, or not, the deaths or injuries of the victims are no less real, and the grief of the victims' families no less poignant.

Moreover, it certainly is within the power of the legislature to determine what acts or omissions other than those set out in the Revised Penal Code or other existing statutes are to be condemned as separate, individual crimes and what penalties should be attached thereto. The power is not diluted or improperly wielded simply because at some prior time the act or omission was but an element or ingredient of another offense, or might usually have been connected with another crime.

The interdict laid in Hernandez, Enrile and the other cases cited is against attempts to complex rebellion with the so called "common" crimes committed in furtherance, or in the course, thereof; this, on the authority alone of the first sentence of Article 48 of the Revised Penal Code. Stated otherwise, the ratio of said cases is that Article 48 cannot be invoked as the basis for charging and prosecuting the complex crime of rebellion with murder, etc., for the purpose of obtaining imposition of the penalty for the more serious offense in its maximum period (in accordance with said Art. 48). Said cases did not — indeed they could not and were never meant to — proscribe the legislative authority from validly enacting statutes that would define and punish, as offenses sui generis crimes which, in the context of Hernandez, et al. may be viewed as a complex of rebellion with other offenses. There is no constitutional prohibition against this, and the Court never said there was. What the Court stated in said cases about rebellion "absorbing" common crimes committed in its course or furtherance must be viewed in light of the fact that at the time they were decided, there were no penal provisions defining and punishing, as specific offenses, crimes like murder, etc. committed in the course of as part of a rebellion. This is no longer true, as far as the present case is concerned, and there being no question that PD 1866 was a valid exercise of the former President's legislative powers. Thus, Misolas, 14 to the effect that charging the qualified offense of illegal possession of firearms under PD 1866 does not charge the complex crime of subversion with illegal possession of firearms, and hence does not run counter to Hernandez, et al., is good and correct rule and is applicable here.

In Enrile vs. Salazar, the Court intimated that the remedy against the perceived lightness of the penalty for rebellion was not to be sought from the courts, but by legislation. It may not unreasonably be supposed that the purpose of PD 1866 appears to be precisely to remedy that perceived lenity of the penalty prescribed by the Revised Penal Code for rebellion or insurrection and the legal impossibility, pronounced by this Court of complexing that felony with other crimes punished by higher penalties in accordance with Article 48 of the same Code.

It is next argued that the proviso in question is unconstitutional because if inflicts on the convicted felon a cruel or unusual punishment, considering that the Revised Code penalizes rebellion or subversion only by prision mayor. The penalty fixed in said challenged section is, it is contended, flagrantly and plainly oppressive, greatly disproportionate to the offense, and shocking to the people's sense of justice. The result, it is further argued, is that the right to bail is denied under PD 1866 when the act thereby punished is only an ingredient of simple rebellion or subversion (which are bailable offenses) under the Revised Penal Code.

It is well settled that as far as the constitutional prohibition goes, it is not so much the extent as the nature of the punishment that determines whether it is, or is not, cruel and unusual and that sentences of imprisonment, though perceived to be harsh, are not cruel or unusual if within statutory limits. 15 As pointed out by a brother in the Court, a noted authority on Constitutional Law, this Court had held (in People vs. Dionisio, 22 SCRA 1299), "that mere severity does not constitute cruel and unusual punishment. Reiterating the rule first announced in People vs. Estoista (93 Phil. 674), it declared that it takes more than merely being harsh, excessive, out of proportion, or severe for a penalty to be obnoxious to the Constitution ... to come under the ban, the punishment must be 'flagrantly and plainly oppressive' 'wholly disproportionate to the

nature of the offense as to shock the moral sense of the community.'" 16 The same noted author further points out that "a penalty not normally proportionate to the offense may be imposed in some instances without violation of the Constitution. ... (as) for example, where the offense has become so rampant as to require the adoption of a more effective deterrent, like the stealing of jeeps or coconuts, which is punished by the Revised Penal Code as qualified theft" 17 — or, it may be added, like such crimes as assassinations, bombings and robberies, which are committed nowadays with frightening frequency and seeming impunity with the use of high-powered weapons, explosives or similar devices, whether in connection with or in furtherance or pursuance of, rebellion or subversion, or not.

It bears repeating in this connection that mere possession of a firearm without license or lawful authority, 18 without more, is punished by reclusion temporal maximum to reclusion perpetua; and that the use of an unlicensed firearm in the commission of murder of homicide is punished by death (now reclusion perpetua 19 ), yet there is no challenge to these penalties as being cruel or unusual.

The petitioners next proffer the argument that the Revised Penal Code punishes the crime of rebellion or insurrection (including the "common crimes" of murder, homicide, arson, etc. therein absorbed) only with the penalty of prision mayor. Comparisons, as the saying goes, are odious; and in this case, the attempt to compare PD 1866 with the Revised Penal Code is unwarranted. That there is a difference in penalty between the two laws does not necessarily establish that the heavier penalty imposed by one of said laws is excessive, disproportionate, or "cruel or unusual." For it might be argued, too, and certainly not without more than a modicum of validity, that the penalty in the Penal Code for rebellion may be regarded as unduly light given the conditions now prevailing in the country. In fact, no lack of commensuration may be pleaded if the avowed premises of PD 1866 (particularly the first, second and fifth whereas clauses of the preamble) are taken into account, viz.:

1) there has been an upsurge of crimes vitally affecting public order and safety (including, not to say specially, offenses of rebellion or subversion) due to the proliferation of illegally possessed and manufactured firearms, ammunition and explosives;

2) these criminal acts have resulted in loss of human lives damage to property and destruction of valuable resources of the country;

3) there are some provisions in ... (the) and laws and presidential decrees which must be updated and revised in order to more effectively deter violators of the law on firearms, ammunition and explosives.

The existence of rebellious groups in our society today, and of numerous bandits, or irresponsible or deranged individuals, is a reality that cannot be ignored or belittled. Their activities, the killings and acts of destruction and terrorism that they perpetrate, unfortunately continue unabated despite the best efforts that the Government authorities are exerting, although it may be true that the insurrectionist groups of the right or the left no longer pose a genuine threat to the security of the state. The need for more effective measures against these nefarious activities, including of course more stringent laws and more rigorous law-enforcement, cannot be gainsaid.

It is also argued that PD 1866 offends against the equal protection clause of the Constitution in that government prosecutors may arbitrarily choose those they want to prosecute under said law and those under Article 135 of the Revised Penal Code (or RA 1700, the Anti-Subversion Act). The argument is unimpressive. It is not much different from saying that a suspected killer is denied the equal protection of the laws because the prosecutor charges him with murder, not homicide, both crimes, though essentially consisting in the taking of human life, being punished with different penalties under separate provisions of the penal code. As already stressed, it is the prerogative of the legislature of the determine what acts or omissions shall be deemed criminal offenses and what sanctions should attach to them. Certainly, the public prosecutors should have the option to ascertain which prosecutions should be initiated on the basis of the evidence at hand. That a criminal act may have elements common to more than one offense does not rob the prosecutor of that option (or discretion) and mandatorily require him to charge the lesser offense although the evidence before him may warrant prosecution of the more serious one. Now, if government prosecutors make arbitrary choices of those they would prosecute under a particular law, excluding from the indictment certain individuals against whom there is the same evidence as those impleaded, the fault is not in the law but in the prosecutors themselves whose duty it is to file the corresponding information or complaint against all persons who appear to be liable for the offense involved, 20 a duty that should be performed responsibly, without discrimination, arbitrariness or oppression. If that duty is not performed evenhandedly, the persons aggrieved are not without remedy. They may avail of the remedy of mandamus of compel compliance with that duty by the prosecutors concerned. 21

The petitioners' invocation of the doctrine of double jeopardy as an argument against the constitutionality of PD 1866 is equally futile. They maintain that a person held liable under PD 1866 can still be made to answer subsequently for rebellion. The argument is here disposed of by simply adverting to the resolution of that self-same contention in Misolas:

The right against double jeopardy is a matter which the accused may raise in a motion to quash (Sec. 3[h], Rule 117). But, precisely, petitioner's motion to quash filed in the trial court did not raise the issue of double jeopardy because it had not arisen. The Court cannot anticipated that the opportunity for a second jeopardy will still arise if he is acquitted or convicted as charged under P.D. 1866.

Moreover, even if such a subsequent or second jeopardy does arise, P.D. No. 1866 will not be rendered unconstitutional. That an accused will be exposed to double jeopardy if he is prosecuted under another law is not a ground to nullify that law. Double jeopardy is merely a defense that an accused may raise to defeat a subsequent prosecution or conviction for the same offense.

WHEREFORE, the petitioner is DENIED for lack of merit, with costs against petitioners.

SO ORDERED.

Fernan, C.J., Melencio-Herrera, Paras, Feliciano, Padilla, Bidin, Griño-Aquino, Medialdea and Davide, Jr., JJ., concur.

Separate Opinions

SARMIENTO, J., dissenting:

I dissent. I would like to point out that I was originally assigned to write the opinion for the majority in Misolas vs. Panga, 1 My opinion sought to strike down Presidential Decree No. 1866 for three reasons: (1) it is a bill of attainder because it presumes the accused to be guilty, as well, of the crime of subversion, in addition to "illegal possession;" (2) it is vague; and (3) it violates the rule against double jeopardy. I take the liberty in restating that opinion, as I originally wrote it:

The petitioner, a detained prisoner, prays that the Court declare "the third paragraph of Section 1 of Presidential Decree No. 1866" 1 unconstitutional in this petition for certiorari.

The petitioner was apprehended by elements of the Philippine Constabulary (244th PC Company) on August 8, 1987, at Forest Village, Barangay Tagbobog, Pili, Camarines Sur. He was arrested along with two others, Identified only as Ka Donna and Ka Menchie, following "information" 2 reaching the PC headquarters at Naga City that three "subversive terrorists" 3 were sojourning at an "underground house" 4 at Forest Village. On further information submitted by "neighbors", 5 that "the real owner (of the house) is in Binanauanan, Pili and that the occupants ... were strangers," 6 the Constabulary through a raiding team, led a search of the house. Their account is as follows: "We searched the house and found among their personal belongings, voluminous subversive documents and one gauge shotgun, commonly as 'sumpak' with serial number 221534 and four (4) live ammos for the same firearm." 7 It was added that "we found inside three persons one (1) male and two (2) female but the two female [sic] escaped." 8 Thereafter, the petitioner was brought to Naga City for questioning.

On August 10, 1987, the Constabulary filed a complaint with the Provincial Fiscal. On September 4, 1987, or twenty-six days after the petitioner's arrest without a warrant, the Fiscal filed the corresponding information, for violation of the third paragraph, of Section 1, of Presidential Decree No. 1866. But it was only on September 11, 1987, or more than one month after his warrantless apprehension, that a warrant was issued, and bail for his provisional liberty fixed, in the sum of P170,000.00. No bail apparently has been posted up to now because he cannot afford it. As a matter of fact, the petitioner is represented by a counsel de oficio and has been allowed by the Court to litigate as a pauper.

On September 30, 1987, the lower court arraigned the petitioner, who entered a plea of not guilty. On October 14, 1987, he filed a "Motion to Withdraw Plea." Thereupon, he moved to quash the information, on the grounds as follows: "(1) That the facts charged do not constitute an offense because the Information does not charge the proper offense; 10 and (2) That the court trying the case had no jurisdiction over the person of the accused because of violations of his constitutional rights." 11

On January 7, 1988, the court a quo issued an order denying quashal. On February 15, 1988, reconsideration was denied.

As indicated at the outset, the validity of certain provisions of Presidential Decree No. 1866 is primarily questioned in this petition.

Presidential Decree No. 1866, "CODIFYING THE LAWS ON ILLEGAL/UNLAWFUL POSSESSION, MANUFACTURE, DEALING IN, ACQUISITION OR DISPOSITION, OF FIREARMS, AMMUNITION OR EXPLOSIVES OR INSTRUMENTS USED IN THE MANUFACTURE OF FIREARMS, AMMUNITIONS OR EXPLOSIVES, AND IMPOSING STIFFER PENALTIES FOR CERTAIN VIOLATIONS THEREOF AND FOR RELEVANT PURPOSES," provides in its Section 1 as follows:

SECTION 1. Unlawful Manufacture, Sale, Acquisition, Disposition of Firearms or Ammunition or Instruments Used or Intended to be Used in the Manufacture of Firearms or Ammunition. — The penalty of reclusion temporal in its maximum period to reclusion perpetua shall be imposed upon any person who shall unlawfully manufacture, deal in, acquire, dispose, or possess any firearm, part of firearm, ammunition or machinery, tool or instrument used or intended to be used in the manufacture of any firearm or ammunition.


If the violation if this Section is in furtherance of, or incident to, or in connection with the crimes of rebellion, insurrection or subversion, the penalty of death shall be imposed.

The penalty of reclusion temporal in its maximum period to reclusion perpetua shall be imposed upon the owner, president, manager, director or other responsible officer of any public or private firm, company, corporation or entity, who shall willfully or knowingly allow any of the firearms owned by such firm, company, corporation or entity to be used by any person or persons found guilty of violating the provisions of the preceding paragraphs.

The penalty of prision mayor shall be imposed upon any person who shall carry any licensed firearm outside his residence without legal authority therefor. 12

It should be noted that under paragraph 3, of Section 3, punishing "unlawful manufacture, sales, acquisition, disposition or possession of explosives," the penalty is likewise death if the offense is committed "in furtherance of, or incident to, or in connection with the crime of rebellion, insurrection or subversion." We quote:

SEC. 3 Unlawful Manufacture, Sales, Acquisition, Disposition or Possession of Explosives. — The penalty of reclusion temporal in its maximum period to reclusion perpetua shall be imposed upon any person who shall unlawfully manufacture, assemble, deal in, acquire, dispose or possess handgrenade(s), rifle grenade(s), and other explosives, including but not limited to "pillbox bombs," "molotov cocktail bomb," "firebombs," or other incendiary devices capable of producing destructive effect on contiguous objects or causing injury or death to any person.

Any person who commits any of the crimes defined in the Revised Penal Code or special laws with the use of the aforementioned explosives, detonation agents or incendiary devices, which results in the death of any person or persons shall be punished with the penalty of death.


The penalty of reclusion temporal in its maximum period to reclusion perpetua shall be imposed upon the owner, president, manager, director or other responsible officer of any public or private firm, company, corporation or entity, who shall willfully or knowingly allow any of the explosives owned by such firm, company, corporation or entity to be used by any person or persons found guilty of violating the provisions of the preceding paragraphs. 13

The petitioner has been charged under the third paragraph of Section 1, that is, illegal possession of a firearm and ammunition "in furtherance of, or incident to, or in connection with rebellion, insurrection, or subversion." He is not being held for rebellion, insurrection, or subversion, the offenses he precisely maintains are the proper offenses (specifically, subversion).

The Decree does not punish "rebellion, insurrection or subversion" as distinct crimes because rebellion, insurrection, and subversion are offenses already penalized by existing statutes (Article 134 and 135 of the Revised Penal Code with respect to rebellion or insurrection; Republic Act No. 1700 as amended by Executive Orders Nos.167 and 276 with respect to subversion). Neither can the Decree be said to be an amendment to the law, as "amendment" is legally defined, meaning to say, an "alternation or charge" 14 for the purpose of "removing defects or faults" 15 in the statute. It is not necessarily tantamount to a "repeal" either, because, so it is said, while "an amendment keeps alive ... a 'repeal' destroys." 16

The Court sees nothing in the Decree that would convey this impression, i.e., to amend, much less repeal, existing legal provisions on national security and public order. By its explicit and express language, what it makes punishable is the unlawful manufacture, acquisition, disposition, possession of, and dealing in, firearms and armaments without proper legal sanction, and so makes it punishable by reclusion perpetua, 17 with the qualification that where such a prohibited act is committed in furtherance of, or incident to, or in connection with rebellion, insurrection, or subversion offenses against public order and national security, the penalty is increased to death as if rebellion, insurrection, or subversion were aggravating circumstances. 18

In objecting to the Decree, the petitioner says that it cannot validly consider rebellion, insurrection, or subversion as an attendant circumstance to qualify the offense of "illegal possession" because, precisely "illegal possession" absorbed by rebellion, etc., on the strength of the Court's rulings in People vs. Hernandez, 19 People vs. Geronimo, 20 People vs. Rodriguez, 21 and People vs. Lava, 22As a consequence, so he avers, "illegal possession" when committed "in furtherance of rebellion, etc." constitutes a non-offense.

The Court finds no necessity in belaboring these objections since the Decree must, in any event, be stricken down for being plainly, a bill of attainder and an offense against due process.

A bill of attainder has been defined as "a legislative act which inflicts punishment without trial." 23 It is expressly prohibited by the Constitution, 24 but other than by explicit constitutional mandate, it is essentially repugnant to fundamentals of republicanism enshrined in the Charter. It has thus been said:

Its essence is the substitution of a legislative for a judicial determination of guilt. The constitutional ban against bills of attainder serves to implement the principle of separation of powers by confining legislatures to rule-making and thereby forestalling legislative usurpation of the judicial function. History in perspective, bills of attainder were employed to suppress unpopular causes and political minorities, and it is against this evil

that the constitutional prohibition is directed. The singling out of a definite class, the imposition of a burden on it, and a legislative intent, suffice to stigmatize a statute as a bill of attainder. 25

As Ferrer indicates, the ban on bills of attainder was meant to implement the principle of separation of powers "by confining legislatures to rule-making and thereby forestalling legislative usurpation of the judicial function." 26 The term originally applied, however, Congress prescribing the death penalty to specific individuals or groups, "attaining" the victims, and providing for disinheritance. Where the statute provides for lesser penalties, it is called a "bill of pains and penalties." 27 In Cummings vs. Missouri, 28 the United States Supreme Court held that the prohibition covers both bills of attainder and bills of pains and penalties.

The concept of bills of attainder is said to be of American origin, 29 although the Biak-na-Bato Constitution's injunction against imprisonment "except by virtue of judgment passed by a court of competent authority" 30 vaguely resembled present-day constitutional aversion to bills of attainder. (Under the Malolos Constitution, it was likewise provided that "[n]o Filipino can become a prisoner unless by virtue of the mandate of a competent judge." 31 It was in Mckinley's so-called instructions to the Second Philippine Commission, however, that the ban was specially addressed: "Upon every division and branch of the Government of the Philippines. ... must be imposed these inviolable rules ... that no bill of attainder or ex post facto law shall be passed ..." 32 Since, then, the prohibition has devolved over from one organic act to another (Philippine Bill of 1902, Jones Law of 1916, the 1935 Constitution).

That bills of attainder are repulsive to the doctrine of separation of powers, as they are thought to be today, marks actually a departure from early opinions about the underlying reasons behind the injunction of the Constitution. Essentially, the inhibition was a response to acts of oppression and arbitrariness of tyrannies of the ancien regime by simple royal decree, which were central to American experience. Thus, in Ferrer, this Court spoke of the use of bills of attainder "to suppress unpopular causes and political minorities," 33 which, pertinently, would have made the ban, based on our own experiences under an authoritarian leadership and as a former colony, relevant to our jurisdiction in spite of its (the ban's) distinction as a relic from a colonial past.

Beginning with U.S. vs. Brown, 34 however, the Supreme Court of the United States declared that the proscription serves "as an implementation of the separation of powers, a general safeguard against legislative exercise of the judicial function, or more simply — trial by legislature." 35 It provided a new tack to constitutional law analysis because in that event, the presence of punishment would no longer have been the essence of a bill of attainder but rather, because it would have allowed the legislature to impinge

on judicial prerogatives. According to one authority: "Critically, the Supreme Court had shifted its focus from punishment to trial, and the shift implied that the ban on bills of attainder was a limitation upon the legislative process rather than simply upon legislative policies." 36

Three reasons are said to underlie the "shift": (1) The need to institutionalize the doctrine in the Constitution by "fractionalizing" power; 37(2) The need to make the adjudicating process strictly the judge's concern, rather than the lawmaker's, because the legislature, as a political body, is swayed by popular opinions for which it cannot be said to be "impartial," which a judge is presumed to be; and (3) The concern to make the legislature disclose its purposes by leaving the construction of its acts to a separate body, which a bill of attainder cannot achieve as it covers both rule and application at the same time. 38

However it is interpreted, the notion of bills of attainder in this jurisdiction had not been as specifically circumscribed, and has been in fact invoked in questions involving the equal protection, due process, and presumption of innocence clauses of the Charter. Thus, in Dumlao vs. COMELEC, 39 this Court struck down Section 4 of Batas Blg. 52, which had barred individuals from running in the local elections of 1980, "who ha[ve] committed any act of disloyalty to the State, including acts amounting to subversion, insurrection, rebellion or other similar crimes ... provided, that a judgment of convictions for any of the aforementioned crimes shall be conclusive evidence of such fact and the filing of charges for the commission of such crimes before a civil court or military tribunal after preliminary investigation shall beprima facie evidence of such fact." We invalidated the provision for repugnancy to the presumption-of-innocence clause of the Constitution:

xxx xxx xxx

Explicit is the constitutional provision, that 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 (Article IV, section 19, 1973 Constitution). An accusation, according to the fundamental law, is not synonymous with guilt. The challenged proviso contravenes the constitutional presumption of innocence, as a candidate is disqualified from running for public office on the ground alone that charges have been filed against him before a civil or military tribunal. It condemns before one is fully heard. In ultimate effect, except as to the degree of proof, no distinction is made between a person convicted of acts of disloyalty and one against whom charges have been filed for such acts, as both of them would be ineligible to run for public office. A person disqualified

to run for public office on the ground that charges have been filed against him is virtually placed in the same category as a person already convicted of a crime with the penalty ofarresto, which carries with it the accessory penalty of suspension of the right to hold office during the term of the sentence (Art. 44, Revised Penal Code). 40

In his concurrence, the Chief Justice Enrique Fernando further provides:

xxx xxx xxx

... I would add that such a provision is moreover tainted with arbitrariness and therefore is violative of the due process clause. Such a constitutional right, to quote from Luzon Surety Co., Inc. vs. Beson, is "not a mere formality that may be dispensed with at will. Its disregard is a matter of serious concern. It is a constitutional safeguard of the highest order. It is a response to man's innate sense of justice." As rightfully stressed in the opinion of the Court, the time element may invariably preclude a full hearing on the charge against him and thus effectively negate the opportunity of an individual to present himself as a candidate. If, as has been invariably the case, a prosecutor, whether in a civil court or in a military tribunal, saddled as he is with so many complaints filed on his desk would give to the all-too-human propensity to take the easy way out and to file charges, then a candidate would be hard put to destroy the presumption. A sense of realism for me compels a declaration of nullity of a provision which on its face is patently offensive to the Constitution. 41

But clearly, the provision constituted a bill of attainder as well, in its fundamental sense as a legislative declaration of guilt. And while the provision prescribed no penalty as the term is known in penology, other than employment disability, it nonetheless imposed some hardship upon the aggrieved party. In Cummings vs. Missouri, 42 we are told that deprivation of one's means of livelihood is tantamount to punishment.

In referring to the "legislature" we are not closing the coverage of the ban on acts of Congress purely, notwithstanding our pronouncement in Montenegro vs. Castañeda 43 in which we said that "[t]he prohibition applies only to statutes." 44 In the first place, the Decree questioned herein is clearly in the nature of a "statute." Secondly, the attainder ban is made on any "law" and perforce, it should likewise apply to any executive act, if is has the

character of law. To that extent, we consider Montenegro vs. Castañeda as pro tanto modified.

We come to the questioned Decree.

We hold that the same, specially, the second and third paragraphs, of Section one thereof, (and the third paragraph, of Section three thereof), is a bill of attainder because it presumes one accused under its provisions guilty — as well — of the crimes (murder and homicide under the second paragraph of Section one; and the rebellion, insurrection, and subversion under the third paragraph of Section one, and the third paragraph of Section 3) that supposedly aggravate "illegal possession of firearms" (or "unlawful manufacture of explosives") when the accused has not been tried and found guilty of such crimes in any judicial proceeding. In the case at bar, the fact that the petitioner has been charged with illegal possession of firearms "in furtherance of subversion" means that the petitioner has committed subversion notwithstanding the fact that he is not standing trial for subversion, or has been convicted thereof — because precisely, the Decree does not punish subversion. Otherwise, he should have been indicted under the first paragraph, defining simple "illegal possession."

The fact that one charged under the challenged provisions of the Decree, as was held in People vs. Ferrer, would still have to be proven to have committed rebellion, insurrection, or murder or homicide in the course of the commission of the "main offenses" in a judicial trial would not, to the mind of the Court, salvage the statute. As we said, the Decree does not punish rebellion, insurrection, or rebellion, or murder or homicide, a fact that should make conviction for such offenses impossible (but which the Decree makes possible, anyway). To make the accused answer for such crimes at the same time, then, is to make him answer for an offense of which he has not been charged (violation of either Article 137 of the Revised Penal Code, Republic Act No. 1700, as amended by Executive Orders Nos. 167 and 276, or Article 248 or 249 of the Code), which cannot be done without doing violence to the right of accused persons "to be informed of the nature and cause of the accusation against him." 45

At any rate, because the statute itself designates the various crimes abovesaid, including subversion, as "aggravating circumstances," conviction thereunder would of necessity carry with it the accompanying stain of such offenses. It would have made the accused guilty, at the same time, of such offenses notwithstanding the fact that he had been charged with simple illegal possession of firearms or unlawful manufacture of explosives.

Presidential Decree No. 1866, the Court is of the further opinion, is offensive to due process and the prohibition against double jeopardy. The Court reiterates that it does not penalize subversion (or rebellion, etc.) and because it does not, it allows the State to pursue a separate proceeding for the said crimes. But in that case the prosecution need only present the self-same evidence

constituting illegal possession of firearms since illegal possession is one of the means of committing subversion under the Anti-Subversion Act. We quote:

SEC. 4. After the approval of this Act, whoever knowingly, wilfully and by overt acts affiliates himself with, becomes or remains a member of the Communist Party of the Philippines, and/or its successor or of any subversive association as defined in sections two and three hereof shall be punished by the penalty of arresto mayor and shall be disqualified permanently from holding any public office, appointive and elective, and from exercising the right to vote; in case of a second conviction, the principal penalty shall be prision correccional, and in all subsequent convictions the penalty of prision mayor shall be imposed; and any alien convicted under this Act shall be deported immediately after he shall have served the sentence imposed upon him; Provided, That if such member is an officer or a ranking leader of the Communist Party of the Philippines or of any subversive association as defined in sections two and three hereof, or if such member takes up arms against the government, he shall be punished byprision mayor to reclusion perpetua with all the accessory penalties provided therefor in the Revised Penal Code: And provided, finally. That one who conspires with any other person to overthrow the Government of the Republic of the Philippines or the government or any of its political subdivisions by force, violence, deceit, subversion orother illegal means, shall be punished by prision correccional to prision mayor with all the accessory penalties provided therefor in the same Code. 46

It shall be noted that under the Act above-quoted, subversion may be committed, among other things, by conspiring in the overthrow of the Government by "other illegal means." 47 And doubtless, illegal possession of firearms or unlawful manufacture of explosives is an "illegal means." But because conviction under the Decree does not foreclose a future prosecution under the Anti-Subversion Act, it would have allowed a subsequent punishment for subversion (arising from illegal possession of firearms) based on the same evidence, when the accused has already been convicted of an offense that comprises a mere element of subversion. Certainly, it would have put him twice in jeopardy for the same offense.

While it is true in double jeopardy cases, first jeopardy must have attached and that the accused is under threat of a second one, 48 which does not obtain here, the fact that the Decree in

question allows the possibility of such a succeeding jeopardy makes it, the Decree, repulsive to the fundamentals of due process.

For the reasons above-stated, we consider our ruling in Lazaro vs. People 49 no longer good law. In that case, which involved a prosecution for illegal possession of unlicensed firearm used in parricide under the provisions of Presidential Decree No. 9 (Presidential Decree No. 1866's precursor), we held that "[t]he offense of 'Illegal Possession of Unlicensed Firearm used in Parricide' includes the lesser offense of Parricide." 50 "We hold that it is no longer good law, in the first place, because in no way may parricide be considered a "lesser offense" than "illegal possession," for one thing, parricide being an offense punished by the Revised Penal Code and "illegal possession" being an act penalized by a special law. Secondly, if parricide is deemed included in illegal possession of firearm used in parricide, it means that a prosecution for one should be an abatement of a proceeding for the other, 51 yet, in Tangan vs. People,52 a prosecution for possession of an unlicensed firearm used in the commission of homicide under Presidential Decree No. 1866, it was held that "the offense charged ... [possession of an unlicensed firearm used in the commission of homicide] ... does not operate to extinguish his criminal liability for the [other]offense charged [homicide]." 53 Apparently., a subsequent prosecution for those offenses that are supposed to qualify "illegal possession" (or "illegal manufacture") under Presidential Decree No. 1866 is still possible (as Tangan tells us) but must as apparently, this is where the difficulty arises. For if we allow a trial for such offenses, we would have placed the accused in double jeopardy (as Lazaro tells us). 54 It is therefore no valid proposition to say that all talk of double jeopardy is too early pending conviction for the first offense, because that result would be inevitable (in case of a conviction). We find, as we have said, such a situation offensive to due process of law. The Solicitor General would, however, say:

Section 1 of P.D. No. 1866 is not unconstitutional. It is similar to Batas Pambansa Blg. 22. B.P. Blg. 22 punishes the issuance of an unfunded check. The issuance of an unfunded check is the mode or means of commission of estafa under paragraph 2(d), Article 315 of the Revised Penal Code. Under Section 5 of B.P. Blg. 22, "Prosecution under this Act shall be without prejudice to any liability for any violation of the Revised Penal Code. Despite these circumstances, this Honorable Court upheld the constitutionality of B.P. Blg. 22 (Lozano vs. Martinez, 146 SCRA 323). Thus a person can be simultaneously prosecuted under B.P. Blg. 22 and paragraph 2(d), Article 315 of the Revised Penal Code. 55

The Court sees no parallel between Batas Blg. 22 and Presidential Decree No. 1866 as to effects and implications.

When Batas Blg. 22 allows a separate prosecution for estafa, it does so because the issuance of bad checks, the act punished by it, is a separate act that may or may not constitute estafa because estafa may be committed in ways other than the issuance of bouncing checks, so long as the act has been attended by deceit, which is not central to the Bouncing Checks Law. A successful prosecution for violation of Batas Blg. 22 does not give the fiscal any more advantage, nor does it place the accused at a disadvantage, because he, the fiscal, must further establish deceit, the essence of estafa. 56

In the case at bar, however, the petitioner (the accused) is being held liable for illegal possession of firearms "in furtherance of subversion" which, in itself, is a fundamental ingredient of the offense of subversion, because as we have indicated, subversion is committed by "any illegal means." And in that event, the prosecution need not establish — in the separate proceeding for subversion — any other act constituting subversion as defined by law committed by the accused because the finding alone of illegal possession of firearms would be enough to support a conviction for subversion. It would have allowed the prosecution to strike two birds with a single stone in a manner that he would not have been permitted to do so under the due process clause of the Constitution.

There is no doubt that the privilege to arm oneself is subject to State regulation. Regulation, however, should be within rightful and reasonable limits, and with due regard to the rights and liberties of citizens. Centuries ago, we were told that tyranny begins by the disarming of the people, so that the people cannot defend themselves against tyranny. In that event, "regulation" would have been a plain excuse for the oppression of the people.

A final word. Presidential Decree No. 1866 was one of the many presidential issuances which had served the dictatorship, and served it well, as an instrument of repression during the dictatorial years. Because of it, many courageous freedom fighters had perished or languished in various places of detention throughout our country. It is unfortunate that this oppressive Presidential Decree had been allowed to remain in our statute books after the apparatus of dictatorship had been dismantled and sadly, it is still being used as incessantly as in the previous regime. It is an anachronism in the broad democratic space that obtains today. We must strike it down.

WHEREFORE, the petition is GRANTED. Paragraphs two and three, of Section one, of Presidential Decree No. 1866 as amended, as well as paragraph three, of Section three thereof, are declared UNCONSTITUTIONAL and of no force and effect. The immediate release of the petitioner from custody is hereby ORDERED.

IT IS SO ORDERED. 2

I would like to add, insofar as the majority in this case adverts to the "Hernandez doctrine," that Presidential Decree No. 1866 is, moreover, an invalid exercise of judicial power, and is therefore offensive to the principle of separation of powers prescribed by the Constitution. In People vs. Hernandez, 3 the Court held that common crimes — such as illegal possession of firearms — are simple ingredients of the primary offense (rebellion, subversion, etc.), for which separate prosecutions are not possible. The Court has spoken. The legislature can not reinterpret the law by making mere ingredients of an offense punishable separately. Interpretation of the law is the sole domain of the Court.

As I said, Presidential Decree No. 1866 is one of the last vestiges of authoritarian rule in the country, whereby the State pounced on its opponents under rules that offered no sporting chance or hope to the State's opponents. Democracy has however, been restored, in which the State is called upon to lean favorably toward its opponents (i.e., through favorable penal laws and presumption of innocence). It is time to wipe the Decree out of our statute books.

Regalado, J., I join Justice Sarmiento in his dissent.

CRUZ, J., dissenting:

If the petitioners are convicted of rebellion under the Revised Penal code and found to have used an illegally possessed firearm in connection therewith, they will be subject to the penalty of only prision mayor. The illegal possession of firearms is absorbed in the crime of rebellion and may not be separately punished.

On the other hand, if they are convicted of illegal possession of firearms in connection with the crime of rebellion under P.D. 1866, they will be subject to the extreme penalty of reclusion perpetua (reduced from death). Conviction of the illegal possession carries with it a finding that the accused was engaged in rebellion.

I am unable to understand the obvious disparity. In both instances, two circumstances are established, to wit, rebellion and illegal possession of firearms. Yet the first offense is punished only with prision mayor but the second is punished with reclusion perpetua.

Due process requires as a desideratum of fairness the equivalence of the degree of the offense and the degree of the penalty. A serious offense deserves a heavy penalty while a light offense authorizes only a mild penalty. Otherwise stated, a light offense cannot be punished with a heavy penalty, as where, say, littering is penalized with life imprisonment.

It is true, as the ponencia states, that there are cases where an offense not serious per se may be punished with a heavy penalty as a deterrent to its proliferation or because of some special social purpose that may be justified under the some special social purpose that may be justified under the police power. But in such cases, it must be established that the offenses are sui generis to justify deviation from the general rule. Lacking such justification, the disproportionate penalty may be struck down as a cruel or inhuman punishment.

In the cases before us, the law takes an ambivalent position toward the crime of illegal possession of firearms when committed in connection with rebellion. As the basic offense under PD 1866, it is considered a serious offense and penalized with no less than reclusion perpetua. However, as a mere attendant circumstance in committing

rebellion under the Revised Penal Code, it is not even separately punished, being deemed absorbed in the main offense.

It seems to me that if it is the intention of the legislature to consider a particular crime a serious offense deserving a heavy penalty, it should be consistent in the application of such penalty. It cannot punish the offense heavily in one case and practically condone it in another case.

One might say that this involves a question of policy or wisdom that is resoluble only by Congress and not by this Court. That may be so, again as a general rule, but not where considerations of due process and equal protection are involved.

Under the laws as they stood when the petitioners were formally indicted, the prosecuting officer was given the choice of the offense he could charge, depending on his discretion, which could in turn depend on his attitude toward the suspect. This circumstance gave a dangerous power to the government to discriminate in the prosecution of persons charged with practically the same offense, treating some of them severely and the others with benign leniency.

It has been held that although a law may be fair and impartial on its face, it must nevertheless be annulled if it gives the administrative officer the discretion to enforce it with "an evil eye and an uneven hand" (Yick Wo vs. Hopkins, 118 U.S. 356; People vs. Vera, 65 Phil. 56). That is exactly what PD 1866 empowered the prosecuting officer to do. In fact, at the hearing of this case before this Court, the government counsel frankly admitted that the petitioners were prosecuted under the decree because it prescribed the heavier penalty although they could also have been prosecuted for rebellion under the Revised Penal Code.

Mention has been made of RA 6968 which now imposes for simple rebellion under Articles 134 and 135 of the Revised Penal Code the same penalty for violation of Sec. 1(3) of Sec. 3(3) of PD 1866. The subsequent passage of the amendatory law in 1990 does not, of course, affect the petitioners in the case at bar because the offense imputed to them were supposedly committed in 1988. Such amendment may have corrected the injustice inherent in the aforestated provisions of PD 1866, which is thus now relieved of its constitutional infirmity. However, the decree may still not be applied to the herein petitioners as it was unconstitutional at the time it was made the basis for their prosecution and the subsequent enactment of RA 6968 did not retroactively validate it.

My vote is to grant the petition. So did I vote in Misolas.

Gutierrez, Jr., J., dissent.

# Separate Opinions

SARMIENTO, J., dissenting:

I dissent. I would like to point out that I was originally assigned to write the opinion for the majority in Misolas vs. Panga, 1 My opinion sought to strike down Presidential Decree No. 1866 for three reasons: (1) it is a bill of attainder because it presumes the accused to be guilty, as well, of the crime of subversion, in addition to "illegal possession;" (2) it is vague; and (3) it violates the rule against double jeopardy. I take the liberty in restating that opinion, as I originally wrote it:

The petitioner, a detained prisoner, prays that the Court declare "the third paragraph of Section 1 of Presidential Decree No. 1866" 1 unconstitutional in this petition for certiorari.

The petitioner was apprehended by elements of the Philippine Constabulary (244th PC Company) on August 8, 1987, at Forest Village, Barangay Tagbobog, Pili, Camarines Sur. He was arrested along with two others, Identified only as Ka Donna and Ka Menchie, following "information" 2 reaching the PC headquarters at Naga City that three "subversive terrorists" 3 were sojourning at an "underground house" 4 at Forest Village. On further information submitted by "neighbors", 5 that "the real owner (of the house) is in Binanauanan, Pili and that the occupants ... were strangers," 6 the Constabulary through a raiding team, led a search of the house. Their account is as follows: "We searched the house and found among their personal belongings, voluminous subversive documents and one gauge shotgun, commonly as 'sumpak' with serial number 221534 and four (4) live ammos for the same firearm." 7 It was added that "we found inside three persons one (1) male and two (2) female but the two female [sic] escaped." 8 Thereafter, the petitioner was brought to Naga City for questioning.

On August 10, 1987, the Constabulary filed a complaint with the Provincial Fiscal. On September 4, 1987, or twenty-six days after the petitioner's arrest without a warrant, the Fiscal filed the corresponding information, for violation of the third paragraph, of Section 1, of Presidential Decree No. 1866. But it was only on September 11, 1987, or more than one month after his warrantless apprehension, that a warrant was issued, and bail for his provisional liberty fixed, in the sum of P170,000.00. No bail apparently has been posted up to now because he cannot afford it. As a matter of fact, the petitioner is represented by a counsel de oficio and has been allowed by the Court to litigate as a pauper.

On September 30, 1987, the lower court arraigned the petitioner, who entered a plea of not guilty. On October 14, 1987, he filed a "Motion to Withdraw Plea." Thereupon, he moved to quash the information, on the grounds as follows: "(1) That the facts charged do not constitute an offense because the Information does not charge the proper offense; 10 and (2) That the court trying the case had no jurisdiction over the person of the accused because of violations of his constitutional rights." 11

On January 7, 1988, the court a quo issued an order denying quashal. On February 15, 1988, reconsideration was denied.

As indicated at the outset, the validity of certain provisions of Presidential Decree No. 1866 is primarily questioned in this petition.

Presidential Decree No. 1866, "CODIFYING THE LAWS ON ILLEGAL/UNLAWFUL POSSESSION, MANUFACTURE,

DEALING IN, ACQUISITION OR DISPOSITION, OF FIREARMS, AMMUNITION OR EXPLOSIVES OR INSTRUMENTS USED IN THE MANUFACTURE OF FIREARMS, AMMUNITIONS OR EXPLOSIVES, AND IMPOSING STIFFER PENALTIES FOR CERTAIN VIOLATIONS THEREOF AND FOR RELEVANT PURPOSES," provides in its Section 1 as follows:

SECTION 1. Unlawful Manufacture, Sale, Acquisition, Disposition of Firearms or Ammunition or Instruments Used or Intended to be Used in the Manufacture of Firearms or Ammunition. — The penalty of reclusion temporal in its maximum period to reclusion perpetua shall be imposed upon any person who shall unlawfully manufacture, deal in, acquire, dispose, or possess any firearm, part of firearm, ammunition or machinery, tool or instrument used or intended to be used in the manufacture of any firearm or ammunition.


If the violation if this Section is in furtherance of, or incident to, or in connection with the crimes of rebellion, insurrection or subversion, the penalty of death shall be imposed.

The penalty of reclusion temporal in its maximum period to reclusion perpetua shall be imposed upon the owner, president, manager, director or other responsible officer of any public or private firm, company, corporation or entity, who shall willfully or knowingly allow any of the firearms owned by such firm, company, corporation or entity to be used by any person or persons found guilty of violating the provisions of the preceding paragraphs.

The penalty of prision mayor shall be imposed upon any person who shall carry any licensed firearm outside his residence without legal authority therefor. 12

It should be noted that under paragraph 3, of Section 3, punishing "unlawful manufacture, sales, acquisition, disposition or possession of explosives," the penalty is likewise death if the offense is committed "in furtherance of, or incident to, or in connection with the crime of rebellion, insurrection or subversion." We quote:

SEC. 3 Unlawful Manufacture, Sales, Acquisition, Disposition or Possession of Explosives. — The penalty of reclusion temporal in its maximum period to reclusion perpetua shall be imposed upon any person who shall unlawfully manufacture, assemble, deal in, acquire, dispose or possess handgrenade(s), rifle grenade(s), and other explosives, including but not limited to "pillbox bombs," "molotov cocktail bomb," "firebombs," or other incendiary devices capable of producing destructive effect on contiguous objects or causing injury or death to any person.

Any person who commits any of the crimes defined in the Revised Penal Code or special laws with the use of the aforementioned explosives, detonation agents or incendiary devices, which results in the death of any person or persons shall be punished with the penalty of death.


The penalty of reclusion temporal in its maximum period to reclusion perpetua shall be imposed upon the owner, president, manager, director or other responsible officer of any public or private firm, company, corporation or entity, who shall willfully or knowingly allow any of the explosives owned by such firm, company, corporation or entity to be used by any person or persons found guilty of violating the provisions of the preceding paragraphs. 13

The petitioner has been charged under the third paragraph of Section 1, that is, illegal possession of a firearm and ammunition "in furtherance of, or incident to, or in connection with rebellion, insurrection, or subversion." He is not being held for rebellion, insurrection, or subversion, the offenses he precisely maintains are the proper offenses (specifically, subversion).

The Decree does not punish "rebellion, insurrection or subversion" as distinct crimes because rebellion, insurrection, and subversion are offenses already penalized by existing statutes (Article 134 and 135 of the Revised Penal Code with respect to rebellion or insurrection; Republic Act No. 1700 as amended by Executive Orders Nos.167 and 276 with respect to subversion). Neither can the Decree be said to be an amendment to the law, as "amendment" is legally defined, meaning to say, an

"alternation or charge" 14 for the purpose of "removing defects or faults" 15 in the statute. It is not necessarily tantamount to a "repeal" either, because, so it is said, while "an amendment keeps alive ... a 'repeal' destroys." 16

The Court sees nothing in the Decree that would convey this impression, i.e., to amend, much less repeal, existing legal provisions on national security and public order. By its explicit and express language, what it makes punishable is the unlawful manufacture, acquisition, disposition, possession of, and dealing in, firearms and armaments without proper legal sanction, and so makes it punishable by reclusion perpetua, 17 with the qualification that where such a prohibited act is committed in furtherance of, or incident to, or in connection with rebellion, insurrection, or subversion offenses against public order and national security, the penalty is increased to death as if rebellion, insurrection, or subversion were aggravating circumstances. 18

In objecting to the Decree, the petitioner says that it cannot validly consider rebellion, insurrection, or subversion as an attendant circumstance to qualify the offense of "illegal possession" because, precisely "illegal possession" absorbed by rebellion, etc., on the strength of the Court's rulings in People vs. Hernandez, 19 People vs. Geronimo, 20 People vs. Rodriguez, 21 and People vs. Lava, 22As a consequence, so he avers, "illegal possession" when committed "in furtherance of rebellion, etc." constitutes a non-offense.

The Court finds no necessity in belaboring these objections since the Decree must, in any event, be stricken down for being plainly, a bill of attainder and an offense against due process.

A bill of attainder has been defined as "a legislative act which inflicts punishment without trial." 23 It is expressly prohibited by the Constitution, 24 but other than by explicit constitutional mandate, it is essentially repugnant to fundamentals of republicanism enshrined in the Charter. It has thus been said:

Its essence is the substitution of a legislative for a judicial determination of guilt. The constitutional ban against bills of attainder serves to implement the principle of separation of powers by confining legislatures to rule-making and thereby forestalling legislative usurpation of the judicial function. History in perspective, bills of attainder were employed to suppress unpopular causes and political minorities, and it is against this evil that the constitutional prohibition is directed. The singling out of a definite class, the imposition of a burden on it, and a legislative intent, suffice to stigmatize a statute as a bill of attainder. 25

As Ferrer indicates, the ban on bills of attainder was meant to implement the principle of separation of powers "by confining legislatures to rule-making and thereby forestalling legislative usurpation of the judicial function." 26 The term originally applied, however, Congress prescribing the death penalty to specific individuals or groups, "attaining" the victims, and providing for disinheritance. Where the statute provides for lesser penalties, it is called a "bill of pains and penalties." 27 In Cummings vs. Missouri, 28 the United States Supreme Court held that the prohibition covers both bills of attainder and bills of pains and penalties.

The concept of bills of attainder is said to be of American origin, 29 although the Biak-na-Bato Constitution's injunction against imprisonment "except by virtue of judgment passed by a court of competent authority" 30 vaguely resembled present-day constitutional aversion to bills of attainder. (Under the Malolos Constitution, it was likewise provided that "[n]o Filipino can become a prisoner unless by virtue of the mandate of a competent judge." 31 It was in Mckinley's so-called instructions to the Second Philippine Commission, however, that the ban was specially addressed: "Upon every division and branch of the Government of the Philippines. ... must be imposed these inviolable rules ... that no bill of attainder or ex post facto law shall be passed ..." 32 Since, then, the prohibition has devolved over from one organic act to another (Philippine Bill of 1902, Jones Law of 1916, the 1935 Constitution).

That bills of attainder are repulsive to the doctrine of separation of powers, as they are thought to be today, marks actually a departure from early opinions about the underlying reasons behind the injunction of the Constitution. Essentially, the inhibition was a response to acts of oppression and arbitrariness of tyrannies of the ancien regime by simple royal decree, which were central to American experience. Thus, in Ferrer, this Court spoke of the use of bills of attainder "to suppress unpopular causes and political minorities," 33 which, pertinently, would have made the ban, based on our own experiences under an authoritarian leadership and as a former colony, relevant to our jurisdiction in spite of its (the ban's) distinction as a relic from a colonial past.

Beginning with U.S. vs. Brown, 34 however, the Supreme Court of the United States declared that the proscription serves "as an implementation of the separation of powers, a general safeguard against legislative exercise of the judicial function, or more simply — trial by legislature." 35 It provided a new tack to constitutional law analysis because in that event, the presence of punishment would no longer have been the essence of a bill of attainder but rather, because it would have allowed the legislature to impinge on judicial prerogatives. According to one authority: "Critically, the Supreme Court had shifted its focus from punishment to trial, and the shift implied that the ban on bills of attainder was a limitation upon the legislative process rather than simply upon legislative policies." 36

Three reasons are said to underlie the "shift": (1) The need to institutionalize the doctrine in the Constitution by "fractionalizing" power; 37(2) The need to make the adjudicating process strictly the judge's concern, rather than the lawmaker's, because the legislature, as a political body, is swayed by popular opinions for which it cannot be said to be "impartial," which a judge is presumed to be; and (3) The concern to make the legislature disclose its purposes by leaving the construction of its acts to a separate body, which a bill of attainder cannot achieve as it covers both rule and application at the same time. 38

However it is interpreted, the notion of bills of attainder in this jurisdiction had not been as specifically circumscribed, and has been in fact invoked in questions involving the equal protection, due process, and presumption of innocence clauses of the Charter. Thus, in Dumlao vs. COMELEC, 39 this Court struck down Section 4 of Batas Blg. 52, which had barred individuals from running in the local elections of 1980, "who ha[ve] committed any act of disloyalty to the State, including acts amounting to subversion, insurrection, rebellion or other similar crimes ... provided, that a judgment of convictions for any of the aforementioned crimes shall be conclusive evidence of such fact and the filing of charges for the commission of such crimes before a civil court or military tribunal after preliminary investigation shall beprima facie evidence of such fact." We invalidated the provision for repugnancy to the presumption-of-innocence clause of the Constitution:

xxx xxx xxx

Explicit is the constitutional provision, that 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 (Article IV, section 19, 1973 Constitution). An accusation, according to the fundamental law, is not synonymous with guilt. The challenged proviso contravenes the constitutional presumption of innocence, as a candidate is disqualified from running for public office on the ground alone that charges have been filed against him before a civil or military tribunal. It condemns before one is fully heard. In ultimate effect, except as to the degree of proof, no distinction is made between a person convicted of acts of disloyalty and one against whom charges have been filed for such acts, as both of them would be ineligible to run for public office. A person disqualified to run for public office on the ground that charges have been filed against him is virtually placed in the same category as a person already convicted of a crime with the penalty ofarresto, which carries with it the accessory penalty of suspension of the right

to hold office during the term of the sentence (Art. 44, Revised Penal Code). 40

In his concurrence, the Chief Justice Enrique Fernando further provides:

xxx xxx xxx

... I would add that such a provision is moreover tainted with arbitrariness and therefore is violative of the due process clause. Such a constitutional right, to quote from Luzon Surety Co., Inc. vs. Beson, is "not a mere formality that may be dispensed with at will. Its disregard is a matter of serious concern. It is a constitutional safeguard of the highest order. It is a response to man's innate sense of justice." As rightfully stressed in the opinion of the Court, the time element may invariably preclude a full hearing on the charge against him and thus effectively negate the opportunity of an individual to present himself as a candidate. If, as has been invariably the case, a prosecutor, whether in a civil court or in a military tribunal, saddled as he is with so many complaints filed on his desk would give to the all-too-human propensity to take the easy way out and to file charges, then a candidate would be hard put to destroy the presumption. A sense of realism for me compels a declaration of nullity of a provision which on its face is patently offensive to the Constitution. 41

But clearly, the provision constituted a bill of attainder as well, in its fundamental sense as a legislative declaration of guilt. And while the provision prescribed no penalty as the term is known in penology, other than employment disability, it nonetheless imposed some hardship upon the aggrieved party. In Cummings vs. Missouri, 42 we are told that deprivation of one's means of livelihood is tantamount to punishment.

In referring to the "legislature" we are not closing the coverage of the ban on acts of Congress purely, notwithstanding our pronouncement in Montenegro vs. Castañeda 43 in which we said that "[t]he prohibition applies only to statutes." 44 In the first place, the Decree questioned herein is clearly in the nature of a "statute." Secondly, the attainder ban is made on any "law" and perforce, it should likewise apply to any executive act, if is has the character of law. To that extent, we consider Montenegro vs. Castañeda as pro tanto modified.

We come to the questioned Decree.

We hold that the same, specially, the second and third paragraphs, of Section one thereof, (and the third paragraph, of Section three thereof), is a bill of attainder because it presumes one accused under its provisions guilty — as well — of the crimes (murder and homicide under the second paragraph of Section one; and the rebellion, insurrection, and subversion under the third paragraph of Section one, and the third paragraph of Section 3) that supposedly aggravate "illegal possession of firearms" (or "unlawful manufacture of explosives") when the accused has not been tried and found guilty of such crimes in any judicial proceeding. In the case at bar, the fact that the petitioner has been charged with illegal possession of firearms "in furtherance of subversion" means that the petitioner has committed subversion notwithstanding the fact that he is not standing trial for subversion, or has been convicted thereof — because precisely, the Decree does not punish subversion. Otherwise, he should have been indicted under the first paragraph, defining simple "illegal possession."

The fact that one charged under the challenged provisions of the Decree, as was held in People vs. Ferrer, would still have to be proven to have committed rebellion, insurrection, or murder or homicide in the course of the commission of the "main offenses" in a judicial trial would not, to the mind of the Court, salvage the statute. As we said, the Decree does not punish rebellion, insurrection, or rebellion, or murder or homicide, a fact that should make conviction for such offenses impossible (but which the Decree makes possible, anyway). To make the accused answer for such crimes at the same time, then, is to make him answer for an offense of which he has not been charged (violation of either Article 137 of the Revised Penal Code, Republic Act No. 1700, as amended by Executive Orders Nos. 167 and 276, or Article 248 or 249 of the Code), which cannot be done without doing violence to the right of accused persons "to be informed of the nature and cause of the accusation against him." 45

At any rate, because the statute itself designates the various crimes abovesaid, including subversion, as "aggravating circumstances," conviction thereunder would of necessity carry with it the accompanying stain of such offenses. It would have made the accused guilty, at the same time, of such offenses notwithstanding the fact that he had been charged with simple illegal possession of firearms or unlawful manufacture of explosives.

Presidential Decree No. 1866, the Court is of the further opinion, is offensive to due process and the prohibition against double jeopardy. The Court reiterates that it does not penalize subversion (or rebellion, etc.) and because it does not, it allows the State to pursue a separate proceeding for the said crimes. But in that case the prosecution need only present the self-same evidence constituting illegal possession of firearms since illegal possession is one of the means of committing subversion under the Anti-Subversion Act. We quote:

SEC. 4. After the approval of this Act, whoever knowingly, wilfully and by overt acts affiliates himself with, becomes or remains a member of the Communist Party of the Philippines, and/or its successor or of any subversive association as defined in sections two and three hereof shall be punished by the penalty of arresto mayor and shall be disqualified permanently from holding any public office, appointive and elective, and from exercising the right to vote; in case of a second conviction, the principal penalty shall be prision correccional, and in all subsequent convictions the penalty of prision mayor shall be imposed; and any alien convicted under this Act shall be deported immediately after he shall have served the sentence imposed upon him; Provided, That if such member is an officer or a ranking leader of the Communist Party of the Philippines or of any subversive association as defined in sections two and three hereof, or if such member takes up arms against the government, he shall be punished byprision mayor to reclusion perpetua with all the accessory penalties provided therefor in the Revised Penal Code: And provided, finally. That one who conspires with any other person to overthrow the Government of the Republic of the Philippines or the government or any of its political subdivisions by force, violence, deceit, subversion orother illegal means, shall be punished by prision correccional to prision mayor with all the accessory penalties provided therefor in the same Code. 46

It shall be noted that under the Act above-quoted, subversion may be committed, among other things, by conspiring in the overthrow of the Government by "other illegal means." 47 And doubtless, illegal possession of firearms or unlawful manufacture of explosives is an "illegal means." But because conviction under the Decree does not foreclose a future prosecution under the Anti-Subversion Act, it would have allowed a subsequent punishment for subversion (arising from illegal possession of firearms) based on the same evidence, when the accused has already been convicted of an offense that comprises a mere element of subversion. Certainly, it would have put him twice in jeopardy for the same offense.

While it is true in double jeopardy cases, first jeopardy must have attached and that the accused is under threat of a second one, 48 which does not obtain here, the fact that the Decree in question allows the possibility of such a succeeding jeopardy makes it, the Decree, repulsive to the fundamentals of due process.

For the reasons above-stated, we consider our ruling in Lazaro vs. People 49 no longer good law. In that case, which involved a prosecution for illegal possession of unlicensed firearm used in parricide under the provisions of Presidential Decree No. 9 (Presidential Decree No. 1866's precursor), we held that "[t]he offense of 'Illegal Possession of Unlicensed Firearm used in Parricide' includes the lesser offense of Parricide." 50 "We hold that it is no longer good law, in the first place, because in no way may parricide be considered a "lesser offense" than "illegal possession," for one thing, parricide being an offense punished by the Revised Penal Code and "illegal possession" being an act penalized by a special law. Secondly, if parricide is deemed included in illegal possession of firearm used in parricide, it means that a prosecution for one should be an abatement of a proceeding for the other, 51 yet, in Tangan vs. People,52 a prosecution for possession of an unlicensed firearm used in the commission of homicide under Presidential Decree No. 1866, it was held that "the offense charged ... [possession of an unlicensed firearm used in the commission of homicide] ... does not operate to extinguish his criminal liability for the [other]offense charged [homicide]." 53 Apparently., a subsequent prosecution for those offenses that are supposed to qualify "illegal possession" (or "illegal manufacture") under Presidential Decree No. 1866 is still possible (as Tangan tells us) but must as apparently, this is where the difficulty arises. For if we allow a trial for such offenses, we would have placed the accused in double jeopardy (as Lazaro tells us). 54 It is therefore no valid proposition to say that all talk of double jeopardy is too early pending conviction for the first offense, because that result would be inevitable (in case of a conviction). We find, as we have said, such a situation offensive to due process of law. The Solicitor General would, however, say:

Section 1 of P.D. No. 1866 is not unconstitutional. It is similar to Batas Pambansa Blg. 22. B.P. Blg. 22 punishes the issuance of an unfunded check. The issuance of an unfunded check is the mode or means of commission of estafa under paragraph 2(d), Article 315 of the Revised Penal Code. Under Section 5 of B.P. Blg. 22, "Prosecution under this Act shall be without prejudice to any liability for any violation of the Revised Penal Code. Despite these circumstances, this Honorable Court upheld the constitutionality of B.P. Blg. 22 (Lozano vs. Martinez, 146 SCRA 323). Thus a person can be simultaneously prosecuted under B.P. Blg. 22 and paragraph 2(d), Article 315 of the Revised Penal Code. 55

The Court sees no parallel between Batas Blg. 22 and Presidential Decree No. 1866 as to effects and implications. When Batas Blg. 22 allows a separate prosecution for estafa, it does so because the issuance of bad checks, the act punished by it, is a separate act that may or may not constitute estafa because estafa may be committed in ways other

than the issuance of bouncing checks, so long as the act has been attended by deceit, which is not central to the Bouncing Checks Law. A successful prosecution for violation of Batas Blg. 22 does not give the fiscal any more advantage, nor does it place the accused at a disadvantage, because he, the fiscal, must further establish deceit, the essence of estafa. 56

In the case at bar, however, the petitioner (the accused) is being held liable for illegal possession of firearms "in furtherance of subversion" which, in itself, is a fundamental ingredient of the offense of subversion, because as we have indicated, subversion is committed by "any illegal means." And in that event, the prosecution need not establish — in the separate proceeding for subversion — any other act constituting subversion as defined by law committed by the accused because the finding alone of illegal possession of firearms would be enough to support a conviction for subversion. It would have allowed the prosecution to strike two birds with a single stone in a manner that he would not have been permitted to do so under the due process clause of the Constitution.

There is no doubt that the privilege to arm oneself is subject to State regulation. Regulation, however, should be within rightful and reasonable limits, and with due regard to the rights and liberties of citizens. Centuries ago, we were told that tyranny begins by the disarming of the people, so that the people cannot defend themselves against tyranny. In that event, "regulation" would have been a plain excuse for the oppression of the people.

A final word. Presidential Decree No. 1866 was one of the many presidential issuances which had served the dictatorship, and served it well, as an instrument of repression during the dictatorial years. Because of it, many courageous freedom fighters had perished or languished in various places of detention throughout our country. It is unfortunate that this oppressive Presidential Decree had been allowed to remain in our statute books after the apparatus of dictatorship had been dismantled and sadly, it is still being used as incessantly as in the previous regime. It is an anachronism in the broad democratic space that obtains today. We must strike it down.

WHEREFORE, the petition is GRANTED. Paragraphs two and three, of Section one, of Presidential Decree No. 1866 as amended, as well as paragraph three, of Section three thereof, are declared UNCONSTITUTIONAL and of no force and effect. The immediate release of the petitioner from custody is hereby ORDERED.

IT IS SO ORDERED. 2

I would like to add, insofar as the majority in this case adverts to the "Hernandez doctrine," that Presidential Decree No. 1866 is, moreover, an invalid exercise of judicial power, and is therefore offensive to the principle of separation of powers prescribed by the Constitution. In People vs. Hernandez, 3 the Court held that common crimes — such as illegal possession of firearms — are simple ingredients of

the primary offense (rebellion, subversion, etc.), for which separate prosecutions are not possible. The Court has spoken. The legislature can not reinterpret the law by making mere ingredients of an offense punishable separately. Interpretation of the law is the sole domain of the Court.

As I said, Presidential Decree No. 1866 is one of the last vestiges of authoritarian rule in the country, whereby the State pounced on its opponents under rules that offered no sporting chance or hope to the State's opponents. Democracy has however, been restored, in which the State is called upon to lean favorably toward its opponents (i.e., through favorable penal laws and presumption of innocence). It is time to wipe the Decree out of our statute books.

Regalado, J., I join Justice Sarmiento in his dissent.

CRUZ, J., dissenting:

If the petitioners are convicted of rebellion under the Revised Penal code and found to have used an illegally possessed firearm in connection therewith, they will be subject to the penalty of only prision mayor. The illegal possession of firearms is absorbed in the crime of rebellion and may not be separately punished.

On the other hand, if they are convicted of illegal possession of firearms in connection with the crime of rebellion under P.D. 1866, they will be subject to the extreme penalty of reclusion perpetua (reduced from death). Conviction of the illegal possession carries with it a finding that the accused was engaged in rebellion.

I am unable to understand the obvious disparity. In both instances, two circumstances are established, to wit, rebellion and illegal possession of firearms. Yet the first offense is punished only with prision mayor but the second is punished with reclusion perpetua.

Due process requires as a desideratum of fairness the equivalence of the degree of the offense and the degree of the penalty. A serious offense deserves a heavy penalty while a light offense authorizes only a mild penalty. Otherwise stated, a light offense cannot be punished with a heavy penalty, as where, say, littering is penalized with life imprisonment.

It is true, as the ponencia states, that there are cases where an offense not serious per se may be punished with a heavy penalty as a deterrent to its proliferation or because of some special social purpose that may be justified under the some special social purpose that may be justified under the police power. But in such cases, it must be established that the offenses are sui generis to justify deviation from the general rule. Lacking such justification, the disproportionate penalty may be struck down as a cruel or inhuman punishment.

In the cases before us, the law takes an ambivalent position toward the crime of illegal possession of firearms when committed in connection with rebellion. As the basic offense under PD 1866, it is considered a serious offense and penalized with no less than reclusion perpetua. However, as a mere attendant circumstance in committing rebellion under the Revised Penal Code, it is not even separately punished, being deemed absorbed in the main offense.

It seems to me that if it is the intention of the legislature to consider a particular crime a serious offense deserving a heavy penalty, it should be consistent in the application of such penalty. It cannot punish the offense heavily in one case and practically condone it in another case.

One might say that this involves a question of policy or wisdom that is resoluble only by Congress and not by this Court. That may be so, again as a general rule, but not where considerations of due process and equal protection are involved.

Under the laws as they stood when the petitioners were formally indicted, the prosecuting officer was given the choice of the offense he could charge, depending on his discretion, which could in turn depend on his attitude toward the suspect. This circumstance gave a dangerous power to the government to discriminate in the prosecution of persons charged with practically the same offense, treating some of them severely and the others with benign leniency.

It has been held that although a law may be fair and impartial on its face, it must nevertheless be annulled if it gives the administrative officer the discretion to enforce it with "an evil eye and an uneven hand" (Yick Wo vs. Hopkins, 118 U.S. 356; People vs. Vera, 65 Phil. 56). That is exactly what PD 1866 empowered the prosecuting officer to do. In fact, at the hearing of this case before this Court, the government counsel frankly admitted that the petitioners were prosecuted under the decree because it prescribed the heavier penalty although they could also have been prosecuted for rebellion under the Revised Penal Code.

Mention has been made of RA 6968 which now imposes for simple rebellion under Articles 134 and 135 of the Revised Penal Code the same penalty for violation of Sec. 1(3) of Sec. 3(3) of PD 1866. The subsequent passage of the amendatory law in 1990 does not, of course, affect the petitioners in the case at bar because the offense imputed to them were supposedly committed in 1988. Such amendment may have corrected the injustice inherent in the aforestated provisions of PD 1866, which is thus now relieved of its constitutional infirmity. However, the decree may still not be applied to the herein petitioners as it was unconstitutional at the time it was made the basis for their prosecution and the subsequent enactment of RA 6968 did not retroactively validate it.

My vote is to grant the petition. So did I vote in Misolas.

Gutierrez, Jr., J., dissent.

# FootnotesNARVASA, J.:1 The penalty of death was originally imposed by the law, but upon effectivity of the 1987 Constitution was deemed ipso facto reduced to reclusion perpetua in view of the proscription (in Sec. 19, ART. III of said Constitution) of the imposition of the death penalty.2 Or "part firearm, ammunition or machinery, tool or instrument used or intended to be used in the manufacture of any firearm or ammunition."3 181 SCRA 648, verdict arrived at by a vote of 12 to 3; Cortes, J., ponente.4 Annex C, petition.5 99 Phil. 515 (1956).6 186 SCRA 217 (1990).7 G.R. No. 93375, Sept. 13, 1990.8 With effect "after fifteen (15) days following the completion of its publication in the Official Gazette" (Sec. 10).

9 Indicated by emphasis and underscoring in the reproduced section; see footnotes 1 and 2, supra.10 SEE footnote 1, supra.11 Sec. 3.12 Misolas vs. Panga, 181 SCRA 648 (1990).13 In Enrile vs. Salazar, 186 SCRA 217, 233, a similar observation was made: "It may be that in the light of contemporary events, the act of rebellion has lost that quintessentially quixotic quality that justifies the relative leniency with which it is regarded and punished by law, that present-day rebels are less impelled by love of country than by lust for power and have become no better than mere terrorists to whom nothing, not even the sanctity of human life, is allowed to stand in the way of their ambitions. Nothing so underscores this aberration as the rash of seemingly senseless killings, bombings, kidnappings and assorted mayhem so much in the news these days, as often perpetrated against innocent civilians as against the military, but by and large attributable to, or even claimed by so-called rebels to be part of, an ongoing revolution."14 Id.15 SEE 10A, Words and Phrases, Perm. Ed., pp. 307, 311, 315-316.16 Cruz, I.A., Constitutional Law, 1985 ed., p. 304.17 Op. cit., pp. 304-305.18 Or of hand-grenade(s), rifle grenade(s), and other explosives, including but not limited to "philbox bombs (sic)," "molotov cocktail bomb," "firebombs," or other incendiary devices capable of producing destructive effect on contiguous objects or causing injury or death to any person.19 SEE footnotes 1 and 10, supra.20 Secs. 2 and 6 Rule 110, Rules of Court, as amended.21 Guiao vs. Figueroa, 94 Phil. 1018, 1021-1023 (1954); de Castro, Jr. vs. Castañeda, 1 SCRA 1131, 1134-1135 (1961), both cited in Jacinto, G.V., Criminal Procedure, 1979 ed., p. 8.SARMIENTO, J.:1 G.R. No. 83341, January 30, 1990, 181 SCRA 648, 663-668.2 Footnotes omitted.3 99 Phil. 515 (1956), and several cases that affirmed it. See Decision, 2, fn. 3.

SECOND DIVISION

[G.R. No. 106922. April 20, 2001.]

FRANKLIN M. DRILON, AURELIO C. TRAMPE, FERDINAND R. ABESAMIS and EULOGIO MANANQUIL, Petitioners, v. COURT OF APPEALS, HON. ERIBERTO U. ROSARIO, JR., in his capacity as

Presiding Judge of Branch 66, Regional Trial Court of Makati and JUAN PONCE ENRILE, Respondents.

D E C I S I O N

DE LEON, JR., J.:

Before us is a petition for review of the Decision 1 of the Court of Appeals and Resolution 2 dated June 29, 1992 and August 27, 1992 respectively which affirmed the Order 3 dated October 8, 1991 of the Regional Trial Court of Makati City, Branch 66, in Civil Case No. 90-2327 denying petitioners’ motion to dismiss as well as the Order 4 dated January 6, 1992 denying petitioners’ motion for reconsideration.chanrob1es virtua1 1aw 1ibrary

The facts are as follows:chanrob1es virtual 1aw library

After the unsuccessful December 1989 coup d’ etat, the Department of Justice, then headed by petitioner Franklin Drilon, referred to the Special Composite Team of Prosecutors (Team of Prosecutors, for brevity), composed of co-petitioners Aurelio C. Trampe, Ferdinand R. Abesamis and Eulogio Mananquil, a letter-complaint from the National Bureau of Investigation (NBI, for brevity) requesting for the investigation of private respondent Juan Ponce Enrile for his alleged participation in the said coup attempt.

Finding sufficient basis to continue the inquiry, the Team of Prosecutors issued a subpoena to private respondent with an order to submit his counter-affidavit to the letter-complaint. Instead of filing his counter-affidavit, private respondent filed a Petition for Summary Dismissal of the charge against him. He also filed an urgent motion praying that he be given a notice of at least five (5) days before the filing of any information against him to enable him to take the appropriate legal action. At the same time, private respondent sent "cautionary letters" to all judges in Quezon City, Manila, Makati and Pasay City requesting that he be apprised of any information which may be filed against him and that he be given the opportunity to personally witness the same of the case against him. Said notice also appeared in several newspapers of general circulation.

On February 27, 1990, the Team of Prosecutors filed before the Regional Trial Court of Quezon City an Information charging private respondent with the complex crime of rebellion with murder and frustrated murder. The Team of Prosecutors likewise filed before the Regional Trial Court of Makati City an Information charging, among others, private respondent with the offense of obstruction of justice for harboring an alleged felon under Presidential Decree No. 1829. Private respondent was later arrested and detained overnight at the NBI headquarters in Taft Avenue, Manila, and, on the following day, transferred to a detention room at Camp Karingal in Quezon City. The lawyers of private respondent also discovered that the information against the latter was first filed on February 21, 1990, but was subsequently withdrawn for re-filing on February 27, 1990. After a petition for writ of habeas corpus was filed before this Court entitled Enrile v. Salazar 5 , we granted private respondent’s provisional liberty upon posting of a cash bond.chanrob1es virtua1 1aw 1ibrary

On June 5, 1990, in the same case of Enrile v. Salazar, we ordered the modification of the Information before the RTC of Quezon City to simple rebellion only in consonance with our ruling in People v. Hernandez 6 . On September 13, 1990, in Enrile v. Amin, 7 this Court ruled that the filing of a separate information for obstruction of justice also violated the Hernandez doctrine and accordingly ordered the quashal of the said information.

As a consequence of our said Order dated September 13, 1990, private respondent on August 20, 1990 filed a Complaint for damages, docketed as Civil Case No. 90-2327, before the Regional Trial Court of Makati City while the rebellion case was still pending litigation. Private respondent’s complaint impleaded as defendants herein petitioners, then Solicitor General Francisco Chavez and Judge Jaime Salazar. The complaint basically accuses the petitioners of bad faith in filing the information for rebellion complexed with murder and frustrated murder. Thus, the complaint alleges:chanrob1es virtual 1aw library

2.5 The so-called "preliminary investigation" of the charge against plaintiff was railroaded from the very start. Plaintiff’s pleas and motions asking for

strict compliance with the rules of procedure and the norms of fairness and justice were either ignored or summarily denied by the investigating panel. Plaintiff, in utter frustration, filed a petition for summary dismissal of the charge and, anticipating the denial of that as well, also filed an urgent motion to be given at least five (5) days notice to enable him to take the appropriate legal action, before the filing of any information against him.

x x x

3.1 All of the defendants, in and by all their actuation in connection with the information for rebellion "complexed." . . individually, collectively, and with unity of purposes and intentions, illegally and unjustly caused, directed and prolonged plaintiff’s arrest and detention without bail, through the expediency of disregarding the Hernandez doctrine prohibiting the complexing of rebellion with other crimes.chanrob1es virtua1 1aw 1ibrary

In and by all their aforementioned actuation, all of the defendants individually, collectively and with unity of purposes and intentions —

(a) wilfully, manifestly and maliciously obstructed, defeated, violated, impeded and impaired plaintiff’s constitutional and legal right to due process, right to be secure in his person against unreasonable and unwarranted arrest, and right to bail, as enshrined in Sections 1, 2 and 13 of Article 14(1) of the Bill of Rights of the Constitution;

(b) grossly abused their rights and violated their duties as citizens, as members of the legal profession, and as public officers;

(c) willfully acted in contravention of the basic standards of good faith and justice; and

(d) willfully acted in a manner contrary to law, morals and public policy

— all causing great suffering and injury to plaintiff.

3.2 Defendants Chavez, Drilon, Trampe, Abesamis and Mananquil knowingly, manifestly and maliciously abused and exceeded their duties and authority as public officials in charge of the enforcement and prosecution of laws, as well as violated the tenets of good faith and justice in human relations, by directly and actively advocating and indulging in what these defendants had publicly admitted and described to be a "legal experimentation" consisting in the knowing disregard and defiance of the well-established Hernandez doctrine.

Defendant Drilon and his co-defendants Trampe, Abesamis and Mananquil, being the head and members, respectively, of the Department of Justice, by their above-alleged actuation, violated their principal responsibility, as legal counsel and prosecutors, to administer the criminal justice system in accordance with the established and accepted laws and processes.

Defendant Drilon, being the Secretary of Justice having supervision, control and direction over the actuation of co-defendants Trampe, Abesamis and Mananquil violated the tenets of good faith and justice in human relations and abused his official duties and authority, by, among others, expressly instigating, authorizing, ordering and causing the filing of the information

for rebellion "complexed" against the plaintiff.chanrob1es virtua1 1aw 1ibrary

x x x

3.3. Defendants Drilon, Trampe, Abesamis and Mananquil filed or caused the filing of the information for rebellion "complexed" with manifest bad faith, deception and duplicity, all in violation of the tenets of good faith and justice in human relations and in gross abuse of their duties and authority as public prosecutors "to see that justice is done." (Canon 6, Rule 6.01, Lawyers’ Code of Professional Responsibility).

More particularly, these defendants originally filed or caused the filing of the information . . . on 21 February 1990 but, for some mysterious reason, the information was subsequently withdrawn. The initial filing and withdrawal of the information — defendant Chavez admitted these facts during the Supreme Court hearing on 6 March 1990 — were done in total secrecy and without the knowledge of plaintiff who learned of this incident only after his arrest on 27 February 1990.

Likewise, on or about 27 February 1990, these defendants deliberately misled plaintiff and his lawyers and induced them to believe that the charge of rebellion "complexed" was set to be filed against the plaintiff in the Regional Trial Court of Makati. While plaintiff’s attention was diverted to the Regional Trial Court of Makati, these defendants surreptitiously filed or caused the filing of main information for rebellion "complexed" in the Regional Trial Court of Quezon City.

All of the above-named defendants’ actuation were meant to conceal from the public in general and the plaintiff and his counsel in particular, the filing of the information and to prevent plaintiff and his lawyers from witnessing the raffle and from questioning the irregularity of the assignment, the validity of the information, the authority of the court to issue the warrant of arrest, the obvious lack of probable cause, and, finally, to prevent plaintiff from posting bail.

x x x

3.5 The defendants’ unfounded and malicious persecution of plaintiff, calculated to malign the person and reputation of the plaintiff, a duly elected Senator of the country, has caused and continues to cause plaintiff extreme suffering, mental anguish, moral shock and social humiliation. . . .

3.6 The reckless and wanton conduct of the defendants who, as public officials, are supposed to be the guardians of the democratic institutions and civil liberties of citizens, in charging, taking cognizance of, and defending a non-existent crime, and in causing the harassment and persecution of the plaintiff, should be strongly condemned.. . . . . 8

x x x

On October 9, 1990, the petitioners filed a Motion to Dismiss for failure of the Complaint to state a cause of action. They claimed that there was no allegation of any actionable wrong constituting a violation of any of the

legal rights of private Respondent. In addition, they put up the defense of good faith and immunity from suit, to wit:chanrob1es virtua1 1aw 1ibrary

THE COMPLAINT FAILS TO STATE A CAUSE OF ACTION AGAINST DEFENDANTS IN THAT:chanrob1es virtual 1aw library

(A) THE FILING OF THE INFORMATION AGAINST PLAINTIFF FOR THE CRIME OF REBELLION WITH MURDER AND FRUSTRATED MURDER WAS INITIATED IN THE HONEST BELIEF THAT IT COULD BE SUSTAINED UNDER THE FIRST PART OF ARTICLE 48 OF THE REVISED PENAL CODE; and

(B) DEFENDANTS, ACTING IN GOOD FAITH, WITHOUT MALICE AND WITHIN THE SCOPE OF THEIR AUTHORITY, CANNOT BE HELD PERSONALLY LIABLE BY WAY OF DAMAGES FOR ANY ALLEGED INJURY SUFFERED BY PLAINTIFF. 9

On October 8, 1991, respondent trial court issued an Order denying the Motion to Dismiss and requiring petitioners to file their answer and to present evidence in support of their defenses in a full-blown trial inasmuch as the defense of good faith and immunity from suit does not appear to be indubitable. 10 Petitioners’ motion for reconsideration was likewise denied.

Before the Court of Appeals, petitioner Trampe, in his own behalf and in behalf of his co-petitioners, filed a petition for certiorari under Rule 65 of the Revised Rules of Court alleging that the respondent court committed grave abuse of discretion in denying their motion to dismiss. On June 29, 1992, respondent appellate court dismissed the petition and the subsequent motion for reconsideration ruling, thus:chanrob1es virtual 1aw library

We cannot perceive how respondent court could have acted with grave abuse of discretion in denying the motion to dismiss. Before respondent court were two diametrically opposed contentions. Which to believe, respondent court is at a loss. Hence, respondent court had no alternative but to be circumspect in acting upon the motion to dismiss. This respondent court accomplished by requiring petitioners to file their answer where they can raise the failure of the complaint to state a cause of action as an affirmative defense. Indeed the better alternative would be to conduct a full blown trial during which the parties could present their respective evidences to prove their respective cause of action/defense. 11

Hence, this instant petition.

In view of the appointment of petitioner Trampe to the judiciary, petitioner Abesamis filed a manifestation stating that he would act as counsel for his own behalf and in behalf of his co-petitioners. In a Resolution dated March 8, 1993, we granted the Manifestation of petitioner Abesamis to substitute for petitioner Trampe as counsel for himself and his co-petitioners. Respondent did not file a motion for reconsideration.

Meanwhile, on February 12, 1993, or almost three (3) years after the filing of the complaint for damages against petitioners, the Regional Trial Court of Makati dismissed with finality the rebellion charges against private respondent 12 .

In their Memorandum, 13 petitioners raise the following assignment of errors:chanrob1es virtua1 1aw 1ibrary

I

THE RESPONDENT COURT HAS DECIDED A QUESTION OF SUBSTANCE IN A MANNER NOT IN ACCORD WITH LAW OR WITH THE APPLICABLE DECISIONS OF THIS HONORABLE COURT BY HOLDING THAT THE RESPONDENT JUDGE DID NOT ACT WITH GRAVE ABUSE OF DISCRETION IN DENYING THE MOTION TO DISMISS FILED BY THE PETITIONERS AND THAT IN ANY EVENT, THE DENIAL OF A MOTION TO DISMISS IS NOT SUBJECT TO REVIEW BY CERTIORARI.

II

PETITIONER TRAMPE ACTED CORRECTLY IN REPRESENTING AND APPEARING ON BEHALF OF THE OTHER PETITIONERS IN THE INSTANT PETITION. MOREOVER, BY HIS LONG SILENCE AND INACTION, PRIVATE RESPONDENT CANNOT NOW QUESTION THE PERSONALITY OF PETITIONER TRAMPE TO REPRESENT AND APPEAR ON BEHALF OF THE OTHER PETITIONERS HEREIN.

Before ruling on the substance of the petition, let us first deal with the legal personalities of petitioners Trampe and Abesamis to represent themselves and the rest of the petitioners in the case at bar. Private respondent avers that Trampe’s representation is a nullity for the reason that under the Revised Administrative Code, it is not the function of the Office of the Chief State Prosecutor to represent its prosecutors in suits that may be filed against them. Private respondent likewise argues that Trampe and Abesamis are prohibited from acting as private counsels for their co-petitioners inasmuch as it violates Republic Act No. 6713, the "Code of Conduct and Ethical Standards for Public Officials and Employees."cralaw virtua1aw library

It must be noted that petitioner Abesamis filed a Manifestation 14 before this Court asking that he be permitted to replace petitioner Trampe as counsel for the petitioners in view of Trampe’s appointment to the judiciary. No opposition thereto was filed by private Respondent. Thus, we granted the manifestation of petitioner Abesamis to substitute for Trampe as counsel for and in behalf of himself and his co-petitioners. There being no motion for reconsideration filed by private respondent, said resolution has become final. Private respondent did not dispute the legal personality of petitioner Trampe to represent himself and his co-petitioners in his Comment 15 filed before the Court of Appeals. Private respondent belatedly raised this contention in his opposition 16 to the motion for reconsideration of the appellate court’s decision. Accordingly, private respondent is estopped and legally barred from questioning the representation of petitioners Trampe and later, Abesamis to act as counsel for themselves and their co-petitioners in this case.

Going now to the crux of the petition, petitioners contend that the complaint sets forth no cause of action against them. They allege good faith, regularity in the performance of official duties and lack of ultimate facts constituting an actionable wrong. On the other hand, private respondent argues that a cause of action has been sufficiently pleaded and that the defenses of good faith and performance of official duties are best disposed in a judicial hearing. Private respondent likewise maintains that the defense of good faith is irrelevant for the reason that the petitioners are

sued under Article 32 of the New Civil Code where the defense of good faith is irrelevant.chanrob1es virtua1 1aw 1ibrary

We find merit in the petition.

A cause of action is the act or omission by which a party violates a right of another. 17 A cause of action exists if the following elements are present: (1) a right in favor of the plaintiff by whatever means and under whatever law it arises or is created; (2) an obligation on the part of the named defendant to respect or not to violate such right; and (3) an act or omission on the part of such defendant violative of the right of the plaintiff or constituting a breach of the obligation of defendant to the plaintiff for which the latter may maintain an action for recovery of damages. 18

The remedy of a party whenever the complaint does not allege a cause of action is to set up this defense in a motion to dismiss or in the answer. A motion to dismiss on the ground of failure to state a cause of action in the complaint hypothetically admits the truth of the facts alleged therein. However, the hypothetical admission is limited to the "relevant and material facts well pleaded in the complaint and inferences fairly deductible therefrom. The admission does not extend to conclusion or interpretations of law; nor does it cover allegations of fact the falsity of which is subject to judicial notice." 19 In De Dios v. Bristol Laboratories Phils., Inc., 20 this Court was more particular in explaining that:chanrob1es virtual 1aw library

. . . For the purpose, the motion to dismiss must hypothetically admit the truth of the facts alleged in the complaint. The admission, however, is limited only to all material and relevant facts which are well pleaded in the complaint. Thus, it had been ruled that a demurrer admits only such matters of fact as are sufficiently pleaded; that the demurrer does not admit the truth of mere epithets charging fraud; nor allegations of legal conclusions; nor an erroneous statement of law. The admission of the truth of material and relevant facts well pleaded does not extend to render a demurrer an admission of inferences or conclusions drawn therefrom, even if alleged in the pleading; nor mere influences or conclusions from facts not stated; nor conclusions of law; nor matters of evidence; nor surplusage and irrelevant matter. . . .

The main question in the instant petition is whether the allegations in the complaint sufficiently plead a cause of action to hold the petitioners liable for damages. According to the complaint, the petitioners violated private respondent’s constitutional rights for knowingly and maliciously filing a legally non-existent offense and for depriving him of his right to be notified of the filing of the case against him. Inasmuch as private respondent seeks to hold the petitioners accountable for the damage he has suffered as a result of the case filed against him, his suit against the petitioners is one for malicious prosecution. In Drilon v. Court of Appeals, 21 where the facts in said case are basically the same as in the instant case, 22 we also labeled the complaint filed by complainant Homobono Adaza as one for malicious prosecution. It is defined as an action for damages brought by one against whom a criminal prosecution, civil suit, or other legal proceeding has been instituted maliciously and without probable cause, after the termination of such prosecution, suit, or other proceeding in favor of the defendant therein. The gist of the action is the putting of legal process in force, regularly, for the mere purpose of vexation or injury. 23 The statutory bases for a civil action for damages for malicious prosecution are found in the provisions of the New Civil Code on Human Relations and on damages particularly Articles 19, 20, 21, 26, 29, 32, 33, 35, 2217 and 2219 (8). 24 A

complaint for malicious prosecution states a cause of action if it alleges: 1) that the defendant was himself the prosecutor or that at least he instigated the prosecution; 2) that the prosecution finally terminated in the plaintiff’s acquittal; 3) that in bringing the action the prosecutor acted without probable cause; and, 4) that the prosecutor was actuated by malice, i.e., by improper and sinister motives.25cralaw:red

We have no reason to depart from our ruling in the said Drilon case. It is our view and we hold that private respondent’s complaint fails to state a cause of action to hold the petitioners liable for malicious prosecution.chanrob1es virtua1 law library

First, the complaint for damages was filed long before private respondent’s acquittal in the rebellion charge thereby rendering the subject action premature. At the time the complaint was filed, the criminal action against private respondent has not yet ended. That the criminal case eventually resulted in private respondent’s acquittal during the pendency of the civil case for damages is of no moment inasmuch as the latter should be filed only after the accused is acquitted in the criminal case. To allow private respondent to file a complaint, for damages based on malicious prosecution, before his acquittal would stifle the prosecution of criminal cases by the mere expediency of filing damage suits against the prosecutors.

The complaint for damages cannot be based on the dismissal of the separate charge for violation of P.D. No. 1829 inasmuch as the complaint does not contain any allegation to that effect. The complaint actually limits the claim for damages based on the filing of the rebellion charge against the petitioners. Hence, it cannot be sustained based on the dismissal of the case for violation of P.D. No. 1829.

Second, there are no factual allegations in the complaint that can support a finding that malice and bad faith motivated the petitioners in filing the information against private Respondent. Allegations of bad faith, malice and other related words without ultimate facts to support the same are mere conclusions of law that are not deemed admitted in a motion to dismiss for lack of cause of action. From our reading of the complaint, we find no ultimate facts to buttress these conclusions of law. In Drilon, this Court held that;

x x x

Lack of cause of action, as a ground for a motion to dismiss . . . must appear on the face of the complaint itself, meaning that it must be determined from the allegations of the complaint and from none other. The infirmity of the complaint in this regard is only too obvious to have escaped respondent judge’s attention. Paragraph 14 of the complaint which states:chanrob1es virtual 1aw library

x x x

14. The malicious prosecution, nay persecution, of plaintiff for a non-existent crime had severely injured and besmirched plaintiff’s name and reputation and forever stigmatized his stature as a public figure, thereby causing him extreme physical suffering, serious anxiety, mental anguish,

moral shock and social humiliation." chanrob1es virtua1 1aw 1ibrary

is a mere conclusion of law and is not an averment or allegation of ultimate facts. It does not, therefore, aid in any wise the complaint in setting forth a valid cause of action against the petitioners.

x x x

The allegations of bad faith and malice in the complaint are based on the ground that the petitioners knowingly and allegedly maliciously filed the information for an offense that does not exist in the statute books. But as we have ruled in Drilon:chanrob1es virtual 1aw library

In the case under consideration, the decision of the Special Team of Prosecutors to file the information for rebellion with murder and frustrated murder against respondent Adaza, among others, cannot be dismissed as the mere product of whim or caprice on the part of the prosecutors who conducted the preliminary investigation. . . . While it is true that the petitioners were fully aware of the prevailing jurisprudence enunciated in People v. Hernandez, which proscribes the complexing of murder and other commission crimes with rebellion, petitioners were of the honest conviction that the Hernandez Case can be differentiated from the present case. The petitioners thus argued:jgc:chanrobles.com.ph

"Of course we are aware of the ruling in People v. Hernandez, 99 Phil. 515, which held that common crimes like murder, arson, etc., are absorbed by rebellion. However, the Hernandez case is different from the present case before us. In the Hernandez case, the common crimes of murder, arson, etc. were found by the fiscal to have been committed as a necessary means to commit rebellion, or in furtherance thereof. Thus, the fiscal filed an information for rebellion alleging those common crimes as a necessary means of committing the offense charged under the second part of Article 48, RPC.

We, however, find no occasion to apply the Hernandez ruling since as intimated above, the crimes of murder and frustrated murder in this case were absolutely unnecessary to commit rebellion although they were the natural consequences of the unlawful bombing. Hence, the applicable provision is the first part of Article 48 of the RPC."cralaw virtua1aw library

While the Supreme Court in the case of Enrile v. Salazar, addressing the issue of whether or not the Hernandez doctrine is still good law, in a 10-3 vote, did not sustain the position espoused by the herein petitioners on the matter, three justices felt the need to re-study the Hernandez ruling in light of present-day developments, among whom was then Chief Justice Marcelo Fernan. . .

x x x

Apparently, not even the Supreme Court then was of one mind in debunking the theory being advanced by the petitioners in this case, some of whom were also the petitioners in the Enrile case.chanrob1es virtua1 1aw 1ibrary

x x x

A doubtful or difficult question of law may become the basis of good faith and, in this regard, the law always accords to public officials the presumption of good faith and regularity in the performance of official duties. [Tatad v. Garcia, Jr., 243 SCRA 436, 463 (1995)] Any person who seeks to establish otherwise has the burden of proving bad faith or ill-motive. Here, since the petitioners were of the honest conviction that there was probable cause to hold respondent Adaza for trial for the crime of rebellion with murder and frustrated murder, and since Adaza himself, through counsel, did not allege in his complaint lack of probable cause, we find that the petitioners cannot be held liable for malicious prosecution. Needless to say, probable cause was not wanting in the institution of Criminal Case No. Q-90-11855 against Adaza.

As to the requirement that the prosecutor must be impelled by malice in bringing the unfounded action, suffice it to state that the presence of probable cause signifies, as a legal consequence, the absence of malice.(Albenson Enterprises Corp., supra.) At the risk of being repetitious, it is evident in this case that petitioners were not motivated by malicious intent or by a sinister design to unduly harass private respondent, but only by a well-founded belief that respondent Adaza can be held for trial for the crime alleged in the information.

All told, the complaint, dated July 11, 1990, filed by Adaza before Branch 100 of the Regional Trial Court against the petitioners does not allege facts sufficient to constitute a cause of action for malicious prosecution. . . .

x x x

As a result, these general allegations do not help private respondent’s action against petitioners. It is well settled that one cannot be held liable for allegedly maliciously instituting a prosecution where there is probable cause. Otherwise stated, a suit for malicious prosecution will lie only in cases where a legal prosecution has been carried on without probable cause. The reason for this rule is that it would be a very great discouragement to public justice, if prosecutors, who had tolerable ground of suspicion, were liable to be sued at law when their indictment miscarried. 26

On the issue of whether the petitioners should be held accountable for knowingly filing a non-existent offense, this Court has definitely ruled in Enrile v. Salazar that:chanrob1es virtual 1aw library

The plaint of petitioner’s (herein private respondent) counsel that he is charged with a crime that does not exist in the statute books, while technically correct in so far as the Court has ruled that rebellion may not be complexed with other offenses committed on the occasion thereof, must therefore be dismissed as a mere flight of rhetoric. Read in the context of Hernandez, the information does indeed charge the petitioner with a crime defined and punished by the Revised Penal code: simple rebellion. 27

Accordingly, despite its defect, the information filed by petitioners remained valid inasmuch as it nevertheless charges an offense against the herein private Respondent.

With respect to private respondent’s second basis for the charge of malicious prosecution, that is, he was denied by the petitioners the right to be notified before the criminal information against him, his complaint alleges that:chanrob1es virtual 1aw library

x x x

More particularly, these defendants originally filed or caused the filing of the information . . . on 21 February 1990 but, for some mysterious reason, the information was subsequently withdrawn. The initial filing and withdrawal of the information — defendant Chavez admitted these facts during the Supreme Court hearing on 6 March 1990 — were done in total secrecy and without the knowledge of plaintiff who learned of this incident only after his arrest on 27 February 1990.chanrob1es virtua1 1aw 1ibrary

Likewise, on or about 27 February 1990, these defendants deliberately misled plaintiff and his lawyers and induced them to believe that the charge of rebellion "complexed" was set to be filed against the plaintiff in the Regional Trial Court of Makati. While plaintiff’s attention was diverted to the Regional Trial Court of Makati, these defendants surreptitiously filed or caused the filing of the main information for rebellion "complexed" in the Regional Trial court of Quezon City. 28

x x x

However, we hold that the said allegations still fail to maintain a cause of action against the petitioners. To reiterate, a cause of action exists if the following elements are present: (1) a right in favor of the plaintiff by whatever means and under whatever law it arises or is created; (2) an obligation on the part of the named defendant to respect or not to violate such right; and (3) an act or omission on the part of such defendant violative of the right of the plaintiff or constituting a breach of the obligation of defendant to the plaintiff for which the latter may maintain an action for recovery of damages. 29 In the case at bar, we fail to see any right of the private respondent supposedly violated by the petitioners. Nowhere in the statute books is a prospective accused given the right to be notified beforehand of the filing of an information against him. Likewise, the withdrawal of the information and the subsequent re-filing of the same do not constitute an actionable wrong inasmuch as the filing or re-filing of an information lies within the discretion of the prosecutor who must act independently of the affected parties.

Private respondent claims that an appeal or an original action for certiorari is not the proper remedy for a defendant whose motion to dismiss has been denied by the trial court for the reason that the order does not terminate the proceedings, nor finally dispose of the contentions of the parties. In its decision affirming the trial court’s denial of the motion to dismiss, the appellate court sustained this contention. However, as correctly pointed out by the petitioners, the rule admits of an exception. Thus, where the denial of the motion to dismiss by the trial court was tainted with grave abuse of discretion amounting to lack or excess of jurisdiction, as in the case at bar, the aggrieved party may assail the order of denial on certiorari. 30 A wide breadth of discretion is granted in certiorariproceedings in the interest of substantial justice and to prevent a substantial wrong. 31 In the Drilon case, we also held that the denial by

the trial court of the motion to dismiss of herein petitioners based on the same grounds as in the instant petition constituted grave abuse of discretion for the reason that "this (private respondent’s baseless action) would unjustly compel the petitioners to needlessly go through a protracted trial and thereby unduly burden the court with one more futile and inconsequential case." 32 The appellate court therefore erred in not ruling that the trial court committed a grave abuse of discretion when the latter refused to dismiss the case as against herein petitioners, notwithstanding the obvious insufficiency of the complaint against them.

WHEREFORE, the petition is GRANTED. The Decision dated June 29, 1992 of respondent Court of Appeals and its Resolution dated August 27, 1992 which affirmed the Orders of the respondent Regional Trial Court of Makati City, dated October 8, 1991 and January 6, 1992 are hereby NULLIFIED AND SET ASIDE. The respondent Regional Trial Court of Makati is hereby ordered to take no further action in Civil Case No. 90-2327 except to dismiss the same.chanrob1es virtua1 1aw 1ibrary

SO ORDERED.

Bellosillo, Mendoza, Quisumbing and Buena, JJ., concur.

Endnotes:

1. Penned by Associate Justice Eduardo R. Bengzon, and concurred in by Associate Justices Lorna S. Lombos-de la Fuente and Quirino D. Abad Santos, Jr.; Court of Appeals Rollo, pp. 159-167.

2. Court of Appeals Rollo, p. 186.

3. Rollo, pp. 93-95.

4. Rollo, pp. 96-102.

5. 186 SCRA 218 (1990).

6. 99 Phil 515 (1956).

7. 189 SCRA 573 (1990).

8. Rollo, pp. 40-54.

9. Rollo, p. 72.

10. Rollo, p. 94.

11. Rollo, pp. 110-111.

12. Rollo, p. 305.

13. Rollo, pp. 269-270, 287.

14. Rollo, p. 201.

15. Court of Appeals Rollo, pp. 129-156.

16. Court of Appeals Rollo, pp. 179-183.

17. Revised Rules of Civil Procedure, Rule 3, Sec. 2.

18. Vergara v. Court of Appeals, 319 SCRA 323, 327 (1999).

19. San Lorenzo Village Association, Inc. v. Court of Appeals, 288 SCRA 115, 126 (1998).

20. 55 SCRA 349, 354 (1974).

21. 270 SCRA 211 (1997).

22. Homobono Adaza was charged by the Special Team of Prosecutors composed of herein petitioners and supervised by petitioner Drilon, with the crime of rebellion complexed with murder and frustrated murder. Before the criminal case was terminated, Adaza then filed a complaint for damages against the same petitioners for engaging in a deliberate, willful and malicious experimentation by filing against him a charge of rebellion complexed with murder and frustrated murder when petitioners, according to Adaza, were fully aware of the non-existence of such crime in the statue books.

23. Supra, note 21, p. 220, citing Cabasaan v. Anota, 14169-R November 19, 1956.

24. Id., citing Albenson Enterprises Corp. v. Court of Appeals, 217 SCRA 16, 28 (1993); Ponce v. Legaspi, 208 SCRA 377, 388 (1992); 199 SCRA 63, 68-70 (1991).

25. Cometa v. Court of Appeals, 301 SCRA 459, 466 (1999).

26. Supra, note 21, p. 222 citing Albenson Enterprises Corp. v. Court of Appeals, 217 SCRA 16, 28 (1993); Que v. Intermediate Appellate Court, 169 SCRA 137 (1989).

27. Supra, note 5, p. 229.

28. Rollo, pp. 50-51.

29. Supra, note 18.

30. Gutib v. Court of Appeals, 312 SCRA 365, 378 (1999); Dizon v. Court of Appeals, 210 SCRA 107 (1992); Quisumbing v. Gumban, 193 SCRA 520 (1991); National Investment and Development Corporation v. Aquino, 163 SCRA 153 (1988).

31. Gutib v. Court of Appeals, 312 SCRA 365, 378 (1999).

32. Supra, note 21, p. 226.

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