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Republic of the PhilippinesSUPREME COURT

Manila

EN BANC

G.R. No. 7081 September 7, 1912

THE UNITED STATES,plaintiff-appellee,vs.TAN TENG,defendant-appellant.

Chas A. McDonough, for appellant.Office of the Solicitor General Harvey, for appellee.

JOHNSON, J .:

This defendant was charged with the crime of rape. The complaint alleged:

That on or about September 15, 1910, and before the filing of this complaint,

in the city of Manila, Philippine Islands, the said Tan Teng did will fully,unlawfully and criminally, and employing force, lie and have carnalintercourse with a certain Oliva Pacomio, a girl 7 years of age.

After hearing the evidence, the Honorable Charles S. Lobingier, judge, found thedefendant guilty of the offense ofabusos deshonestos, as defined and punished underarticle 439 of the Penal Code, and sentenced him to be imprisoned for a period of 4years 6 months and 11 days ofprision correccional, and to pay the costs.

From that sentence the defendant appealed and made the following assignments oferror in this court:

I. The lower court erred in admitting the testimony of the physicians abouthaving taken a certain substance from the body of the accused while he wasconfined in jail and regarding the chemical analysis made of the substance todemonstrate the physical condition of the accused with reference to avenereal disease.

II. The lower court erred in holding that the complainant was suffering from avenereal disease produced by contact with a sick man.

III. The court erred in holding that the accused was suffering from a venerealdisease.

IV. The court erred in finding the accused guilty from the evidence.

From an examination of the record it appears that the offended party, Oliva Pacomio,a girl seven years of age, was, on the 15th day of September , 1910, staying in thehouse of her sister, located on Ilang-Ilang Street, in the city of Manila; that on said daya number of Chinamen were gambling had been in the habit of visiting the house ofthe sister of the offended party; that Oliva Pacomio, on the day in question, afterhaving taken a bath, returned to her room; that the defendant followed her into herroom and asked her for some face powder, which she gave him; that after using someof the face powder upon his private parts he threw the said Oliva upon the floor,placing his private parts upon hers, and remained in that position for some little time.

Several days later, perhaps a week or two, the sister of Oliva Pacomio discovered thatthe latter was suffering from a venereal disease known as gonorrhea. It was at thetime of this discovery that Oliva related to her sister what happened upon the morningof the 15th of September. The sister at once put on foot an investigation to find theChinaman. A number of Chinamen were collected together. Oliva was called upon toidentify the one who had abused her. The defendant was not present at first. later hearrived and Oliva identified him at once as the one who had attempted to violate her.

Upon this information the defendant was arrested and taken to the police station andstripped of his clothing and examined. The policeman who examined the defendantswore from the venereal disease known as gonorrhea. The policeman took a portionof the substance emitting from the body of the defendant and turned it over to theBureau of Science for the purpose of having a scientific analysis made of the same.

The result of the examination showed that the defendant was suffering fromgonorrhea.

During the trial the defendant objected strongly to the admissibility of the testimony ofOliva, on the ground that because of her tender years her testimony should not begiven credit. The lower court, after carefully examining her with reference to her abilityto understand the nature of an oath, held that she had sufficient intelligence anddiscernment to justify the court in accepting her testimony with full faith and credit.With the conclusion of the lower court, after reading her declaration, we fully concur.The defense in the lower court attempted to show that the venereal disease ofgonorrhea might be communicated in ways other than by contact such as is describedin the present case, and called medical witnesses for the purpose of supporting thecontention. Judge Lobingier, in discussing that question said:

We shall not pursue the refinement of speculation as to whether or not thisdisease might, in exceptional cases, arise from other carnal contact. Themedical experts, as well as the books, agree that in ordinary cases it arisesfrom that cause, and if this was an exceptional one, we think it wasincumbent upon the defense to bring it within the exception.

The offended party testified that the defendant had rested his private parts upon hersfor some moments. The defendant was found to be suffering from gonorrhea. Themedical experts who testified agreed that this disease could have been communicatedfrom him to her by the contact described. Believing as we do the story told by Oliva,we are forced to the conclusion that the disease with which Oliva was suffering wasthe result of the illegal and brutal conduct of the defendant. Proof, however, that Oliva

constructed said obnoxious disease from the defendant is not necessary to show thathe is guilty of the crime. It is only corroborative of the truth of Oliva's declaration.


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The defendant attempted to prove in the lower court that the prosecution was broughtfor the purpose of compelling him to pay to the sister of Oliva a certain sum of money.

The defendant testifed and brought other Chinamen to support his declaration, thatthe sister of Oliva threatened to have him prosecuted if he did not pay her the sum ofP60. It seems impossible to believe that the sister, after having become convincedthat Oliva had been outraged in the manner described above, would consider for amoment a settlement for the paltry sum of P60. Honest women do not consent to theviolation of their bodies nor those of their near relatives, for the filthy consideration ofmere money.

In the court below the defendant contended that the result of the scientific examinationmade by the Bureau of Science of the substance taken from his body, at or about thetime he was arrested, was not admissible in evidence as proof of the fact that he wassuffering from gonorrhea. That to admit such evidence was to compel the defendant totestify against himself. Judge Lobingier, in discussing that question in his sentence,said:

The accused was not compelled to make any admissions or answer anyquestions, and the mere fact that an object found on his person wasexamined: seems no more to infringe the rule invoked, than would the

introduction in evidence of stolen property taken from the person of a thief.

The substance was taken from the body of the defendant without his objection, theexamination was made by competent medical authority and the result showed that thedefendant was suffering from said disease. As was suggested by Judge Lobingier,had the defendant been found with stolen property upon his person, there certainlycould have been no question had the stolen property been taken for the purpose ofusing the same as evidence against him. So also if the clothing which he wore, byreason of blood stains or otherwise, had furnished evidence of the commission of acrime, there certainly could have been no objection to taking such for the purpose ofusing the same as proof. No one would think of even suggesting that stolen propertyand the clothing in the case indicated, taken from the defendant, could not be usedagainst him as evidence, without violating the rule that a person shall not be requiredto give testimony against himself.

The question presented by the defendant below and repeated in his first assignmentof error is not a new question, either to the courts or authors. In the case of Hol t vs.U.S. (218 U.S., 245), Mr. Justice Holmes, speaking for the court upon this question,said:

But the prohibition of compelling a man in a criminal court to be a witnessagainst himself, is aprohibition of the use of physical or moral compulsion, toextort communications from him, not an exclusion of his body as evidence,when it may be material. The objection, in principle, would forbid a jury(court) to look at a person and compare his features with a photograph inproof. Moreover we are not considering how far a court would go in

compelling a man to exhibit himself, for when he is exhibited, whether

voluntarily or by order, even if the order goes too far, the evidence if material,is competent.

The question which we are discussing was also discussed by the supreme court of theState of New Jersey, in the case of State vs. Miller (71 N.J. law Reports, 527). In thatcase the court said, speaking through its chancellor:

It was not erroneous to permit the physician of the jail in which the accused

was confined, to testify to wounds observed by him on the back of the handsof the accused, although he also testified that he had the accused removedto a room in another part of the jail and divested of his clothing. Theobservation made by the witness of the wounds on the hands and testified toby him, was in no sense a compelling of the accused to be a witness againsthimself. If the removal of the clothes had been forcible and the wounds hadbeen thus exposed, it seems that the evidence of their character andappearance would not have been objectionable.

In that case also (State vs. Miller) the defendant was required to place his hand uponthe wall of the house where the crime was committed, for the purpose of ascertainingwhether or not his hand would have produced the bloody print. The court said, indiscussing that question:

It was not erroneous to permit evidence of the coincidence between the handof the accused and the bloody prints of a hand upon the wall of the housewhere the crime was committed, the hand of the accused having been placedthereon at the request of persons who were with him in the house.

It may be added that a section of the wall containing the blood prints was producedbefore the jury and the testimony of such comparison was like that held to be proper inanother case decided by the supreme court of New Jersey in the case of Johnson vs.State (30 Vroom, N.J. Law Reports, 271). The defendant caused the prints of theshoes to be made in the sand before the jury, and the witnesses who had observedshoe prints in the sand at the place of the commission of the crime were permitted tocompare them with what the had observed at that place.

In that case also the clothing of the defendant was used as evidence against him.

To admit the doctrine contended for by the appellant might exclude the testimony of aphysician or a medical expert who had been appointed to make observations of aperson who plead insanity as a defense, where such medical testimony was againstnecessarily use the person of the defendant for the purpose of making suchexamination. (People vs. Agustin, 199 N.Y., 446.) The doctrine contended for by theappellants would also prevent the courts from making an examination of the body ofthe defendant where serious personal injuries were al leged to have been received byhim. The right of the courts in such cases to require an exhibit of the injured parts ofthe body has been established by a long line of decisions.


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The prohibition contained in section 5 of the Philippine Bill that a person shall not becompelled to be a witness against himself, is simply a prohibition against legal processto extract from the defendant's own lips, against his will, an admission of his guilt.

Mr. Wigmore, in his valuable work on evidence, in discussing the question before us,said:

If, in other words, it (the rule) created inviolability not only for his [physical

control] in whatever form exercised, then it would be possible for a guiltyperson to shut himself up in his house, with all the tools and indicia of hiscrime, and defy the authority of the law to employ in evidence anything thatmight be obtained by forcibly overthrowing his possession and compelling thesurrender of the evidential articles a clear reductio ad absurdum. In otherwords, it is not merely compulsion that is the kernel of the privilege, . . .but testimonial compulsion. (4 Wigmore, sec. 2263.)

The main purpose of the provision of the Philippine Bill is to prohibit compulsory oralexamination of prisoners before trial. or upon trial, for the purpose of extortingunwilling confessions or declarations implicating them in the commission of a crime.(People vs. Gardner, 144 N. Y., 119.)

The doctrine contended for by appellant would prohibit courts f rom looking at the factof a defendant even, for the purpose of disclosing his identity. Such an application ofthe prohibition under discussion certainly could not be permitted. Such an inspectionof the bodily features by the court or by witnesses, can not violate the privilegegranted under the Philippine Bill, because it does not call upon the accused as awitness it does not call upon the defendant for his testimonial responsibility. Mr.Wigmore says that evidence obtained in this way from the accused, is not testimonybut his body his body itself.

As was said by Judge Lobingier:

The accused was not compelled to make any admission or answer anyquestions, and the mere fact that an object found upon his body was

examined seems no more to infringe the rule invoked than would theintroduction of stolen property taken from the person of a thief.

The doctrine contended for by the appellant would also prohibit the sanitarydepartment of the Government from examining the body of persons who are supposedto have some contagious disease.

We believe that the evidence clearly shows that the defendant was suffering from thevenereal disease, as above stated, and that through his brutal conduct said diseasewas communicated to Oliva Pacomio. In a case like the present it is always difficult tosecure positive and direct proof. Such crimes as the present are generally proved bycircumstantial evidence. In cases of rape the courts of law require corroborative proof,for the reason that such crimes are generally committed in secret. In the present case,taking into account the number and credibility of the witnesses, their interest and

attitude on the witness stand, their manner of testifying and the general circumstancessurrounding the witnesses, including the fact that both parties were found to besuffering from a common disease, we are of the opinion that the defendant did, on orabout the 15th of September, 1910, have such relations as above described with thesaid Oliva Pacomio, which under the provisions of article 439 of the Penal Codemakes him guilty of the crime of "abusos deshonestos,"and taking into considerationthe fact that the crime which the defendant committed was done in the house whereOliva Pacomio was living, we are of the opinion that the maximum penalty of the lawshould be imposed. The maximum penalty provided for by law is six years ofprision

correccional. Therefore let a judgment be entered modifying the sentence of the lowercourt and sentencing the defendant to be imprisoned for a period of six yearsofprision correccional, and to pay the costs. So ordered.

Arellano, C.J., Torres, Mapa, Carson and Trent, JJ., concur.


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Manila

EN BANC

G.R. No. L-25018 May 26, 1969

ARSENIO PASCUAL, JR.,petitioner-appellee,vs.BOARD OF MEDICAL EXAMINERS, respondent-appellant, SALVADORGATBONTON and ENRIQUETA GATBONTON, intervenors-appellants.

Conrado B. Enriquez for petitioner-appellee.Office of the Solicitor General Arturo A. Alafriz, Assistant Solicitor General Antonio A.Torres and Solicitor Pedro A. Ramirez for respondent-appellant.Bausa, Ampil and Suarez for intervenors-appellants.

FERNANDO, J .:

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

1

wheneverappropriately invoked, has been accorded due recognition by this Court ever since theadoption of the Constitution.2Bermudez v. Castillo,3decided in 1937, was quitecategorical. As we there stated: "This Court is of the opinion that in order that theconstitutional provision under consideration may prove to be a real protection and nota dead letter, it must be given a liberal and broad interpretation favorable to theperson invoking it." As phrased by Justice Laurel in his concurring opinion: "Theprovision, as doubtless it was designed, would be construed with the utmost l iberalityin favor of the right of the individual intended to be served."

4

Even more relevant, considering the precise point at issue, is the recent case of Cabalv. Kapunan,

5where it was held that a respondent in an administrative proceeding

under the Anti-Graft Law6

cannot be required to take the witness stand at the instance

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

Arsenio Pascual, Jr., petitioner-appellee, filed on February 1, 1965 with the Court ofFirst Instance of Manila an action for prohibition with prayer for preliminary injunctionagainst the Board of Medical Examiners, now respondent-appellant. It was allegedtherein that at the initial hearing of an administrative case7for alleged immorality,counsel for complainants announced that he would present as his fi rst witness hereinpetitioner-appellee, who was the respondent in such malpractice charge. Thereupon,petitioner-appellee, through counsel, made of record his objection, relying on theconstitutional right to be exempt from being a witness against himself. Respondent-appellant, the Board of Examiners, took note of such a plea, at the same time statingthat at the next scheduled hearing, on February 12, 1965, petitioner-appellee would be

called upon to testify as such witness, unless in the meantime he could secure arestraining order from a competent authority.

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

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

The answer of respondent Board, while admitting the facts stressed that it could callpetitioner-appellee to the witness stand and interrogate him, the right against self-incrimination being available only when a question calling for an incriminating answer

is asked of a witness. It further elaborated the matter in the affirmative defensesinterposed, stating that petitioner-appellee's remedy is to object once he is in thewitness stand, for respondent "a plain, speedy and adequate remedy in the ordinarycourse of law," precluding the issuance of the relief sought. Respondent Board,therefore, denied that it acted with grave abuse of discretion.

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

A decision was rendered by the lower court on August 2, 1965, finding the claim ofpetitioner-appellee to be well-founded and prohibiting respondent Board "fromcompelling the petitioner to act and testify as a witness for the complainant in saidinvestigation without his consent and against himself." Hence this appeal both byrespondent Board and intervenors, the Gatbontons. As noted at the outset, we find forthe petitioner-appellee.

1. We affirm the lower court decision on appeal as it does manifest fealty to theprinciple announced by us in Cabal v. Kapunan.

8In that proceeding for certiorari and

prohibition to annul an order of Judge Kapunan, it appeared that an administrativecharge for unexplained wealth having been filed against petitioner under the Anti-Graft

Act,9

the complainant requested the investigating committee that petitioner be orderedto take the witness stand, which request was granted. Upon petitioner's refusal to be


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sworn as such witness, a charge for contempt was filed against him in the sala ofrespondent Judge. He filed a motion to quash and upon its denial, he initiated thisproceeding. We found for the petitioner in accordance with the well-settled principlethat "the accused in a criminal case may refuse, not only to answer incriminatoryquestions, but, also, to take the witness stand."

It was noted in the opinion penned by the present Chief Justice that while the matterreferred to an a administrative charge of unexplained wealth, with the Anti-Graft Actauthorizing the forfeiture of whatever property a public officer or employee may

acquire, manifestly out proportion to his salary and his other lawful income, there isclearly the imposition of a penalty. The proceeding for forfeiture while administrative incharacter thus possesses a criminal or penal aspect. The case before us is notdissimilar; petitioner would be similarly disadvantaged. He could suffer not theforfeiture of property but the revocation of his license as a medical practitioner, forsome an even greater deprivation.

To the argument that Cabal v. Kapunan could thus distinguished, it suffices to refer toan American Supreme Court opinion highly persuasive in character. 10 In the languageof Justice Douglas: "We conclude ... that the Self-Incrimination Clause of the FifthAmendment has been absorbed in the Fourteenth, that it extends its protection tolawyers as well as to other individuals, and that it should not be watered down byimposing the dishonor of disbarment and the deprivation of a livelihood as a price for

asserting it." We reiterate that such a principle is equally applicable to a proceedingthat could possibly result in the loss of the privilege to practice the medical profession.

2. The appeal apparently proceeds on the mistaken assumption by respondent Boardand intervenors-appellants that the constitutional guarantee against self-incriminationshould be limited to allowing a witness to object to questions the answers to whichcould lead to a penal liability being subsequently incurred. It is true that one aspect ofsuch a right, to follow the language of another American decision,

11is the protection

against "any disclosures which the witness may reasonably apprehend could be usedin a criminal prosecution or which could lead to other evidence that might be so used."If that were all there is then it becomes diluted. lawphi1.et

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

13 speaking through Justice Sanchez, we reaffirmed the doctrineanew that it is the right of a defendant "to forego testimony, to remain silent, unless hechooses to take the witness stand with undiluted, unfettered exercise of his ownfree genuine will."

Why it should be thus is not difficult to discern. The constitutional guarantee, alongwith other rights granted an accused, stands for a belief that while crime should not gounpunished and that the truth must be revealed, such desirable objectives should notbe accomplished according to means or methods offensive to the high sense ofrespect accorded the human personality. More and more in line with the democraticcreed, the deference accorded an individual even those suspected of the mostheinous crimes is given due weight. To quote from Chief Justice Warren, "the

constitutional foundation underlying the privilege is the respect a government ... mustaccord to the dignity and integrity of its citizens." 14

It is likewise of interest to note that while earlier decisions stressed the principle ofhumanity on which this right is predicated, precluding as it does all resort to force orcompulsion, whether physical or mental, current judicial opinion places equalemphasis on its identification with the right to privacy. Thus according to JusticeDouglas: "The Fifth Amendment in its Self-Incrimination clause enables the citizen tocreate a zone of privacy which government may not force to surrender to his

detriment." 15 So also with the observation of the late Judge Frank who spoke of "aright to a private enclave where he may lead a private life. That right is the hallmark ofour democracy." 16 In the light of the above, it could thus clearly appear that nopossible objection could be legitimately raised against the correctness of the decisionnow on appeal. We hold that in an administrative hearing against a medicalpractitioner for alleged malpractice, respondent Board of Medical Examiners cannot,consistently with the self-incrimination clause, compel the person proceeded againstto take the witness stand without his consent.

WHEREFORE, the decision of the lower court of August 2, 1965 is affi rmed. Withoutpronouncement as to costs.

Reyes, Dizon, Makalintal, Zaldivar, Sanchez and Capistrano, JJ., concur.Teehankee and Barredo, JJ., took no part.Concepcion, C.J., and Castro, J., are on leave.


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Manila

EN BANC

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

SATURNINA GALMAN AND REYNALDO GALMAN, petitioners,vs.THE HONORABLE PRESIDING JUSTICE MANUEL PAMARAN AND ASSOCIATEJUSTICES AUGUSTO AMORES AND BIENVENIDO VERA CRUZ OF THESANDIGANBAYAN, THE HONORABLE BERNARDO FERNANDEZ,TANODBAYAN, GENERAL FABIAN C. VER, MAJOR GENERAL PROSPEROOLIVAS, SGT. PABLO MARTINEZ, SGT. TOMAS FERNANDEZ, SGT. LEONARDOMOJICA SGT. PEPITO TORIO, SGT. PROSPERO BONA AND AlC ANICETOACUPIDO, respondents.

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

PEOPLE OF THE PHILIPPINES, represented by the TANODBAYAN

(OMBUDSMAN), petitioner,vs.THE SANDIGANBAYAN, GENERAL FABIAN C. VER, MAJOR GEN. PROSPEROOLIVAS, SGT. PABLO MARTINEZ, SGT. TOMAS FERNANDEZ, SGT. LEONARDOMOJICA, SGT. PEPITO TORIO, SGT. PROSPERO BONA AND AIC ANICETOACUPIDO, respondents.

CUEVAS, JR.,J .:

On August 21, 1983, a crime unparalleled in repercussions and ramifications was

committed inside the premises of the Manila International Airport (MIA) in Pasay City.Former Senator Benigno S. Aquino, Jr., an opposition stalwart who was returning tothe country after a long-sojourn abroad, was gunned down to death. Theassassination rippled shock-waves throughout the entire country which reverberatedbeyond the territorial confines of this Republic. The after-shocks stunned the nationeven more as this ramified to all aspects of Philippine political, economic and sociallife.

To determine the facts and circumstances surrounding the killing and to allow a f ree,unlimited and exhaustive investigation of all aspects of the tragedy, 1P.D. 1886 waspromulgated creating an ad hoc Fact Finding Board which later became morepopularly known as the Agrava Board. 2Pursuant to the powers vested in it by P.D.1886, the Board conducted public hearings wherein various witnesses appeared and

testified and/or produced documentary and other evidence either in obedience to asubpoena or in response to an invitation issued by the Board Among the witnesses

who appeared, testified and produced evidence before the Board were the hereinprivate respondents General Fabian C. Ver, Major General Prospero Olivas, 3Sgt.Pablo Martinez, Sgt. Tomas Fernandez, Sgt. Leonardo Mojica, Sgt. Pepito Torio, Sgt.Prospero Bona and AIC Aniceto Acupido. 4

UPON termination of the investigation, two (2) reports were submitted to HisExcellency, President Ferdinand E. Marcos. One, by its Chairman, the Hon. JusticeCorazon Juliano Agrava; and another one, jointly authored by the other members ofthe Board namely: Hon. Luciano Salazar, Hon. Amado Dizon, Hon. Dante Santos

and Hon. Ernesto Herrera. 'the reports were thereafter referred and turned over to theTANODBAYAN for appropriate action. After conducting the necessary preliminaryinvestigation, the TANODBAYAN 5filed with the SANDIGANBAYAN two (2)Informations for MURDER-one for the killing of Sen. Benigno S. Aquino which wasdocketed as Criminal Case No. 10010 and another, criminal Case No. 10011, for thekilling of Rolando Galman, who was found dead on the airport tarmac not far from theprostrate body of Sen. Aquino on that same fateful day. In both criminal cases, privaterespondents were charged as accessories, along with several principals, and oneaccomplice.

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

In the course of the joint trial of the two (2) aforementioned cases, the Prosecutionrepresented by the Office of the petition TANODBAYAN, marked and thereafteroffered as part of its evidence, the individual testimonies of private respondents beforethe Agrava Board. 6Private respondents, through their respective counsel objected tothe admission of said exhibits. Private respondent Gen. Ver filed a formal "Motion toExclude Testimonies of Gen. Fabian C. Ver before the Fact Finding Board asEvidence against him in the above-entitled cases" 7contending that its admission willbe in derogation of his constitutional right against self-incrimination and violative of theimmunity granted by P.D. 1886. He prayed that his aforesaid testimony be rejected asevidence for the prosecution. Major Gen. Olivas and the rest of the other privaterespondents likewise filed separate motions to exclude their respective individualtestimonies invoking the same ground. 8Petitioner TANODBAYAN opposed saidmotions contending that the immunity relied upon by the private respondents in

support of their motions to exclude their respective testimonies, was not available tothem because of their failure to invoke their right against self-incrimination before thead hoc Fact Finding Board. 9Respondent SANDIGANBAYAN ordered theTANODBAYAN and the private respondents to submit their respective memorandumon the issue after which said motions will be considered submitted for resolution. 10

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

evidences.11

On June 3, 1985, the prosecution made a written "Formal Offer ofEvidence" which includes, among others, the testimonies of private respondents and


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other evidences produced by them before the Board, all of which have beenpreviously marked in the course of the trial.12

All the private respondents objected to the prosecution's formal offer of evidence onthe same ground relied upon by them in their respective motion for exclusion.

On June 13, 1985, respondent SANDIGANBAYAN issued a Resolution, now assailedin these two (2) petitions, admitting all the evidences offered by the prosecution except

the testimonies and/or other evidence produced by the private respondents in view ofthe immunity granted by P.D. 1886. 13

Petitioners' motion for the reconsideration of the said Resolution having beenDENIED, they now come before Us by way of certiorari 14praying for the amendmentand/or setting aside of the challenged Resolution on the ground that it was issuedwithout jurisdiction and/or with grave abuse of discretion amounting to lack ofjurisdiction. Private prosecutor below, as counsel for the mother of deceased RolandoGalman, also filed a separate petition for certiorari 15on the same ground. Havingarisen from the same factual beginnings and raising practically Identical issues, thetwo (2) petitioners were consolidated and will therefore be jointly dealt with andresolved in this Decision.

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

It is the submission of the prosecution, now represented by the petitionerTANODBAYAN, that said testimonies are admissible against the private respondents,respectively, because of the latter's failure to invoke before the Agrava Board theimmunity granted by P.D. 1886. S ince private respondents did not invoke saidprivilege, the immunity did not attach. Petitioners went further by contending that suchfailure to claim said constitutional privilege amounts to a waiver thereof. 16The privaterespondents, on the other hand, claim that notwithstanding failure to set up theprivilege against self- incrimination before the Agrava Board, said evidences cannotbe used against them as mandated by Section 5 of the said P.D. 1886. They contend

that without the immunity provided for by the second clause of Section 5, P.D. 1886,the legal compulsion imposed by the first clause of the same Section would sufferfrom constitutional infirmity for being violative of the witness' right against self-incrimination. 17Thus, the protagonists are locked in horns on the effect and legalsignificance of failure to set up the privilege against self-incrimination.

The question presented before Us is a novel one. Heretofore, this Court has not beenpreviously called upon to rule on issues involving immunity statutes. The relativenovelty of the question coupled with the extraordinary circumstance that hadprecipitated the same did nothing to ease the burden of laying down the criteria uponwhich this Court will henceforth build future jurisprudence on a heretofore unexploredarea of judicial inquiry. In carrying out this monumental task, however, We shall beguided, as always, by the constitution and existing laws.

The Agrava Board, 18came into existence in response to a popular public clamor thatan impartial and independent body, instead of any ordinary police agency, be chargedwith the task of conducting the investigation. The then early distortions andexaggerations, both in foreign and local media, relative to the probable motive behindthe assassination and the person or persons responsible for or involved in theassassination hastened its creation and heavily contributed to its early formation.19

Although referred to and designated as a mere Fact Finding Board, the Board is intruth and in fact, and to all legal intents and purposes, an entity charged, not only with

the function of determining the facts and circumstances surrounding the killing, butmore importantly, the determination of the person or persons criminally responsibletherefor so that they may be brought before the bar of justice. For indeed, what goodwill it be to the entire nation and the more than 50 million Filipinos to know the factsand circumstances of the killing if the culprit or culprits wil l nevertheless not be dealtwith criminally? This purpose is implicit from Section 12 of the said PresidentialDecree, the pertinent portion of which provides

SECTION 12. The findings of the Board shall be made public.Should the findings warrant the prosecution of any person, theBoard may initiate the filing of proper complaint with the appropriategot government agency. ... (Emphasis supplied)

The investigation therefor is also geared, as any other similar investigation of its sort,to the ascertainment and/or determination of the culprit or culprits, their consequentprosecution and ultimately, their conviction. And as safeguard, the P.D. guarantees"any person called to testify before the Board the right to counsel at any stage of theproceedings." 20Considering the foregoing environmental settings, it cannot be deniedthat in the course of receiving evidence, persons summoned to testify will include notmerely plain witnesses but also those suspected as authors and co-participants in thetragic killing. And when suspects are summoned and called to testify and/or produceevidence, the situation is one where the person testifying or producing evidence isundergoing investigation for the commission of an offense and not merely in order toshed light on the facts and surrounding circumstances of the assassination, but moreimportantly, to determine the character and extent of his participation therein.

Among this class of witnesses were the herein private respondents, suspects in thesaid assassination, all of whom except Generals Ver and Olivas, were detained (undertechnical arrest) at the time they were summoned and gave their testimonies beforethe Agrava Board. This notwithstanding, Presidential Decree No. 1886 denied themthe right to remain silent. They were compelled to testify or be witnesses againstthemselves. Section 5 of P.D. 1886 leave them no choice. They have to take thewitness stand, testify or produce evidence, under pain of contempt if they failed orrefused to do so. 21The jeopardy of being placed behind prison bars even beforeconviction dangled before their very eyes. Similarly, they cannot invoke the right not tobe a witness against themselves, both of which are sacrosantly enshrined andprotected by our fundamental law. 21-aBoth these constitutional rights (to remainsilent and not to be compelled to be a witness against himself) were right away totallyforeclosed by P.D. 1886. And yet when they so testified and produced evidence as

ordered, they were not immune from prosecution by reason of the testimony given bythem.


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

... Any person under investigation for the commission of an offenseshall have the right to remain and to counsel, and to be informed ofsuch right. ... 22(Emphasis supplied)

Since the effectivity of the 1973 Constitution, we now have a mass ofjurisprudence 23on this specific portion of the subject provision. In all these cases, ithas been categorically declared that a person detained for the commission of anoffense undergoing investigation has a right to be informed of his right to remain silent,to counsel, and to an admonition that any and all statements to be given by him maybe used against him. Significantly however, there has been no pronouncement in anyof these cases nor in any other that a person similarly undergoing investigation for thecommission of an offense, if not detained, is not entitled to the constitutionaladmonition mandated by said Section 20, Art. IV of the Bill of Rights.

The fact that the framers of our Constitution did not choose to use the term "custodial"by having it inserted between the words "under" and investigation", as in fact thesentence opens with the phrase "any person " goes to prove that they did not adopt intoto the entire fabric of the Miranda doctrine. 24Neither are we impressed bypetitioners' contention that the use of the word "confession" in the last sentence ofsaid Section 20, Article 4 connotes the Idea that it applies only to police investigation,for although the word "confession" is used, the protection covers not only"confessions" but also "admissions" made in violation of this section. They areinadmissible against the source of the confession or admission and against thirdperson. 25

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

All the private respondents, except Generals Ver and Olivas, are members of themilitary contingent that escorted Sen. Aquino while disembarking from the plane thatbrought him home to Manila on that fateful day. Being at the scene of the crime assuch, they were among the first line of suspects in the subject assassination. GeneralVer on the other hand, being the highest military authority of his co-petitioners laboredunder the same suspicion and so with General Olivas, the first designated investigatorof the tragedy, but whom others suspected, felt and believed to have bungled thecase. The papers, especially the foreign media, and rumors from uglywaggingtongues, all point to them as having, in one way or another participated or havesomething to do, in the alleged conspiracy that brought about the assassination. Couldthere still be any doubt then that their being asked to testify, was to determine whetherthey were really conspirators and if so, the extent of their participation in the saidconspiracy? It is too taxing upon one's credulity to believe that private respondents'

being called to the witness stand was merely to elicit from them facts andcircumstances surrounding the tragedy, which was already so abundantly supplied byother ordinary witnesses who had testified earlier. In fact, the records show thatGenerals Ver and Olivas were among the last witnesses called by the Agrava Board.The subject matter dealt with and the line of questioning as shown by the transcript oftheir testimonies before the Agrava Board, indubitably evinced purposes other thanmerely eliciting and determining the so-called surrounding facts and circumstances ofthe assassination. In the light of the examination reflected by the record, it is not far -fetched to conclude that they were called to the stand to determine their probable

involvement in the crime being investigated. Yet they have not been informed or at thevery least even warned while so testifying, even at that particular stage of theirtestimonies, of their right to remain silent and that any statement given by them maybe used against them. If the investigation was conducted, say by the PC, NBI or byother police agency, all the herein private respondents could not have been compelledto give any statement whether incriminatory or exculpatory. Not only that. They arealso entitled to be admonished of their constitutional right to remain silent, to counsel,and be informed that any and all statements given by them may be used against them.Did they lose their aforesaid constitutional rights simply because the investigation wasby the Agrava Board and not by any police investigator, officer or agency? True, theycontinued testifying. May that be construed as a waiver of their rights to remain silentand not to be compelled to be a witness against themselves? The answer is yes, ifthey have the option to do so. But in the light of the first portion of Section 5 of P.D.1886 and the awesome contempt power of the Board to punish any refusal to testify orproduce evidence, We are not persuaded that when they testified, they voluntarilywaived their constitutional rights not to be compelled to be a witness againstthemselves much less their right to remain silent.

Compulsion as it is understood here does not necessarily connotethe use of violence; it may be the product of unintentionalstatements. Pressure which operates to overbear his will , disablehim from making a free and rational choice, or impair his capacityfor rational judgment would in our opinion be sufficient. So is moralcoercion 'tending to force testimony from the unwilling lips of thedefendant. 26

Similarly, in the case of Louis J. Lefkowitz v. Russel

27

Turley" citing Garrity vs. NewJersey"where certain police officers summoned to an inquiry being conducted by theAttorney General involving the fixing of traffic tickets were asked questions following awarning that if they did not answer they would be removed from office and thatanything they said might be used against them in any criminal proceeding, and thequestions were answered, the answers given cannot over their objection be later usedin their prosecutions for conspiracy. The United States Supreme Court went further inholding that:

the protection of the individuals under the Fourteenth Amendmentagainst coerced statements prohibits use in subsequentproceedings of statements obtained under threat or removal fromoffice, and that it extends to all, whether they are policemen or other

members of the body politic. 385 US at 500, 17 L Ed. 562. TheCourt also held that in the context of threats of removal from office


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the act of responding to interrogation was not voluntary and was notan effective waiver of the privilege against self- incrimination.

To buttress their precarious stand and breathe life into a seemingly hopeless cause,petitioners and amicus curiae (Ex-Senator Ambrosio Padilla) assert that the "right notto be compelled to be a witness against himself" applies only in favor of an accused ina criminal case. Hence, it may not be invoked by any of the herein private respondentsbefore the Agrava Board. The Cabal vs. Kapunan

28doctrine militates very heavily

against this theory. Said case is not a criminal case as its title very clearly indicates. It

is not People vs. Cabalnor a prosecution for a criminal offense. And yet, when Cabalrefused to take the stand, to be sworn and to testify upon being called as a witness forcomplainant Col. Maristela in a forfeiture of illegally acquired assets, this Courtsustained Cabal's plea that for him to be compelled to testify will be in violation of hisright against self- incrimination. We did not therein state that since he is not anaccused and the case is not a criminal case, Cabal cannot refuse to take the witnessstand and testify, and that he can invoke his right against self-incrimination only whena question which tends to elicit an answer that will incriminate him is profounded tohim. Clearly then, it is not the character of the suit involved but the nature of theproceedings that controls. The privilege has consistently been held to extend to allproceedings sanctioned by law and to all cases in which punishment is sought to bevisited upon a witness, whether a party or not. 29If in a mere forfeiture case whereonly property rights were involved, "the right not to be compelled to be a witness

against himself" is secured in favor of the defendant, then with more reason it cannotbe denied to a person facing investigation before a Fact Finding Board where his lifeand liberty, by reason of the statements to be given by him, hang on the balance.Further enlightenment on the subject can be found in the historical background of thisconstitutional provision against self- incrimination. The privilege against self-incrimination is guaranteed in the Fifth Amendment to the Federal Constitution. In thePhilippines, the same principle obtains as a direct result of American influence. At first,the provision in our organic laws were similar to the Constitution of the United Statesand was as follows:

That no person shall be ... compelled in a criminal case to be awitness against himself. 30

As now worded, Section 20 of Article IV reads:

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

The deletion of the phrase "in a criminal case" connotes no other import except tomake said provision also applicable to cases other than criminal. Decidedly then, theright "not to be compelled to testify against himself" applies to the herein privaterespondents notwithstanding that the proceedings before the Agrava Board is not, inits strictest sense, a criminal case

No doubt, the private respondents were not merely denied the afore-discussed sacredconstitutional rights, but also the r ight to "due process" which is fundamental

fairness.

31

Quoting the highly-respected eminent constitutionalist that once gracedthis Court, the former Chief Justice Enrique M. Fernando, due process

... is responsiveness to the supremacy of reason, obedience to thedictates of justice. Negatively put, arbitrariness is ruled out andunfairness avoided. To satisfy the due process requirement, officialaction, to paraphrase Cardozo, must not outrun the bounds ofreason and result in sheer oppression. Due process is thus hostileto any official action marred by lack of reasonableness. Correctly, ithas been Identified as freedom from arbitrariness. It is theembodiment of the sporting Idea of fair play(Frankfurter, Mr. JusticeHolmes and the Supreme Court, 1983, pp. 32-33). It exacts fealty

"to those strivings for justice and judges the act of officialdom ofwhatever branch "in the light of reason drawn from considerations offairness that reflect (democratic) traditions of legal and politicalthought."(Frankfurter, Hannah v. Larche 1960, 363 US 20, at 487). Itis not a narrow or '"echnical conception with fixed content unrelatedto time, place and circumstances."(Cafeteria Workers v. McElroy1961, 367 US 1230) Decisions based on such a clause requiring a'close and perceptive inquiry into fundamental principles of oursociety. (Bartkus vs. Illinois, 1959, 359 US 121). Questions of dueprocess are not to be treated narrowly or pedantically in slavery toform or phrases. (Pearson v. McGraw, 1939, 308 US 313).

Our review of the pleadings and their annexes, together with the oral arguments,

manifestations and admissions of both counsel, failed to reveal adherence to andcompliance with due process. The manner in which the testimonies were taken fromprivate respondents fall short of the constitutional standards both under the DUEPROCESS CLAUSE and under the EXCLUSIONARY RULE in Section 20, Article IV.In the face of such grave constitutional infirmities, the individual testimonies of privaterespondents cannot be admitted against them in ally criminal proceeding. This is trueregardless of absence of claim of constitutional privilege or of the presence of a grantof immunity by law. Nevertheless, We shall rule on the effect of such absence of claimto the availability to private respondents of the immunity provided for in Section 5, P.D.1886 which issue was squarely raised and extensively discussed in the pleadings andoral arguments of the parties.

Immunity statutes may be generally classified into two: one, which grants "use

immunity"; and the other, which grants what is known as "transactional immunity." Thedistinction between the two is as follows: "Use immunity" prohibits use of witness'compelled testimony and its fruits in any manner in connection with the criminalprosecution of the witness. On the other hand, "transactional immunity" grantsimmunity to the witness from prosecution for an offense to which his compelledtestimony relates." 32Examining Presidential Decree 1886, more specifically Section 5thereof, which reads:

SEC. 5. No person shall be excused from attending and testifying orfrom producing books, records, correspondence, documents, orother evidence in obedience to a subpoena issued by the Board onthe ground that his testimony or the evidence required of him maytend to incriminate him or subject him to penalty or forfeiture; but his

testimony or any evidence produced by him shall not be usedagainst him in connection with any transaction, matter or thing


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concerning which he is compelled, after having invoked his privilegeagainst self-incrimination, to testify or produce evidence, except thatsuch individual so testifying shall not be exempt from prosecutionand punishment for perjury committed in so testifying, nor shall hebe exempt from demotion or removal from office. (Emphasissupplied)

it is beyond dispute that said law belongs to the first type of immunity statutes. Itgrants merely immunity from use of any statement given before the Board, but not

immunity from prosecution by reason or on the basis thereof. Merely testifying and/orproducing evidence do not render the witness immuned from prosecutionnotwithstanding his invocation of the right against self- incrimination. He is merelysaved from the use against him of such statement and nothing more. Stated otherwise... he still runs the risk of being prosecuted even if he sets up his right against self-incrimination. The dictates of fair play, which is the hallmark of due process, demandsthat private respondents should have been informed of their rights to remain silent andwarned that any and all statements to be given by them may be used against them.This, they were denied, under the pretense that they are not entitled to it and that theBoard has no obligation to so inform them.

It is for this reason that we cannot subscribe to the view adopted and urged upon Usby the petitioners that the right against self-incrimination must be invoked before the

Board in order to prevent use of any given statement against the testifying witness in asubsequent criminal prosecution. A literal interpretation fashioned upon Us isrepugnant to Article IV, Section 20 of the Constitution, which is the first test ofadmissibility. It reads:

No person shall be compelled to be a witness against himself. Anyperson under investigation for the commission of an offense shallhave the right to remain silent and to counsel, and to be informed ofsuch right. No force, violence, threat, intimidation, or any othermeans which vitiates the free will shall be used against him. Anyconfession obtained in violation of this section shall be inadmissiblein evidence. (Emphasis supplied)

The aforequoted provision renders inadmissible any confession obtained in violationthereof. As herein earlier discussed, this exclusionary rule applies not only toconfessions but also to admissions, 33whether made by a witness in any proceedingor by an accused in a criminal proceeding or any person under investigation for thecommission of an offense. Any interpretation of a statute which will give it a meaningin conflict with the Constitution must be avoided. So much so that if two or moreconstructions or interpretations could possibly be resorted to, then that one which willavoid unconstitutionality must be adopted even though it may be necessary for thispurpose to disregard the more usual and apparent import of the language used. 34Tosave the statute from a declaration of unconstitutionality it must be given a reasonableconstruction that will bring it within the fundamental law. 35Apparent conflict betweentwo clauses should be harmonized. 36

But a literal application of a requirement of a claim of the privilege against self-incrimination as a condition sine qua non to the grant of immunity presupposes thatfrom a layman's point of view, he has the option to refuse to answer questions andtherefore, to make such claim. P.D. 1886, however, forecloses such option of refusalby imposing sanctions upon its exercise, thus:

SEC. 4. The Board may hold any person in direct or indirectcontempt, and impose appropriate penalties therefor. A personguilty of .... including ... refusal to be sworn or to answer as a

witness or to subscribe to an affidavit or deposition when lawfullyrequired to do so may be summarily adjudged in direct contempt bythe Board. ...

Such threat of punishment for making a claim of the privilege leaves the witness nochoice but to answer and thereby forfeit the immunity purportedly granted by Sec. 5.The absurdity of such application is apparent Sec. 5 requires a claim which it,however, forecloses under threat of contempt proceedings against anyone who makessuch claim. But the strong testimonial compulsion imposed by Section 5 of P.D. 1886viewed in the light of the sanctions provided in Section 4,infringes upon the witness'right against self-incrimination. As a rule, such infringement of the constitutional rightrenders inoperative the testimonial compulsion, meaning, the witness cannot becompelled to answer UNLESS a co-extensive protection in the form of IMMUNITY is

offered. 37Hence, under the oppressive compulsion of P.D. 1886, immunity must infact be offered to the witness before he can be required to answer, so as to safeguardhis sacred constitutional right. But in this case, the compulsion has already producedits desired results the private respondents had all testified without offer of immunity.Their constitutional rights are therefore, in jeopardy. The only way to cure the law of itsunconstitutional effects is to construe it in the manner as if IMMUNITY had in factbeen offered. We hold, therefore, that in view of the potent sanctions imposed on therefusal to testify or to answer questions under Sec. 4 of P.D. 1886, the testimoniescompelled thereby are deemed immunized under Section 5 of the same law. Theapplicability of the immunity granted by P.D. 1886 cannot be made to depend on aclaim of the privilege against self-incrimination which the same law practically stripsaway from the witness.

With the stand we take on the issue before Us, and considering the temper of thetimes, we run the risk of being consigned to unpopularity. Conscious as we are of, butundaunted by, the frightening consequences that hover before Us, we have strictlyadhered to the Constitution in upholding the rule of law finding solace in the view veryaptly articulated by that well-known civil libertarian and admired defender of humanrights of this Court, Mr. Justice Claudio Teehankee, in the case of People vs.Manalang

38and we quote:

I am completely conscious of the need for a balancing of theinterests of society with the rights and freedoms of the individuals. Ihave advocated the balancing-of-interests rule in an situationswhich call for an appraisal of the interplay of conflicting interests ofconsequential dimensions. But I reject any proposition that would

blindly uphold the interests of society at the sacrifice of the dignity ofany human being. (Emphasis supplied)


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Lest we be misunderstood, let it be known that we are not by this disposition passingupon the guilt or innocence of the herein private respondents an issue which is beforethe Sandiganbayan. We are merely resolving a question of law and thepronouncement herein made applies to all similarly si tuated, irrespective of one's rankand status in society.

IN VIEW OF THE FOREGOING CONSIDERATIONS and finding the instant petitionswithout merit, same are DISMISSED. No pronouncement as to costs.

SO ORDERED.

Aquino, J., concurs (as certified by Makasiar, C.J.).

Abad Santos, J., is on leave.


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Manila

EN BANC

G.R. No. L-28025 December 16, 1970

DAVID ACEBEDO Y DALMAN, petitioner,vs.HON. MALCOLM G. SARMIENTO, as Judge of the Court of First Instance ofPampanga and THE PROV. FISCAL OF PAMPANGA, respondents.

Filemon Cajator for petitioner.

Judge Malcolm G. Sarmiento in his own behalf.

Provincial Fiscal Regidor Y. Aglipay for and in his own behalf as respondent.

FERNANDO, J .:

This Court not so long ago reaffirmed the doctrine that where a dismissal of a criminalprosecution amounts to an acquittal, even if arising from a motion presented by theaccused, the ban on being twice put in jeopardy may be invoked, especially wheresuch dismissal was predicated on the right to a speedy trial. 1The specific questionthen that this certiorari and prohibition proceeding presents is whether on theundisputed facts, an order of dismissal given in open court by respondent Judge fallswithin the operation of the above principle, precluding its reconsideration later as thedefense of double jeopardy would be available. Here respondent Judge didreconsider, and his actuation is now assailed as a grave abuse of discretion. As will bemade apparent, petitioner has the law on his side. The writs should be granted.

It was shown that on August 3, 1959, respondent Provincial Fiscal filed in the Court ofFirst Instance of Pampanga a criminal information for damage to property throughreckless imprudence against petitioner and a certain Chi Chan Tan. As there were nofurther proceedings in the meantime, petitioner on May 19, 1965 moved to dismiss thecriminal charge. Respondent Judge was not in agreement as shown by his order ofdenial of July 10, 1965. Then, after two more years, came the trial with thecomplainant having testified on direct examination but not having as yet been fullycross-examined. At the continuation of the trial set for June 7, 1967 such witness didnot show up. The provincial fiscal moved for postponement. Counsel for petitioner,however, not only objected but sought the dismissal of the case based on the right ofthe accused to speedy trial. Respondent Judge this time acceded, but would likewise

base his order of dismissal, orally given, on the cross-examination of complainant nothaving started as yet. Later that same day, respondent Judge did reconsider the orderand reinstated the case, his action being due to its being shown that the cross-examination of the complainant had already started.

On the above facts, there can be no dispute as to the applicable law. It is not to be lostsight of that the petition on its face had more than its fair share of plausibility, thuseliciting an affirmative response to the plea for a writ of preliminary injunction, dulyissued by this Court. For it was all too evident that petitioner could rely on his

constitutional right to a speedy trial. For more than six years the threat of his beingsubjected to a penal liability did hang over his head, with the prosecution failing to takeany step to have the matter heard. He did ask that the case be dismissed, butrespondent Judge turned him down. When the trial did at long last take place after twomore years and again postponement was sought as the complainant was not availablefor cross- examination, petitioner, as could have been expected, did again seek to putan end to his travail with a motion for dismissal grounded once more on theundeniable fact that he was not accorded the speedy trial that was his due. This timerespondent Judge was quite receptive and about time too. The order of dismissalgiven in open court had then the effect of an acquittal. For the respondent Judge togive vent to a change of heart with his reconsideration was to subject petitioner to therisk of being put in jeopardy once more. Nor could respondent Judge's allegation thathe could do so as he acted under a misapprehension be impressed with the quality of

persuasiveness. The decisive fact was the absence of that speedy trial guaranteed bythe Constitution. This petition then, to repeat, possesses merit.

1. The right to a speedy trial means one free from vexatious, capricious andoppressive delays, its salutary objective being to assure that an innocent person maybe free from the anxiety and expense of a court litigation or, if otherwise, of having hisguilt determined within the shortest possible time compatible with the presentation andconsideration of whatever legitimate defense he may interpose.2The remedy in theevent of a non-observance of this right is by habeas corpus if the accused wererestrained of his liberty, or by certiorari, prohibition, or mandamus for the finaldismissal of the case.3

In the first Supreme Court decision after the Constitution took effect, an appeal from a

judgment of conviction, it was shown that the criminal case had been dragging on foralmost five years. When the trial did finally take place, it was tainted by irregularities.While ordinarily the remedy would have been to remand the case again for a new trial,the appealed decision of conviction was set aside and the accused acquitted. Such ajudgment was called for according to the opinion penned by Justice Laurel, if thisconstitutional right were to be accorded respect and deference. Thus: "TheGovernment should be the last to set an example of delay and oppression in theadministration of justice and it is the moral and legal obligation of this court to see thatthe criminal proceedings against the accused came to an end and that they beimmediately discharged from the custody of the law."4

Conformably to the above ruling as well as the earlier case of Conde v. Rivera,5the

dismissal of a second information for frustrated homicide was ordered by the Supreme

Court on a showing that the first information had been dismissed after a lapse of oneyear and seven months from the time the original complaint was filed during which


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time on the three occasions the case was set for trial, the private prosecutor twiceasked for postponements and once the trial court itself cancelled the entire calendarfor the month it was supposed to have been heard. As pointed out in such decision:"The right of the accused to have a speedy trial is violated not only when unjustifiedpostponements of the trial are asked for and secured, but also when, without goodcause or justifiable motive, a long period of time is allowed to elapse without havinghis case tried."6 It did not matter that in this case the postponements were soughtand obtained by the private prosecution, although with the consent and approval of thefiscal. Nor was there a waiver and abandonment of the right to a speedy trial when

there was a failure on the part of the accused to urge that the case be heard. "Such awaiver or abandonment may be presumed only when the postponement of the trialhas been sought and obtained [by him]".7A finding that there was an infringement ofthis right was predicated on an accused having been criminally prosecuted for analleged abuse of chastity in a justice of the peace court as a result of which he wasarrested three times, each time having to post a bond for his provisional liberty.Mandamus to compel the trial judge to dismiss the case was under the ci rcumstancesthe appropriate remedy.8

In Mercado v. Santos,9 the second occasion Justice Laurel had to write the opinionfor the Supreme Court in a case of this nature, the transgression of this constitutionalmandate came about with petitioner having in a space of twenty months been arrestedfour times on the charge of falsifying his deceased wife's will, the first two complaints

having been subsequently withdrawn only to be refiled a third time and thereafterdismissed after due investigation by the justice of the peace. Undeterred the provincialfiscal filed a motion for reinvestigation favorably acted on by the Court of First Instancewhich finally ordered that the case be heard on the merits. At this stage the accusedmoved to dismiss but was rebuffed. He sought the aid of the Court of Appeals in apetition for certiorari but did not prevail. It was then that the matter was elevated to theSupreme Court which reversed the Court of Appeals, the accused "being entitled tohave the criminal proceedings against him quashed." It was stressed in JusticeLaurel's opinion: "An accused person is entitled to a trial at the earliest opportunity. ...He cannot be oppressed by delaying the commencement of trial for an unreasonablelength of time. If the proceedings pending trial are deferred, the trial itself isnecessarily delayed. It is not to be supposed, of course, that the Constitution intendsto remove from the prosecution every reasonable opportunity to prepare for t rial.Impossibilities cannot be expected or extraordinary efforts required on the part of the

prosecutor or the court." 10The opinion likewise considered as not decisive the factthat the provincial fiscal did not intervene until an information was filed charging theaccused with the crime of falsification the third time. Thus: "The Constitution does notsay that the right to a speedy trial may be availed of only where the prosecution forcrime is commenced and undertaken by the fiscal. It does not exclude from i tsoperation cases commenced by private individuals. Where once a person isprosecuted criminally, he is entitled to a speedy trial, irrespective of the nature of theoffense or the manner in which it is authorized to be commenced." 11

2. More specifically, this Court has consistently adhered to the view that a dismissalbased on the denial of the right to a speedy trial amounts to an acquittal. Necessarily,any further attempt at continuing the prosecution or starting a new one would fallwithin the prohibition against an accused being twice put in jeopardy. The extensive

opinion of Justice Castro in People v. Obsania noted earlier made reference to fourPhilippine decisions, People v. Diaz,

12People v. Abano,

13People v.

Robles,14

and People v. Cloribel.15

In all of the above cases, this Court left no doubtthat a dismissal of the case, though at the instance of the defendant grounded on thedisregard of his right to a speedy trial was tantamount to an acquittal. In People v.Diaz, it was shown that the case was set for hearing twice and the prosecution withoutasking for postponement or giving any explanation failed to appear. In People v.Abano, the facts disclosed that there were three postponements. Thereafter, at thetime the resumption of the trial was scheduled, the complaining witness as in this casewas absent; this Court held that respondent Judge was justified in dismissing the caseupon motion of the defense and that the annulment or setting aside of the order of

dismissal would place the accused twice in jeopardy of punishment for the sameoffense. People v. Robles likewise presented a picture of witnesses for theprosecution not being available, with the lower court after having transferred thehearings on several occasions denying the last plea for postponement and dismissingthe case. Such order of dismissal, according to this Court "is not provisional incharacter but one which is tantamount to acquittal that would bar further prosecutionof the accused for the same offense." 16This is a summary of the Cloribel case as setforth in the above opinion of Justice Castro: "In Cloribel, the case dragged for threeyears and eleven months, that is, from September 27, 1958 when the information wasfiled to August 15, 1962 when it was called for trial, after numerous postponements,mostly at the instance of the prosecution. On the latter date, the prosecution failed toappear for trial, and upon motion of defendants, the case was dismissed. This Courtheld 'that the dismissal here complained of was not truly a 'dismissal' but an acquittal.For it was entered upon the defendants' insistense on their constitutional right tospeedy trial and by reason of the prosecution's failure to appear on the date oftrial.'(Emphasis supplied.)"

17There is no escaping the conclusion then that petitioner

here has clearly made out a case of an acquittal arising from the order of dismissalgiven in open court.

3. Respondent Judge would rely on Cabarroguis v. San Diego18

to lend support to thereconsideration of his order of dismissal. The case is not applicable; the factual settingis different. The order of dismissal set aside in that case arose from the belief of thecourt that the crime of estafa was not committed as the liability was civil in character.At no stage then was there a plea that the accused was denied his right to a speedytrial. The reconsideration was granted as there was documentary evidence to showthat the intention to defraud on the part of the accused could be shown. Under suchcircumstances, this Court saw no grave abuse of discretion in the actuation of the trial

judge. To repeat, the proceeding now before this Court is anything but that. Petitionernot once but twice did seek to have the prosecution for damage to property againsthim terminated as the matter was pending for at least six years, the fi rst time hesought to put an end to it. When at last, the trial stage was reached, the complainingwitness testified on direct examination but made no appearance when his cross-examination was to be continued. A clear case of a denial of the right to a speedy trialwas thus made out. There was an order of dismissal that amounted to an acquittal. Noreconsideration could therefore be had without offending the provision on doublejeopardy.

WHEREFORE, the writ of certiorari is granted annulling the order of respondent Judgeof June 7, 1967 reconsidering his order of dismissal and reinstating the criminal caseagainst petitioner. The writ of prohibition is likewise granted, respondent Judge and

respondent Provincial Fiscal of Pampanga being restrained and precluded from


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continuing with this case against petitioner, now adjudged definitely dismissed. Thewrit of preliminary injunction issued is made permanent.

Reyes, J.B.L., Makalintal, Zaldivar, Castro, Teehankee, Barredo and Villamor, JJ.,concur.

Concepcion C.J., Dizon and Makasiar, JJ., are on leave.


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Manila

G.R. No. 173319 December 4, 2009

FEDERICO MIGUEL OLBES,Petitioner,vs.HON. DANILO A. BUEMIO, in his capacity as pairing presiding judge of Branch22 of the Metropolitan Trial Court of Manila, PEOPLE OF THE PHILIPPINES,SAMIR MUHSEN and ROWENA MUHSEN,Respondents.

D E C I S I O N

CARPIO MORALES, J.:

On complaint of Samir and Rowena Muhsen, Federico Miguel Olbes (petitioner) wasindicted for Grave Coercion before the Metropolitan Trial Court (MeTC) of Manila byInformation

1dated June 28, 2002 which was raffled to Branch 22 thereof. On October

28, 2002, petitioner posted bail and was released.

Denying petitioners motion to defer or suspend his arraignment in light of his pendingpetition for review before the Department of Justice from the City Fiscals Resolutionfinding probable cause to hale him into court, Judge Hipolito dela Vega proceededwith petitioners arraignment onFebruary 12, 2003 in which he pleaded not guilty tothe charge.2Pre-trial was thereupon set to May 28, 2003 which was, however,declared a non-working day due to the occurrence of typhoon "Chedeng." The pre-trialwas thus reset to October 23, 2003.

3

At the scheduled pre-trial on October 23, 2003, petitioner failed to appear, promptingthe trial court to issue a warrant for his arrest, which warrant was, however, laterrecalled on discovery that neither petitioner nor his counsel was notified of saidschedule. Pre-trial was again reset to January 21, 2004.

4

Before the scheduled pre-trial on January 21, 2004 or on November 3, 2003, petitionerfiled a Motion to Dismiss

5the Information on the ground of violation of his right to a

speedy trial under Republic Act No. 84936or the Speedy Trial Act of 1998 and

Supreme Court Circular (SCC) No. 38-98.7He argued that "considering that [he] wasnot - without any fault on his part - brought to trial within 80 days from the date he wasarraigned, this case should be dismissed pursuant to Rule 119, Section 9

8in relation

to Rule 119, Section 6 of the Rules."9

The trial court, through pairing Judge Danilo A. Buemio (respondent judge), deniedpetitioners Motion to Dismiss by Order

10of December 5, 2003, holding that petitioner

played a big part in the delay of the case, and that technical rules of procedure weremeant to secure, not override, substantial justice.

Petitioners Motion for Reconsideration of the December 5, 2003 Order was denied byOrder

11of March 3, 2004 after respondent judge noted that during petitioners

arraignment on February 12, 2003, he interposed no objection to the setting of thepre-trial to May 28, 2003. Besides, respondent judge held, strict compliance with theSpeedy Trial Act was improbable, given the volume of cases being filed with theMeTC. Additionally respondent judge held that the term "speedy trial" as applied incriminal cases is a relative term such that the trial and disposition of cases dependedon several factors including the availability of counsel, witnesses and prosecutor, andweather conditions.

Petitioner challenged respondent judges orders via certiorari and prohibition beforethe Regional Trial Court (RTC) of Manila, alleging that not only was he (petitioner) notbrought to trial within 80 days from the date of his arraignment as required underSection 6, Rule 119, but the prosecution had failed to establish the existence of any ofthe "time exclusions" provided under Section 3

12of the same Rule to excuse its failure

to bring him to trial within the 80-day period.

By Decision13of January 31, 2006, the RTC denied the petition, holding that Section 9of Rule 119 of the Rules of Court does not call for the automatic dismissal of a casejust because trial has not commenced within 80 days from arraignment; that theproceedings before the MeTC were not attended by vexatious, capricious andoppressive delays; and that the concept of a speedy trial is not a mere question of

numbers that could be computed in terms of years, months or days b ut is understoodaccording to the peculiar circumstances of each case, citing SPO1 Sumbang, Jr. v.Gen. Court Martial PRO-Region 6.14

The RTC further held that in "determining whether petitioners right to speedy trial wasviolated,"

15the circumstances that respondent judge was the pairing judge of Br. 22 of

the MeTC who "may be assumed also [to] preside over his own regular court anddevotes limited time to his pairing court" and that first level courts in Manila have anexcessive load of cases should also be taken into consideration.

His motion for reconsideration having been denied by the RTC,16petitioner lodged thepresent petition for review which, in the main, faults the RTC

I

. . . IN AFFIRMING THE MTC-MANILA JUDGES RULING THAT COMPLIANCEWITH RULE 119, SECTION 9 OF THE RULES IS NOT MANDATORY. THE RIGHTOF AN ACCUSED TO A SPEEDY TRIAL IS A SUBSTANTIVE RIGHT THATCANNOT BE DISREGARDED.

II

. . . IN AFFIRMING THE MTC-MANILA JUDGES RULING THAT THEENUMERATION OF ALLOWABLE TIME EXCLUSIONS UNDER RULE 119,SECTION 3 IS NOT EXCLUSIVE, AND THAT THE FAILURE TO BRING
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16/52

PETITIONER TO TRIAL WITHIN THE PERIOD PROVIDED UNDER RULE 119,SECTION 6 WAS JUSTIFIED.

x x x x,17

errors which raise a question of law.

Petitioner argues that his right to speedy trial is a substantive right and that, contrary

to the RTC ruling, Section 9 of Rule 119 is mandatory in character, having been takenfrom SCC No. 38-98, strict compliance with which is urged to remove any attempt onthe part of judges to exercise discretion with respect to the time frame for conductingthe trial of an accused; that the last paragraph of said Section 9 clearly indicates that itis the right of an accused to move for dismissal of the Information should theprosecution fail to prove the existence of the time exclusions under Section 3 of Rule119; and that the enumeration of the allowable time exclusions under Section 3 isexclusive, hence, the RTC erred in considering the excessive caseload of respondentjudge, as a mere pairing judge, to be an allowable time exclusion under the Rules.

In its Comment,18the People, through the Office of the Solicitor General (OSG),counters that "speed alone is not the chief objective of a trial" such that mere assertionof a violation of the right to speedy trial does not necessarily result in the automatic

dismissal of an Information; that the time exclusions referred to in paragraphs (a) to (f)of Section 3, Rule 119 are not exclusive and admit of other exceptions; that petitionerhimself contributed to the delay in the proceedings when he filed a frivolous motion tosuspend proceedings and failed to appear during the scheduled pre-trial; and that theRTC statement about respondent judge being a mere pairing judge was not anapology for the courts congested dockets but a mere statement of fact as to theimpossibility of setting the case for pre-trial at an earlier date.

Furthermore, the OSG asserts that respondent judges denial of petitioners motion todismiss was in order as he correctly applied the principles of relativity and flexibility indetermining whether petitioners right to speedy trial had been violated.

19

Respondents-private complainants, on the other hand, maintain in their

Comment20

that several Supreme Court decisions21

dealing with the issue of theconstitutional guaranty of a speedy trial, the Speedy Trial Act of 1998, and SCC No.38-98 have held that the right is deemed violated only when the proceedings areattended by vexatious, capricious and oppressive delays, which did not obtain in thepresent case, petitioner himself having been instrumental in the delay in theprosecution of the case.

The petition does not impress.

Petitioner draws attention to the time gap of 105 days from his arraignment onFebruary 12, 2003 up to the first pre-trial setting on May 28, 2003, and another gap of148 days from the latter date up to the second pre-trial setting on October 23, 2003 orfor a total of 253 days - a clear contravention, according to petitioner, of the 80-day

time limit from arraignment to trial.

It bears noting, however, that on his arraignment on February 12, 2003, petitionerinterposed no objection to the setting of the pre-trial to May 28, 2003 which was, asearlier stated, later declared a non-working day. Inarguably, the cancellation of thescheduled pre-trial on that date was beyond the control of the trial court.1avvphi1

Petitioner argues, however, that the lapse of 253 days (from arraignment to October23, 2003) was not justified by any of the excusable delays as embodied in the timeexclusions

22specified under Section 3 of Rule 119. The argument is unavailing.

In Solar Team Entertainment, Inc. v. Judge How,23the Court stressed that theexceptions consisting of the time exclusions provided in the Speedy Trial Act of 1998reflect the fundamentally recognized principle that "speedy trial" is a relative term andnecessarily involves a degree of flexibility. This was reiterated in People v.Hernandez,24viz:

The right of the accused to a speedy trial is guaranteed under Sections 14(2) and 16,Article III of the 1987 Constitutio

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