People VS Estrada

BASIC FACTS

On 4 April 2001, an Information for plunder was filed against former President Joseph Ejercito Estrada (Pres. Estrada), together with Jose (Jinggoy) Estrada, Charlie (Atong) Ang, Edward Serapio, Yolanda T. Ricaforte, Alma Alfaro, Eleuterio Tan, a.k.a. Eleuterio Ramos Tan or Mr. Uy, Jane Doe a.k.a. Delia Rajas, and John & Jane Does, for the crime of Plunder defined and penalized under R.A. No. 7080, as amended by Sec. 12 of R.A. No. 7659. The Information was subsequently amended, as follows:

AMENDED INFORMATION

The undersigned Ombudsman Prosecutor and OIC-Director, EPIB, Office of the Ombudsman, hereby accuses former PRESIDENT OF THE PHILIPPINES, Joseph Ejercito Estrada a.k.a. ASIONG SALONGA A ND a.k.a. JOSE VELARDE, together �with Jose Jinggoy Estrada, Charlie Atong Ang, Edward Serapio, Yolanda T. Ricaforte, Alma Alfaro, JOHN DOE a.k.a. Eleuterio Tan or Eleuterio Ramos Tan or Mr. Uy, Jane Doe a.k.a. Delia Rajas, and John DOES & Jane Does, of the crime of Plunder, defined and penalized under R.A. No. 7080, as amended by Sec. 12 of R.A. No. 7659, committed as follows:

That during the period from June, 1998 to January, 2001, in the Philippines, and within the jurisdiction of this Honorable Court, accused Joseph Ejercito Estrada, THEN A PUBLIC OFFICER, BEING THEN THE PRESIDENT OF THE REPUBLIC OF THE PHILIPPINES, by himself AND/OR in CONNIVANCE/CONSPIRACY with his co-accused, WHO ARE MEMBERS OF HIS FAMILY, RELATIVES BY AFFINITY OR CONSANGUINITY, BUSINESS ASSOCIATES, SUBORDINATES AND/OR OTHER PERSONS, BY TAKING UNDUE ADVANTAGE OF HIS OFFICIAL POSITION, AUTHORITY, RELATIONSHIP, CONNECTION, OR INFLUENCE, did then and there willfully, unlawfully and criminally amass, accumulate and acquire BY HIMSELF, DIRECTLY OR INDIRECTLY, ill-gotten wealth in the aggregate amount OR TOTAL VALUE of FOUR BILLION NINETY SEVEN MILLION EIGHT HUNDRED FOUR THOUSAND ONE HUNDRED SEVENTY THREE PESOS AND SEVENTEEN CENTAVOS [P4,097,804,173.17], more or less, THEREBY UNJUSTLY ENRICHING HIMSELF OR THEMSELVES AT THE EXPENSE AND TO THE DAMAGE OF THE FILIPINO PEOPLE AND THE REPUBLIC OF THE PHILIPPINES, through ANY OR A combination OR A series of overt OR criminal acts, OR SIMILAR SCHEMES OR MEANS, described as follows:

(a) by receiving OR collecting, directly or indirectly, on SEVERAL INSTANCES, MONEY IN THE AGGREGATE AMOUNT OF FIVE HUNDRED FORTY-FIVE MILLION PESOS (P545,000,000.00), MORE OR LESS, FROM ILLEGAL GAMBLING IN THE FORM OF GIFT, SHARE, PERCENTAGE, KICKBACK OR ANY FORM OF PECUNIARY BENEFIT, BY HIMSELF AND/OR in connivance with co-accused CHARLIE ATONG ANG, JOSE Jinggoy Estrada, Yolanda T. Ricaforte, Edward Serapio, AND JOHN DOES AND JANE DOES, in consideration OF TOLERATION OR PROTECTION OF ILLEGAL GAMBLING;

(b) by DIVERTING, RECEIVING, misappropriating, converting OR misusing DIRECTLY OR INDIRECTLY, for HIS OR THEIR PERSONAL gain and benefit, public funds in the amount of ONE HUNDRED THIRTY MILLION PESOS [P130,000,000.00], more or less, representing a portion of the TWO HUNDRED MILLION PESOS [P200,000,000.00] tobacco excise tax share allocated for the Province of Ilocos Sur under R.A. No. 7171, BY HIMSELF AND/OR in CONNIVANCE with co-accused Charlie Atong Ang, Alma Alfaro, JOHN DOE a.k.a. Eleuterio Tan or Eleuterio Ramos Tan or Mr. Uy, and Jane Doe a.k.a. Delia Rajas, AND OTHER JOHN DOES AND JANE DOES;

(c) by directing, ordering and compelling, FOR HIS PERSONAL GAIN AND BENEFIT, the Government Service Insurance System (GSIS) TO PURCHASE, 351,878,000 SHARES OF STOCKS, MORE OR LESS, and the Social Security System (SSS), 329,855,000 SHARES OF STOCK, MORE OR LESS, OF THE BELLE CORPORATION IN THE AMOUNT OF MORE OR LESS ONE BILLION ONE HUNDRED TWO MILLION NINE HUNDRED SIXTY FIVE THOUSAND SIX HUNDRED SEVEN PESOS AND FIFTY CENTAVOS [P1,102,965,607.50] AND MORE OR LESS SEVEN HUNDRED FORTY FOUR MILLION SIX HUNDRED TWELVE THOUSAND AND FOUR HUNDRED FIFTY PESOS [P744,612,450.00], RESPECTIVELY, OR A TOTAL OF MORE OR LESS ONE BILLION EIGHT HUNDRED FORTY SEVEN MILLION FIVE HUNDRED SEVENTY EIGHT THOUSAND FIFTY SEVEN PESOS AND FIFTY CENTAVOS [P1,847,578,057.50]; AND BY COLLECTING OR RECEIVING, DIRECTLY OR INDIRECTLY, BY HIMSELF AND/OR IN CONNIVANCE WITH JOHN DOES AND JANE DOES, COMMISSIONS OR PERCENTAGES BY REASON OF SAID PURCHASES OF SHARES OF STOCK IN THE AMOUNT OF ONE HUNDRED EIGHTY NINE MILLION SEVEN HUNDRED THOUSAND PESOS [P189,700,000.00], MORE OR LESS, FROM THE BELLE CORPORATION WHICH BECAME PART OF THE DEPOSIT IN THE EQUITABLE-PCI BANK UNDER THE ACCOUNT NAME JOSE VELARDE �

(d) by unjustly enriching himself FROM COMMISSIONS, GIFTS, SHARES, PERCENTAGES, KICKBACKS, OR ANY FORM OF PECUNIARY BENEFITS, IN CONNIVANCE WITH JOHN DOES AND JANE DOES, in the amount of MORE OR LESS THREE BILLION TWO HNDRED THIRTY THREE MILLION ONE HUNDRED FOUR THOUSAND AND ONE HUNDRED SEVENTY THREE PESOS AND SEVENTEEN CENTAVOS [P3,233,104,173.17] AND DEPOSITING THE SAME UNDER HIS ACCOUNT NAME JOSE VELARDE AT THE �EQUITABLE-PCI BANK.

CONTRARY TO LAW.

After the prosecution finished presenting its evidence, FPres. Estrada filed, with leave of court, a demurrer to evidence. The demurrer, however, was denied by the court. Accused Serapio opted not to present his own evidence, and instead adopted the evidence presented by FPres. Estrada and Jinggoy Estrada.

Incidentally, in 2007, the Sandiganbayan approved the Plea Bargaining Agreement between the prosecution and accused Atong Ang, the latter pleading guilty to a lesser offense of Corruption of Public Officials under Article 212 in relation to Article 211

of the Revised Penal Code. Accused Atong Ang was sentenced to two years and four months of prision correccional minimum, as minimum, to six years of prision correccional maximum, as maximum, and to pay the amount of P25,000,000.00 to the Government as his civil liability. Accused Atong Ang is now out of jail under probation.

RULING OF THE COURT

The elements of the crime of plunder, pursuant to RA 7080 and as laid down by the Supreme Court in the earlier case of Joseph Ejercito Estrada vs. Sandiganbayan (G.R. No. 148560, 19 November 2001), are as follows:

(1) That the offender is a public officer who acts by himself or in connivance with members of his family, relatives by affinity or consanguinity, business associates, subordinates or other persons;

(2) That he amassed, accumulated or acquired ill-gotten wealth through a combination or series of the following overt or criminal acts described in Section 1 (d) of R.A. No. 7080 as amended; and

(3) That the aggregate amount or total value of the ill-gotten wealth amassed, accumulated or acquired is at least P50,000,000.00.

The terms Combination and Series were likewise defined in the above-cited case. Combination refers to at least two acts falling under different categories of enumeration provided in Sec. 1, par. (d), e.g., raids on the public treasury in Sec.1, par. (d), subpar. (1), and fraudulent conveyance of assets belongings to the National Government under Sec.1, par. (d), subpar. (3). On the other hand, to constitute a series, there must be two or more overt or criminal acts falling under the same �category of enumeration found in Sec. 1, par. (d), say, misappropriation, malversation and raids on the public treasury, all of which fall under Sec. 1, par. (d), subpar. (1).

Section 1 (d) reads:

Ill-gotten wealth means any asset, property, business enterprise or material possession of any person within the purview of Section Two (2) hereof, acquired by him directly or in directly through dummies, nominees, agents, subordinates and/or business associates by any combination or series of the following means or similar schemes:1) Through misappropriation, conversation, misuse, or malversation of public funds or raids on the public treasury;2) By receiving, directly or indirectly, any commission, gift, share, percentage, kickbacks or any other form of pecuniary benefit from any person and/ or entity in connection with any government contract or project or by reason of the office or position of the public officer concerned;3) By the illegal or fraudulent conveyance or disposition of asset belonging to the National Government or any of its subdivision, agencies or instrumentalities or government-owned or –controlled corporations and their subsidiaries;4) By obtaining, receiving or accepting directly or indirectly any shares of stock, equity or any other form of interest or participation including promises of future employment in any business enterprise or undertaking;

5) By establishing agricultural, industrial or commercial monopolies or other combinations and/or implementation of decrees and orders intended to benefit particular persons or special interests; or6) By taking undue advantage of official position, authority, relationship, connection or influence to unjustly enrich himself or themselves at the expense and to the damage and prejudice of the Filipino people and the Republic of the Philippines.

The prosecution has proven beyond reasonable doubt the elements of plunder as against former President Estrada, thus:

(a) The principal accused Joseph Ejercito Estrada, at the time of the commission of the acts charged in the Amended Information was the President of the Republic of the Philippines;

(b) He acted in connivance with then Governor Luis Chavit Singson, who was granted� immunity from suit by the Office of the Ombudsman, and with the participation of other persons named by prosecution witnesses in the course of the trial of this case, in amassing, accumulating and acquiring ill-gotten wealth as follows:

(i) by a series of acts of receiving bi-monthly collections from jueteng, a form of illegal gambling, during the period beginning November 1998 to August 2000 in the aggregate amount of P545,291,000.00. Out of this amount, P200,000,000.00 was deposited in the Erap Muslim Youth Foundation; and

(ii) by a series consisting of two acts of ordering the GSIS and the SSS to purchase shares of stock of Belle Corporation and collecting or receiving commission from the sales of Belle Shares in the amount of P189,700,000.00 which was deposited in the Jose Velarde account.

These two acts – (i) and (ii) – correspond to sub-paragraphs (a) and (c) of the Amended Information. However, there is uncertainty as to the participation of Jinggoy Estrada and Serapio in the allegations under sub-paragraph (a) of the Amended Information (both are not included in sub-paragraph [c] of the Amended Information).

With respect to Jinggoy Estrada, there was no evidence that the money he turned over to Gov. Singson or the latters representatives was part of the jueteng protection money collected from Bulacan or that he received funds from a certain Viceo. The prosecution did not also rebut the bank certification presented by the defense that Jinggoy Estrada did not have an account with the United Overseas Bank, disproving the testimony of Emma Lim that the deposit slip in the amount said to be part of jueteng money was turned over to her by Jinggoy Estrada from his account at the United Overseas Bank. The gaps in the prosecution evidence as to Jinggoy Estrada create uncertainty in the mind of the Court as to the participation of Jinggoy Estrada in the collection and receipt of jueteng money.

With respect to Serapio, neither Gov. Chavit Singson testimony nor the ledger entries proved that Serapio was involved in any way in the collection or disbursement of jueteng protection money. It is difficult to presume any criminal intent on the part of Serapio to conceal or launder jueteng protection money in order to contribute to the

amassing and accumulation of ill-gotten wealth by Pres. Estrada in connection with the transfer of the P200,000,000.00 to the Erap Muslim Youth Foundation.

On the other hand, the prosecution failed to establish beyond reasonable doubt the allegations under sub-paragraph (b) and (d) of the amended Information:

1. Acts under sub-paragraph (b) of the Amended Information. – With respect to the act of divesting, receiving or misappropriating a portion of the tobacco excise tax share allocated for the Province of Ilocos Sur, the paper trail in relation to the P130,000,000.00 diverted tobacco excise taxes began with Gov. Singson and ended with Atong Ang. This Court does not find the evidence sufficient to establish beyond reasonable doubt that FPres. Estrada or any member of his family had instigated and/or benefited from the diversion of said funds. The prosecution failed to prove, beyond reasonable doubt, who among the accused benefited from the misappropriation of the excise tax share of Ilocos Sur and in what amounts.

2. Acts under sub-paragraph (d) of the Amended Information. – While the prosecution presented overwhelming evidence that there were numerous deposits of astoundingly large sums of money into the Jose Velarde account, it failed to prove the predicate act/s as defined under Section 1(d) of R.A. No. 7080 through which the said deposits could have been acquired or amassed, except for the amount of P189,700,000.00, representing illegal commissions from the sales of Belle shares and the money collected from illegal gambling. It is not per se the accumulation of wealth which is proscribed by the Anti-Plunder Law. The acquisition of wealth of not less than P50,000,000.00 must be linked to the commission of overt or criminal acts falling within the ambit of the said law. All that the prosecution has succeeded in showing is that the Jose Velarde account is the repository or receptacle of vast wealth belonging to Pres. Estrada.

However, the two different series of predicate acts outlined above (particularly, first, the regular and methodical acquisition of ill-gotten wealth through collections from illegal gambling, and, second, the receipt of unlawful commissions from the sales of Belle shares twice), whether taken separately or independently of the other or in combination with each other, unquestionably constitute the crime of plunder as defined by Section 2, in relation to Section 1(d) of RA 7080 as amended.

A pattern was established by the carefully planned system of jueteng money collection on a regular bi-monthly basis from the dfferent provinces nationwide to enrich FPres. Estrada with the connivance and/or participation of Gov. Singson, Yolanda Ricaforte, Emma Lim, Carmencita Itchon, SPO2 Artates, Jamis Singson and other jueteng collectors referred to in the Amended Information as John Does and Jane Does. As proven, the collections in several instances from illegal gambling � �money went way beyond the minimum of P50,000,000.00 set by the Anti-Plunder Law. These repeated collections of jueteng money from November 1998 to August 2000 would fall within the purview of a series of illegal acts constituting plunder. The said series of acts, on its own, would have been sufficient to convict the principal accused, Pres. Estrada. However, this Court also finds that Pres. Estrada is criminally liable for plunder for receiving commissions from the purchase of Belle Shares by the GSIS and by the SSS in grave abuse of his power on two separate occasions as charged in sub-paragraph (b) of the Amended Information. Clearly, the receipt of

these commissions on two occasions likewise meets the definition of a series of two similar unlawful acts employing the same scheme to accumulate ill-gotten wealth.

It is unnecessary to indulge in an exposition of whether the two series of acts falling under sub-paragraphs (a) and (c) of the Amended Information, proven in the course of the trial could have amounted to two (2) counts of plunder. It would be a purely academic exercise, as the accused cannot be convicted of two offenses or two counts of plunder on the basis of a single Information, clearly charging him of only one count of plunder, because that would violate his constitutional rights to due process, given the severity of the crime charged in this case.

The predicate acts alleged in sub-paragraphs (a) and (c) of the Amended Information, which formed two separate series of acts of a different nature, were linked by the fact that they were plainly geared towards a common goal which was the accumulation of ill-gotten wealth for Pres. Estrada and that they shared a pattern or a common method of commission which was the abuse or misuse of the high authority or power of the Presidency.

In sum, the Court finds that prosecution has proven beyond reasonable doubt the commission by the principal accused former President Joseph Ejercito Estrada of the crime of plunder but not so in the case of former Mayor Jose Jinggoy Estrada and Atty. Edward Serapio.

THE DISPOSITIVE PORTION

Former President Joseph Ejercito Estrada is GUILTY beyond reasonable doubt of the crime of PLUNDER, defined in and penalized by Republic Act No. 7080, as amended. On the other hand, for failure of the prosecution to prove and establish their guilt beyond reasonable doubt, the Court finds the accused Jose Jinggoy Estrada and Atty. Edward S. Serapio NOT GUILTY of the crime of plunder, and accordingly, the Court hereby orders their ACQUITTAL.

The penalty imposable for the crime of plunder under Republic Act No. 7080, as amended by Republic Act No. 7659, is Reclusion Perpetua to Death. There being no aggravating or mitigating circumstances, however, the lesser penalty shall be applied in accordance with Article 63 of the Revised Penal Code. Accordingly, accused Former President Joseph Ejercito Estrada is hereby sentenced to suffer the penalty of Reclusion Perpetua and the accessory penalties of civil interdiction during the period of sentence and perpetual absolute disqualification.

Moreover, in accordance with Section 2 of Republic Act No. 7080, as amended by Republic Act No. 7659, the Court hereby declares the forfeiture in favor of the government of the following: (1) The total amount of P545,291,000.00, with interest and income earned, inclusive of the amount of P200,000,000.00, deposited in the name and account of the Erap Muslim Youth Foundation; (2) The amount of P189,000,000.00, inclusive of interests and income earned, deposited in the Jose Velarde account; and (3) The real property consisting of a house and lot dubbed as Boracay Mansion located at #100 11th Street, New Manila, Quezon City.

Republic of the PhilippinesCongress of the PhilippinesMetro Manila

Eighth Congress

Republic Act No. 7438             April 27, 1992

AN ACT DEFINING CERTAIN RIGHTS OF PERSON ARRESTED, DETAINED OR UNDER CUSTODIAL INVESTIGATION AS WELL AS THE DUTIES OF THE ARRESTING, DETAINING AND INVESTIGATING OFFICERS, AND PROVIDING PENALTIES FOR VIOLATIONS THEREOF

Be it enacted by the Senate and House of Representatives of the Philippines in Congress assembled::

Section 1. Statement of Policy. – It is the policy of the Senate to value the dignity of every human being and guarantee full respect for human rights.

Section 2. Rights of Persons Arrested, Detained or Under Custodial Investigation; Duties of Public Officers. –

(a) Any person arrested detained or under custodial investigation shall at all times be assisted by counsel.

(b) Any public officer or employee, or anyone acting under his order or his place, who arrests, detains or investigates any person for the commission of an offense shall inform the latter, in a language known to and understood by him, of his rights to remain silent and to have competent and independent counsel, preferably of his own choice, who shall at all times be allowed to confer privately with the person arrested, detained or under custodial investigation. If such person cannot afford the services of his own counsel, he must be provided with a competent and independent counsel by the investigating officer.lawphi1Ÿ

(c) The custodial investigation report shall be reduced to writing by the investigating officer, provided that before such report is signed, or thumbmarked if the person arrested or detained does not know how to read and write, it shall be read and adequately explained to him by his counsel or by the assisting counsel provided by the investigating officer in the language or dialect known to such arrested or detained person, otherwise, such investigation report shall be null and void and of no effect whatsoever.

(d) Any extrajudicial confession made by a person arrested, detained or under custodial investigation shall be in writing and signed by such person in the presence of his counsel or in the latter's absence, upon a valid waiver, and in the presence of any of the parents, elder brothers and sisters, his spouse, the municipal mayor, the municipal judge, district school supervisor, or priest or minister of the gospel as

chosen by him; otherwise, such extrajudicial confession shall be inadmissible as evidence in any proceeding.

(e) Any waiver by a person arrested or detained under the provisions of Article 125 of the Revised Penal Code, or under custodial investigation, shall be in writing and signed by such person in the presence of his counsel; otherwise the waiver shall be null and void and of no effect.

(f) Any person arrested or detained or under custodial investigation shall be allowed visits by or conferences with any member of his immediate family, or any medical doctor or priest or religious minister chosen by him or by any member of his immediate family or by his counsel, or by any national non-governmental organization duly accredited by the Commission on Human Rights of by any international non-governmental organization duly accredited by the Office of the President. The person's "immediate family" shall include his or her spouse, fiancé or fiancée, parent or child, brother or sister, grandparent or grandchild, uncle or aunt, nephew or niece, and guardian or ward.

As used in this Act, "custodial investigation" shall include the practice of issuing an "invitation" to a person who is investigated in connection with an offense he is suspected to have committed, without prejudice to the liability of the "inviting" officer for any violation of law.

Section 3. Assisting Counsel. – Assisting counsel is any lawyer, except those directly affected by the case, those charged with conducting preliminary investigation or those charged with the prosecution of crimes.

The assisting counsel other than the government lawyers shall be entitled to the following fees;

(a) The amount of One hundred fifty pesos (P150.00) if the suspected person is chargeable with light felonies;lawphi1©alf

(b) The amount of Two hundred fifty pesos (P250.00) if the suspected person is chargeable with less grave or grave felonies;

(c) The amount of Three hundred fifty pesos (P350.00) if the suspected person is chargeable with a capital offense.

The fee for the assisting counsel shall be paid by the city or municipality where the custodial investigation is conducted, provided that if the municipality of city cannot pay such fee, the province comprising such municipality or city shall pay the fee: Provided, That the Municipal or City Treasurer must certify that no funds are available to pay the fees of assisting counsel before the province pays said fees.

In the absence of any lawyer, no custodial investigation shall be conducted and the suspected person can only be detained by the investigating officer in accordance with the provisions of Article 125 of the Revised Penal Code.

Section 4. Penalty Clause. – (a) Any arresting public officer or employee, or any investigating officer, who fails to inform any person arrested, detained or under custodial investigation of his right to remain silent and to have competent and independent counsel preferably of his own choice, shall suffer a fine of Six thousand pesos (P6,000.00) or a penalty of imprisonment of not less than eight (8) years but not more than ten (10) years, or both. The penalty of perpetual absolute disqualification shall also be imposed upon the investigating officer who has been previously convicted of a similar offense.

The same penalties shall be imposed upon a public officer or employee, or anyone acting upon orders of such investigating officer or in his place, who fails to provide a competent and independent counsel to a person arrested, detained or under custodial investigation for the commission of an offense if the latter cannot afford the services of his own counsel.

(b) Any person who obstructs, prevents or prohibits any lawyer, any member of the immediate family of a person arrested, detained or under custodial investigation, or any medical doctor or priest or religious minister chosen by him or by any member of his immediate family or by his counsel, from visiting and conferring privately with him, or from examining and treating him, or from ministering to his spiritual needs, at any hour of the day or, in urgent cases, of the night shall suffer the penalty of imprisonment of not less than four (4) years nor more than six (6) years, and a fine of four thousand pesos (P4,000.00).lawphi1©

The provisions of the above Section notwithstanding, any security officer with custodial responsibility over any detainee or prisoner may undertake such reasonable measures as may be necessary to secure his safety and prevent his escape.

Section 5. Repealing Clause. – Republic Act No. No. 857, as amended, is hereby repealed. Other laws, presidential decrees, executive orders or rules and regulations, or parts thereof inconsistent with the provisions of this Act are repealed or modified accordingly.

Section 6. Effectivity. – This Act shall take effect fifteen (15) days following its publication in the Official Gazette or in any daily newspapers of general circulation in the Philippines.

Approved: April 27, 1992.

Republic of the PhilippinesSUPREME COURT

Manila

EN BANC

G.R. No. L-65366 November 9, 1983

JOSE B.L. REYES, in behalf of the ANTI-BASES COALITION (ABC), petitioner, vs.RAMON BAGATSING, as Mayor of the City of Manila, respondent.

Lorenzo M. Tañada Jose W. Diokno and Haydee B. Yorac for petitioner.

The Solicitor General for respondent.

 

FERNANDO, C.J.:ñé+.£ªwph!1

This Court, in this case of first impression, at least as to some aspects, is called upon to delineate the boundaries of the protected area of the cognate rights to free speech and peaceable assembly, 1 against an alleged intrusion by respondent Mayor Ramon Bagatsing. Petitioner, retired Justice JB L. Reyes, on behalf of the Anti-Bases Coalition sought a permit from the City of Manila to hold a peaceful march and rally on October 26, 1983 from 2:00 to 5:00 in the afternoon, starting from the Luneta, a public park, to the gates of the United States Embassy, hardly two blocks away. Once there, and in an open space of public property, a short program would be held. 2 During the course of the oral argument, 3 it was stated that after the delivery of two brief speeches, a petition based on the resolution adopted on the last day by the International Conference for General Disbarmament, World Peace and the Removal of All Foreign Military Bases held in Manila, would be presented to a representative of the Embassy or any of its personnel who may be there so that it may be delivered to the United States Ambassador. The march would be attended by the local and foreign participants of such conference. There was likewise an assurance in the petition that in the exercise of the constitutional rights to free speech and assembly, all the necessary steps would be taken by it "to ensure a peaceful march and rally." 4

The filing of this suit for mandamus with alternative prayer for writ of preliminary mandatory injunction on October 20, 1983 was due to the fact that as of that date, petitioner had not been informed of any action taken on his request on behalf of the organization to hold a rally. On October 25, 1983, the answer of respondent Mayor was filed on his behalf by Assistant Solicitor General Eduardo G. Montenegro. 5 It turned out that on October 19, such permit was denied. Petitioner was unaware of such a fact as the denial was sent by ordinary mail. The reason for refusing a permit was due to police intelligence reports which strongly militate against the advisability of issuing such permit at this time and at the place applied for." 6 To be more specific, reference was made to persistent intelligence reports affirm[ing] the plans of subversive/criminal elements to infiltrate and/or disrupt any assembly or congregations where a large number of people is expected to attend." 7 Respondent Mayor suggested, however, in accordance with the recommendation of the police authorities, that "a permit may be issued for the rally if it is to be held at the Rizal Coliseum or any other enclosed area where the safety of the participants themselves and the general public may be ensured." 8

The oral argument was heard on October 25, 1983, the very same day the answer was filed. The Court then deliberated on the matter. That same afternoon, a minute resolution

was issued by the Court granting the mandatory injunction prayed for on the ground that there was no showing of the existence of a clear and present danger of a substantive evil that could justify the denial of a permit. On this point, the Court was unanimous, but there was a dissent by Justice Aquino on the ground that the holding of a rally in front of the US Embassy would be violative of Ordinance No. 7295 of the City of Manila. The last sentence of such minute resolution reads: "This resolution is without prejudice to a more extended opinion." 9 Hence this detailed exposition of the Court's stand on the matter.

1. It is thus clear that the Court is called upon to protect the exercise of the cognate rights to free speech and peaceful assembly, arising from the denial of a permit. The Constitution is quite explicit: "No law shall be passed abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble and petition the Government for redress of grievances." 10 Free speech, like free press, may be Identified with the liberty to discuss publicly and truthfully any matter of public concern without censorship or punishment. 11 There is to be then no previous restraint on the communication of views or subsequent liability whether in libel suits, 12 prosecution for sedition, 13 or action for damages, 14 or contempt proceedings 15 unless there be a clear and present danger of a substantive evil that [the State] has a right to prevent." 16 Freedom of assembly connotes the right people to meet peaceably for consultation and discussion of matters Of public concern. 17 It is entitled to be accorded the utmost deference and respect. It is hot to be limited, much less denied, except on a showing, as 's the case with freedom of expression, of a clear and present danger of a substantive evil that the state has a right to prevent. 18 Even prior to the 1935 Constitution, Justice Maicolm had occasion to stress that it is a necessary consequence of our republican institutions and complements the right of free speech. 19 To paraphrase opinion of Justice Rutledge speaking for the majority of the American Supreme Court Thomas v. Collins, 20 it was not by accident or coincidence that the right to freedom of speech and of the press were toupled in a single guarantee with the and to petition the rights of the people peaceably to assemble and to petition the government for redress of grievances. All these rights, while not Identical, are inseparable. the every case, therefo re there is a limitation placed on the exercise of this right, the judiciary is called upon to examine the effects of the challenged governmental actuation. The sole justification for a limitation on the exercise of this right, so fundamental to the maintenance of democratic institutions, is the danger, of a character both grave and imminent, of a serious evil to public safety, public morals, public health, or any other legitimate public interest. 21

2. Nowhere is the rationale that underlies the freedom of expression and peaceable assembly better expressed than in this excerpt from an opinion of Justice Frankfurter: "It must never be forgotten, however, that the Bill of Rights was the child of the Enlightenment. Back of the guaranty of free speech lay faith in the power of an appeal to reason by all the peaceful means for gaining access to the mind. It was in order to avert force and explosions due to restrictions upon rational modes of communication that the guaranty of free speech was given a generous scope. But utterance in a context of violence can lose its significance as an appeal to reason and become part of an instrument of force. Such utterance was not meant to be sheltered by the Constitution." 22 What was rightfully stressed is the abandonment of reason, the utterance, whether verbal or printed, being in a context of violence. It must always be remembered that this right likewise provides for a safety valve, allowing parties the opportunity to give vent to their-views, even if contrary to the prevailing climate of opinion. For if the peaceful means of communication cannot be availed of, resort to non-peaceful means may be the only alternative. Nor is this the sole reason for the expression of dissent. It means more than just the right to be heard of the person who feels aggrieved or who is dissatisfied with things as they are. Its value may lie in the fact that there may be something worth hearing from the dissenter. That is to ensure a true ferment of Ideas. There are, of course, well-defined limits. What is guaranteed is peaceable assembly. One may not advocate disorder in the name of protest, much less preach rebellion under the cloak of dissent. The Constitution frowns on disorder or tumult attending a rally or assembly. resort to

force is ruled out and outbreaks of violence to be avoided. The utmost calm though is not required. As pointed out in an early Philippine case, penned in 1907 to be precise, United States v. Apurado: 23 "It is rather to be expected that more or less disorder will mark the public assembly of the people to protest against grievances whether real or imaginary, because on such occasions feeling is always wrought to a high pitch of excitement, and the greater the grievance and the more intense the feeling, the less perfect, as a rule, will be the disciplinary control of the leaders over their irresponsible followers." 24 It bears repeating that for the constitutional right to be invoked, riotous conduct, injury to property, and acts of vandalism must be avoided, To give free rein to one's destructive urges is to call for condemnation. It is to make a mockery of the high estate occupied by intellectual liberty in our scheme of values.

3. There can be no legal objection, absent the existence of a clear and present danger of a substantive evil, on the choice of Luneta as the place where the peace rally would start. The Philippines is committed to the view expressed in the plurality opinion, of 1939 vintage, of Justice Roberts in Hague v. CIO: 25 Whenever the title of streets and parks may rest, they have immemorially been held in trust for the use of the public and, time out of mind, have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions. Such use of the streets and public places has, from ancient times, been a part of the privileges, immunities, rights, and liberties of citizens. The privilege of a citizen of the United States to use the streets and parks for communication of views on national questions may be regulated in the interest of all; it is not absolute, but relative, and must be exercised in subordination to the general comfort and convenience, and in consonance with peace and good order; but it must not, in the guise of regulation, be abridged or denied. 26 The above excerpt was quoted with approval in Primicias v. Fugoso. 27 Primicias made explicit what was implicit in Municipality of Cavite v. Rojas," 28 a 1915 decision, where this Court categorically affirmed that plazas or parks and streets are outside the commerce of man and thus nullified a contract that leased Plaza Soledad of plaintiff-municipality. Reference was made to such plaza "being a promenade for public use," 29 which certainly is not the only purpose that it could serve. To repeat, there can be no valid reason why a permit should not be granted for the or oposed march and rally starting from a public dark that is the Luneta.

4. Neither can there be any valid objection to the use of the streets, to the gates of the US Embassy, hardly two block-away at the Roxas Boulevard. Primicias v. Fugoso has resolved any lurking doubt on the matter. In holding that the then Mayor Fugoso of the City of Manila should grant a permit for a public meeting at Plaza Miranda in Quiapo, this Court categorically declared: "Our conclusion finds support in the decision in the case of Willis Cox vs. State of New Hampshire, 312 U.S., 569. In that case, the statute of New Hampshire P. L. chap. 145, section 2, providing that 'no parade or procession upon any ground abutting thereon, shall 'De permitted unless a special license therefor shall first be explained from the selectmen of the town or from licensing committee,' was construed by the Supreme Court of New Hampshire as not conferring upon the licensing board unfettered discretion to refuse to grant the license, and held valid. And the Supreme Court of the United States, in its decision (1941) penned by Chief Justice Hughes affirming the judgment of the State Supreme Court, held that 'a statute requiring persons using the public streets for a parade or procession to procure a special license therefor from the local authorities is not an unconstitutional abridgment of the rights of assembly or of freedom of speech and press, where, as the statute is construed by the state courts, the licensing authorities are strictly limited, in the issuance of licenses, to a consideration of the time, place, and manner of the parade or procession, with a view to conserving the public convenience and of affording an opportunity to provide proper policing, and are not invested with arbitrary discretion to issue or refuse license, ... " 30 Nor should the point made by Chief Justice Hughes in a subsequent portion of the opinion be ignored, "Civil liberties, as guaranteed by the Constitution, imply the existence of an organized society maintaining public order without which liberty itself would be lost in the excesses of

unrestricted abuses. The authority of a municipality to impose regulations in order to assure the safety and convenience of the people in the use of public highways has never been regarded as inconsistent with civil liberties but rather as one of the means of safeguarding the good order upon which they ultimately depend. The control of travel on the streets of cities is the most familiar illustration of this recognition of social need. Where a restriction of the use of highways in that relation is designed to promote the public convenience in the interest of all, it cannot be disregarded by the attempted exercise of some civil right which in other circumstances would be entitled to protection." 31

5. There is a novel aspect to this case, If the rally were confined to Luneta, no question, as noted, would have arisen. So, too, if the march would end at another park. As previously mentioned though, there would be a short program upon reaching the public space between the two gates of the United States Embassy at Roxas Boulevard. That would be followed by the handing over of a petition based on the resolution adopted at the closing session of the Anti-Bases Coalition. The Philippines is a signatory of the Vienna Convention on Diplomatic Relations adopted in 1961. It was concurred in by the then Philippine Senate on May 3, 1965 and the instrument of ratification was signed by the President on October 11, 1965, and was thereafter deposited with the Secretary General of the United Nations on November 15. As of that date then, it was binding on the Philippines. The second paragraph of the Article 22 reads: "2. The receiving State is under a special duty to take appropriate steps to protect the premises of the mission against any intrusion or damage and to prevent any disturbance of the peace of the mission or impairment of its dignity. " 32 The Constitution "adopts the generally accepted principles of international law as part of the law of the land. ..." 33 To the extent that the Vienna Convention is a restatement of the generally accepted principles of international law, it should be a part of the law of the land. 34 That being the case, if there were a clear and present danger of any intrusion or damage, or disturbance of the peace of the mission, or impairment of its dignity, there would be a justification for the denial of the permit insofar as the terminal point would be the Embassy. Moreover, respondent Mayor relied on Ordinance No. 7295 of the City of Manila prohibiting the holding or staging of rallies or demonstrations within a radius of five hundred (500) feet from any foreign mission or chancery and for other purposes. Unless the ordinance is nullified, or declared ultra vires, its invocation as a defense is understandable but not decisive, in view of the primacy accorded the constitutional rights of free speech and peaceable assembly. Even if shown then to be applicable, that question the confronts this Court.

6. There is merit to the observation that except as to the novel aspects of a litigation, the judgment must be confined within the limits of previous decisions. The law declared on past occasions is, on the whole, a safe guide, So it has been here. Hence, as noted, on the afternoon of the hearing, October 25, 1983, this Court issued the minute resolution granting the mandatory injunction allowing the proposed march and rally scheduled for the next day. That conclusion was inevitable ill the absence of a clear and present danger of a substantive, evil to a legitimate public interest. There was no justification then to deny the exercise of the constitutional rights of tree speech and peaceable assembly. These rights are assured by our Constitution and the Universal Declaration of Human Rights. 35 The participants to such assembly, composed primarily of those in attendance at the International Conference for General Disbarmament, World Peace and the Removal of All Foreign Military Bases would start from the Luneta. proceeding through Roxas Boulevard to the gates of the United States Embassy located at the same street. To repeat, it is settled law that as to public places, especially so as to parks and streets, there is freedom of access. Nor is their use dependent on who is the applicant for the permit, whether an individual or a group. If it were, then the freedom of access becomes discriminatory access, giving rise to an equal protection question. The principle under American doctrines was given utterance by Chief Justice Hughes in these words: "The question, if the rights of free speech and peaceable assembly are to be preserved, is not as to the auspices under which the meeting is held but as to its purpose; not as to The

relations of the speakers, but whether their utterances transcend the bounds of the freedom of speech which the Constitution protects." 36 There could be danger to public peace and safety if such a gathering were marked by turbulence. That would deprive it of its peaceful character. Even then, only the guilty parties should be held accountable. It is true that the licensing official, here respondent Mayor, is not devoid of discretion in determining whether or not a permit would be granted. It is not, however, unfettered discretion. While prudence requires that there be a realistic appraisal not of what may possibly occur but of what may probably occur, given all the relevant circumstances, still the assumption — especially so where the assembly is scheduled for a specific public — place is that the permit must be for the assembly being held there. The exercise of such a right, in the language of Justice Roberts, speaking for the American Supreme Court, is not to be "abridged on the plea that it may be exercised in some other place." 37

7. In fairness to respondent Mayor, he acted on the belief that Navarro v. Villegas 38 and Pagkakaisa ng Manggagawang Pilipino (PMP.) v. Bagatsing, 39 called for application. While the General rule is that a permit should recognize the right of the applicants to hold their assembly at a public place of their choice, another place may be designated by the licensing authority if it be shown that there is a clear and present danger of a substantive evil if no such change were made. In the Navarro and the Pagkakaisa decisions, this Court was persuaded that the clear and present danger test was satisfied. The present situation is quite different. Hence the decision reached by the Court. The mere assertion that subversives may infiltrate the ranks of the demonstrators does not suffice. Not that it should be overlooked. There was in this case, however, the assurance of General Narciso Cabrera, Superintendent, Western Police District, Metropolitan Police Force, that the police force is in a position to cope with such emergency should it arise That is to comply with its duty to extend protection to the participants of such peaceable assembly. Also from him came the commendable admission that there were the least five previous demonstrations at the Bayview hotel Area and Plaza Ferguson in front of the United States Embassy where no untoward event occurred. It was made clear by petitioner, through counsel, that no act offensive to the dignity of the United States Mission in the Philippines would take place and that, as mentioned at the outset of this opinion, "all the necessary steps would be taken by it 'to ensure a peaceful march and rally.' " 40 Assistant Solicitor General Montenegro expressed the view that the presence of policemen may in itself be a provocation. It is a sufficient answer that they should stay at a discreet distance, but ever ready and alert to cope with any contingency. There is no need to repeat what was pointed out by Chief Justice Hughes in Cox that precisely, it is the duty of the city authorities to provide the proper police protection to those exercising their right to peaceable assembly and freedom of expression.

8. By way of a summary The applicants for a permit to hold an assembly should inform the licensing authority of the date, the public place where and the time when it will take place. If it were a private place, only the consent of the owner or the one entitled to its legal possession is required. Such application should be filed well ahead in time to enable the public official concerned to appraise whether there may be valid objections to the grant of the permit or to its grant but at another public place. It is an indispensable condition to such refusal or modification that the clear and present danger test be the standard for the decision reached. If he is of the view that there is such an imminent and grave danger of a substantive evil, the applicants must be heard on the matter. Thereafter, his decision, whether favorable or adverse, must be transmitted to them at the earliest opportunity. Thus if so minded, then, can have recourse to the proper judicial authority. Free speech and peaceable assembly, along with the other intellectual freedoms, are highly ranked in our scheme of constitutional values. It cannot be too strongly stressed that on the judiciary, — even more so than on the other departments — rests the grave and delicate responsibility of assuring respect for and deference to such preferred rights. No verbal formula, no sanctifying phrase can, of course, dispense with what has been so felicitiously termed by Justice Holmes "as the sovereign prerogative of judgment." Nonetheless, the presumption must be to incline the weight of the scales of

justice on the side of such rights, enjoying as they do precedence and primacy. Clearly then, to the extent that there may be inconsistencies between this resolution and that of Navarro v. Villegas, that case is pro tanto modified. So it was made clear in the original resolution of October 25, 1983.

9. Respondent Mayor posed the issue of the applicability of Ordinance No. 7295 of the City of Manila prohibiting the holding or staging of rallies or demonstrations within a radius of five hundred (500) feet from any foreign mission or chancery and for other purposes. It is to be admitted that it finds support In the previously quoted Article 22 of the Vienna Convention on Diplomatic Relations. There was no showing, however, that the distance between the chancery and the embassy gate is less than 500 feet. Even if it could be shown that such a condition is satisfied. it does not follow that respondent Mayor could legally act the way he did. The validity of his denial of the permit sought could still be challenged. It could be argued that a case of unconstitutional application of such ordinance to the exercise of the right of peaceable assembly presents itself. As in this case there was no proof that the distance is less than 500 feet, the need to pass on that issue was obviated, Should it come, then the qualification and observation of Justices Makasiar and Plana certainly cannot be summarily brushed aside. The high estate accorded the rights to free speech and peaceable assembly demands nothing less.

10. Ordinarily, the remedy in cases of this character is to set aside the denial or the modification of the permit sought and order the respondent official, to grant it. Nonetheless, as there was urgency in this case, the proposed march and rally being scheduled for the next day after the hearing, this Court. in the exercise of its conceded authority, granted the mandatory injunction in the resolution of October 25, 1983. It may be noted that the peaceful character of the peace march and rally on October 26 was not marred by any untoward incident. So it has been in other assemblies held elsewhere. It is quite reassuring such that both on the part of the national government and the citizens, reason and moderation have prevailed. That is as it should be.

WHEREFORE, the mandatory injunction prayed for is granted. No costs.

Republic of the Philippines SUPREME COURT

Manila

EN BANC RE: REQUEST OF MUSLIM A.M. No. 02-2-10-SCEMPLOYEES IN THE

DIFFERENT COURTS IN Present:ILIGAN CITY (RE: OFFICEHOURS) DAVIDE, JR., C.J.,PUNO,PANGANIBAN,QUISUMBING,YNARES-SANTIAGO, SANDOVAL-GUTIERREZ, ' CARPIO, AUSTRIA-MARTINEZ,

CORONA,CARPIO MORALES,CALLEJO, SR.,

AZCUNA,TINGA,CHICO-NAZARIO, and' GARCIA, JJ. Promulgated: 

December 14, 2005 x - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - x  

R E S O L U T I O N  CALLEJO, SR., J.: In their Letter dated November 19, 2001 addressed to Executive Judge

Valerio M. Salazar, Regional Trial Court of Iligan City, several Muslim

employees in the different courts in the said city request that they be

allowed to enjoy the following privileges:

 1. to hold office hours from 7:30 a.m. to 3:30 p.m. without

lunch break or coffee breaks during the month of Ramadan;

 2. to be excused from work from 10:00 a.m. to 2:00 p.m.

every Friday (Muslim Prayer Day) during the entire calendar year.

 

Judge Salazar forwarded the said letter-request to the Office of the Court

Administrator (OCA). Judge Salazar expressed his conformity with the first

request, i.e., allowing them to hold office from 7:30 a.m. to 3:30 p.m.

without any break during the month of Ramadan. However, he expressed

some misgivings about the second request, i.e., excusing them from work

from 10:00 a.m. to 2:00 p.m. every Friday during the entire calendar year.

 In support of their requests, the Muslim employees invoke Presidential

Decree (P.D.) No. 291[1] as amended by P.D. No. 322[2] enacted by then

President Ferdinand E. Marcos. The avowed purpose of P.D. No. 291 was to

reinforce national unity by recognizing Muslim holidays and making them

part of our national holidays. Section 2 thereof, as amended by P.D. No.

322, provides that the following are recognized Muslim holidays:

 a. Eid-ul-Fitr (Hariraya Puasa) - which falls on the 1st day of

the lunar month of Shawwal commemorating the end of the fasting season;

b. Eid-ul-Adha (Hariraya Haj) - which falls on the 10 th day of the 12th Lunar month of Zul Hajj;

c. Mauledan Nabi - Birthday of Prophet Mohammad (P.B.U.H), which falls on the 12th day of the 3rd Lunar month of Rabbiol-Awwal;

d. Lailatul Isra Wal Miraj - (Ascension) which falls on the 27th

day of the 8th Lunar month of Rajjab; e. Muharram (Ashura) - which falls on the 10th Lunar month of

Muharram; andf. Amon Jaded (New Year) - which falls on the 1st day of the 1st

Lunar month of Muharram. 

 

Muslims employees in the government are excused from reporting to

office during these holidays in order that they may be able to properly

observe them.

 Section 3 of the same law, as amended by P.D. No. 322, further provides

that:

 Sec. 3. (a) During the fasting season on the month of Ramadan, all Muslim employees in the national government, government-owned or controlled corporations, provinces, cities, municipalities and other instrumentalities shall observe office hours from seven-thirty in the morning (7:30 a.m.) to three-thirty in the afternoon (3:30 p.m.) without lunch break or coffee breaks, and that there shall be no diminution of salary or wages, provided, that the employee who is not fasting is not entitled to the benefit of this provision. (b) Regulations for the implementation of this section shall be issued together with the implementing directives on Muslim holidays. 

Pursuant thereto, the Civil Service Commission (CSC) promulgated

Resolution No. 81-1277 dated November 13, 1981 which states in part:

 2. During 'Ramadan the Fasting month (30 days) of the

Muslims, the Civil Service official time of 8 oclock to 12 oclock and 1 oclock to 5 oclock is hereby modified to 7:30 A.M. to 3:30 P.M. without noon break and the difference of 2 hours is not counted as undertime;

 3. During Friday, the Muslim pray day, Muslims are excused

from work from 10 oclock in the morning to 2 oclock in the afternoon.

 

Moreover, in its Resolution No. 00-0227 dated January 26, 2000, the CSC

clarified that the term 'Friday in the above resolution is not limited to the

Fridays during the month of Ramadan, but refers to 'all Fridays of the

calendar year. However, in order not to run afoul of Section 5,[3] Rule XVII

of the Omnibus Rules Implementing Book V of Executive Order (E.O.) No.

292[4] which enjoins civil servants to render public service not less than

eight hours a day or forty (40) hours a week, the CSC prescribes the

adoption of a flexible working schedule to accommodate the Muslims'

Friday Prayer Day subject to certain conditions, e.g., the flexible working

hours shall not start earlier than 7:00 a.m. and end not later than 7:00

p.m.[5]

In the Resolution dated October 1, 2002, the Court required the Court

Administrator to study the matter. In compliance therewith, Court

Administrator Presbitero J. Velasco, Jr. recommends that the Muslim

employees in the Judiciary be allowed to hold flexible office hours from

7:30 a.m. to 3:30 p.m. without break during the month of Ramadan.

Further, that they be excused from work from 10:00 a.m. to 2:00 p.m.

every Friday to allow them to attend the Muslim Prayer Day. However, to

compensate for the lost hours, they should be required to observe flexible

working schedule which should start from 7:00 a.m. to 10:00 a.m. and

from 2:00 p.m. to 7:00 p.m. every Friday. In that way, the working hours

mandated by the civil service rules is complied with.

 The recommendation of the Court Administrator with respect to the matter

of allowing the Muslim employees in the Judiciary to hold flexible office

hours from 7:30 a.m. to 3:30 p.m. without break during the month of

Ramadan is well taken. The same has statutory basis in Section 3 (a) of

P.D. No. 291, as amended by P.D. No. 322, which categorically states that

'[d]uring the fasting season in the month of Ramadan, all Muslim

employees in the national government, government-owned or controlled

corporations, provinces, cities, municipalities and other instrumentalities

shall observe office hours from seven-thirty in the morning (7:30 a.m.) to

three-thirty in the afternoon (3:30 p.m.) without lunch break or coffee

breaks, and that there shall be no diminution of salary or wages ...

 The Court, however, is constrained to deny for lack of statutory basis the

request of the Muslim employees to be excused from work from 10:00

a.m. to 2:00 p.m. every Friday to allow them to attend the Muslim Prayer

Day. As correctly observed by Atty. Edna Dio, Chief, Office of the Court

Attorney, in her Report dated May 13, 2005, the CSC exceeded its

authority insofar as it declared in Resolution No. 81-1277 and Resolution

No. 00-0227 that Muslim employees are excused from work from 10:00

a.m. to 2:00 p.m.

every Friday subject to certain conditions. CSC Resolution No. 81-1277

was purportedly issued pursuant to Sections 2 and 5 of P.D. No. 291, as

amended by P.D. No 322, but neither of the two decrees mention 'Friday,

the Muslim Prayer Day as one of the recognized holidays.

 The Court is not unmindful that the subject requests are grounded on

Section 5, Article III of the Constitution:

 No law shall be made respecting an establishment of religion, or prohibiting the free exercise thereof. The exercise and enjoyment of religious profession and worship, without discrimination or preference, shall forever be allowed. No religious test shall be required for the exercise of civil and political rights.

  This provision contains two aspects: (1) the non-establishment clause; and

(2) the free exercise clause. The subject requests are based on the latter

and in interpreting this clause (the free exercise clause) embodied in the

Constitution, the Court has consistently adhered to the doctrine that:

 The right to religious profession and worship has a two-fold aspect, viz., freedom to believe and freedom to act on one's beliefs. The first is absolute as long as the belief is confined within the realm of thought. The second is subject to regulation where the belief is translated into external acts that affect the public welfare.[6]

  Justice Isagani A. Cruz explained these two concepts in this wise:  

(1)   Freedom to Believe 

The individual is free to believe (or disbelieve) as he pleases concerning the hereafter. He may indulge his own theories about life and death; worship any god he chooses, or none at all; embrace or reject any religion; acknowledge the divinity of God or of any being that appeals to his reverence; recognize or deny the immortality of his soul ' in fact, cherish any religious conviction as he and he alone sees fit. However absurd his beliefs may be to others, even if they be hostile and heretical to the majority, he has full freedom to believe as he pleases. He may not be required to prove his beliefs.

He may not be punished for his inability to do so. Religion, after all, is a matter of faith. 'Men may believe what they cannot prove. Every one has a right to his beliefs and he may not be called to account because he cannot prove what he believes. (2) Freedom to Act on One's BeliefsBut where the individual externalizes his beliefs in acts or omissions that affect the public, his freedom to do so becomes subject to the authority of the State. As great as this liberty may be, religious freedom, like all other rights guaranteed in the Constitution, can be enjoyed only with a proper regard for the rights of others. It is error to think that the mere invocation of religious freedom will stalemate the State and render it impotent in protecting the general welfare. The inherent police power can be exercised to prevent religious practices inimical to society. And this is true even if such practices are pursued out of sincere religious conviction and not merely for the purpose of evading the reasonable requirements or prohibitions of the law. Justice Frankfurter put it succinctly: The constitutional provision on religious freedom terminated disabilities, it did not create new privileges. It gave religious liberty, not civil immunity. Its essence is freedom from conformity to religious dogma, not freedom from conformity to law because of religious dogma.[7]

 

The Court recognizes that the observance of Ramadan and the Friday

Muslim Prayer Day is integral to the Islamic faith. However, while the

observance of Ramadan and allowing the Muslim employees in the

Judiciary to hold flexible office hours from 7:30 a.m. to 3:30 p.m. without

any break during the month of Ramadan finds support in Section 3 (a) of

P.D. No. 291, as amended by P.D. No. 322, there is no such basis to

excuse them from work from 10:00 a.m. to 2:00 p.m. every Friday, the

Muslim Prayer Day, during the entire calendar year.

 On the other hand, the need of the State to prescribe government office

hours as well as to enforce them uniformly to all civil servants, Christians

and Muslims alike, cannot be disregarded. Underlying Section 5,[8] Rule

XVII of the Omnibus Rules Implementing Book V of E.O. No. 292 is the

interest of the general public to be assured of continuous government

service during office hours every Monday through Friday. The said rule

enjoins all civil servants, of whatever religious denomination, to render

public service of no less than eight hours a day or forty (40) hours a week.

To allow the Muslim employees in the Judiciary to be excused from work

from 10:00 a.m. to 2:00 p.m. every Friday (Muslim Prayer Day) during the

entire calendar year would mean a diminution of the prescribed

government working hours. For then, they would be rendering service

twelve (12) hours less than that required by the civil service rules for each

month. Further, this would encourage other religious denominations to

request for similar treatment.

 The performance of religious practices, whether by the Muslim employees

or those belonging to other religious denominations, should not prejudice

the courts and the public. Indeed, the exercise of religious freedom does

not exempt anyone from compliance with reasonable requirements of the

law, including civil service laws.

 In fine, the remedy of the Muslim employees, with respect to their request

to be excused from work from 10:00 a.m. to 2:00 p.m. every Friday during

the entire calendar year, is legislative, which is to ask Congress to enact a

legislation expressly exempting them from compliance with the prescribed

government working hours.

ACCORDINGLY, the Court resolved to:

 1. GRANT the request to allow the Muslim employees in the Judiciary to hold

office hours from 7:30 a.m. to 3:30 p.m. without break during the month of

Ramadan pursuant to Section 3 (a) of Presidential Decree No. 291, as

amended by Presidential Decree No. 322; and

2.     'DENY for lack of legal basis the request that the Muslim employees in the

Judiciary be excused from work from 10:00 a.m. to 2:00 p.m. every Friday,

the Muslim Prayer Day, during the entire calendar year.

SO ORDERED.

  ' ROMEO J. CALLEJO, SR.Associate Justice

Republic of the Philippines SUPREME COURTManila

FIRST DIVISION

[G.R. No. 152398. April 14, 2005]

EDGAR CRISOSTOMO, Petitioner, vs. SANDIGANBAYAN, respondent.

D E C I S I O N

CARPIO, J.:

The Case

This is an appeal by certiorari under Rule 65 of the Revised Rules on Civil Procedure of the Sandiganbayan Resolutions promulgated on 17 September 2001 and 14 January 2002, denying the Motion for Reconsideration filed by petitioner SPO1 Edgar Crisostomo (Crisostomo') assailing the court's Decision[1] promulgated on 28 November 2000. The Decision found Crisostomo guilty of the crime of murder and sentenced him to suffer the indeterminate penalty of twelve (12) years, five (5) months and eleven (11) days of prision mayor as minimum, to eighteen (18) years, eight (8) months and one (1) day of reclusion temporal as maximum.

The Charge

On 19 October 1993, Crisostomo, a member of the Philippine National Police and a jail guard at the Solano Municipal Jail was charged with the murder of Renato Suba (Renato'), a detention prisoner at the Solano Municipal Jail. The Information alleged that Crisostomo conspired with his co-accused, Dominador C. dela Cruz (dela Cruz'),

Efren M. Perez (Perez'), Raki T. Anggo (Anggo'), Randy A. Lumabo (Lumabo'), Rolando M. Norberte (Norberte') and Mario Calingayan (Calingayan'), all inmates at the Solano Municipal Jail, in murdering Renato. The Information reads in full:

That on or about the 14th day of February 1989, in Solano, Nueva Vizcaya, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused Pat. Edgar T. Crisostomo, a public officer, being then a member of the Philippine National Police (PNP) stationed at Solano Police Station and a jailer thereat, taking advantage of his public position and thus committing the offense in relation to his office, conspiring, confederating and conniving with his co-accused who are inmates of the Solano Municipal Jail, namely: Dominador C. dela Cruz, Efren M. Perez, Raki T. Anggo, Randy A. Lumabo, Rolando M. Norberte and Mario B. Calingayan, with intent to kill and with treachery, taking advantage of superior strength and with the aid of armed men or employing means to weaken the defense or of means or persons to insure or afford impunity, did then and there wil[l]fully, unlawfully and feloniously attack and assault one Renato Suba, a detention prisoner, with the use of rough-surfaced instruments, including fist blows, inflicting upon him serious injuries causing his internal organs to be badly damaged such as his liver, messentery and stomach resulting to the death of said Renato Suba to the damage and prejudice of the heirs of the latter.

CONTRARY TO LAW.[2]

Arraignment and Plea

On 15 December 1993, Crisostomo assisted by counsel, pleaded not guilty to the crime charged.[3] Thereafter, trial ensued.

Version of the Prosecution

On 13 February 1989, Renato was detained at the municipal jail in Solano, Nueva Vizcaya for allegedly hitting the head of one Diosdado Lacangan. The following day, 14 February 1989, at 5:00 p.m., Renato's brother Rizalino Suba (Rizalino') visited him at the municipal jail. Renato asked Rizalino to bring him blanket, toothbrush, clothes and food. Rizalino left the municipal jail that day at 5:20 p.m. At that time, Renato was in good physical condition and did not complain of any bodily pain. Renato was 26 years old, single, and was employed in a logging concession.

At 9:00 p.m., a barangay councilman informed Rizalino that policemen assigned at the Solano municipal jail wanted Rizalino to go to the municipal building. Rizalino arrived at the municipal jail at 9:10 p.m. and saw his brother Renato already dead on the floor outside his cell.

Renato was detained alone in the third cell, one of the four cells at the municipal jail. Although each of the four cells had an iron grill door equipped with a padlock, the doors were usually left open. The keys to

the padlocks were with the jail guard. There was a common front door, which no one could enter but the jail guard. Only one jail guard at a time was assigned at the municipal jail. Crisostomo was the one on duty at the time of the death of Renato. At no time was Renato brought out of the cell during his detention on 13 February 1989 until his death in the evening of the following day. Crisostomo's position in relation to the cell where the victim was killed was such that Crisostomo as jail guard could have heard if not seen what was going on inside the cell at the time that Renato was killed.

There are unexplained discrepancies in the list of detainees/prisoners and police blotter. The list of detainees/prisoners dated 20 February 1989 shows that there were eight prisoners on 14 February 1989, including Renato, but after Renato's death, only six were turned over by Crisostomo to the incoming jail guard. On 15 February 1989, nine 'prisoners/detainees' were on the list, including Renato who was already dead. However, the police blotter shows that only six prisoners were under custody. The persons who were detained with Renato at the time of his death were released without being investigated by the Solano police.

Renato did not commit suicide. His body bore extensive injuries that could have been inflicted by several persons. The exhumation and autopsy reports ruled out suicide as the cause of Renato's death. The deafening silence of the inmates and the jail guard, Crisostomo, point to a conspiracy. Crisostomo's guilt is made apparent when he jumped bail during trial.

Version of the Defense

The presentation of evidence for Crisostomo's defense was deemed waived for his failure to appear at the scheduled hearings despite notice.

Calingayan, Crisostomo's co-accused, was the sole witness for the defense. Calingayan was only 16 years old at the time that he was charged with the murder of Renato. Calingayan denied killing Renato.

Calingayan was detained at the Solano Municipal Jail on 12 February 1989 because his brother-in-law, Patrolman Feliciano Leal (Leal'), also a jail guard, had him arrested for pawning some of the belongings of Leal. Leal told Calingayan that he had him detained for safekeeping to teach him a lesson.

Renato was detained on 13 February 1989. Calingayan learned that Renato was detained for hitting somebody's head.

There were four cells at the municipal jail. Calingayan was detained with five other inmates in the second cell. Renato was detained alone in the third cell. The four cells had their own separate doors with padlocks but each door was always open. It was up to the inmates to close the doors. A common door leading to the four cells was always padlocked and no one could enter the door without the jail guard's permission. The jail guard had the keys to the cells and the common door. Only one jail guard was assigned to guard the cells. Crisostomo

was the jail guard on duty at the time that Renato died.

Calingayan was in jail for three days or until 15 February 1989. Calingayan last saw Renato alive between 5 to 6 p.m. of 14 February 1989. Just as Calingayan was about to take a bath after 6 p.m., he saw Renato lying down. One of the inmates asked for Renato's food because he did not like to eat his food. After taking a bath, Calingayan went back to his cell and played cards with his three cellmates whose names he could not recall. Calingayan did not leave his cell during the four hours that he played cards but one of his cellmates went out.

Calingayan discovered Renato's body on 14 February 1989 between 9:00 p.m. to 10:00 p.m. Calingayan went to the fourth cell, where the comfort room was located, to urinate. While urinating, Calingayan saw at the corner of the cell a shadow beside him. A bulb at the alley lighted the cell. Calingayan ran away and called the other inmates, telling them that the person in cell number four was in the dark place. 'The other inmates ran towards the place and shouted 'si kuwan, si kuwan. Crisostomo was in the room at the left side from where Calingayan was detained, about fifteen meters away. Upon hearing the shouts, Crisostomo opened the main door. Once inside the cell, Crisostomo instructed the inmates to bring down Renato's body that was hanging from the iron bars of the window of the cell. At that time, Calingayan did not notice what was used in hanging Renato but when the body was brought outside, Calingayan saw that Renato had hanged himself with a thin blanket.

The four cells are not similar in area and size. The cell where Renato stayed is the smallest. The cells are separated by a partition made of hollow blocks as high as the ceiling. The four cells are in one line so that if you are in one cell you cannot see what is happening in the other cells. The inmates could go to any of the four cells in the prison but they could not get out of the main door without the permission of the jail guard. The comfort room is in the fourth cell, which is also open so that the inmates would not anymore ask for the key from the office of the jail guard.

The blanket that Renato used to hang himself was tied to the iron grills of the window of the cell. The window is small, only about two feet by one and one-half feet with eight iron bars. The window is nine feet from the floor.

No other person was admitted on 14 February 1989. Calingayan does not have a grudge against Renato. He could not recall if there was any untoward incident between Renato and the other inmates. The Solano police investigated Calingayan the next morning.

The Ruling of the Sandiganbayan

Only Crisostomo and Calingayan stood trial. The other accused, dela Cruz, Perez, Anggo, Lumabo and Norberte were at large. The Sandiganbayan found sufficient circumstantial evidence to convict Crisostomo and Calingayan of murder. The Sandiganbayan relied on the autopsy and exhumation reports in disregarding the defense theory that Renato committed suicide by hanging himself with a

blanket. The Sandiganbayan thus held:

Premises considered, accused Edgar Crisostomo and Mario Calingayan are hereby found guilty of the crime of murder.

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There being no attending mitigating or aggravating circumstance in the case of accused Edgar Crisostomo, and taking into consideration the Indeterminate Sentence Law, he is hereby sentenced to suffer the penalty of imprisonment for the period from twelve (12) years, five (5) months and eleven (11) days of prision mayor, minimum, to eighteen (18) years, eight (8) months and one (1) day of reclusion temporal, maximum.

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As to the other accused, Dominador C. Dela Cruz, Efren M. Perez, Raki T. Anggo, Randy A. Lumabo and Rolando M. Norberte, considering they are still at-large up to the present time, let an alias warrant of arrest be issued against them. In the meantime, the cases against them are hereby ordered archived.

SO ORDERED.[4]

The Issues

Crisostomo continues to assail the Sandiganbayan's jurisdiction. He raises the following issues:

WHETHER THE SANDIGANBAYAN HAS JURISDICTION OVER THE CRIME OF MURDER CHARGED AGAINST CRISOSTOMO WHO IS A SENIOR POLICE OFFICER 1 (SPO1) AT THE TIME OF THE FILING OF THE INFORMATION AGAINST HIM.

EVEN ASSUMING ARGUENDO THAT THE RESPONDENT COURT HAS JURISDICTION, WHETHER THE SANDIGANBAYAN COMMITTED GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION WHEN IT RULED THAT CRISOSTOMO IS GUILTY OF HAVING CONSPIRED IN THE MURDER OF RENATO DESPITE THE SANDIGANBAYAN'S ADMISSION IN ITS DECISION THAT THERE IS NO DIRECT EVIDENCE THAT WILL SHOW THE PARTICIPATION OF CRISOSTOMO IN THE DEATH OF THE VICTIM.[5]

The Court's Ruling

The Sandiganbayan had jurisdiction to try the case. However, the prosecution failed to prove Crisostomo and Calingayan's guilt beyond reasonable doubt. Thus, we acquit Crisostomo and Calingayan.

The Sandiganbayan had Jurisdiction to Try the Case

Crisostomo argues that the Sandiganbayan was without jurisdiction to try the case. Crisostomo points out that the crime of murder is not

listed in Section 4 of Presidential Decree No. 1606 (PD 1606') as one of the crimes that the Sandiganbayan can try. Crisostomo faults the Sandiganbayan for not applying the ruling in Sanchez v. Demetriou[6] to this case. In Sanchez v. Demetriou, the Court ruled that public office must be a constituent element of the crime as defined in the statute before the Sandiganbayan could acquire jurisdiction over a case. Crisostomo insists that there is no direct relation between the commission of murder and Crisostomo's public office. Crisostomo further contends that the mere allegation in the Information that the offense was committed in relation to Crisostomo's office is not sufficient to confer jurisdiction on the Sandiganbayan. Such allegation without the specific factual averments is merely a conclusion of law, not a factual averment that would show the close intimacy between the offense charged and the discharge of Crisostomo's official duties.

We are not convinced.

Since the crime was committed on 14 February 1989, the applicable provision of law is Section 4 of PD 1606, as amended by Presidential Decree No. 1861 (PD 1861'), which took effect on 23 March 1983. The amended provision reads:

Sec. 4. Jurisdiction. The Sandiganbayan shall exercise:(a) Exclusive original jurisdiction in all cases involving:

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(2) Other offenses or felonies committed by public officers and employees in relation to their office, including those employed in government-owned or controlled corporations, whether simple or complexed with other crimes, where the penalty prescribed by law is higher than prision correccional or imprisonment for six (6) years, or a fine of P6,000.00: PROVIDED, HOWEVER, that offenses or felonies mentioned in this paragraph where the penalty prescribed by law does not exceed prision correccional or imprisonment for six (6) years or a fine of P6,000.00 shall be tried by the proper Regional Trial Court, Metropolitan Trial Court, Municipal Trial Court and Municipal Circuit Trial Court.

Crisostomo was charged with murder, the penalty for which is reclusion temporal in its maximum period to death, a penalty within the jurisdiction of the Sandiganbayan.

Crisostomo would have the Court believe that being a jail guard is a mere incidental circumstance that bears no close intimacy with the commission of murder. Crisostomo's theory would have been tenable if the murdered victim was not a prisoner under his custody as a jail guard. The function of a jail guard is to insure the safe custody and proper confinement of persons detained in the jail. In this case, the Information alleges that the victim was a detention prisoner when Crisostomo, the jail guard, conspired with the inmates to kill him.

Indeed, murder and homicide will never be the main function of any

public office. No public office will ever be a constituent element of murder. When then would murder or homicide, committed by a public officer, fall within the exclusive and original jurisdiction of the Sandiganbayan? People v. Montejo[7] provides the answer. The Court explained that a public officer commits an offense in relation to his office if he perpetrates the offense while performing, though in an improper or irregular manner, his official functions and he cannot commit the offense without holding his public office. In such a case, there is an intimate connection between the offense and the office of the accused. If the information alleges the close connection between the offense charged and the office of the accused, the case falls within the jurisdiction of the Sandiganbayan. People v. Montejo is an exception that Sanchez v. Demetriou recognized.

Thus, the jurisdiction of the Sandiganbayan over this case will stand or fall on this test: Does the Information allege a close or intimate connection between the offense charged and Crisostomo's public office?

The Information passes the test.

The Information alleged that Crisostomo 'a public officer, being then a member of the Philippine National Police (PNP) stationed at Solano Police Station and a jailer thereat, taking advantage of his public position and thus committing the offense in relation to his office conspired, confederated and connived with his co-accused who are inmates of the Solano Municipal Jail to kill Renato, 'a detention prisoner.

If the victim were not a prisoner, the Information would have to state particularly the intimate relationship between the offense charged and the accused public officer's office to vest jurisdiction on the Sandiganbayan. This is not the case here. The law restrains the liberty of a prisoner and puts him under the custody and watchful eyes of his jail guard. Again, the two-fold duties of a jail guard are to insure the safe custody and proper confinement of persons detained in the jail. The law restricts access to a prisoner. However, because of the very nature of the work of a jail guard, he has access to the prisoner. Crisostomo, as the jail guard, could not have conspired with the inmates to murder the detention prisoner in his cell if Crisostomo were not a 'jailer.

The Information accused Crisostomo of murdering a detention prisoner, a crime that collides directly with Crisostomo's office as a jail guard who has the duty to insure the safe custody of the prisoner. Crisostomo's purported act of killing a detention prisoner, while irregular and contrary to Crisostomo's duties, was committed while he was performing his official functions. The Information sufficiently apprised Crisostomo that he stood accused of committing the crime in relation to his office, a case that is cognizable by the Sandiganbayan, not the Regional Trial Court. There was no prejudice to Crisostomo's substantive rights.

Assuming that the Information failed to allege that Crisostomo committed the crime in relation to his office, the Sandiganbayan still had jurisdiction to try the case. The Information was filed with the

Sandiganbayan on 19 October 1993. Deloso v. Domingo,[8] promulgated on 21 November 1990, did not require that the information should allege that the accused public officer committed the offense in relation to his office before the Sandiganbayan could assume jurisdiction over the case. The ruling in Deloso v. Domingo relied solely on PD 1606.

Aguinaldo v. Domagas,[9] promulgated on 26 September 1991, modified Deloso v. Domingo. Aguinaldo v. Domagas clarified that offenses specified in Section 4(a)(2) of PD 1606, as amended by PD 1861, must be committed by public officers and employees in relation to their office and the information must allege this fact. The succeeding cases of Sanchez v. Demetriou[10] and Natividad v. Felix,[11] reiterated the Aguinaldo v. Domagas ruling.

However, despite the subsequent cases clarifying Deloso v. Domingo, the Court in Republic v. Asuncion,[12] promulgated on 11 March 1994, applied the ruling in Deloso v. Domingo. Since the effects of the misapprehension of Deloso v. Domingo doctrine were still persistent, the Court set out the following directives in Republic v. Asuncion:

The dismissal then of Criminal Case No. Q-91-23224 solely on the basis of Deloso vs. Domingo was erroneous. In the light of Aguinaldo and Sanchez, and considering the absence of any allegation in the information that the offense was committed by private respondent in relation to his office, it would even appear that the RTC has exclusive jurisdiction over the case. However, it may yet be true that the crime of homicide charged therein was committed by the private respondent in relation to his office, which fact, however, was not alleged in the information probably because Deloso vs. Domingo did not require such an allegation. In view of this eventuality and the special circumstances of this case, and to avoid further delay, if not confusion, we shall direct the court a quo to conduct a preliminary hearing in this case to determine whether the crime charged in Criminal Case No. Q-91-23224 was committed by the private respondent in relation to his office. If it be determined in the affirmative, then it shall order the transfer of the case to the Sandiganbayan which shall forthwith docket and proceed with the case as if the same were originally filed with it. Otherwise, the court a quo shall set aside the challenged orders, proceed with the trial of the case, and render judgment thereon.

Republic v. Asuncion ordered the trial court to conduct a preliminary hearing to determine whether the accused public officer committed the crime charged while performing his office. If so, the trial court must order the transfer of the case to the Sandiganbayan as if the same were originally filed with the Sandiganbayan.

In the present case, the Information was filed with the Sandiganbayan upon the recommendation of the Office of the Deputy Ombudsman in a Resolution dated 30 June 1993. That Crisostomo committed the crime in relation to his office can be gleaned from the Deputy Ombudsman's resolution as it stated that: (1) Crisostomo was the jail

guard on duty at the time that Renato was killed; (2) from the time that Crisostomo assumed his duty up to the discovery of Renato's body, no one had entered the jail and no one could enter the jail, as it was always locked, without the permission of the jail guard; (3) the key is always with the jail guard; (4) Renato sustained severe and multiple injuries inflicted by two or more persons indicating conspiracy; and (5) the relative position of the jail guard to the cell is in such a way that any activity inside the cell could be heard if not seen by the jail guard.

Based on the foregoing findings, as well as on the Deloso v. Domingo ruling and the Court's instructions in Republic v. Asuncion, the Sandiganbayan had every reason to assume jurisdiction over this case. Crisostomo waited until the very last stage of this case, the rendition of the verdict, before he questioned the Sandiganbayan's jurisdiction. Crisostomo is already estopped from questioning the Sandiganbayan's jurisdiction.[13]

Crisostomo's Guilt was not Proven Beyond Reasonable Doubt

In the exercise of the Court's judicial discretion, this petition for certiorari will be treated as an appeal from the decision of the Sandiganbayan to prevent the manifest miscarriage of justice[14] in a criminal case involving a capital offense. An appeal in a criminal case opens the entire case for review.[15] The reviewing tribunal can correct errors though unassigned in the appeal, or even reverse the lower court's decision on grounds other than those the parties raised as errors.[16]chanroblesvirtuallawlibrary

In this case, the prosecution had the burden to prove first, the conspiracy to murder Renato, and second, Crisostomo's complicity in the conspiracy. The prosecution must prove that Renato's death was not the result of suicide but was produced by a deliberate intent to kill him with the attendant circumstances that would qualify the killing to murder. Since Crisostomo had no direct hand in the killing of Renato, the conviction could only be sustained if the murder was carried out through a conspiracy between Crisostomo and his co-accused, the inmates. It must be proven beyond reasonable doubt that Crisostomo's action and inaction were all part of a scheme to murder Renato.

Renato was Killed with Deliberate Intent

To prove that Renato's death is a case of homicide or murder, there must be incontrovertible evidence, direct or circumstantial, that he was deliberately killed.[17] Intent to kill can be deduced from the weapons used by the malefactors, the nature, location and number of wounds sustained by the victim and the words uttered by the malefactors before, at the time or immediately after the killing of the victim.[18] If the victim dies because of a deliberate act of the malefactor, intent to kill is conclusively presumed.[19]chanroblesvirtuallawlibrary

The prosecution established that Renato did not commit suicide. Witnesses for the prosecution vouched that Renato was in good health

prior to his death. Calingayan, the sole witness for the defense, did not point out that there was any thing wrong with Renato prior to his death. The autopsy and exhumation reports debunked the defense's theory that Renato hanged himself to death. Renato's injuries were so massive and grave that it would have been impossible for these injuries to have been self-inflicted by Renato.

The extent of Renato's injuries indicates the perpetrators' deliberate intent to kill him. Dr. Ruben M. Agobung (Dr. Agobung'), the NBI Medico Legal Officer[20] who exhumed and re-autopsied Renato's body, stated in his affidavit[21] that Renato sustained several external and internal injuries, the most significant of which are the ruptured liver, torn messentery and torn stomach. The injuries caused massive intra-abdominal hemorrhage that ultimately caused Renato's death. Dr. Agobung further declared that Renato's injuries could bring about death in a matter of minutes to a few hours from the time of infliction, if not promptly and properly attended to by a competent surgeon.

Renato's internal injuries were so severe that the injuries could not have been sustained prior to his detention at the Solano Municipal Jail. If this were so, Renato would have experienced continuous and severe body pains and he would have fallen into shock, which could have been obvious even to those who are not doctors. Dr. Agobung also concluded that Renato's injuries could have been inflicted by the application of considerable force with the use of a hard and rough surface as well as hard smooth surface instruments, fist blows included.

While the blanket that was tied around Renato's neck caused abrasion and contusion on the neck area, these injuries, however, did not cause Renato's death because the blood vessels on his neck were still intact.[22] The Exhumation Report[23] and Exhumation Findings[24] stated that Renato died due to hemorrhagic shock, secondary to multiple internal organ injuries. These findings lead to the inevitable conclusion that Renato was killed with deliberate intent and his body was hanged just to simulate suicide.

Prosecution Failed to Prove Crisostomo's Involvement in the Killing

No direct evidence linked Crisostomo to the killing of Renato. The prosecution relied on circumstantial evidence to prove that there was a conspiracy to kill Renato and Crisostomo participated in carrying out the conspiracy. Circumstantial evidence consists of proof of collateral facts and circumstances from which the existence of the main fact may be inferred according to reason and common experience.[25] Section 4, Rule 133 of the Revised Rules of Evidence states that circumstantial evidence is sufficient if: (a) there is more than one circumstance; (b) the facts from which the inferences are derived are proven; (c) the combination of all the circumstances is such as to produce a conviction beyond reasonable doubt.

In convicting Crisostomo, the Sandiganbayan cited the following circumstantial evidence:

1. The deceased, Renato Suba, was brought to the police

station on the night of February 13, 1989 for investigation for allegedly hitting the head of a certain Diosdado Lacangan; and that after investigation, the deceased was brought to the detention cell (tsn, hearing of April 21, 1994, pp. 5-11).

2. On the following day at 5:00 oclock in the afternoon, the deceased was visited by his brother, Rizalino Suba; that the deceased asked his brother to bring him a blanket, toothbrush, clothes and foods (ibid, pp. 13-14).

3. Rizalino Suba left the municipal jail on February 14, 1989, at almost 5:20 p.m., while his other brother, Rolando, brought the things to the deceased in jail; and that Rolando left their house at about 5:30 p.m. and came back at 6:00 oclock in which Rizalino asked him (Rolando) if he (Renato Suba) was able to finish the food that he sent and he answered in the affirmative (ibid, pp. 16, 18-19).

4. At that time, the deceased was in good health and in good condition and that he was not complaining anything about his body; and that the deceased was then 26 years old, single and had finished advance ROTC and worked in a logging concession (ibid, pp. 16-18).

5. Accused Mario Calingayan saw the deceased still alive lying down after 6:00 p.m. when he was about to take a bath; and that after taking a bath, he (witness) went to his cell and played cards with his three (3) cellmates (whose names he could not recall) for about four (4) hours (tsn, hearing of April 4, 1995, pp. 16-17).

6. At around 9:00 oclock of the same day, Mr. Baldovino, a barangay councilman, informed them that they should go to the municipal building as per request of the policemen; that Rizalino Suba, first asked his uncle David Suba and Manuel Rollo, a barangay councilman, to accompany him; that they arrived at the municipal building at 9:10 p.m. and they saw that the deceased was already lying dead on the cement floor outside the cell 1 in the municipal building (tsn, hearing of April 21, 1994, pp. 20-22).

7. Accused Mario Calingayan was detained with five (5) others at the second cell among four (4) cells in the jail; that the deceased, Renato Suba, was detained alone at the third cell (tsn, hearing of April 4, 1995, pp. 6-7).

8. The four (4) cells, although having their own separate doors, made of iron grills and equipped each with a padlock, were always open; that it was up to them whether to close the doors; that the keys of the padlocks are held by the guard; and that any detention prisoner could go to any cell inside the prison (ibid, pp. 7-8, 21, 23).

9. There was a common door located in front, leading inside to the cells which no one could enter because it is padlocked, except with the jail guard's permission; and that the comfort room is located in the 4th cell which is not equipped with a

padlock so that if you want to go to the comfort room, you do not anymore need the key in the office of the jail guard (ibid, p. 22).

10. There is only one guard assigned in the cells and accused Edgar Crisostomo was the one who was rendering duty at the time of the death of the victim (ibid, pp. 9, 13).

11. There was no other person who was admitted on February 12, 13 and 14, 1989, and there was no instance when Suba was brought out of the prison cell from the time he was detained on February 14, 1989 (ibid, p. 29).

12. The persons who were detained together with the deceased at the time of his death were released without any investigation having been conducted by the local police (tsn, hearing of April 21, 1994, pp. 28-29).

13. The apparent inconsistency in the list of detainees/prisoners dated February 20, 1989 (Exhibit 'I') and the police blotter (Exhibits 'J and 'J-1') whereby in the former there were eight prisoners on February 14, 1989 including the victim but only six were turned over by accused Crisostomo to the incoming jail guard after the death of the victim; the list contains nine (9) detainees/prisoners on February 15, 1989 which includes the victim, who was then dead, while the police blotter shows that only six prisoners were under their custody. Why the apparent inconsistency?

14. Accused Mario Calingayan's claim that he was detained on February 12, 1989, which is contrary to the master list of detainees showing that he was detained only on February 14, 1989 (tsn, hearing of April 4, 1995, p. 19).

15. Accused Mario Calingayan's allegation that when Renato Suba was brought outside, he saw that he hanged himself with a thin blanket (tsn, hearing of April 4, 1995, pp. 12-13) which was what the policemen also told the brother of the victim (tsn, hearing of April 21, 1994, pp. 23-24).

16. After the prosecution rested its case and after co-accused Mario Calingayan was finished with his testimony in court, accused Edgar Crisostomo jumped bail and up to this day had remained at large (Rollo, pp. 297-298, 305).

17. The fact that accused Dominador C. Dela Cruz, Efren M. Perez, Raki T. Anggo, Randy A. Lumabo and Rolando M. Norberte are also still at-large.[26]chanroblesvirtuallawlibrary

The Sandiganbayan also relied on the Memorandum Report[27] dated 22 October 1991 of Oscar Oida, then National Bureau of Investigation (NBI') Regional Director for Region II, who evaluated the NBI's investigation of the case. The Sandiganbayan quoted the following portions of the report:

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5. That when he [victim] was brought to the Solano Municipal

Jail at around 12:00 midnight on 14 February 1989 (the same was corrected by witness Oscar Oida to be February 13, 1989 when he testified in open court), he was accompanied by his brother, Rizalino Suba, his cousin, Rodolfo Suba and Brgy. Councilman Manuel Rulloda in good physical condition with no injuries[;]

6. That when Luis Suba, father of the victim, Renato Suba, visited him in jail at around 8:00 a.m., on February 14, 1989 and brought food for his breakfast, he was in good physical condition, and did not complain of any physical injury or pain. In fact, he was able to eat all the food[;]

7. That when Rizalino Suba, brother of the victim, visited the latter at around 5:00 oclock p.m. on 14 February 1989, victim was in good spirit and never complained of any injury or bodily pain. He was in good physical condition. He even requested that he be brought his clothes, beddings and food[;]

8. That when Rolando Suba, another brother of victim, brought the clothes, bedding and food as requested by the latter at around 6:00 oclock p.m. on 14 February 1989, he was in good physical condition and did not complain of any injury or body pain[;]

9. That the good physical condition of victim, Renato Suba was even corroborated by his four co-inmates, namely, Arki Anggo, Randy A. Lumabo, Rolando M. Norberte and Mario B. Calingayan and by the jailer, Pat. Edgar T. Crisostomo, when he was placed under detention in the Solano Municipal Jail;

10. That the jailer Pat. Edgar Crisostomo from the time he assumed his tour of duty from 4:00 oclock p.m. on 14 February 1989, up to the time the victim was discovered allegedly dead and hanging inside the jail at 9:00 oclock p.m. on that same day, nobody entered the jail and no one would enter said jail, as it was always locked, without the permission of the jailer. The key is always with the jailer;

11. That the only companions of the victim at the time of the discovery of his death on 14 February 1989 at around 9:00 p.m. were his six (6) co-inmates namely: Dominador C. dela Cruz, Edren M. Perez, Raki T. Anggo, Randy A. Luma[b]o, Rolando M. Norbert[e] and Mario Calingayan;

12. That definitely the cause of death was not suicide by hanging but due to several injuries sustained by the victim. The most significant and remarkable of which are the ruptured liver, torn messentery and a torn stomach which injuries resulted into massive intra-abdominal hemorrhage that ultimately caused the death of said victim per autopsy examination;

13. That said injuries can bring about death in a matter of minutes to a few hours if not promptly and properly

attended by a competent surgeon;

14. That said injuries could not have been sustained by victim before he was detained at the Solano Municipal Jail as he could have been experiencing continuous severe pain which can easily be observed by the policemen who arrested him on 14 February 1989 at around 12:00 midnight and therefore should have been brought to the hospital and not confined in the detention cell;

15. That the several injuries sustained by victim were caused by hard rough-surfaced as well as hard smooth surfaced instruments, fist blows included;

16. That the multiple injuries and the gravity of the injuries sustained by victim indicate that they were inflicted by more than two persons;

17. That the nature of the injuries sustained by victim were almost in one particular part of the body, shown by the fact that the internal organs badly damaged were the liver, messentery and stomach indicating that the victim was defenseless and helpless thus affording the assailants to pounce on continuously with impunity almost on one spot of the body of the victim. The victim could have been held by two or more assailants while the others were alternately or giving victim blows on his body with hard rough surfaced as well as hard smooth surfaced instruments, fist blows included;

18. That with the location and gravity of the injuries sustained by victim, the persons who inflicted the injuries know fully well that victim will die and knew the consequences of their acts;

19. That the motive was revenge, as victim before he was killed, hit in the head a certain Diosdado Lacangan with a wood causing serious injury. Lacangan was in serious condition at the time victim was killed[;]

20. That the claims of the Solano police and the six (6) co-inmates of victim that the latter committed suicide by hanging is only a cover up to hide a heinous offense[;]

21. That the extreme silence of the suspects regarding the death of victim is so deafening that it established only one thing, conspiracy. It is unusual for a person not to volunteer information as to who could be the author of the offense if he is not a participant to a heinous offense particularly in this case where the circumstances show that there can be no other person responsible for the death of the victim except the suspects in this instant case[;]

22. That the victim was killed between 6:00 PM to 9:00 PM on 14 February 1989 inside the Solano Municipal Jail[;]

xxx

The relative position of the jailer to the cell where victim was killed was such that the jailer and the policemen present, could hear if not see what was going inside the cell at the time the victim was killed. The injuries sustained by victim could not be inflicted without victim shouting and crying for help. Even the assailants when they inflicted these injuries on victim could not avoid making loud noises that could attract the attention of the police officers present. Conspiracy to kill the victim among the inmates and the police officers was clearly established from the circumstances preceding and after the killing of victim.[28]chanroblesvirtuallawlibrary

In sum, the Sandiganbayan believed that Crisostomo took part in the conspiracy to kill Renato because of these three circumstances: 1) Crisostomo as the jail guard on duty at the time of Renato's killing had in his possession the keys to the main door and the cells; (2) Crisostomo was in such a position that he could have seen or heard the killing of Renato; and (3) there are discrepancies between the list of detainees/prisoners and the police blotter. According to the Sandiganbayan, there is a prima facie case against Crisostomo.

Except for the extensive injuries that Renato's body bore, there is no other evidence that proves that there was a prior agreement between Crisostomo and the six inmates to kill Renato. In People v. Corpuz,[29] one of the inmates killed by the other inmates sustained stab wounds that were possibly inflicted by ten persons. The Court ruled that conspiracy could not be inferred from the manner that the accused inmates attacked their fellow inmate because there was no sufficient showing that all the accused inmates acted pursuant to a previous common accord. Each of the accused inmates was held liable for his individual act.

Although no formal agreement is necessary to establish conspiracy because conspiracy may be inferred from the circumstances attending the commission of the crime, yet conspiracy must be established by clear and convincing evidence.[30] Even if all the malefactors joined in the killing, such circumstance alone does not satisfy the requirement of conspiracy because the rule is that neither joint nor simultaneous action is per se sufficient proof of conspiracy.[31] Conspiracy must be shown to exist as clearly and convincingly as the commission of the offense itself.[32]chanroblesvirtuallawlibrary

Thus, even assuming that Renato was simultaneously attacked, this does not prove conspiracy. The malefactors who inflicted the fatal injuries may have intended by their own separate acts to bring about the death of the victim.[33] No evidence was presented to show that Crisostomo and the inmates planned to kill Renato or that Crisostomo's overt acts or inaction facilitated the alleged plan to kill Renato. The prosecution had the burden to show Crisostomo's intentional participation to the furtherance of the common design and purpose.

The pieces of circumstantial evidence are not sufficient to create a prima facie case against Crisostomo. When the three circumstances are examined with the other evidence on record, it becomes all the more clear that these circumstances do not lead to a logical

conclusion that Crisostomo lent support to an alleged conspiracy to murder Renato.

First, while Crisostomo as jail guard had in his possession the keys to the main door and individual cells, there is no proof that Crisostomo allowed an outsider inside the prison. Calingayan, the sole witness for the defense, testified that no new detainee was admitted from 13 to 14 of February 1989.[34] The NBI Report[35] relied upon by the Sandiganbayan confirms Calingayan's testimony that nobody entered the jail and that Renato's only companions inside the jail were the six inmates.[36]chanroblesvirtuallawlibrary

There is also no proof that Crisostomo purposely left the individual cells open to allow the inmates to attack Renato who was alone in the third cell. Calingayan, who was detained ahead of Renato,[37] testified that while each of the four cells had a padlock, the cells had always been kept open.[38] The inmates had always been allowed to enter the cells and it was up to the inmates to close the doors of the cells.[39] The inmates could freely go to the fourth cell, which was the inmates' comfort room so that they would no longer ask for the key from the jail guard every time the inmates would use the comfort room.[40]chanroblesvirtuallawlibrary

Second, the Sandiganbayan should not have absolutely relied on the NBI Report[41] stating that Crisostomo as jail guard was in such a position that he could have seen or heard the killing. The prosecution failed to establish that Crisostomo actually saw and heard the killing of Renato.

Based on Calingayan's testimony, it was not impossible for Crisostomo not to have actually seen and heard the killing of Renato. On cross-examination, Calingayan testified that all of the cells were in one line.[42] Crisostomo's office was at the left side of the cells about 15 meters away from cell number two, the cell where Calingayan was detained.[43] Hollow blocks from the floor to the ceiling separated each of the four cells.[44] With the partition, an inmate in one cell could not see what was happening in the other cells.[45] Calingayan further testified that Renato's body was in a dark place,[46] as it was lighted from outside only by a bulb 'at the alley, 'at the corridor.[47]chanroblesvirtuallawlibrary

Since Renato's body was found in cell number four, this would make the distance between Crisostomo's office and the crime scene more than 15 meters. Crisostomo could not have had a full view of cell number four because of the distance between Crisostomo's office and cell number four, the partitions of the four cells and poor lighting in the jail.

Calingayan's description of the jail, the cells, the location of Renato's body and Crisostomo's actual position was not contradicted by the prosecution. There is no other evidence on record that describes the layout and conditions of the jail at the time of Renato's death.

The prosecution had the burden to present evidence that Crisostomo indeed saw and heard Renato's killing and Crisostomo consented to the killing as part of the plan to kill Renato. The absence of such

evidence does not preclude the possibility that Renato was covertly killed and the sounds were muffled to conceal the crime from Crisostomo, the jail guard. Or Crisostomo as jail guard was simply negligent in securing the safety of the inmates under his custody. If Crisostomo were negligent, this would be incompatible with conspiracy because negligence denotes the absence of intent while conspiracy involves a meeting of the minds to commit a crime.[48] It was the prosecution's burden to limit the possibilities to only one: that Crisostomo conspired with the inmates to kill Renato. The prosecution failed to do so.

Third, the prosecution was not clear as to the implication of the discrepancies between the list of 'detainees/prisoners' and police blotter to the conspiracy to murder Renato. The prosecution did not even pinpoint which of the two documents is the accurate document. The prosecution merely asked: why the apparent inconsistency?[49]chanroblesvirtuallawlibrary

Courts must judge the guilt or innocence of the accused based on facts and not on mere conjectures, presumptions or suspicions.[50]The inconsistency between the two documents without anything more remains as merely that ' an inconsistency. The inconsistency does not even have any bearing on the prosecution's conspiracy theory. The NBI Report and Calingayan's testimony stated that six inmates were with Renato inside the jail. This was also the same number of inmates turned over by Crisostomo to the incoming jail guard after Renato's death.[51]chanroblesvirtuallawlibrary

The alleged motive for Renato's killing was to avenge the attack on Lacangan who was then in a serious condition because Renato hit him on the head with a piece of wood. No evidence was presented to link Crisostomo to Lacangan or to show what compelling motive made Crisostomo, a jail guard, abandon his duty and instead facilitate the killing of an inmate under his custody. Motive is generally held to be immaterial because it is not an element of the crime.[52] However, motive becomes important when the evidence on the commission of the crime is purely circumstantial or inconclusive.[53] Motive is thus vital in this case.

Clearly, the Sandiganbayan had no basis to convict Crisostomo because the prosecution failed to produce the evidence necessary to overturn the presumption of innocence. The insufficiency of evidence was the same reason why the National Police Commission dismissed the administrative case for grave misconduct (murder) against Crisostomo on 24 October 1990.[54] The circumstances in this case did not constitute an unbroken chain that would lead to a reasonable conclusion that Crisostomo played a role in the inmates' supposed preconceived effort to kill Renato. Thus, Crisostomo must be acquitted.

The 'deafening silence of all of the accused does not necessarily point to a conspiracy. In the first place, not all of the accused remained silent. Calingayan put himself on the witness stand. Calingayan further claimed that the Solano police investigated him and his handwritten statements were taken the morning following Renato's death.[55] Secondly, an accused has the constitutional right to remain silent and

to be exempt from being compelled to be a witness against himself.[56]chanroblesvirtuallawlibrary

A judgment of conviction must be predicated on the strength of the evidence for the prosecution and not on the weakness of the evidence for the defense.[57] The circumstantial evidence in this case is not sufficient to create a prima facie case to shift the burden of evidence to Crisostomo. Moreover, Calingayan's testimony inured to Crisostomo's favor. The supposed waiver of presentation of evidence did not work against Crisostomo because the prosecution failed to prove Crisostomo's guilt beyond reasonable doubt.

In Salvatierra v. CA,[58] upon ruling for the defendants' acquittal, the Court disregarded the issue of whether the defendants jumped bail for failing to attend trial and whether their absence should be considered as flight and as evidence of guilt. Even with this ruling in Salvatierra v. CA, which is applicable to this case, and Crisostomo's failure to question the violation of his right to procedural due process before the Court, we cannot simply ignore the Sandiganbayan's grave abuse of discretion.

The records show that the Sandiganbayan set the hearing of the defense's presentation of evidence on 21, 22 and 23 June 1995. The 21 June 1995 hearing was cancelled because of 'lack of quorum in the regular membership of the Sandiganbayan's Second Division and upon the agreement of the parties.[59] The hearing was reset the next day, 22 June 1995. Crisostomo and his counsel failed to attend the 22 June 1995 hearing. The Sandiganbayan, on the very same day, issued an order[60] directing the issuance of a warrant for the arrest of Crisostomo and ordering the confiscation of his surety bond. The order further declared that Crisostomo had waived his right to present evidence because of his non-appearance at 'yesterday's and today's scheduled hearings.[61] The Sandiganbayan terminated the trial and gave the parties thirty days within which to file their memoranda, after which, with or without the memoranda, the case would still be deemed submitted for decision.

The Sandiganbayan's error is obvious. Strictly speaking, Crisostomo failed to appear only on the 22 June 1995 hearing. Crisostomo's appearance on the 21 June 1995 hearing would not have mattered because the hearing on this date was cancelled for lack of quorum of justices in the Sandiganbayan's Second Division.

Under Section 2(c), Rule 114 and Section 1(c), Rule 115 of the Rules of Court, Crisostomo's non-appearance during the 22 June 1995 trial was merely a waiver of his right to be present for trial on such date only and not for the succeeding trial dates.[62] Section 1(c) of Rule 115 clearly states that:

xxx The absence of the accused without any justifiable cause at the trial on a particular date of which he had notice shall be considered a waiver of his right to be present during that trial. When an accused under custody had been notified of the date of the trial and escapes, he shall be deemed to have waived his right to be present on said date and on all subsequent trial

dates until custody is regained.

Moreover, Crisostomo's absence on the 22 June 1995 hearing should not have been deemed as a waiver of his right to present evidence. While constitutional rights may be waived, such waiver must be clear and must be coupled with an actual intention to relinquish the right.[63] Crisostomo did not voluntarily waive in person or even through his counsel the right to present evidence. The Sandiganbayan imposed the waiver due to the agreement of the prosecution, Calingayan, and Calingayan's counsel.

In criminal cases where the imposable penalty may be death, as in the present case, the court is called upon to see to it that the accused is personally made aware of the consequences of a waiver of the right to present evidence.[64] In fact, it is not enough that the accused is simply warned of the consequences of another failure to attend the succeeding hearings.[65] The court must first explain to the accused personally in clear terms the exact nature and consequences of a waiver.[66] Crisostomo was not even forewarned. The Sandiganbayan simply went ahead to deprive Crisostomo of his right to present evidence without even allowing Crisostomo to explain his absence on the 22 June 1995 hearing.

Clearly, the waiver of the right to present evidence in a criminal case involving a grave penalty is not assumed and taken lightly. The presence of the accused and his counsel is indispensable so that the court could personally conduct a searching inquiry into the waiver.[67]Moreover, the searching inquiry must conform to the procedure recently reiterated in People v. Beriber,[68] to wit:

1. The trial court shall hear both the prosecution and the accused with their respective counsel on the desire or manifestation of the accused to waive the right to present evidence and be heard.

2. The trial court shall ensure the attendance of the prosecution and especially the accused with their respective counsel in the hearing which must be recorded. Their presence must be duly entered in the minutes of the proceedings.

3. During the hearing, it shall be the task of the trial court to

a. ask the defense counsel a series of question[s] to determine whether he had conferred with and completely explained to the accused that he had the right to present evidence and be heard as well as its meaning and consequences, together with the significance and outcome of the waiver of such right. If the lawyer for the accused has not done so, the trial court shall give the latter enough time to fulfill this professional obligation.

b. inquire from the defense counsel with conformity of the accused whether he wants to present evidence or submit a memorandum elucidating on the contradictions and insufficiency of the prosecution evidence, if any

or in default thereof, file a demurrer to evidence with prior leave of court, if he so believes that the prosecution evidence is so weak that it need not even be rebutted. If there is a desire to do so, the trial court shall give the defense enough time for this purpose.

c. elicit information about the personality profile of the accused, such as his age, socio-economic status, and educational background, which may serve as a trustworthy index of his capacity to give a free and informed waiver.

d. all questions posed to the accused should be in a language known and understood by the latter, hence, the record must state the language used for this purpose as well as reflect the corresponding translation thereof in English.

If no waiver of the right to present evidence could be presumed from Crisostomo's failure to attend the 22 June 1995 hearing, with more reason that flight could not be logically inferred from Crisostomo's absence at that hearing. Crisostomo's absence did not even justify the forfeiture of his bail bond. A bail bond may be forfeited only in instances where the presence of the accused is specifically required by the court or the Rules of Court and, despite due notice to the bondsmen to produce him before the court on a given date, the accused fails to appear in person as so required.[69] Crisostomo was not specifically required by the Sandiganbayan or the Rules of Court to appear on the 22 June 1995 hearing. Thus, there was no basis for the Sandiganbayan to order the confiscation of Crisostomo's surety bond and assume that Crisostomo had jumped bail.

Prior to his absence on the 22 June 1995 hearing, Crisostomo had regularly attended the hearings of the case. When it was Crisostomo's turn to present his evidence, Atty. Anecio R. Guades (Atty. Guades'), Crisostomo's former counsel, instructed Crisostomo to wait for the notice of hearing from him and the Sandiganbayan. Crisostomo did not receive any notice from the Sandiganbayan or from Atty. Guades who disappeared without informing Crisostomo of his new office address. Upon notification of the promulgation of the case scheduled on 28 November 2000, Crisostomo voluntarily appeared before the Sandiganbayan. Crisostomo then terminated the services of Atty. Guades and engaged the services of another counsel. In the omnibus motion for new trial filed by Crisostomo's new counsel, Crisostomo denied that he went into hiding. If given the chance, Crisostomo would have presented his pay slips and certificates of attendance to prove that he had been reporting for work at the Police Station in Solano, Nueva Vizcaya.[70]chanroblesvirtuallawlibrary

We could not absolutely fault the Sandiganbayan for not correcting its 22 June 1995 Order. The Sandiganbayan lost the opportunity to review the order when Crisostomo's new counsel changed his legal strategy by withdrawing the omnibus motion for new trial and instead sought the nullification of the Sandiganbayan's decision for lack of jurisdiction

over the case.

However, the withdrawal of the omnibus motion could not erase the Sandiganbayan's violation of Crisostomo's right to procedural due process and Atty. Guades' gross negligence. Atty. Guades failed to protect his client's interest when he did not notify Crisostomo of the scheduled hearings and just vanished without informing Crisostomo and the Sandiganbayan of his new office address. The 22 June 1995 Order was served on Atty. Guades but he did not even comply with the directive in the Order to explain in writing his absence at the 21 and 22 June 1995 hearings. Atty. Guades did not file the memorandum in Crisostomo's behalf required by the same Order. Atty. Guades did not also question the violation of Crisostomo's right to procedural due process. The subsequent notices of hearing and promulgation were not served on Atty. Guades as he could not be located in the building where his office was located.[71]chanroblesvirtuallawlibrary

Clearly, Atty. Guades's negligence was so gross that it should not prejudice Crisostomo's constitutional right to be heard,[72] especially in this case when the imposable penalty may be death. At any rate, the remand of the case is no longer necessary.[73] The prosecution's evidence failed to overturn the constitutional presumption of innocence warranting Crisostomo's acquittal.

The Sandiganbayan imposed an indeterminate sentence on Crisostomo. The Indeterminate Sentence Law (ISL') is not applicable to persons convicted of offenses punished with the death penalty or reclusion perpetua.[74] Since Crisostomo was accused of murder, the penalty for which is reclusion temporal in its maximum period to death, the Sandiganbayan should have imposed the penalty in its medium period since it found no aggravating circumstance.[75] The medium period of the penalty is reclusion perpertua.

Calingayan must be also Acquitted

The Sandiganbayan cited only two circumstances as evidence of Calingayan's guilt. The Sandiganbayan held that Calingayan's claim that he was detained on 12 February 1989 is contrary to the master list of detainees showing that Calingayan was detained on 14 February 1989.[76] Second is Calingayan's allegation that 'when Renato Suba was brought outside, he saw that he hanged himself with a thin blanket, which was what the policemen also told the brother of the victim.[77] The Sandiganbayan did not elaborate on this circumstance. The Sandiganbayan was apparently suspicious of Renato's knowledge of the material that was used to hang Renato.

Renato could have been killed by two or more inmates or possibly even by all of the inmates. However, since no conspiracy was proven to exist in this case, the perpetrators of the crime needed to be identified and their independent acts had to be proven.[78] The two circumstances that were held against Calingayan are not sufficient proof that Calingayan was one of the inmates who killed Renato. Thus, Calingayan must be also acquitted.

Section 11(a) of Rule 122 of the Rules of Court provides that '[a]n

appeal taken by one or more [of] several accused shall not affect those who did not appeal, except insofar as the judgment of the appellant court is favorable and applicable to the latter. In this case, only Crisostomo questioned the jurisdiction and decision of the Sandiganbayan. However, the evidence against Crisostomo and Calingayan are inextricably linked as their conviction hinged on the prosecution's unproven theory of conspiracy. Thus, Crisostomo's acquittal, which is favorable and applicable to Calingayan, should benefit Calingayan.[79]chanroblesvirtuallawlibrary

WHEREFORE, the Decision of the Sandiganbayan in Criminal Case No. 19780 convicting appellant EDGAR CRISOSTOMO and co-accused MARIO B. CALINGAYAN is hereby REVERSED. EDGAR CRISOSTOMO and co-accused MARIO B. CALINGAYAN are ACQUITTED of the crime of murder and ordered immediately released from prison, unless held for another lawful cause. The Director of Prisons is directed to report to this Court compliance within five (5) days from receipt of this Decision. No costs.

SO ORDERED.

Davide, Jr., C.J., (Chairman), Quisumbing, Ynares-Santiago and Azcuna, JJ., concur.

Republic of the PhilippinesSUPREME COURT

Manila

THIRD DIVISION

G.R. No. 157757               June 28, 2005

ELSIE T. LAVADOR, petitioner, vs."J" MARKETING CORPORATION AND ROGELIO U. SOYAO, respondents.

D E C I S I O N

SANDOVAL-GUTIERREZ, J.:

For resolution is the petition for review on certiorari under Rule 45 of the 1997 Rules of Civil Procedure, as amended, assailing the Decision1 dated November 26, 2001 and the Resolution2 dated February 19, 2003 rendered by the Court of Appeals in CA-G.R. SP No. 66248, entitled "Elsie T. Lavador vs. National Labor Relations Commission (Fifth Division), J Marketing Corporation and/or Rogelio U. Soyao."

Records show that on January 7, 1991, Elsie T. Lavador, petitioner, was employed by "J" Marketing Corporation, respondent, as a daily paid worker. Eventually, she was promoted as assistant cashier in respondent’s branch office at Butuan City, receiving a monthly salary of P3,834.00.

Claiming that respondent failed to remit the P1,000.00 payment of Robert Braza; to issue official receipt for the P1,259.00 check payment of Chelito M. Delliva; and to apply the same to his account, respondent issued inter-office memoranda dated June 9, 1999 and August 23, 1999 charging petitioner with misappropriation and directing her to submit a written explanation. In the meantime, respondent reassigned her as receptionist.

On September 1, 1999, after evaluating the evidence against petitioner, respondent issued a notice terminating her services for loss of trust and confidence.

Immediately, she filed with the Office of the Labor Arbiter a complaint for illegal dismissal against respondent and Rogelio U. Soyao, its Executive Vice President and General Manager.

After the submission of the parties’ pleadings and position papers, the Labor Arbiter rendered a Decision dated December 31, 1999 finding that petitioner was not illegally dismissed from the service but ordering respondents to pay her P12,392.73 as salary differential and P1,239.27 attorney’s fees.lawphil.net

Upon appeal, the National Labor Relations Commission (NLRC) rendered a Decision dated April 17, 2001 affirming with modification the Decision of the Labor Arbiter in the sense that the award of salary differential and attorney’s fee is deleted.

Petitioner then filed a motion for reconsideration but was denied by the NLRC in a Resolution dated May 18, 2001, prompting her to file with the Court of Appeals a petition for certiorari, docketed as CA-G.R. SP No. 66248.

On November 26, 2001, the Appellate Court rendered a Decision affirming with modification the assailed NLRC Decision. While the said court upheld the termination of petitioner’s employment, however, it ordered respondents to pay her P10,000.00 as damages for violating her right to due process, thus:

"The records disclose that petitioner twice requested that a formal administrative investigation be conducted in order for her to properly defend herself from the accusations leveled against her. Despite her pleas and that of her counsel, private respondents refused to conduct a formal administrative investigation, proceeding instead to hastily dismiss petitioner on the basis of its own probe, including the letter-explanation of petitioner. While due process connotes merely the opportunity to be heard, We cannot agree that the said principle was complied with in the present case as compliance therewith appears to be merely superficial. The fact that the supposed clients-complainants of private respondents executed conflicting statements on the matter, the latter should have granted the request of petitioner in order to ferret out the truth.

x x x x x x

Perforce, private respondent corporation is hereby ordered to pay the latter indemnity for damages in the amount of P10,000.00 in accordance with the ruling of the High Court in the cases of Wenphil Corporation vs. NLRC (170 SCRA 69), Reta vs. NLRC (232 SCRA 613) and Better Buildings, Inc. vs. NLRC (283 SCRA 242).

WHEREFORE, premises considered, the present petition is hereby PARTIALLY GRANTED. The Resolutions dated April 17, 2001 and May 18, 2001 issued by public respondent National Labor Relations Commission in NLRC CA No. M-005395-2000 (RAB 13-09-00138-99) are hereby AFFIRMED with MODIFICATION in that respondent corporation is hereby ordered to pay petitioner indemnity for damages in the amount of P10,000.00 for violating here right to due process of law.

No pronouncement as to costs.

SO ORDERED."

On December 12, 2001, petitioner filed a motion for reconsideration, but was denied by the Appellate Court in a Resolution dated February 19, 2003.

Hence, this petition for review on certiorari.

The basic issue here is whether petitioner was deprived of her right to due process.

Section 2, Rule XXIII, Book V of the Implementing Rules of the Labor Code provides:

"RULE XXIIITERMINATION OF EMPLOYMENT

x x x

SEC. 2. Standards of due process; requirements of notice. – In all cases of termination of employment, the following standards of due process shall be substantially observed:

I. For termination of employment based on just causes as defined in Article 282 of the Code:

(a) A written notice served on the employee specifying the ground or grounds for termination, and giving to said employee reasonable opportunity within which to explain his side;

(b) A hearing or conference during which the employee concerned, with the assistance of counsel if the employee so desires, is given opportunity to respond to the charge, present his evidence or rebut the evidence presented against him; and

(c) A written notice of termination served on the employee indicating that upon due consideration of all the circumstances, grounds have been established to justify his termination.

In case of termination, the foregoing notices shall be served on the employee’s last known address.

x x x."

In Santos vs. San Miguel Corporation,3 we reiterated the well-entrenched rule that "(p)rocedural due process requires the employer to give the employee two notices. First is the notice apprising him of the particular acts or omissions for which his dismissal is sought. Second is the subsequent notice informing him of the employer’s decision to dismiss him."

In Homeowners Savings and Loan Association, Inc. vs. NLRC,4 we ruled:

"Actual adversarial proceeding becomes necessary only for clarification or when there is a need to propound searching questions to unclear witnesses. This is a procedural right which the employee must, however, ask for. 1avvphi1.zw+ It is not an inherent right."

It bears stressing that petitioner requested that an investigation be conducted but respondents vehemently refused. Clearly, petitioner was deprived of her right to due process.

On this point, our ruling in Agabon vs. National Labor Relations Commission,5 is relevant, thus:

"Procedurally, (1) if the dismissal is based on a just cause under Article 282, the employer must give the employee two written notices and a hearing or opportunity to be heard if requested by the employee before terminating the employment: a notice specifying the grounds for which dismissal is sought, a hearing or an opportunity to be heard and after hearing or opportunity to be heard, a notice of the decision to dismiss; x x x.

From the foregoing rules four possible situations may be derived: (1) the dismissal is for a just cause under Article 282 of the Labor Code, for an authorized cause under Article 283, or for health reasons under Article 284, and due process was observed; (2) the dismissal is without just or authorized cause but due process was observed; (3) the dismissal is without just or authorized cause and there was no due process; and (4) the dismissal is for just or authorized cause but due process was not observed. (emphasis supplied).

x x x x x x

In the fourth situation, the dismissal should be upheld. While the procedural infirmity cannot be cured, it should not invalidate the dismissal. However, employer should be held liable for non-compliance with the procedural requirements of due process.

x x x x x x

The violation of the petitioners’ right to statutory due process by the private respondent warrants the payment of indemnity in the form of nominal damages. The amount of such damages is addressed to the sound discretion of the court, taking into account the relevant circumstances. Considering the prevailing circumstances in the case at bar, we deem it proper to fix it at P30,000.00. We believe this form of damages would serve to deter employers from future violations of the statutory due process rights of employees. At the very least, it provides a vindication

or recognition of this fundamental right granted to the latter under the Labor Code and its Implementing Rules."

In this case, the dismissal of petitioner from the service is due to dishonesty or a just cause. But due process was not observed as no hearing was conducted despite her request. Thus, respondents should be held liable for violation of her right to due process and should pay her indemnity in the form of nominal damages, pursuant to our ruling in Agabon, which we fix at P20,000.00.6

WHEREFORE, the petition is GRANTED. The assailed Decision dated November 26, 2001 and Resolution dated February 19, 2003 of the Court of Appeals in CA-G.R. SP No. 66248 are hereby AFFIRMED with MODIFICATION in the sense that respondents are hereby ordered to pay petitioner P20,000.00 as nominal damages. No costs.

SO ORDERED.

Corona, and Garcia, JJ., concur.

Panganiban, (Chairman), J., reiterates his dissent in Agabon v. NLRC & Serrano v. NLRC that a violation of due process should be sanctioned by reinstatement and back wages, not merely nominal damages.

Carpio-Morales, J., no part.

Republic of the PhilippinesSUPREME COURT

Manila

THIRD DIVISION

G.R. No. 154078             May 6, 2005

EDGARDO D. MILLARES, petitioner, vs.PHILIPPINE LONG DISTANCE TELEPHONE CO., INC. AND AMBROSIO HUGO, respondents.

D E C I S I O N

SANDOVAL-GUTIERREZ, J.:

For resolution is a petition for review on certiorari under Rule 45 of the 1997 Rules of Civil Procedure, as amended, assailing the Decision1 dated April 16, 2002 and the Resolution2 dated June 26, 2002 rendered by the Court of Appeals in CA-G.R. SP No. 66611, entitled "Edgardo D. Millares vs. National Labor Relations Commission, Philippine Long Distance Telephone Co., Inc. and Ambrosio Hugo."

The facts as borne by the records are:

Sometime in May, 1989, Edgardo D. Millares, petitioner, was employed by the Philippine Long Distance Telephone Co., Inc. (PLDT), respondent company, as cable splicer helper. At the time of his dismissal from the service, he was a junior cable splicer at the OPSIM II, Tondo Exchange, receiving a monthly salary of P7,300.00.

On August 8, 1995, Ambrosio B. Hugo, Manager of respondent company's Tondo Exchange, received a complaint from Celestina Ignacio, a prospective telephone subscriber residing at 91-R Mahomas Compound, Tondo, Manila. She reported that on May 10, 1995, petitioner, for a service fee of P3,800.00, promised to install a telephone line at her residence but that he failed to do so; and that despite her demand, he refused to return to her said amount.

During the clarificatory hearing conducted by respondent company on August 19, 1995, petitioner denied that he knew Celestina Ignacio and that he received P3,800.00 from her. But eventually, he admitted his offense and promised to repay her the amount.

Thereafter, respondent company sent him two (2) separate inter-office memoranda (IOM) dated August 28, 1995 and September 6, 1995, charging him with willful violation of company rules and regulations and directing him to submit a written explanation. However, he refused and remained obstinate.

Meantime, on September 26, 1995, petitioner paid Celestina the amount of P3,800.00. Consequently, she executed a written retraction stating that she was forced to file a complaint against petitioner when he failed to pay his loan of P3,800.00.

Respondent company found petitioner guilty of extortion and serious misconduct. Consequently, he was dismissed from the service effective July 19, 1996.

Aggrieved, petitioner filed with the Labor Arbiter a complaint for illegal dismissal and damages against respondent and Ambrosio B. Hugo, docketed as NLRC NCR Case No. 00-10-06367-96.

In due course, the Labor Arbiter rendered a Decision dated April 30, 1999 holding that petitioner was illegally dismissed from employment and ordering respondent company to reinstate him to his former position and to pay him P263,901.08 representing his backwages, allowances and other benefits. The dispositive portion of the Decision reads:

"WHEREFORE, above premises duly considered, we find the dismissal of complainant as illegal.

Accordingly, respondent PLDT is hereby ordered to immediately reinstate complainant to his position as Junior Cable Splicer without loss of seniority and other privileges and to pay his full backwages inclusive of allowances and other benefits from the time of his dismissal on July 19, 1996 up to the date of his actual reinstatement, the award being tentatively computed as follows:

1. Backwages:

7/19/96 – 4/30/99 = 33.37 months

P 7,300.00 x 33.37

P243,601.00

2. 13th Month Pay:

1/12 of P243,601.0020,300.08

----------------

P263,901.08

The claim for damages is dismissed for lack of merit.

Individual respondent Ambrosio Hugo is absolved of any liability for he only acted in his official capacity as Manager.

SO ORDERED."

Upon appeal, the National Labor Relations Commission (NLRC) promulgated a Decision dated September 29, 2000 reversing the Arbiter's assailed Decision, thus:

"We find the instant appeal to be impressed with merit.

The act of soliciting money from a prospective telephone subscriber in exchange for an expeditious installation of telephone line is inherently unlawful and immoral, regardless of whether the solicitor has the capacity to make good his undertaking or not for as long as he is an employee of the telephone company, as what obtained in the case at bar. It constitutes grave misconduct by all standards, a just cause for termination under Article 281 of the Labor Code.

x x x       x x x

It is reversible error to rely heavily on the recantation made by Mrs. Ignacio. From all indications, the belated change of heart of Mrs. Ignacio was an afterthought purposely designed to facilitate the defense of appellee after she received full payment from him. Her recantation did not obliterate the liability of the appellee in the light of the investigation report of Mr. Reyes which deserves and should have been accorded full faith and credit being the result of an impartial and honest to goodness investigation conducted based on Mrs. Ignacio's letter-complaint. To honor the recantation is tantamount to condoning mockery of the law. At most, it may be treated as an instrument of falsehood, hence, must be ignored.

We likewise decline to yield to the claim of denial of due process. The issuance of the twin Inter Office Memoranda (IOM) dated August 28 and September 6, 1995, both of which herein appellee have refused to honor, readily impeach the veracity of this particular issue. These IOM's contained a detailed information relevant to the complaint of Mrs. Ignacio which are

sufficient to apprise the appellee of the nature of the accusation against him. He was given the opportunity to explain in writing his side of the controversy by virtue of those IOM's but he opted to remain silent. Due process does not require actual hearing but mere opportunity to be heard.

x x x       x x x

WHEREFORE, the decision appealed from is REVERSED and SET ASIDE. The appeal is GRANTED. The dismissal of complainant is affirmed.

SO ORDERED."

Petitioner then filed a motion for reconsideration but was denied by the NLRC in a Resolution dated May 31, 2001. Hence, he filed with the Court of Appeals a petition for certiorari, docketed as CA-G.R. SP No. 66611.

On April 16, 2002, the Appellate Court rendered a Decision affirming the assailed Decision of the NLRC, thus:

"The pivotal question is whether or not the NLRC gravely abused its discretion in finding that petitioner was validly terminated for a just cause.

x x x

Petitioner was given every opportunity to defend himself. He was asked to submit a written explanation why he should not be held liable for violating company regulations by negotiating with a subscriber for the facilitation of telephone installation in consideration of the amount of P3,800.00. IOM was given to him not just once but twice before he was served the termination letter. Notwithstanding that there was a ten-month gap between said notices, respondent PLDT validly effected petitioner's dismissal.

The denunciation of Mrs. Ignacio against the petitioner on separate occasions were given candidly, spontaneously and before she was influenced to recant after petitioner was compelled to return the money after receiving the IOM. While there is no hard and fast rule to determine the truthfulness of one's testimony, that which conforms, however, to the quotidian knowledge, observation and experience of man is often deemed to be reliable (People vs. Niño, 290 SCRA 155).

The State guarantees a worker's security of tenure which can well be his most precious economic right – thus, all efforts must be exerted to protect him from unjust deprivation of his job (Quijano vs. Mercury Drug Corp., 292 SCRA 109). However, the act of demanding monetary consideration in exchange for the promise to facilitate telephone transfer is, aside from being contrary to PLDT policies, constitutes serious misconduct punishable by dismissal under Article 282 of the Labor Code. Needless to say, PLDT has the right to protect itself against employees whose continued employment is detrimental to its interest.

x x x       x x x

WHEREFORE, premises considered, the petition is DENIED for lack of merit.

SO ORDERED."

On May 8, 2002, petitioner filed a motion for reconsideration, but was denied by the Appellate Court in a Resolution dated June 26, 2002.

Hence, this petition for review on certiorari.

Petitioner contends, among others, that the Court of Appeals seriously erred (1) in finding that there is substantial evidence to support his dismissal from the service; (2) in disregarding the retraction of Celestina Ignacio; and (3) in holding that respondent company's inter-office memoranda dated August 28, 1995 and September 6, 1995 show that he was not deprived of his right to due process.

The fundamental issue here is whether respondent company was able to prove by substantial evidence that petitioner is liable for gross misconduct by demanding from Celestina Ignacio a service fee of P3,800.00 for the installation of a telephone line. The issue raised is factual. It is basic that the findings of fact by the Court of Appeals, when supported by substantial evidence, are conclusive and binding upon the parties and are not reviewable by this Court, unless the case falls under any of the exceptions to the rule, such as when the findings by the Appellate Court are not supported by evidence. 3 This exception is being relied upon by petitioner.

Here, we find there is substantial evidence to support the findings of the Court of Appeals that petitioner's dismissal from the service is valid. Well-entrenched is the rule that substantial proof is sufficient as basis for the imposition of any disciplinary action upon the employee. The standard of substantial evidence is satisfied where the employer, as in this case, has reasonable ground to believe that the employee is responsible for the misconduct and his participation therein renders him unworthy of trust and confidence demanded by his position.4 That petitioner violated respondent PLDT's rules and regulations and committed serious misconduct in the performance of his duties, have been proved by Celestina Ignacio. Respondent thus lost its trust and confidence in petitioner. Under Article 282 of the Labor Code, as amended, these are just causes for dismissing him from the service.

Moreover, the Appellate Court did not err in rejecting Celestina's retraction. A careful perusal of the minutes of the clarificatory hearing reveals that she retracted her complaint only after respondent paid her, thus:

"ATTY. OLITOQUIT:

When this Mr. Reyes went to your residence to investigate regarding your complaint, you did not make any letter retraction or affidavit of retraction?

WITNESS:

Wala sir.

ATTY. OLITOQUIT:

And after that meeting in your residence, there was still another meeting between you, Mr. Reyes and the complainant at the PLDT office?

WITNESS:

Yes, sir.

ATTY. OLITOQUIT:

And in that meeting Madam witness you did not write any letter or filed any sinumpaang salaysay staing that the money Mr. Millares got from you was only a loan?

WITNESS:

Wala, sir.

ATTY. OLITOQUIT:

In other words, the first retraction you made was this document dated September 27, 1995?

WITNESS:

Yes, sir.

ATTY. OLITOQUIT:

In other words, Madam witness, you made this retraction including the sinumpaang salaysay which was earlier marked as Exhibit '5', after you were paid by Mr. Millares?

WITNESS:

Oho, pagkatapos niyang magbayad, wala na siyang kasalanan sa akin."

Retractions are frowned upon by the courts. A retraction of a testimony is exceedingly unreliable, for there is always the probability that it may later on be repudiated. Courts look with disfavor upon retractions, because they can easily be obtained from witnesses through intimidation or for monetary consideration. A retraction does not necessarily negate an earlier declaration.5

Finally, there is no cogent reason why we should not accord deference and finality to the Appellate Court's finding that petitioner was accorded his right to due process. In Santos vs. San Miguel Corporation,6 we reiterated the well-entrenched rule that

"(p)rocedural due process requires the employer to give the employee two notices. First is the notice apprising him of the particular acts or omissions for which his dismissal is sought. Second is the subsequent notice informing him of the employer's decision to dismiss him." In the case at bar, respondent company sent petitioner the required notices. Clearly, he was not deprived of his right to due process.

WHEREFORE, the petition is DENIED. The assailed Decision dated April 16, 2002 and the Resolution dated June 26, 2002 of the Court of Appeals in CA-G.R. SP No. 66611 are hereby AFFIRMED.

Costs against petitioner.

SO ORDERED.

Corona, Carpio-Morales, and Garcia, JJ., concur.Panganiban, (Chairman), J., no part, former counsel of a party.

PEOPLE VS MARTI

People v. Marti, 193 SCRA 57 (1991) F: Before delivery of appellant''s box to the Bureau of Customs and/ or Bureau of Posts, Mr. Job Reyes (proprietor) & husband of Anita Reyes, following standard operating procedure, opened the boxes for final inspection. When he opened appellant''s box, a peculiar order emitted therefrom. His curiosity aroused, he squeezed one of the bundles allegedly containing gloves and felt dried leaves inside. Opening one of the bundles, he pulled out a cellophane wrapper protruding from the opening of one of the gloves. He made an opening on one of the cellophane wrappers and took several grams of the contents thereof. Job Reyes reported the incident to the NBI and requested a laboratory examination of the samples he extracted from the cellophane wrapper. It turned out that the dried leaves were marijuana flowering tops as certified by the forensic chemist of the Narcotics Section of the NBI. Thereafter, an information was filed against appellant for violation of RA 6425. APPELANT CONTENDS that the evidence subject of the imputed offense had been obtained in violation of his consti. rights against unreasonable searches and seizures and privacy of communication and therefore argues that the same should be held inadmissible in evidence. The case at bar assumes a peculiar character since the evidence sought to be excluded was primarily discovered and obtained by a private person, acting in a private capacity and w/o the intervention and participation of state authorities. ISSUE: May an act of a private individual, allegedly in violation of appellant''s constitutional rights, be invoked against the state? HELD: We hold in the negative. In the absence of governmental interference, the liberties guaranteed by the Consti. cannot be invoked against the State. This constitutional right refers to the immunity of one''s person, whether citizen or alien, from interference by govt. xxx (Villanueva v. Querubin.) The contraband in the case at bar having come into possession of the govt w/o the latter transgressing appellant''s rights against unreasonable searches and seizures (S & S), the Court sees no cogent reason why the same should not be admitted against him. Appellant, however, would like this Court to believe that NBI agents made an illegal search and seizure of the evidence later on used in prosecuting the case. The arguments of appellant stands to fall on its own weight, or the lack of it. First, the factual considerations of the case at bar readily foreclose the proposition that NBI agents conducted an illegal S & S of the prohibited merchandise. Records of the case clearly indicate that it was Mr. Job Reyes, the proprietor of the forwarding agency, who made the search/ inspection. Such inspection was reasonable and a SOP on the part of Mr. Reyes as a precautionary measure bef. delivery of packages to the Bureau of Customs or Bureau of Posts. Second, the mere presence of the NBI agents did not convert the reasonable search effected by Reyes into a warrantless S & S proscribed by the Consti. Merely to observe and look at that w/c is plain sight is not search. Having observed that w/c is open, where no trespass has been committed in aid thereof, is not search. That the Bill of Rights embodied in the Consti. is not meant to be invoked against acts of private individuals finds support in the deli

More About : Case Digest on People v. Marti, 193 SCRA 57 (1991) 

United Laboratories (UNILAB), Inc. vs IsipUnited Laboratories, Inc. v. Isip461 SCRA 574

Searches and SeizuresProhibited Article in Plain View

Facts:

Rolando H. Besarra, Special Investigator III of the National Bureau of Investigation (NBI), filed an application, in the Regional Trial Court (RTC) of Manila, for the issuance of a search warrant concerning the first and second floors of the Shalimar Building, located at No. 1571, Aragon Street (formerly No. 1524, Lacson Avenue, Sta. Cruz, Manila) occupied and/or used by Shalimar Philippines, owned/operated by Ernesto Isip. 

The seizure of the finished and unfinished products of UNILAB, particularly REVICON multivitamins; Sundry items such as tags, labels, boxes, packages, wrappers, receptacles, advertisements and other paraphernalia used in the offering for sale, sale and/or distribution of counterfeit REVICON multivitamins; and Sales invoices, delivery receipts, official receipts, ledgers, journals, purchase orders and all other books of accounts and documents used in recording the manufacture and/or importation, distribution and/or sales of counterfeit REVICON multivitamins – in violation of Section 4(a), in relation to Section 8, of Republic Act (R.A.) No. 8203.

A representative from UNILAB, Michael Tome, testified during the hearing on the application for the search warrant. Thus, the court granted the application and issued Search Warrant on January 27, 2004, directing any police officer of the law to conduct a search of the first and second floors of the Shalimar Building located at No. 1571, Aragon Street, Sta. Cruz, Manila. 

Later, the respondents filed an “Urgent Motion to Quash the Search Warrant or to Suppress Evidence.” They contended that the implementing officers of the NBI conducted their search at the first, second, third and fourth floors of the building, where items in “open display” were allegedly found. They pointed out, however, that such premises was different from the address described in the search warrant, the first and second floors of the Shalimar Building located at No. 1571, Aragon Street, Sta. Cruz, Manila. The respondents, likewise, asserted that the NBI officers seized Disudrin and Inoflox products which were not included in the list of properties to be seized in the search warrant.

The trial court issued an Order granting the motion of the respondents, on the ground that the things seized, namely, Disudrin and Inoflox, were not those described in the search warrant and issued an advisory that the seized articles could no longer be admitted in evidence against the respondents in any proceedings, as the search warrant had already been quashed.

UNILAB, through the Ureta Law Office, filed a motion, in collaboration with the NBI agents, for the reconsideration of the order, contending that the ground used by the court in quashing the warrant was not that invoked by the respondents, and that the seizure of the items was justified by the plain

view doctrine. 

The respondents objected to the appearance of the counsel of UNILAB, contending that the latter could not appear for the People of the Philippines. The respondents moved that the motion for reconsideration of UNILAB be stricken off the record. Disputing the claims of UNILAB, they insisted that the items seized were contained in boxes at the time of the seizure at No. 1524-A, Lacson Avenue corner Aragon Street, Sta. Cruz, Manila, and were not apparently incriminating on plain view. Moreover, the seized items were not those described and itemized in the search warrant application, as well as the warrant issued by the court itself. 

Issues:

(1) Whether the petitioner is the proper party to file the petition at bench; 

(2) Whether it was proper for the petitioner to file the present petition in this Court under Rule 45 of the Rules of Court; and 

(3) Whether the search conducted by the NBI officers of the first and second floors of the Shalimar building and the seizure of the sealed boxes which, when opened, contained Disudrin syrup and Inoflox, were valid.

Held:

Search Warrant

A search warrant, to be valid, must particularly describe the place to be searched and the things to be seized. The officers of the law are to seize only those things particularly described in the search warrant. A search warrant is not a sweeping authority empowering a raiding party to undertake a fishing expedition to seize and confiscate any and all kinds of evidence or articles relating to a crime. The search is limited in scope so as not to be general or explanatory. Nothing is left to the discretion of the officer executing the warrant. 

Objects, articles or papers not described in the warrant but on plain view of the executing officer may be seized by him. However, the seizure by the officer of objects/articles/papers not described in the warrant cannot be presumed as plain view. The State must adduce evidence, testimonial or documentary, to prove the confluence of the essential requirements for the doctrine to apply, namely: (a) the executing law enforcement officer has a prior justification for an initial intrusion or otherwise properly in a position from which he can view a particular order; (b) the officer must discover incriminating evidence inadvertently; and (c) it must be immediately apparent to the police that the items they observe may be evidence of a crime, contraband, or otherwise subject to seizure.

Plain View Doctrine

The doctrine is not an exception to the warrant. It merely serves to supplement the prior justification – whether it be a warrant for another object, hot pursuit, search as an incident to a lawful arrest or some other legitimate reason for being present, unconnected with a search directed against the accused. The doctrine may not be used to extend a general exploratory search from one object to another until something incriminating at last emerges. It is a recognition of the fact that when executing police officers comes across immediately incriminating evidence not covered by the

warrant, they should not be required to close their eyes to it, regardless of whether it is evidence of the crime they are investigating or evidence of some other crime. It would be needless to require the police to obtain another warrant. Under the doctrine, there is no invasion of a legitimate expectation of privacy and there is no search within the meaning of the Constitution.

In this case, Disudrin and/or Inoflox were not listed in the search warrant issued by the court a quo as among the properties to be seized by the NBI agents. The warrant specifically authorized the officers only to seize “counterfeit Revicon multivitamins, finished or unfinished, and the documents used in recording, manufacture and/or importation, distribution and/or sale, or the offering for sale, sale and/or distribution of the said vitamins.” The implementing officers failed to find any counterfeit Revicon multivitamins, and instead seized sealed boxes which, when opened at the place where they were found, turned out to contain Inoflox and Disudrin.

It was thus incumbent on the NBI agents and the petitioner to prove their claim that the items were seized based on the plain view doctrine. It is not enough to prove that the sealed boxes were in the plain view of the NBI agents; evidence should have been adduced to prove the existence of all the essential requirements for the application of the doctrine during the hearing of the respondents’ motion to quash, or at the very least, during the hearing of the NBI and the petitioner’s motion for reconsideration. 

In fact, the petitioner and the NBI failed to present any of the NBI agents who executed the warrant, or any of the petitioner’s representative who was present at the time of the enforcement of the warrant to prove that the enforcing officers discovered the sealed boxes inadvertently, and that such boxes and their contents were incriminating and immediately apparent. It must be stressed that only the NBI agent/agents who enforced the warrant had personal knowledge whether the sealed boxes and their contents thereof were incriminating and that they were immediately apparent. There is even no showing that the NBI agents knew the contents of the sealed boxes before they were opened.

In sum then, the Court finds and so hold that the petitioner and the NBI failed to prove the essential requirements for the application of the plain view doctrine.

SOLIVEN, petitioner VS. JUDGE MAKASIAR, respondent

167 SCRA 393FACTS:This case is a PETITION for certiorari and prohibition to review the decision of the Regional Trial Court of ManilaISSUES:

1. Whether or not the petitioners were denied due process when information for libel were filed against them although the finding of the existence of a   prima facie   case was still under review by the Secretary of Justice and, subsequently by the President

2. Whether or not the constitutional rights of   Beltran   (petitioner) were violated when respondent RTC judge issued a warrant for his arrest without personally examining the complainant and the witnesses, if any, to determine probable clause

3. Whether or not the President of the Philippines, under the Constitution, may initiate criminal proceedings against the petitioners through filing of a complaint-affidavit

DECISION:Finding no grave abuse of discretion amounting to excess or lack of jurisdiction on the part of the public respondents, the Court Resolved to DISMISS the petitions.The Order to maintain the status quo contained in the Resolution of the Court en banc is LIFTED.RATIO:Background of the first issue

MARCH 30, 1988: Secretary of Justice denied petitioner’s motion for reconsideration APRIL 7, 1988: A second motion for reconsideration filed by petitioner Beltran was denied

by the Secretary of Justice MAY 2, 1988: On appeal, the President, through Executive Secretary, affirmed the

resolution of the Secretary of Justice MAY 16, 1988: Motion for reconsideration was denied by the Executive Secretary

Petitioner Beltran alleges that he has been denied due process of law.-This is negated by the fact that instead of submitting his counter-affidavits, he filed a  “Motion to Declare Proceedings Closed”, in effect, waiving his right to refute the complaint by filing counter-affidavits.Due process of law does not require that the respondent in a criminal case actually file his counter-affidavits before the preliminary investigation is deemed completed. All that is required is that the respondent be given the opportunity to submit counter-affidavits if he is so minded.Second issueThis calls for an interpretation of the constitutional provision on the issuance of warrants of arrest:

Art. III, 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.

Petitioner Beltran is convinced that the Constitution requires the judge to personally examine the complainant and his witness in his determination of probable cause for the issuance of warrants of arrests.-However, what the Constitution underscores is the exclusive and personal responsibility of the issuing judge to satisfy himself of the existence of probable cause. In doing so, the judge is not required to personally examine the complainant and his witness.

Following the established doctrine of procedure, the judge shall: (1) Personally evaluate the report and supporting documents submitted by the fiscal regarding the existence of probable cause (and on the basis, thereof, issue a warrant of arrest); or (2) If on the basis thereof he finds no probable cause, he may disregard the fiscal’s report and require the submission of supporting affidavits of witnesses to aid him in arriving at a conclusion as to the evidence of probable cause.Third issuePetitioner Beltran contends that proceedings ensue by virtue of the President’s filing of her complaint-affidavit, she may subsequently have to be a witness for the prosecution, bringing her under the trial court’s jurisdiction. àThis would in an indirect way defeat her privilege of immunity from suit, as by testifying on the witness stand, she would be exposing herself to possible contempt of court or perjury.-This privilege of immunity from suit, pertains to the President by virtue of the office and may be invoked only by the holder of the office; not by any other person in the President’s behalf.-The choice of whether to exercise the privilege or to waive is solely the President’s prerogative. It is a decision that cannot be assumed and imposed by any other person (And there is nothing in our laws that would prevent the President from waiving the privilege).Additional Issue:Beltran contends that he could not be held liable for libel because of the privileged character of the publication. He also says that to the libel case to proceed would produce a “chilling effect” on press freedom.

-Court reiterates that it is not a trier of facts And Court finds no basis at this stage to rule on the “chilling effect” point.SEPARATE CONCURRING OPINION Guitierrez, Jr., J.Concurs with the majority opinion insofar as it revolves around the three principal issues. With regard to whether or not the libel case would produce a “chilling effect” on press freedom, Gutierrez believes that this particular issue is the most important and should be resolved now rather than later.Quotable quotes: “Men in public life may suffer under a hostile and unjust accusation; the wound can be assuaged with the balm of a clear conscience.” –United States v. Bustos“No longer is there a Minister of the Crown or a person in authority of such exalted position that the citizen must speak of him only with bated breath.” –People v. Perfecto

Bayan, et al., Vs. Eduardo Ermita, et al.,G.R. No. 169838

April 25, 2006

Facts: The petitioners, Bayan, et al., alleged that they are citizens and taxpayers of the Philippines and that their right as organizations and individuals were violated when the rally they participated in on October 6, 2005 was violently dispersed by policemen implementing Batas Pambansa No. 880.

Petitioners contended that Batas Pambansa No. 880 is clearly a violation of the Constitution and the International Covenant on Civil and Political Rights and other human rights treaties of which the Philippines is a signatory. They argue that B.P. No. 880 requires a permit before one can stage a public assembly regardless of the presence or absence of a clear and present danger. It also curtails the choice of venue and is thus repugnant to the freedom of expression clause as the time and place of a public assembly form part of the message which the expression is sought. Furthermore, it is not content-neutral as it does not apply to mass actions in support of the government. The words “lawful cause,” “opinion,” “protesting or influencing” suggest the exposition of some cause not espoused by the government. Also, the phrase “maximum tolerance” shows that the law applies to assemblies against the government because they are being tolerated. As a content-based legislation, it cannot pass the strict scrutiny test. This petition and two other petitions were ordered to be consolidated on February 14, 2006. During the course of oral arguments, the petitioners, in the interest of a speedy resolution of the petitions, withdrew the portions of their petitions raising factual issues, particularly those raising the issue of whether B.P. No. 880 and/or CPR is void as applied to the rallies of September 20, October 4, 5 and 6, 2005.

Issue: Whether the Calibrated Pre-emptive response and the Batas Pambansa No. 880, specifically Sections 4, 5, 6, 12, 13(a) and 14(a) violates Art. III Sec. 4 of the Philippine Constitution as it causes a disturbing effect on the exercise by the people of the right to peaceably assemble.

Held: Section 4 of Article III of the Philippine Constitution provides that no law shall be passed abridging the freedom of speech, of expression, or of the press, or the right of the people peaceably to assemble and petition the government for redress of grievances. The right to peaceably assemble and petition for redress of grievances, together with freedom of speech, of expression, and of the press, is a right that enjoys dominance in the sphere of constitutional protection. For this rights represent the very basis of a functional democratic polity, without which all the other rights would be meaningless and unprotected.

However, it must be remembered that the right, while sacrosanct, is not absolute. It may be regulated that it shall not be injurious to the equal enjoyment of others having equal rights, nor injurious to the rights of the community or society. The power to regulate the exercise of such and other constitutional rights is termed the sovereign “police power,” which is the power to prescribe regulations, to promote the health, morals, peace, education, good order or safety, and general welfare of the people.

B.P. No 880 is not an absolute ban of public assemblies but a restriction that simply regulates the time, place and manner of the assemblies. B.P. No. 880 thus readily shows that it refers to all kinds of public assemblies that would use public places. The reference to “lawful cause” does not make it content-based because assemblies really have to be for lawful causes, otherwise they would not be “peaceable” and entitled to protection. Neither the words “opinion,” “protesting,” and “influencing” in of grievances come from the wording of the Constitution, so its use cannot be avoided. Finally, maximum tolerance is for the protection and benefit of all rallyist and is independent of the content of the expression in the rally.

Furthermore, the permit can only be denied on the ground of clear and present danger to public order, public safety, public convenience, public morals or public health. This is a recognized exception to the exercise of the rights even under the Universal Declaration of Human Rights and The International Covenant on Civil and Political Rights.

Wherefore, the petitions are GRANTED in part, and respondents, more particularly the Secretary of the Interior and Local Governments, are DIRECTED to take all necessary steps for the immediate compliance with Section 15 of Batas Pambansa No. 880 through the establishment or designation of at least one suitable freedom park or plaza in every city and municipality of the country. After thirty (30) days from the finality of this Decision, subject to the giving of advance notices, no prior permit shall be required to exercise the right to peaceably assemble and petition in the public parks or plaza in every city or municipality that has not yet complied with section 15 of the law. Furthermore, Calibrated pre-emptive response (CPR), insofar as it would purport to differ from or be in lieu of maximum tolerance, is NULL and VOID and respondents are ENJOINED to REFRAIN from using it and to STRICTLY OBSERVE the requirements of maximum tolerance, The petitions are DISMISSED in all other respects, and the constitutionality of Batas Pambansa No. 880 is SUSTAINED