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EN BANC

[ A.M. No. MTJ-97-1139, October 16, 1997 ]

ROBERTO ESPIRITU, COMPLAINANT, VS. JUDGE EDUARDOJOVELLANOS, 8TH MUNICIPAL CIRCUIT TRIAL COURT, ALCALA-

BAUTISTA, PANGASINAN, RESPONDENT.D E C I S I O N

MENDOZA, J.:

Respondent is judge of the 8th Municipal Circuit Trial Court of Alcala-Bautista, Pangasinan. He is

charged with ignorance of the law, grave abuse of authority, and gross partiality in connection

with the preliminary investigation of Criminal Case No. 2346 for frustrated murder which theherein complainant, Roberto Espiritu, had filed against Weny Dumlao.

The facts are as follows:

In his affidavit[1] in Criminal Case No. 2346, Roberto Espiritu, as complainant, alleged that at

around 7:30 in the evening of July 16, 1994, while he was with a group which included Eulogio

Pabunan, Arnel Guerra, Januario Peregrino, and Marcelino Bautista, Weny Dumlao approached

him and fired at him three times, as a result of which complainant was wounded; that

complainant was able to run away; and that Dumlao wanted to kill complainant because the

latter had filed a case against Dumlaos brother, Victor, for the murder of complainants son

Rolly. On the basis of this affidavit and those of Arnel Guerra[2] and Eulogio Pabunan,[3] SPO II

Eduardo R. Yadao filed a criminal complaint for frustrated murder on August 10, 1994 [4] in

respondents court.

After conducting a preliminary examination, respondent judge ordered on August 18, 1994 the

arrest of Dumlao and fixed the amount of bail for his provisional liberty at P20,000.00. [5]

However, in an order dated September 7, 1994, he reduced the amount of the bail to

P10,000.00, stating that Dumlaos father had asked for the reduction. On September 12, 1994,

he ordered any peace officer under whose custody [Dumlao] may be found to release the

latter in view of the fact that Dumlao had posted bail for P10,000.00. [6] Then on October 12,

1994 he dismissed the complaint, citing, among other reasons, the fact that Dumlao had filed a

case against Roberto Espiritu and others as a result of the same incident complained of in

Criminal Case No. 2346.

It appears that Dumlao had filed on July 27, 1994 a countercharge against complainant and

others with the Office of the Provincial Prosecutor in Villasis, Pangasinan for attempted murder

and illegal possession of firearm. The case was docketed as I.S. No. V-94-30. Dumlao claimed

that as he approached Espiritus group, Arnel Guerra shot him, although Guerra missed him;


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that as he ran towards his house, other members of the group also fired at him; and that

Espiritus group challenged him and his father to come out and fight.

Dumlaos complaint (I.S. No. V-94-30) was dismissed on August 15, 1994 for insufficiency of

evidence.[7] After a reinvestigation of the two cases, however, Assistant City Prosecutor Paz de

G. Peralta directed the filing of an information for attempted murder against complainantRoberto Espiritu, Arnel Guerra, Andres Espiritu, Marlino Bautista, Januario Peregrino, Abrillo

Peregrino, Eulogio Pabunan, Dario Pabunan, and Landio Pabunan even as she affirmed the

dismissal of Criminal Case No. 2346 against Dumlao.[8]

Espiritu sought a review in the Department of Justice, but his petition was denied [9] for having

been filed late and for his failure to attach the affidavits submitted during the preliminary

investigation.

Espiritu filed the complaint in this case, alleging irregularities committed by respondent judge in

the conduct of the preliminary investigation of his complaint against Dumlao. [10]

Respondent judge filed a comment,[11] denying the charges. Complainant, on the other hand,

filed a reply. Among other things, complainant claimed that this was not the first time that

respondent judge had shown ignorance of the rules on criminal procedure, because on

September 29, 1994, in People of the Philippines v. Cesario Sanchez, Criminal Case No. V-0092,

respondent judge had been reprimanded by the Regional Trial Court of Villasis, Pangasinan

(Branch 50) for approving the bail bond of the accused when the latter had not yet been

arrested.

On June 26, 1995, the Court referred the case to Judge Pedro C. Cacho of the Regional TrialCourt, Branch 52, at Tayug, Pangasinan for investigation, report, and recommendation. On

October 6, 1995, Judge Cacho submitted his report, recommending that respondent judge be

fined in the amount of P3,000.00 and reprimanded for neglect of duty, partiality, and/or

inefficiency tantamount to grave ignorance of the law.

Except as to the amount of the fine recommended, the Court concurs in the report of the

investigating judge.

The charges against respondent judge relate to basically two acts committed by him: (1)granting bail to Weny Dumlao in the reduced amount of P10,000.00 and (2) dismissing the

criminal complaint against Dumlao.

I. With respect to the granting of bail to Weny Dumlao and the reduction of its amount to

P10,000.00, complainant alleges:

2. The municipal courts are now courts of records. Per order dated September 7, 1994. . . . the

Honorable Judge reduced the amount of bail His Honor set in a previous order (Page 12, Ibid.),


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from P20,000.00 to P10,000.00 acting supposedly upon the request of the father of the accused.

However, there is no such request for reduction of bail on file with the records of the case;

3. At the time the Honorable Judge acted on the request for reduction of bail, the accused was

not under detention as he was not arrested nor had he voluntarily surrendered as borne by the

records. Accordingly, the Court has not yet acquired jurisdiction over the person of the accused,so the Honorable Judge cannot act on such request for reduction of bail even if interceded by

the father of the accused;

4. The amount at which the bail was reduced: P10,000.00 is not commensurate with the gravity

of the crime charged, an evident manifestation of the Judges injudiciousness in the exercise of

his authority and discretion. The bail bond guide of 1981 provides for the amount P12,500.00;

Simply stated, the complaint is that respondent judge is guilty of ignorance of the law, bias, and

partiality for Dumlao as shown by the following: (a) respondent judge granted bail and laterreduced its amount when the fact was that, at that time, Dumlao was not in the custody of the

court; (b) there was no written motion presented for the reduction of bail, which is a necessity

since MCTCs are courts of record; and (c) pursuant to the 1981 Bail Bond Guide the bail for

frustrated murder should be P12,500.00.

A. It is indeed true that, in general, bail presupposes that the applicant is under arrest, detained,

or otherwise deprived of his liberty.[12] In this case, it appears that on July 16, 1994, shortly

after the incident, Weny Dumlao surrendered to the police, but the next day (July 17, 1994) he

was released to the custody of Assistant Provincial Prosecutor Emiliano Matro.[13]

Prosecutor Matro testified that upon DECS Supervisor Nuelito Dumlaos request, he agreed to

take custody of Dumlao for which reason Weny Dumlao was released by the police.[14] According

to Matro, this was not the first time that he took custody of one who was under investigation.[15]

Apparently, therefore, when Dumlao applied for bail on September 7, 1994 to respondent judge,

Dumlao was not in custody. Nor was his release to the custody of Assistant City Prosecutor

Matro in accordance with law. Under Rule 114, 15 of the Rules of Court, the release on

recognizance of any person under detention may be ordered only by a court and only in the

following cases: (a) when the offense charged is for violation of an ordinance, a light felony, or a

criminal offense, the imposable penalty for which does not exceed 6 months imprisonmentand/or P2,000 fine, under the circumstances provided in R.A. No. 6036; (b) where a person has

been in custody for a period equal to or more than the minimum of the imposable principal

penalty, without application of the Indeterminate Sentence Law or any modifying circumstance,

in which case the court, in its discretion, may allow his release on his own recognizance; (c)

where the accused has applied for probation, pending resolution of the case but no bail was filed

or the accused is incapable of filing one; and (d) in case of a youthful offender held for physical

and mental examination, trial, or appeal, if he is unable to furnish bail and under the


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circumstances envisaged in P.D. No. 603, as amended (Art. 191). [16]

But although then not in legal custody, Dumlao subsequently submitted himself to the

jurisdiction of the court when on September 7, 1994 he personally asked respondent judge to

admit him to bail and reduce its amount. In Paderanga v. Court of Appeals,[17] Miguel Paderanga

was one of the accused in a case for multiple murder. Before the arrest warrant could be servedon him, he filed through counsel a motion for admission to bail which the trial court set for

hearing on November 5, 1992 with notice to both public and private prosecutors. As Paderanga

was then confined at a hospital, his counsel manifested that they were submitting custody over

Paderangas person to the chapter president of the Integrated Bar of the Philippines and asked

that, for purposes of the hearing on his bail application, he be considered as being in the custody

of the law. On November 5, 1992, the trial court admitted Paderanga to bail in the amount of

P200,000.00. The next day, Paderanga in spite of his weak condition, managed to personally

appear before the clerk of court of the trial court and posted bail. He was arraigned and

thereafter he attended the hearings. We held that the accused was in the constructive custody of

the law when he moved for admission to bail through his lawyers (1) by filing the application forbail with the trial court, (2) by furnishing true information of his actual whereabouts, and (3) by

unequivocably recognizing the jurisdiction of said court.

Respondent judge thus correctly granted bail to Dumlao.

B. Respondent judge erred, however, in fixing the amount of bail at P20,000.00 and reducing it

to P10,000.00[18] and in doing so without a hearing.

Under the 1981 Bail Bond Guide (Ministry Circular No. 36, September 1, 1981), the amount of

bail in cases of frustrated murder is P12,500.00.[19]

In its Circular No. 10 dated July 3, 1987, theDepartment of Justice noted that the amounts fixed in the Bail Bond Guide had become

unrealistic and impractical for the purpose of assuring the presence and/or appearance of

persons facing charges in court and accordingly directed that the amount of bail be computed at

the rate of P10,000.00 per year of imprisonment based on the medium penalty imposable for

the offense. Judged by this standard, the P10,000.00 bail fixed in this case was inadequate. The

penalty for frustrated murder prior to R.A. No. 7659 is prision mayor in its maximum period (10

years and 1 day to 12 years) to reclusion temporal in its medium period (14 years, 8 months,

and 1 day to 17 years and 4 months). So that, applying Art. 50, in relation to Art. 248 of the

Revised Penal Code, the medium penalty would be reclusion temporal in its minimum period (12

years and 1 day to 14 years and 8 months). Under Circular No. 10, the amount of the bailshould have been fixed between P120,000.00 and P140,000.00.

Either respondent judge was grossly ignorant of the law or he deliberately disregarded it to favor

the accused. Considering that part of his duties as a judge is conducting preliminary

investigations, it is his duty to keep abreast of the laws, rulings, and jurisprudence regarding

this matter. It is apparent that he has not. In failing to do so he failed to live up to the injunction

of the Code of Judicial Conduct to maintain professional competence.[20] The maxim ignorance


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of the law excuses no one has special application to judges.

Further demonstrating either deliberate disregard of the law or gross ignorance of the same,

respondent judge granted bail to Weny Dumlao without notice to the prosecution, in violation of

Rule 114, 18. In Chin v. Gustilo,[21] this Court ruled that notice of application for bail to the

prosecution is required even though no charge has yet been filed in court and even thoughunder the circumstances bail is a matter of right. The failure to observe the above requirement

constitutes ignorance or incompetence which cannot be excused by any protestation of good

faith.[22]

In this case, the failure to give notice to the prosecution may be due to the fact that there was

no written motion filed but only, as respondent judge himself admitted, an oral request by

Dumlao and his father that the amount of the bail be reduced. What respondent judge should

have done was to have Dumlao put his request in writing and then schedule the incident for

hearing with notice to the prosecution. Instead, he readily granted the request, which indicates

rather clearly respondent judges partiality. This partiality was nowhere more evident than in theprivate conference which he had with the Dumlaos in his chambers without the presence of the

opposing party, the complainant in this case. Time and again we have admonished judges not

only to be impartial but also to appear to be so. For appearance is an essential manifestation of

reality.[23] Departing from this established norm, respondent judge signed his September 7,

1994 order reducing the amount of bail to P10,000.00 and then told Dumlao to inform the police

about it so that he would be released.

II. With respect to the charge that respondent judge, with grave abuse of authority, dismissed

the case filed by complainant against Weny Dumlao, it is alleged that:

1. The Honorable Judge of the MCTC subpoenaed Dr. Marcelo S. Patawaran, Jr. (Page 15,

Records of the Case-Annex A) and conducted examination upon the doctor without notice, nay

presence, of the parties of the case. . . . It is significant to note that the searching questions

propounded upon the doctor tended to diminish the significance and importance of the medical

certificate (Page 5, Ibid.) which may have been achieved, but the whole of the proceedings

unmasked the partiality of the Court towards the accused. Moreover, it is unbelievable that the

Honorable Judge is not aware of the plenitude in our jurisprudence of proceedings undertaken by

courts and tribunals without notice and presence of the parties that were declared null and void

by the Supreme Court;

....

5. On September 12, 1994, the Honorable Judge issued a subpoena upon the accused, requiring

the accused to submit his counter-affidavits of his witnesses and his other pieces of evidence, if

any. Under the rule, and as contained in the subpoena, the accused was given ten (10) days to

do so, and the period expired on September 22, 1994 as he received copies of the subpoena and

the complaint with supporting affidavits on September 12, 1994 as shown by the records, Annex

A. Without prior motion for extension of period, the Honorable Judge allowed the filing by the


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accused of his counter-affidavit only on October 11, 1994, some 29 days late [actually only 19

days]. Moreover, the Court did not require the accused to furnish copy of his counter-affidavit to

the complainant prior to submitting the same in Court, in violation of Section 2(c), Rule 112 of

the Rules of Court;

6. In the resolution recommending the dismissal of this case . . . , the Honorable Judge cited asone reason the existence of a counter-charge pending preliminary investigation before the Office

of the Provincial Prosecutor, Villasis, Pangasinan concerning the same incident which is the

subject matter of this case, referring to I.S. No. V-94-30, filed by accused as complainant

therein. That case (I.S. No. V-94-30) was dismissed per Resolution dated August 15, 1994, copy

ofwhich is hereto attached and marked as Annex B. After the dismissal of said case, the

accused, as complainant, endeavored to revive the case, but which undertaking took him a long

time, hence, the delay of accuseds counter-affidavit in Criminal Case No. 2346. . . . The fact

alone that accused was allowed to delay the filing of his counter-affidavit to enable him to revive

his counter-charge is an evident gross partiality of the Honorable Judge; and

7. The Honorable Judge, without any basis, directly or impliedly, made a finding that the wound

sustained by herein complainant was self-inflicted, totally disregarding the evidence on record,

as declared positively by eye witnesses. Such actuation bespeaks of the grave abuse of

discretion by the Honorable Judge.

A. With regard to the examination of Dr. Melecio S. Patawaran, Jr. on September 1, 1994

respondent judge admits that he did not give notice to the parties of the same but claims that it

was because he was only at that time in the first stage of preliminary investigation. [24] This is

inconsistent with his later testimony in which he admitted that when he ordered a warrant ofarrest to be issued against Dumlao on August 18, 1994, the first stage of preliminary

examination had already been terminated.[25]

Respondent contends that Rule 112, 3(e) did not apply to the examination of Dr. Patawaran on

September 1, 1994 because at that time Dumlao had not yet submitted his counteraffidavit.[26]

This provision states:

If the investigating officer believes that there are matters to be clarified, he may set a hearing to

propound clarificatory questions to the parties or their witnesses, during which the parties shall

be afforded an opportunity to be present but without the right to examine or cross-examine. If

the parties so desire, they may submit questions to the investigating officer which the latter may

propound to the parties or witnesses concerned.

If, as respondent judge claims, the holding of a hearing for the purpose of asking clarificatory

questions presupposes the filing by the parties of their affidavits but at the time he examined Dr.

Patawaran he had not yet received the counteraffidavit of Weny Dumlao, then what he should

have done was to wait until the counteraffidavit was filed and in the meantime not examine Dr.


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Patawaran. What is particularly objectionable was the examination of Dr. Patawaran as a witness

without the presence of the parties.

B. Nor is there any excuse for respondents consideration of Dumlaos counteraffidavit despite

the fact that it had been filed several days late. Dumlao received the order [27] requiring him to

file his counteraffidavit and that of his witnesses on September 12, 1994. As under Rule 112,3(b) Dumlao had only 10 days from receipt of the subpoena within which to comply, his

counteraffidavit should have been filed not later than September 22, 1994. However, it took him

19 more days after the reglementary period had expired before he finally filed his

counteraffidavit on October 11, 1994. Dumlao did not ask for an extension, yet respondent

judge allowed the counteraffidavit.

Respondent claims that[28]

The acceptance of the Counter-Affidavit is not my duty. It is my Clerk of Court who received the

Counter-Affidavit and when I look into the records, the Counter-Affidavit was already there inthe record and I was also preparing a Resolution to that case, so I have to take cognizance of

the Counter-Affidavit. After all, there was no one month yet that lapsed so I have to take

cognizance of the Counter Affidavit. And immediately after that, I issued a Resolution.

The contention has no merit. The duty of the clerk of court was to receive the

counteraffidavit. [29]It was respondent judges responsibility to see to it that what was received

in his court had been filed on time. Nor is it true that when respondent judge saw the

counteraffidavit, it had already been attached to the records. Clerk of Court Adoracion Marcos

testified that upon receipt of the counteraffidavit, she showed it to respondent judge.

[30]

Respondent judge therefore knew when the counteraffidavit was filed. At the very least, he

should have checked whether it was filed on time. That respondent judge allowed the late filing

of the counteraffidavit can only be attributed to his desire to enable Dumlao to revive his case

against complainant in the Prosecutors Office because it was the linchpin for his defense in

Criminal Case No. 2346.

C. What has been just said applies as well to respondent judges claim that responsibility for

furnishing complainant a copy of the counteraffidavit was not the courts responsibility but

Dumlaos. The service of the counteraffidavit on complainant should indeed be made by Dumlao

and not by the court,[31] but respondent judge should have seen to it that this duty had been

complied with upon the filing of the counteraffidavit. The serve and file rule is so basic for

respondent judge not to know it. It was not fair for respondent judge to consider a pleading

which the other party knew nothing about because it had not been served on him.

D. In dismissing Criminal Case No. 2346, respondent judge said:[32]

For the weighing and evaluation of evidence of both parties, the Court took the pain of issuing a

subpoena to Dr. Marcelo [actually Melecio] S. Patawaran, Jr., a resident physician of Don


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Amadeo Perez, Sr. Memorial Hospital at Urdaneta, Pangasinan, who testified that the bullet did

not have any exit and there was no bullet left in the body and it becomes only an injury. That

the patient was advised to be referred to the Pangasinan Provincial Hospital for x-ray purposes,

instead he went to the Sacred Heart Hospital at Urdaneta, Pangasinan and went home after x-

ray. That no x-ray result was submitted to Don Amadeo J. Perez, Sr. Hospital or to the Court to

prove that it was really a bullet wound. That he did not notice any powder burns on the injury.

. . . [I]n the opinion of the Court, the injury is self inflicted, this case should be dismissed. . . .

Thus, based on alleged testimony of Dr. Patawaran, respondent judge cast doubt on

complainants claim that his wound was a gunshot wound and held that the wound had been

inflicted by complainant on himself.

This is contrary to Dr. Patawarans testimony in the preliminary investigation conducted by

respondent judge. Dr. Patawaran said in his testimony:[33]

Q: Doctor, here in this medical certificate in the findings or diagnosis it says GSW or gunshot

wound, was it really in your opinion a gunshot wound?

A: Yes, Judge.

Q: Why do you say it is a gunshot wound?

A: Because when I saw the wound it manifested the characteristic of a gunshot wound like the

inversion of the skin edges.

Q: You said inversion of the skin edges Doctor, did you find any bullet in the injury?A: That is why I referred the patient to the Provincial Hospital for x-ray because when you see

only the entrance and no exit, its a must so as to locate the bullet as it does not have any exit.

Q: Do you know if the bullet is inside the body of the person?

A: That will be determined by the x-ray, sir.

....

Q: In this medical certificate Doctor below the findings and diagnosis are the letters GSW is in

writing and not typewritten as the injuries and entries indicated, will you please explain?

A: I initialed it to make it authenticated, a typographical error, sir.

Q: From the injury Doctor you can not determine also how far was the assailant?

A: Probably around more or less 3 meters, sir.

Q: Did you talk to the patient Roberto Espiritu when he was taken to your hospital Doctor?

A: Yes, sir.


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Q: Did Roberto Espiritu ever mention to you the name of the assailant and that he recognized

him?

A: I just asked what happened and he said pinaltogdac I was shot, and I did not ask the name

of the assailant any more.

It would seem respondent judge simply relied on the counteraffidavit of Dumlao for his

resolution, particularly the following portion of Dumlaos counteraffidavit:[34]

The medical certificate of private complainant Roberto Espiritu doesnt categorically state that

the wound is a gun shot wound and if the letters GSW in handwritten form in a ballpen appear

therein is an information coming from and supplied by said complainant, other entries are

typewritten, it is not a gun shot wound as ascertained and examined by the attending doctor;

the complainant was never confined in the hospital; there is no exit of the bullet but no finding

whether said bullet is embedded and found inside the body of the alleged victim-complainant; if

the private-complainant ever sustained any wound, it is one that is self-inflicted in a vain effortto substantiate a false charge of a serious offense of frustrated murder making it appear as a

consequence of a gunshot; the medical certificate doesnt state the healing period of the self-

inflicted wound; medical certificate is attached and marked as Annex E to form part hereof.

The foregoing acts of respondent judge clearly demonstrate partiality.

WHEREFORE, the Court finds Judge Eduardo U. Jovellanos GUILTY of gross misconduct and

imposes on him a FINE of P20,000.00, with a WARNING that repetition of the same or similar

offenses will be dealt with more severely.SO ORDERED.

Narvasa, C.J., Regalado, Davide, Jr., Romero, Bellosillo, Melo, Puno, Vitug, Kapunan, Francisco,

Hermosisima, Jr., Panganiban, and Torres, Jr., JJ., concur.

[1] Sworn Statement of Roberto Espiritu dated July 18, 1994, Rollo, p. 6.

[2] Id., p. 7.

[3] Id., p. 8.

[4] Id., p. 5,

[5] Exh. U, id., p. 16.


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[6] Exh. I.

[7] Exh. R.

[8] Joint Resolution dated November 11, 1994, Exh. 14, Rollo, pp. 69-73.

[9] Per Letter dated February 7, 1995, Exh. 23.

[10] Rollo, pp. 1-3.

[11] Id., pp. 65-68.

[12] Feliciano v. Pasicolan, 2 SCRA 888 (1961).

[13] The police blotter shows the following: On said time and date [July 17, 1994, 5:52 p.m.]

Hon. Emiliano Matro, Asst. Provl Fiscal, Pangasinan, appeared to this station and take into hiscustody the living person of one Weny Dumlao y Miguel, suspect of alfa shooting incident that

transpired on or about 161930H July 94, in Brgy. San Nicolas this matter wherein one Roberto

Espiritu y Empabido is the victim. Said person was apprehended by elements this station after

the commission of the crime and placed under custodial interrogation. For record purposes.

CONFORME TO HEREIN RECORDED EVENT.

(Sgd) HON. EMILIANO MATRO 7/17/94

(Custodian)

[14] TSN, pp. 3, 6, 7, and 10, Sept. 12, 1995; Folder of TSNs, pp. 158, 161, 162, and 165.

[15] Id., p. 10; id., p. 165.

[16] 2 Florenz D. Regalado, Remedial Law Compendium 281-282 (1989).

[17] 247 SCRA 741 (1995).

[18] Order of September 7, 1994, Exh. G; Rollo, p. 24.

[19] 1981 Bail Bond Guide, p. 29.

[20] Code of Judicial Conduct, Canon 3; Aurillo, Jr. v. Francisco, 235 SCRA 283 (1994).

[21] 247 SCRA 175 (1995).

[22] Depamaylo v. Brotarlo, A.M. No. MTJ-92-731, November 29, 1996; De Los Santos-Reyes v.


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Montesa, 247 SCRA 85 (1995).

[23] Gallo v. Cordero, 245 SCRA 219 (1995).

[24] TSN, p. 2, Sept. 14, 1995; Folder of TSNs, p. 185.

[25] Id., p. 4; id., p. 187.

[26] Id., 5; id., p. 188.

[27] Exh. K, Rollo, p. 26.

[28] TSN, p. 22, Sept. 12, 1995; Folder of TSNs, p. 177.

[29] TSN, p. 24, Aug. 30, 1995; id., p. 52.

[30] Id., p. 23; id., p. 81.

[31] Rule 112, 3 provides:

(c) Such counter-affidavits and other supporting evidence submitted by the respondent shall

also be sworn to and certified as prescribed in paragraph (a) hereof and copies thereof shall be

furnished by him to the complainant.

[32] Resolution dated October 12, 1994, Exh. M, p. 3, Rollo, p. 31.

[33] Exh. F, Rollo, pp. 21-23.

[34] Id., pp. 27-28.

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SECOND DIVISION

[ A.M. No. RTJ-96-1335, March 05, 1997 ]

INOCENCIO BASCO, COMPLAINANT, VS. JUDGE LEO H.RAPATALO,REGIONAL TRIAL COURT, BRANCH 32, AGOO, LA UNION,

RESPONDENT.

R E S O L U T I O N

ROMERO, J.:

In a sworn letter-complaint dated August 14, 1995, complainant Inocencio Basco charged

respondent Judge Leo M. Rapatalo of RTC, Branch 32, Agoo, La Union with gross ignorance orwillful disregard of established rule of law for granting bail to an accused in a murder case

(Criminal Case No. 2927) without receiving evidence and conducting a hearing.

Complainant, who is the father of the victim, alleged that an information for murder was filed

against a certain Roger Morente, one of three accused. The accused Morente filed a petition for

bail. The hearing for said petition was set for May 31, 1995 by petitioner but was not heard since

the respondent Judge was then on leave. It was reset to June 8, 1995 but on said date,

respondent Judge reset it to June 22, 1995. The hearing for June 22, 1995, however, did not

materialize. Instead, the accused was arraigned and trial was set. Again, the petition for bail was

not heard on said date as the prosecution's witnesses in connection with said petition were notnotified. Another attempt was made to reset the hearing to July 17, 1995.

In the meantime, complainant allegedly saw the accused in Rosario, La Union on July 3, 1995.

He later learned that the accused was out on bail despite the fact that the petition had not been

heard at all. Upon investigation, complainant discovered that bail had been granted and a

release order dated June 29, 1995[1] was issued on the basis of a marginal note[2] dated June 22,

1995, at the bottom of the bail petition by Assistant Prosecutor Manuel Oliva which stated: "No

objection: P80,000.00," signed and approved by the assistant prosecutor and eventually by

respondent Judge. Note that there was already a release order dated June 29, 1995 on the basis

of the marginal note of the Assistant Prosecutor dated June 22, 1995 (when the hearing of thepetition for bail was aborted and instead arraignment took place) when another hearing was

scheduled for July 17, 1995.

In his comment dated October 16, 1995, respondent Judge alleged that he granted the petition

based on the prosecutor's option not to oppose the petition as well as the latter's

recommendation setting the bailbond in the amount of P80,000.00. He averred that when the

prosecution chose not to oppose the petition for bail, he had the discretion on whether to


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approve it or not. He further declared that when he approved the petition, he had a right to

presume that the prosecutor knew what he was doing since he was more familiar with the case,

having conducted the preliminary investigation. Furthermore, the private prosecutor was not

around at the time the public prosecutor recommended bail.

Respondent Judge stated that in any case, the bailbond posted by accused was cancelled and awarrant for his arrest was issued on account of complainant's motion for reconsideration. The

Assistant Provincial Prosecutor apparently conformed to and approved the motion for

reconsideration.[3] To date, accused is confined at the La Union Provincial Jail.

A better understanding of bail as an aspect of criminal procedure entails appreciating its nature

and purposes. "Bail" is the security required by the court and given by the accused to ensure

that the accused appears before the proper court at the scheduled time and place to answer the

charges brought against him or her. In theory, the only function of bail is to ensure the

appearance of the defendant at the time set for trial. The sole purpose of confining the accused

in jail before conviction, it has been observed, is to assure his presence at the trial.[4] In otherwords, if the denial of bail is authorized in capital offenses, it is only in theory that the proof

being strong, the defendant would flee, if he has the opportunity, rather than face the verdict of

the court. Hence the exception to the fundamental right to be bailed should be applied in direct

ratio to the extent of probability of evasion of the prosecution. [5] In practice, bail has also been

used to prevent the release of an accused who might otherwise be dangerous to society or

whom the judges might not want to release."[6]

It is in view of the abovementioned practical function of bail that it is not a matter of right in

cases where the person is charged with a capital offense punishable by death, reclusion perpetua

or life imprisonment. Article 114, section 7 of the Rules of Court, as amended, states, "Noperson charged with a capital offense, or an offense punishable by reclusion perpetua or life

imprisonment when the evidence of guilt is strong, shall be admitted to bail regardless of the

stage of the criminal action."

When the grant of bail is discretionary, the prosecution has the burden of showing that the

evidence of guilt against the accused is strong. However, the determination of whether or not

the evidence of guilt is strong, being a matter of judicial discretion, remains with the judge.

"This discretion by the very nature of things, may rightly be exercised only after the evidence is

submitted to the court at the hearing. Since the discretion is directed to the weight of the

evidence and since evidence cannot properly be weighed if not duly exhibited or produced beforethe court,[7] it is obvious that a proper exercise of judicial discretion requires that the evidence of

guilt be submitted to the court, the petitioner having the right of cross examination and to

introduce his own evidence in rebuttal."[8]

To be sure, the discretion of the trial court, "is not absolute nor beyond control. It must be

sound, and exercised within reasonable bounds. Judicial discretion, by its very nature involves

the exercise of the judge's individual opinion and the law has wisely provided that its exercise be


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guided by well-known rules which, while allowing the judge rational latitude for the operation of

his own individual views, prevent them from getting out of control. An uncontrolled or

uncontrollable discretion on the part of a judge is a misnomer. It is a fallacy. Lord Mansfield,

speaking of the discretion to be exercised in granting or denying bail said: "But discretion when

applied to a court of justice, means sound discretion guided by law. It must be governed by rule,

not by humour; it must not be arbitrary, vague and fanciful; but legal and regular." [9]

Consequently, in the application for bail of a person charged with a capital offense cpunishable

by death, reclusion perpetua or life imprisonment, a hearing, whether summary or otherwise in

the discretion of the court, must actually be conducted to determine whether or not the evidence

of guilt against the accused is strong. "A summary hearing means such brief and speedy method

of receiving and considering the evidence of guilt as is practicable and consistent with the

purpose of hearing which is merely to determine the weight of evidence for the purposes of bail.

On such hearing, the court does not sit to try the merits or to enter into any nice inquiry as to

the weight that ought to be allowed to the evidence for or against the accused, nor will it

speculate on the outcome of the trial or on what further evidence may be therein offered andadmitted. The course of inquiry may be left to the discretion of the court which may confine

itself to receiving such evidence as has reference to substantial matters, avoiding unnecessary

thoroughness in the examination and cross examination."[10] If a party is denied the opportunity

to be heard, there would be a violation of procedural due process.

That it is mandatory for the judge to require a hearing in a petition for bail is emphasized in the

following cases:

(1) People v. Sola decided in 1981.[11] In this case seven separate information for murder

were filed against the accused Sola and 18 other persons. After preliminary investigation, themunicipal trial court issued warrants for their arrest. However without giving the prosecution the

opportunity to prove that the evidence of guilt against the accused is strong. the court granted

them the right to post bail for their temporary release. Citing People v. San Diego,[12] we held:

"We are of the considered opinion that whether the motion for bail of a defendant who is in

custody for a capital offense be resolved in a summary proceeding or in the course of a regular

trial, the prosecution must be given an opportunity to present, within a reasonable time, all the

evidence that it may desire to introduce before the court should resolve the motion for bail. If,

as in the criminal case involved in the instant special civil action, the prosecution should be

denied such an opportunity, there would be a violation of procedural due process, and the order

of the court granting bail should be considered void on that ground."

(2) People v. Dacudao decided in 1989.[13] In this case, an information was filed against the

accused for murder, a non-bailable offense. The judge, without conducting any hearing, granted

bail on the ground that there was not enough evidence to warrant a case for murder because

only affidavits of the prosecution witnesses who were allegedly not eyewitnesses to the crime

were filed. We held: "Whatever the court possessed at the time it issued the questioned ruling

was intended only for prima facie determining whether or not there is sufficient ground to

engender a well founded belief that the crime was committed and pinpointing the persons who


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probably committed it. Whether or not the evidence of guilt is strong for each individual accused

still has to established unless the prosecution submits the issue on whatever it has already

presented. To appreciate the strength or weakness of the evidence of guilt, the prosecution must

be consulted or held. It is equally entitled to due process."

(3) People v. Calo decided in 1990.[14] In this case, the prosecution was scheduled to presentnine witnesses at the hearings held to determine whether the evidence against the private

respondents was strong. After hearing the fifth witness, the respondent judge insisted on

terminating the proceedings. We held: "The prosecution in the instant case was not given

adequate opportunity to prove that there is strong evidence of guilt and to present within a

reasonable time all the evidence it desired to present."

(4) Libarios v. Dabalo decided in 1991[15] which involved an administrative complaint against

the respondent judge for ignorance of the law and grave abuse of discretion. In this case, the

respondent judge, without conducting any prior hearing, directed the issuance of a warrant of

arrest against the accused charged with murder, fixing at the same time the bail at P50,000.00each on the ground that the evidence against them was merely circumstantial. We held: "Where

a person is accused of a capital offense, the trial court must conduct a hearing in a summary

proceeding to allow the prosecution to present, within a reasonable time, all evidence it may

desire to produce to prove that the evidence of guilt against the accused is strong before

resolving the issue of bail for the temporary release of the accused. Failure to conduct a hearing

before fixing bail in the instant case amounted to a violation of due process." The respondent

judge was ordered to pay a fine of P20,000.00 and warned to exercise more care in the

performance of his duties.

(5) People v. Nano decided in 1992.[16]

In this case. the judge issued an order admitting theaccused in a kidnapping and murder case to bail without any hearing. We held: "The prosecution

must first be given an opportunity to present evidence because by the very nature of deciding

applications for bail, it is on the basis of such evidence that judicial discretion is weighed against

in determining whether the guilt of the accused is strong."

(6) Pico v. Combong, Jr. decided in 1992.[17]In this administrative case, the respondent judge

granted bail to an accused charged with an offense punishable by reclusion perpetua, without

notice and hearing and even before the accused had been arrested or detained. We held: "It is

well settled that an application for bail from a person charged with a capital offense (now an

offense punishable by reclusion perpetua) must be set for hearing at which both the defense andthe prosecution must be given reasonable opportunity to prove (in case of the prosecution) that

the evidence of guilt of the applicant is strong, or (in the case of the defense) that such evidence

of guilt was not strong." The respondent judge was ordered to pay a fine of P20,000.00 and

warned to exercise greater care and diligence in the performance of his duties.

(7) De Guia v. Maglalang decided in 1993,[18] the respondent judge issued a warrant of arrest

and also fixed the bail of an accused charged with the non bailable offense of statutory rape


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without allowing the prosecution an opportunity to show that the evidence of guilt against the

accused is strong. Respondent judge alleged that the only evidence on record the sworn

statements of the complaining witness and her guardian were not sufficient to justify the

denial of bail. We held: "It is an established principle that in cases where a person is accused of

a capital offense, the trial court must conduct a hearing in a summary proceeding, to allow the

prosecution an opportunity to present, within a reasonable time, all evidence it may desire toproduce to prove that the evidence of guilt against the accused is strong, before resolving the

issue of bail for the temporary release of the accused. Failure to conduct a hearing before fixing

bail amounts to a violation of due process." It was noted that the warrant of arrest was returned

unserved and that after the case was re-raffled to the complainant judge's sala, the warrant was

set aside and cancelled. There was no evidence on record showing whether the approved bail

was revoked by the complainant judge, whether the accused was apprehended or whether the

accused filed an application for bail. Hence, the respondent judge was ordered to pay a fine of

P5,000.00 instead of the usual P20,000.00 that the court imposes on judges who grant the

application of bail without notice and hearing.

(8) Borinaga v. Tamin decided in 1993.[19] In this case, a complaint for murder was filed

against five persons. While the preliminary investigation was pending in the Municipal Circuit

Trial Court, a petition for bail was filed by one of the accused before the respondent judge in the

Regional Trial Court. The respondent judge ordered the prosecutor to appear at the hearing to

present evidence that the guilt of the accused is strong. At the scheduled hearing, the public

prosecutor failed to appear prompting the respondent to grant the application for bail. We held:

"Whether the motion for bail of an accused who is in custody for a capital offense be resolved in

a summary proceeding or in the course of a regular trial, the prosecution must be given an

opportunity to present within a reasonable time all evidence it may desire to introduce before

the court may resolve the motion for bail." The respondent judge was fined P20,000.00 and waswarned that the commission of a similar offense in the future will be dealt with more severely.

(9) Aurillo v. Francisco decided in 1994.[20] In this administrative case, the respondent judge

issued two separate warrants of arrest against two persons charged with murder and parricide,

but fixed the amount of bail for each accused without notifying the prosecution of any motion to

fix bail nor of any order granting the same. Citing People v. Dacudao,[21] we held: "A hearing is

absolutely indispensable before a judge can properly determine whether the prosecution's

evidence is weak or strong. Hence, a denial of the prosecution's request to adduce evidence,

deprives it of procedural due process, a right to which it is equally entitled as the defense. A

hearing is required to afford the judge a basis for determining the existence of those factors setforth under Rule 114, Sec 6." The respondent judge was ordered to pay a fine of P20,000 with a

warning that the commission of the same or similar acts in the future will be dealt with more

severely.

(10) Estoya v. Abraham-Singson decided in 1994[22] In this case, an administrative complaint

was filed against the respondent judge, alleging, among others, that she granted an application

for bail filed by the accused charged with murder. The grant was made over the objection of the


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prosecution which insisted that the evidence of guilt was strong and without allowing the

prosecution to present evidence in this regard. We held: "In immediately granting bail and fixing

it at only P20,000.00 for each of the accused without allowing the prosecution to present its

evidence, the respondent denied the prosecution due process. This Court had said so in many

cases and had imposed sanctions on judges who granted applications for bail in capital offenses

and in offenses punishable by reclusion perpetua without giving the prosecution the opportunityto prove that the evidence of guilt is strong." The respondent judge was dismissed from service

because the erroneous granting of bail was just one of the offenses found to have been

committed by her in the aforesaid complaint.

(11) Aguirre v. Belmonte decided in 1994.[23] In this administrative case the respondent judge

issued warrants of arrest and, at the same time and on his own motion. authorized the

provisional release on bail of the accused in two criminal cases for murder. The accused were

still at large at the time the order granting bail was issued. We held: "A hearing is mandatory

before bail can be granted to an accused who is charged with a capital offense." The judge was

ordered to pay a fine of P25,000.00 with a warning that a repetition of the same or similar actsin the future will be dealt with more severely. He was meted a fine in a higher amount than the

usual P20,000.00 because it involved two criminal cases wherein the respondent judge, "was not

only the grantor of bail but likewise the applicant therefor."

(12) Lardizabal v. Reyes decided in 1994.[24] In this administrative case, the respondent judge

issued an order directing the arrest of the accused charged with rape and, motu proprio, fixed

the bail of the accused in the amount of P80,000.00 without application on the part of the

accused to be admitted to bail. When the accused filed a motion to reduce bailbond, the

respondent judge again, without any prior notice and hearing, reduced the bail to P40,000.00.

We held: "The rule is explicit that when an accused is charged with a serious offense punishableby reclusion perpetua, such as rape, bail may be granted only after a motion for that purpose

has been filed by the accused and a hearing thereon conducted by a judge to determine whether

or not the prosecution's evidence of guilt is strong." The respondent judge was ordered to pay a

fine of P20,000.00 with a warning that a repetition of similar or the same offense will be dealt

with more severely.

(13) Guillermo v. Reyes decided in 1995[25] involving an administrative complaint against the

respondent judge for granting bail to the two accused charged with serious illegal detention.

When the two accused first filed a joint application for bail, the petition for bail was duly heard

and the evidence offered by the accused and the prosecution in opposition thereto were properlytaken into account. However, the respondent judge denied the application for bail on the ground

that it was premature since the accused were not yet in custody of the law. In a subsequent

order, the respondent judge, without conducting any hearing on the aforestated application and

thereby denying the prosecution an opportunity to oppose the same, granted said petition upon

the voluntary appearance in court of the two accused. Respondent judge insisted that there was

a hearing but the proceeding he adverted to was that which was conducted when the motion for

bail was first considered and then denied for being premature. We held: "The error of the


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respondent judge lies in the fact that in his subsequent consideration of the application for bail,

he acted affirmatively thereon without conducting another hearing and what is worse, his order

concededly lacked the requisite summary or resume of the evidence presented by the parties

and necessary to support the grant of bail." The respondent judge was reprimanded because

despite the irregularity in the procedure adopted in the proceeding, the prosecution was

undeniably afforded the benefit of notice and hearing. No erroneous appreciation of the evidencewas alleged nor did the prosecution indicate its desire to introduce additional evidence in an

appropriate challenge to the aforestated grant of bail by the respondent.

(14) Santos v. Ofilada decided in 1995.[26] In this case, an administrative complaint was filed

against the respondent judge, who, without notice and hearing to the prosecution, granted bail

to an accused charged with murder and illegal possession of firearm. We held: "Where admission

to bail is a matter of discretion, a hearing is mandatory before an accused can be granted bail.

At the hearing, both the prosecution and the defense must be given reasonable opportunity to

prove, in case of the prosecution, that the evidence of guilt of the applicant is strong, and in the

case of the defense, that evidence of such guilt is not strong." The respondent judge wasordered to pay a fine of P20,000.00 with a warning that a repetition of similar acts will warrant a

more severe sanction.

(15) Sule v. Biteng decided in 1995.[27]In this administrative case, the respondent judge, without

affording the prosecution the opportunity to be heard, granted with indecent haste the petition

for bail filed by the accused charged with murder because the accused "x x x voluntarily

surrendered to the authorities as soon as he was informed that he was one of the suspect (sic) x

x x" We held: "With his open admission that he granted bail to the accused without giving the

prosecution any opportunity to be heard, the respondent deliberately disregarded decisions of

this court holding that such act amounts to a denial of due process, and made himselfadministratively liable for gross ignorance of the law for which appropriate sanctions may be

imposed." The respondent judge was ordered to pay a fine of P20,000.00 and warned that

commission of the same or similar acts in the future will be dealt with more severely.

(16) Reymualdo Buzon, Jr. v. Judge Tirso Velasco decided in 1996.[28] In this administrative

case, the respondent judge, without hearing nor comment from the prosecution, granted bail to

an accused charged with murder. Notably, no bail was recommended in the warrant of arrest.

We held: "When bail is a matter of discretion, the judge is required to conduct a hearing and to

give notice of such hearing to the fiscal or require him to submit his recommendation. x x x

Truly, a judge would not be in a position to determine whether the prosecution's evidence isweak or strong unless a hearing is first conducted." A fine of P20,000.00 was imposed on the

respondent judge with the stern warning that a repetition of the same or similar acts in the

future will be dealt with more severely.

The aforecited cases are all to the effect that when bail is discretionary, a hearing, whether

summary or otherwise in the discretion of the court, should first be conducted to determine the

existence of strong evidence, or lack of it, against the accused to enable the judge to make an

intelligent assessment of the evidence presented by the parties.


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Since the determination of whether or not the evidence of guilt against the accused is strong is a

matter of judicial discretion, the judge is mandated to conduct a hearing even in cases where

the prosecution chooses to just file a comment or leave the application for bail to the discretion

of the court. Hence:

(1) In the case of Gimeno v. Arcueno, Sr.,[29] an administrative complaint was filed againstthe respondent judge for granting bail to one of the accused in a robbery with homicide case

without affording the prosecution a chance to be heard. The respondent judge explained that he

issued an order for the motion to fix bail but the public prosecutor filed a comment instead which

respondent judge thought was adequate compliance with law. Respondent added that the

evidence of guilt of the accused, as disclosed by the records, was not so strong as to deny the

application for bail. In fact, the accused who filed for bail, together with three others, were later

dropped by the Office of the Provincial Prosecutor from the information for failure of the

witnesses to positively identify them. We held: "The grant of bail is a matter of right except in

cases involving capital offenses when the matter is left to the sound discretion of the court. That

discretion lies, not in the determination whether or not a hearing should be held but in theappreciation and evaluation of the prosecution's evidence of guilt against the accused. x x x A

hearing is plainly indispensable before a judge can aptly be said to be in a position to determine

whether the evidence for the prosecution is weak or strong." Although the respondent judge's

explanation was not enough to completely exculpate him, the circumstances, coupled with his

sincere belief in the propriety of his order warranted a mitigation of the usual sanction the Court

imposes in cases of this nature. The respondent judge was ordered to pay a fine of P5,000.00

and warned that a repetition of the same or similar act in the future will be dealt with more

severely.

(2) In the case of Concerned Citizens v. Elma,[30]

an administrative complaint was filedagainst the respondent judge for granting bail to a person charged with illegal recruitment in

large scale and estafa in five separate information. The accused filed a motion to fix bail and the

respondent judge instead of setting the application for hearing, directed the prosecution to file

its comment or opposition. The prosecution submitted its comment leaving the application for

bail to the discretion of the court. The respondent judge, in granting the bail of the accused

rationalized that in ordering the prosecution to comment on the accused's motion to fix bail, he

has substantially complied with the requirement of a formal hearing. He further claimed that he

required the prosecution to adduce evidence but the latter refused and left the determination of

the motion to his discretion. This Court held, "It is true that the weight of the evidence adduced

is addressed to the sound discretion of the court. However, such discretion may only beexercised after the hearing called to ascertain the degree of guilt of the accused for the purpose

of determining whether or not he should be granted liberty. x x x In the case at bar, however,

no formal hearing was conducted by the respondent judge. He could not have assessed the

weight of evidence against the accused Gatus before granting the latter's application for bail."

The respondent judge was dismissed from service because he was previously fined for a similar

offense and was sternly warned that a repetition of the same or similar offense would be dealt

with more severely.


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(3) In the case of Baylon v. Sison,[31an administrative complaint was filed against the

respondent judge for granting bail to several accused in a double murder case. The respondent

judge claimed that he granted the application for bail because the assistant prosecutor who was

present at the hearing did not interpose an objection thereto and that the prosecution never

requested that it be allowed to show that the evidence of guilt is strong but instead, submittedthe incident for resolution. The respondent judge further claimed that the motion for

reconsideration of the order granting bail was denied only after due consideration of the

pertinent affidavits. We held: "The discretion of the court, in cases involving capital offenses

may be exercised only after there has been a hearing called to ascertain the weight of the

evidence against the accused. Peremptorily, the discretion lies, not in determining whether or

not there will be a hearing, but in appreciating and evaluating the weight of the evidence of guilt

against the accused." The respondent judge was ordered to pay a fine of P20,000.00 with a

stern warning that the commission of the same or similar offense in the future would be dealt

with more severely.

A hearing is likewise required if the prosecution refuses to adduce evidence in opposition to theapplication to grant and fix bail. "The importance of a hearing has been emphasized in not a few

cases wherein the court ruled that even if the prosecution refuses to adduce evidence or fails to

interpose an objection to the motion for bail, it is still mandatory for the court to conduct a

hearing or ask searching questions from which it may infer the strength of the evidence of guilt,

or the lack of it, against the accused."[32]

In the recent case of Tucay v. Domagas,[33] an administrative complaint was filed against the

respondent judge for granting bail to an accused charged with murder. The application for bail

contained the annotation "No objection" of the provincial prosecutor and the respondent judge,

without holding a hearing to determine whether the evidence of the prosecution was strong,granted bail and ordered the release of the accused from detention with instructions to the

bondsman to register the bond with the Register of Deeds within ten days. It was later found out

that the assessed value of the property given was short of the amount fixed for the release of

the accused. We held: "Although the provincial prosecutor had interposed no objection to the

grant of bail to the accused, respondent judge should have nevertheless have set the petition for

bail for hearing and diligently ascertained from the prosecution whether the latter was not really

contesting the bail application. x x x Only after satisfying himself that the prosecution did not

wish to oppose the petition for bail for justifiable cause (e.g., for tactical reasons) and taking

into account the factors enumerated in Rule 114, Sec. 6 for fixing bail should respondent judge

have ordered the petition for bail and ordered the release of the accused." Respondent judgeherein was ordered to pay a fine of P20,000.00 and was given a stern warning that the

commission of a similar offense in the future would be dealt with more severely.

Corollarily, another reason why hearing of a petition for bail is required, as can be gleaned from

the abovecited case, is for the court to take into consideration the guidelines set forth in Section

6, Rule 114 of the Rules of Court in fixing the amount of bail. [34] This Court, in a number of

cases[35] held that even if the prosecution fails to adduce evidence in opposition to an application


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for bail of an accused, the court may still require that it answer questions in order to ascertain

not only the strength of the state's evidence but also the adequacy of the amount of bail.

After hearing, the court's order granting or refusing bail must contain a summary of the

evidence for the prosecution.[36] On the basis thereof, the judge should then formulate his own

conclusion as to whether the evidence so presented is strong enough as to indicate the guilt ofthe accused. Otherwise, the order granting or denying the application for bail may be invalidated

because the summary of evidence for the prosecution which contains the judge's evaluation of

the evidence may be considered as an aspect of procedural due process for both the prosecution

and the defense.

This court in the case of Carpio v. Maglalang[37] invalidated the order of respondent judge

granting bail to the accused because "Without summarizing the factual basis of its order granting

bail, the court merely stated the number of prosecution witnesses but not their respective

testimonies, and concluded that the evidence presented by the prosecution was not "sufficiently

strong" to deny bail to Escano."

With the mounting precedents, this Court sees no reason why it has to repeatedly remind trial

court judges to perform their mandatory duty of conducting the required hearing in bail

applications where the accused stands charged with a capital offense.

An evaluation of the records in the case at bar reveals that respondent Judge granted bail to the

accused without first conducting a hearing to prove that the guilt of the accused is strong

despite his knowledge that the offense charged is a capital offense in disregard of the procedure

laid down in Section 8, Rule 114 of the Rules of Court as amended by Administrative Circular No.

12-94.

Respondent judge admittedly granted the petition for bail based on the prosecution's declaration

not to oppose the petition. Respondent's assertion, however, that he has a right to presume that

the prosecutor knows what he is doing on account of the latter's familiarity with the case due to

his having conducted the preliminary investigation is faulty. Said reasoning is tantamount to

ceding to the prosecutor the duty of exercising judicial discretion to determine whether the guilt

of the accused is strong. Judicial discretion is the domain of the judge before whom the petition

for provisional liberty will be decided. The mandated duty to exercise discretion has never been

reposed upon the prosecutor.

In the case of Montalbo v. Santamaria,[38] this Court held that the respondent judge is duty

bound to exercise judicial discretion conferred upon him by law to determine whether in the case

at bar, the proof is evident or the presumption of guilt is strong against the defendant and to

grant or deny the petition for provisional liberty. It also held that a writ of mandamus will lie in

order to compel the respondent judge to perform a duty imposed upon him by law.

The absence of objection from the prosecution is never a basis for granting bail to the accused.


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It is the court's determination after a hearing that the guilt of the accused is not strong that

forms the basis for granting bail. Respondent Judge should not have relied solely on the

recommendation made by the prosecutor but should have ascertained personally whether the

evidence of guilt is strong. After all, the judge is not bound by the prosecutor's recommendation.

Moreover, there will be a violation of due process if the respondent Judge grants the application

for bail without hearing since Section 8 of Rule 114 provides that whatever evidence presentedfor or against the accused's provisional release will be determined at the hearing.

The practice by trial court judges of granting bail to the accused when the prosecutor refuses or

fails to present evidence to prove that the evidence of guilt of the accused is strong can be

traced to the case of Herras Teehankee v. Director of Prisons[39] where this Court gave the

following "instructions" to the People's Court,[40] thus:

"1) In capital cases like the present when the prosecutor does not oppose the petition for release

on bail, the court should, as a general rule, in the proper exercise of its discretion, grant the

release after the approval of the bail which it should fix for the purpose;

2) But if the court has reasons to believe that the special prosecutor's attitude is not justified, it

may ask him questions to ascertain the strength of the state's evidence or to judge the

adequacy of the amount of bail;

3) When, however, the special prosecutor refuses to answer any particular question on the

ground that the answer may involve a disclosure imperiling the success of the prosecution or

jeopardizing the public interest, the court may not compel him to do so, if and when he exhibits

a statement to that effect of the Solicitor General, who, as head of the Office of Special

Prosecutors, is vested with the direction and control of the prosecution, and may not, even at

the trial, be ordered by the court to present evidence which he does not want to introduce provided, of course, that such refusal shall not prejudice the rights of the defendant or

detainee."[41]

The rationale for the first instruction was stated by this Court, as follows:

"If, for any reason, any party should abstain from introducing evidence in the case for any

definite purpose, no law nor rule exists by which he may be so compelled and the court before

which the case is pending has to act without that evidence and, in so doing, it clearly would not

be failing in its duties. If the Constitution or the law plots a certain course of action to be taken

by the court when certain evidence is found by it to exist, and the opposite course if that

evidence is wanting, and said evidence is not voluntarily adduced by the proper party, the

court's clear duty would be to adopt that course which has been provided for in case of absenceof such evidence. Applying the principle to the case at bar, it was no more within the power

nor discretion of the court to coerce the prosecution into presenting its evidence than to force

the prisoner into adducing hers. And when both elected not to do so, as they had a perfect right

to elect, the only thing remaining for the court to do was to grant the application for bail."

As for the second instruction, this Court stated that:

"The prosecutor might not oppose the application for bail and might refuse to satisfy his burden


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of proof, but where the court has reasons to believe that the prosecutor's attitude is not

justified, as when he is evidently committing a gross error or a dereliction of duty, the court

must possess a reasonable degree of control over him in the paramount interest of justice.

Under such circumstance, the court is authorized by our second instruction to inquire from the

prosecutor as to the nature of his evidence to determine whether or not it is strong, it being

possible for the prosecutor to have erred in considering it weak and, therefore, recommendingbail."

As for the third instruction, this Court declared:

"It must be observed that the court is made to rely upon the official statement of the Solicitor

General on the question of whether or not the revelation of evidence may endanger the success

of the prosecution and jeopardize the public interest. This is so, for there is no way for the court

to determine that question without having the evidence disclosed in the presence of the

applicant, disclosure which is sought to be avoided to protect the interests of the prosecution

before the trial."

It is to be recalled that Herras Teehankee was decided fully half a century ago under a

completely different factual milieu. Haydee Herras Teehankee was indicted under a law dealing

with treason cases and collaboration with the enemy. The said "instructions" given in the said

case under the 1940 Rules of Court no longer apply due to the amendments introduced in the

1985 Rules of Court.

In the 1940 Rules of Court of the Philippines, the applicable provisions on "Bail" provides, as

follows:

"Sec. 5. Capital offenses defined. A capital offense, as the term is used in this rule, is anoffense which, under the law existing at the time of its commission, and at the time of the

application to be admitted to bail, may be punished by death.

Sec. 6. Capital offenses not bailable. No person in custody for the commission of a

capital offense shall be admitted to bail if the evidence of his guilt is strong.

Sec. 7. Capital offense Burden of proof . On the hearing of an application for

admission to bail made by any person who is in custody for the commission of a capital offense,

the burden of showing that the evidence of guilt is strong is on the prosecution.

The above-cited provisions have not been adopted in toto in the 1985 Rules of Court, asamended by Administrative Circular No. 12-94, since some phrases and lines have been

intercalated, as shown by the underscored phrases and statements below:

"Sec. 6. Capital offense, defined. A capital offense, as the term is used in these rules, is

an offense which, under the law existing at the time of its commission and at the time of the

application to be admitted to bail, may be punished with death.

Sec. 7. Capital offense or an offense punishable by reclusion perpetua or life imprisonment,


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not bailable. No person charged with a capital offense, of an offense punishable by reclusion

perpetua or life imprisonment, when evidence of guilt is strong, shall be admitted to bail

regardless of the stage of the criminal prosecution.

Sec. 8. Burden of proof in bail application. At the hearing of an application for

admission to bail filed by any person who is in custody for the commission of an offensepunishable by death, reclusion perpetua or life imprisonment, the prosecution has the burden of

showing that evidence of guilt is strong. The evidence presented during the bail hearings shall be

considered automatically reproduced at the trial, but upon motion of either party, the court may

recall any witness for additional examination unless the witness is dead, outside of the

Philippines or otherwise unable to testify."

It should be noted that there has been added in Section 8 a crucial sentence not found in the

counterpart provision, Section 7, Rule 110 of the 1940 Rules of Court. The above-underscored

sentence in Section 8, Rule 114 of the 1985 Rules of Court, as amended, was added to address

a situation where in case the prosecution does not choose to present evidence to oppose the

application for bail, the judge may feel duty-bound to grant the bail application. In such a case,the judge may well lose control of the proceedings. In a sense, this undermines the authority of

a judge since all that the prosecution has to do to "force" the judge to grant the bail application

is to refrain from presenting evidence opposing the same. In effect, this situation makes

Sections 6 and 7 of the 1940 Rules of Court on "Bail" meaningless since whether or not the

evidence of guilt of a person charged with a capital offense is strong cannot be determined if the

prosecution chooses not to present evidence or oppose the bail application in a hearing precisely

to be conducted by the trial judge for that purpose, as called for in the two sections. In the

event that the prosecution fails or refuses to adduce evidence in the scheduled hearing, then a

hearing as in a regular trial should be scheduled. In this regard, a hearing in the application for

bail necessarily means presentation of evidence, and the filing of a comment or a writtenopposition to the bail application by the prosecution will not suffice.

The prosecution under the revised provision is duty bound to present evidence in the bail

hearing to prove whether the evidence of guilt of the accused is strong and not merely to oppose

the grant of bail to the accused. "This also prevents the practice in the past wherein a petition

for bail was used as a means to force the prosecution into a premature revelation of its evidence

and, if it refused to do so, the accused would claim the grant of bail on the ground that the

evidence of guilt was not strong."[42]

It should be stressed at this point, however, that the nature of the hearing in an application forbail must be equated with its purpose i.e., to determine the bailability of the accused. If the

prosecution were permitted to conduct a hearing for bail as if it were a full-dress trial on the

merits, the purpose of the proceeding, which is to secure provisional liberty of the accused to

enable him to prepare for his defense, could be defeated. At any rate, in case of a summary

hearing, the prosecution witnesses could always be recalled at the trial on the merits. [43]

In the light of the applicable rules on bail and the jurisprudential principles just enunciated, this


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Court reiterates the duties of the trial judge in case an application for bail is filed:

(1) Notify the prosecutor of the hearing of the application for bail or require him to submit his

recommendation (Section 18, Rule 114 of the Rules of Court as amended);

(2) Conduct a hearing of the application for bail regardless of whether or not the prosecutionrefuses to present evidence to show that the guilt of the accused is strong for the purpose of

enabling the court to exercise its sound discretion (Sections 7 and 8, supra);

(3) Decide whether the evidence of guilt of the accused is strong based on the summary of

evidence of the prosecution (Baylon v. Sison, supra);

(4) If the guilt of the accused is not strong, discharge the accused upon the approval of the

bailbond. (Section 19, supra). Otherwise, petition should be denied.

The above-enumerated procedure should now leave no room for doubt as to the duties of thetrial judge in cases of bail applications. So basic and fundamental is it to conduct a hearing in

connection with the grant of bail in the proper cases that it would amount to judicial apostasy for

any member of the judiciary to disclaim knowledge or awareness thereof. [44] A judge owes it to

the public and the administration of justice to know the law he is supposed to apply to a given

controversy. He is called upon to exhibit more than just a cursory acquaintance with the statutes

and procedural rules. There will be faith in the administration of justice only if there be a belief

on the part of litigants that the occupants of the bench cannot justly be accused of a deficiency

in their grasp of legal principles.[45]

Respondent judge herein insists that he could exercise his discretion in granting bail to theaccused since the Assistant Prosecutor signified in writing that he had no objection to the grant

of bail and recommended, instead, the bailbond in the sum of P80,000.00. It is to be

emphasized that although the court may have the discretion to grant the application for bail, in

cases of capital offenses, the determination as to whether or not the evidence of guilt is strong

can only be reached after due hearing which, in this particular instance has not been

substantially complied with by the respondent Judge.

While it may be true that the respondent judge set the application for bail for hearing three

times, thus showing lack of malice or bad faith in granting bail to the accused, nonetheless, this

does not completely exculpate him because the fact remains that a hearing has not actuallybeen conducted in violation of his duty to determine whether or not the evidence against the

accused is strong for purposes of bail. Normally, the Court imposes a penalty of P20,000.00 fine

in cases where the judge grants the application for bail without notice and hearing. In view

however of the circumstances of this case, a reprimand instead of the P20,000.00 would suffice.

WHEREFORE, in view of the foregoing, respondent Judge Leo M. Rapatalo, RTC, Branch 32,

Agoo, La Union, is hereby REPRIMANDED with the WARNING that a repetition of the same or


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similar acts in the future will be dealt with more severely.

SO ORDERED.

Regalado, (Chairman), Puno, Mendoza, and Torres, Jr., JJ., concur.

[1] Release Order dated June 29, 1995, p. 13, Rollo.

[2] p. 10, Rollo.

[3] Order dated August 17, 1995, p. 19, Rollo.

[4]Del Carmen, Rolando V., Criminal Procedure, Law and Practice, p. 31, 3rd ed. (1995).

[5]

Section 7, supra.

[6] Del Carmen, Rolando V., supra.

[7]Ramos v. Ramos, 45 Phil. 362.

[8] Ocampo v. Bernabe, 77 Phil. 55.

[9]Francisco, Ricardo J., Criminal Procedure, 1993 ed., p. 226. citing Rex v. Wilkee, 4 Burr.,

2527; 98 Reprint, 327, cited in note 26 (a), 6 C.J., p. 254.

[10] Siazon v Presiding Judge, et al., 42 SCRA 184 (1971).

[11] 103 SCRA 393.

[12] 26 SCRA 522 (1968).

[13] 170 SCRA 489.

[14] 186 SCRA 620

[15] 199 SCRA 48

[16]205 SCRA 155

[17] 215 SCRA 421

[18] A.M. No. RTJ-89-306, March 1, 1993


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[19] 226 SCRA 206, 216 (1993).

[20] 235 SCRA 283.

[21] Supra.

[22] 237 SCRA 1

[23] 237 SCRA 778

[24] 238 SCRA 640.

[25]240 SCRA 154.

[26] 245 SCRA 56.

[27] 243 SCRA 524.

[28] A.M. No RTJ-94-1209, 253 SCRA 601.

[29] 250 SCRA 376 (1995).

[30] 241 SCRA 84 (1995).

[31] 243 SCRA 284 (1995). See also the cases of Borinaga v. Tamin, supra and Aguirre v.

Belmonte, supra and Tucay v. Domagas, 242 SCRA 110 (1995).

[32] Baylon v. Sison, supra.

[33] 242 SCRA 110 (1995).

[34] See also People v. Dacudao, supra and Aurillo v. Francisco, supra.

[35] Baylon v. Sison, supra.; Borinaga v. Tamin, supra; Santos v. Ofilada, supra; Aguirre v.

Belmonte, supra.

[36] See People v. San Diego, 26 SCRA 52; People v. Nano, supra; Guillermo v. Reyes, supra;

Santos v. Ofilada, supra.

[37] 196 SCRA 41 (1991).

[38]54 Phil. 955, [1930].


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[39] 76 Phil. 756 (1946).

[40] Created under Commonwealth Act No. 682 to try cases of treason and collaboration with the

enemy.

[41]Supra, p. 774.

[42] Regalado, F.D., Remedial Law Compendium, 7th Revised Edition, Volume II, p. 343.

[43] Siazon v Presiding Judge, et al., supra.

[44] Borinaga v. Tamin, supra.

[45] Supra, citing Libarios v. Dabalos, 199 SCRA 48 (1991).

Source: Supreme Court E-Library | Date created: April 26, 2011

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Supreme Court E-Library

THIRD DIVISION

[ G.R. No. 189122, March 17, 2010 ]

JOSE ANTONIO LEVISTE, PETITIONER, VS. THE COURT OF APPEALSAND PEOPLE OF THE PHILIPPINES, RESPONDENTS.

D E C I S I O N

CORONA, J.:

Bail, the security given by an accused who is in the custody of the law for his release to

guarantee his appearance before any court as may be required, [1] is the answer of the criminal

justice system to a vexing question: what is to be done with the accused, whose guilt has not


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yet been proven, in the "dubious interval," often years long, between arrest and final

adjudication?[2] Bail acts as a reconciling mechanism to accommodate both the accused's

interest in pretrial liberty and society's interest in assuring the accused's presence at trial.[3]

Upon conviction by the Regional Trial Court of an offense not punishable by death, reclusion

perpetua or life imprisonment, the accused who has been sentenced to prison must typicallybegin serving time immediately unless, on application, he is admitted to bail. [4] An accused not

released on bail is incarcerated before an appellate court confirms that his conviction is legal and

proper. An erroneously convicted accused who is denied bail loses his liberty to pay a debt to

society he has never owed.[5] Even if the conviction is subsequently affirmed, however, the

accused's interest in bail pending appeal includes freedom pending judicial review, opportunity

to efficiently prepare his case and avoidance of potential hardships of prison. [6] On the other

hand, society has a compelling interest in protecting itself by swiftly incarcerating an individual

who is found guilty beyond reasonable doubt of a crime serious enough to warrant prison time. [7]

Other recognized societal interests in the denial of bail pending appeal include the prevention of

the accused's flight from court custody, the protection of the community from potential dangerand the avoidance of delay in punishment.[8] Under what circumstances an accused may obtain

bail pending appeal, then, is a delicate balance between the interests of society and those of the

accused.[9]

Our rules authorize the proper courts to exercise discretion in the grant of bail pending appeal to

those convicted by the Regional Trial Court of an offense not punishable by death, reclusion

perpetua or life imprisonment. In the exercise of that discretion, the proper courts are to be

guided by the fundamental principle that the allowance of bail pending appeal should be

exercised not with laxity but with grave caution and only for strong reasons,

considering that the accused has been in fact convicted by the trial court.[10]

THE FACTS

Charged with the murder of Rafael de las Alas, petitioner Jose Antonio Leviste was convicted by

the Regional Trial Court of Makati City for the lesser crime of homicide and sentenced to suffer

an indeterminate penalty of six years and one day ofprision mayoras minimum to 12 years and

one day ofreclusion temporalas maximum.[11]

He appealed his conviction to the Court of Appeals.[12] Pending appeal, he filed an urgent

application for admission to bail pending appeal, citing his advanced age and health condition,and claiming the absence of any risk or possibility of flight on his part.

The Court of Appeals denied petitioner's application for bail. [13] It invoked the bedrock principle

in the matter of bail pending appeal, that the discretion to extend bail during the course of

appeal should be exercised "with grave caution and only for strong reasons." Citing well-

established jurisprudence, it ruled that bail is not a sick pass for an ailing or aged detainee or a

prisoner needing medical care outside the prison facility. It found that petitioner


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... failed to show that he suffers from ailment of such gravity that his continued confinement

during trial will permanently impair his health or put his life in danger. x x x Notably, the

physical condition of [petitioner] does not prevent him from seeking medical attention while

confined in prison, though he clearly preferred to be attended by his personal physician. [14]

For purposes of determining whether petitioner's application for bail could be allowed pendingappeal, the Court of Appeals also considered the fact of petitioner's conviction. It made a

preliminary evaluation of petitioner's case and made aprima facie determination that there was

no reason substantial enough to overturn the evidence of petitioner's guilt.

Petitioner's motion for reconsideration was denied.[15]

Petitioner now questions as grave abuse of discretion the denial of his application for bail,

considering that none of the conditions justifying denial of bail under the third paragraph of

Section 5, Rule 114 of the Rules of Court was present. Petitioner's theory is that, where the

penalty imposed by the trial court is more than six years but not more than 20 years and thecircumstances mentioned in the third paragraph of Section 5 are absent, bail must be granted

to an appellant pending appeal.

THE ISSUE

The question presented to the Court is this: in an application for bail pending appeal by an

appellant sentenced by the trial court to a penalty of imprisonment for more than six years, does

the discretionary nature of the grant of bail pending appeal mean that bail should automatically

be granted absent any of the circumstances mentioned in the third paragraph of Section 5, Rule

114 of the Rules of Court?

Section 5, Rule 114 of the Rules of Court provides:

Sec. 5. Bail, when discretionary. -- Upon conviction by the Regional Trial Court of an

offense not punisha

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