PROF. RANDOLF S. DAVID, LORENZO TAÑADA III, RONALD Once again, the Court is faced with an age-old but persistently modern LLAMAS, H. HARRY L. ROQUE, JR., JOEL RUIZ BUTUYAN, ROGER problem. How does the Constitution of a free people combine the degree of R. RAYEL, GARY S. MALLARI, ROMEL REGALADO BAGARES, liberty, without which, law becomes tyranny, with the degree of law, CHRISTOPHER F.C. BOLASTIG, petitioners, without which, liberty becomes license? vs. GLORIA MACAPAGAL-ARROYO, AS PRESIDENT AND COMMANDER-IN-CHIEF, EXECUTIVE SECRETARY EDUARDO On February 24, 2006, as the nation celebrated the 20th Anniversary of the ERMITA, HON. AVELINO CRUZ II, SECRETARY OF NATIONAL Edsa People Power I, President Arroyo issued PP 1017 declaring a state of DEFENSE, GENERAL GENEROSO SENGA, CHIEF OF STAFF, national emergency, thus: ARMED FORCES OF THE PHILIPPINES, DIRECTOR GENERAL NOW, THEREFORE, I, Gloria Macapagal-Arroyo, President of the ARTURO LOMIBAO, CHIEF, PHILIPPINE NATIONAL POLICE, Republic of the Philippines and Commander-in-Chief of the Armed Forces respondents. of the Philippines, by virtue of the powers vested upon me by Section 18, Article 7 of the Philippine Constitution which states that: "The President. . . G.R. No. 171396 whenever it becomes necessary, . . . may call out (the) armed forces to May 3, 2006 prevent or suppress . . . rebellion. . . ," and in my capacity as their Commander-in-Chief, do hereby command the Armed Forces of the All powers need some restraint; practical adjustments rather than rigid Philippines, to maintain law and order throughout the Philippines, prevent formula are necessary. 1 Superior strength — the use of force — cannot or suppress all forms of lawless violence as well as any act of insurrection make wrongs into rights. In this regard, the courts should be vigilant in or rebellion and to enforce obedience to all the laws and to all decrees, safeguarding the constitutional rights of the citizens, specifically their orders and regulations promulgated by me personally or upon my direction; liberty. and as provided in Section 17, Article 12 of the Constitution do hereby declare a State of National Emergency. Chief Justice Artemio V. Panganiban's philosophy of liberty is thus most She cited the following facts as bases: relevant. He said: "In cases involving liberty, the scales of justice should weigh heavily against government and in favor of the poor, the oppressed, WHEREAS, over these past months, elements in the political opposition the marginalized, the dispossessed and the weak." Laws and actions that have conspired with authoritarians of the extreme Left represented by the restrict fundamental rights come to the courts "with a heavy presumption NDF-CPP-NPA and the extreme Right, represented by military adventurists against their constitutional validity." — the historical enemies of the democratic Philippine State — who are now in a tactical alliance and engaged in a concerted and systematic conspiracy, These seven (7) consolidated petitions for certiorari and prohibition allege over a broad front, to bring down the duly constituted Government elected that in issuing Presidential Proclamation No. 1017 (PP 1017) and General in May 2004; Order No. 5 (G.O. No. 5), President Gloria Macapagal-Arroyo committed grave abuse of discretion. Petitioners contend that respondent officials of WHEREAS, these conspirators have repeatedly tried to bring down the the Government, in their professed efforts to defend and preserve President; democratic institutions, are actually trampling upon the very freedom guaranteed and protected by the Constitution. Hence, such issuances are WHEREAS, the claims of these elements have been recklessly magnified void for being unconstitutional. by certain segments of the national media; WHEREAS, this series of actions is hurting the Philippine State — by sabotaging the people's confidence in the government and their faith in the obstructing governance including hindering the growth of the economy and future of this country; sabotaging the people's confidence in government and their faith in the future of this country; WHEREAS, these actions are adversely affecting the economy;

WHEREAS, these actions are adversely affecting the economy; WHEREAS, these activities give totalitarian forces; of both the extreme Left and extreme Right the opening to intensify their avowed aims to bring WHEREAS, these activities give totalitarian forces of both the extreme Left down the democratic Philippine State; and extreme Right the opening to intensify their avowed aims to bring down the democratic Philippine State; WHEREAS, Article 2, Section 4 of our Constitution makes the defense and preservation of the democratic institutions and the State the primary duty of WHEREAS, Article 2, Section 4 of the our Constitution makes the defense Government; and preservation of the democratic institutions and the State the primary duty of Government; WHEREAS, the activities above-described, their consequences, ramifications and collateral effects constitute a clear and present danger to WHEREAS, the activities above-described, their consequences, the safety and the integrity of the Philippine State and of the Filipino ramifications and collateral effects constitute a clear and present danger to people; the safety and the integrity of the Philippine State and of the Filipino people; WHEREAS, Proclamation 1017 date February 24, 2006 has been issued declaring a State of National Emergency; On the same day, the President issued G.O. No. 5 implementing PP 1017, thus: NOW, THEREFORE, I GLORIA MACAPAGAL-ARROYO, by virtue of WHEREAS, over these past months, elements in the political opposition the powers vested in me under the Constitution as President of the Republic have conspired with authoritarians of the extreme Left, represented by the of the Philippines, and Commander-in-Chief of the Republic of the NDF-CPP-NPA and the extreme Right, represented by military adventurists Philippines, and pursuant to Proclamation No. 1017 dated February 24, — the historical enemies of the democratic Philippine State — and who are 2006, do hereby call upon the Armed Forces of the Philippines (AFP) and now in a tactical alliance and engaged in a concerted and systematic the Philippine National Police (PNP), to prevent and suppress acts of conspiracy, over a broad front, to bring down the duly-constituted terrorism and lawless violence in the country; Government elected in May 2004; WHEREAS, these conspirators have repeatedly tried to bring down our I hereby direct the Chief of Staff of the AFP and the Chief of the PNP, as republican government; well as the officers and men of the AFP and PNP, to immediately carry out the necessary and appropriate actions and measures to suppress and prevent WHEREAS, the claims of these elements have been recklessly magnified acts of terrorism and lawless violence. by certain segments of the national media; On March 3, 2006, exactly one week after the declaration of a state of WHEREAS, these series of actions is hurting the Philippine State by national emergency and after all these petitions had been filed, the President obstructing governance, including hindering the growth of the economy and lifted PP 1017. She issued Proclamation No. 1021 which reads: WHEREAS, pursuant to Section 18, Article VII and Section 17, Article XII On January 17, 2006, Captain Nathaniel Rabonza and First Lieutenants of the Constitution, Proclamation No. 1017 dated February 24, 2006, was Sonny Sarmiento, Lawrence San Juan and Patricio Bumidang, members of issued declaring a state of national emergency; the Magdalo Group indicted in the Oakwood mutiny, escaped their detention cell in Fort Bonifacio, Taguig City. In a public statement, they WHEREAS, by virtue of General Order No. 5 and No. 6 dated February 24, vowed to remain defiant and to elude arrest at all costs. They called upon 2006, which were issued on the basis of Proclamation No. 1017, the Armed the people to "show and proclaim our displeasure at the sham regime. Let us Forces of the Philippines (AFP) and the Philippine National Police (PNP), demonstrate our disgust, not only by going to the streets in protest, but also were directed to maintain law and order throughout the Philippines, prevent by wearing red bands on our left arms." and suppress all form of lawless violence as well as any act of rebellion and to undertake such action as may be necessary; On February 17, 2006, the authorities got hold of a document entitled "Oplan Hackle I" which detailed plans for bombings and attacks during the WHEREAS, the AFP and PNP have effectively prevented, suppressed and Philippine Military Academy Alumni Homecoming in Baguio City. The quelled the acts lawless violence and rebellion; plot was to assassinate selected targets including some cabinet members and President Arroyo herself. 6 Upon the advice of her security, President NOW, THEREFORE, I, GLORIA MACAPAGAL-ARROYO, President of Arroyo decided not to attend the Alumni Homecoming. The next day, at the the Republic of the Philippines, by virtue of the powers vested in me by height of the celebration, a bomb was found and detonated at the PMA law, hereby declare that the state of national emergency has ceased to exist. parade ground.

In their presentation of the factual bases of PP 1017 and G.O. No. 5, On February 21, 2006, Lt. San Juan was recaptured in a communist respondents stated that the proximate cause behind the executive issuances safehouse in Batangas province. Found in his possession were two (2) flash was the conspiracy among some military officers, leftist insurgents of the disks containing minutes of the meetings between members of the Magdalo New People's Army (NPA), and some members of the political opposition Group and the National People's Army (NPA), a tape recorder, audio in a plot to unseat or assassinate President Arroyo. They considered the aim cassette cartridges, diskettes, and copies of subversive documents. 7 Prior to to oust or assassinate the President and take-over the reigns of government his arrest, Lt. San Juan announced through DZRH that the "Magdalo's D- as a clear and present danger. Day would be on February 24, 2006, the 20th Anniversary of Edsa I."

During the oral arguments held on March 7, 2006, the Solicitor General On February 23, 2006, PNP Chief Arturo Lomibao intercepted information specified the facts leading to the issuance of PP 1017 and G.O. No. 5. that members of the PNP- Special Action Force were planning to defect. Significantly, there was no refutation from petitioners' counsels. Thus, he immediately ordered SAF Commanding General Marcelino Franco, Jr. to "disavow" any defection. The latter promptly obeyed and The Solicitor General argued that the intent of the Constitution is to give issued a public statement: "All SAF units are under the effective control of full discretionary powers to the President in determining the necessity of responsible and trustworthy officers with proven integrity and calling out the armed forces. He emphasized that none of the petitioners has unquestionable loyalty." shown that PP 1017 was without factual bases. While he explained that it is not respondents' task to state the facts behind the questioned Proclamation, On the same day, at the house of former Congressman Peping Cojuangco, however, they are presenting the same, narrated hereunder, for the President Cory Aquino's brother, businessmen and mid-level government elucidation of the issues. officials plotted moves to bring down the Arroyo administration. Nelly Sindayen of TIME Magazine reported that Pastor Saycon, longtime Arroyo Respondents further claimed that the bombing of telecommunication towers critic, called a U.S. government official about his group's plans if President and cell sites in Bulacan and Bataan was also considered as additional Arroyo is ousted. Saycon also phoned a man code-named Delta. Saycon factual basis for the issuance of PP 1017 and G.O. No. 5. So is the raid of an identified him as B/Gen. Danilo Lim, Commander of the Army's elite Scout army outpost in Benguet resulting in the death of three (3) soldiers. And Ranger. Lim said "it was all systems go for the planned movement against also the directive of the Communist Party of the Philippines ordering its Arroyo." front organizations to join 5,000 Metro Manila radicals and 25,000 more from the provinces in mass protests. B/Gen. Danilo Lim and Brigade Commander Col. Ariel Querubin confided to Gen. Generoso Senga, Chief of Staff of the Armed Forces of the By midnight of February 23, 2006, the President convened her security Philippines (AFP), that a huge number of soldiers would join the rallies to advisers and several cabinet members to assess the gravity of the fermenting provide a critical mass and armed component to the Anti-Arroyo protests to peace and order situation. She directed both the AFP and the PNP to be held on February 24, 2005. According to these two (2) officers, there account for all their men and ensure that the chain of command remains was no way they could possibly stop the soldiers because they too, were solid and undivided. To protect the young students from any possible breaking the chain of command to join the forces foist to unseat the trouble that might break loose on the streets, the President suspended President. However, Gen. Senga has remained faithful to his Commander- classes in all levels in the entire National Capital Region. in-Chief and to the chain of command. He immediately took custody of B/Gen. Lim and directed Col. Querubin to return to the Philippine Marines For their part, petitioners cited the events that followed after the issuance of Headquarters in Fort Bonifacio. PP 1017 and G.O. No. 5.

Earlier, the CPP-NPA called for intensification of political and Immediately, the Office of the President announced the cancellation of all revolutionary work within the military and the police establishments in programs and activities related to the 20th anniversary celebration of Edsa order to forge alliances with its members and key officials. NPA spokesman People Power I; and revoked the permits to hold rallies issued earlier by the Gregorio "Ka Roger" Rosal declared: "The Communist Party and local governments. Justice Secretary Raul Gonzales stated that political revolutionary movement and the entire people look forward to the rallies, which to the President's mind were organized for purposes of possibility in the coming year of accomplishing its immediate task of destabilization, are cancelled. Presidential Chief of Staff Michael Defensor bringing down the Arroyo regime; of rendering it to weaken and unable to announced that "warrantless arrests and take-over of facilities, including rule that it will not take much longer to end it." media, can already be implemented."

On the other hand, Cesar Renerio, spokesman for the National Democratic Undeterred by the announcements that rallies and public assemblies would Front (NDF) at North Central Mindanao, publicly announced: "Anti-Arroyo not be allowed, groups of protesters (members of Kilusang Mayo Uno groups within the military and police are growing rapidly, hastened by the [KMU] and National Federation of Labor Unions-Kilusang Mayo Uno economic difficulties suffered by the families of AFP officers and enlisted [NAFLU-KMU]), marched from various parts of Metro Manila with the personnel who undertake counter-insurgency operations in the field." He intention of converging at the EDSA shrine. Those who were already near claimed that with the forces of the national democratic movement, the anti- the EDSA site were violently dispersed by huge clusters of anti-riot police. Arroyo conservative political parties, coalitions, plus the groups that have The well-trained policemen used truncheons, big fiber glass shields, water been reinforcing since June 2005, it is probable that the President's ouster is cannons, and tear gas to stop and break up the marching groups, and scatter nearing its concluding stage in the first half of 2006. the massed participants. The same police action was used against the protesters marching forward to Cubao, Quezon City and to the corner of state of national emergency. He asked for "balanced reporting" from Santolan Street and EDSA. That same evening, hundreds of riot policemen broadcasters when covering the events surrounding the coup attempt foiled broke up an EDSA celebration rally held along Ayala Avenue and Paseo de by the government. He warned that his agency will not hesitate to Roxas Street in Makati City. recommend the closure of any broadcast outfit that violates rules set out for media coverage when the national security is threatened. According to petitioner Kilusang Mayo Uno, the police cited PP 1017 as the ground for the dispersal of their assemblies. Also, on February 25, 2006, the police arrested Congressman Crispin Beltran, representing the Anakpawis Party and Chairman of Kilusang Mayo During the dispersal of the rallyists along EDSA, police arrested (without Uno (KMU), while leaving his farmhouse in Bulacan. The police showed a warrant) petitioner Randolf S. David, a professor at the University of the warrant for his arrest dated 1985. Beltran's lawyer explained that the Philippines and newspaper columnist. Also arrested was his companion, warrant, which stemmed from a case of inciting to rebellion filed during the Ronald Llamas, president of party-list Akbayan. Marcos regime, had long been quashed. Beltran, however, is not a party in any of these petitions. At around 12:20 in the early morning of February 25, 2006, operatives of the Criminal Investigation and Detection Group (CIDG) of the PNP, on the When members of petitioner KMU went to Camp Crame to visit Beltran, basis of PP 1017 and G.O. No. 5, raided the Daily Tribune offices in they were told they could not be admitted because of PP 1017 and G.O. No. Manila. The raiding team confiscated news stories by reporters, documents, 5. Two members were arrested and detained, while the rest were dispersed pictures, and mock-ups of the Saturday issue. Policemen from Camp Crame by the police. in Quezon City were stationed inside the editorial and business offices of the newspaper; while policemen from the Manila Police District were Bayan Muna Representative Satur Ocampo eluded arrest when the police stationed outside the building. went after him during a public forum at the Sulo Hotel in Quezon City. But his two drivers, identified as Roel and Art, were taken into custody. A few minutes after the search and seizure at the Daily Tribune offices, the police surrounded the premises of another pro-opposition paper, Malaya, Retired Major General Ramon Montaño, former head of the Philippine and its sister publication, the tabloid Abante. Constabulary, was arrested while with his wife and golfmates at the Orchard Golf and Country Club in Dasmariñas, Cavite. The raid, according to Presidential Chief of Staff Michael Defensor, is "meant to show a 'strong presence,' to tell media outlets not to connive or do Attempts were made to arrest Anakpawis Representative Satur Ocampo, anything that would help the rebels in bringing down this government." The Representative Rafael Mariano, Bayan Muna Representative Teodoro PNP warned that it would take over any media organization that would not Casiño and Gabriela Representative Liza Maza. Bayan Muna follow "standards set by the government during the state of national Representative Josel Virador was arrested at the PAL Ticket Office in emergency." Director General Lomibao stated that "if they do not follow the Davao City. Later, he was turned over to the custody of the House of standards — and the standards are — if they would contribute to instability Representatives where the "Batasan 5" decided to stay indefinitely. in the government, or if they do not subscribe to what is in General Order No. 5 and Proc. No. 1017 — we will recommend a 'takeover.'" National Let it be stressed at this point that the alleged violations of the rights of Telecommunications' Commissioner Ronald Solis urged television and Representatives Beltran, Satur Ocampo, et al., are not being raised in these radio networks to "cooperate" with the government for the duration of the petitions. On March 3, 2006, President Arroyo issued PP 1021 declaring that the state of national emergency has ceased to exist. In G.R. No. 171400, petitioner Alternative Law Groups, Inc. (ALGI) alleged that PP 1017 and G.O. No. 5 are unconstitutional because they In the interim, these seven (7) petitions challenging the constitutionality of violate (a) Section 4 of Article II, (b) Sections 1, 2, and 4 of Article III, (c) PP 1017 and G.O. No. 5 were filed with this Court against the above-named Section 23 of Article VI, and (d) Section 17 of Article XII of the respondents. Three (3) of these petitions impleaded President Arroyo as Constitution. respondent. In G.R. No. 171489, petitioners Jose Anselmo I. Cadiz et al., alleged that In G.R. No. 171396, petitioners Randolf S. David, et al. assailed PP 1017 PP 1017 is an "arbitrary and unlawful exercise by the President of her on the grounds that (1) it encroaches on the emergency powers of Congress; Martial Law powers." And assuming that PP 1017 is not really a declaration (2) it is a subterfuge to avoid the constitutional requirements for the of Martial Law, petitioners argued that "it amounts to an exercise by the imposition of martial law; and (3) it violates the constitutional guarantees of President of emergency powers without congressional approval." In freedom of the press, of speech and of assembly. addition, petitioners asserted that PP 1017 "goes beyond the nature and function of a proclamation as defined under the Revised Administrative In G.R. No. 171409, petitioners Ninez Cacho-Olivares and Tribune Code." Publishing Co., Inc. challenged the CIDG's act of raiding the Daily Tribune offices as a clear case of "censorship" or "prior restraint." They also claimed And lastly, in G.R. No. 171424, petitioner Loren B. Legarda maintained that the term "emergency" refers only to tsunami, typhoon, hurricane and that PP 1017 and G.O. No. 5 are "unconstitutional for being violative of the similar occurrences, hence, there is "absolutely no emergency" that warrants freedom of expression, including its cognate rights such as freedom of the the issuance of PP 1017. press and the right to access to information on matters of public concern, all guaranteed under Article III, Section 4 of the 1987 Constitution." In this In G.R. No. 171485, petitioners herein are Representative Francis Joseph G. regard, she stated that these issuances prevented her from fully prosecuting Escudero, and twenty one (21) other members of the House of her election protest pending before the Presidential Electoral Tribunal. Representatives, including Representatives Satur Ocampo, Rafael Mariano, Teodoro Casiño, Liza Maza, and Josel Virador. They asserted that PP 1017 In respondents' Consolidated Comment, the Solicitor General countered and G.O. No. 5 constitute "usurpation of legislative powers"; "violation of that: first, the petitions should be dismissed for being moot; second, freedom of expression" and "a declaration of martial law." They alleged that petitioners in G.R. Nos. 171400 (ALGI), 171424 (Legarda), 171483 (KMU President Arroyo "gravely abused her discretion in calling out the armed et al.), 171485 (Escudero et al.) and 171489 (Cadiz et al.) have no legal forces without clear and verifiable factual basis of the possibility of lawless standing; third, it is not necessary for petitioners to implead President violence and a showing that there is necessity to do so." Arroyo as respondent; fourth, PP 1017 has constitutional and legal basis; and fifth, PP 1017 does not violate the people's right to free expression and In G.R. No. 171483, petitioners KMU, NAFLU-KMU, and their members redress of grievances. averred that PP 1017 and G.O. No. 5 are unconstitutional because (1) they arrogate unto President Arroyo the power to enact laws and decrees; (2) On March 7, 2006, the Court conducted oral arguments and heard their issuance was without factual basis; and (3) they violate freedom of petitioners on the above interlocking issues which may be summarized as expression and the right of the people to peaceably assemble to redress their follows: grievances. A. PROCEDURAL: 1) Whether the issuance of PP 1021 renders the petitions moot and Respondents maintain that the first and second requisites are absent, hence, academic. DcHaET we shall limit our discussion thereon. 2) Whether petitioners in 171485 (Escudero et al.), G.R. Nos. 171400 (ALGI), 171483 (KMU et al.), 171489 (Cadiz et al.), and 171424 (Legarda) An actual case or controversy involves a conflict of legal right, an opposite have legal standing. legal claims susceptible of judicial resolution. It is "definite and concrete, B. SUBSTANTIVE: touching the legal relations of parties having adverse legal interest;" a real 1) Whether the Supreme Court can review the factual bases of PP and substantial controversy admitting of specific relief. The Solicitor 1017. General refutes the existence of such actual case or controversy, contending 2) Whether PP 1017 and G.O. No. 5 are unconstitutional. that the present petitions were rendered "moot and academic" by President a. Facial Challenge Arroyo's issuance of PP 1021. b. Constitutional Basis c. As Applied Challenge Such contention lacks merit. A. PROCEDURAL A moot and academic case is one that ceases to present a justiciable First, we must resolve the procedural roadblocks. controversy by virtue of supervening events, so that a declaration thereon would be of no practical use or value. Generally, courts decline jurisdiction I — Moot and Academic Principle over such case or dismiss it on ground of mootness. One of the greatest contributions of the American system to this country is the concept of judicial review enunciated in Marbury v. Madison. This The Court holds that President Arroyo's issuance of PP 1021 did not render concept rests on the extraordinary simple foundation — the present petitions moot and academic. During the eight (8) days that PP 1017 was operative, the police officers, according to petitioners, committed The Constitution is the supreme law. It was ordained by the people, the illegal acts in implementing it. Are PP 1017 and G.O. No. 5 constitutional ultimate source of all political authority. It confers limited powers on the or valid? Do they justify these alleged illegal acts? These are the vital issues national government. . . . If the government consciously or unconsciously that must be resolved in the present petitions. It must be stressed that "an oversteps these limitations there must be some authority competent to hold unconstitutional act is not a law, it confers no rights, it imposes no duties, it it in control, to thwart its unconstitutional attempt, and thus to vindicate and affords no protection; it is in legal contemplation, inoperative." preserve inviolate the will of the people as expressed in the Constitution. This power the courts exercise. This is the beginning and the end of the The "moot and academic" principle is not a magical formula that can theory of judicial review. automatically dissuade the courts in resolving a case. Courts will decide cases, otherwise moot and academic, if: first, there is a grave violation of But the power of judicial review does not repose upon the courts a "self- the Constitution; second, the exceptional character of the situation and the starting capacity." Courts may exercise such power only when the following paramount public interest is involved; third, when constitutional issue raised requisites are present: first, there must be an actual case or controversy; requires formulation of controlling principles to guide the bench, the bar, second, petitioners have to raise a question of constitutionality; third, the and the public; and fourth, the case is capable of repetition yet evading constitutional question must be raised at the earliest opportunity; and fourth, review. the decision of the constitutional question must be necessary to the determination of the case itself. All the foregoing exceptions are present here and justify this Court's The difficulty of determining locus standi arises in public suits. Here, the assumption of jurisdiction over the instant petitions. Petitioners alleged that plaintiff who asserts a "public right" in assailing an allegedly illegal official the issuance of PP 1017 and G.O. No. 5 violates the Constitution. There is action, does so as a representative of the general public. He may be a person no question that the issues being raised affect the public's interest, involving who is affected no differently from any other person. He could be suing as a as they do the people's basic rights to freedom of expression, of assembly "stranger," or in the category of a "citizen," or 'taxpayer." In either case, he and of the press. Moreover, the Court has the duty to formulate guiding and has to adequately show that he is entitled to seek judicial protection. In controlling constitutional precepts, doctrines or rules. It has the symbolic other words, he has to make out a sufficient interest in the vindication of the function of educating the bench and the bar, and in the present petitions, the public order and the securing of relief as a "citizen" or "taxpayer. military and the police, on the extent of the protection given by constitutional guarantees. 35 And lastly, respondents' contested actions are Case law in most jurisdictions now allows both "citizen" and "taxpayer" capable of repetition. Certainly, the petitions are subject to judicial review. standing in public actions. The distinction was first laid down in Beauchamp v. Silk, where it was held that the plaintiff in a taxpayer's suit is In their attempt to prove the alleged mootness of this case, respondents cited in a different category from the plaintiff in a citizen's suit. In the former, the Chief Justice Artemio V. Panganiban's Separate Opinion in Sanlakas v. plaintiff is affected by the expenditure of public funds, while in the latter, he Executive Secretary. 36 However, they failed to take into account the Chief is but the mere instrument of the public concern. As held by the New York Justice's very statement that an otherwise "moot" case may still be decided Supreme Court in People ex rel Case v. Collins: "In matter of mere public "provided the party raising it in a proper case has been and/or continues to right, however . . . the people are the real parties. . . It is at least the right, if be prejudiced or damaged as a direct result of its issuance." The present not the duty, of every citizen to interfere and see that a public offence be case falls right within this exception to the mootness rule pointed out by the properly pursued and punished, and that a public grievance be remedied." Chief Justice. With respect to taxpayer's suits, Terr v. Jordan 41 held that "the right of a citizen and a taxpayer to maintain an action in courts to restrain the II — Legal Standing unlawful use of public funds to his injury cannot be denied." In view of the number of petitioners suing in various personalities, the Court deems it imperative to have a more than passing discussion on legal However, to prevent just about any person from seeking judicial standing or locus standi. interference in any official policy or act with which he disagreed with, and thus hinders the activities of governmental agencies engaged in public Locus standi is defined as "a right of appearance in a court of justice on a service, the United States Supreme Court laid down the more stringent given question." 37 In private suits, standing is governed by the "real- "direct injury" test in Ex Parte Levitt, later reaffirmed in Tileston v. Ullman. parties-in interest" rule as contained in Section 2, Rule 3 of the 1997 Rules 43 The same Court ruled that for a private individual to invoke the judicial of Civil Procedure, as amended. It provides that "every action must be power to determine the validity of an executive or legislative action, he prosecuted or defended in the name of the real party in interest." must show that he has sustained a direct injury as a result of that action, and Accordingly, the "real-party-in interest" is "the party who stands to be it is not sufficient that he has a general interest common to all members of benefited or injured by the judgment in the suit or the party entitled to the the public. avails of the suit." Succinctly put, the plaintiff's standing is based on his own right to the relief sought. This Court adopted the "direct injury" test in our jurisdiction. In People v. Vera, it held that the person who impugns the validity of a statute must have "a personal and substantial interest in the case such that he has sustained, or will sustain direct injury as a result." The Vera doctrine was upheld in a By way of summary, the following rules may be culled from the cases litany of cases, such as, Custodio v. President of the Senate, Manila Race decided by this Court. Taxpayers, voters, concerned citizens, and legislators Horse Trainers' Association v. De la Fuente, Pascual v. Secretary of Public may be accorded standing to sue, provided that the following requirements Works and Anti-Chinese League of the Philippines v. Felix. are met: (1) the cases involve constitutional issues; However, being a mere procedural technicality, the requirement of locus (2) for taxpayers, there must be a claim of illegal disbursement of standi may be waived by the Court in the exercise of its discretion. This was public funds or that the tax measure is unconstitutional; done in the 1949 Emergency Powers Cases, Araneta v. Dinglasan, where (3) for voters, there must be a showing of obvious interest in the the "transcendental importance" of the cases prompted the Court to act validity of the election law in question; liberally. Such liberality was neither a rarity nor accidental. In Aquino v. (4) for concerned citizens, there must be a showing that the issues Comelec, this Court resolved to pass upon the issues raised due to the "far- raised are of transcendental importance which must be settled early; and reaching implications" of the petition notwithstanding its categorical (5) for legislators, there must be a claim that the official action statement that petitioner therein had no personality to file the suit. Indeed, complained of infringes upon their prerogatives as legislators. there is a chain of cases where this liberal policy has been observed, allowing ordinary citizens, members of Congress, and civic organizations to Significantly, recent decisions show a certain toughening in the Court's prosecute actions involving the constitutionality or validity of laws, attitude toward legal standing. regulations and rulings. In Kilosbayan, Inc. v. Morato, 56 the Court ruled that the status of Thus, the Court has adopted a rule that even where the petitioners have Kilosbayan as a people's organization does not give it the requisite failed to show direct injury, they have been allowed to sue under the personality to question the validity of the on-line lottery contract, more so principle of "transcendental importance." Pertinent are the following cases: where it does not raise any issue of constitutionality. Moreover, it cannot (1) Chavez v. Public Estates Authority, where the Court ruled that the sue as a taxpayer absent any allegation that public funds are being misused. enforcement of the constitutional right to information and the equitable Nor can it sue as a concerned citizen as it does not allege any specific injury diffusion of natural resources are matters of transcendental importance it has suffered. which clothe the petitioner with locus standi; (2) Bagong Alyansang Makabayan v. Zamora, wherein the Court held In Telecommunications and Broadcast Attorneys of the Philippines, Inc. v. that "given the transcendental importance of the issues involved, the Court Comelec, the Court reiterated the "direct injury" test with respect to may relax the standing requirements and allow the suit to prosper despite concerned citizens' cases involving constitutional issues. It held that "there the lack of direct injury to the parties seeking judicial review" of the must be a showing that the citizen personally suffered some actual or Visiting Forces Agreement; threatened injury arising from the alleged illegal official act." (3) Lim v. Executive Secretary, while the Court noted that the petitioners may not file suit in their capacity as taxpayers absent a showing In Lacson v. Perez, the Court ruled that one of the petitioners, Laban ng that "Balikatan 02-01" involves the exercise of Congress' taxing or spending Demokratikong Pilipino (LDP), is not a real party-in-interest as it had not powers, it reiterated its ruling in Bagong Alyansang Makabayan v. Zamora, demonstrated any injury to itself or to its leaders, members or supporters. that in cases of transcendental importance, the cases must be settled promptly and definitely and standing requirements may be relaxed. In Sanlakas v. Executive Secretary, the Court ruled that only the petitioners who are members of Congress have standing to sue, as they claim that the President's declaration of a state of rebellion is a usurpation of the In G.R. No. 171489, petitioners, Cadiz et al., who are national officers of emergency powers of Congress, thus impairing their legislative powers. As the Integrated Bar of the Philippines (IBP) have no legal standing, having to petitioners Sanlakas, Partido Manggagawa, and Social Justice Society, failed to allege any direct or potential injury which the IBP as an institution the Court declared them to be devoid of standing, equating them with the or its members may suffer as a consequence of the issuance of PP No. 1017 LDP in Lacson. and G.O. No. 5. In Integrated Bar of the Philippines v. Zamora, the Court held that the mere invocation by the IBP of its duty to preserve the rule of Now, the application of the above principles to the present petitions. law and nothing more, while undoubtedly true, is not sufficient to clothe it The locus standi of petitioners in G.R. No. 171396, particularly David and with standing in this case. This is too general an interest which is shared by Llamas, is beyond doubt. The same holds true with petitioners in G.R. No. other groups and the whole citizenry. However, in view of the 171409, Cacho-Olivares and Tribune Publishing Co. Inc. They alleged transcendental importance of the issue, this Court declares that petitioner "direct injury" resulting from "illegal arrest" and "unlawful search" have locus standi. committed by police operatives pursuant to PP 1017. Rightly so, the Solicitor General does not question their legal standing. In G.R. No. 171424, Loren Legarda has no personality as a taxpayer to file the instant petition as there are no allegations of illegal disbursement of In G.R. No. 171485, the opposition Congressmen alleged there was public funds. The fact that she is a former Senator is of no consequence. usurpation of legislative powers. They also raised the issue of whether or She can no longer sue as a legislator on the allegation that her prerogatives not the concurrence of Congress is necessary whenever the alarming powers as a lawmaker have been impaired by PP 1017 and G.O. No. 5. Her claim incident to Martial Law are used. Moreover, it is in the interest of justice that she is a media personality will not likewise aid her because there was that those affected by PP 1017 can be represented by their Congressmen in no showing that the enforcement of these issuances prevented her from bringing to the attention of the Court the alleged violations of their basic pursuing her occupation. Her submission that she has pending electoral rights. protest before the Presidential Electoral Tribunal is likewise of no relevance. She has not sufficiently shown that PP 1017 will affect the In G.R. No. 171400, (ALGI), this Court applied the liberality rule in proceedings or result of her case. But considering once more the Philconsa v. Enriquez, 60 Kapatiran Ng Mga Naglilingkod sa Pamahalaan transcendental importance of the issue involved, this Court may relax the ng Pilipinas, Inc. v. Tan, 61 Association of Small Landowners in the standing rules. Philippines, Inc. v. Secretary of Agrarian Reform, 62 Basco v. Philippine Amusement and Gaming Corporation, 63 and Tañada v. Tuvera, 64 that It must always be borne in mind that the question of locus standi is but when the issue concerns a public right, it is sufficient that the petitioner is a corollary to the bigger question of proper exercise of judicial power. This is citizen and has an interest in the execution of the laws. the underlying legal tenet of the "liberality doctrine" on legal standing. It cannot be doubted that the validity of PP No. 1017 and G.O. No. 5 is a In G.R. No. 171483, KMU's assertion that PP 1017 and G.O. No. 5 violated judicial question which is of paramount importance to the Filipino people. its right to peaceful assembly may be deemed sufficient to give it legal To paraphrase Justice Laurel, the whole of Philippine society now waits standing. Organizations may be granted standing to assert the rights of their with bated breath the ruling of this Court on this very critical matter. The members. 65 We take judicial notice of the announcement by the Office of petitions thus call for the application of the "transcendental importance" the President banning all rallies and canceling all permits for public doctrine, a relaxation of the standing requirements for the petitioners in the assemblies following the issuance of PP 1017 and G.O. No. 5. "PP 1017 cases." This Court holds that all the petitioners herein have locus standi. which the President is supreme, . . . only if and when he acts within the sphere allotted to him by the Basic Law, and the authority to determine Incidentally, it is not proper to implead President Arroyo as respondent. whether or not he has so acted is vested in the Judicial Department, which Settled is the doctrine that the President, during his tenure of office or actual in this respect, is, in turn, constitutionally supreme." 76 In 1973, the incumbency, may not be sued in any civil or criminal case, and there is no unanimous Court of Lansang was divided in Aquino v. Enrile. 77 There, the need to provide for it in the Constitution or law. It will degrade the dignity Court was almost evenly divided on the issue of whether the validity of the of the high office of the President, the Head of State, if he can be dragged imposition of Martial Law is a political or justiciable question. 78 Then into court litigations while serving as such. Furthermore, it is important that came Garcia-Padilla v. Enrile which greatly diluted Lansang. It declared he be freed from any form of harassment, hindrance or distraction to enable that there is a need to re-examine the latter case, ratiocinating that "in times him to fully attend to the performance of his official duties and functions. of war or national emergency, the President must be given absolute control Unlike the legislative and judicial branch, only one constitutes the executive for the very life of the nation and the government is in great peril. The branch and anything which impairs his usefulness in the discharge of the President, it intoned, is answerable only to his conscience, the People, and many great and important duties imposed upon him by the Constitution God." necessarily impairs the operation of the Government. However, this does not mean that the President is not accountable to anyone. Like any other The Integrated Bar of the Philippines v. Zamora 80 — a recent case most official, he remains accountable to the people but he may be removed from pertinent to these cases at bar — echoed a principle similar to Lansang. office only in the mode provided by law and that is by impeachment. While the Court considered the President's "calling-out" power as a discretionary power solely vested in his wisdom, it stressed that "this does B. SUBSTANTIVE not prevent an examination of whether such power was exercised within I. Review of Factual Bases permissible constitutional limits or whether it was exercised in a manner Petitioners maintain that PP 1017 has no factual basis. Hence, it was not constituting grave abuse of discretion." This ruling is mainly a result of the "necessary" for President Arroyo to issue such Proclamation. Court's reliance on Section 1, Article VIII of 1987 Constitution which The issue of whether the Court may review the factual bases of the fortifies the authority of the courts to determine in an appropriate action the President's exercise of his Commander-in-Chief power has reached its validity of the acts of the political departments. Under the new definition of distilled point — from the indulgent days of Barcelona v. Baker 70 and judicial power, the courts are authorized not only "to settle actual Montenegro v. Castaneda 71 to the volatile era of Lansang v. Garcia, 72 controversies involving rights which are legally demandable and Aquino, Jr. v. Enrile, 73 and Garcia-Padilla v. Enrile. 74 The tug-of-war enforceable," but also "to determine whether or not there has been a grave always cuts across the line defining "political questions," particularly those abuse of discretion amounting to lack or excess of jurisdiction on the part of questions "in regard to which full discretionary authority has been delegated any branch or instrumentality of the government." The latter part of the to the legislative or executive branch of the government." 75 Barcelon and authority represents a broadening of judicial power to enable the courts of Montenegro were in unison in declaring that the authority to decide whether justice to review what was before a forbidden territory, to wit, the discretion an exigency has arisen belongs to the President and his decision is final and of the political departments of the government. 81 It speaks of judicial conclusive on the courts. Lansang took the opposite view. There, the prerogative not only in terms of power but also of duty. members of the Court were unanimous in the conviction that the Court has the authority to inquire into the existence of factual bases in order to As to how the Court may inquire into the President's exercise of power, determine their constitutional sufficiency. From the principle of separation Lansang adopted the test that "judicial inquiry can go no further than to of powers, it shifted the focus to the system of checks and balances, "under satisfy the Court not that the President's decision is correct," but that "the President did not act arbitrarily." Thus, the standard laid down is not to avert catastrophe. In these situations, the Crown retained a prerogative correctness, but arbitrariness. 83 In Integrated Bar of the Philippines, this "power to act according to discretion for the public good, without the Court further ruled that "it is incumbent upon the petitioner to show that the proscription of the law and sometimes even against it." 84 But Locke President's decision is totally bereft of factual basis" and that if he fails, by recognized that this moral restraint might not suffice to avoid abuse of way of proof, to support his assertion, then "this Court cannot undertake an prerogative powers. Who shall judge the need for resorting to the independent investigation beyond the pleadings." prerogative and how may its abuse be avoided? Here, Locke readily admitted defeat, suggesting that "the people have no other remedy in this, as Petitioners failed to show that President Arroyo's exercise of the calling-out in all other cases where they have no judge on earth, but to appeal to power, by issuing PP 1017, is totally bereft of factual basis. A reading of the Heaven." Solicitor General's Consolidated Comment and Memorandum shows a detailed narration of the events leading to the issuance of PP 1017, with Jean-Jacques Rousseau also assumed the need for temporary suspension of supporting reports forming part of the records. Mentioned are the escape of democratic processes of government in time of emergency. According to the Magdalo Group, their audacious threat of the Magdalo D-Day, the him: defections in the military, particularly in the Philippine Marines, and the The inflexibility of the laws, which prevents them from adopting reproving statements from the communist leaders. There was also the themselves to circumstances, may, in certain cases, render them disastrous Minutes of the Intelligence Report and Security Group of the Philippine and make them bring about, at a time of crisis, the ruin of the State. . . Army showing the growing alliance between the NPA and the military. Petitioners presented nothing to refute such events. Thus, absent any It is wrong therefore to wish to make political institutions as strong as to contrary allegations, the Court is convinced that the President was justified render it impossible to suspend their operation. Even Sparta allowed its law in issuing PP 1017 calling for military aid. to lapse. . .

Indeed, judging the seriousness of the incidents, President Arroyo was not If the peril is of such a kind that the paraphernalia of the laws are an expected to simply fold her arms and do nothing to prevent or suppress obstacle to their preservation, the method is to nominate a supreme lawyer, what she believed was lawless violence, invasion or rebellion. However, the who shall silence all the laws and suspend for a moment the sovereign exercise of such power or duty must not stifle liberty. authority. In such a case, there is no doubt about the general will, and it clear that the people's first intention is that the State shall not perish. [II. Constitutionality of PP 1017 and G.O. No. 5 Doctrines of Several Political Theorists on the Power of the President in Rosseau did not fear the abuse of the emergency dictatorship or "supreme Times of Emergency] magistracy" as he termed it. For him, it would more likely be cheapened by This case brings to fore a contentious subject — the power of the President "indiscreet use." He was unwilling to rely upon an "appeal to heaven." in times of emergency. A glimpse at the various political theories relating to Instead, he relied upon a tenure of office of prescribed duration to avoid this subject provides an adequate backdrop for our ensuing discussion. perpetuation of the dictatorship.

John Locke, describing the architecture of civil government, called upon the John Stuart Mill concluded his ardent defense of representative government: English doctrine of prerogative to cope with the problem of emergency. In "I am far from condemning, in cases of extreme necessity, the assumption times of danger to the nation, positive law enacted by the legislature might of absolute power in the form of a temporary dictatorship." be inadequate or even a fatal obstacle to the promptness of action necessary Nicollo Machiavelli's view of emergency powers, as one element in the whole scheme of limited government, furnished an ironic contrast to the Carl J. Friedrich cast his analysis in terms similar to those of Watkins. "It is Lockean theory of prerogative. He recognized and attempted to bridge this a problem of concentrating power — in a government where power has chasm in democratic political theory, thus: consciously been divided — to cope with . . . situations of unprecedented magnitude and gravity. There must be a broad grant of powers, subject to Now, in a well-ordered society, it should never be necessary to resort to equally strong limitations as to who shall exercise such powers, when, for extra-constitutional measures; for although they may for a time be how long, and to what end." Friedrich, too, offered criteria for judging the beneficial, yet the precedent is pernicious, for if the practice is once adequacy of any of scheme of emergency powers, to wit: "The emergency established for good objects, they will in a little while be disregarded under executive must be appointed by constitutional means — i.e., he must be that pretext but for evil purposes. Thus, no republic will ever be perfect if legitimate; he should not enjoy power to determine the existence of an she has not by law provided for everything, having a remedy for every emergency; emergency powers should be exercised under a strict time emergency and fixed rules for applying it. limitation; and last, the objective of emergency action must be the defense of the constitutional order." Machiavelli — in contrast to Locke, Rosseau and Mill — sought to incorporate into the constitution a regularized system of standby emergency Clinton L. Rossiter, after surveying the history of the employment of powers to be invoked with suitable checks and controls in time of national emergency powers in Great Britain, France, Weimar, Germany and the danger. He attempted forthrightly to meet the problem of combining a United States, reverted to a description of a scheme of "constitutional capacious reserve of power and speed and vigor in its application in time of dictatorship" as solution to the vexing problems presented by emergency. emergency, with effective constitutional restraints. Like Watkins and Friedrich, he stated a priori the conditions of success of the "constitutional dictatorship," thus: Contemporary political theorists, addressing themselves to the problem of 1) No general regime or particular institution of constitutional response to emergency by constitutional democracies, have employed the dictatorship should be initiated unless it is necessary or even indispensable doctrine of constitutional dictatorship. Frederick M. Watkins saw "no to the preservation of the State and its constitutional order. . . reason why absolutism should not be used as a means for the defense of 2) . . . the decision to institute a constitutional dictatorship should liberal institutions," provided it "serves to protect established institutions never be in the hands of the man or men who will constitute the dictator. . . from the danger of permanent injury in a period of temporary emergency 3) No government should initiate a constitutional dictatorship without and is followed by a prompt return to the previous forms of political life." making specific provisions for its termination. . . He recognized the two (2) key elements of the problem of emergency 4) . . . all uses of emergency powers and all readjustments in the governance, as well as all constitutional governance: increasing organization of the government should be effected in pursuit of administrative powers of the executive, while at the same time "imposing constitutional or legal requirements. . . limitation upon that power." 93 Watkins placed his real faith in a scheme of 5) . . . no dictatorial institution should be adopted, no right invaded, constitutional dictatorship. These are the conditions of success of such a no regular procedure altered any more than is absolutely necessary for the dictatorship: "The period of dictatorship must be relatively short. . . conquest of the particular crisis . . . Dictatorship should always be strictly legitimate in character. . . Final 6) The measures adopted in the prosecution of the a constitutional authority to determine the need for dictatorship in any given case must dictatorship should never be permanent in character or effect. . . never rest with the dictator himself . . ." and the objective of such an emergency dictatorship should be "strict political conservatism." 7) The dictatorship should be carried on by persons representative of limitations, and political responsibility. McIlwain clearly recognized the every part of the citizenry interested in the defense of the existing need to repose adequate power in government. And in discussing the constitutional order. . . meaning of constitutionalism, he insisted that the historical and proper test 8) Ultimate responsibility should be maintained for every action taken of constitutionalism was the existence of adequate processes for keeping under a constitutional dictatorship. . . government responsible. He refused to equate constitutionalism with the 9) The decision to terminate a constitutional dictatorship, like the enfeebling of government by an exaggerated emphasis upon separation of decision to institute one should never be in the hands of the man or men powers and substantive limitations on governmental power. He found that who constitute the dictator. . 10) No constitutional dictatorship should the really effective checks on despotism have consisted not in the extend beyond the termination of the crisis for which it was instituted. . . weakening of government but, but rather in the limiting of it; between which there is a great and very significant difference. In associating 11) the termination of the crisis must be followed by a complete return constitutionalism with "limited" as distinguished from "weak" government, as possible to the political and governmental conditions existing prior to the McIlwain meant government limited to the orderly procedure of law as initiation of the constitutional dictatorship. . . opposed to the processes of force. The two fundamental correlative elements of constitutionalism for which all lovers of liberty must yet fight Rossiter accorded to legislature a far greater role in the oversight exercise of are the legal limits to arbitrary power and a complete political responsibility emergency powers than did Watkins. He would secure to Congress final of government to the governed. responsibility for declaring the existence or termination of an emergency, and he places great faith in the effectiveness of congressional investigating In the final analysis, the various approaches to emergency of the above committees. political theorists — from Lock's "theory of prerogative," to Watkins' doctrine of "constitutional dictatorship" and, eventually, to McIlwain's Scott and Cotter, in analyzing the above contemporary theories in light of "principle of constitutionalism" — ultimately aim to solve one real problem recent experience, were one in saying that, "the suggestion that democracies in emergency governance, i.e., that of allotting increasing areas of surrender the control of government to an authoritarian ruler in time of discretionary power to the Chief Executive, while insuring that such powers grave danger to the nation is not based upon sound constitutional theory." will be exercised with a sense of political responsibility and under effective To appraise emergency power in terms of constitutional dictatorship serves limitations and checks. merely to distort the problem and hinder realistic analysis. It matters not whether the term "dictator" is used in its normal sense (as applied to Our Constitution has fairly coped with this problem. Fresh from the fetters authoritarian rulers) or is employed to embrace all chief executives of a repressive regime, the 1986 Constitutional Commission, in drafting the administering emergency powers. However used, "constitutional 1987 Constitution, endeavored to create a government in the concept of dictatorship" cannot be divorced from the implication of suspension of the Justice Jackson's "balanced power structure." 102 Executive, legislative, processes of constitutionalism. Thus, they favored instead the "concept of and judicial powers are dispersed to the President, the Congress, and the constitutionalism" articulated by Charles H. McIlwain: Supreme Court, respectively. Each is supreme within its own sphere. But A concept of constitutionalism which is less misleading in the analysis of none has the monopoly of power in times of emergency. Each branch is problems of emergency powers, and which is consistent with the findings of given a role to serve as limitation or check upon the other. This system does this study, is that formulated by Charles H. McIlwain. While it does not by not weaken the President, it just limits his power, using the language of any means necessarily exclude some indeterminate limitations upon the McIlwain. In other words, in times of emergency, our Constitution substantive powers of government, full emphasis is placed upon procedural reasonably demands that we repose a certain amount of faith in the basic integrity and wisdom of the Chief Executive but, at the same time, it obliges Thus, claims of facial overbreadth are entertained in cases involving statutes him to operate within carefully prescribed procedural limitations. which, by their terms, seek to regulate only "spoken words" and again, that "overbreadth claims, if entertained at all, have been curtailed when invoked a. "Facial Challenge" against ordinary criminal laws that are sought to be applied to protected Petitioners contend that PP 1017 is void on its face because of its conduct." 106 Here, the incontrovertible fact remains that PP 1017 pertains "overbreadth." They claim that its enforcement encroached on both to a spectrum of conduct, not free speech, which is manifestly subject to unprotected and protected rights under Section 4, Article III of the state regulation. Constitution and sent a "chilling effect" to the citizens. A facial review of PP 1017, using the overbreadth doctrine, is uncalled for. Second, facial invalidation of laws is considered as "manifestly strong medicine," to be used "sparingly and only as a last resort," and is "generally First and foremost, the overbreadth doctrine is an analytical tool developed disfavored;" 107 The reason for this is obvious. Embedded in the traditional for testing "on their faces" statutes in free speech cases, also known under rules governing constitutional adjudication is the principle that a person to the American Law as First Amendment cases. whom a law may be applied will not be heard to challenge a law on the ground that it may conceivably be applied unconstitutionally to others, i.e., A plain reading of PP 1017 shows that it is not primarily directed to speech in other situations not before the Court. 108 A writer and scholar in or even speech-related conduct. It is actually a call upon the AFP to prevent Constitutional Law explains further: or suppress all forms of lawless violence. In United States v. Salerno, the The most distinctive feature of the overbreadth technique is that it marks an US Supreme Court held that "we have not recognized an 'overbreadth' exception to some of the usual rules of constitutional litigation. Ordinarily, doctrine outside the limited context of the First Amendment" (freedom of a particular litigant claims that a statute is unconstitutional as applied to him speech). or her; if the litigant prevails, the courts carve away the unconstitutional aspects of the law by invalidating its improper applications on a case to case Moreover, the overbreadth doctrine is not intended for testing the validity of basis. Moreover, challengers to a law are not permitted to raise the rights of a law that "reflects legitimate state interest in maintaining comprehensive third parties and can only assert their own interests. In overbreadth analysis, control over harmful, constitutionally unprotected conduct." Undoubtedly, those rules give way; challenges are permitted to raise the rights of third lawless violence, insurrection and rebellion are considered "harmful" and parties; and the court invalidates the entire statute "on its face," not merely "constitutionally unprotected conduct." In Broadrick v. Oklahoma, it was "as applied for" so that the overbroad law becomes unenforceable until a held: properly authorized court construes it more narrowly. The factor that It remains a 'matter of no little difficulty' to determine when a law may motivates courts to depart from the normal adjudicatory rules is the concern properly be held void on its face and when 'such summary action' is with the "chilling;" deterrent effect of the overbroad statute on third parties inappropriate. But the plain import of our cases is, at the very least, that not courageous enough to bring suit. The Court assumes that an overbroad facial overbreadth adjudication is an exception to our traditional rules of law's "very existence may cause others not before the court to refrain from practice and that its function, a limited one at the outset, attenuates as the constitutionally protected speech or expression." An overbreadth ruling is otherwise unprotected behavior that it forbids the State to sanction moves designed to remove that deterrent effect on the speech of those third parties. from 'pure speech' toward conduct and that conduct —even if expressive — falls within the scope of otherwise valid criminal laws that reflect legitimate In other words, a facial challenge using the overbreadth doctrine will state interests in maintaining comprehensive controls over harmful, require the Court to examine PP 1017 and pinpoint its flaws and defects, not constitutionally unprotected conduct. on the basis of its actual operation to petitioners, but on the assumption or prediction that its very existence may cause others not before the Court to "by virtue of the power vested upon me by Section 18, Article VII . . . do refrain from constitutionally protected speech or expression. In Younger v. hereby command the Armed Forces of the Philippines, to maintain law and Harris, 109 it was held that: order throughout the Philippines, prevent or suppress all forms of lawless [T]he task of analyzing a proposed statute, pinpointing its deficiencies, and violence as well any act of insurrection or rebellion" requiring correction of these deficiencies before the statute is put into effect, Second provision: is rarely if ever an appropriate task for the judiciary. The combination of the "and to enforce obedience to all the laws and to all decrees, orders and relative remoteness of the controversy, the impact on the legislative process regulations promulgated by me personally or upon my direction;" of the relief sought, and above all the speculative and amorphous nature of Third provision: the required line-by-line analysis of detailed statutes, . . . ordinarily results "as provided in Section 17, Article XII of the Constitution do hereby declare in a kind of case that is wholly unsatisfactory for deciding constitutional a State of National Emergency." questions, whichever way they might be decided. First Provision: Calling-out Power The first provision pertains to the President's calling-out power. In Sanlakas And third, a facial challenge on the ground of overbreadth is the most v. Executive Secretary, 111 this Court, through Mr. Justice Dante O. Tinga, difficult challenge to mount successfully, since the challenger must held that Section 18, Article VII of the Constitution reproduced as follows: establish that there can be no instance when the assailed law may be valid. Sec. 18. The President shall be the Commander-in-Chief of all armed forces Here, petitioners did not even attempt to show whether this situation exists. of the Philippines and whenever it becomes necessary, he may call out such armed forces to prevent or suppress lawless violence, invasion or rebellion. Petitioners likewise seek a facial review of PP 1017 on the ground of In case of invasion or rebellion, when the public safety requires it, he may, vagueness. This, too, is unwarranted. for a period not exceeding sixty days, suspend the privilege of the writ of habeas corpus or place the Philippines or any part thereof under martial law. Related to the "overbreadth" doctrine is the "void for vagueness doctrine" Within forty-eight hours from the proclamation of martial law or the which holds that "a law is facially invalid if men of common intelligence suspension of the privilege of the writ of habeas corpus, the President shall must necessarily guess at its meaning and differ as to its application." It is submit a report in person or in writing to the Congress. The Congress, subject to the same principles governing overbreadth doctrine. For one, it is voting jointly, by a vote of at least a majority of all its Members in regular also an analytical tool for testing "on their faces" statutes in free speech or special session, may revoke such proclamation or suspension, which cases. And like overbreadth, it is said that a litigant may challenge a statute revocation shall not be set aside by the President. Upon the initiative of the on its face only if it is vague in all its possible applications. Again, President, the Congress may, in the same manner, extend such proclamation petitioners did not even attempt to show that PP 1017 is vague in all its or suspension for a period to be determined by the Congress, if the invasion application. They also failed to establish that men of common intelligence or rebellion shall persist and public safety requires it. cannot understand the meaning and application of PP 1017. The Congress, if not in session, shall within twenty-four hours following b. Constitutional Basis of PP 1017 such proclamation or suspension, convene in accordance with its rules Now on the constitutional foundation of PP 1017. without need of a call. The operative portion of PP 1017 may be divided into three important The Supreme Court may review, in an appropriate proceeding filed by any provisions, thus: citizen, the sufficiency of the factual bases of the proclamation of martial First provision: law or the suspension of the privilege of the writ or the extension thereof, and must promulgate its decision thereon within thirty days from its filing. It is pertinent to state, however, that there is a distinction between the A state of martial law does not suspend the operation of the Constitution, President's authority to declare a "state of rebellion" (in Sanlakas) and the nor supplant the functioning of the civil courts or legislative assemblies, nor authority to proclaim a state of national emergency. While President authorize the conferment of jurisdiction on military courts and agencies Arroyo's authority to declare a "state of rebellion" emanates from her over civilians where civil courts are able to function, nor automatically powers as Chief Executive, the statutory authority cited in Sanlakas was suspend the privilege of the writ. Section 4, Chapter 2, Book II of the Revised Administrative Code of 1987, which provides: The suspension of the privilege of the writ shall apply only to persons SEC. 4. Proclamations. — Acts of the President fixing a date or declaring a judicially charged for rebellion or offenses inherent in or directly connected status or condition of public moment or interest, upon the existence of with invasion. which the operation of a specific law or regulation is made to depend, shall be promulgated in proclamations which shall have the force of an executive During the suspension of the privilege of the writ, any person thus arrested order. or detained shall be judicially charged within three days, otherwise he shall be released. President Arroyo's declaration of a "state of rebellion" was merely an act declaring a status or condition of public moment or interest, a declaration grants the President, as Commander-in-Chief, a "sequence" of graduated allowed under Section 4 cited above. Such declaration, in the words of powers. From the most to the least benign, these are: the calling-out power, Sanlakas, is harmless, without legal significance, and deemed not written. the power to suspend the privilege of the writ of habeas corpus, and the In these cases, PP 1017 is more than that. In declaring a state of national power to declare Martial Law. Citing Integrated Bar of the Philippines v. emergency, President Arroyo did not only rely on Section 18, Article VII of Zamora, the Court ruled that the only criterion for the exercise of the the Constitution, a provision calling on the AFP to prevent or suppress calling-out power is that "whenever it becomes necessary," the President lawless violence, invasion or rebellion. She also relied on Section 17, may call the armed forces "to prevent or suppress lawless violence, invasion Article XII, a provision on the State's extraordinary power to take over or rebellion." Are these conditions present in the instant cases? As stated privately-owned public utility and business affected with public interest. earlier, considering the circumstances then prevailing, President Arroyo Indeed, PP 1017 calls for the exercise of an awesome power. Obviously, found it necessary to issue PP 1017. Owing to her Office's vast intelligence such Proclamation cannot be deemed harmless, without legal significance, network, she is in the best position to determine the actual condition of the or not written, as in the case of Sanlakas. country. Some of the petitioners vehemently maintain that PP 1017 is actually a Under the calling-out power, the President may summon the armed forces declaration of Martial Law. It is no so. What defines the character of PP to aid him in suppressing lawless violence, invasion and rebellion. This 1017 are its wordings. It is plain therein that what the President invoked involves ordinary police action. But every act that goes beyond the was her calling-out power. President's calling-out power is considered illegal or ultra vires. For this reason, a President must be careful in the exercise of his powers. He cannot The declaration of Martial Law is a "warn[ing] to citizens that the military invoke a greater power when he wishes to act under a lesser power. There power has been called upon by the executive to assist in the maintenance of lies the wisdom of our Constitution, the greater the power, the greater are law and order, and that, while the emergency lasts, they must, upon pain of the limitations. arrest and punishment, not commit any acts which will in any way render more difficult the restoration of order and the enforcement of law." Second Provision: "Take Care" Power. In his "Statement before the Senate Committee on Justice" on March 13, 2006, Mr. Justice Vicente V. Mendoza, an authority in constitutional law, The second provision pertains to the power of the President to ensure that said that of the three powers of the President as Commander-in-Chief, the the laws be faithfully executed. This is based on Section 17, Article VII power to declare Martial Law poses the most severe threat to civil liberties. which reads: It is a strong medicine which should not be resorted to lightly. It cannot be SEC. 17. The President shall have control of all the executive departments, used to stifle or persecute critics of the government. It is placed in the bureaus, and offices. He shall ensure that the laws be faithfully executed. keeping of the President for the purpose of enabling him to secure the people from harm and to restore order so that they can enjoy their individual As the Executive in whom the executive power is vested, the primary freedoms. In fact, Section 18, Art. VII, provides: function of the President is to enforce the laws as well as to formulate A state of martial law does not suspend the operation of the Constitution, policies to be embodied in existing laws. He sees to it that all laws are nor supplant the functioning of the civil courts or legislative assemblies, nor enforced by the officials and employees of his department. Before assuming authorize the conferment of jurisdiction on military courts and agencies office, he is required to take an oath or affirmation to the effect that as over civilians where civil courts are able to function, nor automatically President of the Philippines, he will, among others, "execute its laws." In suspend the privilege of the writ. the exercise of such function, the President, if needed, may employ the powers attached to his office as the Commander-in-Chief of all the armed Justice Mendoza also stated that PP 1017 is not a declaration of Martial forces of the country, including the Philippine National Police under the Law. It is no more than a call by the President to the armed forces to Department of Interior and Local Government. prevent or suppress lawless violence. As such, it cannot be used to justify acts that only under a valid declaration of Martial Law can be done. Its use Petitioners, especially Representatives Francis Joseph G. Escudero, Satur for any other purpose is a perversion of its nature and scope, and any act Ocampo, Rafael Mariano, Teodoro Casiño, Liza Maza, and Josel Virador done contrary to its command is ultra vires. argue that PP 1017 is unconstitutional as it arrogated upon President Arroyo the power to enact laws and decrees in violation of Section 1, Article VI of Justice Mendoza further stated that specifically, (a) arrests and seizures the Constitution, which vests the power to enact laws in Congress. They without judicial warrants; (b) ban on public assemblies; (c) take-over of assail the clause "to enforce obedience to all the laws and to all decrees, news media and agencies and press censorship; and (d) issuance of orders and regulations promulgated by me personally or upon my Presidential Decrees, are powers which can be exercised by the President as direction." Commander-in-Chief only where there is a valid declaration of Martial Law or suspension of the writ of habeas corpus. Petitioners' contention is understandable. A reading of PP 1017 operative clause shows that it was lifted from Former President Marcos' Proclamation Based on the above disquisition, it is clear that PP 1017 is not a declaration No. 1081, which partly reads: of Martial Law. It is merely an exercise of President Arroyo's calling-out NOW, THEREFORE, I, FERDINAND E. MARCOS, President of the power for the armed forces to assist her in preventing or suppressing Philippines by virtue of the powers vested upon me by Article VII, Section lawless violence. 10, Paragraph (2) of the Constitution, do hereby place the entire Philippines as defined in Article 1, Section 1 of the Constitution under martial law and, in my capacity as their Commander-in-Chief, do hereby command the Armed Forces of the Philippines, to maintain law and order throughout the Philippines, prevent or suppress all forms of lawless violence as well as any concern a particular officer or office of the Government shall be embodied act of insurrection or rebellion and to enforce obedience to all the laws and in memorandum orders. decrees, orders and regulations promulgated by me personally or upon my direction. Sec. 6. Memorandum Circulars. — Acts of the President on matters relating to internal administration, which the President desires to bring to We all know that it was PP 1081 which granted President Marcos the attention of all or some of the departments, agencies, bureaus or offices legislative power. Its enabling clause states: "to enforce obedience to all the of the Government, for information or compliance, shall be embodied in laws and decrees, orders and regulations promulgated by me personally or memorandum circulars. upon my direction." Upon the other hand, the enabling clause of PP 1017 issued by President Arroyo is: to enforce obedience to all the laws and to all Sec. 7. General or Special Orders. — Acts and commands of the President decrees, orders and regulations promulgated by me personally or upon my in his capacity as Commander-in-Chief of the Armed Forces of the direction." Philippines shall be issued as general or special orders.

Is it within the domain of President Arroyo to promulgate "decrees"? President Arroyo's ordinance power is limited to the foregoing issuances. She cannot issue decrees similar to those issued by Former President PP 1017 states in part: "to enforce obedience to all the laws and decrees . . . Marcos under PP 1081. Presidential Decrees are laws which are of the same promulgated by me personally or upon my direction." category and binding force as statutes because they were issued by the The President is granted an Ordinance Power under Chapter 2, Book III of President in the exercise of his legislative power during the period of Executive Order No. 292 (Administrative Code of 1987). She may issue any Martial Law under the 1973 Constitution. of the following: This Court rules that the assailed PP 1017 is unconstitutional insofar as it Sec. 2. Executive Orders. — Acts of the President providing for rules of a grants President Arroyo the authority to promulgate "decrees." Legislative general or permanent character in implementation or execution of power is peculiarly within the province of the Legislature. Section 1, Article constitutional or statutory powers shall be promulgated in executive orders. VI categorically states that "[t]he legislative power shall be vested in the Congress of the Philippines which shall consist of a Senate and a House of Sec. 3. Administrative Orders. — Acts of the President which relate to Representatives." To be sure, neither Martial Law nor a state of rebellion particular aspect of governmental operations in pursuance of his duties as nor a state of emergency can justify President Arroyo's exercise of administrative head shall be promulgated in administrative orders. legislative power by issuing decrees.

Sec. 4. Proclamations. — Acts of the President fixing a date or declaring a Can President Arroyo enforce obedience to all decrees and laws through the status or condition of public moment or interest, upon the existence of military? which the operation of a specific law or regulation is made to depend, shall be promulgated in proclamations which shall have the force of an executive As this Court stated earlier, President Arroyo has no authority to enact order. decrees. It follows that these decrees are void and, therefore, cannot be enforced. With respect to "laws," she cannot call the military to enforce or Sec. 5. Memorandum Orders. — Acts of the President on matters of implement certain laws, such as customs laws, laws governing family and administrative detail or of subordinate or temporary interest which only property relations, laws on obligations and contracts and the like. She can only order the military, under PP 1017, to enforce laws pertinent to its duty Petitioners, particularly the members of the House of Representatives, claim to suppress lawless violence. that President Arroyo's inclusion of Section 17, Article XII in PP 1017 is an encroachment on the legislature's emergency powers. Third Provision: Power to Take Over The pertinent provision of PP 1017 states: This is an area that needs delineation. . . . and to enforce obedience to all the laws and to all decrees, orders, and regulations promulgated by me personally or upon my direction; and as A distinction must be drawn between the President's authority to declare "a provided in Section 17, Article XII of the Constitution do hereby declare a state of national emergency" and to exercise emergency powers. To the state of national emergency. first, as elucidated by the Court, Section 18, Article VII grants the President such power, hence, no legitimate constitutional objection can be raised. But The import of this provision is that President Arroyo, during the state of to the second, manifold constitutional issues arise. national emergency under PP 1017, can call the military not only to enforce obedience "to all the laws and to all decrees . . ." but also to act pursuant to Section 23, Article VI of the Constitution reads: the provision of Section 17, Article XII which reads: SEC. 23.(1) The Congress, by a vote of two-thirds of both Houses in joint Sec. 17. In times of national emergency, when the public interest so session assembled, voting separately, shall have the sole power to declare requires, the State may, during the emergency and under reasonable terms the existence of a state of war. prescribed by it, temporarily take over or direct the operation of any (2) In times of war or other national emergency, the Congress may, by privately-owned public utility or business affected with public interest. law, authorize the President, for a limited period and subject to such restrictions as it may prescribe, to exercise powers necessary and proper to What could be the reason of President Arroyo in invoking the above carry out a declared national policy. Unless sooner withdrawn by resolution provision when she issued PP 1017? of the Congress, such powers shall cease upon the next adjournment thereof. The answer is simple. During the existence of the state of national emergency, PP 1017 purports to grant the President, without any authority It may be pointed out that the second paragraph of the above provision or delegation from Congress, to take over or direct the operation of any refers not only to war but also to "other national emergency." If the privately-owned public utility or business affected with public interest. intention of the Framers of our Constitution was to withhold from the President the authority to declare a "state of national emergency" pursuant This provision was first introduced in the 1973 Constitution, as a product of to Section 18, Article VII (calling-out power) and grant it to Congress (like the "martial law" thinking of the 1971 Constitutional Convention. In effect the declaration of the existence of a state of war), then the Framers could at the time of its approval was President Marcos' Letter of Instruction No. 2 have provided so. Clearly, they did not intend that Congress should first dated September 22, 1972 instructing the Secretary of National Defense to authorize the President before he can declare a "state of national take over "the management, control and operation of the Manila Electric emergency." The logical conclusion then is that President Arroyo could Company, the Philippine Long Distance Telephone Company, the National validly declare the existence of a state of national emergency even in the Waterworks and Sewerage Authority, the Philippine National Railways, the absence of a Congressional enactment. Philippine Air Lines, Air Manila (and) Filipinas Orient Airways . . . for the successful prosecution by the Government of its effort to contain, solve and end the present national emergency." But the exercise of emergency powers, such as the taking over of privately It is clear that if the President had authority to issue the order he did, it must owned public utility or business affected with public interest, is a different be found in some provision of the Constitution. And it is not claimed that matter. This requires a delegation from Congress. express constitutional language grants this power to the President. The contention is that presidential power should be implied from the aggregate Courts have often said that constitutional provisions in pari materia are to of his powers under the Constitution. Particular reliance is placed on be construed together. Otherwise stated, different clauses, sections, and provisions in Article II which say that "The executive Power shall be vested provisions of a constitution which relate to the same subject matter will be in a President . . . . ;" that "he shall take Care that the Laws be faithfully construed together and considered in the light of each other. Considering executed;" and that he "shall be Commander-in-Chief of the Army and that Section 17 of Article XII and Section 23 of Article VI, previously Navy of the United States. quoted, relate to national emergencies, they must be read together to determine the limitation of the exercise of emergency powers. The order cannot properly be sustained as an exercise of the President's military power as Commander-in-Chief of the Armed Forces. The Generally, Congress is the repository of emergency powers. This is evident Government attempts to do so by citing a number of cases upholding broad in the tenor of Section 23 (2), Article VI authorizing it to delegate such powers in military commanders engaged in day-to-day fighting in a theater powers to the President. Certainly, a body cannot delegate a power not of war. Such cases need not concern us here. Even though "theater of war" reposed upon it. However, knowing that during grave emergencies, it may be an expanding concept, we cannot with faithfulness to our constitutional not be possible or practicable for Congress to meet and exercise its powers, system hold that the Commander-in-Chief of the Armed Forces has the the Framers of our Constitution deemed it wise to allow Congress to grant ultimate power as such to take possession of private property in order to emergency powers to the President, subject to certain conditions, thus: keep labor disputes from stopping production. This is a job for the nation's (1) There must be a war or other emergency. lawmakers, not for its military authorities. (2) The delegation must be for a limited period only. (3) The delegation must be subject to such restrictions as the Congress Nor can the seizure order be sustained because of the several constitutional may prescribe. provisions that grant executive power to the President. In the framework of (4) The emergency powers must be exercised to carry out a national our Constitution, the President's power to see that the laws are faithfully policy declared by Congress. executed refutes the idea that he is to be a lawmaker. The Constitution limits his functions in the lawmaking process to the recommending of laws Section 17, Article XII must be understood as an aspect of the emergency he thinks wise and the vetoing of laws he thinks bad. And the Constitution powers clause. The taking over of private business affected with public is neither silent nor equivocal about who shall make laws which the interest is just another facet of the emergency powers generally reposed President is to execute. The first section of the first article says that "All upon Congress. Thus, when Section 17 states that the "the State may, during legislative Powers herein granted shall be vested in a Congress of the the emergency and under reasonable terms prescribed by it, temporarily United States. . ." take over or direct the operation of any privately owned public utility or business affected with public interest," it refers to Congress, not the Petitioner Cacho-Olivares, et al. contends that the term "emergency" under President. Now, whether or not the President may exercise such power is Section 17, Article XII refers to "tsunami," "typhoon," "hurricane" and dependent on whether Congress may delegate it to him pursuant to a law "similar occurrences." This is a limited view of "emergency." prescribing the reasonable terms thereof. Youngstown Sheet & Tube Co. et al. v. Sawyer, held: Emergency, as a generic term, connotes the existence of conditions In Araneta v. Dinglasan, this Court emphasized that legislative power, suddenly intensifying the degree of existing danger to life or well-being through which extraordinary measures are exercised, remains in Congress beyond that which is accepted as normal. Implicit in this definitions are the even in times of crisis. elements of intensity, variety, and perception. Emergencies, as perceived by legislature or executive in the United Sates since 1933, have been "xxx xxx xxx occasioned by a wide range of situations, classifiable under three (3) After all the criticisms that have been made against the efficiency of the principal heads: a) economic, 128 b) natural disaster, 129 and c) national system of the separation of powers, the fact remains that the Constitution security. has set up this form of government, with all its defects and shortcomings, in preference to the commingling of powers in one man or group of men. The "Emergency," as contemplated in our Constitution, is of the same breadth. It Filipino people by adopting parliamentary government have given notice may include rebellion, economic crisis, pestilence or epidemic, typhoon, that they share the faith of other democracy-loving peoples in this system, flood, or other similar catastrophe of nationwide proportions or effect. This with all its faults, as the ideal. The point is, under this framework of is evident in the Records of the Constitutional Commission, thus: government, legislation is preserved for Congress all the time, not excepting MR. GASCON. Yes. What is the Committee's definition of "national periods of crisis no matter how serious. Never in the history of the United emergency" which appears in Section 13, page 5? It reads: States, the basic features of whose Constitution have been copied in ours, When the common good so requires, the State may temporarily take over or have specific functions of the legislative branch of enacting laws been direct the operation of any privately owned public utility or business surrendered to another department — unless we regard as legislating the affected with public interest. carrying out of a legislative policy according to prescribed standards; no, MR. VILLEGAS. What I mean is threat from external aggression, for not even when that Republic was fighting a total war, or when it was example, calamities or natural disasters. engaged in a life-and-death struggle to preserve the Union. The truth is that MR. GASCON. There is a question by Commissioner de los Reyes. What under our concept of constitutional government, in times of extreme perils about strikes and riots? more than in normal circumstances 'the various branches, executive, MR. VILLEGAS. Strikes, no; those would not be covered by the term legislative, and judicial,' given the ability to act, are called upon 'to perform "national emergency." the duties and discharge the responsibilities committed to them MR. BENGZON. Unless they are of such proportions such that they would respectively." paralyze government service. xxx xxx xxx Following our interpretation of Section 17, Article XII, invoked by MR. TINGSON. May I ask the committee if "national emergency" refers to President Arroyo in issuing PP 1017, this Court rules that such military national emergency or could this be economic emergency?" Proclamation does not authorize her during the emergency to temporarily MR. VILLEGAS. Yes, it could refer to both military or economic take over or direct the operation of any privately owned public utility or dislocations. business affected with public interest without authority from Congress. MR. TINGSON. Thank you very much. It may be argued that when there is national emergency, Congress may not Let it be emphasized that while the President alone can declare a state of be able to convene and, therefore, unable to delegate to the President the national emergency, however, without legislation, he has no power to take power to take over privately-owned public utility or business affected with over privately-owned public utility or business affected with public interest. public interest. The President cannot decide whether exceptional circumstances exist warranting the take over of privately-owned public utility or business affected with public interest. Nor can he determine when such exceptional circumstances have ceased. Likewise, without legislation, the President has Can this Court adjudge as unconstitutional PP 1017 and G.O. No 5 on the no power to point out the types of businesses affected with public interest basis of these illegal acts? In general, does the illegal implementation of a that should be taken over. In short, the President has no absolute authority law render it unconstitutional. to exercise all the powers of the State under Section 17, Article VII in the absence of an emergency powers act passed by Congress. Settled is the rule that courts are not at liberty to declare statutes invalid although they may be abused and misabused and may afford an opportunity c. "AS APPLIED CHALLENGE" for abuse in the manner of application. The validity of a statute or ordinance One of the misfortunes of an emergency, particularly, that which pertains to is to be determined from its general purpose and its efficiency to security, is that military necessity and the guaranteed rights of the accomplish the end desired, not from its effects in a particular case. PP 1017 individual are often not compatible. Our history reveals that in the crucible is merely an invocation of the President's calling-out power. Its general of conflict, many rights are curtailed and trampled upon. Here, the right purpose is to command the AFP to suppress all forms of lawless violence, against unreasonable search and seizure; the right against warrantless arrest; invasion or rebellion. It had accomplished the end desired which prompted and the freedom of speech, of expression, of the press, and of assembly President Arroyo to issue PP 1021. But there is nothing in PP 1017 allowing under the Bill of Rights suffered the greatest blow. the police, expressly or impliedly, to conduct illegal arrest, search or violate the citizens' constitutional rights. Of the seven (7) petitions, three (3) indicate "direct injury." Now, may this Court adjudge a law or ordinance unconstitutional on the In G.R. No. 171396, petitioners David and Llamas alleged that, on February ground that its implementor committed illegal acts? The answer is no. The 24, 2006, they were arrested without warrants on their way to EDSA to criterion by which the validity of the statute or ordinance is to be measured celebrate the 20th Anniversary of People Power I. The arresting officers is the essential basis for the exercise of power, and not a mere incidental cited PP 1017 as basis of the arrest. result arising from its exertion. This is logical. Just imagine the absurdity of situations when laws may be declared unconstitutional just because the In G.R. No. 171409, petitioners Cacho-Olivares and Tribune Publishing officers implementing them have acted arbitrarily. If this were so, judging Co., Inc. claimed that on February 25, 2006, the CIDG operatives "raided from the blunders committed by policemen in the cases passed upon by the and ransacked without warrant" their office. Three policemen were assigned Court, majority of the provisions of the Revised Penal Code would have to guard their office as a possible "source of destabilization." Again, the been declared unconstitutional a long time ago. basis was PP 1017. President Arroyo issued G.O. No. 5 to carry into effect the provisions of PP And in G.R. No. 171483, petitioners KMU and NAFLU-KMU et al. alleged 1017. General orders are "acts and commands of the President in his that their members were "turned away and dispersed" when they went to capacity as Commander-in-Chief of the Armed Forces of the Philippines." EDSA and later, to Ayala Avenue, to celebrate the 20th Anniversary of They are internal rules issued by the executive officer to his subordinates People Power I. precisely for the proper and efficient administration of law. Such rules and regulations create no relation except between the official who issues them A perusal of the "direct injuries" allegedly suffered by the said petitioners and the official who receives them. They are based on and are the product shows that they resulted from the implementation, pursuant to G.O. No. 5, of, a relationship in which power is their source, and obedience, their of PP 1017. object. For these reasons, one requirement for these rules to be valid is that Ben Bella in Algeria, to mention only a few, were originally labeled as they must be reasonable, not arbitrary or capricious. terrorists by those who controlled the territory at the time, but later became internationally respected statesmen. G.O. No. 5 mandates the AFP and the PNP to immediately carry out the "necessary and appropriate actions and measures to suppress and prevent What, then, is the defining criterion for terrorist acts — the differentia acts of terrorism and lawless violence." specifica distinguishing those acts from eventually legitimate acts of national resistance or self-defense? Unlike the term "lawless violence" which is unarguably extant in our statutes and the Constitution, and which is invariably associated with Since the times of the Cold War the United Nations Organization has been "invasion, insurrection or rebellion," the phrase "acts of terrorism" is still an trying in vain to reach a consensus on the basic issue of definition. The amorphous and vague concept. Congress has yet to enact a law defining and organization has intensified its efforts recently, but has been unable to punishing acts of terrorism. bridge the gap between those who associate "terrorism" with any violent act by non-state groups against civilians, state functionaries or infrastructure or In fact, this "definitional predicament" or the "absence of an agreed military installations, and those who believe in the concept of the legitimate definition of terrorism" confronts not only our country, but the international use of force when resistance against foreign occupation or against community as well. The following observations are quite apropos: systematic oppression of ethnic and/or religious groups within a state is In the actual unipolar context of international relations, the "fight against concerned. terrorism" has become one of the basic slogans when it comes to the justification of the use of force against certain states and against groups The dilemma facing the international community can best be illustrated by operating internationally. Lists of states "sponsoring terrorism" and of reference to the contradicting categorization of organizations and terrorist organizations are set up and constantly being updated according to movements such as Palestine Liberation Organization (PLO) — which is a criteria that are not always known to the public, but are clearly determined terrorist group for Israel and a liberation movement for Arabs and Muslims by strategic interests. — the Kashmiri resistance groups — who are terrorists in the perception of India, liberation fighters in that of Pakistan — the earlier Contras in The basic problem underlying all these military actions — or threats of the Nicaragua — freedom fighters for the United States, terrorists for the use of force as the most recent by the United States against Iraq — consists Socialist camp — or, most drastically, the Afghani Mujahedeen (later to in the absence of an agreed definition of terrorism. become the Taliban movement): during the Cold War period they were a group of freedom fighters for the West, nurtured by the United States, and a Remarkable confusion persists in regard to the legal categorization of acts terrorist gang for the Soviet Union. One could go on and on in enumerating of violence either by states, by armed groups such as liberation movements, examples of conflicting categorizations that cannot be reconciled in any or by individuals. way — because of opposing political interests that are at the roots of those perceptions. The dilemma can by summarized in the saying "One country's terrorist is another country's freedom fighter." The apparent contradiction or lack of How, then, can those contradicting definitions and conflicting perceptions consistency in the use of the term "terrorism" may further be demonstrated and evaluations of one and the same group and its actions be explained? In by the historical fact that leaders of national liberation movements such as our analysis, the basic reason for these striking inconsistencies lies in the Nelson Mandela in South Africa, Habib Bourgouiba in Tunisia, or Ahmed divergent interest of states. Depending on whether a state is in the position of an occupying power or in that of a rival, or adversary, of an occupying following provision: "That one who conspires with any other person for the power in a given territory, the definition of terrorism will "fluctuate" purpose of overthrowing the Government of the Philippines . . . by force, accordingly. A state may eventually see itself as protector of the rights of a violence, terrorism, . . . shall be punished by reclusion temporal . . . ." certain ethnic group outside its territory and will therefore speak of a "liberation struggle," not of "terrorism" when acts of violence by this group P.D. No. 1835 was repealed by E.O. No. 167 (which outlaws the are concerned, and vice-versa. Communist Party of the Philippines) enacted by President Corazon Aquino on May 5, 1985. These two (2) laws, however, do not define "acts of The United Nations Organization has been unable to reach a decision on the terrorism." Since there is no law defining "acts of terrorism," it is President definition of terrorism exactly because of these conflicting interests of Arroyo alone, under G.O. No. 5, who has the discretion to determine what sovereign states that determine in each and every instance how a particular acts constitute terrorism. Her judgment on this aspect is absolute, without armed movement (i.e. a non-state actor) is labeled in regard to the terrorists- restrictions. Consequently, there can be indiscriminate arrest without freedom fighter dichotomy. A "policy of double standards" on this vital warrants, breaking into offices and residences, taking over the media issue of international affairs has been the unavoidable consequence. enterprises, prohibition and dispersal of all assemblies and gatherings unfriendly to the administration. All these can be effected in the name of This "definitional predicament" of an organization consisting of sovereign G.O. No. 5. These acts go far beyond the calling-out power of the President. states — and not of peoples, in spite of the emphasis in the Preamble to the Certainly, they violate the due process clause of the Constitution. Thus, this United Nations Charter! — has become even more serious in the present Court declares that the "acts of terrorism" portion of G.O. No. 5 is global power constellation: one superpower exercises the decisive role in unconstitutional. the Security Council, former great powers of the Cold War era as well as medium powers are increasingly being marginalized; and the problem has Significantly, there is nothing in G.O. No. 5 authorizing the military or become even more acute since the terrorist attacks of 11 September 2001 I police to commit acts beyond what are necessary and appropriate to the United States. suppress and prevent lawless violence, the limitation of their authority in pursuing the Order. Otherwise, such acts are considered illegal. The absence of a law defining "acts of terrorism" may result in abuse and oppression on the part of the police or military. An illustration is when a We first examine G.R. No. 171396 (David et al.) group of persons are merely engaged in a drinking spree. Yet the military or the police may consider the act as an act of terrorism and immediately arrest The Constitution provides that "the right of the people to be secured in their them pursuant to G.O. No. 5. Obviously, this is abuse and oppression on persons, houses, papers and effects against unreasonable search and seizure their part. It must be remembered that an act can only be considered a crime of whatever nature and for any purpose shall be inviolable, and no search if there is a law defining the same as such and imposing the corresponding warrant or warrant of arrest shall issue except upon probable cause to be penalty thereon. determined personally by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce, and So far, the word "terrorism" appears only once in our criminal laws, i.e., in particularly describing the place to be searched and the persons or things to P.D. No. 1835 dated January 16, 1981 enacted by President Marcos during be seized." 142 The plain import of the language of the Constitution is that the Martial Law regime. This decree is entitled "Codifying The Various searches, seizures and arrests are normally unreasonable unless authorized Laws on Anti-Subversion and Increasing The Penalties for Membership in by a validly issued search warrant or warrant of arrest. Thus, the Subversive Organizations." The word "terrorism" is mentioned in the fundamental protection given by this provision is that between person and police must stand the protective authority of a magistrate clothed with But what made it doubly worse for petitioners David et al. is that not only power to issue or refuse to issue search warrants or warrants of arrest. was their right against warrantless arrest violated, but also their right to peaceably assemble. In the Brief Account submitted by petitioner David, certain facts are Section 4 of Article III guarantees: established: first, he was arrested without warrant; second, the PNP No law shall be passed abridging the freedom of speech, of expression, or operatives arrested him on the basis of PP 1017; third, he was brought at of the press, or the right of the people peaceably to assemble and petition Camp Karingal, Quezon City where he was fingerprinted, photographed and the government for redress of grievances. booked like a criminal suspect; fourth, he was treated brusquely by policemen who "held his head and tried to push him" inside an unmarked "Assembly" means a right on the part of the citizens to meet peaceably for car; fifth, he was charged with Violation of Batas Pambansa Bilang No. 880 consultation in respect to public affairs. It is a necessary consequence of our and Inciting to Sedition; sixth, he was detained for seven (7) hours; and republican institution and complements the right of speech. As in the case seventh, he was eventually released for insufficiency of evidence. of freedom of expression, this right is not to be limited, much less denied, except on a showing of a clear and present danger of a substantive evil that Section 5, Rule 113 of the Revised Rules on Criminal Procedure provides: Congress has a right to prevent. In other words, like other rights embraced Sec. 5. Arrest without warrant; when lawful. — A peace officer or a in the freedom of expression, the right to assemble is not subject to previous private person may, without a warrant, arrest a person: restraint or censorship. It may not be conditioned upon the prior issuance of (a) When, in his presence, the person to be arrested has committed, is a permit or authorization from the government authorities except, of course, actually committing, or is attempting to commit an offense. if the assembly is intended to be held in a public place, a permit for the use (b) When an offense has just been committed and he has probable of such place, and not for the assembly itself, may be validly required. cause to believe based on personal knowledge of facts or circumstances that the person to be arrested has committed it; and The ringing truth here is that petitioner David, et al. were arrested while xxx xxx xxx. they were exercising their right to peaceful assembly. They were not Neither of the two (2) exceptions mentioned above justifies petitioner committing any crime, neither was there a showing of a clear and present David's warrantless arrest. During the inquest for the charges of inciting to danger that warranted the limitation of that right. As can be gleaned from sedition and violation of BP 880, all that the arresting officers could invoke circumstances, the charges of inciting to sedition and violation of BP 880 was their observation that some rallyists were wearing t-shirts with the were mere afterthought. Even the Solicitor General, during the oral invective "Oust Gloria Now" and their erroneous assumption that petitioner argument, failed to justify the arresting officers' conduct. In De Jonge v. David was the leader of the rally. 146 Consequently, the Inquest Prosecutor Oregon, it was held that peaceable assembly cannot be made a crime, thus: ordered his immediate release on the ground of insufficiency of evidence. Peaceable assembly for lawful discussion cannot be made a crime. The He noted that petitioner David was not wearing the subject t-shirt and even holding of meetings for peaceable political action cannot be proscribed. if he was wearing it, such fact is insufficient to charge him with inciting to Those who assist in the conduct of such meetings cannot be branded as sedition. Further, he also stated that there is insufficient evidence for the criminals on that score. The question, if the rights of free speech and charge of violation of BP 880 as it was not even known whether petitioner peaceful assembly are not to be preserved, is not as to the auspices under David was the leader of the rally. which the meeting was 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. If the persons assembling have committed crimes elsewhere, if they have formed or are engaged in a conspiracy against the public peace and order, they may be conducted at about 1:00 o'clock in the morning of February 25, 2006; prosecuted for their conspiracy or other violations of valid laws. But it is a fourth, the search was conducted in the absence of any official of the Daily different matter when the State, instead of prosecuting them for such Tribune except the security guard of the building; and fifth, policemen offenses, seizes upon mere participation in a peaceable assembly and a stationed themselves at the vicinity of the Daily Tribune offices. lawful public discussion as the basis for a criminal charge. Thereafter, a wave of warning came from government officials. Presidential On the basis of the above principles, the Court likewise considers the Chief of Staff Michael Defensor was quoted as saying that such raid was dispersal and arrest of the members of KMU et al. (G.R. No. 171483) "meant to show a 'strong presence,' to tell media outlets not to connive or do unwarranted. Apparently, their dispersal was done merely on the basis of anything that would help the rebels in bringing down this government." Malacañang's directive canceling all permits previously issued by local Director General Lomibao further stated that "if they do not follow the government units. This is arbitrary. The wholesale cancellation of all standards — and the standards are if they would contribute to instability in permits to rally is a blatant disregard of the principle that "freedom of the government, or if they do not subscribe to what is in General Order No. assembly is not to be limited, much less denied, except on a showing of a 5 and Proc. No. 1017 — we will recommend a 'takeover.'" National clear and present danger of a substantive evil that the State has a right to Telecommunications Commissioner Ronald Solis urged television and radio prevent." Tolerance is the rule and limitation is the exception. Only upon a networks to "cooperate" with the government for the duration of the state of showing that an assembly presents a clear and present danger that the State national emergency. He warned that his agency will not hesitate to may deny the citizens' right to exercise it. Indeed, respondents failed to recommend the closure of any broadcast outfit that violates rules set out for show or convince the Court that the rallyists committed acts amounting to media coverage during times when the national security is threatened. lawless violence, invasion or rebellion. With the blanket revocation of permits, the distinction between protected and unprotected assemblies was The search is illegal. Rule 126 of The Revised Rules on Criminal Procedure eliminated. lays down the steps in the conduct of search and seizure. Section 4 requires that a search warrant be issued upon probable cause in connection with one Moreover, under BP 880, the authority to regulate assemblies and rallies is specific offence to be determined personally by the judge after examination lodged with the local government units. They have the power to issue under oath or affirmation of the complainant and the witnesses he may permits and to revoke such permits after due notice and hearing on the produce. Section 8 mandates that the search of a house, room, or any other determination of the presence of clear and present danger. Here, petitioners premise be made in the presence of the lawful occupant thereof or any were not even notified and heard on the revocation of their permits. The member of his family or in the absence of the latter, in the presence of two first time they learned of it was at the time of the dispersal. Such absence of (2) witnesses of sufficient age and discretion residing in the same locality. notice is a fatal defect. When a person's right is restricted by government And Section 9 states that the warrant must direct that it be served in the action, it behooves a democratic government to see to it that the restriction daytime, unless the property is on the person or in the place ordered to be is fair, reasonable, and according to procedure. searched, in which case a direction may be inserted that it be served at any time of the day or night. All these rules were violated by the CIDG G.R. No. 171409, (Cacho-Olivares, et al.) presents another facet of freedom operatives. of speech i.e., the freedom of the press. Petitioners' narration of facts, which Not only that, the search violated petitioners' freedom of the press. The best the Solicitor General failed to refute, established the following: first, the gauge of a free and democratic society rests in the degree of freedom Daily Tribune's offices were searched without warrant; second, the police enjoyed by its media. In the Burgos v. Chief of Staff this Court held that — operatives seized several materials for publication; third, the search was As heretofore stated, the premises searched were the business and printing evidence and you admitted that the policemen were able to get the offices of the "Metropolitan Mail" and the "We Forum" newspapers. As a clippings. Is that not in admission of the admissibility of these clippings that consequence of the search and seizure, these premises were padlocked and were taken from the Tribune? sealed, with the further result that the printing and publication of said SOLICITOR GENERAL BENIPAYO: newspapers were discontinued. Under the law they would seem to be, if they were illegally seized, I think and I know, Your Honor, and these are inadmissible for any purpose. Such closure is in the nature of previous restraint or censorship abhorrent to the freedom of the press guaranteed under the fundamental law, and xxx xxx xxx constitutes a virtual denial of petitioners' freedom to express themselves in SR. ASSO. JUSTICE PUNO: print. This state of being is patently anathematic to a democratic framework These have been published in the past issues of the Daily Tribune; where a free, alert and even militant press is essential for the political all you have to do is to get those past issues. So why do you have to go enlightenment and growth of the citizenry. there at 1 o'clock in the morning and without any search warrant? Did they become suddenly part of the evidence of rebellion or inciting to sedition or While admittedly, the Daily Tribune was not padlocked and sealed like the what? "Metropolitan Mail" and "We Forum" newspapers in the above case, yet it SOLGEN BENIPAYO: cannot be denied that the CIDG operatives exceeded their enforcement Well, it was the police that did that, Your Honor. Not upon my duties. The search and seizure of materials for publication, the stationing of instructions. policemen in the vicinity of the The Daily Tribune offices, and the arrogant SR. ASSO. JUSTICE PUNO: warning of government officials to media, are plain censorship. It is that Are you saying that the act of the policeman is illegal, it is not officious functionary of the repressive government who tells the citizen that based on any law, and it is not based on Proclamation 1017. he may speak only if allowed to do so, and no more and no less than what he is permitted to say on pain of punishment should he be so rash as to SOLGEN BENIPAYO: disobey. Undoubtedly, the The Daily Tribune was subjected to these It is not based on Proclamation 1017, Your Honor, because there is arbitrary intrusions because of its anti-government sentiments. This Court nothing in 1017 which says that the police could go and inspect and gather cannot tolerate the blatant disregard of a constitutional right even if it clippings from Daily Tribune or any other newspaper. involves the most defiant of our citizens. Freedom to comment on public SR. ASSO. JUSTICE PUNO: affairs is essential to the vitality of a representative democracy. It is the duty Is it based on any law? of the courts to be watchful for the constitutional rights of the citizen, and SOLGEN BENIPAYO: against any stealthy encroachments thereon. The motto should always be As far as I know, no, Your Honor, from the facts, no. DITEAc obsta principiis. SR. ASSO. JUSTICE PUNO: Incidentally, during the oral arguments, the Solicitor General admitted that So, it has no basis, no legal basis whatsoever? the search of the Tribune's offices and the seizure of its materials for SOLGEN BENIPAYO: publication and other papers are illegal; and that the same are inadmissible Maybe so, Your Honor. Maybe so, that is why I said, I don't know "for any purpose," thus: if it is premature to say this, we do not condone this. If the people who have JUSTICE CALLEJO: been injured by this would want to sue them, they can sue and there are You made quite a mouthful of admission when you said that the remedies for this. 156 policemen, when inspected the Tribune for the purpose of gathering Likewise, the warrantless arrests and seizures executed by the police were, "evaded;" they must now be resolved to prevent future constitutional according to the Solicitor General, illegal and cannot be condoned, thus: aberration. CHIEF JUSTICE PANGANIBAN: The Court finds and so holds that PP 1017 is constitutional insofar as it There seems to be some confusions if not contradiction in your constitutes a call by the President for the AFP to prevent or suppress lawless theory. violence. The proclamation is sustained by Section 18, Article VII of the SOLICITOR GENERAL BENIPAYO: Constitution and the relevant jurisprudence discussed earlier. However, PP I don't know whether this will clarify. The acts, the supposed 1017's extraneous provisions giving the President express or implied power illegal or unlawful acts committed on the occasion of 1017, as I said, it (1) to issue decrees; (2) to direct the AFP to enforce obedience to all laws cannot be condoned. You cannot blame the President for, as you said, a even those not related to lawless violence as well as decrees promulgated by misapplication of the law. These are acts of the police officers, that is their the President; and (3) to impose standards on media or any form of prior responsibility. restraint on the press, are ultra vires and unconstitutional. The Court also rules that under Section 17, Article XII of the Constitution, the President, in The Dissenting Opinion states that PP 1017 and G.O. No. 5 are the absence of a legislation, cannot take over privately-owned public utility constitutional in every aspect and "should result in no constitutional or and private business affected with public interest. statutory breaches if applied according to their letter." In the same vein, the Court finds G.O. No. 5 valid. It is an Order issued by The Court has passed upon the constitutionality of these issuances. Its the President — acting as Commander-in-Chief — addressed to subalterns ratiocination has been exhaustively presented. At this point, suffice it to in the AFP to carry out the provisions of PP 1017. Significantly, it also reiterate that PP 1017 is limited to the calling out by the President of the provides a valid standard — that the military and the police should take military to prevent or suppress lawless violence, invasion or rebellion. only the "necessary and appropriate actions and measures to suppress and When in implementing its provisions, pursuant to G.O. No. 5, the military prevent acts of lawless violence." But the words "acts of terrorism" found in and the police committed acts which violate the citizens' rights under the G.O. No. 5 have not been legally defined and made punishable by Congress Constitution, this Court has to declare such acts unconstitutional and illegal. and should thus be deemed deleted from the said G.O. While "terrorism" DaAISH has been denounced generally in media, no law has been enacted to guide In this connection, Chief Justice Artemio V. Panganiban's concurring the military, and eventually the courts, to determine the limits of the AFP's opinion, attached hereto, is considered an integral part of this ponencia. authority in carrying out this portion of G.O. No. 5.

SUMMATION On the basis of the relevant and uncontested facts narrated earlier, it is also In sum, the lifting of PP 1017 through the issuance of PP 1021 — a pristine clear that (1) the warrantless arrest of petitioners Randolf S. David supervening event — would have normally rendered this case moot and and Ronald Llamas; (2) the dispersal of the rallies and warrantless arrest of academic. However, while PP 1017 was still operative, illegal acts were the KMU and NAFLU-KMU members; (3) the imposition of standards on committed allegedly in pursuance thereof. Besides, there is no guarantee media or any prior restraint on the press; and (4) the warrantless search of that PP 1017, or one similar to it, may not again be issued. Already, there the Tribune offices and the whimsical seizures of some articles for have been media reports on April 30, 2006 that allegedly PP 1017 would be publication and other materials, are not authorized by the Constitution, the reimposed "if the May 1 rallies" become "unruly and violent." law and jurisprudence. Not even by the valid provisions of PP 1017 and Consequently, the transcendental issues raised by the parties should not be G.O. No. 5. Other than this declaration of invalidity, this Court cannot impose any civil, been defined and made punishable by the Legislature, such portion of G.O. criminal or administrative sanctions on the individual police officers No. 5 is declared UNCONSTITUTIONAL. concerned. They have not been individually identified and given their day in court. The civil complaints or causes of action and/or relevant criminal The warrantless arrest of Randolf S. David and Ronald Llamas; the Informations have not been presented before this Court. Elementary due dispersal and warrantless arrest of the KMU and NAFLU-KMU members process bars this Court from making any specific pronouncement of civil, during their rallies, in the absence of proof that these petitioners were criminal or administrative liabilities. committing acts constituting lawless violence, invasion or rebellion and violating BP 880; the imposition of standards on media or any form of prior It is well to remember that military power is a means to an end and restraint on the press, as well as the warrantless search of the Tribune substantive civil rights are ends in themselves. How to give the military the offices and whimsical seizure of its articles for publication and other power it needs to protect the Republic without unnecessarily trampling materials, are declared UNCONSTITUTIONAL. individual rights is one of the eternal balancing tasks of a democratic state. No costs. During emergency, governmental action may vary in breadth and intensity from normal times, yet they should not be arbitrary as to unduly restrain our SO ORDERED. people's liberty. Quisumbing, Austria-Martinez, Azcuna, Chico-Nazario and Garcia, JJ., concur. Perhaps, the vital lesson that we must learn from the theorists who studied Panganiban, C.J. and Ynares-Santiago, JJ., please see concurring opinion. the various competing political philosophies is that, it is possible to grant Puno, J., is on leave. government the authority to cope with crises without surrendering the two Carpio, J., also concurs with Chief Justice's opinion. vital principles of constitutionalism: the maintenance of legal limits to Corona, J., shares the dissenting opinion of Mr. Justice Tinga. arbitrary power, and political responsibility of the government to the Carpio-Morales, J., the concurring opinion of the Chief Justice merits also governed. my concurrence. WHEREFORE, the Petitions are partly granted. The Court rules that PP Callejo, Sr., J., also concurs with the concurring opinion of Chief Justice 1017 is CONSTITUTIONAL insofar as it constitutes a call by President Panagniban. Gloria Macapagal-Arroyo on the AFP to prevent or suppress lawless Tinga, J., please see dissenting opinion. violence. However, the provisions of PP 1017 commanding the AFP to Velasco, Jr., J., joins the dissent of J. Tinga. enforce laws not related to lawless violence, as well as decrees promulgated by the President, are declared UNCONSTITUTIONAL. In addition, the provision in PP 1017 declaring national emergency under Section 17, [I didn’t include the concurring opinion. Its actually the same length as the Article VII of the Constitution is CONSTITUTIONAL, but such declaration actual case and contains pretty much the same info.] does not authorize the President to take over privately-owned public utility or business affected with public interest without prior legislation.

G.O. No. 5 is CONSTITUTIONAL since it provides a standard by which the AFP and the PNP should implement PP 1017, i.e. whatever is "necessary and appropriate actions and measures to suppress and prevent acts of lawless violence." Considering that "acts of terrorism" have not yet ANTONIO L. SANCHEZ, petitioner, Acting on this request, the Panel of State Prosecutors of the Department of vs. The Honorable HARRIET O. DEMETRIOU (in her capacity as Justice conducted a preliminary investigation on August 9, 1993. Petitioner Presiding Judge of Regional Trial Court, NCR, Branch 70, Pasig), The Sanchez was not present but was represented by his counsel, Atty. Marciano Honorable FRANKLIN DRILON (in his capacity as Secretary of Justice), Brion, Jr. JOVENCITO R. ZUÑO, LEONARDO C. GUIYAB, JR., CARLOS L. DE On August 12, 1993, PNP Commander Rex Piad issued an "invitation" to LEON, RAMONCITO C. MISON, REYNALDO J. LUGTU and the petitioner requesting him to appear for investigation at Camp Vicente RODRIGO P. LORENZO, (the last six respondents in their official Lim in Canlubang, Laguna. It was served on Sanchez in the morning of capacities as members of the State Prosecutor's Office), respondents. August 13, 1993, and he was immediately taken to the said camp.

G.R. Nos. 111771-77 At a confrontation that same day, Sanchez was positively identified by November 9, 1993 Aurelio Centeno and SPO III Vivencio Malabanan, who both executed extrajudicial confessions implicating him as a principal in the rape-slay of D E C I S I O N Sarmenta and the killing of Gomez. The petitioner was then placed on CRUZ, J p: "arrest status" and taken to the Department of Justice in Manila.

There is probably no more notorious person in the country today than The respondent prosecutors immediately conducted an inquest upon his Mayor Antonio L. Sanchez of Calauan, Laguna, who stands accused of an arrival, with Atty. Salvador Panelo as his counsel. unspeakable crime. On him the verdict has already been rendered by many outraged persons who would immediately impose on him an angry After the hearing, a warrant of arrest was served on Sanchez. This warrant sentence. Yet, for all the prejudgments against him, he is under our was issued on August 13, 1993, by Judge Enrico A. Lanzanas of the Constitution presumed innocent as long as the contrary has not been proved. Regional Trial Court of Manila, Branch 7, in connection with Criminal Like any other person accused of an offense, he is entitled to the full and Cases Nos. 93-124634 to 93-124637 for violation of Section 8, in relation to vigilant protection of the Bill of Rights. Section 11, of R.A. No. 6713. Sanchez was forthwith taken to the CIS Detention Center, Camp Crame, where he remains confined. Sanchez has brought this petition to challenge the order of the respondent judge denying his motion to quash the informations for rape with homicide On August 16, 1993, the respondent prosecutors filed with the Regional filed against him and six other persons. We shall treat it as we would any Trial Court of Calamba, Laguna, seven informations charging Antonio L. other suit filed by any litigant hoping to obtain a just and impartial Sanchez, Luis Corcolon, Rogelio Corcolon, Pepito Kawit, Baldwin Brion, judgment from this Court. Jr., George Medialdea and Zoilo Ama with the rape and killing of Mary Eileen Sarmenta. The pertinent facts are as follows: On July 28, 1993, the Presidential Anti-Crime Commission requested the On August 26, 1993, Judge Eustaquio P. Sto. Domingo of that court issued filing of appropriate charges against several persons, including the a warrant for the arrest of all the accused, including the petitioner, in petitioner, in connection with the rape-slay of Mary Eileen Sarmenta and connection with the said crime. the killing of Allan Gomez. The respondent Secretary of Justice subsequently expressed his apprehension that the trial of the said cases might result in a miscarriage of justice because of the tense and partisan atmosphere in Laguna in favor of the petitioner and the relationship of an employee in the trial court with one During the preliminary investigation on August 9, 1993, the petitioner's of the accused. This Court thereupon ordered the transfer of the venue of counsel, Atty. Marciano Brion, manifested that his client was waiving the the seven cases to Pasig, Metro Manila, where they were raffled to presentation of a counter-affidavit, thus: respondent Judge Harriet Demetriou. Atty. Brion, Jr.: [W]e manifest that after reviewing them there is nothing to rebut or On September 10, 1993, the seven informations were amended to include countermand all these statements as far as Mayor Sanchez is concerned. We the killing of Allan Gomez as an aggravating circumstance. are not going to submit any counter-affidavit.

On that same date, the petitioner filed a motion to quash the informations ACSP Zuño to Atty. Brion: substantially on the grounds now raised in this petition. On September 13, xxx xxx xxx 1993, after oral arguments, the respondent judge denied the motion. Q So far, there are no other statements. Sanchez then filed with this Court the instant petition for certiorari and A If there is none then, we will not submit any counter-affidavit prohibition with prayer for a temporary restraining order/writ of injunction. because we believe there is nothing to rebut or countermand with all these statements. The petitioner argues that the seven informations filed against him should Q So, you are waiving your submission of counter-affidavit? be quashed because: 1) he was denied the right to present evidence at the A Yes, your honor, unless there are other witnesses who will come preliminary investigation; 2) only the Ombudsman had the competence to up soon. conduct the investigation; 3) his warrantless arrest is illegal and the court Nonetheless, the head of the Panel of Prosecutors, respondent Jovencito has therefore not acquired jurisdiction over him; 4) he is being charged with Zuño, told Atty. Brion that he could still file a counter-affidavit up to seven homicides arising from the death of only two persons; 5) the August 27, 1993. No such counter-affidavit was filed. informations are discriminatory because they do not include Teofilo Alqueza and Edgardo Lavadia; and 6) as a public officer, he can be tried for During the hearing on August 13, 1993, respondent Zuño furnished the the offense only by the Sandiganbayan. petitioner's counsel, this time Atty. Salvador Panelo, with copies of the sworn statements of Centeno and Malabanan, and told him he could submit The respondents submitted a Comment on the petition, to which we counter-affidavits on or before August 27, 1993. The following exchange required a Reply from the petitioner within a non-extendible period of five ensued: days. The Reply was filed five days late. The Court may consider his non- ACSP Zuño: compliance an implied admission of the respondents' arguments or a loss of For the record, we are furnishing to you the sworn statement of interest in prosecuting his petition, which is a ground for its dismissal. witness Aurelio Centeno y Roxas and the sworn statement of SPO3 Nevertheless, we shall disregard this procedural lapse and proceed to Vivencio Malabanan y Angeles. discuss his petition on the basis of the arguments before us. Do I understand from you that you are again waiving the submission of counter-affidavit? The Preliminary Investigation Atty. Panelo: The records of the hearings held on August 9 and 13, 1993, belie the Yes. petitioner's contention that he was not accorded the right to present counter- ACSP Zuño: affidavits. So, in so far as the respondent, Mayor Antonio Sanchez is concerned, this case is submitted for resolution. On the other hand, there is no support for the petitioner's subsequent Jurisdiction of the Ombudsman manifestation that his counsel, Atty. Brion, was not notified of the inquest Invoking the case of Deloso v. Domingo, the petitioner submits that the held on August 13, 1993, and that he was not furnished with the affidavits proceedings conducted by the Department of Justice are null and void sworn to on that date by Vivencio Malabanan and Aurelio Centeno, or with because it had no jurisdiction over the case. His claim is that it is the Office their supplemental affidavits dated August 15, 1993. Moreover, the above- of the Ombudsman that is vested with the power to conduct the quoted excerpt shows that the petitioner's counsel at the hearing held on investigation of all cases involving public officers like him, as the August 13, 1993, was not Atty. Brion but Atty. Panelo. municipal mayor of Calauan, Laguna.

The petitioner was present at that hearing and he never disowned Atty. The Ombudsman is indeed empowered under Section 15, paragraph (1) of Panelo as his counsel. During the entire proceedings, he remained quiet and R.A. 6770 to investigate and prosecute any illegal act or omission of any let this counsel speak and argue on his behalf. It was only in his tardy Reply public official. However, as we held only two years ago in the case of that he has suddenly bestirred himself and would now question his Aguinaldo v. Domagas, 9 this authority "is not an exclusive authority but representation by this lawyer as unauthorized and inofficious. rather a shared or concurrent authority in respect of the offense charged."

Section 3 paragraph (d), Rule 112 of the Rules of Court, provides that if the Petitioners finally assert that the information and amended information filed respondent cannot be subpoenaed or, if subpoenaed, does not submit in this case needed the approval of the Ombudsman. It is not disputed that counter-affidavits, the investigating officer shall base his resolution on the the information and amended information here did not have the approval of evidence presented by the complainant. the Ombudsman. However, we do not believe that such approval was necessary at all. In Deloso v. Domingo, 191 SCRA 545 (1990), the Court Just as the accused may renounce the right to be present at the preliminary held that the Ombudsman has authority to investigate charges of illegal acts investigation, so may he waive the right to present counter-affidavits or any or omissions on the part of any public official, i.e., any crime imputed to a other evidence in his defense. public official. It must, however, be pointed out that the authority of the Ombudsman to investigate "any [illegal] act or omission of any public At any rate, it is settled that the absence of a preliminary investigation does official" (191 SCRA at 550) is not an exclusive authority but rather a shared not impair the validity of the information or otherwise render the same or concurrent authority in respect of the offense here charged, i.e., the crime defective and neither does it affect the jurisdiction of the court over the case of sedition. Thus, the non-involvement of the office of the Ombudsman in or constitute a ground for quashing the information. the present case does not have any adverse legal consequence upon the authority of the panel of prosecutors to file and prosecute the information or If no preliminary investigation has been held, or if it is flawed, the trial amended information. court may, on motion of the accused, order an investigation or reinvestigation and hold the proceedings in the criminal cases in abeyance. In fact, other investigatory agencies of the government such as the In the case at bar, however, the respondent judge saw no reason or need for Department of Justice, in connection with the charge of sedition, and the such a step. Finding no arbitrariness in her factual conclusions, we shall Presidential Commission on Good Government, in ill-gotten wealth cases, defer to her judgment. may conduct the investigation.

Was petitioner Sanchez arrested on August 13, 1993? "Arrest" is defined under Section 1, Rule 113 of the Rules of Court as the It may not be amiss to observe that under R.A. No. 7438, the requisites of a taking of a person into custody in order that he may be bound to answer for "custodial investigation" are applicable even to a person not formally the commission of an offense. Under Section 2 of the same Rule, an arrest arrested but merely "invited" for questioning. is effected by an actual restraint of the person to be arrested or by his voluntary submission to the custody of the person making the arrest. It should likewise be noted that at Camp Vicente Lim, the petitioner was placed on "arrest status" after he was pointed to by Centeno and Malabanan Application of actual force, manual touching of the body, physical restraint as the person who first raped Mary Eileen Sarmenta. Respondent Zuño or a formal declaration of arrest is not required. It is enough that there be an himself acknowledged during the August 13, 1993 hearing that, on the basis intent on the part of one of the parties to arrest the other and an intent on the of the sworn statements of the two state witnesses, the petitioner had been part of the other to submit, under the belief and impression that submission "arrested." is necessary. We agree with the petitioner that his arrest did not come under Section 5, The petitioner was taken to Camp Vicente Lim, Canlubang, Laguna, by Rule 113 of the Rules of Court, providing as follows: virtue of a letter-invitation issued by PNP Commander Rex Piad requesting SECTION 5. Arrest without warrant; when lawful. — A peace officer him to appear at the said camp for investigation. or a private person may, without a warrant, arrest a person: (a) When, in his presence, the person to be arrested has committed, is In Babst v. National Intelligence Board 13 this Court declared: actually committing, or is attempting to commit an offense; Be that as it may, it is not idle to note that ordinarily, an invitation to attend (b) When an offense has in fact just been committed and he has a hearing and answer some questions, which the person invited may heed or personal knowledge of facts indicating that the person to be arrested has refuse at his pleasure, is not illegal or constitutionally objectionable. Under committed it; and certain circumstances, however, such an invitation can easily assume a (c) When the person to be arrested is a prisoner who has escaped from different appearance. Thus, where the invitation comes from a powerful a penal establishment or place where he is serving final judgment or group composed predominantly of ranking military officers issued at a time temporarily confined while his case is pending, or has escaped while being when the country has just emerged from martial rule and when the transferred from one confinement to another. suspension of the privilege of the writ of habeas corpus has not entirely been lifted, and the designated interrogation site is a military camp, the It is not denied that the arresting officers were not present when the same can easily be taken, not as a strictly voluntary invitation which it petitioner allegedly participated in the killing of Allan Gomez and the rape- purports to be, but as an authoritative command which one can only defy at slay of Mary Eileen Sarmenta. Neither did they have any personal his peril . . . (Emphasis supplied) knowledge that the petitioner was responsible therefor because the basis of the arrest was the sworn statements of Centeno and Malabanan. Moreover, In the case at bar, the invitation came from a high-ranking military official as the rape and killing of Sarmenta allegedly took place on June 28 - June and the investigation of Sanchez was to be made at a military camp. 29, 1993, or forty-six days before the date of the arrest, it cannot be said Although in the guise of a request, it was obviously a command or an order that the offense had "in fact just been committed" when the petitioner was of arrest that the petitioner could hardly be expected to defy. In fact, arrested. apparently cowed by the "invitation," he went without protest (and in informal clothes and slippers only) with the officers who had come to fetch The original warrantless arrest of the petitioner was doubtless illegal. him. Nevertheless, the Regional Trial Court lawfully acquired jurisdiction over the person of the petitioner by virtue of the warrant of arrest it issued on In one case, the petitioner sued on habeas corpus on the ground that she had August 26, 1993 against him and the other accused in connection with the been arrested by virtue of a John Doe warrant. In their return, the rape-slay cases. It was belated, to be sure, but it was nonetheless legal. respondents declared that a new warrant specifically naming her had been issued, thus validating her detention. While frowning at the tactics of the Even on the assumption that no warrant was issued at all, we find that the respondents, the Court said: trial court still lawfully acquired jurisdiction over the person of the The case has, indeed, become moot and academic inasmuch as the new petitioner. The rule is that if the accused objects to the jurisdiction of the warrant of arrest complies with the requirements of the Constitution and the court over his person, he may move to quash the information, but only on Rules of Court regarding the particular description of the person to be that ground. If, as in this case, the accused raises other grounds in the arrested. While the first warrant was unquestionably void, being a general motion to quash, he is deemed to have waived that objection and to have warrant, release of the petitioner for that reason will be a futile act as it will submitted his person to the jurisdiction of the court. be followed by her immediate re-arrest pursuant to the new and valid warrant, returning her to the same prison she will just have left. This Court The Court notes that on August 13, 1993, after the petitioner was will not participate in such a meaningless charade. unlawfully arrested, Judge Lanzanas issued a warrant of arrest against Antonio L. Sanchez in connection with Criminal Cases Nos. 93-124634 to The same doctrine has been consistently followed by the Court, more 93-124637 for violation of R.A. No. 6713. Pending the issuance of the recently in the Umil case. warrant of arrest for the rape-slay cases, this first warrant served as the initial justification for his detention. The Informations The petitioner submits that the seven informations charging seven separate The Court also adverts to its uniform ruling that the filing of charges, and homicides are absurd because the two victims in these cases could not have the issuance of the corresponding warrant of arrest, against a person died seven times. invalidly detained will cure the defect of that detention or at least deny him the right to be released because of such defect. * Applicable by analogy to This argument was correctly refuted by the Solicitor General in this wise: the case at bar is Rule 102 Section 4 of the Rules of Court that: Thus, where there are two or more offenders who commit rape, the homicide committed on the occasion or by reason of each rape, must be SECTION 4. When writ is not allowed or discharge authorized. — If it deemed as a constituent of the special complex crime of rape with appears that the person alleged to be restrained of his liberty is in the homicide. Therefore, there will be as many crimes of rape with homicide as custody of an officer under process issued by a court or judge or by virtue there are rapes committed. of a judgment or order of a court of record, and that the court or judge had In effect, the presence of homicide qualifies the crime of rape, thereby jurisdiction to issue the process, render the judgment, or make the order, the raising its penalty to the highest degree. Thus, homicide committed on the writ shall not be allowed; or if the jurisdiction appears after the writ is occasion or by reason of the rape, loses its character as an independent allowed, the person shall not be discharged by reason of any informality or offense, but assumes a new character, and functions like a qualifying defect in the process, judgment, or order. Nor shall anything in this rule be circumstance. However, by fiction of law, it is merged with rape to held to authorize the discharge of a person charged with or convicted of an constitute a constituent element of a special complex crime of rape with offense in the Philippines or of a person suffering imprisonment under homicide with a specific penalty which is in the highest degree, i.e., death lawful judgment. (reduced to reclusion perpetua with the suspension of the application of the death penalty by the Constitution). It is clearly provided in Rule 110 of the Rules of Court that: While the prosecuting officer is required by law to charge all those who, in SECTION 13. Duplicity of offense. — A complaint or information must his opinion, appear to be guilty, he nevertheless cannot be compelled to charge but one offense, except only in those cases in which existing laws include in the information a person against whom he believes no sufficient prescribe a simple punishment for various offenses. evidence of guilt exists. The appreciation of the evidence involves the use of discretion on the part of the prosecutor, and we do not find in the case at Rape with homicide comes within the exception under R.A. 2632 and R.A. bar a clear showing by the petitioner of a grave abuse of such discretion. 4111, amending the Revised Penal Code. The decision of the prosecutor may be reversed or modified by the The petitioner and his six co-accused are not charged with only one rape Secretary of Justice or in special cases by the President of the Philippines. committed by him in conspiracy with the other six. Each one of the seven But even this Court cannot order the prosecution of a person against whom accused is charged with having himself raped Sarmenta instead of simply the prosecutor does not find sufficient evidence to support at least a prima helping Sanchez in committing only one rape. In other words, the allegation facie case. The courts try and absolve or convict the accused but as a rule of the prosecution is that the girl was raped seven times, with each of the have no part in the initial decision to prosecute him. seven accused taking turns in abusing her with the assistance of the other six. Afterwards, their lust satisfied, all seven of them decided to kill and The possible exception is where there is an unmistakable showing of a thus silence Sarmenta. grave abuse of discretion that will justify judicial intrusion into the precincts of the executive. But in such a case the proper remedy to call for such Every one of the seven accused is being charged separately for actually exception is a petition for mandamus, not certiorari or prohibition. raping Sarmenta and later killing her instead of merely assisting the Moreover, before resorting to this relief, the party seeking the inclusion of petitioner in raping and then slaying her. The separate informations filed another person as a co-accused in the same case must first avail itself of against each of them allege that each of the seven successive rapes is other adequate remedies such as the filing of a motion for such decision. complexed by the subsequent slaying of Sarmenta and aggravated by the killing of Allan Gomez by her seven attackers. The separate rapes were At any rate, it is a preposterous contention that because no charges have committed in succession by the seven accused, culminating in the slaying of been filed against Alqueza and Lavadia, the charges against the petitioner Sarmenta. and his co-accused should also be dropped.

It is of course absurd to suggest that Mary Eileen Sarmenta and Allan Jurisdiction of the Sandiganbayan Gomez were killed seven times, but the informations do not make such The petitioner argued earlier that since most of the accused were incumbent suggestion. It is the petitioner who does so and is thus hoist by his own public officials or employees at the time of the alleged commission of the petard. crimes, the cases against them should come under the jurisdiction of the Sandiganbayan and not of the regular courts. This contention was The Alleged Discrimination withdrawn in his Reply but we shall discuss it just the same for the The charge of discrimination against the petitioner because of the non- guidance of all those concerned. inclusion of Teofilo Alqueza and Edgardo Lavadia in the informations must also be dismissed. Section 4, paragraph (a) of P.D. No. 1606, as amended by P.D. No. 1861, allegations but on the proof, not from the fact that the criminals are public provides: officials but from the manner of the commission of the crime. SECTION 4. Jurisdiction. — The Sandiganbayan shall exercise: a) Exclusive original jurisdiction in all cases involving: There is no direct relation between the commission of the crime of rape (1) Violations of Republic Act No. 3019, as amended, otherwise with homicide and the petitioner's office as municipal mayor because public known as the Anti-Graft and Corrupt Practices Act, Republic Act No. 1379, office is not an essential element of the crime charged. The offense can and Chapter II, Section 2, Title VII of the Revised Penal Code; stand independently of the office. Moreover, it is not even alleged in the (2) Other offenses or felonies committed by public officers and information that the commission of the crime charged was intimately employees in relation to their office, including those employed in connected with the performance of the petitioner's official functions to government-owned or controlled corporations, whether simple or make it fall under the exception laid down in People v. Montejo. 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 In that case, a city mayor and several detectives were charged with murder P6,000.00 . . . (Emphasis supplied) for the death of a suspect as a result of a "third degree" investigation held at a police substation. The appearance of a senator as their counsel was The crime of rape with homicide with which the petitioner stands charged questioned by the prosecution on the ground that he was inhibited by the obviously does not fall under paragraph (1), which deals with graft and Constitution from representing them because they were accused of an corruption cases. Neither is it covered by paragraph (2) because it is not an offense committed in relation to their office. The Court agreed. It held that offense committed in relation to the office of the petitioner. even if their position was not an essential ingredient of the offense, there was nevertheless an intimate connection between the office and the offense, In Montilla v. Hilario, this Court described the "offense committed in as alleged in the information, that brought it within the definition of an relation to the office" as follows: offense "committed in relation to the public office." [T]he relation between the crime and the office contemplated by the Constitution is, in our opinion, direct and not accidental. To fall into the As Chief Justice Concepcion said: intent of the Constitution, the relation has to be such that, in the legal sense, It is apparent from these allegations that, although public office is not an the offense cannot exist without the office. In other words, the office must element of the crime of murder in abstract, as committed by the main be a constituent element of the crime as defined in the statute, such as, for respondents herein, according to the amended information, the offense instance, the crimes defined and punished in Chapter Two to Six, Title therein charged is intimately connected with their respective offices and Seven, of the Revised Penal Code. was perpetrated while they were in the performance, though improper or irregular, of their official functions. Indeed, they had no personal motive to Public office is not of the essence of murder. The taking of human life is commit the crime and they would not have committed it had they not held either murder or homicide whether done by a private citizen or public their aforesaid offices. The co-defendants of respondent Leroy S. Brown, servant, and the penalty is the same except when the perpetrator, being a obeyed his instructions because he was their superior officer, as Mayor of public functionary, took advantage of his office, as alleged in this case, in Basilan City. (Emphasis supplied). which event the penalty is increased. We have read the informations in the case at bar and find no allegation But the use or abuse of office does not adhere to the crime as an element; therein that the crime of rape with homicide imputed to the petitioner was and even as an aggravating circumstance, its materiality arises, not from the connected with the discharge of his functions as municipal mayor or that there is an "intimate connection" between the offense and his office. It follows that the said crime, being an ordinary offense, is triable by the regular courts and not the Sandiganbayan. Conclusion As above demonstrated, all of the grounds invoked by the petitioner are not supported by the facts and the applicable law and jurisprudence. They must, therefore, all be rejected. In consequence, the respondent judge, who has started the trial of the criminal cases against the petitioner and his co- accused, may proceed therewith without further hindrance.

It remains to stress that the decision we make today is not a decision on the merits of the criminal cases being tried below. These will have to be decided by the respondent judge in accordance with the evidence that is still being received. At this time, there is yet no basis for judgment, only uninformed conjecture. The Court will caution against such irrelevant public speculations as they can be based only on imperfect knowledge if not officious ignorance.

WHEREFORE, the petition is DISMISSED. The respondent judge is DIRECTED to continue with the trial of Criminal Cases Nos. 101141, 101142, 101143, 101144, 101145, 101146 and 101147 and to decide them with deliberate dispatch.

SO ORDERED. Feliciano, Padilla, Bidin, Regalado, Davide, Jr., Romero, Nocon, Melo, Quiason, Puno and Vitug, JJ ., concur. Narvasa, C .J ., No part: Related to former counsel of party. Bellosillo, J ., On leave. EDUARDO M. COJUANGCO, JR., petitioner, been negated when he himself invoked the jurisdiction of respondent court vs. SANDIGANBAYAN (FIRST DIVISION) and PEOPLE OF THE through the filing of various motions that sought other affirmative reliefs. PHILIPPINES, respondents. 3. ID.; ID.; MOTION TO QUASH; LACK OF JURISDICTION; G.R. No. 134307 APPEARANCE MUST BE FOR SOLE AND SEPARATE PURPOSE December 21, 1998 OF OBJECTING THERETO; CASE AT BAR. — "[W]here the appearance is by motion for the purpose of objecting to the jurisdiction of SYLLABUS the court over the person, it must be for the sole and separate purpose of 1. REMEDIAL LAW; CRIMINAL PROCEDURE; ARREST; objecting to said jurisdiction. If the appearance is for any other purpose, the PROBABLE CAUSE; JUDGE MUST PERSONALLY DETERMINE defendant is deemed to have submitted himself to the jurisdiction of the EXISTENCE THEREOF; MANDATE NOT ABIDED BY WHERE court. Such an appearance gives the court jurisdiction over the person. WARRANT WAS ISSUED BASED ON RESOLUTION OF PANEL Verily, petitioner's participation in the proceedings before the OF INVESTIGATORS OF THE OFFICE OF THE OMBUDSMAN. — Sandiganbayan was not confined to his opposition to the issuance of a As alleged by petitioner, in case at bar, the Sandiganbayan had two pieces warrant arrest but also covered other matters which called for respondent of documents to consider when it resolved to issue the warrant of arrest court's exercise of its jurisdiction. Petitioner may not be heard now to deny against the accused: (1) the Resolution dated June 2, 1992 of the Panel of said court's jurisdiction over him. Nor can we ignore the long line of Investigators of the Office of the Ombudsman recommending the filing of precedents declaring that where the accused had posted bail, as required, to the Information and (2) the Memorandum dated June 16, 1995 of the Office obtain his provisional liberty, "it becomes futile to assail the validity of the of the Special Prosecutor denying the existence of a prejudicial question issuance of the warrants of arrest." which will warrant the suspension of the criminal case. The Sandiganbayan had nothing more to support its resolution. We are now constrained to rule 4. ID ; ID.; DISMISSAL; DISPOSITION OF CASE AFTER that herein respondent court failed to abide by the constitutional mandate of FILING OF INFORMATION RESTS IN SOUND DISCRETION OF personally determining the existence of probable cause before issuing a COURT. — Clearly, consistent with the rule in (Crespo vs. Mogul, after warrant of arrest. For the two cited documents were the product of the filing of the information in court, "any disposition of the case as to its somebody else's determination, insufficient to support a finding of probable dismissal or the conviction or acquittal of the accused rests in the sound cause by the Sandiganbayan. Hence, the warrant of arrest issued by discretion of the Court. respondent court on February 17, 1995 against herein petitioner is palpably invalid. 5. CONSTITUTIONAL LAW; BILL OF RIGHTS; RIGHT TO SPEEDY TRIAL; WHEN DEEMED VIOLATED. — The right to a 2. ID.; ID ; JURISDICTION; POSTING OF BAIL; speedy disposition of a case, like the right to speedy trial, is deemed TANTAMOUNT TO SUBMISSION OF ONE'S PERSON TO violated only when the proceeding is attended by vexatious, capricious and JURISDICTION OF COURT; CASE AT BAR — The giving or posting oppressive, delays. It should be emphasized that the factors that must be of bail by the accused is tantamount to submission of his person to the taken into account in determining whether this constitutional right has been jurisdiction of the court. By posting bail, herein petitioner cannot claim violated are as follows: (1) the length of delay, (2) the reason for such delay exemption from the effect of being subject to the jurisdiction of respondent and (3) the assertion or failure to assert such right by the accused, and the court. While petitioner has exerted efforts to continue disputing the validity prejudice caused by the delay. of the issuance of the warrant of arrest despite his posting bail, his claim has 6. ID.; ID.; ID.; FAILURE TO RESOLVE MOTION TO petitioner's previous requests to travel abroad has been granted and that, as DISMISS FOR MORE THAN ONE YEAR, VIOLATION OF RIGHT confirmed by the Office of the Solicitor General, that petitioner has always TO SPEEDY TRIAL; CASE AT BAR. — In the instant case, however, returned to the Philippines and complied with the restrictions imposed on the Court finds that delay concerns the resolution of petitioner's "Urgent him. The necessity of further denying petitioner's right to travel abroad, Motion to Dismiss", which is an offshoot of the Memorandum of the Office with attendant restrictions, appears less than clear. The risk of flight is of the Special Prosecutor recommending the dismissal of the case. Such further diminished in view of petitioner's recent reinstatement as Chairman delay is now far from excusable. Petitioner's Motion to Dismiss has been and Chief Executive Officer of San Miguel Corporation, though he has now filed as early as December 13, 1996 and, on three occasions, petitioner has more justification to travel so as to oversee the entire operations of that moved for the urgent resolution of this motion. What further militates company. In this regard, it has to be conceded that his assumption of such against further delay in resolving this case is the fact that the government vital post has come at a time when the current economic crisis has adversely prosecutors themselves concede that this case is paramount importance, affected the international operations of many companies, including San involving as it does "the recovery of the ill-gotten wealth or government Miguel. The need to travel abroad frequently on the part of petitioner, to funds, unlawfully used or misused by persons close or perceived to be close formulate and implement the necessary corporate strategies and decisions, to the Marcoses." Respondent court declared in its Order dated February 17 could not be forestalled. These considerations affecting the petitioner's 1997 that the matter would be deemed submitted for resolution upon duties to a publicly held company, militate against imposing further compliance with the Office of the Special Prosecutor as to whether there is restrictions on petitioner's right to travel abroad. indeed no probable cause against petitioner, which compliance was submitted by the Office of the Special Prosecutor on March 17, 1997. PANGANIBAN, J., concurring and dissenting: Under these circumstances, the Court does find the period of more than one 1. REMEDIAL LAW; CRIMINAL PROCEDURE; ARREST; year that elapsed for resolving petitioner's motion to dismiss quite long, PROBABLE CAUSE; MUST BE PERSONALLY DETERMINED BY considering that all pertinent pleadings required by the Sandiganbayan were JUDGE. — With an analysis of case law as backdrop, the Court en banc already submitted. indeed categorically declared in Ho (280 SCRA 365 [1997]) that a judge cannot issue a warrant of arrest with only the prosecutor's findings and 7. ID.; ID ; RIGHT TO TRAVEL; DENIAL THEREOF IN recommendation as bases for determining probable cause. No less than the CASE AT BAR UNJUSTIFIED. — The travel ban should be lifted Constitution mandates in no uncertain terms that "no . . . warrant of arrest considering all the circumstances now prevailing. The rule laid down by shall issue except upon probable cause to be determined personally by the this Court is that a person facing a criminal indictment and provisionally judge after examination under oath or affirmation of the complainant and released on bail does not have an unrestricted right to travel, the reason the witnesses he may produce . . . . " This clause unequivocally means that being that a person's right to travel is subject to the usual constraints the judge must make his own determination — independent of that of the imposed by the very necessity of safeguarding the system of justice. But, prosecutor — of whether there is probable cause to issue a warrant of arrest, significantly, the Office of the Solicitor General in its Manifestation dated based on the complainant's and his witnesses' accounts, if any. November 20, 1998 indicated that it is not interposing any objection to petitioner's prayer that he be allowed to travel abroad. Moreover, 2. ID.; ID.; ID.; ID.; ID.; RELIANCE ON TWO (2) prescinding from our initial declaration that the issuance of warrant of arrest DOCUMENTS SUBMITTED BY THE OFFICE OF THE against petitioner by respondent court is invalid, it now becomes necessary OMBUDSMAN AND OFFICE OF SPECIAL PROSECUTOR, NOT that there be strong and compelling reasons to justify the continued SUFFICIENT FOR PROPER DETERMINATION OF EXISTENCE restriction on petitioner's right to travel abroad. Admittedly, all of OF PROBABLE CAUSE; WARRANT ISSUED NULL AND VOID; CASE AT BAR. — In the instant case, it is undisputed that Respondent to resolve his case. And, as borne by the records, for three years said court Sandiganbayan had considered only two documents in determining whether practically sat on his case (reconsideration of the denial of his Opposition). an order of arrest should be issued against the petitioner. These documents Under the circumstances, petitioner's actions should not be construed as a were (a) the June 2, 1992 Resolution of the panel of investigators of the waiver of his right to object to the nullity of his arrest. With all due respect, Office of the Ombudsman, recommending the filing of an information and I submit that to rule otherwise as the majority did is most unfair and unjust, (b) the June 16, 1995 Memorandum of the Office of the Special Prosecutor, because an accused could be indefinitely detained as a result of the trial finding that no prejudicial question existed for the suspension of the court's expedient of merely sitting on the objection to the issuance of the criminal case. Pursuant to our ruling in Ho, these documents do not suffice warrant. as basis for the judge or court to make a personal and independent determination of the existence of probable cause. Supporting evidence other VITUG, J., concurring: than the report and recommendation of the investigators and the special 1. REMEDIAL LAW; CRIMINAL PROCEDURE; MOTION prosecutor should have been examined by the respondent court. In view of TO DISMISS, BREACH OF RIGHT TO SPEEDY DISPOSITION OF this lapse, the warrant issued for the arrest of Petitioner Cojuangco is null CASE; REQUISITE. — A breach of the right of an accused to the speedy and void. disposition of his case may truly have consequential effects but it is not enough that there be some procrastination in the proceedings. In order to 3. ID.; ID.; ID.; POSTING OF BOND DESPITE NULLITY OR justify the dismissal of the criminal case, foreclosing thereby even a IRREGULARITY IN ISSUANCE THEREOF; NOT DEEMED rectification of its handling, it must be established that the proceedings WAIVER WHERE THERE WAS AN EXPRESS AND CONTINUING unquestionably have been marred by vexatious, capricious and oppressive OBJECTION TO COURT'S JURISDICTION; CASE AT BAR. — The delays. posting of a bail bond by the petitioner despite the nullity or irregularity of the issuance of the warrant for his arrest should not be equated with 2. ID.; ID.; ARREST; JUDGE MUST PERSONALLY "voluntary appearance" as to cloak the respondent court with jurisdiction EVALUATE REPORT AND SUPPORTING DOCUMENTS over his person. Truly, his ''appearance" in court was not "voluntary." It SUBMITTED BY PROSECUTOR — The issuance of a warrant of arrest should be noted that immediately upon learning of the filing of the is one of grave responsibility on the part of the issuing judge. While the Information and the issuance of the warrant, petitioner filed an "Opposition judge need not himself examine the complainant and his witnesses, he, to [the] Issuance of [a] Warrant of Arrest with Motion for Leave to File however, must personally evaluate the report and supporting documents Motion for Reconsideration of [the] Ombudsman['s] Resolutions." Said submitted by the prosecutor regarding the existence of probable cause and Opposition was based on the inadequacy of the respondent court's basis for only on the basis thereof can he validly and correspondingly issue a warrant determining probable cause. It was essentially an express and continuing of arrest. The judge may, if he finds it needful, require the submission of objection to the court's jurisdiction over his person. Clearly, therefore, in additional affidavits of witnesses or papers to aid him in arriving at a posting for bail and seeking permission to travel abroad, the petitioner conclusion on the existence or absence of probable cause. merely made special appearances in order to obtain immediate urgent reliefs, without necessarily waiving the graft court's want of jurisdiction. He 3. ID.; ID.; ID.; PROCEDURAL FLAWS IN ISSUANCE merely wanted to avoid incarceration, as he hardly had any choice but to THEREOF DEEMED WAIVED IN POSTING BOND. — The secure the court's consent whenever he left the country to attend to his foregoing dictum would, however, be inconsequential in a case when the personal and business concerns. Otherwise, petitioner would have been person on whom the warrant is served has, in some other way, effectively effectively rendered immobile and worthless until the Sandiganbayan chose submitted himself to the jurisdiction of the court. One such case is by the posting of bail. The fact that the issuance of the warrant of arrest is assailed against the former Administrator of the Philippine Coconut Authority for its procedural flaws before the posting of bail is of little moment since (PCA) and the former members of the PCA Governing Board, petitioner the arrest relates merely to the jurisdiction of the court which posting among them, for violation of Republic Act No. 3019, the Anti-Graft and would, of course, only be feasible if the court allowing it would have first Corrupt Practices Act, as amended. In said complaint, the respondents were acquired lawful jurisdiction over person at the time. charged "for having conspired and confederated together and taking undue advantage of their public positions and/or using their powers, authority, 4. CONSTITUTIONAL LAW; BILL OF RIGHTS; RIGHT TO influence, connections or relationship with the former President Ferdinand TRAVEL; RESTRICTED WHEN ONE IS FACING CRIMINAL E. Marcos and former First Lady, Imelda Romualdez-Marcos without CHARGES; RESTRICTION TEMPORARILY LIFTED IN CASE AT authority granted a donation in the amount of Two Million Pesos BAR. — Corollarily, the constitutional right of a person to travel may be (P2,000,000.00) to the Philippine Coconut Producers Federation restricted not only because he may be facing criminal charges but also as (COCOFED), a private entity, using PCA special fund, thereby giving being the consequence of the nature and function of a bail. The condition COCOFED unwarranted benefits, advantage and preference through imposed upon him to make himself available at all times whenever the court manifest partiality, evident bad faith and gross inexcusable negligence to so requires his presence operates as a valid restriction on his right to travel. the grave (sic) and prejudice of the Filipino people and to the Republic of Nevertheless, I join the majority of my colleagues in directing the the Philippines." temporary lifting for the reasons advanced, which I find to be reasonable and justified, of the ban on travel of petitioner. Subsequently, however, this Court ruled that all proceedings in the preliminary investigation conducted by the PCGG were null and void and D E C I S I O N the PCGG was directed to transmit the complaints and records of the case to QUISUMBING, J p: the Office of the Ombudsman for appropriate action.

This petition for prohibition under Section 2 of Rule 65 of the Rules of In a Resolution dated June 2, 1992, the panel of investigators recommended Court seeks to dismiss Criminal Case No. 22018 entitled "People of the the filing of an Information for violation of Section 3(e) of R.A. No. 3019, Philippines vs. Eduardo M. Cojuangco, Jr., et al.", now pending before as amended, against herein petitioner and five other respondents. respondent Sandiganbayan (First Division), and to prohibit said court from further proceeding with the case. Petitioner invokes his constitutional right As set out in the Memorandum of the Office of the Special Prosecutor, to due process, a speedy trial, and a speedy determination of his cases subsequently, the following relevant incidents took place: before all judicial, quasi-judicial and administrative bodies. Further, he "The above Resolution dated June 2, 1992 was referred by Assistant prays for the issuance of a Temporary Restraining Order and/or Writ of Ombudsman Abelardo L. Aportadera, Jr. to the Office of the Special Preliminary Injunction enjoining respondent Sandiganbayan (First Division) Prosecutor for review and if warranted, for the preparation of the criminal from further enforcing and/or implementing its order dated February 20, information. 1995, which bans petitioner from leaving the country except upon prior approval by said court. In a Memorandum dated July 15, 1992 the Office of the Special Prosecutor affirmed the recommendation as contained in the Resolution dated June 2, Criminal Case No. 22018 is an offshoot of a complaint filed on January 12, 1992. 1990, by the Office of the Solicitor General before the Presidential Commission on Good Government (PCGG), docketed as I.S. No. 74, However, on August 19, 1992 then Ombudsman Conrado M. Vasquez On February 19, 1995 petitioner filed with respondent court an Opposition ordered the panel of investigators to discuss the merits of the prejudicial to Issuance of Warrant of Arrest with Motion For Leave To File Motion For question posed by respondent Lobregat Reconsideration of Ombudsman Resolutions. In his Opposition, petitioner alleged that since the only documents attached to the Information and In a Memorandum dated November 18, 1992, the panel of investigators submitted to respondent Sandiganbayan were the Resolution dated June 2, found that Civil Case No. 0033 does not pose a prejudicial question which 1992 of the panel of investigators and the Memorandum dated January 16, will warrant the suspension of the filing of the criminal case. 1995 of the Office of the Special Prosecutor, the same were not adequate for the determination of probable cause for the issuance of a warrant of The aforesaid Memorandum was received by Assistant Ombudsman arrest by respondent Sandiganbayan. Hence, petitioner claims the Abelardo L. Aportadera on December 1, 1992 who submitted his comment respondent Sandiganbayan should recall the warrant of arrest already issued thereto on December 16, 1992 to then Ombudsman Vasquez. or desist from issuing a warrant of arrest. Petitioner, avers, furthermore that the filing of the Information was premature considering that he was not On December 23, 1992, then Ombudsman Vasquez ordered the panel of furnished a copy of the Ombudsman's Resolution in violation of Section 27 investigators to go to the specifics and not the general averments on issue of of R.A. No. 6770 and prays that he be given leave to file a motion for prejudicial question. reconsideration of the Ombudsman's Resolution dated June 2, 1992 and the In a Memorandum dated December 1, 1993 the panel of investigators Office of the Special Prosecutor's Memorandum dated January 16, 1995. recommended that the motion to suspend proceedings be granted. On February 22, 1995, petitioner posted bail. On the same day he likewise On December 3, 1993 then Ombudsman Vasquez referred for comment to filed, through counsel, a Manifestation stating that he was posting bail the Office of the Special Prosecutor the Memorandum dated December 1, without prejudice to the Opposition To Issuance of Warrant of Arrest with 1993 of the panel of investigators on the issue of the existence of prejudicial Motion For Leave To File a Motion For Reconsideration of the question. Ombudsman's Resolution which he filed.

In a Memorandum dated January 16, 1995, Special Prosecution Officer In a Resolution dated February 20, 1995, the respondent Sandiganbayan Daniel B. Jovacon, Jr. resolved that no prejudicial question exists to warrant barred petitioner from leaving the country except upon approval of the the suspension of the criminal proceedings which recommendation was court. approved by then Ombudsman Vasquez on January 26, 1995. The Information, together with the case record of OMB-0-90-2806, was In an Order dated February 22, 1995, the respondent Sandiganbayan gave forwarded to the Office of the Ombudsman on February 10, 1995. petitioner and the other accused twenty (20) days to file their respective motions for reconsideration of the Ombudsman's Resolution with the Office On February 16, 1995 Criminal Case No. 22018 was filed with the of the Ombudsman. PCGG was likewise given a similar period within Sandiganbayan and thereafter raffled to the First Division. which to file its comment to the motions for reconsideration. Furthermore, the respondent Sandiganbayan ordered petitioner to supplement or amplify On February 17, 1995, an order for the arrest of petitioner was issued by the his existing motion on the issue of the propriety of the issuance of an Order respondent Sandiganbayan. of Arrest based merely on the resolution of the Ombudsman in support of the filing of the Information, among others. On March 9, 1995, petitioner filed a Memorandum in Amplification of On December 13, 1996 petitioner filed an Urgent Motion To Dismiss Opposition To Issuance of Warrant of Arrest. alleging that with the reversal of the earlier findings of the Ombudsman of In a Resolution dated March 14, 1995, petitioner was granted additional probable cause, there was therefore nothing on record before the respondent fifteen (15) days or until March 29, 1995 within which to file his motion for Sandiganbayan which would warrant the issuance of a warrant of arrest and reconsideration with the Office of the Ombudsman. the assumption of jurisdiction over the instant case. On December 23, 1996 the Office of the Solicitor General, in representation Petitioner filed his motion for reconsideration on March 28, 1995. of the PCGG, filed with the Office of the Special Prosecutor a motion for reconsideration of the Memorandum dated October 22, 1996 recommending In a Resolution dated April 3, 1995, the respondent Sandiganbayan denied the dismissal of the case against petitioner and the other accused in petitioner's motion seeking the recall of the issuance of the warrant for his Criminal Case No. 22018. arrest. In an Order dated January 6, 1997, Special Prosecution Officer Victorio U. On April 7, 1995, petitioner filed a motion for reconsideration of the Tabanguil merely noted the motion for reconsideration dated December 23, Resolution dated April 3, 1995 of the respondent Sandiganbayan. 1996 of the Office of the Solicitor General.

On May 25, 1995, petitioner was conditionally arraigned pleading not guilty On January 13, 1997, petitioner filed a Motion To Strike Out Alternatively, to the Information. The arraignment was undertaken solely to accommodate Opposition To Complainant's Motion For Reconsideration dated December the petitioner in his request to travel pending the determination of probable 23, 1996 alleging that the motion was filed out of time. cause against him at the reinvestigation stage. The conditional arraignment is subject to the condition that if petitioner is exonerated at the preliminary In an Order dated January 9, 1997, the respondent Sandiganbayan ordered investigation, the arraignment is set aside. On the other hand, should there the prosecution to justify the relationship that may be established with be cause against the petitioner either as already charged or a separate charge respect to the COCOFED on one hand and the Philippine Coconut which might be related to the case pending, the arraignment will not serve Authority on the other, as a basis for justifying the position of the as basis for the invocation of the right against double jeopardy. prosecution in this case. Furthermore, upon information provided by Prosecutor Tabanguil that the Office of the Solicitor General has sought a In the meantime, in a Memorandum dated October 22, 1995, Special reconsideration on the desire of the prosecution to withdraw the Prosecution Officer Victorio U. Tabanguil found no probable cause to information, the Office of the Solicitor General was given fifteen (15) days warrant the filing against petitioner and the other accused in Criminal Case to submit its comment to the Motion to Withdraw Information. The No. 22018 and recommended the dismissal of the case. The petitioner and the other accused were given the same period to reply to the recommendation for dismissal was approved by the Honorable Ombudsman comment if they so desire. After which the matter will be deemed submitted on November 15, 1996. for resolution.

On December 6, 1996, Special Prosecutor Officer Victorio U. Tabanguil On January 17, 1997, the prosecution filed its compliance to the Order filed a Manifestation attaching a copy of the Memorandum dated October dated January 9, 1997. On the other hand, the Office of the Solicitor 22, 1995 with the respondent Sandiganbayan for its consideration. General filed its comment on January 24, 1997. In an Order dated February 4, 1997, the respondent Sandiganbayan ordered urgent motion for hearing thereon 6 citing the urgency of lifting the travel the PCGG lawyers to 'present themselves before the respondent court and restriction on him in view of the various problems involving the respond to the claim of the OSG that the exhibits necessary are with the investments of San Miguel Corporation (SMC) abroad which must be PCGG so that the Republic might effectively substantiate its position that immediately attended to by petitioner as duly elected Chairman and Chief probable cause exists. Furthermore, it is as much the function of the court to Executive Officer of SMC. Petitioner asserts that quite often, it becomes determine the existence of probable cause and the propriety of the necessary for him to attend meetings and conferences abroad where withdrawal of the Information to be assured that the evidence for the attendance must be confirmed promptly. Considering that he must first complainant has been properly presented or the accused is properly secure the permission of respondent Sandiganbayan before he can travel protected at preliminary investigation.' abroad and abide by the conditions imposed by said court upon the grant of In an Order dated February 17, 1997, the respondent Sandiganbayan, with such permission, petitioner contends that it becomes impossible for him to the agreement of the parties, gave the Office of the Solicitor General ten immediately attend to the aforecited tasks. (10) days within which to submit some form of cataloging and explanation of the documents on record to the prosecution. On the other hand, the On September 2, 1998, the Court noted the respective comments to the prosecution was given fifteen (15) days from receipt of the submission petition filed by the Office of the Special Prosecutor and the Solicitor within which to review the matter once more and to respond thereat. General and required petitioner to file a consolidated reply within ten (10) days from notice. On June 13, 1997, the PCGG filed its Entry of Appearance dated June 3, 1997. On September 3, 1998, petitioner filed a Second Motion Reiterating On June 19, 1997, petitioner filed a Second Motion To Resolve the Urgent Application for Temporary Restraining Order and/or Writ of Preliminary Motion To Dismiss dated December 12, 1996. Injunction with Urgent Motion for Hearing, arguing among others that the On July 3, 1997, petitioner filed a Motion to Strike Out (Re: PCGG's Entry continued maintenance of the hold-departure order against him has of Appearance) dated June 30, 1997. deleterious consequence not only on him personally but also on San Miguel On July 16, 1997, the PCGG filed an Opposition to the Motion To Strike Corporation, a publicly listed stock company, of which he is now Chairman Out (Re: PCGG's Entry of Appearance). and Executive Officer. On July 18, 1997, petitioner filed a Reply to the Opposition to Strike Out. On July 31, 1997, the PCGG filed a Rejoinder to the Reply of petitioner. On September 7, 1998, the Court resolved to defer action on the On January 23, 1998, petitioner filed a Third Motion To Resolve the Urgent aforementioned second motion reiterating the application for the issuance of Motion To Dismiss dated December 12, 1996. a temporary restraining order and/or a writ of preliminary injunction until In an Order dated January 26, 1998, respondent Sandiganbayan duly noted the filing of petitioner's Consolidated Reply and required the petitioner's Motion to Dismiss." Sandiganbayan to file its own Comment on the petition in view of the Comment filed by the Office of the Special Prosecutor divergent from the Hence, the present petition. position taken by respondent Sandiganbayan. On July 22, 1998, the Court issued a resolution requiring respondents to file their respective comments to the petition. On September 10, 1998, petitioner filed a Consolidated Reply 11 and prayed that his Second Application for a Temporary Restraining Order On August 5, 1998, petitioner filed a motion reiterating his application for and/or Writ of Preliminary Injunction with Urgent Motion for hearing dated temporary restraining order and/or writ of preliminary injunction with September 2, 1998 be now acted upon. On September 17, 1998, respondent Sandiganbayan filed a motion for In its Resolution dated November 9, 1998, the Court noted the aforesaid extension of time to file its comment to the petition. Subsequently, motion and directed petitioner that in the meanwhile, he may address his petitioner filed his Third Motion Reiterating Application for Temporary request for permission to travel abroad to the Sandiganbayan. Restraining Order and/or Writ of Preliminary Injunction with Urgent Motion for Hearing 12 in view of the urgency of lifting the ban on foreign On November 12, 1998, petitioner filed a Motion for Reconsideration of the travel imposed on him by respondent Sandiganbayan. Court's resolution dated November 9, 1998 and argued that: "xxx xxx xxx After respondent Sandiganbayan filed its comment on October 5, 1998, the (6) While the petitioner may indeed obtain some relief by addressing Court in its Resolution dated October 7, 1998, noted the aforesaid comment his 'prayer for permission to travel abroad to the Sandiganbayan', to a large and resolved to set the case for oral argument on October 21, 1998. extent, this defeats the purpose of the petition because petitioner has precisely come to the Supreme Court to obtain relief from an oppressive During the oral argument, the Court suggested that the parties take up in regime of authorization to travel abroad that the Order of the their arguments the following issues: Sandiganbayan of February 20, 1995 (Annex 'E', Petition) has imposed "(1) whether the warrant of arrest issued by respondent Sandiganbayan Significantly, not any of the respondents have opposed petitioner's is null and void, or should now be lifted if initially valid; application for the issuance of temporary restraining order and/or writ of (2) whether petitioner's basic rights to due process, speedy trial and preliminary injunction or for permission to travel abroad." speedy disposition of the case have been violated as to warrant dismissal of Criminal Case No. 22018; and On November 20, 1998, petitioner filed a Manifestation in support of his (3) whether the ban on foreign travel imposed on petitioner per Order motion for reconsideration, setting forth the urgency of lifting the ban on of February 20, 1995 should be vacated to enable petitioner to go abroad foreign travel imposed on him in view of the need to oversee the critical without prior permission of, and other restrictions imposed by, the stages in the international operations of SMC as its Chairman and Chief respondent Sandiganbayan." Executive Officer. On November 20, 1998, the Office of the Solicitor General filed a After hearing the arguments of the parties, the Court resolved to require Manifestation indicating that it is not interposing any objection to them to submit their respective memoranda on the related issues taken up petitioner's prayer that he be allowed to travel abroad. on the hearing including the merits of the case within twenty (20) days. The motion of counsel for petitioner that the issue of lifting the ban on foreign With the submission of the parties' respective memoranda, the Court now travel imposed on petitioner be resolved first, was, held under advisement. proceeds to resolve the petition.

On November 6, 1998, petitioner filed another Motion to Resolve As postulated during the oral argument, three main issues confront us in this Petitioner's, "Motion for Issuance of a Temporary Restraining Order or Writ petition, to wit: of Preliminary Injunction" Enjoining Enforcement of Respondent "(1) whether the warrant of arrest issued by respondent Sandiganbayan Sandiganbayan's Order dated February 20, 1995 (Hold Departure Order) is null and void, or should now be lifted if initially valid; with an alternative prayer to travel abroad within a period of six (6) months. (2) whether petitioner's basic rights to due process, speedy trial and speedy disposition of the case have been violated as to warrant dismissal of Criminal Case No. 22018; and (3) whether the ban on foreign travel imposed on petitioner per Order produce, and particularly describing the place to be searched and the of February 20, 1995 should be vacated to enable petitioner to go abroad persons or things to be seized." (Emphasis supplied) without prior permission of, and other restrictions imposed by, the respondent Sandiganbayan." In Ho vs. People, the Court had the opportunity to elucidate on the matter of determining of probable cause to merit the issuance of a warrant of arrest: On the first issue, petitioner and the Office of the Special Prosecutor both "First, . . . the determination of probable cause by the prosecutor is for a argue that the warrant of arrest issued by respondent Sandiganbayan is null purpose different from that which is to be made by the judge. Whether there and void for lack of sufficient basis upon which it could have "personally'' is reasonable ground to believe that the accused is guilty of the offense determined the existence of probable cause to issue the warrant of arrest charged and should be held for trial is what the prosecutor passes upon. The against him. They contend that there was a violation of Section 2, Article III judge, on the other hand, determines whether a warrant of arrest should be of the Constitution because the Information in Criminal Case No. 22018 issued against the accused, i.e., whether there is a necessity for placing him was accompanied only by the Resolution dated June 2, 1992 of the Panel of under immediate custody in order not to frustrate the ends of justice. Thus, Graft Investigators of the Office of the Ombudsman recommending the even if both should base their findings on one and the same proceeding or filing of the information and the Memorandum dated January 16, 1995 of evidence, there should be no confusion as to their distinct objectives. the Office of the Special Prosecutor denying the existence of a prejudicial question which will warrant the suspension of the filing of the criminal Second, since their objectives are different, the judge cannot rely solely on case. Their argument is principally anchored on the pronouncements made the report of the prosecutor in finding probable cause to justify the issuance in the case of Ho vs. People that reliance on the prosecutor's report alone is of a warrant of arrest. Obviously and understandably, the contents of the not sufficient in determining whether there is probable cause for the prosecutor's report will support his own conclusion that there is reason to issuance of a warrant of arrest. Consequent to the nullity of the warrant of charge the accused of an offense and hold him for trial. However, the judge arrest, petitioner further argues that the Sandiganbayan has not acquired must decide independently. Hence, he must have supporting evidence, other jurisdiction over him and is without power to exercise the same. than the prosecutor's bare report, upon which to legally sustain his own findings on the existence (or nonexistence) of a probable cause to issue an However, the Office of the Special Prosecutor and the Office of the arrest order. This responsibility of determining personally and Solicitor General maintain that any infirmity that may have attended the independently the existence or nonexistence of probable cause is lodged in issuance of the warrant of arrest was cured by petitioner's voluntary him by no less than the most basic law of the land. Parenthetically, the submission to the jurisdiction of the respondent Sandiganbayan when prosecutor could ease the burden of the judge and speed up the litigation petitioner posted bail and subsequently invoked the jurisdiction of the process by forwarding to the latter not only the information and his bare Sandiganbayan by filing numerous motions wherein he sought affirmative resolution finding probable cause, but also so much of the records and the reliefs. evidence on hand as to enable His Honor to make his personal and separate judicial finding on whether to issue a warrant of arrest. Now, pertinent to the issue at hand is the second clause of Section 2, Article III of the 1987 Constitution, which provides that: Lastly, it is not required that the complete or entire records of the case "Sec. 2. . . . no search warrant or warrant of arrest shall issue except upon a during the preliminary investigation be submitted to and examined by the probable cause to be determined personally by the judge after examination judge. We do not intend to unduly burden trial courts by obliging them to under oath or affirmation of the complainant and the witnesses he may examine the complete records of every case all the time simply for the purpose of ordering the arrest of an accused. What is required, rather, is that the judge must have sufficient supporting documents (such as the cited documents were the product of somebody else's determination, complaint, affidavits, counter-affidavits, sworn statements of witnesses or insufficient to support a finding of probable cause by the Sandiganbayan. transcripts of stenographic notes, if any) upon which to make his Hence, the warrant of arrest issued by respondent court on February 17, independent judgment or, at the very least, upon which to verify the 1995 against herein petitioner is palpably invalid. findings of the prosecutor as to the existence of probable cause. The point is he cannot rely solely and entirely on the prosecutor's recommendation, as Consequent to the nullity of the warrant of arrest, the crucial issue now Respondent Court did in this case. Although the prosecutor enjoys the legal posed is whether or not respondent Sandiganbayan could still exercise presumption of regularity in the performance of his official duties and Jurisdiction over the petitioner and proceed with the trial of the case. functions, which in turn gives his report the presumption of accuracy, the Constitutions, we repeat, commands the judge to personally determine As already adverted to, the Office of the Special Prosecutor and the Office probable cause in the issuance of warrants of arrest. This Court has of the Solicitor General are in agreement, that whatever infirmity might consistently held that a judge fails in his bounden duty if he relies merely on have attended the issuance of the warrant of arrest against petitioner, it was the certification or the report of the investigating officer." cured by petitioner's subsequent act of voluntarily submitting to respondent court's jurisdiction by posting his bail and filing the following pleadings As alleged by petitioner, in the case at bar, the Sandiganbayan had two which sought affirmative relief, to wit (1) Opposition to Issuance of pieces of documents to consider when it resolved to issue the warrant of Warrant of Arrest with Motion for Leave to File Motion for arrest against the accused: (1) the Resolution dated June 2, 1992 of the Reconsideration; (2) Motion for extension of time to file Motion for Panel of Investigators of the Office of the Ombudsman recommending the Reconsideration; (3) seven Motions to Travel Abroad and two Motions for filing of the Information and (2) the Memorandum dated June 16, 1995 of Extension of time to stay abroad. Hence, they contend that respondent the Office of the Special Prosecutor denying the existence of a prejudicial court's jurisdiction over petitioner has remained in effect. question which will warrant the suspension of the criminal case. The Sandiganbayan had nothing more to support its resolution. Petitioner objects to this contention, and asserts that "since the warrant of arrest issued by respondent Sandiganbayan is null and void, it never In Roberts vs. Court of Appeals, 24 we struck down as invalid an order for acquired jurisdiction over the person of the petitioner; as a consequence, it the issuance of a warrant of arrest which were based only on ''the never acquired jurisdiction to take cognizance of the offense charged and to information, amended information and Joint Resolution", without the issue any order adverse to the rights of petitioner, including an Order benefit of the records or evidence supporting the prosecutor's finding of restricting his right to travel." 28 According to petitioner, the submission of probable cause. And in Ho vs. People, we declared that respondent both the Office of the Special Prosecutor and the Office of the Solicitor "palpably committed grave abuse of discretion in ipso facto issuing the General is not only absurd but also oppressive and offensive to the Bill of challenged warrant of arrest on the sole basis of the prosecutor's findings Rights since it would mean that to preserve his right against the issuance of and recommendation, and without determining on its own the issue of a warrant of arrest without probable cause determined in accordance with probable cause based on evidence other than such bare findings and Sec. 2, Article III of the Constitution, petitioner should have allowed recommendation." himself to be incarcerated or imprisoned from the time the warrant of arrest was issued on February 20, 1995 up to the present, or for more than three Similarly, we are now constrained to rule that herein respondent court failed (3) years now, and continue to be imprisoned until the Supreme Court to abide by the constitutional mandate of personally determining the decides to declare the arrest void. existence of probable cause before issuing a warrant of arrest. For the two On this score, the rule is well-settled that the giving or posting of bail by the Verily, petitioner's participation in the proceedings before the accused is tantamount to submission of his person to the jurisdiction of the Sandiganbayan was not confined to his opposition to the issuance of a court. Thus, it has been held that: warrant of arrest but also covered other matters which called for respondent "When a defendant in a criminal case is brought before a competent court court's exercise of its jurisdiction. Petitioner may not be heard now to deny by virtue of a warrant of arrest or otherwise, in order to avoid the said court's jurisdiction over him. Nor can we ignore the long line of submission of his body to the jurisdiction of the court he must raise the precedents declaring that where the accused had posted bail, as required, to question of the court's jurisdiction over his person at the very earliest obtain his provisional liberty, "it becomes futile to assail the validity of the opportunity. If he gives bail, demurs to the complaint or files any dilatory issuance of the warrants of arrest." plea or pleads to the merits, he thereby gives the court jurisdiction over his As to petitioner's contention that he should have just allowed himself to stay person. (State ex rel. John Brown vs. Fitzgerald, 51 Minn., 534)'' in jail pending the resolution of his opposition to the issuance of the warrant xxx xxx xxx of arrest against him, if only to avoid waiving his right to question the "Conceding again that the warrant issued in this case was void for the jurisdiction of respondent court, the Office of the Special Prosecutor has reason that no probable cause was found by the court before issuing it, the pointed out that petitioner is not without a remedy. Petitioner could have defendant waived all his rights to object to the same by appearing and filed a petition for certiorari and prohibition with prayer for the issuance of giving bond." a temporary restraining order, rather than actively participate in the proceedings before the Sandiganbayan. And as exemplified by the case of By posting bail, herein petitioner cannot claim exemption from the effect of Allado vs. Diokno this remedy has already proved to be effective. being subject to the jurisdiction of respondent court. While petitioner has exerted efforts to continue disputing the validity of the issuance of the Against the continued exercise of jurisdiction by respondent Sandiganbayan warrant of arrest despite his posting bail, his claim has been negated when in Criminal Case No. 22018, petitioner also invokes the Memorandum of he himself invoked the jurisdiction of respondent court through the filing of the Office of the Special Prosecutor dated October 22, 1995 recommending various motions that sought other affirmative reliefs. the dismissal of the case against him due to the absence of probable cause, which was later on approved by the Ombudsman on November 15, 1996. As ruled in La Naval Drug vs. CA: Citing the case of Torralba vs. Sandiganbayan, petitioner argues that this "[L]ack of jurisdiction over the person of the defendant may be waived Memorandum is an integral part of the preliminary investigation and should either expressly or impliedly. When a defendant voluntarily appears, he is take precedence notwithstanding the fact that the same was made after the deemed to have submitted himself to the jurisdiction of the court. If he so filing of the Information before the Sandiganbayan, for to deny any efficacy wishes not to waive this defense; he must do so seasonably by motion for to the finding of the Office of the Special Prosecutor would negate the right the purpose of objecting to the jurisdiction of the court; otherwise, he shall of the petitioner to a preliminary investigation. be deemed to have submitted himself to that jurisdiction." The well-entrenched rule however, as laid down by the case of Crespo vs. Moreover, "[w]here the appearance is by motion for the purpose of Mogul is that: objecting to the jurisdiction of the court over the person, it must be for the ". . . once a complaint or information is filed in Court any disposition of the sole and separate purpose of objecting to said jurisdiction. If the appearance case as its dismissal or the conviction or acquittal of the accused rests in the is for any other purpose, the defendant is deemed to have submitted himself sound discretion of the Court. Although the fiscal retains the direction and to the jurisdiction of the court. Such an appearance gives the court control of the prosecution of criminal cases even while the case is already in jurisdiction over the person." Court he cannot impose his opinion on the trial court. The Court is the best and sole judge on what to do with the case before it. The determination of Petitioner's reliance on Torralba vs. Sandiganbayan is not, in our view, the case is within its exclusive jurisdiction and competence. A motion to persuasive. In that case the petitioners were not given any chance at all to dismiss the case filed by the fiscal should be addressed to the Court who has seek reconsideration from the Ombudsman's final resolution because they the option to grant or deny the same. It does not matter if this is done before were not furnished with a copy of the final resolution of the Ombudsman or after the arraignment of the accused or that the motion was filed after a that could have enabled them to file a motion for reconsideration. As a reinvestigation or upon instructions of the Secretary of Justice who result, the Court declared that "petitioners were not only effectively denied reviewed the records of the investigation." the opportunity to file a motion for reconsideration of the Ombudsman's final resolution but also deprived of their right to a full preliminary Nevertheless, petitioner claims exception to this rule by making this investigation preparatory to the filing of the information against them". distinction: "b. The preliminary investigation in Crespo vs. Mogul, supra, was In the case at bar, however, notwithstanding the filing of the Information conducted by the Office of the Provincial Fiscal and, following established before the Sandiganbayan, petitioner was able to file a motion for procedure with respect to such preliminary investigations, the preliminary reconsideration of the Ombudsman's Resolution with leave of court, and in investigation conducted by the fiscal, in the language of Crespo, is fact his two motions for extensions to file the same were granted by the 'terminated upon the filing of the information in the proper court' (at p. respondent court. This eventually paved the way for the filing of subsequent 470). On the other hand, the instant case involves a preliminary Memorandum of the Office of the Special Prosecutor, which was later on investigation conducted by the Office of the Special Prosecutor pursuant to approved by the Ombudsman, recommending the dismissal of the case Sec. 11[4](a), and under Sec. 27 of R.A. No. 6770. In preliminary against him. However, since the Information has already been filed before investigations conducted by the Office of the Special Prosecutor, the the Sandiganbayan, the resolution of the aforesaid recommendation now respondent has the right to file a motion for reconsideration of any lies within the jurisdiction and discretion of respondent court. resolution within five (5) days from receipt of written notice, and pursuant Parenthetically, in the Torralba case, we did not altogether deprive the to Sec. 7, Rule II of Administrative Order No. 7 (Rules of Procedure of the Sandiganbayan of its jurisdiction to proceed with the case, despite the Ombudsman), the respondent has the right to file a motion for defect in the conduct of the preliminary investigation, since we declared reconsideration within fifteen (15) days from notice of the Resolution of the that: Ombudsman. Until the motion for reconsideration is resolved, preliminary "The incomplete preliminary investigation in this case, however, does not investigation is not terminated notwithstanding filing of information in warrant the quashal of the information, nor should it obliterate the court. In the instant case, no copy of the Resolution of the Office of the proceedings already had. Neither is the court's jurisdiction nor validity of an Special Prosecutor which brought about the filing of the Information, was information adversely affected by deficiencies in the preliminary served on the petitioner; consequently, when the Information was filed, the investigation. Instead, the Sandiganbayan is to hold in abeyance any further preliminary investigation had not yet been terminated. It follows that the proceedings therein and to remand the case to the Office of the Ombudsman Resolution of the Office of the Special Prosecutor (approved by the for the completion of the preliminary investigation, the outcome of which Ombudsman) resolving in petitioner's favor the 'Motion for shall then be indorsed to Sandiganbayan for its appropriate action." Reconsideration' he had filed, now finding no probable cause, was an (Emphasis supplied) integral part of the preliminary investigation, not subject to review by the Sandiganbayan (see Torralba vs. Sandiganbayan, 230 SCRA 33 [1994])" Clearly, consistent with the rule in Crespo vs. Mogul, after the filing of the rights has been violated are as follows: (1) the length of delay, (2) the information in court, "any disposition of the case as to its dismissal or the reason for such delay and (3) the assertion or failure to assert such right by conviction or acquittal of the accused rests in the sound discretion of the the accused, and the prejudice caused by the delay. Court." As in previous occasions, the Court takes judicial cognizance of the fact that Proceeding now to the second issue, petitioner maintains that the long delay structural reorganizations 49 and the ever increasing case load of courts that characterized the proceedings in Criminal Case No. 22018 before have adversely affected the speedy disposition of the cases pending before respondent Sandiganbayan has resulted in the violation of his Constitutional them. right to a speedy trial and a speedy determination of his case. Thus, petitioner submits that: In the instant case, however, the Court finds that delay concerns the "4.09. It has been more than three (3) years since the Information in resolution of petitioner's "Urgent Motion to Dismiss", which is an offshoot Criminal Case No. 22018 was filed with respondent Sandiganbayan. More of the Memorandum of the Office of the Special Prosecutor recommending than one and a half (½) years have elapsed since the Office of the Special the dismissal of the case. Such delay is now far from excusable. Petitioner's Prosecutor filed its Manifestation seeking the dismissal of the case. Based Motion to Dismiss has been filed as early as December 13, 1996 and, on on the Office of the Special Prosecutor's finding of the absence of probable three occasions, petitioner has moved for the urgent resolution of this cause, petitioner filed on December 13, 1996, an 'Urgent Motion To motion. What further militates against further delay in resolving this case is Dismiss'. Three times, on March 24, 1997, June 18, 1997 and January 23, the fact that the government prosecutors themselves concede that this case 1998, petitioner has sought resolution of his 'Urgent Motion To Dismiss'. is of paramount importance, involving as it does "the recovery of the ill- These notwithstanding, the dismissal of the information as to petitioner gotten wealth or government funds, unlawfully used or misused by persons remains pending and petitioner continues to be under criminal indictment close or perceived to be close to the Marcoses''. Respondent court declared — constrained to suffer without justification in law and the Constitution, in its Order dated February 17, 1997 that the matter would be deemed the humiliation, the restraints to liberty and the tormenting anxieties of an submitted for resolution upon compliance with the Office of the Special accused." Prosecutor as to whether there is indeed no probable cause against petitioner, which compliance was submitted by the Office of the Special Respondents concede that there has indeed been some delay but deny that it Prosecutor on March 17, 1997. 53 Under these circumstances, the Court amounted to a violation of petitioner's right of speedy disposition of his does find the period of more than one year that elapsed for resolving case. They cite as justification the reorganization of the Sandiganbayan on petitioner's motion to dismiss quite long, considering that all pertinent September 23, 1997 wherein it was reconstituted into five (5) Divisions; 44 pleadings required by the Sandiganbayan were already submitted. (2) the filing of motions by petitioner seeking affirmative reliefs from the Sandiganbayan; (3) the failure of petitioner himself to invoke his right to Even if petitioner himself might have contributed to said delay, as speedy resolution of his pending motions prior to the filing of this petition; contended by respondents, in our view it is best that the case be resolved on (4) the heavy caseload of respondent court. the merits by the Sandiganbayan with due regard to petitioner's right to due process, speedy trial and speedy disposition of the case against him and his The right to a speedy disposition of a case, like the right to speedy trial, is co-accused. deemed violated only when the proceeding is attended by vexatious, capricious, and oppressive delays. It should be emphasized that the factors Finally, with respect to the issue of whether or not the ban on foreign travel that must be taken into account in determining whether this constitutional should be continued, as imposed on petitioner by respondent Sandiganbayan per its Order dated February 20, 1995 with accompanying of that company. In this regard, it has to be conceded that his assumption of restrictions in effect, we resolve to rule in the negative. The travel ban such vital post has come at a time when the current economic crisis has should be lifted, considering all the circumstances now prevailing. adversely affected the international operations of many companies, including San Miguel. The need to travel abroad frequently on the part of The rule laid down by this Court is that a person facing a criminal petitioner, to formulate and implement the necessary corporate strategies indictment and provisionally released on bail does not have an unrestricted and decisions, could not be forestalled. These considerations affecting the right to travel, the reason being that a person's right to travel is subject to petitioner's duties to a publicly held company, militate against imposing the usual constraints imposed by the very necessity of safeguarding the further restrictions on petitioner's right to travel abroad. system of justice. But, significantly, the Office of the Solicitor General in its Manifestation dated November 20, 1998 indicated that it is not interposing WHEREFORE, the Court hereby resolves to DISMISS the petition insofar any objection to petitioner's prayer that he be allowed to travel abroad based as the dismissal of Criminal Case No. 22018 against the petitioner is on the following considerations: concerned. Respondent Sandiganbayan (First Division) is hereby ordered to ". . . (1) that it is well within the power of this Court to suspend its own proceed with the resolution of the pending motions and incidents in rules, including the second paragraph, Section 23, Rule 114 of the Rules of Criminal Case No. 22018 with utmost dispatch. Meanwhile, the Resolution Court; (2) that it has been shown in the past that the petitioner has always of the Sandiganbayan (First Division), dated February 20, 1995 imposing a returned to the Philippines after the expiration of the period of his allowed ban on petitioner's travel abroad without its prior approval pending the travel; and (3) that petitioner, now Chairman of the Board of San Miguel resolution of Criminal Case No. 22018 is, for the reasons heretofore Corporation, may be constrained to leave the country for business purposes, advanced, hereby LIFTED for a period of three (3) months counted from more often than he had done in the past, . . . the finality of this decision. Any similar request during the pendency of said case before the Sandiganbayan shall be addressed to that court. It however recommended that the period of travel should be reduced to three (3) months instead of six (6) months as requested by petitioner and No pronouncement as to costs. that the latter should be required to post an additional cash bond equivalent SO ORDERED. to the present cash bond posted by him. Davide, Jr., C .J ., concurs. Melo, J ., took no part. Moreover, prescinding from our initial declaration that the issuance of warrant of arrest against petitioner by respondent court is invalid, it now Separate Opinions becomes necessary that there be strong and compelling reasons to justify VITUG, J ., concurring: the continued restriction on petitioner's right to travel abroad. Admittedly, all of petitioner's previous requests to travel abroad has been granted and The pivotal issue proffered in the Petition for Prohibition — seeking (a) the that, as confirmed by the Office of the Solicitor General, that petitioner has dismissal of Criminal Case No. 22018 against petitioner pending with the always returned to the Philippines and complied with the restrictions Sandiganbayan and (b) to prevent the latter from further proceeding with imposed on him. The necessity of further denying petitioner's right to travel the case — is the claim made by petitioner of an impairment of his abroad, with attendant restrictions, appears less than clear. The risk of flight constitutional right to the speedy disposition of his case. I share the view is further diminished in view of petitioner's recent reinstatement as reached by Mr. Justice Leonardo A Quisumbing that the petition should be Chairman and Chief Executive Officer of San Miguel Corporation, though denied. A breach of the right of an accused to the speedy disposition of his he has now more justification to travel so as to oversee the entire operations case may truly have consequential effects but it is not enough that there be some procrastination in the proceedings. In order to justify the dismissal of conclusion that there is reason to charge the accused of an offense and hold the criminal case, foreclosing thereby even a rectification of its handling, it him for trial. However, the judge must decide independently. Hence, he must be established that the proceedings unquestionably have been marred must have supporting evidence, other than the prosecutor's bare report, upon by vexatious, capricious and oppressive delays. Hence, this Court has which to legally sustain his own findings on the existence (or nonexistence) stressed in one case: of probable cause to issue an arrest order. This responsibility of determining "It must be here emphasized that the right to a speedy disposition of a case, personally and independently the existence or nonexistence of probable like the right to speedy trial, is deemed violated only when the proceeding is cause is lodged in him by no less than the most basic law of the land. attended by vexatious, capricious, and oppressive delays; or when Parenthetically, the prosecutor could ease the burden of the judge and speed unjustified postponements of the trial are asked for and secured, or when up the litigation process by forwarding to the latter not only the information without cause or justifiable motive a long period of time is allowed to and his bare resolution finding probable cause, but also so much of the elapse without the party having his case tried. Equally applicable is the records and the evidence on hand as to enable His Honor to make his balancing test used to determine whether a defendant has been denied his personal and separate judicial finding on whether to issue a warrant of right to a speedy trial, or a speedy disposition of a case for that matter, in arrest." which the conduct of both the prosecution and the defendant are weighed, and such factors as length of the delay, reason for the delay, the defendant's "Lastly, it is not required that the complete or entire records of the case assertion or non-assertion of his right, and prejudice to the defendant during the preliminary investigation be submitted to and examined by the resulting from the delay, are considered." judge. We do not intend to unduly burden trial courts by obliging them to examine the complete records of every case all the time simply for the Petitioner additionally scores on the fact that respondent Sandiganbayan purpose of ordering the arrest of an accused. What is required, rather, is that issued the warrant for his arrest based solely on the 2nd June 1992 the judge must have sufficient supporting documents (such as the Resolution of the Office of the Ombudsman and the 16th January 1995 complaint, affidavits, counter-affidavits, sworn statements of witnesses or Memorandum of the Office of the Special Prosecutor. He has a point. The transcripts of stenographic notes, if any) upon which to make his issuance of warrant of arrest is one of grave responsibility on the part of the independent judgment or, at the very least, upon which to verify the issuing judge. While the judge need not himself examine the complainant findings of the prosecutor as to the existence of probable cause. The point and his witnesses, he, however, must personally evaluate the report and is: he cannot rely solely and entirely on the prosecutor's recommendation, as supporting documents submitted by the prosecutor regarding the existence Respondent Court did in this case. Although the prosecutor enjoys the legal of probable cause and, only on the basis thereof can he validly and presumption of regularity in the performance of his official duties and correspondingly issue a warrant of arrest. The judge may, if he finds it functions, which in turn gives his report the presumption of accuracy, the needful, require the submission of additional affidavits of witnesses or Constitution, we repeat, commands the judge to personally determine papers to aid him in arriving at a conclusion on the existence or absence of probable cause in the issuance of warrants of arrest. This Court has probable cause. 3 In Ho vs. People, 4 the Court, positing that the issuing consistently held that a judge fails in his bounden duty if he relies merely on judge must have sufficient supporting documents, besides the bare report of the certification or the report of the investigating officer." the prosecutor, upon which to make an independent judgment, has said: The foregoing dictum would, however, be inconsequential in a case when ". . . (T)he judge cannot rely solely on the report of the prosecutor in finding the person on whom the warrant is served has, in some other way, probable cause to justify the issuance of a warrant of arrest. Obviously and effectively submitted himself to the jurisdiction of the court. One such case understandably, the contents of the prosecutor's report will support his own is by the posting of bail. The fact that the issuance of the warrant of arrest is assailed for its procedural flaws before the posting of bail is of little aside an otherwise valid judgment rendered after a trial, free from error. The moment since the arrest relates merely to the jurisdiction of the court which technicality cannot render the subsequent proceedings void and deprive the posting would, of course, only be feasible if the court allowing it would State of its right to convict the guilty when all the facts on record point to have first acquired lawful jurisdiction over person at the time. the culpability of accused." Corollarily, the constitutional right of a person to travel may be restricted In Callanta vs. Villanueva 7 the Court had occasion to state: not only because he may be facing criminal charges but also as being the "With the express admission by petitioner that she had posted the required consequence of the nature and function of a bail. The condition imposed bail to obtain her provisional liberty, it becomes futile to assail the validity upon him to make himself available at all times whenever the court so of the issuance of the warrants of arrest. This excerpt from the opinion of requires his presence operates as a valid restriction on his right to travel. 10 Justice Sanchez in Zacarias vs. Cruz [30 SCRA 728] finds pertinence: Nevertheless, I join the majority of my colleagues in directing the 'Posting of a bail bond constitutes waiver of any irregularity attending the temporary lifting for the reasons advanced, which I find to be reasonable arrest of a person, estops him from discussing the validity of his arrest. In and justified, of the ban on travel of petitioner. the recent case of Luna vs. Plaza . . ., our ruling is that where petitioner has filed an application for bail and waived the preliminary investigation WHEREFORE, I vote to deny the petition and to order the lifting of the ban proper, 'he waived his objection to whatever defect, if any, in the on petitioner to travel for the period and under the conditions expressed in preliminary examination conducted . . . prior to the issuance of the warrant the ponencia. of arrest.' [26 SCRA 310] As a matter of fact, such a doctrine goes back to People vs. Olandag [92 Phil. 286], the opinion being rendered by former PANGANIBAN, J ., concurring: Chief Justice Paras. After Zacarias, mention may be made of three other I concur with the well-written ponencia of Mr. Justice Leonardo A. decisions, Bermejo vs. Barrios [31 SCRA 764]; People vs. La Caste [37 Quisumbing insofar as it declares null and void the Sandiganbayan's SCRA 767], and Manzano vs. Villa [46 SCRA 711]. The latest case in point warrant of arrest against Petitioner Cojuangco, but beg to disagree with the is People vs. Obngayan [55 SCRA 465] where this Court, through Justice majority view that despite the nullity of the arrest order, the graft court still Antonio, after referring to Luna vs. Plaza, again reiterated the ruling 'that acquired jurisdiction over petitioner. I respectfully submit that all where the accused has filed bail and waived the preliminary investigation proceedings and orders issued by the Sandiganbayan, especially its proper, he has waived whatever defect, if any, in the preliminary Resolution dated February 20, 1995, barring petitioner from leaving the examination conducted prior to the issuance of the warrant of arrest [Ibid., country without its prior approval, are likewise void for want of jurisdiction. 471]." Hence, the case should be remanded to the Sandiganbayan for a proper determination of whether a warrant of arrest could be issued pursuant to the In People vs. Nazareno, 8 reiterated in People vs. Timon, 9 the Court again Constitution and upon satisfaction of the requisites therefor as laid down in declared: Ho v. People. ". . . [The accused] waived objections based on the alleged irregularity of their arrest, considering that they pleaded not guilty to the charges against Nullity of the Warrant of Arrest them and participated in the trial. Any defect in their arrest must be deemed With an analysis of case law as backdrop, the Court en banc indeed cured when they voluntarily submitted to the jurisdiction of the court. For categorically declared in Ho that a judge cannot issue a warrant of arrest the legality of an arrest affects only the jurisdiction of the court over the with only the prosecutor's findings and recommendation as bases for person of the accused. Consequently, if objections based on this ground are determining probable cause. No less than the Constitution mandates in no waived, the fact that the arrest was illegal is not a sufficient cause for setting uncertain terms that "no . . . warrant of arrest shall issue except upon probable cause to be determined personally by the judge after examination When petitioner posted his bail bond, he expressly manifested at the same under oath or affirmation of the complainant and the witnesses he may time that such was "without prejudice" to his Opposition. Subsequent produce . . ." This clause unequivocally means that the judge must make his thereto, he also filed a Memorandum in Amplification of said Opposition. own determination — independent of that of the prosecution — of whether When the graft court refused to recall the warrant, petitioner moved for a there is probable cause to issue a warrant of arrest, based on the reconsideration. And following the filing by the Office of the Ombudsman, complainant's and his witnesses' accounts, if any. after reinvestigation, of a manifestation that there was no probable cause to charge petitioner, he moved for the dismissal of the case on the ground that In the instant case, it is undisputed that Respondent Sandiganbayan had "with the reversal of the earlier findings of the Ombudsman of probable considered only two documents in determining whether an order of arrest cause, there was therefore nothing on record before the respondent should be issued against the petitioner. These documents were (a) the June Sandiganbayan which would warrant the issuance of a warrant of arrest and 2, 1992 Resolution of the panel of investigators of the Office of the the assumption of jurisdiction over the instant case." Petitioner's actions Ombudsman, recommending the filing of an information and (b) the June more than conveyed his persistent objection to his arrest and, consequently, 16, 1995 Memorandum of the Office of the Special Prosecutor, finding that to the court's authority over his person. no prejudicial question existed for the suspension of the criminal case. Furthermore, when he was arraigned, it was solely for the purpose of Pursuant to our ruling in Ho, these documents do not suffice as basis for the accommodating his request to travel, in view of the Sandiganbayan order judge or court to make a personal and independent determination of the barring him from leaving the country without its prior approval. His existence of probable cause. Supporting evidence other than the report and "conditional arraignment," in the words of the Sandiganbayan itself, was recommendation of the investigators and the special prosecutor should have "subject to the condition that if petitioner is exonerated at the preliminary been examined by the respondent court. In view of this lapse, the warrant investigation, the arraignment is set aside." Moreover, it was "being issued for the arrest of Petitioner Cojuangco is null and void. undertaken solely to accommodate the accused in his request to travel Sandiganbayan Without Jurisdiction over Petitioner pending determination of probable cause against him at reinvestigation."

As consequence of the nullity of the warrant of arrest, the Sandiganbayan Clearly, therefore, in posting for bail and seeking permission to travel did not acquire jurisdiction over the petitioner. abroad, the petitioner merely made special appearances in order to obtain immediate urgent reliefs, without necessarily waiving the graft court's want The posting of a bail bond by the petitioner despite the nullity or irregularity of jurisdiction. 6 He merely wanted to avoid incarceration, as he hardly had of the issuance of the warrant for his arrest should not be equated with any choice but to secure the court's consent whenever he left the country to "voluntary appearance" as to cloak the respondent court with jurisdiction attend to his personal and business concerns. Otherwise, petitioner would over his person. Truly, his "appearance" in court was not "voluntary." It have been effectively rendered immobile and worthless until the should be noted that immediately upon learning of the filing of the Sandiganbayan chose to resolve his case. And, as borne by the records, for Information and the issuance of the warrant, petitioner filed an "Opposition three years said court practically sat on his case (reconsideration of the to [the] Issuance of [a] Warrant of Arrest with Motion for Leave to File denial of his Opposition). Under the circumstances, petitioner's actions Motion for Reconsideration of [the] Ombudsman['s] Resolutions." Said should not be construed as a waiver of his right to object to the nullity of his Opposition was based on the inadequacy of the respondent court's basis for arrest. With all due respect, I submit that to rule otherwise as the majority determining probable cause. It was essentially an express and continuing did is most unfair and unjust, because an accused could be indefinitely objection to the court's jurisdiction over his person. detained as a result of the trial court's expedient of merely sitting on the objection to the issuance of the warrant.

I submit that the case should be remanded to the Sandiganbayan. The respondent court may require the prosecutor to submit evidence on file sufficient for the former to determine probable cause for the issuance of an arrest warrant; or the latter himself may voluntarily submit such evidence gathered during his investigation.

This procedure may appear cumbersome and unduly harsh on the prosecution, but the Constitution commands it. The Court, as the guardian of the basic law, is thus left with no choice but to enforce the provision.

WHEREFORE, I vote to GRANT the petition to DECLARE the Sandiganbayan to be without jurisdiction over Petitioner Cojuangco in Criminal Case No. 22018 and to REMAND the case to said court for a proper determination of whether a warrant of arrest should be issued, pursuant to the Constitution and the requisites laid down in Ho v. People. DIOSDADO JOSE ALLADO and ROBERTO L. MENDOZA, their findings merely on their personal opinion and reasonable belief, yet, petitioners, this permissiveness should not be interpreted as giving them arbitrary vs. HON. ROBERTO C. DIOKNO, Presiding Judge, Br. 62, Regional powers and letting them loose in the determination of the existence of Trial Court, Makati, Metro Manila, and PRESIDENTIAL ANTI-CRIME probable cause, a delicate legal question which can result in the harassment COMMISSION, respondents. and deprivation of liberty of the person sought to be charged or arrested. . . . Good faith is not enough. If subjective good faith alone were the test, the G.R. No. 113630 constitutional protection would be demeaned and the people would be May 5, 1994 "secure in their persons, houses, papers and effects" only in the fallible discretion of the judge. On the contrary, the probable cause test is an SYLLABUS objective one, for in order that there be probable cause the facts and 1. POLITICAL LAW; CONSTITUTION; WARRANT OF circumstances must be such as would warrant a belief by a reasonably ARREST; REQUISITES FOR ISSUANCE. — Section 2, Art. III of the discreet and prudent man that the accused is guilty of the crime which has 1987 Constitution, lays down the requirements for the issuance of a warrant just been committed. of arrest, i.e., a warrant of arrest shall issue only upon probable cause to be determined personally by the judge after examination under oath or 4. ID.; ID.; ID.; ID.; ID.; DUTIES OF A TRIAL JUDGE affirmation of the complainant and the witnesses he may produce. BEFORE ISSUING A WARRANT OF ARREST; NOT COMPLIED WITH IN CASE AT BAR. — Before issuing a warrant of arrest, the judge 2. ID.; ID.; ID.; PROBABLE CAUSE DEFINED. — As early as must satisfy himself that based on the evidence submitted there is sufficient 1915, in Buchanan v. Viuda de Esteban, (32 Phil. 363 [1915]) this Court proof that a crime has been committed and that the person to be arrested is speaking through Associate Justice Sherman Moreland defined probable probably guilty thereof. In the Order of respondent judge dated 11 February cause as "the existence of such facts and circumstances as would excite the 1994, it is expressly stated that probable cause exists; and therefore, a belief, in a reasonable mind, acting on the facts within the knowledge of the warrant of arrest should be issued." However, we are unable to see how prosecutor, that the person charged was guilty of the crime for which he respondent judge arrived at such ruling. We have painstakingly examined was prosecuted." Probable cause for an arrest or for the issuance of a the records and we cannot find any support for his conclusion. On the warrant of arrest has been defined as such facts and circumstances which contrary, we discern a number of reasons why we consider the evidence would lead a reasonably discreet and prudent man to believe that an offense submitted to be insufficient for a finding of probable cause against has been committed by the person sought to be arrested. And as a protection petitioners. . . . Verily, respondent judge committed grave abuse of against false prosecution and arrest, it is the knowledge of facts, actual or discretion in issuing the warrant for the arrest of petitioners it appearing that apparent, strong enough to justify a reasonable man in the belief that he has he did not personally examine the evidence nor did he call for the lawful grounds for arresting the accused. complainant and his witnesses in the face of their incredible accounts. Instead, he merely relied on the certification of the prosecutors that 3. ID.; ID.; ID.; ID.; STANDARD FOR DETERMINATION OF probable cause existed. For, otherwise, he would have found out that the ITS EXISTENCE. — Pilapil v. Sandiganbayan (221 SCRA 349 [1993]) evidence thus far presented was utterly insufficient to warrant the arrest of sets a standard for determining the existence of probable cause. While it petitioners. In this regard, we restate the procedure we outlined in various appears in that case that we have granted the prosecutor and the trial judge cases we have already decided, in Soliven v. Makasiar, (G.R. Nos. 82585, seemingly unlimited latitude in determining the existence or absence of 82827 and 83979, 14 November 1988, 167 SCRA 393); in People v. Inting, probable cause by affirming the long-standing procedure that they can base (G.R. No. 88919, 25 July 1990, 87 SCRA 788); and in Lim v. Felix (G.R. Nos. 92466-69, 19 February 1991, 187 SCRA 292). . . . Hence, if upon the burned to ashes in an open field with the use merely of tires and gasoline is filing of the information in court the trial judge, after reviewing the a tale too tall to gulp. information and the documents attached thereto, finds that no probable cause exists must either call for the complainant and the witnesses 7. ID.; ID.; ID.; ID.; ID.; EVEN LAWYER DOUBTED themselves or simply dismiss the case. There is no reason to hold the CLIENT'S DEATH IN CASE AT BAR. — Strangely, if not awkwardly, accused for trial and further expose him to an open and public accusation of after Van Twest's reported abduction on 16 June 1992 which culminated in the crime when no probable cause exists. his decimation by cremation, his counsel continued to represent him before judicial and quasi-judicial proceedings. Thus on 31 July 1992, his counsel 5. REMEDIAL LAW; EVIDENCE; WEIGHT AND filed in his behalf a petition for review before this Court, docketed as G.R. SUFFICIENCY; EXTRAJUDICIAL CONFESSION, No. 106253, and on 18 March 1993, a memorandum before the Securities UNCORROBORATED BY CORPUS DELICTI; CASE AT BAR. — and Exchange Commission in SEC Case No. 3896. On 26 November 1993, The Presidential Anti-Crime Commission relies heavily on the sworn during the preliminary investigation conducted by the panel of prosecutors, statement of Security Guard Umbal who supposedly confessed his counsel again manifested that "even then and even as of this time, I stated in participation in the alleged kidnapping and murder of Van Twest. For one, my counter-affidavit that until the matter of death is to be established in the there is serious doubt on Van Twest's reported death since the corpus delicti proper proceedings, I shall continue to pursue my duties and responsibilities has not been established, nor have his remains recovered. . . . In this regard, as counsel for Mr. Van Twest." Hence, even Asst. Solicitor General we are reminded of the leading case of U.S. v. Samarin (1 Phil. 239 [1902]) Estoesta believes that counsel of Van Twest doubted the latter's death. decided ninety-two years ago where this Court ruled that when the supposed Obviously, counsel himself does not believe that his client is in fact already victim is wholly unknown, his body not found, and there is but one witness dead otherwise his obligation to his client would have ceased except to who testifies to the killing, the corpus delicti is not sufficiently proved. comply with his duty "to inform the court promptly of such death . . . and to give the name and residence of his executor, administrator, guardian or 6. ID.; ID.; ID.; ID.; DESTRUCTION OF HUMAN BODY other legal representative," which he did not. HIGHLY IMPROBABLE IN CASE AT BAR. — Umbal's claim that Van Twest was completely burned into ashes with the use of gasoline and 8. ID.; ID.; ID.; ID.; ID.; ID.; THEORY BEHIND SUPPOSED rubber tires from around ten o'clock in the evening to six o'clock the next DEATH CANNOT BE DISCOUNTED. — Under the circumstances, we morning is highly improbable, if not ridiculous. A human body cannot be cannot discount petitioners' theory that the supposed death of Van Twest pulverized into ashes by simply burning it with the use of gasoline and who is reportedly an international fugitive from justice, a fact substantiated rubber tires in an open field. Even crematoria use entirely closed by petitioners and never refuted by PACC, is a likely story to stop the incinerators where the corpse is subjected to intense heat. Thereafter, the international manhunt for his arrest. remains undergo a process where the bones are completely ground to dust. In the case of Van Twest, there is not even any insinuation that earnest 9. ID.; ID.; ID.; ID.; SUFFERS FROM MATERIAL efforts were exerted to recover traces of his remains from the scene of the INCONSISTENCIES. — The extrajudicial statement of Umbal suffers alleged cremation. Could it be that the government investigators did go to from material inconsistencies where in his sworn statement, he said that he the place of cremation but could not find any? Or could it be that they did together with his cohorts were met by petitioners in Silahis Hotel where not go at all because they knew that there would not be any as no burning they hatched the plan to abduct Van Twest. However, during the ever took place? To allege then that the body of Van Twest was completely preliminary investigation, he stated that he was not part of the actual meeting as he only waited outside in the car for his companions who supposedly discussed the plan inside Silahis Hotel. Umbal also said that where he was a security guard. . . . More importantly, the PACC operatives petitioners arrived with Bato and conducted a mock interrogation of Van who applied for a warrant to search the dwellings of Santiago never Twest who thereafter signed various documents upon being compelled to do implicated petitioners. In fact they claimed that according to Umbal, it was so. During the clarificatory questioning, however, Umbal changed his story Santiago, and not petitioners, who masterminded the whole affair. and said that he was asked to go outside of the "safe house" at the time Van Twest was interrogated and thus did not see if Van Twest indeed signed 12. ID.; ID.; ID.; WARRANT OF ARREST; LACK OF certain documents. Why Umbal had to be sent out of the "safe house," no PROBABLE CAUSE NOT JUSTIFIED BY RIGHT OF STATE TO explanation was offered. Did these documents really exist? Or could the PROSECUTE; CASE AT BAR. — The sovereign power has the inherent non-existence of these documents be the reason why PACC was not able to right to protect itself and its people from vicious acts which endanger the comply with the order of the prosecutors to produce them during the proper administration of justice; hence, the State has every right to preliminary investigation? And then, what happened to the P2.5M that was prosecute and punish violators of the law. This is essential for its self- supposedly offered by petitioners in exchange for the abduction of Van preservation, nay, its very existence. But this does not confer a license for Twest? These and more remain unanswered. pointless assaults on its citizens. The right of the State to prosecute is not a carte blanche for government agents to defy and disregard the rights of its 10. ID.; ID.; ID.; COUNTER-AFFIDAVIT AS BASIS OF FILING citizens under the Constitution. Confinement, regardless of duration, is too CHARGES, HARDLY OF ANY PROBATIVE VALUE; CASE AT high a price to pay for reckless and impulsive prosecution. . . . While there BAR. — The alleged counter-affidavit of SPO2 Bato, which the panel of may be bits of evidence against petitioners' co-accused, i.e., referring to prosecutors also considered in filing the charges against petitioners, can those seized from the dwellings of Santiago, these do not in the least prove hardly be credited as its probative value has tremendously waned. The petitioners' complicity in the crime charged. Based on the evidence thus far records show that the alleged counter-affidavit, which is self-incriminating, submitted there is nothing indeed, much less is there probable cause, to was filed after the panel had considered the case submitted for resolution. incriminate petitioners. For them to stand trial and be deprived in the And before petitioners could refute this counter-affidavit, Bato moved to meantime of their liberty, however brief, the law appropriately exacts much suppress the same on the ground that it was extracted through duress and more to sustain a warrant for their arrest — facts and circumstances strong intimidation. enough in themselves to support the belief that they are guilty of a crime that in fact happened. Quite obviously, this has not been met. State's 11. POLITICAL LAW; CONSTITUTION; BILL OF RIGHTS; inherent right to prosecute, are insufficient to justify sending the petitioners SEARCH WARRANT; ISSUED UNDER DUBIOUS to jail. CIRCUMSTANCES IN CASE AT BAR. — Most perplexing however is that while the whole investigation was supposedly triggered off by Umbal's 13. ID.; ID.; ID.; PRESUMPTION OF INNOCENCE; UNDUE confession of 16 September 1993, the application of the PACC operatives HASTE IN FILING THE INFORMATION, A VIOLATION OF; for a search warrant to be served in the two (2) dwellings of Santiago was CASE AT BAR. — In the case at bench, the undue haste in the filing of the filed and granted by the Regional Trial Court of Manila on 15 September information and the inordinate interest of the government cannot be 1993, a day before Umbal executed his sworn statement. In support of the ignored. From the gathering of evidence until the termination of the application, the PACC agents claimed that Umbal had been in their custody preliminary investigation, it appears that the state prosecutors were overly since 10 September 1993. Significantly, although he was said to be already eager to file the case and secure a warrant for the arrest of the accused under their custody, Umbal claims he was never interrogated until 16 without bail and their consequent detention. Umbal's sworn statement is September 1993 and only at the security barracks of Valle Verde V, Pasig, laden with inconsistencies and improbabilities. Bato's counter-affidavit was considered without giving petitioners the opportunity to refute the same. 16. ID.; ID.; ID.; ID.; ID.; LAW ENFORCERS CAUTIONED TO The PACC which gathered the evidence appears to have had a hand in the ACT WITH CIRCUMSPECTION. — Let this then be a constant determination of probable cause in the preliminary inquiry as the undated reminder to judges, prosecutors and other government agents tasked with resolution of the panel not only bears the letterhead of PACC but was also the enforcement of the law that in the performance of their duties they must recommended for approval by the head of the PACC Task Force. Then act with circumspection, lest their thoughtless ways, methods and practices petitioners were given the runaround in securing a copy of the resolution cause a disservice to their office and maim their countrymen they are sworn and the information against them. to serve and protect. We thus caution government agents, particularly the law enforcers, to be more prudent in the prosecution of cases and not to be 14. ID.; ID.; ID.; UNCHECKED GOVERNMENTAL POWER oblivious of human rights protected by the fundamental law. While we BECOMES TYRANNICAL; CASE AT BAR. — The facts of this case greatly applaud their determined efforts to weed society of felons, let not are fatefully distressing as they showcase the seeming immensity of their impetuous eagerness violate constitutional precepts which government power which when unchecked becomes tyrannical and circumscribe the structure of a civilized community. oppressive. Hence the Constitution, particularly the Bill of Rights, defines the limits beyond which lie unsanctioned state actions. But on occasion, for D E C I S I O N one reason or another, the State transcends this parameter. In consequence, BELLOSILLO, J p: individual liberty unnecessarily suffers. The case before us, if uncurbed, can be illustrative of a dismal trend. Needless injury of the sort inflicted by On balance at the fulcrum once again are the intrinsic right of the State to government agents is not reflective of responsible government. Judges and prosecute perceived transgressors of the law, which can be regulated, and law enforcers are not, by reason of their high and prestigious office, the innate value of human liberty, which can hardly be weighed. relieved of the common obligation to avoid deliberately inflicting unnecessary injury. Some twelve years ago we are confronted with a similar problem when former Senator Jovito R. Salonga invoked before this Court his "right to life 15. ID.; ID.; ID.; PURPOSE THEREOF; PREVAILS OVER THE and liberty guaranteed by the due process clause, alleging that no prima RIGHT OF STATE TO PROSECUTE. — The purpose of the Bill of facie case has been established to warrant the filing of an information for Rights is to protect the people against arbitrary and discriminatory use of subversion against him." We resolved the issue then and sustained him. He political power. This bundle of rights guarantees the preservation of our is now back before us, this time as counsel pleading the cause of petitioners natural rights which include personal liberty and security against invasion herein who, he claims, are in a situation far worse than his predicament by the government or any of its branches or instrumentalities. Certainly, in twelve (12) years ago. He postulates that no probable cause likewise exists the hierarchy of rights, the Bill of Rights takes precedence over the right of in this case, and what is worse is that no bail is recommended. the State to prosecute, and when weighed against each other, the scales of justice tilt towards the former. Thus, relief may be availed of to stop the This petition gives us an opportunity to revisit the concept and implication purported enforcement of criminal law where it is necessary to provide for of probable cause, the existence of which is necessary for the prosecutor to an orderly administration of justice, to prevent the use of the strong arm of have an accused held for trial and for a trial judge to issue a warrant for his the law in an oppressive and vindictive manner, and to afford adequate arrest. It is mandatory therefore that there be probable cause before an protection to constitutional rights. information is filed and a warrant of arrest issued. Unfortunately, however, at times a criminal case is filed, a warrant of arrest issued and a person consequently incarcerated on unsubstantiated allegations that only feign dwellings of Santiago, one located at No. 7 Sangley Street, and the other, probable cause. along Amalingan Street, both in Green Heights Subdivision, Parañaque. The raiders recovered a blue Nissan Pathfinder and assorted firearms and Petitioners Diosdado Jose Allado and Roberto L. Mendoza, alumni of the ammunition and placed Santiago and his trusted aide, Efren Madolid, under College of Law, University of the Philippines, are partners of the Law Firm arrest. Also arrested later that day were Antonino and Bato who where of Salonga, Hernandez and Allado. In the practice of their profession, and found to have in their possession several firearms and ammunition and Van on the basis of an alleged extrajudicial confession of a security guard, they Twest's Cartier sunglasses. have been accused of the heinous crime of kidnapping with murder by the Presidential Anti-Crime Commission (PACC) and ordered arrested without After evaluating the pieces of evidence gathered by PACC operatives, Sr. bail by respondent judge. Supt. Panfilo Lacson, Chief of PACC Task Force Habagat, referred the case to the Department of Justice for the institution of criminal proceedings The focal source of the information against petitioners is the sworn against AFPCIG Agent Roberto Santiago, SPO1 Sergio Antonino, SPO2 statement dated 16 September 1993 of Security Guard Escolastico Umbal, a Roger Bato, Ex-policeman Rolando Gamatero, Efren Madolid, and dischargee of the Philippine Constabulary, implicating them as the brains petitioners herein, Atty. Diosdado Jose Allado and Atty. Roberto L. behind the alleged kidnapping and slaying of one Eugen Alexander Van Mendoza, for illegal possession of firearms and ammunition, carnapping, Twest, a German national. In that extrajudicial confession, Umbal claimed kidnapping for ransom with murder, and usurpation of authority. In his that he and his companions were met by petitioners at Silahis Hotel and in letter to the State Prosecutor dated 17 September 1993, Sr. Supt. Lacson exchange for P2.5M the former undertook to apprehend Van Twest who charged that — Atty. Roberto L. Mendoza and Atty. Allado of Salonga, allegedly had an international warrant of arrest against him. Thus, on 16 Hernandez and Allado Law Offices . . . planned and conspired with other June 1992, after placing him under surveillance for nearly a month, Umbal, suspects to abduct and kill the German national Alexander Van Twest in Ex-policeman Rolando Gamatero, AFPCIG Agent Roberto Santiago and order to eliminate him after forcing the victim to sign several documents SPO2 Sergio Antonino abducted Van Twest. They blocked his blue Nissan transferring ownership of several properties amounting to several million Pathfinder under the Alabang overpass and forced him into their car. They pesos and caused the withdrawal of P5M deposit from the victim's bank brought him to a "safe house" just behind the New Bilibid Prisons. Umbal account. was tasked to watch over their quarry. After four (4) days, Gamatero, Santiago and Antonino returned to the "safe house" together with petitioners Thereafter, Senior State Prosecutor Ferdinand R. Abesamis issued a and SPO2 Roger Bato, known to Umbal also as "Batok." SPO2 Bato faked subpoena to petitioners informing them that a complaint was filed against the interrogation of Van Twest, pretending it was official, and then made them by PACC TF-Habagat, directing them to appear on 30 September him sign certain documents. The following day, Gamatero shot Van Twest 1993 at the Multi-Purpose Hall of the Department of Justice and to submit in the chest with a baby armalite, after which Antonio stabbed him their counter-affidavits. Attached to the subpoena were copies of the repeatedly, cut off his private part, and later burned his cadaver into fine affidavits executed by Umbal and members of the team who raided the two ashes using gasoline and rubber tires. Umbal could not recall the exact date (2) dwellings of Santiago. when the incident happened, but he was certain it was about a year ago. Not satisfied merely with the affidavits attached to the subpoena, petitioner A day after Umbal executed his extrajudicial confession, the operatives of Mendoza moved for the production of other documents for examination and the PACC, armed with a search warrant issued by Judge Roberto A. Barrios copying to enable him to fully prepare for his defense and to submit an of the Regional Trial Court of Manila, Br. 11, separately raided the two (2) intelligible counter-affidavit. Specifically, petitioner Mendoza was interested in (a) the "several documents transferring ownership of several abduction and slaying of Van Twest and implicating petitioners Allado and properties amounting to several million pesos and the withdrawal of P5M Mendoza. Sometime in January 1994, however, before petitioners could deposits from the victim's bank account," as stated in the complaint; (b) the refute Bato's counter-affidavit, he moved to suppress it on the ground that it complete records of the PACC's investigation, including investigations on was extracted through intimidation and duress. other suspects and their disposition, PACC's Order of Battle for 1992 and early 1993; and, (c) such other written statements issued in the above- On 3 February 1994, with the new panel failing to act on the twin motions entitled case, and all other documents intended to be used in this case. of SPO2 Bato, petitioners heard over the radio that the panel had issued a Petitioners likewise sought the inhibition of the members of the panel of resolution finding a prima facie case against them and that an information prosecutors, which was created to conduct the preliminary investigation, on had already been filed in court. Upon verification with the Department of the ground that they were members of the legal staff assigned to PACC and Justice, however, petitioners were informed that the resolution was not yet thus could not act with impartiality. ready for release, but later that afternoon they were able to secure a copy of the information for kidnapping with murder against them and the 15-page In its Order of 11 October 1993, the new panel of prosecutors composed of undated resolution under the letterhead of PACC, signed by the panel of Senior State Prosecutor Bernelito R. Fernandez as Chairman, with Rogelio prosecutors, with the Head of the PACC Task Force recommending F. Vista and Purita M. Deynata as Members, confirmed that the motion for approval thereof. 13 That same day, the information was filed before the inhibition of the members of the old panel as well as the appeal to the Regional Trial Court of Makati and raffled off to Branch 62 presided by Secretary of Justice was resolved on 8 October 1993 resulting in the respondent Judge Roberto C. Diokno. creation of a new panel. Thereafter, the new panel granted the prayer of petitioner Mendoza for the production of additional documents used or On 4 February 1994, respondent judge, in response to petitioner's request, intended to be used against him. Meanwhile, Task Force Habagat, in gave them until 8 February 1994 to submit their opposition to the issuance compliance with the order, submitted only copies of the request for of a warrant of arrest against all the accused. On 7 February 1994, verification of the firearms seized from the accused, the result of the request petitioners complied with the order of respondent judge. The following day, for verification, and a Philippine Times Journal article on the case with a 8 February 1994, petitioner Allado filed an appeal with the Secretary of marginal note of President Fidel V. Ramos addressed to the Chief of the Justice seeking review and reversal of the undated resolution on the panel of Philippine National Police directing the submission of a report and prosecutors, which appeal was adopted by petitioner Mendoza. On 11 summary of actions taken thereon. February 1994, petitioner Allado moved to defer the proceedings before the trial court pending resolution of his appeal before the Secretary of Justice. Not having been provided with the requested documents, petitioners However, on even date, respondent judge issued the assailed warrant of nevertheless submitted their respective counter-affidavits denying the arrest against petitioners. Hence, on 15 February 1994, petitioners filed with accusations against them. us the instant petition for certiorari and prohibition with prayer for a temporary restraining order. After a preliminary hearing where clarificatory questions were additionally propounded, the case was deemed submitted for resolution. But before the On 16 February 1994, we required respondents to comment on the petition new panel could resolve the case, SPO2 Bato filed a manifestation stating and set the case for hearing on 28 February 1994. After the hearing, we that he was reconsidering the earlier waiver of his right to file counter- issued a temporary restraining order enjoining PACC from enforcing the affidavit, and "in the greater interest of truth, justice and fair play" moved warrant of arrest and respondent judge from conducting further proceedings for the admission of his counter-affidavit confessing participation in the on the case and, instead, to elevate the records to us. Meanwhile, on 27 February 1994, petitioners voluntarily surrendered at the Headquarters of against false prosecution and arrest, it is the knowledge of facts, actual or the Capital Command (CAPCOM), Philippine National Police (PNP), apparent, strong enough to justify a reasonable man in the belief that he has Camp Bagong Diwa, Bicutan, Metro Manila, and on 29 February 1994, they lawful grounds for arresting the accused. were released on the basis of our temporary restraining order. Pilapil v. Sandiganbayan sets a standard for determining the existence of Petitioners, in their 335-page petition, inclusive of annexes, principally probable cause. While it appears in that case that we have granted the contend that respondent judge acted with grave abuse of discretion and in prosecutor and the trial judge seemingly unlimited latitude in determining excess of jurisdiction in "whimsically holding that there is probable cause the existence or absence of probable cause by affirming the long-standing against petitioners without determining the admissibility of the evidence procedure that they can base their findings merely on their personal opinion against petitioners and without even stating the basis of his findings," and in and reasonable belief, yet, this permissiveness should not be interpreted as "relying on the Resolution of the Panel and their certification that probable giving them arbitrary powers and letting them loose in the determination of cause exists when the certification is flawed." 21 Petitioners maintain that the existence of probable cause, a delicate legal question which can result in the records of the preliminary investigation which respondent judge solely the harassment and deprivation of liberty of the person sought to be charged relied upon failed to establish probable cause against them to justify the or arrested. There we said — issuance of the warrant of arrest. Petitioners likewise assail the prosecutors' Probable cause is a reasonable ground of presumption that a matter is, or "clear sign of bias and impartiality (sic)." 22 may be, well founded, such a state of facts in the mind of the prosecutor as On the other hand, the Office of the Solicitor General argues that the would lead a person of ordinary caution and prudence to believe, or determination of probable cause is a function of the judge who is merely entertain an honest or strong suspicion, that a thing is so. The term does not required to personally appreciate certain facts to convince him that the mean "actual and positive cause" nor does it import absolute certainty. It is accused probably committed the crime charged. merely based on opinion and reasonable belief. Thus, a finding of probable cause does not require an inquiry into whether there is sufficient evidence to Section 2, Art. III, of the 1987 Constitution, lays down the requirements for procure a conviction. It is enough that it is believed that the act or omission the issuance of a warrant of arrest, i.e., a warrant of arrest shall issue only complained of constitutes the offense charged. Precisely, there is a trial for upon probable cause to be determined personally by the judge after the reception of evidence of the prosecution in support of the charge. examination under oath or affirmation of the complainant and the witnesses he may produce. Whether an act was done causing undue injury to the government and whether the same was done with manifest partiality or evident bad faith can As early as 1915, in Buchanan v. Viuda de Esteban, this Court speaking only be made out by proper and sufficient testimony. Necessarily, a through Associate Justice Sherman Moreland defined probable cause as "the conclusion can be arrived at when the case has already proceeded on existence of such facts and circumstances as would excite the belief, in a sufficient proof. reasonable mind, acting on the facts within the knowledge of the prosecutor, that the person charged was guilty of the crime for which he was Accordingly, before issuing a warrant of arrest, the judge must satisfy prosecuted." This definition is still relevant today as we continue to cite it in himself that based on the evidence submitted there is sufficient proof that a recent cases. Hence, probable cause for an arrest or for the issuance of a crime has been committed and that the person to be arrested is probably warrant of arrest has been defined as such facts and circumstances which guilty thereof. In the Order of respondent judge dated 11 February 1994, it would lead a reasonably discreet and prudent man to believe that an offense is expressly stated that "[t]his court after careful evaluation of the evidence has been committed by the person sought to be arrested. And as a protection on record, believes and rules that probable cause exists; and therefore, a warrant of arrest should be issued." However, we are unable to see how conducted by the panel of prosecutors, counsel again manifested that "even respondent judge arrived at such ruling. We have painstakingly examined then and even as of this time, I stated in my counter-affidavit that until the the records and we cannot find any support for his conclusion. On the matter of death is to be established in the proper proceedings, I shall contrary, we discern a number of reasons why we consider the evidence continue to pursue my duties and responsibilities as counsel for Mr. Van submitted to be insufficient for a finding of probable cause against Twest." Hence, even Asst. Solicitor General Estoesta believes that counsel petitioners. of Van Twest doubted the later's death. Obviously, counsel himself does not believe that his client is in fact already dead otherwise his obligation to his The Presidential Anti-Crime Commission relies heavily on the sworn client would have ceased except to comply with his duty "to inform the statement of Security Guard Umbal who supposedly confessed his court promptly of such death . . . and to give the name and residence of his participation in the alleged kidnapping and murder of Van Twest. For one, executor, administrator, guardian or other legal representative," which he there is serious doubt on Van Twest's reported death since the corpus delicti did not. has not been established, nor have his remains been recovered. Umbal claims that Van Twest was completely burned into ashes with the use of Under the circumstances, we cannot discount petitioners' theory that the gasoline and rubber tires from around ten o'clock in the evening to six supposed death of Van Twest who is reportedly an international fugitive o'clock the next morning. This is highly improbable, if not ridiculous. A from justice, a fact substantiated by petitioners and never refuted by PACC, human body cannot be pulverized into ashes by simply burning it with the is a likely story to stop the international manhunt for his arrest. In this use of gasoline and rubber tires in an open field. Even crematoria use regard, we are reminded of the leading case of U.S. v. Samarin decided entirely closed incinerators where the corpse is subjected to intense heat. ninety-two years ago where this Court ruled that when the supposed victim Thereafter, the remains undergo a process where the bones are completely is wholly unknown, his body not found, and there is but one witness who ground to dust. testifies to the killing, the corpus delicti is not sufficiently proved.

In the case of Van Twest, there is not even any insinuation that earnest Then, the extrajudicial statement of Umbal suffers from material efforts were exerted to recover traces of his remains from the scene of the inconsistencies. In his sworn statement, he said that he together with his alleged cremation. Could it be that the government investigators did go to cohorts was met by petitioners in Silahis Hotel where they hatched the plan the place of cremation but could not find any? Or could it be that they did to abduct Van Twest. However, during the preliminary investigation, he not go at all because they knew that there would not be any as no burning stated that he was not part of the actual meeting as he only waited outside in ever took place? To allege then that the body of Van Twest was completely the car for his companions who supposedly discussed the plan inside Silahis burned to ashes in an open field with the use merely of tires and gasoline is Hotel. a tale too tall to gulp. Umbal also said that petitioners arrived with Bato and conducted a mock Strangely, if not awkwardly, after Van Twest's reported abduction on 16 interrogation of Van Twest who thereafter signed various documents upon June 1992 which culminated in his decimation by cremation, his counsel being compelled to do so. During the clarificatory questioning, however, continued to represent him before judicial and quasi-judicial proceedings. Umbal changed his story and said that he was asked to go outside of the Thus on 31 July 1992, his counsel filed in his behalf a petition for review "safe house" at the time Van Twest was interrogated and thus did not see if before this Court, docketed as G.R. No. 106253, and on 18 March 1993, a Van Twest indeed signed certain documents. Why Umbal had to be sent out memorandum before the Securities and Exchange Commission in SEC Case of the "safe house," no explanation was offered. Did these documents really No. 3896. On 26 November 1993, during the preliminary investigation exist? Or could the non-existence of these documents be the reason why PACC was not able to comply with the order of his prosecutors to produce the law appropriately exacts much more to sustain a warrant for their arrest them during the preliminary investigation? And then, what happened to the — facts and circumstances strong enough in themselves to support the P2.5M that was supposedly offered by petitioners in exchange for the belief that they are guilty of a crime that in fact happened. Quite obviously, abduction of Van Twest? These and more remain unanswered. this has not been met.

Most perplexing however is that while the whole investigation was Verily, respondent judge committed grave abuse of discretion in issuing the supposedly triggered off by Umbal's confession of 16 September 1993, the warrant for the arrest of petitioners it appearing that he did not personally application of the PACC operatives for a search warrant to be served in the examine the evidence nor did he call for the complainant and his witnesses two (2) dwellings of Santiago was filed and granted by the Regional Trial in the face of their incredible accounts. Instead, he merely relied on the Court of Manila on 15 September 1993, a day before Umbal executed his certification of the prosecutors that probable cause existed. For, otherwise, sworn statement. In support of the application, the PACC agents claimed he would have found out that the evidence thus far presented was utterly that Umbal had been in their custody since 10 September 1993. insufficient to warrant the arrest of petitioners. In this regard, we restate the Significantly, although he was said to be already under their custody, procedure we outlined in various cases we have already decided. Umbal claims he was never interrogated until 16 September 1993 and only at the security barracks of Valle Verde V, Pasig, where he was a security In Soliven v. Makasiar, we said that the judge (a) shall personally evaluate guard. the report and the supporting documents submitted by the fiscal regarding the existence of probable cause and, on the basis thereof, issue a warrant of The alleged counter-affidavit of SPO2 Bato, which the panel of prosecutors arrest; or, (b) if on the basis thereof he finds no probable cause, may also considered in filing the charges against petitioners, can hardly be disregard the fiscal's report and require the submission of supporting credited as its probative value has tremendously waned. The records show affidavits of witnesses to aid him in arriving at a conclusion on the that the alleged counter-affidavit, which is self-incriminating, was filed after existence of probable cause. the panel had considered the case submitted for resolution. And before petitioners could refute this counter-affidavit, Bato moved to suppress the In People v. Inting, we emphasized the important features of the same on the ground that it was extracted through duress and intimidation. constitutional mandate: (a) The determination of probable cause is a function of the judge; it is not for the provincial fiscal or prosecutor to For sure, the credibility of Umbal is badly battered. Certainly, his bare ascertain. Only the judge and the judge alone makes this determination; (b) allegations, even if the State invokes its inherent right to prosecute, are The preliminary inquiry made by a prosecutor does not bind the judge. It insufficient to justify sending two lawyers to jail, or anybody for that merely assists him in making the determination of probable cause. The matter. More importantly, the PACC operatives who applied for a warrant judge does not have to follow what the prosecutor presents to him. By itself, to search the dwellings of Santiago never implicated petitioners. In fact they the prosecutor's certification of probable cause is ineffectual. It is the report, claimed that according to Umbal, it was Santiago, and not petitioners, who the affidavits, the transcript of stenographic notes (if any), and all other masterminded the whole affair. While there may be bits of evidence against supporting documents behind the prosecutor's certification which are petitioners' co-accused, i.e., referring to those seized from the dwellings of material in assisting the judge in his determination of probable cause; and, Santiago, these do not in the least prove petitioners' complicity in the crime (c) Judges and prosecutors alike should distinguish the preliminary inquiry charged. Based on the evidence thus far submitted there is nothing indeed, which determines probable cause for the issuance of a warrant of arrest much less is there probable cause, to incriminate petitioners. For them to from the preliminary investigation proper which ascertains whether the stand trial and be deprived in the meantime of their liberty, however brief, offender should be held for trial or released. Even if the two inquiries be conducted in the course of one and the same proceeding, there should be no filing of the information in court the trial judge, after reviewing the confusion about their objectives. The determination of probable cause for information and the documents attached thereto, finds that no probable the warrant is made by the judge. The preliminary investigation proper — cause exists must either call for the complainant and the witnesses whether or not there is reasonable ground to believe that the accused is themselves or simply dismiss the case. There is no reason to hold the guilty of the offense charged and therefore, whether or not he should be accused for trial and further expose him to an open and public accusation of subjected to the expense, rigors and embarrassment of trial — is a function the crime when no probable cause exists. of the prosecutor. But then, it appears in the instant case that the prosecutors have similarly In Lim v. Felix, where we reiterated Soliven v. Makasiar and People v. misappropriated, if not abused, their discretion. If they really believed that Inting, we said — petitioners were probably guilty, they should have armed themselves with [T]he Judge does not have to personally examine the complainant and his facts and circumstances in support of that belief; for mere belief is not witnesses. The Prosecutor can perform the same functions as a enough. They should have presented sufficient and credible evidence to commissioner for the taking of the evidence. However, there should be a demonstrate the existence of probable cause. For the prosecuting officer "is report and necessary documents supporting the Fiscal's bare certification. the representative not of an ordinary party to a controversy, but of a All these should be before the Judge. sovereignty whose obligation to govern impartially is as compelling as its obligation to govern all; and whose interest, therefore, in a criminal The extent of the Judge's personal examination of the report and its annexes prosecution is not that it shall win a case, but that justice shall be done. As depends on the circumstances of each case. We cannot determine such, he is in a peculiar and very definite sense the servant of the law, the beforehand how cursory or exhaustive the Judge's examination should be. twofold aim of which is that guilt shall not escape or innocence suffer. He The Judge has to exercise sound discretion for, after all, the personal may prosecute with earnestness and vigor — indeed, he should do so. But, determination is vested in the Judge by the Constitution. It can be as brief or while he may strike hard blows, he is not at liberty to strike foul ones. It is as detailed as the circumstances of each case require. To be sure, the judge as much his duty to refrain from improper methods calculated to produce a must go beyond the Prosecutor's certification and investigation report wrongful conviction as it is to use every legitimate means to bring about a whenever necessary. He should call for the complainant and witnesses just one." themselves to answer the court's probing questions when the circumstances of the case so require. In the case at bench, the undue haste in the filing of the information and the inordinate interest of the government cannot be ignored. From the gathering Clearly, probable cause may not be established simply by showing that a of evidence until the termination of the preliminary investigation, it appears trial judge subjectively believes that he has good grounds for his action. that the state prosecutors were overly eager to file the case and secure a Good faith is not enough. If subjective good faith alone were the test, the warrant for the arrest of the accused without bail and their consequent constitutional protection would be demeaned and the people would be detention. Umbal's sworn statement is laden with inconsistencies and "secure in their persons, houses, papers and effects" only in the fallible improbabilities. Bato's counter-affidavit was considered without giving discretion of the judge. On the contrary, the probable cause test is an petitioners the opportunity to refute the same. The PACC which gathered objective one, for in order that there be probable cause the facts and the evidence appears to have had a hand in the determination of probable circumstances must be such as would warrant a belief by a reasonably cause in the preliminary inquiry as the undated resolution of the panel not discreet and prudent man that the accused is guilty of the crime which has only bears the letterhead of PACC but was also recommended for approval just been committed. This, as we said, is the standard. Hence, if upon the by the head of the PACC Task Force. Then petitioners were given the runaround in securing a copy of the resolution and the information against The facts of this case are fatefully distressing as they showcase the seeming them. immensity of government power which when unchecked becomes tyrannical and oppressive. Hence the Constitution, particularly the Bill of Indeed, the task of ridding society of criminals and misfits and sending Rights, defines the limits beyond which lie unsanctioned state actions. But them to jail in the hope that they will in the future reform and be productive on occasion, for one reason or another, the State transcends this parameter. members of the community rests both on the judiciousness of judges and In consequence, individual liberty unnecessarily suffers. The case before us, the prudence of prosecutors. And, whether it is preliminary investigation by if uncurbed, can be illustrative of a dismal trend. Needless injury of the sort the prosecutor, which ascertains if the respondent should be held for trial, or inflicted by government agents is not reflective of responsible government. a preliminary inquiry by the trial judge which determines if an arrest Judges and law enforcers are not, by reason of their high and prestigious warrant should issue, the bottomline is that there is a standard in the office, relieved of the common obligation to avoid deliberately inflicting determination of the existence of probable cause, i.e., there should be facts unnecessary injury. and circumstances sufficiently strong in themselves to warrant a prudent and cautious man to believe that the accused is guilty of the crime with The sovereign power has the inherent right to protect itself and its people which he is charged. Judges and prosecutors are not off on a frolic of their from vicious acts which endanger the proper administration of justice; own, but rather engaged in a delicate legal duty defined by law and hence, the State has every right to prosecute and punish violators of the law. jurisprudence. This is essential for its self-preservation, nay, its very existence. But this does not confer a license for pointless assaults on its citizens. The right of In this instance, Salonga v. Paño finds application — the State to prosecute is not a carte blanche for government agents to defy The purpose of a preliminary investigation is to secure the innocent against and disregard the rights of its citizens under the Constitution. Confinement, hasty, malicious and oppressive prosecution, and to protect him from an regardless of duration, is too high a price to pay for reckless and impulsive open and public accusation of crime, from the trouble, expense and anxiety prosecution. Hence, even if we apply in this case the "multifactor balancing of a public trial, and also to protect the state from useless and expensive test" which requires the officer to weigh the manner and intensity of the trial (Trocio v. Manta, 118 SCRA 241, citing Hashim v. Boncan, 71 Phil. interference on the right of the people, the gravity of the crime committed 216). The right to a preliminary investigation is a statutory grant, and to and the circumstances attending the incident, still we cannot see probable withhold it would be to transgress constitutional due process (see People v. cause to order the detention of petitioners. Oandasa, 25 SCRA 277). However, in order to satisfy the due process clause it is not enough that the preliminary investigation is conducted in the The purpose of the Bill of Rights is to protect the people against arbitrary sense of making sure that the transgressor shall not escape with impunity. A and discriminatory use of political power. This bundle of rights guarantees preliminary investigation serves not only for the purposes of the State. More the preservation of our natural rights which include personal liberty and importantly, it is a part of the guarantees of freedom and fair play which are security against invasion by the government or any of its branches or birthrights of all who live in the country. It is therefore imperative upon the instrumentalities. Certainly, in the hierarchy of rights, the Bill of Rights fiscal or the judge as the case may be, to relieve the accused from the pain takes precedence over the right of the State to prosecute, and when weighed of going thru a trial once it is ascertained that the evidence is insufficient to against each other, the scales of justice tilt towards the former. Thus, relief sustain a prima facie case or that no probable cause exists to form a may be availed of to stop the purported enforcement of criminal law where sufficient belief as to the guilt of the accused (emphasis supplied). it is necessary to provide for an orderly administration of justice, to prevent the use of the strong arm of the law in an oppressive and vindictive manner, and to afford adequate protection to constitutional rights. Perhaps, this case would not have reached this Court if petitioners were ordinary people submissive to the dictates of government. They would have been illegally arrested and detained without bail. Then we would not have the opportunity to rectify the injustice. Fortunately, the victims of injustice are lawyers who are vigilant of their rights, who fight for their liberty and freedom not otherwise available to those who cover in fear and subjection.

Let this then be a constant reminder to judges, prosecutors and other government agents tasked with the enforcement of the law that in the performance of their duties they must act with circumspection, lest their thoughtless ways, methods and practices cause a disservice to their office and aim their countrymen they are sworn to serve and protest. We thus caution government agents, particularly the law enforcers, to be more prudent in the prosecution of cases and not to be oblivious of human rights protected by the fundamental law. While we greatly applaud their determined efforts to weed society of felons, let not their impetuous eagerness violate constitutional precepts which circumscribe the structure of a civilized community.

WHEREFORE, the petition for certiorari and prohibition is GRANTED. The temporary restraining order we issued on 28 February 1994 in favor of petitioners, Atty. Diosdado Jose Allado and Atty. Roberto L. Mendoza, is made permanent. The warrant of arrest issued against them is SET ASIDE and respondent Judge Roberto C. Diokno is ENJOINED from proceeding any further against herein petitioners in Crim. Case No. 94-1757 of the Regional Trial Court of Makati.

SO ORDERED. Cruz, Davide, Jr., Quiason and Kapunan, JJ., concur. JOVITO R. SALONGA, petitioner, of around forty persons when on the very face of the record no evidence vs. HON. ERNANI CRUZ PAÑO, Presiding Judge of the Court of First linking him to the alleged conspiracy exists. The term "prima facie Instance of Rizal, Branch XVIII (Quezon City), HON. JUDGE RODOLFO evidence" denotes evidence which, if unexplained or uncontradicted, is ORTIZ, Presiding Judge of the Court of First Instance of Rizal, Branch sufficient to sustain the proposition it supports or to establish the facts, or to XXXI (Quezon City) CITY FISCAL SERGIO APOSTOL of Quezon City; counterbalance the presumption of innocence to warrant a conviction. COL. BALBINO DIEGO and COL. ROMAN MADELLA, respondents. 3. ID.; ID.; HEARSAY RULE; TESTIMONY BASED ON G.R. No. 59524 ANOTHER PERSON'S AFFIDAVITS ARE HEARSAY AND HAS NO February 18, 1985 PROBATIVE VALUE; INQUEST JUDGE SHOULD CONFINE INVESTIGATION TO SOLE WITNESS. — Col. Diego, on the other SYLLABUS hand, when asked what evidence he was able to gather against the petitioner 1. REMEDIAL LAW; SPECIAL CIVIL ACTION; depended only on the statement of Lovely "that it was the residence of ex- CERTIORARI; DENIAL OF A MOTION TO QUASH OR TO Senator Salonga where they met together with Renato Tanada, one of the DISMISS CANNOT BE QUESTIONED BY CERTIORARI; RULE brains of the bombing conspiracy . . . and the fact that Sen. Salonga has NOT APPLICABLE WHERE THERE IS FAILURE TO SHOW been meeting with several subversive personnel based in the U.S.A. was PRIMA FACIE THAT A PERSON IS GUILTY. — The respondents call also revealed to me by Victor Burns Lovely"; and on the group pictures for adherence to the consistent rule that the denial of a motion to quash or to taken at former Congressman Raul Daza's birthday party. In concluding that dismiss, being interlocutory in character, cannot be questioned by certiorari; a conspiracy exists to overthrow by violent means the government of the that since the question of dismissal will again be considered by the court Philippines in the United States, his only bases were "documentary as well when it decides the case, the movant has a plain, speedy and adequate as physical and sworn statements that were referred to me or taken by me remedy in the ordinary course of law; and that public interest dictates that personally," which of course negate personal knowledge on his part. criminal prosecutions should not be enjoined. The general rule is correctly Testimony based on affidavits of other persons and purely hearsay, can stated. However, the respondents fail to appreciate or take into account hardly qualify as prima facie evidence of subversion. It should not have certain exceptions when a petition for certiorari is clearly warranted. The been given credence by the court in the first place. Hearsay evidence, case at bar is one such exception. In the light of the failure to show prima whether objected to or not, has no probative value as the affiant could not facie that the petitioner was probably guilty of conspiring to commit the have been cross-examined on the facts stated therein. (See People v. crime, the initial disregard of petitioner's constitutional rights together with Labinia, 115 SCRA 223; People v. Valero, 112 SCRA 661). Moreover, as the massive and damaging publicity made against him, justifies the Victor Lovely, himself, was personally examined by the court, there was no favorable consideration of this petition by this Court. need for the testimony of Col. Diego. Thus, the inquest judge should have confined his investigation to Victor Burns Lovely, the sole witness whose 2. ID.; EVIDENCE; "PRIMA FACIE EVIDENCE"; testimony has apparently implicated petitioner in the bombings which EVIDENCE MUST BE SUFFICIENT TO OVERCOME eventually led to the filing of the information. PRESUMPTION OF INNOCENCE. — Infinitely more important than conventional adherence to general rules of criminal procedure is respect for 4. ID.; ID.; INDICTING A PERSON BECAUSE PLOTTERS the citizen's fight to be free not only from arbitrary arrest and punishment MET IN HIS HOUSE, A DANGEROUS PRECEDENT. — The jump but also from unwarranted and vexatious prosecution. The integrity of a from the "contact point" theory to the conclusion of involvement in democratic society is corrupted if a person is carelessly included in the trial subversive activities in the United States is not only inexplicable but without foundation. The respondents admit that no evidence was presented directly linking petitioner Salonga to actual acts of violence or terrorism. 7. CONSTITUTIONAL LAW; BILL OF RIGHTS; FREEDOM There is no proof of his direct participation in any overt acts of subversion. OF THOUGHT AND EXPRESSION; OPINION ON THE The "contact point" theory or what the petitioner calls the "guilt by visit or LIKELIHOOD OF A VIOLENT STRUGGLE, A LEGITIMATE guilt by association" theory is too tenuous a basis to conclude that Senator EXERCISE OF FREEDOM. — The alleged opinion of the petitioner Salonga was a leader or mastermind of the bombing incidents. To indict a about the likelihood of a violent struggle here in the Philippines if reforms person simply because some plotters, masquerading as visitors, have are not instituted, assuming that he really stated the same, is nothing but a somehow met in his house or office would be to establish a dangerous legitimate exercise of freedom of thought and expression. No man deserves precedent. The right of citizens to be secure against abuse of governmental punishment for his thoughts. Cogitationis poenam nemo meretur. And as processes in criminal prosecutions would be seriously undermined. the late Justice Oliver W. Holmes stated in the case of U .S. v. Schwimmer, 279 U.S. 644, ". . . if there is any principle of the Constitution that more 5. ID.; ID.; CREDIBILITY OF WITNESSES; TESTIMONY imperatively calls for attachment than any other it is the principle of free THAT PETITIONER WHO WAS DEAF AND ANOTHER thought — not free thought for those who agree with us but freedom for the WHISPERED TO EACH OTHER IS INCONSISTENT. — The thought that we hate." testimony of Victor Lovely against petitioner Salonga is full of inconsistencies. Senator Salonga and Atty. Renato Tanada could not have 8. ID.; ID.; ID.; A PREFERRED RIGHT; POLITICAL whispered to one another because the petitioner is almost totally deaf. DISCUSSION CANNOT BE INDICTED. — We have adopted the Lovely could not have met Senator Salonga at a Manglapus party in concept that freedom of expression is a "preferred" right and, therefore, Washington, D.C. in 1977 because the petitioner left for the United States stands on a higher level than substantive economic or other liberties. The only in November, 1978. Senator Salonga denies having known Mr. Lovely primacy, the high estate accorded freedom of expression is a fundamental in the United States or in the Philippines. He states that he has hundred of postulate of our constitutional system. (Gonzales v. Commission on visitors from week to week in his residence but cannot recall any Victor Elections, 29 SCRA 835). As explained by Justice Cardozo in Palko v. Lovely. Connecticut (302 U.S. 319) this must be so because the lessons of history, both political and legal, illustrate that freedom of thought and speech is the 6. ID.; ID.; PHOTOGRAPH; PRESENCE IN A GROUP indispensable condition of nearly every other form of freedom. Protection is PICTURE IS NOT PROOF OF CONSPIRACY. — The presence of especially mandated for political discussions. This Court is particularly Lovely in a group picture taken at Mr. Raul Daza's birthday party in Los concerned when allegations are made that restraints have been imposed Angeles where Senator Salonga was a guest is not proof of conspiracy. As upon mere criticisms of government and public officials. Political stated by the petitioner, in his many years in the turbulent world of politics, discussion is essential to the ascertainment of political truth. It cannot be the he has posed with all kind of people in various groups and various places basis of criminal indictments. In the case before us, there is no teaching of and could not possibly vouch for their conduct. Commenting on the matter, the moral propriety of a resort to violence, much less an advocacy of force newspaper columnist Teodoro Valencia stated that Filipinos love to pose or a conspiracy to organize the use of force against the duly constituted with important visitors and the picture proves nothing. More credible and authorities. The alleged remark about the likelihood of violent struggle stronger evidence is necessary for an indictment. Nonetheless, even if we unless reforms are instituted is not a threat against the government. Nor is it discount the flaws in Lovely's testimony and dismiss the refutations and even the uninhabited, robust, caustic, or unpleasantly sharp attack which is arguments of the petitioner, the prosecution evidence is still inadequate to protected by the guarantee of free speech. Parenthetically, the American establish a prima facie finding. case of Brandenburg v. Ohio (395 U.S. 444) states that the constitutional guarantees of free speech and free press do not permit a State to forbid or mankind can approve as probable under the circumstances. (People v. proscribe advocacy of the use of force or of law violation except where such Dayad, 56 SCRA 439) In the case at bar, the prosecution cannot even advocacy is directed to inciting or producing imminent lawless action and is present a credible version of the petitioner's role in the bombings even if it likely to incite or produce such action. The words which petitioner allegedly ignores the subsequent disclaimers of Lovely and without relying on mere used according to the best recollection of Mr. Lovely are light years away affidavits including those made by Lovely during his detention. from such type of proscribed advocacy. 12. ID.; CRIMINAL PROCEDURE; PRELIMINARY 9. REMEDIAL LAW; EVIDENCE; STATEMENT THAT HIS INVESTIGATION; PURPOSE; TRIAL JUDGE HAS DUTY TO MISSION WAS AGAINST A PARTICULAR FAMILY NEGATES SPARE ACCUSED FROM PAIN OF TRIAL IF THERE IS POLITICALLY MOTIVATED ASSIGNMENT. — Lovely also declared INSUFFICIENT EVIDENCE. — The purpose of a preliminary that he had nothing to do with the bombing on August 22, 1980, which was investigation is to secure the innocent against hasty, malicious and the only bombing incident that occurred after his arrival in Manila on oppressive prosecution, and to protect him from an open and public August 20, 1980, and before the YMCA explosion on September 6, 1980. accusation of crime, from the trouble, expense and anxiety of a public trial, He further testified that: (his) bombing mission was directed against the and also to protect the state from useless and expensive trials. (Trocio v. particular family (referring to the Cabarrus family). Such a statement Manta, 118 SCRA 241, citing Hashim v. Boncan, 71 Phil. 216) The right to wholly negates any politically motivated or subversive assignment which a preliminary investigation is a statutory grant, and to withhold it would be Lovely was supposed to have been commissioned to perform upon the to transgress constitutional due process. (See People v. Oandasa, 25 SCRA orders of his co-accused and which was the very reason why they were 277) However, in order to satisfy the due process clause it is not enough charged in the first place. that the preliminary investigation is conducted in the sense of making sure that a transgressor shall not escape with impunity. A preliminary 10. ID.; ID.; BY ADOPTING DEFENSE WITNESS AS ITS OWN, investigation serves not only the purposes of the State. More important, it is PROSECUTION IS BOUND BY HIS DISCLAIMER. — It should be a part of the guarantees of freedom and fair play which are birthrights of all noted that after Lovely's testimony, the prosecution manifested to the court who live in our country. It is, therefore, imperative upon the fiscal or the that is was adopting him as a prosecution witness. Therefore, the judge as the case may be, to relieve the accused from the pain of going prosecution became irreversibly bound by Lovely's disclaimers on the through a trial once it is ascertained that the evidence is insufficient to witness stand, that it was not his intention "to do some kind of bombing sustain a prima facie case or that no probable cause exists to form a against the government" and that he "did not try to implicate Salonga," sufficient belief as to the guilt of the accused. especially since Lovely is the sole witness adopted by the prosecution who could supposedly establish the link between the petitioner and the bombing 13. CONSTITUTIONAL LAW; BILL OF RIGHTS; EXTENT OF incidents. The respondent court should have taken these factors into CONSTITUTIONAL GUARANTEE; COURT'S FUNCTION IS TO consideration before concluding that a prima facie case exists against the EDUCATE BENCH AND BAR THEREON. — The setting aside or petitioner. declaring void, in proper cases, of intrusions of State authority into areas reserved by the Bill of Rights for the individual as constitutionally protected 11. ID.; ID.; EVIDENCE MUST COME NOT ONLY FROM A spheres where even the awesome powers of Government may not enter at CREDIBLE WITNESS BUT MUST BE CREDIBLE IN ITSELF. — will is not the totality of the Court's functions. The Court also has the duty Evidence must not only proceed from the mouth of a credible witness but it to formulate guiding and controlling constitutional principles, precepts, must be credible in itself such as the common experience and observation of doctrines, or rules. It has the symbolic function of educating bench and bar shopping at Rustan's Supermarket in Makati and others which caused on the extent of protection given by constitutional guarantees. injuries to a number of persons.

D E C I S I O N On September 20, 1980, the President's anniversary television radio press GUTIERREZ, JR., J p: conference was broadcast. The younger brother of Victor Lovely, Romeo, The petitioner invokes the constitutionally protected right to life and liberty was presented during the conference. In his interview, Romeo stated that he guaranteed by the due process clause, alleging that no prima facie case has had driven his elder brother, Victor, to the petitioner's house in Greenhills been established to warrant the filing of an information for subversion on two occasions. The first time was on August 20, 1980. Romeo stated that against him. Petitioner asks this Court to prohibit and prevent the Victor did not bring any bag with him on that day when he went to the respondents from using the iron arm of the law to harass, oppress, and petitioner's residence and did not carry a bag when he left. The second time persecute him, a member of the democratic opposition in the Philippines. was in the afternoon of August 31, 1980 when he brought Victor only to the The background of this case is a matter of public knowledge. gate of the petitioner's house. Romeo did not enter the petitioner's residence. Neither did he return that day to pick up his brother. A rash of bombings occurred in the Metro Manila area in the months of August, September and October of 1980. On September 6, 1980, one Victor The next day, newspapers came out with almost identical headlines stating Burns Lovely, Jr., a Philippine-born American citizen from Los Angeles, in effect that petitioner had been linked to the various bombings in Metro California, almost killed himself and injured his younger brother, Romeo, as Manila. a result of the explosion of a small bomb inside his room at the YMCA building in Manila. Found in Lovely's possession by police and military Meanwhile, on September 25, 1980, Lovely was taken out of the hospital's authorities were several pictures taken sometime in May, 1980 at the intensive care unit and transferred to the office of Col. Madella where he birthday party of former Congressman Raul Daza held at the latter's was held incommunicado for sometime. residence in a Los Angeles suburb. Petitioner Jovito R. Salonga and his wife were among those whose likenesses appeared in the group pictures On the night of October 4, 1980, more bombs were reported to have together with other guests, including Lovely. exploded at three big hotels in Metro Manila, namely: Philippine Plaza, Century Park Sheraton and Manila Peninsula. The bombs injured nine As a result of the serious injuries he suffered, Lovely was brought by people. A meeting of the General Military Council was called for October military and police authorities to the AFP Medical Center (V. Luna 6, 1980. Hospital) where he was place in the custody and detention of Col. Roman P. Madella, under the over-all direction of General Fabian Ver, head of the On October 19, 1980, minutes after the President had finished delivering his National Intelligence and Security Authority (NISA). Shortly afterwards, speech before the International Conference of the American Society of Mr. Lovely and his two brothers, Romeo and Baltazar Lovely where Travel Agents at the Philippine International Convention Center, a small charged with subversion, illegal possession of explosives, and damage to bomb exploded. Within the next twenty-four hours, arrest, search, and property. seizure orders (ASSOs) were issued against persons who were apparently implicated by Victor Lovely in the series of bombings in Metro Manila. On September 12, 1980, bombs once again exploded in Metro Manila One of them was herein petitioner Victor Lovely offered himself to be a including one which resulted in the death of an American lady who was "state witness" and in his letter to the President, he stated that he will reveal everything he knows about the bombings. On October 21, 1980, elements of the military went to the hospital room of amended by P.D. 885 and Batas Pambansa Blg. 31 in relation to Article 142 the petitioner at the Manila Medical Center where he was confined due to of the Revised Penal Code. The inquest court set the preliminary his recurrent and chronic ailment of bronchial asthma and placed him under investigation for March 17, 1981. arrest. The arresting officer showed the petitioner the ASSO form which however did not specify the charge or charges against him. For some time, On March 6, 1981, the petitioner was allowed to leave the country to attend the petitioner's lawyers were not permitted to visit him in his hospital room a series of church conferences and undergo comprehensive medical until this Court in the case of Ordoñez v. Gen. Fabian Ver, et al., (G.R. No. examinations of the heart, stomach, liver, eye and ear including a possible 55345, October 28, 1980) issued an order directing that the petitioner's right removal of his left eye to save his right eye. Petitioner Salonga almost died to be visited by counsel be respected. as one of the principal victims of the dastardly bombing of a Liberal Party rally at Plaza Miranda on August 20, 1971. Since then, he has suffered On November 2, 1980, the petitioner was transferred against his objections serious disabilities. The petitioner was riddled with shrapnel and pieces still from his hospital arrest to an isolation room without windows in an army remain in various parts of his body. He has an AV fistula caused by a piece prison camp at Fort Bonifacio, Makati. The petitioner states that he was not of shrapnel lodged one millimeter from his aorta. The petitioner has limited informed why he was transferred and detained, nor was he ever investigated use of his one remaining hand and arms, is completely blind and phthisical or questioned by any military or civil authority. in the left eye, and has scar like formations in the remaining right eye. He is totally deaf in the right ear and partially deaf in the left ear. The petitioner's Subsequently, on November 27, 1980, the petitioner was released for physical ailments led him to seek treatment abroad. humanitarian reasons from military custody and placed "under house arrest in the custody of Mrs. Lydia Salonga" still without the benefit of any On or around March 26,1981, the counsel for petitioner was furnished a investigation or charges. copy of an amended complaint signed by Gen. Prospero Olivas, dated March 12, 1981, charging the petitioner, along with 39 other accused with On December 10, 1980, the Judge Advocate General sent the petitioner a the violation of R.A. 1700, as amended by P.D. 885, Batas Pambansa Blg. "Notice of Preliminary Investigation" in People v. Benigno Aquino, Jr., et 31 and P.D. 1736. Hearings for preliminary investigation were conducted. al. (which included petitioner as a co-accused), stating that "the preliminary The prosecution presented as its witnesses Ambassador Armando investigation of the above-entitled case has been set at 2:30 o'clock p.m. on Fernandez, the Consul General of the Philippines in Los Angeles, December 12, 1980" and that petitioner was given ten (10) days from California, Col. Balbino Diego, PSC/NISA, Chief, Investigation and Legal receipt of the charge sheet and the supporting evidence within which to file Panel of the Presidential Security Command and Victor Lovely himself. his counter-evidence. The petitioner states that up to the time martial law was lifted on January 17, 1981, and despite assurance to the contrary, he has On October 15, 1981, the counsel for petitioner filed a motion to dismiss the not received any copies of the charges against him nor any copies of the so- charges against petitioner for failure of the prosecution to establish a prima called supporting evidence. facie case against him.

On February 9, 1981, the records of the case were turned over by the Judge On December 2, 1981, the respondent judge denied the motion. On January Advocate General's Office to the Ministry of Justice. 4, 1982, he issued a resolution ordering the filing of an information for violation of the Revised Anti-Subversion Act, as amended, against forty On February 24, 1981, the respondent City Fiscal filed a complaint accusing (40) people, including herein petitioner. petitioner, among others of having violated Republic Act No. 1700, as The resolutions of the respondent judge dated December 2, 1981 and "There is no disputing the validity and wisdom of the rule invoked by the January 4, 1982 are now the subject of the petition. It is the contention of respondents. However, it is also recognized that. under certain situations, the petitioner that no prima facie case has been established by the recourse to the extraordinary legal remedies of certiorari, prohibition or prosecution to justify the filing of an information against him. He states that mandamus to question the denial of a motion to quash is considered proper to sanction his further prosecution despite the lack of evidence against him in the interest of 'more enlightened and substantial justice', as was so would be to admit that no rule of law exists in the Philippines today. declared in 'Yap v. Lutero', G.R. No. L-12669, April 30, 1969."

After a painstaking review of the records, this Court finds the evidence Infinitely more important than conventional adherence to general rules of offered by the prosecution utterly insufficient to establish a prima facie case criminal procedure is respect for the citizen's right to be free not only from against the petitioner. We grant the petition. arbitrary arrest and punishment but also from unwarranted and vexatious prosecution. The integrity of a democratic society is corrupted if a person is However, before going into the merits of the case, we shall pass upon a carelessly included in the trial of around forty persons when on the very procedural issue raised by the respondents. face of the record no evidence linking him to the alleged conspiracy exists.

The respondents call for adherence to the consistent rule that the denial of a Ex-Senator Jovito Salonga, himself a victim of the still unresolved and motion to quash or to dismiss, being interlocutory in character, cannot be heinous Plaza Miranda bombings, was arrested at the Manila Medical questioned by certiorari; that since the question of dismissal will again be Center while hospitalized for bronchial asthma. When arrested, he was not considered by the court when it decides the case, the movant has a plain, informed of the nature of the charges against him. Neither was counsel speedy and adequate remedy in the ordinary course of law; and that public allowed to talk to him until this Court intervened through the issuance of an interest dictates that criminal prosecutions should not be enjoined. order directing that his lawyers be permitted to visit him (Ordoñez v. Gen. The general rule is correctly stated. However, the respondents fail to Fabian Ver, et al., G.R. No. 55345, October 28, 1980). Only after four appreciate or take into account certain exceptions when a petition for months of detention was the petitioner informed for the first time of the certiorari is clearly warranted. The case at bar is one such exception. nature of the charges against him. After the preliminary investigation, the petitioner moved to dismiss the complaint but the same was denied. In the case of Mead v. Angel (115 SCRA 256) the same contentions were Subsequently, the respondent judge issued a resolution ordering the filing of advanced by the respondents to wit: an information after finding that a prima facie case had been established xxx xxx xxx against all of the forty persons accused. ". . . Respondents advert to the rule that when a motion to quash filed by an accused in a criminal case shall be denied, the remedy of the accused- In the light of the failure to show prima facie that the petitioner was movant is not to file a petition for certiorari or mandamus or prohibition, the probably guilty of conspiring to commit the crime, the initial disregard of proper recourse being to go to trial, without prejudice to his right to reiterate petitioner's constitutional rights together with the massive and damaging the grounds invoked in his motion to quash if an adverse judgment is publicity made against him, justifies the favorable consideration of this rendered against him, in the appeal that he may take therefrom in the petition by this Court. With former Senator Benigno Aquino, Jr. now manner authorized by law. (Mill v. People, et al., 101 Phil. 599; Echarol v. deceased, there are at least 38 other co-accused to be tried with the Purisima, et al., 13 SCRA 309.) petitioner. The prosecution must present proof beyond reasonable doubt against each and every one of the 39 accused, most of whom have varying On this argument, we ruled: participations in the charge for subversion. The prosecution's star witness Victor Lovely and the only source of information with regard to the alleged that Sen. Salonga has been meeting with several subversive personnel based link between the petitioner and the series of terrorist bombings is now in the in the U.S.A. was also revealed to me by Victor Burns Lovely; " and on the United States. There is reason to believe the petitioner's citation of group pictures taken at former Congressman Raul Daza's birthday party. In international news dispatches ** that the prosecution may find it difficult if concluding that a conspiracy exists to overthrow by violent means the not infeasible to bring him back to the Philippines to testify against the government of the Philippines in the United States, his only bases were petitioner. If Lovely refused to testify before an American federal grand "documentary as well as physical and sworn statements that were referred to jury how could he possibly be made to testify when the charges against the me or taken by me personally," which of course negate personal knowledge respondent come up in the course of the trial against the 39 accused. on his part. When asked by the court how he would categorize petitioner in Considering the foregoing, we find it in the interest of justice to resolve at any of the subversive organizations, whether petitioner was an organizer, this stage the issue of whether or not the respondent judge gravely abused officer or a member, the witness replied: his discretion in issuing the questioned resolutions. "A. To categorize former Senator Salonga if he were an organizer, he is an officer or he is a member, your Honor, please, we have to consider the The respondents contend that the prosecution will introduce additional surrounding circumstances and on his involvement: first, Senator Salonga evidence during the trial and if the evidence, by then, is not sufficient to wanted always to travel to the United States at least once a year or more prove the petitioner's guilt, he would anyway be acquitted. Yes, but under often under the pretext of to undergo some sort of operation and participate the circumstances of this case, at what cost not only to the petitioner but to in some sort of seminar. (t.s.n., April 21, 1981, pp. 14-15) the basic fabric of our criminal justice system? Such testimony, being based on affidavits of other persons and purely The term "prima facie evidence" denotes evidence which, if unexplained or hearsay, can hardly qualify as prima facie evidence of subversion. It should uncontradicted, is sufficient to sustain the proposition it supports or to not have been given credence by the court in the first place. Hearsay establish the facts, or to counterbalance the presumption of innocence to evidence, whether objected to or not, has no probative value as the affiant warrant a conviction. The question raised before us now is: Were the could not have been cross-examined on the facts stated therein. (See People evidences against the petitioner uncontradicted and if they were v. Labinia, 115 SCRA 223; People v. Valero, 112 SCRA 661). Moreover, unexplained or uncontradicted, would they, standing alone, sufficiently as Victor Lovely, himself, was personally examined by the court, there was overcome the presumption of innocence and warrant his conviction? no need for the testimony of Col. Diego. Thus, the inquest judge should We do not think so. have confined his investigation to Victor Burns Lovely, the sole witness whose testimony had apparently implicated petitioner in the bombings The records reveal that in finding a case against the petitioner, the which eventually led to the filing of the information. respondent judge relied only on the testimonies of Col. Balbino Diego and Victor Lovely. Ambassador Armando Fernandez, when called upon to Lovely's account of the petitioner's involvement with the former's bombing testify on subversive organizations in the United States nowhere mentioned mission is found in his sworn statement made before Col. Diego and Lt. the petitioner as an organizer, officer or member of the Movement for Free Col. Madella and taken on October 17, 1980 at the AFP Medical Center. Philippines (MFP), or any of the organizations mentioned in the complaint. Lovely was not presented as a prosecution or state witness but only as a Col. Diego, on the other hand, when asked what evidence he was able to defense witness for his two younger brothers, Romeo and Baltazar, who gather against the petitioner depended only on the statement of Lovely "that were both included in the complaint but who were later dropped from the it was the residence of ex-Senator Salonga where they met together with information. Victor Lovely was examined by his counsel and cross- Renato Tañada, one of the brains of the bombing conspiracy . . . and the fact examined by the fiscal. In the process, he identified the statement which he made before Col. Diego and Lt. Col. Madella. After Lovely's testimony, the "A. Yes, Salonga asked if Sen. Aquino and I have met, I explained to prosecution made a manifestation before the court that it was adopting him the efforts of Raul Daza in setting up that meeting but I have previous Lovely as a prosecution witness. business commitments at Norfolk, Virginia. I told him, however, that through the efforts of Raul Daza, I was able to talk with Ninoy Aquino in According to Lovely's statement, the following events took place: the airport telephone booth in San Francisco. He also asked about Raul "36. Q. Did Psinakis tell you where to stay? Daza, Steve Psinakis and the latest opposition group activities but it seems "A. Yes, at first he told me to check-in at Manila Hotel or the Plaza he is well informed. Hotel where somebody would come to contact me and give the materials "41. Q. How long did you wait until that somebody arrived? needed in the execution of my mission. I thought this was not safe so I "A. About thirty (30) minutes. disagreed with him. Mr. Psinakis changed the plan and instead told me to "42. Q. What happened when the man arrived? visit the residence of Ex-Sen. Jovito Salonga as often as I can and someone "A. This man arrived and I was greatly surprised to see Atty. Renato will meet me there to give the materials I needed to accomplish my mission. Tañada. Jovy Salonga was the one who met him and as I observed parang "37. Q. Did you comply as instructed? nasa sariling bahay si Tañada nung dumating. They talked for five (5) "A. Yes, I arrived in Manila on August 20, 1980 and stayed at the minutes in very low tones so I did not hear what they talked about. After residence of Mr. Johnny Chua, husband of my business partner, then I went their whispering conversations, Sen. Salonga left and at this time Atty. 'Nits' to the Hospital where I visited my mother and checked-in at Room 303 of Tañada told me 'Nasa akin ang kailangan mo, nasa kotse.' the YMCA at Concepcion Street, Manila. "43. Q. Were the materials given to you? "38. Q. Did you visit the residence of former Senator Jovito Salonga as "A. When Sen. Salonga came back, we asked to be permitted to leave directed by Psinakis? and I rode in Atty. Nits Tañada's old Pontiac car colored dirty brown and "A. I visited Sen. Salonga's place three (3) times, the first visit was proceeded to Broadway Centrum where before I alighted, Atty. Tañada August 20 or 21, and the last was 4:00 P.M. of August 31, 1980. In addition handed me a 'Puma' bag containing all the materials I needed. to these visits, I TALKED to him on the phone about three or four times. On my first visit, I told him 'I am expecting an attache case from somebody xxx xxx xxx which will be delivered to your house,' for which Sen. Salonga replied 'Wala namang nagpunta dito at wala namang attache case para sa iyo.' "45. Q. What were the contents of the Puma bag? However, if your attache case arrives, I'll just call you.' I gave him my "A. Ten (10) pieces of Westclox pocket watch with screw and wirings, number. On my second visit, Salonga said, 'I'll be very busy so just come ten (10) pieces electrical blasting caps 4" length, ten (10) pieces non- back on the 31st of August at 4 P.M.' On that date, I was with friends at electrical blasting caps 1" length, nine (9) pieces volts dry cell battery, two Batulao Resort and had to hurry back to be at Salonga's place for the (2) improvised electrical testers, ten (10) plastic packs of high explosive appointment. I arrived at Salonga's place at exactly 4 P.M. about 1 pound weight each. "39. Q. What happened then? "A. I was ushered to the sala by Mrs. Salonga and after five minutes, However, in his interview with Mr. Ronnie Nathanielz which was aired on Sen. Salonga joined me in the sala. Sen. Salonga informed me that Channel 4 on November 8, 1980 and which was also offered as evidence by somebody will be coming to give me the attache case but did not tell me the the accused, Lovely gave a different story which negates the above name. testimony insofar as the petitioner's participation was concerned: "40. Q. Are there any subject matters you discussed while waiting for that xxx xxx xxx somebody to deliver your materials? "Q. Who were the people that you contacted in Manila and for what "Q. Alright. You said initially it was social but then it became political. purpose? Was there any political action taken as a result of the party? "A. Before I left for the Philippines, Mr. Psinakis told me to check-in "A. Only political discussion, your Honor." (TSN, July 8, 1981, pp. 69- at the Manila Hotel or the Plaza Hotel, and somebody would just deliver the 84) materials I would need. I disapproved of this, and I told him I would prefer Counsel for petitioner also asked Lovely whether in view of the latter's a place that is familiar to me or who is close to me. Mr. Psinakis suggested awareness of the physical condition of petitioner, he really implicated the residence of Sen. Salonga. petitioner in any of the bombings that occurred in Metro Manila. The fiscal objected without stating any ground. In sustaining the objection, the Court "And so, I arrived in Manila on August 20, 1980, I made a call to said: Sen. Salonga, but he was out. The next day I made a call again. I was able "Sustained . . . The use of the word 'implicate' might expand the role of Mr. to contact him. I made an appointment to see him. I went to Sen. Salonga's Salonga. In other words, you are widening the avenue of Mr. Salonga's role house the following day. I asked Sen. Salonga if someone had given him an beyond the participation stated in the testimony of this witness about Mr. attache case for me. He said nobody. Afterwards, I made three calls to Sen. Salonga, at least, as far as the evidence is concerned, I supposed, is only Salonga. Sen. Salonga told me 'call me again on the 31st of August. I did being in the house of Mr. Salonga which was used as the contact point. He not call him, I just went to his house on the 31st of August at 4 P.M. A few never mentions Mr. Salonga about the bombings. Now these words had to minutes after my arrival Atty. Renato Tañada arrived. When he had a be put in the mouth of this witness. That would be unfair to Mr. Salonga." chance to be near me, he (Atty. Tañada) whispered to me that he had the (TSN. July 8, 1981, p. 67) attache case and the materials I needed in his car. These materials were given to me by Atty. Tañada when I alighted at the Broadway Centrum.' Respondent judge further said: (Emphasis supplied) "COURT: "As the Court said earlier, the parts or portions affecting Salonga During the cross-examination, counsel for petitioner asked Lovely about the only refers to the witness coming to Manila already then the matter of . . . I so-called destabilization plan which the latter mentioned in his sworn have gone over the statement and there is no mention of Salonga insofar as statement: activities in the United States is concerned. I don't know why it concerns "Q. You mentioned in your statement taken on October 17, 1980, this cross-examination. marked Exhibit 'G' about the so-called destabilization plan of Aquino. "ATTY. YAP: When you attended the birthday party of Raul Daza wherein Jovito Salonga "Because according to him, it was in pursuance of the plan that he was also present, was this destabilization plan as alleged by you already came to Manila. formulated? "COURT: "According to him it was Aquino, Daza, and Psinakis who asked WITNESS: him to come here, but Salonga was introduced only when he (Lovely) came "A. Not to my knowledge. here. Now, the tendency of the question is also to connect Salonga to the COURT TO WITNESS: activities in the United States. It seems to be the thrust of the questions. "Q. Mr. Witness, who invited you to the party? "COURT: "A. Raul Daza, your Honor. "In other words, the point of the Court as of the time when yon "Q. Were you told that Mr. Salonga would be present in the party? asked him question, the focus on Salonga was only from the time when he "A. I am really not quite sure, your Honor. met Salonga at Greenhills. It was the first time that the name of Salonga came up. There was no mention of Salonga in the formulation of the (2) Because "he mentioned some kind of violent struggle in the destabilization plan as affirmed by him. But you are bringing this up Philippines being most likely should reforms be not instituted by President although you are only cross-examining for Salonga as if his (Lovely's) Marcos immediately." activities in the United States affected Salonga." (TSN, July 8, 1981, pp. 73- 74) The "contact point" theory or what the petitioner calls the "guilt by visit or guilt by association" theory is too tenuous a basis to conclude that Senator Apparently, the respondent judge wanted to put things in proper perspective Salonga was a leader or mastermind of the bombing incidents. To indict a by limiting the petitioner's alleged "participation" in the bombing mission person simply because some plotters, masquerading as visitors, have only to the fact that petitioner's house was used as a "contact point" between somehow met in his house or office would be to establish a dangerous Lovely and Tañada, which was all that Lovely really stated in his testimony. precedent. The right of citizens to be secure against abuse of governmental processes in criminal prosecutions would be seriously undermined. However, in the questioned resolution dated December 2, 1981, the respondent judge suddenly included the "activities" of petitioner in the The testimony of Victor Lovely against petitioner Salonga is full of United States as his basis for denying the motion to dismiss: inconsistencies. Senator Salonga and Atty. Renato Tañada could not have "On the activities of Salonga in the United States, the witness, Lovely, in whispered to one another because the petitioner is almost totally deaf. one of his statements declared: 'To the best of my recollection he mentioned Lovely could not have met Senator Salonga at a Manglapus party in of some kind of violent struggle in the Philippines being most likely should Washington, D.C. in 1977 because the petitioner left for the United States reforms be not instituted by President Marcos immediately.' only on November, 1978. Senator Salonga denies having known Mr. Lovely in the United States or in the Philippines. He states that he has hundred of "It is therefore clear that the prosecution's evidence has established facts visitors from week to week in his residence but cannot recall any Victor and circumstances sufficient for a finding that excludes a Motion to Dismiss Lovely. by respondent Salonga. The Movement for Free Philippines is undoubtedly a force born on foreign soil, it appears to rely on the resources of foreign The presence of Lovely in a group picture taken at Mr. Raul Daza's birthday entities, and is being (sic) on gaining ascendancy in the Philippines with the party in Los Angeles where Senator Salonga was a guest is not proof of use of force and for that purpose it has linked itself with even communist conspiracy. As stated by the petitioner, in his many years in the turbulent organizations to achieve its end. It appears to rely on aliens for its world of politics, he has posed with all kinds of people in various groups supporters and financiers." and various places and could not possibly vouch for their conduct. Commenting on the matter, newspaper columnist Teodoro Valencia stated The jump from the "contact point" theory to the conclusion of involvement that Filipinos love to pose with important visitors and the picture proves in subversive activities in the United States is not only inexplicable but nothing. without foundation. It is likewise probable that a national figure and former politician of Senator The respondents admit that no evidence was presented directly linking Salonga's stature can expect guests and visitors of all kinds to be visiting his petitioner Salonga to actual acts of violence or terrorism. There is no proof home or office. If a rebel or subversive happens to pose with the petitioner of his direct participation in any overt acts of subversion. However, he is for a group picture at a birthday party abroad, or even visit him with others tagged as a leader of subversive organizations for two reasons — in his home, the petitioner does not thereby become a rebel or subversive, (1) Because his house was used as a "contact point"; and much less a leader of a subversive group. More credible and stronger evidence is necessary for an indictment. Nonetheless, even if we discount The United States Supreme Court in Noto v. United States (367 U.S. 290) the flaws in Lovely's testimony and dismiss the refutations and arguments distinguished between the abstract teaching of the moral propriety or even of the petitioner, the prosecution evidence is still inadequate to establish a moral necessity for a resort to force and violence and speech which would prima facie finding. prepare a group for violent action and steel it to such action. In Watts v. United States (394 U.S. 705), the American court distinguished between The prosecution has not come up with even a single iota of evidence which criminal threats and constitutionally protected speech. could positively link the petitioner to any proscribed activities of the Movement for Free Philippines or any subversive organization mentioned in It stated: the complaint. Lovely had already testified that during the party of former "We do not believe that the kind of political hyperbole indulged in by Congressman Raul Daza which was alleged to have been attended by a petitioner fits within that statutory term. For we must interpret the language number of members of the MFP, no political action was taken but only Congress chose against the background of a profound national commitment political discussion. Furthermore, the alleged opinion of the petitioner about to the principle that debate on public issues should be uninhibited, robust, the likelihood of a violent struggle here in the Philippines if reforms are not and wide open and that it may well include vehement, caustic, and instituted, assuming that he really stated the same, is nothing but a sometimes unpleasantly sharp attacks on government and public officials. legitimate exercise of freedom of thought and expression. No man deserves New York Times Co. v. Sullivan (376 U.S. 254). The language of the punishment for his thoughts. Cogitationis poenam nemo meretur. And as political arena, like the language used in labor disputed is often vituperative, the late Justice Oliver W. Holmes stated in the case of U.S. v. Schwimmer, abusive, and inexact. We agree with petitioner that his only offense was a 279 U.S. 644, ". . . if there is any principle of the Constitution that more kind of very crude offensive method of stating a political opposition to the imperatively calls for attachment than any other it is the principle of free President." thought — not free thought for those who agree with us but freedom for the thought that we hate." In the case before us, there is no teaching of the moral propriety of a resort to violence, much less an advocacy of force or a conspiracy to organize the We have adopted the concept that freedom of expression is a "preferred" use of force against the duly constituted authorities. The alleged remark right and, therefore, stands on a higher level than substantive economic or about the likelihood of violent struggle unless reforms are instituted is not a other liberties. The primacy, the high estate accorded freedom of expression threat against the government. Nor is it even the uninhibited, robust, caustic, is a fundamental postulate of our constitutional system. (Gonzales v. or unpleasantly sharp attack which is protected by the guarantee of free Commission on Elections, 29 SCRA 835). As explained by Justice Cardozo speech. Parenthetically, the American case of Brandenburg v. Ohio (395 in Palko v. Connecticut (302 U.S. 319) this must be so because the lessons U.S. 444) states that the constitutional guarantees of free speech and free of history, both political and legal, illustrate that freedom of thought and press do not permit a State to forbid or proscribe advocacy of the use of speech is the indispensable condition of nearly every other form of freedom. force or of law violation except where such advocacy is directed to inciting Protection is especially mandated for political discussions. This Court is or producing imminent lawless action and is likely to incite or produce such particularly concerned when allegations are made that restraints have been action. The words which petitioner allegedly used according to the best imposed upon mere criticisms of government and public officials. Political recollections of Mr. Lovely are light years away from such type of discussion is essential to the ascertainment of political truth. It cannot be the proscribed advocacy. basis of criminal indictments. Political discussion even among those opposed to the present administration "Q. Did you suspect any relation between Cabarrus and Jovito Salonga, is within the protective clause of freedom of speech and expression. The why did you implicate Jovito Salonga? same cannot be construed as subversive activities per se or as evidence of "A. No, your Honor. I did not try to implicate Salonga. membership in a subversive organization. Under Presidential Decree No. 885, Section 3, paragraph 6, political discussion will only constitute prima It should be noted that after Lovely's testimony, the prosecution manifested facie evidence of membership in a subversive organization if such to the court that it was adopting him as a prosecution witness. Therefore, the discussion amounts to: prosecution became irreversively bound by Lovely's disclaimers on the "(6) Conferring with officers or other members of such association or witness stand, that it was not his intention "to do some kind of bombing organization in furtherance of any plan or enterprise thereof." against the government" and that he "did not try to implicate Salonga", especially since Lovely is the sole witness adopted by the prosecution who As stated earlier, the prosecution has failed to produce evidence that would could supposedly establish the link between the petitioner and the bombing establish any link between petitioner and any subversive organization. Even incidents. if we lend credence to Lovely's testimony that a political discussion took place at Daza's birthday party, no proof whatsoever was adduced that such The respondent court should have taken these factors into consideration discussion was in furtherance of any plan to overthrow the government before concluding that a prima facie case exists against the petitioner. through illegal means. The alleged opinion that violent struggle is likely Evidence must not only proceed from the mouth of a credible witness but it unless reforms are instituted by no means shows either advocacy of or must be credible in itself such as the common experience and observation of incitement to violence or furtherance of the objectives of a subversive mankind can approve as probable under the circumstances. (People v. organization. Dayad, 56 SCRA 439). In the case at bar, the prosecution cannot even present a credible version of the petitioner's role in the bombings even if it Lovely also declared that he had nothing to do with the bombing on August ignores the subsequent disclaimers of Lovely and without relying on mere 22, 1980, which was the only bombing incident that occurred after his affidavits including those made by Lovely during his detention. arrival in Manila on August 20, and before the YMCA explosion on September 6, 1980. (See TSN, pp. 63-63, July 8, 1981). He further testified The resolution dated January 4, 1982 suffers from the same defect. In this that: resolution, Lovely's previous declarations about the bombings as part of the "WITNESS: alleged destabilization plan and the people behind the same were accorded "Actually, it was not my intention to do some kind of bombing against the such credibility by the respondent judge as if they had already been proved government. My bombing mission was directed against the particular beyond reasonable doubt. family (referring to the Cabarrus family). [TSN, p. 11, July 9, 1981] [Rollo, p. 10] The purpose of a preliminary investigation is to secure the innocent against hasty, malicious and oppressive prosecution, and to protect him from an Such a statement wholly negates any politically motivated or subversive open and public accusation of crime, from the trouble, expense and anxiety assignment which Lovely was supposed to have been commissioned to of a public trial, and also to protect the state from useless and expensive perform upon the orders of his co-accused and which was the very reason trials. (Trocio v. Manta, 118 SCRA 241; citing Hashim v. Boncan, 71 Phil. why they were charged in the first place. The respondent judge also asked 216). The right to a preliminary investigation is a statutory grant, and to Lovely about the possible relation between Cabarrus and petitioner: withhold it would be to transgress constitutional due process. (See People v. "COURT: Oandasa, 25 SCRA 277) However, in order to satisfy the due process clause it is not enough that the preliminary investigation is conducted in the sense Insofar as the absence of a prima facie case to warrant the filing of of making sure that a transgressor shall not escape with impunity. A subversion charges is concerned, this decision has been rendered moot and preliminary investigation serves not only the purposes of the State. More academic by the action of the prosecution. important, it is a part of the guarantees of freedom and fair play which are birthrights of all who live in our country. It is, therefore, imperative upon Respondent Fiscal Sergio Apostol correctly points out, however, that he is the fiscal or the judge as the case may be, to relieve the accused from the not precluded from filing new charges for the same acts because the pain of going through a trial once it is ascertained that the evidence is petitioner has not been arraigned and double jeopardy does not apply. In insufficient to sustain a prima facie case or that no probable cause exists to that sense, the case is not completely academic. form a sufficient belief as to the guilt of the accused. Although there is no Recent developments in this case serve to focus attention on a not too well general formula or fixed rule for the determination of probable cause since known aspect of the Supreme Court's functions. the same must be decided in the light of the conditions obtaining in given situations and its existence depends to a large degree upon the finding or The setting aside or declaring void, in proper cases, of intrusions of State opinion of the judge conducting the examination, such a finding should not authority into areas reserved by the Bill of Rights for the individual as disregard the facts before the judge nor run counter to the clear dictates of constitutionally protected spheres where even the awesome powers of reasons (See La Chemise Lacoste, S.A. v. Fernandez, 129 SCRA 391). The Government may not enter at will is not the totality of the Court's functions. judge or fiscal, therefore, should not go on with the prosecution in the hope that some credible evidence might later turn up during trial for this would The Court also has the duty to formulate guiding and controlling be a flagrant violation of a basic right which the courts are created to constitutional principles, precepts, doctrines, or rules. It has the symbolic uphold. It bears repeating that the judiciary lives up to its mission by function of educating bench and bar on the extent of protection given by vitalizing and not denigrating constitutional rights. So it has been before. It constitutional guarantees. should continue to be so. (Mercado v. Court of First Instance of Rizal, 116 SCRA 93) In dela Camara v. Enage (41 SCRA 1), the petitioner who questioned a P1,195,200.00 bail bond as excessive and, therefore, constitutionally void, The Court had already deliberated on this case, a consensus on the Court's escaped from the provincial jail while his petition was pending. The petition judgment had been arrived at, and a draft ponencia was circulating for became moot because of his escape but we nonetheless rendered a decision concurrences and separate opinions, if any, when on January 18, 1985, and stated: respondent Judge Rodolfo Ortiz granted the motion of respondent City "The fact that the case is moot and academic should not preclude this Fiscal Sergio Apostol to drop the subversion case against the petitioner. Tribunal from setting forth in language clear and unmistakable, the Pursuant to instructions of the Minister of Justice, the prosecution restudied obligation of fidelity on the part of lower court judges to the unequivocal its evidence and decided to seek the exclusion of petitioner Jovito Salonga command of the Constitution that excessive bail shall not be required." as one of the accused in the information filed under the questioned resolution. In Gonzales v. Marcos (65 SCRA 624) whether or not the Cultural Center of the Philippines could validly be created through an executive order was We were constrained by this action of the prosecution and the respondent mooted by Presidential Decree No. 15, the Center's new charter pursuant to Judge to withdraw the draft ponencia from circulating for concurrences and the President's legislative powers under martial law. Still, this Court signatures and to place it once again in the Court's crowded agenda for discussed the constitutional mandate on the preservation and development further deliberations. of Filipino culture for national identity. (Article XV, Section 9, Paragraph 2 the petition should have been resolved on the merits because it posed of the Constitution) important legal questions.

In the habeas corpus case of Aquino, Jr., v. Enrile, 59 SCRA 183), during Babst, et al. vs. National Intelligence Board, Special Committee No. 2, et the pendency of the case, 26 petitioners were released from custody and one al., G.R. No. 62992, Sept. 2, 1984, was a petition for prohibition to restrain withdrew his petition. The sole remaining petitioner was facing charges of the respondents from interrogating the petitioners, members of the print murder, subversion, and illegal possession of firearms. The fact that the media, on various aspects of their works, feelings, sentiments, beliefs, petition was moot and academic did not prevent this Court in the exercise of associations and even their private lives. Again the majority of this Court its symbolic function from promulgating one of the most voluminous dismissed the petition because the assailed proceedings had come to an end decisions ever printed in the Reports. thereby rendering the petition moot and academic. In dismissing the petition a short and mild note of concern was added. And again Justice Teehankee In this case, the respondents agree with our earlier finding that the and the undersigned disagreed with the majority. We expressed the view prosecution evidence miserably fails to establish a prima facie case against that this Court should rule squarely on the matters raised in the petition the petitioner, either as a co-conspirator of a destabilization plan to rather than dismiss it for having become moot and academic. overthrow the government or as an officer or leader of any subversive organization. They have taken the initiative of dropping the charges against I am glad that this Court has abandoned its cavalier treatment of petitions by the petitioner. We reiterate the rule, however, that this Court will not dismissing them on the ground that they have become moot and academic validate the filing of an information based on the kind of evidence against and stopped there. I am glad it has reverted to De la Camara vs. Enage, the petitioner found in the records. Gonzales vs. Marcos and Aquino vs. Enrile which are mentioned in the ponencia of Justice Gutierrez. WHEREFORE, the petition is DISMISSED for having become moot and academic. I agree with the ponencia of Justice Gutierrez that because the subversion SO ORDERED. charges against the petitioner had been dropped by the trial court on January 18, 1985, there is no longer any need to prohibit the respondents from Fernando, C.J., Teehankee, Makasiar, Concepcion, Jr., Melencio-Herrera, prosecuting Criminal Case No. Q-18606 insofar as he is concerned. Plana, Escolin, Relova and Cuevas, JJ., concur. Aquino, De la Fuente and Alampay, JJ., took no part. I am not revealing any confidential matter by saying that the initial action of this Court was to grant the petition, i.e. prohibit the prosecution of the Separate Opinions petitioner. This is manifest from the ponencia of Justice Gutierrez. I regret ABAD SANTOS, J., concurring: that on this matter the Court has been pre-empted by a "first strike" which Del Castillo vs. Ponce Enrile, G.R. No. 62119, August 27, 1984, 131 SCRA has occurred once too often. 405, was a petition for the writ of habeas corpus. Before this Court could finally act on the petition, the subject was released and for that reason the Justice Gutierrez states that, "The Court had already deliberated on this majority of this Court resolved to dismiss the petition for having become case, and a consensus on the Court's judgment had been arrived at." Let me moot and academic. Justice Teehankee and the undersigned disagreed with add that the consensus had taken place as early as October 24, 1984, and the the majority; we expressed the view that despite the release of the subject, decision started to circulate for signature on November 2, 1984. Alas, on January 18, 1985, the decision was still circulating - overtaken by events. The decision could have had a greater impact had it been promulgated prior to the executive action. HADJI IBRAHIM SOLAY PANGANDAMAN, MAGAMBAAN 2. ID.; ID.; WARRANT OF ARREST; COMPLETION OF PANGANDAMAN, MACARIAN PANGANDAMAN, MAMINTAL ENTIRE PROCEDURE OF PRELIMINARY INVESTIGATION, PANGANDAMAN, PACALUNDO PANGANDAMAN, NOT INDISPENSABLE TO ISSUANCE THEREOF. — While Rule 20 MANGORAMAS PANGANDAMAN, MACADAOB P. provides is that no complaint or information for an offense cognizable by PANGORANGAN, KILATUN PANGANDAMAN, MARIO the Regional Trial Court may be filed without completing the procedure, PANGANDAMAN, MACABIDAR PANGANDAMAN, PUYAT P. nowhere is it provided that the entire procedure must be completed before a ROMAMPAT, SANTORANI P. DIMAPENGEN, NASSER P. warrant of arrest may issue. The rule is and has always been that such DIMAPENGEN and DIAMA OPAO, petitioners, issuance need only await a finding of probable cause as provided by Sec. 6 vs. DIMAPORO T. CASAR, AS MUNICIPAL CIRCUIT TRIAL JUDGE of Rule 112, not the completion of the entire procedure of preliminary OF POONABAYABAO, TAMPARAN AND MASIU, LANAO DEL SUR investigation. and THE PEOPLE OF THE PHILIPPINES, respondents. 3. ID.; ID.; ID.; MEANING OF "SEARCHING QUESTIONS G.R. No. 71782 AND ANSWERS". — In Luna vs. Plaza, this Court ruled that the term April 14, 1988 "searching questions and answers" means — ". . . only, taking into consideration the purpose of the preliminary examination which is to SYLLABUS determine "whether there is a reasonable ground to believe that an offense 1. REMEDIAL LAW; CRIMINAL PROCEDURE; has been committed and the accused is probably guilty thereof so that a PRELIMINARY INVESTIGATION; STAGES TO BE OBSERVED warrant of arrest may be issued and the accused held for trial," such BY A JUDGE OF AN INFERIOR COURT AUTHORIZED TO questions as have tendency to show the commission of a crime and the CONDUCT PRELIMINARY INVESTIGATION OVER CRIMES perpetuator thereof. What would be searching questions would depend on COGNIZABLE BY REGIONAL TRIAL COURT. — A preliminary what is sought to be inquired into, such as: the nature of the offense, the investigation of any crime cognizable by the Regional Trial Courts, a judge date, time, and place of its commission, the possible motives for its of an inferior court (other than in Metro-Manila or the chartered cities, commission; the subject, his age, education, status, financial and social where no authority to conduct preliminary investigation is vested in such circumstances, his attitude toward the investigation, social attitudes, officials) must observe the procedure prescribed in Section 3 of Rule 112, opportunities to commit the offense; the victim, his age, status, family 1985 Rules on Criminal Procedure. And although not specifically so responsibilities, financial and social circumstances, characteristics, etc. The declared, the procedure mandated by the Rule actually consists of two points that are the subject of inquiry may differ from case to case. The phases or stages. The first phase consists of an ex-parte inquiry into the questions, therefore must to a great degree depend upon the Judge making sufficiency of the complaint and the affidavits and other documents offered the investigation . . ." in support thereof. The second phase which gives the respondent opportunity to present evidence concludes with the Judge rendering his 4. ID.; ID.; ID.; WARRANT ISSUE AGAINST FIFTY JOHN resolution, either for dismissal of the complaint or holding the respondent DOES, VOID FOR BEING GENERAL IN NATURE. — A warrant is for trial, to the provincial fiscal for appropriate action. (Rule 112, 1985 issued against fifty (50) "John Does" not one of whom the witnesses to the Criminal Procedure) complaint could or would identify, it is of the nature of a general warrant, one of a class of writs long proscribed as unconstitutional and once anathematized as "totally subversive of the liberty of the subject." Clearly violative of the constitutional injunction that warrants of arrest should particularly describe the person or persons to be seized, the warrant must, as suffering casualties. Another version has it that a group that was on its way regards its unidentified subjects, be voided. to another place, Lalabuan, also in Masiu, had been ambushed.

5. ID.; ID.; PRELIMINARY INVESTIGATION; WHERE THE On the following day, Atty. Mangurun Batuampar, claiming to represent the PROVINCIAL FISCAL ANNOUNCED HIS INTENTION TO widow of one of the victims, filed a letter-complaint with the Provincial INVESTIGATE THE INCIDENT, INVESTIGATING JUDGE Fiscal at Marawi City, asking for a "full blast preliminary investigation" of SHOULD ENDORSE THE SAME TO THE FORMER. — In a case the incident. The letter adverted to the possibility of innocent persons being where the Fiscal announced his intention to conduct his own inquiry, the implicated by the parties involved on both sides — none of whom was, judge although he is not legally inhibited should as a courtesy endorse to the however, identified — and promised that supporting affidavits would former the investigation of the case filed with him. The action and final shortly be filed. Immediately the Provincial Fiscal addressed a "1st resolution of the respondent Judge after completing the second stage of the indorsement" to the respondent Judge, transmitting Atty. Batuampar's letter preliminary investigation are subject to review by the Provincial Fiscal. and requesting that "all cases that may be filed relative . . . (to the incident) Practical considerations of expediency and the avoidance of the duplication that happened in the afternoon of July 27, 1985," be forwarded to his office, of work dictate that the latter official be permitted to take over the which "has first taken cognizance of said cases." investigation even before the Municipal Judge completes his own inquiry. No case relative to the incident was, however, presented to the respondent Judge until Saturday, August 10, 1985, when a criminal complaint for D E C I S I O N multiple murder was filed before him by P.C. Sgt. Jose L. Laru-an, which NARVASA, J p: was docketed as Case No. 1748. On that same day, the respondent Judge "examined personally all (three) witnesses (brought by the sergeant) under The petitioners ask this Court: oath thru . . . (his) closed and direct supervision," reducing to writing the 1) to annul the warrant for their arrest issued by respondent Judge questions to the witnesses and the latter's answers. Thereafter the Judge Dimaporo T. Casar of the Municipal Circuit Court of Masiu, Lanao del Sur, "approved the complaint and issued the corresponding warrant of arrest" in Criminal Case No. 1748 entitled "People vs. Hadji Ibrahim Solay against the fourteen (14) petitioners (who were named by the witnesses) and Pangandaman, et al.;" fifty (50) "John Does." 2) to prohibit the Judge from taking further cognizance of said Criminal Case No. 1748; and An "ex-parte" motion for reconsideration was filed on August 14, 1985 by 3) to compel the Judge to forward the entire record of Criminal Case Atty. Batuampar (joined by Atty. Pama L. Muti), seeking recall of the No. 1748 to the Provincial Fiscal of Lanao del Sur for proper disposition. warrant of arrest and subsequent holding of a "thorough investigation" on the ground that the Judge's initial investigation had been "hasty and Their plea is essentially grounded on the claim that the warrant for their manifestly haphazard" with "no searching questions" having been arrest was issued by the respondent Judge without a proper preliminary propounded. The respondent Judge denied the motion for "lack of basis;" investigation. The Solicitor General agrees and recommends that their hence the present petition. petition be granted and the warrant of arrest voided. On July 27, 1985, a shooting incident occurred in Pantao, Masiu, Lanao del While they concede the authority of the respondent Judge to conduct a Sur, which left at least five persons dead and two others wounded. What in preliminary investigation of the offenses involved, which are cognizable by fact transpired is still unclear. According to one version, armed men had Regional Trial Courts, the petitioners and the Solicitor General argue that attacked a residence in Pantao, Masiu, with both attackers and defenders the Judge in the case at bar failed to conduct the investigation in accordance with the procedure prescribed in Section 3, Rule 112 of the Rules of Court; the case, to the provincial fiscal; or (2) that the complaint and the and that failure constituted a denial to petitioners of due process which supporting documents show sufficient cause to continue with the inquiry nullified the proceedings leading to the issuance of the warrant for the and this ushers in the second phase. petitioners' arrest. It is further contended that August 10, 1985 was a Saturday during which "Municipal Trial Courts are open from 8:00 a.m. to This second phase is designed to give the respondent notice of the 1:00 p.m. only, . . ." and ". . . it would hardly have been possible for complaint, access to the complainant's evidence and an opportunity to respondent Judge to determine the existence of probable cause against submit counter-affidavits and supporting documents. At this stage also, the sixty-four (64) persons whose participations were of varying nature and Judge may conduct a hearing and propound to the parties and their degree in a matter of hours and issue the warrant of arrest in the same day; witnesses questions on matters that, in his view, need to be clarified. The and that there was undue haste and an omission to ask searching questions second phase concludes with the Judge rendering his resolution, either for by the Judge who relied "mainly on the supporting affidavits which were dismissal of the complaint or holding the respondent for trial, which shall be obviously prepared already when presented to him by an enlisted PC transmitted, together with the record, to the provincial fiscal for appropriate personnel as investigator." action.

The petitioners further assert that the respondent Judge conducted the The procedure above described must be followed before the complaint or preliminary investigation of the charges ". . . in total disregard of the information is filed in the Regional Trial Court. Failure to do so will result Provincial Fiscal . . ." who, as said respondent well knew, had already taken in a denial of due process. cognizance of the matter twelve (12) days earlier and was poised to conduct his own investigation of the same; and that issuance of a warrant of arrest Here, no information is filed in the Regional Trial Court. There is no against fifty (50) "John Does" transgressed the Constitutional provision pretense that the preliminary investigation has been completed, insofar as requiring that such warrants should particularly describe the persons or the respondent Judge is concerned, and that he does not intend to undertake things to be seized. the second phase. In this situation, it cannot be said that he has failed to observe the prescribed procedure. What has happened is simply that after There can be no debate about the proposition that in conducting a receiving the complaint and examining the complainant's witnesses, and preliminary investigation of any crime cognizable by the Regional Trial having come to believe, on the basis thereof, that the offenses charged had Courts, a judge of an inferior court (other than in Metro-Manila or the been committed, the respondent Judge issued the warrant now complained chartered cities, where no authority to conduct preliminary investigation is of against the fourteen (14) respondents (now petitioners) named and vested in such officials) must observe the procedure prescribed in Section 3 identified by the witnesses as the perpetrators of the killings and injuries, as of Rule 112, 1985 Rules on Criminal Procedure. And although not well as against 50 "John Does." specifically so declared, the procedure mandated by the Rule actually consists of two phases or stages. The real question, therefore, is whether or not the respondent Judge had the power to issue the warrant of arrest without completing the entire prescribed The first phase consists of an ex-parte inquiry into the sufficiency of the procedure for preliminary investigation. Stated otherwise, is completion of complaint and the affidavits and other documents offered in support thereof. the procedure laid down in Section 3 of Rule 112 a condition sine qua non And it ends with the determination by the Judge either: (1) that there is no for the issuance of a warrant of arrest? ground to continue with the inquiry, in which case he dismisses the complaint and transmits the order of dismissal, together with the records of There is no requirement that the entire procedure for preliminary "Appellant should bear in mind that a preliminary investigation such as was investigation must be completed before a warrant of arrest may be issued. conducted by the Justice of the Peace has for its purpose only the What the Rule provides is that no complaint or information for an offense determination of whether a crime has been committed and whether there is cognizable by the Regional Trial Court may be filed without completing the probable cause to believe the accused guilty thereof, and if so, the issuance procedure. But nowhere is it provided that the procedure must be completed of a warrant of arrest. And it should not be forgotten that a preliminary before a warrant of arrest may issue. Indeed, it is the contrary that is true. investigation has two stages: First, a preliminary examination of the The present Section 6 of the same Rule 112 clearly authorizes the municipal complainant and his witnesses prior to the arrest of the accused; and, trial court to order the respondent's arrest even before opening the second second, the reading to the accused after his arrest of the complaint or phase of the investigation if said court is satisfied that a probable cause information filed against him, and his being informed of the substance of exists and there is a necessity to place the respondent under immediate the evidence against him, after which he is allowed to present evidence in custody in order not to frustrate the ends of justice. his favor, if he so desires. Probable cause, in regard to the first stage of preliminary investigation, depends on the discretion of the judge or "SECTION 6. When warrant of arrest may issue. — magistrate empowered to issue the warrant of arrest. It suffices that facts are xxx xxx xxx presented to him to convince him, not that a person has committed the (b) By the Municipal Trial Court. — If the municipal trial judge crime, but that there is probable cause to believe that such person conducting the preliminary investigation is satisfied after an examination in committed the crime charged. The proceeding is generally ex parte unless writing and under oath of the complainant and his witnesses in the form of the defendant desires to be present and while under the old Rules the Justice searching questions and answers, that a probable cause exists and that there of the Peace or investigating officer must take the testimony of the is a necessity of placing the respondent under immediate custody in order complainant and the latter's witnesses under oath, only the testimony of the not to frustrate the ends of justice, he shall issue a warrant of arrest." complainant shall be in writing and only an abstract of the testimony of the other is required. Regarding preliminary investigation, it has thus been ruled This was equally true under the former rules, where the first phase of the that 'the occasion is not for the full and exhaustive display of the parties' investigation was expressly denominated "preliminary examination" to evidence; it is for the presentation of such evidence only as may engender distinguish it from the second phase, or preliminary investigation proper. well-grounded belief that an offense has been committed and that the Thus, the former Section 6 of Rule 112 provided: accused is probably guilty thereof.' . . ." "SECTION 6. Warrant of arrest, when issued. — If the judge be satisfied from the preliminary examination conducted by him or by the investigating The rule on arrest after preliminary examination has, of course, been officer that the offense complained of has been committed and that there is modified somewhat since the occurrence of the facts upon which Mayuga reasonable ground to believe that the accused has committed it, he must was decided, but not to abrogate the authority of the investigating judge to issue a warrant or order for his arrest." order such arrest, and only to prescribe the requirement that before he may do so, he must examine the witnesses to the complaint, the examination to In Mayuga vs. Maravilla, this Court found occasion to dwell in some detail be under oath and reduced to writing in the form of searching questions and on the process of preliminary investigation and, incidentally, to affirm the answers. This modification was introduced by Republic Act 3838, approved power of a justice of the peace or municipal judge conducting a preliminary June 22, 1963, amending Section 87 of the Judiciary Act of 1948, and the investigation to order the arrest of the accused after the first stage "searching questions and answers" requirement is incorporated in the (preliminary examination), saying: present Section 6 of Rule 112 already quoted. The argument, therefore, must be rejected that the respondent Judge acted this Court that the finding of probable cause against the petitioners was with grave abuse of discretion in issuing the warrant of arrest against neither arbitrary nor unfounded. petitioners without first completing the preliminary investigation in accordance with the prescribed procedure. The rule is and has always been The three witnesses to the complaint, Misandoning Monasprang, a student, that such issuance need only await a finding of probable cause, not the Lawandato Ripors, an engineering graduate, and Sanny Monib, a farmer, completion of the entire procedure of preliminary investigation. gave mutually corroborative accounts of the incident. Under separate questioning, they declared that they were members of a party that was Also without appreciable merit is petitioners' other argument that there was passing by Pantao on its way to Lalabuan from Talaguian, all in Masiu, scarcely time to determine probable cause against sixty-four persons (the Lanao del Sur, at about 10:00 a.m. on July 27, 1985, when they were fourteen petitioners and fifty "Does") within a matter of hours on a Saturday ambushed and fired upon by an armed group which included the petitioners when municipal trial courts are open only from 8:00 a.m. to 1:00 p.m. That and about fifty other unidentified persons; that five of the party had been argument founders upon the respondent Judge's positive affirmations that he killed and two (the witnesses Lawandato Ripors and Sanny Monib) had personally and closely examined under oath the three witnesses to the wounded; that even after they had killed their victims, the ambushers had complaint and that he had issued the warrant of arrest "believing that the continued to fire at the dead bodies; that the witnesses managed to escape offense thus filed had been committed." Nothing in the record before this their attackers and return to Talaguian, where they informed their relatives Court belies or discredits those affirmations which have, besides, the benefit about what had happened, and thence went to the municipal hall in Masiu to of the legal presumption that official duty has been regularly performed. 26 report to the authorities; that the dead victims were recovered only late in The contention that the witnesses to the complaint had merely sworn before the afternoon of that day because the authorities could not "penetrate" the the respondent Judge to statements prepared beforehand and submitted by a area and the ambushers refused to release the bodies; and that the ambush military investigator 27 must, in view of the foregoing considerations and was an offshoot of a grudge between the families of the ambushers and for lack of any support in the record, be dismissed as mere speculation. those of the victims.

The same argument also unwarrantedly assumes that the respondent Judge The witnesses named and identified the dead victims as Cadar Monasprang, limited the proceedings on preliminary examination to the usual Saturday Macacrao Guiling, Macrang Hadji Alawi, Alicman Ripors and Malabato office hours of 8:00 a.m. to 1:00 p.m., in addition to not making any Diator. All of them also identified by name each of the fourteen petitioners persuasive showing that such proceedings could not have been completed as members of the ambush group. The respondent Judge can hardly be within that time-frame. For all that appears, said respondent could have put faulted for finding enough cause to hold the petitioners named in the off the 1:00 p.m. adjournment until he had finished interrogating the statements of three eyewitnesses to killings perpetrated in broad daylight. witnesses to his satisfaction. And there is really nothing unusual in In Luna vs. Plaza, this Court ruled that the term "searching questions and completing within a three-hour period the questioning of three witnesses in answers" means — a preliminary examination to determine the existence of probable cause. ". . . only, taking into consideration the purpose of the preliminary examination which is to determine "whether there is a reasonable ground to The record which, lacking proof to the contrary, must be accepted as an believe that an offense has been committed and the accused is probably accurate chronicle of the questioned proceedings, shows prima facie that the guilty thereof so that a warrant of arrest may be issued and the accused held respondent Judge had personally examined the witnesses to the complaint, for trial," such questions as have tendency to show the commission of a and a consideration of the latter's sworn answers to his questions satisfies crime and the perpetuator thereof. What would be searching questions would depend on what is sought to be inquired into, such as: the nature of the offense, the date, time, and place of its commission, the possible Be that as it may, since the action and final resolution of the respondent motives for its commission; the subject, his age, education, status, financial Judge after completing the second stage of the preliminary investigation are and social circumstances, his attitude toward the investigation, social subject to review by the Provincial Fiscal, practical considerations of attitudes, opportunities to commit the offense; the victim, his age, status, expediency and the avoidance of duplication of work dictate that the latter family responsibilities, financial and social circumstances, characteristics, official be permitted to take over the investigation even in its present stage. etc. The points that are the subject of inquiry may differ from case to case. The questions, therefore must to a great degree depend upon the Judge WHEREFORE, the warrant complained of is upheld and declared valid making the investigation . . ." insofar as it orders the arrest of the petitioners. Said warrant is voided to the extent that it is issued against fifty (50) "John Does." The respondent Judge Upon this authority, and considering what has already been stated above, is directed to forward to the Provincial Fiscal of Lanao del Sur the record of this Court is not prepared to question the propriety of the respondent Judge's the preliminary investigation of the complaint in Criminal Case No. 1728 of finding of probable cause or substitute its judgment for his in the matter of his court for further appropriate action. Without pronouncement as to costs. what questions to put to the witnesses during the preliminary examination. SO ORDERED. Upon the facts and the law, therefore, the warrant of arrest in question Teehankee, C.J., Cruz, Gancayco and Griño-Aquino, JJ., concur. validly issued against the petitioners, such issuance having been ordered after proceedings, to which no irregularity has been shown to attach, in which the respondent Judge found sufficient cause to commit the petitioners to answer for the crime complained of.

Insofar, however, as said warrant is issued against fifty (50) "John Does" not one of whom the witnesses to the complaint could or would identify, it is of the nature of a general warrant, one of a class of writs long proscribed as unconstitutional and once anathematized as "totally subversive of the liberty of the subject." Clearly violative of the constitutional injunction that warrants of arrest should particularly describe the person or persons to be seized, the warrant must, as regards its unidentified subjects, be voided.

The fact that the Provincial Fiscal may have announced his intention of investigating the incident himself did not, in the view of the Court, legally inhibit the respondent Judge from conducting his own inquiry into the matter if, as is made to appear here, it was regularly brought before him and no formal complaint was filed before the Fiscal. Courtesy may have dictated that in those circumstances he leave the investigation to the Fiscal and simply endorse to the latter the complaint filed with him; duty did not, and if he nonetheless chose to conduct his own investigation, nothing in the rules states or implies that he could not do so. PEOPLE OF THE PHILIPPINES and ALYNN PLEZETTE DY, SYLLABUS petitioners, 1. REMEDIAL LAW; CRIMINAL PROCEDURE; vs. COURT OF APPEALS, BILLY CERBO and JONATHAN CERBO, PRELIMINARY INVESTIGATION; DETERMINATION OF respondents. PROBABLE CAUSE, AN EXECUTIVE FUNCTION. — The determination of probable cause during a preliminary investigation is a G.R. No. 126005 function that belongs to the public prosecutor. It is an executive function, January 21, 1999 the correctness of the exercise of which is a matter that the trial court itself does not and may not be compelled to pass upon. Indeed, the public SYNOPSIS prosecutor has broad discretion to determine whether probable cause exists Jonathan Cerbo was charged in an information for murder in connection and to charge those whom he or she believes to have committed the crime with the fatal shooting of Rosalinda Dy inside the office of his father, Billy as defined by law. Otherwise stated, such official has the quasi-judicial Cerbo. The information was amended to include Billy Cerbo as one of the authority to determine whether or not a criminal case must be filed in court. accused and a warrant for his arrest was correspondingly issued. Therefore, if the information is valid on its face, and there is no showing of Respondent judge, in a motion to quash warrant of arrest, dismissed the manifest error, grave abuse of discretion and prejudice on the part of the case against Billy for insufficiency of evidence, recalled the warrant issued, public prosecutor, the trial court should respect such determination. and ordered the prosecution to withdraw its amended information and to file a new one charging Jonathan Cerbo only. The private prosecutor's motion 2. ID.; ID.; ID.; PURPOSE. — The primary objective of a for reconsideration was denied, hence, his resort to the Court of Appeals. preliminary investigation is to free respondent from the inconvenience, The appellate court, in affirming the trial court held that the trial court RTC expense, ignominy and stress of defending himself/herself in the course of a has authority to reverse the prosecutor's finding of probable cause and formal trial, until the reasonable probability of his or her guilt in a more or dismiss the information on the ground that the evidence presented did not less summary proceeding by a competent office designated by law for that substantiate the charge. Hence, this recourse. purpose. Secondarily, such summary proceeding also protects the state from the burden of the unnecessary expense and effort in prosecuting alleged The determination of probable cause to hold a person for trial is a function offenses and in holding trials arising from false, frivolous or groundless that belongs to the public prosecutor, the correctness of the exercise of charges. which is a matter that the trial court itself does not and may not be compelled to pass upon. The judge should not override the public 3. ID.; ID.; ID.; NATURE. — Such investigation is not part of the prosecutor's determination of probable cause on the ground that the trial. A full and exhaustive presentation of the parties' evidence is not evidence presented to substantiate the issuance of a warrant of arrest was required, but only such as may engender a well-grounded belief than an insufficient. offense has been committed and that the accused is probably guilty thereof. By reason of the abbreviated nature of preliminary investigations, a As a general rule, if the information is valid on its face and there is no dismissal of the charges as a result thereof is not equivalent to a judicial showing of manifest error, grave abuse of discretion or prejudice on the part pronouncement of acquittal. Hence, no double jeopardy attaches. of the public prosecutor, courts should not dismiss it for want of evidence because evidentiary matters should be presented and heard during the trial. 4. ID.; ID.; DETERMINATION OF PROBABLE CAUSE TO HOLD A PERSON FOR TRIAL DISTINGUISHED FROM THAT OF ISSUANCE OF WARRANT OF ARREST. — In light of the aforecited decisions of this Court; such justification cannot be upheld. Lest we be too fiscal, therefore, should not go on with the prosecution in the hope that repetitive, we only emphasize three vital matters once more: First, as held in some credible evidence might later turn out during trial, for this would be a Inting, the determination of probable cause by the prosecutor is for a flagrant violation of a basic right which the courts are created to uphold. In purpose different from that which is to be made by the judge. Whether there all, the Court decreed in both cases that there was no basis in law and in fact is reasonable ground to believe that the accused is guilty of the offense for the judicial and executive determination of probable cause. The Court charged and should be held for trial is what the prosecutor passes upon. The also held that the government, while vested with the right and the duty to judge, on the other hand, determines whether a warrant of arrest should be protect itself and its people against transgressors of the law, must perform issued against the accused, i.e., whether there is a necessity for placing him the same in a a manner that would not infringe the perceived violators' right under immediate custody in order not to frustrate the ends of justice. Thus, as guaranteed by the Constitution. We stress that Allado and Salonga even if both should base their findings on one and the same proceeding or constitute exceptions to the general rule and may be invoked only if similar evidence, there should be no confusion as to their distinct objectives. circumstances are clearly shown to exist. But as the foregoing comparisons show, such similarities are absent in the instant case. Hence, the rulings in 5. ID.; ID.; PROBABLE CAUSE FOR ISSUANCE OF the two aforementioned cases cannot apply to it. WARRANT OF ARREST, CONSTRUED. — Probable cause for the issuance of a warrant of arrest is the existence of such facts and 7. ID.; ID.; ID.; ID.; NOT APPLICABLE TO CASE AT BAR. — circumstances that would lead a reasonably discreet and prudent person to However, the present case is not on all four with Allado and Salonga. First. believe that an offense has been committed by the person sought to be Elsa Gumban, the principal eyewitness to the killing of Rosalinda Dy, was arrested. Hence, the judge, before issuing a warrant of arrest, "must satisfy not a participant or conspirator in the commission of said crime. In Allado himself that based on the evidence submitted there is sufficient proof that a and Salonga, however, the main witness were the confessed perpetrators of crime has been committed and that the person to be arrested is probably the crimes, whose testimonies the Court deemed 'tainted'. Second, in the guilty thereof." At this stage of the criminal proceeding, the judge is not yet case at bar, the private respondent was accorded due process, and no tasked to review in detail the evidence submitted during the preliminary precipitate haste or bias during the investigation of the case can be imputed investigation. It is sufficient that he personally evaluates such evidence in to the public prosecutor. On the other hand, the Court noted Allado the determining probable cause. In Webb v. De Leon, we stressed that the judge "undue haste in the filing of the Information and the inordinate interest of merely determines the probability, not the certainty, of guilt of the accused the government" in pursuing the case; and in Salonga, ". . . the failure of the and, in doing so, he need not conduct a de novo hearing. He simply prosecution to show that the petitioner was probably guilty of conspiring to personally reviews the prosecutor's initial determination finding probable commit the crime, the initial disregard of petitioner's constitutional rights cause to see if it is supported by substantial evidence. [and] the massive and damaging publicity made against him. In other words, while the respective sets of evidence before the prosecutors in 6. ID.; ID.; PRELIMINARY INVESTIGATION; RULING IN Allado and Salonga were "utterly insufficient" to support a finding of ALLADO AND SALONGA CASES, EXCEPTIONS TO THE probable cause, the same cannot be said of the present case. GENERAL RULE. — The Court of Appeals anchored its ruling on the pronouncement made in Allado v. Diokno: that there is no reason to hold 8. ID.; ID.; WRITTEN MOTIONS; MUST BE SET FOR the accused for trial and further expose him to an open and public HEARING AND SERVED TO OTHER PARTY; RATIONALE. — It accusation of the crime when no probable cause exists." Citing Salonga v. is settled that every written motion in a trial court must be set for hearing by Cruz Paño, the Court of Appeals pointed out that when there was no prima the applicant and served with the notice of hearing thereof, in such a facie case against a person sought to be charged with a crime, "the judge or manner as to ensure its receipt by the other party. The provisions on this matter in Sections 4 and 5, Rule 15 of the Rules of Court, are categorical "On August 30, 1993, Rosalinda Dy, according to the petition, was shot at and mandatory in character. Under Section 6 of the said rule, no motion pointblank range by private respondent Jonathan Cerbo in the presence and shall be acted upon by the court without proof of service thereof. The at the office of his father, private respondent Billy Cerbo at Purok 9, rationale for this rule is simple; unless the movants set the time and the Poblacion, Nabunturan, Davao. place of hearing, the court will be unable to determine whether the adverse parties agree or object to the motions, since the rules themselves do not fix "On September 2, 1993, eyewitness Elsa B. Gumban executed an affidavit any period within which they may file their replies or oppositions. positively identifying private respondent Jonathan Cerbo as the assailant. (Annex C, Rollo, p. 34). D E C I S I O N PANGANIBAN, J p: "On September 20, 1993, private respondent Jonathan Cerbo executed a In our criminal justice system, the public prosecutor has the quasi-judicial counter-affidavit interposing the defense that the shooting was accidental discretion to determine whether or not a criminal case should be filed in (Annex D, Rollo, pp. 35-36). court. Courts must respect the exercise of such discretion when the information filed against the accused is valid on its face, and no manifest "On October 6, 1993, the 3rd Municipal Circuit Trial Court of Nabunturan- error, grave abuse of discretion or prejudice can be imputed to the public Mawab, Davao, after a preliminary investigation, found "sufficient ground prosecutor. to engender a well-founded belief" that the crime of murder has been committed by private respondent Jonathan Cerbo and resolved to forward The Case the entire records of the case to the provincial prosecutor at Tagum, Davao Before us is a Petition for Review under Rule 45, seeking to reverse the (Annex E, Rollo, pp. 37-38). June 28, 1996 Decision and the August 27, 1996 Resolution of the Court of Appeals in CA-GR SP No. 36018. The assailed Decision dismissed the "After [an] information for murder was filed against Jonathan Cerbo, Petition for Certiorari filed by the petitioners, which sought to annul and set petitioner Alynn Plezette Dy, daughter of the victim Rosalinda Dy, aside two Orders of the Regional Trial Court of Nabunturan, Davao: the executed an affidavit-complaint charging private respondent Billy Cerbo of June 28, 1994 Order dismissing the Information for murder filed against conspiracy in the killing (Annex F, Rollo, p. 39), supported by a Private Respondent Billy Cerbo and the August 18, 1994 Order denying supplemental affidavit of Elsa B. Gumban, alleging "in addition" to her petitioners' motion for reconsideration. previous statement that: '3. In addition to my said sworn statement, I voluntarily and freely The assailed August 27, 1996 Court of Appeals (CA) Resolution likewise aver as follows: denied petitioners' motion for reconsideration. 'a) I vividly recall that while my mistress Rosalinda Go and I were in the office of Billy Cerbo at about 11:45 a.m. on August 30, 1993, Mr. Cerbo The Facts personally instructed me to fetch the food from the kitchen [and to bring it] The case below arose from the fatal shooting of Petitioner Dy's mother, to the office instead of the dining room. Rosalinda Dy, in which the primary suspect was Private Respondent 'b) While bringing the food, Mr. Cerbo again instructed me to place Jonathan Cerbo, son of Private Respondent Billy Cerbo. the food [o]n a corner table and commanded me to sit behind the entrance door and at the same time Mr. Cerbo positioned Rosalinda [on] a chair The procedural and factual antecedents of the case were summarized in the facing the entrance door for an easy target. challenged Decision of the Court of Appeals as follows: 'c) Immediately after Rosalinda was shot, Mr. Billy Cerbo called his 'SO ORDERED.' (Rollo, pp. 29-30). son Jonathan who was running, but did not and ha[s] never bothered to "Private Prosecutor Romeo Tagra filed a motion for reconsideration which bring Rosalinda to a hospital or even apply first aid. was denied by the respondent judge in his second assailed order dated 'd) To my surprise, Mr. Billy Cerbo, instead of bringing Rosalinda to August 18, 1994 (Annex B, Rollo, pp. 31-33)." the hospital, brought her to the funeral parlor and immediately ordered her to be embalmed without even informing her children or any of her The Ruling of the Court of Appeals immediate relatives . . .' Annex G, Rollo, p. 40.) In its 10-page Decision, the Court of Appeals debunked petitioners' assertion that the trial judge committed grave abuse of discretion in "Private respondent Billy Cerbo submitted a counter-affidavit denying the recalling the warrant of arrest and subsequently dismissing the case against allegations of both petitioner Alynn Plezette Dy and Elsa B. Gumban Billy Cerbo. Citing jurisprudence, 4 the appellate court held as follows: (Annex H, Rollo, pp. 41-42). "The ruling is explicit. If upon the filing of the information in court, the trial judge, after reviewing the information and the documents attached thereto, "On or about April 8, 1994, Prosecutor Protacio Lumangtad filed a "Motion finds that no probable cause exists, must either call for the complainant and for leave of court to reinvestigate the case" (Annex I, Rollo, pp. 43-44) the witnesses or simply dismiss the case. which was granted by the respondent judge in an order dated April 28, 1994 (Annex J, Rollo, p. 45). "Petitioners question the applicability of the doctrine laid down in the above[-]mentioned case, alleging that the facts therein are different from the "In his resolution dated May 5, 1994, Prosecutor Lumangtad recommended instant case. We rule that the disparity of facts does not prevent the the filing of an amended information including Billy Cerbo '. . . as one of application of the principle. the accused in the murder case . . .' (Annex K: rollo, pp. 46-49). "We have gone over the supplemental affidavit of Elsa B. Gumban and "Accordingly, the prosecution filed an amended information including Billy taking into account the additional facts and circumstances alleged therein, Cerbo in the murder case. A warrant for his arrest was later issued on May we cannot say that respondent judge gravely abused his discretion in 27, 1994 (Rollo, p. 27). dismissing the case as against private respondent Billy Cerbo for lack of "Private respondent Billy Cerbo then filed a motion to quash warrant of probable cause. arrest arguing that the same was issued without probable cause (Rollo, p. xxx xxx xxx 27). "The prosecution, if it really believed that Billy Cerbo is probably guilty by conspiracy, should have presented additional evidence sufficiently and "On June 28, 1994, respondent Judge issued the first assailed order credibly demonstrating the existence of probable cause. dismissing the case against Billy Cerbo and recalling the warrant for his xxx xxx xxx" arrest[;] the dispositive portion of [the order] reads: In sum, the Court of Appeals held that Judge Eugenio Valles did not 'IN THE LIGHT OF ALL THE FOREGOING, [an] order is hereby issued commit grave abuse of discretion in recalling the warrant of arrest issued DISMISSING the case as against Billy Cerbo only." against Private Respondent Billy Cerbo and subsequently dismissing the Information for murder filed against the private respondent, because the 'Let, therefore, the warrant of arrest, dated May 27, 1994, be RECALLED. evidence presented thus far did not substantiate such charge. 'The prosecution is hereby ordered to withdraw its Amended Information Hence, this petition. and file a new one charging Jonathan Cerbo only. The Assigned Errors "In this special civil action, this Court is being asked to assume the function Petitioner Dy avers: of a public prosecutor. It is being asked to determine whether probable "1) The Court of Appeals gravely erred in holding that the Regional cause exists as regards petitioners. More concretely, the Court is being Trial Court Judge had the authority to reverse [the public prosecutor's] asked to examine and assess such evidence as has thus far been submitted finding of probable cause to prosecute accused . . . and thus dismiss the case by the parties and, on the basis thereof, make a conclusion as to whether or filed by the latter on the basis of a motion to quash warrant of arrest. not it suffices 'to engender a well founded belief that a crime has been "2) The Court of Appeals gravely erred in fully and unqualifiedly committed and that the respondent is probably guilty thereof and should be applying the case of Allado, et al. vs. PACC, et al. G.R. No. 113630, [to] held for trial.' the case at bench despite [the] clear difference in their respective factual backdrop[s] and the contrary earlier jurisprudence on the matter." "It is a function that this Court should not be called upon to perform. It is a function that properly pertains to the public prosecutor, one that, as far as On the other hand, the solicitor general posits this sole issue: crimes cognizable by a Regional Trial Court are concerned, and "Whether the Court of Appeals erred in finding that no probable cause notwithstanding that it involves an adjudicative process of a sort, exists to merit the filing of charges against private respondent Billy Cerbo." exclusively pertains, by law, to said executive officer, the public prosecutor. It is moreover a function that in the established scheme of things, is Essentially, the petitioners are questioning the propriety of the trial court's supposed to be performed at the very genesis of, indeed, prefatorily to, the dismissal, for want of evidence, of the Information for murder against formal commencement of a criminal action. The proceedings before a Private Respondent Billy Cerbo. public prosecutor, it may well be stressed, are essentially preliminary, In resolving this petition, the discussion of the Court will revolve around prefatory and cannot lead to a final, definite and authoritative adjudgment two points: first, the determination of probable cause as an executive and of the guilt or innocence of the persons charged with a felony or crime. judicial function and, second, the applicability of Allado and Salonga to the case at bar. "Whether or not that function has been correctly discharged by the public prosecutor — i.e., whether or not he has made a correct ascertainment of the The Court's Ruling existence of probable cause in a case, is a matter that the trial court itself The petition is meritorious. The trial court erred in dismissing the does not and may not be compelled to pass upon. It is not for instance Information filed against the private respondent. Consequently, the Court of permitted for an accused, upon the filing of the information against him by Appeals was likewise in error when it upheld such ruling. the public prosecutor, to preempt trial by filing a motion with the Trial Court praying for the quashal or dismissal of the indictment on the ground Executive Determination of Probable Cause that the evidence upon which the same is based is inadequate. Nor is it The determination of probable cause during a preliminary investigation is a permitted, on the antipodal theory that the evidence is in truth inadequate, function that belongs to the public prosecutor. It is an executive function, for the complaining party to present a petition before the Court praying that the correctness of the exercise of which is a matter that the trial court itself the public prosecutor be compelled to file the corresponding information does not and may not be compelled to pass upon. The Separate against the accused. (Concurring) Opinion of former Chief Justice Andres R. Narvasa in Roberts v. Court of Appeals succinctly elucidates such point in this wise: xxx xxx xxx" "xxx xxx xxx Indeed, the public prosecutor has broad discretion to determine whether probable cause exists and to charge those whom he or she believes to have committed the crime as defined by law. Otherwise stated, such official has "Such investigation is not part of the trial. A full and exhaustive the quasi-judicial authority to determine whether or not a criminal case must presentation of the parties' evidence is not required, but only such as may be filed in court. Thus in Crespo v. Mogul, we ruled: engender a well-grounded belief than an offense has been committed and "It is a cardinal principle that all criminal actions either commenced by that the accused is probably guilty thereof. By reason of the abbreviated complaint or by information shall be prosecuted under the direction and nature of preliminary investigations, a dismissal of the charges as a result control of the fiscal. The institution of a criminal action depends upon the thereof is not equivalent to a judicial pronouncement of acquittal. Hence, no sound discretion of the fiscal. He may or may not file the complaint or double jeopardy attaches." information, follow or not follow that presented by the offended party, according to whether the evidence, in his opinion, is sufficient or not to Judicial Determination of Probable Cause establish the guilt of the accused beyond reasonable doubt. The reason for The determination of probable cause to hold a person for trial must be placing the criminal prosecution under the direction and control of the fiscal distinguished from the determination of probable cause to issue a warrant of is to prevent malicious or unfounded prosecutions by private persons. . . . arrest, which is a judicial function. The judicial determination of probable Prosecuting officers under the power vested in them by the law, not only cause in the issuance of arrest warrants has been emphasized in numerous have the authority but also the duty of prosecuting persons who, according cases. In Ho v. People, the Court summarized the pertinent rulings on the to the evidence received from the complainant, are shown to be guilty of a subject, as follows: crime committed within the jurisdiction of their office. They have equally "The above rulings in Soliven, Inting and Lim, Sr. were iterated in Allado v. the duty not to prosecute when the evidence adduced is not sufficient to Diokno, where we explained again what probable cause means. Probable establish a prima facie case." cause for the issuance of a warrant of arrest is the existence of such facts and circumstances that would lead a reasonably discreet and prudent person This broad prosecutorial power is however not unfettered, because just as to believe that an offense has been committed by the person sought to be public prosecutors are obliged to bring forth before the law those who have arrested. Hence, the judge, before issuing a warrant of arrest, "must satisfy transgressed it, they are also constrained to be circumspect in filing criminal himself that based on the evidence submitted, there is sufficient proof that a charges against the innocent. Thus, for crimes cognizable by regional trial crime has been committed and that the person to be arrested is probably courts, preliminary investigations are usually conducted. In Ledesma v. guilty thereof." At this stage of the criminal proceeding, the judge is not yet Court of Appeals, we discussed the purposes and nature of a preliminary tasked to review in detail the evidence submitted during the preliminary investigation in this manner: investigation. It is sufficient that he personally evaluates such evidence in determining probable cause. In Webb v. De Leon, we stressed that the judge "The primary objective of a preliminary investigation is to free respondent merely determines the probability, not the certainty, of guilt of the accused from the inconvenience, expense, ignominy and stress of defending and, in doing so, he need not conduct a de novo hearing. He simply himself/herself in the course of a formal trial, until the reasonable personally reviews the prosecutor's initial determination finding probable probability of his or her guilt in a more or less summary proceeding by a cause to see if it is supported by substantial evidence. competent office designated by law for that purpose. Secondarily, such summary proceeding also protects the state from the burden of the xxx xxx xxx unnecessary expense and effort in prosecuting alleged offenses and in "In light of the aforecited decisions of this Court, such justification cannot holding trials arising from false, frivolous or groundless charges. be upheld. Lest we be too repetitive, we only emphasize three vital matters once more: First, as held in Inting, the determination of probable cause by the prosecutor is for a purpose different from that which is to be made by the judge. Whether there is reasonable ground to believe that the accused is the Respondent Court did in this case. Although the prosecutor enjoys the guilty of the offense charged and should be held for trial is what the legal presumption of regularity in the performance of his duties and prosecutor passes upon. The judge, on the other hand, determines whether a functions, which in turn gives his report the presumption of accuracy, the warrant of arrest should be issued against the accused, i.e., whether there is Constitution, we repeat, commands the judge to personally determine a necessity for placing him under immediate custody in order not to probable cause in the issuance of warrants of arrest. This Court has frustrate the ends of justice. Thus, even if both should base their findings on consistently held that a judge fails in his bounden duty if he relies merely on one and the same proceeding or evidence, there should be no confusion as the certification or the report of the investigating officer. to their distinct objectives. xxx xxx xxx" "Second, since their objectives are different, the judge cannot rely solely on Verily, a judge cannot be compelled to issue a warrant of arrest if he or she the report of the prosecutor in finding probable cause to justify the issuance deems that there is no probable cause for doing so. Corollary to this of a warrant of arrest. Obviously and understandably, the contents of the principle, the judge should not override the public prosecutor's prosecutor's report will support his own conclusion that there is reason to determination of probable cause to hold an accused for trial, on the ground charge the accused of an offense and hold him for trial. However, the judge that the evidence presented to substantiate the issuance of an arrest warrant must decide independently. Hence, he must have supporting evidence, other was insufficient, as in the present case. than the prosecutor's bare report, upon which to legally sustain his own findings on the existence or non-existence of probable cause to issue an Indeed, it would be unfair to expect the prosecution to present all the arrest order. This responsibility of determining personally and evidence needed to secure the conviction of the accused upon the filing of independently the existence of non-existence of probable cause is lodged in the information against the latter. The reason is found in the nature and the him by no less than the most basic law of the land. Parenthetically, the objective of a preliminary investigation. Here, the public prosecutors do not prosecutor could ease the burden of the judge and speed up the litigation decide whether there is evidence beyond reasonable doubt of the guilt of the process by forwarding to the latter not only the information and his bare person charged; they merely determine "whether there is sufficient ground resolution, but also so much of the records and the evidence on hand as to to engender a well-founded belief that a crime . . . has been committed and enable His Honor to make his personal and separate judicial finding on that the respondent is probably guilty thereof, and should be held for trial." whether to issue a warrant of arrest. 15 Evidentiary matters must be presented and heard during the trial. 16 Therefore, if the information is valid on its face, and there is no showing of "Lastly, it is not required that the complete or entire records of the case manifest error, grave abuse of discretion and prejudice on the part of the during the preliminary investigation be submitted to and examined by the public prosecutor, the trial court should respect such determination. judge. We do not intend to unduly burden trial courts by obliging them to examine the complete records of every case all the time simply for the Inapplicability of Allado and Salonga purpose of ordering the arrest of the accused. What is required, rather, is The Court of Appeals anchored its ruling on the pronouncement made in that the judge must have sufficient supporting documents (such as the Allado v. Diokno: ". . . [I]f, upon the filing of the information in court, the complaint, affidavits, counter-affidavits, sworn statements of witnesses or trial judge, after reviewing the information and the documents attached transcript of stenographic notes, if any) upon which to make his thereto, must either call for the complainant and the witnesses themselves or independent judgment, or at the very least, upon which to verify the simply dismiss the case. There is no reason to hold the accused for trial and findings of the prosecutor as to the existence of probable cause. The point further expose him to an open and public accusation of the crime when no is: he cannot rely solely and entirely on the prosecutor's recommendation, as probable cause exists." In Allado, Petitioners Diosdado Jose Allado and Roberto L. Mendoza, this would be a flagrant violation of a basic right which the courts are practicing lawyers, were accused by the Presidential Anti-Crime created to uphold." Commission (PACC) of kidnapping with murder and ordered by Judge Roberto C. Diokno to be arrested without bail. The petitioners questioned In the aforecited case, Petitioner Jovito R. Salonga sought to bar the filing the issuance of the warrants for their arrest, contending that the respondent of an Information for violation of the Revised Anti-Subversion Act, which judge acted with grave abuse of discretion and in excess of his jurisdiction Judge Ernani Cruz-Paño had ordered to be filed against him. In sustaining in holding that there was probable cause against them. They contended that the petitioner, the Court held that the evidence upon which the Information the trial court relied merely on the resolution of the investigating panel and was based was not sufficient to charge him for a violation of the Revised its certification that probable cause existed, without personally determining Anti-Subversion Act. the admissibility and sufficiency of the evidence for such finding and without stating the basis thereof. They maintained that the records of the In all, the Court decreed in both cases that there was no basis in law and in preliminary investigation, which was the sole basis of the judge's ruling, fact for the judicial and executive determination of probable cause. The failed to establish probable cause against them that would justify the Court also held that the government, while vested with the right and the issuance of the warrants for their arrest. duty to protect itself and its people against transgressors of the law, must perform the same in a manner that would not infringe the perceived The Court declared that Judge Diokno had indeed committed grave abuse of violators' rights as guaranteed by the Constitution. discretion in issuing the arrest warrants. Contrary to the constitutional mandate and established jurisprudence, he merely relied on the certification However, the present case is not on all fours with Allado and Salonga. First, of the prosecutors as to the existence of probable cause, instead of Elsa Gumban, the principal eyewitness to the killing of Rosalinda Dy, was personally examining the evidence, the complainant and his witnesses. "For not a participant or conspirator in the commission of said crime. In Allado otherwise," the Court said, "he would have found out that the evidence thus and Salonga, however, the main witnesses were the confessed perpetrators far presented was utterly insufficient to warrant the arrest of the of the crimes, whose testimonies the Court deemed 'tainted'. Second, in the petitioners." 18 case at bar, the private respondent was accorded due process, and no In categorically stating that the evidence so far presented did not meet the precipitate haste or bias during the investigation of the case can be imputed standard of probable cause and subsequently granting the petition, the Court to the public prosecutor. On the other hand, the Court noted in Allado the noted the following circumstances: first, the corpus delicti was not "undue haste in the filing of the Information and the inordinate interest of established, and there was serious doubt as to the alleged victim's death; the government" in pursuing the case; and in Salonga, ". . . the failure of the second, the extrajudicial statement of the principal witness, who had priorly prosecution to show that the petitioner was probably guilty of conspiring to confessed his participation in the crime, was full of material inconsistencies; commit the crime, the initial disregard of petitioner's constitutional rights and third, the PACC operatives who investigated the case never implicated [and] the massive and damaging publicity made against him." In other the petitioners. words, while the respective sets of evidence before the prosecutors in Allado and Salonga were "utterly insufficient" to support a finding of Citing, Salonga v. Cruz-Paño, the Court of Appeals pointed out that when probable cause, the same cannot be said of the present case. there was no prima facie case against a person sought to be charged with a crime, "the judge or fiscal, therefore, should not go on with the prosecution We stress that Allado and Salonga constitute exceptions to the general rule in the hope that some credible evidence might later turn out during trial, for and may be invoked only if similar circumstances are clearly shown to exist. But as the foregoing comparisons show, such similarities are absent in the instant case. Hence, the rulings in the two aforementioned cases cannot circumstances so require. But just as we recognize this need, we also apply to it. acknowledge that the State must likewise be accorded due process. Thus, when there is no showing of nefarious irregularity or manifest error in the Motion Without Requisite Notice performance of a public prosecutor's duties, courts ought to refrain from One more thing. Petitioners aver that Private Respondent Cerbo did not give interfering with such lawfully and judicially mandated duties. them a copy of the Motion to Quash the Warrant of Arrest, which had been issued against him, or a notice of the scheduled hearing. Thus, they contend, In any case, if there was palpable error or grave abuse of discretion in the Judge Valles should not have entertained such motion. public prosecutor's finding of probable cause, the accused can appeal such finding to the justice secretary and move for the deferment or suspension of It is settled that every written motion in a trial court must be set for hearing the proceedings until such appeal is resolved. by the applicant and served with the notice of hearing thereof, in such a manner as to ensure its receipt by the other party. The provisions on this WHEREFORE, the petition is GRANTED. The assailed Decision of the matter in Sections 4 and 5, Rule 15 of the Rules of Court, are categorical Court of Appeals is hereby REVERSED and SET ASIDE. The case is and mandatory in character. Under Section 6 of the said rule, no motion REMANDED to the Regional Trial Court of Nabunturan, Davao, which is shall be acted upon by the court without proof of service thereof. The ordered to reinstate the amended Information against Private Respondent rationale for this rule is simple: unless the movants set the time and the Billy Cerbo and to proceed with judicious speed in hearing the case. No place of hearing, the court will be unable to determine whether the adverse costs. parties agree or object to the motions, since the rules themselves do not fix any period within which they may file their replies or oppositions. SO ORDERED. Romero, Vitug, Purisima and Gonzaga-Reyes, JJ., concur. The motion to quash the warrant of arrest in the present case being pro forma, inasmuch as the requisite copy and notice were not duly served upon the adverse party, the trial court had no authority to act on it.

Epilogue In granting this petition, we are not prejudging the criminal case or the guilt or innocence of Private Respondent Billy Cerbo. We are simply saying that, as a general rule, if the information is valid on its face and there is no showing of manifest error, grave abuse of discretion or prejudice on the part of the public prosecutor, courts should not dismiss it for 'want of evidence,' because evidentiary matters should be presented and heard during the trial. The functions and duties of both the trial court and the public prosecutor in "the proper scheme of things" in our criminal justice system should be clearly understood.

The rights of the people from what could sometimes be an "oppressive" exercise of government prosecutorial powers do need to be protected when PEOPLE OF THE PHILIPPINES, plaintiff-appellee, SYLLABUS vs. FLORENCIO DORIA Y BOLADO and VIOLETA GADDAO Y 1. CRIMINAL LAW; DANGEROUS DRUGS ACT OF 1972; CATAMA @ "NENETH", accused-appellants. THE "OBJECTIVE TEST" IN BUY BUST OPERATIONS DEMANDS THAT THE DETAILS OF THE PURPORTED G.R. No. 125299 TRANSACTION MUST BE CLEARLY AND ADEQUATELY January 22, 1999 SHOWN. — We stress that the "objective" test in buy-bust operations demands that the details of the purported transaction must be clearly and SYNOPSIS adequately shown. This must start from the initial contact between the Accused-appellants were charged with violation of Section 4, in relation to poseur-buyer and the pusher, the offer to purchase, the promise or payment Section 21 of the Dangerous Drugs Act of 1972. After trial, the Regional of the consideration until the consummation of the sale by the delivery of Trial Court, Branch 156, Pasig City convicted accused-appellants. The trial the illegal drug subject of the sale. The manner by which the initial contact court found the existence of an "organized/syndicated crime group" and was made, whether or not through an informant, the offer to purchase the sentenced both accused-appellants to death and pay a fine of P500,000.00 drug, the payment of the "buy-bust" money, and the delivery of the illegal each. In the present appeal, accused-appellant Doria contend that the trial drug, whether to the informant alone or the police officer, must be the court gravely erred in admitting as evidence the marijuana fruitings found subject of strict scrutiny by courts to insure that law-abiding citizens are not inside the carton box because they were obtained through a warrantless unlawfully induced to commit an offense. Criminals must be caught but not search and does not come within the plain view doctrine. Accused-appellant at all cost. At the same time, however, examining the conduct of the police Gaddao, on the other hand, assails the validity of warrantless search leading should not disable courts into ignoring the accused's predisposition to to the seizure of the marijuana inside her house. commit the crime. If there is overwhelming evidence of habitual deliquency, recidivism or plain criminal proclivity, then this must also be The Supreme Court reversed and modified the decision of the trial court. considered. Courts should look at all factors to determine the predisposition Accused-appellant Doria's sentence was reduced from death to reclusion of an accused to commit an offense in so far as they are relevant to perpetua and appellant Gaddao was acquitted. Accused Gaddao was not determine the validity of the defense of inducement. caught red-handed during the buy-bust operation to give ground for her arrest under Section 5 (a) of Rule 113 of the Rules of Court. She was not 2. ID.; ID.; ID.; NON-PRESENTATION OF THE committing any crime. Since the warrantless arrest of Gaddao was illegal, it CONFIDENTIAL INFORMANT IS NOT FATAL TO THE follows that the search of her person and home and the subsequent seizure PROSECUTION'S CAUSE IN CASE AT BAR. — In the case at bar, the of the marked bills and marijuana cannot be deemed legal as an incident to evidence shows that it was the confidential informant who initially her arrest. The Court, however, upheld appellant Doria's warrantless arrest. contacted accused-appellant Doria. At the pre-arranged meeting, the The Court also upheld the validity of the buy-bust operation wherein Doria informant was accompanied by PO3 Manlangit who posed as the buyer of was caught in the act of selling marijuana. The Court reiterated the doctrine marijuana. PO3 Manlangit handed the marked money to accused-appellant that when an, accused is apprehended in flagrante delicto as a result of a Doria as advance payment for one (1) kilo of marijuana. Accused-appellant buy-bust operation, the law enforcement agents are not only authorized but Doria was apprehended when he later returned and handed the brick of also duty-bound, to arrest him even without a warrant. marijuana to PO3 Manlangit. PO3 Manlangit testified in a frank, spontaneous, straightforward and categorical manner and his credibility was not crumpled on cross-examination by defense counsel. Moreover, PO3 Manlangit's testimony was corroborated on its material points by SPO1 Badua, his back-up security. The non-presentation of the confidential rule of law which requires that in "buy-bust" operations there must be a informant is not fatal to the prosecution. Informants are usually not simultaneous exchange of the marked money and the prohibited drug presented in court because of the need to hide their identity and preserve between the poseur-buyer and the pusher. Again, the decisive fact is that the their invaluable service to the police. It is well-settled that except when the poseur-buyer received the marijuana from the accused-appellant. appellant vehemently denies selling prohibited drugs and there are material inconsistencies in the testimonies of the arresting officers, or there are 5. REMEDIAL LAW; CRIMINAL PROCEDURE; reasons to believe that the arresting officers had motives to testify falsely WARRANTLESS ARREST; ACCUSED-APPELLANT'S ARREST against the appellant, or that only the informant was the poseur-buyer who DOES NOT FALL UNDER ANY OF INSTANCES ENUMERATED actually witnessed the entire transaction, the testimony of the informant IN SECTION 5 OF RULE 113 OF THE 1985 RULES OF CRIMINAL may be dispensed with as it will merely be corroborative of the PROCEDURE. — To be lawful, the warrantless arrest of appellant Gaddao apprehending officers' eyewitness testimonies. There is no need to present must fall under any of the three (3) instances enumerated in Section 5 of the informant in court where the sale was actually witnessed and adequately Rule 113 of the 1985 Rules on Criminal Procedure as aforequoted. proved by prosecution witnesses. Accused-appellant Gaddao was not caught red-handed during the buy-bust operation to give ground for her arrest under Section 5 (a) of Rule 113. She 3. ID.; ID.; ID.; SOURCE OF MONEY FOR THE BUY-BUST was not committing any crime. Contrary to the finding of the trial court, OPERATION IS NOT A CRITICAL FACT; IT IS ENOUGH THAT there was no occasion at all for appellant Gaddao to flee from the policemen THE PROSECUTION PROVED THAT THE MONEY WAS PAID to justify her arrest in "hot pursuit." In fact, she was going about her daily TO THE ACCUSED IN CONSIDERATION OF WHICH HE SOLD chores when the policemen pounced on her. Neither could the arrest of AND DELIVERED THE PROHIBITED EFFECTS. — The appellant Gaddao be justified under the second instance of Rule 113. inconsistencies in PO3 Manlangit's and SPO1 Badua's testimonies and the "Personal knowledge" of facts in arrests without warrant under Section 5 (b) other police officers' testimonies are minor and do not detract from the of Rule 113 must be based upon "probable cause" which means an "actual veracity and weight of the prosecution evidence. The source of the money belief or reasonable grounds of suspicion." The grounds of suspicion are for the buy-bust operation is not a critical fact in the case at bar. It is enough reasonable when, in the absence of actual belief of the arresting officers, the that the prosecution proved that money was paid to accused-appellant Doria suspicion that the person to be arrested is probably guilty of committing the in consideration of which he sold and delivered the marijuana. offense, is based on actual facts, i.e., supported by circumstances sufficiently strong in themselves to create the probable cause of guilt of the 4. ID.; ID.; ID.; NO RULE OF LAW WHICH REQUIRES person to be arrested. A reasonable suspicion therefore must be founded on THAT IN BUY-BUST OPERATIONS THERE MUST BE A probable cause, coupled with good faith on the part of the peace officers SIMULTANEOUS EXCHANGE OF MARKED MONEY AND making the arrest. PROHIBITED DRUG BETWEEN THE BUYER AND THE POSEUR- BUYER; THE DECISIVE FACT IS THAT THE POSEUR-BUYER 6. ID.; ID.; WARRANTLESS SEIZURE; "PLAN VIEW" RECEIVED THE MARIJUANA FROM THE ACCUSED. — We also DOCTRINE; NOT APPLICABLE IN CASE AT BAR. — In his direct reject appellant's submission that the fact that PO3 Manlangit and his team examination, PO3 Manlangit said that he was sure that the contents of the waited for almost one hour for appellant Doria to give them the one kilo of box were marijuana because he himself checked and marked the said marijuana after he "paid" P1,600.00 strains credulity. Appellant cannot contents. On cross-examination, however, he admitted that he merely capitalize on the circumstance that the money and the marijuana in the case presumed the contents to be marijuana because it had the same plastic at bar did not change hands under the usual "kaliwaan" system. There is no wrapping as the "buy-bust marijuana." A close scrutiny of the records reveals that the plastic wrapper was not colorless and transparent as to physical act on the part of the suspect, positively indicating that he had just clearly manifest its contents to a viewer. Each of the ten (10) bricks of committed a crime or was committing or attempting to commit one. There marijuana in the box was individually wrapped in old newspaper and placed was, therefore, no valid reason for the police officers to arrest or search inside plastic bags — white, pink or blue in color. PO3 Manlangit himself him. The same was true in People v. Mengote, where the arresting police admitted on cross-examination that the contents of the box could be items tried to justify the warrantless arrest of the appellant on the ground that he other than marijuana. He did not know exactly what the box contained that appeared suspicious. The "suspicious" acts consisted of his darting eyes and he had to ask appellant Gaddao about its contents. It was not immediately the fact that his hand was over his abdomen. The Court, rejecting such apparent to PO3 Manlangit that the content of the box was marijuana. The justification, stated: "By no stretch of the imagination could it have been marijuana was not in plain view and its seizure without the requisite search inferred from these acts that an offense had just been committed, or was warrant was in violation of the law and the Constitution. It was fruit of the actually being committed, or was at least being attempted in their presence." poisonous tree and should have been excluded and never considered by the In other words, the behavior or conduct of the person to be arrested must be trial court. clearly indicative of a criminal act. If there is no outward indication at all that calls for an arrest, the suspect cannot be validly apprehended under this PANGANIBAN, J ., concurring opinion: paragraph, notwithstanding a tip from an informant that he would at the 1. REMEDIAL LAW; CRIMINAL PROCEDURE; VALID time be undertaking a felonious enterprise. ARRESTS WITHOUT WARRANTS; "IN FLAGRANTE DELICTO" ARREST; IT IS NOT SUFFICIENT THAT THE SUSPECT 2. ID.; ID.; ID.; "HOT PURSUIT" ARRESTS; ELEMENTS; EXHIBITS UNUSUAL OR STRANGE ACTS OR SIMPLY APPEARS PERSONAL KNOWLEDGE OF FACTS INDICATING THAT THE SUSPICIOUS; THE BEHAVIOR OR CONDUCT OF THE PERSON PERSON TO BE ARRESTED HAS COMMITTED AN OFFENSE; TO BE ARRESTED MUST BE CLEARLY INDICATIVE OF A WHILE THE LAW ENFORCERS MAY NOT ACTUALLY CRIMINAL ACT. — Section 5(a) of Rule 113 is commonly referred to as WITNESS THE ACTS CONSTITUTING THE OFFENSE, THEY the rule on in flagrante delicto arrests. The accused is apprehended at the MUST HAVE DIRECT KNOWLEDGE OR VIEW OF THE CRIME very moment he is committing or attempting to commit or has just RIGHT AFTER ITS COMMISSION; THEY MUST ALSO committed an offense in the presence of the arresting officer. There are two PERCEIVED ACTS EXHIBITED BY THE PERSON TO BE elements that must concur: (1) the person to be arrested must execute an ARRESTED, INDICATING THAT HE PERPETRATED THE overt act indicating that he has just committed, is actually committing, or is CRIME. — Section 5 (b) of Rule 113 is otherwise known as the rule on attempting to commit a crime; and (2) such overt act is done in the presence "hot pursuit" arrests. Here, two elements must also concur prior to the or within the view of the arresting officer. It is not sufficient that the suspect arrest: (1) an "offense has in fact just been committed," and (2) the arresting exhibits unusual or strange acts or simply appears suspicious. Thus, in the officer "has personal knowledge of facts indicating that the person to be recent en banc case of Malacat vs. Court of Appeals, the Court, through arrested . . . committed [the offense]." In effecting this type of arrest, "it is now Chief Justice Hilario G. Davide, Jr., held that the fact that the not enough that there is reasonable ground to believe that the person to be appellant's eyes were "moving very fast" and looking at every approaching arrested has committed a crime. A crime must in fact or actually have been person were not sufficient to suspect him of "attempting to commit a committed first. . . . The fact of the commission of the offense must be crime," much less to justify his arrest and subsequent search without a undisputed." Thus, while the law enforcers may not actually witness the warrant. The Court said that "there was nothing in [Malacat's] behavior or execution of acts constituting the offense, they must have direct knowledge conduct which could have reasonably elicited even mere suspicion" that he or view of the crime right after its commission. They should know for a fact was armed with a deadly weapon. In other words, there was no overt that a crime was committed. AND they must also perceive acts exhibits by the person to be arrested, indicating that he perpetrated the crime. Again, National Police (PNP) Narcotics Command (Narcom), received information mere intelligence information that the suspect committed the crime will not from two (2) civilian informants (CI) that one "Jun" was engaged in illegal suffice. The arresting officers themselves must have personal knowledge of drug activities in Mandaluyong City. The Narcom agents decided to entrap facts showing that the suspect performed the criminal act. Personal and arrest "Jun" in a buy-bust operation. As arranged by one of the CI's, a knowledge means actual belief or reasonable grounds of suspicion, based on meeting between the Narcom agents and "Jun" was scheduled on December actual facts, that the person to be arrested is probably guilty of committing 5, 1995 at E. Jacinto Street in Mandaluyong City. the crime. On December 5, 1995, at 6:00 in the morning, the CI went to the PNP 3. ID.; ID.; WARRANTLESS ARRESTS, SEARCHES AND Headquarters at EDSA, Kamuning, Quezon City to prepare for the buy-bust SEIZURES; THE EXCEPTIONS TO THE GENERAL RULE ON operation. The Narcom agents formed Team Alpha composed of P/Insp. THE NECESSITY OF A JUDICIAL WARRANT FOR ANY ARREST, Nolasco Cortes as team leader and PO3 Celso Manlangit, SPO1 Edmund SEARCH AND SEIZURE MUST ALL BE STRICTLY CONSTRUED. Badua and four (4) other policemen as members. P/Insp. Cortes designated — I must reiterate that the above exceptions to the general rule on the PO3 Manlangit as the poseur-buyer and SPO1 Badua as his back-up, and necessity of a judicial warrant for any arrest, search and seizure must all be the rest of the team as perimeter security. Superintendent Pedro Alcantara, strictly construed. Foremost in our minds must still be every person's prized Chief of the North Metropolitan District PNP Narcom, gave the team and fundamental right to liberty and security, a right protected and P2,000.00 to cover operational expenses. From this sum, PO3 Manlangit set guaranteed by our Constitution. aside P1,600.00 — a one thousand peso bill and six (6) one hundred peso bills — as money for the buy-bust operation. The market price of one kilo D E C I S I O N of marijuana was then P1,600.00. PO3 Manlangit marked the bills with his PUNO, J p: initials and listed their serial numbers in the police blotter. 4 The team rode in two cars and headed for the target area. On December 7, 1995, accused-appellants Florencio Doria y Bolado and Violeta Gaddao y Catama @ "Neneth" were charged with violation of At 7:20 of the same morning, "Jun" appeared and the CI introduced PO3 Section 4, in relation to Section 21 of the Dangerous Drugs Act of 1972. Manlangit as interested in buying one (1) kilo of marijuana. PO3 Manlangit The information reads: handed "Jun" the marked bills worth P1,600.00. "Jun" instructed PO3 "That on or about the 5th day of December, 1995 in the City of Manlangit to wait for him at the corner of Shaw Boulevard and Jacinto Mandaluyong, Philippines, a place within the jurisdiction of this Honorable Street while he got the marijuana from his associate. 5 An hour later, "Jun" Court, the above-named accused, conspiring, confederating and mutually appeared at the agreed place where PO3 Manlangit, the CI and the rest of helping and aiding one another and without having been authorized by law, the team were waiting. "Jun" took out from his bag an object wrapped in did, then and there willfully, unlawfully and feloniously sell, administer, plastic and gave it to PO3 Manlangit. PO3 Manlangit forthwith arrested deliver and give away to another eleven (11) plastic bags of suspected "Jun" as SPO1 Badua rushed to help in the arrest. They frisked "Jun" but marijuana fruiting tops weighing 7,641.08 grams in violation of the above- did not find the marked bills on him. Upon inquiry, "Jun" revealed that he cited law. left the money at the house of his associate named "Neneth." 6 "Jun" led the police team to "Neneth's" house nearby at Daang Bakal. CONTRARY TO LAW." The prosecution contends the offense was committed as follows: In The team found the door of "Neneth's" house open and at woman inside. November 1995, members of the North Metropolitan District, Philippine "Jun" identified the woman as his associate. SPO1 Badua asked "Neneth" about the P1,600.00 as PO3 Manlangit looked over "Neneth's" house. was not there. Curious onlookers and kibitzers were, by that time, Standing by the door, PO3 Manlangit noticed a carton box under the dining surrounding them. When Violeta entered her house, three men were already table. He saw that one of the box's flaps was open and inside the box was inside. Accused-appellant Doria, then still at the door, overheard one of the something wrapped in plastic. The plastic wrapper and its contents appeared men say that they found a carton box. Turning towards them, Doria saw a similar to the marijuana earlier "sold" to him by "Jun." His suspicion box on top of the table. The box was open and had something inside. PO3 aroused, PO3 Manlangit entered "Neneth's" house and took hold of the box. Manlangit ordered him and Violeta to go outside the house and board the He peeked inside the box and found that it contained ten (10) bricks of what car. They were brought to police headquarters where they were appeared to be dried marijuana leaves. investigated. Simultaneous with the box's discovery, SPO1 Badua recovered the marked bills from "Neneth." The policemen arrested "Neneth." They took "Neneth" Accused-appellant Doria further declared that his co-accused, Violeta and "Jun," together with the box, its contents and the marked bills and Gaddao, is the wife of his acquaintance, Totoy Gaddao. He said that he and turned them over to the investigator at headquarters. It was only then that Totoy Gaddao sometimes drank together at the neighborhood store. This the police learned that "Jun" is Florencio Doria y Bolado while "Neneth" is closeness, however, did not extend to Violeta, Totoy's wife. Violeta Gaddao y Catama. The one (1) brick of dried marijuana leaves recovered from "Jun" plus the ten (10) bricks recovered from "Neneth's" Accused-appellant Violeta Gaddao, a 35-year old rice vendor, claimed that house were examined at the PNP Crime Laboratory. The bricks, eleven (11) on December 5, 1995, she was at her house at Daang Bakal, Mandaluyong in all, were found to be dried marijuana fruiting tops of various weights City where she lived with her husband and five (5) children, namely, Arvy, totalling 7,641.08 grams. aged 10, Arjay, aged 8, the twins Raymond and Raynan, aged 5, and Jason, aged 3. That day, accused-appellant woke up at 5:30 in the morning and The prosecution story was denied by accused-appellants Florencio Doria bought pan de sal for her children's breakfast. Her husband, Totoy, a and Violeta Gaddao. Florencio Doria, a 33-year old carpenter, testified that housepainter, had left for Pangasinan five days earlier. She woke her on December 5, 1995, at 7:00 in the morning, he was at the gate of his children and bathed them. Her eldest son, Arvy, left for school at 6:45 A.M. house reading a tabloid newspaper. Two men appeared and asked him if he Ten minutes later, she carried her youngest son, Jayson, and accompanied knew a certain "Totoy." There were many "Totoys" in their area and as the Arjay to school. She left the twins at home leaving the door open. After men questioning him were strangers, accused-appellant denied knowing any seeing Arjay off, she and Jayson remained standing in front of the school "Totoy." The men took accused-appellant inside his house and accused him soaking in the sun for about thirty minutes. Then they headed for home. of being a pusher in their community. When accused-appellant denied the Along the way, they passed the artesian well to fetch water. She was charge, the men led him to their car outside and ordered him to point out the pumping water when a man clad in short pants and denim jacket suddenly house of "Totoy." For five (5) minutes, accused-appellant stayed in the car. appeared and grabbed her left wrist. The man pulled her and took her to her Thereafter, he gave in and took them to "Totoy's" house. house. She found out later that the man was PO3 Manlangit.

Doria knocked on the door of "Totoy's" house but no one answered. One of Inside her house were her co-accused Doria and three (3) other persons. the men, later identified as PO3 Manlangit, pushed open the door and he They asked her about a box on top of the table. This was the first time she and his companions entered and looked around the house for about three saw the box. The box was closed and tied with a piece of green straw. The minutes. Accused-appellant Doria was left standing at the door. The men opened the box and showed her its contents. She said she did not know policemen came out of the house and they saw Violeta Gaddao carrying anything about the box and its contents. water from the well. He asked Violeta where "Totoy" was but she replied he Accused-appellant Violeta Gaddao confirmed that her co-accused Florencio Let a Commitment Order be issued for the transfer of accused DORIA from Doria was a friend of her husband, and that her husband never returned to the Mandaluyong City Jail to the New Bilibid Prisons, Muntinlupa City and their house after he left for Pangasinan. She denied the charge against her also for accused GADDAO for her transfer to the Correctional Institute for and Doria and the allegation that marked bills were found in her person. Women, Mandaluyong City. Let the entire records of this case be forwarded immediately to the Supreme After trial, the Regional Trial Court, Branch 156, Pasig City convicted the Court for mandatory review. accused-appellants. The trial court found the existence of an "organized/syndicated crime group" and sentenced both accused-appellants SO ORDERED." to death and pay a fine of P500,000.00 each. The dispositive portion of the decision reads as follows: Before this Court, accused-appellant Doria assigns two errors, thus: "WHEREFORE, the guilt of accused, FLORENCIO DORIA y BOLADO "I @ "Jun" and VIOLETA GADDAO y CATAMA @ "Neneth" having been THE COURT A QUO GRAVELY ERRED IN GIVING WEIGHT TO established beyond reasonable doubt, they are both CONVICTED of the THE TESTIMONY OF THE WITNESSES FOR THE PROSECUTION present charge against them. WHEN THEIR TESTIMONIES WERE SHOT WITH DISCREPANCIES, INCONSISTENCIES AND THAT THE CORPUS DELICTI OF THE According to the amendatory provisions of Sec. 13 of Republic Act No. MARIJUANA ALLEGEDLY TAKEN FROM APPELLANT WAS NOT 7659 which cover violations of Sec. 4 of Republic Act No. 6425 and which POSITIVELY IDENTIFIED BY THE POSEUR-BUYER. was exhaustively discussed in People v. Simon, 234 SCRA 555, the penalty imposable in this case is reclusion perpetua to death and a fine ranging from five hundred thousand pesos to ten million pesos. Taking into consideration, II however, the provisions of Sec. 23, also of Republic Act No. 7659 which THE COURT A QUO GRAVELY ERRED IN ADMITTING AS explicitly state that: EVIDENCE THE MARIJUANA FRUITINGS FOUND INSIDE THE 'The maximum penalty shall be imposed if the offense was committed by CARTON BOX AS THESE WERE OBTAINED THROUGH A any person who belongs to an organized/syndicated crime group. WARRANTLESS SEARCH AND DOES NOT COME WITHIN THE PLAIN VIEW DOCTRINE." An organized/syndicated crime group means a group of two or more persons collaborating, confederating or mutually helping one another for Accused-appellant Violeta Gaddao contends: purposes of gain in the commission of any crime.' "I The Court is hereby constrained to sentence (hereby sentences) said THE LOWER COURT ERRED IN FINDING APPELLANT GUILTY FLORENCIO DORIA y BOLADO @ "Jun" and VIOLETA GADDAO y DESPITE THE INCREDIBILITY OF THE POLICE VERSION OF THE CATAMA @ "Neneth" to DEATH and to pay a fine of Five Hundred MANNER THE ALLEGED BUY-BUST WAS CONDUCTED. Thousand Pesos (P500,000.00) each without subsidiary imprisonment in II case of insolvency and to pay the costs. THE PNP OFFICERS' VERSIONS AS TO WHERE THE BUY-BUST MONEY CAME FROM ARE INCONSISTENT WITH ONE ANOTHER The confiscated marijuana bricks (7,641.08 grams) shall be turned over to AND ALSO REEKS WITH INCREDIBILITY. the Dangerous Drugs Board, NBI for destruction in accordance with law. III THE LOWER COURT ERRED IN FINDING APPELLANT GUILTY criminal prosecution against him. 21 The classic definition of entrapment is AND SENTENCING HER TO DEATH DESPITE THE MANIFESTLY that articulated by Justice Roberts in Sorrells v. United States, 22 the first IRRECONCILABLE INCONSISTENCIES IN THE VERSIONS OF THE Supreme Court decision to acknowledge the concept: "Entrapment is the POLICE AS TO HOW AND BY WHOM THE ALLEGED BUY-BUST conception and planning of an offense by an officer, and his procurement of MONEY WAS RECOVERED FROM HER, WHICH IN CONSEQUENCE its commission by one who would not have perpetrated it except for the RESULTS IN THE EVIDENCE, OF RETRIEVAL FROM HER OF THE trickery, persuasion or fraud of the officer." 23 It consists of two (2) SAME, NEBULOUS, AT BEST, NIL, AT WORST. elements: (a) acts of persuasion, trickery, or fraud carried out by law IV enforcement officers or the agents to induce a defendant to commit a crime; THE LOWER COURT ERRED IN UPHOLDING THE VALIDITY OF and (b) the origin of the criminal design in the minds of the government THE WARRANTLESS SEARCH LEADING TO THE SEIZURE OF THE officials rather than that of the innocent defendant, such that the crime is the MARIJUANA ALLEGEDLY FOUND INSIDE THE HOUSE OF product of the creative activity of the law enforcement officer. ACCUSED-APPELLANT." It is recognized that in every arrest, there is a certain amount of entrapment The assigned errors involve two principal issues: (1) the validity of the buy- used to outwit the persons violating or about to violate the law. Not every bust operation in the apprehension of accused-appellant Doria; and (2) the deception is forbidden. The type of entrapment the law forbids is the validity of the warrantless arrest of accused-appellant Gaddao, the search of inducing of another to violate the law, the "seduction" of an otherwise her person and house, and the admissibility of the pieces of evidence innocent person into a criminal career. Where the criminal intent originates obtained therefrom. in the mind of the entrapping person and the accused is lured into the commission of the offense charged in order to prosecute him, there is Accused-appellants were caught by the police in a buy-bust operation. A entrapment and no conviction may be had. Where, however, the criminal buy-bust operation is a form of entrapment employed by peace officers as intent originates in the mind of the accused and the criminal offense is an effective way of apprehending a criminal in the act of the commission of completed, the fact that a person acting as a decoy for the state, or public an offense. 16 Entrapment has received judicial sanction when undertaken officials furnished the accused an opportunity for commission of the with due regard to constitutional and legal safeguards. offense, or that the accused is aided in the commission of the crime in order to secure the evidence necessary to prosecute him, there is no entrapment Entrapment was unknown in common law. It is a judicially created and the accused must be convicted. The law tolerates the use of decoys and twentieth-century American doctrine that evolved from the increasing use other artifices to catch a criminal. of informers and undercover agents in the detection of crimes, particularly liquor and narcotics offenses. Entrapment sprouted from the doctrine of Entrapment is recognized as a valid defense that can be raised by an estoppel and the public interest in the formulation and application of decent accused and partakes of the nature of a confession and avoidance. It is a standards in the enforcement of criminal law. It also took off from a positive defense. Initially, an accused has the burden of providing sufficient spontaneous moral revulsion against using the powers of government to evidence that the government induced him to commit the offense. Once beguile innocent but ductile persons into lapses that they might otherwise established, the burden shifts to the government to show otherwise. When resist. entrapment is raised as a defense, American federal courts and a majority of In the American jurisdiction, the term "entrapment" has a generally negative state courts use the "subjective" or "origin of intent" test laid down in meaning because it is understood as the inducement of one to commit a Sorrells v. United States to determine whether entrapment actually crime not contemplated by him, for the mere purpose of instituting a occurred. The focus of the inquiry is on the accused's predisposition to commit the offense charged, his state of mind and inclination before his detecting instances of its commission are considered in judging what the initial exposure to government agents. All relevant facts such as the effect of the officer's conduct would be on a normal person. accused's mental and character traits, his past offenses, activities, his eagerness in committing the crime, his reputation, etc., are considered to Both the "subjective" and "objective" approaches have been criticized and assess his state of mind before the crime. The predisposition test objected to. It is claimed that the "subjective" test creates an "anything emphasizes the accused's propensity to commit the offense rather than the goes" rule, i.e., if the court determines that an accused was predisposed to officer's misconduct and reflects an attempt to draw a line between a "trap commit the crime charged, no level of police deceit, badgering or other for the unwary innocent and the trap for the unwary criminal." If the unsavory practices will be deemed impermissible. Delving into the accused was found to have been ready and willing to commit the offense at accused's character and predisposition obscures the more important task of any favorable opportunity, the entrapment defense will fail even if a police judging police behavior and prejudices the accused more generally. It agent used an unduly persuasive inducement. Some states, however, have ignores the possibility that no matter what his past crimes and general adopted the "objective" test. This test was first authoritatively laid down in disposition were, the accused might not have committed the particular crime the case of Grossman v. State rendered by the Supreme Court of Alaska. unless confronted with inordinate inducements. On the other extreme, the Several other states have subsequently adopted the test by judicial purely "objective" test eliminates entirely the need for considering a pronouncement or legislation. Here, the court considers the nature of the particular accused's predisposition. His predisposition, at least if known by police activity involved and the propriety of police conduct. The inquiry is the police, may have an important bearing upon the question of whether the focused on the inducements used by government agents, on police conduct, conduct of the police and their agents was proper. The undisputed fact that not on the accused and his predisposition to commit the crime. For the goal the accused was a dangerous and chronic offender or that he was a shrewd of the defense is to deter unlawful police conduct. The test of entrapment is and active member of a criminal syndicate at the time of his arrest is whether the conduct of the law enforcement agent was likely to induce a relegated to irrelevancy. normally law-abiding person, other than one who is ready and willing, to commit the offense; for purposes of this test, it is presumed that a law- Objections to the two tests gave birth to hybrid approaches to entrapment. abiding person would normally resist the temptation to commit a crime that Some states in the United States now combine both the "subjective" and is presented by the simple opportunity to act unlawfully. Official conduct "objective" tests. In Cruz v. State, the Florida Supreme Court declared that that merely offers such an opportunity is permissible, but overbearing the permissibility of police conduct must first be determined. If this conduct, such as badgering, cajoling or importuning, or appeals to objective test is satisfied, then the analysis turns to whether the accused was sentiments such as pity, sympathy, friendship or pleas of desperate illness, predisposed to commit the crime. In Baca v. State, the New Mexico are not. Proponents of this test believe that courts must refuse to convict an Supreme Court modified the state's entrapment analysis by holding that "a entrapped accused not because his conduct falls outside the legal norm but criminal defendant may successfully assert a defense of entrapment, either rather because, even if his guilt has been established, the methods employed by showing lack of predisposition to commit the crime for which he is on behalf of the government to bring about the crime "cannot be charged, or, that the police exceeded the standards of proper investigation. countenanced." To some extent, this reflects the notion that the courts The hybrid approaches combine and apply the "objective" and "subjective" should not become tainted by condoning law enforcement improprieties. tests alternatively or concurrently. Hence, the transactions leading up to the offense, the interaction between As early as 1910, this Court has examined the conduct of law enforcers the accused and law enforcement officer and the accused's response to the while apprehending the accused caught in flagrante delicto. In United States officer's inducements, the gravity of the crime, and the difficulty of v. Phelps, we acquitted the accused from the offense of smoking opium after finding that the government employee, a BIR personnel, actually induced him to commit the crime in order to prosecute him. Smith, the BIR that class of cases where the offense is one of a kind habitually committed, agent, testified that Phelps' apprehension came after he overheard Phelps in and the solicitation merely furnishes evidence of a course of conduct. Mere a saloon say that he liked smoking opium on some occasions. Smith's deception by the detective will not shield defendant, if the offense was testimony was disregarded. We accorded significance to the fact that it was committed by him, free from the influence or instigation of the detective. Smith who went to the accused three times to convince him to look for an The fact that an agent of an owner acts as a supposed confederate of a thief opium den where both of them could smoke this drug. The conduct of the is no defense to the latter in a prosecution for larceny, provided the original BIR agent was condemned as "most reprehensible." In People v. Abella, we design was formed independently of such agent; and where a person acquitted the accused of the crime of selling explosives after examining the approached by the thief as his confederate notifies the owner or the public testimony of the apprehending police officer who pretended to be a authorities, and, being authorized by them to do so, assists the thief in merchant. The police officer offered "a tempting price, . . . a very high one" carrying out the plan, the larceny is nevertheless committed. It is generally causing the accused to sell the explosives. We found that there was held that it is no defense to a prosecution for an illegal sale of liquor that the inducement, "direct, persistent and effective" by the police officer and that purchase was made by a 'spotter,' detective, or hired informer; but there are outside of his testimony, there was no evidence sufficient to convict the cases holding the contrary." accused. In People v. Lua Chu and Uy Se Tieng, we convicted the accused The distinction above-quoted was reiterated in two (2) decisions of the after finding that there was no inducement on the part of the law Court of Appeals. In People v. Galicia, the appellate court declared that enforcement officer. We stated that the Customs secret serviceman "there is a wide difference between entrapment and instigation." The smoothed the way for the introduction of opium from Hongkong to Cebu instigator practically induces the would-be accused into the commission of after the accused had already planned its importation and ordered said drug. the offense and himself becomes a co-principal. In entrapment, ways and We ruled that the apprehending officer did not induce the accused to import means are resorted to by the peace officer for the purpose of trapping and opium but merely entrapped him by pretending to have an understanding capturing the lawbreaker in the execution of his criminal plan. In People v. with the Collector of Customs of Cebu to better assure the seizure of the Tan Tiong, 68 the Court of Appeals further declared that "entrapment is no prohibited drug and the arrest of the surreptitious importers. bar to the prosecution and conviction of the lawbreaker."

It was also in the same case of People v. Lua Chu and Uy Se Tieng we first The pronouncement of the Court of Appeals in People v. Galicia was laid down the distinction between entrapment vis-a-vis instigation or affirmed by this Court in People v. Tiu Ua. Entrapment, we further held, is inducement. Quoting 16 Corpus Juris, we held: not contrary to public policy. It is instigation that is deemed contrary to public policy and illegal. "ENTRAPMENT AND INSTIGATION. — While it has been said that the practice of entrapping persons into crime for the purpose of instituting It can thus be seen that the concept of entrapment in the American criminal prosecutions is to be deplored, and while instigation, as jurisdiction is similar to instigation or inducement in Philippine distinguished from mere entrapment, has often been condemned and has jurisprudence. Entrapment in the Philippines is not a defense available to sometimes been held to prevent the act from being criminal or punishable, the accused. It is instigation that is a defense and is considered an the general rule is that it is no defense to the perpetrator of a crime that absolutory cause. To determine whether there is entrapment or instigation, facilities for its commission were purposely placed in his way, or that the our courts have mainly examined the conduct of the apprehending officers, criminal act was done at the 'decoy solicitation' of persons seeking to not the predisposition of the accused to commit the crime. The "objective" expose the criminal, or that detectives feigning complicity in the act were test first applied in United States v. Phelps has been followed in a series of present and apparently assisting in its commission. Especially is this true in similar cases. Nevertheless, adopting the "objective" approach has not precluded us from likewise applying the "subjective" test. In People v. peddlers and gamblers also accept payment from these persons who deceive Boholst, we applied both tests by examining the conduct of the police the police. The informant himself may be a drug addict, pickpocket, pimp, officers in a buy-bust operation and admitting evidence of the accused's or other petty criminal. For whatever noble purpose it serves, the spectacle membership with the notorious and dreaded Sigue-Sigue Sputnik Gang. We that government is secretly mated with the underworld and uses underworld also considered accused's previous convictions of other crimes and held that characters to help maintain law and order is not an inspiring one. Equally his opprobrious past and membership with the dreaded gang strengthened odious is the bitter reality of dealing with unscrupulous, corrupt and the state's evidence against him. Conversely, the evidence that the accused exploitative law enforcers. Like the informant, unscrupulous law enforcers' did not sell or smoke marijuana and did not have any criminal record was motivations are legion — harassment, extortion, vengeance, blackmail, or a likewise admitted in People v. Yutuc thereby sustaining his defense that led desire to report an accomplishment to their superiors. This Court has taken to his acquittal. judicial notice of this ugly reality in a number of cases 84 where we observed that it is a common modus operandi of corrupt law enforcers to The distinction between entrapment and instigation has proven to be very prey on weak and hapless persons, particularly unsuspecting provincial material in anti-narcotics operations. In recent years, it has become common hicks. The use of shady underworld characters as informants, the relative practice for law enforcement officers and agents to engage in buy-bust ease with which illegal drugs may be planted in the hands or property of operations and other entrapment procedures in apprehending drug trusting and ignorant persons, and the imposed secrecy that inevitably offenders. Anti-narcotics laws, like anti-gambling laws are regulatory shrouds all drug deals have compelled this Court to be extra-vigilant in statutes. They are rules of convenience designed to secure a more orderly deciding drug cases. Criminal activity is such that stealth and strategy, regulation of the affairs of society, and their violation gives rise to crimes although necessary weapons in the arsenal of the police officer, become as mala prohibita. They are not the traditional type of criminal law such as the objectionable police methods as the coerced confession and the unlawful law of murder, rape, theft, arson, etc. that deal with crimes mala in se or search. As well put by the Supreme Court of California in People v. those inherently wrongful and immoral. Laws defining crimes mala Barraza, prohibita condemn behavior directed, not against particular individuals, but against public order. Violation is deemed a wrong against society as a "[E]ntrapment is a facet of a broader problem. Along with illegal search and whole and is generally unattended with any particular harm to a definite seizures, wiretapping, false arrest, illegal detention and the third degree, it is person. These offenses are carried on in secret and the violators resort to a type of lawless enforcement. They all spring from common motivations. many devices and subterfuges to avoid detection. It is rare for any member Each is a substitute for skillful and scientific investigation. Each is of the public, no matter how furiously he condemns acts mala prohibita, to condoned by the sinister sophism that the end, when dealing with known be willing to assist in the enforcement of the law. It is necessary, therefore, criminals of the 'criminal classes,' justifies the employment of illegal that government in detecting and punishing violations of these laws, rely, means." not upon the voluntary action of aggrieved individuals, but upon the diligence of its own officials. This means that the police must be present at It is thus imperative that the presumption, juris tantum, of regularity in the the time the offenses are committed either in an undercover capacity or performance of official duty by law enforcement agents raised by the through informants, spies or stool pigeons. Solicitor General be applied with studied restraint. This presumption should not by itself prevail over the presumption of innocence and the Though considered essential by the police in enforcing vice legislation, the constitutionally-protected rights of the individual. It is the duty of courts to confidential informant system breeds abominable abuse. Frequently, a preserve the purity of their own temple from the prostitution of the criminal person who accepts payment from the police in the apprehension of drug law through lawless enforcement. Courts should not allow themselves to be used as an instrument of abuse and injustice lest an innocent person be police. It is well-settled that except when the appellant vehemently denies made to suffer the unusually severe penalties for drug offenses. selling prohibited drugs and there are material inconsistencies in the testimonies of the arresting officers, or there are reasons to believe that the We therefore stress that the "objective" test in buy-bust operations demands arresting officers had motives to testify falsely against the appellant, or that that the details of the purported transaction must be clearly and adequately only the informant was the poseur-buyer who actually witnessed the entire shown. This must start from the initial contact between the poseur-buyer transaction, the testimony of the informant may be dispensed with as it will and the pusher, the offer to purchase, the promise or payment of the merely be corroborative of the apprehending officers' eyewitness consideration until the consummation of the sale by the delivery of the testimonies. There is no need to present the informant in court where the illegal drug subject of the sale. The manner by which the initial contact was sale was actually witnessed and adequately proved by prosecution made, whether or not through an informant, the offer to purchase the drug, witnesses. the payment of the "buy-bust" money, and the delivery of the illegal drug, whether to the informant alone or the police officer, must be the subject of The inconsistencies in PO3 Manlangit's and SPO1 Badua's testimonies and strict scrutiny by courts to insure that law-abiding citizens are not the other police officers' testimonies are minor and do not detract from the unlawfully induced to commit an offense. Criminals must be caught but not veracity and weight of the prosecution evidence. The source of the money at all cost. At the same time, however, examining the conduct of the police for the buy-bust operation is not a critical fact in the case at bar. It is enough should not disable courts into ignoring the accused's predisposition to that the prosecution proved that money was paid to accused-appellant Doria commit the crime. If there is overwhelming evidence of habitual in consideration of which he sold and delivered the marijuana. delinquency, recidivism or plain criminal proclivity, then this must also be considered. Courts should look at all factors to determine the predisposition Contrary to accused-appellant Doria's claim, the one kilo of marijuana of an accused to commit an offense in so far as they are relevant to "sold" by him to PO3 Manlangit was actually identified by PO3 Manlangit determine the validity of the defense of inducement. himself before the trial court. After appellants' apprehension, the Narcom agents placed this one (1) brick of marijuana recovered from appellant In the case at bar, the evidence shows that it was the confidential informant Doria inside the carton box lumping it together with the ten (10) bricks who initially contacted accused-appellant Doria. At the pre-arranged inside. This is why the carton box contained eleven (11) bricks of marijuana meeting, the informant was accompanied by PO3 Manlangit who posed as when brought before the trial court. The one (1) brick recovered from the buyer of marijuana. PO3 Manlangit handed the marked money to appellant Doria and each of the ten (10) bricks, however, were identified accused-appellant Doria as advance payment for one (1) kilo of marijuana. and marked in court. Thus: Accused-appellant Doria was apprehended when he later returned and "ATTY. ARIAS, Counsel for Florencio Doria: handed the brick of marijuana to PO3 Manlangit. Mr. Police Officer, when you identified that box, Tell the court, how were you able to identify that box? PO3 Manlangit testified in a frank, spontaneous, straightforward and A This is the box that I brought to the crime laboratory which categorical manner and his credibility was not crumpled on cross- contained the eleven pieces of marijuana brick we confiscated from the examination by defense counsel. Moreover, PO3 Manlangit's testimony was suspect, sir. corroborated on its material points by SPO1 Badua, his back-up security. Q Please open it and show those eleven bricks. The non-presentation of the confidential informant is not fatal to the PROSECUTOR prosecution. Informants are usually not presented in court because of the Witness bringing out from the said box . . . need to hide their identity and preserve their invaluable service to the ATTY. VALDEZ, Counsel for Violeta Gaddao: Your Honor, I must protest the line of questioning considering the fact that A I am sure that this is the one, your Honor. This is the Exhibit "A" we are now dealing with eleven items when the question posed to the which I marked before I brought it to the PCCL, your Honor. witness was what was handed to him by Jun? Q What are you sure of ? COURT A I am sure that this is the brick that was given to me by one alias So be it. Jun, sir. ATTY. ARIAS Q What makes you so sure? May we make it of record that the witness is pulling out item after A Because I marked it with my own initials before giving it to the item from the box showed to him and brought in front of him. investigator and before we brought it to the PCCL, your Honor. COURT xxx xxx xxx. Noted. PROSECUTOR Q Now tell the court, how did you know that those are the eleven May we request that a tag be placed on this white plastic bag and bricks? this be marked as Exhibit "D?" xxx xxx xxx. COURT A I have markings on these eleven bricks, sir. Mark it as Exhibit "D." Q Point to the court, where are those markings? Q To stress, who made the entries of this date, Exhibit "A" then the A Here, sir, my signature, my initials with the date, sir. other letters and figures on this plastic? PROSECUTOR A This one, the signature, I made the signature, the date and the time Witness showed a white wrapper and pointing to CLM and the and this Exhibit "A." signature. Q How about this one? Q Whose signature is that? A I don't know who made this marking, sir. ATTY. VALDEZ PROSECUTOR Your Honor, may we just limit the inquiry to the basic question of May it be of record that this was just entered this morning. the fiscal as to what was handed to him by the accused Jun, your Honor? Q I am asking you about this "itim" and not the "asul." PROSECUTOR A This CLM, the date and the time and the Exhibit "A," I was the one Your Honor, there is already a ruling by this Honorable Court, who made these markings, sir. your Honor, despite reconsideration. PROSECUTOR COURT May we place on record that the one that was enclosed. . . Let the prosecution do its own thing and leave the appreciation of ATTY. ARIAS what it has done to the court. Your Honor, there are also entries included in that enclosure where ATTY. VALDEZ it appears D-394-95, also Exhibit "A," etc. etc., that was not pointed to by We submit, your Honor. the witness. I want to make it of record that there are other entries included A This brick is the one that was handed to me by the suspect Jun, sir. in the enclosure. LexLib COURT COURT Why do you know that that is the thing? Are you sure that is not Noted. The court saw it. "tikoy?" Q Now, and this alleged brick of marijuana with a piece of paper, A Yes, your Honor. with a newspaper wrapping with a piece of paper inside which reads: "D- Q What makes you so sure? 394-95, Exhibit A, 970 grams SSL" be marked as our Exhibit "D-2?" COURT (b) When an offense has in fact just been committed, and he has Tag it. Mark it. personal knowledge of facts indicating that the person to be arrested has Q This particular exhibit that you identified, the wrapper and the committed it; and contents was given to you by whom? (c) When the person to be arrested is a prisoner who escaped from a A It was given to me by suspect Jun, sir. penal establishment or place where he is serving final judgment or Q Whereat? temporarily confined while his case is pending, or has escaped while being A At the corner of Boulevard and Jacinto St., sir. transferred from one confinement to another. Q How about the other items that you were able to recover? xxx xxx xxx." xxx xxx xxx. Under Section 5 (a), as above-quoted, a person may be arrested without a A These other marijuana bricks, because during our follow-up, warrant if he "has committed, is actually committing, or is attempting to because according to Jun the money which I gave him was in the hands of commit an offense." Appellant Doria was caught in the act of committing an Neneth and so we proceeded to the house of Neneth sir. offense. When an accused is apprehended in flagrante delicto as a result of a xxx xxx xxx." buy-bust operation, the police are not only authorized but duty-bound to arrest him even without a warrant. The first brick identified by PO3 Manlangit was the brick of marijuana "given to [him] by suspect Jun" at the corner of Boulevard and Jacinto The warrantless arrest of appellant Gaddao, the search of her person and Streets. This brick, including the newspaper and white plastic wrapping residence, and the seizure of the box of marijuana and marked bills are were marked as Exhibits "D," "D-1," and "D-2" and described as weighing different matters. nine hundred seventy (970) grams. Our Constitution proscribes search and seizure without a judicial warrant We also reject appellant's submission that the fact that PO3 Manlangit and and any evidence obtained without such warrant is inadmissible for any his team waited for almost one hour for appellant Doria to give them the purpose in any proceeding. The rule is, however, not absolute. Search and one kilo of marijuana after he "paid" P1,600.00 strains credulity. Appellant seizure may be made without a warrant and the evidence obtained therefrom cannot capitalize on the circumstance that the money and the marijuana in may be admissible in the following instances: (1) search incident to a lawful the case at bar did not change hands under the usual "kaliwaan" system. arrest; (2) search of a moving motor vehicle; (3) search in violation of There is no rule of law which requires that in "buy-bust" operations there customs laws; (4) seizure of evidence in plain view; (5) when the accused must be a simultaneous exchange of the marked money and the prohibited himself waives his right against unreasonable searches and seizures. drug between the poseur-buyer and the pusher. Again, the decisive fact is that the poseur-buyer received the marijuana from the accused-appellant. The prosecution admits that appellant Gaddao was arrested without a warrant of arrest and the search and seizure of the box of marijuana and the We also hold that the warrantless arrest of accused-appellant Doria is not marked bills were likewise made without a search warrant. It is claimed, unlawful. Warrantless arrests are allowed in three instances as provided by however, that the warrants were not necessary because the arrest was made Section 5 of Rule 113 of the 1985 Rules on Criminal Procedure, to wit: in "hot pursuit" and the search was an incident to her lawful arrest. "Sec. 5. Arrest without warrant; when lawful. — A peace officer or a private person may, without a warrant, arrest a person: To be lawful, the warrantless arrest of appellant Gaddao must fall under any (a) When, in his presence, the person to be arrested has committed, is of the three (3) instances enumerated in Section 5 of Rule 113 of the 1985 actually committing, or is attempting to commit an offense; Rules on Criminal Procedure as aforequoted. The direct testimony of PO3 Q As far as you can see, she was just inside her house? Manlangit, the arresting officer, however shows otherwise: A I saw her outside, sir. "ATTY. VALDEZ, Counsel for appellant Gaddao: Q She was fetching water as a matter of fact? We submit at this juncture, your Honor, that there will be no basis for that A She was 'sa bandang poso.' question. Q Carrying a baby? Q This particular exhibit that you identified, the wrapper and the A No, sir. contents was given to you by whom? Q At that particular time when you reached the house of Aling A It was given to me by suspect Jun, sir. Neneth and saw her outside the house, she was not committing any crime, Q Whereat? she was just outside the house? A At the corner of Boulevard and Jacinto Street, sir. A No, sir. Q How about the other items that you were able to recover? Q She was not about to commit any crime because she was just ATTY. VALDEZ: outside the house doing her daily chores. Am I correct? We submit at this juncture, your Honor, that there will be no basis A I just saw her outside, sir. for that question. Q And at that point in time you already wanted to arrest her. That is COURT: correct, is it not? There is. Answer. A Yes, sir. A These other marijuana bricks, because during our follow-up, Q Now, if any memory of your testimony is correct, according to you because according to Jun the money which I gave him was in the hands of SPO1 Manlangit approached her? Neneth and so we proceeded to the house of Neneth, sir. A PO3 Manlangit, sir. Q Whereat? Q You did not approach her because PO3 Manlangit approached her? A At Daang Bakal near the crime scene at Shaw Boulevard, sir. A Yes, sir. Q And what happened upon arrival thereat? Q During all the time that this confrontation, arrest or whatever by A We saw alias Neneth inside the house and we asked him to give us SPO3 Manlangit was taking place, you were just in the side lines? the buy-bust money, sir. A I was just watching, sir. Q You mentioned "him?" Q So you were just an on-looker to what Manlangit was doing, A Her, sir. We asked her to give us the money, the marked money because precisely according to you your role in this buy-bust operation was which Jun gave her, sir. as a back-up? Q And what happened? A Yes, sir. A At this instance, it was SPO1 Badua who can testify regarding this Q Who got the alleged marijuana from inside the house of Mrs. buy-bust money, sir. cdlex Neneth? xxx xxx xxx." 1 A PO3 Manlangit, sir. SPO1 Badua testified on cross-examination that: Q Manlangit got the marijuana? Q What was your intention in going to the house of Aling Neneth? A Yes, sir. A To arrest her, sir. Q And the money from Aling Neneth? Q But the fact is, Mr. Witness, when you reached the house of Aling A I don't know, sir. Neneth, Aling Neneth was there? Q You did not even know who got the money from Aling Neneth? A Yes, sir. PROSECUTOR: There is no basis for this question, your Honor. Money, there's no testimony belief of the arresting officers, the suspicion that the person to be arrested is on that. probably guilty of committing the offense, is based on actual facts, i.e., ATTY. VALDEZ: supported by circumstances sufficiently strong in themselves to create the I was asking him precisely. probable cause of guilt of the person to be arrested. A reasonable suspicion PROSECUTOR: therefore must be founded on probable cause, coupled with good faith on No basis. the part of the peace officers making the arrest. COURT: Sustained. Accused-appellant Gaddao was arrested solely on the basis of the alleged Q Alright. I will ask you a question and I expect an honest answer. identification made by her co-accused. PO3 Manlangit, however, declared According to the records, the amount of P1,600.00 was recovered from the in his direct examination that appellant Doria named his co-accused in person of Aling Neneth. That's right? response to his (PO3 Manlangit's) query as to where the marked money A Yes, sir, the buy-bust money. was. Appellant Doria did not point to appellant Gaddao as his associate in Q What you are now saying for certain and for the record is the fact the drug business, but as the person with whom he left the marked bills. that you were not the one who retrieved the money from Aling Neneth, it This identification does not necessarily lead to the conclusion that appellant was Manlangit maybe? Gaddao conspired with her co-accused in pushing drugs. Appellant Doria A I saw it, sir. may have left the money in her house, with or without her knowledge, with Q It was Manlangit who got the money from Aling Neneth? or without any conspiracy. Save for accused-appellant Doria's word, the A The buy-bust money was recovered from the house of Aling Narcom agents had no reasonable grounds to believe that she was engaged Neneth, sir. in drug pushing. If there is no showing that the person who effected the Q It was taken from the house of Aling Neneth, not from the person warrantless arrest had, in his own right, knowledge of facts implicating the of Aling Neneth. Is that what you are trying to tell the Court? person arrested to the perpetration of a criminal offense, the arrest is legally A No, sir. objectionable. ATTY. VALDEZ: I am through with this witness, your Honor." Since the warrantless arrest of accused-appellant Gaddao was illegal, it follows that the search of her person and home and the subsequent seizure Accused-appellant Gaddao was not caught red-handed during the buy-bust of the marked bills and marijuana cannot be deemed legal as an incident to operation to give ground for her arrest under Section 5 (a) of Rule 113. She her arrest. This brings us to the question of whether the trial court correctly was not committing any crime. Contrary to the finding of the trial court, found that the box of marijuana was in plain view, making its warrantless there was no occasion at all for appellant Gaddao to flee from the policemen seizure valid. to justify her arrest in "hot pursuit." In fact, she was going about her daily chores when the policemen pounced on her. Objects falling in plain view of an officer who has a right to be in the position to have that view are subject to seizure even without a search Neither could the arrest of appellant Gaddao be justified under the second warrant and may be introduced in evidence. The "plain view" doctrine instance of Rule 113. "Personal knowledge" of facts in arrests without applies when the following requisites concur: (a) the law enforcement warrant under Section 5 (b) of Rule 113 must be based upon "probable officer in search of the evidence has a prior justification for an intrusion or cause" which means an "actual belief or reasonable grounds of suspicion." is in a position from which he can view a particular area; (b) the discovery The grounds of suspicion are reasonable when, in the absence of actual of the evidence in plain view is inadvertent; (c) it is immediately apparent to the officer that the item he observes may be evidence of a crime, contraband INTERPRETER or otherwise subject to seizure. The law enforcement officer must lawfully Witness went down the witness stand and approached a carton box. make an initial intrusion or properly be in a position from which he can A Like this, sir. particularly view the area. In the course of such lawful intrusion, he came PROSECUTOR inadvertently across a piece of evidence incriminating the accused. The Can we describe it? object must be open to eye and hand and its discovery inadvertent. ATTY. VALDEZ Yes. It is clear that an object is in plain view if the object itself is plainly exposed PROSECUTOR to sight. The difficulty arises when the object is inside a closed container. One flap is inside and the other flap is standing and with the contents Where the object seized was inside a closed package, the object itself is not visible. in plain view and therefore cannot be seized without a warrant. However, if COURT the package proclaims its contents, whether by its distinctive configuration, Noted. its transparency, or if its contents are obvious to an observer, then the Q At this juncture, you went inside the house? contents are in plain view and may be seized. In other words, if the package A Yes, sir. is such that an experienced observer could infer from its appearance that it Q And got hold of this carton? contains the prohibited article, then the article is deemed in plain view. It A Yes, sir. must be immediately apparent to the police that the items that they observe Q Did you mention anything to Aling Neneth? may be evidence of a crime, contraband or otherwise subject to seizure. A I asked her, what's this . . . Q No, no. no. did you mention anything to Aling Neneth before PO3 Manlangit, the Narcom agent who found the box, testified on cross- getting the carton? examination as follows: A I think it was Badua who accosted Aling Neneth regarding the "ATTY. VALDEZ: buy-bust money and he asked "Sa iyo galing ang marijuanang ito, nasaan So here we are. When you and Badua arrived, Aling Neneth was inside the ang buy-bust money namin?" sir. house? Q Making reference to the marijuana that was given by alias Jun? A Yes, sir. A Yes, sir. Q Badua demanded from Aling Neneth the buy-bust money? Q When you proceeded to take hold of this carton, Aling Neneth was A Yes, sir. not yet frisked, is it not [sic]? Q At that particular instance, you saw the carton? A I just don't know if she was frisked already by Badua, sir. A Yes, sir. Q Who got hold of this? Q This carton, according to you was under a table? A I was the one, sir. A Yes, sir, dining table. Q You were the one who got this? Q I noticed that this carton has a cover? A Yes, sir. A Yes, sir. Q At that particular point in time, you did not know if the alleged Q I ask you were the flaps of the cover raised or closed? buy-bust money was already retrieved by Badua? A It was open, sir. Not like that. A Yes, sir. COURT Q You went inside the house? Go down there. Show to the court. A Yes, sir. Q You did not have any search warrant? With due respect, what I am saying is, let's place the size of the plastic. A A Yes, sir. piece of plastic may be big or a small one, for record purposes. Q In fact, there was nothing yet as far as you were concerned to COURT validate the fact that Mrs. Gadao was in possession of the buy-bust money Leave that to the court. because according to you, you did not know whether Badua already PROSECUTOR retrieved the buy-bust money from her? Leave that to the court. A Yes, sir. Q The only reason according to you, you were able to . . . Look at Q How far was this from the door? this, no even Superman . . . I withdraw that. Not even a man with very kin A Two and a half meters from the door, sir. It was in plain view. [sic] eyes can tell the contents here. And according to the Court, it could be Q Under the table according to you? "tikoy," is it not [sic]? A Yes, sir, dining table. A Yes, sir. Q Somewhere here? Q Siopao? A It's far, sir. A Yes, sir. PROSECUTOR Q Canned goods? May we request the witness to place it, where he saw it? A Yes, sir. A Here, sir. Q It could be ice cream because it says Snow Pop, Ice Pop? Q What you see is a carton? A I presumed it was also marijuana because it may . . . A Yes, sir, with plastic. Q I am not asking you what your presumptions are. I'm asking you Q Marked "Snow Time Ice Pop?" what it could possibly be. A Yes, sir. A It's the same plastic, sir. Q With a piece of plastic visible on top of the carton? ATTY. VALDEZ: A Yes, sir. I'm not even asking you that question so why are you voluntarily saying the Q That is all that you saw? information. Let the prosecutor do that for you. A Yes, sir. COURT: PROSECUTOR Continue. Next question. For the record, your Honor. . . xxx xxx xxx." Q You were only able to verify according to you . . . PROSECUTOR PO3 Manlangit and the police team were at appellant Gaddao's house Panero, wait. Because I am objecting to the words a piece of plastic. By because they were led there by appellant Doria. The Narcom agents testified reading it. . . that they had no information on appellant Gaddao until appellant Doria ATTY. VALDEZ named her and led them to her. Standing by the door of appellant Gaddao's That's a piece of plastic. house, PO3 Manlangit had a view of the interior of said house. Two and a PROSECUTOR half meters away was the dining table and underneath it was a carton box. By reading it, it will connote . . . this is not a piece of plastic. The box was partially open and revealed something wrapped in plastic. ATTY. VALDEZ What is that? What can you say, Fiscal? I'm asking you? In his direct examination, PO3 Manlangit said that he was sure that the PROSECUTOR contents of the box were marijuana because he himself checked and marked the said contents. 1On cross-examination, however, he admitted that he Section 4 of Republic Act No. 6425, the Dangerous Drugs Act of 1972, as merely presumed the contents to be marijuana because it had the same amended by Section 13 of Republic Act No. 7659 punishes the "sale, plastic wrapping as the "buy-bust marijuana." A close scrutiny of the administration, delivery, distribution and transportation of a prohibited records reveals that the plastic wrapper was not colorless and transparent as drug" with the penalty of reclusion perpetua to death and a fine ranging to clearly manifest its contents to a viewer. Each of the ten (10) bricks of from P500,000.00 to P10 million, to wit: marijuana in the box was individually wrapped in old newspaper and placed "Sec. 4. Sale, Administration, Delivery, Distribution and Transportation of inside plastic bags — white, pink or blue in color. PO3 Manlangit himself Prohibited Drugs. — The penalty of reclusion perpetua to death, and a fine admitted on cross-examination that the contents of the box could be items ranging from five hundred thousand pesos to ten million pesos shall be other than marijuana. He did not know exactly what the box contained that imposed upon any person who, unless authorized by law, shall sell, he had to ask appellant Gaddao about its contents. It was not immediately administer, deliver, give away to another, distribute, dispatch in transit or apparent to PO3 Manlangit that the content of the box was marijuana. The transport any prohibited drug, or shall act as a broker in any of such marijuana was not in plain view and its seizure without the requisite search transactions. warrant was in violation of the law and the Constitution. It was fruit of the xxx xxx xxx." poisonous tree and should have been excluded and never considered by the trial court. In every prosecution for illegal sale of dangerous drugs, what is material is the submission of proof that the sale took place between the poseur-buyer The fact that the box containing about six (6) kilos of marijuana was found and the seller thereof and the presentation of the drug, i.e., the corpus in the house of accused-appellant Gaddao does not justify a finding that she delicti, as evidence in court. 141 The prosecution has clearly established the herself is guilty of the crime charged. Apropos is our ruling in People v. fact that in consideration of P1,600.00 which he received, accused-appellant Aminnudin, viz: Doria sold and delivered nine hundred seventy (970) grams of marijuana to PO3 Manlangit, the poseur-buyer. The prosecution, however, has failed to "The Court strongly supports the campaign of the government against drug prove that accused-appellant Gaddao conspired with accused-appellant addiction and commends the efforts of our law enforcement officers against Doria in the sale of said drug. There being no mitigating or aggravating those who would inflict this malediction upon our people, especially the circumstances, the lower penalty of reclusion perpetua must be imposed. susceptible youth. But as demanding as this campaign may be, it cannot be more so than the compulsions of the Bill of Rights for the protection of the IN VIEW WHEREOF, the decision of the Regional Trial Court, Branch liberty of every individual in the realm, including the basest of criminals. 156, Pasig City acting as a Special Court in Criminal Case No. 3307-D is The Constitution covers with the mantle of its protection the innocent and reversed and modified as follows: the guilty alike against any manner of high-handedness from the authorities, 1. Accused-appellant Florencio Doria y Bolado is sentenced to suffer however praiseworthy their intentions. the penalty of reclusion perpetua and to pay a fine of five hundred thousand pesos (P500,000.00). Those who are supposed to enforce the law are not justified in disregarding 2. Accused-appellant Violeta Gaddao y Catama is acquitted. the right of the individual in the name of order. Order is too high a price for SO ORDERED. the loss of liberty. As Justice Holmes, again, said, 'I think it a less evil that Davide, Jr., C.J., Romero, Bellosillo, Melo, Vitug, Kapunan, Mendoza, some criminals should escape than that the government should play an Martinez, Quisumbing, Purisima, Pardo, Buena and Gonzaga-Reyes, JJ., ignoble part.' It is simply not allowed in the free society to violate a law to concur. enforce another, especially if the law violated is the Constitution itself." Panganiban, J., please see concurring opinion. PANGANIBAN, J., concurring: 1. In Flagrante Delicto Arrests I fully concur with the exhaustive and incisive ponencia of Mr. Justice Section 5 (a) is commonly referred to as the rule on in flagrante delicto Reynato S. Puno. This Decision rightfully brings the Court back to well- arrests. The accused is apprehended at the very moment he is committing or settled doctrines on warrantless arrests and searches, which have seemingly attempting to commit or has just committed an offense in the presence of been modified through an obiter in People v. Ruben Montilla. I just wish to the arresting officer. There are two elements that must concur: (1) the outline some guidelines on when an arrest or a search without a warrant is person to be arrested must execute an overt act indicating that he has just valid. Hopefully, they would be of help, especially to our law enforcers who committed, is actually committing, or is attempting to commit a crime; and are often faced with actual situations that promptly call for their application. (2) such overt act is done in the presence or within the view of the arresting officer. Valid Arrests Without Warrants Section 5 of Rule 113 of the Rules of Court lays down the basic rule on It is not sufficient that the suspect exhibits unusual or strange acts or simply when an arrest without a warrant is lawful. It states: appears suspicious. Thus, in the recent en banc case of Malacat v. Court of "Sec. 5. Arrest without warrant; when lawful. — A peace officer or a Appeals, the Court, through now Chief Justice Hilario G. Davide Jr., held private person may, without a warrant, arrest a person: that the fact that the appellant's eyes were "moving very fast" and looking at (a) When, in his presence, the person to be arrested has committed, is every approaching person were not sufficient to suspect him of "attempting actually committing, or is attempting to commit an offense; to commit a crime," much less to justify his arrest and subsequent search (b) When an offense has in fact just been committed, and he has without a warrant. The Court said that "there was nothing in [Malacat's] personal knowledge of facts indicating that the person to be arrested has behavior or conduct which could have reasonably elicited even mere committed it; and suspicion" that he was armed with a deadly weapon. In other words, there (c) When the person to be arrested is a prisoner who escaped from a was no overt physical act on the part of the suspect, positively indicating penal establishment or place where he is serving final judgment or that he had just committed a crime or was committing or attempting to temporarily confined while his case is pending, or has escaped while being commit one. There was, therefore, no valid reason for the police officers to transferred from one confinement to another. arrest or search him. xxx xxx xxx" The same was true in People v. Mengote, where the arresting police tried to I shall focus my discussion on the first two rules, which have been most justify the warrantless arrest of the appellant on the ground that he appeared frequently misapplied and misinterpreted, not only by law enforcers but suspicious. The "suspicious" acts consisted of his darting eyes and the fact some trial judges and lawyers as well. that his hand was over his abdomen. The Court, rejecting such justification, stated: "By no stretch of the imagination could it have been inferred from At the very outset, I wish to underscore that in both cases the arresting these acts that an offense had just been committed, or was actually being officer must have personal knowledge of the fact of the commission of an committed, or was at least being attempted in their presence." offense. Under Section 5 (a), the officer himself is a witness to the crime; under Section 5 (b), he knows for a fact that a crime has just been In other words, the behavior or conduct of the person to be arrested must be committed. Let me elaborate. clearly indicative of a criminal act. If there is no outward indication at all that calls for an arrest, the suspect cannot be validly apprehended under this paragraph, notwithstanding a tip from an informant that he would at the time be undertaking a felonious enterprise. This doctrine found strength in People v. Aminnudin and again in People v. Thus, while the law enforcers may not actually witness the execution of acts Encinada. In both cases, the appellants were arrested while disembarking constituting the offense, they must have direct knowledge or view of the from a ship, on account of a tip received from an informant that they were crime right after its commission. They should know for a fact that a crime carrying prohibited drugs. The Court invalidated their warrantless arrests, was committed. AND they must also perceive acts exhibited by the person explaining that at the moment of their arrests, the appellants were simply to be arrested, indicating that he perpetrated the crime. Again, mere descending the gangplank, without manifesting any suspicious behavior that intelligence information that the suspect committed the crime will not would reasonably invite the attention of the police. To all appearances, they suffice. The arresting officers themselves must have personal knowledge of were not committing a crime; nor was it shown that they were about to do facts showing that the suspect performed the criminal act. Personal so or had just done so. There was, therefore, no valid reason for their knowledge means actual belief or reasonable grounds of suspicion, based on arrests. actual facts, that the person to be arrested is probably guilty of committing the crime. Adhering to (and having faith in) the above rules, I respectfully disagreed with the distinguished Mr. Justice Florenz D. Regalado in People v. In several cases wherein third persons gave law enforcers information that Montilla, when he upheld the validity of the warrantless arrest of the certain individuals or groups were engaged in some felonious activities, appellant while the latter was merely alighting from a passenger jeepney. I such relayed information was not deemed equivalent to personal knowledge opined that Montilla could not have been perceived as committing a crime of the lawmen. In People v. Burgos, a certain Masamlok informed police while merely alighting from a jeepney carrying a travelling bag and a authorities that the appellant was involved in subversive activities. Acting carton. He did not exhibit any overt act or strange conduct that would on the strength of such information and without securing a judicial warrant, reasonably arouse in the minds of the police suspicion that he was the police proceeded to appellant's house to arrest him. There, they also embarking on a felonious undertaking. There was no outward manifestation allegedly recovered an unlicensed firearm and subversive materials. that he had just committed or was committing or attempting to commit an offense. Mercifully, the statement of the Court that Montilla's arrest was The Court held that there was no personal knowledge on the part of the valid because he was caught in flagrante delicto was only an obiter, for arresting officers, since the information came in its entirety from what finally nailed him down was his implied waiver of any objection to the Masamlok, a civilian. We pointed out that at the time of his arrest, appellant validity of his arrest. was not in actual possession of any firearm or subversive document; neither was he committing a subversive act. His warrantless arrest, therefore, could 2. "Hot Pursuit" Arrests not be allowed under any of the instances in Rule 113, Section 6 (now 5) of Section 5 (b) is otherwise known as the rule on "hot pursuit" arrests. 10 the Rules of Court. Here, two elements must also concur prior to the arrest: (1) an "offense has in fact just been committed," and (2) the arresting officer "has personal Also in Encinada, the appellant was arrested without a warrant, on the knowledge of facts indicating that the person to be arrested . . . committed justification that the arresting officer "received an intelligence report that [the offense]." In effecting this type of arrest, "it is not enough that there is appellant who was carrying marijuana would arrive the next morning reasonable ground to believe that the person to be arrested has committed a aboard M/V Sweet Pearl." The Court categorically stated that such "[r]aw crime. A crime must in fact or actually have been committed first. . . The intelligence information is not a sufficient ground for a warrantless arrest." fact of the commission of the offense must be undisputed." And since, at the time of his arrest, no act or fact demonstrating a felonious enterprise could be ascribed to appellant, there was no valid justification for his arrest. To be distinguished from the above cases are those involving continuing unnecessary as provided by the Rule. We cannot liberally construe the rule offenses for which the culprit could be arrested any time in flagrante on arrests without warrant or extend its application beyond the cases delicto. In Umil v. Ramos, 16 there were strong objections to the specifically provided by law. To do so would infringe upon personal liberty warrantless arrest of a suspected member of the New People's Army (NPA), and set back a basic right so often violated and so deserving of full while he was being treated for a gunshot wound in a hospital. He alleged protection." that there was no valid justification for his arrest without a warrant, because he was not then committing any offense nor were there any indications that Valid Searches Without Warrants he had just committed or was about to commit one; he was in fact confined The general rule is that a judicial warrant must first be duly obtained before in a hospital. search and seizure may be conducted. The only allowable instances in which a search may be conducted without a warrant are: (1) search incident The Court held that subversion, for which he was arrested and subsequently to lawful arrest, (2) search pursuant to the "plain view" doctrine, (3) search charged, was a continuing offense. For purposes of arrest, the Court said, of moving vehicles, (4) searches incidental to violation of customs laws, (5) the NPA member "did not cease to be, or became less of a subversive, . . . search with consent, and (6) a "stop and frisk." simply because he was, at the time of his arrest, confined in the . . . [hospital]." "Unlike other so-called 'common' offenses, i.e. adultery, 1. Search Incident to Lawful Arrest murder, arson, etc., which generally end upon their commission, subversion Section 12 of Rule 126 provides that a lawfully arrested person may be and rebellion are anchored on an ideological base which compels the searched without a warrant for dangerous weapons or anything else that repetition of the same acts of lawlessness and violence until the overriding may be used as evidence of the offense. Such incidental search is, however, object of overthrowing organized government is attained." limited to the person of the arrestee at the time of the apprehension. The search cannot be extended to or made in a place other than the place of the In the above instances where the arrests without warrants were held arrest. unlawful, so were the searches conducted subsequent thereto. Thus, the items seized consequent to the invalid search, though clearly prohibited by 2. The "Plain View" Doctrine law (e.g. marijuana or unlicensed firearm), were considered inadmissible as The "plain view" doctrine applies when the following requisites concur: (1) evidence against the person wrongfully arrested. Important to bear in mind the law enforcement officer is in a position where he has a clear view of a always is that any search conducted without a judicial warrant must be particular area or has prior justification for an intrusion; (2) said officer preceded by a lawful arrest, whether with or without a warrant duly issued inadvertently comes across (or sees in plain view) a piece of incriminating therefor. evidence; and (3) it is immediately apparent to such officer that the item he sees may be evidence of a crime or a contraband or is otherwise subject to To underscore the rationale behind these strict rules, I deem it quite apt to seizure. quote these inspiring words from the precedent-setting case of People v. Burgos: 3. Search of Moving Vehicles "The right of a person to be secure against any unreasonable seizure of his The warrantless search of moving vehicles (including shipping vessels and body and any deprivation of his liberty is a most basic and fundamental one. aircraft) is justified by practicability, viz.: The statute or rule which allows exceptions to the requirement of warrants "The guaranty of freedom from unreasonable searches and seizures of arrest is strictly construed. Any exception must clearly fall within the construed as recognizing a necessary difference between a search of a situations when securing a warrant would be absurd or is manifestly dwelling house or other structure in respect of which a search warrant may readily be obtained and a search of a ship, motorboat, wagon, or automobile 5. Search With Consent for contraband goods, where it is not practicable to secure a warrant, Waiver of any objection to the unreasonableness or invalidity of a search is because the vehicle can be quickly moved out of the locality or jurisdiction a recognized exception to the rule against a warrantless search. 24 The in which the warrant must be sought. consent to the search, however, must be express, knowing and voluntary. A xxx xxx xxx search based merely on implied acquiescence is not valid, because such "The automobile is a swift and powerful vehicle . . . Constructed as covered consent is not within the purview of the constitutional guarantee, but only a vehicles to standard form in immense quantities, and with a capacity for passive conformity to the search given under intimidating and coercive speed rivaling express trains, they furnish for successful commission of circumstances. crime a distinguishing means of silent approach and swift escape unknown in the history of the world before their advent. The question of their police In People v. Lacerna, it was held that the otherwise prohibited intrusive control and reasonable search on highways or other public place is a serious search of appellant's plastic bag was validated by the express consent of question far deeper and broader than their use in so-called 'bootlegging' or appellant himself, who was observed to be "urbanized in mannerism and 'rum running,' which in itself is no small matter. While a possession in the speech," and who moreover stated that he had nothing to hide and had done sense of private ownership, they are but a vehicle constructed for travel and nothing wrong. transportation on highways. Their active use is not in homes or on private premises, the privacy of which the law especially guards from search and 6. "Stop and Frisk" seizure without process. The baffling extent to which they are successfully The "stop and frisk" concept is of American origin, the most notable case utilized to facilitate commission of crime of all degrees, from those against thereon being Terry v. Ohio. The idea is that a police officer may after morality, chastity, and decency to robbery, rape, burglary, and murder, is a properly introducing himself and making initial inquiries, approach and matter of common knowledge. Upon that problem, a condition, and not a restrain a person manifesting unusual and suspicious conduct, in order to theory, confronts proper administration of our criminal laws. Whether check, the latter's outer clothing for possibly concealed weapons. The strict search of and seizure from an automobile upon a highway or other public manner in which this notion should be applied has been laid down as place without a search warrant is unreasonable is in its final analysis to be follows: determined as a judicial question in view of all the circumstances under ". . . where a police officer observes unusual conduct which leads him which it is made." reasonably to conclude in the light of his experience that criminal activity . may be afoot and that the persons with whom he is dealing may be armed 4. Customs Searches and presently dangerous, where in the course of investigating this behavior, Under the Tariff and Customs Code, searches, seizures and arrests may be he identifies himself as a policeman and makes reasonable inquiries, and made even without warrants, for purposes of enforcing customs and tariff where nothing in the initial stages of the encounter serves to dispel his laws. Without mention of the need to priorly obtain a judicial warrant, the reasonable fear for his own and others' safety, he is entitled for the Code specifically allows police authorities to "enter, pass through or search protection of himself and others in the area to conduct a carefully limited any land, enclosure, warehouse, store or building, not being a dwelling search of the outer clothing of such persons in an attempt to discover house; and also to inspect, search and examine any vessel or aircraft and weapons which might be used to assault him." any trunk, package, box or envelope or any person on board[;]or stop and search and examine any vehicle, beast or person suspected of holding or As in the warrantless arrest of a person reasonably suspected of having just conveying any dutiable or prohibited article introduced into the Philippines committed a crime, mere suspicious behavior would not call for a "stop and contrary to law." frisk." There must be a genuine reason, in accordance with the police officer's experience and the surrounding conditions, to warrant the belief that the person to be held has weapons (or contraband) concealed about him.

A valid application of the doctrine was recognized in Posadas v. Court of Appeals and in Manalili v. Court of Appeals. In Manalili, the law enforcers who were members of the Anti-Narcotics Unit of the Caloocan City Police, observed during their surveillance that appellant had red eyes and was walking in a wobbly manner along the city cemetery which, according to police information, was a popular hangout of drug addicts. Based on police experience, such suspicious behavior was characteristic of persons who were "high" on drugs. The Court held that past experience and the surrounding circumstances gave the police sufficient reason to stop the suspect and to investigate if he was really high on drugs. The marijuana that they found in the suspect's possession was held to be admissible in evidence.

Before I end, I must reiterate that the above exceptions to the general rule on the necessity of a judicial warrant for any arrest, search and seizure must all be strictly construed. Foremost in our minds must still be every person's prized and fundamental right to liberty and security, a right protected and guaranteed by our Constitution.

WHEREFORE, I vote to ACQUIT Appellant Violeta Gaddao y Catama, as well as to REDUCE the penalty of Appellant Florencio Dorio y Bolado to reclusion perpetua and a fine of P500,000. PEOPLE OF THE PHILIPPINES, plaintiff-appellee, 2. REMEDIAL LAW; CRIMINAL PROCEDURE; ARREST vs. RUBEN BURGOS y TITO, defendant-appellant. WITHOUT WARRANT; WHEN LAWFUL; ARRESTING OFFICER MUST HAVE PERSONAL KNOWLEDGE OF THE FACT. — Under G.R. No. L-68955 Section 6(a) of rule 113, the officer arresting a person who has just September 4, 1986 committed, is committing, or is about to commit an offense must have personal knowledge of that fact. The offense must also be committed in his SYLLABUS presence or within his view. (Sayo v. Chief of Police, 80 Phil. 859). There is 1. CONSTITUTIONAL LAW; BILL OF RIGHTS; RIGHT OF no such personal knowledge in this case. Whatever knowledge was PERSONS TO BE SECURE AGAINST UNREASONABLE possessed by the arresting officers, it came in its entirety from the SEARCHES AND SEIZURE; RATIONALE. — Article IV, Section 3 of information furnished by Cesar Masamlok. The location of the firearm was the Constitution is a safeguard against wanton and unreasonable invasion of given by the appellant's wife. At the time of the appellant's arrest, he was the privacy and liberty of a citizen as to his person, papers and effects. This not in actual possession of any firearm or subversive document. Neither was Court explained in Villanueva v. Querubin (48 SCRA 345) why this right is he committing any act which could be described as subversive. He was, in so important: "It is deference to one's personality that lies at the core of this fact, plowing his field at the time of the arrest. right, but it could be also looked upon as a recognition of a constitutionally protected area, primarily one's home, but not necessarily thereto confined. (Cf. Hoffa v. United States, 385 US 293 [1966]) What is sought to be 3. CONSTITUTIONAL LAW; BILL OF RIGHTS; RIGHT OF guarded is a man's prerogative to choose who is allowed entry to his PERSONS TO BE SECURE AGAINST ANY UNREASONABLE residence. In what haven of refuge, his individuality can assert itself not SEIZURE; EXCEPTIONS; SHOULD BE STRICTLY CONSTRUED; only in the choice of who shall be welcome but likewise in the kind of REASON. — The right of a person to be secure against any unreasonable objects he wants around him. There the state, however powerful, does not as seizure of his body and any deprivation of his liberty is a most basic and such have access except under the circumstances above noted, for in the fundamental one. The statute or rule which allows exceptions to the traditional formulation, his house, however humble, is his castle. Thus is requirement of warrants of arrest is strictly construed. Any exception must outlawed any unwarranted intrusion by government, which is called upon to clearly fall within the situations when securing a warrant would be absurd refrain from any invasion of his dwelling and to respect the privacies of his or is manifestly unnecessary as provided by the Rule. We cannot liberally life. (Cf. Schmerber v. California, 384 US 757 [1966], Brenna, J. and Boyd construe the rule on arrest without warrant or extend its application beyond v. United States, 116 US 616, 630 [1886]). In the same vein, Landynski in the cases specifically provided by law. To do so would infringe upon his authoritative work (Search and Seizure and the Supreme court [1966]), personal liberty and set back a basic right so often violated and so deserving could fitly characterize this constitutional right as the embodiment of a of full protection. 'spiritual concept: the belief that to value the privacy of home and person and to afford its constitutional protection against the long reach of 4. REMEDIAL LAW; CRIMINAL PROCEDURE; ARREST government is no less than to value human dignity, and that his privacy WITHOUT WARRANT; ACTUAL COMMISSION OF CRIME; must not be disturbed except in case of overriding social need, and then ESSENTIAL PRECONDITION. — In arrests without a warrant under only under stringent procedural safeguards.'" Section 6(b), however, it is not enough that there is reasonable ground to believe that the person to be arrested has committed a crime. A crime must in fact or actually have been committed first. That a crime has actually been committed is an essential precondition. It is not enough to suspect that a crime may have been committed. The fact of the commission of the offense 8. ID.; ID.; RIGHT AGAINST SELF-INCRIMINATION; must be undisputed. The test of reasonable ground applies only to the EVIDENCE OBTAINED IN VIOLATION THEREOF identity of the perpetrator. INADMISSIBLE; ADMISSIONS MADE BY ARRESTING OFFICERS CANNOT BE USED AGAINST ACCUSED. — In proving 5. ID.; ID.; ID.; WAIVER; REQUISITES. — It cannot be ownership of the questioned firearm and alleged subversive documents, the presumed that there was a waiver, or that consent was given by the accused prosecution presented the two arresting officers who testified that the to be searched simply because he failed to object. To constitute a waiver, it accused readily admitted ownership of the gun after his wife pointed to the must appear first that the right exists; secondly, that the person involved had place where it was buried. The officers stated that it was the accused knowledge, actual or constructive, of the existence of such a right; and himself who voluntarily pointed to the place where the alleged subversive lastly, that said person had an actual intention to relinquish the right (Pasion documents were hidden. Assuming this to be true, it should be recalled that Vda. de Garcia v. Locsin, 65 Phil. 689). The fact that the accused failed to the accused was never informed of his constitutional rights at the time of his object to the entry into his house does not amount to a permission to make a arrest. So that when the accused allegedly admitted ownership of the gun search therein (Magoncia v. Palacio, 80 Phil. 770). As pointed out by and pointed to the location of the subversive documents after questioning, Justice Laurel in the case of Pasion Vda. de Garcia v. Locsin (supra): ". . . the admissions were obtained in violation of the constitutional right against As the constitutional guaranty is not dependent upon any affirmative act of self-incrimination under Sec. 20 of Art. IV of the Bill of Rights which the citizen, the courts do not place the citizen in the position of either provides: "No person shall be compelled to be a witness against himself. contesting an officer's authority by force, or waiving his constitutional Any person under investigation for the commission of an offense shall have rights; but instead they hold that a peaceful submission to a search or the right to remain silent and to counsel, and to be informed of such right. . . seizure is not a consent or an invitation thereto, but is merely a ." The Constitution itself mandates that any evidence obtained in violation demonstration of regard for the supremacy of the law. (56 C.J., pp. 1180, of this right is inadmissible in evidence. Consequently, the testimonies of 1181)." the arresting officers as to the admissions made by the appellant cannot be used against him. 6. CONSTITUTIONAL LAW; BILL OF RIGHTS; RIGHT OF PERSONS TO BE SECURE AGAINST UNREASONABLE 9. REMEDIAL LAW; EVIDENCE; RULE THAT FINDINGS SEARCHES AND SEIZURE; WAIVER THEREOF NOT OF FACTS OF TRIAL COURT GENERALLY GIVEN GREAT PRESUMED. — We apply the rule that: "courts indulge every reasonable RESPECT; NOT ABSOLUTE; REASON. — We are not necessarily presumption against waiver of fundamental constitutional rights and that we bound by the credibility which the trial court attaches to a particular do not presume acquiescence in the loss of fundamental rights." (Johnson v. witness. As stated in People v. Cabrera (100 SCRA 424): ". . . Time and Zerbst, 304 U.S. 458). again we have stated that when it comes to question of credibility the findings of the trial court are entitled to great respect upon appeal for the 7. ID.; ID.; ID.; DOCUMENTS OBTAINED IN VIOLATION obvious reason that it was able to observe the demeanor, actuations and THEREOF, INADMISSIBLE AS EVIDENCE. — Considering that the deportment of the witnesses during the trial. But we have also said that this questioned firearm and the alleged subversive documents were obtained in rule is not absolute for otherwise there would be no reversals of convictions violation of the accused's constitutional rights against unreasonable searches upon appeal. We must reject the findings of the trial court where the record and seizures, it follows that they are inadmissible as evidence. discloses circumstances of weight and substance which were not properly appreciated by the trial court." D E C I S I O N issued to and used by the accused at Tiguman, Digos, Davao del Sur, his GUTIERREZ, JR., J p: area of operations by one Alias Commander Pol for the New People's Army This is an appeal from the decision of the Regional Trial Court of Davao del (NPA), a subversive organization organized for the purpose of Sur, 11th Judicial Region, Digos, Davao del Sur convicting defendant- overthrowing the Government of the Republic of the Philippines through appellant Ruben Burgos y Tito of the crime of Illegal Possession of lawless and violent means, of which the accused had knowledge, and which Firearms in Furtherance of Subversion. The dispositive portion of the firearm was used by the accused in the performance of his subversive tasks decision reads: such as the recruitment of New Members to the NPA and collection of "WHEREFORE, finding the guilt of accused Ruben Burgos sufficiently contributions from the members. established beyond reasonable doubt, of the offense charged, pursuant to Presidential Decree No. 9, in relation to General Order No. 6, dated "CONTRARY TO LAW." September 22, 1972, and General Order No. 7, dated September 23, 1972, The evidence for the prosecution is summarized in the decision of the lower in relation further to Presidential Decree No. 885, and considering that the court as follows: firearm subject of this case was not used in the circumstances as embraced xxx xxx xxx in paragraph 1 thereof, applying the provision of indeterminate sentence ". . . Through the testimony of Pat. Pepito Bioco, and Sgt. Romeo Taroy, it law, accused Ruben Burgos is hereby sentenced to suffer an imprisonment appears that by virtue of an intelligent information obtained by the of twenty (20) years of reclusion temporal maximum, as minimum penalty, Constabulary and INP units, stationed at Digos, Davao del Sur, on May 12, to reclusion perpetua, as maximum penalty, pursuant to sub-paragraph B, of 1982, one Cesar Masamlok personally and voluntarily surrendered to the Presidential Decree No. 9, as aforementioned, with accessory penalties, as authorities at about 9:00 o'clock A.M. at Digos, Davao del Sur Constabulary provided for by law. Headquarters, stating that he was forcibly recruited by accused Ruben Burgos as member of the NPA, threatening him with the use of firearm "As a result of this judgment, the subject firearm involved in this case against his life, if he refused. (Homemade revolver, caliber .38, Smith and Wesson, with Serial No. 8.69221) is hereby ordered confiscated in favor of the government, to be "Along with his recruitment, accused was asked to contribute one (1) chopa disposed of in accordance with law. Likewise, the subversive documents, of rice and one peso (P1.00) per month, as his contribution to the NPA leaflets and/or propaganda seized are ordered disposed of in accordance (TSN, page 5, Hearing - October 14, 1982). with law." "Immediately, upon receipt of said information, a joint team of PC-INP units, composed of fifteen (15) members, headed by Captain Melchesideck The information charged the defendant-appellant with the crime of illegal Bargio, (PC), on the following day, May 13, 1982, was dispatched at possession of firearm in furtherance of subversion in an information which Tiguman; Davao del Sur, to arrest accused Ruben Burgos. The team left the reads as follows: headquarter at 1:30 P.M., and arrived at Tiguman, at more or less 2:00 "That in the afternoon of May 13, 1982 and thereabouts at Tiguman, Digos, o'clock P.M., where through the help of Pedro Burgos, brother of accused, Davao del Sur, Philippines, within the jurisdiction of this Court, the above- the team was able to locate accused, who was plowing his field. (TSN, named accused with intent to possess and without the necessary license, pages 6-7, Hearing October 14, 1982). permit or authority issued by the proper government agencies, did then and there wilfully, unlawfully and feloniously keep, possess, carry and have in "Right in the house of accused, the latter was called by the team and Pat. his possession, control and custody one (1) homemade revolver, caliber .38, Bioco asked accused about his firearm, as reported by Cesar Masamlok. At make Smith and Wesson, with Serial No. 8.69221, which firearm was first accused denied possession of said firearm but later, upon question propounded by Sgt. Alejandro Buncalan with the wife of the accused, the the NPA of which he is now a member. (TSN, pages 70, 71, 72, Hearing — latter pointed to a place below their house where a gun was buried in the January 4, 1983). ground. (TSN, page 8, Hearing — October 14, 1982). "Accused and his companions told Masamlok, he has to join their group "Pat. Bioco then verified the place pointed by accused's wife and dug the otherwise, he and his family will be killed. He was also warned not to grounds, after which he recovered the firearm, Caliber .38 revolver, marked reveal anything with the government authorities. Because of the threat to his as Exhibit "A" for the prosecution. life and family, Cesar Masamlok joined the group. Accused then told him, he should attend a seminar scheduled on April 19, 1982. Along with this "After the recovery of the firearm, accused likewise pointed to the team, invitation, accused pulled out from his waistline a .38 caliber revolver subversive documents which he allegedly kept in a stock pile of cogon, at a which Masamlok really saw, being only about two (2) meters away from distance of three (3) meters apart from his house. Then Sgt. Taroy accused, which make him easily identified said firearm, as that marked as accordingly verified beneath said cogon grass and likewise recovered Exhibit "A" for the prosecution (TSN, pages 72, 73, and 74, Hearing — documents consisting of notebook colored maroon with spiral bound, January 4, 1983). Exhibit "B" for the prosecution; a pamphlet consisting of eight (8) leaves, including the front and back covers entitled Ang Bayan, Pahayagan ng "On April 19, 1982, as previously invited, Masamlok, accompanied by his Partido Komunista ng Pilipinas, Pinapatnubayan ng Marxismo, Leninismo, father, Matuguil Masamlok, Isabel Ilan and Ayok Ides went to the house of Kaisipang Mao Zedong, dated December 31, 1980, marked as Exhibit "C", accused and attended the seminar. Those present in the seminar were: and another pamphlet Asdang Pamantalaang Masa sa Habagatang accused Ruben Burgos, Antonio Burgos, Oscar Gomez, Landrino Burgos, Mindanao, March and April 1981 issue, consisting of ten (10) pages, alias Pedipol and one alias Jamper. marked as Exhibit "D" for the prosecution. "The first speaker was accused Ruben Burgos, who said very distinctly that "Accused, when confronted with the firearm, Exhibit "A", after its recovery, he is an NPA together with his companions, to assure the unity of the readily admitted the same as issued to him by Nestor Jimenez, otherwise civilian. That he encouraged the group to overthrow the government, known as a certain Alias Pedipol, allegedly team leader of the sparrow unit emphasizing that those who attended the seminar were already members of of New People's Army, responsible in the liquidation of target personalities, the NPA, and if they reveal to the authorities, they will be killed. opposed to NPA ideological movement, an example was the killing of the late Mayor Llanos and Barangay Captain of Tienda Aplaya, Digos, Davao "Accused, while talking, showed to the audience pamphlets and documents, del Sur. (TSN, pages 1-16, Hearing — October 14, 1982). then finally shouted, the NPA will be victorious. Masamlok likewise identified the pamphlets as those marked as Exhibits "B", "C", and "D" for "To prove accused's subversive activities, Cesar Masamlok, a former NPA the prosecution. (TSN, pages 75, 76 and 77, Hearing — January 4, 1983). convert was presented, who declared that on March 7, 1972, in his former residence at Tiguman, Digos, Davao del Sur, accused Ruben Burgos, "Other speakers in said meeting were Pedipol, Jamper and Oscar Gomez, accompanied by his companions Landrino Burgos, Oscar Gomez and who likewise expounded their own opinions about the NPA, It was also Antonio Burgos, went to his house at about 5:00 o'clock P.M. and called announced in said seminar that a certain Tonio Burgos, will be responsible him downstairs. Thereupon, accused told Masamlok, their purpose was to for the collection of the contribution from the members. (TSN, pages 78-79, ask rice and one (1) peso from him, as his contribution to their companions, Hearing — January 4, 1983). "On May 12, 1982, however, Cesar Masamlok surrendered to Captain his name included among the lists of persons who applied for the licensing Bargio of the Provincial Headquarters of the Philippine Constabulary, of the firearm, under Presidential Decree No. 1745. Digos, Davao del Sur. "After the above-testimony the prosecution formally closed its case and "Assistant Provincial Fiscal Panfilo Lovitos was presented to prove that on offered its exhibits, which were all admitted in evidence, despite objection May 19, 1982, he administered the subscription of the extra-judicial interposed by counsel for accused, which was accordingly overruled." confession of accused Ruben Burgos, marked as Exhibit "E" for the prosecution, consisting of five (5) pages. On the other hand, the defendant-appellant's version of the case against him is stated in the decision as follows: "Appearing voluntarily in said office, for the subscription of his confession, "From his farm, the military personnel, whom he said he cannot recognize, Fiscal Lovitos, realizing that accused was not represented by counsel, brought him to the PC Barracks at Digos, Davao del Sur, and arrived there requested the services of Atty. Anyog, whose office is adjacent to the at about 3:00 o'clock, on the same date. At about 8:00 o'clock P.M., in the Fiscal's Office, to assist accused in the subscription of his extrajudicial evening, he was investigated by soldiers, whom he cannot identify because statement. they were wearing a civilian attire. (TSN, page 141, Hearing — June 15, 1983). "Atty. Anyog assisted accused in the reading of his confession from English to Visayan language, resulting to the deletion of question No. 19 of the "The investigation was conducted in the PC barracks, where he was document, by an inserted certification of Atty. Anyog and signature of detained with respect to the subject firearm, which the investigator, wished accused, indicating his having understood, the allegations of his him to admit but accused denied its ownership. Because of his refusal, extrajudicial statement. accused was mauled, hitting him on the left and right side of his body which rendered him unconscious. Accused in an atmosphere of tersed solemnity, "Fiscal Lovitos, before accused signed his statement, explained to him his crying and with emotional attachment, described in detail how he was constitutional rights to remain silent, light to counsel and right to answer tortured and the ordeals he was subjected. any question propounded or not. "He said, after recovery of his consciousness, he was again confronted with "With the aid of Atty. Anyog, accused signed his confession in the presence subject firearm, Exhibit "A", for him to admit and when he repeatedly of Atty. Anyog and Fiscal Lovitos, without the presence of military refused to accept as his own firearm, he was subjected to further prolong authorities, who escorted the accused, but were sent outside the cubicle of (sic) torture and physical agony. Accused said, his eyes were covered with Fiscal Lovitos, while waiting for the accused. (TSN, pages 36-40, Hearing wet black cloth with pungent effect on his eyes. He was undressed, with — November 15, 1982). only blindfold, pungent water poured in his body and over his private parts, making his entire body, particularly his penis and testicle, terribly irritating "Finally, in order to prove illegal possession by accused of the subject with pungent pain. firearm, Sgt. Epifanio Comabig, in-charge of firearms and explosives, NCO, Headquarter, Philippine Constabulary, Digos, Davao del Sur, was "All along, he was investigated to obtain his admission. The process of presented and testified, that among the lists of firearm holders in Davao del beating, mauling, pain and or ordeal was repeatedly done in similar cycle, Sur, nothing was listed in the name of accused Ruben Burgos, neither was from May 13 and 14, 1982, intercepted only whenever he fell unconscious and again repeated after recovery of his senses. "Finally on May 15, 1982, after undergoing the same torture and physical her son, Rogelio Arellano, was likewise charged for subversion filed in the ordeal, he was seriously warned, if he win still adamantly refuse to accept Municipal Trial Court of Digos, Davao del Sur, but was likewise dismissed ownership of the subject firearm, he will be salvaged, and no longer able to for lack of sufficient evidence to sustain his conviction. (TSN, pages 121- bear any further the pain and agony, accused admitted ownership of subject 122, in relation to her cross-examination, Hearing — May 18, 1983). firearm. "To support accused's denial of the charge against him, Barangay Captain of "After his admission, the mauling and torture stopped, but accused was Tiguman, Digos, Davao del Sur, Salvador Galaraga was presented, who made to sign his affidavit marked as Exhibit "E" for the prosecution, declared, he was not personally aware of any subversive activities of consisting of five (5) pages, including the certification of the administering accused, being his neighbor and member of his barrio. On the contrary, he officer. (TSN, pages 141-148, Hearing - June 15, 1983). can personally attest to his good character and reputation, as a law abiding citizen of his barrio, being a carpenter and farmer thereat. (TSN, pages 128- "In addition to how he described the torture inflicted on him, accused, by 129, Hearing — May 18, 1983). way of explanation and commentary in details, and going one by one, the allegations and or contents of his alleged extra-judicial statement, attributed "He, however, admitted in cross-examination, that there were a lot of arrests his answers to those questions involuntarily made only because of fear, made by the authorities in his barrio involving subversive activities but they threat and intimidation of his person and family, as a result of unbearable were released and were not formally charged in Court because they publicly excruciating pain he was subjected by an investigator, who, unfortunately took their oath of allegiance with the government. (TSN, pages 133-134, in he cannot identify and was able to obtain his admission of the subject relation to page 136, Hearing — May 18, 1983). firearm, by force and violence exerted over his person. "Finally, to support accused's denial of the subject firearm, his wife, Urbana Burgos, was presented and who testified that the subject firearm was left in "To support denial of accused of being involved in any subversive their house by Cesar Masamlok and one Pedipol on May 10, 1982. It was activities, and also to support his denial to the truth of his alleged extra- night time, when the two left the gun, alleging that it was not in order, and judicial confession, particularly questions Nos. 35, 38, 41, 42, 43, 44, 45, 46 that they will leave it behind, temporarily, for them to claim it later. They and 47, along with his answers to those questions, involving Honorata were the ones who buried it. She said, her husband, the accused, was not in Arellano alias Inday Arellano, said Honorata Arellano appeared and their house at that time and that she did not inform him about said firearm declared categorically, that the above-questions embraced in the numbers neither did she report the matter to the authorities, for fear of the life of her allegedly stated in the extra-judicial confession of accused, involving her to husband. (TSN, page 24, November 22, 1983). such NPA personalities, as Jamper, Pol, Anthony, etc., were not true because on the date referred on April 28, 1982, none of the persons "On cross-examination, she said, even if Masamlok during the recovery of mentioned came to her house for treatment, neither did she meet the the firearm, was wearing a mask, she can still identify him (TSN, page 6, accused nor able to talk with him. (TSN, pages 118-121, Hearing — May Hearing - November 22, 1983). 18, 1983). "After the above-testimony, accused through counsel formally rested his "She, however, admitted being familiar with one Oscar Gomez, and that she case, in support of accused's through counsel manifestation for the demurrer was personally charged with subversion in the Office of the Provincial to evidence of the prosecution, or in the alternative for violation merely of Commander, Philippine Constabulary, Digos, Davao del Sur, but said simple illegal possession of firearm, under the Revised Administrative charge was dismissed without reaching the Court. She likewise stated that Code, as amended by Republic Act No. 4, reflected in the manifestation of he may produce, and particularly describing the place to be searched, and counsel for accused. (TSN, pages 113-114, Hearing — May 18, 1983)" the persons or things to be seized."

Accused-appellant Ruben Burgos now raises the following assignments of The constitutional provision is a safeguard against wanton and unreasonable error, to wit: invasion of the privacy and liberty of a citizen as to his person, papers and I — THE TRIAL COURT ERRED IN HOLDING THAT (SIC) THE effects. This Court explained in Villanueva v. Querubin (48 SCRA 345) ARREST OF ACCUSED-APPELLANT WITHOUT VALID WARRANT why this right is so important: TO BE LAWFUL. II — THE TRIAL COURT ERRED IN HOLDING THE SEARCH IN THE "It is deference to one's personality that lies at the core of this right, but it HOUSE OF ACCUSED-APPELLANT FOR FIREARM WITHOUT could be also looked upon as a recognition of a constitutionally protected VALID WARRANT TO BE LAWFUL. area, primarily one's home, but not necessarily thereto confined. (Cf. Hoffa III — THE TRIAL COURT ERRED IN HOLDING ACCUSED- v. United States, 385 US 293 [1966]) What is sought to be guarded is a APPELLANT GUILTY BEYOND REASONABLE DOUBT FOR man's prerogative to choose who is allowed entry to his residence. In that VIOLATION OF P.D. No. 9 IN RELATION TO GENERAL ORDERS haven of refuge, his individuality can assert itself not only in the choice of NOS. 6 AND 7. who shall be welcome but likewise in the kind of objects he wants around him. There the state, however powerful, does not as such have access except Was the arrest of Ruben Burgos lawful? Were the search of his house and under the circumstances above noted, for in the traditional formulation, his the subsequent confiscation of a firearm and documents allegedly found house, however humble, is his castle. Thus is outlawed any unwarranted therein conducted in a lawful and valid manner? Does the evidence intrusion by government, which is called upon to refrain from any invasion sustaining the crime charged meet the test of proving guilt beyond of his dwelling and to respect the privacies of his life. (Cf. Schmerber v. reasonable doubt? California, 384 US 757 [1966], Brennan, J. and Boyd v. United States, 116 US 616, 630 [1886]). In the same vein, Landynski in his authoritative work The records of the case disclose that when the police authorities went to the (Search and Seizure and the Supreme Court [1966], could fitly characterize house of Ruben Burgos for the purpose of arresting him upon information this constitutional right as the embodiment of a `spiritual concept: the belief given by Cesar Masamlok that the accused allegedly recruited him to join that to value the privacy of home and person and to afford its constitutional the New People's Army (NPA), they did not have any warrant of arrest or protection against the long reach of government is no less than to value search warrant with them (TSN, p. 25, October 14, 1982; and TSN, p. 61, human dignity, and that his privacy must not be disturbed except in case of November 15, 1982). overriding social need, and then only under stringent procedural safeguards.' (Ibid, p. 47)." Article IV, Section 3 of the Constitution provides: "The right of the people to be secure in their persons, houses, papers, and The trial court justified the arrest of the accused-appellant without any effects against unreasonable searches and seizures of whatever nature and warrant as falling under one of the instances when arrests may be validly for any purpose shall not be violated, and no search warrant or warrant of made without a warrant. Rule 113, Section 6 ** of the Rules of Court, arrest shall issue except upon probable cause to be determined by the judge, provides the exceptions as follows: or such other responsible officer as may be authorized by law, after a) When the person to be arrested has committed, is actually examination under oath or affirmation of the complainant and the witnesses committing, or is about to commit an offense in his presence; b) When an offense has in fact been committed, and he has The right of a person to be secure against any unreasonable seizure of his reasonable ground to believe that the person to be arrested has committed it; body and any deprivation of his liberty is a most basic and fundamental one. c) When the person to be arrested is a prisoner who has escaped from The statute or rule which allows exceptions to the requirement of warrants a penal establishment or place where he is serving final judgment or of arrest is strictly construed. Any exception must clearly fall within the temporarily confined while his case is pending, or has escaped while being situations when securing a warrant would be absurd or is manifestly transferred from one confinement to another. unnecessary as provided by the Rule. We cannot liberally construe the rule on arrests without warrant or extend its application beyond the cases The Court stated that even if there was no warrant for the arrest of Burgos, specifically provided by law. To do so would infringe upon personal liberty the fact that "the authorities received an urgent report of accused's and set back a basic right so often violated and so deserving of full involvement in subversive activities from a reliable source (report of Cesar protection. Masamlok) the circumstances of his arrest, even without judicial warrant, is lawfully within the ambit of Section 6-A of Rule 113 of the Rules of Court The Solicitor General is of the persuasion that the arrest may still be and applicable jurisprudence on the matter." considered lawful under Section 6(b) using the test of reasonableness. He submits that the information given by Cesar Masamlok was sufficient to If the arrest is valid, the consequent search and seizure of the firearm and induce a reasonable ground that a crime has been committed and that the the alleged subversive documents would become an incident to a lawful accused is probably guilty thereof. arrest as provided by Rule 126, Section 12, which states: "A person charged with an offense may be searched for dangerous weapons In arrests without a warrant under Section 6(b), however, it is not enough or anything which may be used as proof of the commission of the offense." that there is reasonable ground to believe that the person to be arrested has committed a crime. A crime must in fact or actually have been committed The conclusions reached by the trial court are erroneous. first. That a crime has actually been committed is an essential precondition. Under Section 6(a) of Rule 113, the officer arresting a person who has just It is not enough to suspect that a crime may have been committed. The fact committed, is committing, or is about to commit an offense must have of the commission of the offense must be undisputed. The test of reasonable personal knowledge of that fact. The offense must also be committed in his ground applies only to the identity of the perpetrator. presence or within his view. (Sayo v. Chief of Police, 80 Phil. 859). In this case, the accused was arrested on the sole basis of Masamlok's verbal There is no such personal knowledge in this case. Whatever knowledge was report. Masamlok led the authorities to suspect that the accused had possessed by the arresting officers, it came in its entirety from the committed a crime. They were still fishing for evidence of a crime not yet information furnished by Cesar Masamlok. The location of the firearm was ascertained. The subsequent recovery of the subject firearm on the basis of given by the appellant's wife. information from the lips of a frightened wife cannot make the arrest lawful. If an arrest without warrant is unlawful at the moment it is made, generally At the time of the appellant's arrest, he was not in actual possession of any nothing that happened or is discovered afterwards can make it lawful. The firearm or subversive document. Neither was he committing any act which fruit of a poisoned tree is necessarily also tainted. could be described as subversive. He was, in fact, plowing his field at the time of the arrest. More important, we find no compelling reason for the haste with which the arresting officers sought to arrest the accused. We fail to see why they failed to first go through the process of obtaining a warrant of arrest, if indeed they had reasonable ground to believe that the accused had truly presume acquiescence in the loss of fundamental rights." (Johnson v. committed a crime. There is no showing that there was a real apprehension Zerbst, 304 U.S. 458). that the accused was on the verge of flight or escape. Likewise, there is no showing that the whereabouts of the accused were unknown. That the accused-appellant was not apprised of any of his constitutional rights at the time of his arrest is evident from the records: The basis for the action taken by the arresting officer was the verbal report ATTY. CALAMBA: made by Masamlok who was not required to subscribe his allegations under "Q When you went to the area to arrest Ruben Burgos, you were not oath. There was no compulsion for him to state truthfully his charges under armed with an arrest warrant? pain of criminal prosecution. (TSN, p. 24, October 14, 1982). Consequently, "A None Sir. the need to go through the process of securing a search warrant and a "Q Neither were you armed with a search warrant? warrant of arrest becomes even more clear. The arrest of the accused while "A No Sir. he was plowing his field is illegal. The arrest being unlawful, the search and "Q As a matter of fact, Burgos was not present in his house when you seizure which transpired afterwards could not likewise be deemed legal as went there? being mere incidents to a valid arrest. "A But he was twenty meters away from his house. "Q Ruben Burgos was then plowing his field? Neither can it be presumed that there was a waiver, or that consent was "A Yes Sir. given by the accused to be searched simply because he failed to object. To "Q When you called for Ruben Burgos you interviewed him? constitute a waiver, it must appear first that the right exists; secondly, that "A Yes Sir. the person involved had knowledge, actual or constructive, of the existence "Q And that you told him that Masamlok implicated him? of such a right; and lastly, that said person had an actual intention to "A No Sir. relinquish the right (Pasion Vda. de Garcia v. Locsin, 65 Phil. 689). The "Q What did you tell him? fact that the accused failed to object to the entry into his house does not "A That we received information that you have a firearm, you amount to a permission to make a search therein (Magoncia v. Palacio, 80 surrender that firearm, first he denied but when Sgt. Buncalan interviewed Phil. 770). As pointed out by Justice Laurel in the case of Pasion Vda. de his wife, his wife told him that it is buried, I dug the firearm which was Garcia v. Locsin (supra): wrapped with a cellophane. xxx xxx xxx "Q In your interview of Burgos you did not remind him of his rights ". . . As the constitutional guaranty is not dependent upon any affirmative under the constitution considering that he was purposely under arrest? act of the citizen, the courts do not place the citizen in the position of either "A I did not. contesting an officer's authority by force, or waiving his constitutional "Q As a matter of fact, he denied that he has ever a gun? rights; but instead they hold that a peaceful submission to a search or "A Yes Sir. seizure is not a consent or an invitation thereto, but is merely a "Q As a matter of fact, the gun was not in his possession? demonstration of regard for the supremacy of the law. (56 C.J., pp. 1180, "A It was buried down in his house. 1181)." "Q As a matter of fact, Burgos did not point to where it was buried? "A Yes Sir."(TSN, pp. 25-26, Hearing — October 14, 1982). We apply the rule that: "courts indulge every reasonable presumption against waiver of fundamental constitutional rights and that we do not Considering that the questioned firearm and the alleged subversive documents were obtained in violation of the accused's constitutional rights against unreasonable searches and seizures, it follows that they are Office was too late. It could have no palliative effect. It cannot cure the inadmissible as evidence. absence of counsel at the time of the custodial investigation when the There is another aspect of this case. extrajudicial statement was being taken.

In proving ownership of the questioned firearm and alleged subversive With the extra-judicial confession, the firearm, and the alleged subversive documents, the prosecution presented the two arresting officers who documents inadmissible in evidence against the accused-appellant, the only testified that the accused readily admitted ownership of the gun after his remaining proof to sustain the charge of Illegal Possession of Firearm in wife pointed to the place where it was buried. The officers stated that it was Furtherance of Subversion is the testimony of Cesar Masamlok. the accused himself who voluntarily pointed to the place where the alleged subversive documents were hidden. We find the testimony of Masamlok inadequate to convict Burgos beyond reasonable doubt. It is true that the trial court found Masamlok's testimony Assuming this to be true, it should be recalled that the accused was never credible and convincing. However, we are not necessarily bound by the informed of his constitutional rights at the time of his arrest. So that when credibility which the trial court attaches to a particular witness. As stated in the accused allegedly admitted ownership of the gun and pointed to the People v. Cabrera (100 SCRA 424): location of the subversive documents after questioning, the admissions were xxx xxx xxx obtained in violation of the constitutional right against self-incrimination ". . . Time and again we have stated that when it comes to question of under Sec. 20 of Art. IV of the Bill of Rights which provides: credibility the findings of the trial court are entitled to great respect upon "No person shall be compelled to be a witness against himself. Any person appeal for the obvious reason that it was able to observe the demeanor, under investigation for the commission of an offense shall have the right to actuations and deportment of the witnesses during the trial. But we have remain silent and to counsel, and to be informed of such right . . ." also said that this rule is not absolute for otherwise there would be no reversals of convictions upon appeal. We must reject the findings of the trial The Constitution itself mandates that any evidence obtained in violation of court where the record discloses circumstances of weight and substance this right is inadmissible in evidence. Consequently, the testimonies of the which were not properly appreciated by the trial court." arresting officers as to the admissions made by the appellant cannot be used against him. The situation under which Cesar Masamlok testified is analogous to that The trial court validly rejected the extra-judicial confession of the accused found in People v. Capadocia (17 SCRA 981): as inadmissible in evidence. The court stated that the appellant's having "The case against appellant is built on Ternura's testimony, and the issue been exhaustively subjected to physical terror, violence, and third degree hinges on how much credence can be accorded to him. The first measures may not have been supported by reliable evidence but the failure consideration is that said testimony stands uncorroborated. Ternura was the to present the investigator who conducted the investigation gives rise to the only witness who testified on the mimeographing incident . . . "provocative presumption" that indeed torture and physical violence may xxx xxx xxx have been committed as stated. ". . . He was a confessed Huk under detention at the time. He knew his fate The accused-appellant was not accorded his constitutional right to be depended upon how much he cooperated with the authorities, who were assisted by counsel during the custodial interrogation. The lower court then engaged in a vigorous anti-dissident campaign. As in the case of correctly pointed out that the securing of counsel, Atty. Anyog, to help the Rodrigo de Jesus, whose testimony We discounted for the same reason, that accused when he subscribed under oath to his statement at the Fiscal's of Ternura cannot be considered as proceeding from a totally unbiased People v. Nazareno, 80 SCRA 484; People v. Gabilan, 115 SCRA 1; People source . . ." v. Gabiana, 117 SCRA 260; and People v. Ibanga, 124 SCRA 697)." In the instant case, Masamlok's testimony was totally uncorroborated. Considering that Masamlok surrendered to the military, certainly his fate We are aware of the serious problems faced by the military in Davao del depended on how eagerly he cooperated with the authorities. Otherwise, he Sur where there appears to be a well-organized plan to overthrow the would also be charged with subversion. The trade-off appears to be his Government through armed struggle and replace it with an alien system membership in the Civil Home Defense Force. (TSN, p. 83, January 4, based on a foreign ideology. The open defiance against duly constituted 1983). Masamlok may be considered as an interested witness. It can not be authorities has resulted in unfortunate levels of violence and human said that his testimony is free from the opportunity and temptation to be suffering publicized all over the country and abroad. Even as we reiterate exaggerated and even fabricated for it was intended to secure his freedom. the need for all freedom loving citizens to assist the military authorities in their legitimate efforts to maintain peace and national security, we must also Despite the fact that there were other persons present during the alleged remember the dictum in Morales v. Enrile (121 SCRA 538, 569) when this NPA seminar of April 19, 1982 i.e., Masamlok's father Matuguil Masamlok, Court stated: Isabel Ilan and Ayok Ides (TSN, p. 74, January 4, 1983) who could have "While the government should continue to repel the communists, the corroborated Cesar Masamlok's testimony that the accused used the gun in subversives, the rebels, and the lawless with all the means at its command, furtherance of subversive activities or actually engaged in subversive acts, it should always be remembered that whatever action is taken must always the prosecution never presented any other witness. be within the framework of our Constitution and our laws."

This Court is, therefore, constrained to rule that the evidence presented by Violations of human rights do not help in overcoming a rebellion. A the prosecution is insufficient to prove the guilt of the accused beyond cavalier attitude towards constitutional liberties and protections will only reasonable doubt. fan the increase of subversive activities instead of containing and As held in the case of People v. Bania (34 SCRA 347): suppressing them. "It is evident that once again, reliance can be placed on People v. Dramayo (42 SCRA 59), where after stressing that accusation is not, according to the WHEREFORE, the judgment of conviction rendered by the trial court is fundamental law, synonymous with guilt, it was made clear: `Only if the REVERSED and SET ASIDE. The accused-appellant is hereby judge below and the appellate tribunal could arrive at a conclusion that the ACQUITTED, on grounds of reasonable doubt, of the crime with which he crime had been committed precisely by the person on trial under such an has been charged. exacting test should the sentence be one of conviction. It is thus required that every circumstance favoring his innocence be duly taken into account. The subject firearm involved in this case (homemade revolver, caliber .38, The proof against him must survive the test of reason; the strongest Smith and Wesson, with Serial No. 8.69221) and the alleged subversive suspicion must not be permitted to sway judgment. The conscience must be documents are ordered disposed of in accordance with law. satisfied that on the defendant could be laid the responsibility for the Cost de oficio. offense charged; that not only did he perpetrate the act but that it amounted to a crime. What is required then is moral certainty.' (Ibid, 64. Cf. People v. SO ORDERED. Alvarez, 55 SCRA 81; People v. Joven, 64 SCRA 126; People v. Ramirez, Feria (Chairman), Fernan, Alampay and Paras, JJ., concur. 69 SCRA 144; People v. Godoy, 72 SCRA 69; People v. Lopez, 74 SCRA 205; People v. Poblador, 76 SCRA 634; People v. Quiazon, 78 SCRA 513; PEOPLE OF THE PHILIPPINES, plaintiff-appellee, SYLLABUS vs. WENCESLAO JAYSON, accused-appellant. 1. REMEDIAL LAW; CRIMINAL PROCEDURE; WARRANTLESS ARREST AND SEARCH; LAWFUL IN CASE AT G.R. No. 120330 BAR. — SPO1 Loreto Tenebro testified that in the evening of March 16, November 18, 1997 1991, while he and Patrolmen Camotes and Racolas were patrolling in their car, they received a radio message from their camp directing them to SYNOPSIS proceed to the "Ihaw-Ihaw" on Bonifacio Street where there had been a Accused-appellant, a bouncer in one nightclub, shot one Nelson Jordan. shooting. Accordingly, they proceeded to the place and there saw the When arrested, a .38 caliber revolver, four live bullets, and one empty shell victim, Nelson Jordan. Bystanders pointed to accused-appellant as the one were recovered from him. The firearm and the ammunition were covered by who had shot Jordan. They then arrested accused-appellant. Seized from a memorandum receipt and a mission order issued by Major Francisco him was a .38 caliber revolver with serial number 91955. Considering these Arquillano of the Davao Metropolitan District Command authorizing facts, the warrantless arrest was valid under Rule 113, Section 5(b) of the appellant to carry the said firearm and twelve rounds of ammunition. He Revised Rules of Criminal Procedure. The arresting officers acted on the was charged of illegal possession of firearm. The Regional Trial Court basis of personal knowledge of the death of the victim and of facts found him guilty and sentenced him to 20 years imprisonment, ruling that indicating that accused-appellant was the assailant. The subsequent search appellant acted in good faith, believing that the mission order and of accused-appellant's person and the seizure from him of the firearm was memorandum receipt issued to him were valid. On appeal, the Court of likewise lawful under Rule 126, Section 12. Appeals increased the penalty to reclusion perpetua. 2. CRIMINAL LAW; ILLEGAL POSSESSION OF FIREARM; As found by the Court of Appeals, Major Arquillano was not authorized to PRESENT WHERE MEMORANDUM RECEIPT AND MISSION issue the mission order in question, as he was not any of the officers ORDER NOT VALID. — Accused-appellant is liable for illegal mentioned in the Implementing Rules and Regulations of P.D. No. 1866. possession of firearm. His defense is that the gun is covered by a Neither was appellant qualified to have a mission order because he was a memorandum receipt and mission order issued by Major Arquillano, then mere reserve of the CAFGU without regular monthly compensation. Good Deputy Commander of the Civil-Military Operation and CAFGU Affairs of faith is not a valid defense where the offense committed is malum the Davao Metropolitan District Command. The issuance of mission orders prohibitum. is governed by Memorandum Circular No. 8 dated October 16, 1986 of the then Ministry of Justice. Under the same, Major Arquillano was not The penalty for illegal possession of firearm reduced under R.A. No. 8294, authorized to issue the mission order in question. Neither was accused- amending P.D. No. 1866 cannot be applied in this case in view of the appellant qualified to have a mission order. Major Arquillano was not proviso that the lighter penalty does not apply to cases where another crime authorized to issue mission orders to civilian agents of the AFP as he was has been committed. Nor can illegal possession of firearm be appreciated as not any of the following officers mentioned in the Implementing Rules and a mere aggravating circumstance because although the gun seized was used Regulations of P.D. No. 1866, Section 5(a). That Colonel Calida had in the commission of a crime, this case concern solely the charge of illegal authorized him (Major Arquillano) to exercise this function is a bare possession of firearm. The criminal case for homicide is not here under assertion that cannot be given credit. Neither was there a written delegation consideration. Hence, the decision of the Court of Appeals is affirmed. of authority to Major Arquillano. It is even doubtful whether Col. Calida who had authority to issue mission orders, could delegate this authority to his deputy. Accused-appellant also was not qualified to be issued a mission order because he was a mere reserve of the Citizens Forces Geographical D E C I S I O N Unit (CAFGU) without regular monthly compensation. In fact he worked as MENDOZA, J p: a "bouncer" in a nightclub, and it was as a "bouncer" that he used the gun Accused-appellant Wenceslao Jayson was charged with violation of P.D. seized from him. And even assuming that the issuance of the mission order No. 1866 in the Regional Trial Court of Davao City. The amended was valid, carrying the firearm inside the nightclub where accused-appellant information alleged — was working as a "bouncer," is a violation of the restrictions in the mission That on or about March 16, 1991, in the City of Davao, Philippines, and order. The restrictions prohibited him from carrying firearms in places within the jurisdiction of this Honorable Court, the above-mentioned where people converge unless on official mission. In any event, accused- accused wilfully, unlawfully and feloniously with intent to possess, had in appellant's claim that he acted in the good faith belief that the documents his possession and under his custody one (1) .38 caliber revolver (Paltik), issued to him sufficed as legal authority for him to carry the firearm and with Serial Number 91955 and four (4) live ammunitions inside the that there was absence of criminal intent are not valid defenses because the chamber of said revolver, without first securing the necessary license to offense committed is malum prohibitum punishable by special law. possess the same.

3. ID.; ID.; RA 8294 PROVIDING FOR A LESSER PENALTY That the same .38 caliber revolver was used by the accused in killing NOT APPLICABLE; CASE AT BAR. — The provisions of the recently Nelson Jordan on March 16, 1991. enacted R.A. No. 8294, amending P.D. No. 1866, cannot be applied to this case. Even though the penalty for illegal possession of firearm has been Contrary to law. reduced in the new law, the latter cannot be applied in this case so as to Davao City, Philippines, July 12, 1991. favor accused-appellant in view of the proviso in Sec. 1 that the first The prosecution evidence shows that in the evening of March 16, 1991, paragraph, providing for lighter penalty, does not apply to cases where accused-appellant, then a bouncer at the "Ihaw-Ihaw" nightclub on another crime has been committed. Nor can the third paragraph be applied Bonifacio Street, Davao City, shot one Nelson Jordan. He was arrested after by considering the illegal possession of firearm as a mere aggravating he had been pointed by eyewitnesses as the gunman. Recovered from him circumstance because, although the gun seized was used in the commission was a .38 caliber revolver with serial number 91955, four live bullets, and of a crime, this case concerns solely the charge of illegal possession of one empty shell. The firearm and ammunition were covered by a firearm. The criminal case for homicide is not before us for consideration. memorandum receipt and mission order issued by Major Francisco Consequently, this case must be decided in accordance with the ruling in Arquillano, Deputy Commander of the Civil-Military Operation and People v. Quijada, that a person who kills another with the use of an CAFGU Affairs of the Davao Metropolitan District Command. The mission unlicensed firearm is guilty of homicide or murder as the case may be under order authorized accused-appellant to carry the said firearm and twelve the Revised Penal Code and aggravated illegal possession of firearm under rounds of ammunition "[t]o intensify intel[ligence] coverage" and was for a P.D. No. 1866, Sec. 1, par. 2. three-month duration (from February 8, 1991 to May 8, 1991), subject to the following restrictions: VII. The carrying of firearms is prohibited in places where people gather for political, religious, social, educational, and recreational purposes, such as churches or chapels, carnival grounds or fans, nightclubs, cabarets, dance halls, dancing places during fiestas and other celebrations, bars, liquor drinking places, theaters or movies, cockpits, race tracks and the like, except when the personnel concerned is on official mission in such places seizure from him of the firearm in question considering that both were made for which he was authorized to carry firearms. without any warrant from a court. With respect to the arrest, SPO1 Loreto Tenebro 11 testified that at around Accused-appellant was initially charged with murder in an information filed 10:00 in the evening of March 16, 1991, while he and Patrolmen Camotes on March 20, 1991 and docketed as Criminal Case No. 22,456-91 in the and Reinerio Racolas were patrolling in their car, they received a radio Regional Trial Court, Branch 18 of Davao City but, after plea-bargaining, message from their camp directing them to proceed to the "Ihaw-Ihaw" on he was allowed to plead guilty to the lesser offense of homicide. In a Bonifacio Street where there had been a shooting. Accordingly, they decision dated September 24, 1991, the trial court sentenced him to proceeded to the place and there saw the victim, Nelson Jordan. Bystanders imprisonment of 6 years and 1 day of prision mayor, as minimum, to 12 pointed to accused-appellant as the one who had shot Jordan. They then years and 1 day of reclusion temporal, as maximum. arrested accused-appellant. Seized from him was a .38 caliber revolver with serial number 91955. The firearm was covered by a mission order and On July 15, 1991, he was charged with illegal possession of firearm. 8 The memorandum receipt. Considering these facts, we hold that the warrantless information against him was amended on October 8, 1991 in order to allege arrest and search were valid. that the firearm subject of the charge had been used in the killing of a person (Nelson Jordan) on March 16, 1991. Rule 113, §5(b) of the Revised Rules of Criminal Procedure provides: On June 17, 1993, he was found guilty by the Regional Trial Court and SEC. 5. Arrest without warrant ; when lawful. — A peace officer or private sentenced to 20 years imprisonment. The trial court found accused- person may, without a warrant, arrest a person: . . . appellant acted in good faith, believing that the mission order and (b) When an offense has in fact just been committed, and he has memorandum receipt issued to him were valid. personal knowledge of facts indicating that the person to be arrested has committed it. On appeal, the Court of Appeals increased the penalty on accused-appellant In the case at bar there was a shooting. The policemen summoned to the to reclusion perpetua and, in accordance with Rule 124, §13 of the Rules on scene of the crime found the victim. Accused-appellant was pointed to them Criminal Procedure, certified the case to this Court for review. Both as the assailant only moments after the shooting. In fact accused-appellant accused-appellant and plaintiff-appellee have filed supplemental briefs. had not gone very far (only ten meters away from the "Ihaw-Ihaw"), although he was then fleeing. The arresting officers thus acted on the basis Accused-appellant maintains that he acted m the good faith belief that he of personal knowledge of the death of the victim and of facts indicating that was authorized to carry the firearm by virtue of the mission order and accused-appellant was the assailant. memorandum receipt issued to him by Major Francisco Arquillano of the Davao Metropolitan District Command. He argues that the failure of the This Court has upheld a warrantless arrest under analogous circumstances. prosecution to present as witness the government official who had certified In People v. Tonog, Jr., 12 the police found the lifeless body of a person that accused-appellant was not the holder of a firearms license is fatal to the with several stab wounds. An informer pointed to the accused as the person prosecution of this case. who had killed the victim. That afternoon, police officers arrested the accused. On their way to the police station, a policeman noticed bloodstains I. on the accused's pants which, when examined, was found to be the same Although not raised as an error by the accused-appellant, it is pertinent to blood type "O" found on the fatal knife. The Court upheld the warrantless consider the circumstances surrounding accused-appellant's arrest and the arrest and ruled that the blood-stained pants, having been seized as an incident of a lawful arrest, was admissible in evidence. in possession of the gun in this case. His defense is that the gun is covered In People v. Gerente, the police arrested the accused three hours after the by a memorandum receipt and mission order issued by Major Francisco victim had been killed. They went to the scene of the crime where they Arquillano, then Deputy Commander of the Civil-Military Operation and found a piece of wood and a concrete hollow block used by the killers in CAFGU Affairs of the Davao Metropolitan District Command. bludgeoning the victim to death. A neighbor of the accused who witnessed the killing, pointed to him as one of the assailants. The warrantless arrest The issuance of mission orders is governed by Memorandum Circular No. 8 was held valid under Rule 113, §5(b). dated October 16, 1986 of the then Ministry of Justice, which in pertinent part states: In People v. Acol, a group held up a passenger jeepney. Policemen . . . It is unlawful for any person or office to issue a mission order immediately responded to the report of the crime. One of the victims saw authorizing the carrying of firearms by any person unless the following four persons walking towards Fort Bonifacio, one of whom was wearing his conditions are met: jacket. He pointed them to the policemen. When the group saw the 1. That the AFP officer is authorized by the law to issue the mission policemen coming, they ran in different directions. Three were caught and order; arrested. Each was found in possession of an unlicensed revolver and 2. That the recipient or addressee of the mission order is also charged with illegal possession of firearms. The accused claimed that the authorized by the law to have a mission order, i.e., he must be an organic warrantless seizure of firearms was illegal. The Court rejected their plea and member of the command/unit of the AFP officer issuing the mission order. held that the search was a valid incident of a lawful arrest. If mission orders are issued to civilians (not members of the uniformed service), they must be civilian agents included in the regular plantilla of the The subsequent search of accused-appellant's person and the seizure from government agency involved in law enforcement and are receiving regular him of the firearm was likewise lawful. Rule 126, §12 states: compensation for the services they are rendering. (In this case, the agency SEC. 12.Search incident to lawful arrest. — A person lawfully arrested may head or officials so designated by the law shall issue the mission order.). . . be searched for dangerous weapons or anything which may be used as proof of the commission of an offense, without a search warrant. As the Court of Appeals held, however, Major Arquillano, who had issued the mission order in question, was not authorized to do the same. Neither In People v. Lua, 15 a buy-bust operation was conducted against the was accused-appellant qualified to have a mission order. accused. After accused had gone inside his house and returned with the three tea bags of marijuana and received the marked money, the designated Admittedly, Major Arquillano was not authorized to issue mission orders to poseur-buyer gave the signal to his fellow police officers who closed in and civilian agents of the AFP as he was not any of the following officers arrested the accused. In the course of the arrest, a police officer noticed mentioned in the Implementing Rules and Regulations of P.D. No. 1866, something bulging at accused's waistline, which turned out to be an §5(a), to wit: unlicensed .38 caliber "paltik" with two live bullets. Accused was charged with illegal possession of firearm. The search was held to be a valid (1) The Minister of National Defense and such other Ministry officials incident of a lawful arrest. duly designated by him; (2) The Chief of Staff; AFP; II. (3) Chief of the General/Special/Technical and Personal Staffs of We now come to the main question of accused-appellant's liability for GHQ AFP; illegal possession of firearm. There is no dispute that accused-appellant was (4) Commanders of the AFP Major Services including the Chiefs of Nevertheless, it is argued that the prosecution failed to prove accused- their respective General/Special/Technical and Personal Staffs; appellant's guilt beyond reasonable doubt because the prosecution did not (5) Commanders and Chiefs of Staffs of AFPWSSU and major present SPO4 Welliejado S. Sim of the FAS/Explosive NCO Davao commands/units of the AFP and the Major Services; Metropolitan District Command, who had certified that "per records on file (6) Commanders of battalions and higher units and their equivalent in [in] this Command Mr. Wenceslao Jayson does not exist/appear in the list the Philippine Air Force and Philippine Navy; of license holders as of this date." Accused-appellant claims that the (7) Commanders of AFP intelligence units from GHQ AFP down to prosecution merely presented as Exhibit H the certification without calling regional command levels; the "issuing authority" to testify so that he could be cross-examined with (8) Provincial Commanders, METRODISCOM Commanders, regard to his certification. company commanders and their equivalent in the Philippine Air Force and Philippine Navy; and Objection based on this ground must be deemed waived in view of accused- (9) Detachment commanders in remote areas whose higher appellant's failure to object to the presentation of the evidence. The commanders are not easily available to issue such orders. certification in question was marked when the parties entered into a stipulation of facts, but accused-appellant's counsel did not object. Neither Major Arquillano claimed, however, that Colonel Franco Calida, had did counsel object when the certification was offered in evidence by the authorized him (Major Arquillano) to exercise this function so that people prosecution. would not be "swarming [in Calida's] office." As the appellate court well stated, full faith and credit cannot be given to such bare assertion. Not only In any event, accused-appellant does not claim to be the holder of a regular was there no written delegation of authority to Major Arquillano, it is even license but only of a mission order and memorandum receipt. Considering doubtful whether Col. Calida, who, as commander of the unit had authority the invalidity of these documents, both the Regional Trial Court and Court to issue mission orders, could delegate this authority to his deputy. of Appeals correctly held accused-appellant liable under P.D. No. 1866.

Nor was accused-appellant qualified to be issued a mission order because he Nor can accused-appellant claim to have acted in the good faith belief that was a mere reserve of the Citizen Forces Geographical Unit (CAFGU) the documents issued to him sufficed as legal authority for him to carry the without regular monthly compensation. In fact he worked as a "bouncer" in firearm. As the Court of Appeals pointed out, good faith and absence of a nightclub, and it was as a "bouncer" that he used the gun seized from him. criminal intent are not valid defenses because the offense committed is malum prohibitum punishable by special law.

Even assuming that the issuance to accused-appellant of the mission order III. was valid, it is clear that, in carrying the firearm inside the nightclub where It remains for us to determine whether the provisions of the recently enacted he was working as a "bouncer," accused-appellant violated the restrictions R.A. No. 8294, amending P.D. No. 1866, 24 can be applied to this case on in the mission order. These restrictions prohibited him from carrying the theory that it is more favorable to accused-appellant. 25 R.A. No. 8294, firearms in places where people converge unless on official mission. provides in pertinent part: Accused-appellant's claim that he had been told by Major Arquillano that he could carry the firearm anywhere in Davao City was flatly denied by Major §1. Unlawful Manufacture, Sale, Acquisition, Disposition or Arquillano who testified that precisely he called accused-appellant's Possession of Firearms or ammunition or Instruments Used or Intended to attention to the restrictions. be Used in the Manufacture of Firearms or Ammunition. — The penalty of prision correccional in its maximum period and a fine of not less than Fifteen thousand pesos (P15,000) shall be imposed upon any person who shall unlawfully manufacture, deal in, acquire, dispose, or possess any low powered firearm, such as rimfire handgun, .380 or .32 and other firearm of similar firepower, part of firearm, ammunition, or machinery, tool or instrument used or intended to be used in the manufacture of any firearm or ammunition: Provided, That no other crime was committed. xxx xxx xxx If homicide or murder is committed with the use of an unlicensed firearm, such use of an unlicensed firearm shall be considered as an aggravating circumstance. (Emphasis added) Apparently, even though the penalty for illegal possession of firearm has been reduced in the new law, the latter cannot be applied in this case so as to favor accused-appellant in view of the proviso in §1 that the first paragraph, providing for lighter penalty, does not apply to cases where another crime has been committed. Nor can the third paragraph be applied by considering the illegal possession of firearm as a mere aggravating circumstance because, although the gun seized was used in the commission of a crime, this case concerns solely the charge of illegal possession of firearm. The criminal case for homicide is not before us for consideration. Consequently, this case must be decided in accordance with the ruling in People v. Quijada, 26 that a person who kills another with the use of an unlicensed firearm is guilty of homicide or murder as the case may be under the Revised Penal Code and aggravated illegal possession of firearm under P.D. No. 1866, §1, par. 2.

WHEREFORE, the decision of the Court of Appeals is AFFIRMED. SO ORDERED. Puno, J ., concurs. Regalado, J ., concurs, pro hac vice. 392 U.S. 1 The Supreme Court of the United States (”Supreme Court”) held that it is a Terry v. Ohio reasonable search when an officer performs a quick seizure and a limited CERTIORARI TO THE SUPREME COURT OF OHIO search for weapons on a person that the officer reasonably believes could be armed. A typical beat officer would be unduly burdened by being prohibited No. 67 Argued: December 12, 1967 from searching individuals that the officer suspects to be armed. Decided: June 10, 1968 Dissent: CASE BRIEF Justice William Douglas (”J. Douglas”) dissented, reasoning that the Brief Fact Summary: majority’s holding would grant powers to officers to authorize a search and The Petitioner, John W. Terry (the “Petitioner”), was stopped and searched seizure that even a magistrate would not possess. by an officer after the officer observed the Petitioner seemingly casing a store for a potential robbery. The officer approached the Petitioner for Concurrence: questioning and decided to search him first. Justice John Harlan (”J. Harlan”) agreed with the majority, but he emphasized an additional necessity of the reasonableness of the stop to Synopsis of Rule of Law: investigate the crime. An officer may perform a search for weapons without a warrant, even without probable cause, when the officer reasonably believes that the person Justice Byron White (”J. White”) agreed with the majority, but he may be armed and dangerous. emphasized that the particular facts of the case, that there was suspicion of a violent act, merit the forcible stop and frisk. Facts: The officer noticed the Petitioner talking with another individual on a street Discussion: corner while repeatedly walking up and down the same street. The men The facts of the case are important to understand the Supreme Court’s would periodically peer into a store window and then talk some more. The willingness to allow the search. The suspicious activity was a violent crime, men also spoke to a third man whom they eventually followed up the street. armed robbery, and if the officer’s suspicions were correct then he would be The officer believed that the Petitioner and the other men were “casing” a in a dangerous position to approach the men for questioning without store for a potential robbery. The officer decided to approach the men for searching them. The officer also did not detain the men for a long period of questioning, and given the nature of the behavior the officer decided to time to constitute an arrest without probable cause. perform a quick search of the men before questioning. A quick frisking of the Petitioner produced a concealed weapon and the Petitioner was charged with carrying a concealed weapon. ACTUAL CASE MR. CHIEF JUSTICE WARREN delivered the opinion of the Court. Issue: Whether a search for weapons without probable cause for arrest is an This case presents serious questions concerning the role of theFourth unreasonable search under the Fourth Amendment to the United States Amendment in the confrontation on the street between the citizen and the Constitution (”Constitution”)? policeman investigating suspicious circumstances.

Held: Petitioner Terry was convicted of carrying a concealed weapon and the two men walked off together, heading west on Euclid Avenue, sentenced to the statutorily prescribed term of one to three years in the following the path taken earlier by the third man. penitentiary. [n1] Following [p5] the denial of a pretrial motion to suppress, the prosecution introduced in evidence two revolvers and a number of By this time, Officer McFadden had become thoroughly suspicious. He bullets seized from Terry and a codefendant, Richard Chilton, [n2] by testified that, after observing their elaborately casual and oft-repeated Cleveland Police Detective Martin McFadden. At the hearing on the motion reconnaissance of the store window on Huron Road, he suspected the two to suppress this evidence, Officer McFadden testified that, while he was men of "casing a job, a stick-up," and that he considered it his duty as a patrolling in plain clothes in downtown Cleveland at approximately 2:30 in police officer to investigate further. He added that he feared "they may have the afternoon of October 31, 1963, his attention was attracted by two men, a gun." Thus, Officer McFadden followed Chilton and Terry and saw them Chilton and Terry, standing on the corner of Huron Road and Euclid stop in front of Zucker's store to talk to the same man who had conferred Avenue. He had never seen the two men before, and he was unable to say with them earlier on the street corner. Deciding that the situation was ripe precisely what first drew his eye to them. However, he testified that he had for direct action, Officer McFadden approached the three men, been a policeman for 39 years and a detective for 35, and that he had been identified [p7] himself as a police officer and asked for their names. At this assigned to patrol this vicinity of downtown Cleveland for shoplifters and point, his knowledge was confined to what he had observed. He was not pickpockets for 30 years. He explained that he had developed routine habits acquainted with any of the three men by name or by sight, and he had of observation over the years, and that he would "stand and watch people or received no information concerning them from any other source. When the walk and watch people at many intervals of the day." He added: "Now, in men "mumbled something" in response to his inquiries, Officer McFadden this case, when I looked over, they didn't look right to me at the time." grabbed petitioner Terry, spun him around so that they were facing the other two, with Terry between McFadden and the others, and patted down the His interest aroused, Officer McFadden took up a post of observation in the outside of his clothing. In the left breast pocket of Terry's overcoat, Officer entrance to a store 300 to 400 feet [p6] away from the two men. "I get more McFadden felt a pistol. He reached inside the overcoat pocket, but was purpose to watch them when I seen their movements," he testified. He saw unable to remove the gun. At this point, keeping Terry between himself and one of the men leave the other one and walk southwest on Huron Road, past the others, the officer ordered all three men to enter Zucker's store. As they some stores. The man paused for a moment and looked in a store window, went in, he removed Terry's overcoat completely, removed a .38 caliber then walked on a short distance, turned around and walked back toward the revolver from the pocket and ordered all three men to face the wall with corner, pausing once again to look in the same store window. He rejoined their hands raised. Officer McFadden proceeded to pat down the outer his companion at the corner, and the two conferred briefly. Then the second clothing of Chilton and the third man, Katz. He discovered another revolver man went through the same series of motions, strolling down Huron Road, in the outer pocket of Chilton's overcoat, but no weapons were found on looking in the same window, walking on a short distance, turning back, Katz. The officer testified that he only patted the men down to see whether peering in the store window again, and returning to confer with the first they had weapons, and that he did not put his hands beneath the outer man at the corner. The two men repeated this ritual alternately between five garments of either Terry or Chilton until he felt their guns. So far as appears and six times apiece -- in all, roughly a dozen trips. At one point, while the from the record, he never placed his hands beneath Katz' outer garments. two were standing together on the corner, a third man approached them and Officer McFadden seized Chilton's gun, asked the proprietor of the store to engaged them briefly in conversation. This man then left the two others and call a police wagon, and took all three men to the station, where Chilton and walked west on Euclid Avenue. Chilton and Terry resumed their measured Terry were formally charged with carrying concealed weapons. pacing, peering, and conferring. After this had gone on for 10 to 12 minutes, On the motion to suppress the guns, the prosecution took the position that sacred, or is more carefully guarded, by the common law than the right of they had been seized following a search incident to a lawful arrest. The trial every individual to the possession and control of his own person, free from court rejected this theory, stating that it "would be stretching the facts all restraint or interference of others, unless by clear and unquestionable beyond reasonable comprehension" to find that Officer [p8] McFadden had authority of law. had probable cause to arrest the men before he patted them down for weapons. However, the court denied the defendants' motion on the ground Union Pac. R. Co. v. Botsford, 141 U.S. 250, 251 (1891). We have recently that Officer McFadden, on the basis of his experience, had reasonable cause held that "the Fourth Amendment protects people, not places," Katz v. to believe . . . that the defendants were conducting themselves suspiciously, United States, 389 U.S. 347, 351 (1967), and wherever an individual may and some interrogation should be made of their action. harbor a reasonable "expectation of privacy," id. at 361 (MR. JUSTICE HARLAN, concurring), he is entitled to be free from unreasonable Purely for his own protection, the court held, the officer had the right to pat governmental intrusion. Of course, the specific content and incidents of this down the outer clothing of these men, who he had reasonable cause to right must be shaped by the context in which it is asserted. For "what the believe might be armed. The court distinguished between an investigatory Constitution forbids is not all searches and seizures, but unreasonable "stop" and an arrest, and between a "frisk" of the outer clothing for weapons searches and seizures." Elkins v. United States, 364 U.S. 206, 222 (1960). and a full-blown search for evidence of crime. The frisk, it held, was Unquestionably petitioner was entitled to the protection of the Fourth essential to the proper performance of the officer's investigatory duties, for, Amendment as he walked down the street in Cleveland. Beck v. Ohio, 379 without it, "the answer to the police officer may be a bullet, and a loaded U.S. 89 (1964); Rios v. United States, 364 U.S. 253 (1960); Henry v. United pistol discovered during the frisk is admissible." States, 361 U.S. 98 (1959); United States v. Di Re, 332 U.S. 581 (1948); Carroll v. United States, 267 U.S. 132 (1925). The question is After the court denied their motion to suppress, Chilton and Terry waived whether, in all the circumstances of this on-the-street encounter, his right to jury trial and pleaded not guilty. The court adjudged them guilty, and the personal security was violated by an unreasonable search and seizure. Court of Appeals for the Eighth Judicial District, Cuyahoga County, affirmed. State v. Terry, 5 Ohio App.2d 122, 214 N.E.2d 114 (1966). The We would be less than candid if we did not acknowledge that this question Supreme Court of Ohio dismissed their appeal on the ground that no thrusts to the fore difficult and troublesome issues regarding a sensitive area "substantial constitutional question" was involved. We granted of police activity -- issues which have never before been certiorari, 387 U.S. 929 (1967), to determine whether the admission of the squarely [p10] presented to this Court. Reflective of the tensions involved revolvers in evidence violated petitioner's rights under the Fourth are the practical and constitutional arguments pressed with great vigor on Amendment, made applicable to the States by the Fourteenth. Mapp v. both sides of the public debate over the power of the police to "stop and Ohio, 367 U.S. 643 (1961). We affirm the conviction. frisk" -- as it is sometimes euphemistically termed -- suspicious persons.

I On the one hand, it is frequently argued that, in dealing with the rapidly The Fourth Amendment provides that "the right of the people to be secure unfolding and often dangerous situations on city streets, the police are in in their persons, houses, papers, and effects, against unreasonable searches need of an escalating set of flexible responses, graduated in relation to the and seizures, shall not be violated. . . ." This inestimable right amount of information they possess. For this purpose, it is urged that of [p9] personal security belongs as much to the citizen on the streets of our distinctions should be made between a "stop" and an "arrest" (or a "seizure" cities as to the homeowner closeted in his study to dispose of his secret of a person), and between a "frisk" and a "search." [n3] Thus, it is argued, the affairs. For as this Court has always recognized, no right is held more police should be allowed to "stop" a person and detain him briefly for questioning upon suspicion that he may be connected with criminal activity. But this is only partly accurate. For the issue is not the abstract propriety of Upon suspicion that the person may be armed, the police should have the the police conduct, but the admissibility against petitioner of the evidence power to "frisk" him for weapons. If the "stop" and the "frisk" give rise to uncovered by the search and seizure. Ever since its inception, the rule probable cause to believe that the suspect has committed a crime, then the excluding evidence seized in violation of the Fourth Amendment has been police should be empowered to make a formal "arrest," and a full incident recognized as a principal mode of discouraging lawless police conduct. See "search" of the person. This scheme is justified in part upon the notion that Weeks v. United States, 232 U.S. 383, 391-393 (1914). Thus, its major a "stop" and a "frisk" amount to a mere "minor inconvenience and petty thrust is a deterrent one, see Linkletter v. Walker, 381 U.S. 618, 629-635 indignity," [n4] which can properly be imposed upon the [p11]citizen in the (1965), and experience has taught that it is the only effective deterrent to interest of effective law enforcement on the basis of a police officer's police misconduct in the criminal context, and that, without it, the suspicion. [n5] constitutional guarantee against unreasonable searches and seizures would be a mere "form of words." Mapp v. Ohio, 367 U.S. 643, 655 (1961). The On the other side, the argument is made that the authority of the police must rule also serves another vital function -- "the imperative of judicial be strictly circumscribed by the law of arrest and search as it has developed integrity." Elkins [p13] v. United States, 364 U.S. 206, 222 (1960). Courts to date in the traditional jurisprudence of the Fourth Amendment. [n6] It is which sit under our Constitution cannot and will not be made party to contended with some force that there is not -- and cannot be -- a variety of lawless invasions of the constitutional rights of citizens by permitting police activity which does not depend solely upon the voluntary cooperation unhindered governmental use of the fruits of such invasions. Thus, in our of the citizen, and yet which stops short of an arrest based upon probable system, evidentiary rulings provide the context in which the judicial process cause to make such an arrest. The heart of the Fourth Amendment, the of inclusion and exclusion approves some conduct as comporting with argument runs, is a severe requirement of specific justification for any constitutional guarantees and disapproves other actions by state agents. A intrusion upon protected personal security, coupled with a highly developed ruling admitting evidence in a criminal trial, we recognize, has the system of judicial controls to enforce upon the agents of the State the necessary effect of legitimizing the conduct which produced the evidence, commands of the Constitution. Acquiescence by the courts in the while an application of the exclusionary rule withholds the constitutional compulsion inherent [p12] in the field interrogation practices at issue here, imprimatur. it is urged, would constitute an abdication of judicial control over, and indeed an encouragement of, substantial interference with liberty and The exclusionary rule has its limitations, however, as a tool of judicial personal security by police officers whose judgment is necessarily colored control. It cannot properly be invoked to exclude the products of legitimate by their primary involvement in "the often competitive enterprise of police investigative techniques on the ground that much conduct which is ferreting out crime." Johnson v. United States, 333 U.S. 10, 14 (1948). This, closely similar involves unwarranted intrusions upon constitutional it is argued, can only serve to exacerbate police-community tensions in the protections. Moreover, in some contexts, the rule is ineffective as a crowded centers of our Nation's cities. [n7] deterrent. Street encounters between citizens and police officers are incredibly rich in diversity. They range from wholly friendly exchanges of In this context, we approach the issues in this case mindful of the pleasantries or mutually useful information to hostile confrontations of limitations of the judicial function in controlling the myriad daily situations armed men involving arrests, or injuries, or loss of life. Moreover, hostile in which policemen and citizens confront each other on the street. The State confrontations are not all of a piece. Some of them begin in a friendly has characterized the issue here as the right of a police officer . . . to make enough manner, only to take a different turn upon the injection of some an on-the-street stop, interrogate and pat down for weapons (known in street unexpected element into the conversation. Encounters are initiated by the vernacular as "stop and frisk"). [n8] police for a wide variety of purposes, some of which are wholly unrelated to a desire to prosecute for crime. [n9] Doubtless some [p14] police "field the narrowness of this question, we have no occasion to canvass in detail interrogation" conduct violates the Fourth Amendment. But a stern refusal the constitutional limitations upon the scope of a policeman's power when by this Court to condone such activity does not necessarily render it he confronts a citizen without probable cause to arrest him. responsive to the exclusionary rule. Regardless of how effective the rule may be where obtaining convictions is an important objective of the II police, [n10] it is powerless to deter invasions of constitutionally guaranteed Our first task is to establish at what point in this encounter theFourth rights where the police either have no interest in prosecuting or are willing Amendment becomes relevant. That is, we must decide whether and when to forgo successful prosecution in the interest of serving some other goal. Officer McFadden "seized" Terry, and whether and when he conducted a "search." There is some suggestion in the use of such terms as "stop" and Proper adjudication of cases in which the exclusionary rule is invoked "frisk" that such police conduct is outside the purview of the Fourth demands a constant awareness of these limitations. The wholesale Amendment because neither action rises to the level of a "search" or harassment by certain elements of the police community, of which minority "seizure" within the meaning of the Constitution. [n12] We emphatically reject groups, particularly Negroes, frequently complain, [n11] will not this notion. It is quite plain that the Fourth Amendment governs "seizures" be [p15] stopped by the exclusion of any evidence from any criminal trial. of the person which do not eventuate in a trip to the stationhouse and Yet a rigid and unthinking application of the exclusionary rule, in futile prosecution for crime -- "arrests" in traditional terminology. It must be protest against practices which it can never be used effectively to control, recognized that, whenever a police officer accosts an individual and may exact a high toll in human injury and frustration of efforts to prevent restrains his freedom to walk away, he has "seized" that person. And it is crime. No judicial opinion can comprehend the protean variety of the street nothing less than sheer torture of the English language to suggest that a encounter, and we can only judge the facts of the case before us. Nothing careful exploration of the outer surfaces of a person's clothing all over his or we say today is to be taken as indicating approval of police conduct outside her body in an attempt to find weapons is not a "search." Moreover, it is the legitimate investigative sphere. Under our decision, courts still retain simply fantastic to urge that such a procedure [p17] performed in public by their traditional responsibility to guard against police conduct which is a policeman while the citizen stands helpless, perhaps facing a wall with his overbearing or harassing, or which trenches upon personal security without hands raised, is a "petty indignity." [n13] It is a serious intrusion upon the the objective evidentiary justification which the Constitution requires. sanctity of the person, which may inflict great indignity and arouse strong When such conduct is identified, it must be condemned by the judiciary, resentment, and it is not to be undertaken lightly. [n14] and its fruits must be excluded from evidence in criminal trials. And, of course, our approval of legitimate and restrained investigative conduct The danger in the logic which proceeds upon distinctions between a "stop" undertaken on the basis of ample factual justification should in no way and an "arrest," or "seizure" of the person, and between a "frisk" and a discourage the employment of other remedies than the exclusionary rule to "search," is twofold. It seeks to isolate from constitutional scrutiny the curtail abuses for which that sanction may prove inappropriate. initial stages of the contact between the policeman and the citizen. And, by suggesting a rigid all-or-nothing model of justification and regulation under Having thus roughly sketched the perimeters of the constitutional debate the Amendment, it obscures the utility of limitations upon the scope, as well over the limits on police investigative conduct in general and the as the initiation, of police action as a means of constitutional background against which this case presents itself, we turn our attention to regulation. [n15] This Court has held, in [p18] the past that a search which is the quite narrow question posed by the facts before us: whether it is always reasonable at its inception may violate the Fourth Amendment by virtue of unreasonable for a policeman to seize a person and subject him to a limited its intolerable intensity and scope. Kremen v. United States, 353 U.S. search for weapons unless there is probable cause for an arrest. [p16] Given 346 (1957); Go-Bart Importing Co. v. [p19] United States, 282 U.S. 344, 356-358 (1931);see United States v. Di Re, 332 U.S. 581, 586-587 (1948). (1964). But we deal here with an entire rubric of police conduct -- The scope of the search must be "strictly tied to and justified by" the necessarily swift action predicated upon the on-the-spot observations of the circumstances which rendered its initiation permissible. Warden v. officer on the beat -- which historically has not been, and, as a practical Hayden, 387 U.S. 294, 310 (1967) (MR. JUSTICE FORTAS, matter, could not be, subjected to the warrant procedure. Instead, the concurring); see, e.g., Preston v. United States, 376 U.S. 364, 367-368 conduct involved in this case must be tested by the Fourth Amendment's (1964); Agnello v. United States, 269 U.S. 20, 30-31 (1925). general proscription against unreasonable searches and seizures. [n17]

The distinctions of classical "stop-and-frisk" theory thus serve to divert Nonetheless, the notions which underlie both the warrant procedure and the attention from the central inquiry under the Fourth Amendment -- the requirement of probable cause remain fully relevant in this context. In order reasonableness in all the circumstances of the particular governmental to assess the reasonableness of Officer McFadden's conduct as a general invasion of a citizen's personal security. "Search" and "seizure" are not proposition, it is necessary "first to focus upon [p21] the governmental talismans. We therefore reject the notions that the Fourth Amendment does interest which allegedly justifies official intrusion upon the constitutionally not come into play at all as a limitation upon police conduct if the officers protected interests of the private citizen," for there is stop short of something called a "technical arrest" or a "full-blown search." no ready test for determining reasonableness other than by balancing the need to search [or seize] against the invasion which the search [or seizure] In this case, there can be no question, then, that Officer McFadden "seized" entails. petitioner and subjected him to a "search" when he took hold of him and patted down the outer surfaces of his clothing. We must decide whether, at Camara v. Municipal Court, 387 U.S. 523, 534-535, 536-537 (1967). And, that point, it was reasonable for Officer McFadden to have interfered with in justifying the particular intrusion, the police officer must be able to point petitioner's personal security as he did. [n16] And, in determining whether the to specific and articulable facts which, taken together with rational seizure and search were "unreasonable," our inquiry [p20] is a dual one -- inferences from those facts, reasonably warrant that intrusion. [n18] The whether the officer's action was justified at its inception, and whether it was scheme of the Fourth Amendmentbecomes meaningful only when it is reasonably related in scope to the circumstances which justified the assured that, at some point, the conduct of those charged with enforcing the interference in the first place. laws can be subjected to the more detached, neutral scrutiny of a judge who must evaluate the reasonableness of a particular search or seizure in light of III the particular circumstances. [n19] And, in making that assessment, it is If this case involved police conduct subject to the Warrant Clause of imperative that the facts be judged against an objective standard: would the the Fourth Amendment, we would have to ascertain whether "probable facts [p22] available to the officer at the moment of the seizure or the search cause" existed to justify the search and seizure which took place. However, "warrant a man of reasonable caution in the belief" that the action taken was that is not the case. We do not retreat from our holdings that the police appropriate? Cf. Carroll v. United States, 267 U.S. 132 (1925);Beck v. must, whenever practicable, obtain advance judicial approval of searches Ohio, 379 U.S. 89, 96-97 (1964). [n20] Anything less would invite intrusions and seizures through the warrant procedure, see, e.g., Katz v. United upon constitutionally guaranteed rights based on nothing more substantial States, 389 U.S. 347(1967); Beck v. Ohio, 379 U.S. 89, 96 than inarticulate hunches, a result this Court has consistently refused to (1964); Chapman v. United States, 365 U.S. 610 (1961), or that, in most sanction. See, e.g., Beck v. Ohio, supra; Rios v. United States, 364 U.S. instances, failure to comply with the warrant requirement can only be 253 (1960); Henry v. United States, 361 U.S. 98 (1959). And simple "good excused by exigent circumstances, see, e.g., Warden v. Hayden, 387 U.S. faith on the part of the arresting officer is not enough." . . . If subjective 294(1967) (hot pursuit); cf. Preston v. United States, 376 U.S. 364, 367-368 good faith alone were the test, the protections of the Fourth Amendment would evaporate, and the people would be "secure in their police officer in taking steps to assure himself that the person with whom he persons, houses, papers, and effects," only in the discretion of the police. is dealing is not armed with a weapon that could unexpectedly and fatally Beck v. Ohio, supra, at 97. be used against him. Certainly it would be unreasonable to require that police officers take unnecessary risks in the performance of their duties. Applying these principles to this case, we consider first the nature and American criminals have a long tradition of armed violence, and every year extent of the governmental interests involved. One general interest is, of in this country many law enforcement officers are killed in the line of duty, course, that of effective crime prevention and detection; it is this interest and thousands more are wounded. [p24] Virtually all of these deaths and a which underlies the recognition that a police officer may, in appropriate substantial portion of the injuries are inflicted with guns and knives. [n21] circumstances and in an appropriate manner, approach a person for purposes of investigating possibly criminal behavior even though there is no In view of these facts, we cannot blind ourselves to the need for law probable cause to make an arrest. It was this legitimate investigative enforcement officers to protect themselves and other prospective victims of function Officer McFadden was discharging when he decided to approach violence in situations where they may lack probable cause for an arrest. petitioner and his companions. He had observed Terry, Chilton, and Katz go When an officer is justified in believing that the individual whose through a series of acts, each of them perhaps innocent in itself, but which, suspicious behavior he is investigating at close range is armed and presently taken together, warranted further investigation. There is nothing unusual in dangerous to the officer or to others, it would appear to be clearly two men standing together on a street corner, perhaps waiting for someone. unreasonable to deny the officer the power to take necessary measures to Nor is there anything suspicious about people [p23] in such circumstances determine whether the person is, in fact, carrying a weapon and to strolling up and down the street, singly or in pairs. Store windows, neutralize the threat of physical harm. moreover, are made to be looked in. But the story is quite different where, as here, two men hover about a street corner for an extended period of time, We must still consider, however, the nature and quality of the intrusion on at the end of which it becomes apparent that they are not waiting for anyone individual rights which must be accepted if police officers are to be or anything; where these men pace alternately along an identical route, conceded the right to search for weapons in situations where probable cause pausing to stare in the same store window roughly 24 times; where each to arrest for crime is lacking. Even a limited search of the outer clothing for completion of this route is followed immediately by a conference between weapons constitutes a severe, [p25] though brief, intrusion upon cherished the two men on the corner; where they are joined in one of these personal security, and it must surely be an annoying, frightening, and conferences by a third man who leaves swiftly, and where the two men perhaps humiliating experience. Petitioner contends that such an intrusion is finally follow the third and rejoin him a couple of blocks away. It would permissible only incident to a lawful arrest, either for a crime involving the have been poor police work indeed for an officer of 30 years' experience in possession of weapons or for a crime the commission of which led the the detection of thievery from stores in this same neighborhood to have officer to investigate in the first place. However, this argument must be failed to investigate this behavior further. closely examined.

The crux of this case, however, is not the propriety of Officer McFadden's Petitioner does not argue that a police officer should refrain from making taking steps to investigate petitioner's suspicious behavior, but, rather, any investigation of suspicious circumstances until such time as he has whether there was justification for McFadden's invasion of Terry's personal probable cause to make an arrest; nor does he deny that police officers, in security by searching him for weapons in the course of that investigation. properly discharging their investigative function, may find themselves We are now concerned with more than the governmental interest in confronting persons who might well be armed and dangerous. Moreover, he investigating crime; in addition, there is the more immediate interest of the does not say that an officer is always unjustified in searching a suspect to discover weapons. Rather, he says it is unreasonable for the policeman to that, because an officer may lawfully arrest a person only when he is take that step until such time as the situation evolves to a point where there apprised of facts sufficient to warrant a belief that the person has committed is probable cause to make an arrest. When that point has been reached, or is committing a crime, the officer is equally unjustified, absent that kind petitioner would concede the officer's right to conduct a search of the of evidence, in making any intrusions short of an arrest. Moreover, a suspect for weapons, fruits or instrumentalities of the crime, or "mere" perfectly reasonable apprehension of danger may arise long before the evidence, incident to the arrest. officer is possessed of adequate information to justify taking a person into custody for[p27] the purpose of prosecuting him for a crime. Petitioner's There are two weaknesses in this line of reasoning, however. First, it fails to reliance on cases which have worked out standards of reasonableness with take account of traditional limitations upon the scope of searches, and thus regard to "seizures" constituting arrests and searches incident thereto is thus recognizes no distinction in purpose, character, and extent between a search misplaced. It assumes that the interests sought to be vindicated and the incident to an arrest and a limited search for weapons. The former, although invasions of personal security may be equated in the two cases, and thereby justified in part by the acknowledged necessity to protect the arresting ignores a vital aspect of the analysis of the reasonableness of particular officer from assault with a concealed weapon, Preston v. United States, 376 types of conduct under the Fourth Amendment. See Camara v. Municipal U.S. 364, 367 (1964), is also justified on other grounds, ibid., and can Court, supra. therefore involve a relatively extensive exploration of the person. A search for weapons in the absence of probable cause to [p26] arrest, however, Our evaluation of the proper balance that has to be struck in this type of must, like any other search, be strictly circumscribed by the exigencies case leads us to conclude that there must be a narrowly drawn authority to which justify its initiation. Warden v. Hayden, 387 U.S. 294, 310 (1967) permit a reasonable search for weapons for the protection of the police (MR. JUSTICE FORTAS, concurring). Thus, it must be limited to that officer, where he has reason to believe that he is dealing with an armed and which is necessary for the discovery of weapons which might be used to dangerous individual, regardless of whether he has probable cause to arrest harm the officer or others nearby, and may realistically be characterized as the individual for a crime. The officer need not be absolutely certain that the something less than a "full" search, even though it remains a serious individual is armed; the issue is whether a reasonably prudent man, in the intrusion. circumstances, would be warranted in the belief that his safety or that of others was in danger. Cf. Beck v. Ohio, 379 U.S. 89, 91 (1964); Brinegar v. A second, and related, objection to petitioner's argument is that it assumes United States, 338 U.S. 160, 174-176 (1949); Stacey v. Emery, 97 U.S. 642, that the law of arrest has already worked out the balance between the 645 (1878).[n23] And in determining whether the officer acted reasonably in particular interests involved here -- the neutralization of danger to the such circumstances, due weight must be given not to his inchoate and policeman in the investigative circumstance and the sanctity of the unparticularized suspicion or "hunch," but to the specific reasonable individual. But this is not so. An arrest is a wholly different kind of inferences which he is entitled to draw from the facts in light of his intrusion upon individual freedom from a limited search for weapons, and experience. Cf. Brinegar v. United States supra. the interests each is designed to serve are likewise quite different. An arrest is the initial stage of a criminal prosecution. It is intended to vindicate IV society's interest in having its laws obeyed, and it is inevitably accompanied We must now examine the conduct of Officer McFadden in this case to by future interference with the individual's freedom of movement, whether determine whether his search and seizure of petitioner were reasonable, or not trial or conviction ultimately follows. [n22] The protective search for both at their inception [p28] and as conducted. He had observed Terry, weapons, on the other hand, constitutes a brief, though far from together with Chilton and another man, acting in a manner he took to be inconsiderable, intrusion upon the sanctity of the person. It does not follow preface to a "stick-up." We think, on the facts and circumstances Officer McFadden detailed before the trial judge, a reasonably prudent man would for their initiation. Warden v. Hayden,387 U.S. 294, 310 (1967) (MR. have been warranted in believing petitioner was armed, and thus presented a JUSTICE FORTAS, concurring). threat to the officer's safety while he was investigating his suspicious behavior. The actions of Terry and Chilton were consistent with We need not develop at length in this case, however, the limitations which McFadden's hypothesis that these men were contemplating a daylight the Fourth Amendment places upon a protective seizure and search for robbery -- which, it is reasonable to assume, would be likely to involve the weapons. These limitations will have to be developed in the concrete factual use of weapons -- and nothing in their conduct from the time he first noticed circumstances of individual cases. See Sibron v. New York, post, p. 40, them until the time he confronted them and identified himself as a police decided today. Suffice it to note that such a search, unlike a search without officer gave him sufficient reason to negate that hypothesis. Although the a warrant incident to a lawful arrest, is not justified by any need to prevent trio had departed the original scene, there was nothing to indicate the disappearance or destruction of evidence of crime. See Preston v. abandonment of an intent to commit a robbery at some point. Thus, when United States, 376 U.S. 364, 367 (1964). The sole justification of the search Officer McFadden approached the three men gathered before the display in the present situation is the protection of the police officer and others window at Zucker's store, he had observed enough to make it quite nearby, and it must therefore be confined in scope to an intrusion reasonable to fear that they were armed, and nothing in their response to his reasonably designed to discover guns, knives, clubs, or other hidden hailing them, identifying himself as a police officer, and asking their names instruments for the assault of the police officer. served to dispel that reasonable belief. We cannot say his decision at that point to seize Terry and pat his clothing for weapons was the product of a The scope of the search in this case presents no serious problem in light of volatile or inventive imagination, or was undertaken simply as an act of these standards. Officer McFadden patted down the outer clothing of harassment; the record evidences the tempered act of a policeman who, in petitioner and his two companions. He did not place his hands in their the course of an investigation, had to make a quick decision as to how to pockets or under the outer surface of their garments until he had [p30] felt protect himself and others from possible danger, and took limited steps to weapons, and then he merely reached for and removed the guns. He never do so. did invade Katz' person beyond the outer surfaces of his clothes, since he discovered nothing in his pat-down which might have been a weapon. The manner in which the seizure and search were conducted is, of course, as Officer McFadden confined his search strictly to what was minimally vital a part of the inquiry as whether they were warranted at all. The Fourth necessary to learn whether the men were armed and to disarm them once he Amendment proceeds as much by limitations upon the [p29] scope of discovered the weapons. He did not conduct a general exploratory search governmental action as by imposing preconditions upon its for whatever evidence of criminal activity he might find. initiation. Compare Katz v. United States, 389 U.S. 347, 354-356 (1967). The entire deterrent purpose of the rule excluding evidence seized in V violation of the Fourth Amendment rests on the assumption that "limitations We conclude that the revolver seized from Terry was properly admitted in upon the fruit to be gathered tend to limit the quest itself." United States v. evidence against him. At the time he seized petitioner and searched him for Poller, 43 F.2d 911, 914 (C.A.2d Cir.1930); see, e.g., Linkletter v. weapons, Officer McFadden had reasonable grounds to believe that Walker, 381 U.S. 618, 629-635 (1965); Mapp v. Ohio, 367 U.S. petitioner was armed and dangerous, and it was necessary for the protection 643 (1961); Elkins v. United States, 364 U.S. 206, 216-221 (1960). Thus, of himself and others to take swift measures to discover the true facts and evidence may not be introduced if it was discovered by means of a seizure neutralize the threat of harm if it materialized. The policeman carefully and search which were not reasonably related in scope to the justification restricted his search to what was appropriate to the discovery of the particular items which he sought. Each case of this sort will, of course, have to be decided on its own facts. We merely hold today that, where a police officer observes unusual conduct which leads him reasonably to conclude in light of his experience that criminal activity may be afoot and that the persons with whom he is dealing may be armed and presently dangerous, where, in the course of investigating this behavior, he identifies himself as a policeman and makes reasonable inquiries, and where nothing in the initial stages of the encounter serves to dispel his reasonable fear for his own or others' safety, he is entitled for the protection of himself and others in the area to conduct a carefully limited search of the outer clothing of such persons in an attempt to discover weapons which might be used to assault him. [p31] Such a search is a reasonable search under the Fourth Amendment, and any weapons seized may properly be introduced in evidence against the person from whom they were taken.

Affirmed. MR. JUSTICE BLACK concurs in the judgment and the opinion except where the opinion quotes from and relies upon this Court's opinion in Katz v. United States and the concurring opinion in Warden v. Hayden. PEOPLE OF THE PHILIPPINES, plaintiff-appellee, Finding of facts and assessment of credibility of witnesses is a matter best vs. LARRY MAHINAY Y AMPARADO, accused-appellant. left to the trial court. Its findings, conclusions and evaluation of the testimony of witnesses are received on appeal with the highest respect, the G.R. No. 122485 same being supported by substantial evidence on record. February 1, 1999 Under Article 335 of the Revised Penal Code, as amended by RA 7659, SYNOPSIS when by reason or on the occasion of the rape a homicide is committed, the Appellant was charged with rape with homicide for the sexual assault and penalty shall be death. Death being an indivisible penalty, the court has no death of Maria Victoria Chan, 12 years old. Evidence disclosed that Maria, option but to apply the same regardless of any mitigating or aggravating on that fateful afternoon, went to the second floor of the house where circumstance that may have attended the commission of the crime. appellant was staying. Appellant pulled her hand and her head hit the table causing her to become unconscious. At this stage, appellant, who was then In qualified rape under which the death penalty is authorized by present drunk, had sexual intercourse with her. He then dumped the still amended law, the civil indemnity for the victim shall be not less than unconscious victim inside the septic tank and thereafter took flight. The P75,000.00. body of the victim was retrieved the following day wearing only a blouse without underwear. Recovered in the unfinished house where accused slept SYLLABUS on the night of the incident was the victim's pair of shorts, brown belt and 1. REMEDIAL LAW; EVIDENCE; CIRCUMSTANTIAL yellow hair ribbon. Weight was given to appellant's extrajudicial confession EVIDENCE; WHEN SUFFICIENT TO CONVICT. — Conviction may containing details consistent with the post mortem findings on the victim be had on circumstantial evidence provided that the following requisites that she was raped. The trial court, notwithstanding the absence of direct concur: 1. there is more than one circumstance; 2. the facts from which the evidence relative to the commission of the crime, rendered judgment of inferences are derived are proven; and 3. the combination of all the conviction. It based its judgment on circumstantial evidence. circumstances is such as to produce a conviction beyond reasonable doubt. Simply put, for circumstantial evidence to be sufficient to support a An accused despite absence of direct proof is not necessarily absolved from conviction, all circumstances must be consistent with each other, consistent liability because under the Rules on evidence and pursuant to settled with the hypothesis that the accused is guilty, and at the same time jurisprudence, conviction may be had on circumstantial evidence. inconsistent with the hypothesis that he is innocent and with every other rational hypothesis except that of guilt. Facts and circumstances consistent For circumstantial evidence to support the conviction, all circumstances with guilt and inconsistent with innocence, constitute evidence which, in must be consistent with each other, consistent with the hypothesis that the weight and probative force, may surpass even direct evidence in its effect accused is guilty and at the same time inconsistent with the hypothesis that upon the court. accused is innocent and with every other rational hypothesis except that of guilt. 2. ID.; ID.; GUIDING PRINCIPLES IN THE REVIEW OF RAPE CASES. — The three guiding principles in the review of rape cases Facts and circumstances consistent with guilt and inconsistent with are, to wit: 1). An accusation for rape can be made with facility; it is innocence, constitute evidence which, in weight and probative force, may difficult to prove but more difficult for the person accused, though innocent, surpass even direct evidence in its effect upon the court. to disprove; 2). In view of the intrinsic nature of the crime of rape, where only two persons are usually involved, the testimony of the complainant is scrutinized with extreme caution; and 3). The evidence of the prosecution Moreover, from appellant's own account, he pushed the victim causing the stands or falls on its own merits and cannot be allowed to draw strength latter to hit her head on the table and fell unconscious. It was at that from the weakness of the defense. instance that he ravished her and satisfied his salacious and prurient desires. Considering that the victim, at the time of her penile invasion, was 3. CRIMINAL LAW; RAPE UNDER R.A. 8353; RE- unconscious, it could safely be concluded that she had not given free and CLASSIFIED AS A CRIME AGAINST PERSONS. — At the time of voluntary consent to her defilement, whether before or during the sexual the commission of this heinous act, rape was still considered a crime against act. chastity, although under the Anti-Rape Law of 1997 (R.A. No. 8353), rape has since been re-classified as a crime against persons under Articles 266-A 7. REMEDIAL LAW; EVIDENCE; CREDIBILITY; FINDINGS and 266-B, and thus, may be prosecuted even without a complaint filed by OF FACTS AND ASSESSMENT OF CREDIBILITY OF WITNESSES the offended party. BY THE TRIAL COURT RECEIVED WITH HIGHEST RESPECT ON APPEAL. — Settled is the rule that the findings of facts and 4. ID.; RAPE; ELEMENTS. — The gravamen of the offense of assessment of credibility of witnesses is a matter best left to the trial court rape, prior to R.A. 8353, is sexual congress with a woman by force and because of its unique position of having observed that elusive and without consent. (Under the new law, rape may be committed even by a incommunicable evidence of the witnesses' deportment on the stand while woman and the victim may even be a man.) If the woman is under 12 years testifying, which opportunity is denied to the appellate courts. In this case, of age, proof of force and consent becomes immaterial not only because the trial court's findings, conclusions and evaluation of the testimony of force is not an element of statutory rape, but the absence of a free consent is witnesses is received on appeal with the highest respect, the same being presumed when the woman is below such age. Conviction will therefore lie, supported by substantial evidence on record. There was no showing that the provided sexual intercourse is proven. But if the woman is 12 years of age court a quo had overlooked or disregarded relevant facts and circumstances or over at the time she was violated, as in this case, not only the first which when considered would have affected the outcome of this case or element of sexual intercourse must be proven but also the other element that justify a departure from the assessments and findings of the court below. the perpetrator's evil acts with the offended party was done through force, The absence of any improper or ill-motive on the part of the principal violence, intimidation or threat needs to be established. Both elements are witnesses for the prosecution all the more strengthens the conclusion that no present in this case. such motive exists. Neither was any wrong motive attributed to the police officers who testified against appellant. 5. ID.; ID.; MERE TOUCHING OF THE MALE ORGAN ON LABIA OF PUDENDUM, SUFFICIENT TO CONSUMMATE RAPE. 8. CRIMINAL LAW; RAPE WITH HOMICIDE; PENALTY. — — In proving sexual intercourse, it is not full or deep penetration of the Death being a single indivisible penalty and the only penalty prescribed by victim's vagina; rather the slightest penetration of the male organ into the law for the crime of "rape with homicide," the court has no option but to female sex organ is enough to consummate the sexual intercourse. The mere apply the same "regardless of any mitigating or aggravating circumstance touching by the male's organ or instrument of sex of the labia of the that may have attended the commission of the crime" in accordance with pudendum of the woman's private parts is sufficient to consummate rape. Article 63 of the RPC, as amended. This case of rape with homicide carries with it penalty of death which is mandatorily imposed by law within the 6. ID.; ID.; FORCE EMPLOYED ON VICTIM, PROVEN IN import of Article 47 of the RPC, as amended. CASE AT BAR. — From the wounds, contusions and abrasions suffered by the victim, force was indeed employed upon her to satisfy carnal lust. 9. CIVIL LAW; DAMAGES; INDEMNITY FOR RAPE. — D E C I S I O N Pursuant to current case law, a victim of simple rape is entitled to a civil PER CURIAM p: indemnity of fifty thousand pesos (P50,000.00) but if the crime of rape is committed or effectively qualified by any of the circumstances under which A violation of the dignity, purity and privacy of a child who is still innocent the death penalty is authorized by present amended law, the civil indemnity and unexposed to the ways of worldly pleasures is a harrowing experience for the victim shall be not less than seventy-five thousand pesos that destroys not only her future but of the youth population as well, who in (P75,000.00). In addition to such indemnity, she can also recover moral the teachings of our national hero, are considered the hope of the fatherland. damages pursuant to Article 2219 of the Civil Code in such amount as the Once again, the Court is confronted by another tragic desecration of human court deems just, without the necessity for pleading or proof of the basis dignity, committed no less upon a child, who at the salad age of a few days thereof. Civil indemnity is different from the award of moral and exemplary past 12 years, has yet to knock on the portals of womanhood, and met her damages. untimely death as a result of the "intrinsically evil act" of non-consensual sex called rape. Burdened with the supreme penalty of death, rape is an 10. ID.; ID.; MORAL DAMAGES; AWARDED TO RAPE ignominious crime for which necessity is neither an excuse nor does there VICTIM WITHOUT NEED FOR PLEADING OR PROOF OF BASIS. exist any other rational justification other than lust. But those who lust — The requirement of proof of mental and physical suffering provided in ought not to last. Article 2217 of the Civil Code is dispensed with because it is "recognized that the victim's injury is inherently concomitant with and necessarily The Court quotes with approval from the People's Brief, the facts narrating resulting from the odious crime of rape to warrant per se the award of moral the horrible experience and the tragic demise of a young and innocent child damages." Thus, it was held that a conviction for rape carries with it the in the bloody hands of appellant, as such facts are ably supported by award of moral damages to the victim without need for pleading or proof of evidence on record: the basis thereof. "Appellant Larry Mahinay started working as houseboy with Maria Isip on November 20, 1993. His task was to take care of Isip's house which was 11. ID.; ID.; EXEMPLARY DAMAGES; AWARDED IF under construction adjacent to her old residence situated inside a compound COMMISSION OF CRIME WAS ATTENDED BY ONE OR MORE at No. 4165 Dian Street, Gen. T. de Leon, Valenzuela, Metro Manila. But AGGRAVATING CIRCUMSTANCES. — Exemplary damages can also he stayed and slept in an apartment also owned by Isip, located 10 meters be awarded if the commission of the crime was attended by one or more away from the unfinished house (TSN, September 6, 1995, pp. 5-10). aggravating circumstances pursuant to Article 2230 of the Civil Code after proof that the offended party is entitled to moral, temperate and "The victim, Ma. Victoria Chan, 12 years old, was Isip's neighbor in Dian compensatory damages. Under the circumstances of this case, appellant is Street. She used to pass by Isip's house on her way to school and play inside liable to the victim's heirs for the amount of P75,000.00 as civil indemnity the compound yard, catching maya birds together with other children. and P50,000.00 as moral damages. While they were playing, appellant was always around washing his clothes. Inside the compound yard was a septic tank (TSN, August 22, 1995, pp. 29- 31; September 6, 1995, pp. 17; 20-22).

"On June 25, 1995, at 8 o'clock a.m., appellant joined Gregorio Rivera in a drinking spree. Around 10 o'clock in the morning, appellant, who was already drunk, left Gregorio Rivera and asked permission from Isip to go "That same morning, around 7:30, a certain Boy found the dead body of out with his friends (TSN, September 6, 1995, pp. 9-11). Ma. Victoria inside the septic tank. Boy immediately reported what he saw to the victim's parents, Eduardo and Elvira Chan (TSN, September 6, 1995, "Meantime, Isip's sister-in-law, Norgina Rivera, who also owned a store p. 13). fronting the compound, saw Ma. Victoria on that same day three to four times catching birds inside Isip's unfinished house around 4 o'clock in the "With the help of the Valenzuela Police, the lifeless body of Ma. Victoria afternoon. The unfinished house was about 8 meters away from Rivera's was retrieved from the septic tank. She was wearing a printed blouse store (TSN, September 18, 1995, pp. 9-11). without underwear. Her face bore bruises. Results of the autopsy revealed the following findings: "On the other hand, Sgt. Roberto Suni, also a resident of Dian Street, went Cyanosis, lips and nailbeds, to his in-law's house between 6 to 7 o'clock p.m. to call his office regarding Contusions, suprapubic area, 6.0 x 3.0 cm., thigh right, changes on the trip of President Fidel V. Ramos. The house of his in-laws Anterior aspect, middle third, 4.5 x 3.0 cm. was near the house of Isip. On his way to his in-law's house, Sgt. Suni met Contused-abrasions on the forehead, 5.0 x 5.0 cm. angle of the left eye, appellant along Dian Street. That same evening, between 8 to 9 o'clock lateral aspect, 2.5 x 1.5 cm. left jaw, 13.5 x 7.0 cm. neck, antero-lateral p.m., he saw Ma. Victoria standing in front of the gate of the unfinished aspect, right, 2.0 x 1.0 cm. and left, 7.0 x 6.0 cm., left iliac area, 9.0 x 5.5 house (TSN, September 27, 1995, pp. 3-7; 14-17). cm. intraclavicular area, left, posterior aspect, 4.0 x 2.0 cm. scapular area, right 4.0 x 4.0 cm. subscapular area, left, 1.5 x 1.5 cm. lumbar area, left 7.0 "Later, at 9 o'clock in the evening, appellant showed up at Norgina Rivera's x 8.0 cm. arm, left, posterior aspect, middle third, 11.00 x 4.0 cm elbows, store to buy lugaw. Norgina Rivera informed appellant that there was none right, 4.0 x 3.0 cm. and left 6.0 x 5.0 cm. forearms, left, posterior aspect, left of it. She notice that appellant appeared to be uneasy and in deep lower rd, 5.2 x 4.0 cm. hand, left, dorsal aspect, 0.8 x 0.9 cm. thighs; right thought. His hair was disarrayed; he was drunk and was walking in a dazed antero-lateral aspect, upper 33rd, 12.0 x 10.0 cm. right anterior aspect, manner. She asked why he looked so worried but he did not answer. Then lower 3rd 5.0 x 2.0 cm. and left antero-lower 3rd, 5.5 x 2.5 cm. knee, right, he left and walked back to the compound (TSN, September 18, 1995, pp. 4- lateral aspect, 1.5 x 1.0 cm. lateral mallcolum, left, 3.0 x 3.5 cm. foot, left, 8; 12-14). dorsal aspect 2.2 x 1.0 cm. Hematoma, forehead, and scalp, left, 3.5 x 3.0 cm. "Meanwhile, Elvira Chan noticed that her daughter, Ma. Victoria, was Hemorrhage, interstitial, underneath nailmarks, neck, subepicardial, missing. She last saw her daughter wearing a pair of white shorts, brown subpleural petechial hemorrhages. belt, a yellow hair ribbon, printed blue blouse, dirty white panty, white lady Hemorrhage, subdural, left fronto-parietal area. sando and blue rubber slippers (TSN, August 23, 1995, pp. 22, 33). Tracheo-bronchial tree, congested. Other visceral organs, congested. "Isip testified that appellant failed to show up for supper that night. On the Stomach, contain 1/4 rice and other food particles. following day, June 26, 1995, at 2 o'clock in the morning, appellant boarded a passenger jeepney driven by Fernando Trinidad at the talipapa. Appellant CAUSE OF DEATH — Asphyxia by Manual Strangulation; Traumatic alighted at the top of the bridge of the North Expressway and had thereafter Head Injury, Contributory. disappeared (TSN, September 20, 1995, pp. 4-9; September 27, 1995; pp. REMARKS: Hymen: tall, thick with complete lacerations at 4:00 and 8:00 14-17). o'clock position corresponding to the face of a watch edges congested with blood clots. (TSN, August 18, 1995; p. 4; Record, p. 126) "Back in the compound, SPO1 Arsenio Nacis and SPO1 Arnold Alabastro to them that he was not alone in raping and killing the victim. He pointed to were informed by Isip that her houseboy, appellant Larry Mahinay, was Zaldy and Boyet as his co-conspirators (TSN, August 14, 1995, pp. 13-21)." missing. According to her, it was unlikely for appellant to just disappear from the apartment since whenever he would go out, he would normally Thus, on July 10, 1995, appellant was charged with rape with homicide in return on the same day or early morning of the following day (TSN, an Information which reads: September 6, 1995, pp. 6-11-27). "That on or about the 26th day of June 1995 in Valenzuela, Metro Manila and within the jurisdiction of this Honorable Court the above-named "SPO1 Nacis and SPO1 Alabastro were also informed that a townmate of accused, by means of force and intimidation employed upon the person of appellant was working in a pancit factory at Barangay Reparo, Caloocan MARIA VICTORIA CHAN y CABALLERO, age 12 years old, did then City. They proceeded to said place. The owner of the factory confirmed to and there wilfully, unlawfully and feloniously lie with and have sexual them that appellant used to work at the factory but she did not know his intercourse with said MARIA VICTORIA CHAN Y CABALLERO against present whereabouts. Appellant's townmate, on the other hand, informed her will and without her consent; that on the occasion of said sexual assault, them that appellant could possibly be found on 8th Street, Grace Park, the above-named accused, choke and strangle said MARIA VICTORIA Caloocan City (TSN, August 14, 1995, pp. 8-9). CHAN Y CABALLERO as a result of which, said victim died.

"The policemen returned to the scene of the crime. At the second floor of "Contrary to law." the house under construction, they retrieved from one of the rooms a pair of to which he pleaded not guilty. After trial, the lower court rendered a dirty white short pants, a brown belt and a yellow hair ribbon which was decision convicting appellant of the crime charged, sentenced him to suffer identified by Elvira Chan to belong to her daughter, Ma. Victoria. They also the penalty of death and to pay a total of P73,000.00 to the victim's heirs. found inside another room a pair of blue slippers which Isip identified as The dispositive portion of the trial court's decision states: that of appellant. Also found in the yard, three armslength away from the "WHEREFORE, finding accused Larry Mahinay y Amparado guilty beyond septic tank were an underwear, a leather wallet, a pair of dirty long pants reasonable doubt of the crime charged, he is hereby sentenced to death by and a pliers positively identified by Isip as appellant's belongings. These electricution (sic). He is likewise condemned to indemnify the heirs of the items were brought to the police station (TSN, August 14, 1995, pp. 10-13; victim, Ma. Victoria Chan the amount of P50,000.00 and to pay the further August 18, 1995, pp. 3-8; August 23, 1995, pp. 21-25). sum of P23,000.00 for the funeral, burial and wake of the victim.

"A police report was subsequently prepared including a referral slip "Let the complete records of the case be immediately forwarded to the addressed to the office of the Valenzuela Prosecutor. The next day, SPO1 Honorable Supreme Court for the automatic review in accordance to Article Virgilio Villano retrieved the victim's underwear from the septic tank (TSN, 47 of the Revised Penal Code as amended by Section 22 of Republic Act August 23, 1995, pp. 3-8; 14-17). No. 7659. "SO ORDERED." "After a series of follow-up operations, appellant was finally arrested in Barangay Obario Matala, Ibaan, Batangas. He was brought to the Upon automatic review by the Court en banc pursuant to Article 47 of the Valenzuela Police Station. On July 7, 1995, with the assistance of Atty. Revised Penal Code (RPC), as amended, 5 appellant insists that the Restituto Viernes, appellant executed an extra-judicial confession wherein circumstantial evidence presented by the prosecution against him is he narrated in detail how he raped and killed the victim. Also, when insufficient to prove his guilt beyond reasonable doubt. In his testimony appellant came face to face with the victim's mother and aunt, he confided summarized by the trial court, appellant offered his version of what "Subsequently, appellant was apprehended by the police officers in Ibaan, transpired as follows: Batangas. The police officers allegedly brought him to a big house "(T)hat on June 25, 1995, around 9:30 a.m. on Dian Street, Gen. T. de Leon, somewhere in Manila. There, appellant heard the police officer's plan to Valenzuela, Metro Manila, he joined Gregorio Rivera and a certain Totoy in salvage him if he would not admit that he was the one who raped and killed a drinking spree. Gregorio Rivera is the brother of Maria Isip, appellant's the victim. Scared, he executed an extra-judicial confession. He claimed employer. After consuming three cases of red horse beer, he was summoned that he was assisted by Atty. Restituto Viernes only when he was forced to by Isip to clean the jeepney. He finished cleaning the jeepney at 12 o'clock sign the extra-judicial confession (TSN, October 16, 1995, pp. 9-11)." noon. Then he had lunch and took a bath. Later, he asked permission from Isip to go out with his friends to see a movie. He also asked for a cash This being a death penalty case, the Court exercises the greatest advance of P300.00 (TSN, October 16, 1995, pp. 4-5). circumspection in the review thereof since "there can be no stake higher and no penalty more severe . . . than the termination of a human life." For life, "At 2 o'clock in the afternoon, appellant, instead of going out with his once taken is like virginity, which once defiled can never be restored. In friend, opted to rejoin Gregorio Rivera and Totoy for another drinking order therefore, that appellant's guilty mind be satisfied, the Court states the session. They consumed one case of red horse beer. Around 6 o'clock p.m., reasons why, as the records are not shy, for him to verify. Zaldy, a co-worker, fetched him at Gregorio Rivera's house. They went to Zaldy's house and bought a bottle of gin. They finished drinking gin around The proven circumstances of this case when juxtaposed with appellant's 8 o'clock p.m. After consuming the bottle of gin, they went out and bought proffered excuse are sufficient to sustain his conviction beyond reasonable another bottle of gin from a nearby store. It was already 9 o'clock in the doubt, notwithstanding the absence of any direct evidence relative to the evening. While they were at the store, appellant and Zaldy met Boyet. After commission of the crime for which he was prosecuted. Absence of direct giving the bottle of gin to Zaldy and Boyet, appellant left (TSN, October 16, proof does not necessarily absolve him from any liability because under the 1995, pp. 6-7). Rules on evidence and pursuant to settled jurisprudence, conviction may be had on circumstantial evidence provided that the following requisites "On his way home, appellant passed by Norgina Rivera's store to buy concur: lugaw. Norgina Rivera informed him that there was none left of it. He left 1. there is more than one circumstance; the store and proceeded to Isip's apartment. But because it was already 2. the facts from which the inferences are derived are proven; and closed, he decided to sleep at the second floor of Isip's unfinished house. 3. the combination of all the circumstances is such as to produce a Around 10 o'clock p.m., Zaldy and Boyet arrived carrying a cadaver. The conviction beyond reasonable doubt. two placed the body inside the room where appellant was sleeping. As appellant stood up, Zaldy pointed to him a knife. Zaldy and Boyet directed Simply put, for circumstantial evidence to be sufficient to support a him to rape the dead body of the child or they would kill him. He, however, conviction, all circumstances must be consistent with each other, consistent refused to follow. Then, he was asked by Zaldy and Boyet to assist them in with the hypothesis that the accused is guilty, and at the same time bringing the dead body downstairs. He obliged and helped dump the body inconsistent with the hypothesis that he is innocent and with every other into the septic tank. Thereupon, Zaldy and Boyet warned him that should rational hypothesis except that of guilt. Facts and circumstances consistent they ever see him again, they would kill him. At 4 o'clock the following with guilt and inconsistent with innocence, constitute evidence which, in morning, he left the compound and proceeded first to Navotas and later to weight and probative force, may surpass even direct evidence in its effect Batangas (TSN, October 16, 1995, pp. 4-13). upon the court. In the case at bench, the trial court gave credence to several circumstantial accused Larry Mahinay as one of the passengers who boarded his passenger evidence, which upon thorough review of the Court is more than enough to jeepney on June 26, 1995 at 2:00 early morning and alighted on top of the prove appellant's guilt beyond the shadow of reasonable doubt. These overpass of the North Expressway. circumstantial evidence are as follows: "FIRST — Prosecution witness Norgina Rivera, sister-in-law of Maria Isip, "FIFTH — Personal belongings of the victim was found in the unfinished owner of the unfinished big house where the crime happened and the septic big house of Maria Isip where accused Larry Mahinay slept on the night of tank where the body of Maria Victoria Chan was found in the morning of the incident. This is a clear indication that the victim was raped and killed in June 26, 1995 is located, categorically testified that at about 9:00 in the the said premises. evening on June 25, 1995, accused Larry Mahinay was in her store located in front portion of the compound of her sister-in-law Maria Isip where the "There is no showing that the testimonies of the prosecution witnesses (sic) unfinished big house is situated buying rice noodle (lugaw). That she fabricated or there was any reason for them to testify falsely against the noticed the accused's hair was disarranged, drunk and walking in sigsaging accused. The absence of any evidence as to the existence of improper manner. That the accused appeared uneasy and seems to be thinking deeply. motive sustain the conclusion that no such improper motive exists and that That the accused did not reply to her queries why he looked worried but the testimonies of the witnesses, therefore, should be given full faith and went inside the compound. credit. (People vs. Retubado, 58585 January 20, 1988, 162 SCRA 276, 284; People vs. Ali, L-18512 October 30, 1969, 29 SCRA 756). "SECOND — Prosecution witness Sgt. Roberto G. Suni, categorically testified that on June 25, 1995 between 6:00 and 7:00 in the evening, on his "SIXTH — Accused Larry Mahinay during the custodial investigation and way to his in-law's house, he met accused Larry Mahinay walking on the after having been informed of his constitutional rights with the assistance of road leading to his in-law's residence which is about 50 to 75 meters away Atty. Restituto Viernes of the Public Attorney's Office voluntarily gave his to the unfinished big house of Maria Isip. That he also saw victim Maria statement admitting the commission of the crime. Said confession of Victoria Chan standing at the gate of the unfinished big house of Maria Isip accused Larry Mahinay given with the assistance of Atty. Restituto Viernes between 8:00 and 9:00 in the same evening. is believed to have been freely and voluntarily given. That accused did not complain to the proper authorities of any maltreatment on his person "THIRD — Prosecution witness Maria Isip, owner of the unfinished big (People vs. delos Santos, L-3398 May 29, 1984; 150 SCRA 311). He did house where victim's body was found inside the septic tank, testified that not even informed the Inquest Prosecutor when he sworn to the truth of his accused Larry Mahinay is her houseboy since November 20, 1993. That in statement on July 8, 1995 that he was forced, coersed or was promised of the morning of June 25, 1995, a Sunday, Larry Mahinay asked permission reward or leniency. That his confession abound with details known only to from her to leave. That after finishing some work she asked him to do him. The Court noted that a lawyer from the Public Attorneys Office Atty. accused Larry Mahinay left. That it is customary on the part of Larry Restituto Viernes and as testified by said Atty. Viernes he informed and Mahinay to return in the afternoon of the same day or sometimes in the next explained to the accused his constitutional rights and was present all morning. That accused Larry Mahinay did not return until he was arrested throughout the giving of the testimony. That he signed the statement given in Batangas on July 7, 1995. by the accused. Lawyer from the Public Attorneys Office is expected to be watchful and vigilant to notice any irregularity in the manner of the "FOURTH — Prosecution witness Fernando Trinidad, a passenger jeepney investigation and the physical conditions of the accused. The post mortem driver plying the route Karuhatan-Ugong and vice versa which include findings show that the cause of death Asphyxia by manual strangulation; Diam St., Gen. T. de Leon, Valenzuela, Metro Manila, pinpointed the Traumatic Head injury Contributory substantiate. Consistent with the testimony of the accused that he pushed the victim and the latter's head hit ground floor. Boyet and Zaldy can easily disposed and dumped the body in the table and the victim lost consciousness. the septic tank by themselves.

"Pagpasok niya sa kuwarto, hinawakan ko siya sa kamay tapos tinulak ko "It is likewise strange that the dead body of the child was taken to the room siya, tapos tumama iyong ulo niya sa mesa. Ayon na, nakatulog na siya where accused Larry Mahinay was sleeping only to force the latter to have tapos ni-rape ko na siya." sex with the dead body of the child. "There is no clear proof of maltreatment and/or tortured in giving the statement. There were no medical certificate submitted by the accused to "We have no test to the truth of human testimony except it's conformity to sustain his claim that he was mauled by the police officers. aver knowledge observation and experience. Whatever is repugnant to these belongs to the miraculous. (People vs. Santos, L-385 Nov. 16, 1979)" There being no evidence presented to show that said confession were obtained as a result of violence, torture, maltreatment, intimidation, threat "EIGHT — If the accused did not commit the crime and was only forced to or promise of reward or leniency nor that the investigating officer could disposed/dumped the body of the victim in the septic tank, he could have have been motivated to concoct the facts narrated in said affidavit; the apprise Col. Maganto, a high ranking police officer or the lady reporter who confession of the accused is held to be true, correct and freely or voluntarily interviewed him. His failure and omission to reveal the same is unnatural. given. (People v. Tuazon, 6 SCRA 249; People v. Tiongson, 6 SCRA 431, An innocent person will at once naturally and emphatically repel an People v. Baluran, 52 SCRA 71, People v. Pingol, 35 SCRA 73.) accusation of crime as a matter of preservation and self-defense and as a precaution against prejudicing himself. A person's silence therefore, "SEVENTH — Accused Larry Mahinay testified in open Court that he was particularly when it is persistent will justify an inference that he is not not able to enter the apartment where he is sleeping because it was already innocent. (People vs. Pilones, L-32754-5 July 21, 1978). closed and he proceeded to the second floor of the unfinished house and slept. He said while sleeping Zaldy and Boyet arrived carrying the cadaver "NINTH — The circumstance of flight of the accused strongly indicate his of the victim and dumped it inside his room. That at the point of a knife, the consciousness of guilt. He left the crime scene on the early morning after two ordered him to have sex with the dead body but he refused. That the the incident and did not return until he was arrested in Batangas on July 7, two asked him to assist them in dumping the dead body of the victim in the 1995." septic tank downstairs. (Tsn pp. 8-9, October 16, 1995). This is unbelievable and unnatural. Accused Larry Mahinay is staying in the Guided by the three principles in the review of rape cases, to wit: apartment and not in the unfinished house. That he slept in the said 1). An accusation for rape can be made with facility; it is difficult to unfinished house only that night of June 25, 1995 because the apartment prove but more difficult for the person accused, though innocent, to where he was staying was already closed. The Court is at a loss how would disprove; Zaldy and Boyet knew he (Larry Mahinay) was in the second floor of the 2). In view of the intrinsic nature of the crime of rape, where only two unfinished house. persons are usually involved, the testimony of the complainant is scrutinized with extreme caution; and "Furthermore, if the child is already dead when brought by Zaldy and Boyet 3). The evidence of the prosecution stands or falls on its own merits in the room at the second floor of the unfinished house where accused Larry and cannot be allowed to draw strength from the weakness of the defense. Mahinay was sleeping, why will Boyet and Zaldy still brought the cadaver The foregoing circumstantial evidence clearly establishes the felony of rape upstairs only to be disposed/dump later in the septic tank located in the with homicide defined and penalized under Section 335 of the Revised 6.) When committed by any member of the Armed Forces of the Penal Code, as amended by Section 11, R.A. 7659, which provides: Philippines or Philippine National Police or any law enforcement agency. "When and how rape is committed. — Rape is committed by having carnal 7.) When by reason or on the occasion of the rape, the victim has knowledge of a woman under any of the following circumstances. suffered permanent physical mutilation. 1.) By using force or intimidation; At the time of the commission of this heinous act, rape was still considered 2.) When the woman is deprived of reason or otherwise unconscious; a crime against chastity, although under the Anti-Rape Law of 1997 (R.A. and No. 8353), rape has since been re-classified as a crime against persons 3.) When the woman is under twelve years of age or is demented. under Articles 266-A and 266-B, and thus, may be prosecuted even without a complaint filed by the offended party. The crime of rape shall be punished by reclusion perpetua. Whenever the crime of rape is committed with use of a deadly weapon or The gravamen of the offense of rape, prior to R.A. 8353, is sexual congress by two or more persons, the penalty shall be reclusion perpetua to death. with a woman by force and without consent. (Under the new law, rape may be committed even by a woman and the victim may even be a man.) If the When by reason or on the occasion of the rape, the victim has become woman is under 12 years of age, proof of force and consent becomes insane, the penalty shall be death. immaterial not only because force is not an element of statutory rape, but the absence of a free consent is presumed when the woman is below such When the rape is attempted or frustrated and a homicide is committed by age. Conviction will therefore lie, provided sexual intercourse is proven. reason or on the occasion thereof, the penalty shall be reclusion perpetua to But if the woman is 12 years of age or over at the time she was violated, as death. in this case, not only the first element of sexual intercourse must be proven but also the other element that the perpetrator's evil acts with the offended When by reason or on the occasion of the rape, a homicide is committed, party was done through force, violence, intimidation or threat needs to be the penalty shall be death. established. Both elements are present in this case.

The death penalty shall also be imposed if the crime of rape is committed Based on the evidence on record, sexual intercourse with the victim was with any of the following attendant circumstances: adequately proven. This is shown from the testimony of the medical doctor 1.) When the victim is under eighteen (18) years of age and the who conducted post mortem examination on the child's body: offender is a parent, ascendant, step-parent, guardian, relative by Q: And after that what other parts of the victim did you examine? consanguinity or affinity within the third civil degree, or the common-law A: Then I examined the genitalia of the victim. spouse of the parent of the victim. Q: And what did you find out after you examined the genitalia of the 2.) When the victim is under the custody of the police or military victim? authorities. A: The hymen was tall-thick with complete laceration at 4:00 o'clock 3.) When the rape is committed in full view of the husband, parent, and 8:00 o'clock position and that the edges were congested. any of the children or other relatives within the third degree of Q: Now, what might have caused the laceration? consanguinity. A: Under normal circumstances this might have (sic) caused by a 4.) When the victim is a religious or a child below seven (7) years old. penetration of an organ. 5.) When the offender knows that he is afflicted with Acquired Q: So, the laceration was caused by the penetration of a male organ? Immune Deficiency Syndrome (AIDS) disease. A: Adult male organ, sir. Q: You are very sure of that, Mr. Witness? "26. T: Nung nakaraos ka, nasaan parte ng katawan ng batang babae yung A: I am very sure of that. iyong ari? Besides, as may be gleaned from his extrajudicial confession, appellant S: Nakapasok po doon sa ari nung babae. himself admitted that he had sexual congress with the unconscious child. "27. T: Natapos mong ma-rape si MA. VICTORIA CHAN, ano pa ang "15. T: Ano ang nangyari ng mga sandali o oras na iyon? sumunod mong ginawa? S: Natutulog po ako sa itaas ng bahay ni ATE MARIA, yung S: Natulak ko siya sa terrace. malaking bahay na ginagawa, tapos dumating yung batang babae. Pag- "28. T: Ano ang nangyari kay MA. VICTORIA matapos mong itulak sa pasok niya sa kuwarto hinawakan ko siya sa kamay tapos tinulak ko siya. terrace? Tapos tumama yung ulo niya sa mesa. Ayon na, nakakatulog na siya tapos S: Inilagay ko po sa poso-negra. ni rape ko na siya. "29. T: Saan makikita yung poso-negra na sinasabi mo? "16. T: Ano ang suot nung batang babae na sinasabi mo? S: Doon din sa malaking bahay ni ATE MARIA. S: Itong short na ito, (pointing to a dirty white short placed atop this 30. T: Bakit mo namang naisipang ilagay si MA. VICTORIA sa poso- investigator's table. Subject evidence were part of evidences recovered at negra? the crime scene). S: Doon ko lang po inilagay. "17. T: Bakit mo naman ni rape yung batang babae? "31. T: Bakit nga doon mo inilagay siya? S: Eh nasobrahan ako ng lasing. Hindi ko na alam ang ginagawa ko. S: Natatakot po ako. "18. T: Ano ba ang inyong ininom bakit ka nasobrahan ng lasing? "32. T: Kanino ka natatakot? S: Red Horse po at saka GIN. S: Natatakot po ako sa ginawa kong masama, natatakot ako sa mga "19. T: Saan lugar ng malaking bahay ni ATE MARIA mo ni rape yung pulis. batang babae? "33. T: Buhay pa ba si MA. VICTORIA nung ilagay mo siya sa poso- S: Sa kuwarto ko po sa itaas. negra? "20. T: Kailan ito at anong oras nangyari? S: Hindi ko po alam dahil nung pagbagsak niya inilagay ko na siya sa S: Mga bandang alas 8:00 ng gabi, araw ng Linggo, hindi ko na poso-negra. matandaan kung anong petsa, basta araw ng Linggo. 34. T: Nung gawin mo ba itong krimen na ito, mayroon ka kasama? "21. T: Saan lugar ito nangyari? S: Nag-iisa lang po ako. S: Sa Diam, Gen. T. de Leon, Valenzuela, M.M. "35. T: Noong mga oras o sandaling gahasain mo si MA. VICTORIA "22. T: Alam mo ba ang pangalan ng batang babae na ni rape mo? CHAN, buhay pa ba siya o patay na? S: Hindi ko po alam. S: Buhay pa po. "23. T: Ngayon, nais kong ipaalam sa iyo na ang pangalan ng batang "36. T: Papaano mo siya pinatay? babae na iyong ni rape at pinatay ay si MA. VICTORIA CHAN? S: Tinulak ko nga po siya sa terrace." Matatandaan mo ba ito? S: Oho. In proving sexual intercourse, it is not full or deep penetration of the "24. T: Nung ma-rape mo, nakaraos ka ba? victim's vagina; rather the slightest penetration of the male organ into the S: Naka-isa po. female sex organ is enough to consummate the sexual intercourse. 22 The "25. T: Nais kong liwanagin sa iyo kung ano ang ibig sabihin ng mere touching by the male's organ or instrument of sex of the labia of the 'NAKARAOS', maaari bang ipaliwanag mo ito? pudendum of the woman's private parts is sufficient to consummate rape. S: Nilabasan po ako ng tamod. From the wounds, contusions and abrasions suffered by the victim, force "Q Was he also present at the start of the question and answer period was indeed employed upon her to satisfy carnal lust. Moreover, from to the accused? appellant's own account, he pushed the victim causing the latter to hit her "A No more, sir, he already went to our office. I was left alone. head on the table and fell unconscious. It was at that instance that he "Q But he saw the accused, Larry Mahinay? ravished her and satisfied his salacious and prurient desires. Considering "A Yes, sir. that the victim, at the time of her penile invasion, was unconscious, it could "Q Now, when Atty. Zapanta left at what time did the question and safely be concluded that she had not given free and voluntary consent to her answer period start? defilement, whether before or during the sexual act. "A If I am not mistaken at around 4:05 of July 7, 1995 in the afternoon, sir. Another thing that militates against appellant is his extrajudicial confession, "Q And when this question and answer period started, what was the which he, however, claims was executed in violation of his constitutional first thing that you did as assisting lawyer to the accused? right to counsel. But his contention is belied by the records as well as the "A First, I tried to explain to him his right, sir, under the constitution. testimony of the lawyer who assisted, warned and explained to him his "Q What are those right? constitutionally guaranteed pre-interrogatory and custodial rights. As "A That he has the right to remain silent. That he has the right of a testified to by the assisting lawyer: counsel of his own choice and that if he has no counsel a lawyer will be "Q Will you please inform the Court what was that call about? appointed to him and that he has the right to refuse to answer any question "A We went to the station, police investigation together with Atty. that would incriminate him. Froilan Zapanta and we were told by Police Officer Alabastro that one "Q Now, after enumerating these constitutional rights of accused Larry Mahinay would like to confess of the crime of, I think, rape with Larry Mahinay, do you recall whether this constitutional right enumerated homicide. by you were reduced in writing? "Q And upon reaching the investigation room of Valenzuela PNP who "A Yes, sir, and it was also explained to him one by one by Police were the other person present? Officer Alabastro. "A Police Officer Alabastro, sir, Police Officer Nacis and other "Q I show to you this constitutional right which you said were reduced investigator inside the investigation room and the parents of the child who into writing, will you be able to recognize the same? was allegedly raped. "A Yes, sir. "Q And when you reached the investigation room do you notice "Q Will you please go over this and tell the Court whether that is the whether the accused already there? same document you mentioned? "A The accused was already there. "A Yes, sir, these were the said rights reduced into writing. "Q Was he alone? ATTY. PRINCIPE: "A He was alone, sir. May we request, Your Honor, that this document be marked as our Exhibit "Q So, when you were already infront of SPO1 Arnold Alabastro and A proper. the other PNP Officers, what did they tell you, if any? "Q Do you recall after reducing into writing this constitutional right of "A They told us together with Atty. Zapanta that this Larry Mahinay the accused whether you asked him to sign to acknowledge or to conform? would like to confess of the crime charged, sir. "A I was the one who asked him, sir. It was Police Officer Alabastro. "Q By the way, who was that Atty. Zapanta? "Q But you were present? "A Our immediate Superior of the Public Attorney's Office. "A I was then present when he signed. "Q There is a signature in this constitutional right after the "A This is my signature, sir. enumeration, before and after there are two (2) signatures, will you please "Q And immediately after your first signature is a Certification that recognize the two (2) signatures? you have personally examined the accused Larry Mahinay and testified that "A These were the same signatures signed in my presence, sir. he voluntary executed the Extra Judicial Confession, do you recognize the "Q The signature of whom? signature? "A The signature of Larry Mahinay, sir. "A This is also my signature, sir." (emphasis supplied). "ATTY. PRINCIPE: May we request, Your Honor, that the two (2) signatures identified by my Appellant's defense that two other persons brought to him the dead body of compañero be encircled and marked as Exhibit A-1 and A-2. the victim and forced him to rape the cadaver is too unbelievable. In the "Q After you said that you apprised the accused of his constitutional words of Vice-Chancellor Van Fleet of New Jersey. right explaining to him in Filipino, in local dialect, what was the respond of the accused? "Evidence to be believed must not only proceed from the mouth of a "A Larry Mahinay said that we will proceed with his statement. credible witness, but must be credible in itself — such as the common "Q What was the reply? experience and observation of mankind can approve as probable under the "A He said "Opo". circumstances. We have no test of the truth of human testimony, except its "Q Did you ask him of his educational attainment? conformity to our knowledge, observation and experience. Whatever is "A It was the Police Officer who asked him. repugnant to these belongs to the miraculous, and is outside of judicial "Q In your presence? cognizance." "A In my presence, sir. "Q And when he said or when he replied "Opo" so the question Ultimately, all the foregoing boils down to the issue of credibility of started? witnesses. Settled is the rule that the findings of facts and assessment of "A Yes, sir. credibility of witnesses is a matter best left to the trial court because of its "Q I noticed in this Exhibit A that there is also a waiver of rights, were unique position of having observed that elusive and incommunicable you present also when he signed this waiver? evidence of the witnesses' deportment on the stand while testifying, which "A Yes, sir, I was also present. opportunity is denied to the appellate courts. In this case, the trial court's "Q Did you explain to him the meaning of this waiver? findings, conclusions and evaluation of the testimony of witnesses is "A I had also explained to him, sir. received on appeal with the highest respect, the same being supported by "Q In Filipino? substantial evidence on record. There was no showing that the court a quo "A In Tagalog, sir. had overlooked or disregarded relevant facts and circumstances which when "Q And there is also a signature after the waiver in Filipino over the considered would have affected the outcome of this case or justify a typewritten name Larry Mahinay, "Nagsasalaysay", whose signature is that? departure from the assessments and findings of the court below. The "A This is also signed in my presence. absence of any improper or ill-motive on the part of the principal witnesses "Q Why are you sure that this is his signature? for the prosecution all the more strengthens the conclusion that no such "A He signed in my presence, sir. motive exists. Neither was any wrong motive attributed to the police "Q And below immediately are the two (2) signatures. The first one is officers who testified against appellant. when Larry Mahinay subscribed and sworn to, there is a signature here, do you recognize this signature? Coming now to the penalty, the sentence imposed by the trial court is In an apparent but futile attempt to escape the imposition of the death correct. Under Article 335 of the Revised Penal Code (RPC), as amended penalty, appellant tried to alter his date of birth to show that he was only 17 by R.A. 7659 "when by reason or on occasion of the rape, a homicide is years and a few months old at the time he committed the rape and thus, committed, the penalty shall be death." This special complex crime is covered by the proscription on the imposition of death if the guilty person is treated by law in the same degree as qualified rape — that is, when any of below eighteen (18) years at the time of the commission of the crime. the 7 (now 10) "attendant circumstances" enumerated in the law is alleged Again, the record rebuffs appellant on this point considering that he was and proven, in which instances, the penalty is death. In cases where any of proven to be already more than 20 years of age when he did the heinous act. those circumstances is proven though not alleged, the penalty cannot be death except if the circumstance proven can be properly appreciated as an Pursuant to current case law, a victim of simple rape is entitled to a civil aggravating circumstance under Articles 14 and 15 of the RPC which will indemnity of fifty thousand pesos (P50,000.00) but if the crime of rape is affect the imposition of the proper penalty in accordance with Article 63 of committed or effectively qualified by any of the circumstances under which the RPC. However, if any of those circumstances proven but not alleged the death penalty is authorized by present amended law, the civil indemnity cannot be considered as an aggravating circumstance under Articles 14 and for the victim shall be not less than seventy-five thousand pesos 15, the same cannot affect the imposition of the penalty because Article 63 (P75,000.00). In addition to such indemnity, she can also recover moral of the RPC in mentioning aggravating circumstances refers to those defined damages pursuant to Article 2219 of the Civil Code in such amount as the in Articles 14 and 15. Under R.A. No. 8353, if any of the 10 circumstances court deems just, without the necessity for pleading or proof of the basis is alleged in the information/complaint, it may be treated as a qualifying thereof. Civil indemnity is different from the award of moral and exemplary circumstance. But if it is not so alleged, it may be considered as an damages. The requirement of proof of mental and physical suffering aggravating circumstance, in which case the only penalty is death — subject provided in Article 2217 of the Civil Code is dispensed with because it is to the usual proof of such circumstance in either case. "recognized that the victim's injury is inherently concomitant with and necessarily resulting from the odious crime of rape to warrant per se the Death being a single indivisible penalty and the only penalty prescribed by award of moral damages". Thus, it was held that a conviction for rape law for the crime of "rape with homicide", the court has no option but to carries with it the award of moral damages to the victim without need for apply the same "regardless of any mitigating or aggravating circumstance pleading or proof of the basis thereof. that may have attended the commission of the crime" in accordance with Article 63 of the RPC, as amended. This case of rape with homicide carries Exemplary damages can also be awarded if the commission of the crime with it penalty of death which is mandatorily imposed by law within the was attended by one or more aggravating circumstances pursuant to Article import of Article 47 of the RPC, as amended, which provides: 2230 of the Civil Code after proof that the offended party is entitled to "The death penalty shall be imposed in all cases in which it must be moral, temperate and compensatory damages. Under the circumstances of imposed under existing laws, except when the guilty person is below this case, appellant is liable to the victim's heirs for the amount of eighteen (18) years of age at the time of the commission of the crime or is P75,000.00 as civil indemnity and P50,000.00 as moral damages. more than seventy years of age or when upon appeal or automatic review of the case by the Supreme Court, the required majority vote is not obtained Lastly, considering the heavy penalty of death and in order to ensure that for the imposition of the death penalty, in which cases the penalty shall be the evidence against an accused were obtained through lawful means, the reclusion perpetua." (emphasis supplied). Court, as guardian of the rights of the people lays down the procedure, guidelines and duties which the arresting, detaining, inviting, or investigating officer or his companions must do and observe at the time of making an arrest and again at and during the time of the custodial counsel, otherwise, he must be warned that the waiver is void even if he interrogation in accordance with the Constitution, jurisprudence and insist on his waiver and chooses to speak; Republic Act No. 7438: It is high-time to educate our law-enforcement 9. That the person arrested must be informed that he may indicate in agencies who neglect either by ignorance or indifference the so-called any manner at any time or stage of the process that he does not wish to be Miranda rights which had become insufficient and which the Court must questioned with warning that once he makes such indication, the police may update in the light of new legal developments: not interrogate him if the same had not yet commenced, or the interrogation 1. The person arrested, detained, invited or under custodial must cease if it has already begun; investigation must be informed in a language known to and understood by 10. The person arrested must be informed that his initial waiver of his him of the reason for the arrest and he must be shown the warrant of arrest, right to remain silent, the right to counsel or any of his rights does not bar if any; Every other warnings, information or communication must be in a him from invoking it at any time during the process, regardless of whether language known to and understood by said person; he may have answered some questions or volunteered some statements; 2. He must be warned that he has a right to remain silent and that any 11. He must also be informed that any statement or evidence, as the statement he makes may be used as evidence against him; case may be, obtained in violation of any of the foregoing, whether 3. He must be informed that he has the right to be assisted at all times inculpatory or exculpatory, in whole or in part, shall be inadmissible in and have the presence of an independent and competent lawyer, preferably evidence. of his own choice; 4. He must be informed that if he has no lawyer or cannot afford the Four members of the Court — although maintaining their adherence to the services of a lawyer, one will be provided for him; and that a lawyer may separate opinions expressed in People v. Echegaray 42 that R.A. No. 7659, also be engaged by any person in his behalf, or may be appointed by the insofar as it prescribes the death penalty, is unconstitutional — nevertheless court upon petition of the person arrested or one acting in his behalf; submit to the ruling of the Court, by a majority vote, that the law is 5. That whether or not the person arrested has a lawyer, he must be constitutional and that the death penalty should accordingly be imposed. informed that no custodial investigation in any form shall be conducted except in the presence of his counsel or after a valid waiver has been made; WHEREFORE, the conviction of appellant is hereby AFFIRMED except 6. The person arrested must be informed that, at any time, he has the for the award of civil indemnity for the heinous rape which is INCREASED right to communicate or confer by the most expedient means — telephone, to P75,000.00, PLUS P50,000.00 moral damages. radio, letter or messenger — with his lawyer (either retained or appointed), any member of his immediate family, or any medical doctor, priest or In accordance with Section 25 of Republic Act No. 7659, amending Article minister chosen by him or by any one from his immediate family or by his 83 of the Revised Penal Code, upon finality of this decision, let the records counsel, or be visited by/confer with duly accredited national or of this case be forthwith forwarded to the Office of the President for international non-government organization. It shall be the responsibility of possible exercise of the pardoning power. the officer to ensure that this is accomplished; 7. He must be informed that he has the right to waive any of said SO ORDERED. rights provided it is made voluntarily, knowingly and intelligently and Davide, Jr., C.J., Romero, Bellosillo, Melo, Puno, Vitug, Kapunan, ensure that he understood the same; Mendoza, Panganiban, Quisumbing, Martinez, Purisima, Pardo, Buena and 8. In addition, if the person arrested waives his right to a lawyer, he Gonzaga-Reyes, JJ., concur. must be informed that it must be done in writing AND in the presence of