EN BANC

[G.R. No. 128096. January 20, 1999]

PANFILO M. LACSON, petitioner vs. THE EXECUTIVE SECRETARY, THE
SANDIGANBAYAN, OFFICE OF THE SPECIAL PROSECUTOR, THE
DEPARTMENT OF JUSTICE, MYRNA ABALORA, NENITA ALAP-AP,
IMELDA PANCHO MONTERO, and THE PEOPLE OF THE PHILIPPINES,
respondents.
ROMEO M. ACOP and FRANCISCO G. ZUBIA, JR., petitioners-intervenors.
DECISION
MARTINEZ, J.:
The constitutionality of Sections 4 and 7 of Republic Act No. 8249 an act
which further defines the jurisdiction of the Sandiganbayan is being
challenged in this petition for prohibition and mandamus. Petitioner Panfilo
Lacson, joined by petitioners-intervenors Romeo Acop and Francisco Zubia,
Jr., also seeks to prevent the Sandiganbayan from proceeding with the trial
of Criminal Cases Nos. 23047-23057 (for multiple murder) against them on
the ground of lack of jurisdiction.
The antecedents of this case, as gathered from the parties pleadings and
documentary proofs, are as follows:
In the early morning of May 18, 1995, eleven (11) persons believed to be
members of the Kuratong Baleleng gang, reportedly an organized crime
syndicate which had been involve in a spate of bank robberies in Metro
Manila, were slain along Commonwealth Avenue in Quezon City by
elements of the Anti-Bank Robbery and Intelligence Task Group (ABRITG)
headed by Chief Superintendent Jewel Canson of the Philippine National
Police (PNP). The ABRITG was composed of police officers from the Traffic
Management Command (TMC) led by petitioner-intervenor Senior
Superintendent Francisco Zubia, Jr.; Presidential Anti-Crime Commission
Task Force Habagat (PACC-TFH) headed by petitioner Chief
Superintendent Panfilo M. Lacson; Central Police District Command (CPDC)
led by Chief Superintendent Ricardo de Leon; and the Criminal Investigation

Command (CIC) headed by petitioner-intervenor Chief Superintendent

Romeo Acop.
Acting on a media expose of SPO2 Eduardo delos Reyes, a member of the
CIC, that what actually transpired at dawn of May 18, 1995 was a summary
execution (or a rub out) and not a shoot-out between the Kuratong Baleleng
gang members and the ABRITG, Ombudsman Aniano Desierto formed a
panel of investigators headed by the Deputy Ombudsman for Military Affairs,
Bienvenido Blancaflor, to investigate the incident. This panel later absolve
from any criminal liability all the PNP officers and personnel allegedly
involved in the May 18, 1995 incident, with a finding that the said incident
was a legitimate police operation.1
However, a review board led by Overall Deputy Ombudsman Francisco Villa
modified the Blancaflor panels finding and recommended the indictment for
multiple murder against twenty-six (26) respondents, including herein
petitioner and intervenors. This recommendation was approved by the
Ombudsman, except for the withdrawal of the charges against Chief Supt.
Ricardo de Leon.
Thus, on November 2, 1995, petitioner Panfilo Lacson was among those
charged as principal in eleven (11) informations for murder2 before the
Sandiganbayans Second Division, while intervenors Romeo Acop and
Francisco Zubia, Jr. were among those charged in the same informations as
accessories after-the-fact.
Upon motion by all the accused in the 11 informations,3 the Sandiganbayan
allowed them to file a motion for reconsideration of the Ombudsmans
action.4
After conducting a reinvestigation, the Ombudsman filed on March 1, 1996
eleven (11) amended informations5 before the Sandiganbayan, wherein
petitioner was charged only as an accessory, together with Romeo Acop and
Francisco Zubia, Jr. and others. One of the accused6 was dropped from the
case.
On March 5-6, 1996, all the accused filed separate motions questioning the
jurisdiction of the Sandiganbayan, asserting that under the amended
informations, the cases fall within the jurisdiction of the Regional Trial Court
pursuant to Section 2 (paragraphs a and c) of Republic Act No. 7975.7 They

contend that the said law limited the jurisdiction of the Sandiganbayan to
cases where one or more of the "principal accused are government officials
with Salary Grade (SG) 27 or higher, or PNP officials with the rank of Chief
Superintendent (Brigadier General) or higher. The highest ranking principal
accused in the amended informations has the rank of only a Chief Inspector,
and none has the equivalent of at least SG 27.

Subsequently, on March 5, 1997, the Sandiganbayan promulgated a

Resolution14 denying the motion for reconsideration of the Special
Prosecutor, ruling that it stands pat in its resolution dated May 8, 1996.

Thereafter, in a Resolution8 dated May 8, 1996 (promulgated on May 9,

1996), penned by Justice Demetriou, with Justices Lagman and de Leon
concurring, and Justices Balajadia and Garchitorena dissenting,9 the
Sandiganbayan admitted the amended information and ordered the cases
transferred to the Quezon City Regional Trial Court which has original and
exclusive jurisdiction under R.A. 7975, as none of the principal accused has
the rank of Chief Superintendent or higher.

After Justice Lagman wrote the Resolution and Justice Demetriou

concurred in it, but before Justice de Leon, Jr. rendered his concurring and
dissenting opinion, the legislature enacted Republic Act 8249 and the
President of the Philippines approved it on February 5, 1997. Considering
the pertinent provisions of the new law, Justices Lagman and Demetriou are
now in favor of granting, as they are now granting, the Special Prosecutors
motion for reconsideration. Justice de Leon has already done so in his
concurring and dissenting opinion.

On May 17, 1996, the Office of the Special Prosecutor moved for a
reconsideration, insisting that the cases should remain with the
Sandiganbayan. This was opposed by petitioner and some of the accused.
While these motions for reconsideration were pending resolution, and even
before the issue of jurisdiction cropped up with the filing of the amended
informations on March 1, 1996, House Bill No. 229910 and No. 109411
(sponsored by Representatives Edcel C. Lagman and Neptali M. Gonzales
II, respectively), as well as Senate Bill No. 84412 (sponsored by Senator
Neptali Gonzales), were introduced in Congress, defining/expanding the
jurisdiction of the Sandiganbayan. Specifically, the said bills sought, among
others, to amend the jurisdiction of the Sandiganbayan by deleting the word
principal from the phrase principal accused in Section 2 (paragraphs a
and c) of R.A. No. 7975.
These bills were consolidated and later approved into law as R.A. No.
824913. The law is entitled, AN ACT FURTHER DEFINING THE
JURISDICTION OF THE SANDIGANBAYAN, AMENDING FOR THE
PURPOSE PRESIDENTIAL DECREE NO. 1606, AS AMENDED,
PROVIDING FUNDS THEREFOR, AND FOR OTHER PURPOSES. It took
effect on February 25, 1997.13 by the President of the Philippines on
February 5, 1997.

On the same day,15 the Sandiganbayan issued an ADDENDUM to its March

5, 1997 Resolution, the pertinent portion of which reads:

xxx

xxx

xxx

Considering that three of the accused in each of these cases are PNP Chief
Superintendents: namely, Jewel T. Canson, Romeo M. Acop and Panfilo M.
Lacson, and that trial has not yet begun in all these cases in fact, no order
of arrest has been issued this court has competence to take cognizance of
these cases.
To recapitulate, the net result of all the foregoing is that by the vote of 3 to
2, the court admitted the Amended Informations in these cases and by the
unanimous vote of 4 with 1 neither concurring nor dissenting, retained
jurisdiction to try and decide the cases.16 [Emphasis supplied]
Petitioner now questions the constitutionality of Section 4 R.A. No. 8249,
including Section 7 thereof which provides that the said law shall apply to all
cases pending in any court over which trial has not begun as of the approval
hereof. Petitioner argues that:
a)
The questioned provision of the statute were introduced by the
authors thereof in bad faith as it was made to precisely suit the situation in
which petitioners cases were in at the Sandiganbayan by restoring
jurisdiction thereover to it, thereby violating his right to procedural due
process and the equal protection clause of the Constitution. Further, from
the way the Sandiganbayan has foot-dragged for nine (9) months the

resolution of a pending incident involving the transfer of the cases to the

Regional Trial Court, the passage of the law may have been timed to
overtake such resolution to render the issue therein moot, and frustrate the
exercise of petitioners vested rights under the old Sandiganbayan law (RA
7975)
b)
Retroactive application of the law is plain from the fact that it was
again made to suit the peculiar circumstances in which petitioners cases
were under, namely, that trial had not yet commenced, as provided in
Section 7, to make certain that those cases will no longer be remanded to
the Quezon City Regional Trial Court, as the Sandiganbayan alone should
try them, thus making it an ex post facto legislation and a denial of the right
of petitioner as an accused in Criminal Case Nos. 23047 23057 to
procedural due process
c)
The title of the law is misleading in that it contains the aforesaid
innocuous provisions in Sections 4 and 7 which actually expands rather
than defines the old Sandiganbayan law (RA 7975), thereby violating the
one-title-one-subject requirement for the passage of statutes under Section
26(1), Article VI of the Constitution.17
For their part, the intervenors, in their petition-in-intervention, add that while
Republic Act No. 8249 innocuously appears to have merely expanded the
jurisdiction of the Sandiganbayan, the introduction of Sections 4 and 7 in
said statute impressed upon it the character of a class legislation and an expost facto statute intended to apply specifically to the accused in the
Kuratong Baleleng case pending before the Sandiganbayan.18 They further
argued that if their case is tried before the Sandiganbayan their right to
procedural due process would be violated as they could no longer avail of
the two-tiered appeal to the Sandiganbayan, which they acquired under R.A.
7975, before recourse to the Supreme Court.
Both the Office of the Ombudsman and the Solicitor General filed separate
pleadings in support of the constitutionality of the challenged provisions of
the law in question and praying that both the petition and the petition-inintervention be dismissed.
This Court then issued a Resolution19 requiring the parties to file
simultaneously within a nonextendible period of ten (10) days from notice
thereof additional memoranda on the question of whether the subject

amended informations filed in Criminal Cases Nos. 23047-23057 sufficiently

alleged the commission by the accused therein of the crime charged within
the meaning Section 4 b of Republic Act No. 8249, so as to bring the said
cases within the exclusive original jurisdiction of the Sandiganbayan.
The parties, except for the Solicitor General who is representing the People
of the Philippines, filed the required supplemental memorandum within the
nonextendible reglementary period.
The established rule is that every law has in its favor the presumption of
constitutionality, and to justify its nullification there must be a clear and
unequivocal breach of the Constitution, not a doubtful and argumentative
one.20 The burden of proving the invalidity of the law lies with those who
challenge it. That burden, we regret to say, was not convincingly discharged
in the present case.
The creation of the Sandiganbayan was mandated in Section 5, Article XIII
of the 1973 Constitution, which provides:
SEC. 5. The Batasang Pambansa shall create a special court, to be known
as Sandiganbayan, which shall have jurisdiction over criminal and civil cases
involving graft and corrupt practices and such other offenses committed by
public officers and employees including those in government-owned or
controlled corporations, in relation to their office as may be determined by
law."
The said special court is retained in the new (1987) Constitution under the
following provision in Article XI, Section 4:
Section 4.
The present anti-graft court known as the Sandiganbayan
shall continue to function and exercise its jurisdiction as now or hereafter
may be provided by law.
Pursuant to the constitutional mandate, Presidential Decree No. 148621
created the Sandiganbayan. Thereafter, the following laws on the
Sandiganbayan, in chronological order, were enacted: P.D. No. 1606,22
Section 20 of Batas Pambansa Blg. 129,23 P.D. No. 1860,24 P.D. No.
1861,25 R.A. No. 7975,26 and R.A. No. 8249.27 Under the latest
amendments introduced by Section 4 of R.A. No. 8249, the Sandiganbayan
has jurisdiction over the following cases:

SEC. 4. Section 4 of the same decree [P.D. No. 1606, as amended] is

hereby further amended to read as follows:
SEC. 4. Jurisdiction The Sandiganbayan shall exercise exclusive original
jurisdiction in all cases involving:
a. Violations of Republic Act No. 3019, as amended, otherwise known as
the Anti-Graft and Corrupt Practices Act, Republic Act No. 1379, and
Chapter II, Section 2, Title VII, Book II of the Revised Penal Code, where
one or more of the accused are officials occupying the following positions in
the government, whether in a permanent, acting or interim capacity, at the
time of the commission of the offense:
(1) Officials of the executive branch occupying the positions of regional
director and higher, otherwise classified as Grade 27 and higher, of the
Compensation and Position Classification Act of 1989 (Republic Act No.
6758), specifically including:
(a)
Provincial governors, vice-governors, members of the sangguniang
panlalawigan, and provincial treasurers, assessors, engineers, and other
provincial department heads;
(b)
City mayors, vice-mayors, members of the sangguniang
panlungsod, city treasurers, assessors, engineers, and other city department
heads;
(c)
Officials of the diplomatic service occupying the position of consul
and higher;
(d)
Philippine Army and air force colonels, naval captains, and all
officers of higher rank;
(e)
Officers of the Philippine National Police while occupying the
position of provincial director and those holding the rank of senior
superintendent or higher;
(f)
City and provincial prosecutors and their assistants, and officials
and prosecutors in the Office of the Ombudsman and special prosecutor;

(g)
Presidents, directors or trustees, or managers of governmentowned or controlled corporations, state universities or educational
institutions or foundations;
(2)
Members of Congress or officials thereof classified as Grade 27
and up under the Compensation and Position Classification Act of 1989;
(3)
Members of the Judiciary without prejudice to the provisions of the
Constitution;
(4)
Chairman and members of the Constitutional Commissions, without
prejudice to the provisions of the Constitution;
(5)
All other national and local officials classified as Grade 27 or
higher under the Compensation and Position Classification Act of 1989.
b. Other offenses or felonies whether simple or complexed with other
crimes committed by the public officials and employees mentioned in
Subsection a of this section in relation to their office.
c. Civil and criminal cases filed pursuant to and in connection with
Executive Order Nos. 1, 2, 14 and 14-A, issued in 1986.
In cases where none of the accused are occupying positions corresponding
to salary Grade 27 or higher, as prescribed in the said Republic Act 6758,
or military and PNP officers mentioned above, exclusive original jurisdiction
thereof shall be vested in the proper regional trial court, metropolitan trial
court, municipal trial court, and municipal circuit trial court, as the case may
be, pursuant to their respective jurisdictions as provided in Batas Pambansa
Blg. 129, as amended.
The Sandiganbayan shall exercise exclusive appellate jurisdiction over final
judgment, resolution or orders of the regional trial courts whether in the
exercise of their own original jurisdiction of their appellate jurisdiction as
herein provided.
"The Sandiganbayan shall have exclusive original jurisdiction over petitions
of the issuance of the writs of mandamus, prohibition, certiorari, habeas
corpus, injunctions, and other ancillary writs and processes in aid of its
appellate jurisdiction and over petitions of similar nature, including quo

warranto, arising or that may arise in cases filed or which may be filed under
Executive Order Nos. 1, 2, 14 and 14-A, issued in 1986: Provided, That the
jurisdiction over these petitions shall not be exclusive of the Supreme Court.

one or more of the principal accused are officials occupying the following
positions in the government, whether in a permanent, acting or interim
capacity, at the time of the commission of the offense:

The procedure prescribed in Batas Pambansa Blg. 129, as well as the

implementing rules that the Supreme Court has promulgated and may
hereafter promulgate, relative to appeals/petitions for review to the Court of
Appeals, shall apply to appeals and petitions for review filed with the
Sandiganbayan. In all cases elevated to the Sandiganbayan and from the
Sandiganbayan to the Supreme Court, the Office of the Ombudsman,
through its special prosecutor, shall represent the People of the Philippines,
except in cases filed pursuant to Executive Order Nos. 1, 2, 14 and 14-A,
issued in 1986.

(1) Officials of the executive branch occupying the positions of regional

director and higher, otherwise classified as Grade 27 and higher, of the
Compensation and Position Classification Act of 1989 (Republic Act No.
6758), specifically including:

In case private individuals are charged as co-principals, accomplices or

accessories with the public officers or employees, including those employed
in government-owned or controlled corporations, they shall be tried jointly
with said public officers and employees in the proper courts which shall
exercise exclusive jurisdiction over them.
xxx

xxx

x x x. (Emphasis supplied)

Section 7 of R.A. No. 8249 states:

(a)
Provincial governors, vice-governors, members of the sangguniang
panlalawigan, and provincial treasurers, assessors, engineers, and other
provincial department heads;
(b)
City mayors, vice-mayors, members of the sangguniang
panlungsod, city treasurers, assessors, engineers, and other city department
heads;
(c)
Officials of the diplomatic service occupying the position of consul
and higher;
(d)
Philippine Army and air force colonels, naval captains, and all
officers of high rank;
(e)

PNP chief superintendent and PNP officers of higher rank;

SEC. 7. Transitory provision. This act shall apply to all cases pending in
any court over which trial has not begun as of the approval hereof.
(Emphasis supplied)

(f)
City and Provincial prosecutors and their assistants, and officials
and prosecutors in the Office of the Ombudsman and special prosecutor;

The Sandiganbayan law prior to R.A. 8249 was R.A. 7975. Section 2 of R.A.
7975 provides:

(g)
Presidents, directors or trustees, or managers of governmentowned or controlled corporations, state universities or educational
institutions or foundations;

SEC. 2. Section 4 of the same decree [Presidential Decree No. 1606, as

amended] is hereby further amended to read as follows:
SEC. 4. Jurisdiction The Sandiganbayan shall exercise exclusive original
jurisdiction in all cases involving:
a. Violations of Republic Act No. 3019, as amended, otherwise known as
the Anti-Graft and Corrupt Practices Act, Republic Act No. 1379, and
Chapter II, Section 2, Title VII, Book II of the Revised Penal Code, where

(2)
Members of Congress or officials thereof classified as Grade 27
and up under the Compensation and Position Classification Act of 1989;
(3)
Members of the judiciary without prejudice to the provisions of the
Constitution;
(4)
Chairman and members of the Constitutional Commissions, without
prejudice to the provisions of the Constitution;

(5)
All other national and local officials classified as Grade 27 or
higher under the Compensation and Position Classification Act of 1989.
b. Other offenses or felonies committed by the public officials and
employees mentioned in Subsection a of this section in relation to their
office.
c. Civil and criminal cases filed pursuant to and in connection with
Executive Order Nos. 1, 2, 14 and 14-A.
In cases where none of the principal accused are occupying positions
corresponding to salary Grade 27 or higher, as prescribed in the said
Republic Act 6758, or PNP officers occupying the rank of superintendent or
higher, or their equivalent, exclusive jurisdiction thereof shall be vested in
the proper regional trial court, metropolitan trial court, municipal trial court,
and municipal circuit trial court, as the case may be, pursuant to their
respective jurisdictions as provided in Batas Pambansa Blg. 129.
The Sandiganbayan shall exercise exclusive appellate jurisdiction on
appeals from the final judgments, resolutions or orders of regular courts
where all the accused are occupying positions lower than grade 27, or not
otherwise covered by the preceding enumeration.
xxx

xxx

xxx

In case private individuals are charged as co-principals, accomplices or

accessories with the public officers or employees, including those employed
in government-owned or controlled corporations, they shall be tried jointly
with said public officers and employees in the proper courts which shall have
exclusive jurisdiction over them.
xxx

x x x. (Emphasis supplied)

Section 7 of R.A. No. 7975 reads:

SEC. 7. Upon the effectivity of this Act, all criminal cases which trial has not
begun in the Sandiganbayan shall be referred to the proper courts.
Under paragraphs a and c, Section 4 of R.A. 8249, the word principal
before the word accused appearing in the above-quoted Section 2
(paragraphs a and c) of R.A. 7975, was deleted. It is due to this deletion of

the word principal that the parties herein are at loggerheads over the
jurisdiction of the Sandiganbayan. Petitioner and intervenors, relying on
R.A. 7975, argue that the Regional Trial Court, not the Sandiganbayan, has
jurisdiction over the Subject criminal cases since none of the principal
accused under the amended information has the rank of Superintendent28
or higher. On the other hand, the Office of the Ombudsman, through the
Special Prosecutor who is tasked to represent the People before the
Supreme Court except in certain cases,29 contends that the Sandiganbayan
has jurisdiction pursuant to R.A. 8249.
A perusal of the aforequoted Section 4 of R.A. 8249 reveals that to fall under
the exclusive original jurisdiction of the Sandiganbayan, the following
requisites must concur: (1) the offense committed is a violation of (a) R.A.
3019, as amended (the Anti-Graft and Corrupt Practices Act), (b) R.A. 1379
(the law on ill-gotten wealth), (c) Chapter II, Section 2, Title VII, Book II of the
Revised Penal Code (the law on bribery),30 (d) Executive Order Nos. 1, 2,
14, and 14-A, issued in 1986 (sequestration cases),31 or (e) other offenses
or felonies whether simple or complexed with other crimes; (2) the offender
committing the offenses in items (a), (b), (c) and (e) is a public official or
employee32 holding any of the positions enumerated in paragraph a of
Section 4; and (3) the offense committed is in relation to the office.
Considering that herein petitioner and intervenors are being charged with
murder which is a felony punishable under Title VIII of the Revised Penal
Code, the governing provision on the jurisdictional offense is not paragraph
but paragraph b, Section 4 of R.A. 8249. This paragraph b pertains to other
offenses or felonies whether simple or complexed with other crimes
committed by the public officials and employees mentioned in subsection a
of [Section 4, R.A. 8249] in relation to their office. The phrase other
offenses or felonies is too broad as to include the crime of murder, provided
it was committed in relation to the accuseds official functions. Thus, under
said paragraph b, what determines the Sandiganbayans jurisdiction is the
official position or rank of the offender that is, whether he is one of those
public officers or employees enumerated in paragraph a of Section 4. The
offenses mentioned in paragraphs a, b and c of the same Section 4 do not
make any reference to the criminal participation of the accused public officer
as to whether he is charged as a principal, accomplice or accessory. In
enacting R.A. 8249, the Congress simply restored the original provisions of

P.D. 1606 which does not mention the criminal participation of the public
officer as a requisite to determine the jurisdiction of the Sandiganbayan.
Petitioner and intervenors posture that Section 4 and 7 of R.A. 8249 violate
their right to equal protection of the law33 because its enactment was
particularly directed only to the Kuratong Baleleng cases in the
Sandiganbayan, is a contention too shallow to deserve merit. No concrete
evidence and convincing argument were presented to warrant a declaration
of an act of the entire Congress and signed into law by the highest officer of
the co-equal executive department as unconstitutional. Every classification
made by law is presumed reasonable. Thus, the party who challenges the
law must present proof of arbitrariness.34
It is an established precept in constitutional law that the guaranty of the
equal protection of the laws is not violated by a legislation based on
reasonable classification. The classification is reasonable and not arbitrary
when there is concurrence of four elements, namely:
(1)

it must rest on substantial distinction;

(2)

it must be germane to the purpose of the law;

(3)

must not be limited to existing conditions only, and

(4)

must apply equally to all members of the same class,35

all of which are present in this case.

The challengers of Sections 4 and 7 of R.A. 8249 failed to rebut the
presumption of constitutionality and reasonableness of the questioned
provisions. The classification between those pending cases involving the
concerned public officials whose trial has not yet commenced and whose
cases could have been affected by the amendments of the Sandiganbayan
jurisdiction under R.A. 8249, as against those cases where trial had already
started as of the approval of the law, rests on substantial distinction that
makes real differences.36 In the first instance, evidence against them were
not yet presented, whereas in the latter the parties had already submitted
their respective proofs, examined witness and presented documents. Since
it is within the power of Congress to define the jurisdiction of courts subject
to the constitutional limitations,37 it can be reasonably anticipated that an

alteration of that jurisdiction would necessarily affect pending cases, which is

why it has to provide for a remedy in the form of a transitory provision. Thus,
petitioner and intervenors cannot now claim that Sections 4 and 7 placed
them under a different category from those similarly situated as them.
Precisely, paragraph a of Section 4 provides that it shall apply to all cases
involving" certain public officials and, under the transitory provision in
Section 7, to all cases pending in any court. Contrary to petitioner and
intervenors arguments, the law is not particularly directed only to the
Kuratong Baleleng cases. The transitory provision does not only cover
cases which are in the Sandiganbayan but also in any court. It just
happened that the Kuratong Baleleng cases are one of those affected by the
law. Moreover, those cases where trial had already begun are not affected
by the transitory provision under Section 7 of the new law (R.A. 8249).
In their futile attempt to have said sections nullified, heavy reliance is
premised on what is perceived as bad faith on the part of a Senator and two
Justices of the Sandiganbayan38 for their participation in the passage of the
said provisions. In particular, it is stressed that the Senator had expressed
strong sentiments against those officials involved in the Kuratong Baleleng
cases during the hearings conducted on the matter by the committee
headed by the Senator. Petitioner further contends that the legislature is
biased against him as he claims to have been selected from among the 67
million other Filipinos as the object of the deletion of the word principal in
paragraph a, Section 4 of P.D. 1606, as amended, and of the transitory
provision of R.A. 8249.39 R.A. 8249, while still a bill, was acted, deliberated,
considered by 23 other Senators and by about 250 Representatives, and
was separately approved by the Senate and House of Representatives and,
finally, by the President of the Philippines.
On the perceived bias that the Sandiganbayan Justices allegedly had
against petitioner during the committee hearings, the same would not
constitute sufficient justification to nullify an otherwise valid law. Their
presence and participation in the legislative hearings was deemed
necessary by Congress since the matter before the committee involves the
graft court of which one is the head of the Sandiganbayan and the other a
member thereof. The Congress, in its plenary legislative powers, is
particularly empowered by the Constitution to invite persons to appear
before it whenever it decides to conduct inquiries in aid of legislation.40

Petitioner and intervenors further argued that the retroactive application of

R.A. 8249 to the Kuratong Baleleng cases constitutes an ex post facto law41
for they are deprived of their right to procedural due process as they can no
longer avail of the two tiered appeal which they had allegedly acquired under
R.A. 7975.
Again, this contention is erroneous. There is nothing ex post facto in R.A.
8249. In Calder v. Bull,42 an ex post facto law is one
(a)which makes an act done criminal before the passing of the law and
which was innocent when committed, and punishes such action; or
(b)
which aggravates a crime or makes it greater that when it was
committed; or
(c)
which changes the punishment and inflicts a greater punishment
than the law annexed to the crime when it was committed,
(d)
which alters the legal rules of evidence and receives less or
different testimony than the law required at the time of the commission of the
offense in order to convict the defendant.43
(e)
Every law which, in relation to the offense or its consequences,
alters the situation of a person to his disadvantage.44
This Court added two more to the list, namely:
(f)
that which assumes to regulate civil rights and remedies only but in
effect imposes a penalty or deprivation of a right which when done was
lawful;
(g)
deprives a person accused of crime of some lawful protection to
which he has become entitled, such as the protection of a former conviction
or acquittal, or a proclamation of amnesty.45
Ex post facto law, generally, prohibits retrospectivity of penal laws.46 R.A.
8249 is not a penal law. It is a substantive law on jurisdiction which is not
penal in character. Penal laws are those acts of the Legislature which
prohibit certain acts and establish penalties for their violations;47 or those
that define crimes, treat of their nature, and provide for their punishment.48
R.A. 7975, which amended P.D. 1606 as regards the Sandiganbayans

jurisdiction, its mode of appeal and other procedural matters, has been
declared by the Court as not a penal law, but clearly a procedural statute,
i.e. one which prescribes rules of procedure by which courts applying laws of
all kinds can properly administer justice.49 Not being a penal law, the
retroactive application of R.A. 8249 cannot be challenged as
unconstitutional.
Petitioners and intervenors contention that their right to a two-tiered appeal
which they acquired under R.A. 7975 has been diluted by the enactment of
R.A. 8249, is incorrect. The same contention has already been rejected by
the court several times50 considering that the right to appeal is not a natural
right but statutory in nature that can be regulated by law. The mode of
procedure provided for in the statutory right of appeal is not included in the
prohibition against ex post facto laws.51 R.A. 8249 pertains only to matters
of procedure, and being merely an amendatory statute it does not partake
the nature of an ex post facto law. It does not mete out a penalty and,
therefore, does not come within the prohibition.52 Moreover, the law did not
alter the rules of evidence or the mode of trial.53 It has been ruled that
adjective statutes may be made applicable to actions pending and
unresolved at the time of their passage.54
In any case, R.A. 8249 has preserved the accuseds right to appeal to the
Supreme Court to review questions of law.55 On the removal of the
intermediate review facts, the Supreme Court still has the power of review to
determine if the presumption of innocence has been convincingly
overcome.56
Another point. The challenged law does not violate the one-title-one-subject
provisions of the Constitution. Much emphasis is placed on the wording in
the title of the law that it defines the Sandiganbayan jurisdiction when what
it allegedly does is to expand its jurisdiction. The expansion in the
jurisdiction of the Sandiganbayan, if it can be considered as such, does not
have to be expressly stated in the title of the law because such is the
necessary consequence of the amendments. The requirement that every bill
must only have one subject expressed in the title57 is satisfied if the title is
comprehensive enough, as in this case, to include subjects related to the
general purpose which the statute seeks to achieve.58 Such rule is severally
interpreted and should be given a practical rather than a technical
construction. There is here sufficient compliance with such requirement,

since the title of R.A. 8249 expresses the general subject (involving the
jurisdiction of the Sandiganbayan and the amendment of P.D. 1606, as
amended) and all the provisions of the law are germane to that general
subject.59 The Congress, in employing the word define in the title of the
law, acted within its powers since Section 2, Article VIII of the Constitution
itself empowers the legislative body to define, prescribe, and apportion the
jurisdiction of various courts.60
There being no unconstitutional infirmity in both the subject amendatory
provision of Section 4 and the retroactive procedural application of the law
as provided in Section 7 R.A. No. 8249, we shall now determine whether
under the allegations in the Informations, it is the Sandiganbayan or
Regional Trial Court which has jurisdiction over the multiple murder case
against herein petitioner and intervenors.
The jurisdiction of a court is defined by the Constitution or statute. The
elements of that definition must appear in the complaint or information so as
to ascertain which court has jurisdiction over a case. Hence the elementary
rule that the jurisdiction of a court is determined by the allegations in the
complaint or information,61 and not by the evidence presented by the parties
at the trial.62
As stated earlier, the multiple murder charge against petitioner and
intervenors falls under Section 4 [paragraph b] of R.A. 8249. Section 4
requires that the offense charged must be committed by the offender in
relation to his office in order for the Sandiganbayan to have jurisdiction over
it.63 This jurisdictional requirement is in accordance with Section 5, Article
XIII of the 1973 Constitution which mandated that the Sandiganbayan shall
have jurisdiction over criminal cases committed by public officers and
employees, including those in government-owned or controlled corporations,
in relation to their office as may be determined by law. This constitutional
mandate was reiterated in the new (1987) Constitution when it declared in
Section 4 thereof that the Sandiganbayan shall continue to function and
exercise its jurisdiction as now or hereafter may be provided by law.
The remaining question to be resolved then is whether the offense of
multiple murder was committed in relation to the office of the accused PNP
officers.

In People vs. Montejo,64 we held that an offense is said to have been

committed in relation to the office if it (the offense) is intimately connected
with the office of the offender and perpetrated while he was in the
performance of his official functions.65 This intimate relation between the
offense charged and the discharge of official duties must be alleged in the
Information.66
As to how the offense charged be stated in the information, Section 9, Rule
110 of the Revised Rules of Court mandates:
SEC. 9. Cause of Accusation. The acts or omissions complained of as
constituting the offense must be stated in ordinary and concise language
without repetition not necessarily in the terms of the statute defining the
offense, but in such form as is sufficient to enable a person of common
understanding to know what offense is intended to be charged, and enable
the court to pronounce proper judgment. (Emphasis supplied)
As early as 1954, we pronounced that the factor that characterizes the
charge is the actual recital of the facts.67 The real nature of the criminal
charges is determined not from the caption or preamble of the information
nor from the specification of the provision of law alleged to have been
violated, they being conclusions of law, but by the actual recital of facts in
the complaint or information.68
The noble object of written accusations cannot be overemphasized. This
was explained in U.S. v. Karelsen:69
The object of this written accusations was First, To furnish the accused
with such a description of the charge against him as will enable him to make
his defense, and second, to avail himself of his conviction or acquittal for
protection against a further prosecution for the same cause, and third, to
inform the court of the facts alleged so that it may decide whether they are
sufficient in law to support a conviction if one should be had. In order that
this requirement may be satisfied, facts must be stated, not conclusions of
law Every crime is made up of certain acts and intent these must be set
forth in the complaint with reasonable particularity of time, place, names
(plaintiff and defendant) and circumstances. In short, the complaint must
contain a specific allegation of every fact and circumstance necessary to
constitute the crime charged. (Emphasis supplied)

It is essential, therefore, that the accused be informed of the facts that are
imputed to him as he is presumed to have no independent knowledge of the
facts that constitute the offense.70
Applying these legal principles and doctrines to the present case, we find the
amended informations for murder against herein petitioner and intervenors
wanting of specific factual averments to show the intimate
relation/connection between the offense charged and the discharge of
official function of the offenders.
In the present case, one of the eleven (11) amended informations71 for
murder reads:
AMENDED INFORMATION
The undersigned Special Prosecution Officer III, Office of the Ombudsman
hereby accuses CHIEF INSP MICHAEL RAY AQUINO, CHIEF INSP ERWIN
T. VILLACORTE SENIOR INSP JOSELITO T. ESQUIVEL. INSP RICARDO
G. DANDAN SPO4 VICENTE P. ARNADO, SPO4 ROBERTO F.
LANGCAUON, SPO2 VIRGILIO V. PARAGAS, SPO2 ROLANDO R.
JIMENEZ, SPO1 WILFREDO C. CUARTERO, SPO1 ROBERTO O.
AGBALOG, SPO1 OSMUNDO B. CARINO, CHIEF SUPT. JEWEL F.
CANSON, CHIEF SUPT. ROMEO M. ACOP, CHIEF SUPT. PANFILO M.
LACSON, SENIOR SUPT. FRANCISCO G. ZUBIA, JR., SUPT. ALMARIO
A. HILARIO, CHIEF INSP. CESAR O. MANCAO III, CHIEF INSP. GIL L.
MENESES, SENIOR INISP. GLENN DUMLAO, SENIOR INSP. ROLANDO
ANDUYAN, INSP. CEASAR TANNAGAN, SPO3 WILLY NUAS, SPO3
CICERO S. BACOLOD, PO2 NORBERTO LASAGA, PO2 LEONARDO
GLORIA and PO2 ALEJANDRO G. LIWANAG of the crime of Murder as
defined and penalized under Article 248 of the Revised Penal Code
committed as follows:
That on or about May 18, 1995 in Mariano Marcos Avenue, Quezon City,
Philippines and within the jurisdiction of this Honorable Court, the accused
CHIEF INISP. MICHAEL RAY AQUINO, CHIEF INSP. ERWIN T.
VILLACORTE, SENIOR INSP. JOSELITO T. ESQUIVEL, INSP. RICARDO
G. DANDAN, SPO4 VICENTE P. ARNADO SPO4 ROBERTO F.
LANGCAUON, SPO2 VIRGILIO V. PARAGAS, SPO2 ROLANDO R.
JIMENEZ, SPO1 WILFREDO C. CUARTERO, SPO1 ROBERTO O.
AGBALOG, and SPO1 OSMUNDO B. CARINO all taking advantage of their

public and official positions as officers and members of the Philippine

National Police and committing the acts herein alleged in relation to their
public office, conspiring with intent to kill and using firearms with treachery,
evident premeditation and taking advantage of their superior strengths did
then and there willfully, unlawfully and feloniously shoot JOEL AMORA,
thereby inflicting upon the latter mortal wounds which caused his
instantaneous death to the damage and prejudice of the heirs of the said
victim.
That accused CHIEF SUPT. JEWEL F. CANSON CHIEF SUPT. ROMEO
M. ACOP CHIEF SUPT. PANFILO M. LACSON, SENIOR SUPT.
FRANCISCO G. ZUBIA, JR. SUPT. ALMARIO A. HILARIO, CHIEF INSP.
CESAR O. MANCAO II CHIEF INSP. GIL L. MENESES, SENIOR INSP.
GLENN DUMLAO, SENIOR INSP. ROLANDO ANDUYAN, INSP. CEASAR
TANNAGAN SPO3 WILLY NUAS SPO3 CICERO S. BACOLOD, PO2
ALEJANDRO G. LIWANAG committing the acts in relation to office as
officers and members of the Philippine National Police are charged herein as
accessories after-the-fact for concealing the crime herein above alleged by
among others falsely representing that there were no arrests made during
the raid conducted by the accused herein at Superville Subdivision,
Paraaque, Metro Manila on or about the early dawn of May 18, 1995.
CONTRARY TO LAW
While the above-quoted information states that the above-named principal
accused committed the crime of murder in relation to their public office,
there is, however, no specific allegation of facts that the shooting of the
victim by the said principal accused was intimately related to the discharge
of their official duties as police officers. Likewise, the amended information
does not indicate that the said accused arrested and investigated the victim
and then killed the latter while in their custody.
Even the allegations concerning the criminal participation of herein petitioner
and intervenors as among the accessories after-the-fact, the amended
information is vague on this. It is alleged therein that the said accessories
concealed the crime herein-above alleged by, among others, falsely
representing that there were no arrests made during the raid conducted by
the accused herein at Superville Subdivision, Paraaque, Metro Manila, on
or about the early dawn of May 18, 1995. The sudden mention of the
arrests made during the raid conducted by the accused surprises the

reader. There is no indication in the amended information that the victim

was one of those arrested by the accused during the raid. Worse, the raid
and arrests were allegedly conducted at Superville Subdivision, Paraaque,
Metro Manila but, as alleged in the immediately preceding paragraph of the
amended information, the shooting of the victim by the principal accused
occurred in Mariano Marcos Avenue, Quezon City. How the raid, arrests
and shooting happened in two places far away from each other is puzzling.
Again, while there is the allegation in the amended information that the said
accessories committed the offense in relation to office as officers and
members of the (PNP), we, however, do not see the intimate connection
between the offense charged and the accuseds official functions, which, as
earlier discussed, is an essential element in determining the jurisdiction of
the Sandiganbayan.
The stringent requirement that the charge be set forth with such particularity
as will reasonably indicate the exact offense which the accused is alleged to
have committed in relation to his office was, sad to say, not satisfied. We
believe that the mere allegation in the amended information that the offense
was committed by the accused public officer in relation to his office is not
sufficient. That phrase is merely a conclusion of law, not a factual averment
that would show the close intimacy between the offense charged and the
discharge of the accuseds official duties.
In People vs. Magallanes,72 where the jurisdiction between the Regional
Trial Court and the Sandiganbayan was at issue, we ruled:
It is an elementary rule that jurisdiction is determined by the allegations in
the complaint or information and not by the result of evidence after trial.
In (People vs. ) Montejo (108 Phil 613 [1960] ), where the amended
information alleged
Leroy S. Brown, City Mayor of Basilan City, as such, has organized groups
of police patrol and civilian commandos consisting of regular policemen and
x x x special policemen, appointed and provided by him with pistols and high
power guns and then established a camp x x x at Tipo-tipo which is under
his command x x x supervision and control where his co-defendants were
stationed, entertained criminal complaints and conducted the corresponding
investigations, as well as assumed the authority to arrest and detain persons
without due process of law and without bringing them to the proper court,

and that in line with this set-up established by said Mayor of Basilan City as
such, and acting upon his orders his co-defendants arrested and maltreated
Awalin Tebag who died in consequence thereof.
we held that the offense charged was committed in relation to the office of
the accused because it was perpetrated while they were in the performance,
though improper or irregular of their official functions and would not have
been committed had they not held their office, besides, the accused had no
personal motive in committing the crime, thus, there was an intimate
connection between the offense and the office of the accused.
Unlike in Montejo, the informations in Criminal Cases Nos. 15562 and
15563 in the court below do not indicate that the accused arrested and
investigated the victims and then killed the latter in the course of the
investigation. The informations merely allege that the accused, for the
purpose of extracting or extorting the sum of P353,000.00 abducted,
kidnapped and detained the two victims, and failing in their common
purpose, they shot and killed the said victims. For the purpose of
determining jurisdiction, it is these allegations that shall control, and not the
evidence presented by the prosecution at the trial.
In the aforecited case of People vs. Montejo, it is noteworthy that the phrase
committed in relation to public office does not appear in the information,
which only signifies that the said phrase is not what determines the
jurisdiction of the Sandiganbayan. What is controlling is the specific factual
allegations in the information that would indicate the close intimacy between
the discharge of the accuseds official duties and the commission of the
offense charged, in order to qualify the crime as having been committed in
relation to public office.
Consequently, for failure to show in the amended informations that the
charge of murder was intimately connected with the discharge of official
functions of the accused PNP officers, the offense charged in the subject
criminal cases is plain murder and, therefore, within the exclusive original
jurisdiction of the Regional Trial Court,73 not the Sandiganbayan.
WHEREFORE, the constitutionality of Sections 4 and 7 of R.A. 8249 is
hereby sustained. The Addendum to the March 5, 1997 Resolution of the
Sandiganbayan is REVERSED. The Sandiganbayan is hereby directed to
transfer Criminal Cases Nos. 23047 to 23057 (for multiple murder) to the

Regional Trial Court of Quezon City which has exclusive original jurisdiction
over said cases.
SO ORDERED.
Davide, Jr., C.J., Romero, Bellosillo, Melo, Puno, Vitug, Kapunan, Mendoza,
Panganiban, Quisumbing, Purisima, Par

in due time, become one of the principal witnesses for the prosecution. On
08 January 1988, Presiding Judge Eutropio Migrino rendered a decision
acquitting the two accused.
On 03 August 1988, Minucher filed Civil Case No. 88-45691 before the
Regional Trial Court (RTC), Branch 19, of Manila for damages on account of
what he claimed to have been trumped-up charges of drug trafficking made
by Arthur Scalzo. The Manila RTC detailed what it had found to be the facts
and circumstances surrounding the case.
"The testimony of the plaintiff disclosed that he is an Iranian national. He
came to the Philippines to study in the University of the Philippines in 1974.
In 1976, under the regime of the Shah of Iran, he was appointed Labor
Attach for the Iranian Embassies in Tokyo, Japan and Manila, Philippines.
When the Shah of Iran was deposed by Ayatollah Khomeini, plaintiff became
a refugee of the United Nations and continued to stay in the Philippines. He
headed the Iranian National Resistance Movement in the Philippines.

FIRST DIVISION
[G.R. No. 142396. February 11, 2003]
KHOSROW MINUCHER, petitioner, vs. HON. COURT OF APPEALS and
ARTHUR SCALZO, respondents.
DECISION
VITUG, J.:
Sometime in May 1986, an Information for violation of Section 4 of Republic
Act No. 6425, otherwise also known as the Dangerous Drugs Act of 1972,
was filed against petitioner Khosrow Minucher and one Abbas Torabian with
the Regional Trial Court, Branch 151, of Pasig City. The criminal charge
followed a buy-bust operation conducted by the Philippine police narcotic
agents in the house of Minucher, an Iranian national, where a quantity of
heroin, a prohibited drug, was said to have been seized. The narcotic
agents were accompanied by private respondent Arthur Scalzo who would,

He came to know the defendant on May 13, 1986, when the latter was
brought to his house and introduced to him by a certain Jose Iigo, an
informer of the Intelligence Unit of the military. Jose Iigo, on the other
hand, was met by plaintiff at the office of Atty. Crisanto Saruca, a lawyer for
several Iranians whom plaintiff assisted as head of the anti-Khomeini
movement in the Philippines.
During his first meeting with the defendant on May 13, 1986, upon the
introduction of Jose Iigo, the defendant expressed his interest in buying
caviar. As a matter of fact, he bought two kilos of caviar from plaintiff and
paid P10,000.00 for it. Selling caviar, aside from that of Persian carpets,
pistachio nuts and other Iranian products was his business after the
Khomeini government cut his pension of over $3,000.00 per month. During
their introduction in that meeting, the defendant gave the plaintiff his calling
card, which showed that he is working at the US Embassy in the Philippines,
as a special agent of the Drug Enforcement Administration, Department of
Justice, of the United States, and gave his address as US Embassy, Manila.
At the back of the card appears a telephone number in defendants own
handwriting, the number of which he can also be contacted.
It was also during this first meeting that plaintiff expressed his desire to
obtain a US Visa for his wife and the wife of a countryman named Abbas

Torabian. The defendant told him that he [could] help plaintiff for a fee of
$2,000.00 per visa. Their conversation, however, was more concentrated on
politics, carpets and caviar. Thereafter, the defendant promised to see
plaintiff again.
On May 19, 1986, the defendant called the plaintiff and invited the latter for
dinner at Mario's Restaurant at Makati. He wanted to buy 200 grams of
caviar. Plaintiff brought the merchandize but for the reason that the
defendant was not yet there, he requested the restaurant people to x x x
place the same in the refrigerator. Defendant, however, came and plaintiff
gave him the caviar for which he was paid. Then their conversation was
again focused on politics and business.
On May 26, 1986, defendant visited plaintiff again at the latter's residence
for 18 years at Kapitolyo, Pasig. The defendant wanted to buy a pair of
carpets which plaintiff valued at $27,900.00. After some haggling, they
agreed at $24,000.00. For the reason that defendant did not yet have the
money, they agreed that defendant would come back the next day. The
following day, at 1:00 p.m., he came back with his $24,000.00, which he
gave to the plaintiff, and the latter, in turn, gave him the pair of carpets.
At about 3:00 in the afternoon of May 27, 1986, the defendant came back
again to plaintiff's house and directly proceeded to the latter's bedroom,
where the latter and his countryman, Abbas Torabian, were playing chess.
Plaintiff opened his safe in the bedroom and obtained $2,000.00 from it,
gave it to the defendant for the latter's fee in obtaining a visa for plaintiff's
wife. The defendant told him that he would be leaving the Philippines very
soon and requested him to come out of the house for a while so that he can
introduce him to his cousin waiting in a cab. Without much ado, and without
putting on his shirt as he was only in his pajama pants, he followed the
defendant where he saw a parked cab opposite the street. To his complete
surprise, an American jumped out of the cab with a drawn high-powered
gun. He was in the company of about 30 to 40 Filipino soldiers with 6
Americans, all armed. He was handcuffed and after about 20 minutes in the
street, he was brought inside the house by the defendant. He was made to
sit down while in handcuffs while the defendant was inside his bedroom.
The defendant came out of the bedroom and out from defendant's attach
case, he took something and placed it on the table in front of the plaintiff.
They also took plaintiff's wife who was at that time at the boutique near his

house and likewise arrested Torabian, who was playing chess with him in
the bedroom and both were handcuffed together. Plaintiff was not told why
he was being handcuffed and why the privacy of his house, especially his
bedroom was invaded by defendant. He was not allowed to use the
telephone. In fact, his telephone was unplugged. He asked for any warrant,
but the defendant told him to `shut up. He was nevertheless told that he
would be able to call for his lawyer who can defend him.
The plaintiff took note of the fact that when the defendant invited him to
come out to meet his cousin, his safe was opened where he kept the
$24,000.00 the defendant paid for the carpets and another $8,000.00 which
he also placed in the safe together with a bracelet worth $15,000.00 and a
pair of earrings worth $10,000.00. He also discovered missing upon his
release his 8 pieces hand-made Persian carpets, valued at $65,000.00, a
painting he bought for P30,000.00 together with his TV and betamax sets.
He claimed that when he was handcuffed, the defendant took his keys from
his wallet. There was, therefore, nothing left in his house.
That his arrest as a heroin trafficker x x x had been well publicized
throughout the world, in various newspapers, particularly in Australia,
America, Central Asia and in the Philippines. He was identified in the papers
as an international drug trafficker. x x x
In fact, the arrest of defendant and Torabian was likewise on television, not
only in the Philippines, but also in America and in Germany. His friends in
said places informed him that they saw him on TV with said news.
After the arrest made on plaintiff and Torabian, they were brought to Camp
Crame handcuffed together, where they were detained for three days
without food and water."1
During the trial, the law firm of Luna, Sison and Manas, filed a special
appearance for Scalzo and moved for extension of time to file an answer
pending a supposed advice from the United States Department of State and
Department of Justice on the defenses to be raised. The trial court granted
the motion. On 27 October 1988, Scalzo filed another special appearance to
quash the summons on the ground that he, not being a resident of the
Philippines and the action being one in personam, was beyond the
processes of the court. The motion was denied by the court, in its order of
13 December 1988, holding that the filing by Scalzo of a motion for

extension of time to file an answer to the complaint was a voluntary

appearance equivalent to service of summons which could likewise be
construed a waiver of the requirement of formal notice. Scalzo filed a motion
for reconsideration of the court order, contending that a motion for an
extension of time to file an answer was not a voluntary appearance
equivalent to service of summons since it did not seek an affirmative relief.
Scalzo argued that in cases involving the United States government, as well
as its agencies and officials, a motion for extension was peculiarly
unavoidable due to the need (1) for both the Department of State and the
Department of Justice to agree on the defenses to be raised and (2) to refer
the case to a Philippine lawyer who would be expected to first review the
case. The court a quo denied the motion for reconsideration in its order of
15 October 1989.
Scalzo filed a petition for review with the Court of Appeals, there docketed
CA-G.R. No. 17023, assailing the denial. In a decision, dated 06 October
1989, the appellate court denied the petition and affirmed the ruling of the
trial court. Scalzo then elevated the incident in a petition for review on
certiorari, docketed G.R. No. 91173, to this Court. The petition, however,
was denied for its failure to comply with SC Circular No. 1-88; in any event,
the Court added, Scalzo had failed to show that the appellate court was in
error in its questioned judgment.
Meanwhile, at the court a quo, an order, dated 09 February 1990, was
issued (a) declaring Scalzo in default for his failure to file a responsive
pleading (answer) and (b) setting the case for the reception of evidence. On
12 March 1990, Scalzo filed a motion to set aside the order of default and to
admit his answer to the complaint. Granting the motion, the trial court set
the case for pre-trial. In his answer, Scalzo denied the material allegations
of the complaint and raised the affirmative defenses (a) of Minuchers failure
to state a cause of action in his complaint and (b) that Scalzo had acted in
the discharge of his official duties as being merely an agent of the Drug
Enforcement Administration of the United States Department of Justice.
Scalzo interposed a counterclaim of P100,000.00 to answer for attorneys'
fees and expenses of litigation.
Then, on 14 June 1990, after almost two years since the institution of the
civil case, Scalzo filed a motion to dismiss the complaint on the ground that,
being a special agent of the United States Drug Enforcement Administration,

he was entitled to diplomatic immunity. He attached to his motion Diplomatic

Note No. 414 of the United States Embassy, dated 29 May 1990, addressed
to the Department of Foreign Affairs of the Philippines and a Certification,
dated 11 June 1990, of Vice Consul Donna Woodward, certifying that the
note is a true and faithful copy of its original. In an order of 25 June 1990,
the trial court denied the motion to dismiss.
On 27 July 1990, Scalzo filed a petition for certiorari with injunction with this
Court, docketed G.R. No. 94257 and entitled "Arthur W. Scalzo, Jr., vs. Hon.
Wenceslao Polo, et al.," asking that the complaint in Civil Case No. 8845691 be ordered dismissed. The case was referred to the Court of
Appeals, there docketed CA-G.R. SP No. 22505, per this Courts resolution
of 07 August 1990. On 31 October 1990, the Court of Appeals promulgated
its decision sustaining the diplomatic immunity of Scalzo and ordering the
dismissal of the complaint against him. Minucher filed a petition for review
with this Court, docketed G.R. No. 97765 and entitled "Khosrow Minucher
vs. the Honorable Court of Appeals, et. al. (cited in 214 SCRA 242),
appealing the judgment of the Court of Appeals. In a decision, dated 24
September 1992, penned by Justice (now Chief Justice) Hilario Davide, Jr.,
this Court reversed the decision of the appellate court and remanded the
case to the lower court for trial. The remand was ordered on the theses (a)
that the Court of Appeals erred in granting the motion to dismiss of Scalzo
for lack of jurisdiction over his person without even considering the issue of
the authenticity of Diplomatic Note No. 414 and (b) that the complaint
contained sufficient allegations to the effect that Scalzo committed the
imputed acts in his personal capacity and outside the scope of his official
duties and, absent any evidence to the contrary, the issue on Scalzos
diplomatic immunity could not be taken up.
The Manila RTC thus continued with its hearings on the case. On 17
November 1995, the trial court reached a decision; it adjudged:
WHEREFORE, and in view of all the foregoing considerations, judgment is
hereby rendered for the plaintiff, who successfully established his claim by
sufficient evidence, against the defendant in the manner following:
"`Adjudging defendant liable to plaintiff in actual and compensatory damages
of P520,000.00; moral damages in the sum of P10 million; exemplary
damages in the sum of P100,000.00; attorney's fees in the sum of
P200,000.00 plus costs.

`The Clerk of the Regional Trial Court, Manila, is ordered to take note of the
lien of the Court on this judgment to answer for the unpaid docket fees
considering that the plaintiff in this case instituted this action as a pauper
litigant."2
While the trial court gave credence to the claim of Scalzo and the evidence
presented by him that he was a diplomatic agent entitled to immunity as
such, it ruled that he, nevertheless, should be held accountable for the acts
complained of committed outside his official duties. On appeal, the Court of
Appeals reversed the decision of the trial court and sustained the defense of
Scalzo that he was sufficiently clothed with diplomatic immunity during his
term of duty and thereby immune from the criminal and civil jurisdiction of
the Receiving State pursuant to the terms of the Vienna Convention.
Hence, this recourse by Minucher. The instant petition for review raises a
two-fold issue: (1) whether or not the doctrine of conclusiveness of
judgment, following the decision rendered by this Court in G.R. No. 97765,
should have precluded the Court of Appeals from resolving the appeal to it in
an entirely different manner, and (2) whether or not Arthur Scalzo is indeed
entitled to diplomatic immunity.
The doctrine of conclusiveness of judgment, or its kindred rule of res
judicata, would require 1) the finality of the prior judgment, 2) a valid
jurisdiction over the subject matter and the parties on the part of the court
that renders it, 3) a judgment on the merits, and 4) an identity of the parties,
subject matter and causes of action.3 Even while one of the issues
submitted in G.R. No. 97765 - "whether or not public respondent Court of
Appeals erred in ruling that private respondent Scalzo is a diplomat immune
from civil suit conformably with the Vienna Convention on Diplomatic
Relations" - is also a pivotal question raised in the instant petition, the ruling
in G.R. No. 97765, however, has not resolved that point with finality. Indeed,
the Court there has made this observation "It may be mentioned in this regard that private respondent himself, in his
Pre-trial Brief filed on 13 June 1990, unequivocally states that he would
present documentary evidence consisting of DEA records on his
investigation and surveillance of plaintiff and on his position and duties as
DEA special agent in Manila. Having thus reserved his right to present
evidence in support of his position, which is the basis for the alleged
diplomatic immunity, the barren self-serving claim in the belated motion to

dismiss cannot be relied upon for a reasonable, intelligent and fair resolution
of the issue of diplomatic immunity."4
Scalzo contends that the Vienna Convention on Diplomatic Relations, to
which the Philippines is a signatory, grants him absolute immunity from suit,
describing his functions as an agent of the United States Drugs Enforcement
Agency as conducting surveillance operations on suspected drug dealers in
the Philippines believed to be the source of prohibited drugs being shipped
to the U.S., (and) having ascertained the target, (he then) would inform the
Philippine narcotic agents (to) make the actual arrest." Scalzo has
submitted to the trial court a number of documents 1.

Exh. '2' -

Diplomatic Note No. 414 dated 29 May 1990;

2.
Exh. '1' dated 11 June 1990;

Certification of Vice Consul Donna K. Woodward

3.

Diplomatic Note No. 757 dated 25 October 1991;

Exh. '5' -

4.
Exh. '6' 1992; and

Diplomatic Note No. 791 dated 17 November

5.

Diplomatic Note No. 833 dated 21 October 1988.

Exh. '7' -

6.
Exh. '3' 1st Indorsement of the Hon. Jorge R. Coquia,
Legal Adviser, Department of Foreign Affairs, dated 27 June 1990
forwarding Embassy Note No. 414 to the Clerk of Court of RTC Manila,
Branch 19 (the trial court);
7.
Exh. '4' Diplomatic Note No. 414, appended to the 1st
Indorsement (Exh. '3'); and
8.
Exh. '8' Letter dated 18 November 1992 from the Office
of the Protocol, Department of Foreign Affairs, through Asst. Sec.
Emmanuel Fernandez, addressed to the Chief Justice of this Court.5
The documents, according to Scalzo, would show that: (1) the United States
Embassy accordingly advised the Executive Department of the Philippine
Government that Scalzo was a member of the diplomatic staff of the United
States diplomatic mission from his arrival in the Philippines on 14 October
1985 until his departure on 10 August 1988; (2) that the United States

Government was firm from the very beginning in asserting the diplomatic
immunity of Scalzo with respect to the case pursuant to the provisions of the
Vienna Convention on Diplomatic Relations; and (3) that the United States
Embassy repeatedly urged the Department of Foreign Affairs to take
appropriate action to inform the trial court of Scalzos diplomatic immunity.
The other documentary exhibits were presented to indicate that: (1) the
Philippine government itself, through its Executive Department, recognizing
and respecting the diplomatic status of Scalzo, formally advised the Judicial
Department of his diplomatic status and his entitlement to all diplomatic
privileges and immunities under the Vienna Convention; and (2) the
Department of Foreign Affairs itself authenticated Diplomatic Note No. 414.
Scalzo additionally presented Exhibits "9" to "13" consisting of his reports of
investigation on the surveillance and subsequent arrest of Minucher, the
certification of the Drug Enforcement Administration of the United States
Department of Justice that Scalzo was a special agent assigned to the
Philippines at all times relevant to the complaint, and the special power of
attorney executed by him in favor of his previous counsel6 to show (a) that
the United States Embassy, affirmed by its Vice Consul, acknowledged
Scalzo to be a member of the diplomatic staff of the United States diplomatic
mission from his arrival in the Philippines on 14 October 1985 until his
departure on 10 August 1988, (b) that, on May 1986, with the cooperation of
the Philippine law enforcement officials and in the exercise of his functions
as member of the mission, he investigated Minucher for alleged trafficking in
a prohibited drug, and (c) that the Philippine Department of Foreign Affairs
itself recognized that Scalzo during his tour of duty in the Philippines (14
October 1985 up to 10 August 1988) was listed as being an Assistant
Attach of the United States diplomatic mission and accredited with
diplomatic status by the Government of the Philippines. In his Exhibit 12,
Scalzo described the functions of the overseas office of the United States
Drugs Enforcement Agency, i.e., (1) to provide criminal investigative
expertise and assistance to foreign law enforcement agencies on narcotic
and drug control programs upon the request of the host country, 2) to
establish and maintain liaison with the host country and counterpart foreign
law enforcement officials, and 3) to conduct complex criminal investigations
involving international criminal conspiracies which affect the interests of the
United States.
The Vienna Convention on Diplomatic Relations was a codification of
centuries-old customary law and, by the time of its ratification on 18 April

1961, its rules of law had long become stable. Among the city states of
ancient Greece, among the peoples of the Mediterranean before the
establishment of the Roman Empire, and among the states of India, the
person of the herald in time of war and the person of the diplomatic envoy in
time of peace were universally held sacrosanct.7 By the end of the 16th
century, when the earliest treatises on diplomatic law were published, the
inviolability of ambassadors was firmly established as a rule of customary
international law.8 Traditionally, the exercise of diplomatic intercourse
among states was undertaken by the head of state himself, as being the
preeminent embodiment of the state he represented, and the foreign
secretary, the official usually entrusted with the external affairs of the state.
Where a state would wish to have a more prominent diplomatic presence in
the receiving state, it would then send to the latter a diplomatic mission.
Conformably with the Vienna Convention, the functions of the diplomatic
mission involve, by and large, the representation of the interests of the
sending state and promoting friendly relations with the receiving state.9
The Convention lists the classes of heads of diplomatic missions to include
(a) ambassadors or nuncios accredited to the heads of state,10 (b)
envoys,11 ministers or internuncios accredited to the heads of states; and
(c) charges d' affairs12 accredited to the ministers of foreign affairs.13
Comprising the "staff of the (diplomatic) mission" are the diplomatic staff, the
administrative staff and the technical and service staff. Only the heads of
missions, as well as members of the diplomatic staff, excluding the members
of the administrative, technical and service staff of the mission, are accorded
diplomatic rank. Even while the Vienna Convention on Diplomatic Relations
provides for immunity to the members of diplomatic missions, it does so,
nevertheless, with an understanding that the same be restrictively applied.
Only "diplomatic agents," under the terms of the Convention, are vested with
blanket diplomatic immunity from civil and criminal suits. The Convention
defines "diplomatic agents" as the heads of missions or members of the
diplomatic staff, thus impliedly withholding the same privileges from all
others. It might bear stressing that even consuls, who represent their
respective states in concerns of commerce and navigation and perform
certain administrative and notarial duties, such as the issuance of passports
and visas, authentication of documents, and administration of oaths, do not
ordinarily enjoy the traditional diplomatic immunities and privileges accorded
diplomats, mainly for the reason that they are not charged with the duty of
representing their states in political matters. Indeed, the main yardstick in

ascertaining whether a person is a diplomat entitled to immunity is the

determination of whether or not he performs duties of diplomatic nature.
Scalzo asserted, particularly in his Exhibits 9 to 13, that he was an
Assistant Attach of the United States diplomatic mission and was
accredited as such by the Philippine Government. An attach belongs to a
category of officers in the diplomatic establishment who may be in charge of
its cultural, press, administrative or financial affairs. There could also be a
class of attaches belonging to certain ministries or departments of the
government, other than the foreign ministry or department, who are detailed
by their respective ministries or departments with the embassies such as the
military, naval, air, commercial, agricultural, labor, science, and customs
attaches, or the like. Attaches assist a chief of mission in his duties and are
administratively under him, but their main function is to observe, analyze and
interpret trends and developments in their respective fields in the host
country and submit reports to their own ministries or departments in the
home government.14 These officials are not generally regarded as members
of the diplomatic mission, nor are they normally designated as having
diplomatic rank.
In an attempt to prove his diplomatic status, Scalzo presented Diplomatic
Notes Nos. 414, 757 and 791, all issued post litem motam, respectively, on
29 May 1990, 25 October 1991 and 17 November 1992. The presentation
did nothing much to alleviate the Court's initial reservations in G.R. No.
97765, viz:
"While the trial court denied the motion to dismiss, the public respondent
gravely abused its discretion in dismissing Civil Case No. 88-45691 on the
basis of an erroneous assumption that simply because of the diplomatic
note, the private respondent is clothed with diplomatic immunity, thereby
divesting the trial court of jurisdiction over his person.
x x x
x

xxx

xx

And now, to the core issue - the alleged diplomatic immunity of the private
respondent. Setting aside for the moment the issue of authenticity raised by
the petitioner and the doubts that surround such claim, in view of the fact
that it took private respondent one (1) year, eight (8) months and seventeen
(17) days from the time his counsel filed on 12 September 1988 a Special

Appearance and Motion asking for a first extension of time to file the Answer
because the Departments of State and Justice of the United States of
America were studying the case for the purpose of determining his defenses,
before he could secure the Diplomatic Note from the US Embassy in Manila,
and even granting for the sake of argument that such note is authentic, the
complaint for damages filed by petitioner cannot be peremptorily dismissed.
x x x

xxx

xxx

"There is of course the claim of private respondent that the acts imputed to
him were done in his official capacity. Nothing supports this self-serving
claim other than the so-called Diplomatic Note. x x x. The public
respondent then should have sustained the trial court's denial of the motion
to dismiss. Verily, it should have been the most proper and appropriate
recourse. It should not have been overwhelmed by the self-serving
Diplomatic Note whose belated issuance is even suspect and whose
authenticity has not yet been proved. The undue haste with which
respondent Court yielded to the private respondent's claim is arbitrary."
A significant document would appear to be Exhibit No. 08, dated 08
November 1992, issued by the Office of Protocol of the Department of
Foreign Affairs and signed by Emmanuel C. Fernandez, Assistant Secretary,
certifying that "the records of the Department (would) show that Mr. Arthur
W. Scalzo, Jr., during his term of office in the Philippines (from 14 October
1985 up to 10 August 1988) was listed as an Assistant Attach of the United
States diplomatic mission and was, therefore, accredited diplomatic status
by the Government of the Philippines." No certified true copy of such
"records," the supposed bases for the belated issuance, was presented in
evidence.
Concededly, vesting a person with diplomatic immunity is a prerogative of
the executive branch of the government. In World Health Organization vs.
Aquino,15 the Court has recognized that, in such matters, the hands of the
courts are virtually tied. Amidst apprehensions of indiscriminate and
incautious grant of immunity, designed to gain exemption from the
jurisdiction of courts, it should behoove the Philippine government,
specifically its Department of Foreign Affairs, to be most circumspect, that
should particularly be no less than compelling, in its post litem motam
issuances. It might be recalled that the privilege is not an immunity from the
observance of the law of the territorial sovereign or from ensuing legal

liability; it is, rather, an immunity from the exercise of territorial jurisdiction.16

The government of the United States itself, which Scalzo claims to be acting
for, has formulated its standards for recognition of a diplomatic agent. The
State Department policy is to only concede diplomatic status to a person
who possesses an acknowledged diplomatic title and performs duties of
diplomatic nature.17 Supplementary criteria for accreditation are the
possession of a valid diplomatic passport or, from States which do not issue
such passports, a diplomatic note formally representing the intention to
assign the person to diplomatic duties, the holding of a non-immigrant visa,
being over twenty-one years of age, and performing diplomatic functions on
an essentially full-time basis.18 Diplomatic missions are requested to
provide the most accurate and descriptive job title to that which currently
applies to the duties performed. The Office of the Protocol would then
assign each individual to the appropriate functional category.19
But while the diplomatic immunity of Scalzo might thus remain contentious, it
was sufficiently established that, indeed, he worked for the United States
Drug Enforcement Agency and was tasked to conduct surveillance of
suspected drug activities within the country on the dates pertinent to this
case. If it should be ascertained that Arthur Scalzo was acting well within his
assigned functions when he committed the acts alleged in the complaint, the
present controversy could then be resolved under the related doctrine of
State Immunity from Suit.
The precept that a State cannot be sued in the courts of a foreign state is a
long-standing rule of customary international law then closely identified with
the personal immunity of a foreign sovereign from suit20 and, with the
emergence of democratic states, made to attach not just to the person of the
head of state, or his representative, but also distinctly to the state itself in its
sovereign capacity.21 If the acts giving rise to a suit are those of a foreign
government done by its foreign agent, although not necessarily a diplomatic
personage, but acting in his official capacity, the complaint could be barred
by the immunity of the foreign sovereign from suit without its consent. Suing
a representative of a state is believed to be, in effect, suing the state itself.
The proscription is not accorded for the benefit of an individual but for the
State, in whose service he is, under the maxim - par in parem, non habet
imperium - that all states are sovereign equals and cannot assert jurisdiction
over one another.22 The implication, in broad terms, is that if the judgment
against an official would require the state itself to perform an affirmative act

to satisfy the award, such as the appropriation of the amount needed to pay
the damages decreed against him, the suit must be regarded as being
against the state itself, although it has not been formally impleaded.23
In United States of America vs. Guinto,24 involving officers of the United
States Air Force and special officers of the Air Force Office of Special
Investigators charged with the duty of preventing the distribution, possession
and use of prohibited drugs, this Court has ruled "While the doctrine (of state immunity) appears to prohibit only suits against
the state without its consent, it is also applicable to complaints filed against
officials of the state for acts allegedly performed by them in the discharge of
their duties. x x x. It cannot for a moment be imagined that they were acting
in their private or unofficial capacity when they apprehended and later
testified against the complainant. It follows that for discharging their duties
as agents of the United States, they cannot be directly impleaded for acts
imputable to their principal, which has not given its consent to be sued. x x x
As they have acted on behalf of the government, and within the scope of
their authority, it is that government, and not the petitioners personally, [who
were] responsible for their acts."25
This immunity principle, however, has its limitations. Thus, Shauf vs. Court
of Appeals26 elaborates:
It is a different matter where the public official is made to account in his
capacity as such for acts contrary to law and injurious to the rights of the
plaintiff. As was clearly set forth by Justice Zaldivar in Director of the Bureau
of Telecommunications, et al., vs. Aligaen, et al. (33 SCRA 368): `Inasmuch
as the State authorizes only legal acts by its officers, unauthorized acts of
government officials or officers are not acts of the State, and an action
against the officials or officers by one whose rights have been invaded or
violated by such acts, for the protection of his rights, is not a suit against the
State within the rule of immunity of the State from suit. In the same tenor, it
has been said that an action at law or suit in equity against a State officer or
the director of a State department on the ground that, while claiming to act
for the State, he violates or invades the personal and property rights of the
plaintiff, under an unconstitutional act or under an assumption of authority
which he does not have, is not a suit against the State within the
constitutional provision that the State may not be sued without its consent.

The rationale for this ruling is that the doctrine of state immunity cannot be
used as an instrument for perpetrating an injustice.
x x x

xxx

xxx

(T)he doctrine of immunity from suit will not apply and may not be invoked
where the public official is being sued in his private and personal capacity as
an ordinary citizen. The cloak of protection afforded the officers and agents
of the government is removed the moment they are sued in their individual
capacity. This situation usually arises where the public official acts without
authority or in excess of the powers vested in him. It is a well-settled
principle of law that a public official may be liable in his personal private
capacity for whatever damage he may have caused by his act done with
malice and in bad faith or beyond the scope of his authority and
jurisdiction.27
A foreign agent, operating within a territory, can be cloaked with immunity
from suit but only as long as it can be established that he is acting within the
directives of the sending state. The consent of the host state is an
indispensable requirement of basic courtesy between the two sovereigns.
Guinto and Shauf both involve officers and personnel of the United States,
stationed within Philippine territory, under the RP-US Military Bases
Agreement. While evidence is wanting to show any similar agreement
between the governments of the Philippines and of the United States (for the
latter to send its agents and to conduct surveillance and related activities of
suspected drug dealers in the Philippines), the consent or imprimatur of the
Philippine government to the activities of the United States Drug
Enforcement Agency, however, can be gleaned from the facts heretofore
elsewhere mentioned. The official exchanges of communication between
agencies of the government of the two countries, certifications from officials
of both the Philippine Department of Foreign Affairs and the United States
Embassy, as well as the participation of members of the Philippine Narcotics
Command in the buy-bust operation conducted at the residence of
Minucher at the behest of Scalzo, may be inadequate to support the
"diplomatic status" of the latter but they give enough indication that the
Philippine government has given its imprimatur, if not consent, to the
activities within Philippine territory of agent Scalzo of the United States Drug
Enforcement Agency. The job description of Scalzo has tasked him to
conduct surveillance on suspected drug suppliers and, after having

ascertained the target, to inform local law enforcers who would then be
expected to make the arrest. In conducting surveillance activities on
Minucher, later acting as the poseur-buyer during the buy-bust operation,
and then becoming a principal witness in the criminal case against Minucher,
Scalzo hardly can be said to have acted beyond the scope of his official
function or duties.
All told, this Court is constrained to rule that respondent Arthur Scalzo, an
agent of the United States Drug Enforcement Agency allowed by the
Philippine government to conduct activities in the country to help contain the
problem on the drug traffic, is entitled to the defense of state immunity from
suit.
WHEREFORE, on the foregoing premises, the petition is DENIED. No
costs.
SO ORDERED.
Davide, Jr., C.J., (Chairman), Ynares-Santiago, Carpio and Azcuna, JJ.,
concur

Present:

PUNO, C.J.,

QUISUMBING,

YNARES-SANTIAGO,
CARPIO,
AUSTRIAMARTINEZ,
- versus -

CORONA,
CARPIO

MORALES,
AZCUNA,
TINGA,
CHICONAZARIO,
VELASCO,
JR.,
NACHURA,
SUZETTE NICOLAS y SOMBILON,

G.R. No. 175888

Petitioner,

LEONARDO-DE CASTRO,
BRION, and
PERALTA, JJ.

ALBERTO ROMULO, in his capacity as Secretary of Foreign Affairs; RAUL

GONZALEZ, in his capacity as Secretary of Justice; EDUARDO ERMITA, in
his capacity as Executive Secretary; RONALDO PUNO, in his capacity as
Secretary of the Interior and Local Government; SERGIO APOSTOL, in his
capacity as Presidential Legal Counsel; and L/CPL. DANIEL SMITH,
Respondents.

DANIEL SMITH, SECRETARY RAUL GONZALEZ, PRESIDENTIAL LEGAL

COUNSEL SERGIO APOSTOL, SECRETARY RONALDO PUNO,
SECRETARY ALBERTO ROMULO, The Special 16th Division of the
COURT OF APPEALS, and all persons acting in their capacity,
Respondents.

X - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -X

X - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -X

BAGONG ALYANSANG MAKABAYAN

JOVITO R. SALONGA, WIGBERTO

G.R. No. 176051

G.R. No. 176222

(BAYAN), represented by Dr. Carol Araullo; GABRIELA, represented by

Emerenciana de Jesus; BAYAN MUNA, represented by Rep. Satur Ocampo;
GABRIELA WOMENS PARTY, represented by Rep. Liza Maza; KILUSANG
MAYO UNO (KMU), represented by Elmer Labog; KILUSANG
MAGBUBUKID NG PILIPINAS (KMP), represented by Willy Marbella;
LEAGUE OF FILIPINO STUDENTS (LFS), represented by Vencer
Crisostomo; and THE PUBLIC INTEREST LAW CENTER, represented by
Atty. Rachel Pastores,

E. TAADA, JOSE DE LA RAMA,

Petitioners,

EMILIO C. CAPULONG, H. HARRY

L. ROQUE, JR., FLORIN HILBAY,
and BENJAMIN POZON,

- versus Petitioners,

- versus -

PRESIDENT GLORIA MACAPAGAL-ARROYO, in her capacity as

concurrent Defense Secretary, EXECUTIVE SECRETARY EDUARDO
ERMITA, FOREIGN AFFAIRS SECRETARY ALBERTO ROMULO,

JUSTICE SECRETARY RAUL GONZALEZ, AND INTERIOR AND LOCAL

GOVERNMENT SECRETARY RONALDO PUNO,
Respondents.
Promulgated:

February

The undersigned accused LCpl. Daniel Smith, Ssgt. Chad Brian Carpentier,
Dominic Duplantis, Keith Silkwood and Timoteo L. Soriano, Jr. of the crime
of Rape under Article 266-A of the Revised Penal Code, as amended by
Republic Act 8353, upon a complaint under oath filed by Suzette S. Nicolas,
which is attached hereto and made an integral part hereof as Annex A,
committed as follows:

11, 2009

X ---------------------------------------------------------------------------------------- X

DECISION

AZCUNA, J.:

These are petitions for certiorari, etc. as special civil actions and/or for
review of the Decision of the Court of Appeals in Lance Corporal Daniel J.
Smith v. Hon. Benjamin T. Pozon, et al., in CA-G.R. SP No. 97212, dated
January 2, 2007.

That on or about the First (1st) day of November 2005, inside the Subic Bay
Freeport Zone, Olongapo City and within the jurisdiction of this Honorable
Court, the above-named accuseds (sic), being then members of the United
States Marine Corps, except Timoteo L. Soriano, Jr., conspiring,
confederating together and mutually helping one another, with lewd design
and by means of force, threat and intimidation, with abuse of superior
strength and taking advantage of the intoxication of the victim, did then and
there willfully, unlawfully and feloniously sexually abuse and have sexual
intercourse with or carnal knowledge of one Suzette S. Nicolas, a 22-year
old unmarried woman inside a Starex Van with Plate No. WKF-162, owned
by Starways Travel and Tours, with Office address at 8900 P. Victor St.,
Guadalupe, Makati City, and driven by accused Timoteo L. Soriano, Jr.,
against the will and consent of the said Suzette S. Nicolas, to her damage
and prejudice.

CONTRARY TO LAW.1

The facts are not disputed.

Respondent Lance Corporal (L/CPL) Daniel Smith is a member of the United

States Armed Forces. He was charged with the crime of rape committed
against a Filipina, petitioner herein, sometime on November 1, 2005, as
follows:

Pursuant to the Visiting Forces Agreement (VFA) between the Republic of

the Philippines and the United States, entered into on February 10, 1998,
the United States, at its request, was granted custody of defendant Smith
pending the proceedings.

During the trial, which was transferred from the Regional Trial Court (RTC)
of Zambales to the RTC of Makati for security reasons, the United States
Government faithfully complied with its undertaking to bring defendant Smith
to the trial court every time his presence was required.

Accused L/CPL. DANIEL J. SMITH is further sentenced to indemnify

complainant SUZETTE S. NICOLAS in the amount of P50,000.00 as
compensatory damages plus P50,000.00 as moral damages.

SO ORDERED.2
On December 4, 2006, the RTC of Makati, following the end of the trial,
rendered its Decision, finding defendant Smith guilty, thus:

WHEREFORE, premises considered, for failure of the prosecution to adduce

sufficient evidence against accused S/SGT. CHAD BRIAN CARPENTER,
L/CPL. KEITH SILKWOOD AND L/CPL. DOMINIC DUPLANTIS, all of the
US Marine Corps assigned at the USS Essex, are hereby ACQUITTED to
the crime charged.

The prosecution having presented sufficient evidence against accused

L/CPL. DANIEL J. SMITH, also of the US Marine Corps at the USS Essex,
this Court hereby finds him GUILTY BEYOND REASONABLE DOUBT of the
crime of RAPE defined under Article 266-A, paragraph 1 (a) of the Revised
Penal Code, as amended by R.A. 8353, and, in accordance with Article 266B, first paragraph thereof, hereby sentences him to suffer the penalty of
reclusion perpetua together with the accessory penalties provided for under
Article 41 of the same Code.

Pursuant to Article V, paragraph No. 10, of the Visiting Forces Agreement

entered into by the Philippines and the United States, accused L/CPL.
DANIEL J. SMITH shall serve his sentence in the facilities that shall,
thereafter, be agreed upon by appropriate Philippine and United States
authorities. Pending agreement on such facilities, accused L/CPL. DANIEL
J. SMITH is hereby temporarily committed to the Makati City Jail.

As a result, the Makati court ordered Smith detained at the Makati jail until
further orders.

On December 29, 2006, however, defendant Smith was taken out of the
Makati jail by a contingent of Philippine law enforcement agents, purportedly
acting under orders of the Department of the Interior and Local Government,
and brought to a facility for detention under the control of the United States
government, provided for under new agreements between the Philippines
and the United States, referred to as the Romulo-Kenney Agreement of
December 19, 2006 which states:

The Government of the Republic of the Philippines and the Government of

the United States of America agree that, in accordance with the Visiting
Forces Agreement signed between our two nations, Lance Corporal Daniel
J. Smith, United States Marine Corps, be returned to U.S. military custody at
the U.S. Embassy in Manila.

(Sgd.) KRISTIE A. KENNEY

(Sgd.) ALBERTO G. ROMULO

Representative of the United States

Representative of the Republic

of America

of the Philippines

DATE:

12-19-06

DATE: December 19, 2006__

The petitions were heard on oral arguments on September 19, 2008, after
which the parties submitted their memoranda.

Petitioners contend that the Philippines should have custody of defendant

L/CPL Smith because, first of all, the VFA is void and unconstitutional.
and the Romulo-Kenney Agreement of December 22, 2006 which states:

The Department of Foreign Affairs of the Republic of the Philippines and the
Embassy of the United States of America agree that, in accordance with the
Visiting Forces Agreement signed between the two nations, upon transfer of
Lance Corporal Daniel J. Smith, United States Marine Corps, from the
Makati City Jail, he will be detained at the first floor, Rowe (JUSMAG)
Building, U.S. Embassy Compound in a room of approximately 10 x 12
square feet. He will be guarded round the clock by U.S. military personnel.
The Philippine police and jail authorities, under the direct supervision of the
Philippine Department of Interior and Local Government (DILG) will have
access to the place of detention to ensure the United States is in compliance
with the terms of the VFA.

The matter was brought before the Court of Appeals which decided on
January 2, 2007, as follows:

WHEREFORE, all the foregoing considered, we resolved to DISMISS the

petition for having become moot.3

This issue had been raised before, and this Court resolved in favor of the
constitutionality of the VFA. This was in Bayan v. Zamora,4 brought by
Bayan, one of petitioners in the present cases.

Against the barriers of res judicata vis--vis Bayan, and stare decisis vis-vis all the parties, the reversal of the previous ruling is sought on the ground
that the issue is of primordial importance, involving the sovereignty of the
Republic, as well as a specific mandate of the Constitution.

The provision of the Constitution is Art. XVIII, Sec. 25 which states:

Sec. 25. After the expiration in 1991 of the Agreement between the
Philippines and the United States of America concerning Military Bases,
foreign military bases, troops, or facilities shall not be allowed in the
Philippines except under a treaty duly concurred in by the Senate and, when
the Congress so requires, ratified by a majority of the votes cast by the
people in a national referendum held for that purpose, and recognized as a
treaty by the other contracting State.

Hence, the present actions.

The reason for this provision lies in history and the Philippine experience in
regard to the United States military bases in the country.

It will be recalled that under the Philippine Bill of 1902, which laid the basis
for the Philippine Commonwealth and, eventually, for the recognition of
independence, the United States agreed to cede to the Philippines all the
territory it acquired from Spain under the Treaty of Paris, plus a few islands
later added to its realm, except certain naval ports and/or military bases and
facilities, which the United States retained for itself.

This is noteworthy, because what this means is that Clark and Subic and the
other places in the Philippines covered by the RP-US Military Bases
Agreement of 1947 were not Philippine territory, as they were excluded from
the cession and retained by the US.

The provision is thus designed to ensure that any agreement allowing the
presence of foreign military bases, troops or facilities in Philippine territory
shall be equally binding on the Philippines and the foreign sovereign State
involved. The idea is to prevent a recurrence of the situation in which the
terms and conditions governing the presence of foreign armed forces in our
territory were binding upon us but not upon the foreign State.

Applying the provision to the situation involved in these cases, the question
is whether or not the presence of US Armed Forces in Philippine territory
pursuant to the VFA is allowed under a treaty duly concurred in by the
Senate xxx and recognized as a treaty by the other contracting State.

This Court finds that it is, for two reasons.

Accordingly, the Philippines had no jurisdiction over these bases except to

the extent allowed by the United States. Furthermore, the RP-US Military
Bases Agreement was never advised for ratification by the United States
Senate, a disparity in treatment, because the Philippines regarded it as a
treaty and had it concurred in by our Senate.

Subsequently, the United States agreed to turn over these bases to the
Philippines; and with the expiration of the RP-US Military Bases Agreement
in 1991, the territory covered by these bases were finally ceded to the
Philippines.

To prevent a recurrence of this experience, the provision in question was

adopted in the 1987 Constitution.

First, as held in Bayan v. Zamora,5 the VFA was duly concurred in by the
Philippine Senate and has been recognized as a treaty by the United States
as attested and certified by the duly authorized representative of the United
States government.

The fact that the VFA was not submitted for advice and consent of the
United States Senate does not detract from its status as a binding
international agreement or treaty recognized by the said State. For this is a
matter of internal United States law. Notice can be taken of the
internationally known practice by the United States of submitting to its
Senate for advice and consent agreements that are policymaking in nature,
whereas those that carry out or further implement these policymaking
agreements are merely submitted to Congress, under the provisions of the
so-called CaseZablocki Act, within sixty days from ratification.6

The second reason has to do with the relation between the VFA and the RPUS Mutual Defense Treaty of August 30, 1951. This earlier agreement was

signed and duly ratified with the concurrence of both the Philippine Senate
and the United States Senate.

Desiring further to strengthen their present efforts for collective

defense for the preservation of peace and security pending the development
of a more comprehensive system of regional security in the Pacific area.

The RP-US Mutual Defense Treaty states:7

MUTUAL DEFENSE TREATY BETWEEN THE REPUBLIC OF THE

PHILIPPINES AND THE UNITED STATES OF AMERICA. Signed at
Washington, August 30, 1951.

Agreeing that nothing in this present instrument shall be considered

or interpreted as in any way or sense altering or diminishing any existing
agreements or understandings between the Republic of the Philippines and
the United States of America.

Have agreed as follows:

The Parties of this Treaty

Reaffirming their faith in the purposes and principles of the Charter

of the United Nations and their desire to live in peace with all peoples and all
governments, and desiring to strengthen the fabric of peace in the Pacific
area.

Recalling with mutual pride the historic relationship which brought

their two peoples together in a common bond of sympathy and mutual ideals
to fight side-by-side against imperialist aggression during the last war.

Desiring to declare publicly and formally their sense of unity and

their common determination to defend themselves against external armed
attack, so that no potential aggressor could be under the illusion that either
of them stands alone in the Pacific area.

ARTICLE I. The parties undertake, as set forth in the Charter of the

United Nations, to settle any international disputes in which they may be
involved by peaceful means in such a manner that international peace and
security and justice are not endangered and to refrain in their international
relation from the threat or use of force in any manner inconsistent with the
purposes of the United Nations.

ARTICLE II. In order more effectively to achieve the objective of

this Treaty, the Parties separately and jointly by self-help and mutual aid will
maintain and develop their individual and collective capacity to resist armed
attack.

ARTICLE III. The Parties, through their Foreign Ministers or their

deputies, will consult together from time to time regarding the
implementation of this Treaty and whenever in the opinion of either of them
the territorial integrity, political independence or security of either of the
Parties is threatened by external armed attack in the Pacific.

ARTICLE IV. Each Party recognizes that an armed attack in the

Pacific area on either of the parties would be dangerous to its own peace
and safety and declares that it would act to meet the common dangers in
accordance with its constitutional processes.

ARTICLE VIII. This Treaty shall remain in force indefinitely. Either

Party may terminate it one year after notice has been given to the other
party.

IN WITHNESS WHEREOF the undersigned Plenipotentiaries have

signed this Treaty.
Any such armed attack and all measures taken as a result thereof
shall be immediately reported to the Security Council of the United Nations.
Such measures shall be terminated when the Security Council has taken the
measures necessary to restore and maintain international peace and
security.

DONE in duplicate at Washington this thirtieth day of August, 1951.

For the Republic of the Philippines:

ARTICLE V. For the purpose of Article IV, an armed attack on
either of the Parties is deemed to include an armed attack on the
metropolitan territory of either of the Parties, or on the island territories under
its jurisdiction in the Pacific Ocean, its armed forces, public vessels or
aircraft in the Pacific.

(Sgd.) CARLOS P.
ROMULO
(Sgd.) JOAQUIN M.
ELIZALDE
(Sgd.) VICENTE J.
FRANCISCO

ARTICLE VI. This Treaty does not affect and shall not be
interpreted as affecting in any way the rights and obligations of the Parties
under the Charter of the United Nations or the responsibility of the United
Nations for the maintenance of international peace and security.

(Sgd.) DIOSDADO
MACAPAGAL

For the United States of America:

ARTICLE VII. This Treaty shall be ratified by the Republic of the
Philippines and the United Nations of America in accordance with their
respective constitutional processes and will come into force when
instruments of ratification thereof have been exchanged by them at Manila.

(Sgd.) DEAN
ACHESON
(Sgd.) JOHN
FOSTER DULLES

(Sgd.) TOM
CONNALLY

Considering that cooperation between the United States and the Republic of
the Philippines promotes their common security interests;

(Sgd.) ALEXANDER
WILEY8

Clearly, therefore, joint RP-US military exercises for the purpose of

developing the capability to resist an armed attack fall squarely under the
provisions of the RP-US Mutual Defense Treaty. The VFA, which is the
instrument agreed upon to provide for the joint RP-US military exercises, is
simply an implementing agreement to the main RP-US Military Defense
Treaty. The Preamble of the VFA states:

The Government of the United States of America and the Government of the
Republic of the Philippines,

Reaffirming their faith in the purposes and principles of the Charter of the
United Nations and their desire to strengthen international and regional
security in the Pacific area;

Recognizing the desirability of defining the treatment of United States

personnel visiting the Republic of the Philippines;

Have agreed as follows:9

Accordingly, as an implementing agreement of the RP-US Mutual Defense

Treaty, it was not necessary to submit the VFA to the US Senate for advice
and consent, but merely to the US Congress under the CaseZablocki Act
within 60 days of its ratification. It is for this reason that the US has certified
that it recognizes the VFA as a binding international agreement, i.e., a treaty,
and this substantially complies with the requirements of Art. XVIII, Sec. 25 of
our Constitution.10

Reaffirming their obligations under the Mutual Defense Treaty of August 30,
1951;

The provision of Art. XVIII, Sec. 25 of the Constitution, is complied with by

virtue of the fact that the presence of the US Armed Forces through the VFA
is a presence allowed under the RP-US Mutual Defense Treaty. Since the
RP-US Mutual Defense Treaty itself has been ratified and concurred in by
both the Philippine Senate and the US Senate, there is no violation of the
Constitutional provision resulting from such presence.

Noting that from time to time elements of the United States armed forces
may visit the Republic of the Philippines;

The VFA being a valid and binding agreement, the parties are required as a
matter of international law to abide by its terms and provisions.

The VFA provides that in cases of offenses committed by the members of

the US Armed Forces in the Philippines, the following rules apply:

power is to provide for a different rule of procedure for that accused, which
also violates the equal protection clause of the Constitution (Art. III, Sec. 1.).

Again, this Court finds no violation of the Constitution.

Article V
Criminal Jurisdiction

The equal protection clause is not violated, because there is a substantial

basis for a different treatment of a member of a foreign military armed forces
allowed to enter our territory and all other accused.11

xxx
6. The custody of any United States personnel over whom the Philippines is
to exercise jurisdiction shall immediately reside with United States military
authorities, if they so request, from the commission of the offense until
completion of all judicial proceedings. United States military authorities
shall, upon formal notification by the Philippine authorities and without delay,
make such personnel available to those authorities in time for any
investigative or judicial proceedings relating to the offense with which the
person has been charged. In extraordinary cases, the Philippine
Government shall present its position to the United States Government
regarding custody, which the United States Government shall take into full
account. In the event Philippine judicial proceedings are not completed
within one year, the United States shall be relieved of any obligations under
this paragraph. The one year period will not include the time necessary to
appeal. Also, the one year period will not include any time during which
scheduled trial procedures are delayed because United States authorities,
after timely notification by Philippine authorities to arrange for the presence
of the accused, fail to do so.

Petitioners contend that these undertakings violate another provision of the

Constitution, namely, that providing for the exclusive power of this Court to
adopt rules of procedure for all courts in the Philippines (Art. VIII, Sec. 5[5]).
They argue that to allow the transfer of custody of an accused to a foreign

The rule in international law is that a foreign armed forces allowed to enter
ones territory is immune from local jurisdiction, except to the extent agreed
upon. The Status of Forces Agreements involving foreign military units
around the world vary in terms and conditions, according to the situation of
the parties involved, and reflect their bargaining power. But the principle
remains, i.e., the receiving State can exercise jurisdiction over the forces of
the sending State only to the extent agreed upon by the parties.12

As a result, the situation involved is not one in which the power of this Court
to adopt rules of procedure is curtailed or violated, but rather one in which,
as is normally encountered around the world, the laws (including rules of
procedure) of one State do not extend or apply except to the extent agreed
upon to subjects of another State due to the recognition of extraterritorial
immunity given to such bodies as visiting foreign armed forces.

Nothing in the Constitution prohibits such agreements recognizing immunity

from jurisdiction or some aspects of jurisdiction (such as custody), in
relation to long-recognized subjects of such immunity like Heads of State,
diplomats and members of the armed forces contingents of a foreign State
allowed to enter another States territory. On the contrary, the Constitution
states that the Philippines adopts the generally accepted principles of
international law as part of the law of the land. (Art. II, Sec. 2).

Applying, however, the provisions of VFA, the Court finds that there is a
different treatment when it comes to detention as against custody. The
moment the accused has to be detained, e.g., after conviction, the rule that
governs is the following provision of the VFA:

Article V

facilities under Philippine authorities as mandated by Art. V, Sec. 10 of the

VFA.

Next, the Court addresses the recent decision of the United States Supreme
Court in Medellin v. Texas ( 552 US ___ No. 06-984, March 25, 2008), which
held that treaties entered into by the United States are not automatically part
of their domestic law unless these treaties are self-executing or there is an
implementing legislation to make them enforceable.

Criminal Jurisdiction
On February 3, 2009, the Court issued a Resolution, thus:
xxx
Sec. 10. The confinement or detention by Philippine authorities of United
States personnel shall be carried out in facilities agreed on by appropriate
Philippines and United States authorities. United States personnel serving
sentences in the Philippines shall have the right to visits and material
assistance.

G.R. No. 175888 (Suzette Nicolas y Sombilon v. Alberto Romulo, et al.);

G.R. No. 176051 (Jovito R. Salonga, et al. v. Daniel Smith, et al.); and G.R.
No. 176222 (Bagong Alyansang Makabayan [BAYAN], et al. v. President
Gloria Macapagal-Arroyo, et al.).

The parties, including the Solicitor General, are required to submit

within three (3) days a Comment/Manifestation on the following points:
It is clear that the parties to the VFA recognized the difference between
custody during the trial and detention after conviction, because they
provided for a specific arrangement to cover detention. And this specific
arrangement clearly states not only that the detention shall be carried out in
facilities agreed on by authorities of both parties, but also that the detention
shall be by Philippine authorities. Therefore, the Romulo-Kenney
Agreements of December 19 and 22, 2006, which are agreements on the
detention of the accused in the United States Embassy, are not in accord
with the VFA itself because such detention is not by Philippine authorities.

Respondents should therefore comply with the VFA and negotiate with
representatives of the United States towards an agreement on detention

1.
What is the implication on the RP-US Visiting Forces Agreement of
the recent US Supreme Court decision in Jose Ernesto Medellin v. Texas,
dated March 25, 2008, to the effect that treaty stipulations that are not selfexecutory can only be enforced pursuant to legislation to carry them into
effect; and that, while treaties may comprise international commitments, they
are not domestic law unless Congress has enacted implementing statutes or
the treaty itself conveys an intention that it be self-executory and is ratified
on these terms?

2.
Whether the VFA is enforceable in the US as domestic law, either
because it is self-executory or because there exists legislation to implement
it.

3.
Whether the RP-US Mutual Defense Treaty of August 30, 1951 was
concurred in by the US Senate and, if so, is there proof of the US Senate
advice and consent resolution? Peralta, J., no part.

After deliberation, the Court holds, on these points, as follows:

First, the VFA is a self-executing Agreement, as that term is defined in

Medellin itself, because the parties intend its provisions to be enforceable,
precisely because the Agreement is intended to carry out obligations and
undertakings under the RP-US Mutual Defense Treaty. As a matter of fact,
the VFA has been implemented and executed, with the US faithfully
complying with its obligation to produce L/CPL Smith before the court during
the trial.

Secondly, the VFA is covered by implementing legislation, namely,

the Case-Zablocki Act, USC Sec. 112(b), inasmuch as it is the very purpose
and intent of the US Congress that executive agreements registered under
this Act within 60 days from their ratification be immediately implemented.
The parties to these present cases do not question the fact that the VFA has
been registered under the Case-Zablocki Act.

In sum, therefore, the VFA differs from the Vienna Convention on

Consular Relations and the Avena decision of the International Court of
Justice (ICJ), subject matter of the Medellin decision. The Convention and
the ICJ decision are not self-executing and are not registrable under the
Case-Zablocki Act, and thus lack legislative implementing authority.

Finally, the RP-US Mutual Defense Treaty was advised and consented to by
the US Senate on March 20, 1952, as reflected in the US Congressional
Record, 82nd Congress, Second Session, Vol. 98 Part 2, pp. 2594-2595.

The framers of the Constitution were aware that the application of

international law in domestic courts varies from country to country.

As Ward N. Ferdinandusse states in his Treatise, DIRECT APPLICATION

OF INTERNATIONAL CRIMINAL LAW IN NATIONAL COURTS, some
countries require legislation whereas others do not.

It was not the intention of the framers of the 1987 Constitution, in adopting
Article XVIII, Sec. 25, to require the other contracting State to convert their
system to achieve alignment and parity with ours. It was simply required
that the treaty be recognized as a treaty by the other contracting State. With
that, it becomes for both parties a binding international obligation and the
enforcement of that obligation is left to the normal recourse and processes
under international law.

Furthermore, as held by the US Supreme Court in Weinberger v. Rossi,13

an executive agreement is a treaty within the meaning of that word in
international law and constitutes enforceable domestic law vis--vis the
United States. Thus, the US Supreme Court in Weinberger enforced the
provisions of the executive agreement granting preferential employment to
Filipinos in the US Bases here.

Accordingly, there are three types of treaties in the American system:

1.
Art. II, Sec. 2 treaties These are advised and consented to by the
US Senate in accordance with Art. II, Sec. 2 of the US Constitution.

2.
ExecutiveCongressional Agreements: These are joint agreements
of the President and Congress and need not be submitted to the Senate.

The Court of Appeals is hereby directed to resolve without delay the related
matters pending therein, namely, the petition for contempt and the appeal of
L/CPL Daniel Smith from the judgment of conviction.

No costs.

SO ORDERED.
3.
Sole Executive Agreements. These are agreements entered into
by the President. They are to be submitted to Congress within sixty (60)
days of ratification under the provisions of the Case-Zablocki Act, after which
they are recognized by the Congress and may be implemented.
ADOLFO S. AZCUNA
As regards the implementation of the RP-US Mutual Defense Treaty, military
aid or assistance has been given under it and this can only be done through
implementing legislation. The VFA itself is another form of implementation
of its provisions.

WHEREFORE, the petitions are PARTLY GRANTED, and the Court of

Appeals Decision in CA-G.R. SP No. 97212 dated January 2, 2007 is
MODIFIED. The Visiting Forces Agreement (VFA) between the Republic of
the Philippines and the United States, entered into on February 10, 1998, is
UPHELD as constitutional, but the Romulo-Kenney Agreements of
December 19 and 22, 2006 are DECLARED not in accordance with the VFA,
and respondent Secretary of Foreign Affairs is hereby ordered to forthwith
negotiate with the United States representatives for the appropriate
agreement on detention facilities under Philippine authorities as provided in
Art. V, Sec. 10 of the VFA, pending which the status quo shall be maintained
until further orders by this Court.

Associate Justice

WE CONCUR:

REYNATO S. PUNO
Chief Justice

LEONARDO A. QUISUMBING
Associate Justice

CONSUELO YNARES-SANTIAGO
Associate

Justice

DANTE O. TINGA

MINITA V. CHICO-

NAZARIO
Associate Justice
Justice

ANTONIO T. CARPIO
MARTINEZ
Associate Justice
Justice

Associate

MA. ALICIA AUSTRIA-

Associate
PRESBITERO J. VELASCO, JR.
NACHURA

ANTONIO EDUARDO B.

Associate Justice
Justice

RENATO C. CORONA

Associate

CONCHITA CARPIO

MORALES
Associate Justice
Justice

Associate
TERESITA J. LEONARDO-DE CASTRO

ARTURO D. BRION

Associate Justice

Associate Justice

REYNATO S. PUNO
Chief Justice

DIOSDADO M. PERALTA

THIRD DIVISION

Associate Justice

COVERDALE ABARQUEZ, G.R. No. 150762

y EVANGELISTA,
Petitioner,
Present:
Quisumbing, J.,
Chairman,
CERTIFICATION

Carpio,
- versus - Carpio Morales, and

Pursuant to Section 13, Article VIII of the Constitution, it is hereby

certified that the conclusions in the above Decision were reached in
consultation before the case was assigned to the writer of the opinion of the
Court.

Tinga, JJ.

Promulgated:
THE PEOPLE OF THE PHILIPPINES,

Respondent. January 20, 2006

The prosecution charged Abarquez with the crimes of homicide and

attempted homicide in two Informations,[5] as follows:

x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - x

DECISION

Criminal Case No. 94-135055

The undersigned accuses COVERDALE ABARQUEZ Y EVANGELISTA of
the crime of HOMICIDE, committed as follows:

CARPIO, J.:

The Case

Before the Court is a petition for review[1] assailing the 23 June 2000
Decision[2] and the 7 November 2001 Resolution[3] of the Court of Appeals
in CA-G.R. CR No. 21450. The Court of Appeals affirmed the 30 September
1997 Decision[4] of the Regional Trial Court of Manila, Branch 50 (trial
court) in Criminal Cases Nos. 94-135055-56. The trial court found
Coverdale Abarquez y Evangelista (Abarquez) guilty beyond reasonable
doubt as an accomplice in the crime of homicide in Criminal Case No. 94135055.

The Charge

That on or about November 21, 1993, in the City of Manila, Philippines, the
said accused conspiring and confederating with one ALBERTO
ALMOJUELA Y VILLANUEVA, who has already been charged for the same
offense before the Regional Trial Court of Manila, under Crim. Case No. 93129891 and mutually helping each other, did then and there willfully,
unlawfully and feloniously with intent to kill, attack, assault and use personal
violence upon one RICARDO QUEJONG Y BELLO, by then and there
stabbing him twice with a bladed weapon and hitting him with a gun at the
back, thereby inflicting upon the latter mortal wounds which were the direct
and immediate cause of his death thereafter.

CONTRARY TO LAW.[6]

Criminal Case No. 94-135056

The undersigned accuses COVERDALE ABARQUEZ Y EVANGELISTA of

the crime of ATTEMPTED HOMICIDE, committed as follows:

That on or about November 21, 1993, in the City of Manila, Philippines, the
said accused conspiring and confederating with one ALBERTO
ALMOJUELA Y VILLANUEVA, who has already been charged for the same
offense before the Regional Trial Court of Manila under Crim. Case No. 93129892 and mutually helping each other, with intent to kill, did then and
there wilfully, unlawfully and feloniously commence the commission of the
crime of homicide directly by overt acts, to wit: by then and there holding one
JOSE BUENJIJO PAZ Y UMALI and stabbing him with a bladed weapon,
hitting him on the left arm, but the said accused did not perform all the acts
of execution which should have produced the crime of homicide as a
consequence, by reason of causes other than his own spontaneous
desistance, that is, the injury inflicted upon said JOSE BUENJIJO PAZ Y
UMALI is only slight and not fatal.

CONTRARY TO LAW.[7]

Abarquez entered a plea of not guilty to both charges. The cases were tried
jointly.

The Version of the Prosecution

On 21 November 1993 at 2:00 p.m., Jose Buenjijo Paz[8] (Paz), Ricardo

Quejong (Quejong) and their friends were in the house of one Boyet at
3342 San Jose St., Sta. Mesa, Manila. They were drinking liquor in
celebration of the birthday of Boyets son. About 7:45 p.m., Paz and Quejong
decided to go home. Boyet Tong, Abarquezs son Bardie and Sonito Masula

(Masula) joined Paz and Quejong. They proceeded towards the exit of San
Jose St.

Meanwhile, about six or seven meters away from Boyets house, Alberto
Almojuela also known as Bitoy (Almojuela), a certain Ising and Abarquez
also known as Dale, were likewise drinking liquor in front of Almojuelas
house. As the group of Paz was passing towards the main road, Almojuela
and his companions blocked their path.

Almojuela asked Paz, Are you brave? Paz replied, Why? Almojuela got
angry and attacked Paz with a knife. Paz parried the attack with his left arm
but sustained an injury. Abarquez held Paz on both shoulders while Bardie
pacified Almojuela. Paz asked Abarquez, What is our atraso, we were going
home, why did you block our way? Abarquez answered, Masyado kang
matapang. Tumigil ka na, tumigil ka na.

Almojuela then confronted Quejong and they had an altercation, followed by

a scuffle. Paz tried to get away from Abarquez who continued restraining
him. Upon seeing Almojuela and Quejong fall on the ground, Paz struggled
to free himself from Abarquez. Paz approached Quejong and found him
already bloodied. It turned out the Almojuela stabbed Quejong with a knife.
Paz tried to pull up Quejong but failed. Paz left Quejong and ran instead
towards the exit of San Jose St. to ask for help. While Paz was running
away, he heard Abarquez shout, You left your companion already
wounded!

When Paz and his companions returned, they found Quejong still on the
ground. Almojuela and Abarquez were still in the area. Paz and his
companions brought Quejong to the UST Hospital. They next proceeded to
Police Precinct No. 4 to report the incident. However, there was nobody in
the precinct. With Kagawad Villanio Usorio, Paz went to the WPD General
Headquarters to report the incident. At the WPD General Headquarters, they

learned that Quejong died at the UST Hospital. Paz then had his injury
treated by Dr. Vic Managuelod at Jose Reyes Memorial Hospital. The
medico-legal certificate showed that Paz sustained a 3-cm. lacerated wound
on his left forearm.

About 9:15 p.m., while SPO1 Danilo Vidad (SPO1 Vidad) was at the WPD
Homicide Division, his station received a call from the UST Hospital
informing them of the death of Quejong. SPO1 Vidad and PO3 Ed Co went
to the UST Hospital morgue and investigated the incident. They learned that
Almojuela, assisted by Abarquez, stabbed Quejong. Upon the execution of
sworn statements by Paz and Masula, SPO1 Vidad booked Almojuela and
Abarquez for homicide and frustrated homicide and prepared the referral
letter to the inquest prosecutor.
Abarquez voluntarily appeared at the police station. Almojuela voluntarily
surrendered to one SPO4 Soriano at Police Station No. 10 and was turned
over to the WPD Homicide Division.

Dr. Antonio Rebosa[9] (Dr. Rebosa), a medico-legal consultant at UST

Hospital, conducted the post-mortem examination and autopsy on Quejong.
Dr. Rebosa reported that Quejong sustained two stab wounds and suffered
from massive hemorrhage due to penetrating stab wounds to the heart and
left lung. According to Dr. Rebosa, a sharp instrument probably caused the
wound. Dr. Rebosa also reported that Quejong sustained abrasions and
contusions on the right upper body, the wrist and on the lower extremities.

Abarquez, being a barangay kagawad, proceeded to Almojuelas house.

Almojuelas house was about twenty meters away from Abarquezs house.
When he arrived at Almojuelas house, Abarquez saw Almojuela on the
ground being strangled by Quejong. Paz was holding Almojuelas waist and
boxing him at the stomach. Masula was near Almojuelas head holding a
piece of stone as if waiting for a chance to hit him. Abarquez shouted at the
group to stop. The group did not heed Abarquez, forcing him to fire a
warning shot into the air. Still, the group did not heed Abarquez who then
fired a second warning shot. Paz, Quejong, and Masula scampered away.

Almojuela told Abarquez that he was merely trying to stop the group of Paz
from smoking marijuana. Almojuela then went inside his house while
Abarquez went home. On his way home, Abarquez met the Chief Tanod of
the barangay and two kagawads. Kagawad Rudy Lego (Lego) advised him
to report the incident to the police. They all proceeded to Precinct No. 4
where Lego reported the incident to the desk officer. The desk officer told
them that a person had been stabbed. When Abarquez reached their house,
he saw policemen and media men with their barangay chairman. He
informed them that he had just reported the incident. Upon the request of
SPO1 Vidad, Abarquez then went to the police station to shed light on the
incident.

The Version of the Defense

Almojuela testified that he was inside his house when his daughter informed
him that there was marijuana smoke coming to their window. He went
outside to look for the source of the smoke and saw Quejong, Paz, and
Masula smoking marijuana. Almojuela asked the group to move away as
there were children inside the house. He was on his way back to the house
when Quejong tried to strangle him. Later, Almojuela heard a gunshot. He
also heard Abarquez shouting, Tumigil na kayo. Quejong, Masula, and Paz
ran away.

Abarquez countered that on 21 November 1993, he was in his residence at

3363 San Jose St., Sta. Mesa, Manila. About 7:30 p.m., Almojuelas wife
informed him that the group of Paz was challenging Almojuela to a fistfight.

Winfred Evangelista[10] (Evangelista) testified that he was resting in front

of his house when he heard a commotion. He noticed that Paz and Quejong
were quarreling. Evangelista saw Paz kicking Almojuela. Abarquez arrived to

break up the fight but he was told not to interfere. Abarquez was forced to
fire a warning shot and the persons involved in the commotion ran away.
Abarquez appealed the trial courts Decision before the Court of Appeals.

The Ruling of the Trial Court

In its Decision[11] dated 30 September 1997, the trial court found Abarquez
guilty as an accomplice in the crime of homicide. The trial court held that the
prosecution failed to prove that Abarquez was a co-conspirator of Almojuela
in the killing of Quejong. Hence, Abarquez could not be convicted as a
principal in the crime of homicide. However, the trial court ruled that
Abarquez, in holding and restraining Paz, prevented the latter from helping
Quejong and allowed Almojuela to pursue his criminal act without resistance.

The dispositive portion of the trial courts Decision reads:

WHEREFORE, in Criminal Case No. 94-135055, this Court finds the

accused, Coverdale Abarquez, guilty beyond reasonable doubt of the crime
of homicide only as accomplice and hereby sentences him to suffer an
indeterminate penalty ranging from six (6) years of prision correccional to ten
(10) years of prision mayor. In Criminal Case No. 94-135056, the accused is
hereby acquitted.

In its Decision[13] of 23 June 2000, the Court of Appeals affirmed the trial
courts Decision. The Court of Appeals sustained the trial court in giving
more credence to the testimony of Paz. The Court of Appeals held that the
prosecution was able to establish that Abarquez aided Almojuela in fatally
stabbing Quejong. The Court of Appeals rejected Abarquezs allegation that
he was merely at the crime scene to pacify the quarreling parties.

In its 7 November 2001 Resolution,[14] the Court of Appeals denied

Abarquezs motion for reconsideration.

Hence, the petition before this Court.

The Issues

The issues[15] Abarquez raises before the Court may be summarized as

follows:
With costs de oficio.

SO ORDERED.[12]

1. Whether the prosecution was able to establish the guilt of the accused
beyond reasonable doubt;

2. Whether the trial court and the Court of Appeals erred in giving more
credence to the testimony of the prosecution witnesses.

Abarquez alleges that the prosecutions evidence does not satisfy the test of
moral certainty and is not sufficient to support his conviction as an
accomplice. He further alleges that there was a misapprehension of facts
and that the trial court and the Court of Appeals reached their conclusion
based entirely on speculation, surmises and conjectures. Abarquez also
assails the credibility of the witnesses against him.

Article 18 of the Revised Penal Code defines accomplices as those

persons who, not being included in Article 17, cooperate in the execution of
the offense by previous or simultaneous acts.[17]

Two elements must concur before a person becomes liable as an

accomplice: (1) community of design, which means that the accomplice
knows of, and concurs with, the criminal design of the principal by direct
participation; and (2) the performance by the accomplice of previous or
simultaneous acts that are not indispensable to the commission of the crime.
[18] Mere commission of an act, which aids the perpetrator, is not enough.
[19] Thus:

The cooperation that the law punishes is the assistance knowingly

rendered, which cannot exist without the previous cognizance of the criminal
act intended to be executed. It is therefore required in order to be liable as
an accomplice, that the accused must unite with the criminal design of the
principal by direct participation.[20]
The Ruling of This Court

The petition is meritorious.

The rule is that the trial court is in the best position to determine the value
and weight of the testimony of a witness. The exception is if the trial court
failed to consider certain facts of substance and value, which if considered,
might affect the result of the case.[16] This case is an exception to the rule.

Indeed, in one case, the Court ruled that the mere presence of the accused
at the crime scene cannot be interpreted to mean that he committed the
crime charged.[21]

Here, in convicting Abarquez, the trial court and the Court of Appeals relied
mainly on the testimony of Paz. Paz testified that he was held by Abarquez
on the shoulders, thus preventing him from helping Quejong who was
grappling with Almojuela. Paz testified:

Concurrence in Criminal Design

q. And what happened in the exchange of words or altercations between
Bitoy and Ricardo Quejong?

a. They grappled with each other, sir.

a. They fell to the ground, sir.

q. When Bitoy and Ricardo grappled with each other, what did you do, if
any?

q. After that what happened next, if any?

a. I was intending to help Ricky but I was held back by Dale, sir.

a. When I saw them fall I struggle and I was able to release from the hold of
Dale and I approach the two. I saw Ricky blooded so I was trying to pull him,
sir. (sic)

q. And how this Dale hold you?

a. He held my two shoulders, sir.

q. You said you saw Ricky blooded, why was he blooded? (sic)
a. He was stabbed by Bitoy, sir.

PROSECUTOR F. G. SUPNET:

q. And did you see what instrument did Bitoy used in stabbing Ricky or
Ricardo? (sic)

I would like to make it of record demonstrated being held by the accused

holding both shoulders, your Honor.

a. It was a knife, sir. (Witness indicating a length about 6 inches including

the handle).

q. Now, when this Dale Abarquez held both on your shoulders, what
happened next, if any?

q. Now, you said also that while the two were grappling while you were trying
to free yourself from the hold Dale Abarquez, Pinagalitan kayo, in what way
or manner did Dale Abarquez reprimanded you? (sic)

a. He got angry scolding us. While scolding me the two

who were grappling each other walking away, sir. (sic)

q. Now, you said Bitoy and Ricky were moving, what happened in the course
of grappling, if any?

a. You Jose is too brave, sir. (sic)[22]

xxx xxx xxx

q. You said you were first attacked by Bitoy, is that correct?

You testified that Ricky and Bitoy were grappling each other, what happened
in the course of grappling? (sic)

a. Yes, sir.

q. How many times?

q. After Bitoy pacified Bardy Abarquez, he went after Ricky Quejong, is it
not?[23]
a. They were just arguing, sir.

[q.] And it was during that time when you were held in both shoulders by the
accused [C]overdale Abarquez?

a. Twice, Your Honor.

ATTY. GASCON:
The accused told you Joey tumigil ka na, Joey tumigil ka na because you
were trying to attack Bitoy, is it not?
a. How can I be charged, he was the one holding the knife, sir. (sic)

a. Yes, sir.

q. So what was the reason why the accused restrained you and told you
Joey tumigal ka na, Joey tumigil ka na. What would be the reason?

q. and that Coverdale Abarquez was infront of you, is it not?

a. While I was just talking to Bitoy, when he told me to stop.

a. Yes, sir on my side.

COURT:

q. And he was holding your shoulder to pacify you and Bitoy from further
quarrelling you, is it not?
a. That is not the way of pacifying, sir.

q. How can you demonstrate how you were held on the shoulder by
Abarquez?

ATTY. GASCON:
Make I make it of record your Honor that the interpreter act as the witness
while the witness act as the accused demonstrating holding both hands of
interpreter preventing the witness and saying Joey tumigil ka na, joey tumigil
ka na.

COURT:

Does the Court get from you that you are trying to explain to Bitoy when the
accused tried to hold you and prevent you?
a. Yes, sir.
q. That is why the reason you concluded that the accused is not pacifying
you but to stop you from helping the victim?
a. Yes, sir.
xxx xxx xxx
q. The only word that the accused [C]overdale Abarquez uttered was Joey,
tumigil ka na, Joey tumigil ka na, is it not?
a. He uttered that you are MATAPANG, Joey tumigil ka na, Joey tumigil ka
na.[24]

Pazs testimony does not show that Abarquez concurred with Almojuelas
criminal design. Tumigil literally means stop. Clearly, Abarquez was trying

to stop Paz from joining the fray, not from helping Quejong. Paz claims that
he was only trying to talk to Almojuela. However, Paz could not have been
merely talking to Almojuela, as he tried to portray, because Almojuela was
already grappling with Quejong at that time. Paz interpreted Abarquezs
action as an attempt to prevent him from helping Quejong. His interpretation
was adopted by the trial court and sustained by the Court of Appeals. Yet, in
his testimony, Paz admitted that while restraining him, Abarquez was
scolding or reprimanding him and telling him to stop. It was not shown that
Abarquez was stopping Paz from helping Almojuela. It is more likely that
Abarquez was trying to stop Paz from joining the fight. Abarquezs act of
trying to stop Paz does not translate to assistance to Almojuela.

In People v. Fabros, [25] the Court explained:

To be deemed an accomplice, one needs to have had both knowledge of

and participation in the criminal act. In other words, the principal and the
accomplice must have acted in conjunction and directed their efforts to the
same end. Thus, it is essential that both were united in their criminal design.

xxx. The mere fact that the (accused) had prior knowledge of the (principals)
criminal design did not automatically make him an accomplice. This
circumstance, by itself, did not show his concurrence in the principals
criminal intent.
Paz stated that Abarquez did not do anything to stop Almojuela. However,
Paz testified that Abarquezs son Bardie, who was one of Pazs companions,
was the one trying to pacify Almojuela. The trial court in its factual findings
confirmed this when it stated that while Abarquez was holding Paz, his son
Bardie was pacifying Almojuela.[26]

The prosecution argues that Abarquez was remiss in his duties as a

barangay kagawad in not extending assistance to the then wounded

Quejong. This, however, does not necessarily show concurrence in

Almojuelas criminal act. When Paz ran away, Abarquez shouted at him that
he left his wounded companion. Apparently, Abarquez was not aware of the
extent of Quejongs injury and he expected Paz to look after his own
companion.

When there is doubt on the guilt of an accused, the doubt should be

resolved in his favor. Thus:

Every person accused has the right to be presumed innocent until the
contrary is proven beyond reasonable doubt. The presumption of innocence
stands as a fundamental principle of both constitutional and criminal law.
Thus, the prosecution has the burden of proving every single fact
establishing guilt. Every vestige of doubt having a rational basis must be
removed. The defense of the accused, even if weak, is no reason to convict.
Within this framework, the prosecution must prove its case beyond any hint
of uncertainty. The defense need not even speak at all. The presumption of
innocence is more than sufficient.[27]

We apply in this case the equipoise rule. Where the evidence on an issue of
fact is in issue or there is doubt on which side the evidence preponderates,
the party having the burden of proof loses.[28] Hence:

xxx The equipoise rule finds application if, as in this case, the inculpatory
facts and circumstances are capable of two or more explanations, one of
which is consistent with the innocence of the accused and the other
consistent with his guilt, for then the evidence does not fulfill the test of moral
certainty, and does not suffice to produce a conviction. Briefly stated, the
needed quantum of proof to convict the accused of the crime charged is
found lacking.[29]

LEONARDO A. QUISUMBING
Associate Justice
WHEREFORE, we GRANT the petition. We SET ASIDE the 23 June 2000
Decision and 7 November 2001 Resolution of the Court of Appeals in CAG.R. CR No. 21450, which affirmed the 30 September 1997 Decision of the
Regional Trial Court of Manila, Branch 50 in Criminal Cases Nos. 94135055-56. We ACQUIT Coverdale Abarquez y Evangelista as an
accomplice in the crime of homicide in Criminal Case No. 94-135055. No
pronouncement as to costs.

SO ORDERED.

Chairman

CONCHITA CARPIO MORALES DANTE O. TINGA

Associate Justice Associate Justice

ANTONIO T. CARPIO
Associate Justice
ATTESTATION

I attest that the conclusions in the above Decision were reached in

consultation before the case was assigned to the writer of the opinion of the
Courts Division.
WE CONCUR:

LEONARDO A. QUISUMBING
Associate Justice

Chairman, Third Division

CERTIFICATION

THIRD DIVISION
[G.R. No. 134172. September 20, 2004]

Pursuant to Section 13, Article VIII of the Constitution, and the Division
Chairpersons Attestation, I certify that the conclusions in the above Decision
were reached in consultation before the case was assigned to the writer of
the opinion of the Courts Division.

MIRIAM ARMI JAO YU, petitioner, vs. PEOPLE OF THE PHILIPPINES,

respondent.
DECISION
SANDOVAL-GUTIERREZ, J.:
May an accused found guilty of violations of Batas Pambansa Blg. 22[1] be
made to suffer subsidiary imprisonment in case he fails to pay the fines
imposed by the trial court for such violations? This is the lone issue raised in
this petition for review on certiorari.[2]

ARTEMIO V. PANGANIBAN
Chief Justice

On March 25, 1991, petitioner was charged with 19 counts of violation of

Batas Pambansa Blg. 22 before the Regional Trial Court, Branch 91,
Quezon City, docketed as Criminal Cases Nos. 19468 to 19486.
Upon arraignment, petitioner entered a plea of not guilty. After hearing, the
trial court rendered a Decision finding her guilty of the charges and imposing
upon her the following penalties:
WHEREFORE, premises considered, judgment is hereby rendered finding
accused Miriam Armi Jao Yu guilty beyond reasonable doubt of violation of
Batas Pambansa Blg. 22 and sentencing her as follows:

1. Crim. Case No. 19468

to pay a fine of P200,000.00 and
indemnify Susan Andaya in the amount of P300,000.00;
2. Crim. Case No. 19469
to pay a fine of P150,000.00 and
indemnify Susan Andaya in the amount of P150,000.00;

3. Crim. Case No. 19470

to pay a fine of P200,000.00 and
indemnify Susan Andaya in the amount of P200,000.00;

17. Crim. Case No. 19484

to pay a fine of P13,475.00 and
indemnify Susan Andaya in the amount of P13,475.00;

4. Crim. Case No. 19471

to pay a fine of P200,000.00 and
indemnify Susan Andaya in the amount of P385,000.00;

18. Crim. Case No. 19485

to pay a fine of P15,000.00 and
indemnify Susan Andaya in the amount of P15,000.00;

5. Crim. Case No. 19472

to pay a fine of P15,000.00 and
indemnify Susan Andaya in the amount of P15,000.00;

19. Crim. Case No. 19486

to pay a fine of P15,000.00 and
indemnify Susan Andaya in the amount of P15,000.00;

6. Crim. Case No. 19473

to pay a fine of P15,000.00 and
indemnify Susan Andaya in the amount of P300,000.00;

to suffer subsidiary imprisonment in case of non-payment of the fine in each

of the above-entitled cases and to pay the costs of suit.

7. Crim. Case No. 19474

to pay a fine of P200,000.00 and
indemnify Susan Andaya in the amount of P350,000.00;

SO ORDERED. (Underscoring ours)

8. Crim. Case No. 19475

to pay a fine of P200,000.00 and
indemnify Susan Andaya in the amount of P385,000.00;
9. Crim. Case No. 19476
to pay a fine of P200,000.00 and
indemnify Susan Andaya in the amount of P300,000.00;
10. Crim. Case No. 19477
to pay a fine of P200,000.00 and
indemnify Susan Andaya in the amount of P300,000.00;
11. Crim. Case No. 19478
to pay a fine of P15,000.00 and
indemnify Susan Andaya in the amount of P15,000.00;
12. Crim. Case No. 19479
to pay a fine of P15,000.00 and
indemnify Susan Andaya in the amount of P15,000.00;
13. Crim. Case No. 19480
to pay a fine of P200,000.00 and
indemnify Susan Andaya in the amount of P450,000.00;
14. Crim. Case No. 19481
to pay a fine of P25,000.00 and
indemnify Susan Andaya in the amount of P25,000.00;
15. Crim. Case No. 19482
to pay a fine of P200,000.00 and
indemnify Susan Andaya in the amount of P500,000.00;
16. Crim. Case No. 19483
to pay a fine of P17,500.00 and
indemnify Susan Andaya in the amount of P17,500.00;

Upon appeal, the Court of Appeals affirmed in toto the trial courts Decision.
Petitioner then filed a motion for reconsideration but was denied by the
Appellate Court in its Resolution dated May 29, 1998.
In the instant petition, petitioner contends that Section 1 of Batas Pambansa
Blg. 22, which reads:
Section 1. Checks without sufficient funds. Any person who makes or
draws and issues any check to apply on account or for value, knowing at the
time of issue that he does not have sufficient funds in or credit with the
drawee bank for the payment of such check in full upon its presentment,
which check is subsequently dishonored by the drawee bank for
insufficiency of funds or credit or would have been dishonored for the same
reason had not the drawer, without any valid reason, ordered the bank to
stop payment, shall be punished by imprisonment of not less than thirty days
but not more than one (1) year or by a fine of not less than but not more than
double the amount of the check which fine shall in no case exceed Two
Hundred Thousand Pesos, or both such fine and imprisonment at the
discretion of the court.
The same penalty shall be imposed upon any person who, having sufficient
funds in or credit with the drawee bank when he makes or draws and issues
a check, shall fail to keep sufficient funds or to maintain a credit to cover the
full amount of the check if presented within a period of ninety (90) days from
the date appearing thereon, for which reason it is dishonored by the drawee

bank. Where the check is drawn by a corporation, company or entity, the

person or persons who actually signed the check in behalf of such drawer
shall be liable under this Act.
Where the check is drawn by a corporation, company or entity, the person or
persons who actually signed the check in behalf of such drawer shall be
liable under this Act. (Underscoring ours)
provides only the imposition of imprisonment or fine, or both, in cases of
violation of Batas Pambansa Blg. 22. Thus, she should not suffer subsidiary
imprisonment in case of non-payment of the fines imposed by the trial court.
The Solicitor General disagrees with petitioner and prays that the Decision of
the Court of Appeals be affirmed.
The petition must fail.

than one year, and no fraction or part of a day shall be counted against the
prisoner.
2. When the principal penalty imposed be only a fine, the subsidiary
imprisonment shall not exceed six months, if the culprit shall have been
prosecuted for a grave or less grave felony, and shall not exceed fifteen
days, if for a light felony.
3. When the principal penalty imposed is higher than prision correccional no
subsidiary imprisonment shall be imposed upon the culprit.
4. If the principal penalty imposed is not to be executed by confinement in a
penal institution, but such penalty is of fixed duration, the convict, during the
period of time established in the preceding rules, shall continue to suffer the
same deprivation as those of which the principal penalty consists.

The imposition of subsidiary imprisonment is expressly provided under

Articles 38 and 39 of the Revised Penal Code, thus:

5. The subsidiary personal liability which the convict may have suffered by
reason of his insolvency shall not relieve him from the fine in case his
financial circumstances should improve. (Underscoring ours)

ART. 38. Pecuniary liabilities Order of payment. In case the property of

the offender should not be sufficient for the payment of all his pecuniary
liabilities, the same shall be met in the following order:

We hold that the above provisions on subsidiary imprisonment can be

applied suppletorily to Batas Pambansa Blg. 22 pursuant to Article 10 of the
same Code, which provides:

1. The preparation of the damage caused.

ART. 10. Offenses not subject to the provisions of this Code. Offenses
which are or in the future may be punishable under special laws are not
subject to the provisions of this Code. This Code shall be supplementary to
such laws, unless the latter should specially provide the contrary.
(Underscoring ours)

2. Indemnification of consequential damages.

3. The fine.
4. The costs of the proceedings. (Underscoring ours)
ART. 39. Subsidiary penalty. If the convict has no property with which to
meet the fine mentioned in paragraph 3 of the next preceding article, he
shall be subject to a subsidiary personal liability at the rate of one day for
each eight pesos, subject to the following rules:
1. If the principal penalty imposed be prision correccional or arresto and fine,
he shall remain under confinement until his fine referred in the preceding
paragraph is satisfied, but his subsidiary imprisonment shall not exceed onethird of the term of the sentence, and in no case shall it continue for more

As early as 1959, this Court, in People vs. Cubelo,[3] held:

Appellants contention that the trial court committed error in ordering him to
serve subsidiary imprisonment in case of insolvency in the payment of fine
with the reason that Act No. 4003, which prohibits fishing with the use of
explosive, fails to provide for such subsidiary imprisonment, and that being a
special law, it is not subject to the provisions of the Revised Penal Code, is
untenable. The second paragraph of Article 10 of the said Code provides
that this Code shall be supplementary to such laws, unless the latter should
specially provide the contrary. Articles 100 (civil liability) and 39 (subsidiary

penalty) are applicable to offenses under special laws (People vs. Moreno,
60 Phil. 178; Copiaco vs. Luzon Brokerage, 66 Phil. 184).
Indeed, the absence of an express provision on subsidiary imprisonment in
Batas Pambansa Blg. 22 does not and cannot preclude its imposition in
cases involving its violations.
It bears stressing that on February 14, 2001, we issued Administrative
Circular No. 13-2001 clarifying the imposition of imprisonment for violations
of Batas Pambansa Blg. 22 and subsidiary imprisonment upon the accused
found guilty but is unable to pay the fine he is sentenced to pay. In clarifying
the imposition of subsidiary imprisonment, the Circular states that if the
accused is unable to pay the fine imposed by the trial court, there is no legal
obstacle to the application of the Revised Penal Code provisions on
subsidiary imprisonment. The full text of the Circular reads:
ADMINISTRATIVE CIRCULAR NO. 13-2001
TO : ALL JUDGES
SUBJECT : CLARIFICATION OF ADMINISTRATIVE CIRCULAR NO. 122000 ON THE PENALTY FOR VIOLATION OF BATAS PAMBANSA BLG.
22, OTHERWISE KNOWN AS THE BOUNCING CHECKS LAW
Clarification has been sought by concerned Judges and other parties
regarding the operation of Administrative Circular 12-2000 issued on 21
November 2000. In particular, queries have been made regarding the
authority of Judges to
1. Impose the penalty of imprisonment for violations of Batas Pambansa Blg.
22; and
2. Impose subsidiary imprisonment in the event that the accused, who is
found guilty of violating the provisions of B.P. Blg. 22, is unable to pay the
fine which he is sentenced to pay
considering that Administrative Circular No. 12-2000 adopted the rulings in
Eduardo Vaca v. Court of Appeals (G.R. No. 131714, 16 November 1998,
298 SCRA 656) and Rosa Lim v. People of the Philippines (G.R. No.
130038, 18 September 2000) as a policy of the Supreme Court on the

matter of the imposition of penalties for violations of B.P. Blg. 22, without
mentioning whether subsidiary imprisonment could be resorted to in case of
the accuseds inability to pay the fine.
The clear tenor and intention of Administrative Circular No. 12-2000 is not to
remove imprisonment as an alternative penalty, but to lay down a rule of
preference in the application of the penalties provided for in B.P. Blg. 22.
The pursuit of this purpose clearly does not foreclose the possibility of
imprisonment for violators of B.P. Blg. 22. Neither does it defeat the
legislative intent behind the law.
Thus, Administrative Circular No. 12-2000 establishes a rule of preference in
the application of the penal provisions of B.P. Blg. 22 such that where the
circumstances of both the offense and the offender clearly indicate good
faith or a clear mistake of fact without taint of negligence, the imposition of a
fine alone should be considered as the more appropriate penalty. Needless
to say, the determination of whether the circumstances warrant the
imposition of a fine alone rests solely upon the Judge. Should the Judge
decide that imprisonment is the more appropriate penalty, Administrative
Circular No. 12-2000 ought not be deemed a hindrance.
It is, therefore, understood that
1. Administrative Circular 12-2000 does not remove imprisonment as an
alternative penalty for violations of B.P. Blg. 22;
2. The Judges concerned may, in the exercise of sound discretion, and
taking into consideration the peculiar circumstances of each case, determine
whether the imposition of a fine alone would best serve the interests of
justice or whether forbearing to impose imprisonment would depreciate the
seriousness of the offense, work violence on the social order, or otherwise
be contrary to the imperatives of justice;
3. Should only a fine be imposed and the accused be unable to pay the fine,
there is no legal obstacle to the application of the Revised Penal Code
provisions on subsidiary imprisonment.
The issuance of this Administrative Circular was authorized by the Court En
Banc in A.M. No. 00-11-01-SC at its session of 13 February 2001.

The Clerk of Court of the Supreme Court and the Court Administrator shall
immediately cause the implementation of this Administrative Circular.

EVANGELINE LADONGA, petitioner, vs. PEOPLE OF THE PHILIPPINES,

respondent.

This Administrative Circular shall be published in a newspaper of general

circulation not later than 20 February 2001.

DECISION

Issued this 14th day of February, 2001.

(Sgd.)
HILARIO G. DAVIDE, JR.
Chief Justice (Underscoring ours)
In Felicito Abarquez vs. Court of Appeals and People of the Philippines
promulgated on August 7, 2003[4] a case which involves the application of
penalties for violations of Batas Pambansa Blg. 22 we did not only modify
the amount of the fines imposed by the Court of Appeals in Criminal Cases
Nos. D-8137, D-8176 and D-8177, but also imposed subsidiary
imprisonment in case of insolvency in accordance with Article 39 of the
Revised Penal Code in each case.
Administrative Circular No. 13-2001 and our Decision in Felicito Abarquez
vs. Court of Appeals and People of the Philippines should now lay to rest the
controversy at bar.
WHEREFORE, the petition is DENIED.
SO ORDERED.
Panganiban, (Chairman), and Corona, JJ., concur.
Carpio-Morales, J., on leave.

SECOND DIVISION
[G.R. No. 141066. February 17, 2005]

AUSTRIA-MARTINEZ, J.:
Petitioner Evangeline Ladonga seeks a review of the Decision,[1] dated May
17, 1999, of the Court of Appeals in CA-G.R. CR No. 20443, affirming the
Decision dated August 24, 1996, of the Regional Trial Court (RTC), Branch 3
of Bohol, in Criminal Case Nos. 7068, 7069 and 7070 convicting her of
violation of B.P. Blg. 22, otherwise known as The Bouncing Checks Law.
The factual background of the case is as follows:
On March 27, 1991, three Informations for violation of B.P. Blg. 22 were filed
with the RTC, docketed as Criminal Case Nos. 7068 - 7070. The Information
in Criminal Case No. 7068 alleges as follows:
That, sometime in May or June 1990, in the City of Tagbilaran, Philippines,
and within the jurisdiction of this Honorable Court, the above-named
accused, conspiring, confederating, and mutually helping with one another,
knowing fully well that they did not have sufficient funds deposited with the
United Coconut Planters Bank (UCPB), Tagbilaran Branch, did then and
there willfully, unlawfully, and feloniously, draw and issue UCPB Check No.
284743 postdated July 7, 1990 in the amount of NINE THOUSAND
SEVENTY-FIVE PESOS AND FIFTY-FIVE CENTAVOS (P9,075.55),
payable to Alfredo Oculam, and thereafter, without informing the latter that
they did not have sufficient funds deposited with the bank to cover up the
amount of the check, did then and there willfully, unlawfully and feloniously
pass on, indorse, give and deliver the said check to Alfredo Oculam by way
of rediscounting of the aforementioned checks; however, upon presentation
of the check to the drawee bank for encashment, the same was dishonored
for the reason that the account of the accused with the United Coconut
Planters Bank, Tagbilaran Branch, had already been closed, to the damage
and prejudice of the said Alfredo Oculam in the aforestated amount.
Acts committed contrary to the provisions of Batas Pambansa Bilang 22.[2]

The accusatory portions of the Informations in Criminal Case Nos. 7069 and
7070 are similarly worded, except for the allegations concerning the number,
date and amount of each check, that is:
(a) Criminal Case No. 7069 - UCPB Check No. 284744 dated July 22, 1990
in the amount of P12,730.00;[3]
(b) Criminal Case No. 7070 UCPB Check No. 106136 dated July 22, 1990
in the amount of P8,496.55.[4]
The cases were consolidated and jointly tried. When arraigned on June 26,
1991, the two accused pleaded not guilty to the crimes charged.[5]
The prosecution presented as its lone witness complainant Alfredo Oculam.
He testified that: in 1989, spouses Adronico[6] and Evangeline Ladonga
became his regular customers in his pawnshop business in Tagbilaran City,
Bohol;[7] sometime in May 1990, the Ladonga spouses obtained a
P9,075.55 loan from him, guaranteed by United Coconut Planters Bank
(UCPB) Check No. 284743, post dated to dated July 7, 1990 issued by
Adronico;[8] sometime in the last week of April 1990 and during the first
week of May 1990, the Ladonga spouses obtained an additional loan of
P12,730.00, guaranteed by UCPB Check No. 284744, post dated to dated
July 26, 1990 issued by Adronico;[9] between May and June 1990, the
Ladonga spouses obtained a third loan in the amount of P8,496.55,
guaranteed by UCPB Check No. 106136, post dated to July 22, 1990 issued
by Adronico;[10] the three checks bounced upon presentment for the reason
CLOSED ACCOUNT;[11] when the Ladonga spouses failed to redeem the
check, despite repeated demands, he filed a criminal complaint against
them.[12]
While admitting that the checks issued by Adronico bounced because there
was no sufficient deposit or the account was closed, the Ladonga spouses
claimed that the checks were issued only to guarantee the obligation, with
an agreement that Oculam should not encash the checks when they mature;
[13] and, that petitioner is not a signatory of the checks and had no
participation in the issuance thereof.[14]
On August 24, 1996, the RTC rendered a joint decision finding the Ladonga
spouses guilty beyond reasonable doubt of violating B.P. Blg. 22, the
dispositive portion of which reads:

Premises considered, this Court hereby renders judgment finding accused

Adronico Ladonga, alias Ronie, and Evangeline Ladonga guilty beyond
reasonable doubt in the aforesaid three (3) criminal cases, for which they
stand charged before this Court, and accordingly, sentences them to
imprisonment and fine, as follows:
1. In Criminal Case No. 7068, for (sic) an imprisonment of one (1) year for
each of them, and a fine in the amount of P9,075.55, equivalent to the
amount of UCPB Check No. 284743;
2. In Criminal Case No. 7069, for (sic) an imprisonment for each of them to
one (1) year and a fine of P12, 730.00, equivalent to the amount of UCPB
Check No. 284744; and,
3. In Criminal Case No. 7070, with (sic) an imprisonment of one year for
each of them and a fine of P8,496.55 equivalent to the amount of UCPB
Check No. 106136;
4. That both accused are further ordered to jointly and solidarily pay and
reimburse the complainant, Mr. Alfredo Oculam, the sum of P15,000.00
representing actual expenses incurred in prosecuting the instant cases;
P10,000.00 as attorneys fee; and the amount of P30,302.10 which is the
total value of the three (3) subject checks which bounced; but without
subsidiary imprisonment in case of insolvency.
With Costs against the accused.
SO ORDERED.[15]
Adronico applied for probation which was granted.[16] On the other hand,
petitioner brought the case to the Court of Appeals, arguing that the RTC
erred in finding her criminally liable for conspiring with her husband as the
principle of conspiracy is inapplicable to B.P. Blg. 22 which is a special law;
moreover, she is not a signatory of the checks and had no participation in
the issuance thereof.[17]
On May 17, 1999, the Court of Appeals affirmed the conviction of petitioner.
[18] It held that the provisions of the penal code were made applicable to
special penal laws in the decisions of this Court in People vs. Parel, [19]
U.S. vs. Ponte, [20] and U.S. vs. Bruhez.[21] It noted that Article 10 of the

Revised Penal Code itself provides that its provisions shall be

supplementary to special laws unless the latter provide the contrary. The
Court of Appeals stressed that since B.P. Blg. 22 does not prohibit the
applicability in a suppletory character of the provisions of the Revised Penal
Code (RPC), the principle of conspiracy may be applied to cases involving
violations of B.P. Blg. 22. Lastly, it ruled that the fact that petitioner did not
make and issue or sign the checks did not exculpate her from criminal
liability as it is not indispensable that a co-conspirator takes a direct part in
every act and knows the part which everyone performed. The Court of
Appeals underscored that in conspiracy the act of one conspirator could be
held to be the act of the other.
Petitioner sought reconsideration of the decision but the Court of Appeals
denied the same in a Resolution dated November 16, 1999.[22]
Hence, the present petition.
Petitioner presents to the Court the following issues for resolution:
1. WHETHER OR NOT THE PETITIONER WHO WAS NOT THE DRAWER
OR ISSUER OF THE THREE CHECKS THAT BOUNCED BUT HER COACCUSED HUSBAND UNDER THE LATTERS ACCOUNT COULD BE
HELD LIABLE FOR VIOLATIONS OF BATAS PAMBANSA BILANG 22 AS
CONSPIRATOR.
2. ANCILLARY TO THE MAIN ISSUE ARE THE FOLLOWING ISSUES:
A. WHETHER OR NOT CONSPIRACY IS APPLICABLE IN VIOLATIONS
OF BATAS PAMBANSA BILANG 22 BY INVOKING THE LAST SENTENCE
OF ARTICLE 10 OF THE REVISED PENAL CODE WHICH STATES:
Art. 10. Offenses not subject of the provisions of this Code. Offenses
which are or in the future may be punished under special laws are not
subject to the provisions of this Code. This Code shall be supplementary to
such laws, unless the latter should specially provide the contrary.
B. WHETHER OR NOT THE CASES CITED BY THE HONORABLE COURT
OF APPEALS IN AFFIRMING IN TOTO THE CONVICTION OF
PETITIONER AS CONSPIRATOR APPLYING THE SUPPLETORY

CHARACTER OF THE REVISED PENAL CODE TO SPECIAL LAWS LIKE

B.P. BLG. 22 IS APPLICABLE.[23]
Petitioner staunchly insists that she cannot be held criminally liable for
violation of B.P. Blg. 22 because she had no participation in the drawing and
issuance of the three checks subject of the three criminal cases, a fact
proven by the checks themselves. She contends that the Court of Appeals
gravely erred in applying the principle of conspiracy, as defined under the
RPC, to violations of B.P. Blg. 22. She posits that the application of the
principle of conspiracy would enlarge the scope of the statute and include
situations not provided for or intended by the lawmakers, such as penalizing
a person, like petitioner, who had no participation in the drawing or issuance
of checks.
The Office of the Solicitor General disagrees with petitioner and echoes the
declaration of the Court of Appeals that some provisions of the Revised
Penal Code, especially with the addition of the second sentence in Article
10, are applicable to special laws. It submits that B.P. Blg. 22 does not
provide any prohibition regarding the applicability in a suppletory character
of the provisions of the Revised Penal Code to it.
Article 10 of the RPC reads as follows:
ART. 10. Offenses not subject to the provisions of this Code. Offenses
which are or in the future may be punishable under special laws are not
subject to the provisions of this Code. This Code shall be supplementary to
such laws, unless the latter should specially provide the contrary.
The article is composed of two clauses. The first provides that offenses
which in the future are made punishable under special laws are not subject
to the provisions of the RPC, while the second makes the RPC
supplementary to such laws. While it seems that the two clauses are
contradictory, a sensible interpretation will show that they can perfectly be
reconciled.
The first clause should be understood to mean only that the special penal
laws are controlling with regard to offenses therein specifically punished.
Said clause only restates the elemental rule of statutory construction that
special legal provisions prevail over general ones.[24] Lex specialis derogant
generali. In fact, the clause can be considered as a superfluity, and could

have been eliminated altogether. The second clause contains the soul of the
article. The main idea and purpose of the article is embodied in the provision
that the "code shall be supplementary" to special laws, unless the latter
should specifically provide the contrary.
The appellate courts reliance on the cases of People vs. Parel,[25] U.S. vs.
Ponte,[26] and U.S. vs. Bruhez[27] rests on a firm basis. These cases
involved the suppletory application of principles under the then Penal Code
to special laws. People vs. Parel is concerned with the application of Article
22[28] of the Code to violations of Act No. 3030, the Election Law, with
reference to the retroactive effect of penal laws if they favor the accused.
U.S. vs. Ponte involved the application of Article 17[29] of the same Penal
Code, with reference to the participation of principals in the commission of
the crime of misappropriation of public funds as defined and penalized by
Act No. 1740. U.S. vs. Bruhez covered Article 45[30] of the same Code, with
reference to the confiscation of the instruments used in violation of Act No.
1461, the Opium Law.
B.P. Blg. 22 does not expressly proscribe the suppletory application of the
provisions of the RPC. Thus, in the absence of contrary provision in B.P.
Blg. 22, the general provisions of the RPC which, by their nature, are
necessarily applicable, may be applied suppletorily. Indeed, in the recent
case of Yu vs. People,[31] the Court applied suppletorily the provisions on
subsidiary imprisonment under Article 39[32] of the RPC to B.P. Blg. 22.
The suppletory application of the principle of conspiracy in this case is
analogous to the application of the provision on principals under Article 17 in
U.S. vs. Ponte. For once conspiracy or action in concert to achieve a
criminal design is shown, the act of one is the act of all the conspirators, and
the precise extent or modality of participation of each of them becomes
secondary, since all the conspirators are principals.[33]
All these notwithstanding, the conviction of the petitioner must be set aside.
Article 8 of the RPC provides that a conspiracy exists when two or more
persons come to an agreement concerning the commission of a felony and
decide to commit it. To be held guilty as a co-principal by reason of
conspiracy, the accused must be shown to have performed an overt act in
pursuance or furtherance of the complicity.[34] The overt act or acts of the
accused may consist of active participation in the actual commission of the

crime itself or may consist of moral assistance to his co-conspirators by

moving them to execute or implement the criminal plan.[35]
In the present case, the prosecution failed to prove that petitioner performed
any overt act in furtherance of the alleged conspiracy. As testified to by the
lone prosecution witness, complainant Alfredo Oculam, petitioner was
merely present when her husband, Adronico, signed the check subject of
Criminal Case No. 7068.[36] With respect to Criminal Case Nos. 7069-7070,
Oculam also did not describe the details of petitioners participation. He did
not specify the nature of petitioners involvement in the commission of the
crime, either by a direct act of participation, a direct inducement of her coconspirator, or cooperating in the commission of the offense by another act
without which it would not have been accomplished. Apparently, the only
semblance of overt act that may be attributed to petitioner is that she was
present when the first check was issued. However, this inference cannot be
stretched to mean concurrence with the criminal design.
Conspiracy must be established, not by conjectures, but by positive and
conclusive evidence.[37] Conspiracy transcends mere companionship and
mere presence at the scene of the crime does not in itself amount to
conspiracy.[38] Even knowledge, acquiescence in or agreement to
cooperate, is not enough to constitute one as a party to a conspiracy, absent
any active participation in the commission of the crime with a view to the
furtherance of the common design and purpose.[39]
As the Court eloquently pronounced in a case of recent vintage, People vs.
Mandao:[40]
To be sure, conspiracy is not a harmless innuendo to be taken lightly or
accepted at every turn. It is a legal concept that imputes culpability under
specific circumstances; as such, it must be established as clearly as any
element of the crime. Evidence to prove it must be positive and convincing,
considering that it is a convenient and simplistic device by which the
accused may be ensnared and kept within the penal fold.
Criminal liability cannot be based on a general allegation of conspiracy, and
a judgment of conviction must always be founded on the strength of the
prosecutions evidence. The Court ruled thus in People v. Legaspi, from
which we quote:

At most, the prosecution, realizing the weakness of its evidence against

accused-appellant Franco, merely relied and pegged the latters criminal
liability on its sweeping theory of conspiracy, which to us, was not attendant
in the commission of the crime.
The rule is firmly entrenched that a judgment of conviction must be
predicated on the strength of the evidence for the prosecution and not on the
weakness of the evidence for the defense. The proof against him must
survive the test of reason; the strongest suspicion must not be permitted to
sway judgment. The conscience must be satisfied that on the defense could
be laid the responsibility for the offense charged; that not only did he
perpetrate the act but that it amounted to a crime. What is required then is
moral certainty.

SO ORDERED.
Puno, (Chairman), Callejo, Sr., Tinga, and Chico-Nazario, JJ., concur.

[1] Penned by Justice Buenaventura J. Guerrero (now retired) and concurred

in by Justices Portia Alino-Hormachuelos and Eloy R. Bello (now retired).
[2] Original Records, pp. 1-2.

Verily, it is the role of the prosecution to prove the guilt of the appellant
beyond reasonable doubt in order to overcome the constitutional
presumption of innocence.

[3] Id., p. 3.

In sum, conviction must rest on hard evidence showing that the accused is
guilty beyond reasonable doubt of the crime charged. In criminal cases,
moral certainty -- not mere possibility -- determines the guilt or the innocence
of the accused. Even when the evidence for the defense is weak, the
accused must be acquitted when the prosecution has not proven guilt with
the requisite quantum of proof required in all criminal cases. (Citations
omitted)[41]

[5] Id., pp. 29-31.

All told, the prosecution failed to establish the guilt of the petitioner with
moral certainty. Its evidence falls short of the quantum of proof required for
conviction. Accordingly, the constitutional presumption of the petitioners
innocence must be upheld and she must be acquitted.
WHEREFORE, the instant petition is GRANTED. The assailed Decision,
dated May 17, 1999, of the Court of Appeals in CA-G.R. CR No. 20443
affirming the Decision, dated August 24, 1996, of the Regional Trial Court
(Branch 3), Bohol, in Criminal Case Nos. 7068, 7069 and 7070 convicting
the petitioner of violation of B.P. Blg. 22 is hereby REVERSED and SET
ASIDE. Petitioner Evangeline Ladonga is ACQUITTED of the charges
against her under B.P. Blg. 22 for failure of the prosecution to prove her guilt
beyond reasonable doubt. No pronouncement as to costs.

[4] Id., p. 5.

[6] Also known as Ronie.

[7] TSN of December 3, 1991, Testimony of Alfredo Oculam, pp. 4-7.
[8] Id., pp. 16-21.
[9] TSN of December 4, 1991, Testimony of Alfredo Oculam, pp. 2-3.
[10] TSN of January 28, 1992, Testimony of Alfredo Oculam, pp. 1-2.
[11] TSN of December 3, 1991, Testimony of Alfredo Oculam, p. 19; TSN of
December 4, 1991, Testimony of Alfredo Oculam, pp. 1 and 3; TSN of
January 28, 1992, Testimony of Alfredo Oculam, p. 1; Original Records, p.
128.
[12] TSN of December 4, 1991, Testimony of Alfredo Oculam, pp. 2 and 4;
TSN of January 28, 1992, Testimony of Alfredo Oculam, p. 2; Original
Records, p. 125.

[13] TSN of August 23, 1993, Testimony of Evangeline Ladonga, pp. 7-8, 1112 and 15; TSN of December 20, 1993, Testimony of Adronico Ladonga, p.
18.

1. Those who take a direct part in the execution of the act;

[14] TSN of August 23, 1993, Testimony of Evangeline Ladonga, p. 10; TSN
of December 20, 1993, Testimony of Adronico Ladonga, pp. 24-26.

3. Those who cooperate in the commission of the offense by another act

without which it would not have been accomplished.

[15] Original Records, p. 124.

[30] ART. 45. Confiscation and forfeiture of the proceeds or instruments of

the crime. Every penalty imposed for the commission of a felony shall
carry with it the forfeiture of the proceeds of the crime and the instruments or
tools with which it was committed.

[16] Id., p. 126.

[17] Court of Appeals (CA) Rollo, p. 28.
[18] Rollo, p. 133.
[19] No. 18260, January 27, 1923, 44 Phil. 437.

2. Those who directly force or induce others to commit it;

Such proceeds and instruments or tools shall be confiscated and forfeited in

favor of the Government, unless they be the property of a third person not
liable for the offense, but those articles which are not subject of lawful
commerce shall be destroyed.

[20] No. 5952, October 24, 1911, 20 Phil. 379.

[21] No. 9268, November 4, 1914, 28 Phil. 305.

[31] G.R. No. 134172, September 20, 2004.

[22] Rollo, p. 39.

[32] ART. 39. Subsidiary penalty. If the convict has no property with which
to meet the fine mentioned in paragraph 3 of the next preceding article, he
shall be subject to a subsidiary personal liability at the rate of one day for
each eight pesos, subject to the following rules:

[23] Rollo, pp. 69-70.

[24] Bayan (Bagong Alyansang Makabayan) vs. Zamora, G.R. No. 138570,
October 10, 2000, 342 SCRA 449, 483.
[25] Note No. 19, supra.
[26] Note No. 20, supra.
[27] Note No. 21, supra.
[28] ART. 22. Retroactive effect of penal laws. Penal laws shall have a
retroactive effect insofar as they favor the person guilty of a felony, who is
not a habitual criminal, as this term is defined in Rule 5 of Article 62 of this
Code, although at the time of the publication of such laws a final sentence
has been pronounced and the convict is serving the same.
[29] ART. 17. Principals. The following are considered principals:

1. If the principal penalty imposed be prision correccional or arresto and fine,

he shall remain under confinement until his fine referred in the preceding
paragraph is satisfied, but his subsidiary imprisonment shall not exceed onethird of the term of the sentence, and in no case shall it continue for more
than one year, and no fraction or part of a day shall be counted against the
prisoner.
2. When the principal penalty imposed be only a fine, the subsidiary
imprisonment shall not exceed six months, if the culprit shall have been
prosecuted for a grave or less grave felony, and shall not exceed fifteen
days, if for a light felony.
3. When the principal penalty imposed is higher than prision correccional no
subsidiary imprisonment shall be imposed upon the culprit.

4. If the principal penalty imposed is not to be executed by confinement in a

penal institution, but such penalty is of fixed duration, the convict, during the
period of time established in the preceding rules, shall continue to suffer the
same deprivation as those of which the principal penalty consists.
5. The subsidiary personal liability which the convict may have suffered by
reason of his insolvency shall not relieve him from the fine in case his
financial circumstances should improve.
[33] People vs. Felipe, G.R. No. 142505, December 11, 2003, 418 SCRA
146, 176; People vs. Julianda, Jr., G.R. No. 128886, November 23, 2001,
370 SCRA 448, 469; People vs. Quinicio, G.R. No. 142430, September 13,
2001, 365 SCRA 252, 266.
[34] People vs. Pickrell, G.R. No. 120409, October 23, 2003, 414 SCRA 19,
33; People vs. Bisda, G.R. No. 140895, July 17, 2003, 406 SCRA 454, 473;
People vs. Pagalasan, G.R. Nos. 131926 & 138991, June 18, 2003, 404
SCRA 275, 291.
[35] People vs. Caballero, G.R. Nos. 149028-30, April 2, 2003, 400 SCRA
424, 437; People vs. Ponce, G.R. No. 126254, September 29, 2000, 341
SCRA 352, 359-360.
[36] TSN of December 3, 1991, Testimony of Alfredo Oculam, p. 20.
[37] People vs. Tamayo, G.R. No. 138608, September 24, 2002, SCRA 540,
553; People vs. Melencion, G.R. No. 121902, March 26, 2001, 355 SCRA
113, 123.
[38] People vs. Leao, G.R. No. 138886, October 9, 2001, 366 SCRA 774;
People vs. Compo, G.R. No. 112990, May 28, 2001, 358 SCRA 266, 272.
[39] People vs. Natividad, G.R. No. 151072, September 23, 2003, 411
SCRA 587, 595.
[40] People vs. Mandao, G.R. No. 135048, December 3, 2002, 393 SCRA
292.
[41] Id., pp. 304-305.